EXECUTION COPY
$185,000,000
CREDIT AGREEMENT
dated as of
July 31, 1998
among
Sybron Chemicals Inc.,
The Lenders Party Hereto,
The Swingline Bank Referred to Herein,
The Issuers Referred to Herein,
DLJ Capital Funding, Inc.,
as Syndication Agent,
Xxxxxx Guaranty Trust Company of New York,
as Documentation Agent,
and
Mellon Bank, N.A.,
as Administrative Agent
-------------------------
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation,
as Lead Arranger
TABLE OF CONTENTS
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PAGE
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ARTICLE 1
Definitions
Section 1.01. Definitions.............................................1
Section 1.02. Accounting Terms and Determinations....................23
Section 1.03. Classes and Types of Loans and Borrowings..............23
Section 1.04. Other Definitional Provisions..........................23
ARTICLE 2
The Credits
Section 2.01. Commitments to Lend....................................24
Section 2.02. Notice of Borrowing....................................25
Section 2.03. Notice to Lenders; Funding of Loans....................25
Section 2.04. Maturity of Loans; Contingent Prepayments..............26
Section 2.05. Interest Rates.........................................28
Section 2.06. Method of Electing Interest Rates......................30
Section 2.07. Fees...................................................32
Section 2.08. Termination or Reduction of Commitments................33
Section 2.09. Optional Prepayments...................................33
Section 2.10. General Provisions as to Payments......................34
Section 2.11. Funding Losses.........................................35
Section 2.12. Computation of Interest and Fees.......................35
Section 2.13. Notes..................................................35
Section 2.14. Letters of Credit......................................36
Section 2.15. Swingline Loans........................................42
Section 2.16. Registry...............................................45
Section 2.17. Monthly Statement......................................45
ARTICLE 3
Conditions
Section 3.01. Closing Date...........................................45
Section 3.02. Borrowings and Issuances of Letters of Credit..........49
ARTICLE 4
Representations and Warranties
PAGE
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Section 4.01. Corporate Existence and Power..........................50
Section 4.02. Corporate and Governmental Authorization; No
Contravention..........................................51
Section 4.03. Binding Effect; Liens Enforceable......................51
Section 4.04. Financial Information..................................51
Section 4.05. Litigation.............................................52
Section 4.06. Compliance with ERISA..................................53
Section 4.07. Environmental Matters..................................53
Section 4.08. Taxes..................................................54
Section 4.09. Subsidiaries...........................................55
Section 4.10. No Regulatory Restrictions on Borrowing................55
Section 4.11. Real Property Interests................................55
Section 4.12. Full Disclosure........................................55
Section 4.13. Solvency...............................................55
Section 4.14. Representations and Warranties Incorporated from
Acquisition Agreement..................................56
Section 4.15. Information Memorandum.................................56
Section 4.16. Year 2000..............................................56
ARTICLE 5
Covenants
Section 5.01. Information............................................57
Section 5.02. Payment of Obligations.................................60
Section 5.03. Maintenance of Property; Insurance.....................60
Section 5.04. Conduct of Business and Maintenance of Existence.......62
Section 5.05. Compliance with Laws...................................62
Section 5.06. Inspection of Property, Books and Records..............62
Section 5.07. Mergers and Sales of Assets............................62
Section 5.08. Use of Proceeds........................................63
Section 5.09. Negative Pledge........................................63
Section 5.10. Limitation on Debt.....................................64
Section 5.11. Leverage Ratio.........................................65
Section 5.12. Interest Coverage Ratio................................65
Section 5.13. Fixed Charge Coverage Ratio............................65
Section 5.14. Minimum Consolidated Tangible Net Worth................66
Section 5.15. Limitation on Capital Expenditures.....................66
Section 5.16. Restricted Payments; Voluntary Prepayments.............66
Section 5.17. Investments and Acquisitions...........................67
Section 5.18. Transactions with Affiliates...........................67
Section 5.19. Limitation on Restrictions Affecting Subsidiaries......68
Section 5.20. Fiscal Year............................................68
Section 5.21. Material Contracts; Occidental Indemnity...............68
Section 5.22. Change in Business.....................................68
Section 5.23. Further Assurances.....................................68
Section 5.24. Amendments to Acquisition Documents....................72
ii
ARTICLE 6
Defaults
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Section 6.01. Events of Default......................................72
Section 6.02. Notice of Default......................................76
Section 6.03. Cash Collateral........................................76
ARTICLE 7
The Agents
Section 7.01. Appointment and Authorization..........................76
Section 7.02. Agents and Affiliates..................................77
Section 7.03. Action by Agents.......................................77
Section 7.04. Consultation with Experts..............................77
Section 7.05. Liability of Agents....................................77
Section 7.06. Indemnification........................................78
Section 7.07. Credit Decision........................................78
Section 7.08. Successor Agents.......................................78
Section 7.09. Agent's Fee............................................78
Section 7.10. Syndication Agent and Documentation Agent..............79
ARTICLE 8
Change in Circumstances
Section 8.01. Basis for Determining Interest Rate Inadequate or
Unfair.................................................79
Section 8.02. Illegality.............................................79
Section 8.03. Increased Cost and Reduced Return......................80
Section 8.04. Taxes..................................................82
Section 8.05. Base Rate Loans Substituted for Affected Euro-Dollar
Loans..................................................84
Section 8.06. Substitution of Bank...................................84
iii
ARTICLE 9
Miscellaneous
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Section 9.01. Notices................................................85
Section 9.02. No Waivers.............................................85
Section 9.03. Expenses; Indemnification..............................86
Section 9.04. Set-Offs...............................................86
Section 9.05. Amendments and Waivers.................................87
Section 9.06. Successors; Participations and Assignments.............88
Section 9.07. Designated Lenders.....................................90
Section 9.08. No Reliance on Margin Stock............................91
Section 9.09. Governing Law; Submission to Jurisdiction..............91
Section 9.10. Counterparts; Integration; Effectiveness...............91
Section 9.11. WAIVER OF JURY TRIAL...................................92
COMMITMENT SCHEDULE
PRICING SCHEDULE
SCHEDULE 1.01 -- SELLERS
SCHEDULE 4.07 -- ENVIRONMENTAL MATTERS
SCHEDULE 4.11 -- REAL PROPERTY INTERESTS
SCHEDULE 5.17 -- INVESTMENTS
EXHIBIT A -- NOTES
EXHIBIT A-1 -- SWINGLINE NOTE
EXHIBIT B -- SECURITY AGREEMENT
EXHIBIT C -- SUBSIDIARY GUARANTY
EXHIBIT D -- OPINION OF COUNSEL TO THE BORROWER
EXHIBIT E -- LOCAL COUNSEL OPINIONS
EXHIBIT F -- OPINION OF COUNSEL TO THE AGENTS
EXHIBIT G -- ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT H -- DESIGNATION AGREEMENT
iv
AGREEMENT dated as of July 31, 1998 among SYBRON CHEMICALS
INC., the LENDERS party hereto, the SWINGLINE BANK referred to herein, the
ISSUERS referred to herein, DLJ CAPITAL FUNDING, INC., as Syndication Agent,
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Documentation Agent, and MELLON
BANK, N.A., as Administrative Agent.
ARTICLE 1
Definitions
Section 1.1. Definitions. The following terms, as used
herein, have the following meanings:
"Acquisition" means the acquisition by the Borrower of (i) 100%
of the outstanding capital stock of Ruco Corp. and (ii) 100% of the outstanding
membership interests of Ruco LLC, in each case from the Sellers pursuant to
the Acquisition Agreement on the Closing Date concurrently with the making of
the initial Loans hereunder.
"Acquisition Agreement" means the Capital Stock and Membership
Interest Purchase Agreement dated as of July __, 1998 among the Borrower and
the Sellers.
"Acquisition Documents" means the Acquisition Agreement and all
agreements, documents, instruments, certificates, filings, consents, approvals,
board of directors resolutions and opinions furnished pursuant to or in
connection with the Acquisition and the transactions contemplated thereby,
each as amended, supplemented, amended and restated or otherwise modified from
time to time as permitted in accordance with the terms hereof.
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.5(g).
"Administrative Agent" means Mellon Bank, N.A. in its capacity
as administrative agent for the Lenders under the Loan Documents, and its
successors in such capacity.
"Administrative Questionnaire" means, with respect to each
Lender, an administrative questionnaire in the form prepared by the
Administrative Agent, completed by such Lender and returned to the
Administrative Agent (with a copy to the Borrower).
"Affiliate" means (i) any Person that directly, or indirectly
through one or more intermediaries, controls the Borrower (a "Controlling
Person") or (ii) any Person (other than the Borrower or a Subsidiary
Guarantor) which is controlled by or is under common control with a
Controlling Person. As used herein, the term "control" means possession,
directly or indirectly, of the power to vote 10% or more of any class of
voting securities of a Person or to direct or cause the direction of the
management or policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agents" means the Syndication Agent, the Documentation Agent
and the Administrative Agent, and "Agent" means any of them, as the context
may require.
"Aggregate LC Exposure" means, at any time, the sum, without
duplication, of (i) the aggregate amount that is (or may thereafter become)
available for drawing under all Letters of Credit outstanding at such time and
(ii) the aggregate unpaid amount of all Reimbursement Obligations at such time.
"Applicable Lending Office" means, with respect to any Lender,
(i) in the case of its Base Rate Loans and its participations in Letters of
Credit, its Domestic Lending Office and (ii) in the case of its Euro-Dollar
Loans, its Euro-Dollar Lending Office.
"Assessment Date" means the earlier of (i) the 60th calendar
day after the Closing Date and (ii) September 29, 1998.
"Asset Sale" means any sale, lease or other disposition
(including any such transaction effected by way of merger or consolidation) by
the Borrower or any of its Subsidiaries of any asset, including without
limitation any sale-leaseback transaction, whether or not involving a capital
lease, but excluding (i) dispositions of inventory or obsolete, worn out or
unnecessary equipment, in each case in the ordinary course of business, (ii)
dispositions of Temporary Cash Investments and cash payments otherwise
permitted under this Agreement and (iii) dispositions to the Borrower or a
Subsidiary of the Borrower.
"Assignee" has the meaning set forth in Section 9.6(c).
"Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus
the Federal Funds Rate for such day.
"Base Rate Loan" means a Loan which bears interest at the Base
Rate pursuant to the applicable Notice of Borrowing or Notice of Interest Rate
Election or the provisions of Section 2.6(a) or Article 8.
"Base Rate Margin" means a rate per annum determined in
accordance with the Pricing Schedule; provided that with respect to Base Rate
Term A Loans prior to the Term B Repayment Date, "Base Rate Margin" means 1%.
2
"Borrower" means Sybron Chemicals Inc., a Delaware corporation,
and its successors.
"Borrower Mortgage" means a mortgage or deed of trust, in a form
reasonably satisfactory to the Administrative Agent, entered into between the
Borrower, as mortgagor or trustor, and the Administrative Agent, as mortgagee
or beneficiary, as amended from time to time.
"Borrowing" has the meaning set forth in Section 1.3.
"Business Acquisition" means any acquisition (other than the
Acquisition), whether in a single transaction or series of related
transactions, by the Borrower or any one or more Subsidiaries, or any
combination thereof, of (i) all or a substantial part of the assets, or a
going concern business or division, of any Person, whether through purchase of
assets or securities, by merger or otherwise, (ii) control of securities of an
existing corporation or other Person having ordinary voting power (apart from
rights accruing under special circumstances) to elect a majority of the board
of directors of such corporation or other Person or (iii) control of a greater
than 50% ownership interest in any existing partnership, joint venture or
other Person.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, and any rules or
regulations promulgated thereunder.
"Change of Control" shall occur if (i) any person or group of
persons (within the meaning of Section 13 or 14 of the Securities Exchange Act
of 1934, as amended) other than Citicorp Venture Capital, Ltd. or any of its
affiliates or Xxxxxxx Xxxxx shall have acquired beneficial ownership (within
the meaning of Rule 13d-3 promulgated by the Securities and Exchange
Commission under said Act) of 25% or more of the outstanding shares of common
stock of the Borrower or (ii) during any period of twelve consecutive calendar
months, individuals who were directors of the Borrower on the first day of
such period (or who were appointed or nominated for election as directors of
the Borrower by at least a majority of the individuals who were directors on
the first day of such period or who were so elected or appointed) shall cease
to constitute a majority of the board of directors of the Borrower.
3
"Class" has the meaning set forth in Section 1.3.
"Closing Date" means the date on which all of the conditions
set forth in Section 3.1 shall have been satisfied (or waived in accordance
with Section 9.5).
"Collateral" means the collateral purported to be subject to
the Liens of the Collateral Documents.
"Collateral Documents" means the Security Agreement, the
Mortgages (if any) and any additional security agreements, pledge agreements or
mortgages required to be delivered pursuant to the Loan Documents and any
instruments of assignment, lockbox letters or other instruments or agreements
executed pursuant to the foregoing; provided that, at all times prior to the
Assessment Date, "Collateral Documents" shall exclude the Mortgages.
"Commitment" means any Term Loan Commitment or Revolving Credit
Commitment, and "Commitments" means any or all of the foregoing, as the
context may require.
"Commitment Fee Rate" means a rate per annum determined in
accordance with the Pricing Schedule.
"Commitment Schedule" means the Schedule attached hereto and
identified as such.
"Consolidated Capital Expenditures" means, for any Fiscal Year,
the additions to property, plant and equipment and other capital expenditures
of the Borrower and its Consolidated Subsidiaries for such Fiscal Year, as the
same are set forth in a consolidated statement of cash flows of the Borrower
and its Consolidated Subsidiaries for such Fiscal Year.
"Consolidated Current Assets" means at any date the consolidated
current assets of the Borrower and its Consolidated Subsidiaries determined as
of such date.
"Consolidated Current Liabilities" means at any date (i) the
consolidated current liabilities of the Borrower and its Consolidated
Subsidiaries plus (ii) the current liabilities of any Person (other than the
Borrower or any of its Consolidated Subsidiaries) which are Guaranteed by the
Borrower or a Consolidated Subsidiary, all determined as of such date.
4
"Consolidated Debt" means, at any date, the Debt of the Borrower
and its Consolidated Subsidiaries, determined on a consolidated basis as of
such date.
"Consolidated EBITDA" means, for any period, Consolidated Net
Income for such period plus, to the extent deducted in determining
Consolidated Net Income for such period, the aggregate amount of (i)
Consolidated Interest Expense, (ii) income tax expense and (iii) depreciation,
amortization and other non-cash charges.
"Consolidated Interest Expense" means, for any period, the
interest expense of the Borrower and its Consolidated Subsidiaries, determined
on a consolidated basis for such period.
"Consolidated Net Income" means, for any period, the net income
of the Borrower and its Consolidated Subsidiaries, determined on a consolidated
basis for such period, adjusted to exclude the effect of any extraordinary or
other non-recurring gain (but not loss).
"Consolidated Net Working Investment" means at any date
Consolidated Current Assets (exclusive of cash and cash equivalents) minus
Consolidated Current Liabilities (exclusive of Debt).
"Consolidated Subsidiary" means, at any date, any Subsidiary or
other entity the accounts of which would be consolidated with those of the
Borrower in its consolidated financial statements if such statements were
prepared as of such date.
"Consolidated Tangible Net Worth" means, at any date, the
consolidated stockholders' equity of the Borrower and its Consolidated
Subsidiaries less their consolidated Intangible Assets, all determined as of
such date. As used herein, "Intangible Assets" means the amount (to the extent
reflected in determining such consolidated stockholders' equity) of (i) all
write-ups (except write-ups resulting from foreign currency translations and
write-ups of assets of a going concern business made within twelve months
after the acquisition of such business) after March 31, 1998 in the book value
of any asset owned by the Borrower or a Consolidated Subsidiary, (ii) all
Investments in unconsolidated Subsidiaries and all equity Investments in
Persons which are not Subsidiaries and (iii) all unamortized debt discount and
expense, unamortized deferred charges, goodwill, patents, trademarks, service
marks, trade names, anticipated future benefit of tax loss carry-forwards,
copyrights, organization or developmental expenses and other intangible assets.
5
"Corestates Loan Agreement" means the Loan Agreement dated as of
February 18, 1997 between the Borrower and Corestates Bank N.A.
"Credit Exposure" means, with respect to any Lender at any
time, the sum of (i) the greater, at such time, of (A) such Lender's Term Loan
Commitments and (B) the outstanding principal amount of such Lender's Term
Loans plus (ii) the greater, at such time, of (A) such Lender's Revolving
Commitment and (B) such Lender's Outstanding Revolving Amount.
"Debt" of any Person means, at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except (A) trade accounts payable arising in the ordinary
course of business and (B) obligations in respect of deferred purchase price
payments not exceeding $10,000,000 under the Acquisition Agreement, (iv) all
obligations of such Person as lessee which are capitalized in accordance with
GAAP, (v) all obligations (contingent or otherwise) of such Person to
reimburse any bank or other Person in respect of amounts paid under a letter
of credit or similar instrument, (vi) all Debt secured by a Lien on any asset
of such Person, whether or not such Debt is otherwise an obligation of such
Person and (vii) all Guarantees by such Person of Debt of another Person (each
such Guarantee to constitute Debt in an amount equal to the amount of such
other Person's Debt Guaranteed thereby).
"Debt Incurrence" means the incurrence of any Debt by the
Borrower or any of its Subsidiaries, other than Debt permitted by Section
5.10(a)(i), (ii), (v) or (vi).
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Default Rate Period" means, if an Event of Default shall have
occurred and be continuing, the period from the date the Required Lenders
notify the Borrower of the commencement of a Default Rate Period to the
earlier of the date on which such notice is rescinded by the Required Lenders
and the date no Event of Default shall have occured and be continuing.
6
"Derivatives Obligations" of any Person means all obligations
of such Person in respect of any rate swap transaction, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity index
swap, equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency
option or any other similar transaction (including any option with respect to
any of the foregoing transactions) or any combination of the foregoing
transactions.
"Designated Lender" means, with respect to any Designating
Lender, an Eligible Designee designated by it pursuant to Section 9.7(a) as a
Designated Lender for purposes of this Agreement.
"Designating Lender" means, with respect to each Designated
Lender, the Lender that designated such Designated Lender pursuant to Section
9.7(a).
"Documentation Agent" means Xxxxxx Guaranty Trust Company of
New York in its capacity as documentation agent in respect of the Loan
Documents.
"Domestic Business Day" means any day except a Saturday, Sunday
or other day on which commercial banks in New York City are authorized or
required by law to close.
"Domestic Lending Office" means, as to each Lender, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Domestic Lending Office)
or such other office as such Lender may hereafter designate as its Domestic
Lending Office by notice to the Borrower and the Administrative Agent.
"Eligible Designee" means a special purpose corporation that
(i) is organized under the laws of the United States or any state thereof,
(ii) is engaged in making, purchasing or otherwise investing in commercial
loans in the ordinary course of its business and (iii) issues (or the parent
of which issues) commercial paper rated at least A-1 or the equivalent thereof
by S&P or P-1 or the equivalent thereof by Xxxxx'x.
"Environmental Laws" means any federal, state, local or foreign
law, treaty, judicial decision, regulation, rule, judgment, order, decree,
injunction, permit, agreement or governmental restriction or requirement,
whether now or hereafter in effect, relating to human health, the environment
or to pollutants, contaminants, wastes or chemicals or any toxic, radioactive,
ignitable, corrosive, reactive or otherwise hazardous substances, wastes or
materials.
7
"Environmental Liabilities" means any and all liabilities of or
relating to the Borrower and any Subsidiary (including any entity which is, in
whole or in part, a predecessor of the Borrower or any Subsidiary), whether
vested or unvested, contingent or fixed, actual or potential, known or
unknown, which arise under or relate to matters covered by applicable
Environmental Laws (including without limitation any matter disclosed or
required to be disclosed in Schedule 4.07 hereto).
"Equity Issuance" means any issuance of equity securities by the
Borrower or any of its Subsidiaries, other than any such issuance to the
Borrower or any of its Subsidiaries.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary and all members
of a controlled group of corporations and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or
any Subsidiary, are treated as a single employer under Section 414 of the
Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on
which commercial banks are open for international business (including dealings
in dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Lender, its
office, branch or affiliate located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative
Questionnaire as its Euro-Dollar Lending Office) or such other office, branch
or affiliate of such Lender as it may hereafter designate as its Euro-Dollar
Lending Office by notice to the Borrower and the Administrative Agent.
"Euro-Dollar Loan" means a Loan which bears interest at a
Euro-Dollar Rate pursuant to the applicable Notice of Borrowing or Notice of
Interest Rate Election.
"Euro-Dollar Margin" means a rate per annum determined in
accordance with the Pricing Schedule; provided that with respect to
Euro-Dollar Term A Loans prior to the Term B Repayment Date, "Euro-Dollar
Margin" means 2.25%.
"Euro-Dollar Rate" means a rate of interest determined pursuant
to Section 2.5(b) or 2.5(d) on the basis of a London Interbank Offered Rate.
8
"Euro-Dollar Reserve Percentage" means, for any day, that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank
of the Federal Reserve System in New York City with deposits exceeding five
billion dollars in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Lender to United States residents). The Adjusted London Interbank Offered
Rate shall be adjusted automatically on and as of the effective date of any
change in the Euro-Dollar Reserve Percentage.
"Events of Default" has the meaning set forth in Section 6.1.
"Evergreen Letter of Credit" means a Letter of Credit that is
automatically extended unless the relevant Issuer gives notice to the
beneficiary thereof stating that such Letter of Credit will not be extended.
"Excess Cash Flow" means, for any period:
(a) the sum of (i) Consolidated EBITDA for such period, and
(ii) any decrease in Consolidated Net Working Investment between the beginning
and the end of such period;
less
(b) the sum of (i) Consolidated Capital Expenditures for such
period, (ii) any increase in Consolidated Net Working Investment between the
beginning and the end of such period, (iii) mandatory and voluntary repayments
during such period of the non-revolving Debt of the Borrower and its
Consolidated Subsidiaries which were not made with the proceeds of other Debt
(adjusted to eliminate the effect of prepayments on account of Excess Cash
Flow for a prior period), (iv) Consolidated Interest Expense to the extent
paid or payable in cash for such period, (iv) income taxes paid or payable in
cash for such period and (v) to the extent not deducted in calculating
Consolidated EBITDA for such period, cash payments made to any third parties
during such period in connection with any Business Acquisition permitted under
Section 5.17(b).
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if such day is not a
Domestic Business Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Domestic Business Day as so
published on the next succeeding Domestic Business Day and (ii) if no such
rate is so published on such next succeeding Domestic Business Day, the
Federal Funds Rate for such day shall be the average rate quoted to Mellon
Bank, N.A. such day on such transactions as determined by the Administrative
Agent.
9
"Fiscal Quarter" means a fiscal quarter of the Borrower.
"Fiscal Year" means a fiscal year of the Borrower.
"Fixed Charge Coverage Ratio" means, at any date, the ratio of
(i) Consolidated EBITDA for the period of four consecutive Fiscal Quarters
ended on or most recently prior to such date to (ii) the sum of (A)
Consolidated Interest Expense for such period, plus (B) income tax expense
for such period plus (C) Consolidated Capital Expenditures for such period
plus (D) the aggregate principal amount of long term Debt of the Borrower and
its Consolidated Subsidiaries scheduled to be amortized during such period.
"Foreign Subsidiary" means any Subsidiary organized under the
laws of a jurisdiction, and conducting substantially all of its operations,
outside of the United States, other than any such Subsidiary that shall have
elected to be treated as a partnership or a branch of the Borrower or any U.S.
Subsidiary for United States income tax purposes.
"GAAP" means generally accepted accounting principles as in
effect on the date hereof, applied on a basis consistent with the financial
statements referred to in Section 4.4(a).
"Group of Loans" means at any time a group of Loans of any Class
consisting of (i) all Loans of such Class which are Base Rate Loans at such
time or (ii) all Loans of such Class which are Euro-Dollar Loans having the
same Interest Period at such time, provided that, if a Loan of any particular
Lender is converted to or made as a Base Rate Loan pursuant to Article 8, such
Loan shall be included in the same Group or Groups of Loans from time to time
as it would have been in if it had not been so converted or made.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation (whether arising by virtue of
partnership arrangements, by virtue of an agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise), (ii) to reimburse a bank for amounts drawn
under a letter of credit for the purpose of paying such Debt or other
obligation or (iii) entered into for the purpose of assuring in any other
manner the holder of such Debt or other obligation of the payment thereof or
to protect such holder against loss in respect thereof (in whole or in part),
provided that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term
"Guarantee" used as a verb has a corresponding meaning.
10
"Hazardous Substances" means any pollutant, contaminant, waste
or chemical or any toxic, radioactive, ignitable, corrosive, reactive or
otherwise hazardous substance, waste or material, or any substance, waste or
material having any constituent elements displaying any of the foregoing
characteristics, including, without limitation, petroleum, its derivatives,
by-products and other hydrocarbons, and any substance, waste or material
regulated under applicable Environmental Laws.
"Hicksville Facility" means Ruco Corp.'s facility in
Hicksville, New York.
"Indemnitee" has the meaning set forth in Section 9.3(b).
"Interest Coverage Ratio" means, at any date, the ratio of (i)
Consolidated EBITDA for the period of four consecutive Fiscal Quarters ended
on or most recently prior to such date to (ii) Consolidated Interest Expense
for such period.
"Interest Period" means, with respect to each Euro-Dollar Loan,
the period commencing on the date of borrowing specified in the applicable
Notice of Borrowing or on the date specified in an applicable Notice of
Interest Rate Election and ending one, two, three or six months thereafter, as
the Borrower may elect in such notice; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls
in another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
11
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clauses (c) and (d) below, end on the last
Euro-Dollar Business Day of a calendar month;
(c) no Interest Period for any Revolving Loan shall extend
beyond the Revolving Credit Termination Date; and
(c) no Interest Period applicable to any Term Loan shall
extend beyond any date upon which is due any scheduled principal payment in
respect of the Term Loans unless the aggregate principal amount of Term Loans
represented by Base Rate Loans and Euro-Dollar Loans having Interest Periods
which end on or prior to such date equals or exceeds the amount of such
principal payment.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended, or any successor statute.
"Investment" means any investment in any Person, whether by
means of share purchase, capital contribution, loan, Guarantee, time deposit or
otherwise (but not including any demand deposit).
