EXHIBIT 99(b)(1)
EXECUTION COPY
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CREDIT AGREEMENT
dated as of
September 30, 1997
among
HUNTSMAN PACKAGING CORPORATION,
as Borrower
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
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CHASE SECURITIES INC.,
as Arranger
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[6700-578]
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms 1
SECTION 1.02. Classification of Loans and Borrowings 30
SECTION 1.03. Terms Generally 30
SECTION 1.04. Accounting Terms; GAAP; Treatment of
Unrestricted Subsidiaries 31
SECTION 1.05. Certain Interim Financial Calculations 32
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments 33
SECTION 2.02. Loans and Borrowings 33
SECTION 2.03. Requests for Borrowings 34
SECTION 2.04. Swingline Loans 35
SECTION 2.05. Letters of Credit 37
SECTION 2.06. Funding of Borrowings 43
SECTION 2.07. Interest Elections 44
SECTION 2.08. Termination and Reduction of Commitments 45
SECTION 2.09. Repayment of Loans; Evidence of Debt 47
SECTION 2.10. Amortization of Term Loans 48
SECTION 2.11. Prepayment of Loans 49
SECTION 2.12. Fees 52
SECTION 2.13. Interest 54
SECTION 2.14. Alternate Rate of Interest 55
SECTION 2.15. Increased Costs 55
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SECTION 2.16. Break Funding Payments 57
SECTION 2.17. Taxes 58
SECTION 2.18. Payments Generally; Pro Rata Treatment;
Sharing of Setoffs 59
SECTION 2.19. Mitigation Obligations; Replacement of Lenders 61
SECTION 2.20. Extension of Revolving Maturity Date 62
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers 63
SECTION 3.02. Authorization; Enforceability 63
SECTION 3.03. Governmental Approvals; No Conflicts 63
SECTION 3.04. Financial Condition; No Material Adverse Change 64
SECTION 3.05. Properties 65
SECTION 3.06. Litigation and Environmental Matters 65
SECTION 3.07. Compliance with Laws and Agreements 66
SECTION 3.08. Investment and Holding Company Status 66
SECTION 3.09. Taxes 66
SECTION 3.10. ERISA 66
SECTION 3.11. Disclosure 67
SECTION 3.12. Subsidiaries 67
SECTION 3.13. Insurance 67
SECTION 3.14. Labor Matters 68
SECTION 3.15. Solvency 68
SECTION 3.16. Security Documents 68
SECTION 3.17. Federal Reserve Regulations 69
SECTION 3.18. Existing Intercompany Indebtedness 70
SECTION 3.19. Agreements and Business Status as of Effective Date 70
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ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date 70
SECTION 4.02. Each Credit Event 76
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Statements and Other Information 77
SECTION 5.02. Notices of Material Events 79
SECTION 5.03. Information Regarding Collateral 80
SECTION 5.04. Existence; Conduct of Business 80
SECTION 5.05. Payment of Obligations 80
SECTION 5.06. Maintenance of Properties 81
SECTION 5.07. Insurance 81
SECTION 5.08. Casualty and Condemnation 82
SECTION 5.09. Books and Records; Inspection and Audit Rights 82
SECTION 5.10. Compliance with Laws 83
SECTION 5.11. Use of Proceeds and Letters of Credit 83
SECTION 5.12. Additional Subsidiaries 83
SECTION 5.13. Further Assurances 84
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Indebtedness 85
SECTION 6.02. Certain Equity Securities 87
SECTION 6.03. Liens 87
SECTION 6.04. Fundamental Changes 89
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SECTION 6.05. Investments, Loans, Advances, Guarantees and Acquisitions 89
SECTION 6.06. Asset Sales 92
SECTION 6.07. Sale and Lease-Back Transactions 93
SECTION 6.08. Hedging Agreements 93
SECTION 6.09. Restricted Payments; Certain Payments of Indebtedness 93
SECTION 6.10. Transactions with Affiliates 94
SECTION 6.11. Restrictive Agreements 94
SECTION 6.12. Amendment of Material Documents 95
SECTION 6.13. Capital Expenditures 95
SECTION 6.14. Leverage Ratio 96
SECTION 6.15. Interest Coverage Ratio 96
SECTION 6.16. Minimum Net Worth 96
SECTION 6.17. Designated Senior Debt 97
ARTICLE VII
EVENTS OF DEFAULT 97
ARTICLE VIII
THE ADMINISTRATIVE AGENT 100
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices 103
SECTION 9.02. Waivers; Amendments 104
SECTION 9.03. Expenses; Indemnity; Damage Waiver 106
SECTION 9.04. Successors and Assigns 108
SECTION 9.05. Survival 111
SECTION 9.06. Counterparts; Integration; Effectiveness 112
SECTION 9.07. Severability 112
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SECTION 9.08. Right of Setoff 112
SECTION 9.09. Governing Law; Jurisdiction; Consent
to Service of Process 113
SECTION 9.10. WAIVER OF JURY TRIAL 114
SECTION 9.11. Headings 114
SECTION 9.12. Confidentiality 114
SECTION 9.13. Interest Rate Limitation 115
SCHEDULES:
Schedule 1.01(a) -- Mortgaged Properties
Schedule 2.01 -- Commitments
Schedule 3.05 -- Owned or Leased Property
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 3.16(a) -- Actions to Pledge Stock of Foreign Subsidiaries
Schedule 3.16(d) -- Mortgage Filing Offices
Schedule 3.19 -- Affiliate Agreements
Schedule 5.07 -- Insurance Levels
Schedule 6.01 -- Existing Indebtedness
Schedule 6.03 -- Existing Liens
Schedule 6.05 -- Existing Investments
Schedule 6.10 -- Affiliate Transactions
Schedule 6.11 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Forms of Opinion of Borrower's Counsel
Exhibit B-2 -- Form of Opinion of Borrower's Utah Counsel
Exhibit B-3 -- Form of Opinion of Local Counsel
Exhibit B-4 -- Form of Opinion of Foreign Counsel
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Exhibit C -- Form of Guarantee Agreement
Exhibit D -- Form of Indemnity, Subrogation and Contribution
Agreement
Exhibit E -- Form of Pledge Agreement
Exhibit F -- Form of Security Agreement
CREDIT AGREEMENT dated as of September 30,
1997, among HUNTSMAN PACKAGING CORPORATION, a Utah
corporation, the LENDERS party hereto, and THE
CHASE MANHATTAN BANK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"ACQUISITION AGREEMENT" means the agreement or agreements entered into in
connection with the CT Film Acquisition.
"ADJUSTED CONSOLIDATED NET WORTH" means, as of any date, the capital stock
and additional paid-in capital of the Borrower plus retained earnings (or minus
accumulated deficit) of the Borrower, plus Excluded Charges, all determined as
of such date on a consolidated basis in accordance with GAAP (except that such
determination
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shall be made without taking into account Unrestricted Subsidiaries).
"ADJUSTED LIBO RATE" means, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" means The Chase Manhattan Bank, in its capacity as
administrative agent for the Lenders hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. The
Borrower acknowledges that Xxxxxxx Xxxxxx is an Affiliate of the Borrower. Each
of Xxx X. Xxxxxxxx and Xxxxxxxx (and their respective Affiliates) shall be
deemed to be an Affiliate of the Borrower for purposes of Section 6.10.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change
in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate shall be
effective from and including the effective date of such change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"APPLICABLE PERCENTAGE" means, with respect to any Revolving Lender, the
percentage of the total Revolving Commitments represented by such Xxxxxx's
Revolving Commitment. If the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
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"APPLICABLE RATE" means, for any day with respect to any ABR Loan or
Eurodollar Loan that is a Revolving Loan or a Term Loan, or with respect to the
commitment fees payable hereunder, as the case may be, the applicable rate per
annum set forth below under the caption "ABR Spread", "Eurodollar Spread" or
"Commitment Fee Rate", as the case may be, based upon the Leverage Ratio as of
the most recent determination date; PROVIDED that until the delivery to the
Administrative Agent, pursuant to Section 5.01(b), of the Borrower's
consolidated financial statements for the Borrower's first full fiscal quarter
ending after the Effective Date, the "Applicable Rate" shall be the applicable
rate per annum set forth below in Category 1:
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LEVERAGE RATIO ABR SPREAD EURODOLLAR SPREAD COMMITMENT FEE RATE
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CATEGORY 1
Equal to or greater than 4.00 to 1.00 0.75% 2.00% 0.500%
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CATEGORY 2
Less than 4.00 to 1.00 but greater than 3.50
to 1.00 0.50% 1.75% 0.400%
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CATEGORY 3
Less than or equal to 3.50 to 1.00 but greater
than 3.00 to 1.00 0.25% 1.50% 0.375%
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CATEGORY 4
Less than or equal to 3.00 to 1.00 but greater
than 2.50 to 1.00 0.00% 1.25% 0.350%
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CATEGORY 4
Less than or equal to 2.50 to 1.00 0.00% 1.00% 0.300%
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For purposes of the foregoing, (a) the Leverage Ratio shall be determined
as of the end of each fiscal quarter of the Borrower's fiscal year based upon
the Borrower's consolidated financial statements delivered pursuant to Section
5.01(a) or (b) and (b) each change in the Applicable Rate resulting from a
change in the Leverage Ratio shall be effective during the period commencing on
and including the third day (such day, the "Applicable Rate Determination Date")
after the date of delivery to the Administrative Agent of such consolidated
financial statements indicating such change and ending on the date immediately
preceding the effective date of the next such change; PROVIDED that the Leverage
Ratio shall be deemed to be in Category 1 (i) at any time that an Event of
Default has occurred and is continuing or (ii) if the Borrower fails to deliver
the consolidated financial statements required to be delivered by it
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pursuant to Section 5.01(a) or (b), during the period from the expiration of the
time for delivery thereof until such consolidated financial statements are
delivered.
"ASSESSMENT RATE" means, for any day, the annual assessment rate in effect
on such day that is payable by a member of the Bank Insurance Fund classified as
"well-capitalized" and within supervisory subgroup "B" (or a comparable
successor risk classification) within the meaning of 12 C.F.R. Part 327 (or any
successor provision) to the Federal Deposit Insurance Corporation for insurance
by such Corporation of time deposits made in dollars at the offices of such
member in the United States; PROVIDED that if, as a result of any change in any
law, rule or regulation, it is no longer possible to determine the Assessment
Rate as aforesaid, then the Assessment Rate shall be such annual rate as shall
be determined by the Administrative Agent to be representative of the cost of
such insurance to the Lenders.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent and the
Borrower.
"BASE CD RATE" means the sum of (a) the Three-Month Secondary CD Rate
multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"BOARD" means the Board of Governors of the Federal Reserve System of the
United States of America.
"BORROWER" means Huntsman Packaging Corporation, a Utah corporation.
"BORROWER AMOUNT" means, at any date, the sum of:
(a) the aggregate amount of Excess Cash Flow for each fiscal year of
the Borrower completed prior to such date for which financial statements
have been delivered pursuant to Section 5.01 (commencing with the fiscal
year ending December 31, 1998), less the
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sum of (i) all prepayments of Term Borrowings required to be made pursuant
to Section 2.11(c) and (ii) all reductions of Revolving Commitments
required to be made pursuant to Section 2.08(d) in respect of such Excess
Cash Flow; plus
(b) the aggregate Net Proceeds received by the Borrower after the
Effective Date and prior to such date in respect of Prepayment Events
described in clause (c) of the definition of "Prepayment Event", less the
sum of (i) all prepayments of Term Borrowings required to be made pursuant
to clause (ii) of Section 2.11(b) in respect of such Net Proceeds, (ii) all
reductions of Revolving Commitments required to be made pursuant to
Section 2.08(d) in respect of such Net Proceeds and (iii) any portion of
such Net Proceeds reserved for a Permitted Acquisition as provided in
clause (ii) of Section 2.11(e); minus
(c) the sum of all utilizations of the Borrower Amount pursuant to any
provisions of this Agreement permitting utilization of the Borrower Amount.
Any provisions of this Agreement that permit an action to be taken by
utilizing the Borrower Amount shall be construed to permit such action only to
the extent that the Borrower Amount is a positive amount at that time.
"BORROWING" means (a) Loans of the same Class and Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect, or (b) a Swingline Loan.
"BORROWING REQUEST" means a request by the Borrower for a Borrowing in
accordance with Section 2.03.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
remain closed; PROVIDED that, when used in connection with a Eurodollar Loan,
the term "BUSINESS DAY" shall also exclude any day on which banks generally are
not open for dealings in dollar deposits in the London interbank market. For
purposes of this Agreement "Pioneer Day" as recognized in the State of Utah
shall not be a Business Day.
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"CAPITAL EXPENDITURES" means, for any period, without duplication, (a) the
additions to property, plant and equipment and other capital expenditures of the
Borrower and its Restricted Subsidiaries that are (or would be) set forth in a
consolidated statement of cash flows of the Borrower and its Restricted
Subsidiaries for such period prepared in accordance with GAAP and (b) Capital
Lease Obligations incurred by the Borrower and its Restricted Subsidiaries
during such period.
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"CASH INTEREST EXPENSE" means, for any period, Consolidated Interest
Expense for such period excluding any portion thereof in respect of interest not
required to be paid in cash during such period or within one year thereafter.
"CERCLA" means the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. Section 9601 et seq.
"CHANGE IN CONTROL" means, at any time, (a) prior to an IPO, the failure by
the Control Group to collectively own and control at least a sufficient amount
of the outstanding voting capital stock of the Borrower to elect at least a
majority of the Board of Directors of the Borrower; (b) after an IPO, the
acquisition of beneficial ownership, directly or indirectly, by any Person or
group (within the meaning of the Securities Exchange Act of 1934 and the rules
of the Securities and Exchange Commission thereunder as in effect on the date
hereof) other than the Control Group, of shares representing more than 35% of
the aggregate ordinary voting power represented by the issued and outstanding
capital stock of the Borrower; (c) occupation of a majority of the seats (other
than vacant seats) on the board of directors of the Borrower by Persons who were
neither (i) nominated
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by members of the Control Group or the board of directors of the Borrower nor
(ii) appointed by directors so nominated; or (d) the acquisition of direct or
indirect Control of the Borrower by any Person or group other than the Control
Group.
"CHANGE IN LAW" means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) compliance by any Lender or the Issuing Bank
(or, for purposes of Section 2.15(b), by any lending office of such Lender or by
such Xxxxxx's or the Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"CLASS", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Term
Loans or Swingline Loans and, when used in reference to any Commitment, refers
to whether such Commitment is a Revolving Commitment or Term Loan Commitment.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COLLATERAL" means any and all "Collateral", as defined in any applicable
Security Document.
"COLLATERAL AGENT" means The Chase Manhattan Bank, in its capacity as
collateral agent for the Secured Parties under the Security Documents.
"COMMITMENT" means a Revolving Commitment, Term Loan Commitment, or any
combination thereof (as the context requires).
"CONSOLIDATED EBITDA" means, for any period, Consolidated Net Income for
such period, plus, without duplication and to the extent deducted from revenues
in determining Consolidated Net Income, the sum of (a) the aggregate amount of
Consolidated Interest Expense for such period, (b) the aggregate amount of
letter of credit
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fees paid during such period, (c) the aggregate amount of income tax expense for
such period, (d) all amounts attributable to depreciation and amortization for
such period, (e) all extraordinary charges and losses during such period and any
Excluded Charges during such period, (f) for the period ended December 31, 1997,
$9.5 million, (g) for the period ended March 31, 1998, $7.0 million, (h) for the
period ended June 30, 1998, $4.5 million and (i) for the period ended
September 30, 1998, $2.0 million, and minus, without duplication and to the
extent added to revenues in determining Consolidated Net Income for such period,
all extraordinary gains during such period, all as determined on a consolidated
basis with respect to the Borrower and the Restricted Subsidiaries in accordance
with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the interest
expense, both expensed and capitalized (including the interest component in
respect of Capital Lease Obligations), accrued or paid by the Borrower and the
Restricted Subsidiaries during such period (net of payments made or received
under interest rate protection agreements), determined on a consolidated basis
in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, for any period, net income or loss of the
Borrower and its Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, provided that there shall be
excluded (a) the income of any Unconsolidated Subsidiary and any Person in which
any other Person (other than the Borrower or any of the Restricted Subsidiaries
or any director holding qualifying shares in compliance with applicable law or
any other third party holding a de minimus number of shares in order to comply
with other similar requirements) has a joint interest, except to the extent of
the amount of dividends or other distributions actually paid to the Borrower or
any of its Restricted Subsidiaries by such Person during such period, and
(b) the income (or loss) of any Person accrued prior to the date it becomes a
Restricted Subsidiary or is merged into or consolidated with the Borrower or any
of its Restricted Subsidiaries or the date that Person's assets are acquired by
the Borrower or any of its Restricted Subsidiaries.
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"CONTROL" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
"CONTROL GROUP" means Xxx X. Xxxxxxxx, his spouse, direct descendants and
their spouses, immediate family, any entities that are Controlled by any of the
foregoing individuals and/or by a trust of the type described hereafter, and/or
any trusts solely for the benefit of any of the foregoing.
"CT FILM ACQUISITION" means the acquisition by the Borrower from Huntsman
Polymers Corporation (formerly known as Xxxxxx Corporation) of all or
substantially all the assets comprising Huntsman Polymers Corporation's CT Film
Division.
"DEFAULT" means any event or condition that constitutes an Event of Default
or that upon notice, lapse of time or both would, unless cured or waived, become
an Event of Default.
"DOLLARS" or "$" refers to lawful money of the United States of America.
"EFFECTIVE DATE" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"ENVIRONMENTAL LAWS" means all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by or with any Governmental Authority, relating in
any way to the environment, preservation or reclamation of natural resources,
handling, treatment, storage, disposal, Release or threatened Release of any
Hazardous Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including, but not limited to, any liability for damages, natural resource
damage, costs of environmental remediation, administrative oversight
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costs, fines, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not incorporated)
that, together with the Borrower, is treated as a single employer under
Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of
ERISA and Section 412 of the Code, is treated as a single employer under Section
414 of the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
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concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"EURODOLLAR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"EVENT OF DEFAULT" has the meaning assigned to such term in Article VII.
"EXCESS CASH FLOW" means, for any period, the sum (without duplication) of:
(a) Consolidated Net Income for such period, adjusted to exclude any
gains or losses attributable to Prepayment Events; PLUS
(b) depreciation, amortization and other non-cash charges or losses
deducted in determining such Consolidated Net Income for such period; PLUS
(c) the sum of (i) the amount, if any, by which Net Working Capital
decreased during such period plus (ii) the amount, if any, by which the
consolidated deferred revenues of the Borrower and its consolidated
Restricted Subsidiaries increased during such period plus (iii) the
aggregate principal amount of Capital Lease Obligations and other
Indebtedness incurred during such period to finance Capital Expenditures
and the investments referred to in clause (e) below, to the extent that
mandatory principal payments in respect of such Indebtedness would not be
excluded from clause (f) below when made; MINUS
(d) the sum of (i) any non-cash gains included in determining such
Consolidated Net Income for such period plus (ii) the amount, if any, by
which Net Working Capital increased during such period plus (iii) the
amount, if any, by which the consolidated deferred revenues of the Borrower
and its consolidated Restricted Subsidiaries decreased during such period;
MINUS
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(e) the sum of (i) Capital Expenditures for such period, (ii) cash
consideration paid in respect of Permitted Acquisitions during such period,
including cash generated by the issuance of Indebtedness, and
(iii) investments made in cash, including cash generated by the issuance of
Indebtedness, pursuant to clause (h) of Section 6.05 during such period;
PROVIDED that amounts shall not be deducted pursuant to this clause (e) in
determining Excess Cash Flow to the extent that such Capital Expenditures,
Permitted Acquisitions or investments are made (A) by utilizing the
Borrower Amount, (B) by utilizing Net Proceeds of an event that otherwise
would be a "Prepayment Event" as provided in the proviso to the definition
of "Prepayment Event" or (C) in reliance upon sub-clause (ii) of
Section 2.11(e); minus
(f) the aggregate principal amount of Indebtedness repaid or prepaid
by the Borrower and its consolidated Restricted Subsidiaries during such
period, excluding (i) Indebtedness in respect of Revolving Loans and
Letters of Credit, (ii) Term Loans prepaid pursuant to Section 2.11(b) or
(c), (iii) repayments or prepayments of Indebtedness financed by incurring
other Indebtedness, to the extent that mandatory principal payments in
respect of such other Indebtedness would, pursuant to this clause (f), be
deducted in determining Excess Cash Flow when made, (iv) Indebtedness
referred to in clauses (iii), (iv) and (ix) of Section 6.01 and
(v) Indebtedness referred to in clauses (v), (vi) and (viii) of
Section 6.01, to the extent but only to the extent that such Indebtedness
was incurred by utilizing the Borrower Amount.
"EXCLUDED CHARGES" means (a) the non-recurring charges to be incurred in
respect of the restructurings, plant closings or similar actions expected to be
taken in connection with the Borrower's facilities in Scunthorpe, U.K. and
Birmingham, Alabama and the CT Film Acquisition, and (b) any other such
non-recurring charges incurred in respect of any restructurings, plant closings
or similar actions during the eighteen-month period commencing on
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the Effective Date, provided that the cash portion of charges referred to in
this clause (b) shall be limited to $8,000,000.
"EXCLUDED TAXES" means, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.19(b)), any withholding tax that is imposed on amounts
payable hereunder to such Foreign Lender at the time such Foreign Lender becomes
a party to this Agreement (or designates a new lending office) or is
attributable to such Foreign Lender's failure to comply with Section 2.17(e),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 2.17(a).
"EXISTING INTERCOMPANY INDEBTEDNESS" means all Indebtedness owed by the
Borrower and its Subsidiaries to Huntsman and its subsidiaries (other than the
Borrower and its Subsidiaries), together with accrued interest thereon.
"EXISTING LETTERS OF CREDIT" means the following letters of credit entered
into by the Borrower and its Subsidiaries and outstanding as of the Effective
Date: (i) the Irrevocable Standby Letter of Credit dated July 30, 1996 issued by
U.S. Bank of Utah in the amount of $378,000 to Huntsman United Films Corporation
on behalf of Old National Trust Company and (ii) the Irrevocable Standby Letter
of Credit dated December 16, 1996 issued by U.S. Bank of Utah in the amount of
20
$5,250,000 to Huntsman Packaging Corporation on behalf of Fleet National Bank.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"FINANCIAL OFFICER" means the chief financial officer, principal accounting
officer, treasurer or controller of the Borrower.
"FINANCING TRANSACTIONS" means (i) the repayment by the Borrower of the
Existing Intercompany Indebtedness, (ii) the issuance by the Borrower of the
Senior Subordinated Notes, and (iii) the execution, delivery and performance by
each Loan Party of the Loan Documents to which it is to be a party, the
borrowing of Loans, the use of the proceeds thereof and the issuance of Letters
of Credit hereunder.
"FOREIGN ASSETS" means the assets of or shares or other ownership interests
in the Foreign Subsidiaries.
"FOREIGN LENDER" means any Lender that is organized under the laws of a
jurisdiction other than the United States of America, each State thereof and the
District of Columbia.
"FOREIGN SUBSIDIARY" means any Subsidiary that is organized under the laws
of a jurisdiction other than the United States of America or any State thereof
or the District of Columbia.
"GAAP" means, subject to Section 1.04, generally accepted accounting
principles in the United States of America.
21
"GOVERNMENTAL AUTHORITY" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "PRIMARY OBLIGOR") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; PROVIDED that the term "Guarantee" shall not include endorsements
for collection or deposit in the ordinary course of business.
"GUARANTEE AGREEMENT" means the Guarantee Agreement, substantially in the
form of Exhibit C, made by the Subsidiary Loan Parties in favor of the
Administrative Agent for the benefit of the Secured Parties.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to
22
any Environmental Law, including any material listed as a hazardous substance
under Section 101(14) of CERCLA.
"HEDGING AGREEMENT" means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
"HUNTSMAN" mean Huntsman Corporation, a Utah corporation.
"IMMATERIAL SUBSIDIARIES" mean, at any date, Restricted Subsidiaries
affected by one or more events described in clause (h), (i), (j) or (k) of
Article VII that (a) have (in the aggregate) consolidated assets representing
less than 5% of the consolidated assets of the Borrower and its Restricted
Subsidiaries as of such date, determined in accordance with GAAP, and (b) had
(in the aggregate) consolidated revenues and consolidated net income, in each
case for the period of four consecutive fiscal quarters of the Borrower most
recently ended as of such date for which financial statements have been
delivered pursuant to Section 5.01, representing less than 5% of the revenues
and consolidated net income, respectively, of the Borrower and its Restricted
Subsidiaries for such period, determined in accordance with GAAP; PROVIDED that
all Restricted Subsidiaries affected by events described in such clauses of
Article VII shall be consolidated for purposes of determining compliance with
clauses (a) and (b) above.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding accounts payable incurred in the ordinary course of business that are
not overdue by more than 60 days, unless the payment thereof is being contested
in good faith), (e) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing
23
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (f) all Guarantees by such Person of Indebtedness of others,
(g) all Capital Lease Obligations of such Person, (h) all obligations,
contingent or otherwise, of such Person as an account party in respect of
letters of credit and letters of guaranty and (i) all obligations, contingent or
otherwise, of such Person in respect of bankers' acceptances. The Indebtedness
of any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor. Notwithstanding
the foregoing, "Indebtedness" shall not include (i) deferred taxes or
(ii) unsecured indebtedness of the Borrower or any Subsidiary to finance
insurance premiums in a principal amount not in excess of the casualty and other
insurance premiums to be paid by the Borrower or any Restricted Subsidiary for a
three-year period beginning on the date of any incurrence of such indebtedness.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT" means the Indemnity,
Subrogation and Contribution Agreement, substantially in the form of Exhibit D,
among the Borrower, the Subsidiary Loan Parties and the Administrative Agent.
"INFORMATION MEMORANDUM" means the Confidential Information Memorandum
dated July 1997 relating to the Borrower and the Transactions.
"INTEREST ELECTION REQUEST" means a request by the Borrower to convert or
continue a Revolving Borrowing or Term Borrowing in accordance with
Section 2.07.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan (other than
a Swingline Loan), the last day of each March, June, September and December, (b)
with respect to any Eurodollar Loan, the last day of the
24
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurodollar Borrowing with an Interest Period of more than three
months' duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months' duration after the first day of such
Interest Period, and (c) with respect to any Swingline Loan, the day that such
Loan is required to be repaid.
"INTEREST PERIOD" means, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect; PROVIDED, that (i) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (ii) any Interest Period
that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter shall
be the effective date of the most recent conversion or continuation of such
Borrowing.
"IPO" means the issuance by the Borrower of shares of its common stock to
the public pursuant to a bona fide underwritten public offering.
"ISSUING BANK" means The Chase Manhattan Bank, in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.05(i) and such other financial institutions as may become
Issuing Banks as provided in Section 2.05(i). The Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by Affiliates
of the Issuing Bank, subject to the consent of the Borrower which shall not be
unreasonably withheld, in which case the term "Issuing Bank" shall include any
such Affiliate with respect to
25
Letters of Credit issued by such Affiliate. In the event that there is more
than one Issuing Bank at any time, references herein and in the other Loan
Documents to the Issuing Bank shall be deemed to refer to the Issuing Bank in
respect of the applicable Letter of Credit or to all Issuing Banks, as the
context requires. Notwithstanding the foregoing, the U.S. Bank of Utah shall be
deemed to be an Issuing Bank with respect to the Existing Letters of Credit but
shall not be obligated to issue any additional Letters of Credit hereunder.
"LC AVAILABILITY PERIOD" means the period from and including the Effective
Date to but excluding the earlier of (a) the date that is five Business Days
prior to the Revolving Maturity Date and (b) the date of termination of the
Revolving Commitments.
"LC DISBURSEMENT" means a payment made by the Issuing Bank pursuant to a
Letter of Credit.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Revolving Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"LENDERS" means the Persons listed on Schedule 2.01 and any other Person
that shall have become a party hereto pursuant to an Assignment and Acceptance,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"LETTER OF CREDIT" means any letter of credit issued pursuant to this
Agreement. Each Existing Letter of Credit shall be deemed to constitute a
Letter of Credit issued hereunder on the Effective Date for all purposes of the
Loan Documents.
"LEVERAGE RATIO" means, on any date, the ratio of (a) Total Debt as of such
date to (b) Consolidated EBITDA for the period of four consecutive fiscal
quarters of the
26
Borrower most recently ended as of such date, all determined on a consolidated
basis in accordance with GAAP.
"LIBO RATE" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO RATE" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
"LOAN DOCUMENTS" means this Agreement, the Guarantee Agreement, the
Indemnity, Subrogation and Contribution Agreement and the Security Documents.
"LOAN PARTIES" means the Borrower and the Subsidiary Loan Parties.
27
"LOANS" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"MARGIN STOCK" shall have the meaning assigned to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise, of
the Borrower and the Restricted Subsidiaries taken as a whole, (b) the ability
of any Loan Party to perform any of its obligations under any Loan Document or
(c) the rights of or benefits available to the Lenders under any Loan Document.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of the Borrower and its Restricted Subsidiaries in an
aggregate principal amount exceeding $5,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the Borrower
or any Restricted Subsidiary in respect of any Hedging Agreement at any time
shall be the maximum aggregate amount (giving effect to any netting agreements)
that the Borrower or such Restricted Subsidiary would be required to pay if such
Hedging Agreement were terminated at such time.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MORTGAGE" means a mortgage, deed of trust, assignment of leases and rents,
leasehold mortgage or other security document granting a Lien on any Mortgaged
Property to secure the Obligations. Each Mortgage shall be satisfactory in
form and substance to the Collateral Agent.
"MORTGAGED PROPERTY" means, initially, each parcel of real property and the
improvements thereto owned by a Loan Party and identified on Schedule 1.01(a),
and includes each other parcel of real property and improvements thereto with
respect to which a Mortgage is granted pursuant to Section 5.12 or 5.13.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
28
"NET PROCEEDS" means, with respect to any event (a) the cash proceeds
received by the Borrower and the Restricted Subsidiaries in respect of such
event including (i) any cash received in respect of any non-cash proceeds, but
only as and when received, (ii) in the case of a casualty, insurance proceeds,
and (iii) in the case of a condemnation or similar event, condemnation awards
and similar payments, net of (b) the sum of (i) all reasonable fees and
out-of-pocket expenses paid by the Borrower and the Restricted Subsidiaries to
third parties (other than to the Borrower or a Subsidiary) in connection with
such event, (ii) in the case of a sale, transfer or other disposition of an
asset (including pursuant to a sale and leaseback transaction or a casualty or
other insured damage or condemnation or similar proceeding), the amount of all
payments required to be made by the Borrower and the Restricted Subsidiaries as
a result of such event to repay Indebtedness (other than Loans) secured by such
asset or otherwise subject to mandatory prepayment as a result of such event,
and (iii) the amount of all taxes paid (or reasonably estimated to be payable)
by the Borrower and the Restricted Subsidiaries, and the amount of any reserves
established by the Borrower and the Restricted Subsidiaries to fund contingent
liabilities reasonably estimated to be payable, in each case during the year
that such event occurred or the next succeeding year and that are directly
attributable to such event (as determined reasonably and in good faith by the
chief financial officer of the Borrower).
"NET WORKING CAPITAL" means, at any date, (a) the consolidated current
assets of the Borrower and its consolidated Restricted Subsidiaries as of such
date (excluding cash and Permitted Investments) minus (b) the consolidated
current liabilities of the Borrower and its consolidated Restricted Subsidiaries
as of such date (excluding current liabilities in respect of Indebtedness). Net
Working Capital at any date may be a positive or negative number. Net Working
Capital increases when it becomes more positive or less negative and decreases
when it becomes less positive or more negative.
"OBLIGATIONS" has the meaning assigned to such term in the Security
Agreement.
29
"OTHER TAXES" means any and all current or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"PERFECTION CERTIFICATE" means a certificate in the form of Annex 1 to the
Security Agreement or any other form approved by the Collateral Agent.
"PERMITTED ACQUISITION" means any acquisition (other than the CT Film
Acquisition) by the Borrower or a Restricted Subsidiary of the Borrower of all
or substantially all the assets of, or all the shares of capital stock of or
other equity interests in, a Person or division or line of business of a Person
if, immediately after giving effect thereto, (a) no Default has occurred and is
continuing or would result therefrom, (b) all transactions related thereto are
consummated in accordance with applicable laws, (c) each Subsidiary formed for
the purpose of or resulting from such acquisition shall be a Restricted
Subsidiary and all the capital stock of each such Subsidiary shall be owned
directly by the Borrower or a Restricted Subsidiary of the Borrower and all
actions required to be taken with respect to such acquired or newly formed
Subsidiary under Sections 5.12 and 5.13 have been taken, (d) the Borrower and
its Restricted Subsidiaries are in compliance, on a pro forma basis after giving
effect to such acquisition, with the covenants contained in Sections 6.14, 6.15
and 6.16 recomputed as at the last day of the most recently ended fiscal quarter
of the Borrower for which financial statements are available, as if such
acquisition (and any related incurrence or repayment of Indebtedness, with any
new Indebtedness being deemed to be amortized over the applicable testing period
in accordance with its terms, and assuming that any Revolving Loans borrowed in
connection with such acquisition are repaid with excess cash balances when
available) had occurred on the first day of each relevant period for testing
such compliance and (e) the Borrower has delivered to the Administrative
30
Agent an officers' certificate to the effect set forth in clauses (a), (b), (c)
and (d) above, together with all relevant financial information for the Person
or assets to be acquired. For purposes of determining pro forma compliance with
the covenants referred to in clause (d) above and for purposes of Section 1.05
as provided therein, the Borrower may give effect to synergistic benefits
anticipated to be realized in connection with the proposed acquisition to the
extent (but only to the extent) that the Borrower would be permitted to give
effect to such benefits in pro forma financial statements to be filed with the
SEC and prepared in accordance with Article 11 of Regulation S-X under the
Securities Exchange Act of 1934, as amended, and the applicable interpretations
of the SEC, in each case as in effect on the date of this Agreement.
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, processors',
landlords', repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not overdue
by more than 30 days or are being contested in compliance with Section
5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII; and
31
(f) Liens disclosed on title policies delivered to the Administrative Agent
prior to the execution of this Agreement in respect of any Mortgaged Property
and easements, zoning restrictions, rights-of-way and similar encumbrances on
real property imposed by law or arising in the ordinary course of business that
do not secure any monetary obligations and do not materially detract from the
value of the affected property or interfere with the ordinary conduct of
business of the Borrower or any Subsidiary;
PROVIDED that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" means (i) a marketable obligation, maturing within
two years after issuance thereof, issued or guaranteed by the United States of
America or an instrumentality or agency thereof, (ii) a certificate of deposit
or banker's acceptance, maturing within one year after issuance thereof, issued
by any Lender, or a national or state bank or trust company or a European,
Canadian or Japanese bank in each case having capital, surplus and undivided
profits of at least $100,000,000 and whose long-term unsecured debt has a rating
of "A" or better by S&P or A2 or better by Moody's or the equivalent rating by
any other nationally recognized rating agency (provided that the aggregate face
amount of all investments in certificates of deposit or banker's acceptances
issued by the principal offices of or branches of such European or Japanese
banks located outside the United States shall not at an time exceed 33-1/3% of
all investments described in this definition), (iii) open market commercial
paper, maturing within 270 days after issuance thereof, which has a rating of A1
or better by S&P or P1 or better by Xxxxx'x, or the equivalent rating by any
other nationally recognized rating agency, (iv) repurchase agreements and
reverse repurchase agreements with a term not in excess of one year with any
financial institution which has been elected a primary government securities
dealer by the Federal Reserve Board or whose securities are rated AA-or better
by S&P or Aa3 or better by Moody's or the equivalent rating by any other
nationally recognized rating agency relating to marketable direct obligations
issued or unconditionally guaranteed by the United States
32
of America or any agency or instrumentality thereof and backed by the full faith
and credit of the United States of America, (v) "Money Market" preferred stock
maturing within six months after issuance thereof or municipal bonds issued by a
corporation organized under the laws of any state of the United States, which
has a rating of "A" or better by S&P or Moody's or the equivalent rating by any
other nationally recognized rating agency and (vi) tax exempt floating rate
option tender bonds backed by letters of credit issued by a national or state
bank whose long-term unsecured debt has a rating of AA or better by S&P or Aa2
or better by Moody's or the equivalent rating by any other nationally recognized
rating agency.
"PERSON" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"PLAN" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA, Section 412 of the Code or
Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"PLEDGE AGREEMENT" means the Pledge Agreement, substantially in the form of
Exhibit E, among the Borrower, the Subsidiaries party thereto and the Collateral
Agent for the benefit of the Secured Parties.