"Issuers" means Mellon Bank, N.A. (and any other Revolving
Lender which, at the Borrower's request, shall have agreed to issue Letters of
Credit hereunder and confirmed such agreement in a notice to the Administrative
Agent), each in its capacity as an Issuer under the letter of credit facility
described in Section 2.14.
"JPMSI" means X.X. Xxxxxx Securities Inc.
"LC Exposure" means, with respect to any Revolving Lender at any
time, an amount equal to its Revolving Commitment Percentage of the Aggregate
LC Exposure at such time.
"LC Indemnitees" has the meaning set forth in Section 2.14(k).
12
"LC Office" means, with respect to any Issuer, the office at
which it books any Letter of Credit issued by it.
"LC Payment Date" has the meaning set forth in Section 2.14(g).
"LC Reimbursement Due Date" has the meaning set forth in Section
2.14(h).
"Lender" means (i) each lender listed on the Commitment
Schedule, (ii) each Assignee which becomes a Lender pursuant to Section 9.6(c)
and (iii) their respective successors. The term "Lender" does not include the
Swingline Bank in its capacity as such.
"Lender Parties" means the Lenders, the Issuers, the Swingline
Bank and the Agents.
"Letter of Credit" means a letter of credit issued hereunder by
an Issuer.
"Lead Arranger" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation and its successors.
"Leverage Ratio" means, at any date, the ratio of (i)
Consolidated Debt at such date to (ii) Consolidated EBITDA for the period of
four consecutive Fiscal Quarters most recently ended on or prior to such date.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind, or any other
type of preferential arrangement that has substantially the same practical
effect as a security interest, in respect of such asset. For purposes hereof,
the Borrower or any Subsidiary shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loan" means a Base Rate Loan or a Euro-Dollar Loan and "Loans"
means any combination of the foregoing, as the context may require; provided
that, if any such Loan or Loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Interest Rate Election, the term "Loan"
shall refer to the combined principal amount resulting from such combination
or to each of the separate principal amounts resulting from such subdivision,
as the case may be. The term "Loan" does not include a Swingline Loan.
"Loan Documents" means this Agreement, the Notes, the Swingline
Note, the Subsidiary Guarantee and the Collateral Documents.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.5(h).
13
"Major Casualty Proceeds" means (i) the aggregate insurance
proceeds received in connection with one or more related events by the
Borrower and its Subsidiaries under any Property Insurance Policy or (ii) any
award or other compensation with respect to any condemnation of property (or
any transfer or disposition of property in lieu of condemnation) received by
the Borrower and its Subsidiaries, if the amount of such aggregate insurance
proceeds or award or other compensation exceeds $500,000; provided that Major
Casualty Proceeds shall exclude up to $2,000,000 recovered from insurers in
respect of environmental clean up expenses incurred by the Borrower prior to
the Closing Date.
"Material Adverse Effect" means (i) any material adverse effect
upon the condition (financial or otherwise), results of operations,
properties, assets, business or prospects of the Borrower and its
Subsidiaries, taken as a whole; (ii) a material adverse effect on the ability
of the Borrower or any other Person to consummate the transactions
contemplated hereby to occur on the Closing Date; (iii) a material adverse
effect on the ability of any Obligor to perform its obligations under this
Agreement, the Notes and the other Loan Documents or (iv) a material adverse
effect on the rights and remedies of the Agents, the Issuers, the Swingline
Bank and the Lenders under this Agreement, the Notes, the Swingline Note and
the other Loan Documents.
"Material Debt" means Debt (other than the Loans, Swingline
Loans and Reimbursement Obligations) of the Borrower and/or one or more of its
Subsidiaries, arising in one or more related or unrelated transactions, in an
aggregate principal or face amount exceeding $3,500,000.
"Material Financial Obligations" means a principal or face
amount of Debt (other than the Loans, Swingline Loans and Reimbursement
Obligations) and/or payment or collateralization obligations in respect of
Derivatives Obligations of the Borrower and/or one or more of its
Subsidiaries, arising in one or more related or unrelated transactions,
exceeding in the aggregate $3,500,000.
"Material Plan" means, at any time, a Plan or Plans having
aggregate Unfunded Liabilities in excess of $1,000,000.
"Mexican Subsidiary Debt" means mortgage Debt of Sybron Quimica
S.A. de C.V., a Mexican company and wholly-owned Subsidiary of the Borrower,
in an aggregate principal amount not exceeding 12,000,000 Mexican pesos, the
proceeds of which have been or will be used to repay outstanding intercompany
Debt owed to the Borrower and any refinancing thereof which does not increase
the outstanding principal amount thereof and is not secured by additional
collateral owned by any Person other than Sybron Quimica S.A. de C.V.
14
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgages" means the Borrower Mortgages and the Subsidiary
Mortgages, and "Mortgage" means any of them, as the context may require.
"Multiemployer Plan" means, at any time, an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any
member of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a member of the
ERISA Group during such five year period.
"Net Cash Proceeds" means, with respect to any Reduction Event,
an amount equal to the cash proceeds received by the Borrower or any of its
Subsidiaries from or in respect of such Reduction Event (including any cash
proceeds received as interest or similar income or other proceeds of any
noncash proceeds of any Asset Sale), less (a) any fees, costs and expenses
reasonably incurred by such Person in respect of such Reduction Event, (b) if
such Reduction Event is an Asset Sale, (i) the amount of any Debt secured by
a Lien on any asset disposed of in such Asset Sale and required to be, and
actually, discharged from the proceeds thereof and (ii) any taxes actually paid
or to be payable by such Person (as estimated by a senior financial or
accounting officer of the Borrower, giving effect to the overall tax position
of the Borrower) in respect of such Asset Sale and (c) if such Reduction Event
is the receipt of Major Casualty Proceeds and if the Borrower shall have
notified the Administrative Agent within 30 days after the receipt of such
Major Casualty Proceeds of its intent to use some or all of such Major Casualty
Proceeds to repair or replace the affected assets within 180 days after the
receipt thereof, the amount so specified by the Borrower; provided that the
portion of the Net Cash Proceeds not so used in such 180 day period shall be
deemed to have been received and shall be applied to prepayments required
under Section 2.4(c) on such 180th day; provided, further, that Major Casualty
Proceeds in excess of $5,000,000 shall be held and dispensed by the
Administrative Agent in accordance with Section 5 of the Security Agreement.
"Notes" means promissory notes of the Borrower, substantially
in the form of Exhibit A-1 hereto, evidencing the Borrower's obligation to
repay the Loans, and "Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" has the meaning set forth in Section 2.2.
15
"Notice of Swingline Borrowing" has the meaning set forth in
Section 2.15(b).
"Notice of Interest Rate Election" has the meaning set forth in
Section 2.6.
"Obligor" means the Borrower and each Subsidiary Guarantor.
"Occidental" means Occidental Chemical Corporation (formerly
known as Hooker Chemicals & Plastics Corp.) and its successors.
"Occidental Indemnity" means the obligations of Occidental under
Sections 7.01, 7.02 and 7.03 of the Agreement for the Purchase by Ruco Corp.
of the Specialty Polymers Business of Hooker Chemicals & Plastics Corp. dated
February 12, 1982.
"Outstanding Revolving Amount" means, with respect to any
Revolving Lender at any time, the sum of (i) the aggregate outstanding
principal amount of its Revolving Loans, (ii) its LC Exposure and (iii) its
Swingline Exposure, all determined at such time after giving effect to any
prior assignments by or to such Revolving Lender pursuant to Section 9.6(c).
"Parent" means, with respect to any Lender, any Person
controlling such Lender.
"Participant" has the meaning set forth in Section 9.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means, at any time, an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Internal
Revenue Code and either (i) is maintained, or contributed to, by any member of
the ERISA Group for employees of any member of the ERISA Group or (ii) has at
any time within the preceding five years been maintained, or contributed to, by
any Person which was at such time a member of the ERISA Group for employees of
any Person which was at such time a member of the ERISA Group.
"Pricing Schedule" means the Pricing Schedule attached hereto.
16
"Prime Rate" means the rate of interest publicly announced by
Mellon Bank, N.A. from time to time as its Prime Rate.
"Property Insurance Policy" means any insurance policy
maintained by the Borrower or any of its Subsidiaries covering losses with
respect to tangible real or personal property or improvements or losses from
business interruption.
"Quarterly Payment Dates" means each March 31, June 30,
September 30 and December 31.
"Reduction Event" means (i) any Asset Sale in any Fiscal Year
if, and solely to the extent that, the aggregate Net Cash Proceeds from such
Asset Sale, when combined with all other Asset Sales previously made during
such Fiscal Year, exceed $1,000,000, (ii) any Debt Incurrence, (iii) any Equity
Issuance or (iv) receipt of Major Casualty Proceeds. The description of any
transaction as falling within the above definition does not affect any
limitation on such transaction imposed by Article 5 of this Agreement.
"Reduction Percentage" means (i) with respect to any Debt
Incurrence, any Asset Sale or receipt of Major Casualty Proceeds, 100% and
(ii) with respect to any Equity Issuance, 50%.
"Reference Lender" means Mellon Bank, N.A.
"Register" has the meaning set forth in Section 2.16.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Reimbursement Obligation" means the obligation of the Borrower
to reimburse an Issuer for amounts paid by such Issuer in respect of drawings
under a Letter of Credit, including any portion of any such obligation to which
a Lender has become subrogated pursuant to Section 2.14(i).
"Release" means any discharge, emission or release, including a
Release as defined in CERCLA at 42 U.S.C. Section 9601(22).
"Required Lenders" means, at any time, Lenders (which shall
include at least two Lenders if there shall be more than two Lenders) having
at least a majority in aggregate amount of the Revolving Credit Exposures at
such time and a majority in aggregate amount of the Term Credit Exposures at
such time.
17
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's capital stock (except dividends
payable solely in shares of its capital stock other than mandatorily
redeemable capital stock) or (ii) any payment on account of the purchase,
redemption, retirement or acquisition of (a) any shares of the Borrower's
capital stock or (b) any option, warrant or other right to acquire shares of
the Borrower's capital stock (but not including payments of principal, premium
(if any) or interest made pursuant to the terms of convertible debt securities
prior to conversion).
"Revolving Commitment Percentage" means, with respect to any
Revolving Lender at any time, the percentage which the amount of its Revolving
Commitment at such time represents of the aggregate amount of all the
Revolving Commitments at such time. At any time after the Revolving
Commitments shall have terminated, the term "Revolving Commitment Percentage"
shall refer to a Revolving Lender's Revolving Commitment Percentage
immediately before such termination, adjusted to reflect any subsequent
assignments pursuant to Section 9.6(c).
"Revolving Commitment" means,
(i) with respect to each Revolving Lender listed on the
signature pages hereof, the amount set forth opposite the name of such Lender
under the heading "Revolving Commitment" in the Commitment Schedule, and
(ii) with respect to each Assignee which becomes a Revolving
Lender pursuant to Section 9.6(c), the amount of the Revolving Commitment
thereby assumed by it,
in each case as such amount may be reduced from time to time pursuant to
Section 2.8 or increased or reduced by reason of an assignment to or by such
Lender in accordance with Section 9.6(c). The term "Revolving Commitment" does
not include the Swingline Commitment.
"Revolving Credit Exposure" means, with respect to any Lender at
any time, the greater, at such time, of (A) such Lender's Revolving Commitment
and (B) such Lender's Outstanding Revolving Amount.
"Revolving Credit Period" means the period from and including
the Closing Date to but not including the Revolving Credit Termination Date.
"Revolving Credit Termination Date" means the sixth anniversary
of the Closing Date (or, if such date is not a Euro-Dollar Business Day, the
next preceding Euro-Dollar Business Day).
18
"Revolving Lender" means each Lender identified in the
Commitment Schedule as having a Revolving Commitment and each Assignee which
acquires a Revolving Commitment and/or Revolving Loans pursuant to Section
9.6(c), and their respective successors.
"Revolving Loan" means a loan made by a Revolving Lender
pursuant to Section 2.1(b).
"Ruco" means Ruco Corp. and Ruco LLC, collectively.
"Ruco Corp" means Ruco Polymer Corporation, a New York
corporation.
"Ruco LLC" means Ruco Polymer Company of Georgia, LLC, a
Delaware limited liability company.
"S&P" means Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc.
"SEC" means the Securities and Exchange Commission.
"Security Agreement" means the Security Agreement dated as of
the Closing Date among the Borrower, the Subsidiary Guarantors party thereto
and the Administrative Agent, substantially in the form of Exhibit B hereto, as
amended from time to time.
"Sellers" means each Person listed on Schedule 1.01.
"Subsidiary" means, as to any Person, any corporation or other
entity of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by such Person.
Unless otherwise specified, "Subsidiary" means a Subsidiary of the Borrower.
"Subsidiary Guarantee" means the Subsidiary Guarantee dated as
of the Closing Date from each Subsidiary Guarantor in favor of the
Administrative Agent, substantially in the form of Exhibit C, as amended from
time to time.
"Subsidiary Guarantors" means each Subsidiary of the Borrower
(other than a Foreign Subsidiary) on the Closing Date, after giving effect to
the Acquisition, and any other Person that becomes a party to the Subsidiary
Guarantee pursuant to Section 5.23, and "Subsidiary Guarantor" means any one
of them.
19
"Subsidiary Mortgage" means a mortgage or deed of trust, in a
form reasonably satisfactory to the Administration Agent, between a Subsidiary
Guarantor, as mortgagor or trustor, and the Administrative Agent, as mortgagee
or beneficiary, as amended from time to time.
"Swingline Availability Period" means the period from and
including the Closing Date to but excluding the Swingline Maturity Date.
"Swingline Bank" means Mellon Bank, N.A., in its capacity as the
Swingline Bank under the Swingline facility described in Section 2.15, and its
successors in such capacity.
"Swingline Borrowing" means a borrowing of a Swingline Loan
pursuant to Section 2.15(a).
"Swingline Commitment" means the obligation of the Swingline
Bank to make Swingline Loans to the Borrower in an aggregate principal amount
at any one time outstanding not to exceed $5,000,000, as such amount may be
reduced pursuant to Section 2.15(j).
"Swingline Exposure" means, with respect to any Revolving
Lender at any time, an amount equal to its Revolving Commitment Percentage of
the aggregate outstanding principal amount of Swingline Loans at such time.
"Swingline Loan" means a loan made by the Swingline Bank
pursuant to Section 2.15(a).
"Swingline Maturity Date" means the Revolving Credit Termination
Date.
"Swingline Note" has the meaning set forth in Section 2.15(d).
"Syndication Agent" means DLJ Capital Funding, Inc. in its
capacity as syndication agent in respect of the Loan Documents.
"Temporary Cash Investment" means any Investment in (i) direct
obligations of the United States or any agency thereof or obligations
guaranteed by the United States or any agency thereof, (ii) commercial paper
rated at least A-1 by S&P and P-1 by Moody's, (iii) time deposits with,
including certificates of deposit issued by, any office located in the United
States of any bank or trust company which is organized or licensed under the
laws of the United States or any State thereof and has capital, surplus and
undivided profits aggregating at least $1,000,000,000, (iv) repurchase
agreements with respect to securities described in clause (i) above entered
into with an office of a bank or trust company meeting the criteria specified
in clause (iii) above, or (v) in the case of Investments made by a Foreign
Subsidiary, substantially similar investments denominated in the currency of
the jurisdiction in which such Foreign Subsidiary is organized or conducts its
business, provided in each case that such Investment matures within one year
after it is acquired by the Borrower or a Subsidiary.
20
"Term A Commitment" means, (i) with respect to each Term A
Lender listed on the signature pages hereof, the amount set forth opposite the
name of such Lender under the heading "Term A Commitment" in the Commitment
Schedule, and (ii) with respect to each Assignee which becomes a Term A Lender
pursuant to Section 9.6(c), the amount of the Term A Commitment thereby
assumed by it, in each case as such amount may be reduced from time to time
pursuant to Section 2.8 or increased or reduced by reason of an assignment to
or by such Lender in accordance with Section 9.6(c).
"Term A Lender" means each Lender identified in the Commitment
Schedule as having a Term A Commitment and each Assignee which acquires a Term
A Commitment and/or Term A Loans pursuant to Section 9.6(c), and their
respective successors.
"Term A Loan" means a loan made by a Term A Lender pursuant to
Section 2.1(a)(i).
"Term B Repayment Date" means the first date after the Closing
Date upon which the principal amount of the Term B Loans shall have been
repaid in full.
"Term B Commitment" means, (i) with respect to each Term B
Lender listed on the signature pages hereof, the amount set forth opposite the
name of such Lender under the heading "Term B Commitment" in the Commitment
Schedule, and (ii) with respect to each Assignee which becomes a Term B Lender
pursuant to Section 9.6(c), the amount of the Term B Commitment thereby
assumed by it, in each case as such amount may be reduced from time to time
pursuant to Section 2.8 or increased or reduced by reason of an assignment to
or by such Lender in accordance with Section 9.6(c).
"Term B Lender" means each Lender identified in the Commitment
Schedule as having a Term B Commitment and each Assignee which acquires a Term
B Commitment and/or Term B Loans pursuant to Section 9.6(c), and their
respective successors.
21
"Term B Loan" means a loan made by a Term B Lender pursuant to
Section 2.1(a)(ii).
"Term Commitment" means a Term A Commitment or a Term B
Commitment.
"Term Credit Exposure" means, with respect to any Lender at any
time, the sum of the greater, at such time, of (A) such Lender's Term Loan
Commitments and (B) the outstanding principal amount of such Lender's Term
Loans.
"Term Lender" means a Term A Lender or a Term B Lender.
"Term Loan" means a Term A Loan or a Term B Loan.
"Term Loan Final Maturity Date" means the sixth anniversary of
the Closing Date (or, if such date is not a Euro-Dollar Business Day, the next
preceding Euro-Dollar Business Day).
"Total Outstanding Revolving Amount" means, at any time, the sum
of (i) the aggregate outstanding principal amount of the Revolving Loans, (ii)
the Aggregate LC Exposure and (iii) except for purposes of Section 2.07, the
aggregate outstanding principal amount of the Swingline Loans.
"Type" has the meaning set forth in Section 1.3.
"Unfunded Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the value of all benefit liabilities
under such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the
fair market value of all Plan assets allocable to such liabilities under Title
IV of ERISA (excluding any accrued but unpaid contributions), all determined
as of the then most recent valuation date for such Plan, but only to the
extent that such excess represents a potential liability of a member of the
ERISA Group to the PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America.
"U.S. Subsidiary" means a Subsidiary other than a Foreign
Subsidiary.
"Working Capital Facility" means a committed or uncommitted
revolving credit facility entered into by a Foreign Subsidiary to obtain
working capital financing in the ordinary course of business.
22
Section 1.2. Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted and all accounting determinations hereunder shall be made in
accordance with GAAP; provided that any calculation of Consolidated EBITDA,
the Leverage Ratio, the Interest Coverage Ratio or the Fixed Charge Coverage
Ratio for any period all or a portion of which precedes the date of any
Business Acquisition (including the Acquisition) shall be made on a pro forma
basis as if such Business Acquisition had occurred, all Debt incurred in
connection therewith had been incurred and all Debt repaid in connection
therewith had been repaid, on the first day of such period. All financial
statements required to be delivered hereunder shall be prepared in accordance
with generally accepted accounting principles as in effect from time to time,
applied on a basis consistent (except for changes concurred in by the
Borrower's independent public accountants) with the most recent audited
consolidated financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Banks
Section 1.3. Classes and Types of Loans and Borrowings. The
term "Borrowing" denotes the aggregation of Loans of one or more Lenders to be
made to the Borrower pursuant to Article 2 on the same date, all of which
Loans are of the same Class and Type (subject to Article 8) and, in the case of
Euro-Dollar Loans, have the same initial Interest Period. Loans hereunder are
distinguished by "Class" and by "Type". The "Class" of a Loan (or of a
Commitment to make such a Loan or of a Borrowing comprised of such Loans)
refers to the determination whether such Loan is a Term A Loan, Term B Loan or
Revolving Loan, each of which constitutes a Class. The "Type" of a Loan
refers to the determination whether such Loan is a Euro-Dollar Loan or a Base
Rate Loan, each of which constitutes a "Type". Identification of a Loan (or a
Borrowing) by both Class and Type (e.g., a "Euro-Dollar Term A Loan")
indicates that such Loan is both a Term A Loan and a Euro-Dollar Loan (or that
such Borrowing is comprised of such Loans).
Section 1.4. Other Definitional Provisions. References in this
Agreement to "Articles", "Sections", "Schedules" or "Exhibits" shall be to
Articles, Sections, Schedules or Exhibits of or to this Agreement unless
otherwise specifically provided. Any of the terms defined in Section 1.1 may,
unless the context otherwise requires, be used in the singular or plural
depending on the reference. "Include" or "includes" and "including" shall be
deemed to be followed by "without limitation" whether or not they are in fact
followed by such words or words of like import. "Writing", "written" and
comparable terms refer to printing, typing and other means of reproducing
words in a visible form. References to any agreement or contract are to such
agreement or contract as amended, modified or supplemented from time to time
in accordance with the terms hereof and thereof. References to any Person
include the successors and assigns of such Person. References "from" or
"through" any date mean, unless otherwise specified, "from and including" or
"through and including", respectively.
23
ARTICLE 2
The Credits
Section 2.1. Commitments to Lend. (a) Term Loan Facility.
(i) On the Closing Date each Term A Lender severally agrees,
on the terms and conditions set forth in this Agreement, to make
a Term A Loan to the Borrower in a principal amount not to exceed
the amount of its Term A Commitment. The Term A Commitments are
not revolving in nature, and amounts repaid or prepaid pursuant
to Section 2.4 or Section 2.9 shall not be reborrowed.
(ii) On the Closing Date each Term B Lender severally agrees,
on the terms and conditions set forth in this Agreement, to make
a Term B Loan to the Borrower in a principal amount not to exceed
the amount of its Term B Commitment. The Term B Commitments are
not revolving in nature, and amounts repaid or prepaid pursuant
to Section 2.4 or Section 2.9 shall not be reborrowed.
(b) Revolving Credit Facility. During the Revolving Credit Period,
each Revolving Lender severally agrees, on the terms and conditions set forth
in this Agreement, to make Revolving Loans to the Borrower from time to time
in an aggregate amount at any time outstanding not to exceed the amount of its
Revolving Commitment less its then outstanding LC Exposure. Within the limits
specified in this Agreement, the Borrower may borrow under this Section
2.1(b), prepay Revolving Loans to the extent permitted by Section 2.9 and
reborrow at any time during the Revolving Credit Period pursuant to this
Section 2.1(b).
(c) Minimum Amount. Each Term Borrowing under Section 2.1(a)
shall be in the aggregate principal amount of $1,000,000 or any larger multiple
thereof, and each Revolving Borrowing under Section 2.1(b) shall be in the
aggregate principal amount of $500,000 or any larger multiple thereof (except
that, in either case, any such Borrowing may be in the aggregate amount of the
unused Commitments of the relevant Class) and shall be made from the several
Lenders ratably in proportion to their respective Commitments of the relevant
Class.
24
Section 2.2. Notice of Borrowing. The Borrower shall give the
Administrative Agent notice (a "Notice of Borrowing") not later than 10:30
A.M. (New York City time) (i) on the third Euro-Dollar Business Day before
each Euro-Dollar Borrowing, and (ii) on the Domestic Business Day before each
Base Rate Borrowing, specifying:
(a) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Euro-
Dollar Business Day in the case of a Euro-Dollar Borrowing;
(b) the aggregate amount of such Borrowing;
(c) the Class and initial Type of Loans comprising such
Borrowing; and
(d) in the case of a Euro-Dollar Borrowing, the duration of
the initial Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period; provided that
the duration of the initial Interest Period applicable to any
Euro-Dollar Borrowing to be made at any time on or prior to the
earlier of (i) the Assessment Date and (ii) the successful
completion of the syndication of this Agreement, as notified to
the Borrower by the Syndication Agent, shall be one month.
Section 2.3. Notice to Lenders; Funding of Loans. (a)
Promptly after receiving a Notice of Borrowing, the Administrative Agent shall
notify each Lender of the contents thereof and of such Lender's share of such
Borrowing and such Notice of Borrowing shall not thereafter be revocable by the
Borrower.
(b) Not later than 12:00 Noon (New York City time) on the date of
each Borrowing, each Lender participating therein shall make available its
share of such Borrowing, in Federal or other funds immediately available in
New York City, to the Administrative Agent at its address specified in or
pursuant to Section 9.1. Unless the Administrative Agent determines that any
applicable condition specified in Article 3 has not been satisfied, the
Administrative Agent will make the funds so received from the Lenders
available to the Borrower at the Administrative Agent's aforesaid address.
25
(c) Unless the Administrative Agent shall have received notice
from a Lender before the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's share of such Borrowing,
the Administrative Agent may assume that such Lender has made such share
available to the Administrative Agent on the date of such Borrowing in
accordance with Section 2.3(b) and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such share available to the Administrative Agent, such Lender and the
Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date
such amount is repaid to the Administrative Agent, at (i) if such amount is
repaid by the Borrower, a rate per annum equal to the higher of the Federal
Funds Rate and the interest rate applicable to such Borrowing pursuant to
Section 2.5 and (ii) if such amount is repaid by such Lender, the Federal
Funds Rate. If such Lender shall repay to the Administrative Agent such
corresponding amount, the Borrower shall not be required to repay such amount
and the amount so repaid by such Lender shall constitute such Lender's Loan
included in such Borrowing for purposes of this Agreement. The Administrative
Agent shall be entitled to recover any and all actual losses and damages
(including, without limitation, reasonable attorneys' fees) from any Lender
failing to so repay upon demand of the Administrative Agent. The
Administrative Agent may set off the obligations of a Lender under this
paragraph against any distributions or payments in respect of the Loans which
the Administrative Agent would otherwise make available to such Lender at any
time.
(d) To the extent and during the time period in which any Lender
fails to provide or delays in providing its respective payment to the
Administrative Agent pursuant to clause (b) or (c) above, such Lender's
percentage of all payments in respect of Revolving Loans (but not its
Revolving Commitment with respect to future Borrowings) shall decrease to
reflect the actual percentage which its actual Revolving Credit Exposure bears
to the aggregate Revolving Credit Exposures.
26
Section 2.4. Maturity of Loans; Contingent Prepayments.