"PREPAYMENT EVENT" means:
(a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction) of any property or asset of the Borrower or
any Restricted Subsidiary, other than (i) dispositions described in clauses
(a), (b), (c), (d), (e) and (h) of Section 6.06 and (ii) other dispositions
resulting in aggregate Net Proceeds not exceeding $1,000,000 during any
fiscal year of the Borrower; or
33
(b) any casualty or other insured damage to, or any taking under power
of eminent domain or by condemnation or similar proceeding of, any property
or asset of the Borrower or any Restricted Subsidiary, other than such
events resulting in aggregate Net Proceeds not exceeding $1,000,000 during
any fiscal year of the Borrower; or
(c) the issuance by the Borrower or any Restricted Subsidiary of any
equity securities, or the receipt by the Borrower or any Restricted
Subsidiary of any capital contribution, other than (i) any such issuance of
equity securities to, or receipt of any such capital contribution from, the
Borrower or a Restricted Subsidiary and (ii) the issuance by the Borrower
of equity securities to officers and directors of the Borrower and its
Restricted Subsidiaries resulting in aggregate Net Proceeds not exceeding
$1,000,000 during any fiscal year of the Borrower; or
(d) the incurrence by the Borrower or any Restricted Subsidiary of any
Indebtedness, other than Indebtedness permitted by Section 6.01;
PROVIDED that, with respect to any event described in clause (a) or (b) above,
if the Borrower shall deliver a certificate of a Financial Officer to the
Administrative Agent at the time of such event (i) setting forth the Borrower's
or a Restricted Subsidiary's intent to use the Net Proceeds of such event to
repair the assets that are the subject of such event, or to use the Net Proceeds
to acquire other assets to be used in a line of business permitted under
Section 6.04(b), in each case within 360 days of receipt of such Net Proceeds,
or, in the case of Net Proceeds resulting from the disposition of Foreign
Assets, to finance a Permitted Acquisition in the United States or Canada within
540 days of receipt of such Net Proceeds and (ii) certifying that no Default has
occurred and is continuing, then such event shall not constitute a Prepayment
Event except to the extent the Net Proceeds therefrom are not so used at the end
of such 360-day or 540-day period, as applicable, at which time such event shall
be deemed a Prepayment Event with Net Proceeds equal to the Net Proceeds so
remaining unused; PROVIDED FURTHER that the provisions of the foregoing
34
exception allowing Net Proceeds to be used to finance Permitted Acquisitions in
Canada shall be subject to the requirement that all Subsidiaries resulting from
any such Permitted Acquisitions must be treated as Subsidiary Loan Parties for
purposes of this Agreement.
"PRIME RATE" means the rate of interest per annum publicly announced from
time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"REGISTER" has the meaning set forth in Section 9.04.
"REGULATION G" shall mean Regulation G of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"REGULATION U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"REGULATION X" shall mean Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"RELEASE" has the meaning set forth in Section 101(22) of CERCLA.
"REQUIRED LENDERS" means, at any time, Lenders having Revolving Exposures,
Term Loans and unused Commitments representing more than 50% of the sum of the
total Revolving Exposures, outstanding Term Loans and unused Commitments at such
time.
"RESTRICTED PAYMENT" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any shares of any class of
capital stock of the Borrower or any Restricted
35
Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancelation or termination of any such
shares of capital stock of the Borrower or any Restricted Subsidiary or any
option, warrant or other right to acquire any such shares of capital stock of
the Borrower or any Restricted Subsidiary.
"RESTRICTED SUBSIDIARY" means any Subsidiary that is not an Unrestricted
Subsidiary.
"REVOLVING AVAILABILITY PERIOD" means the period from and including the
Effective Date to but excluding the earlier of the Revolving Maturity Date and
the date of termination of the Revolving Commitments.
"REVOLVING COMMITMENT" means, with respect to each Lender, the commitment,
if any, of such Lender to make Revolving Loans and to acquire participations in
Letters of Credit and Swingline Loans hereunder, expressed as an amount
representing the maximum aggregate amount of such Xxxxxx's Revolving Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.08 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Revolving Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Revolving Commitment, as applicable. The initial aggregate amount of the
Lenders' Revolving Commitments is $150,000,000.
"REVOLVING EXPOSURE" means, with respect to any Lender at any time, the sum
of the outstanding principal amount of such Xxxxxx's Revolving Loans and its LC
Exposure and Swingline Exposure at such time.
"REVOLVING LENDER" means a Lender with a Revolving Commitment or, if the
Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"REVOLVING LOAN" has the meaning set forth in Section 2.01.
"REVOLVING MATURITY DATE" means September 30, 2004.
36
"S&P" means Standard & Poor's.
"SEC" means the Securities and Exchange Commission.
"SECURED PARTIES" shall have the meaning assigned to such term in the
Security Agreement.
"SECURITY AGREEMENT" means the Security Agreement, substantially in the
form of Exhibit F, among the Borrower, the Subsidiary Loan Parties and the
Collateral Agent for the benefit of the Secured Parties.
"SECURITY DOCUMENTS" means the Security Agreement, the Pledge Agreement,
the Mortgages and each other security agreement or other instrument or document
executed and delivered pursuant to Section 5.12 or 5.13 to secure any of the
Obligations.
"SENIOR SUBORDINATED NOTE DOCUMENTS" means the Senior Subordinated Notes,
the indenture under which the Senior Subordinated Notes are issued and all other
documents evidencing, guaranteeing or otherwise governing the terms of the
Senior Subordinated Notes.
"SENIOR SUBORDINATED NOTES" means (i) the senior subordinated notes in an
aggregate principal amount not less than $100,000,000 and not more than
$125,000,000 issued by the Borrower in a Rule 144A or other private placement
(the "Initial Notes") and (ii) any senior subordinated notes with substantially
identical terms to the Initial Notes which are issued in exchange for the
Initial Notes following the issuance of the Initial Notes as contemplated by the
Senior Subordinated Note Documents.
"SPLIT-OFF" means the distribution of all the issued and outstanding
capital stock of the Borrower to Xxxxxxx Xxxxxx, the Christena Xxxxx X. Xxxxxx
Trust and Xxx X. Xxxxxxxx in exchange for some or all of the capital stock of
Huntsman owned by such Persons.
"SPLIT-OFF DOCUMENTS" means all agreements and documents providing for or
to be entered into in connection with the Split-Off.
37
"STATUTORY RESERVE RATE" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject (a) with
respect to the Base CD Rate, for new negotiable nonpersonal time deposits in
dollars of over $100,000 with maturities approximately equal to three months and
(b) with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve
Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
"SUBSIDIARY" means, with respect to any Person (the "PARENT") at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50%
of the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.
"SUBSIDIARY" means any subsidiary of the Borrower.
"SUBSIDIARY LOAN PARTY" means any Restricted Subsidiary; PROVIDED that a
Foreign Subsidiary shall not
38
be a Subsidiary Loan Party if the Borrower would suffer adverse tax consequences
if such Foreign Subsidiary were to be a Subsidiary Loan Party.
"SWINGLINE EXPOSURE" means, at any time, the aggregate principal amount of
all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be its Applicable Percentage of the total Swingline
Exposure at such time.
"SWINGLINE LENDER" means The Chase Manhattan Bank, in its capacity as
lender of Swingline Loans hereunder.
"SWINGLINE LOAN" has the meaning set forth in Section 2.04.
"TAXES" means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"TERM COMMITMENT" means, with respect to each Lender, the commitment, if
any, of such Lender to make a Term Loan hereunder on the Effective Date,
expressed as an amount representing the maximum principal amount of the Term
Loan to be made by such Xxxxxx xxxxxxxxx, as such commitment may be reduced
pursuant to Section 2.08. The initial aggregate amount of the Lenders' Term
Commitments is $100,000,000. The initial amount of each Lender's Term
Commitment is set forth on Schedule 2.01.
"TERM LOAN" has the meaning set forth in Section 2.01.
"TERM LOAN LENDER" means a Lender with a Term Commitment or an outstanding
Term Loan.
"TERM LOAN MATURITY DATE" means September 30, 2005.
"THREE-MONTH SECONDARY CD RATE" means, for any day, the secondary market
rate for three-month certificates of deposit reported as being in effect on such
day (or, if such day is not a Business Day, the next preceding Business Day) by
the Board through the public information telephone line of the Federal Reserve
Bank of New York (which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical
39
Release H.15(519) during the week following such day) or, if such rate is not so
reported on such day or such next preceding Business Day, the average of the
secondary market quotations for three-month certificates of deposit of major
money center banks in New York City received at approximately 10:00 a.m.,
New York City time, on such day (or, if such day is not a Business Day, on the
next preceding Business Day) by the Administrative Agent from three negotiable
certificate of deposit dealers of recognized standing selected by it.
"TOTAL DEBT" means, as of any date of determination, without duplication,
the aggregate principal amount of Indebtedness of the Borrower and the
Restricted Subsidiaries outstanding as of such date, determined on a
consolidated basis in accordance with GAAP (other than the Indebtedness of the
type referred to in clause (h) of the definition of the term "Indebtedness",
except to the extent of any unreimbursed drawings thereunder).
"TRANSACTION COSTS" means the fees and expenses incurred by, or required to
be reimbursed or paid by, the Borrower and its Subsidiaries in connection in the
Transactions.
"TRANSACTIONS" means the Split-Off and the Financing Transactions.
"TYPE", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
"UNRESTRICTED SUBSIDIARY" means (a) any Subsidiary organized after the date
of this Agreement for the purpose of acquiring the stock or assets of another
Person or for start-up ventures or activities and designated as an Unrestricted
Subsidiary by the Borrower by notice to the Administrative Agent at or prior to
the time of its organization and (b) any Subsidiary of any Unrestricted
Subsidiary. By notice to the Administrative Agent, the Borrower may declare an
Unrestricted Subsidiary to be a Restricted Subsidiary; PROVIDED that (i) no
Default has occurred and is continuing or would result from such declaration and
(ii) the representations
40
and warranties of the Borrower herein would be true and correct on and as of the
date of such declaration (after giving effect to such declaration). The
Borrower may not declare a Restricted Subsidiary to be an Unrestricted
Subsidiary.
"WHOLLY OWNED SUBSIDIARY" means a Subsidiary of which securities (except
for directors' qualifying shares or other de minimus shares) or other ownership
interests representing 100% of the equity are at the time owned, directly or
indirectly, by the Borrower.
"WITHDRAWAL LIABILITY" means liability of the Borrower or any ERISA
Affiliate to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of
this Agreement, Loans may be classified and referred to by Class (E.G., a
"Revolving Loan") or by Type (E.G., a "Eurodollar Loan") or by Class and Type
(E.G., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (E.G., a "Revolving Borrowing") or by Type (E.G., a
"Eurodollar Borrowing") or by Class and Type (E.G., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the word
"shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
41
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP; TREATMENT OF UNRESTRICTED
SUBSIDIARIES. (a) Except as otherwise expressly provided herein, all terms of
an accounting or financial nature shall be construed in accordance with GAAP, as
in effect from time to time; PROVIDED that, if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
(b) Except as otherwise expressly provided herein, all accounting and
financial calculations and determinations hereunder shall be made without
consolidating the accounts of Unrestricted Subsidiaries with those of the
Borrower or any Restricted Subsidiary, notwithstanding that such treatment is
inconsistent with GAAP.
SECTION 1.05. CERTAIN INTERIM FINANCIAL CALCULATIONS. Prior to
September 30, 1998, solely for purposes of determining compliance with
Sections 6.14 and 6.15 and for purposes of determining the Leverage Ratio,
Consolidated Net Income for the period of four consecutive fiscal quarters ended
(a) December 31, 1997,
42
shall be deemed to be equal to the product of (i) Consolidated Net Income for
the fiscal quarter ended December 31, 1997, multiplied by (ii) four,
(b) March 31, 1998, shall be deemed to be equal to the product of
(i) Consolidated Net Income for the two consecutive fiscal quarters ended
March 31, 1998, multiplied by (ii) two and (c) June 30, 1998, shall be deemed to
be equal to the product of (i) Consolidated Net Income for the three consecutive
fiscal quarters ended June 30, 1998, multiplied by (ii) four-thirds. Related
calculations for Cash Interest Expense for the same periods shall be determined
in the same manner.
If a Permitted Acquisition occurs, then prior to the end of the period of
four consecutive fiscal quarters commencing with the fiscal quarter during which
such Permitted Acquisition occurs (each such quarter hereinafter referred to as
an "Acquisition Fiscal Quarter"), solely for purposes of determining compliance
with Sections 6.14 and 6.15 and for purposes of determining the Leverage Ratio,
Consolidated Net Income for the trailing four fiscal quarters, calculated at the
end of each of the Acquisition Fiscal Quarters, shall equal the sum of
(a) Consolidated EBITDA for the trailing four fiscal quarters and (b) with
respect to the first Acquisition Fiscal Quarter, Acquisition EBITDA multiplied
by seven-eighths; (ii) with respect to the second Acquisition Fiscal Quarter,
Acquisition EBITDA multiplied by five-eighths; (iii) with respect to the third
Acquisition Fiscal Quarter, Acquisition EBITDA, multiplied by three-eighths; and
(iv) with respect to the fourth Acquisition Fiscal Quarter, Adjusted EBITDA
multiplied by one-eighth.
For purposes of the immediately preceding paragraph, "Acquisition EBITDA"
means, the sum of (i) the consolidated EBITDA of the entity or business
associated with the Permitted Acquisition for the four fiscal quarters
immediately preceding the date of effectiveness of the Permitted Acquisition,
calculated on the same basis as required in the definition of "Consolidated
EBITDA" as if calculated with respect to the Borrower but without giving effect
to clauses (f), (g) (h) and (i) and clause (e) to the extent of Excluded
Charges, and (ii) any synergistic benefits permitted to be realized
43
pursuant to the last sentence of the definition of "Permitted Acquisition".
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions set forth
herein, each Lender agrees (a) to make a loan (a "TERM LOAN") to the Borrower on
the Effective Date in the principal amount of its Term Commitment and (b) to
make loans ("REVOLVING LOANS") to the Borrower from time to time during the
Revolving Availability Period in an aggregate principal amount that will not
result in such Xxxxxx's Revolving Exposure exceeding such Xxxxxx's Revolving
Commitment (after giving effect to the application of any proceeds being applied
contemporaneously with the advance of such Revolving Loans). Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Revolving Loans. Amounts repaid in
respect of Term Loans may not be reborrowed.
SECTION 2.02. LOANS AND BORROWINGS. (a) Each Loan (other than a
Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the
same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; PROVIDED that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing and Term Borrowing
shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may
request in accordance herewith. Each Swingline Loan shall be an ABR Loan. Each
Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; PROVIDED that any
exercise of such option shall not affect the obligation of the Borrower to repay
such Loan
44
in accordance with the terms of this Agreement and shall not result in any
increased costs under Section 2.15 or any obligation by the Borrower to make any
payment under Section 2.17 in excess of the amounts, if any, that such Lender
would be entitled to claim under Section 2.15 or 2.17, as applicable, without
giving effect to such change in lending office.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of $500,000 and not less than $1,000,000; PROVIDED that
an ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Revolving Commitments or that is equal to the
amount required to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(e). Each Swingline Loan shall be in an amount that
is an integral multiple of $10,000 and not less than $50,000. Borrowings of
more than one Type and Class may be outstanding at the same time; PROVIDED that
there shall not at any time be more than a total of 8 Eurodollar Borrowings
outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Revolving Maturity Date or Term Loan Maturity Date, as applicable.
SECTION 2.03. REQUESTS FOR BORROWINGS. To request a Revolving Borrowing
or Term Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
12:00 noon, New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than
1:00 p.m., New York City time, one Business Day before the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and
shall be confirmed promptly by hand delivery or telecopy to the Administrative
Agent of a written Borrowing Request in a form approved by the Administrative
Agent and signed by
45
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Borrowing
or a Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) subject to Section 2.02, whether such Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Xxxxxx's Loan to be made as part of the requested Borrowing.
SECTION 2.04. SWINGLINE LOANS. (a) Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make loans ("SWINGLINE LOANS")
to the Borrower from time to time during the Revolving Availability Period, in
an aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of outstanding Swingline Loans exceeding
$5,000,000 or (ii) the sum of the total Revolving Exposures exceeding the total
Revolving
46
Commitments; PROVIDED that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 1:00 p.m., New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested
date (which shall be a Business Day) and amount of the requested Swingline Loan.
The Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e), by remittance to the Issuing Bank) by 2:00 p.m.,
New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative
Agent not later than 10:00 a.m., New York City time, on any Business Day require
the Revolving Lenders to acquire participations on such Business Day in all or a
portion of the Swingline Loans outstanding. Such notice shall specify the
aggregate amount of Swingline Loans in which Revolving Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice
thereof to each Revolving Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender
hereby absolutely and unconditionally agrees, upon receipt of notice as provided
above, to pay to the Administrative Agent, for the account of the Swingline
Lender, such Lender's Applicable Percentage of such Swingline Loan or Loans.
Each Revolving Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or
47
reduction or termination of the Commitments, and that each such payment shall be
made without any offset, abatement, withholding or reduction whatsoever. Each
Revolving Lender shall comply with its obligation under this paragraph by making
a wire transfer to the Administrative Agent for the benefit of the Swingline
Lender of immediately available funds, in the same manner as provided in
Section 2.06 with respect to Loans made by such Xxxxxx (and Section 2.06 shall
apply, MUTATIS MUTANDIS, to the payment obligations of the Revolving Lenders),
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Revolving Lenders. The Administrative Agent
shall notify the Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the Swingline Lender.
Any amounts received by the Swingline Lender from the Borrower (or other party
on behalf of the Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Revolving Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may appear. The
purchase of participations in a Swingline Loan pursuant to this paragraph shall
not relieve the Borrower of any default in the payment thereof.
SECTION 2.05. LETTERS OF CREDIT. (a) GENERAL. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of
Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time
during the LC Availability Period. In the event of any inconsistency between
the terms and conditions of this Agreement and the terms and conditions of any
form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, the Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
48
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN CONDITIONS.
To request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Borrower shall hand deliver
or telecopy (or transmit by electronic communication, if arrangements for doing
so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
and specifying the date of issuance, amendment, renewal or extension (which
shall be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount of such
Letter of Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the Issuing Bank, the Borrower also shall submit a
letter of credit application on the Issuing Bank's standard form in connection
with any request for a Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the LC Exposure shall not exceed $20,000,000 and (ii) the total
Revolving Exposures shall not exceed the total Revolving Commitments.
(c) EXPIRATION DATE. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Maturity Date.
(d) PARTICIPATIONS. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such
49
Lender's Applicable Percentage of the aggregate amount available to be drawn
under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to
pay to the Administrative Agent, for the account of the Issuing Bank, such
Xxxxxx's Applicable Percentage of each LC Disbursement made by the Issuing Bank
and not reimbursed by the Borrower on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) REIMBURSEMENT. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement
by paying to the Administrative Agent an amount equal to such LC Disbursement
not later than 12:00 noon, New York City time, on the date that such
LC Disbursement is made, if the Borrower shall have received notice of such
LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if
such notice has not been received by the Borrower prior to such time on such
date, then not later than 12:00 noon, New York City time, on (i) the Business
Day that the Borrower receives such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; PROVIDED that,
if the Borrower does not otherwise elect by notice to the Administrative Agent
to make such payment, the Borrower shall be deemed to have requested in
accordance with Section 2.03 (but without regard to the minimum borrowing
amounts specified in Section 2.02) that such LC Disbursement be financed with an
ABR Revolving Borrowing in an amount equal to such LC Disbursement, the
Administrative Agent shall notify the Revolving Lenders
50
thereof, the Revolving Lenders shall (subject to the conditions to borrowing
herein) advance their respective ABR Revolving Loans (which shall be applied to
reimburse such LC Disbursement) and, to the extent such ABR Revolving Loans are
so advanced and applied, the Borrower's obligation to make such payment shall be
discharged and replaced by the resulting ABR Revolving Loans. If and to the
extent that the Borrower's obligation to make such payment is not fully
discharged and replaced by ABR Revolving Loans as aforesaid (whether as a result
of the failure to satisfy any condition to borrowing or otherwise) and if the
Borrower otherwise fails to make such payment when due, the Administrative Agent
shall notify each Revolving Lender of the applicable LC Disbursement, the
payment then due from the Borrower in respect thereof and such Lender's
Applicable Percentage thereof. Promptly following receipt of such notice, each
Revolving Lender shall pay to the Administrative Agent its Applicable Percentage
of the payment then due from the Borrower, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall
apply, MUTATIS MUTANDIS, to the payment obligations of the Revolving Lenders),
and the Administrative Agent shall promptly pay to the Issuing Bank the amounts
so received by it from the Revolving Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the Issuing
Bank or, to the extent that Revolving Lenders have made payments pursuant to
this paragraph to reimburse the Issuing Bank, then to such Lenders and the
Issuing Bank as their interests may appear. Any payment made by a Revolving
Lender pursuant to this paragraph to reimburse the Issuing Bank for any
LC Disbursement (other than the funding of ABR Revolving Loans as contemplated
above) shall not constitute a Loan and shall not relieve the Borrower of its
obligation to reimburse such LC Disbursement.
(f) OBLIGATIONS ABSOLUTE. The Borrower's obligation to reimburse
LC Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
51
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; PROVIDED that nothing in this Section 2.05 shall be construed to
excuse the Issuing Bank from liability to the Borrower to the extent of any
direct damages (as opposed to consequential damages, claims in respect of which
are hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by the Issuing Bank's failure to
exercise care when determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof. The parties hereto
expressly agree that, in the absence of gross negligence or wilful misconduct on
the part of the Issuing Bank, the Issuing Bank shall be deemed to have exercised
care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented that appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the Issuing Bank may, in its sole
discretion,
52
either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are
not in strict compliance with the terms of such Letter of Credit.
(g) DISBURSEMENT PROCEDURES. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by telecopy) of
such demand for payment and whether the Issuing Bank has made or will make an
LC Disbursement thereunder; PROVIDED that any failure to give or delay in giving
such notice shall not relieve the Borrower of its obligation to reimburse the
Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement.
(h) INTERIM INTEREST. If the Issuing Bank shall make any LC Disbursement,
then, unless the Borrower shall reimburse such LC Disbursement in full on the
date such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is made
to but excluding the date that the Borrower reimburses such LC Disbursement, at
the rate per annum then applicable to ABR Revolving Loans; PROVIDED that, if the
Borrower fails to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section 2.13(c) shall apply. Interest
accrued pursuant to this paragraph shall be for the account of the Issuing Bank,
except that interest accrued on and after the date of payment by any Revolving
Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank
shall be for the account of such Lender to the extent of such payment.
(i) REPLACEMENT OF THE ISSUING BANK; ADDITIONAL ISSUING BANKS. The
Issuing Bank may be replaced at any time by written agreement among the
Borrower, the Administrative Agent, the replaced Issuing Bank and the successor
Issuing Bank. One or more Lenders may be appointed as additional Issuing Banks
by written agreement among the Borrower, the Administrative Agent (whose consent
will not be unreasonably withheld) and the
53
Xxxxxx that is to be so appointed. The Administrative Agent shall notify the
Lenders of any such replacement of the Issuing Bank or any such additional
Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.12(b). From and after the effective date of
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit. If at any time there is more
than one Issuing Bank hereunder, the Borrower may, in its discretion, select
which Issuing Bank is to issue any particular Letter of Credit.
(j) CASH COLLATERALIZATION. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to 105% of the LC Exposure as of
such date plus any accrued and unpaid interest thereon; PROVIDED that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (h) or (i) of Article VII. Each
such deposit shall be held by the Administrative Agent as collateral for the
payment and performance of the obligations of the Borrower under this
54
Agreement. The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any
interest earned on the investment of such deposits, which investments shall be
made at the option and sole discretion of the Administrative Agent and at the
Borrower's risk and expense, such deposits shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys
in such account shall be applied by the Administrative Agent to reimburse the
Issuing Bank for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated (but subject to the consent of
Revolving Lenders with LC Exposure representing greater than 50% of the total
LC Exposure), be applied to satisfy other obligations of the Borrower under this
Agreement. If the Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the Borrower within
three Business Days after all Events of Default have been cured or waived.
SECTION 2.06. FUNDING OF BORROWINGS. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; PROVIDED that Swingline Loans shall be made as provided
in Section 2.04. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request;
PROVIDED that ABR Revolving Loans made to finance the reimbursement of an
LC Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date
55
of any Borrowing that such Lender will not make available to the Administrative
Agent such Xxxxxx's share of such Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in accordance with
paragraph (a) of this Section and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a Lender
has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment to
the Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation or (ii) in
the case of the Borrower, the interest rate applicable to ABR Loans. If such
Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
SECTION 2.07. INTEREST ELECTIONS. (a) Each Revolving Borrowing and Term
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurodollar Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing. This Section shall not apply
to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the
56
Borrower were requesting a Revolving Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Interest Election Request in a form approved by the Administrative Agent and
signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.02 and paragraph (f) of
this Section:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Xxxxxx's portion of each resulting Borrowing.
57
(e) If the Borrower fails to deliver a timely Interest Election Request
with respect to a Eurodollar Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at
the end of such Interest Period such Borrowing shall be converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
(f) A Borrowing of any Class may not be converted to or continued as a
Eurodollar Borrowing if after giving effect thereto (i) the Interest Period
therefor would commence before and end after a date on which any principal of
the Loans of such Class is scheduled to be repaid and (ii) the sum of the
aggregate principal amount of outstanding Eurodollar Borrowings of such Class
with Interest Periods ending on or prior to such scheduled repayment date plus
the aggregate principal amount of outstanding ABR Borrowings of such Class would
be less than the aggregate principal amount of Loans of such Class required to
be repaid on such scheduled repayment date.
SECTION 2.08. TERMINATION AND REDUCTION OF COMMITMENTS. (a) Unless
previously terminated, (i) the Term Commitments shall terminate at 5:00 p.m.,
New York City time, on the Effective Date and (ii) the Revolving Commitments
shall terminate on the Revolving Maturity Date.
(b) The Borrower may at any time terminate, or from time to time reduce,
the Revolving Commitments; PROVIDED that (i) each reduction of the Revolving
Commitments shall be in an amount that is an integral multiple of $1,000,000 and
not less than $5,000,000 and (ii) the Borrower shall not terminate or reduce the
Revolving Commitments if, after giving effect to any concurrent prepayment of
the Revolving Loans in accordance with
58
Section 2.11, the sum of the Revolving Exposures would exceed the total
Revolving Commitments.
(c) If the estimated Net Proceeds from the issuance of the Senior
Subordinated Notes exceeds $100,000,000, then the Term Commitments shall be
reduced (effective prior to the open of business on the Effective Date) by an
amount equal to such excess. For purposes hereof, if the aggregate principal
amount of the Senior Subordinated Notes issued or to be issued on or prior to
the Effective Date exceeds $100,000,000, then the Borrower shall deliver to the
Administrative Agent, prior to the Effective Date, a certificate of a Financial
Officer setting forth a calculation of the estimated Net Proceeds therefrom
(rounded to the nearest $1,000,000) and the reduction of the Term Commitments
pursuant to this paragraph shall be made based upon such certificate.
(d) If any prepayment of a Term Borrowing would be required pursuant to
Section 2.11(b) or (c) at a time when there are not any Term Borrowings
outstanding, then the Revolving Commitments shall be reduced at such time in an
amount equal to the prepayment that would be required if Term Borrowings were
outstanding at such time.
(e) The Borrower shall notify the Administrative Agent of any election or
requirement to terminate or reduce the Commitments under paragraph (b) or (d) of
this Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election or requirement and the
effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Borrower pursuant to this Section shall be irrevocable;
PROVIDED that a notice of termination of the Revolving Commitments delivered by
the Borrower under paragraph (b) of this Section may state that such notice is
conditioned upon the effectiveness of other borrowings, in which case such
notice may be revoked by the Borrower (by notice to the Administrative Agent on
or prior to the specified effective date) if such condition is not satisfied.
Any termination or reduction of the Commitments of any Class shall be permanent.
Each reduction of the Commitments of any Class shall be made ratably among the
Lenders in
59
accordance with their respective Commitments of such Class.
SECTION 2.09. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
of such Lender on the Revolving Maturity Date, (ii) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each Term
Loan of such Lender as provided in Section 2.10 and (iii) to the Administrative
Agent for the account of the Swingline Lender the then unpaid principal amount
of each Swingline Loan on the earlier of the Revolving Maturity Date and the
first date after such Swingline Loan is made that is the last day of a calendar
month and is at least two Business Days after such Swingline Loan is made;
PROVIDED that on each date that a Revolving Borrowing is made, the Borrower
shall repay all Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Xxxxxx, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Xxxxxx's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be PRIMA FACIE evidence of the existence and
amounts of the obligations recorded therein; PROVIDED that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
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(e) Any Lender may request that Loans of any Class made by it be evidenced
by a promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Administrative Agent. Thereafter, the Loans evidenced
by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.10. AMORTIZATION OF TERM LOANS. (a) Subject to adjustment
pursuant to paragraph (d) of this Section, the Borrower shall repay Term
Borrowings on each date set forth below in the aggregate principal amount set
forth opposite such date:
Date Amount
---- ------
December 30, 1998 $1,250,000
March 31, 1999 1,250,000
June 30, 1999 1,250,000
September 30, 1999 1,250,000
December 30, 1999 1,875,000
March 31, 2000 1,875,000
June 30, 2000 1,875,000
September 30, 2000 1,875,000
December 30, 2000 2,500,000
March 31, 2001 2,500,000
June 30, 2001 2,500,000
September 30, 2001 2,500,000
December 30, 2001 4,375,000
March 31, 2002 4,375,000
June 30, 2002 4,375,000
September 30, 2002 4,375,000
December 30, 2002 4,375,000
March 31, 2003 4,375,000
June 30, 2003 4,375,000
September 30, 2003 4,375,000
December 30, 2003 4,375,000
March 31, 2004 4,375,000
June 30, 2004 4,375,000
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September 30, 2004 4,375,000
December 30, 2004 6,250,000
March 31, 2005 6,250,000
June 30, 2005 6,250,000
September 30, 2005 6,250,000
(c) To the extent not previously paid, all Term Loans shall be due and
payable on the Term Loan Maturity Date.
(d) If the initial aggregate amount of the Lenders' Term Commitments
exceeds the aggregate principal amount of Term Loans that are made on the
Effective Date, then the scheduled repayments of Term Borrowings to be made
pursuant to this Section shall be reduced by an aggregate amount equal to such
excess in the chronological order in which such repayments are scheduled to
become due. Any prepayment of a Term Borrowing shall be applied to reduce the
subsequent scheduled repayments of the Term Borrowings to be made pursuant to
this Section ratably; PROVIDED that any prepayment made pursuant to
Section 2.11(a) shall be applied, first, to reduce the next four scheduled
repayments of the Term Borrowings to be made pursuant to this Section (other
than those that have been reduced to zero by operation of this paragraph) unless
and until such next four scheduled repayments have been eliminated as a result
of reductions hereunder and, second, to reduce the remaining scheduled
repayments of the Term Borrowings to be made pursuant to this Section ratably.
(e) Prior to any repayment of any Term Borrowings hereunder, the Borrower
shall select the Borrowing or Borrowings to be repaid and shall notify the
Administrative Agent by telephone (confirmed by telecopy) of such selection not
later than 11:00 a.m., New York City time, three Business Days before the
scheduled date of such repayment; PROVIDED that each repayment of Term
Borrowings shall be applied to repay any outstanding ABR Term Borrowings before
any other Borrowings. Each repayment of a Borrowing shall be applied ratably to
the Loans included in the repaid Borrowing. Repayments of Term Borrowings shall
be accompanied by accrued interest on the amount repaid.
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SECTION 2.11. PREPAYMENT OF LOANS. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to the requirements of this Section.
(b) Subject to the provisions of Sections 2.11(e) and 5.08, in the
event and on each occasion that any Net Proceeds are received by or on behalf of
the Borrower or any Subsidiary in respect of any Prepayment Event, the Borrower
shall, within two Business Days after such Net Proceeds are received, prepay
Term Borrowings in an aggregate amount equal to (i) in the case of a Prepayment
Event described in clause (a), (b) or (d) of the definition of "Prepayment
Event", the entire amount of such Net Proceeds, and (ii) in the case of a
Prepayment Event described in clause (c) of the definition of "Prepayment
Event", 50% of such Net Proceeds.
(c) Following the end of each fiscal year of the Borrower, commencing
with the fiscal year ending December 31, 1998, the Borrower shall prepay Term
Borrowings in an aggregate amount equal to 50% of Excess Cash Flow for such
fiscal year; PROVIDED that prepayments shall be required pursuant to this
paragraph (c) only until the outstanding principal amount of Term Loans is
reduced to an amount equal to or less than 50% of the aggregate principal amount
of Term Loans borrowed on the Effective Date. Each prepayment pursuant to this
paragraph shall be made on or before the date that is three Business Days after
the date on which financial statements are delivered pursuant to Section 5.01
with respect to the fiscal year for which Excess Cash Flow is being calculated
(and in any event within 90 days after the end of such fiscal year).
(d) If at any time the sum of the total Revolving Exposures exceeds
the total Revolving Commitments, the Borrowers shall immediately prepay
Revolving Borrowings and Swingline Loans to the extent necessary to eliminate
such excess. If any such excess remains after all Revolving Borrowings and
Swingline Loans are prepaid, the Borrower shall deposit cash collateral pursuant
to Section 2.05(j) in an amount equal to such remaining excess.
63
(e) Notwithstanding the foregoing provisions of Section 2.11(b):
(i) in the case of a Prepayment Event described in clause (a) or (b)
of the definition of "Prepayment Event", the Borrower may, in lieu of
prepaying Term Borrowings, prepay Revolving Borrowings (without reducing
Revolving Commitments), or, in the case of a Prepayment Event described in
clause (a) of the definition of "Prepayment Event" consisting of a
disposition by a Foreign Subsidiary, the Borrower may, in lieu of prepaying
Term Borrowings, permit such Foreign Subsidiary to retain the Net Proceeds
of such disposition; PROVIDED that (A) the Borrower notifies the
Administrative Agent that it is exercising such option, specifying the
Prepayment Event and the amount of the prepayment, at or prior to the time
that the prepayment is required, (B) the Borrower is in compliance with
Sections 6.14, 6.15 and 6.16 before and after giving effect to such
Prepayment Event and (C) the aggregate principal amount of Revolving
Borrowings prepaid in lieu of Term Borrowings and Net Proceeds retained by
Foreign Subsidiaries pursuant to this clause (i) shall not exceed
$50,000,000 (on a cumulative basis) during the term of this Agreement;
(ii) in the case of a Prepayment Event described in clause (c) of the
definition of "Prepayment Event", the Borrower may, at its option, notify
the Administrative Agent that the Borrower intends to utilize all or a
specified portion of the Net Proceeds of such Prepayment Event to finance a
Permitted Acquisition to be consummated within 270 days after such
Prepayment Event, in which case the Borrower shall not be required to
prepay Term Borrowings pursuant to Section 2.11(b) to the extent of the Net
Proceeds so specified; PROVIDED that (A) the Borrower delivers such notice,
specifying the Prepayment Event and describing the anticipated Permitted
Acquisition in reasonable detail, at or prior to the time of such
Prepayment Event, (B) no Default has occurred and is continuing at the time
of such
64
Prepayment Event and (C) to the extent such Net Proceeds are not applied to
finance such Permitted Acquisition within the 270-day period after such
Prepayment Event, the Borrower shall prepay Term Borrowings (at the earlier
of (1) expiration of such period, (2) the date of abandonment of such
Permitted Acquisition or (3) the date of consummation of such Permitted
Acquisition) in an amount equal to such Net Proceeds that are not so
applied; and
(iii) in the case of a Prepayment Event described in clause (c) of the
definition of "Prepayment Event", if, as of the end of the most recent
fiscal quarter for which financial statements have been delivered to the
Administrative Agent pursuant to clause (a) or (b) of Section 5.01 prior to
such Prepayment Event, the Leverage Ratio was less than 2.00 to 1.00, then
no prepayment pursuant to Section 2.11(b) shall be required in respect of
such Prepayment Event.
(f) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the Borrower shall select the Borrowing or Borrowings to be prepaid
and shall specify such selection in the notice of such prepayment pursuant to
paragraph (g) of this Section; PROVIDED that each prepayment of Borrowings of
any Class shall be applied to prepay ABR Borrowings of such Class before any
other Borrowings of such Class.
(g) The Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory
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prepayment, a reasonably detailed calculation of the amount of such prepayment;
PROVIDED that, if a notice of optional prepayment is given in connection with a
conditional notice of termination of the Revolving Commitments as contemplated
by Section 2.08, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.08. Promptly following
receipt of any such notice (other than a notice relating solely to Swingline
Loans), the Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Borrowing shall be in an amount such
that the remaining amount of such Borrowing not so prepaid would be permitted in
the case of an advance of a Borrowing of the same Type as provided in Section
2.02, except as necessary to apply fully the required amount of a mandatory
prepayment. Each prepayment of a Borrowing shall be applied ratably to the
Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.13.
SECTION 2.12. FEES. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee,
which shall accrue at the Applicable Rate on the average daily unused amount of
the Revolving Commitment of such Lender during the period from and including the
Effective Date to but excluding the date on which such Commitment terminates.
Accrued commitment fees shall be payable in arrears on the last day of March,
June, September and December of each year and on the date on which the Revolving
Commitments terminate, commencing on the first such date to occur after the date
hereof. All commitment fees shall be computed on the basis of a year of 360
days and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). For purposes of computing commitment
fees with respect to Revolving Commitments, a Revolving Commitment of a Lender
shall be deemed to be used to the extent of the outstanding Revolving Loans and
LC Exposure of such Lender (and the Swingline Exposure of such Lender shall be
disregarded for such purpose).