(a) On each date set forth below, the Borrower shall repay Term
Loans in an aggregate principal amount equal to the amount set forth below
opposite such date:
Date Amount
---- ------
December 31, 1998 $1,812,500
March 31, 1999 $1,812,500
June 30, 1999 $1,812,500
September 30, 1999 $1,812,500
December 31, 1999 $3,625,000
March 31, 2000 $3,625,000
June 30, 2000 $3,625,000
September 30, 2000 $3,625,000
December 31, 2000 $5,437,500
March 31, 2001 $5,437,500
June 30, 2001 $5,437,500
September 30, 2001 $5,437,500
December 31, 2001 $7,250,000
March 31, 2002 $7,250,000
June 30, 2002 $7,250,000
September 30, 2002 $7,250,000
December 31, 2002 $9,062,500
March 31, 2003 $9,062,500
June 30, 2003 $9,062,500
September 30, 2003 $9,062,500
December 31, 2003 $9,062,500
March 31, 2004 $9,062,500
June 30, 2004 $9,062,500
Term Loan Final
Maturity Date $9,062,500
(b) Each Revolving Loan shall mature, and the principal amount
thereof shall be due and payable, together with accrued interest thereon, on
the Revolving Credit Termination Date.
(c) (i) If the Borrower or any of its Subsidiaries receives any Net
Cash Proceeds in respect of any Reduction Event, the Borrower shall, on the
first day of the next Interest Period applicable to any Term Loans, prepay the
Term Loans in an amount equal to the Reduction Percentage of such Net Cash
Proceeds; provided that if such first day of the next Interest Period shall be
more than 30 days after the receipt of such Net Cash Proceeds and if the
foregoing prepayment shall not have been made, then on the 30th day after such
receipt, the Borrower shall pay the amount required to be prepaid, to be held
in escrow by the Administrative Agent and invested in such Temporary Cash
Investments as the Borrower may direct the Administrative Agent until such
first day of the next Interest Period, at which time such prepayment shall be
made; provided, further, that (x) if the Net Cash Proceeds in respect of any
Reduction Event are less than $1,000,000, no such prepayment shall be required
until the amount of such Net Cash Proceeds, together with the amount of all
other Net Cash Proceeds in respect of which no prepayment under this
subsection (c)(i) shall have theretofore been made, are equal to at least
$1,000,000 and (y) any such prepayment to be made on account of a Debt
Incurrence consisting of the incurrence by the Borrower of any subordinated
Debt shall be applied, first, to the outstanding Term B Loans, until all
outstanding Term B Loans are repaid in full, and, second, to the outstanding
Term A Loans. The Borrower shall give the Administrative Agent at least five
Euro-Dollar Business Days' notice of each prepayment required to be made
pursuant to this subsection (c)(i).
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(ii) On the 90th day following the last day of each Fiscal
Year, beginning with the Fiscal Year ending December 31, 1999,
the Borrower shall prepay the Term Loans in an amount equal to
50% of the Excess Cash Flow for such Fiscal Year.
(iii) The amount of any prepayments of Term Loans pursuant to
Section 2.9 or subsection (c) shall be applied to reduce pro rata
the amount of the scheduled prepayments of the Term Loans
required pursuant to subsection (a).
(iv) Each payment of principal of the Term Loans shall be
made together with interest accrued and unpaid on the amount
repaid to the date of payment.
(v) Each payment of the Term Loans shall be applied to such
Group or Groups of Term Loans as the Borrower may designate (or,
failing such designation, as determined by the Administrative
Agent).
(d) If on any date the Total Outstanding Revolving Amount exceeds
the Revolving Commitments, the Borrower shall repay Revolving Loans in an
aggregate amount equal to such excess.
Section 2.5. Interest Rates. (a) Each Base Rate Term A Loan
and each Base Rate Revolving Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until
it becomes due, at a rate per annum equal to the sum of the Base Rate Margin
for such day plus the Base Rate for such day. Such interest shall be payable
monthly in arrears on the first Domestic Business Day of each month. Any
overdue principal of or interest on any Base Rate Term A Loan or Base Rate
Revolving Loan (and, during any Default Rate Period, any principal of any Base
Rate Term A Loan or Base Rate Revolving Loan) shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the sum of 2%
plus the rate otherwise applicable to such Base Rate Term A Loan or Base Rate
Revolving Loan, as the case may be, for such day.
(b) Each Euro-Dollar Term A Loan and each Euro-Dollar Revolving
Loan shall bear interest on the outstanding principal amount thereof, for each
day during each Interest Period applicable thereto, at a rate per annum equal
to the sum of the Euro-Dollar Margin for such day plus the Adjusted London
Interbank Offered Rate applicable to such Interest Period. Such interest shall
be payable for each Interest Period applicable to such Loans on the last day
thereof and, if such Interest Period is longer than three months, at intervals
of three months after the first day thereof.
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(c) Any overdue principal of or interest on any Euro-Dollar Term A
Loan or Euro-Dollar Revolving Loan (and, during any Default Rate Period, any
principal of any Euro-Dollar Term A Loan or Euro-Dollar Revolving Loan) shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the higher of (i) the sum of 2% plus the Euro-Dollar Margin for such
day plus the Adjusted London Interbank Offered Rate applicable to such Loan on
the day before such payment was due and (ii) the sum of 2% plus the
Euro-Dollar Margin for such day plus a rate per annum equal to the quotient
obtained (rounded upward, if necessary, to the next higher 1/100 of 1%) by
dividing (x) the rate per annum at which one day (or, if such amount due
remains unpaid more than three Euro-Dollar Business Days, then for such other
period of time not longer than three months as the Administrative Agent may
select) deposits in dollars in an amount approximately equal to such overdue
payment due to the Reference Lender are offered to the Reference Lender in the
London interbank market for the applicable period determined as provided above
by (y) 1.00 minus the Euro-Dollar Reserve Percentage (or, if the circumstances
described in clause 8.1(a) or 8.1(b) shall exist, at a rate per annum equal to
the sum of 2% plus the rate otherwise applicable to Base Rate Term A Loans or
Base Rate Revolving Loans for such day).
(d) Each Base Rate Term B Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date such Loan is
made until it becomes due, at a rate per annum equal to the sum of 1.00% plus
the Base Rate for such day. Such interest shall be payable monthly in arrears
on the first Domestic Business Day of each month. Any overdue principal of or
interest on any Base Rate Term B Loan (and, during any Default Rate Period,
any principal of any Base Rate Term B Loan) shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the sum of 3.00%
plus the Base Rate for such day.
(e) Each Euro-Dollar Term B Loan shall bear interest on the
outstanding principal amount thereof, for each day during each Interest Period
applicable thereto, at a rate per annum equal to the sum of 2.25% plus the
Adjusted London Interbank Offered Rate applicable to such Interest Period.
Such interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at intervals of three
months after the first day thereof.
29
(f) Any overdue principal of or interest on any Euro-Dollar Term B
Loan (and, during any Default Rate Period, any principal of any Euro-Dollar
Term B Loan) shall bear interest, payable on demand, for each day until paid
at a rate per annum equal to the higher of (i) the sum of 4.25% plus the
Adjusted London Interbank Offered Rate applicable to such Loan on the day
before such payment was due and (ii) the sum of 4.25% plus a rate per annum
equal to the quotient obtained (rounded upward, if necessary, to the next
higher 1/100 of 1%) by dividing (x) the rate per annum at which one day (or,
if such amount due remains unpaid more than three Euro-Dollar Business Days,
then for such other period of time not longer than three months as the
Administrative Agent may select) deposits in dollars in an amount
approximately equal to such overdue payment due to the Reference Lender are
offered to the Reference Lender in the London interbank market for the
applicable period determined as provided above by (y) 1.00 minus the
Euro-Dollar Reserve Percentage (or, if the circumstances described in clause
8.1(a) or 8.1(b) shall exist, at a rate per annum equal to the sum of 2% plus
the rate otherwise applicable to Base Rate Term B Loans for such day).
(g) The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
applicable London Interbank Offered Rate by (ii)1.00 minus the Euro-Dollar
Reserve Percentage.
(h) The "London Interbank Offered Rate" applicable to any Interest
Period means the rate per annum at which deposits in dollars are offered to the
Reference Lender in the London interbank market at approximately 11:00 A.M.
(London time) two Euro-Dollar Business Days before the first day of such
Interest Period in an amount approximately equal to the principal amount of
the Euro-Dollar Loan of the Reference Lender to which such Interest Period is
to apply and for a period of time comparable to such Interest Period.
(i) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall promptly
notify the Borrower and the Lenders of each rate of interest so determined,
and its determination thereof shall be conclusive in the absence of manifest
error.
(j) The Reference Lender agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated by this Section. If the
Reference Lender does not furnish a timely quotation, the provisions of
Section 8.1 shall apply.
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Section 2.6. Method of Electing Interest Rates. (a) The Loans
included in each Borrowing shall bear interest initially at the type of rate
specified by the Borrower in the applicable Notice of Borrowing. Thereafter,
the Borrower may from time to time elect to change or continue the type of
interest rate borne by each Group of Loans (subject to subsection (d) and the
provisions of Article 8), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may
elect to convert such Loans to Euro-Dollar Loans as of any Euro-
Dollar Business Day; and
(ii) if such Loans are Euro-Dollar Loans, the Borrower may
elect to convert such Loans to Base Rate Loans as of any Domestic
Business Day or elect to continue such Loans as Euro-Dollar Loans
for an additional Interest Period, subject to Section 2.11 if any
such conversion is effective on any day other than the last day
of an Interest Period applicable to such Loans.
Each such election shall be made by delivering a notice (a
"Notice of Interest Rate Election") to the Administrative Agent not later than
10:30 A.M. (New York City time) on the third Euro-Dollar Business Day before
the conversion or continuation selected in such notice is to be effective. A
Notice of Interest Rate Election may, if it so specifies, apply to only a
portion of the aggregate principal amount of the relevant Group of Loans;
provided that (i) such portion is allocated ratably among the Loans comprising
such Group and (ii) the portion to which such Notice applies, and the
remaining portion to which it does not apply, are each at least $1,000,000
(unless such portion is comprised of Base Rate Loans). If no such notice is
timely received before the end of an Interest Period for any Group of
Euro-Dollar Loans, the Borrower shall be deemed to have elected that such
Group of Loans be converted to Base Rate Loans at the end of such Interest
Period.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation
selected in such notice is to be effective, which shall comply
with the applicable clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted,
the new Type of Loans and, if the Loans resulting from such
conversion are to be Euro-Dollar Loans, the duration of the next
succeeding Interest Period applicable thereto; provided that with
respect to any such conversion that is to be effective at any
time on or prior to the earlier of (x) the Assessment Date and
(y) the successful completion of the syndication of this
Agreement, as notified to the Borrower by the Syndication Agent,
the duration of such next succeeding Interest Period shall be one
month; and
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(iv) if such Loans are to be continued as Euro-Dollar Loans
for an additional Interest Period, the duration of such
additional Interest Period; provided that with respect to any
such continuation that is to be effective at any time on or prior
to the earlier of (x) the Assessment Date and (y) the successful
completion of the syndication of this Agreement, as notified to
the Borrower by the Syndication Agent, the duration of such next
succeeding Interest Period shall be one month.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Promptly after receiving a Notice of Interest Rate Election
from the Borrower pursuant to subsection (a) above, the Administrative Agent
shall notify each applicable Lender of the contents thereof and such notice
shall not thereafter be revocable by the Borrower.
(d) The Borrower shall not be entitled to elect to convert any
Loans to, or continue any Loans for an additional Interest Period as
Euro-Dollar Loans if (i) the aggregate principal amount of any Group of
Euro-Dollar Loans created or continued as a result of such election would be
less than $1,000,000 or (ii) an Event of Default has occurred and is
continuing.
(e) If any Loan is converted to a different Type of Loan, the
Borrower shall pay, on the date of such conversion, the interest accrued to
such date on the principal amount being converted.
Section 2.7. Fees. (a) The Borrower shall pay to the
Administrative Agent, for the account of the Revolving Lenders in proportion
to their Revolving Commitment Percentages, a commitment fee calculated for
each day at the Commitment Fee Rate on the amount by which the aggregate
amount of the Revolving Commitments exceeds the Total Outstanding Revolving
Amount on such day. Such commitment fee shall accrue from and including the
Closing Date to but excluding the date on which the Revolving Commitments
terminate in their entirety.
(b) The Borrower shall pay to the Administrative Agent, for the
account of the Revolving Lenders ratably in proportion to their Revolving
Commitment Percentages, a letter of credit fee calculated for each day at a
rate equal to the Euro-Dollar Margin for such day on the aggregate amount
available for drawing (whether or not conditions for drawing have been
satisfied) under all Letters of Credit outstanding at the close of business on
such day.
32
(c) The Borrower shall pay to each Issuer (i) a fronting fee
calculated for each day at a rate of 0.25% per annum on the aggregate amount
available for drawing (whether or not conditions for drawing have then been
satisfied) under all Letters of Credit issued by such Issuer that are
outstanding at the close of business on such day and (ii) other customary
charges, in each case at the times agreed between the Borrower and such
Issuer.
(d) Fees accrued for the account of the Revolving Lenders under
subsections (a) and (b) of this Section shall be payable quarterly in arrears
on each Quarterly Payment Date and on the day on which the Revolving
Commitments terminate in their entirety (and, if later, on the day on which the
Credit Exposures are reduced to zero).
Section 2.8. Termination or Reduction of Commitments. (a) The
Borrower may, upon at least three Domestic Business Days' notice to the
Administrative Agent, (i) terminate the Commitments of any Class at any time,
if no Loans of such Class are outstanding at such time (after giving effect to
any mandatory or optional prepayments to be made at such time) or (ii) ratably
reduce from time to time by an aggregate amount of $1,000,000 or a larger
multiple of $500,000, the aggregate amount of the Commitments of any Class
in excess of the aggregate outstanding amount of the Loans of such Class.
(b) The Term Commitments shall terminate in their entirety on the
close of business (New York City time) on the Closing Date.
(c) Unless previously terminated, the Revolving Commitments shall
terminate in their entirety on the Revolving Credit Termination Date.
Section 2.9. Optional Prepayments. (a) Subject in the case of
Euro-Dollar Loans to Section 2.11, the Borrower may (i) upon at least one
Domestic Business Day's notice to the Administrative Agent, prepay any Group
of Base Rate Loans of any Class or (ii) upon at least three Euro-Dollar
Business Days' notice to the Administrative Agent, prepay any Group of
Euro-Dollar Loans of any Class, in each case in whole at any time, or from
time to time in part in amounts aggregating $1,000,000 in the case of Term
Loans or $500,000 in the case of Revolving Loans or in each case any larger
multiple of $100,000, by paying the principal amount to be prepaid together
with interest accrued thereon to the date of prepayment. Each such optional
prepayment shall be applied to prepay ratably the Loans of the several Lenders
included in such Group of Loans.
33
(b) Promptly after receiving a notice of prepayment pursuant to
this Section, the Administrative Agent shall notify each applicable Lender of
the contents thereof and of such Lender's ratable share (if any) of such
prepayment, and such notice shall not thereafter be revocable by the Borrower.
Section 2.10. General Provisions as to Payments. (a) The
Borrower shall make each payment of principal of, and interest on, the Loans,
Swingline Loans and Reimbursement Obligations and each payment of fees
hereunder (other than fees payable directly to the Issuers and the Swingline
Bank) not later than 12:00 Noon (New York City time) on the date when due, in
Federal or other funds immediately available in New York City, to the
Administrative Agent at its address specified in or pursuant to Section 9.1.
The Administrative Agent will promptly distribute to each applicable Lender its
ratable share of each such payment received by the Administrative Agent for
the account of the Lenders, to each Issuer each such payment received by the
Administrative Agent for the account of such Issuer and to the Swingline Bank
each such payment received by the Administrative Agent for the account of the
Swingline Bank. Whenever any payment of principal of, or interest on, the
Base Rate Loans, Swingline Loans or Reimbursement Obligations or any payment
of fees shall be due on a day which is not a Domestic Business Day, the date
for payment thereof shall be extended to the next succeeding Domestic Business
Day. Whenever any payment of principal of, or interest on, the Euro-Dollar
Loans shall be due on a day which is not a Euro-Dollar Business Day, the date
for payment thereof shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in another calendar
month, in which case the date for payment thereof shall be the next preceding
Euro-Dollar Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon shall be payable
for such extended time.
(b) Unless the Borrower notifies the Administrative Agent before
the date on which any payment is due to the Lenders hereunder that the Borrower
will not make such payment in full, the Administrative Agent may assume that
the Borrower has made such payment in full to the Administrative Agent on such
date and the Administrative Agent may, in reliance on such assumption, cause
to be distributed to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent that the Borrower shall not
have so made such payment, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to
such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
34
Section 2.11. Funding Losses. If the Borrower makes any
payment of principal with respect to any Euro-Dollar Loan or any Euro-Dollar
Loan is converted to a Base Rate Loan (whether such payment or conversion is
pursuant to Article 2, 6 or 8 or otherwise) on any day other than the last day
of the Interest Period applicable thereto, or the last day of an applicable
period fixed pursuant to Section 2.5(c), or if the Borrower fails to borrow,
prepay, convert or continue any Euro-Dollar Loan after notice has been given
to any Lender in accordance with Section 2.2, 2.4(c) or 2.9, the Borrower shall
reimburse each Lender within 15 days after demand for any resulting loss or
expense incurred by it (or by an existing or prospective Participant in the
related Loan), including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after such payment or conversion or failure to borrow,
prepay, convert or continue; provided that such Lender shall have delivered to
the Borrower a certificate in reasonable detail as to the amount of such loss
or expense, which certificate shall be conclusive in the absence of manifest
error.
Section 2.12. Computation of Interest and Fees. Interest
based on the Prime Rate hereunder shall be computed on the basis of a year of
365 days (or 366 days in a leap year) and paid for the actual number of days
elapsed (including the first day but excluding the last day). All other
interest and fees shall be computed on the basis of a year of 360 days and
paid for the actual number of days elapsed (including the first day but
excluding the last day).
Section 2.13. Notes. (a) The Borrower's obligation to repay
the Loans of each Lender shall be evidenced by a single Note payable to the
order of such Lender for the account of its Applicable Lending Office.
(b) Each Lender may, by notice to the Borrower and the
Administrative Agent, request that the Borrower's obligation to repay such
Lender's Loans of a particular Type or Class be evidenced by a separate Note.
Each such Note shall be in substantially the form of Exhibit A hereto with
appropriate modifications to reflect the fact that it relates solely to Loans
of the relevant Type or Class. Each reference in this Agreement to the "Note"
of such Lender shall be deemed to refer to and include any or all of such
Notes, as the context may require.
(c) Promptly after it receives each Lender's Note pursuant to
Section 3.1(b), the Administrative Agent shall forward such Note to such
Lender. Each Lender shall record the date, amount, Class and Type of each
Loan made by it and the date and amount of each payment of principal made by
the Borrower with respect thereto, and may, if such Lender so elects in
connection with any transfer or enforcement of its Note, endorse on the
schedule forming a part thereof appropriate notations to evidence the
foregoing information with respect to each such Loan then outstanding;
provided that a Lender's failure to make (or any error in making) any such
recordation or endorsement shall not affect the Borrower's obligations
hereunder or under the Notes. Each Lender is hereby irrevocably authorized by
the Borrower so to endorse its Note and to attach to and make a part of its
Note a continuation of any such schedule as and when required.
35
Section 2.14. Letters of Credit. (a) Issuance. Each Issuer
agrees, on the terms and conditions set forth in this Agreement, to issue
letters of credit hereunder at the request of the Borrower from time to time
prior to the date that is 30 days before the Revolving Credit Termination
Date; provided that, immediately after each such letter of credit is issued
and participations therein are sold to the Revolving Lenders as provided in
this subsection:
(i) the Aggregate LC Exposure shall not exceed $5,000,000;
and
(ii) in the case of each Revolving Lender, its Outstanding
Revolving Amount shall not exceed its Revolving Commitment.
Whenever an Issuer issues a Letter of Credit hereunder, such Issuer shall
be deemed, without further action by any party hereto, to have sold to each
Lender, and each Lender shall be deemed, without further action by any
party hereto, to have purchased from such Issuer, a participation (on the
terms specified in this Section) in such Letter of Credit equal to such
Lender's Revolving Commitment Percentage thereof.
(b) Notice of Proposed Issuance. With respect to each Letter of
Credit, the Borrower shall give the relevant Issuer and the Administrative
Agent at least five Domestic Business Days' prior notice (i) specifying the
date such Letter of Credit is to be issued and (ii) describing the proposed
terms of such Letter of Credit (which shall not be an Evergreen Letter of
Credit without the consent of the Issuer thereof) and the nature of the
transactions to be supported thereby. Promptly after it receives such notice,
the Administrative Agent shall notify each Revolving Lender of the contents
thereof.
(c) Conditions to Issuance. No Issuer shall issue any Letter of
Credit unless:
(i) such Letter of Credit shall be reasonably satisfactory
in form and substance to such Issuer,
(ii) the Borrower shall have executed and delivered such
other instruments and agreements relating to such Letter of
Credit as such Issuer shall have reasonably requested,
36
(iii) such Issuer shall have confirmed with the Administrative
Agent on the date of such issuance that the limitations specified
in Section 2.14(a) will not be exceeded immediately after such
Letter of Credit is issued, and
(iv) such Issuer shall not have been notified in writing by
the Borrower or the Administrative Agent expressly to the effect
that any condition specified in clause 3.2(c) or 3.2(d) is not
satisfied at the time such Letter of Credit is to be issued.
(d) Notice of Actual Issuance. Promptly after it issues any
Letter of Credit, the relevant Issuer shall notify the Administrative Agent of
the date, face amount, beneficiary or beneficiaries and expiry date of such
Letter of Credit. Promptly after it receives such notice, the Administrative
Agent shall notify each Revolving Lender of the contents thereof and the
amount of such Lender's participation in such Letter of Credit. Promptly
after it issues any Letter of Credit, the relevant Issuer shall send a copy of
such Letter of Credit to the Administrative Agent.
(e) Expiry Dates. No Letter of Credit shall have an expiry date
later than the fifth Domestic Business Day before the Revolving Credit
Termination Date. Subject to the preceding sentence, each Letter of Credit
shall expire on or before the first anniversary of the date of its issuance;
provided that the expiry date of any Letter of Credit may be extended from
time to time (i) at the Borrower's request or (ii) in the case of an Evergreen
Letter of Credit, automatically, in each case so long as such extension is for
a period not exceeding one year and is granted (or the last day on which
notice can be given to prevent such extension occurs) no earlier than 90 days
before the then existing expiry date thereof.
(f) Notice of Proposed Extensions of Expiry Dates. The relevant
Issuer shall give the Administrative Agent at least three Domestic Business
Days' notice before such Issuer extends (or allows an automatic extension of)
the expiry date of any Letter of Credit issued by it. Such notice shall
identify such Letter of Credit, the date on which it is to be extended (or the
last day on which notice can be given to prevent such extension) and the date
to which it is to be extended. Promptly after it receives such notice, the
Administrative Agent shall notify each Revolving Lender of the contents
thereof. No Issuer shall extend (or allow the extension of) the expiry date
of any Letter of Credit if:
(i) such extension does not comply with Section 2.14(e), or
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(ii) such Issuer shall have been notified by the Borrower or
the Administrative Agent expressly to the effect that any
condition specified in clause 3.2(c) or 3.2(d) is not satisfied
at the time of such proposed extension.
If any Letter of Credit is not extended after notice of a
proposed extension thereof has been given to the Revolving Lenders, the
relevant Issuer shall promptly notify the Administrative Agent of such failure
to extend. Promptly after it receives such notice, the Administrative Agent
shall notify each Revolving Lender thereof.
(g) Drawings. If an Issuer receives a demand for payment under any
Letter of Credit issued by it and determines that such demand should be
honored, such Issuer shall (i) promptly notify the Borrower and the
Administrative Agent as to the amount to be paid by such Issuer as a result of
such demand and the date of such payment (an "LC Payment Date") and (ii) make
such payment in accordance with the terms of such Letter of Credit.
(h) Reimbursement by the Borrower. (i) If any amount is drawn
under any Letter of Credit, the Borrower irrevocably and unconditionally
agrees to reimburse the relevant Issuer for such amount, together with any and
all reasonable charges and expenses which such Issuer may pay or incur
relative to such drawing. Such reimbursement shall be due and payable on the
relevant LC Payment Date or the date on which such Issuer notifies the
Borrower of such drawing, whichever is later; provided that, if such notice is
given after 12:00 Noon (New York City time) on the later of such dates, such
reimbursement shall be due and payable on the next following Domestic Business
Day (the date on which it is due and payable being an "LC Reimbursement Due
Date").
(ii) In addition, the Borrower agrees to pay, on the
applicable LC Reimbursement Due Date, interest on each amount
drawn under a Letter of Credit, for each day from and including
the date such amount is drawn to but excluding such LC
Reimbursement Due Date, at the rate applicable to Base Rate
Revolving Loans for such day. The Borrower also agrees to pay,
on demand, interest on any overdue amount (including any overdue
interest) payable under this Section 2.14(h), for each day from
and including the day such amount becomes due to but excluding
the day such amount is paid in full, at a rate per annum equal to
the sum of 2% plus the rate applicable to Base Rate Revolving
Loans for such day.
(iii) Each payment by the Borrower pursuant to this Section
2.14(h) shall be made to the relevant Issuer in Federal or other
funds immediately available to it at its address specified in or
pursuant to Section 9.1.
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(i) Payments by Lenders.
(i) If the Borrower fails to pay any Reimbursement
Obligation in full when due, the relevant Issuer may notify the
Administrative Agent of the unreimbursed amount and request that
the Revolving Lenders reimburse such Issuer for their respective
Revolving Commitment Percentages thereof. Promptly after it
receives any such notice, the Administrative Agent shall notify
each Revolving Lender of the unreimbursed amount and such
Revolving Lender's Revolving Commitment Percentage thereof. Upon
receiving such notice from the Administrative Agent, each
Revolving Lender shall make available to such Issuer, at its
address specified in or pursuant to Section 9.1, an amount equal
to such Revolving Lender's Revolving Commitment Percentage of such
unreimbursed amount, in Federal or other funds immediately
available to such Issuer, by 3:00 P.M. (New York City time) (A) on
the day such Revolving Lender receives such notice if it is
received at or before 12:00 Noon (New York City time) on such day
or (B) on the next Domestic Business Day if such notice is
received after 12:00 Noon (New York City time) on the date of
receipt, in each case together with interest on such amount for
each day from and including the relevant LC Payment Date to but
excluding the day such payment is due from such Revolving Lender
at the Federal Funds Rate for such day. Upon payment in full
thereof, such Revolving Lender shall be subrogated to the rights
of such Issuer against the Borrower to the extent of such
Revolving Lender's Revolving Commitment Percentage of the related
Reimbursement Obligation (including interest accrued thereon).