(b) The Borrower agrees to pay (i) to the Administrative Agent for
the account of each Revolving Lender a participation fee with respect to its
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participations in Letters of Credit, which shall accrue at the same Applicable
Rate as interest on Eurodollar Revolving Loans on the average daily amount of
such Lender's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Xxxxxx's
Revolving Commitment terminates and the date on which such Lender ceases to have
any LC Exposure, and (ii) to the Issuing Bank a fronting fee, which shall accrue
at the rate or rates per annum separately agreed upon between the Borrower and
the Issuing Bank on the average daily amount of the LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Effective Date to but excluding the later of the date of
termination of the Revolving Commitments and the date on which there ceases to
be any LC Exposure, as well as the Issuing Bank's standard fees with respect to
the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Participation fees and fronting fees accrued
through and including the last day of March, June, September and December of
each year shall be payable on the third Business Day following such last day,
commencing on the first such date to occur after the Effective Date; PROVIDED
that all such fees shall be payable on the date on which the Revolving
Commitments terminate and any such fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand. Any other fees
payable to the Issuing Bank pursuant to this paragraph shall be payable within
10 days after demand. All participation fees and fronting fees shall be
computed on the basis of a year of 365 days (or 366 days in a leap year) and
shall be payable for the actual number of days elapsed (including the first day
but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
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commitment fees and participation fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
SECTION 2.13. INTEREST. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate
plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Revolving Commitments; PROVIDED that (A) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (B) in the
event of any repayment or prepayment of any Loan (other than a prepayment of an
ABR Revolving Loan prior to the end of the Revolving Availability Period),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (C) in the event of any conversion
of any Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.
(e) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times
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when the Alternate Base Rate is based on the Prime Rate shall be computed on the
basis of a year of 365 days (or 366 days in a leap year), and in each case shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO
Rate shall be determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error.
SECTION 2.14. ALTERNATE RATE OF INTEREST. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. INCREASED COSTS. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any
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such reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans
made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank,
as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the Issuing Bank's capital or on the capital of
such Lender's or the Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit held
by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level
below that which such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company could have achieved but for such Change in Law (taking
into consideration such Xxxxxx's or the Issuing Bank's policies and the policies
of such Xxxxxx's or the Issuing Bank's holding company with respect to capital
adequacy), then from time to time the Borrower will pay to such Lender or the
Issuing Bank, as the case may be, following receipt by the Borrower of the
certificate referred to in clause (c) below, such additional amount or amounts
as will compensate such Lender or the Issuing Bank or such Xxxxxx's or the
Issuing Bank's holding company for any such reduction suffered.
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(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or the Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; PROVIDED
that the Borrower shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 180 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; PROVIDED FURTHER that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurodollar Revolving Loan or Eurodollar Term Loan on the
date specified in any notice delivered pursuant hereto (regardless of whether
such notice may be revoked under Section 2.11(g) and is revoked in accordance
therewith), or (d) the assignment of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto as a result of a request by the
Borrower pursuant to Section 2.19, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. Such loss, cost or expense to any Lender
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shall be deemed to include an amount reasonably determined by such Lender to be
the excess, if any, of (i) the amount of interest that would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest that would accrue on such principal amount for such period at the
interest rate that such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the Eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.17. TAXES. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be
made free and clear of and without deduction for any Indemnified Taxes or Other
Taxes; PROVIDED that if the Borrower shall be required to deduct any Indemnified
Taxes or Other Taxes from such payments, then (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) the
Administrative Agent, Lender or Issuing Bank (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender and
the Issuing Bank,
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within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender
or the Issuing Bank, as the case may be, on or with respect to any payment by or
on account of any obligation of the Borrower hereunder or under any other Loan
Document (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender or the
Issuing Bank, or by the Administrative Agent on its own behalf or on behalf of a
Lender or the Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SETOFFS. (a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or
73
otherwise) prior to 12:00 noon, New York City time, on the date when due, in
immediately available funds, without setoff or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons
entitled thereto and payments pursuant to other Loan Documents shall be made to
the Persons specified therein. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment under
any Loan Document shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments under each Loan Document shall be made
in dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, unreimbursed
LC Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Term Loans or participations in
LC Disbursements or Swingline Loans resulting in such Lender receiving payment
of a greater proportion of the
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aggregate amount of its Revolving Loans, Term Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans, Term Loans and participations in LC Disbursements and Swingline
Loans of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Revolving Loans,
Term Loans and participations in LC Disbursements and Swingline Loans; PROVIDED
that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans or participations in LC Disbursements to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or the
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Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.01(b), 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or
9.03(c), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) If any Lender requests compensation under Section 2.15, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and
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the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); PROVIDED that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Commitment is being assigned, the Issuing Bank and Swingline
Lender), which consent shall not unreasonably be withheld, (ii) such Lender
shall have received payment of an amount equal to the outstanding principal of
its Loans and participations in LC Disbursements and Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and
(iii) in the case of any such assignment resulting from a claim for compensation
under Section 2.15 or payments required to be made pursuant to Section 2.17,
such assignment will result in a reduction in such compensation or payments. A
Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
SECTION 2.20. EXTENSION OF REVOLVING MATURITY DATE. (a) The
Borrower may, by notice to the Administrative Agent and the Revolving Lenders
given not less than 30 and not more than 60 days prior to the Revolving Maturity
Date, request that the Revolving Lenders extend the Revolving Maturity Date for
an additional one year period. Each Revolving Lender shall, by notice to the
Borrower and the Administrative Agent given not later than the 10th Business Day
after the date of receipt of the Borrower's notice, advise the Borrower whether
or not such Xxxxxx agrees to such extension (and any Lender that does not so
advise the Borrower on or before such day shall be deemed to have advised the
Borrower that it will not agree to such extension). The approval of any such
extension shall be at the sole discretion of each Revolving Lender.
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(b) If (and only if) all Revolving Lenders shall have agreed to
extend the Revolving Maturity Date as provided in paragraph (a) above, then the
Revolving Maturity Date shall be extended to September 30, 2005.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of the Borrower and its
Restricted Subsidiaries is duly organized, validly existing and, where
applicable, in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Transactions to be
entered into by each Loan Party are within such Loan Party's corporate powers
and have been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement has been duly executed and delivered by the
Borrower and constitutes, and each other Loan Document to which any Loan Party
is to be a party, when executed and delivered by such Loan Party, will
constitute, a legal, valid and binding obligation of the Borrower or such Loan
Party (as the case may be), enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except
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such as have been obtained or made and are in full force and effect and except
filings necessary to perfect Liens created under the Loan Documents, (b) will
not violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of its Restricted Subsidiaries
or any order of any Governmental Authority, (c) will not violate or result in a
default under any material indenture, agreement or other instrument binding upon
the Borrower or any of its Restricted Subsidiaries or its assets, or give rise
to a right thereunder to require any payment to be made by the Borrower or any
of its Restricted Subsidiaries, and (d) will not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Restricted
Subsidiaries, except Liens created under the Loan Documents.
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE. (a)
The Borrower has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, stockholders' equity and cash flows (i) as of
and for the fiscal year ended December 31, 1996, reported on by Deloitte &
Touche LLP, independent public accountants, and (ii) as of and for the fiscal
quarter and the portion of the fiscal year ended June 30, 1997, certified by its
chief financial officer. Such financial statements present fairly, in all
material respects, the financial position and results of operations and cash
flows of the Borrower and its consolidated Subsidiaries, as of such dates and
for such periods in accordance with GAAP, subject to year-end audit adjustments
and the absence of footnotes in the case of the statements referred to in clause
(ii) above.
(b) The Borrower has heretofore furnished to the Lenders its pro
forma consolidated balance sheet as of June 30, 1997, prepared giving effect to
the Transactions as if the Transactions had occurred on such date. Such pro
forma consolidated balance sheet (i) has been prepared in good faith based on
the same assumptions used to prepare the pro forma financial statements included
in the Information Memorandum (which assumptions are believed by the Borrower to
be reasonable), (ii) is based on the best information available to the Borrower
after due inquiry, (iii) accurately reflects all adjustments necessary to give
effect to the Transactions
79
and (iv) presents fairly, in all material respects, the pro forma financial
position of the Borrower and its consolidated Subsidiaries as of June 30, 1997,
as if the Transactions had occurred on such date.
(c) The Borrower has heretofore furnished to the Lenders the
consolidated balance sheet and statements of income, stockholders' equity and
cash flows of Huntsman Polymer Corporation's CT Film Division as of and for the
fiscal year ended December 31, 1996, included in the report of Deloitte & Touche
LLP, independent public accountants. Such financial statements present fairly,
in all material respects, the financial position and results of operations and
cash flows of the CT Film Division, as of such date and for such period in
accordance with GAAP.
(d) Since December 31, 1996, there has been no material adverse
change in the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and its Restricted Subsidiaries, taken as a whole
(with the CT Film Acquisition being deemed to have occurred on December 31,
1996, for the purposes of this representation).
SECTION 3.05. PROPERTIES. (a) Each of the Borrower and its
Restricted Subsidiaries has good title to, or valid leasehold interests in, all
its real and personal property material to its business (including its Mortgaged
Properties), except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each of the Borrower and its Restricted Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to the business of the Borrower and its
Restricted Subsidiaries, taken as a whole, and the use thereof by the Borrower
and its Restricted Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
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(c) Schedule 3.05 sets forth the address of each real property that
is owned or leased by the Borrower or any of its Subsidiaries as of the
Effective Date after giving effect to the Transactions.
(d) As of the Effective Date, neither the Borrower nor any of its
Subsidiaries has received notice of, or has knowledge of, any pending or
contemplated condemnation proceeding affecting any Mortgaged Property or any
sale or disposition thereof in lieu of condemnation. Neither any Mortgaged
Property nor any interest therein is subject to any right of first refusal,
option or other contractual right to purchase such Mortgaged Property or
interest therein.
SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS. (a) There are
no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect or (ii) that involve any of
the Loan Documents or the Transactions (other than the Split-Off).
(b) Except with respect to any matters that, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability or (iii) has received notice of
any claim with respect to any Environmental Liability.
SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of the
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material
81
Adverse Effect. No Default has occurred and is continuing.
SECTION 3.08. INVESTMENT AND HOLDING COMPANY STATUS. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. TAXES. Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $12,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $12,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 3.11. DISCLOSURE. The Borrower has disclosed to the Lenders
all agreements, instruments and corporate or other restrictions to which the
Borrower or any of its Subsidiaries is subject, and all other matters
82
known to any of them, that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the other reports, financial statements, certificates or
other written information furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or any other Loan Document or delivered hereunder or thereunder (as
modified or supplemented by other information so furnished), when made or
delivered, contained any material misstatement of fact or omitted to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED that, with
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
SECTION 3.12. SUBSIDIARIES. Schedule 3.12 sets forth the name of,
and the ownership interest of the Borrower in, each Subsidiary of the Borrower
and identifies each Subsidiary that is a Subsidiary Loan Party, in each case as
of the Effective Date.
SECTION 3.13. INSURANCE. Schedule 3.13 sets forth a description of
all insurance maintained by or on behalf of the Borrower and its Subsidiaries as
of the Effective Date. As of the Effective Date, all premiums that are due and
payable in respect of such insurance have been paid.
SECTION 3.14. LABOR MATTERS. As of the Effective Date, there are no
strikes, lockouts or slowdowns against the Borrower or any Subsidiary pending
or, to the knowledge of the Borrower, threatened. All payments due from the
Borrower or any Restricted Subsidiary, or for which any claim may be made
against the Borrower or any Restricted Subsidiary, on account of wages and
employee health and welfare insurance and other benefits, have been paid or
accrued as a liability on the books of the Borrower or such Restricted
Subsidiary. The consummation of the Transactions will not give rise to any
right of termination or right of renegotiation on the part of any union under
any collective bargaining
83
agreement to which the Borrower or any Subsidiary is bound.
SECTION 3.15. SOLVENCY. Immediately after the consummation of the
Transactions to occur on the Effective Date and immediately following the making
of each Loan made on the Effective Date and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets of
each Loan Party, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of each Loan Party will be greater than the amount that will be
required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) each Loan Party will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) each Loan Party will not have
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be conducted
following the Effective Date.
SECTION 3.16. SECURITY DOCUMENTS. (a) The Pledge Agreement is
effective to create in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement) and, when such Collateral is
delivered to the Collateral Agent, the Pledge Agreement shall constitute a fully
perfected first priority Lien on, and security interest in, all right, title and
interest of the pledgor thereunder in such Collateral, in each case prior and
superior in right to any other Person; PROVIDED that the actions specified in
Schedule 3.16(a) are required to be taken in connection with the pledge of
capital stock of Foreign Subsidiaries.
(b) The Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Security
Agreement) and, when financing statements in appropriate form are filed in the
offices
84
specified on Schedule 6 to the Perfection Certificate, the Security Agreement
shall constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the grantors thereunder in such Collateral (other than the
Intellectual Property (as defined in the Security Agreement)), in each case
prior and superior in right to any other Person, other than with respect to
Liens expressly permitted by Section 6.03.
(c) When the Security Agreement (or a summary thereof) is filed in
the United States Patent and Trademark Office and the United States Copyright
Office, the Security Agreement shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in the
Intellectual Property (as defined in the Security Agreement) in which a security
interest may be perfected by filing, recording or registering a security
agreement, financing statement or analogous document in the United States Patent
and Trademark Office or the United States Copyright Office, as applicable, in
each case prior and superior in right to any other Person (it being understood
that subsequent recordings in the United States Patent and Trademark Office and
the United States Copyright Office may be necessary to perfect a lien on
registered trademarks, trademark applications and copyrights acquired by the
Loan Parties after the date hereof).
(d) The Mortgages are effective to create, subject to the exceptions
listed in each title insurance policy covering such Mortgage, in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable Lien on all of the Loan Parties' right, title and interest in
and to the Mortgaged Properties thereunder and the proceeds thereof, and when
the Mortgages are filed in the offices specified on Schedule 3.16(d), the
Mortgages shall constitute a Lien on, and security interest in, all right, title
and interest of the Loan Parties in such Mortgaged Properties and the proceeds
thereof, in each case prior and superior in right to any other Person, other
than with respect to the rights of Persons pursuant to Liens expressly permitted
by Section 6.03.
SECTION 3.17. FEDERAL RESERVE REGULATIONS. (a) Neither the Borrower
nor any of the Subsidiaries is engaged principally, or as one of its important
85
activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will
be used, whether directly or indirectly, and whether immediately, incidentally
or ultimately, for any purpose that entails a violation of the provisions of the
Regulations of the Board, including Regulation G, U or X.
SECTION 3.18. EXISTING INTERCOMPANY INDEBTEDNESS. As of June 30,
1997, there was $198,300,000 of the Existing Intercompany Indebtedness
(including accrued and unpaid interest as of such date). During the period from
June 30, 1997, to and including the Effective Date, the Existing Intercompany
Indebtedness has increased and decreased only as a result of borrowings,
repayments and accrual of interest, in each case in the ordinary course of
business and in accordance with past practice.
SECTION 3.19. AGREEMENTS AND BUSINESS STATUS AS OF EFFECTIVE DATE.
(a) During the period from the date of the most recent financial statements
referred to in Section 3.04(a) to and including the Effective Date, (i) the
business of the Borrower and its Subsidiaries has been conducted in the ordinary
course in accordance with past practice and (ii) the Borrower and its
Subsidiaries have not engaged in any transaction (other than the Split-Off) that
would have violated Section 6.10 if this Agreement had been in effect during
such period.
(b) Schedule 3.19 identifies each agreement or other document to
which the Borrower or any Subsidiary is a party or by which it is bound as of
the Effective Date that will remain in effect after the Effective Date (i) that
relates to the Split-Off or (ii) to which any Person (other than the Borrower or
a Subsidiary of the Borrower) that is an Affiliate of the Borrower is a party.
True and correct copies of all such agreements and documents have been delivered
to the Lenders.
ARTICLE IV
CONDITIONS
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SECTION 4.01. EFFECTIVE DATE. The obligations of the Lenders to make
Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of each of (i) Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, counsel for the Borrower, substantially in the form of Exhibit B-1,
(ii) Xxx Xxxx, Xxxxxx, Cornwall & XxXxxxxx, Utah counsel for the Borrower,
substantially in the form of Exhibit B-2, (iii) local counsel in each
jurisdiction where a Mortgaged Property is located, substantially in the
form of Exhibit B-3 with such changes as are approved by the Administrative
Agent, and (iv) local counsel in Canada and the United Kingdom,
substantially in the form of Exhibit B-4 with such changes as are approved
by the Administrative Agent and, in the case of each such opinion required
by this paragraph, covering such other matters relating to the Loan
Parties, the Loan Documents or the Transactions as the Administrative Agent
shall reasonably request. The Borrower hereby requests such counsel to
deliver such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of each
Loan Party, the authorization of the Transactions and any other legal
matters
87
relating to the Loan Parties, the Loan Documents or the Transactions, all
in form and substance satisfactory to the Administrative Agent and its
counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by any Loan Party hereunder or under any
other Loan Document.
(f) The Collateral Agent shall have received counterparts of the
Pledge Agreement signed on behalf of the Borrower and each Subsidiary Loan
Party, together with stock certificates representing all the outstanding
shares of capital stock of each Subsidiary owned by or on behalf of any
Loan Party as of the Effective Date after giving effect to the Transactions
(except that such delivery of stock certificates representing shares of
common stock of a Foreign Subsidiary that is not a Subsidiary Loan Party
may be limited to 65% of the outstanding shares of common stock of such
Foreign Subsidiary), promissory notes evidencing all intercompany
Indebtedness owed to any Loan Party by the Borrower or any Subsidiary as of
the Effective Date after giving effect to the Transactions and stock powers
and instruments of transfer, endorsed in blank, with respect to such stock
certificates and promissory notes. The Collateral Agent shall have
received evidence that all actions specified in Schedule 3.16(a) shall have
been taken.
(g) The Collateral Agent shall have received counterparts of the
Security Agreement signed on
88
behalf of the Borrower and each Subsidiary Loan Party, together with the
following:
(i) all documents and instruments, including Uniform Commercial
Code financing statements, required by law or reasonably requested by
the Administrative Agent to be filed, registered or recorded to create
or perfect the Liens intended to be created under the Security
Agreement; and
(ii) a completed Perfection Certificate dated the Effective Date
and signed by an executive officer or Financial Officer of the
Borrower, together with all attachments contemplated thereby,
including the results of a search of the Uniform Commercial Code (or
equivalent) filings made with respect to the Loan Parties in the
jurisdictions contemplated by the Perfection Certificate and copies of
the financing statements (or similar documents) disclosed by such
search and evidence reasonably satisfactory to the Administrative
Agent that the Liens indicated by such financing statements (or
similar documents) are permitted by Section 6.03 or have been
released.
(h) The Collateral Agent shall have received (i) counterparts of a
Mortgage with respect to each Mortgaged Property signed on behalf of the
record owner of such Mortgaged Property, (ii) a policy or policies of title
insurance issued by a nationally recognized title insurance company,
insuring the Lien of each such Mortgage as a valid first Lien on the
Mortgaged Property described therein, free of any other Liens except as
permitted by Section 6.03, in form and substance reasonably acceptable to
the Collateral Agent, together with such endorsements, coinsurance and
reinsurance as the Collateral Agent or the Required Lenders may reasonably
request, (iii) copies of all existing surveys and such other information
and documents with respect to the Mortgaged Properties as shall be
necessary for the aforesaid title insurance policies to be issued without a
survey exception
89
and (iv) such other customary documentation with respect to the Mortgaged
Properties as the Administrative Agent may reasonably require.
(i) The Administrative Agent shall have received (i) counterparts of
the Guarantee Agreement signed on behalf of each Subsidiary Loan Party and
(ii) counterparts of the Indemnity, Subrogation and Contribution Agreement
signed on behalf of the Borrower and each Subsidiary Loan Party.
(j) The Administrative Agent shall have received evidence
satisfactory to it that the insurance required by Section 5.07 is in
effect.
(k) All actions related to the Split-Off (other than consummating the
Split-Off), to the extent completed at such time, shall have been completed
on terms consistent in all material respects with the information,
including pro forma financial statements and projections, furnished to the
Lenders prior to the date of this Agreement.
(l) The CT Film Acquisition and the transactions related thereto
shall have been consummated for aggregate consideration consisting of
$70,000,000 in cash and other consideration satisfactory to the Lenders,
and otherwise on terms consistent in all material respects with the
information, including pro forma financial statements and projections,
furnished to the Lenders prior to the date of this Agreement. The Lenders
shall have received copies of the CT Film Acquisition Agreement prior to
the Effective Date and shall be reasonably satisfied with the terms
thereof.
(m) The Lenders shall have received (i) audited consolidated balance
sheets and related statements of income, stockholders' equity and cash
flows of the Borrower for the 1995 and 1996 fiscal years and (ii) unaudited
consolidated balance sheets and related statements of income, stockholders'
equity and cash flows of the Borrower for (A) the 1997 fiscal quarters
preceding the
90
Effective Date for which financial statements are available and (B) each
fiscal month after the most recent 1997 fiscal quarter for which financial
statements were received by the Lenders as described above and ended 30
days before the Effective Date.
(n) The Lenders shall be reasonably satisfied in all respects with
the tax position and the contingent tax and other liabilities of, and with
any tax sharing agreements involving, the Borrower and its Subsidiaries
after giving effect to the Transactions and the other transactions
contemplated hereby, and with the plans of the Borrower with respect
thereto.
(o) The Lenders shall have received appraisals, satisfactory in form
and substance to the Administrative Agent (which may include copies of
recent existing appraisals), from appraisers satisfactory to the
Administrative Agent, of the material real property, personal property and
other assets of the Borrower and its Subsidiaries.
(p) The Lenders shall have received (i) copies of all existing
environmental reports prepared with respect to the Mortgaged Property and
any Environmental Liabilities that may be attributable to such properties
or operations thereon and (ii) such other materials and reviews relating to
the Borrower's compliance with Environmental Laws and actual or potential
Environmental Liabilities as shall be reasonably specified by the
Administrative Agent, all of which shall be satisfactory to the
Administrative Agent.
(q) There shall be no litigation or administrative proceeding that
would reasonably be expected to have a Material Adverse Effect, or a
material adverse effect on the ability of the parties to consummate the
Transactions or the other transactions contemplated hereby (other than the
Split-off).
91
(r) The Administrative Agent shall be satisfied with the arrangements
for the retention of existing management of the Borrower.
(s) The Senior Subordinated Notes shall have been issued on terms and
conditions (including but not limited to terms and conditions relating to
the interest rate, fees, amortization, maturity, subordination, covenants,
events of default and remedies) satisfactory to the Lenders in all
respects, the Lenders shall have received copies of the Senior Subordinated
Note Documents, which shall be satisfactory in form and substance to the
Lenders, and the Borrower shall have received gross cash proceeds of not
less than $100,000,000 from the issuance of the Senior Subordinated Notes.
(t) The Lenders shall be reasonably satisfied with (i) the Split-off
Documents and any waivers or amendments thereto, (ii) the capitalization,
structure and equity ownership of the Borrower and the Subsidiaries after
giving effect to the Transactions, to the extent inconsistent with that set
forth in the Information Memorandum and (iii) all legal, tax and accounting
matters relating to the Transactions.
(u) The Lenders shall be reasonably satisfied with the sufficiency of
amounts available under this Agreement to meet the ongoing working capital
requirements of the Borrower and the Subsidiaries following consummation of
the Transactions.
(v) All consents and approvals required to be obtained from any
Governmental Authority or other Person in connection with the Transactions
(other than the Split-Off) shall have been obtained, all applicable waiting
periods and appeal periods shall have expired, in each case without the
imposition of any burdensome conditions and there shall be no action by any
Governmental Authority, actual or threatened, that has a reasonable
likelihood of restraining, preventing or imposing burdensome conditions on
the Transactions or the other transactions contemplated hereby (other than
the Split-Off). The Administrative Agent shall have
92
received copies of the Split-off Documents and any certificates, opinions
and other documents delivered thereunder, certified by a Financial Officer
as complete and correct.
(w) The Lenders shall have received a pro forma consolidated balance
sheet of the Borrower as of the Effective Date, reflecting all adjustments
to give effect to the Transactions (including the Split-Off), and such pro
forma consolidated balance sheet shall be in form and substance reasonably
satisfactory to the Lenders. As of the Effective Date, after giving effect
to the Financing Transactions, neither the Borrower nor any of its
Subsidiaries shall have outstanding any shares of preferred stock or any
Indebtedness, other than (i) Indebtedness incurred under the Loan Documents
and the Senior Subordinated Notes and (ii) Indebtedness set forth on
Schedule 6.01. The Lenders shall be satisfied with the terms and
conditions of all Indebtedness set forth on Schedule 6.01. The aggregate
amount of Transaction Costs (including underwriting discounts and
commissions in respect of the Senior Subordinated Notes) shall not exceed
$8,000,000.
(x) The Administrative Agent shall have received a solvency
certificate, in form and substance reasonably satisfactory to the Lenders,
executed by a senior financial officer of the Borrower, with respect to the
solvency of the Loan Parties on a consolidated basis after giving effect to
the Financing Transactions.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time,
on October 31, 1997 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
93
SECTION 4.02. EACH CREDIT EVENT. The obligation of each Lender to
make a Loan on the occasion of any Borrowing, and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to the satisfaction of
the following conditions:
(a) The representations and warranties of each Loan Party set forth
in the Loan Documents shall be true and correct on and as of the date of
such Borrowing or the date of issuance, amendment, renewal or extension of
such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower,
its audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows
94
as of the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on
by Deloitte & Touche LLP or other independent public accountants of
recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception as to
the scope of such audit other than as to Unrestricted Subsidiaries) to the
effect that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, its consolidated balance
sheet and related statements of operations, stockholders' equity and cash
flows as of the end of and for such fiscal quarter and the then elapsed
portion of the fiscal year, setting forth in each case in comparative form
the figures for the corresponding period or periods of (or, in the case of
the balance sheet, as of the end of) the previous fiscal year, all
certified by one of its Financial Officers as presenting fairly in all
material respects the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Borrower (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations with respect to compliance with Sections 6.13, 6.14,
6.15 and 6.16, (iii) setting forth a reasonably detailed calculation of the
Borrower Amount, (iv) stating whether any change in GAAP or
95
in the application thereof has occurred since the date of the Borrower's
audited financial statements referred to in Section 3.04 and, if any such
change has occurred, specifying the effect of such change on the financial
statements accompanying such certificate and (v) if any Unrestricted
Subsidiary exists (or existed at any time during the period covered by such
financial statements), attaching consolidating balance sheets and income
statements as of the same dates and covering the same periods, certified as
true, correct and complete;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during
the course of their examination of such financial statements of any Default
(which certificate may be limited to the extent required by accounting
rules or guidelines);
(e) at least 30 days prior to the commencement of each fiscal year of
the Borrower, a detailed consolidated budget for such fiscal year
(including a projected consolidated balance sheet and related statements of
projected operations and cash flow as of the end of and for such fiscal
year) and, promptly when available, any significant revisions of such
budget;
(f) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Borrower or any Subsidiary with the Securities and Exchange Commission,
or any Governmental Authority succeeding to any or all of the functions of
said Commission, or with any national securities exchange, as the case may
be; and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Lender may reasonably request.
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SECTION 5.02. NOTICES OF MATERIAL EVENTS. The Borrower will furnish
to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that, if adversely determined, would
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, would reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate
amount exceeding $5,000,000; and
(d) any other development that results in, or would reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. INFORMATION REGARDING COLLATERAL. The Borrower will
furnish to the Administrative Agent prompt written notice of any change (i) in
any Loan Party's corporate name or in any trade name used to identify it in the
conduct of its business or in the ownership of its properties, (ii) in the
location of any Loan Party's chief executive office, its principal place of
business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by it
is located (including the establishment of any such new office or facility),
(iii) in any Loan Party's identity or corporate structure or (iv) in any Loan
Party's Federal Taxpayer Identification Number. The Borrower agrees not to
effect or permit any change
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referred to in the preceding sentence unless all filings have been made under
the Uniform Commercial Code or otherwise that are required in order for the
Administrative Agent to continue at all times following such change to have a
valid, legal and perfected security interest in all the Collateral; PROVIDED
that the Administrative Agent shall take any action reasonably requested by the
Borrower to maintain a valid, legal and perfected security interest in all the
Collateral.
SECTION 5.04. EXISTENCE; CONDUCT OF BUSINESS. The Borrower will, and
will cause each of its Restricted Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names material to the conduct of the business
of the Borrower and its Restricted Subsidiaries, taken as a whole; PROVIDED that
the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.04.
SECTION 5.05. PAYMENT OF OBLIGATIONS. The Borrower will, and will
cause each of its Subsidiaries to, pay its Indebtedness and other obligations,
including Tax liabilities, before the same shall become delinquent or in
default, except where (a) the validity or amount thereof is being contested in
good faith by appropriate procedures or proceedings, (b) the Borrower or such
Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP, (c) such contest effectively suspends collection of the
contested obligation and the enforcement of any Lien securing such obligation
and (d) the failure to make payment pending such contest would not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.06. MAINTENANCE OF PROPERTIES. The Borrower will, and will
cause each of its Restricted Subsidiaries to, keep and maintain all property
material to the conduct of the business of the Borrower and its Restricted
Subsidiaries taken as a whole in good working order and condition, ordinary wear
and tear excepted.
SECTION 5.07. INSURANCE. The Borrower will, and will cause each of
its Restricted Subsidiaries to,
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maintain, with financially sound and reputable insurers, insurance with respect
to its material properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons. Such insurance shall be maintained with
financially sound and reputable insurers, except that a portion of such
insurance program (not to exceed that which is customary in the case of
companies engaged in the same or similar business or having similar properties
similarly situated) may be effected through self-insurance, provided adequate
reserves therefor, in accordance with GAAP, are maintained. All insurance
policies or certificates (or certified copies thereof) with respect to such
insurance (A) shall be endorsed to the Collateral Agent's reasonable
satisfaction for the benefit of the Lenders (including, without limitation, by
naming the Collateral Agent as loss payee or additional insured, as
appropriate); and (B) shall state that such insurance policy shall not be
canceled or revised without thirty days' prior to written notice thereof by the
insurer to the Administrative Agent and (iii) furnish to the Administrative
Agent, on the Effective Date and on the date of delivery of each annual
financial statement, full information as to the insurance carried. At any time
that insurance at levels described in Schedule 5.07 is not being maintained by
or on behalf of the Borrower of any of its Restricted Subsidiaries, the Borrower
will notify the Lenders in writing within two Business Days thereof and, if
thereafter notified by the Administrative Agent or the Required Lenders to do
so, the Borrower or any such Restricted Subsidiary, as the case may be, shall
obtain insurance at such levels at least equal to those set forth on
Schedule 5.07.
SECTION 5.08. CASUALTY AND CONDEMNATION. (a) The Borrower will
furnish to the Administrative Agent and the Lenders prompt written notice of any
casualty or other insured damage to any portion of any Collateral or the
commencement of any action or proceeding for the taking of any Collateral or any
part thereof or interest therein under power of eminent domain or by
condemnation or similar proceeding, where the aggregate fair market value of the
Collateral so affected
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in connection with casualty events or condemnations is, in the aggregate, at
least $2,500,000.
(b) If any event described in paragraph (a) of this Section results
in Net Proceeds (whether in the form of insurance proceeds, condemnation award
or otherwise), the Collateral Agent is authorized to collect such Net Proceeds
and, if received by the Borrower or any Subsidiary, such Net Proceeds shall be
paid over to the Collateral Agent; PROVIDED that (i) if the aggregate Net
Proceeds in respect of such event (other than proceeds of business interruption
insurance) are less than $5,000,000, such Net Proceeds shall be paid over to the
Borrower unless a Default has occurred and is continuing, and (ii) all proceeds
of business interruption insurance shall be paid over to the Borrower unless a
Default has occurred and is continuing. All such Net Proceeds retained by or
paid over to the Collateral Agent shall be held by the Collateral Agent and
released from time to time to pay the costs of repairing, restoring or replacing
the affected property in accordance with the terms of the applicable Security
Document, subject to the provisions of the applicable Security Document
regarding application of such Net Proceeds during a Default.
(c) If any Net Proceeds retained by or paid over to the Collateral
Agent as provided above continue to be held by the Collateral Agent on the date
that is 365 days after the receipt of such Net Proceeds, then such Net Proceeds
shall be applied to prepay Term Borrowings as provided in Section 2.11(b),
subject to Section 2.11(e).
SECTION 5.09. BOOKS AND RECORDS; INSPECTION AND AUDIT RIGHTS. The
Borrower will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which full, true and correct entries are made in all
material respects of all dealings and transactions in relation to its business
and activities. The Borrower will, and will cause each of its Subsidiaries to,
permit any representatives designated by the Administrative Agent or any Lender,
upon reasonable prior notice, to visit and inspect its properties, to examine
and make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers and independent accountants (and the
Borrower shall be
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provided the opportunity to participate in any such discussions with such
independent accountants), all at such reasonable times and as often as
reasonably requested.
SECTION 5.10. COMPLIANCE WITH LAWS. The Borrower will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.11. USE OF PROCEEDS AND LETTERS OF CREDIT. The proceeds of
the Term Loans, together with a portion of the net proceeds of the Senior
Subordinated Notes, will be used solely to (a) repay in full the principal
amount of, and all accrued interest with respect to, the Existing Intercompany
Indebtedness and (b) pay a portion of the Transaction Costs. The proceeds of
the Revolving Loans and Swingline Loans will be used solely for (a) general
corporate purposes, (b) in an amount not to exceed $70,000,000, to finance the
CT Film Acquisition and to pay related transaction costs and (c) to pay a
portion of the Transaction Costs. No part of the proceeds of any Loan will be
used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations G, U and X.
Letters of Credit will be issued only for general corporate purposes.
SECTION 5.12. ADDITIONAL SUBSIDIARIES. If any additional Subsidiary
is formed or acquired after the Effective Date, the Borrower will notify the
Administrative Agent and the Lenders thereof and (a) if such Subsidiary is a
Subsidiary Loan Party, the Borrower will cause such Subsidiary to become a party
to the Guarantee Agreement, the Indemnity, Subrogation and Contribution
Agreement and each applicable Security Document in the manner provided therein
within three Business Days after such Subsidiary is formed or acquired and
promptly take such actions to create and perfect Liens on such Subsidiary's
assets to secure the Obligations as the Administrative Agent or the Required
Lenders shall reasonably request and (b) if such Subsidiary is a Restricted
Subsidiary and any shares of
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capital stock or Indebtedness of such Subsidiary are owned by or on behalf of
any Loan Party, the Borrower will cause such shares and promissory notes
evidencing such Indebtedness to be pledged pursuant to the Pledge Agreement
within three Business Days after such Subsidiary is formed or acquired (except
that, if such Subsidiary is a Foreign Subsidiary and is not a Subsidiary Loan
Party, shares of common stock of such Subsidiary that are owned by or on behalf
of the Borrower or a Subsidiary Loan Party and that are to be pledged pursuant
to the Pledge Agreement may be limited to 65% of the outstanding shares of
common stock of such Subsidiary).
SECTION 5.13. FURTHER ASSURANCES. (a) The Borrower will, and will
cause each Subsidiary Loan Party to, execute any and all further documents,
financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture
filings, mortgages, deeds of trust and other documents), that may be required
under any applicable law, or which the Administrative Agent or the Required
Lenders may reasonably request, to effectuate the transactions contemplated by
the Loan Documents or to grant, preserve, protect or perfect the Liens created
or intended to be created by the Security Documents or the validity or priority
of any such Lien, all at the expense of the Loan Parties. The Borrower also
agrees to provide to the Administrative Agent, from time to time upon request,
evidence reasonably satisfactory to the Administrative Agent as to the
perfection and priority of the Liens created or intended to be created by the
Security Documents.
(b) If any material assets (including any real property or
improvements thereto or any interest therein) are acquired by the Borrower or
any Subsidiary Loan Party after the Effective Date (other than assets
constituting Collateral under the Security Agreement that become subject to the
Lien of the Security Agreement upon acquisition thereof), the Borrower will
notify the Administrative Agent and the Lenders thereof, and, if requested by
the Administrative Agent or the Required Lenders, the Borrower will cause such
assets to be subjected to a Lien securing the Obligations and will take, and
cause the Subsidiary Loan Parties to take, such
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actions as shall be necessary or reasonably requested by the Administrative
Agent to grant and perfect such Liens, including actions described in paragraph
(a) of this Section, all at the expense of the Loan Parties, PROVIDED that the
following property shall not be covered by this Section 5.13(b):
(i) intellectual property a security interest in which would require filings or
recordations under laws other than the laws of the United States or any
jurisdiction thereof, (ii) owned real estate or leasehold interests with an
aggregate fair market value of less than $2,500,000, and (iii) other tangible
personal property with an aggregate fair market value of less than $2,500,000.
(c) Within 60 days after the Effective Date, the Administrative Agent
shall have received counterparts of a Mortgage with respect to the Mortgaged
Properties located in Chippewa Falls, Wisconsin and Harrington, Delaware signed
on behalf of the record owner of such Mortgaged Property and all other documents
required by Section 4.01(b)(iii) and clauses (ii), (iii) and (iv) of
Section 4.10(h).
(d) Within 60 days of the Effective Date, the Administrative Agent
shall have received an as-built survey of each Mortgaged Property, in form and
substance satisfactory to the Administrative Agent and endorsements to the title
policies required by Section 4.01(h) or 5.13(c), as applicable, providing
survey, access, ALTA 9, contiguity and tax lot coverage.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, the Borrower covenants and agrees with the Lenders
that:
SECTION 6.01. INDEBTEDNESS. The Borrower will not, and will not
permit any Restricted Subsidiary to,
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create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness existing on the date hereof and set forth in
Schedule 6.01 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof;
(iii) Indebtedness of the Borrower to any Restricted Subsidiary and of
any Restricted Subsidiary to the Borrower or any other Restricted
Subsidiary; PROVIDED that Indebtedness of any Restricted Subsidiary that is
not a Loan Party to the Borrower or any Subsidiary Loan Party shall be
subject to Section 6.05;
(iv) Guarantees by the Borrower of Indebtedness of any Restricted
Subsidiary, joint venture or Unrestricted Subsidiary and by any Restricted
Subsidiary of Indebtedness of the Borrower, any other Restricted
Subsidiary, any joint venture or any Unrestricted Subsidiary; PROVIDED that
(i) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness
of any Restricted Subsidiary that is not a Loan Party, and Guarantees by
the Borrower or any Restricted Subsidiary of Indebtedness of a joint
venture or an Unrestricted Subsidiary, in each case shall be subject to
Section 6.05 and (ii) any Guarantee of the Senior Subordinated Notes by a
Restricted Subsidiary shall be subordinated on the same terms as the Senior
Subordinated Notes, shall be given only by a Restricted Subsidiary that is
a Subsidiary Loan Party;
(v) Indebtedness of the Borrower or any Restricted Subsidiary incurred
to finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations and any Indebtedness
assumed in connection with the acquisition of any such assets or secured by
a Lien on any such assets prior to
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the acquisition thereof, including Capital Lease Obligations incurred
pursuant to transactions permitted by Section 6.07, and extensions,
renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity date
or decreased weighted average life thereof; PROVIDED that (A) such
Indebtedness is incurred prior to or within 90 days after such acquisition
or the completion of such construction or improvement and (B) the aggregate
principal amount of Indebtedness permitted by this clause (v) and
clause (vi) below shall not exceed $15,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Restricted Subsidiary
after the date hereof (other than pursuant to the CT Film Acquisition);
PROVIDED that (A) such Indebtedness exists at the time such Person becomes
a Restricted Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Restricted Subsidiary and (B) the
aggregate principal amount of Indebtedness permitted by this clause (vi)
and clause (v) above shall not exceed $15,000,000 at any time outstanding;
(vii) the Senior Subordinated Notes in an aggregate principal amount
not exceeding the principal amount thereof issued on or prior to the
Effective Date;
(viii) unsecured Indebtedness representing the deferred purchase price
for Permitted Acquisitions; PROVIDED that (a) no Restricted Subsidiary
shall be liable (pursuant to a Guarantee or otherwise) for any such
Indebtedness incurred in connection with any Permitted Acquisition other
than any Restricted Subsidiary resulting from such Permitted Acquisition
(b) any financial covenants relating to such Indebtedness shall be no more
restrictive to the Borrower and its Subsidiaries than, and the other
material terms with respect to such Indebtedness shall be no more
restrictive to the Borrower and its Restricted Subsidiaries, taken as a
whole, than, the equivalent such covenants and
105
terms contained in this Agreement and (c) the aggregate principal amount of
Indebtedness permitted by this clause (ix) shall not exceed $10,000,000 at
any time outstanding; and
(ix) other Indebtedness (including borrowings under overdraft
facilities) in an aggregate principal amount not exceeding $10,000,000 at
any time outstanding; PROVIDED that (a) the aggregate principal amount of
Indebtedness of the Borrower's Restricted Subsidiaries permitted by this
clause (x) shall not exceed $5,000,000 at any time outstanding and (b) all
such Indebtedness shall be unsecured, except that overdraft facilities may
be secured to the extent permitted by clause (f) of Section 6.03.
SECTION 6.02. CERTAIN EQUITY SECURITIES. The Borrower will not, nor
will it permit any Restricted Subsidiary to, issue any preferred stock or be or
become liable in respect of any obligation (contingent or otherwise) to
purchase, redeem, retire, acquire or make any other payment in respect of any
shares of capital stock of the Borrower or any Restricted Subsidiary or any
option, warrant or other right to acquire any such shares of capital stock,
except for actions otherwise permitted under Section 6.09. Notwithstanding the
foregoing, the Borrower may issue preferred stock that is not subject to any
mandatory right of redemption or any right to require the purchase thereof prior
to September 30, 2006, and any Restricted Subsidiary may issue preferred stock
to the Borrower or to any other Restricted Subsidiary.
SECTION 6.03. LIENS. The Borrower will not, and will not permit any
Restricted Subsidiary to, create, incur, assume or permit to exist any Lien on
any property or asset now owned or hereafter acquired by it, or assign or sell
any income or revenues (including accounts receivable) or rights in respect of
any thereof, except:
(a) Liens created under the Loan Documents;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of the Borrower or any
Restricted Subsidiary existing on
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the date hereof and set forth in Schedule 6.03; PROVIDED that (i) such Lien
shall not apply to any other property or asset of the Borrower or any
Restricted Subsidiary and (ii) such Lien shall secure only those
obligations that it secures on the date hereof and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof;
(d) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; PROVIDED that
(i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary , as the case may be,
(ii) such Lien shall not apply to any other property or assets of the
Borrower or any Restricted Subsidiary and (iii) such Lien shall secure only
those obligations that it secures on the date of such acquisition or the
date such Person becomes a Subsidiary, as the case may be and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof;
(e) Liens on fixed or capital assets acquired, constructed or improved
by the Borrower or any Restricted Subsidiary; PROVIDED that (i) such Liens
secure Indebtedness permitted by clause (v) of Section 6.01, (ii) such
Liens and the Indebtedness secured thereby are incurred prior to or within
90 days after such acquisition or the completion of such construction or
improvement, (iii) the Indebtedness secured thereby does not exceed 100% of
the cost of acquiring, constructing or improving such fixed or capital
assets and (iv) such security interests shall not apply to any other
property or assets of the Borrower or any Restricted Subsidiary other than
property directly related to such fixed or capital assets and of a type
customarily covered by such Liens, except that such security interests may
not apply to any accounts receivable or inventory; and
(f) Liens securing Indebtedness under (i) the Borrower's domestic
overdraft facilities in an amount not exceeding $5,000,000 and (ii) foreign
overdraft facilities of Foreign Subsidiaries in an amount not exceeding
$5,000,000; PROVIDED that Liens permitted by clause (ii) shall apply only
to properties and assets of Foreign Subsidiaries.
SECTION 6.04. FUNDAMENTAL CHANGES. (a) The Borrower will not and
will not permit any Restricted Subsidiary to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Default shall have occurred and be continuing
(i) any Restricted Subsidiary may merge into the Borrower in a transaction in
which the Borrower is the surviving corporation, (ii) any Restricted Subsidiary
may merge into any Subsidiary Loan Party in a transaction in which the surviving
entity is a Subsidiary Loan Party, (iii) any Restricted Subsidiary that is not a
Loan Party may merge into any Restricted Subsidiary that is not a Loan Party and
(iv) any Restricted Subsidiary may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and is not materially disadvantageous to the Lenders;
PROVIDED that any such merger involving a Person that is not a Wholly Owned
Subsidiary immediately prior to such merger shall not be permitted unless also
permitted by Section 6.05.
(b) The Borrower will not, and will not permit any of its Restricted
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Borrower and its Subsidiaries on the
date of execution of this Agreement and businesses reasonably related thereto.
SECTION 6.05. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND
ACQUISITIONS. The Borrower will not, and will not permit any of its Restricted
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a Wholly Owned Subsidiary prior to such merger) any
capital stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other interest
in, any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person constituting a business
unit, except:
(a) Permitted Investments;
(b) investments existing on the date hereof and set forth on Schedule
6.05, to the extent such investments would not be permitted under any other
clause of this Section;
(c) investments by the Borrower and its Restricted Subsidiaries in the
capital stock of their respective Restricted Subsidiaries; PROVIDED that
any such shares of capital stock shall be pledged pursuant to the Pledge
Agreement (subject to the limitations applicable to common stock of a
Foreign Subsidiary that is not a Subsidiary Loan Party, referred to in
Section 5.12) and the amount of such investments by the Borrower in
Restricted Subsidiaries that are not Loan Parties, plus the amount of all
loans and advances referred to in clause (d) below that are made by Loan
Parties to Restricted Subsidiaries that are not Loan Parties, plus the
amount of Indebtedness referred to in clause (e) below of Restricted
Subsidiaries that are not Loan Parties that is Guaranteed by any Loan
Party, shall not exceed $10,000,000 in the aggregate at any time
outstanding;
(d) loans or advances made by the Borrower to any Restricted
Subsidiary and made by any Restricted Subsidiary to the Borrower or any
other Restricted Subsidiary; PROVIDED that any such loans and advances made
by a Loan Party shall be evidenced by a promissory note pledged pursuant to
the Pledge Agreement and the amount of all such loans and advances by Loan
Parties to Subsidiaries that are not Loan Parties shall not exceed the
limitations set forth in clause (c) above;
(e) Guarantees constituting Indebtedness permitted by Section 6.01;
PROVIDED that (i) the
amount of Indebtedness of Restricted Subsidiaries that are not Loan Parties
that is Guaranteed by any Loan Party shall not exceed $5,000,000 in the
aggregate at any time outstanding and (ii) the amount of Indebtedness of
joint ventures and Unrestricted Subsidiaries that is Guaranteed by the
Borrower or any Restricted Subsidiary shall be subject to the limitations
of clause (h) below;
(f) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(g) Permitted Acquisitions; PROVIDED that (i) the consideration for
each Permitted Acquisition shall consist solely of cash, shares of common
stock of the Borrower, the assumption of Indebtedness of the acquired
Person or encumbering the acquired assets, Indebtedness referred to in
clause (viii) of Section 6.01 or a combination thereof and (ii) at the time
of and after giving effect to the consummation of any Permitted Acquisition
the sum of the unused Revolving Commitments and the Borrower's and
Restricted Subsidiaries' Permitted Investments and cash balances shall not
be less than $20,000,000;
(h) investments in joint ventures and Unrestricted Subsidiaries in an
aggregate amount, on a cumulative basis during the term of this Agreement,
not exceeding the sum of (i) $5,000,000, plus (ii) the aggregate amount of
dividends, interest, principal payments and returns of capital received
from time to time during the term of this Agreement by the Borrower and its
Restricted Subsidiaries in respect of investments made under this
clause (h), plus (iii) the unutilized portion of the Borrower Amount as of
the date of investment, PROVIDED that (A) the aggregate amount invested in
joint ventures and in Unrestricted Subsidiaries during the term of this
Agreement (excluding amounts invested in reliance upon clause (ii) above)
shall not at any time exceed $10,000,000, (B) if an Unrestricted Subsidiary
is
declared to be a Restricted Subsidiary, compliance with the foregoing
limitations shall thereafter be determined as though such Subsidiary had
never been an Unrestricted Subsidiary and (C) for purposes of determining
compliance with the foregoing limitations, any Guarantee by the Borrower or
any Restricted Subsidiary of Indebtedness or other monetary obligations of
a joint venture or Unrestricted Subsidiary shall be deemed to constitute an
investment therein in an amount equal to the Indebtedness or other monetary
obligations so Guaranteed;
(i) other loans, advances and investments not in excess of $5,000,000
outstanding at any time; and
(j) notes or other evidence of Indebtedness acquired as consideration
in connection with a sale, transfer, lease or other disposition of any
asset by the Borrower or any of the Restricted Subsidiaries.
SECTION 6.06. ASSET SALES. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, sell, transfer, lease or otherwise
dispose of any asset, including any capital stock, nor will the Borrower permit
any of it Restricted Subsidiaries to issue any additional shares of its capital
stock or other ownership interest in such Restricted Subsidiary, except:
(a) sales of inventory, used or surplus equipment and Permitted
Investments in the ordinary course of business;
(b) sales, transfers and dispositions to the Borrower or a Restricted
Subsidiary; PROVIDED that any such sales, transfers or dispositions
involving a Restricted Subsidiary that is not a Loan Party shall be made in
compliance with Section 6.10;
(c) leases and licenses entered into in the ordinary course of
business;
(d) sales in connection with sale-leasebacks permitted under
Section 6.07;
(e) sales of investments referred to in clauses (a), (b) and (h) of
Section 6.05;
(f) sales, transfers and dispositions of assets (other than capital
stock of a Subsidiary) that are not permitted by any other clause of this
Section; PROVIDED that the aggregate fair market value of all assets sold,
transferred or otherwise disposed of in reliance upon this clause (f) shall
not, in the aggregate, exceed $30,000,000 during the term of this
Agreement; and
(g) sales, transfers and dispositions of Foreign Assets; and
(h) transfers and dispositions constituting investments permitted
under Section 6.05;
PROVIDED that all sales, transfers, leases and other dispositions permitted
hereby (other than those permitted by clause (b) above) shall be made for fair
value and for at least 80% cash consideration (except that those permitted by
clause (a) above shall be made on terms that are customary in the ordinary
course).
SECTION 6.07. SALE AND LEASE-BACK TRANSACTIONS. The Borrower will
not, and will not permit any Restricted Subsidiary to, enter into any
arrangement, directly or indirectly, with any Person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred, except for any such sale of
fixed or capital assets that is consummated within 90 days after the date the
Borrower or such Restricted Subsidiary acquires or finishes construction of such
fixed or capital asset.
SECTION 6.08. HEDGING AGREEMENTS. The Borrower will not, and will
not permit any of its Restricted Subsidiaries to, enter into any Hedging
Agreement, other than Hedging Agreements entered into in
the ordinary course of business to hedge or mitigate risks to which the Borrower
or any Restricted Subsidiary is or expects to be exposed in the conduct of its
business or the management of its liabilities.
SECTION 6.09. RESTRICTED PAYMENTS; CERTAIN PAYMENTS OF INDEBTEDNESS.
(a) The Borrower will not, and will not permit any Restricted Subsidiary to,
declare or make, or agree to pay or make, directly or indirectly, any Restricted
Payment, except (i) Wholly Owned Subsidiaries may declare and pay dividends with
respect to their capital stock and Restricted Subsidiaries that are not Wholly
Owned Subsidiaries may declare and pay dividends ratably with respect to their
capital stock, (ii) the Borrower may make Restricted Payments, not exceeding
$2,000,000 during any fiscal year, pursuant to and in accordance with stock
option plans or other benefit plans for management or employees of the Borrower
and its Restricted Subsidiaries, and (iii) the Borrower may, subject to
Section 6.02, make dividends consisting solely of shares of its capital stock.
(b) The Borrower will not, and will not permit any Subsidiary to,
make or agree to pay or make, directly or indirectly, any payment or other
distribution (whether in cash, securities or other property) of or in respect of
principal of or interest on any Senior Subordinated Note, or any payment or
other distribution (whether in cash, securities or other property), including
any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of any Senior Subordinated
Note, except payment of regularly scheduled interest payments as and when due in
respect of the Senior Subordinated Notes.
SECTION 6.10. TRANSACTIONS WITH AFFILIATES. The Borrower will not,
and will not permit any Restricted Subsidiary to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates (including any Subsidiary), except (a) transactions in the
ordinary course of business that are at prices and on terms and conditions not
less favorable to the Borrower or such Restricted Subsidiary than could be
obtained on
an arm's-length basis from unrelated third parties, (b) transactions between or
among the Borrower and the Subsidiary Loan Parties not involving any other
Affiliate, (c) any Restricted Payment permitted by Section 6.09, and
(d) transactions expressly contemplated by Schedule 6.10.
SECTION 6.11. RESTRICTIVE AGREEMENTS. The Borrower will not and will
not permit any Restricted Subsidiary to, directly or indirectly, enter into,
incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon (a) the ability of the Borrower or any
Restricted Subsidiary to create, incur or permit to exist any Lien upon any of
its property or assets, or (b) the ability of any Restricted Subsidiary to pay
dividends or other distributions with respect to any shares of its capital stock
or to make or repay loans or advances to the Borrower or any other Restricted
Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted
Subsidiary; PROVIDED that (i) the foregoing shall not apply to restrictions and
conditions imposed by law or by any Loan Document, (ii) the foregoing shall not
apply to restrictions and conditions existing on the date hereof identified on
Schedule 6.11 (but shall apply to any extension, renewal, amendment or
modification expanding the scope of, any such restriction or condition), (iii)
the foregoing shall not apply to customary restrictions and conditions contained
in agreements relating to the sale of a Subsidiary or assets pending such sale,
provided such restrictions and conditions apply only to the Subsidiary or assets
that are to be sold and such sale is permitted hereunder, (iv) clause (a) of the
foregoing shall not apply to restrictions or conditions imposed by any agreement
relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such
Indebtedness, (v) clause (a) of the foregoing shall not apply to customary
provisions in contracts restricting the assignment thereof and (vi) the
foregoing shall not apply to restrictions imposed by any agreement relating to
Indebtedness of a Foreign Subsidiary that applies only to such Foreign
Subsidiary and its assets.
SECTION 6.12. AMENDMENT OF MATERIAL DOCUMENTS. The Borrower will
not, and will not permit any Subsidiary to, amend, modify or waive any of its
rights under (a) its certificate of incorporation, by-laws or other
organizational documents (other than amendments and modifications that are not
adverse to the interests of the Lenders and do not impair the exercise of
remedies under any Security Document), (b) the Senior Subordinated Notes or any
Senior Subordinated Note Document, (c) any Split-Off Document (other than
amendments and modifications made after the Split-Off that are not materially
adverse to the interests of the Lenders) or (d) any agreement or document
identified on Schedule 3.19 or relating to any transaction referred to on
Schedule 6.10; PROVIDED that the Borrower or any Subsidiary may amend, modify or
waive any of its rights under any agreement or document referred to in
clause (d) above if such amendment, modification or waiver (i) is on terms no
less favorable to the Borrower and its Subsidiaries than would be obtained on an
arm's length basis from unrelated third parties and (ii) could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 6.13. CAPITAL EXPENDITURES. The Borrower will not make, and
will not permit its Restricted Subsidiaries to make, Capital Expenditures other
than Capital Expenditures made by the Borrower and its Restricted Subsidiaries
in any fiscal year of the Borrower in an amount greater than (a) $30,000,000
plus, for each fiscal year following the Effective Date (commencing with the
1998 fiscal year), an amount equal to the excess, if any, of $30,000,000 over
the aggregate amount of Capital Expenditures made in the immediately preceding
fiscal year (including, with respect to 1997, those capital expenditures of
Huntsman Polymers Corporation's CT Film Division that would qualify as "Capital
Expenditures" under this Agreement if made by the Borrower and its Restricted
Subsidiaries), plus (b) amounts available from time to time to be invested in
joint ventures and Unrestricted Subsidiaries under clause (h) of Section 6.05;
PROVIDED that, to the extent that Capital Expenditures are made in reliance upon
clause (b) above, amounts available to be invested in joint ventures and
Unrestricted Subsidiaries under clause (h) of Section 6.02 shall be deemed
utilized
thereunder for purposes of determining compliance therewith.
SECTION 6.14. LEVERAGE RATIO. The Borrower will not permit the
Leverage Ratio as of any date during any period set forth below (inclusive of
the specified first and last day of such period) to be in excess of the ratio
set forth below opposite such period:
Period Ratio
------ -----
Effective Date-September 30, 1998 6.00 to 1.00
October 1, 1998-March 31, 1999 5.50 to 1.00
April 1, 1999-September 30, 1999 5.00 to 1.00
October 1, 1999-September 30, 2000 4.50 to 1.00
October 1, 2000-September 30, 2001 4.00 to 1.00
October 1, 2001-and thereafter 3.50 to 1.00
SECTION 6.15. INTEREST COVERAGE RATIO. The Borrower will not permit
the ratio of Consolidated EBITDA to Cash Interest Expense for any period of four
consecutive fiscal quarters ending during any period set forth below (inclusive
of the specified first and last day of such period) to be less than the ratio
set forth below opposite such period:
Period Ratio
------ -----
December 31, 1997-September 30, 1998 1.50 to 1.00
October 1, 1998-March 31, 1999 1.75 to 1.00
April 1, 1999-September 30, 1999 2.00 to 1.00
October 1, 1999-September 30, 2000 2.25 to 1.00
October 1, 2000-September 30, 2001 2.50 to 1.00
October 1, 2001-September 30, 2002 2.75 to 1.00
October 1, 2002-and thereafter 3.00 to 1.00
SECTION 6.16. MINIMUM NET WORTH. The Borrower will not permit its
Adjusted Consolidated Net Worth at the end of any fiscal quarter to be less than
the sum of (a) $60,400,000 plus (b) 50% of consolidated net income of the
Borrower and its consolidated Restricted Subsidiaries for each fiscal quarter of
the Borrower ending after the Effective Date and on or prior to such date for
which such consolidated net income is positive plus (c) 50% of the amount by
which Adjusted Consolidated
Net Worth shall have been increased during the period from the Effective Date to
such date as a result of the issuance by the Borrower of additional shares of
its capital stock or any capital contribution to the Borrower.
SECTION 6.17. DESIGNATED SENIOR DEBT. The Borrower shall not
designate any Indebtedness (other than indebtedness under the Loan Documents) as
"Designated Senior Debt" for purposes of and as defined in the Senior
Subordinated Note Documents.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(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 Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of the Borrower or any Subsidiary in or in connection with any Loan
Document or any amendment or modification thereof or waiver thereunder, or
in any report, certificate, financial statement or other document furnished
pursuant to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have
been incorrect when made or deemed made in any material respect;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.04 (with respect to the
existence of the Borrower) or 5.11 or in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof from
the Administrative Agent to the Borrower (which notice will be given at the
request of any Lender);
(f) the Borrower or any Restricted Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become due
and payable and following the expiration of any applicable grace period;
(g) any event or condition occurs that results in any Material
indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice) the holder or holders of
any Material Indebtedness or any trustee or agent on its or their behalf to
cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity; PROVIDED that this clause (g) shall not apply to
secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower or any Restricted Subsidiary (other than
Immaterial Subsidiaries) or its debts, or of a substantial part of its
assets,
under any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Restricted Subsidiary (other than Immaterial
Subsidiaries) or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for 60 days or
an order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Borrower or any Restricted Subsidiary (other than Immaterial
Subsidiaries) shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect, (ii) consent to the institution of, or fail
to contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Restricted Subsidiary (other than
Immaterial Subsidiaries) or for a substantial part of its assets, (iv) file
an answer admitting the material allegations of a petition filed against it
in any proceeding described in clause (h) of this Article, (v) make a
general assignment for the benefit of creditors or (vi) take any action for
the purpose of effecting any of the foregoing;
(j) the Borrower or any Restricted Subsidiary (other than Immaterial
Subsidiaries) shall become unable, admit in writing its inability or fail
generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000 (net of amounts covered by insurance as to
which the insurer has not denied liability) shall be rendered against the
Borrower, any Restricted Subsidiary (other than Immaterial Subsidiaries) or
any combination thereof and the
same shall remain undischarged for a period of 30 consecutive days during
which execution shall not be effectively stayed, or any action shall be
legally taken by a judgment creditor to attach or levy upon any assets of
the Borrower or any Restricted Subsidiary (other than Immaterial
Subsidiaries) to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the
Borrower and its Subsidiaries in an aggregate amount exceeding
(i) $2,500,000 in any year or (ii) $5,000,000 for all periods;
(m) any Lien purported to be created under any Security Document shall
cease to be, or shall be asserted by any Loan Party not to be, a valid and
perfected Lien on any Collateral, with the priority required by the
applicable Security Document, except (i) as a result of the sale or other
disposition of the applicable Collateral in a transaction permitted under
the Loan Documents, (ii) as a result of (x) the Collateral Agent's failure
to take any action reasonably requested by the Borrower in order to
maintain a valid and perfected Lien on any Collateral or (y) any action
taken by the Collateral Agent to release any Lien on any Collateral or
(iii) Liens on Collateral with an aggregate fair market value not exceeding
$1,000,000; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared
to be due and payable may thereafter be declared to be due and payable), and
thereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and all fees and other obligations of
the Borrower accrued hereunder, shall become due and payable immediately,
without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower; and in case of any event with
respect to the Borrower described in clause (h) or (i) of this Article, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
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 other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
bank serving as Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own gross
negligence or wilful misconduct. The Administrative Agent shall not be deemed
not to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with any Loan Document, (ii) the contents of any certificate, report
or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by
the proper Person. The Administrative Agent also may rely upon any statement
made to it orally or by telephone and believed by it to be made by the proper
Person, and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of each Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor the
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Bank and the Borrower.
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor. If no successor 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 its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent that
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall he discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a
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successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.
After the Administrative Agent's resignation hereunder, the provisions of this
Article and Section 9.03 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative 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 upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
The provisions of this Article shall apply to the Collateral Agent as
though named herein as the Administrative Agent.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 000 Xxxxxxxx Xxx, Xxxx Xxxx Xxxx
00000, Attention of Xxxxxxx X. Xxxxxx (Telecopy No. (000) 000-0000), with a
copy to Xxxxxx X. Xxxxxxx (Telecopy No. (000) 000-0000);
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(b) if to the Administrative Agent or the Collateral Agent, to The
Chase Manhattan Bank, Loan and Agency Services Group, Xxx Xxxxx Xxxxxxxxx
Xxxxx, 0xx Floor, New York, New York 10081, Attention of Xxxxx Xxxxxx
(Telecopy No. (000) 000-0000), with a copy to The Chase Manhattan Bank,
000 Xxxx Xxxxxx, Xxx Xxxx 00000, Attention of Xxxxxx Xxxxx (Telecopy
No. (000) 000-0000);
(c) if to the Issuing Bank, to The Chase Manhattan Bank, Loan and
Agency Services Group, Xxx Xxxxx Xxxxxxxxx Xxxxx, 8th Floor, New York, New
York 10081, Attention of Xxxxx Xxxxxx (Telecopy No. (000) 000-0000) with a
copy to The Chase Manhattan Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention of Xxxxxx Xxxxx (Telecopy No. (000) 000-0000);
(d) if to the Swingline Lender, to The Chase Manhattan Bank, Loan and
Agency Services Group, Xxx Xxxxx Xxxxxxxxx Xxxxx, 8th Floor, New York,
New York 10081, Attention of Xxxxx Xxxxxx (Telecopy No. (000) 000-0000)
with a copy to The Chase Manhattan Bank, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention of Xxxxxx Xxxxx (Telecopy No. (000) 000-0000);
and
(e) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. WAIVERS; AMENDMENTS. (a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or
125
the exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Issuing Bank and the Lenders hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of any Loan
Document or consent to any departure by any Loan Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality
of the foregoing, the making of a Loan or issuance or a Letter of Credit shall
not be construed as a waiver of any Default, regardless of whether the
Administrative Agent, any Lender or the Issuing Bank may have had notice or
knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or, in the case of any
other Loan Document, pursuant to an agreement or agreements in writing
entered into by the Administrative Agent or Collateral Agent, as applicable,
and the Loan Party or Loan Parties that are parties thereto, in each case
with the consent of the Required Lenders; PROVIDED that no such agreement
shall (i) increase the Commitment of any Lender without the written consent
of such Lender, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the scheduled date of payment of the principal amount
of any Loan or LC Disbursement, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the
written consent of each Lender affected thereby, (iv) change Section 2.18(b)
or (c) in a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, (v) change any of the
provisions of this Section or the definition of the term "Required Lenders"
or any other provision of any Loan
126
Document specifying the number or percentage of Lenders (or Lenders of any
Class) required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender (or each Lender of such Class, as the case may be), (vi) release any
Subsidiary Loan Party from its Guarantee under the Guarantee Agreement (except
as expressly provided in the Guarantee Agreement), or limit its liability in
respect of such Guarantee, without the written consent of each Lender,
(vii) release all or any substantial part of the Collateral from the Liens of
the Security Documents (except as expressly provided therein), without the
written consent of each Lender or (viii) change any provisions of any Loan
Document in a manner that by its terms adversely affects the rights in respect
of payments due to Lenders holding Loans of any Class differently than those
holding Loans of any other Class, without the written consent of Lenders holding
a majority in interest of the outstanding Loans and unused Commitments of each
affected Class; PROVIDED FURTHER that (A) no such agreement shall amend, modify
or otherwise affect the rights or duties of the Administrative Agent, the
Collateral Agent, the Issuing Bank or the Swingline Lender without the prior
written consent of the Administrative Agent, the Collateral Agent, the Issuing
Bank or the Swingline Lender, as the case may be, and (B) any waiver, amendment
or modification of this Agreement that by its terms affects the rights or duties
under this Agreement of the Revolving Lenders (but not the Term Loan Lenders) or
the Term Loan Lenders (but not the Revolving Lenders) may be effected by an
agreement or agreements in writing entered into by the Borrower and the
percentage in interest of the affected Class of Lenders that would be required
to consent thereto under this Section if such Class of Lenders were the only
Class of Lenders hereunder at the time.
SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Collateral Agent and their respective Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent and the Collateral Agent, in connection with the
syndication of the credit facilities provided for herein, the
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preparation and administration of the Loan Documents or any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, the Collateral Agent, the Issuing Bank or any
Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights in connection with
the Loan Documents, including its rights under this Section, or in connection
with the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, the
Collateral Agent, the Issuing Bank and each Lender, and each Related Party of
any of the foregoing Persons (each such Person being called an "INDEMNITEE")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of any Loan Document or any other agreement or instrument
contemplated hereby, the performance by the parties to the Loan Documents of
their respective obligations thereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit
or the use of the proceeds therefrom (including any refusal by the Issuing Bank
to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any Mortgaged Property or any other property
currently or formerly owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in
128
any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; PROVIDED that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses resulted from the gross
negligence or wilful misconduct of such Indemnitee or any Affiliate of such
Indemnitee (or of any officer, director, employee, advisor or agent of such
Indemnitee or any such Indemnitee's Affiliates).
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent, the Collateral Agent, the Issuing
Bank or the Swingline Lender under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to the Administrative Agent, the Collateral
Agent, the Issuing Bank or the Swingline Lender, as the case may be, such
Xxxxxx's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
PROVIDED that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, the Collateral Agent, the Issuing Bank or the
Swingline Lender in its capacity as such. For purposes hereof, a Lender's "pro
rata share" shall be determined based upon its share of the sum of the total
Revolving Exposures, outstanding Term Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and each hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement or any agreement or instrument contemplated hereby,
the Transactions, any Loan or Letter of Credit or the use of the proceeds
thereof.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
129
SECTION 9.04. SUCCESSORS AND ASSIGNS. (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 permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of the Issuing
Bank that issues any Letter of Credit) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Collateral
Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it); PROVIDED that
(i) except in the case of an assignment to a Lender or an Affiliate of a Lender,
each of the Borrower and the Administrative Agent (and, in the case of an
assignment of all or a portion of a Revolving Commitment or any Lender's
obligations in respect of its LC Exposure or Swingline Exposure, the Issuing
Bank and the Swingline Lender) must give their prior written consent to such
assignment (which consent shall not be unreasonably withheld), (ii) except in
the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Xxxxxx's Commitment
or Loans, the amount of the Commitment or Loans of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000 unless each of the Borrower and the Administrative
Agent otherwise consent, (iii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Xxxxxx's rights and
obligations under this Agreement, except that this
130
clause (iii) shall not be construed to prohibit the assignment of a
proportionate part of all the assigning Xxxxxx's rights and obligations in
respect of one Class of Commitments or Loans, (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,500, and
(v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent and the Borrower an Administrative Questionnaire; and
PROVIDED FURTHER that any consent of the Borrower otherwise required under this
paragraph shall not be required if an Event of Default under clause (h) or (i)
of Article VII has occurred and is continuing. Subject to acceptance and
recording thereof pursuant to paragraph (d) of this Section, from and after the
effective date specified in each Assignment and Acceptance the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one its offices in The City of New York a copy
of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "REGISTER"). The entries in
the Register shall be
131
conclusive, and the Borrower, the Administrative Agent, the Issuing Bank and the
Lenders may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, the Issuing Bank and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Xxxxxx and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "PARTICIPANT") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
PROVIDED that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Issuing Bank and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce the Loan Documents and to approve
any amendment, modification or waiver of any provision of the Loan Documents;
PROVIDED that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any
132
amendment, modification or waiver described in the first proviso to
Section 9.02(b) that affects such Participant. Subject to paragraph (f) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.18(c) as though it were a
Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the Loans or Commitments with respect to
which such participation has been sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrower's prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 2.17 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 2.17(e) as though it were a
Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; PROVIDED that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. SURVIVAL. All covenants, agreements, representations
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution
133
and delivery of the Loan Documents and the making of any Loans and issuance of
any Letters of Credit, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent, the
Collateral Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and
Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Document and any separate letter agreements with respect to fees
payable to the Administrative Agent or the Issuing Bank constitute the entire
contract among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written, relating to
the subject matter hereof. Except as provided in Section 4.01, this Agreement
shall become effective when it shall have been executed by the Administrative
Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
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SECTION 9.07. SEVERABILITY. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
that such Lender may have.
SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to any
Loan Document, or for recognition or enforcement of any judgment, and each of
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the
135
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement or
any other Loan Document shall affect any right that the Administrative Agent,
the Collateral Agent, the Issuing Bank or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement or any other Loan Document
against the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
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SECTION 9.11. HEADINGS. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. CONFIDENTIALITY. Each of the Administrative Agent, the
Collateral Agent, the Issuing Bank and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to any
assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement, (g) with the consent of
the Borrower or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, the Collateral Agent, the Issuing Bank or
any Lender on a nonconfidential basis from a source other than the Borrower.
For the purposes of this Section, "INFORMATION" means all information received
from the Borrower relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent, the Collateral Agent,
the Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by
the Borrower. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such
137
Information as such Person would accord to its own confidential information.
SECTION 9.13. INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts that are treated as interest
on such Loan under applicable law (collectively the "CHARGES"), shall exceed the
maximum lawful rate (the "MAXIMUM RATE") that may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
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.
HUNTSMAN PACKAGING CORPORATION,
by /s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
138
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent,
by /s/ Xxxxxx Xxxxxxxxx
-----------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
BANK OF MONTREAL,
by /s/ Xxxx X. Xxxxxx
-----------------------
Name: Xxxx X. Xxxxxx
Title: Director
THE BANK OF NEW YORK,
by /s/ Xxxx Xxxxx
-----------------------
Name: Xxxx Xxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA,
by /s/ A.S. Xxxxxxxxxx
-----------------------
Name: A.S. Xxxxxxxxxx
Title: Sr. Team Leader --
Loan Operations
BANK OF TOKYO MITSUBISHI TRUST
COMPANY,
by /s/ Xxxxx X. XxXxxxxxxx
-------------------------
Name: Xxxxx X. XxXxxxxxxx
Title: Vice President
139
BANK ONE, UTAH, N.A.,
by /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BANQUE PARIBAS,
by /s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Associate
by /s/ Xxxxx X. Xxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
BHF-BANK AKTIENGESELLSCHAFT,
by /s/ Xxxxxxx Xxxxxx
-----------------------
Name: Xxxxxxx Xxxxxx
Title: Assistant Treasurer
by /s/ Xxxx Xxxxx
-----------------------
Name: Xxxx Xxxxx
Title: Assistant Vice President
CIBC INC.,
by /s/ Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
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CREDIT LYONNAIS LOS ANGELES BRANCH,
by /s/ Xxxxxx X. Xxxxx
-----------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and
Manager
DRESDNER BANK AG, NEW YORK BRANCH
AND GRAND CAYMAN BRANCH,
by /s/ Xxxx X. Xxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice
President
by /s/ Xxxxxxxx Xxxxx
-----------------------
Name: Xxxxxxxx Xxxxx
Title: Assistant Treasurer
THE FIRST NATIONAL BANK OF CHICAGO,
by /s/ Xxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
THE FUJI BANK, LIMITED, LOS ANGELES
AGENCY,
by /s/ Xxxxxxxx Xxxxxx
-----------------------
Name: Xxxxxxxx Xxxxxx
Title: Joint General Manager
141
HIBERNIA NATIONAL BANK,
by /s/ Xxxxx X. Xxxxxx
-----------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
KEYBANK NATIONAL ASSOCIATION,
by /s/ X.X. Xxxxxx
-----------------------
Name: X.X. Xxxxxx
Title: Assistant Vice President
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY,
by /s/ X. Xxxxxx Xxxxxxx, XX
-------------------------
Name: X. Xxxxxx Xxxxxxx, XX
Title: Deputy General Manager
by /s/ Xxxxx Xxxx
-----------------------
Name: Xxxxx Xxxx
Title: Vice President
MELLON BANK, N.A.
by /s/ Xxxx X. Xxxxx
-----------------------
Name: Xxxx X. Xxxxx
Title: Vice President
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THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY,
by /s/ Xxxxxxx Xxxxxx
-----------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
NATEXIS BANQUE-BFCE,
by /s/ Xxxx X. Xxxxx
-----------------------
Name: Xxxx X. Xxxxx
Title: Vice President
by /s/ Xxxxxx Xxxxxx
-----------------------
Name: Xxxxxx Xxxxxx
Title: First VP and Regional
Manager
NATIONAL CITY BANK,
by /s/ Xxxxxx X. Xxxx
-----------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
143
NATIONSBANK OF TEXAS, N.A.,
by /s/ Xxxxx Xxxxxxx
-----------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION,
by /s/ Xxxxx X. Xxxx
-----------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
THE SUMITOMO BANK, LIMITED,
by /s/ Xxxx Xxxxx
-----------------------
Name: Xxxx Xxxxx
Title: Joint Central Manager
C.S. BANK NATIONAL ASSOCIATION,
by /s/ Xxxxxxxx Xxxxx
-----------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