(ii) If any Revolving Lender fails to pay when due any amount
to be paid by it pursuant to clause (i) of this subsection,
interest shall accrue on such Revolving Lender's obligation to
make such payment, for each day from and including the date
such payment became due to but excluding the date such
Revolving Lender makes such payment, at a rate per annum equal
to (x) for each day from the day such payment is due to the
third succeeding Domestic Business Day, inclusive, the Federal
Funds Rate for such day and (y) for each day thereafter the sum
of 2% plus the rate applicable to Base Rate Revolving Loans for
such day.
(iii) If the Borrower shall reimburse any Issuer for any
drawing with respect to which any Revolving Lender shall have
made funds available to such Issuer in accordance with clause
(i) of this subsection, such Issuer shall promptly upon receipt
of such reimbursement distribute to such Revolving Lender its
Revolving Commitment Percentage thereof, including interest, to
the extent received by such Issuer.
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(j) Exculpatory Provisions. The obligations of the Borrower and
the Revolving Lenders under this Section shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower or any Revolving Lender may have or have
had against any Issuer, any Lender, any beneficiary of any Letter of Credit or
any other Person. The Borrower assumes all risks of the acts or omissions of
any beneficiary of any Letter of Credit with respect to the use of such Letter
of Credit by such beneficiary. None of the Issuers, the Lenders and their
respective officers, directors, employees and agents shall be responsible for,
and the obligations of each Revolving Lender to make payments to each Issuer
and of the Borrower to reimburse each Issuer for drawings pursuant to this
Section shall not be excused or affected by, among other things, (i) the use
which may be made of any Letter of Credit or any acts or omissions of any
beneficiary or transferee in connection therewith; (ii) the validity,
sufficiency or genuineness of documents presented under any Letter of Credit
or of any endorsements thereon, even if such documents should in fact prove to
be in any or all respects invalid, insufficient, fraudulent or forged; (iii)
payment by any Issuer against presentation of documents to it which do not
comply with the terms of the relevant Letter of Credit or (iv) any dispute
between or among the Borrower, any beneficiary of any Letter of Credit or any
other Person or any claims or defenses whatsoever of the Borrower or any other
Person against any beneficiary of any Letter of Credit. No Issuer shall be
liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit. Any action taken or omitted by any
Issuer in connection with any Letter of Credit and the related drafts and
documents shall be binding upon the Borrower and shall not place any Issuer or
any Lender under any liability to the Borrower. Notwithstanding the
foregoing, the provisions of this subsection shall not relieve any Issuer from
responsibility for its own gross negligence or willful misconduct.
(k) Indemnification by Borrower. The Borrower agrees to indemnify
and hold harmless each Lender, each Issuer and the Agents (collectively, the
"LC Indemnitees") from and against any and all claims, damages, losses,
liabilities, costs or expenses (including, without limitation, the reasonable
fees and disbursements of counsel) which such LC Indemnitee may reasonably
incur (or which may be claimed against such LC Indemnitee by any Person
whatsoever) by reason of or in connection with any execution and delivery or
transfer of or payment or failure to pay under any Letter of Credit or any
actual or proposed use of any Letter of Credit; provided that the Borrower
shall not be required to indemnify any Issuer for any such claims, damages,
losses, liabilities, costs or expenses to the extent, but only to the extent,
caused by (i) its own willful misconduct or gross negligence or (ii) its
failure to pay under any Letter of Credit issued by it after the presentation
to it of a request strictly complying with the terms and conditions of such
Letter of Credit. Nothing in this subsection is intended to limit the
obligations of the Borrower under any other provision of this Section.
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(l) Indemnification by Revolving Lenders. The Revolving Lenders
shall, ratably in proportion to their Revolving Commitment Percentages,
indemnify each Issuer (to the extent not reimbursed by the Borrower) against
any claims, damages, losses, liabilities, reasonable costs and reasonable
expenses (including, without limitation, reasonable fees and disbursements of
counsel) that such Issuer may suffer or incur in connection with this Section
or any action taken or omitted by it under this Section; provided that the
Revolving Lenders shall not be required to indemnify any Issuer for any such
claims, damages, losses, liabilities, costs or expenses to the extent, but
only to the extent, caused by (i) its own gross negligence or willful
misconduct, (ii) its failure to pay under any Letter of Credit issued by it
after the presentation to it of a request strictly complying with the terms
and conditions of such Letter of Credit, (iii) its failure to comply with
Section 2.14(e), (iv) its liabilities under any Letter of Credit issued by it
in contravention of clause 2.14(c)(iii) (to the extent that the limitations
referred to therein were in fact exceeded) or clause 2.14(c)(iv) or (v) its
liabilities under any Letter of Credit extended (or allowed to be
automatically extended) by it in contravention of clause 2.14(f)(ii).
(m) Liability for Damages. Nothing in this Section shall preclude
the Borrower or any Lender from asserting against any Issuer any claim for
damages suffered by the Borrower or such Lender to the extent, but only to the
extent, caused by (i) the willful misconduct or gross negligence of such
Issuer or (ii) such Issuer's failure to pay under any Letter of Credit issued
by it after the presentation to it of a request strictly complying with the
terms and conditions thereof.
(n) Dual Capacities. In its capacity as a Revolving Lender, each
Issuer and the Swingline Bank shall have the same rights and obligations under
this Section as any other Revolving Lender.
(o) Information to be Provided to Agent. Each Issuer and the
Swingline Bank shall furnish to the Administrative Agent upon request such
information as the Administrative Agent shall reasonably request in order to
calculate (i) the Aggregate LC Exposure existing from time to time, (ii) the
aggregate principal amount of Swingline Loans outstanding from time to time
and (iii) the amount of any fee payable for the account of the Revolving
Lenders under Section 2.7.
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Section 2.15. Swingline Loans. (a) Swingline Commitment.
The Swingline Bank agrees, on the terms and conditions set forth in this
Agreement, to make loans to the Borrower pursuant to this Section from time
to time during the Swingline Availability Period for any purpose for which
Revolving Loans may be borrowed; provided that, immediately after each such
loan is made (and after giving effect to any substantially concurrent
application of the proceeds thereof to repay outstanding Revolving Loans or
pay Reimbursement Obligations):
(i) the aggregate outstanding principal amount of the
Swingline Loans shall not exceed the Swingline Commitment; and
(ii) in the case of each Revolving Lender, its Outstanding
Revolving Amount shall not exceed its Revolving Commitment.
Within the foregoing limits, the Borrower may borrow Swingline Loans, prepay
Swingline Loans and reborrow Swingline Loans at any time during the Swingline
Availability Period.
(b) Notice of Swingline Borrowing. The Borrower shall give the
Swingline Bank notice (a "Notice of Swingline Borrowing"), not later than
10:30 a.m. (New York City time) on the date of each Swingline Borrowing,
specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day; and
(ii) the amount of such Borrowing.
(c) Funding of Swingline Loans. Not later than 12:00 Noon (New
York City time) on the date of each Swingline Borrowing, the Swingline Bank
shall, unless the Swingline Bank determines that any applicable condition
specified in Article 3 has not been satisfied, make available the amount of
such Swingline Borrowing, in Federal or other funds immediately available to
the Borrower at the Swingline Bank's address specified in or pursuant to
Section 9.01.
(d) Swingline Note. The Borrower's obligation to repay the
Swingline Loans shall be evidenced by a single Note payable to the order of
the Swingline Bank for the account of its Domestic Lending Office
substantially in form of Exhibit A-2 hereto (the "Swingline Note"). Promptly
after it receives the Swingline Note pursuant to Section 3.01(b), the
Administrative Agent shall forward the Swingline Note to the Swingline Lender.
The Swingline Bank shall record the date and amount of each Swingline Loan
made by it and the date and amount of each payment of principal made by the
Borrower with respect thereto, and may, if the Swingline Lender so elects in
connection with any transfer or enforcement of the Swingline Note, endorse on
the schedule forming a part thereof appropriate notations to evidence the
foregoing information with respect to each such Swingline Loan then
outstanding; provided that the Swingline Bank's failure to make (or any error
in making) any such recordation or endorsement shall not affect the Borrower's
obligations hereunder or under the Swingline Note. The Swingline Bank is
hereby irrevocably authorized by the Borrower so to endorse the Swingline Note
and to attach to and make a part of the Swingline Note a continuation of any
such schedule as and when required.
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(e) Interest. Each Swingline Loan shall bear interest on the
outstanding principal amount thereof, for each day from and including the day
such Swingline Loan is made to but excluding the day it becomes due, at a rate
per annum equal to the rate applicable to Base Rate Revolving Loans for such
day. Such interest shall be payable quarterly in arrears on the last Domestic
Business Day of each calendar quarter. Any overdue principal of or interest
on any Swingline Loan (and, during any Default Rate Period, any principal of
any Swingline Loan) shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 2% plus the rate applicable to
Base Rate Revolving Loans for such day.
(f) Optional Prepayment of Swingline Loans. The Borrower may
prepay the Swingline Loans in whole at any time, or from time to time in part,
by giving notice of such prepayment to the Swingline Bank not later than 10:30
A.M. (New York City time) on the date of prepayment and paying the principal
amount to be prepaid, together with interest accrued thereon to the date of
prepayment, to the Swingline Bank at its address specified in or pursuant to
Section 9.01, in Federal or other funds immediately available at such address,
not later than 12 Noon (New York City time) on the date of prepayment.
(g) Maturity of Swingline Loans. All Swingline Loans outstanding
on the Swingline Maturity Date shall be due and payable on such date, together
with interest accrued thereon to such date.
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(h) Refunding Unpaid Swingline Loans. If (x) the Swingline Loans
are not paid in full on the Swingline Maturity Date, (y) the Swingline
Commitment is terminated (whether pursuant to Section 2.15(j), Article 6 or
otherwise) or (z) the Swingline Loans become immediately due and payable
(whether pursuant to Section 2.15(g), Article 6 or otherwise), the Swingline
Bank (or the Administrative Agent on its behalf) may, by notice to the
Revolving Lenders (including the Swingline Bank, in its capacity as a
Revolving Lender), require each Revolving Lender to pay to the Swingline Bank
an amount equal to such Lender's Revolving Commitment Percentage of the
aggregate unpaid principal amount of the Swingline Loans then outstanding.
Such notice shall specify the date on which such payments are to be made,
which shall be the first Domestic Business Day after such notice is given.
Not later than 12:00 Noon (New York City time) on the date so specified, each
Revolving Lender shall pay the amount so notified to it to the Swingline Bank
at its address specified in or pursuant to Section 9.01, in Federal or other
funds immediately available at such address. The amount so paid by each
Revolving Lender shall constitute a Base Rate Loan to the Borrower; provided
that, if the Revolving Lenders are prevented from making such Base Rate Loans
to the Borrower by the provisions of the United States Bankruptcy Code or
otherwise, the amount so paid by each Revolving Lender shall constitute a
purchase by it of a participation in the unpaid principal amount of the
Swingline Loans and interest accruing thereon after the date of such payment
at the rate specified in the last sentence of Section 2.15(e). Each Revolving
Lender's obligation to make such payment to the Swingline Bank under this
subsection shall be absolute and unconditional and shall not be affected by
any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Revolving Lender
or any other Person may have against the Swingline Bank, the Borrower or any
other Person, (ii) the occurrence or continuance of a Default or an Event of
Default or the termination of the Revolving Commitments, (iii) any adverse
change in the condition (financial or otherwise) of the Borrower or any other
Person, (iv) any breach of this Agreement by any party hereto (other than the
Swingline Bank) or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; provided that no Revolving
Lender shall be obligated to make any payment to the Swingline Bank under this
subsection with respect to a Swingline Loan made by the Swingline Bank at a
time when it had determined that any applicable condition precedent set forth
in Section 3.02(c) or 3.02(d) was not satisfied. The Swingline Bank shall be
entitled to recover any and all actual losses and damages (including, without
limitation, reasonable attorneys' fees) from any Lender failing to make any
such payment to the Swingline Lender. The Swingline Bank may set off the
obligations of a Lender under this paragraph against any distributions or
payments in respect of the Loans which the Swingline Bank would otherwise make
available to such Lender at any time.
(i) To the extent and during the time period in which any Lender
fails to provide or delays in providing its respective payment to the Swingline
Bank pursuant to clause (h) above, such Lender's percentage of all payments
in respect of Revolving Loans (but not its Revolving Commitment with respect
to future Borrowings) shall decrease to reflect the actual percentage which its
actual Revolving Credit Exposure less the amount of such unmade payment bears
to the aggregate Revolving Credit Exposures.
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(j) Termination of Swingline Commitment. The Borrower may, upon
at least three Domestic Business Days' notice to the Swingline Bank and the
Administrative Agent, terminate the Swingline Commitment at any time, if no
Swingline Loans are outstanding at such time. Unless previously terminated,
the Swingline Commitment shall terminate at the close of business on the
Swingline Maturity Date.
Section 2.16. Registry. The Administrative Agent shall
maintain a register (the "Register") on which it will record the Commitments
of each Lender, each Loan made by such Lender and each repayment of any Loan
made by such Lender. Any such recordation by the Administrative Agent on the
Register shall be conclusive, absent manifest error. With respect to any
Lender, the assignment or other transfer of the Commitments of such Lender and
the rights to the principal of, and interest on, any Loan made and Note issued
pursuant to this Agreement shall not be effective until such assignment or
other transfer is recorded on the Register and otherwise complies with Section
9.6(c). The registration of assignment or other transfer of all or part of any
Commitments, Loans and Notes for a Lender 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 referred to in Section 9.6(c). The Register shall be
available at the offices where kept by the Administrative Agent for inspection
by the Borrower and any Lender at any reasonable time upon reasonable prior
notice to the Administrative Agent. Each Lender shall record on its internal
records (including computerized systems) the foregoing information as to its
own Commitments and Loans. Failure to make any such recordation, or any error
in such recordation, shall not affect the obligations of any Obligor under the
Loan Documents.
Section 2.17. Monthly Statement. The Administrative Agent
shall provide the Borrower with a monthly statement of account, setting forth
the principal amount of each Class of Loans outstanding at the beginning and
end of the period covered thereby, the amount of any prepayments in such period
and the amount of interest accrued in such period.
ARTICLE 3
Conditions
Section 3.1. Closing Date. The Closing Date shall occur on
the first date on which all the following conditions have been satisfied
(or waived in accordance with Section 9.5), it being understood that with
respect to the conditions set forth in clauses (f) - (o), (r), (s) and (v),
each Lender shall be deemed to have determined that such conditions shall
have been satisfied unless the Syndication Agent shall have received notice
from such Lender prior to the Closing Date that such Lender does not
consider such conditions to have been satisfied (or, solely with respect to
the conditions set forth in clauses (i), (m), (n) and (v) the Lenders shall
not have received any documents referred to therein):
45
(a) receipt by each Agent of counterparts hereof signed by each of
the parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by each Agent in form
reasonably satisfactory to it of telegraphic, telex or other written
confirmation from such party of execution of a counterpart hereof by such
party);
(b) receipt by the Administrative Agent (with copies for the
Documentation Agent and the Administrative Agent) of a duly executed Note for
the account of each Lender and a duly executed Swingline Note for the account
of the Swingline Bank, each dated on or before the Closing Date and complying
with the provisions of Section 2.13 or 2.15(d), as the case may be;
(c) receipt by each Agent of duly executed counterparts of each
Collateral Document (other than the Mortgages), together with evidence
reasonably satisfactory to it in its sole good faith discretion of the
effectiveness of the security contemplated thereby and of the perfection of
the Liens created thereunder, including the filing of UCC-1s and the delivery
of any stock certificates or promissory notes comprising the Collateral, or of
arrangements satisfactory to the Agents to effect such perfection;
(d) receipt by each Agent of duly executed counterparts of the
Subsidiary Guarantee signed on behalf of each Subsidiary Guarantor;
(e) receipt by each Agent of a true, correct and complete copy of
each Acquisition Document as in effect on the Closing Date, certified on
behalf of the Borrower by a senior officer of the Borrower;
(f) completion by the Lenders of a due diligence review with
respect to the Borrower, Ruco and their respective Subsidiaries, including,
without limitation, as to business, tax, accounting, legal and environmental
matters and other structural and ownership matters, and reasonable
satisfaction by the Lenders in their sole good faith discretion with the scope
and results of such review;
46
(g) (i) receipt by each Agent of evidence reasonably satisfactory
to it in its sole good faith discretion (x) of the satisfaction (without
waiver) of all conditions to the closing of the Acquisition on the Closing
Date, (y) that all transactions contemplated by the Acquisition Documents to
be consummated on or before the closing date of the Acquisition will take
place prior to or simultaneously with the making of the initial Loans and the
other transactions hereunder contemplated to take place on the Closing Date,
and (z) that the Acquisition will be consummated concurrently with the making
of the initial Loans hereunder, and (ii) reasonable satisfaction of the
Lenders in their sole good faith discretion with the form and substance of (x)
the Acquisition Agreement and (y) the structure (including, without
limitation, the corporate, capital and tax structure of the Borrower, Ruco and
their respective Subsidiaries), terms, conditions and documentation of the
Acquisition;
(h) receipt by each Agent of (i) evidence reasonably satisfactory
to it in its sole good faith discretion of the effectiveness of all Acquisition
Documents, and (ii) each opinion, report, and other document required to be
delivered pursuant to the Acquisition Documents in connection with the
Acquisition, all in form and substance satisfactory to the Agents and the
Lenders;
(i) the fact that, and receipt by the Lenders of a certificate of
the Borrower executed on its behalf by its chief financial officer to the
effect that, the ratio of Consolidated Debt less cash and Temporary Cash
Investments as of the end of the Fiscal Quarter most recently ended on or
prior to the Closing Date to Consolidated EBITDA for the period of four Fiscal
Quarters then ended (in each case calculated on a pro forma basis as of the
Closing Date, after giving effect to the Acquisition, the financing
contemplated hereby and the other transactions contemplated in connection with
the Acquisition) does not exceed 3.5:1.0, which certificate shall set forth in
reasonable detail the calculation of such ratio;
(j) receipt by each Agent and the Lenders of an opinion (addressed
to the Agents, the Issuers, the Swingline Bank and the Lenders) of Wolf,
Block, Xxxxxx and Xxxxx-Xxxxx, LLP, counsel for the Obligors, substantially in
the form of Exhibit D hereto, dated the Closing Date and covering such
additional matters relating to the transactions contemplated hereby as the
Required Lenders may reasonably request;
(k) receipt by each Agent and the Lenders of an opinion (addressed
to the Agents, the Issuers, the Swingline Bank and the Lenders) of Xxxxx Xxxx &
Xxxxxxxx, special counsel for the Agents and the Lead Arranger, substantially
in the form of Exhibit F hereto, dated the Closing Date and covering such
additional matters relating to the transactions contemplated hereby as the
Required Lenders may reasonably request;
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(l) receipt by each Agent, the Lead Arranger, JPMSI and the Lenders
of all costs, fees and expenses (including, without limitation, legal fees and
expenses) and other compensation payable to any of the foregoing on or prior
to the Closing Date in connection with the Loan Documents;
(m) receipt by the Lenders of the pro forma balance sheet and
financial statements referred to in Section 4.15, which pro forma balance sheet
and financial statements shall be satisfactory to the Lenders;
(n) receipt by the Lenders of environmental reports prepared by
Strata Environmental and Mclaren/Xxxx Inc., reasonably satisfactory to the
Lenders in their sole good faith discretion;
(o) the fact that (i) all necessary anti-trust and other
governmental, shareholder and third party consents and approvals necessary or
reasonably desirable in connection with the Acquisition and the related
transactions contemplated by the Acquisition Documents and the Loan Documents
shall have been obtained and all applicable waiting periods shall have expired
without any action to affect the Acquisition; and (ii) the Lenders shall have
received evidence that the Acquisition, the financing contemplated hereby and
the other transactions contemplated pursuant to the Acquisition Documents and
the Loan Documents will not violate, or constitute a default under, any
applicable law or regulation, which evidence shall be reasonably satisfactory
to the Lenders;
(p) the fact that (i) there shall not be any disruption or change
in financial, banking or capital markets or in the regulatory environment that
in the good faith judgment of the Lead Arranger is reasonably likely to
adversely affect the syndication of the Commitments and the Loans and (ii) the
Borrower, Ruco and their respective Subsidiaries shall have fully cooperated
with the syndication efforts, including, without limitation, by promptly
providing the Lead Arranger and the Lenders with all information deemed
necessary to complete successfully such syndication;
(q) the fact that there shall have been no material adverse change
in the condition (financial or otherwise), business, results of operations,
properties, liabilities or prospects of the Borrower, Ruco or any of their
respective Subsidiaries, in each case since the most recently ended fiscal year
of such entity for which audited financial statements have been delivered to
the Lenders;
(r) the fact that there shall not be any pending or threatened
litigation or proceeding against the Borrower, Ruco or any of their respective
Subsidiaries or affiliates, or otherwise relating to the Acquisition or the
financing contemplated hereby, which seeks to enjoin or challenge the
Acquisition, the financing contemplated hereby or any other transaction
contemplated by the Acquisition Documents or the Loan Documents or which could
reasonably be expected in the Lenders' judgment to have a material adverse
effect on the condition (financial or otherwise), business, results of
operations, properties, liabilities or prospects of the Borrower, Ruco or any
of their respective Subsidiaries;
48
(s) receipt by the Lenders of evidence of insurance (including
environmental insurance) maintained by the Borrower, Ruco and their respective
Subsidiaries reasonably satisfactory to the Lenders;
(t) receipt by each Agent of evidence reasonably satisfactory to
it in its sole good faith discretion that (i) all outstanding Debt and other
obligations of the Borrower and its Subsidiaries under the Corestates Loan
Agreement have been paid in full, all commitments thereunder have been
terminated and all Liens securing such obligations and all guarantees thereof
have been released, (ii) all other outstanding Debt of the Borrower, Ruco and
their respective Subsidiaries (other than the Mexican Subsidiary Debt and Debt
of Foreign Subsidiaries under Working Capital Facilities in an aggregate
principal amount not exceeding $3,000,000) has been repaid in full, together
with accrued interest thereon and any prepayment premiums or penalties with
respect thereto, and (iii) on the Closing Date, immediately after giving effect
to the Acquisition, the borrowings to be made hereunder and the other
transactions contemplated by the Acquisition Documents and the Loan Documents,
the Borrower and its Subsidiaries (including Ruco and its Subsidiaries) shall
have no Debt outstanding other than the Loans, the Mexican Subsidiary Debt and
Debt of Foreign Subsidiaries under Working Capital Facilities in an aggregate
principal amount not exceeding $3,000,000; and
(u) receipt by each Agent of all documents it may reasonably
request relating to the existence of each Obligor, the corporate authority for
and the validity of the Loan Documents and the Acquisition Documents, and any
other matters relevant hereto, all in form and substance satisfactory to such
Agent in its sole good faith discretion; and
(v) receipt by the Agents and the Lenders of a certificate of the
Borrower, executed on its behalf by its chief financial officer, as to the
solvency (after giving effect to the Acquisition, the financing contemplated
hereby and the other transactions contemplated pursuant to the Acquisition
Documents and the Loan Documents) of each Obligor in a form reasonably
acceptable to the Lenders.
Promptly after the Closing Date occurs, the Syndication Agent shall notify
the Borrower, the other Agents and the Lenders thereof, and such notice
shall be conclusive and binding on all parties hereto.
49
Section 3.2. Borrowings and Issuances of Letters of Credit.
The obligation of any Lender to make a Loan on the occasion of any Borrowing,
the obligation of any Issuer to issue (or extend or allow an extension of the
expiry date of) any Letter of Credit and the obligation of the Swingline Bank
to make a Swingline Loan on the occasion of any Swingline Borrowing are each
subject to the satisfaction of the following conditions:
(a) the fact that the Closing Date shall have occurred on or before
August 31, 1998;
(b) receipt by the Administrative Agent of a Notice of Borrowing as
required by Section 2.2, receipt by the relevant Issuer of a notice of proposed
issuance or extension as required by Section 2.14(b) or 2.14(f) or receipt by
the Swingline Bank of a Notice of Swingline Borrowing as required by Section
2.15(b), as the case may be;
(c) the fact that, immediately before and after such Borrowing or
issuance or extension of a Letter of Credit, no Default shall have occurred and
be continuing; and
(d) the fact that the representations and warranties of the
Obligors contained in the Loan Documents shall be true on and as of the date
of such Borrowing or issuance or extension of a Letter of Credit (or, in the
case of any representation or warranty which by its terms relates solely to an
earlier date, on and as of such earlier date).
Each Borrowing and each issuance or extension of a Letter of Credit hereunder
shall be deemed to be a representation and warranty by the Borrower on the
date of such Borrowing or issuance or extension of a Letter of Credit as to
the facts specified in the foregoing clauses 3.2(c) and 3.2(d).
ARTICLE 4
Representations and Warranties
The Borrower represents and warrants (including, in the case of
any such representation and warranty made or deemed made before the
consummation of the Acquisition, at the time such representation and warranty
is made or deemed made and immediately after giving effect to the consummation
of the Acquisition) that:
Section 4.1. Corporate Existence and Power. The Borrower is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and has all corporate powers and all
material governmental licenses, consents, authorizations and approvals
required to carry on its business as now conducted.
50
Section 4.2. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by each Obligor of the
Loan Documents to which it is a party are within its corporate powers, have
been duly authorized by all necessary corporate action, require no action by
or in respect of, or filing with, any governmental body, agency or official
and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation, by-laws or
other constitutive documents of such Obligor or of any material agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower or any of its Subsidiaries or result in the creation or imposition of
any Lien on any asset of the Borrower or any of its Subsidiaries (other than
Liens created under the Collateral Documents).
Section 4.3. Binding Effect; Liens Enforceable. (a) Each Loan
Document (other than the Notes) constitutes a valid and binding agreement of
each Obligor party thereto, and each Note, when executed and delivered in
accordance with this Agreement, will constitute a valid and binding obligation
of the Borrower, in each case enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally and general principles of equity.
(b) The Collateral Documents create valid security interests
in, and first mortgage Liens on, the Collateral purported to be covered
thereby, which security interests and mortgage Liens are and will remain
perfected security interests and mortgage Liens, prior to all other Liens
other than Liens permitted by Section 5.09. Each of the representations and
warranties made by each Obligor in the Collateral Documents to which it is a
party is true and correct.
Section 4.4. Financial Information. (a) The consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of December
31, 1997 and the related consolidated statements of operations, cash flows and
stockholders' equity for the Fiscal Year then ended, reported on by Price
Waterhouse LLP and set forth in the Borrower's 1997 Form 10-K, fairly present,
in conformity with GAAP, the consolidated financial position of the Borrower
and its Consolidated Subsidiaries as of such date and their consolidated
results of operations and cash flows for such Fiscal Year.
(b) The unaudited consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of March 31, 1998 and the related unaudited
consolidated statements of operations, cash flows and stockholders' equity for
the three months then ended, set forth in the Borrower's latest Form 10-Q,
fairly present, on a basis consistent with the financial statements referred
to in subsection (a), the consolidated financial position of the Borrower and
its Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such three month period (subject to normal
year-end adjustments).
51
(c) The combined balance sheet of Ruco Corp. and Ruco LLC as of
September 30, 1997 and the related combined statements of operations, cash
flows and stockholders' equity for the fiscal year then ended, reported on by
Xxxxx Xxxxxxxxxx & Co., LLP, copies of which have been provided to each of the
Lenders, fairly present, in conformity with GAAP, the combined financial
position of Ruco Corp. and Ruco LLC as of such date and their combined results
of operations and cash flows for such fiscal year.
(d) The unaudited combined balance sheet of Ruco Corp. and Ruco
LLC as of June 30, 1998 and the related unaudited combined statements of
operations, cash flows and stockholders' equity for the nine months then
ended, copies of which have been provided to each of the Lenders, fairly
present, on a basis consistent with the financial statements referred to in
subsection (c) above, the combined financial position of Ruco Corp. and Ruco
LLC as of such date and their combined results of operations and cash flows
for such nine month period (subject to normal year-end adjustments).
(e) Since March 31, 1998, there has been no material adverse change
in the business, condition (financial or otherwise), operations, properties,
liabilities or prospects of the Borrower and its Consolidated Subsidiaries,
considered as a whole, and, on or prior to the Closing Date, since June 30,
1998, there has been no material adverse change in the business, condition
(financial or otherwise), operations, properties, liabilities or prospects of
Ruco and its Subsidiaries, considered as a whole.
Section 4.5. Litigation. There is no action, suit or
proceeding pending against, or to the Borrower's knowledge threatened against
or affecting, the Borrower or any Subsidiary before any court or arbitrator or
any governmental body, agency or official in which there is a reasonable
possibility of an adverse decision which is reasonably likely to materially
adversely affect the condition (financial or otherwise), business, results of
operations, properties, liabilities or prospects of the Borrower and its
Consolidated Subsidiaries, considered as a whole, after giving effect to the
Acquisition or which in any manner draws into question the Acquisition or the
validity or enforceability of any Loan Document or Acquisition Document.
52
Section 4.6. Compliance with ERISA. Each member of the ERISA
Group has fulfilled its obligations under the minimum funding standards of
ERISA and the Internal Revenue Code with respect to each Plan and is in
compliance in all material respects with the presently applicable provisions of
ERISA and the Internal Revenue Code with respect to each Plan. No member of
the ERISA Group has (i) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed
to make any contribution or payment to any Plan or Multiemployer Plan, or made
any amendment to any Plan, which has resulted or could result in the
imposition of a Lien or the posting of a bond or other security under ERISA or
the Internal Revenue Code or (iii) incurred any liability under Title IV of
ERISA other than a liability to the PBGC for premiums under Section 4007 of
ERISA.
Section 4.7. Environmental Matters. (a) Except as set forth in
Schedule 4.07 and to the extent that the liabilities of the Borrower and its
Subsidiaries, taken as a whole (and after considering any applicable third
party indemnification which has been provided and remains in full force and
effect and/or to the extent a solvent insurer has agreed in writing to provide
coverage), relating to or resulting from the matters referred to in clauses (i)
through (vi) below, inclusive, would not reasonably be expected to exceed
$750,000 for any one occurrence or $5,000,000 in the aggregate:
(i) no notice, notification, demand, request for information,
citation, summons, complaint or order has been received, no
penalty has been assessed and no investigation or review is
pending, or to the Borrower's knowledge, threatened by any
governmental or other entity relating to the Borrower or any
Subsidiary and relating to or arising out of any applicable
Environmental Law;
(ii) there are no liabilities of the Borrower or any
Subsidiary of any kind whatsoever, whether accrued, contingent,
absolute, determined, determinable or otherwise, arising under or
relating to any Environmental Law;
(iii) no polychlorinated biphenyls, radioactive material,
lead, lead paint, asbestos-containing material, incinerator,
sump, surface impoundment, lagoon, landfill, septic, wastewater
treatment or other disposal system or underground storage tank
(active or inactive) that requires remediation, or could
reasonably be expected to lead to liability under, applicable
Environmental Laws is or has been present at any property now or
previously owned, operated or leased by the Borrower or any
Subsidiary;
53
(iv) no Hazardous Substance has been discharged, disposed of,
dumped, injected, pumped, deposited, spilled, leaked, emitted or
released at, on or under any property now or previously owned,
operated or leased by the Borrower or any Subsidiary other than
in compliance in all material respects with, and in a manner that
could not reasonably be expected to lead to liability under,
applicable Environmental Laws;
(v) no property now or previously owned, leased or operated
by the Borrower or any Subsidiary nor any property to which the
Borrower or any Subsidiary has, directly or indirectly,
transported or arranged for the transportation of any Hazardous
Substances, is listed or, to the Borrower's knowledge, proposed
for listing, on the National Priorities List promulgated pursuant
to CERCLA, on CERCLIS (as defined in CERCLA) or on any similar
federal, state or foreign list of sites requiring investigation
or clean-up; and
(vi) the Borrower and its Subsidiaries are in compliance with
all Environmental Laws and have obtained and are in compliance
with all permits, licenses, authorizations, certificates and
approvals of governmental authorities relating to or required by
applicable Environmental Laws and necessary or proper for the
business of the Borrower or any Subsidiary as currently
conducted.
(b) There has been no material environmental investigation, study,
audit, test, review or other analysis conducted of which the Borrower has
control or possession in relation to the current or prior business of the
Borrower or any Subsidiary or any property or facility now or previously
owned, leased or operated by the Borrower or any Subsidiary, which has not
been delivered to the Lenders at least five days prior to the date hereof.
(c) For purposes of this Section, the terms "Borrower" and
"Subsidiary" shall include any business or business entity (including a
corporation) which is, in whole or in part, a predecessor of the Borrower or
any Subsidiary.
Section 4.8. Taxes. The Borrower and its Subsidiaries have
filed all United States Federal income tax returns and all other material tax
returns which are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the
Borrower or any Subsidiary, except to the extent that any such assessment is
being contested in good faith by appropriate proceedings. The charges,
accruals and reserves on the books of the Borrower and its Subsidiaries in
respect of taxes or other governmental charges are, in the Borrower's opinion,
adequate.
54
Section 4.9. Subsidiaries. Each of the Borrower's Subsidiaries
is duly organized, validly existing and, where applicable, in good standing
under the laws of its jurisdiction of organization, and has all powers and all
material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted. The Borrower has no
Subsidiaries other than its Foreign Subsidiaries and the Subsidiary Guarantors.
Section 4.10. No Regulatory Restrictions on Borrowing. No
Obligor is (i) an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, (ii) a "holding company" or a "subsidiary
company" of a holding company within the meaning of the Public Utility Holding
Company Act of 1935, as amended, or (iii) otherwise subject to any regulatory
scheme which restricts its ability to incur or guarantee debt.
Section 4.11. Real Property Interests. Except for the
ownership, leasehold or other interests set forth in Schedule 4.11, the
Borrower and its Subsidiaries have, as of the Closing Date, no ownership,
leasehold or other interest in real property located in the United States.
Section 4.12. Full Disclosure. All information (excluding
projections) heretofore furnished by the Borrower to any Agent or any Lender
for purposes of or in connection with the Loan Documents or any transaction
contemplated thereby is, and all such information hereafter furnished by the
Borrower to any Agent or any Lender will be, true and accurate in all material
respects on the date as of which such information is stated or certified. The
Borrower has disclosed to the Lenders any and all facts (other than general
economic or political conditions) which materially and adversely affect, or may
affect (to the extent the Borrower can now reasonably foresee), the business,
operations or financial condition of the Borrower and its Consolidated
Subsidiaries, taken as a whole, or the ability of any Obligor to perform its
obligations under the Loan Documents. All projections heretofore furnished
by the Borrower to any Agent or any Lender for purposes of or in connection
with the Loan Documents or any transaction contemplated thereby were, and all
projections hereafter furnished by the Borrower to any Agent or any Lender
will be, based on reasonable assumptions and as of their date represented the
Borrower's best estimate of future performance of the Borrower and its
Subsidiaries.
Section 4.13. Solvency. As of the Closing Date, after giving
effect to the transactions contemplated to occur on the Closing Date, and at
all times thereafter: (i) the aggregate fair market value of the assets of the
Borrower and each Subsidiary Guarantor will exceed the liabilities of the
Borrower and each Subsidiary Guarantor (including contingent, subordinated,
unmatured and unliquidated liabilities (taking into account the amount and
probability of the conversion thereof into actual non-contingent
liabilities)), (ii) the Borrower and each Subsidiary Guarantor will have
sufficient cash flow to enable it to pay its debts as they mature and (iii)
the Borrower and each Subsidiary Guarantor will not have unreasonably small
capital for the business in which the Borrower and each of its Subsidiaries
are engaged.
55
Section 4.14. Representations and Warranties Incorporated from
Acquisition Agreement. As of the Closing Date, each of the representations
and warranties made in the Acquisition Agreement by the Borrower is, and to
the best of the Borrower's knowledge after diligent inquiry each of the
representations and warranties made in the Acquisition Agreement by any other
party thereto is, true and correct in all material respects and such
representations and warranties are hereby so incorporated herein by reference
with the same effect as though set forth in their entirety herein, as qualified
therein. The Acquisition Agreement has not as of the Closing Date been
modified or amended in any respect and no provision or condition contained
therein has been waived, except with the express written consent of the
Required Lenders.
Section 4.15. Information Memorandum. (a) The pro forma
balance sheet of the Borrower and its Subsidiaries as of June 30, 1998 and the
related pro forma statements of operations and cash flows for the twelve
months then ended, in each case as set forth in the Information Memorandum
fairly presents, in conformity with generally accepted accounting principles
applied on a basis consistent with the financial statements referred to in
Section 4.4(a), the consolidated financial position of the Borrower and its
Subsidiaries as of such date and their results of operations and cash flows
for the twelve months then ended, adjusted to give effect (as if such events
had occurred on such date, in the case of such balance sheet, or on the first
day of such period, in the case of such statements of operations and cash
flows) to (i) the transactions contemplated by the Acquisition Documents and
the Loan Documents to occur on the Closing Date, (ii) the application of the
proceeds therefrom as contemplated by the Acquisition Documents and the Loan
Documents and (iii) the payment of all legal, accounting and other fees
related thereto. As of the date of such balance sheet and the Closing Date,
the Borrower and its Subsidiaries had and have no material liabilities,
contingent or otherwise, including liabilities for taxes, long-term leases or
forward or long-term commitments, which are not properly reflected on such
balance sheet. The projections set forth in the Information Memorandum were
based on reasonable assumptions and as of their date represented the best
estimate of future performance of the Borrower and its Subsidiaries.
Section 4.16. Year 2000. The Borrower will use its best
efforts to provide that any reprogramming required to permit the proper
functioning, in and following the year 2000, of (a) the computer systems of
the Borrower and its Subsidiaries and (b) equipment containing embedded
microchips (including systems and equipment supplied by others or with which
the systems of the Borrower or any of its Subsidiaries interface) and the
testing of all such systems and equipment, as so reprogrammed, will be
completed by June 30, 1999. The cost to the Borrower and its Subsidiaries of
such reprogramming and testing and of the reasonably foreseeable consequences
of the year 2000 to the Borrower and its Subsidiaries (including, without
limitation, reprogramming errors and the failure of others' systems or
equipment) will not result in a Default or a Material Adverse Effect. Except
for such of the reprogramming referred to in the preceding sentence as may be
necessary, the computer and management information systems of the Borrower and
its Subsidiaries are and, with ordinary course upgrading and maintenance, will
continue for the term of this Agreement, to be sufficient to permit the
Borrower and its Subsidiaries to conduct their businesses without Material
Adverse Effect.
56
ARTICLE 5
Covenants
The Borrower agrees that, so long as any Lender has any Credit
Exposure hereunder or any interest or fees accrued hereunder remain unpaid:
Section 5.1. Information. The Borrower will deliver to each
of the Lenders:
(a) within 90 days after the end of each Fiscal Year, a
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries
as of the end of such Fiscal Year and the related consolidated statements of
operations, cash flows and stockholders' equity for such Fiscal Year, setting
forth in each case in comparative form the figures for the previous Fiscal
Year, all reported on without material qualification by Price Waterhouse LLP
or other independent public accountants of nationally recognized standing;
(b) within 45 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year, a consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of the end of such Fiscal Quarter, the related
consolidated statement of operations for such Fiscal Quarter and the related
consolidated statements of cash flows and stockholders' equity for the portion
of the Fiscal Year ended at the end of such Fiscal Quarter, setting forth in
the case of each such statement of operations, cash flows and stockholders'
equity in comparative form the figures for the corresponding period in the
previous Fiscal Year, all certified (subject to normal year-end adjustments)
as to fairness of presentation and consistency with GAAP by the Borrower's
chief financial officer or chief accounting officer;
57
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses 5.1(a) and 5.1(b) above, a certificate of the
Borrower signed on its behalf by its chief financial officer or chief
accounting officer (i) setting forth in reasonable detail (x) the calculations
required to establish whether the Borrower was in compliance with the
requirements of Sections 5.11 to 5.15, inclusive, on the date of such
financial statements and (y) a calculation of the Leverage Ratio as of the
date of such financial statements, (ii) stating whether any Default exists on
the date of such certificate and, if any Default then exists, setting forth
the details thereof and the action which the Borrower is taking or proposes to
take with respect thereto and (iii) if there shall have been a change in
generally accepted accounting principles from GAAP, setting forth a
reconciliation of such financial statements to GAAP;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause 5.1(a) above, a statement of the firm of
independent public accountants which reported on such statements (i) stating
whether anything has come to their attention to cause them to believe that any
Default existed on the date of such statements and (ii) confirming the
calculations set forth in the officer's certificate delivered simultaneously
therewith pursuant to clause 5.1(c) above;
(e) on or prior to 90 days after the end of each Fiscal Year,
commencing with the Fiscal Year ending December 31, 1999, a certificate of the
Borrower signed on its behalf by its chief financial officer or chief
accounting officer setting forth in reasonable detail the calculation of Excess
Cash Flow for such Fiscal Year;
(f) within 45 days after the beginning of each Fiscal Year, copies
of monthly operating budgets for such Fiscal Year, containing such information
and in such form as shall be reasonably satisfactory to the Required Lenders;
(g) within three Domestic Business Days after any executive or
financial officer of the Borrower obtains knowledge of any Default, if such
Default is then continuing, a certificate of the Borrower's chief financial
officer or chief accounting officer setting forth the details thereof and the
action which the Borrower is taking or proposes to take with respect thereto;
58
(h) promptly after the mailing thereof to the Borrower's
shareholders generally, copies of all financial statements, reports and proxy
statements so mailed;
(i) promptly after the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) filed by the Borrower with the SEC;
(j) as soon as reasonably practicable following the date, if any,
when any member of the ERISA Group (i) gives or is required to give notice to
the PBGC of any "reportable event" (as defined in Section 4043 of ERISA) with
respect to any Plan which might constitute grounds for a termination of such
Plan under Title IV of ERISA, other than under Section 4041(b) of ERISA, or
knows that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such reportable
event given or required to be given to the PBGC; (ii) receives notice of
complete or partial withdrawal liability under Title IV of ERISA or notice that
any Multiemployer Plan with unfunded liabilities is in reorganization, is
insolvent or has been terminated, a copy of such notice; (iii) receives notice
from the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or appoint a trustee to administer any Plan, a copy of such notice; (iv)
applies for a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code, a copy of such application; (v) gives notice of intent
to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives notice of withdrawal from
any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii)
fails to make any payment or contribution to any Plan or Multiemployer Plan
or makes any amendment to any Plan which has resulted or could result in the
imposition of a Lien or the posting of a bond or other security, a certificate
of the Borrower's chief financial officer or chief accounting officer setting
forth details as to such occurrence and the action, if any, which the Borrower
or applicable member of the ERISA Group is required or proposes to take;
(k) as soon as reasonably practicable after any executive or
financial officer of the Borrower obtains knowledge thereof, notice of any
event or condition which has had or threatens to have a Material Adverse
Effect and the nature of such Material Adverse Effect;
(l) as soon as reasonably practicable after any officer of the
Borrower obtains knowledge of the commencement of, or of a threat of the
commencement of, an action, suit or proceeding against the Borrower or any of
its Subsidiaries before any court or arbitrator or any governmental body,
agency or official in which is reasonably likely to have a Material Adverse
Effect or which in any manner questions the validity of the Loan Documents, a
certificate of a senior financial officer of the Borrower setting forth the
nature of such pending or threatened action, suit or proceeding and such
additional information with respect thereto as may be reasonably requested by
any Lender;
59
(m) promptly upon receipt of any complaint, order, citation,
notice or other written communication from any Person with respect to, or upon
the Borrower's obtaining knowledge of, (i) the existence or alleged existence
of a violation of any applicable Environmental Law or any Environmental
Liability in connection with any property now or previously owned, leased or
operated by the Borrower or any of its Subsidiaries, (ii) any Release on such
property or any part thereof in a quantity that is reportable under any
applicable Environmental Law, and (iii) any pending or threatened proceeding
for the termination, suspension or non-renewal of any permit required under any
applicable Environmental Law, in each case (x) which could result in liability
or expenses in excess of $1,000,000 or (y) which individually or in the
aggregate could have a Material Adverse Effect, notice thereof; and
(n) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the
Administrative Agent, at the request of any Lender, may reasonably request.
Section 5.2. Payment of Obligations. The Borrower (i) will
pay and discharge, and will cause each Subsidiary to pay and discharge, at or
before maturity, all their respective material obligations and liabilities
(including, without limitation, tax liabilities and claims of materialmen,
warehousemen and the like which if unpaid might by law give rise to a Lien),
except where the same are contested in good faith by appropriate proceedings,
(ii) will maintain, and will cause each Subsidiary to maintain, in accordance
with GAAP, appropriate reserves for the accrual thereof and (iii) shall not
breach or permit any of its Subsidiaries to breach, in any material respect,
or permit to exist any material default under, the terms of any lease,
commitment, contract, instrument or obligation to which it is a party, or by
which its properties or assets are bound, except where the failure to do the
foregoing would not in the aggregate have a Material Adverse Effect.
Section 5.3. Maintenance of Property; Insurance. (a) The
Borrower will keep, and will cause each Subsidiary to keep, all property
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted.
60
(b) The Borrower will maintain, and will cause each of its
Subsidiaries to maintain (either in the Borrower's name or in such Subsidiary's
own name) with financially sound and responsible insurance companies, (i)
insurance on all their respective properties in at least such amounts (with no
greater risk retention) and against at least such risks as are usually
maintained, retained or insured against in the same general area by companies
of established repute engaged in the same or a similar business and (ii)
environmental insurance in respect of the Hicksville Facility in amounts (which
shall not, in any event, be less than aggregate coverage of $10,000,000) and
on terms reasonably satisfactory to the Lenders. The Borrower will furnish to
the Lenders, upon request from the Administrative Agent, information presented
in reasonable detail as to the insurance so carried. All such insurance shall
be provided by insurers having an A.M. Best policyholders rating of not less
than B+ or such other insurers as the Required Lenders may approve in writing.
(c) On or prior to the Closing Date, the Borrower shall cause the
Administrative Agent to be named as an additional insured and loss payee on
each insurance policy required to be maintained pursuant to this Section. The
Borrower will deliver to the Lenders (i) on the Closing Date, a certificate
from the Borrower's insurance broker dated such date showing the amount of
coverage as of such date, and certifying that, in the opinion of such broker,
such amounts are reasonable and customary for companies of established repute
engaged in the same or a similar business, that such policies will include
effective waivers (whether under the terms of any such policy or otherwise) by
the insurer of all claims for insurance premiums against all loss payees and
additional insureds and all rights of subrogation against all loss payees and
additional insureds, and that if all or any part of such policy is canceled,
terminated or expires, the insurer will forthwith give notice thereof to each
additional insured and loss payee and that no cancellation, reduction in
amount or material change in coverage thereof shall be effective until at least
30 days after receipt by each additional insured and loss payee of written
notice thereof, (ii) upon the request of any Lender through the Administrative
Agent from time to time, full information as to the insurance carried, (iii)
within five days of receipt of notice from any insurer, a copy of any notice of
cancellation, nonrenewal or material change in coverage from that existing on
the date of this Agreement and (iv) forthwith, notice of any cancellation or
nonrenewal of coverage by the Borrower.
(d) Any proceeds in excess of $5,000,000 from any Property
Insurance Policy which are payable to the insured in respect of any claim, or
any condemnation award or other compensation in respect of a condemnation (or
any transfer or disposition of property in lieu of condemnation) for which the
Borrower or any of its Subsidiaries receives a condemnation award or other
compensation in excess of $5,000,000, shall be paid to the Administrative
Agent to be held, applied or released for application in accordance with
Section 5 of the Security Agreement and each Property Insurance Policy shall
provide that all insurance proceeds in excess of $5,000,000 per claim which
are payable to the insured shall be adjusted with and payable to the
Administrative Agent. The Borrower hereby appoints the Administrative Agent
as its attorney-in-fact to make proof of loss, claim for insurance and
adjustments with insurers, and to execute or endorse all documents, checks or
drafts in connection with payments under Property Insurance Policies.
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Section 5.4. Conduct of Business and Maintenance of Existence.
The Borrower and its Subsidiaries will continue to engage in business of the
same general type as now conducted by the Borrower and its Subsidiaries, and
will preserve, renew and keep in full force and effect their respective
corporate existences and their respective rights, privileges and franchises
necessary or desirable in the normal conduct of business; provided that
nothing in this Section shall prohibit any merger or consolidation expressly
permitted by Section 5.7.
Section 5.5. Compliance with Laws. The Borrower will comply,
and will cause each Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations and requirements of
governmental authorities (including, without limitation, applicable
Environmental Laws and ERISA and the rules and regulations thereunder), except
(i) where the necessity of compliance therewith is contested in good faith by
appropriate proceedings and (ii) where non-compliance would not have a
Material Adverse Effect.
Section 5.6. Inspection of Property, Books and Records. The
Borrower will keep, and will cause each Subsidiary to keep, proper books of
record and account in which full and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and will
permit, and will cause each Subsidiary to permit, representatives of any
Lender at such Lender's expense to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books
and records and to discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public accountants, all at
such reasonable times upon reasonable prior notice and as often as may
reasonably be requested.
Section 5.7. Mergers and Sales of Assets. The Borrower will
not, and will not permit any of its Subsidiaries to, consolidate or merge with
or into any other Person; provided that nothing in this Section shall prohibit
(i) the Borrower from merging with any Subsidiary if the Borrower is the entity
surviving such merger, (ii) any Subsidiary from merging with any Subsidiary
Guarantor if the corporation surviving the merger is the Borrower or a
Subsidiary Guarantor or (iii) any Subsidiary that is not a Subsidiary Guarantor
from merging with any Subsidiary that is not a Subsidiary Guarantor if the
entity surviving such mergers is a wholly-owned Subsidiary, so long as, in
each case, immediately after giving effect to such merger, no Default shall
have occurred and be continuing. Except for Investments permitted under
Section 5.17, the Borrower will not, and will not permit any of its
Subsidiaries to, make any Asset Sale unless (i) the consideration therefor is
not less than the fair market value of the related asset (as determined in
good faith by the chief financial officer of the Borrower), (ii) the
consideration therefor consists at least 80% of cash and (iii) after giving
effect thereto, the aggregate fair market value of the assets disposed of in
all Asset Sales after the Closing Date would not exceed $20,000,000.
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Section 5.8. Use of Proceeds. The proceeds of the Term Loans
will be used by the Borrower to (a) refinance in full all outstanding Debt
(other than the Mexican Subsidiary Debt and up to $3,000,000 of Debt of Foreign
Subscribers under Working Capital Facilities) of the Borrower, Ruco and their
respective Subsidiaries, and (b) to pay the cash consideration for the
Acquisition (including without limitation to pay related fees and expenses and
to refinance existing Debt of Ruco) in an aggregate amount not to exceed
$118,000,000. The proceeds of the Revolving Loans and the Letters of Credit
will be used by the Borrower (a) to refinance in full all Debt of the Borrower
outstanding under the Corestates Loan Agreement and (b) for general corporate
purposes, including, without limitation, working capital purposes. Neither any
proceeds of the Loans nor any Letter of Credit will be used, directly or
indirectly, for the purpose, whether immediate, incidental or ultimate, of
buying or carrying any "margin stock" within the meaning of Regulation U.
Section 5.9. Negative Pledge. Neither the Borrower nor any
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens created under the Collateral Documents;
(b) mortgage Liens securing the Mexican Subsidiary Debt;
(c) Liens on assets of Foreign Subsidiaries securing Debt of
Foreign Subsidiaries under Working Capital Facilities in an aggregate amount
not exceeding $3,000,000;
(d) Liens arising in the ordinary course of its business which
(i) do not secure Debt or Derivatives Obligations and (ii) do not secure any
single obligation (or class of obligations having a common cause) in an amount
exceeding $5,000,000; and
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(e) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring or leasing
(pursuant to a capital lease) such asset, provided that (i) the aggregate
principal amount of such Debt shall not exceed $5,000,000 and (ii) such Lien
attaches to such asset concurrently with or within 90 days after the
acquisition thereof.
Section 5.10. Limitation on Debt. (a) The Borrower will not,
and will not permit any of its Subsidiaries to, incur or at any time be liable
with respect to any Debt except:
(i) Debt under the Loan Documents;
(ii) intercompany Debt owing to any Obligor;
(iii) unsecured Debt of the Borrower which has no scheduled
principal repayments prior to the first anniversary of the
Revolving Credit Termination Date, that is subordinated on terms
that include blockage of payment on such debt in liquidation and
upon a payment default (unless cured or waived) until all
principal and interest on the Debt hereunder has been paid in
full and blockage of such payment upon any other event of default
at the election of the holders of senior debt or a portion
thereof or agent therefor for a period of up to at least 150 days
(or such lesser period as is customary in the market at the time
of issuance of such debt) and which has other covenants and
events of default that, taken as a whole are no more stringent
than those contained herein, the proceeds of which Debt are used
to prepay the Term Loans and to pay fees and expenses (including,
without limitation, underwriting discounts) related to the
incurrence of such Debt or such prepayment of Term Loans;
(iv) unsecured, subordinated Guarantees by Subsidiary
Guarantors of Debt permitted under clause (iii) above;
(v) the Mexican Subsidiary Debt;
(vi) Debt of Foreign Subsidiaries under Working Capital
Facilities in an amount not exceeding $3,000,000;
(vii) Debt of the Borrower and its Subsidiaries not otherwise
permitted by this Section incurred after the Closing Date in an
aggregate principal amount at any time outstanding not to exceed
$10,000,000; and
(viii) Debt of the Borrower to Sybron Chemie Nederland B.V. and
Sybron Chemical Industries Nederland B.V. outstanding on the date
hereof in an aggregate principal amount not exceeding 34,000,000
Dutch flourins and $4,000,000, respectively, that is subordinated
on terms satisfactory to the Required Lenders.
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(b) The Borrower will not, and will not permit any of its
Subsidiaries to, incur or at any time be liable with respect to any Guarantee
other than the Subsidiary Guarantees and the Guarantees of Debt permitted
under Section 5.10(a).
(c) The Borrower will not, and will not permit any of its
Subsidiaries to, incur or at any time be liable with respect to any
Derivatives Obligations other than Derivatives Obligations for bona fide
hedging purposes (and not for speculative purposes) to protect the Borrower
and its Subsidiaries against interest rate, currency exchange rate or
commodity price risk arising in the ordinary course of its business.
Section 5.11. Leverage Ratio. At any date during any period
set forth below, the Leverage Ratio will not exceed the ratio set forth below
opposite such period:
Period Ratio
------ -----
Closing Date - December 31, 1998 4.00 : 1.00
January 1, 1999 - June 30, 1999 3.75 : 1.00
July 1, 1999 - December 31, 1999 3.50 : 1.00
January 1, 2000 and thereafter 3.00 : 1.00
Section 5.12. Interest Coverage Ratio. The Interest Coverage
Ratio during any period set forth below will not be less than the ratio set
forth below opposite such period:
Period Ratio
------ -----
Closing Date - December 31, 1998 3.00 : 1.00
January 1, 1999 - December 31, 1999 3.25 : 1.00
January 1, 2000 and thereafter 3.50 : 1.00
Section 5.13. Fixed Charge Coverage Ratio. The Fixed Charge
Coverage Ratio will at no time be less than 1.00:1.00.
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Section 5.14. Minimum Consolidated Tangible Net Worth.
Consolidated Tangible Net Worth will at no time be less than an amount equal
to the sum of (i) pro forma Consolidated Tangible Net Worth as at June 30,
1998, after giving effect to the Acquisition and the incurrence and repayment
of Debt effected in connection therewith as if such events had occurred on
such date, less $10,000,000 plus (ii) an amount equal to 50% of the
consolidated net income of the Borrower and its Consolidated Subsidiaries for
each Fiscal Quarter ending after June 30, 1998 but before the date of
determination, in each case, for which such consolidated net income is positive
(but with no deduction on account of negative consolidated net income for any
Fiscal Quarter) plus (iii) 100% of the amount by which Consolidated Tangible
Net Worth is increased after the Closing Date as a result of the issuance and
sale of capital stock of the Borrower or the conversion or exchange of Debt of
the Borrower into capital stock of the Borrower.
Section 5.15. Limitation on Capital Expenditures. Consolidated
Capital Expenditures for the period from the Closing Date through December 31,
1998 will not exceed $7,000,000 and Consolidated Capital Expenditures for each
Fiscal Year thereafter shall not exceed $14,000,000; provided that (i) if the
aggregate amount of Consolidated Capital Expenditures actually made in such
period or any such Fiscal Year shall be less than the limit with respect
thereto set forth above (before giving effect to any increase therein pursuant
to this proviso) (the "Base Amount"), then the amount of such shortfall may be
added to the amount of such Consolidated Capital Expenditures permitted for
the immediately succeeding Fiscal Year (such shortfall amount in any Fiscal
Year, the "Rollover Amount"), any Consolidated Capital Expenditures made
during any Fiscal Year for which any Rollover Amount shall have been so added
being applied, first, to the Base Amount for such Fiscal Year and, second, to
the Rollover Amount added for such Fiscal Year and (ii) for any Fiscal Year
(or portion thereof) following any Business Acquisition permitted under
Section 5.17(b), the Base Amount for such Fiscal Year (or portion) shall be
increased, for each such Business Acquisition, by an amount equal to the
product of (A) the lesser of (x) $5,000,000 and (y) 5% of revenues of the
business acquired in such Business Acquisition for the period of four Fiscal
Quarters most recently ended on or prior to the date of such Business
Acquisition multiplied by (B) (x) in the case of any partial Fiscal Year, a
fraction, the numerator of which is the number of days remaining in such
Fiscal Year after the date of such Business Acquisition and the denominator of
which is 365 (or 366 in a leap year), and (y) in the case of any full Fiscal
Year, 1.
Section 5.16. Restricted Payments; Voluntary Prepayments. (a)
The Borrower will not declare or make any Restricted Payment.
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(b) Neither the Borrower nor any Subsidiary will pay, repay,
prepay, redeem, purchase, acquire or make any other payment in respect of the
principal of any subordinated Debt, except any such Debt owed to the Borrower.
Section 5.17. Investments and Acquisitions. (a) Neither the
Borrower nor any Subsidiary will hold, make or acquire any Investment in any
Person other than:
(i) Investments by the Borrower or any Subsidiary in any of
their respective Subsidiaries;
(ii) Investments in the Borrower or a Subsidiary Guarantor;
(iii) Temporary Cash Investments;
(iv) the Acquisition;
(v) Investments in any Subsidiary that was a Foreign
Subsidiary on the Closing Date if, immediately after such
Investment is made or acquired, the aggregate net book value of
all Investments permitted by this clause does not exceed
$10,000,000;
(vi) Investments by Foreign Subordinates in Foreign
Subsidiaries;
(vii) Investments consisting of Business Acquisitions permitted
under Section 5.17(b)(ii); and
(viii) other Investments made after the Closing Date in an
aggregate amount not to exceed $5,000,000.
(b) Neither the Borrower nor any Subsidiary will consummate any
Business Acquisition other than (i) the Acquisition and (ii) Business
Acquisitions made on or after the Term B Repayment Date in an aggregate amount
not exceeding (a) at any time that the Leverage Ratio is greater than or equal
to 2.5 to 1.0, $15,000,000 and (b) at any time that Leverage Ratio is less
than 2.5 to 1.0, $20,000,000.
Section 5.18. Transactions with Affiliates. The Borrower will
not, and will not permit any Subsidiary to, directly or indirectly, (i) except
for Investments permitted by Section 5.17, pay any funds to or for the account
of any Affiliate, (ii) except for Investments permitted by Section 5.17, make
any investment in any Affiliate (whether by acquisition of stock or
indebtedness, by loan, advance, transfer of property, guarantee or other
agreement to pay, purchase or service, directly or indirectly, any Debt, or
otherwise), (iii) lease, sell, transfer or otherwise dispose of any assets,
tangible or intangible, to any Affiliate, or (iv) participate in, or effect,
any transaction with any Affiliate, except in each case on an arms-length
basis on terms at least as favorable to the Borrower or such Subsidiary as
could have been obtained from a third party that was not an Affiliate;
provided that the foregoing provisions of this Section shall not prohibit any
Subsidiary from declaring or paying any lawful dividend or other payment
ratably in respect of all its capital stock of the relevant class.
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Section 5.19. Limitation on Restrictions Affecting
Subsidiaries. Neither the Borrower nor any of its Subsidiaries will enter
into, or suffer to exist, any agreement with any Person, other than the Loan
Documents, which (a) prohibits or limits the ability of any Subsidiary to (i)
pay dividends or make other distributions or pay any Debt owed to the Borrower
or any Subsidiary, (ii) make loans or advances to the Borrower or any
Subsidiary or (iii) transfer any of its properties or assets to the Borrower
or any Subsidiary or (b) prohibits or limits the ability of the Borrower or
any Subsidiary to create, incur, assume or suffer to exist any Lien upon any
of its property, assets or revenues, whether now owned or hereafter acquired,
except with respect to clauses (a)(iii) and (b) above, restrictions imposed by
purchase money Liens or capital leases permitted by Section 5.9 on the assets
financed or leased thereby.
Section 5.20. Fiscal Year. The Borrower will not change its
Fiscal Year from a fiscal year ending December 31.
Section 5.21. Material Contracts; Occidental Indemnity. (a)
The Borrower will not, and will not permit any of its Subsidiaries to,
voluntarily terminate any license or contract without the written consent of
the Required Lenders, except where such terminations would not in the
aggregate have a Material Adverse Effect.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, take or omit to take any action that would cause or permit
the Occidental Indemnity to cease to be in full force and effect.
Section 5.22. Change in Business. The Borrower will not, and
will not permit any of its Subsidiaries to, engage in any material line of
business substantially different from the specialty chemical business and
those other lines of business carried on by it on the date hereof and any
related businesses.
Section 5.23. Further Assurances. (a) The Borrower will, and
will cause each Subsidiary Guarantor to, at the Borrower's sole cost and
expense, do, execute, acknowledge and deliver all such further acts, deeds,
conveyances, mortgages, assignments, notices of assignment and transfers as
the Administrative Agent shall from time to time reasonably request, which may
be necessary in the reasonable judgment of the Administrative Agent from time
to time to assure, perfect, convey, assign and transfer to the Administrative
Agent the property and rights conveyed or assigned pursuant to the Collateral
Documents.
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(b) All costs and expenses in connection with the grant of any
security interests under the Collateral Documents, including without limitation
reasonable legal fees and other reasonable costs and expenses in connection
with the granting, perfecting and maintenance of any security interests under
the Collateral Documents or the preparation, execution, delivery, recordation
or filing of documents and any other acts as the Administrative Agent may
reasonably request in connection with the grant of such security interests
shall be paid by the Borrower promptly upon demand.
(c) The Borrower will not, and will not permit any of its
Subsidiaries to, enter into or become subject to any agreement which would
impair their ability to comply, or which would purport to prohibit them from
complying, with the provisions of this Section.
(d) The Borrower will:
(i) not later than 30 days after the Closing Date, deliver
to each Agent and each Lender an opinion (addressed to the
Agents, the Issuers, the Swingline Bank and the Lenders) of local
counsel for the Obligors reasonably satisfactory to the
Administrative Agent in each United States jurisdiction in which
an Obligor has its chief executive office or holds a material
amount of inventory or equipment, substantially in the form of
Exhibit E hereto, and covering such additional matters relating
to the transactions contemplated hereby as the Required Lenders
may reasonably request;
(ii) cause each Person which becomes a U.S. Subsidiary after
the Closing Date to (x) become a party to the Subsidiary
Guarantee as guarantor by executing a supplement thereof in form
and substance satisfactory to the Administrative Agent, (y) enter
into the Security Agreement and any other agreements, each in
form and substance satisfactory to the Administrative Agent, as
may be necessary or desirable in order to grant perfected first
priority security interests upon (I) all of its U.S. assets
(including, without limitation, assets acquired by such Person
after it becomes a U.S. Subsidiary, but excluding, (i) motor
vehicles the perfection of a security interest in which is
excluded from the Uniform Commercial Code in the relevant
jurisdiction, equipment subject to purchase money Liens permitted
under Section 5.9 and rights under agreements the grant of a
security interest in which would cause such agreements to be void
or voidable or would constitute a default thereunder; (ii) and
at all times prior to the Assessment Date (and thereafter if the
Term Loans have been repaid in full on or prior to the Assessment
Date), real property and intellectual property assets) and (II)
all of the capital stock and equity interests owned by it
(including, without limitation, capital stock and equity
interests acquired by such Person after it becomes a U.S.
Subsidiary), to secure its obligations under the Subsidiary
Guarantee, provided that not more than 65% of the voting stock of
any Foreign Subsidiary will be required to be so pledged;
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(iii) pledge, or cause to be pledged, pursuant to the Security
Agreement, (x) in the case of any Subsidiary described in clause
(ii) above, all of the capital stock or other equity interests of
such Subsidiary owned directly or indirectly by the Borrower, and
(y) in the case of any Foreign Subsidiary which becomes a
Subsidiary of the Borrower after the Closing Date, 65% of the
voting stock or other voting equity interests of such Foreign
Subsidiary, and 100% of any other capital stock or other equity
interest, owned directly or indirectly by the Borrower;
(iv) take, and cause its Subsidiaries to take, such actions as
may be necessary or desirable to effect the foregoing within 30
days after such Subsidiary is acquired or becomes a U.S.
Subsidiary, including without limitation (x) executing and
delivering, or causing such Subsidiary to execute and deliver, to
the Administrative Agent such number of copies as the
Administrative Agent may specify of such supplements, Security
Agreement and other documents creating security interests and (y)
delivering, or causing Subsidiaries to deliver, such
certificates, evidences of corporate action, legal opinions or
other documents as the Administrative Agent may reasonably
request, all in form and substance reasonably satisfactory to the
Administrative Agent, relating to the satisfaction of the
Borrower's obligations under this Section; and
(v) use commercially reasonable efforts to deliver to the
Administrative Agent, within 60 days after the Closing Date,
waivers of contractual and statutory landlord's, landlord's
mortgagee's and warehouseman's Liens in form and substance
satisfactory to the Administrative Agent under each existing
lease, warehouse agreement or similar agreement to which any
Obligor is a party; provided that such waivers will in any event
be incorporated when the existing lease, warehouse agreement or
similar agreement is amended, renewed or extended and the
Borrower will use commercially reasonable efforts obtain waivers
of both contractual and statutory landlord's, landlord's
mortgagee's and warehouseman's Liens in form and substance
reasonably satisfactory to the Administrative Agent in connection
with each new lease, warehouse agreement or similar agreement
entered into by the any Obligor.
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(e) On or before the Assessment Date (unless the Term Loans are
repaid in full on or before the Assessment Date), the Borrower shall, and shall
cause each Subsidiary Guarantor to:
(i) execute and deliver a Borrower Mortgage or a Subsidiary
Mortgage, as the case may be, and such other security documents
as may be necessary, or as the Administrative Agent may
reasonably request, to subject all of the parcels of real
property designated as "Mortgage Property" on Schedule 4.11 to a
first Lien securing the obligations of the Obligors under the
Loan Documents;
(ii) furnish the Administrative Agent within 60 days after the
Assessment Date with an ALTA extended coverage lender's policy of
title insurance in an aggregate amount reasonably acceptable to
the Agents insuring each Mortgage as a valid, enforceable first
Lien on the applicable Obligor's interest in the real property
purportedly covered thereby, in each case subject only to such
exceptions as are reasonably satisfactory to the Administrative
Agent; provided, that if at any time any such real property is
appraised at a value that is higher than the amount of title
insurance covering such real property, the Borrower shall
promptly increase (or cause the relevant Subsidiary to increase)
the amount of such title insurance to an amount equal to the
appraised value. On or prior to the Assessment Date (unless the
Term Loans shall be repaid in full on or before the Assessment
Date), the Borrower shall furnish a title commitment for such
policy to the Administrative Agent, together with legible copies
of all documents affecting title, which shall show all recording
information. The policy, including each of the exceptions to
coverage contained therein, shall be subject to the approval of
the Administrative Agent, and shall be issued by a title company
acceptable to the Administrative Agent;
(iii) furnish the Administrative Agent with an ALTA survey
with respect to the real property designated as "Mortgage
Property" on Schedule 4.11, in form and substance reasonably
satisfactory to the Administrative Agent, together with the
following endorsements to the title policy referred to in clause
(iv) above: (A) a comprehensive endorsement (ALTA 100 or
equivalent) covering restrictions and other matters, (B) a broad
form zoning endorsement, which specifically ensures that
applicable parking requirements, if any, have been satisfied, (C)
an endorsement ensuring that the Lien of each Mortgage is valid
against any applicable usury laws or other laws prohibiting the
charging of interest on interest, (D) an endorsement ensuring
that the applicable real property has access to a dedicated
public street, (E) a revolving credit endorsement, (F) a
contiguity endorsement, (G) a survey and "same as" endorsement
and (H) an endorsement deleting the so-called "doing business"
exclusion; and
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(iv) deliver to each Agent and each Lender an opinion
(addressed to the Agents, the Issuers, the Swingline Bank and the
Lenders) of local counsel for the Obligors reasonably
satisfactory to the Administrative Agent in the jurisdiction of
organization of each material Foreign Subsidiary any of whose
capital stock is pledged, or required to be pledged, under the
Loan Documents, as to the perfection of such pledge, and covering
such additional matters relating to the transactions contemplated
hereby as the Required Lenders may reasonably request.
Section 5.24. Amendments to Acquisition Documents. The
Borrower will not, and not permit any Subsidiary to, enter into any amendment
or waiver of any material term of any Acquisition Document which would
adversely affect the Lenders without the prior written consent of the Required
Lenders.
ARTICLE 6
Defaults
Section 6.1. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any
Loan, any Swingline Loan or any Reimbursement Obligation;
(b) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement or any other Loan Document, when and as
the same shall become due and payable, and such failure shall continue
unremedied for a period of three days;
(c) the Borrower shall fail to observe or perform any covenant
contained in Section 5.1(g) or Section 5.7 through 5.24, inclusive;
72
(d) the Borrower shall fail to observe or perform any covenant or
agreement (other than those covered by clause 6.1(a), 6.1(b) or 6.1(c) above)
contained in this Agreement or any other Loan Document or any amendment hereof
or thereof for 20 days after the Administrative Agent gives notice thereof to
the Borrower at the request of any Lender;
(e) any representation, warranty, certification or statement made
by any Obligor in any Loan Document or any amendment thereof or in any
certificate, financial statement or other document delivered pursuant to any
Loan Document shall prove to have been incorrect in any material respect when
made (or deemed made);
(f) the Borrower or any Subsidiary shall fail to make one or more
payments in respect of Material Financial Obligations when due or within any
applicable grace period;
(g) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables (or, with the
giving of notice or lapse of time or both, would enable) the holder of such
Debt or any Person acting on such holder's behalf to accelerate the maturity
thereof;
(h) the Borrower or any Subsidiary shall commence a voluntary case
or other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to
the appointment of or taking possession by any such official in an involuntary
case or other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due, or shall take any corporate action to authorize any
of the foregoing;
(i) an involuntary case or other proceeding shall be commenced
against the Borrower or any Subsidiary seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 90 days; or an order for
relief shall be entered against the Borrower or any Subsidiary under the
federal bankruptcy laws as now or hereafter in effect;
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(j) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $1,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate
a Material Plan shall be filed under Title IV of ERISA by any member of the
ERISA Group, any plan administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV of ERISA to terminate, to
impose liability (other than for premiums under Section 4007 of ERISA) in
respect of, or to cause a trustee to be appointed to administer, any Material
Plan; or a condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any Material Plan must be terminated; or
there shall occur a complete or partial withdrawal from, or a default, within
the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the ERISA Group
to incur a current payment obligation in excess of $1,000,000;
(k) judgments or orders for the payment of money exceeding
$2,500,000 in aggregate amount shall be rendered against the Borrower or any
Subsidiary and such judgments or orders shall continue unsatisfied and
unstayed for a period of 10 days;
(l) a Change of Control shall have occurred;
(m) any Lien (other than Liens on Collateral with a value of less
than $100,000) created by any of the Collateral Documents shall at any time
fail to constitute a valid and (to the extent required by the Collateral
Documents) perfected Lien on all of the Collateral purported to be subject
thereto, securing the obligations purported to be secured thereby, with the
priority required by the Loan Documents, or any Obligor shall so assert in
writing;
(n) any Guarantee by any Subsidiary Guarantor pursuant to the
Subsidiary Guarantee shall cease for any reason (other than the merger out of
existence of such Subsidiary Guarantor pursuant to a transaction permitted
hereunder) to be in full force and effect, or any Obligor shall so assert in
writing;
(o) any license of the Borrower or any Subsidiary shall be
terminated or revoked or shall expire unrenewed and unreplaced, except where
such termination, revocation or expiration would not have a Material Adverse
Effect; or
(p) both (i) any of (x) the Occidental Indemnity shall cease for
any reason to be in full force and effect or Occidental shall so assert in
writing, (y) Occidental shall fail, within 90 days of demand therefor, to pay
or reimburse the Borrower or any of its Subsidiaries for any costs,
liabilities or expenses in an aggregate amount exceeding $500,000 arising from
or relating to actual or alleged actions, practices or omissions occurring or
commencing prior to February 12, 1982 relating to possible groundwater, soil
or air contamination at or from the Hicksville Facility itself and operations
there conducted and from the disposal of waste materials from the operations
of the specialty polymer business of Hooker Chemicals & Plastics Corp. at the
Hicksville Facility or (z) any event of the type specified in clause 6.1(h) or
6.1(i) above shall occur with respect to Occidental and (ii) any of (x) the
Borrower shall fail to maintain at least $10,000,000 of insurance covering
environmental remediation costs in respect of the Hicksville Facility, (y) the
provider of such insurance shall deny coverage thereunder, shall fail to pay
claims thereunder in an aggregate amount exceeding $500,000 within 90 days of
demand therefore or shall become subject to an event of the type referred to
in Section 6.01(h) or 6.01(i) or (z) the Borrower and its Subsidiaries shall
incur environmental remediation costs in respect of the Hicksville Facility in
an aggregate amount exceeding $1,000,000 which is not covered by any such
insurance;
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then, and in every such event, the Administrative Agent shall:
(i) if requested by Lenders having more than 50% in
aggregate amount of the then outstanding Commitments, by notice
to the Borrower terminate the Commitments and the Commitments and
the Swingline Commitment shall thereupon terminate;
(ii) if requested by Lenders having more than 50% of the
Aggregate LC Exposure, by notice to each Issuer instruct such
Issuer (x) not to extend the expiry date of any outstanding
Letter of Credit and/or (y) in the case of any Evergreen Letter
of Credit, to give notice to the beneficiary thereof terminating
such Letter of Credit as soon as is permitted by the provisions
thereof, whereupon such Issuer shall deliver notice to that
effect promptly (or as soon thereafter as is permitted by the
provisions of the relevant Letter of Credit) to the beneficiary
of each such Letter of Credit and the Borrower; and
(iii) if requested by Lenders holding Notes (or Swingline
Exposures) evidencing or representing more than 50% in aggregate
outstanding principal amount of the Loans and Swingline Loans, by
notice to the Borrower declare the Loans and Swingline Loans
(together in each case with accrued interest thereon) to be, and
the Loans and Swingline Loans (together in each case with accrued
interest thereon) shall thereupon become, immediately due and
payable without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower;
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provided that, if any Event of Default specified in clause 6.1(h) or 6.1(i)
occurs with respect to the Borrower, then without any notice to the
Borrower or any other act by the Administrative Agent, the Lenders or the
Swingline Bank, the Commitments and the Swingline Commitment shall
thereupon terminate, the Loans and Swingline Loans (together in each case
with accrued interest thereon) shall become immediately due and payable
without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower, and each Issuer shall not extend
the expiry of any outstanding Letter of Credit and/or in the case of any
Evergreen Letter of Credit, shall give notice to the beneficiary thereof
terminating such Letter of Credit as soon as is permitted by the provisions
thereof.
Section 6.2. Notice of Default. The Administrative Agent
shall give notice to the Borrower under Section 6.1(d) promptly upon being
requested to do so by any Lender and shall thereupon notify all the Lenders
thereof.
Section 6.3. Cash Collateral. If an Event of Default shall
have occurred and be continuing and Lenders having more than 50% of the
Aggregate LC Exposure instruct the Administrative Agent to request cash
collateral pursuant to this Section, the Borrower will, promptly after it
receives such request from the Administrative Agent, pay to the Administrative
Agent an amount in immediately available funds equal to the then aggregate
amount available for subsequent drawings under all outstanding Letters of
Credit, to be held by the Administrative Agent, under arrangements
satisfactory to it, to secure the payment of all Reimbursement Obligations
arising from subsequent drawings under such Letters of Credit; provided that,
if any Event of Default specified in clause 6.1(h) or 6.1(i) occurs with
respect to the Borrower, the Borrower shall pay such amount to the
Administrative Agent forthwith without any notice, demand or other act by the
Administrative Agent or the Lenders.
ARTICLE 7
The Agents
Section 7.1. Appointment and Authorization. Each Lender
irrevocably appoints and authorizes each Agent to take such action as agent
on its behalf and to exercise such powers under the Loan Documents as are
delegated to such Agent by the terms hereof or thereof, together with all
such powers as are reasonably incidental thereto.
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Section 7.2. Agents and Affiliates. Each financial
institution serving as an Agent shall have the same rights and powers under
the Loan Documents as any other Lender and may exercise or refrain from
exercising the same as though it were not an Agent, and such financial
institution and its affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary
or affiliate of the Borrower as if it were not an Agent.
Section 7.3. Action by Agents. The obligations of each Agent
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Agents shall not be required to take any
action with respect to any Default, except, in the case of the Administrative
Agent, as expressly provided in Article 6.
Section 7.4. Consultation with Experts. Each Agent may consult
with legal counsel (who may be counsel for any Obligor), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
Section 7.5. Liability of Agents. None of the Agents, their
respective affiliates and the directors, officers, agents and employees of the
Agents and their respective affiliates shall be liable for any action taken or
not taken by it in connection herewith (i) with the consent or at the request
of the Required Lenders (or such different number of Lenders as any provision
hereof expressly requires for such consent or request) or (ii) in the absence
of its own gross negligence or willful misconduct. None of the Agents, their
respective affiliates and the directors, officers, agents and employees of the
Agents and their respective affiliates shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Borrower; (iii) the satisfaction of any condition specified
in Article 3, except receipt of items required to be delivered to such Agent;
(iv) the validity, effectiveness or genuineness of any Loan Document or any
other instrument or writing furnished in connection herewith or (v) the
existence, validity or sufficiency of any Collateral. No Agent shall incur
any liability by acting in reliance upon any notice, consent, certificate,
statement or other writing (which may be a bank wire, telex, facsimile or
similar writing) believed by it to be genuine or to be signed by the proper
party or parties. Without limiting the generality of the foregoing, the use
of the term "agent" in this Agreement with reference to any Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable law. Instead, such term is
used merely as a matter of market custom and is intended to create or reflect
only an administrative relationship between independent contracting parties.
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Section 7.6. Indemnification. The Lenders shall, ratably in
proportion to their Credit Exposures, indemnify each Agent, its affiliates and
the directors, officers, agents and employees of each such Agent and its
affiliates (to the extent not reimbursed by the Borrower) against any cost,
expense (including counsel fees and disbursements), claim, demand, action,
loss or liability (except such as result from such indemnitees' gross
negligence or willful misconduct) that such indemnitees may suffer or incur in
connection with this Agreement or any action taken or omitted by such
indemnitees hereunder.
Section 7.7. Credit Decision. Each Lender acknowledges that
it has, independently and without reliance on any Agent or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance on any
Agent, any Issuer or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking any action under this Agreement.
Section 7.8. Successor Agents. Each Agent may resign at any
time by giving notice thereof to the Lenders and the Borrower. Upon any such
resignation of the Administrative Agent, the Required Lenders shall have the
right to appoint a successor for such resigning Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent gives notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized or licensed
under the laws of the United States or of any State thereof and having a
combined capital and surplus of at least $100,000,000. Upon the acceptance
of its appointment as an Administrative Agent hereunder by a successor, such
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any Agent's resignation hereunder, the provisions
of this Article shall inure to its benefit as to actions taken or omitted to be
taken by it while it was an Agent.
Section 7.9. Agent's Fee. The Borrower shall pay to each
Agent for its own account fees in the amounts and at the times previously
agreed upon by the Borrower and such Agent.
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Section 7.10. Syndication Agent and Documentation Agent.
Xxxxxx Guaranty Trust Company of New York shall have no responsibility,
obligation or liability under the Loan Documents in its capacity as
Documentation Agent.
ARTICLE 8
Change in Circumstances
Section 8.1. Basis for Determining Interest Rate Inadequate or
Unfair. If on or before the first day of any Interest Period for any
Euro-Dollar Loans of any Class:
(a) the Administrative Agent is advised by the Reference Lender
that deposits in dollars in the applicable amounts are not being offered to the
Reference Lender in the relevant market for such Interest Period, or
(b) Lenders having at least 50% in aggregate amount of the
Commitments of such Class (or, in the case of Term Lenders after the Closing
Date, holding at least 50% in aggregate amount of the Term Loans then
outstanding) advise the Administrative Agent that the London Interbank
Offered Rate, as determined by the Administrative Agent will not adequately
and fairly reflect the cost to such Lenders of funding their Euro-Dollar Loans
for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Lenders, whereupon until the Administrative Agent notifies
the Borrower that the circumstances giving rise to such suspension no
longer exist (which notice the Administrative Agent shall give promptly),
(i) the obligations of the Lenders to make Euro-Dollar Loans or to continue
or convert outstanding Loans as or into Euro-Dollar Loans, as the case may
be, shall be suspended and (ii) each outstanding Euro-Dollar Loan shall be
converted into a Base Rate Loan on the last day of the then current
Interest Period applicable thereto. Unless the Borrower notifies the
Administrative Agent at least two Domestic Business Days before the date of
any affected Borrowing for which a Notice of Borrowing has previously been
given that it elects not to borrow on such date, such Borrowing shall
instead be made as a Base Rate Borrowing.
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Section 8.2. Illegality. If the adoption on or after the date
hereof of any applicable law, rule or regulation, or any change on or after
the date hereof in any applicable law, rule or regulation, or any change on or
after the date hereof in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Euro-Dollar Lending Office) with any request or directive on or after the date
hereof (whether or not having the force of law) of any such authority, central
bank or comparable agency, shall make it unlawful or impossible for any Lender
(or its Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar
Loans and such Lender shall so notify the Administrative Agent, the
Administrative Agent shall forthwith give notice thereof to the other Lenders
and the Borrower, whereupon until such Lender notifies the Borrower and the
Administrative Agent that the circumstances giving rise to such suspension no
longer exist, (which notice shall be given promptly) the obligation of such
Lender to make Euro-Dollar Loans, or to convert outstanding Loans into
Euro-Dollar Loans or continue outstanding Loans as Euro-Dollar Loans, shall be
suspended. Before giving any notice to the Administrative Agent pursuant to
this Section, such Lender shall designate a different Euro-Dollar Lending
Office if such designation will avoid the need for giving such notice and will
not, in the judgment of such Lender, be otherwise disadvantageous to such
Lender. If such notice is given, each Euro-Dollar Loan of such Lender then
outstanding shall be converted to a Base Rate Loan either (i) on the last day
of the then current Interest Period applicable to such Euro-Dollar Loan if such
Lender may lawfully continue to maintain and fund such Loan as a Euro-Dollar
Loan to such day or (ii) immediately if such Lender shall determine that it
may not lawfully continue to maintain and fund such Loan as a Euro-Dollar Loan
to such day. Interest and principal on any such Base Rate Loan shall be
payable on the same dates as, and on a pro rata basis with, the interest and
principal payable on the related Euro-Dollar Loans of the other Lenders.
Section 8.3. Increased Cost and Reduced Return. (a) If the
adoption on or after the date hereof of any applicable law, rule or
regulation, or any change on or after the date hereof in any applicable law,
rule or regulation, or any change on or after the date hereof in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) or any Issuer with any request or directive on or after the date
hereof (whether or not having the force of law) of any such authority, central
bank or comparable agency, shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System, but excluding, with respect to any
Euro-Dollar Loan, any such requirement included in the applicable Euro-Dollar
Reserve Percentage), special deposit, insurance assessment or similar
requirement against assets of, deposits with or for the account of, or credit
(including letters of credit and participations therein) extended by, any
Lender (or its Applicable Lending Office) or any Issuer or shall impose on any
Lender (or its Applicable Lending Office) or any Issuer or on the London
interbank market any other condition affecting its Euro-Dollar Loans, its
Notes or its obligation to make Euro-Dollar Loans or its obligations hereunder
in respect of Letters of Credit and the result of any of the foregoing is to
increase the cost to such Lender (or its Applicable Lending Office) or such
Issuer of making or maintaining any Euro-Dollar Loan or issuing or
participating in any Letter of Credit, or to reduce the amount of any sum
received or receivable by such Lender (or its Applicable Lending Office) or
such Issuer under this Agreement or under its Note with respect thereto, by an
amount deemed by such Lender or Issuer to be material, then, within 30 days
after demand by such Lender (with a copy to the Administrative Agent) setting
forth in reasonable detail the facts or circumstances giving rise to such
demand, the Borrower shall pay to such Lender or Issuer such additional amount
or amounts as will compensate such Lender or Issuer for such increased cost or
reduction.
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(b) If any Lender shall have determined that the adoption on or
after the date hereof of any applicable law, rule or regulation regarding
capital adequacy, or any change on or after the date hereof in any such law,
rule or regulation, or any change on or after the date hereof in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive on or after the date
hereof regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on capital of such Lender (or its
Parent) as a consequence of such Lender's obligations hereunder to a level
below that which such Lender (or its Parent) could have achieved but for such
adoption, change, request or directive (taking into consideration its policies
with respect to capital adequacy) by an amount deemed by such Lender to be
material, then from time to time, within 15 days after demand by such Lender
(with a copy to the Administrative Agent), the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender (or
its Parent) for such reduction.
(c) Each Lender and Issuer will promptly notify the Borrower and
the Administrative Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Lender or Issuer to compensation
pursuant to this Section and will designate a different Applicable Lending
Office or LC Office if such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the judgment of such Lender or
Issuer, be otherwise disadvantageous to it. A certificate of any Lender or
Issuer claiming compensation under this Section and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount, such Lender or
Issuer may use any reasonable averaging and attribution methods.
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Section 8.4. Taxes. (a) For the purposes of this Section, the
following terms have the following meanings:
"Taxes" means any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings with respect to any
payment by the Borrower pursuant to this Agreement or under any Note or
Swingline Note, and all liabilities with respect thereto, excluding (i) in the
case of each Lender Party, taxes imposed on its net income, gross receipts,
capital stock and franchise or similar taxes imposed on it, by a jurisdiction
under the laws of which it is organized or in which its principal executive
office is located or in which its Applicable Lending Office or LC Office is
located and (ii) in the case of each Lender or the Swingline Bank, any United
States withholding tax imposed on such payment, but not excluding any portion
of such tax that exceeds the United States withholding tax which would have
been imposed on such a payment to such Lender or Swingline Bank under the laws
and treaties in effect when such Lender or Swingline Bank first becomes a
party to this Agreement.
"Other Taxes" means any present or future stamp or documentary
taxes and any other excise or property taxes, or similar charges or levies,
which arise from any payment made pursuant to this Agreement or under any Note
or the Swingline Note or from the execution, delivery, registration or
enforcement of, or otherwise with respect to, this Agreement or any Note or
the Swingline Note.
(b) All payments by the Borrower to or for the account of any
Lender Party hereunder or under any Note shall be made without deduction for
any Taxes or Other Taxes; provided that, if the Borrower shall be required by
law to deduct any Taxes or Other Taxes from any such payment, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) such Lender Party receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions, (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law and (iv) the Borrower shall promptly furnish to the Administrative Agent,
at its address specified in or pursuant to Section 9.1, the original or a
certified copy of a receipt evidencing payment thereof. If any Lender Party
shall receive from a taxing authority (as a result of any error in the
imposition of Taxes by such taxing authority) a refund of any Taxes paid by
the Borrower pursuant to this subsection 8.04(b) (or in lieu of receiving such
refund, such taxing authority has applied the amount of such refund against
the amount otherwise due from such Lender Party to such taxing authority),
such Lender Party shall promptly pay to the Borrower the amount so received
(or credited) without interest (other than interest received from the taxing
authority with respect to such refund) and net of reasonable out-of-pocket
expenses incurred with respect to receiving such refund (or credit).
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(c) The Borrower agrees to indemnify each Lender Party for the full
amount of Taxes and Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted (whether or not correctly) by any jurisdiction
on amounts payable under this Section) paid by such Lender Party and any
liability (including penalties, interest and expenses other than those
resulting from the failure of such Lender Party to pay to the applicable
taxing authority any Taxes or Other Taxes for which it has received an
indemnity payment from the Borrower) arising therefrom or with respect
thereto. This indemnification shall be paid within 30 days after such Lender
Party makes demand therefor (which demand shall set forth in reasonable detail
the facts or circumstances giving rise to such demand).
(d) Each Lender Party organized under the laws of a jurisdiction
outside the United States, before it signs and delivers this Agreement in the
case of each Lender Party listed on the signature pages hereof and before it
becomes a Lender Party in the case of each other Lender Party, and from time
to time thereafter if requested in writing by the Borrower (but only so long as
such Lender Party remains lawfully able to do so pursuant to United States law
or any applicable treaty), shall provide each of the Borrower and the
Administrative Agent with Internal Revenue Service form 1001, 4224 or W-8, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Lender Party is entitled to benefits under an income tax
treaty to which the United States is a party which exempts such Lender Party
from United States withholding tax or reduces the rate of withholding tax on
payments of interest for the account of such Lender Party or certifying that
the income receivable by it pursuant to this Agreement is effectively
connected with the conduct of a trade or business in the United States. Each
Lender Party other than a corporation that is a "United States person" as
defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as
amended, shall upon request from Borrower, deliver to the Borrower two duly
completed Forms W-9, or a successor applicable form.
(e) For any period with respect to which a Lender Party has failed
to timely provide the Borrower or the Administrative Agent with the
appropriate, accurate and complete form or successor form referred to in
Section 8.4(d) (unless such failure is due to a change in a United States law,
regulation or applicable treaty occurring after the date on which such form
originally was required to be provided), such Lender Party shall not be
entitled to indemnification under Section 8.4(b) or 8.4(c) with respect to
Taxes imposed by the United States; provided that if a Lender Party, that is
otherwise exempt from or subject to a reduced rate of withholding tax, becomes
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Lender Party shall reasonably
request to assist such Lender Party to recover such Taxes; provided that such
Lender Party shall reimburse the Borrower for any reasonable out of pocket
costs or expenses the Borrower incurs in taking such steps.
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(f) If the Borrower is required to pay additional amounts to or
for the account of any Lender pursuant to this Section as a result of a change
in law or treaty occurring after such Lender first became a party to this
Agreement, then such Lender will, at the Borrower's request, change the
jurisdiction of its Applicable Lending Office if, in the judgment of such
Lender, such change (i) will eliminate or reduce any such additional payment
which may thereafter accrue and (ii) is not otherwise disadvantageous to such
Lender.
Section 8.5. Base Rate Loans Substituted for Affected
Euro-Dollar Loans. If (i) the obligation of any Lender to make, or to
continue or convert outstanding Loans as or to, Euro-Dollar Loans has been
suspended pursuant to Section 8.2 or (ii) any Lender has demanded compensation
under Section 8.3 or 8.4 with respect to its Euro-Dollar Loans, and in any
such case the Borrower shall, by at least five Euro-Dollar Business Days'
prior notice to such Lender through the Administrative Agent, have elected
that the provisions of this Section shall apply to such Lender, then, unless
and until such Lender notifies the Borrower that the circumstances giving rise
to such suspension or demand for compensation no longer exist (which notice
shall be given promptly), all Loans which would otherwise be made by such
Lender as (or continued as or converted to) Euro-Dollar Loans shall instead be
Base Rate Loans on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Lenders. If
such Lender notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist, the principal amount of
each such Base Rate Loan shall be converted into a Euro-Dollar Loan on the
first day of the next succeeding Interest Period applicable to the related
Euro-Dollar Loans of the other Lenders.
Section 8.6. Substitution of Bank. If (i) the obligation of
any Lender to make or to convert or continue outstanding Loans as or into
Euro-Dollar Loans has been suspended pursuant to Section 8.2 or (ii) any
Lender has demanded compensation under Section 8.3 or 8.4, the Borrower shall
have the right, with the assistance of the Administrative Agent, to designate
a substitute bank or banks (which may be one or more of the Lenders) mutually
satisfactory to the Borrower and the Agents (and, in the case of a Revolving
Lender, the Issuers and the Swingline Bank) to purchase for cash, pursuant to
an Assignment and Assumption Agreement in substantially the form of Exhibit
G hereto, the outstanding Loans and LC Exposure of such Lender and assume the
Commitment(s) of such Lender, without recourse to or warranty (except a
warranty of title with respect to such Loans and LC Exposure) by, or expense
to, such Lender, for a purchase price equal to the principal amount of all of
such Lender's outstanding Loans and Reimbursement Obligations plus any accrued
but unpaid interest thereon and the accrued but unpaid fees for the account of
such Lender hereunder plus such amount, if any, as would be payable pursuant
to Section 2.11 if the outstanding Loans of such Lender were prepaid in their
entirety on the date of consummation of such assignment.
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ARTICLE 9
Miscellaneous
Section 9.1. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank
wire, telex, facsimile or similar writing) and shall be given to such party:
(a) in the case of the Borrower, any Issuer or Swingline Bank listed on the
signature pages hereof or any Agent, at its address, facsimile number or telex
number set forth on the signature pages hereof, (b) in the case of any Lender,
at its address, facsimile number or telex number set forth in its
Administrative Questionnaire or (c) in the case of any party, at such other
address, facsimile number or telex number as such party may hereafter specify
for the purpose by notice to the Administrative Agent and the Borrower. Each
such notice, request or other communication shall be effective (i) if given by
telex, when transmitted to the telex number referred to in this Section and
the appropriate answerback is received, (ii) if given by facsimile, when
transmitted to the facsimile number referred to in this Section and
confirmation of receipt is received, (iii) if given by mail, three Business
Days after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iv) if given by any other means,
when delivered at the address referred to in this Section; provided that
notices to the Administrative Agent or any Issuer under Article 2 or Article 8
shall not be effective until received.
Section 9.2. No Waivers. No failure or delay by any party
hereto in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by
law.
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Section 9.3. Expenses; Indemnification. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses of the Agents, including
reasonable fees and disbursements of special counsel for the Agents, in
connection with the preparation and administration (provided that expenses of
administration shall not include any Agent's normal operating or overhead
expenses) of the Loan Documents, any waiver or consent thereunder or any
amendment thereof or any Default or alleged Default thereunder and (ii) if an
Event of Default occurs, all out-of-pocket expenses incurred by each Lender
Party, including (without duplication) the fees and disbursements of outside
counsel and the allocated cost of inside counsel, in connection with such
Event of Default and collection, bankruptcy, insolvency and other enforcement
proceedings resulting therefrom.
(b) The Borrower agrees to indemnify each Lender Party, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind (including without limitation reasonable expenses of
investigation by engineers, environmental consultants and similar technical
personnel), including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee (x) in
connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto) brought or
threatened relating to or arising out of any Loan Document or any actual or
proposed use of any Commitments, any Letter of Credit or any proceeds of Loans
hereunder or (y) arising out of, in respect of or in connection with any and
all Environmental Liabilities; provided that no Indemnitee shall have the
right to be indemnified hereunder for such Indemnitee's own gross negligence
or willful misconduct as determined by a court of competent jurisdiction.
Without limiting the generality of the foregoing, the Borrower hereby waives
all rights for contribution or any other rights of recovery with respect to
liabilities, losses, damages, costs and expenses arising under or related to
Environmental Laws that it might have by statute or otherwise against any
Lender, except for such that relate to any property with respect to any period
after the Lenders shall have foreclosed on, or otherwise dispossessed the
Borrower and its Subsidiaries of, such property and that arise from such
Lender's gross negligence or willful misconduct as determined by a court of
competent jurisdiction.
86
Section 9.4. Set-Offs. Each Lender agrees that if it shall, by
exercising any right of set-off or counterclaim or otherwise, receive payment
of a proportion of the aggregate amount of principal and interest then due with
respect to the Loans of any Class and participations in Reimbursement
Obligations held by it which is greater than the proportion received by any
other Lender in respect of the aggregate amount of principal and interest then
due with respect to the Loans of such Class and participations in
Reimbursement Obligations held by such other Lender, the Lender receiving such
proportionately greater payment shall purchase such participations in the
Loans and participations in Reimbursement Obligations held by the other
Lenders, and such other adjustments shall be made, as may be required so that
all such payments of principal and interest with respect to the Loans of such
Class and participations in Reimbursement Obligations held by the Lenders
shall be shared by the Lenders pro rata; provided that nothing in this Section
shall impair the right of any Lender to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise to
the payment of indebtedness of the Borrower other than its indebtedness in
respect of the Loans and Reimbursement Obligations. The Borrower agrees, to
the fullest extent it may effectively do so under applicable law, that any
holder of a participation in a Loan or Reimbursement Obligation, whether or
not acquired pursuant to the foregoing arrangements, may exercise rights of
set-off or counterclaim and other rights with respect to such participation as
fully as if such holder of a participation were a direct creditor of the
Borrower in the amount of such participation.
Section 9.5. Amendments and Waivers. (a) Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Borrower and the
Required Lenders (and, if the rights or duties of any Agent, Issuer or
Swingline Bank are affected thereby, by such Agent, Issuer or Swingline Bank,
as relevant); provided that no such amendment or waiver shall:
(i) unless signed by all the affected Term Lenders, (A)
increase or decrease the Term Commitment of any Lender (except
for a ratable decrease in the Term Commitments of all Term
Lenders) (B) reduce the principal of or rate of interest on any
Term Loan or (C) postpone the date fixed for any payment of
principal of or interest on any Term Loan or for the termination
of any Term Commitment;
(ii) unless signed by all the affected Revolving Lenders, (A)
increase or decrease the Revolving Commitment of any Revolving
Lender (except for a ratable decrease in the Revolving
Commitments of all the Revolving Lenders), (B) reduce the
principal of or rate of interest on any Revolving Loan, (C)
postpone the date fixed for any payment of any Reimbursement
Obligation or any principal of or interest on any Revolving Loan
or any overdue Reimbursement Obligation or any fees payable with
respect to Letters of Credit or the Revolving Commitments or for
the termination of any Revolving Commitment or (D) amend or waive
Section 2.4(d);
87
(iii) unless signed by all the Lenders, (A) change the
percentage of the Commitments of any Class or of the aggregate
unpaid principal amount of the Loans of any Class, or the number
of Lenders, which shall be required for the Lenders or any of
them to take any action under this Section or any other provision
of this Agreement, (B) permit termination of the Subsidiary
Guarantee or (C) effect or permit the release of all or
substantially all of the Collateral;
(iv) unless signed by Term Lenders holding a majority in
aggregate principal amount of the then outstanding Term A
Commitments or Term A Loans and a majority in aggregate principal
amount of the then outstanding Term B Commitments or Term B
Loans, amend clause (c)(i)(y) of Section 2.4; and
(v) unless signed by a Designated Lender or its Designating
Lender, subject such Designated Lender to any additional
obligation or affect its rights hereunder (unless the rights of
all the Lenders of the applicable Class hereunder are similarly
affected).
(b) Any provision of the Collateral Documents or the Subsidiary
Guarantee may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed by each Obligor party thereto and the
Administrative Agent with the consent of the Required Lenders; provided that
no such amendment or waiver shall, unless signed by all the Lenders, effect or
permit a release of all or substantially all of the Collateral or permit
termination of the Subsidiary Guarantee.
Section 9.6. Successors; Participations and Assignments. (a)
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that the Borrower may not assign or otherwise transfer any of its
rights under this Agreement without the prior written consent of all the
Lender Parties.
88
(b) Any Lender may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment
or any or all of its Loans and participations in Letters of Credit. If a
Lender grants any such participating interest to a Participant, whether or not
upon notice to the Borrower and the Administrative Agent, such Lender shall
remain responsible for the performance of its obligations hereunder, and the
Borrower, the Issuers, the Swingline Bank and the Agents shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement pursuant to which
any Lender may grant such a participating interest shall provide that such
Lender shall retain the sole right and responsibility to enforce the
obligations of the Borrower, the Issuers and the Swingline Bank hereunder
including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
participation agreement may provide that such Lender will not agree to any
modification, amendment or waiver of this Agreement described in clause (i),
(ii), (iii)(B) or (iii)(C) of Section 9.5 without the consent of the
Participant. The Borrower agrees that each Participant shall, to the extent
provided in its participation agreement, be entitled to the benefits of
Article 8 with respect to its participating interest. An assignment or other
transfer which is not permitted by Section 9.6(c) or 9.6(d) below shall be
given effect for purposes of this Agreement only to the extent of a
participating interest granted in accordance with this subsection.
(c) Any Lender may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of its
Commitment of any Class, its Loans of any Class or its Letter of Credit
Liabilities and such Assignee shall assume such rights and obligations,
pursuant to an Assignment and Assumption Agreement substantially in the form
of Exhibit G hereto signed by such Assignee and such transferor Lender, with
(and subject to) the subscribed consent of the Borrower and the Syndication
Agent (which shall not be unreasonably withheld or delayed) and solely with
respect to any assignments of the Revolving Commitments, the Issuers and the
Swingline Bank; provided that (i) after giving effect to any proposed
assignment, the Credit Exposure of the transferor Lender shall be equal to $0
or at least $1,000,000 and the Credit Exposure of the proposed Assignee shall
be at least equal to $1,000,000, (ii) if a proposed Assignee is an affiliate
of a transferor Lender or was a Lender immediately before such assignment, no
such consent of the Borrower, the Administrative Agent or, where applicable,
the Issuers and Swingline Bank, shall be required, (iii) if any Agent or any
affiliate of any Agent is a party to such assignment, no such consent of the
Administrative Agent shall be required and (iv) if a Default under Section
6.1(b) or any Event of Default shall have occurred and be continuing, no such
consent of the Borrower shall be required. When such instrument has been
signed and delivered by the parties thereto and recorded as provided in
Section 2.16, and such Assignee has paid to such transferor Lender the
purchase price agreed between them, such Assignee shall be a Lender party to
this Agreement and shall have all the rights and obligations of a Lender with
a Commitment and/or Loans and Reimbursement Obligations as set forth in such
instrument of assumption, and the transferor Lender shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any
assignment pursuant to this subsection, the transferor Lender, the
Administrative Agent and the Borrower shall make appropriate arrangements so
that, if required, a new Note is issued to the Assignee. In connection with
any such assignment (other than an assignment to which any Agent or any
affiliate of any Agent is a party), the transferor Lender shall pay to the
Administrative Agent an administrative fee for processing such assignment in
the amount of $3,000. If the Assignee is not incorporated under the laws of
the United States or a State thereof, it shall deliver to the Borrower and the
Administrative Agent certification as to exemption from deduction or
withholding of United States federal income taxes in accordance with Section
8.4.
89
(d) Any Lender may at any time assign all or any portion of its
rights under this Agreement and its Note to a Federal Reserve Bank. No such
assignment shall release the transferor Lender from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Lender's
rights shall be entitled to receive any greater payment under Section 8.3 or
8.4 than such Lender would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the Borrower's prior
written consent or by reason of the provisions of Section 8.2, 8.3 or 8.4
requiring such Lender to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
Section 9.7. Designated Lenders. (a) Subject to the
provisions of this Section 9.7(a), any Lender may from time to time elect to
designate an Eligible Designee to provide all or a portion of the Loans to be
made by such Lender pursuant to this Agreement; provided that such designation
shall not be effective unless the Borrower and the Administrative Agent
consent thereto. When a Lender and its Eligible Designee shall have signed an
agreement substantially in the form of Exhibit H hereto (a "Designation
Agreement") and the Borrower and the Administrative Agent shall have signed
their respective consents thereto, such Eligible Designee shall become a
Designated Lender for purposes of this Agreement. The Designating Lender shall
thereafter have the right to permit such Designated Lender to provide all or a
portion of the loans to be made by such Designating Lender pursuant to Section
2.1 and the making of such Loans or portions thereof shall satisfy the
obligation of the Designating Lender. As to any Loans or portion thereof made
by it, each Designated Lender shall have all the rights that a Lender making
such Loans or portion thereof would have had under this Agreement and
otherwise; provided that (x) its voting rights under this Agreement shall be
exercised solely by its Designating Lender and (y) its Designating Lender shall
be deemed to hold its Note as agent for its Designated Lender to the extent of
the Loans or portion thereof funded by such Designated Lender. Each
Designating Lender shall act as administrative agent for its Designated Lender
and give and receive notices and other communications on its behalf. Any
payments for the account of any Designated Lender shall be paid to its
Designating Lender as administrative agent for such Designated Lender and
neither the Borrower nor the Administrative Agent shall be responsible for any
Designating Lender's application of such payments. In addition, any
Designated Lender may (i) with notice to, but without the prior written consent
of, the Borrower and the Administrative Agent, provide liquidity and/or credit
facilities to or for the account of such Designated Lender to support the
funding of Loans or portions thereof made by such Designated Lender and (ii)
disclose on a confidential basis any non-public information relating to its
Loans or portions thereof to any rating agency, commercial paper dealer or
provider of any guarantee, surety, credit or liquidity enhancement to such
Designated Lender.
90
(b) Each party to this Agreement agrees that it will not institute
against, or join any other person in instituting against, any Designated Lender
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceeding under any federal or state bankruptcy or
similar law, for one year and a day after all outstanding senior indebtedness
of such Designated Lender is paid in full. The Designating Lender for each
Designated Lender agrees to indemnify, save, and hold harmless each other
party hereto for any loss, cost, damage and expense arising out of its
inability to institute any such proceeding against such Designated Lender.
This Section 9.7(b) shall survive the termination of this Agreement.
Section 9.8. No Reliance on Margin Stock. Each of the Lenders
represents to each Agent and each of the other Lenders that it in good faith is
not relying upon any "margin stock" (as defined in Regulation U) as collateral
in the extension or maintenance of the credit provided for in this Agreement.
Section 9.9. Governing Law; Submission to Jurisdiction. This
Agreement and each Note shall be governed by and construed in accordance with
the laws of the State of New York. The Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The Borrower irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court
has been brought in an inconvenient forum.
Section 9.10. Counterparts; Integration; Effectiveness. This
Agreement may be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement shall become effective on the date
that the Administrative Agent shall have received counterparts hereof signed
by each of the parties hereto (or, in the case of any party as to which an
executed counterpart shall not have been received, receipt by the
Administrative Agent in the form satisfactory to it of facsimile or other
written confirmation from such party of execution of a counterpart hereof by
such party). This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof, other
than the provisions regarding the syndication of the Commitments and the Loans
set forth in the Commitment Letter dated July 29, 1998 among the Borrower, DLJ
Capital Funding, Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation,
Xxxxxx Guaranty Trust Company of New York, JPMSI and Mellon Bank, N.A.
Section 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
91
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
SYBRON CHEMICALS INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
Address: Xxxxxxxxxx Xxxx
X.X. Xxx 00
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
DLJ CAPITAL FUNDING, INC., as Syndication
Agent and as Lender
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Managing Director
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Documentation Agent and as Lender
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Address: 00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile:
MELLON BANK, N.A., as Administrative
Agent, as Lender, as Swingline Bank and as
Issuer
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Address: Xxx Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Facsimile:
COMMITMENT SCHEDULE
------------------------------------------------------------------------------
BANK TERM A TERM B REVOLVER
------------------------------------------------------------------------------
Mellon Bank, N.A. $25.0 million -0- $40.0 million
------------------------------------------------------------------------------
DLJ Capital Funding, $13.0 million $65.0 million -0-
Inc.
------------------------------------------------------------------------------
Xxxxxx Guaranty Trust $7.0 million $35.0 million -0-
Company of New York
------------------------------------------------------------------------------
Total $45.0 million $100.0 million $40.0 million
------------------------------------------------------------------------------
PRICING SCHEDULE
The "Euro-Dollar Margin", "Base Rate Margin" and "Commitment
Fee Rate" for any day are the respective percentages set forth below in
the applicable row under the column corresponding to the Status that
exists on such day:
==============================================================================
Status Level I Level II Level III Level IV Level V
==============================================================================
Euro-Dollar Margin 1.25% 1.50% 1.75% 2.00% 2.25%
------------------------------------------------------------------------------
Base Rate Margin 0% 0.25% 0.50% 0.75% 1.00%
------------------------------------------------------------------------------
Commitment Fee Rate 0.25% 0.30% 0.35% 0.40% 0.50%
==============================================================================
For purposes of this Schedule, the following terms have the
following meanings:
"Applicable Leverage Ratio" means, in respect of any day,
the Leverage Ratio as at the last day of the most recent Fiscal Quarter in
respect of which the Borrower shall have delivered, on or prior to such
day, a certificate pursuant to Section 5.1(c); provided that (i) if the
Borrower shall fail to deliver any such certificate on or prior to the day
so required pursuant to Section 5.1(c), the "Applicable Leverage Ratio"
shall be deemed to be greater than 3.25 to 1.0 from and including the day
upon which such certificate was required to have been delivered to, but
excluding, the day upon which such certificate is delivered and (ii) for
any day from and including the Closing Date to but excluding the first day
upon which such a certificate is or is required to be delivered, the
Applicable Leverage Ratio shall be the Leverage Ratio set forth in the
certificate delivered pursuant to Section 3.1(i).
"Level I Status" exists at any day if the Applicable Leverage
Ratio in respect of such day is less than or equal to 1.75 to 1.0.
"Level II Status" exists at any day if (i) the Applicable
Leverage Ratio in respect of such day is less than or equal to 2.25 to 1.0 and
(ii) Level I Status does not exist.
"Level III Status" exists at any day if (i) the Applicable
Leverage Ratio in respect of such day is less than or equal to 2.75 to 1.0 and
(ii) neither Level I Status nor Level II Status exists.
"Level IV Status" exists at any day if (i) the Applicable
Leverage Ratio in respect of such day is less than or equal to 3.25 to 1.0 and
(ii) none of Level I Status, Level II Status and Level III Status exists.
"Level V Status" exists at any date if, at such date, no other
Status exists.
"Status" refers to the determination which of Level I Status,
Level II Status, Level III Status, Level IV Status or Level V Status exists at
any day.
DISCLOSURE SCHEDULE TO CREDIT AGREEMENT AMONG
SYBRON CHEMICALS INC., DLJ CAPITAL FUNDING, INC.,
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
AND MELLON BANK, N.A.
SCHEDULE 1.01 -- Sellers
------------- -------
The Sellers are the following:
1. Xxxxx X. Xxxxxxxxx
2. Xxxxxxx X. Xxxxxxxx
3. Xxxxxx Xxxxxx
4. Xxxxxx X. Xxxxxxx
DISCLOSURE SCHEDULE TO CREDIT AGREEMENT AMONG
SYBRON CHEMICALS INC., DLJ CAPITAL FUNDING, INC.,
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
AND MELLON BANK, N.A.
SCHEDULE 4.07 -- Environmental
------------- -------------
Possible additional remediation of areas of concern relating
to removal of Tank T1, low pH, and groundwater contamination assessed by the
N.J. Department of Environmental Protection and identified in the Phase I
Environmental Site Assessment for the Birmingham, NJ site prepared by Strata
Environmental dated June 1998 (estimated cost $400,000).
Ongoing groundwater remediation (20 years) identified in the
Phase I Environmental Site Assessment for the Xxx Xxxxxxx site prepared by
Strata Environmental dated June 1998 (estimated cost $70,000 per year for up
to 20 years).
DISCLOSURE SCHEDULE TO CREDIT AGREEMENT AMONG
SYBRON CHEMICALS INC., DLJ CAPITAL FUNDING, INC.,
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
AND MELLON BANK, N.A.
SCHEDULE 4.11 -- Real Estate
------------- -----------
Borrower owns the following real property located within the
United States:
1. Corporate Headquarters and Manufacturing Facility-Ion
Exchange and Toner Polymers (Environmental Products) encompassing
approximately 75 acres of total 500 acre site at X.X. Xxx 00, Xxxxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000
2. Manufacturing Facility-Biochem (Environmental
Products) encompassing approximately 2 acres at X.X. Xxx 000, 000 Xxxxxxx Xxxx
Xxxx, Xxxxx, XX 00000.
3. Packaging and Warehouse Facility encompassing
approximately 5 acres at X.X. Xxx 000, 000 Xxxxxxx Xxxx Xxxx, Xxxxx, XX 00000.
4. Manufacturing Facility-Textile Chemicals encompassing
approximately 22 acres at X.X. Xxx 000, Xxxxxxx 00X, Xxxxxxxx, XX 00000.
5. Manufacturing Facility - Textile Chemicals encompassing
approximately 9 acres at 00 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxx,
XX 00000.
Borrower leases the following real property located within
the United States:
6. Warehouse - approximately 2 acres located at X.X. Xxx
0000, 000 Xxxxxxxxxx Xxxx, Xxxxxx, XX 00000.
7. Warehouse located at 000 Xxxxxxxxx Xxxxxx, Xxxxxx, XX
00000.
8. Warehouse located at 0000 Xxxxxxxx, Xx Xxxx, XX 00000.
9. Warehouse located at 0000 Xxxxx Xxxxxx, Xxxxxxxx, XX
00000.
10. Warehouse and office space located at 000 Xxxxxxxxx,
Xxxxxxx Xxxx 00000.
Ruco Polymer Corporation owns the following real property
located within the United States:
11. Property encompassing approximately 17 acres in
Hicksville, New York.
Ruco Polymer Company of Georgia, LLC owns the following real
property located within the United States:
12. Property encompassing approximately 30 acres in
Columbus, Georgia.
DISCLOSURE SCHEDULE TO CREDIT AGREEMENT AMONG
SYBRON CHEMICALS INC., DLJ CAPITAL FUNDING, INC.,
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
AND MELLON BANK, N.A.
SCHEDULE 5.17 -- Investments
------------- -----------
None.
DISCLOSURE SCHEDULE TO SECURITY AGREEMENT
AMONG SYBRON CHEMICALS INC.,
SYBRON CHEMICALS HOLDINGS INC.,
RUCO POLYMER CORPORATION,
RUCO POLYMER COMPANY OF GEORGIA, LLC
AND MELLON BANK, N.A.
SCHEDULE 1 -- Equity Interests
---------- ----------------
Sybron Chemicals Inc.
---------------------
100 shares of common stock of Sybron Chemicals Holdings Inc.
100,000 Units of Membership Interests in Ruco Polymer Company
of Georgia, LLC
128,640 shares of common stock of Ruco Polymer Corp.
Sybron Chemical Holdings Inc.
-----------------------------
40,000 shares of Sybron Chemical Japan Ltd.
1 share of Sybron Chemicals Canada Ltd.
72,959,362 shares of Sybron Quimica, S.A. de C.V.
1,000 shares of Sybron Chemicals International Holdings Limited
1.6 million shares of common stock of Sybron Chemicals Taiwan
Ltd.
DISCLOSURE SCHEDULE TO SECURITY AGREEMENT
AMONG SYBRON CHEMICALS INC.,
SYBRON CHEMICALS HOLDINGS INC.,
RUCO POLYMER CORPORATION,
RUCO POLYMER COMPANY OF GEORGIA, LLC
AND MELLON BANK, N.A.
SCHEDULE 2(f)
-------------
List of Pledged Instruments and Pledged Certificates of Stock for Borrower's
Subsidiaries:
Sybron Chemical Holdings Inc.
-----------------------------
1. 40,000 shares of Sybron Chemical Japan Ltd.
2. 1 share of Sybron Chemicals Canada Ltd.
3. 72,959,362 shares of Sybron Quimica, S.A. de C.V.
4. 1,000 shares of Sybron Chemicals International Holdings Ltd.
5. 1.6 million shares of common stock of Sybron Chemicals Taiwan
Ltd.
6. January 3, 1997 $916,253.65 promissory note from Sybron
Quimica, S.A. de C.V. of Calle Rio Ocoyoacac #433
7. June 30, 1997 $100,000.00 promissory note from Sybron Quimica,
S.A. de C.V. of Calle Rio Ocoyoacac #433
8. April 7, 1998 $785,000.00 promissory note from Sybron Quimica,
S.A. de C.V. of Calle Rio Ocoyoacac #433
DISCLOSURE SCHEDULE TO SECURITY AGREEMENT
AMONG SYBRON CHEMICALS INC.,
SYBRON CHEMICALS HOLDINGS INC.,
RUCO POLYMER CORPORATION,
RUCO POLYMER COMPANY OF GEORGIA, LLC
AND MELLON BANK, N.A.
SCHEDULE OF PATENTS, TRADEMARKS AND COPYRIGHTS
----------------------------------------------
In addition to the Patents, Patent Licenses, Trademarks,
Trademark Applications and Trademark Licenses on the lists attached hereto,
Borrower is the registered owner of the following patents and trademarks:
Patents:
US Patent # 5,102,977 XxXxxxxxxx et al. Issued: April 7, 1992
Internally Catalyzed Sulfonate Bearing Hydroxyl Terminated
Powder Coating Polyesters
US Patent # 4,910,287 XxXxxxxxxx et al. Issued: March 20, 1990
1-Methyl Imidazole Catalyzed Terminated Polyester
Trademark:
Name Country Number Renewal Date
---- ------- ------ ------------
RUCOFLEX Benelux 305,289 12/6/01
France 1,715,467 11/9/01
Italy 627,465 11/7/01
Switzerland 400,092 10/27/01
United Stated 854,396 8/13/08
RUCOTHANE Benelux 305,288 12/6/01
France 1,662,797 5/17/01
Italy 608,092 12/17/00
Switzerland 389,053 11/15/10
United Stated 881,925 12/9/99
RUCOTE United States 1,589,575 4/3/00
Canada TMA 490,595 2/26/13
Mexico 526,838 6/13/06
CTM (ECC) SN 550,418 Pending
Trademark:
Name Country Number Renewal Date
---- ------- ------ ------------
RUCO United States 1,728,749 11/3/02
Canada TMA 467,850 12/18/11
Mexico SM 197,903 Pending
CTM (EEC) SN 266,395 Pending
EXHIBIT A
[TERM A/TERM B/REVOLVING] NOTE
New York, New York
___________ __, _____
For value received, SYBRON CHEMICALS INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of
______________________ (the "Lender"), for the account of its Applicable
Lending Office, the unpaid principal amount of each [Term A/TermB/Revolving]
Loan made by the Lender to the Borrower pursuant to the Credit Agreement
referred to below on the maturity date provided for in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount of each
such [Term A/TermB/Revolving]Loan on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or
other immediately available funds at the office of Mellon Bank N.A., at its
address specified in or pursuant to Section 9.01 of the Credit Agreement.
All [Term A/TermB/Revolving] Loans made by the Lender, the
[respective Classes and] Types thereof and all repayments of the principal
thereof shall be recorded by the Lender and, if the Lender so elects in
connection with any transfer or enforcement hereof, appropriate notations to
evidence the foregoing information with respect to each such [Term
A/TermB/Revolving] Loan then outstanding may be endorsed by the Lender on the
schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof; provided that the failure of the Lender to make (or
any error in making) any such recordation or endorsement shall not affect the
Borrower's obligations hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit
Agreement dated as of July 31, 1998 among Sybron Chemicals Inc., certain
financial institutions, Mellon Bank N.A., as Administrative Agent, DLJ Capital
Funding Inc., as Syndication Agent, and Xxxxxx Guaranty Trust Company of New
York, as Documentation Agent (as the same may be amended from time to time,
the "Credit Agreement"). Terms defined in the Credit Agreement are used
herein with the same meanings. Reference is made to the Credit Agreement for
provisions for the prepayment hereof and the acceleration of the maturity
hereof.
SYBRON CHEMICALS INC.
By:
--------------------------------
Name:
Title:
2
LOANS AND PAYMENTS OF PRINCIPAL
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Amount of Type of Principal Notation Made
Date Loan Loan Repaid By
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EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [NAME OF ASSIGNOR]
(the "Assignor") and [NAME OF ASSIGNEE] (the "Assignee").
WHEREAS, this Assignment and Assumption Agreement (the
"Agreement") relates to the Credit Agreement dated as of July __, 1998 among
SYBRON CHEMICALS INC. (the "Borrower"), the Assignor and the other Lenders
party thereto, DLJ CAPITAL FUNDING, INC., as Syndication Agent (the
"Syndication Agent"), [MELLON BANK, N.A.], as Administrative Agent (the
"Administrative Agent"), and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
Documentation Agent (together with the Administrative Agent and the Syndication
Agent, the "Agents") (as amended from time to time, the "Credit Agreement");
[WHEREAS, as provided under the Credit Agreement, the Assignor
has a Term A Commitment to make Term A Loans to the Borrower in an aggregate
principal amount at any time outstanding not to exceed $____________;]
[WHEREAS, Term A Loans made to the Borrower by the Assignor
under the Credit Agreement in the aggregate principal amount of $__________
are outstanding at the date hereof;]
[WHEREAS, as provided under the Credit Agreement, the Assignor
has a Term B Commitment to make Term B Loans to the Borrower in an aggregate
principal amount at any time outstanding not to exceed $____________;]
[WHEREAS, Term B Loans made to the Borrower by the Assignor
under the Credit Agreement in the aggregate principal amount of $__________
are outstanding at the date hereof;]
[WHEREAS, as provided under the Credit Agreement, the Assignor
has a Revolving Commitment to make Revolving Loans to the Borrower and
participate in Letters of Credit in an aggregate principal amount at any time
outstanding not to exceed $____________;]
[WHEREAS, Revolving Loans made to the Borrower by the Assignor
under the Credit Agreement in the aggregate principal amount of $__________ are
outstanding at the date hereof;]
[WHEREAS, Letters of Credit with a total amount available for
drawing thereunder of $__________ are outstanding at the date hereof;] and
WHEREAS, the Assignor proposes to assign to the Assignee all of
the rights of the Assignor under the Credit Agreement in respect of [all] [a
portion] of its [Term A] [Term B] [Revolving] Commitment thereunder in an
amount equal to $__________ (the "Assigned Amount"), together with a
corresponding portion of each of its outstanding [Term A Loans] [Term B Loans]
[Revolving Loans and Letter of Credit Liabilities], and the Assignee proposes
to accept such assignment and assume the corresponding obligations of the
Assignor under the Credit Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
Section 1. Definitions. All capitalized terms not otherwise
defined herein have the respective meanings set forth in the Credit Agreement.
Section 2. Assignment. The Assignor hereby assigns and sells
to the Assignee all of the rights of the Assignor under the Credit Agreement
to the extent of the Assigned Amount, and the Assignee hereby accepts such
assignment from the Assignor and assumes all of the obligations of the
Assignor under the Credit Agreement to the extent of the Assigned Amount,
including the purchase from the Assignor of the corresponding portion of the
principal amount of the [Term A Loans] [Term B Loans] [Revolving Loans and
Letter of Credit Liabilities] of the Assignor outstanding at the date hereof.
Upon the execution and delivery hereof by the Assignor and the Assignee [and
the execution of the consent attached hereto by the Borrower[, the Issuing
Banks,] and the Administrative Agent](1) and the payment of the amounts
specified in Section ? required to be paid on the date hereof and the
satisfaction of all other applicable conditions referred to in Section 9.06(c)
of the Credit Agreement (i) the Assignee shall, as of the date hereof, succeed
to the rights and be obligated to perform the obligations of a Lender under
the Credit Agreement with a [Term A] [Term B] [Revolving] Commitment in an
amount equal to the Assigned Amount and acquire the rights of the Assignor
with respect to a corresponding portion of each of its outstanding [Term A
Loans] [Term B Loans] [Revolving Loans and Letter of Credit Liabilities] and
(ii) the [Term A] [Term B] [Revolving] Commitment of the Assignor shall, as
of the date hereof, be reduced by the Assigned Amount, and the Assignor shall
be released from its obligations under the Credit Agreement to the extent such
obligations have been assumed by the Assignee. The assignment provided for
herein shall be without recourse to the Assignor.
Section 3. Payments. As consideration for the assignment and
sale contemplated in Section ? hereof, the Assignee shall pay to the Assignor
on the date hereof in Federal funds the amount heretofore agreed between
them.(2) It is understood that commitment fees accrued before the date hereof
are for the account of the Assignor and such fees accruing on and after the
date hereof with respect to the Assigned Amount are for the account of the
Assignee. Each of the Assignor and the Assignee agrees that if it receives
any amount under the Credit Agreement which is for the account of the other
party hereto, it shall receive the same for the account of such other party to
the extent of such other party's interest therein and promptly pay the same to
such other party.
[Section 4. Consent of the Borrower[, the Issuing Banks,] and
the Administrative Agent. This Agreement is conditioned upon the consent of
the Borrower[, the Issuing Banks, the Swing Loan Lender] and the
Administrative Agent pursuant to Section 9.06(c) of the Credit Agreement.](3)
[Section 5. Note. Pursuant to Section 9.06(c) of the Credit
Agreement, the Borrower has agreed to execute and deliver a Note payable to
the order of the Assignee to evidence the assignment and assumption provided
for herein.](4)
------------
(1) Delete if consent is not required.
(2) Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any
portion of any upfront fee to be paid by the Assignor to the Assignee. It
may be preferable in an appropriate case to specify these amounts
generically or by formula rather than as a fixed sum.
(3) Delete if consent is not required.
(4) Delete if (i) the Assignee is already a Lender, since it already has a
Note or (ii) Assignee does not have a Note because it has not
requested one under the Credit Agreement.
2
Section 6. No Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no
responsibility with respect to, the solvency, financial condition or
statements of any Obligor, or the validity and enforceability of the
obligations of any Obligor in respect of the Credit Agreement or any Note or
any other Loan Document. The Assignee acknowledges that it has, independently
and without reliance on the Assignor, and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and will continue to be responsible for
making its own independent appraisal of the business, affairs and financial
condition of the Obligors.
Section 7. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
Section . Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their duly authorized officers as of
the date first above written.
[NAME OF ASSIGNOR]
By:
-------------------------------
Name:
Title:
[NAME OF ASSIGNEE]
By:
-------------------------------
Name:
Title:
3
[The undersigned consent to the foregoing assignment.
[NAME OF BORROWER]
By:
-------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
Administrative Agent
By:
-------------------------------
Name:
Title: ]
[NAME OF EACH ISSUING BANK]
By:
-------------------------------
Name:
Title: ]
4
EXHIBIT H
DESIGNATION AGREEMENT
dated as of ________________, _____
Reference is made to the Credit Agreement dated as of July __,
1998 (as amended from time to time, the "Credit Agreement") among Sybron
Chemicals Inc., a Delaware corporation (the "Borrower"), the lenders party
thereto (the "Lenders"), DLJ Capital Funding, Inc., as Syndication Agent,
Xxxxxx Guaranty Trust Company of New York, as Documentation Agent, and Mellon
Bank, N.A., as Administrative Agent (the "Administrative Agent"). Terms
defined in the Credit Agreement are used herein with the same meaning.
_________________ (the "Designator") and ________________ (the
"Designee") agree as follows:
1. The Designator designates the Designee as its Designated Lender
under the Credit Agreement and the Designee accepts such designation.
2. The Designator makes no representations or warranties and assumes
no responsibility with respect to the financial condition of the Borrower or
any other Obligor or the performance or observance by the Borrower or any
other Obligor of any of its obligations under the Credit Agreement, any other
Loan Document or any other instrument or document furnished pursuant thereto.
3. The Designee confirms that it is an Eligible Designee, appoints
and authorizes the Designator as its administrative agent and attorney-in-fact
and grants the Designator an irrevocable power of attorney to receive payments
made for the benefit of the Designee under the Credit Agreement and the other
Loan Documents and to deliver and receive all communications and notices under
the Credit Agreement and the other Loan Documents, if any, that the Designee
is obligated to deliver or has the right to receive thereunder, and
acknowledges that the Designator retains the sole right and responsibility to
vote under the Credit Agreement and the other Loan Documents, including,
without limitation, the right to approve any amendment or waiver of any
provision of the Credit Agreement or any other Loan Document, and agrees that
the Designee shall be bound by all such votes, approvals, amendments and
waivers and all other agreements of the Designator pursuant to or in
connection with the Credit Agreement or any other Loan Document, all subject
to Section 9.05(a)(ii) of the Credit Agreement.
4. The Designee confirms that it has received a copy of the Credit
Agreement and each other Loan Document, together with copies of the most recent
financial statements referred to in Article 4 or delivered pursuant to Article
5 of the Credit Agreement and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Designation Agreement, agrees that it will, independently and without
reliance upon the Administrative Agent, the Designator or any other Agent,
Issuer, Swingline Bank or Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking any action it may be permitted to take under
the Credit Agreement or any other Loan Document.
5. Following the execution of this Designation Agreement by the
Designator and the Designee and the consent hereto by the Borrower, it will be
delivered to the Administrative Agent for its consent. This Designation
Agreement shall become effective when the Administrative Agent consents hereto
or on any later date specified on the signature page hereof.
6. Upon the effectiveness hereof, (a) the Designee shall have the
right to make Loans or portions thereof as a Lender pursuant to Section 2.01
of the Credit Agreement and the rights of a Lender related thereto and (b) the
making of any such Loans or portions thereof by the Designee shall satisfy the
obligations of the Designator under the Credit Agreement to the same extent,
and as if, such Loans or portions thereof were made by the Designator.
7. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties have caused this Designation
Agreement to be executed by their respective officers hereunto duly
authorized, as of the date first above written.
Effective Date(5):______ , ____
------------
(5) This date should be no earlier than the date of the Administrative Agent's
consent hereto.
[NAME OF DESIGNATOR]
By:
-------------------------------
Title:
Name:
[NAME OF DESIGNEE]
By:
-------------------------------
Title:
Name:
The undersigned consent to the foregoing designation.
SYBRON CHEMICALS INC.
By:
-------------------------------
Title:
Name:
, as Administrative Agent
MELLON BANK, N.A.
By:
-------------------------------
Title:
Name:
