Exhibit 10.20
EXECUTION COPY
$275,000,000
CREDIT AGREEMENT
Dated as of January 21, 1998
Among
ACCURIDE CORPORATION
and
ACCURIDE CANADA XXX.XX BORROWERS
and
THE INITIAL LENDERS, INITIAL ISSUING BANK AND
SWING LINE BANK NAMED HEREIN
AS INITIAL LENDERS, INITIAL ISSUING BANK AND SWING LINE BANK
and
CITICORP USA, INC.
AS ADMINISTRATIVE AGENT
and
CITICORP SECURITIES, INC.
AS ARRANGER
and
BANKERS TRUST COMPANY
AS SYNDICATION AGENT
and
XXXXX FARGO BANK N.A.
AS DOCUMENTATION AGENT
T A B L E O F C O N T E N T S
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms. . . . . . . . . . . . . . . . . . . . . . 2
1.02. Computation of Time Periods. . . . . . . . . . . . . . . . . . . 32
1.03. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . 32
1.04. Currency Equivalent. . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
2.01. The Advances . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.02. Making the Advances. . . . . . . . . . . . . . . . . . . . . . . 34
2.03. Issuance of and Drawings and Reimbursement Under Letters of
Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
2.04. Repayment of Advances. . . . . . . . . . . . . . . . . . . . . . 38
2.05. Termination or Reduction of the Commitments. . . . . . . . . . . 40
2.06. Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . . . 41
2.07. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
2.08. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
2.09. Conversion of Advances . . . . . . . . . . . . . . . . . . . . . 45
2.10. Increased Costs, Etc.. . . . . . . . . . . . . . . . . . . . . . 46
2.11. Payments and Computations. . . . . . . . . . . . . . . . . . . . 48
2.12. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
2.13. Sharing of Payments, Etc.. . . . . . . . . . . . . . . . . . . . 53
2.14. Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . 54
2.15. Defaulting Lenders . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE III
CONDITIONS OF LENDING
3.01. Conditions Precedent to the Initial . . . . . . . . . . . . . . 56
3.02. Conditions Precedent to Each Borrowing and Issuance. . . . . . . 61
3.03. Determinations Under Section 3.01. . . . . . . . . . . . . . . . 61
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of Each Borrower. . . . . . . . . 62
ARTICLE V
COVENANTS OF THE BORROWERS
5.01. Affirmative Covenants. . . . . . . . . . . . . . . . . . . . . . 67
5.02. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . 70
5.03. Reporting Requirements . . . . . . . . . . . . . . . . . . . . . 78
5.04. Financial Covenants. . . . . . . . . . . . . . . . . . . . . . . 81
ARTICLE VI
GUARANTY
6.01. Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
6.02. Guaranty Absolute. . . . . . . . . . . . . . . . . . . . . . . . 83
6.03. Waivers and Acknowledgments. . . . . . . . . . . . . . . . . . . 85
6.04. Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . . . 86
6.05. Continuing Guaranty; Assignments . . . . . . . . . . . . . . . . 86
ARTICLE VII
EVENTS OF DEFAULT
7.01. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . 87
ARTICLE VIII
THE ADMINISTRATIVE AGENT
8.01. Authorization and Action . . . . . . . . . . . . . . . . . . . . 89
8.02. Administrative Agent's Reliance, Etc.. . . . . . . . . . . . . . 90
8.03. Citicorp and Affiliates. . . . . . . . . . . . . . . . . . . . . 90
8.04. Lender Party Credit Decision . . . . . . . . . . . . . . . . . . 90
8.05. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . 91
8.06. Successor Administrative Agents. . . . . . . . . . . . . . . . . 92
8.07. Arranger, Syndication Agent and Documentation Agent. . . . . . . 93
ARTICLE
MISCELLANEOUS
9.01. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 93
9.02. Notices, Etc.. . . . . . . . . . . . . . . . . . . . . . . . . . 94
9.03. No Waiver; Remedies. . . . . . . . . . . . . . . . . . . . . . . 94
9.04. Costs, Expenses. . . . . . . . . . . . . . . . . . . . . . . . . 95
9.05. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . 96
9.06. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . 96
9.07. Assignments and Participations . . . . . . . . . . . . . . . . . 97
9.08. Replacements of Lenders Under Certain Circumstances. . . . . . . 99
9.09. Execution in Counterparts. . . . . . . . . . . . . . . . . . . . 100
9.10. No Liability of the Issuing Bank . . . . . . . . . . . . . . . . 100
9.11. Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . 100
9.12. Jurisdiction, Etc. . . . . . . . . . . . . . . . . . . . . . . . 101
9.13. Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
9.14. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . 102
9.15. Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . 102
SCHEDULES
Schedule I Commitments and Applicable Lending Offices
Schedule II Subsidiary Guarantors
Schedule 3.01(d) Surviving Debt
Schedule 3.01(l) Restructuring Memorandum
Schedule 4.01(a) Investor Group
Schedule 4.01(b) Subsidiaries
Schedule 4.01(d) Government and Third Party Approvals
Schedule 4.01(p) Existing Debt
Schedule 5.02(a) Existing Liens
Schedule 5.02(e) Existing Investments
EXHIBITS
Exhibit A-1 - Form of Term A Note
Exhibit A-2 - Form of Term B Note
Exhibit A-3 - Form of Revolving Credit Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Pledge Agreement
Exhibit E - Form of Subsidiaries Guaranty
Exhibit F - Form of Opinion of Borrowers' Counsel
Exhibit G - Form of Opinion of Borrowers' Canadian Counsel
Exhibit H - Form of Solvency Opinion
Exhibit I - Form of Solvency Certificate
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of January 21, 1998 among ACCURIDE
CORPORATION, a Delaware corporation (the "U.S. BORROWER"), and ACCURIDE CANADA
INC., a corporation organized and existing under the law of the Province of
Ontario (the "CANADIAN BORROWER", and, together with the U.S. Borrower, the
"BORROWERS"), the banks, financial institutions and other institutional lenders
listed on the signature pages hereof as the Initial Lenders (the "INITIAL
LENDERS"), CITIBANK, N.A., a national banking association ("CITIBANK"), as the
initial issuing bank (the "INITIAL ISSUING BANK"), CITICORP USA, INC., a
Delaware corporation ("CITICORP"), as the swing line bank (the "SWING LINE
BANK") and as administrative agent (together with any successor appointed
pursuant to Article VIII, the "ADMINISTRATIVE AGENT") for the Lender Parties (as
hereinafter defined), Citicorp Securities, Inc. ("CSI"), as arranger (the
"ARRANGER") for the Facilities (as hereinafter defined), BANKERS TRUST COMPANY
("BANKERS TRUST "), as syndication agent ("SYNDICATION AGENT") for the Lender
Parties and XXXXX FARGO BANK N.A. ("XXXXX FARGO"), as documentation agent
("DOCUMENTATION AGENT") for the Lender Parties.
PRELIMINARY STATEMENTS:
(1) Pursuant to the Stock Subscription and Redemption Agreement
dated November 17, 1997 (as amended, supplemented or otherwise modified in
accordance with its terms, to the extent permitted in accordance with the Loan
Documents (as hereinafter defined) the "STOCK PURCHASE AGREEMENT"), Hubcap
Acquisition, L.L.C. ("HUBCAP"), an affiliate of Kohlberg Kravis Xxxxxxx & Co.,
L.P. ("KKR" and, together with Hubcap, the "INVESTOR GROUP") will acquire
approximately 90% of the U.S. Borrower (the "ACQUISITION") from Xxxxxx Dodge
Corporation ("XXXXXX DODGE"), for cash consideration of approximately
$108,000,000. Following the Acquisition, Xxxxxx Dodge will continue to own
approximately 10% of the U.S. Borrower.
(2) The Borrowers have requested that, immediately upon the
consummation of the Acquisition, the Lender Parties lend up to $215,000,000 to
the U.S. Borrower and up to $60,000,000 to the Canadian Borrower to enable
Hubcap to consummate the Acquisition and to pay transaction fees and expenses in
connection therewith, and that from time to time, the Lender Parties lend to the
U.S. Borrower and issue Letters of Credit for the benefit of the U.S. Borrower
to finance the foregoing, to provide working capital for the U.S. Borrower and
its Subsidiaries and for other general corporate purposes.
(3) The Lender Parties have indicated their willingness to agree to
lend such amounts on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ACQUISITION" has the meaning specified in the Preliminary Statements
to this Agreement.
"ADMINISTRATIVE AGENT" has the meaning specified in the recital of
parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative Agent maintained by the Administrative Agent with Citibank
at its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No.
3685-2248, Reference: Accuride.
"ADVANCE" means a Term A Advance, a Term B Advance, a Revolving Credit
Advance, a Swing Line Advance or a Letter of Credit Advance.
"AFFILIATE" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person (or, in the case of any Lender which is an investment fund, (i)
the investment advisor thereof, and (ii) any other investment fund having
the same investment advisor), or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the terms
"controlling," "controlled by" and "under common control with") of a Person
means the possession, direct or indirect, of the power to vote 10% or more
of the Voting Stock of such Person or to direct or cause the direction of
the management and policies of such Person, whether through the ownership
of Voting Stock, by contract or otherwise.
"APPLICABLE LENDING OFFICE" means, with respect to (a) each Term A
Lender, such Lender Party's Canadian Lending Office in the case of a Base
Rate Advance and such Lender Party's Eurodollar Lending Office in the case
of a Eurodollar Rate Advance and (b) for each other Lender Party, such
Lender Party's Domestic Lending Office in the case of a Base Rate Advance
and such Lender Party's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance.
"APPLICABLE MARGIN" means, for Advances outstanding under each of the
Term A Facility, the Term B Facility and the Revolving Credit Facility, a
percentage per annum determined by reference to the Performance Level as
set forth for each such Facility below:
(a) for Advances outstanding under the Term A Facility:
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============================================================================
PERFORMANCE LEVEL BASE RATE ADVANCES EURODOLLAR RATE ADVANCES
============================================================================
I 0.250% 1.250%
============================================================================
II 0.250% 1.250%
============================================================================
III 0.500% 1.500%
============================================================================
IV 0.750% 1.750%
============================================================================
V 1.125% 2.125%
============================================================================
VI 1.375% 2.375%
============================================================================
(b) for Advances outstanding under the Term B Facility:
============================================================================
PERFORMANCE LEVEL BASE RATE ADVANCES EURODOLLAR RATE ADVANCES
============================================================================
I 0.500% 1.500%
============================================================================
II 0.500% 1.500%
============================================================================
III 0.750% 1.750%
============================================================================
IV 1.000% 2.000%
============================================================================
V 1.250% 2.250%
============================================================================
VI 1.500% 2.500%
============================================================================
(c) for Advances outstanding under the Revolving Credit Facility:
============================================================================
PERFORMANCE LEVEL BASE RATE ADVANCES EURODOLLAR RATE ADVANCES
============================================================================
I 0.000% 0.875%
============================================================================
II 0.125% 1.125%
============================================================================
III 0.375% 1.375%
============================================================================
IV 0.625% 1.625%
============================================================================
V 1.000% 2.000%
============================================================================
VI 1.250% 2.250%
============================================================================
4
For outstanding Advances under each of the Facilities, the Applicable
Margin for each Base Rate Advance and each Eurodollar Rate Advance shall,
(i) for the first six months following the Closing Date, be determined by
reference to Performance Level V, and (ii) thereafter, the Applicable
Margin for each Base Rate Advance shall be determined by reference to the
Performance Level in effect from time to time and the Applicable Margin for
each Eurodollar Rate Advance shall be determined by reference to the
Performance Level in effect on the first day of each Interest Period for
such Advance. Changes in the Applicable Margin resulting from changes in
the Performance Level shall become effective (for purposes of this
definition only, the date of such effectiveness being the "EFFECTIVE DATE")
as of the first day following the last day of the most recent Fiscal
Quarter or Fiscal Year for which (A) financial statements are delivered to
the Administrative Agent pursuant to Section 5.03(b) or (c) and (B) a
certificate of the chief financial officer of the U.S. Borrower is
delivered by the U.S. Borrower to the Administrative Agent setting forth,
with respect to such financial statements, the then-applicable Performance
Level and the basis of the calculations therefor, and shall remain in
effect until the next change to be effected pursuant to this definition;
PROVIDED that, (i) if either Borrower shall have made any payments in
respect of interest during the period (for purposes of this definition
only, the "INTERIM PERIOD") from and including the Effective Date to the
day on which any change in Performance Level is determined as provided
above, then the amount of the next such payment of interest due by such
Borrower on or after such day shall be increased or decreased by an amount
equal to any underpayment or overpayment so made by such Borrower during
such Interim Period and (ii) each determination of the Performance Level
pursuant to this definition shall be made with respect to the Measurement
Period ending at the end of the fiscal period covered by the relevant
financial statements.
"APPLICABLE PERCENTAGE" means (a) for the six month period immediately
following the Closing Date, a rate per annum equal to 0.425% and (b)
thereafter, a rate per annum determined by reference to the applicable
Performance Level as set forth below:
============================================================
PERFORMANCE LEVEL COMMITMENT FEE
============================================================
I 0.250%
============================================================
II 0.300%
============================================================
III 0.350%
============================================================
IV 0.375%
============================================================
V 0.375%
============================================================
VI 0.425%
============================================================
The Applicable Percentage determined pursuant to clause (b) above shall be
determined by reference to the Performance Level in effect from time to
time. Changes in the Applicable Percentage resulting from changes in the
Performance Level shall become effective (for purposes of this definition
only, the date of such effectiveness being the "EFFECTIVE DATE") as of
5
the first day following the last day of the most recent Fiscal Quarter or
Fiscal Year for which (A) financial statements are delivered to the
Administrative Agent pursuant to Section 5.03(b) or (c) and (B) a
certificate of the chief financial officer of the U.S. Borrower is
delivered by the U.S. Borrower to the Administrative Agent setting forth,
with respect to such financial statements, the then-applicable Performance
Level and the basis of the calculations therefor, and shall remain in
effect until the next change to be effected pursuant to this definition;
PROVIDED that, (i) if the U.S. Borrower shall have made any payments in
respect of commitment fees during the period (for purposes of this
definition only, the "INTERIM PERIOD") from the Effective Date to the day
on which any change in Performance Level is determined as provided above,
then the amount of the next such payment in respect of commitment fees due
by such Borrower on or after such day shall be increased or decreased by an
amount equal to any underpayment or overpayment so made by such Borrower
during such Interim Period and (ii) each determination of the Performance
Level pursuant to this definition shall be made with respect to the
Measurement Period ending at the end of the fiscal period covered by the
relevant financial statements.
"APPLICABLE RATE" has the meaning specified in Section 2.11(d).
"APPROPRIATE BORROWER" means, (a) with respect to the Term A Facility,
the Canadian Borrower and (b) with respect to the Term B Facility, the
Revolving Credit Facility, the Swing Line Facility or the Letter of Credit
Facility, the U.S. Borrower.
"APPROPRIATE LENDER" means, at any time, with respect to (a) any of
Term A Facility, the Term B Facility or the Revolving Credit Facility, a
Lender that has a Commitment with respect to such Facility at such time,
(b) the Letter of Credit Facility, (i) the Issuing Bank and (ii) the other
Revolving Credit Lenders and (c) the Swing Line Facility, (i) the Swing
Line Bank and (ii) if the other Revolving Credit Lenders have made Swing
Line Advances pursuant to Section 2.02(b) that are outstanding at such
time, each such other Revolving Credit Lender.
"ARRANGER" has the meaning specified in the recital of parties to this
Agreement.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender Party and an Eligible Assignee, and accepted by the
Administrative Agent and the Appropriate Borrower, in accordance with
Section 9.07 and in substantially the form of Exhibit C hereto.
"AVAILABLE AMOUNT" means, as of any date of determination, an amount
equal to (a) the sum of (i) the amount of any capital contributions (other
than the capital contributions referred to in Section 3.01(b)) made in cash
to the U.S. Borrower during the period from the Business Day immediately
following the Closing Date to such date, (ii) the aggregate amount of Net
Cash Proceeds which are required to be used to prepay Advances pursuant to
Section 2.06(b)(ii) but are not so used, and are retained by the U.S.
Borrower, pursuant to Section 2.06(c) on or prior to such date, (iii) an
amount equal to (x) the cumulative amount of Excess Cash Flow for all
Fiscal Years completed prior to such date MINUS (y) the portion of such
Excess Cash Flow that has been on or prior to such date (or will be)
applied to the prepayment
6
of Advances in accordance with Section 2.06(b)(i), (iv) the aggregate
amount of all cash dividends and other cash distributions received by the
U.S. Borrower or any Subsidiary Guarantor on or prior to such date from any
Persons which are not Restricted Subsidiaries (other than the portion of
any such dividends and other distributions that is used by the U.S.
Borrower or any Subsidiary Guarantor to pay taxes), (v) the aggregate
amount of all cash repayments of principal received by the U.S. Borrower or
any Subsidiary Guarantor on or prior to such date from any Persons which
are not Restricted Subsidiaries in respect of loans made by the U.S.
Borrower or such Subsidiary Guarantor to such Persons and (vi) the
aggregate amount of all net cash proceeds received by the U.S. Borrower or
any Subsidiary Guarantor on or prior to such date in connection with the
sale, transfer or other disposition of its ownership interest in any Person
which is not a Restricted Subsidiary LESS (b) any amounts in subclauses (i)
through (vi) of clause (a) above used (i) for Investments pursuant to
Section 5.02(e)(ix) or (xii), (ii) for prepayments of Debt pursuant to
5.02(g) or (iii) for Capital Expenditures pursuant to Section 5.02(j)(i).
"AVAILABLE LC AMOUNT" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"BANK HEDGE AGREEMENT" means any interest rate Hedge Agreement
permitted under Article V that is entered into by and between the U.S.
Borrower and any Hedge Bank.
"BANKERS TRUST" has the meaning specified in the recital of parties to
this Agreement.
"BASE RATE" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
highest of:
(a) (i) with respect to Term B Advances and Revolving
Credit Advances, the rate of interest announced publicly by Citibank
in New York, New York, from time to time, as Citibank's base rate and
(ii) with respect to Term A Advances, the variable rate of interest
per annum specified from time to time by Citibank as the reference
rate of interest established or quoted from time to time by Citibank
Canada and then in effect for determining interest rates on United
States dollar denominated commercial loans made by Citibank Canada in
Canada;
(b) the sum (adjusted to the nearest 1/16 of 1% or, if
there is no nearest 1/16 of 1%, to the next higher 1/16 of 1%) of
(i) 1/2 of 1% per annum, PLUS (ii) the rate obtained by dividing
(A) the latest three-week moving average of secondary market morning
offering rates in the United States for three-month certificates of
deposit of major United States money market banks, such three-week
moving average (adjusted to the basis of a year of 360 days) being
determined weekly on each Monday (or, if such day is not a Business
Day, on the next succeeding Business Day) for the three-week period
ending on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by the
Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of
7
quotations for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected by
Citibank, by (B) a percentage equal to 100% minus the average of the
daily percentages specified during such three-week period by the Board
of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, but not
limited to, any emergency, supplemental or other marginal reserve
requirement) for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, PLUS (iii) the
average during such three-week period of the annual assessment rates
estimated by Citibank for determining the then current annual
assessment payable by Citibank to the Federal Deposit Insurance
Corporation (or any successor) for insuring U.S. dollar deposits of
Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds
Rate.
"BASE RATE ADVANCE" means an Advance that bears interest as provided
in Section 2.07(a)(i).
"BORROWERS" has the meaning specified in the recital of parties to
this Agreement.
"BORROWER'S ACCOUNT" means (i) with respect to the Canadian Borrower,
the account of the Canadian Borrower maintained by the Canadian Borrower
with Citibank Canada at its office at 000 Xxxxx Xxxxxx West, 10th Floor,
Toronto, Ontario, Canada, M5J2M3, Account No. 2/012752/019, Re: Accuride
Canada Inc. and (ii) with respect to the U.S. Borrower, the account of the
U.S. Borrower maintained by the U.S. Borrower with Citibank at its office
at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No. 4075-2127, Re:
Accuride Corporation.
"BORROWING" means a Term A Borrowing, a Term B Borrowing, a Revolving
Credit Borrowing or a Swing Line Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not required
or authorized by law to close in New York City and with respect to notices
and determinations in connection with, and payments of principal and
interest on, the Term A Advances, on which banks are not required or
authorized to close in Xxxxxxx, Xxxxxxx, Xxxxxx, and if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are
carried on in the London interbank market.
"CANADIAN BORROWER" has the meaning specified in the recital of
parties to this Agreement.
"CANADIAN LENDING OFFICE" means, with respect to any Term A Lender,
the office of a Subsidiary or Affiliate of such Lender Party specified as
its "Canadian Lending Office" opposite its name on Schedule I hereto or in
the Assignment and Acceptance pursuant to which it became a Lender Party,
as the case may be, or such other office of such Lender Party as
8
such Lender Party may from time to time specify to the Canadian Borrower
and the Administrative Agent.
"CAPITAL EXPENDITURES" means, for any Person for any period, the sum,
without duplication, of all expenditures made, directly or indirectly
(whether paid in cash or accrued as liabilities and including in all events
all amounts expended or capitalized under Capitalized Leases, but excluding
any amount representing capitalized interest), by such Person or any of its
Restricted Subsidiaries during such period for equipment, fixed assets,
real property or improvements, or for replacements or substitutions
therefor or additions thereto, that have been or should be, in accordance
with GAAP, reflected as additions to property, plant or equipment on a
Consolidated balance sheet of such Person, PROVIDED that Capital
Expenditures shall not include (without duplication) (a) any expenditures
made in connection with the replacement, substitution, repair or
restoration of any assets to the extent financed (i) with insurance
proceeds received by the U.S. Borrower or any of its Restricted
Subsidiaries on account of the loss of, or any damage to, the assets being
replaced, substituted for, repaired or restored or (ii) with the proceeds
of any compensation awarded to the U.S. Borrower or any of its Restricted
Subsidiaries as a result of the taking, by eminent domain or condemnation,
of the assets being replaced or substituted for, (b) any expenditures for
the purchase price of any equipment that is purchased simultaneously with
the trade-in of any existing equipment by the U.S. Borrower or any of its
Restricted Subsidiaries to the extent that the gross amount of such
purchase price is reduced by any credit granted by the seller of such
equipment for the equipment being traded in, (c) any expenditures for the
purchase price of any property, plant or equipment purchased within one
year of the consummation of any sale, lease, transfer or other disposition
of any asset of the U.S. Borrower or any of its Restricted Subsidiaries in
accordance with the provisions of Section 5.02(d) to the extent purchased
with Net Cash Proceeds of such sale, lease, transfer or other disposition,
(d) Investments made pursuant to Section 5.02(e)(vii), or (e) any
acquisition by the U.S. Borrower or any of its Restricted Subsidiaries (by
purchase or otherwise) of all or substantially all of the business,
property or fixed assets of, or the stock or other evidence of beneficial
ownership of, any Restricted Subsidiary or any division, business unit or
line of business of any Restricted Subsidiary in accordance with Section
5.02(e).
"CAPITALIZED LEASES" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"CASH COLLATERAL ACCOUNT" has the meaning specified in the Pledge
Agreement.
"CASH EQUIVALENTS" means (i) marketable securities (a) issued or
directly and unconditionally guaranteed as to interest and principal by the
United States government or (b) issued by any agency of the United States
of America the obligations of which are backed by the full faith and credit
of the United States, in each case maturing within 24 months after the date
of acquisition thereof; (ii) marketable direct obligations issued by any
state of the United States of America or any political subdivision of any
such state or any public instrumentality thereof, in each case maturing
within 24 months after the date of acquisition thereof and having, at the
time of the acquisition thereof, an investment grade rating generally
obtainable from either Standard & Poor's Ratings Group ("S&P") or Xxxxx'x
Investors Service, Inc.
9
("MOODY'S"); (iii) commercial paper maturing no more than 12 months from
the date of creation thereof and having, at the time of the acquisition
thereof, a rating of a least A-2 from S&P or at least P-2 from Moody's;
(iv) domestic and eurodollar certificates of deposit or bankers'
acceptances maturing within 24 months after the date of acquisition thereof
and issued or accepted by any Lender or by any other commercial bank that
has combined capital and surplus of not less than $250,000,000; (v)
repurchase agreements with a term of not more than 30 days for underlying
securities of the types described in clauses (i), (ii) and (iv) above
entered into with any commercial bank meeting the requirements specified in
clause (iv) above or with any securities dealer of recognized national
standing, (vi) shares of investment companies that are registered under the
Investment Company Act of 1940 and that invest solely in one or more of the
types of investments referred to in clauses (i) through (v) above, and
(vii) in the case of any Restricted Subsidiary which is not a U.S. Person,
high quality, short-term liquid Investments made by such Restricted
Subsidiary in the ordinary course of managing its surplus cash position in
a manner consistent with past practices.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the U.S. Environmental
Protection Agency.
"CHANGE OF CONTROL" means, and shall be deemed to have occurred, if:
(i) (a) the Investor Group shall at any time not own, in the aggregate,
directly or indirectly, beneficially and of record, at least 35% of the
outstanding Voting Stock of U.S. Borrower (other than as the result of one
or more widely distributed offerings of common stock of the U.S. Borrower,
in each case whether by the U.S. Borrower or by the Investor Group) and/or
(b) any person, entity or "group" (within the meaning of Section 13(d) or
14 (d) of the Exchange Act) shall at any time have acquired direct or
indirect beneficial ownership of a percentage of the outstanding Voting
Stock of U.S. Borrower that exceeds the percentage of such Voting Stock
then beneficially owned, in the aggregate, by the Investor Group, UNLESS,
in the case of either clause (a) or (b) above, the Investor Group shall, at
the relevant time, have the collective right or ability, either by contract
or pursuant to a written proxy or other written evidence of voting power,
to elect or designate for election a majority of the Board of Directors of
the U.S. Borrower; and/or (ii) at any time Continuing Directors shall not
constitute a majority of the Board of Directors of the U.S. Borrower. For
purposes of this definition, "Continuing Director" means, as of any date of
determination, an individual (A) who is a member of the Board of Directors
of the U.S. Borrower on the Closing Date, (B) who, as of such date of
determination, has been a member of such Board of Directors for at least
the 12 preceding months (or, if such date of determination occurs during
the period comprising the first 12 months after the Closing Date, since the
Closing Date), or (C) who has been nominated to be a member of such Board
of Directors, directly or indirectly, by KKR or its Affiliates, or Persons
nominated by KKR or its Affiliates, or who has been nominated to be a
member of such Board of Directors by a majority of the other Continuing
Directors then in office.
"CITIBANK" has the meaning specified in the recital of parties to this
Agreement.
10
"CITICORP" has the meaning specified in the recital of parties to this
Agreement.
"CLOSING DATE" means the date on which the Initial Extension of Credit
occurs following satisfaction or waiver of the conditions set forth in
Sections 3.01 and 3.02 of this Agreement.
"COLLATERAL" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to
any Lien in favor of the Administrative Agent for the benefit of the
Secured Parties.
"COLLATERAL DOCUMENTS" means the Pledge Agreement and any other
agreement that creates or purports to create a Lien in favor of the
Administrative Agent for the benefit of the Secured Parties.
"COMMITMENT" means a Term A Commitment, a Term B Commitment, a
Revolving Credit Commitment or a Letter of Credit Commitment.
"CONFIDENTIAL INFORMATION" has the meaning specified in Section 9.11.
"CONSOLIDATED" refers to the consolidation of accounts in accordance
with GAAP.
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a conversion of
Advances of one Type into Advances of the other Type pursuant to
Section 2.09 or 2.10.
"CSI" has the meaning specified in the recital of parties to this
Agreement.
"CUMULATIVE AVAILABLE CONSOLIDATED NET INCOME" means, as of any date
of determination, Consolidated Net Income of the U.S. Borrower and its
Restricted Subsidiaries less cash dividends paid with respect to preferred
stock for the period (taken as one accounting period) commencing on the
Closing Date and ending on the last day of the most recent Fiscal Quarter
for which financial statements have been delivered to the Lender Parties
pursuant to Section 5.03(b) or (c).
"CURRENT ASSETS" of any Person means all assets of such Person that
would, in accordance with GAAP, be classified as current assets of a
company conducting a business the same as or similar to that of such
Person, after deducting adequate reserves in each case in which a reserve
is proper in accordance with GAAP, but excluding the current portion of any
deferred income taxes.
"CURRENT LIABILITIES" of any Person means (a) all Debt of such Person
that by its terms is payable on demand or matures within one year after the
date of determination (excluding any Debt renewable or extendible, at the
option of such Person, to a date more than one year from such date or
arising under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year
from such date) and (b) all other items (including taxes accrued as
estimated) that in accordance with GAAP would be classified
11
as current liabilities of such Person, but excluding the current portion of
any deferred income taxes.
"DEBT" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all Obligations of such Person for
the deferred purchase price of property or services (other than trade
payables and accrued expenses incurred in the ordinary course of such
Person's business) that in accordance with GAAP would be shown on the
liability side of the balance sheet of such Person, (c) all Obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all Obligations of such Person created or arising under
any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), it being understood that
if such Person has not assumed or otherwise become liable for such
Obligations, the amount of the Debt of such Person in connection therewith
shall be limited to the lesser of the face amount of the related
Obligations or the fair market value of all property of such Person
securing such Obligations, (e) all Obligations of such Person as lessee
under Capitalized Leases, (f) all Obligations, contingent or otherwise, of
such Person under acceptance, letter of credit or similar facilities issued
for the account of such Person, (g) all Obligations of such Person in
respect of Hedge Agreements, (h) all Debt of others referred to in
clauses (a) through (g) above or clause (i) below guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed directly
or indirectly by such Person through an agreement (i) to pay or purchase
such Debt or to advance or supply funds for the payment or purchase of such
Debt, (ii) to purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of enabling the debtor
to make payment of such Debt or to assure the holder of such Debt against
loss, (iii) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered) or
(iv) otherwise to assure a creditor against loss; PROVIDED that any such
guaranteed Obligations shall not include endorsements of instruments for
deposit or collection in the ordinary course of business, and (i) all Debt
referred to in clauses (a) through (h) above of another Person secured by
(or for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such Debt;
PROVIDED that the amount of Debt of such Person under clauses (h) and (i)
above shall (subject to any obligation set forth therein) be deemed to be
the principal amount of the Debt guaranteed or secured thereby and, with
respect to any Lien on property of such Person as described in clause (i)
above, if such Person has not assumed or otherwise become liable for any
such Debt, the amount of the Debt of such Person in connection therewith
shall be limited to the lesser of the face amount of such Debt or the fair
market value of all property of such Person securing such Debt.
"DECLINED AMOUNT" has the meaning specified in Section 2.06(c).
"DECLINING LENDER" has the meaning specified in Section 2.06(c).
12
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"DEFAULTED ADVANCE" means, with respect to any Lender Party at any
time, the portion of any Advance required to be made by such Lender Party
to either Borrower pursuant to Section 2.01 or 2.02 at or prior to such
time which has not been made by such Lender Party or by the Administrative
Agent for the account of such Lender Party pursuant to Section 2.02(e) as
of such time. In the event that a portion of a Defaulted Advance shall be
deemed made pursuant to Section 2.15(a), the remaining portion of such
Defaulted Advance shall be considered a Defaulted Advance originally
required to be made pursuant to Section 2.01 on the same date as the
Defaulted Advance so deemed made in part.
"DEFAULTED AMOUNT" means, with respect to any Lender Party at any
time, any amount required to be paid by such Lender Party to the
Administrative Agent or any other Lender Party hereunder or under any other
Loan Document at or prior to such time which has not been so paid as of
such time, including, without limitation, any amount required to be paid by
such Lender Party to (a) the Swing Line Bank pursuant to Section 2.02(b) to
purchase a portion of a Swing Line Advance made by the Swing Line Bank,
(b) the Issuing Bank pursuant to Section 2.03(c) to purchase a portion of a
Letter of Credit Advance made by the Issuing Bank, (c) the Administrative
Agent pursuant to Section 2.02(e) to reimburse the Administrative Agent for
the amount of any Advance made by the Administrative Agent for the account
of such Lender Party, (d) any other Lender Party pursuant to Section 2.13
to purchase any participation in Advances owing to such other Lender Party
and (e) the Administrative Agent or the Issuing Bank pursuant to
Section 8.05 to reimburse the Administrative Agent or the Issuing Bank for
such Lender Party's ratable share of any amount required to be paid by the
Lender Parties to the Administrative Agent or the Issuing Bank as provided
therein. In the event that a portion of a Defaulted Amount shall be deemed
paid pursuant to Section 2.15(b), the remaining portion of such Defaulted
Amount shall be considered a Defaulted Amount originally required to be
paid hereunder or under any other Loan Document on the same date as the
Defaulted Amount so deemed paid in part.
"DEFAULTING LENDER" means, at any time, any Lender Party that, at such
time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take
any action or be the subject of any action or proceeding of a type
described in Section 7.01(f).
"DOCUMENTATION AGENT" has the meaning specified in the recital of
parties to this Agreement.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party, as the case may be, or such
other office of such Lender Party as such Lender Party may from time to
time specify to the U.S. Borrower and the Administrative Agent.
13
"DOMESTIC SUBSIDIARY" means any Subsidiary of the U.S. Borrower which
is not a Foreign Subsidiary.
"EBITDA" means, for any period, the sum, determined on a Consolidated
basis, of the amounts for such period of (a) Net Income PLUS (b) to the
extent included in computing Net Income, the sum (without duplication) of
(i) Interest Expense, (ii) taxes computed on the basis of income,
(iii) depreciation expense, (iv) amortization expense (including
amortization of deferred financing fees), (v) any expenses or charges
incurred in connection with any issuance of debt or equity securities
(including upfront fees payable in respect of bank facilities), (vi) any
fees and expenses related to Investments permitted pursuant to Section
5.02(e) of this Agreement, (vii) losses on asset sales,
(viii) restructuring charges or reserves, (ix) any deduction for minority
interest expense, (x) fees or expenses incurred or paid by the U.S.
Borrower or any of its Restricted Subsidiaries in connection with the
Acquisition, the financing therefor and the other transactions contemplated
hereby and thereby, (xi) any other non-cash charges, (xii) any other
non-recurring charges, (xiii) currency losses and (xiv) additional expenses
in connection with labor disruptions or the potential therefor, MINUS (c)
to the extent included in computing Net Income the sum, without
duplication, of the amounts for such period of (i) any non-recurring gains,
(ii) all non-cash gains, (iii) gains on asset sales, and (iv) currency
gains, in each case of the U.S. Borrower and its Restricted Subsidiaries,
determined in accordance with GAAP for such period, PROVIDED that, for
purposes of such calculation, in the case of any Restricted Subsidiary
acquired by the U.S. Borrower or any of its Restricted Subsidiaries
following the commencement of any such period, amounts attributable to such
Restricted Subsidiary shall be calculated as though such Restricted
Subsidiary had been acquired on the first day of such period, and PROVIDED
FURTHER that for purposes of Section 5.02(e)(xi) and 5.04 only, in the case
of each Person who becomes a Restricted Subsidiary of the U.S. Borrower or
any of its Restricted Subsidiaries following the commencement of such
period, EBITDA shall be increased or decreased, as the case may be, by the
Pro Forma EBITDA Adjustment.
"ELIGIBLE ASSIGNEE" means (a) with respect to any Term B Facility or
the Revolving Credit Facility, (i) a Lender; (ii) an Affiliate of a Lender;
(iii) a commercial bank organized under the laws of the United States, or
any State thereof, and having total assets of at least $3,000,000,000;
(iv) a savings and loan association or savings bank organized under the
laws of the United States, or any State thereof, and having total assets of
at least $3,000,000,000; (v) a commercial bank organized under the laws of
any other country that is a member of the OECD or has concluded special
lending arrangements with the International Monetary Fund associated with
its General Arrangements to Borrow, or a political subdivision of any such
country, and having total assets in excess of $3,000,000,000, so long as
such bank is acting through a branch or agency located in the United
States; (vi) the central bank of any country that is a member of the OECD;
and (vii) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership, trust or other
entity) that is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business and having total
assets in excess of $250,000,000; and (viii) any other Person approved by
the Administrative Agent and the U.S. Borrower, such approval not to be
unreasonably withheld or delayed, (b) with respect to the Term A Facility,
(i) a bank listed on
14
Schedule I or II to the Bank Act (Canada), and having a combined capital
and surplus of at least $250,000,000, and, so long as no Event of Default
has occurred and is continuing, approved by the Canadian Borrower, such
approval not to be unreasonably withheld or delayed, (ii) an Affiliate of a
Lender or (iii) any other Person approved by the Administrative Agent and
the Canadian Borrower, such approval not to be unreasonably withheld or
delayed, and (c) with respect to the Letter of Credit Facility, a Person
that is an Eligible Assignee under subclause (ii), (iii) or (v) of
clause (a) of this definition and is approved by the Administrative Agent
and the U.S. Borrower, such approval not to be unreasonably withheld or
delayed; PROVIDED, HOWEVER, that neither any Loan Party nor any Affiliate
of a Loan Party shall qualify as an Eligible Assignee under this
definition.
"ENVIRONMENTAL ACTION" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, any Environmental
Permit or Hazardous Material or arising from alleged injury or threat to
health, safety or the environment, including, without limitation, (a) by
any governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any governmental
or regulatory authority or third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"ENVIRONMENTAL LAW" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety or
natural resources, including, without limitation, those relating to the
use, handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time. Section references to ERISA are to ERISA as in
effect at the date of this Agreement and any subsequent provisions of ERISA
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA AFFILIATE" means each person (as defined in Section 3(9) of
ERISA) that together with any Loan Party would be deemed to be a "single
employer" within the meaning of Section 414(b) or (c) of the Internal
Revenue Code or, solely for purposes of Section 302 of ERISA and Section
412 of the Internal Revenue Code, is treated as a single employer under
Section 414 of the Internal Revenue Code.
"EUROCURRENCY LIABILITIES" has the meaning specified in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Eurodollar Lending
Office" opposite its name on Schedule I
15
hereto or in the Assignment and Acceptance pursuant to which it became a
Lender Party (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender Party as such Lender Party may
from time to time specify to the Appropriate Borrower and the
Administrative Agent.
"EURODOLLAR RATE" means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the average
(rounded upward to the nearest whole multiple of 1/16 of 1% per annum, if
such average is not such a multiple of 1/16 of 1%) of the rate per annum at
which deposits in U.S. dollars are offered by the principal office of each
of the Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period in an amount substantially equal to such
Reference Bank's Eurodollar Rate Advance comprising part of such Borrowing
to be outstanding during such Interest Period (or, if any Reference Bank
shall not have such a Eurodollar Rate Advance, $1,000,000) and for a period
equal to such Interest Period by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period. The
Eurodollar Rate for any Interest Period for each Eurodollar Rate Advance
comprising part of the same Borrowing shall be determined by the
Administrative Agent on the basis of applicable rates furnished to and
received by the Administrative Agent from the Reference Banks two Business
Days before the first day of such Interest Period, SUBJECT, HOWEVER, to the
provisions of Section 2.07.
"EURODOLLAR RATE ADVANCE" means an Advance that bears interest as
provided in Section 2.07(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities
(or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate
Advances is determined) having a term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 7.01.
"EXCESS CASH FLOW" means, for any period, an amount equal to the sum,
without duplication, of:
(a) Consolidated Net Income of the U.S. Borrower and its
Restricted Subsidiaries for such period (other than any portion of
Consolidated Net Income attributable to earnings in respect of joint
venture interests in excess of dividends or
16
distributions actually received by the U.S. Borrower and its
Restricted Subsidiaries), PLUS
(b) the aggregate amount of all non-cash charges deducted
in arriving at such Consolidated Net Income, PLUS
(c) the amount of any net decrease in the excess of
Consolidated Current Assets (excluding cash and Cash Equivalents) over
Consolidated Current Liabilities of the U.S. Borrower and its
Restricted Subsidiaries during such period, MINUS
(d) the aggregate amount of all non-cash credits included
in arriving at such Consolidated Net Income, PLUS
(e) the aggregate net non-cash loss realized by the U.S.
Borrower and its Restricted Subsidiaries in connection with the sale,
lease, transfer or other disposition of assets (other than sales of
inventory in the ordinary course of business) by the U.S. Borrower and
its Restricted Subsidiaries during such period, MINUS
(f) the aggregate amount of Capital Expenditures made by
the U.S. Borrower and its Restricted Subsidiaries in cash (excluding
the principal amount of any Debt incurred to finance such Capital
Expenditures, whether incurred in such period or a subsequent period)
pursuant to Section 5.02(j), MINUS
(g) the amount of any net increase in the excess of
Consolidated Current Assets (less cash and Cash Equivalents) over
Consolidated Current Liabilities of the U.S. Borrower and its
Restricted Subsidiaries during such period, MINUS
(h) the aggregate amount of any premium, make-whole or
penalty payments actually paid in cash during such period that are
required in connection with any prepayment of Debt and that are
accounted for by the U.S. Borrower as extraordinary items, MINUS
(i) the aggregate amount of all mandatory prepayments of
Revolving Credit Advances, Letter of Credit Advances and Swing Line
Advances made during such period (to the extent the Revolving Credit
Facility is permanently reduced by the amount of such prepayments),
MINUS
(j) the aggregate amount of all scheduled principal
payments of Debt of the U.S. Borrower or its Restricted Subsidiaries
(including, without limitation, Term A Advances and Term B Advances,
the principal component of payments with respect to Obligations under
Capitalized Leases and, so long as the Mexico Subsidiary is a
Restricted Subsidiary, all principal payments on revolving or term
loans of the Mexico Subsidiary (whether or not commitments are reduced
thereby), but excluding Revolving Credit Advances, Letter of Credit
Advances and Swing Line Advances), MINUS
17
(k) the amount of Investments made during such period
pursuant to Section 5.02(e) to the extent that such Investments were
financed with internally generated cash flow of the U.S. Borrower and
its Restricted Subsidiaries, MINUS
(l) the aggregate amount of expenditures actually made by
the U.S. Borrower and its Restricted Subsidiaries in cash during such
period (including, without limitation, the payment of financing fees)
to the extent that such expenditures are not expensed during such
period, MINUS
(m) payments by the Borrowers and their Restricted
Subsidiaries during such period in respect of long-term liabilities of
the Borrowers and their Restricted Subsidiaries other than Debt, MINUS
(n) the amount paid during such period by the U.S. Borrower
to repurchase shares of its capital stock (and/or options or warrants
in respect thereof) held by its officers, directors and employees so
long as such repurchase is pursuant to, and in accordance with the
terms of management and/or employee stock plans, stock subscription
agreements or shareholder agreements, MINUS
(o) the aggregate net non-cash gain realized by the U.S.
Borrower and its Restricted Subsidiaries in connection with the sale,
lease, transfer or other disposition of assets (other than sales of
inventory in the ordinary course of business) by the U.S. Borrower and
its Restricted Subsidiaries during such period.
"EXISTING DEBT" means Debt of the U.S. Borrower and its Restricted
Subsidiaries outstanding immediately before giving effect to the
Acquisition.
"FACILITY" means the Term A Facility, the Term B Facility, the
Revolving Credit Facility, the Swing Line Facility or the Letter of Credit
Facility.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average 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.
"FISCAL QUARTER" means any fiscal quarter of the U.S. Borrower and its
Consolidated Subsidiaries that occurs within any Fiscal Year.
"FISCAL YEAR" means a fiscal year of the U.S. Borrower and its
Consolidated Subsidiaries ending on December 31 in any calendar year.
18
"FIXED CHARGE COVERAGE RATIO" means, as of any date of determination,
the ratio of Consolidated EBITDA of the U.S. Borrower and its Restricted
Subsidiaries to the sum of (i) Consolidated Interest Expense, PLUS
(ii) Capital Expenditures made pursuant to Section 5.02(j)(i) from cash on
hand or Borrowings under the Revolving Credit Facility, PLUS
(iii) principal amounts of all Funded Debt payable (unless paid in a prior
period), in each case, by the U.S. Borrower and its Restricted Subsidiaries
for the most recently completed Measurement Period prior to such date
(other than mandatory prepayments pursuant to Section 2.06(b)(i), (ii) or
(iv)).
"FOREIGN GOVERNMENT SCHEME OR ARRANGEMENT" has the meaning specified
in Section 4.01(l)(ii).
"FOREIGN PLAN" has the meaning specified in Section 4.01(l)(ii).
"FOREIGN SUBSIDIARY" means any Subsidiary of the U.S. Borrower which
is a corporation organized under the laws of any jurisdiction other than
the United States or any state thereof.
"FUNDED DEBT" of any Person means Debt in respect of the Advances, in
the case of the Borrowers, and all other Debt of such Person that by its
terms matures more than one year after the date of determination or matures
within one year from such date but is renewable or extendible, at the
option of such Person, to a date more than one year after such date or
arises under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year
after such date, including, without limitation, all amounts of Funded Debt
of such Person required to be paid or prepaid within one year after the
date of determination.
"GAAP" has the meaning specified in Section 1.03.
"GUARANTY" has the meaning specified in Section 6.01.
"GUARANTEED OBLIGATIONS" has the meaning specified in Section 6.01(a).
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas and
(b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts, commodities future or option contracts
for materials used in the ordinary course of business and other similar
agreements.
19
"HEDGE BANK" means any Lender Party or any of its Affiliates in its
capacity as a party to a Bank Hedge Agreement.
"HUBCAP" has the meaning specified in the Preliminary Statements to
this Agreement.
"INDEMNIFIED PARTY" has the meaning specified in Section 9.04(b).
"INFORMATION MEMORANDUM" means the information memorandum dated
December 12, 1997 used by the Arranger in connection with the syndication
of the Commitments.
"INITIAL EXTENSION OF CREDIT" means the initial Borrowing hereunder.
"INITIAL ISSUING BANK" has the meaning specified in the recital of
parties to this Agreement.
"INITIAL LENDERS" has the meaning specified in the recital of parties
to this Agreement.
"INTEREST COVERAGE RATIO" means, as of any date of determination, the
ratio of Consolidated EBITDA of the U.S. Borrower and its Restricted
Subsidiaries to Consolidated Interest Expense of the U.S. Borrower and its
Restricted Subsidiaries for the most recently completed Measurement Period
prior to such date.
"INTEREST EXPENSE" means, for any Person for any period, cash interest
expense (including that attributable to Capital Leases in accordance with
GAAP), net of cash interest income, of such Person with respect to all
outstanding Debt of such Person, including, without limitation, all
commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing and net costs under
Hedge Agreements (other than currency swap agreements, currency future or
option contracts and other similar agreements), but excluding, however,
amortization of deferred financing costs and any other amounts of non-cash
interest, all as calculated in accordance with GAAP; PROVIDED, that for
purposes of the four Fiscal Quarters immediately following the Closing
Date, Interest Expense for each Measurement Period shall be calculated
after giving pro forma effect to Debt incurred in connection with the
Acquisition, as though such Debt had been incurred on the first day of such
Measurement Period and PROVIDED FURTHER that (a) except as provided in
clause (b) below, there shall be excluded from any determination of
Consolidated Interest Expense of the U.S. Borrower and its Restricted
Subsidiaries for any period the cash interest expense (or income) of all
Unrestricted Subsidiaries for such period to the extent otherwise included
in such Consolidated Interest Expense and (b) there shall be included in
any determination of Consolidated Interest Expense for the U.S. Borrower
and its Restricted Subsidiaries for any period the cash interest expense
(or income) of any Person which becomes a Restricted Subsidiary (through an
acquisition in accordance with Section 5.02(e) or designation or otherwise)
for such entire period, assuming that any Debt incurred or prepaid in
connection with any such acquisition or designation had been incurred or
prepaid on the first day of such period.
20
"INTEREST PERIOD" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing to either Borrower, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of any
Base Rate Advance into such Eurodollar Rate Advance, and ending on the last
day of the period selected by such Borrower pursuant to the provisions
below and, thereafter, each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending on the last day of the
period selected by such Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, or, if available to all of the Lenders, nine or twelve months, as
such Borrower may, upon notice received by the Administrative Agent not
later than 11:00 A.M. (New York City time) on the third Business Day prior
to the first day of such Interest Period, select; PROVIDED, HOWEVER, that:
(a) such Borrower may not select any Interest Period with
respect to any Eurodollar Rate Advance under a Facility that ends
after any principal repayment installment date for such Facility
unless, after giving effect to such selection, the aggregate principal
amount of Base Rate Advances and of Eurodollar Rate Advances having
Interest Periods that end on or prior to such principal repayment
installment date for such Facility shall be at least equal to the
aggregate principal amount of Advances under such Facility due and
payable on or prior to such date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing shall
be of the same duration;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, PROVIDED, HOWEVER, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on
a day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"INVESTMENT" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any capital stock or other ownership
or profit interest, warrants, rights, options, obligations or other
securities of such Person, any capital contribution to such Person or any
other investment in such Person, including, without limitation, any
arrangement pursuant to which the investor incurs Debt of the types
referred to in clause (h) or (i) of the definition of "DEBT" in respect of
such Person.
21
"INVESTOR GROUP" has the meaning specified in the Preliminary
Statements to this Agreement.
"ISSUING BANK" means the Initial Issuing Bank and each Eligible
Assignee to which the Letter of Credit Commitment hereunder has been
assigned pursuant to Section 9.07.
"KKR" has the meaning specified in the Preliminary Statements to this
Agreement.
"L/C RELATED DOCUMENTS" has the meaning specified in
Section 2.04(e)(ii)(A).
"LENDER PARTY" means any Lender, the Issuing Bank or the Swing Line
Bank.
"LENDERS" means the Initial Lenders and each Person that shall become
a Lender hereunder pursuant to Section 9.07.
"LETTERS OF CREDIT" has the meaning specified in Section 2.01(e).
"LETTER OF CREDIT ADVANCE" means an advance made by the Issuing Bank
or any Revolving Credit Lender pursuant to Section 2.03(c).
"LETTER OF CREDIT AGREEMENT" has the meaning specified in
Section 2.03(a).
"LETTER OF CREDIT COMMITMENT" means, with respect to the Issuing Bank
at any time, the amount set forth opposite the Issuing Bank's name on
Schedule I hereto under the caption "Letter of Credit Commitment" or, if
the Issuing Bank has entered into one or more Assignments and Acceptances,
set forth for the Issuing Bank in the Register maintained by the
Administrative Agent pursuant to Section 9.07(d) as the Issuing Bank's
"Letter of Credit Commitment", as such amount may be reduced at or prior to
such time pursuant to Section 2.05.
"LETTER OF CREDIT FACILITY" means, at any time, an amount equal to the
lesser of (a) the amount of the Issuing Bank's Letter of Credit Commitment
at such time and (b) $20,000,000, as such amount may be reduced at or prior
to such time pursuant to Section 2.05.
"LEVERAGE RATIO" means, as of any date of determination, the ratio of
(a) total Funded Debt of the U.S. Borrower and its Restricted Subsidiaries,
LESS the amount of cash reflected on the U.S. Borrower's balance sheet for
the most recently ended Fiscal Quarter in excess of $5,000,000, to (b) (i)
for purposes of determining compliance with Section 5.02(f)(v) and 5.04(a),
50% of Consolidated EBITDA and (ii) for all other purposes, Consolidated
EBITDA, in each case, of the U.S. Borrower and its Restricted Subsidiaries
for the most recently completed Measurement Period prior to such date.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, any agreement to
22
give any of the foregoing, any lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"LIGHT WHEELS FACILITY" means the manufacturing facility of the U.S.
Borrower located in Columbia, Tennessee.
"LOAN DOCUMENTS" means (a) for purposes of this Agreement and the
Notes and any amendment or modification hereof or thereof and for all other
purposes other than for purposes of the Guaranty, the Subsidiaries Guaranty
and the Collateral Documents, (i) this Agreement, (ii) the Notes, (iii) the
Guaranty, (iv) the Subsidiaries Guaranty, (v) the Collateral Documents and
(vi) each Letter of Credit Agreement and (b) for purposes of the Guaranty,
the Subsidiaries Guaranty and the Collateral Documents, (i) this Agreement,
(ii) the Notes, (iii) the Guaranty, (iv) the Subsidiaries Guaranty, (v) the
Collateral Documents, (vi) each Letter of Credit Agreement and (vii) each
Bank Hedge Agreement, in each case as amended, supplemented or otherwise
modified from time to time.
"LOAN PARTIES" means the Borrowers and the Subsidiary Guarantors.
"MAJORITY LENDERS" means at any time Lenders owed or holding at least
a majority in interest of the sum of (a) the aggregate principal amount of
the Advances outstanding at such time, (b) the aggregate Available LC
Amount of all Letters of Credit outstanding at such time, (c) the aggregate
unused Commitments under the Term A Facility and the Term B Facility at
such time and (d) the aggregate Unused Revolving Credit Commitments at such
time; PROVIDED, HOWEVER, that, if any Lender shall be a Defaulting Lender
at such time, there shall be excluded from the determination of Majority
Lenders at such time (A) the aggregate principal amount of the Advances
owing to such Lender (in its capacity as a Lender) and outstanding at such
time, (B) such Lender's Pro Rata Share of the aggregate Available LC Amount
of all Letters of Credit issued by such Lender and outstanding at such
time, (C) the aggregate unused Term A Commitments and Term B Commitments of
such Lender at such time and (D) the Unused Revolving Credit Commitment of
such Lender at such time. For purposes of this definition, the aggregate
principal amount of Swing Line Advances owing to the Swing Line Bank and of
Letter of Credit Advances owing to the Issuing Bank and the Available LC
Amount of each Letter of Credit shall be considered to be owed to the
Revolving Credit Lenders ratably in accordance with their respective
Revolving Credit Commitments.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL ADVERSE CHANGE" means any material adverse change in the
business, financial condition, operations, assets or liabilities of any
Loan Party or any of its Subsidiaries.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, financial condition, operations, assets or liabilities of any
Loan Party or any of its Subsidiaries, (b) the rights and remedies of the
Administrative Agent or any Lender Party under any Loan Document or Related
Document or (c) the ability of any Loan Party to perform its Obligations
under any Loan Document or Related Document to which it is or is to be a
party.
23
"MEASUREMENT PERIOD" means, as of any date of determination, (i) for
purposes of calculating the Leverage Ratio pursuant to Section 5.02(f)(v)
or 5.04(a), the most recently completed eight consecutive Fiscal Quarters
ending on or immediately prior to such date and (ii) for all other purposes
(including for purposes of calculating the Leverage Ratio pursuant to all
provisions of this Agreement other than Section 5.02(f)(v) or 5.04(a)), the
most recently completed four consecutive Fiscal Quarters ending on or
immediately prior to such date.
"MEXICO FACILITY" means the facility of the Mexico Subsidiary located
in Monterrey, Mexico.
"MEXICO SUBSIDIARY" means Accuride de Mexico, S.A. de C.V., a company
organized and existing under the laws of Mexico.
"NET CASH PROCEEDS" means, with respect to any sale, lease, transfer
or other disposition of any asset, the aggregate amount of cash received
from time to time (whether as initial consideration or through payment or
disposition of deferred consideration, but only as and when received) by or
on behalf of such Person in connection with such transaction after
deducting therefrom only (without duplication): (a) reasonable and
customary fees, commissions, expenses, issuance costs, discounts and other
costs paid by the U.S. Borrower or any of its Restricted Subsidiaries in
connection with such transaction, (b) the amount of taxes paid or estimated
to be payable in connection with or as a result of such transaction, (c)
the amount of the outstanding principal amount of, premium or penalty, if
any, and interest on any Debt (other than pursuant to the Facilities) that
is secured by a Lien on the stock or assets in question and that is
required to be repaid under the terms thereof as a result of any such
transaction, (d) the amount of any reasonable reserves established in
accordance with GAAP against any liabilities (other than taxes described in
clause (b) above) that are (i) associated with the assets that are the
subject of such transaction and (ii) retained by the U.S. Borrower or any
of its Restricted Subsidiaries and (e) the amount of any proceeds received
from the sale, lease, transfer or other disposition of any assets pursuant
to Section 5.02(d) to the extent that such proceeds are reinvested in the
business within one year following such sale, lease, transfer or other
disposition; PROVIDED, HOWEVER, that in the event the amount of any
estimated tax payable described in clause (b) above exceeds the amount
actually paid, or upon any subsequent reduction in the amount of any
reserve described in clause (d) above, the U.S. Borrower or its applicable
Restricted Subsidiary shall be deemed to have received Net Cash Proceeds in
an amount equal to such excess or reduction, at the time of payment of such
taxes or on the date of such reduction, as the case may be; PROVIDED
FURTHER that any portion of any proceeds received from the sale, lease,
transfer or other disposition of any assets pursuant to Section 5.02(d)
that has not been reinvested within such one-year period shall (i) be
deemed to be Net Cash Proceeds of such a sale occurring on the last day of
such one-year period and (ii) be applied to the prepayment of Advances in
accordance with Section 2.06(b)(ii); PROVIDED FURTHER that, for purposes of
the preceding proviso, such one-year period shall be extended by up to six
months from the last day of such one-year period so long as (A) such
proceeds are to be reinvested within such additional six-month period under
the U.S. Borrower's or any of its Restricted Subsidiaries' business plan as
most recently adopted in good faith by its board of
24
directors and (B) such Person believes in good faith that such proceeds
will be so reinvested within such additional six-month period.
"NET INCOME" means, with respect to any Person for any period, the net
income (or loss) of such Person; PROVIDED that, for purposes of determining
Net Income for any Person and its Restricted Subsidiaries on a Consolidated
basis, there shall be excluded from such determination (i) any after-tax
gains or losses, and any related fees and expenses, in each case to the
extent attributable to the sale of assets, and (ii) any net extraordinary
gains (or losses).
"NOTE" means a Term A Note, a Term B Note or a Revolving Credit Note.
"NOTE PURCHASE AGREEMENT" means the Note Purchase Agreement dated
January 15, 1998 between the U.S. Borrower and the purchasers of the
Subordinated Notes, pursuant to which the Subordinated Notes are issued.
"NOTICE OF BORROWING" has the meaning specified in Section 2.02(a).
"NOTICE OF ISSUANCE" has the meaning specified in Section 2.03(a).
"NOTICE OF RENEWAL" has the meaning specified in Section 2.01(e).
"NOTICE OF SWING LINE BORROWING" has the meaning specified in
Section 2.02(b).
"NOTICE OF TERMINATION" has the meaning specified in Section 2.01(e).
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether or
not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
disputed, undisputed, legal, equitable, secured or unsecured, and whether
or not such claim is discharged, stayed or otherwise affected by any
proceeding referred to in Section 7.01(f). Without limiting the generality
of the foregoing, the Obligations of the Loan Parties under the Loan
Documents include (a) the obligation to pay principal, interest, Letter of
Credit commissions, charges, expenses, fees, attorneys' fees and
disbursements, indemnities and other amounts payable by any Loan Party
under any Loan Document and (b) the obligation of any Loan Party to
reimburse any amount in respect of any of the foregoing that any Lender
Party, in its sole discretion, may elect to pay or advance on behalf of
such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"OTHER TAXES" has the meaning specified in Section 2.12(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
25
"PERFORMANCE LEVEL" means Performance Level I, Performance Level II,
Performance Level III, Performance Level IV, Performance Level V or
Performance Level VI, as the context may require.
"PERFORMANCE LEVEL I" means, at any date of determination, that the
U.S. Borrower and its Restricted Subsidiaries shall have maintained a
Leverage Ratio of less than 3.25:1.00 for the most recently completed
Measurement Period prior to such time.
"PERFORMANCE LEVEL II" means, at any date of determination, that (a)
the Leverage Ratio of the U.S. Borrower and its Restricted Subsidiaries
does not meet the requirements for Performance Level I and (b) the U.S.
Borrower and its Restricted Subsidiaries shall have maintained a Leverage
Ratio of less than 3.75:1.00 for the most recently completed Measurement
Period prior to such time.
"PERFORMANCE LEVEL III" means, at any date of determination, that (a)
the Leverage Ratio of the U.S. Borrower and its Restricted Subsidiaries
does not meet the requirements for Performance Level I or Performance Level
II and (b) the U.S. Borrower and its Restricted Subsidiaries shall have
maintained a Leverage Ratio of less than 4.25:1.00 for the most recently
completed Measurement Period prior to such time.
"PERFORMANCE LEVEL IV" means, at any date of determination, that (a)
the Leverage Ratio of the U.S. Borrower and its Restricted Subsidiaries
does not meet the requirements for Performance Level I, Performance Level
II or Performance Level III and (b) the U.S. Borrower and its Restricted
Subsidiaries shall have maintained a Leverage Ratio of less than 4.75:1.00
for the most recently completed Measurement Period prior to such time.
"PERFORMANCE LEVEL V" means, at any date of determination, that (a)
the Leverage Ratio of the U.S. Borrower and its Restricted Subsidiaries
does not meet the requirements for Performance Level I, Performance Level
II, Performance Level III or Performance Level IV and (b) the U.S. Borrower
and its Restricted Subsidiaries shall have maintained a Leverage Ratio of
less than 5.25:1.00 for the most recently completed Measurement Period
prior to such time.
"PERFORMANCE LEVEL VI" means, at any date of determination, that the
Leverage Ratio of the U.S. Borrower and its Restricted Subsidiaries does
not meet the requirements for Performance Level I, Performance Level II,
Performance Level III, Performance Level IV or Performance Level V.
"PERMITTED LIENS" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under
Section 5.01(b) hereof; (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and other similar
Liens arising in the ordinary course of business outstanding at any time
and securing indebtedness that is not overdue for a period of more than 30
days; (c) Liens arising from judgments or decrees in circumstances not
26
constituting an Event of Default under Section 7.01(g); (d) Liens incurred
or deposits made in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the performance
of tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations incurred in the ordinary course of business; (e) ground
leases in respect of real property on which facilities owned or leased by
the U.S. Borrower or any of its Subsidiaries are located; (f) easements,
rights-of-way, restrictions, minor defects or irregularities in title and
other similar charges or encumbrances not interfering in any material
respect with the business of the U.S. Borrower and its Subsidiaries taken
as a whole; (g) any interest or title of a lessor or secured by a lessor's
interest under any lease permitted by this Agreement and any Liens arising
from any financing statement filed in connection with such lease; (h) Liens
in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of
goods; (i) Liens on goods the purchase price of which is financed by a
documentary letter of credit issued for the account of the U.S. Borrower or
any of its Subsidiaries, PROVIDED that such Lien secures only the
obligations of the U.S. Borrower or such Subsidiaries in respect of such
letter of credit to the extent permitted under Section 5.02(a); and (j)
leases or subleases granted to others not interfering in any material
respect with the business of the U.S. Borrower and its Subsidiaries, taken
as a whole.
"PERSON" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"XXXXXX DODGE" has the meaning specified in the Preliminary Statements
to this Agreement.
"PLAN" means any multiemployer or single-employer plan, as defined in
Section 4001 of ERISA and subject to Title IV of ERISA, that is or was
within any of the preceding five plan years maintained or contributed to by
(or to which there is or was an obligation to contribute or to make
payments of) any Loan Party or an ERISA Affiliate.
"PLEDGE AGREEMENT" has the meaning specified in Section 3.01(k)(vi).
"PLEDGE AGREEMENT SUPPLEMENT" has the meaning specified in the Pledge
Agreement
"PREFERRED STOCK" means, with respect to any corporation, capital
stock issued by such corporation that is entitled to a preference or
priority over any other capital stock issued by such corporation upon any
distribution of such corporation's assets, whether by dividend or upon
liquidation.
"PREPAYMENT DATE" has the meaning specified in Section 2.06(c).
"PRO FORMA EBITDA ADJUSTMENT" means, for any period, an amount equal
to the pro forma increase or decrease in Consolidated EBITDA that the U.S.
Borrower in good faith
27
predicts will occur as a result of reasonably identifiable and supportable
net cost savings or additional net costs that will be realizable during
such period by combining the operations associated with an acquisition with
the operations of the U.S. Borrower and its Subsidiaries; PROVIDED that, so
long as such net cost savings or additional net costs will be realizable at
any time during such period, it shall be assumed, for purposes of
projecting such pro forma increase or decrease in such Consolidated EBITDA,
that such net cost savings or additional net costs will be realizable
during the entirety of such period; and PROVIDED FURTHER that any such pro
forma increase or decrease in such Consolidated EBITDA shall be without
duplication of any net cost savings or additional net costs actually
realized during such period and already included in such Consolidated
EBITDA.
"PRO RATA SHARE" of any amount means, with respect to any Revolving
Credit Lender at any time, the product of such amount TIMES a fraction the
numerator of which is the amount of such Lender's Revolving Credit
Commitment at such time and the denominator of which is the Revolving
Credit Facility at such time.
"PURCHASE PRICE ADJUSTMENT AMOUNT" means the amount, determined
pursuant to Section 1.5 of the Stock Purchase Agreement, equal to the
lesser of zero and the difference between the "Redemption Price" and the
"Adjusted Redemption Price" (as such terms are defined in the Stock
Purchase Agreement).
"REDEEMABLE" means, with respect to any capital stock or other
ownership or profit interest, Debt or other right or Obligation, any such
right or Obligation that (a) the issuer has undertaken to redeem at a fixed
or determinable date or dates, whether by operation of a sinking fund or
otherwise, or upon the occurrence of a condition not solely within the
control of the issuer or (b) is redeemable at the option of the holder.
"REDUCTION AMOUNT" has the meaning specified in Section 2.06(b)(v).
"REFERENCE BANKS" means Citibank, Bankers Trust and Xxxxx Fargo.
"REGISTER" has the meaning specified in Section 9.07(d).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"RELATED DOCUMENTS" means the Subordinated Debt Documents and the
Stock Purchase Agreement.
"REPORTABLE EVENT" means an event described in Section 4043 of ERISA
and the regulations thereunder.
"REQUIREMENTS OF LAW" means, with respect to any Person, all laws,
constitutions, statutes, treaties, ordinances, rules and regulations, all
orders, writs, decrees, injunctions, judgments, determinations or awards of
an arbitrator, a court or any other governmental
28
authority, and all governmental authorizations, binding upon or applicable
to such Person or to any of its properties, assets or businesses.
"RESPONSIBLE OFFICER" means any officer of any Loan Party or any of
its Subsidiaries.
"RESTRICTED SUBSIDIARY" means, as of any date of determination, any
Subsidiary of the U.S. Borrower which is not an Unrestricted Subsidiary.
"REVENUES" means, for any Person for any period, an amount equal to
the revenues of such Person; PROVIDED that, for purposes of such
determination, (i) the revenues of any business acquired by the U.S.
Borrower or any of its Subsidiaries during such period pursuant to Section
5.02(e)(xi) or (xii) shall be determined on a pro forma basis as if such
acquisition had been consummated on the first day of such period and
(ii) the revenues of any business sold or otherwise disposed of by the U.S.
Borrower or any of its Subsidiaries in accordance with Section 5.02(d)
during such period shall be excluded in their entirety.
"REVOLVING CREDIT ADVANCE" has the meaning specified in
Section 2.01(c).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the
Revolving Credit Lenders.
"REVOLVING CREDIT COMMITMENT" means, with respect to any Revolving
Credit Lender at any time, the amount set forth opposite such Lender's name
on Schedule I hereto under the caption "Revolving Credit Commitment" or, if
such Lender has entered into one or more Assignments and Acceptances, set
forth for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 9.07(d) as such Lender's "Revolving Credit
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate amount
of the Revolving Credit Lenders' Revolving Credit Commitments at such time.
"REVOLVING CREDIT LENDER" means any Lender that has a Revolving Credit
Commitment.
"REVOLVING CREDIT NOTE" means a promissory note of the U.S. Borrower
payable to the order of any Revolving Credit Lender, in substantially the
form of Exhibit A-3 hereto, evidencing the aggregate indebtedness of the
U.S. Borrower to such Lender resulting from the Revolving Credit Advances
made by such Lender.
"SECURED PARTIES" means the Administrative Agent, the Lender Parties
and the Lenders party to Bank Hedge Agreements.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of
29
liabilities, including, without limitation, contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is
not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and matured,
(c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay such debts
and liabilities as they mature and (d) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute an
unreasonably small capital. The amount of contingent liabilities at any
time shall be computed as the amount that, in the light of all the facts
and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"STANDBY LETTER OF CREDIT" means any Letter of Credit issued under the
Letter of Credit Facility, other than a Trade Letter of Credit.
"STOCK PURCHASE AGREEMENT" has the meaning specified in the
Preliminary Statements to this Agreement.
"SUBORDINATED DEBT" means the Debt evidenced by the Subordinated Notes
and any other Debt of the Borrowers that is subordinated to the Obligations
of the Borrowers under the Loan Documents on, and that otherwise contains,
terms and conditions satisfactory to the Majority Lenders.
"SUBORDINATED DEBT DOCUMENTS" means the Note Purchase Agreement and
all other agreements, indentures and instruments pursuant to which
Subordinated Debt is issued.
"SUBORDINATED NOTES" means the subordinated notes of the U.S. Borrower
in an aggregate principal amount of $200,000,000 issued pursuant to the
Note Purchase Agreement.
"SUBSIDIARIES GUARANTY" has the meaning specified in
Section 3.01(k)(vii).
"SUBSIDIARIES GUARANTY SUPPLEMENT" has the meaning specified in the
Subsidiaries Guaranty.
"SUBSIDIARY" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) the interest in the capital or
profits of such partnership, joint venture or limited liability company or
(c) the beneficial interest in such trust or estate is at the time directly
or indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"SUBSIDIARY GUARANTORS" means the Restricted Subsidiaries of the U.S.
Borrower that are Domestic Subsidiaries and are listed on Schedule II
hereto, and each other Restricted
30
Subsidiary of the U.S. Borrower that shall be required to deliver a
Subsidiaries Guaranty Supplement pursuant to Section 5.01(k).
"SURVIVING DEBT" has the meaning specified in Section 3.01(d).
"SWING LINE ADVANCE" means an advance made by (a) the Swing Line Bank
pursuant to Section 2.01(d) or (b) any Revolving Credit Lender pursuant to
Section 2.02(b).
"SWING LINE BANK" has the meaning specified in the recital of parties
to this Agreement.
"SWING LINE BORROWING" means a borrowing consisting of a Swing Line
Advance made by the Swing Line Bank.
"SWING LINE FACILITY" has the meaning specified in Section 2.01(d).
"SYNDICATION AGENT" has the meaning specified in the recital of
parties to this Agreement.
"TAXES" has the meaning specified in Section 2.12(a).
"TERM A ADVANCE" has the meaning specified in Section 2.01(a).
"TERM A BORROWING" means a borrowing consisting of simultaneous Term A
Advances of the same Type made by the Term A Lenders.
"TERM A COMMITMENT" means, with respect to any Term A Lender at any
time, the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Term A Commitment" or, if such Lender has entered into
one or more Assignments and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section 9.07(d)
as such Lender's "Term A Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
"TERM A FACILITY" means, at any time, the aggregate amount of the Term
A Lenders' Term A Commitments at such time.
"TERM A LENDER" means any Lender that has a Term A Commitment.
"TERM A NOTE" means a promissory note of the Canadian Borrower payable
to the order of any Term A Lender, in substantially the form of Exhibit A-1
hereto, evidencing the indebtedness of the Canadian Borrower to such Lender
resulting from the Term A Advance made by such Lender.
"TERM B ADVANCE" has the meaning specified in Section 2.01(b).
31
"TERM B BORROWING" means a borrowing consisting of simultaneous Term B
Advances of the same Type made by the Term B Lenders.
"TERM B COMMITMENT" means, with respect to any Term B Lender at any
time, the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Term B Commitment" or, if such Lender has entered into
one or more Assignments and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section 9.07(d)
as such Lender's "Term B Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
"TERM B FACILITY" means, at any time, the aggregate amount of the Term
B Lenders' Term Commitments at such time.
"TERM B LENDER" means any Lender that has a Term B Commitment.
"TERM B NOTE" means a promissory note of the U.S. Borrower payable to
the order of any Term B Lender, in substantially the form of Exhibit A-2
hereto, evidencing the indebtedness of the U.S. Borrower to such Lender
resulting from the Term B Advance made by such Lender.
"TERMINATION DATE" means (a) with respect to the Revolving Credit
Facility, the Letter of Credit Facility and the Swing Line Facility, the
earlier of January 21, 2004 and the date of termination in whole of the
Revolving Credit Commitments, the Letter of Credit Commitments and the
Swing Line Commitments pursuant to Section 2.05 or 7.01, (b) with respect
to the Term A Facility, the earlier of January 21, 2005 and the date of
termination in whole of the Term A Commitments pursuant to Section 2.05 or
7.01 and (c) with respect to the Term B Facility, the earlier of January
21, 2006 and the termination in whole of the Term B Commitments pursuant to
Section 2.05 or 7.01.
"TRADE LETTER OF CREDIT" means any Letter of Credit that is issued
under the Letter of Credit Facility for the benefit of a supplier of
inventory or other goods to the U.S. Borrower or any of its Subsidiaries to
effect payment for such inventory or other goods, the conditions to drawing
under which include the presentation to the Issuing Bank of negotiable
bills of lading, invoices and related documents sufficient, in the judgment
of the Issuing Bank, to create a valid and perfected lien on or security
interest in such inventory, bills of lading, invoices and related documents
in favor of the Issuing Bank.
"TYPE" refers to the distinction between Advances bearing interest at
the Base Rate and Advances bearing interest at the Eurodollar Rate.
"UNFUNDED CURRENT LIABILITY" of any Plan means the amount, if any, by
which the present value of the accumulated benefits under the Plan as of
the close of its most recent plan year, determined in accordance with
Statement of Financial Accounting Standards No. 87 as in effect on the date
hereof, but based upon the actuarial assumptions that would be used by the
32
Plan's actuary in a termination of the Plan, exceeds the fair market value
of the assets allocable thereto.
"UNITED STATES" and "U.S." each mean the United States of America.
"UNRESTRICTED SUBSIDIARY" means (a) any Subsidiary of the U.S.
Borrower that is formed or acquired after the Closing Date, PROVIDED, that
at the time of such formation or acquisition (or promptly thereafter) the
U.S. Borrower designates such Subsidiary as an Unrestricted Subsidiary in a
written notice to the Administrative Agent, (b) any Restricted Subsidiary
on the Closing Date (other than the Canadian Borrower) subsequently
re-designated as an Unrestricted Subsidiary by the U.S. Borrower in a
written notice to the Administrative Agent pursuant to Section 5.03(h),
PROVIDED that such re-designation shall be deemed to be an Investment on
the date of such re-designation in an Unrestricted Subsidiary in an amount
equal to the sum of (i) the net worth of such re-designated Restricted
Subsidiary immediately prior to such re-designation (such net worth to be
calculated without regard to any guaranty provided by such re-designated
Restricted Subsidiary pursuant to the Subsidiary Guaranty) plus (ii) the
aggregate principal amount of any Debt owed by such redesignated Restricted
Subsidiary to either Borrower or any other Restricted Subsidiary
immediately prior to such re-designation, all calculated, except as set
forth in the parenthetical to clause (i), on a consolidated basis in
accordance with GAAP, and (c) any Subsidiary of any Unrestricted
Subsidiary; PROVIDED, HOWEVER, that (i) at the time of any written
re-designation by the U.S. Borrower to the Administrative Agent of any
Unrestricted Subsidiary as a Restricted Subsidiary pursuant to Section
5.03(h), the Unrestricted Subsidiary so re-designated shall no longer
constitute an Unrestricted Subsidiary, (ii) no Unrestricted Subsidiary may
be re-designated as a Restricted Subsidiary if a Default or Event of
Default has occurred and is continuing or would result from such
re-designation and (iii) no Restricted Subsidiary may be re-designated as
an Unrestricted Subsidiary if a Default or Event of Default has occurred
and is continuing or would result from such re-designation; and PROVIDED
FURTHER, HOWEVER, that on or promptly after the date of its formation,
acquisition or re-designation, as applicable, each Unrestricted Subsidiary
(other than an Unrestricted Subsidiary that is a Foreign Subsidiary) shall
have entered into a tax sharing agreement containing terms that, in the
reasonable judgment of the Administrative Agent, provide for an appropriate
allocation of tax liabilities and benefits.
"UNUSED REVOLVING CREDIT COMMITMENT" means, with respect to any
Revolving Credit Lender at any time, (a) such Lender's Revolving Credit
Commitment at such time MINUS (b) the sum of (i) the aggregate principal
amount of all Revolving Credit Advances, Swing Line Advances and Letter of
Credit Advances made by such Lender (in its capacity as a Lender) and
outstanding at such time, PLUS (ii) such Lender's Pro Rata Share of (A) the
aggregate Available LC Amount of all Letters of Credit outstanding at such
time, (B) the aggregate principal amount of all Letter of Credit Advances
made by the Issuing Bank pursuant to Section 2.03(c) and outstanding at
such time and (C) the aggregate principal amount of all Swing Line Advances
made by the Swing Line Bank pursuant to Section 2.01(d) and outstanding at
such time.
"U.S. BORROWER" has the meaning specified in the recital of parties
to this Agreement.
33
"U.S. PERSON" means any Person which is organized under the laws of a
jurisdiction of the United States.
"VOTING STOCK" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening of
such a contingency.
"XXXXX FARGO" has the meaning specified in the recital of parties to
this Agreement.
SECTION 1.02. COMPUTATION OF TIME PERIODS. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. ACCOUNTING TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(f) ("GAAP").
SECTION 1.04. CURRENCY EQUIVALENT. For purposes of construction of
the terms hereof, the equivalent in another currency of an amount in U.S.
dollars shall be determined by using the quoted spot rate at which Citibank's
principal office in New York City offers to purchase such other currency with
the equivalent in dollars in New York City at 9:00 A.M. (New York City time) on
the date on which such equivalent is to be determined.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. THE ADVANCES. (a) THE TERM A ADVANCES. Each Term A
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make a single advance (a "TERM A ADVANCE") to the Canadian Borrower on any
Business Day during the period from the date hereof until February 28, 1998, in
an amount not to exceed such Lender's Term A Commitment at such time. The Term
A Borrowing shall consist of Term A Advances made simultaneously by the Term A
Lenders ratably according to their Term A Commitments. Amounts borrowed under
this Section 2.01(a) and repaid or prepaid may not be reborrowed.
(b) THE TERM B ADVANCES. Each Term B Lender severally agrees, on
the terms and conditions hereinafter set forth, to make a single advance (a
"TERM B ADVANCE") to the U.S. Borrower on any Business Day during the period
from the date hereof until February 28, 1998, in an amount not to exceed such
Lender's Term B Commitment at such time. The Term B Borrowing shall consist of
Term B Advances made simultaneously by the Term B Lenders ratably according to
their
34
Term B Commitments. Amounts borrowed under this Section 2.01(b) and repaid or
prepaid may not be reborrowed.
(c) THE REVOLVING CREDIT ADVANCES. Each Revolving Credit Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "REVOLVING CREDIT ADVANCE") to the U.S. Borrower from time to
time on any Business Day during the period from the date hereof until the
Termination Date in an amount for each such Advance not to exceed such Lender's
Unused Revolving Credit Commitment at such time. Each Revolving Credit
Borrowing shall be in an aggregate amount of $2,000,000 or an integral multiple
of $500,000 in excess thereof (other than a Borrowing the proceeds of which
shall be used solely to repay or prepay in full outstanding Swing Line Advances
or outstanding Letter of Credit Advances) and shall consist of Revolving Credit
Advances made simultaneously by the Revolving Credit Lenders ratably according
to their Revolving Credit Commitments. Within the limits of each Revolving
Credit Lender's Unused Revolving Credit Commitment in effect from time to time,
the U.S. Borrower may borrow under this Section 2.01(c), prepay pursuant to
Section 2.06(a) and reborrow under this Section 2.01(c).
(d) THE SWING LINE ADVANCES. The U.S. Borrower may request the
Swing Line Bank to make, and the Swing Line Bank shall make, on the terms and
conditions hereinafter set forth, Swing Line Advances to the U.S. Borrower from
time to time on any Business Day during the period from the date hereof until
the Termination Date in an aggregate amount not to exceed at any time
outstanding the lesser of (i) $10,000,000 (the "SWING LINE FACILITY") and
(ii) an amount not to exceed the aggregate of the Unused Revolving Credit
Commitments of the Revolving Credit Lenders at such time. No Swing Line Advance
shall be used for the purpose of funding the payment of principal of any other
Swing Line Advance. Each Swing Line Borrowing shall be in an amount of $500,000
or an integral multiple of $250,000 in excess thereof and shall be made as a
Base Rate Advance. Within the limits of the Swing Line Facility and within the
limits referred to in clause (ii) above, the U.S. Borrower may borrow under this
Section 2.01(d), repay pursuant to Section 2.04(d) or prepay pursuant to
Section 2.06(a) and reborrow under this Section 2.01(d).
(e) LETTERS OF CREDIT. The Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue letters of credit (the "LETTERS OF
CREDIT") for the account of the U.S. Borrower from time to time on any Business
Day during the period from the date hereof until five Business Days before the
Termination Date (i) in an aggregate Available LC Amount for all Letters of
Credit not to exceed at any time the Issuing Bank's Letter of Credit Commitment
at such time and (ii) in an Available LC Amount for each such Letter of Credit
not to exceed an amount equal to the Unused Revolving Credit Commitments of the
Revolving Credit Lenders at such time. No Letter of Credit shall have an
expiration date (including all rights of the U.S. Borrower or the beneficiary to
require renewal) later than the earlier of five Business Days before the
Termination Date and (A) in the case of a Standby Letter of Credit, one year
after the date of issuance thereof, but may by its terms be renewable annually
upon notice (a "NOTICE OF RENEWAL") given to the Issuing Bank and the
Administrative Agent on or prior to any date for notice of renewal set forth in
such Letter of Credit (but in any event at least three Business Days prior to
the date of the proposed renewal of such Standby Letter of Credit) and upon
fulfillment of the applicable conditions set forth in Article III, unless such
Issuing Bank has notified the U.S. Borrower (with a copy to the Administrative
Agent) on or prior to the date for notice of termination set forth in such
Letter of Credit (but in any event at least 30 Business
35
Days prior to the date of automatic renewal) of its election not to renew such
Standby Letter of Credit (a "NOTICE OF TERMINATION") and (B) in the case of a
Trade Letter of Credit, the later of 180 days after the date of issuance thereof
or five Business Days before the Termination Date; PROVIDED that the terms of
each Standby Letter of Credit that is automatically renewable annually shall
(x) require the Issuing Bank that issued such Standby Letter of Credit to give
the beneficiary named in such Standby Letter of Credit notice of any Notice of
Termination, (y) permit such beneficiary, upon receipt of such notice, to draw
under such Standby Letter of Credit prior to the date such Standby Letter of
Credit otherwise would have been automatically renewed and (z) not permit the
expiration date (after giving effect to any renewal) of such Standby Letter of
Credit in any event to be extended to a date later than 60 days before the
Termination Date. If either a Notice of Renewal is not given by the U.S.
Borrower or a Notice of Termination is given by the Issuing Bank pursuant to the
immediately preceding sentence, such Standby Letter of Credit shall expire on
the date on which it otherwise would have been automatically renewed; PROVIDED,
HOWEVER, that even in the absence of receipt of a Notice of Renewal the Issuing
Bank may in its discretion, unless instructed to the contrary by the
Administrative Agent or the U.S. Borrower, deem that a Notice of Renewal had
been timely delivered and in such case, a Notice of Renewal shall be deemed to
have been so delivered for all purposes under this Agreement. Within the limits
of the Letter of Credit Facility, and subject to the limits referred to above,
the U.S. Borrower may request the issuance of Letters of Credit under this
Section 2.01(e), repay any Letter of Credit Advances resulting from drawings
thereunder pursuant to Section 2.03(c) and request the issuance of additional
Letters of Credit under this Section 2.01(e).
SECTION 2.02. MAKING THE ADVANCES. (a) Except as otherwise provided
in Section 2.02(b) or 2.03, each Borrowing shall be made on notice, given not
later than 12:00 P.M. (New York City time) on the third Business Day prior to
the date of the proposed Borrowing in the case of a Borrowing consisting of
Eurodollar Rate Advances, or the first Business Day prior to the date of the
proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances,
by the Appropriate Borrower to the Administrative Agent, which shall give to
each Appropriate Lender prompt notice thereof by telex or telecopier. Each such
notice of a Borrowing (a "NOTICE OF BORROWING") shall be by telephone, confirmed
immediately in writing, or telex or telecopier, in substantially the form of
Exhibit B hereto, specifying therein the requested (i) date of such Borrowing,
(ii) Facility under which such Borrowing is to be made, (iii) Type of Advances
comprising such Borrowing, (iv) aggregate amount of such Borrowing and (v) in
the case of a Borrowing consisting of Eurodollar Rate Advances, initial Interest
Period for each such Advance. Each Appropriate Lender shall, before 12:00 P.M.
(New York City time) on the date of such Borrowing, make available for the
account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's ratable portion
of such Borrowing in accordance with the respective Commitments under the
applicable Facility of such Lender and the other Appropriate Lenders. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Appropriate Borrower by crediting the
applicable Borrower's Account; PROVIDED, HOWEVER, that, in the case of any
Revolving Credit Borrowing, the Administrative Agent shall first make a portion
of such funds equal to the aggregate principal amount of any Swing Line Advances
and Letter of Credit Advances made by the Swing Line Bank or the Issuing Bank,
as the case may be, and by any other Revolving Credit Lender and outstanding on
the date of such Revolving Credit Borrowing, plus interest accrued and unpaid
thereon to and as of such date, available to the Swing Line Bank or the Issuing
36
Bank, as the case may be, and such other Revolving Credit Lenders for repayment
of such Swing Line Advances and Letter of Credit Advances.
(b) Each Swing Line Borrowing shall be made on notice, given not
later than 1:00 P.M. (New York City time) on the date of the proposed Swing Line
Borrowing, by the U.S. Borrower to the Swing Line Bank and the Administrative
Agent. Each such notice of a Swing Line Borrowing (a "NOTICE OF SWING LINE
BORROWING") shall be by telephone, confirmed immediately in writing, or telex or
telecopier, specifying therein the requested (i) date of such Borrowing,
(ii) amount of such Borrowing and (iii) maturity of such Borrowing (which
maturity shall be no later than the seventh day after the requested date of such
Borrowing). The Swing Line Bank will make the amount thereof available to the
Administrative Agent at the Administrative Agent's Account, in same day funds.
After the Administrative Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article III, the Administrative Agent
will make such funds available to the U.S. Borrower by crediting its Borrower's
Account. Upon written demand by the Swing Line Bank, with a copy of such demand
to the Administrative Agent, each other Revolving Credit Lender shall purchase
from the Swing Line Bank, and the Swing Line Bank shall sell and assign to each
such other Revolving Credit Lender, such other Lender's Pro Rata Share of such
outstanding Swing Line Advance as of the date of such demand, by making
available for the account of its Applicable Lending Office to the Administrative
Agent for the account of the Swing Line Bank, by deposit to the Administrative
Agent's Account, in same day funds, an amount equal to the portion of the
outstanding principal amount of such Swing Line Advance to be purchased by such
Lender. The U.S. Borrower hereby agrees to each such sale and assignment. Each
Revolving Credit Lender agrees to purchase its Pro Rata Share of an outstanding
Swing Line Advance on (i) the Business Day on which demand therefor is made by
the Swing Line Bank, PROVIDED that notice of such demand is given not later than
1:00 P.M. (New York City time) on such Business Day or (ii) the first Business
Day next succeeding such demand if notice of such demand is given after such
time. Upon any such assignment by the Swing Line Bank to any other Revolving
Credit Lender of a portion of a Swing Line Advance, the Swing Line Bank
represents and warrants to such other Lender that the Swing Line Bank is the
legal and beneficial owner of such interest being assigned by it, but makes no
other representation or warranty and assumes no responsibility with respect to
such Swing Line Advance, the Loan Documents or any Loan Party. If and to the
extent that any Revolving Credit Lender shall not have so made the amount of
such Swing Line Advance available to the Administrative Agent, such Revolving
Credit Lender agrees to pay to the Administrative Agent forthwith on demand such
amount together with interest thereon, for each day from the date of demand by
the Swing Line Bank until the date such amount is paid to the Administrative
Agent, at the Federal Funds Rate. If such Lender shall pay to the
Administrative Agent such amount for the account of the Swing Line Bank on any
Business Day, such amount so paid in respect of principal shall constitute a
Swing Line Advance made by such Lender on such Business Day for purposes of this
Agreement, and the outstanding principal amount of the Swing Line Advance made
by the Swing Line Bank shall be reduced by such amount on such Business Day.
(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) neither Borrower may select Eurodollar Rate Advances for
the initial Borrowing hereunder or for any Borrowing if the aggregate amount of
such Borrowing is less than $2,000,000 or if the obligation of the Appropriate
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.09 or Section 2.10 and (ii) the Term A Advances may not be outstanding
as part of more than 3
37
separate Borrowings, the Term B Advances may not be outstanding as part of more
than 3 separate Borrowings and the Revolving Credit Advances made on any date
may not be outstanding on any date as part of more than 10 separate Borrowings.
(d) Each Notice of Borrowing and Notice of Swing Line Borrowing
shall be irrevocable and binding on the Appropriate Borrower. In the case of
any Borrowing that the related Notice of Borrowing specifies is to be comprised
of Eurodollar Rate Advances, the Appropriate Borrower shall indemnify each
Appropriate Lender against any loss, cost or expense incurred by such Lender as
a result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice from
an Appropriate Lender prior to the date of any Borrowing under a Facility under
which such Lender has a Commitment that such Lender will not make available to
the Administrative Agent such Lender's ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) or (b) of this Section 2.02 and the Administrative Agent may, in
reliance upon such assumption, make available to the Appropriate Borrower on
such date a corresponding amount. If and to the extent that such Lender shall
not have so made such ratable portion available to the Administrative Agent,
such Lender and such Borrower severally agree to repay or pay to the
Administrative Agent forthwith on demand such corresponding amount and to pay
interest thereon, for each day from the date such amount is made available to
the Appropriate Borrower until the date such amount is repaid or paid to the
Administrative Agent, at (i) in the case of such Borrower, the interest rate
applicable at such time under Section 2.07 to Advances comprising such Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender
shall pay to the Administrative Agent such corresponding amount, such amount so
paid shall constitute such Lender's Advance as part of such Borrowing for all
purposes.
(f) The failure of any Lender to make the Advance to be made by it
as part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. ISSUANCE OF AND DRAWINGS AND REIMBURSEMENT UNDER
LETTERS OF CREDIT. (a) REQUEST FOR ISSUANCE. Each Letter of Credit shall be
issued upon notice, given not later than 12:00 P.M. (New York City time) on the
fifth Business Day prior to the date of the proposed issuance of such Letter of
Credit, or such shorter period as may be agreed upon by the Issuing Bank, by the
U.S. Borrower to the Issuing Bank, which shall give to the Administrative Agent
and each Revolving Credit Lender prompt notice thereof by telex or telecopier.
Each such notice of issuance of a Letter of Credit (a "NOTICE OF ISSUANCE")
shall be by telephone, confirmed immediately in writing, or telex or telecopier,
specifying therein the requested (A) date of such issuance (which shall be a
Business
38
Day), (B) Available LC Amount of such Letter of Credit, (C) expiration date of
such Letter of Credit, (D) name and address of the beneficiary of such Letter of
Credit and (E) form of such Letter of Credit, and shall be accompanied by such
application and agreement for letter of credit as the Issuing Bank may specify
to the U.S. Borrower for use in connection with such requested Letter of Credit
(a "LETTER OF CREDIT AGREEMENT"). If (x) the requested form of such Letter of
Credit is acceptable to the Issuing Bank in its sole discretion and (y) it has
not received notice of objection to such issuance from the Administrative Agent,
the Issuing Bank will, upon fulfillment of the applicable conditions set forth
in Article III, make such Letter of Credit available to the U.S. Borrower at its
office referred to in Section 9.02 or as otherwise agreed with the U.S. Borrower
in connection with such issuance. In the event and to the extent that the
provisions of any Letter of Credit Agreement shall conflict with this Agreement,
the provisions of this Agreement shall govern.
(b) LETTER OF CREDIT REPORTS. The Issuing Bank shall furnish
(A) to the Administrative Agent on the first Business Day of each week a written
report summarizing issuance and expiration dates of Letters of Credit issued
during the previous week and drawings during such week under all Letters of
Credit, (B) to each Revolving Credit Lender on the first Business Day of each
month a written report summarizing issuance and expiration dates of Letters of
Credit issued during the preceding month and drawings during such month under
all Letters of Credit and (C) to the Administrative Agent and each Revolving
Credit Lender on the first Business Day of each calendar quarter a written
report setting forth the average daily aggregate Available LC Amount during the
preceding calendar quarter of all Letters of Credit.
(c) DRAWING AND REIMBURSEMENT. The payment by the Issuing Bank of
a draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by the Issuing Bank of a Letter of Credit Advance,
which shall be a Base Rate Advance, in the amount of such draft. Upon written
demand by the Issuing Bank, with a copy of such demand to the Administrative
Agent, each Revolving Credit Lender shall purchase from the Issuing Bank, and
the Issuing Bank shall sell and assign to each such Revolving Credit Lender,
such Lender's Pro Rata Share of such outstanding Letter of Credit Advance as of
the date of such purchase, by making available for the account of its Applicable
Lending Office to the Administrative Agent for the account of the Issuing Bank,
by deposit to the Administrative Agent's Account, in same day funds, an amount
equal to the portion of the outstanding principal amount of such Letter of
Credit Advance to be purchased by such Lender. Promptly after receipt thereof,
the Administrative Agent shall transfer such funds to the Issuing Bank. The
U.S. Borrower hereby agrees to each such sale and assignment. Each Revolving
Credit Lender agrees to purchase its Pro Rata Share of an outstanding Letter of
Credit Advance on (i) the Business Day on which demand therefor is made by the
Issuing Bank, provided notice of such demand is given not later than 12:00 P.M.
(New York City time) on such Business Day or (ii) the first Business Day next
succeeding such demand if notice of such demand is given after such time. Upon
any such assignment by the Issuing Bank to any other Revolving Credit Lender of
a portion of a Letter of Credit Advance, the Issuing Bank represents and
warrants to such other Lender that the Issuing Bank is the legal and beneficial
owner of such interest being assigned by it, but makes no other representation
or warranty and assumes no responsibility with respect to such Letter of Credit
Advance, the Loan Documents or any Loan Party. If and to the extent that any
Revolving Credit Lender shall not have so made the amount of such Letter of
Credit Advance available to the Administrative Agent, such Revolving Credit
Lender agrees to pay to the Administrative Agent forthwith on demand such
39
amount together with interest thereon, for each day from the date of demand by
the Issuing Bank until the date such amount is paid to the Administrative Agent,
at the Federal Funds Rate for its account or the account of the Issuing Bank, as
applicable. If such Lender shall pay to the Administrative Agent such amount
for the account of the Issuing Bank on any Business Day, such amount so paid in
respect of principal shall constitute a Letter of Credit Advance made by such
Lender on such Business Day for purposes of this Agreement, and the outstanding
principal amount of the Letter of Credit Advance made by the Issuing Bank shall
be reduced by such amount on such Business Day.
(d) FAILURE TO MAKE LETTER OF CREDIT ADVANCES. The failure of any
Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
SECTION 2.04. REPAYMENT OF ADVANCES. (a) TERM A ADVANCES. The
Canadian Borrower shall repay to the Administrative Agent for the ratable
account of the Term A Lenders the aggregate outstanding principal amount of the
Term A Advances on the following dates in the amounts indicated (which amounts
shall be reduced as a result of the application of prepayments in accordance
with the order of priority set forth in Section 2.06):
DATE AMOUNT
---- ------
January 21, 1999 $600,000
January 21, 2000 $600,000
January 21, 2001 $600,000
January 21, 2002 $600,000
January 21, 2003 $600,000
January 21, 2004 $600,000
January 21, 2005 $56,400,000
PROVIDED, HOWEVER, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term A Advances outstanding on such date.
(b) TERM B ADVANCES. The U.S. Borrower shall repay to the
Administrative Agent for the ratable account of the Term B Lenders the aggregate
outstanding principal amount of the Term B Advances on the following dates in
the amounts indicated (which amounts shall be reduced as a result of the
application of prepayments in accordance with the order of priority set forth in
Section 2.06):
DATE AMOUNT
---- ------
January 21, 1999 $750,000
January 21, 2000 $750,000
January 21, 2001 $750,000
January 21, 2002 $750,000
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January 21, 2003 $750,000
January 21, 2004 $750,000
January 21, 2005 $750,000
January 21, 2006 $69,750,000
PROVIDED, HOWEVER, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term B Advances outstanding on such date.
(c) REVOLVING CREDIT ADVANCES. The U.S. Borrower shall repay to
the Administrative Agent for the ratable account of the Revolving Credit Lenders
on the Termination Date the aggregate outstanding principal amount of the
Revolving Credit Advances then outstanding.
(d) SWING LINE ADVANCES. The U.S. Borrower shall repay to the
Administrative Agent for the account of the Swing Line Bank and each other
Revolving Credit Lender that has made a Swing Line Advance the outstanding
principal amount of each Swing Line Advance made by each of them on the earlier
of the maturity date specified in the applicable Notice of Swing Line Borrowing
(which maturity shall be no later than the seventh day after the requested date
of such Borrowing) and the Termination Date.
(e) LETTER OF CREDIT ADVANCES. (i) The U.S. Borrower shall repay
to the Administrative Agent for the account of the Issuing Bank and each other
Revolving Credit Lender that has made a Letter of Credit Advance on the earlier
of demand and the Termination Date the outstanding principal amount of each
Letter of Credit Advance made by each of them.
(ii) The Obligations of the U.S. Borrower under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument relating to any
Letter of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan Document,
any Letter of Credit Agreement, any Letter of Credit or any other agreement
or instrument relating thereto (all of the foregoing being, collectively,
the "L/C RELATED DOCUMENTS");
(B) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations of the U.S. Borrower in
respect of any L/C Related Document or any other amendment or waiver of or
any consent to departure from all or any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other right
that the U.S. Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank or any
other Person, whether in connection with the transactions contemplated by
the L/C Related Documents or any unrelated transaction;
41
(D) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect;
(E) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or certificate or other document that does not
strictly comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any Collateral or
other collateral, or any release or amendment or waiver of or consent to
departure from the Guaranty, the Subsidiaries Guaranty or any other
guarantee, for all or any of the Obligations of the U.S. Borrower in
respect of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the U.S. Borrower or a guarantor.
SECTION 2.05. TERMINATION OR REDUCTION OF THE COMMITMENTS.
(a) OPTIONAL. Either Borrower may, upon at least two Business Days' notice to
the Administrative Agent, terminate in whole or reduce in part the unused
portions of the Term A Commitments, the Term B Commitments, the Letter of Credit
Facility and the Unused Revolving Credit Commitments; PROVIDED, HOWEVER, that
each partial reduction of a Facility (i) shall be in an aggregate amount of
$1,000,000 or an integral multiple of $500,000 in excess thereof and (ii) shall
be made ratably among the Appropriate Lenders in accordance with their
Commitments with respect to such Facility.
(b) MANDATORY. (i) The Revolving Credit Facility shall be
automatically and permanently reduced on a pro rata basis (A) on each date on
which prepayment thereof is required to be made pursuant to Section 2.06(b)(i),
(ii) or (iv), in an amount equal to the applicable Reduction Amount and (B) if
on January 21, 2003 the Revolving Credit Facility shall be greater than
$100,000,000, on January 21, 2003, in an amount such that the Revolving Credit
Facility immediately after giving effect to such reduction shall be
$100,000,000, PROVIDED that each such reduction of the Revolving Credit Facility
pursuant to clauses (A) and (B) above shall be made ratably among the Revolving
Credit Lenders in accordance with their Revolving Credit Commitments.
(ii) The Letter of Credit Facility shall be permanently reduced from
time to time on the date of each reduction in the Revolving Credit Facility by
the amount, if any, by which the amount of the Letter of Credit Facility exceeds
the Revolving Credit Facility after giving effect to such reduction of the
Revolving Credit Facility.
SECTION 2.06. PREPAYMENTS. (a) OPTIONAL. The Appropriate Borrower
may, on same Business Day's notice in the case of Base Rate Advances and one
Business Day's notice in the case of Eurodollar Rate Advances, in each case to
the Administrative Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the Appropriate Borrower
shall, prepay the outstanding aggregate principal amount of the Advances
comprising part of the same Borrowing in whole or ratably in part, together with
accrued interest to the date of such
42
prepayment on the aggregate principal amount prepaid; PROVIDED, HOWEVER, that
(x) each partial prepayment shall be in an aggregate principal amount of
$1,000,000 or an integral multiple of $500,000 in excess thereof and (y) if any
prepayment of a Eurodollar Rate Advance is made on a date other than the last
day of an Interest Period for such Advance such Borrower shall also pay any
amounts owing pursuant to Section 9.04(c). Each such prepayment of any Term A
Advances or Term B Advances shall be applied to the installments thereof in the
manner specified by the Appropriate Borrower.
(b) MANDATORY. (i) The Borrowers shall, on the 130th day
following the end of each Fiscal Year, if the Leverage Ratio for the Measurement
Period ending on the last day of such Fiscal Year exceeds 4.00:1.00, prepay an
aggregate principal amount of the Advances comprising part of the same
Borrowings in an amount equal to the remainder of (A) 50% of the amount of
Excess Cash Flow for such Fiscal Year MINUS (B) the aggregate amount of any
optional prepayments of Term Advances or, to the extent such prepayments
permanently reduced the Revolving Credit Facility, the amount of any optional
prepayments of Revolving Credit Advances, Swing Line Advances or Letter of
Credit Advances made during such Fiscal Year. Each such prepayment shall,
except as otherwise provided in Section 2.06(c) below, be applied FIRST to the
Term A Facility and/or the Term B Facility and to the installments thereof in
the manner specified by the Appropriate Borrower (but pro rata among the Term A
Lenders and/or the Term B Lenders which are not Declining Lenders) and SECOND to
the Revolving Credit Facility as set forth in clause (v) below.
(ii) The Borrowers shall, on the date of receipt of the Net Cash
Proceeds by any Loan Party or any of its Restricted Subsidiaries from the sale,
lease, transfer or other disposition of any assets of any Loan Party or any of
its Restricted Subsidiaries, prepay an aggregate principal amount of the
Advances comprising part of the same Borrowings equal to the amount of such Net
Cash Proceeds. Each such prepayment shall, except as otherwise provided in
Section 2.06(c) below, be applied FIRST ratably to the Term A Facility and the
Term B Facility and to the next two installments thereof and SECOND ratably to
the Term A Facility and the Term B Facility and pro rata to the remaining
installments thereof, and THIRD to the Revolving Credit Facility as set forth in
clause (v) below.
(iii) The U.S. Borrower shall, on each Business Day, prepay an
aggregate principal amount of the Revolving Credit Advances comprising part of
the same Borrowings, the Letter of Credit Advances and the Swing Line Advances
equal to the amount by which (A) the sum of the aggregate principal amount of
(x) the Revolving Credit Advances, (y) the Letter of Credit Advances and (z) the
Swing Line Advances then outstanding plus the aggregate Available LC Amount of
all Letters of Credit then outstanding exceeds (B) the Revolving Credit Facility
on such Business Day (after giving effect to any permanent reduction thereof
pursuant to Section 2.05 on such Business Day).
(iv) In the event that a Term A Lender or a Term B Lender is a
Declining Lender pursuant to Section 2.06(c) below, the U.S. Borrower shall
prepay, in accordance with clause (v) below, an aggregate principal amount of
the Revolving Credit Advances comprising part of the same Borrowings in an
amount equal to 50% of the Declined Amount.
(v) Prepayments of the Revolving Credit Facility made pursuant to
clause (i), (ii), (iii) or (iv) of this Section 2.06(b) or pursuant to Section
2.06(c) below shall be FIRST applied to prepay
43
Letter of Credit Advances then outstanding until such Advances are paid in full,
SECOND applied to prepay Swing Line Advances then outstanding until such
Advances are paid in full and THIRD applied to prepay Revolving Credit Advances
then outstanding comprising part of the same Borrowings until such Advances are
paid in full; and, in the case of prepayments of the Revolving Credit Facility
required pursuant to clause (i), (ii) or (iv) above, the amount remaining (if
any) after the prepayment in full of the Advances then outstanding (the sum of
such prepayment amounts and remaining amount being referred to herein as the
"REDUCTION AMOUNT") may be retained by the U.S. Borrower and the Revolving
Credit Facility shall be permanently reduced as set forth in Section 2.05(b)(i).
(vi) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the principal
amount prepaid.
(vii) Notwithstanding any of the other provisions of this Section
2.06(b), so long as no Default under Section 7.01(a) or 7.01(f) or Event of
Default shall have occurred and be continuing, if any prepayment of Eurodollar
Rate Advances is required to be made under this Section 2.06(b) other than on
the last day of the Interest Period therefor, the Borrower to which such
Eurodollar Rate Advances were made may, in its sole discretion, deposit the
amount of any such prepayment otherwise required to be made hereunder into the
Cash Collateral Account of such Borrower until the last day of such Interest
Period, at which time the Administrative Agent shall, subject to the provisions
of Section 2.06(c) below, be authorized (without any further action by or notice
to or from such Borrower) to apply such amount to the prepayment of such
Advances in accordance with Section 2.06(b).
(c) TERM OPT-OUT. Notwithstanding anything to the contrary
contained in Section 2.06(b), with respect to any prepayment of the Term A
Advances or Term B Advances required pursuant to Section 2.06(b)(i) or (ii)
above, any Term A Lender or Term B Lender, at its option, may elect not to
accept its ratable portion of such prepayment, in which event the provisions of
the next sentence shall apply. Any Lender declining such prepayment (such
Lender being a "DECLINING LENDER" and the amount of such Lender's ratable
portion of such prepayment being the "DECLINED AMOUNT") shall give written
notice to the Administrative Agent by 11:00 a.m. (New York City time) on the
Business Day immediately preceding the date on which such prepayment would
otherwise be made (the "PREPAYMENT DATE"). On the Prepayment Date, 50% of the
Declined Amount shall be used to prepay outstanding Revolving Credit Advances in
accordance with Section 2.06(b)(iv) above, and the Borrowers may elect, in their
discretion to retain the remaining portion of any such Declined Amount.
SECTION 2.07. INTEREST. (a) SCHEDULED INTEREST. Each Borrower
shall pay interest on the unpaid principal amount of each Advance owing by it to
each Lender from the date of such Advance until such principal amount shall be
paid in full, at the following rates per annum:
(i) BASE RATE ADVANCES. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the sum of
(A) the Base Rate in effect from time to time PLUS (B) the Applicable
Margin in effect from time to time, payable in arrears quarterly on the
last Business Day of each March, June, September and December during such
periods, SUBJECT, HOWEVER, to the provisions of subsection (b) of this
Section 2.07.
44
(ii) EURODOLLAR RATE ADVANCES. During such periods as such Advance
is a Eurodollar Rate Advance, a rate per annum equal at all times during
each Interest Period for such Advance to the sum of (A) the Eurodollar Rate
for such Interest Period for such Advance PLUS (B) the Applicable Margin in
effect on the first day of such Interest Period, payable in arrears on the
last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest
Period and on the date such Eurodollar Rate Advance shall be Converted or
paid in full, SUBJECT, HOWEVER, to the provisions of subsection (b) of this
Section 2.07.
(b) DEFAULT INTEREST. If all or a portion of (i) the principal
amount of any Advance or (ii) any interest payable thereon or fees or other
amounts payable under this Agreement shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amounts shall bear
interest, payable on demand, at a rate per annum that is (x) in the case of
overdue principal, the rate that would otherwise be applicable thereto PLUS 2%
per annum or (y) in the case of any overdue interest, fees or other amounts
payable, to the extent permitted by applicable law, the rate described in
Section 2.07(a)(i) PLUS 2% per annum, in each case, from the date of such
non-payment to the date on which such amount is paid in full (after as well as
before judgment).
(c) NOTICE OF INTEREST RATE. Promptly after receipt of a Notice of
Borrowing pursuant to Section 2.02(a), the Administrative Agent shall give
notice to the Appropriate Borrower and each Appropriate Lender of the applicable
interest rate determined by the Administrative Agent for purposes of clause
(a)(i) or (ii), and the applicable rate, if any, furnished by each Reference
Bank for the purpose of determining the applicable interest rate under clause
(a)(ii).
(d) INTEREST RATE DETERMINATION. (i) Each Reference Bank agrees
to furnish to the Administrative Agent timely information for the purpose of
determining each Eurodollar Rate. If any one or more of the Reference Banks
shall not furnish such timely information to the Administrative Agent for the
purpose of determining any such interest rate, the Administrative Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks.
(ii) If fewer than two Reference Banks are able to furnish timely
information to the Administrative Agent for determining the Eurodollar Rate for
any Eurodollar Rate Advances,
(A) the Administrative Agent shall forthwith notify the Appropriate
Borrower and the Lenders that the interest rate cannot be determined for
such Eurodollar Rate Advances,
(B) each such Advance will automatically, on the last day of the
then existing Interest Period therefor, convert into a Base Rate Advance
(or if such Advance is then a Base Rate Advance, will continue as a Base
Rate Advance), and
(C) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the Administrative
Agent shall notify the Appropriate Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
45
SECTION 2.08. FEES. (a) COMMITMENT FEE. The U.S. Borrower shall
pay to the Administrative Agent for the account of each Lender having a
Revolving Credit Commitment a commitment fee, from the date hereof in the case
of each Initial Lender and from the effective date specified in the Assignment
and Acceptance pursuant to which it became a Lender in the case of each other
Lender until the Termination Date, payable in arrears on the date of the initial
Borrowing hereunder, thereafter quarterly on the last Business Day of each
March, June, September and December, commencing March 31, 1998, and on the
Termination Date, at the rate per annum equal to the Applicable Percentage of
the sum of the average daily Unused Revolving Credit Commitment of such Lender
PLUS its Pro Rata Share of the average daily outstanding Swing Line Advances
during such quarter; PROVIDED, HOWEVER, that no commitment fee shall accrue on
any of the Commitments of a Defaulting Lender so long as such Lender shall be a
Defaulting Lender.
(b) LETTER OF CREDIT FEES, ETC. (i) The U.S. Borrower shall pay
to the Administrative Agent for the account of each Revolving Credit Lender a
commission, payable in arrears quarterly on the last Business Day of each March,
June, September and December, commencing March 31, 1998, and on the earliest to
occur of the full drawing expiration, termination or cancellation of any such
Letter of Credit and on the Termination Date, on such Lender's Pro Rata Share of
the average daily aggregate Available LC Amount of all Letters of Credit
outstanding from time to time at a rate per annum equal to the Applicable Margin
for Eurodollar Rate Advances then in effect LESS 0.125% per annum.
(ii) The U.S. Borrower shall pay to the Issuing Bank, for its own
account, (A) a fronting fee, payable in arrears quarterly on the last Business
Day of each March, June, September and December, commencing March 31, 1998, and
on the Termination Date, on the average daily aggregate Available LC Amount of
all Letters of Credit outstanding from time to time at the rate of 0.125% per
annum and (B) such other reasonable and customary commissions, transfer fees and
other fees and charges in connection with the issuance or administration of each
Letter of Credit as the U.S. Borrower and the Issuing Bank shall agree.
(c) ADMINISTRATIVE AGENT'S FEES. The U.S. Borrower shall pay to
the Administrative Agent for its own account such fees as may from time to time
be agreed between the U.S. Borrower and the Administrative Agent.
SECTION 2.09. CONVERSION OF ADVANCES. (a) OPTIONAL. Either
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than 12:00 P.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of
Sections 2.07 and 2.10, Convert all or any portion of the Advances of one Type
owed by it comprising the same Borrowing into Advances of the other Type;
PROVIDED, HOWEVER, that any Conversion of Eurodollar Rate Advances into Base
Rate Advances shall be made only on the last day of an Interest Period for such
Eurodollar Rate Advances, any Conversion of Base Rate Advances into Eurodollar
Rate Advances shall be in an amount not less than the minimum amount specified
in Section 2.02(c), no Conversion of any Advances shall result in more separate
Borrowings than permitted under Section 2.02(c) and each Conversion of Advances
comprising part of the same Borrowing under any Facility shall be made ratably
among the Appropriate Lenders in accordance with their Commitments under such
Facility. Each such notice of Conversion shall, within the restrictions
46
specified above, specify (i) the date of such Conversion, (ii) the Advances to
be Converted and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for such Advances. Each notice of
Conversion shall be irrevocable and binding on such Borrower.
(b) MANDATORY. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $2,000,000, such
Advances shall automatically Convert into Base Rate Advances.
(ii) If the Appropriate Borrower shall fail to select the duration
of any Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify such Borrower and the Appropriate
Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance.
(iii) Upon the occurrence and during the continuance of any Default
under Section 7.01(a), (x) each Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance and (y) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended.
SECTION 2.10. INCREASED COSTS, ETC. (a) In the event that, due to
either (i) the introduction of or any change (other than any change by way of
imposition or increase of reserve requirements included in the Eurodollar Rate
Reserve Percentage) in or in the interpretation or administration of any
applicable law or regulation after the Closing Date, (ii) the compliance with
any applicable guideline or request from any central bank or other governmental
authority (whether or not having the force of law) or (iii) any other
circumstance affecting the interbank Eurodollar market or the position of any
Lender Party in such market which leads such Lender Party to reasonably
determine that the Eurodollar Rate for any Interest Period for any Eurodollar
Rate Advance made by such Lender Party will not adequately reflect the cost to
such Lender of making, funding or maintaining such Eurodollar Rate Advance for
such Interest Period, there shall be any increase in the cost to or reduction in
the amount received or receivable by any Lender Party as a result of agreeing to
make or of making, funding or maintaining Eurodollar Rate Advances or of
agreeing to issue or of issuing or maintaining Letters of Credit or of agreeing
to make or of making or maintaining Letter of Credit Advances (excluding for
purposes of this Section 2.10 any such increased costs resulting from (A) Taxes
or Other Taxes (as to which Section 2.12 shall govern) and (B) changes in the
basis of taxation of overall net income or overall gross income by the United
States or Canada or by the foreign jurisdiction or state under the laws of which
such Lender Party is organized or has its Applicable Lending Office or any
political subdivision thereof), then the U.S. Borrower shall from time to time,
upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender Party additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender Party, in
its reasonable discretion, shall determine) sufficient to compensate such Lender
Party for such increased cost; PROVIDED, HOWEVER, that a Lender Party claiming
additional amounts under this Section 2.10(a) agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Applicable Lending Office for any Advances affected by
such event if the
47
making of such a designation would avoid the need for, or reduce the amount of,
such increased cost that may thereafter accrue; PROVIDED that such designation
is made on terms that such Lender Party and its Applicable Lending Office suffer
no economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of this subsection (a). A
certificate as to the amount of such increased cost and showing in reasonable
detail the basis for the calculation thereof, submitted to such Borrower by such
Lender Party at the time of demand, shall be conclusive and binding for all
purposes, absent manifest error.
(b) If, due to either (i) the introduction of or any change in or
in the interpretation or administration of any applicable law or regulation
after the Closing Date or (ii) the compliance with any applicable guideline or
request from any central bank or other governmental authority (whether or not
having the force of law), there shall be any increase in the amount of capital
required or expected to be maintained by any Lender Party or any corporation
controlling such Lender Party which has or would have the effect of reducing the
rate of return on such Lender Party's capital or assets as a result of or based
upon the existence of such Lender Party's commitments and obligations under this
Agreement to a level below that which such Lender Party could have achieved but
for such change or compliance (taking into consideration such Lender Party's or
any corporation controlling such Lender Party's policies with respect to capital
adequacy), then, upon demand by such Lender Party (with a copy of such demand to
the Administrative Agent), the U.S. Borrower shall pay to the Administrative
Agent for the account of such Lender Party, from time to time as specified by
such Lender Party, additional amounts sufficient to compensate such Lender Party
in the light of such circumstances, it being understood and agreed that a Lender
Party shall not be entitled to such compensation as a result of such Lender
Party's compliance with, or pursuant to any request or directive to comply with,
any such law, regulation, guideline or request in effect on the Closing Date.
Any amount payable pursuant to this Section 2.10(b) shall be payable only to the
extent that such Lender Party reasonably determines such increase in capital to
be allocable to the existence of such Lender Party's commitment to lend or to
issue Letters of Credit hereunder or to the issuance or maintenance of any
Letters of Credit. A certificate as to such amounts and showing in reasonable
detail the basis for the calculation thereof submitted to such Borrower by such
Lender Party at the time of demand shall be conclusive and binding for all
purposes, absent manifest error.
(c) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
with respect to any Eurodollar Rate Advance affected by circumstances described
in this subsection (c), such Borrower will, and with respect to any Eurodollar
Rate Advance affected by circumstances described in subsections (a) or (b)
above, such Borrower may, either (i) on the last day of the then existing
Interest Period therefor, convert each Eurodollar Rate Advance affected by such
circumstances into a Base Rate Advance or (ii) if the affected Eurodollar Rate
Advance is then being made pursuant to a Borrowing, cancel such Borrowing by
giving the Administrative Agent telephonic notice (confirmed promptly in
writing) thereof on the same date that such Borrower was notified by a Lender
Party pursuant to subsection (a) or (b) above or this subsection (c) (as
applicable); PROVIDED, that if more than one Lender Party is affected at any
time, then all affected Lender Parties must be treated in the same manner
pursuant to this Section 2.10(c). In
48
the event of an illegality as described in clause (i) of this subsection (c) the
obligation of the Appropriate Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Appropriate Borrower that such Lender has determined that the
circumstances causing such suspension no longer exist; PROVIDED, HOWEVER, that,
before making any such demand, such Lender Party agrees to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office for any
Advances affected by such event if the making of such a designation would allow
such Lender Party or its Applicable Lending Office to continue to perform its
obligations to make Eurodollar Rate Advances or to continue to fund or maintain
Eurodollar Rate Advances; PROVIDED that such designation is made on terms that
such Lender Party and its Applicable Lending Office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of this subsection.
(d) Anything in this Agreement to the contrary notwithstanding, to
the extent any notice under Section 2.10, 2.12 or 9.04(c) is given by any Lender
Party more than 180 days after such Lender Party has knowledge (or should have
had knowledge) of the occurrence of the event giving rise to the additional
cost, reduction in amounts, loss, tax or other additional amounts described in
such Section 2.10, 2.12 or 9.04(c), as the case may be, such Lender Party shall
not be entitled to compensation under such Section for any such amounts incurred
or accruing prior to the giving of such notice to the Appropriate Borrower.
SECTION 2.11. PAYMENTS AND COMPUTATIONS. (a) Each Borrower shall
make each payment owed by it hereunder and under the Notes, irrespective of any
right of counterclaim or set-off (except as otherwise provided in Section 2.15),
not later than 12:00 P.M. (New York City time) on the day when due (or, in the
case of payments made by the U.S. Borrower pursuant to Section 6.01, on the date
of demand therefor) in U.S. dollars to the Administrative Agent at the
Administrative Agent's Account in same day funds. The Administrative Agent will
promptly thereafter cause like funds to be distributed (i) if such payment by a
Borrower is in respect of principal, interest, commitment fees or any other
Obligation then payable hereunder and under the Notes to more than one Lender
Party, to such Lender Parties for the account of their respective Applicable
Lending Offices ratably in accordance with the amounts of such respective
Obligations then payable to such Lender Parties and (ii) if such payment by a
Borrower is in respect of any Obligation then payable hereunder to one Lender
Party, to such Lender Party for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement. Upon
its acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 9.07(d), from and after
the effective date of such Assignment and Acceptance, the Administrative Agent
shall make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender Party assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) If the Administrative Agent receives funds for application to
the Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances or the Facility to which, or the manner in
which, such funds are to be applied, the Administrative Agent may, but shall not
be obligated to, elect to distribute such funds to each Lender
49
Party ratably in accordance with such Lender Party's proportionate share of the
principal amount of all outstanding Advances and the Available LC Amount of all
Letters of Credit then outstanding, in repayment or prepayment of such of the
outstanding Advances or other Obligations owed to such Lender Party, and for
application to such principal installments, as the Administrative Agent shall
direct.
(c) The Borrowers hereby authorize each Lender Party, if and to the
extent payment owed to such Lender Party is not made when due hereunder or, in
the case of a Lender, under the Note held by such Lender, to charge from time to
time against any or all of the Appropriate Borrower's accounts with such Lender
Party any amount so due.
(d) All computations of interest, fees and commissions shall be
made by the Administrative Agent on the basis of a year of 360 days, in each
case for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest, fees or commissions
are payable; PROVIDED that (i) interest in respect of which the rate of interest
is calculated on the basis of clause (a) of the definition of "Base Rate"
contained in Section 1.01, (ii) commitment fees payable pursuant to Section
2.08(a) and (iii) Letter of Credit fees payable pursuant to Section 2.08(b)
shall be calculated on the basis of a year of 365 (or 366, as the case may be)
days for the actual number of days elapsed; and PROVIDED FURTHER, that for
purposes of the INTEREST ACT (Canada), whenever interest hereunder is to be
calculated at a rate based upon a 360 day period (the "APPLICABLE RATE"), the
rate or percentage of interest on a yearly basis is equivalent to such
Applicable Rate multiplied by the actual number of days in the year divided by
360. Each determination by the Administrative Agent of an interest rate, fee or
commission hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(e) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee, as
the case may be; PROVIDED, HOWEVER, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(f) Unless the Administrative Agent shall have received notice from
the Appropriate Borrower prior to the date on which any payment is due to any
Lender Party hereunder that such Borrower will not make such payment in full,
the Administrative Agent may assume that such Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may,
in reliance upon such assumption, cause to be distributed to each such Lender
Party on such due date an amount equal to the amount then due such Lender Party.
If and to the extent such Borrower shall not have so made such payment in full
to the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
50
SECTION 2.12. TAXES. (a) Any and all payments by either Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.11,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, EXCLUDING, (i) in the case of each Lender Party and the
Administrative Agent, (A) taxes that are imposed on its overall net income by
the United States and taxes that are imposed on its overall net income or, in
the case of any Term A Lender, capital (and franchise taxes imposed in lieu
thereof) by the state, province or other jurisdiction under the laws of which
such Lender Party or the Administrative Agent (as the case may be) is organized
or any political subdivision thereof and (B) any taxes imposed on the
Administrative Agent or any Lender Party as a result of a current or former
connection between the Administrative Agent or such Lender Party, as the case
may be, and the jurisdiction imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising from
the Administrative Agent or such Lender Party having executed, delivered or
performed its obligations or received any payment under, or sought enforcement
of, this Agreement) and, (ii) (A) in the case of each Lender Party, taxes that
are imposed on its overall net income (and franchise taxes imposed in lieu
thereof) by the state, province or other jurisdiction of such Lender Party's
Applicable Lending Office or any political subdivision thereof and (B) in the
case of each Term A Lender, taxes that are imposed on its overall capital under
the federal or provincial laws of Canada (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities in respect of
payments hereunder or under the Notes being hereinafter referred to as "TAXES")
unless such Borrower is required by law or the interpretation or administration
thereof to withhold or deduct Taxes. If either Borrower shall be required by
law or the interpretation or administration thereof by the relevant taxing
authority to deduct any Taxes from or in respect of any sum payable hereunder or
under any Note to any Lender Party or the Administrative Agent, (x) the sum
payable shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.12) such Lender Party or the Administrative Agent (as the case
may be) receives an amount equal to the sum it would have received had no such
deductions been made, (y) such Borrower shall make such deductions and (z) such
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law; PROVIDED, however, that no
Borrower shall be required to increase any such amounts otherwise payable to a
Lender Party that is not organized under the laws of the United States or a
state thereof so long as such Lender Party fails to comply with the requirements
of subsection (e) below.
(b) In addition, each Borrower shall pay any present or future
stamp, documentary, excise, property or similar taxes, charges or levies that
arise from any payment made by it hereunder or under the Notes or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "OTHER
TAXES").
(c) Each Borrower shall indemnify each Lender Party and the
Administrative Agent for and hold it harmless against the full amount of Taxes
and Other Taxes, and for the full amount of taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 2.12, imposed on or paid by
such Lender Party or the Administrative Agent (as the case may be), and any
liability (including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto that would not have arisen but for the
Appropriate Borrower's failure to pay any Taxes or Other Taxes when due to the
appropriate taxing authority or remit to the Administrative Agent the receipts
or
51
other documentary evidence required under subsection (d) below. This
indemnification shall be made within 30 days from the date such Lender Party or
the Administrative Agent (as the case may be) makes written demand therefor.
(d) Promptly after the date of any payment of Taxes, the
Appropriate Borrower shall furnish to the Administrative Agent, at its address
referred to in Section 9.02, the original or a certified copy of a receipt
evidencing such payment. In the case of any payment hereunder or under the
Notes by or on behalf of such Borrower through an account or branch outside the
United States or by or on behalf of such Borrower by a payor that is not a
United States person, if such Borrower determines that no Taxes are payable in
respect thereof, such Borrower shall furnish, or shall cause such payor to
furnish, to the Administrative Agent, at such address, an opinion of counsel
reasonably acceptable to the Administrative Agent stating that such payment is
exempt from Taxes. For purposes of this subsection (d) and subsection (e), the
terms "UNITED STATES" and "UNITED STATES PERSON" shall have the meanings
specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender or Initial Issuing
Bank, as the case may be, and on the date of the Assignment and Acceptance
pursuant to which it becomes a Lender Party in the case of each other Lender
Party, and from time to time thereafter as requested in writing by the U.S.
Borrower (but only so long thereafter as such Lender Party remains lawfully able
to do so), provide each of the Administrative Agent and the U.S. Borrower with
two original properly completed and duly executed Internal Revenue Service
forms 1001 or 4224 or (in the case of a Lender Party that has certified in
writing to the Administrative Agent that it is not a "bank" as defined in
Section 881(c)(3)(A) of the Internal Revenue Code) form W-8 (and, if such Lender
Party delivers a form W-8, a certificate representing that such Lender Party is
not a "bank" for purposes of Section 881(c) of the Internal Revenue Code, is not
a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of such Borrower and is not a controlled foreign
corporation related to such Borrower (within the meaning of Section 864(d)(4) of
the Internal Revenue Code)), as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender Party is
exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes or, in the case of a Lender
Party providing a form W-8, certifying that such Lender Party is a foreign
corporation, partnership, estate or trust. Each such Lender Party hereby
agrees, from time to time after the initial delivery by such Lender Party of
such forms or certificates, whenever a lapse in time or change in circumstances
renders such forms or certificates obsolete or inaccurate in any material
respect, that such Lender Party shall promptly (i) deliver to the U.S. Borrower
and the Administrative Agent two new original copies of Internal Revenue Service
forms 1001 or 4224, or (in the case of a Lender Party that has certified in
writing to the Administrative Agent that it is not a "bank" as defined in
Section 881(c)(3)(A) of the Internal Revenue Code) form W-8 (and, if such Lender
Party delivers a form W-8, a certificate representing that such Lender Party is
not a "bank" for purposes of Section 881(c) of the Internal Revenue Code, is not
a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of such Borrower and is not a controlled foreign
corporation related to such Borrower (within the meaning of Section 864(d)(4) of
the Internal Revenue Code)), as appropriate, properly completed and duly
executed by such Lender Party or (ii) notify the Administrative Agent and the
U.S. Borrower of its inability to deliver any such forms
52
or certificates. If the forms provided by a Lender Party at the time such
Lender Party first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender Party
provides the appropriate form certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form; PROVIDED, HOWEVER, that, if at the date of
the Assignment and Acceptance pursuant to which a Lender Party becomes a party
to this Agreement, the Lender Party assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender Party assignee on such date. If any form
or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001,
4224 or W-8 (or the related certificate described above), that the Lender Party
reasonably considers to be confidential, the Lender Party shall give notice
thereof to such Borrower and shall not be obligated to include in such form or
document such confidential information.
(f) In respect of any Term A Advance made to the Canadian Borrower
by any Lender Party, such Lender Party (i) represents and warrants to the
Canadian Borrower that, in respect of any payments of interest, fees or other
amounts constituting income that would be taxable to such Term A Lender pursuant
to Part I of the INCOME TAX ACT (CANADA) made to it by the Canadian Borrower,
such Lender Party will be entitled to receive such payments free and clear of,
and without any obligation on the part of the Canadian Borrower to make
deduction for or on account of, any income or capital taxes imposed by Canada or
any political subdivision or taxing authority thereof or therein, PROVIDED, that
such Lender Party is a resident of Canada for purposes of the INCOME TAX ACT
(CANADA) at the time such payments are made; and (ii) agrees that if such Lender
Party is not a resident of Canada at the time such payments are made that the
Canadian Borrower may withhold and remit Taxes pursuant to subsection (a) (and
(c), if applicable) and that such Lender Party shall not be entitled to
indemnification under subsection (a) or (c) with respect to Taxes or Other Taxes
imposed by Canada or any political subdivision or taxing authority thereof or
therein that arise by virtue of such Lender Party being a non-resident of Canada
for purposes of the INCOME TAX ACT (CANADA); and (iii) covenants and agrees to
promptly advise the U.S. Borrower if such Lender Party changes its residency for
purposes of the INCOME TAX ACT (CANADA) and to cooperate with the Canadian
Borrower to provide, at either Borrower's reasonable request, information
necessary to determine the amount of withholding or deduction that may be
required.
(g) For any period with respect to which either (i) a Lender Party
has failed to provide the U.S. Borrower with the appropriate form described in
subsection (e) above (OTHER THAN if such failure is due to a change in law
occurring after the date on which a form originally was required to be provided
or if such form otherwise is not required under subsection (e) above) or (ii)
any representation or certification made by a Lender Party pursuant to
subsection (e) or (f) above is incorrect in any material respect at the time a
payment hereunder is made (other than by reason of any change in treaty, law or
regulation having effect after the date of such representation or certification
when made), such Lender Party shall not be entitled to indemnification under
subsection (a) or (c) with respect to Taxes imposed by the United States or
Canada by reason of such failure or incorrectness, as
53
the case may be; PROVIDED, HOWEVER, that should a Lender Party become subject to
Taxes because of its failure to deliver a form required hereunder, such Borrower
shall take such steps as such Lender Party shall reasonably request to assist
such Lender Party to recover such Taxes.
(h) Any Lender Party claiming any additional amounts payable
pursuant to this Section 2.12 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Applicable Lending Office or designate a different
Applicable Lending Office if the making of such a change or designation would
avoid the need for, or reduce the amount of, any such additional amounts that
may thereafter accrue, PROVIDED, that such change or designation is made on
terms that such Lender Party and its Applicable Lending Office suffer no
economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of subsection (a) or (c)
above.
(i) If the U.S. Borrower determines in good faith that a reasonable
basis exists for contesting any taxes for which indemnification has been
demanded hereunder, the relevant Lender Party or the Administrative Agent, as
applicable, shall cooperate with the U.S. Borrower in challenging such taxes at
the U.S. Borrower's expense if so requested by the U.S. Borrower. If any Lender
Party or the Administrative Agent, as applicable, receives a refund of a tax for
which a payment has been made by the U.S. Borrower pursuant to this Section,
which refund in the good faith judgment of such Lender Party or Administrative
Agent, as the case may be, is attributable to such payment made by the U.S.
Borrower, then the Lender Party or the Administrative Agent, as the case may be,
shall reimburse the U.S. Borrower for such amount as the Lender Party or the
Administrative Agent, as the case may be, determines to be the proportion of the
refund as will leave it, after such reimbursement, in no better or worse
position than it would have been in if the payment had not been required. If a
Lender Party or the Administrative Agent is required to return all or a portion
of any refund for which reimbursement was made under the preceding sentence to
the authority that granted such refund, the U.S. Borrower shall pay over to such
Lender Party or the Administrative Agent, as the case may be, the portion of
such reimbursement as will leave such Lender Party or the Administrative Agent,
as the case may be, in no better or worse position than if no such reimbursement
had been made. A Lender Party or the Administrative Agent shall claim any
refund that it determines in good faith is available to it, unless it concludes
in its reasonable discretion that it would be adversely affected by making such
a claim; PROVIDED, HOWEVER, that each Lender Party and the Administrative Agent
shall be fully justified in refusing to claim any such refund, unless, if it so
requests, it shall first be indemnified to its satisfaction against any expense
that may be incurred by it in connection therewith. Nothing herein contained
shall interfere with the right of a Lender or the Administrative Agent to
arrange its tax affairs in whatever manner it thinks fit nor oblige any Lender
or the Administrative Agent to disclose any information relating to its tax
affairs or any computations in respect thereof or require any Lender or the
Administrative Agent to do anything that would prejudice its ability to benefit
from any other reliefs, remissions or repayments to which it may be entitled.
(j) Each Lender Party represents and agrees that, on the date
hereof and at all times during the term of this Agreement, it is not and will
not be a conduit entity participating in a conduit financing arrangement (as
defined United States Treasury regulations Section 881-3) with respect to the
Borrowings hereunder (other than a conduit financing arrangement in which the
54
Appropriate Borrower, or an Affiliate thereof, is a financing entity) unless the
Appropriate Borrower has consented to such arrangement prior thereto.
SECTION 2.13. SHARING OF PAYMENTS, ETC. If any Lender Party shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) (a) on account of Obligations
due and payable to such Lender Party hereunder and under the Loan Documents at
such time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations due and payable to such Lender Party at such time to
(ii) the aggregate amount of the Obligations due and payable to all Lender
Parties hereunder and under the Loan Documents at such time) of payments on
account of the Obligations due and payable to all Lender Parties hereunder and
under the Loan Documents at such time obtained by all the Lender Parties at such
time or (b) on account of Obligations owing (but not due and payable) to such
Lender Party hereunder and under the Loan Documents at such time in excess of
its ratable share (according to the proportion of (i) the amount of such
Obligations owing to such Lender Party at such time to (ii) the aggregate amount
of the Obligations owing (but not due and payable) to all Lender Parties
hereunder and under the Loan Documents at such time) of payments on account of
the Obligations owing (but not due and payable) to all Lender Parties hereunder
and under the Loan Documents at such time obtained by all of the Lender Parties
at such time, such Lender Party shall forthwith purchase from the other Lender
Parties such participations in the Obligations due and payable or owing to them,
as the case may be, as shall be necessary to cause such purchasing Lender Party
to share the excess payment ratably with each of them; PROVIDED, HOWEVER, that
if all or any portion of such excess payment is thereafter recovered from such
purchasing Lender Party, such purchase from each other Lender Party shall be
rescinded and such other Lender Party shall repay to the purchasing Lender Party
the purchase price to the extent of such Lender Party's ratable share (according
to the proportion of (i) the purchase price paid to such Lender Party to
(ii) the aggregate purchase price paid to all Lender Parties) of such recovery
together with an amount equal to such Lender Party's ratable share (according to
the proportion of (i) the amount of such other Lender Party's required repayment
to (ii) the total amount so recovered from the purchasing Lender Party) of any
interest or other amount paid or payable by the purchasing Lender Party in
respect of the total amount so recovered. Each Borrower agrees that any Lender
Party so purchasing a participation from another Lender Party pursuant to this
Section 2.13 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender Party were the direct creditor of such
Borrower in the amount of such participation.
SECTION 2.14. USE OF PROCEEDS. The proceeds of the Advances and
issuances of Letters of Credit shall be available (and each Borrower agrees that
it shall use such proceeds and Letters of Credit), directly or indirectly,
solely to finance a portion of the cash consideration paid in connection with
the Acquisition and to pay transaction fees and expenses associated therewith,
and to provide working capital for the U.S. Borrower and its Subsidiaries and
for other general corporate purposes.
SECTION 2.15. DEFAULTING LENDERS. (a) In the event that, at any one
time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to either Borrower and (iii) such Borrower
shall be required to make any payment hereunder or under any other Loan Document
to or for the account of such Defaulting Lender, then such Borrower may,
55
so long as no Default shall occur or be continuing at such time and to the
fullest extent permitted by applicable law, set off and otherwise apply the
Obligation of such Borrower to make such payment to or for the account of such
Defaulting Lender against the obligation of such Defaulting Lender to make such
Defaulted Advance. In the event that, on any date, such Borrower shall so set
off and otherwise apply its obligation to make any such payment against the
obligation of such Defaulting Lender to make any such Defaulted Advance on or
prior to such date, the amount so set off and otherwise applied by such Borrower
shall constitute for all purposes of this Agreement and the other Loan Documents
an Advance by such Defaulting Lender made on the date under the Facility
pursuant to which such Defaulted Advance was originally required to have been
made pursuant to Section 2.01. Such Advance shall be a Base Rate Advance and
shall be considered, for all purposes of this Agreement, to comprise part of the
Borrowing in connection with which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01, even if the other Advances
comprising such Borrowing shall be Eurodollar Rate Advances on the date such
Advance is deemed to be made pursuant to this subsection (a). Each Borrower
shall notify the Administrative Agent at any time such Borrower exercises its
right of set-off pursuant to this subsection (a) and shall set forth in such
notice (A) the name of the Defaulting Lender and the Defaulted Advance required
to be made by such Defaulting Lender and (B) the amount set off and otherwise
applied in respect of such Defaulted Advance pursuant to this subsection (a).
Any portion of such payment otherwise required to be made by either Borrower to
or for the account of such Defaulting Lender which is paid by such Borrower,
after giving effect to the amount set off and otherwise applied by such Borrower
pursuant to this subsection (a), shall be applied by the Administrative Agent as
specified in subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party shall
be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount
to the Administrative Agent or any of the other Lender Parties and (iii) the
Appropriate Borrower shall make any payment hereunder or under any other Loan
Document to the Administrative Agent for the account of such Defaulting Lender,
then the Administrative Agent may, on its behalf or on behalf of such other
Lender Parties and to the fullest extent permitted by applicable law, apply at
such time the amount so paid by such Borrower to or for the account of such
Defaulting Lender to the payment of each such Defaulted Amount to the extent
required to pay such Defaulted Amount. In the event that the Administrative
Agent shall so apply any such amount to the payment of any such Defaulted Amount
on any date, the amount so applied by the Administrative Agent shall constitute
for all purposes of this Agreement and the other Loan Documents payment, to such
extent, of such Defaulted Amount on such date. Any such amount so applied by
the Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Lender Parties, ratably in
accordance with the respective portions of such Defaulted Amounts payable at
such time to the Administrative Agent and such other Lender Parties and, if the
amount of such payment made by such Borrower shall at such time be insufficient
to pay all Defaulted Amounts owing at such time to the Administrative Agent and
the other Lender Parties, in the following order of priority:
(i) FIRST, to the Administrative Agent for any Defaulted Amount
then owing to the Administrative Agent; and
56
(ii) SECOND, to any other Lender Parties for any Defaulted Amounts
then owing to such other Lender Parties, ratably in accordance with such
respective Defaulted Amounts then owing to such other Lender Parties.
Any portion of such amount paid by such Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party shall
be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) either Borrower, the Administrative
Agent or any other Lender Party shall be required to pay or distribute any
amount hereunder or under any other Loan Document to or for the account of such
Defaulting Lender, then such Borrower or such other Lender Party shall pay such
amount to the Administrative Agent to be held by the Administrative Agent, to
the fullest extent permitted by applicable law, in escrow or the Administrative
Agent shall, to the fullest extent permitted by applicable law, hold in escrow
such amount otherwise held by it. Any funds held by the Administrative Agent in
escrow under this subsection (c) shall be deposited by the Administrative Agent
in an account with Citibank, in the name and under the control of the
Administrative Agent, but subject to the provisions of this subsection (c). The
terms applicable to such account, including the rate of interest payable with
respect to the credit balance of such account from time to time, shall be
Citibank's standard terms applicable to escrow accounts maintained with it. Any
interest credited to such account from time to time shall be held by the
Administrative Agent in escrow under, and applied by the Administrative Agent
from time to time in accordance with the provisions of, this subsection (c).
The Administrative Agent shall, to the fullest extent permitted by applicable
law, apply all funds so held in escrow from time to time to the extent necessary
to make any Advances required to be made by such Defaulting Lender and to pay
any amount payable by such Defaulting Lender hereunder and under the other Loan
Documents to the Administrative Agent or any other Lender Party, as and when
such Advances or amounts are required to be made or paid and, if the amount so
held in escrow shall at any time be insufficient to make and pay all such
Advances and amounts required to be made or paid at such time, in the following
order of priority:
(i) FIRST, to the Administrative Agent for any amount then due and
payable by such Defaulting Lender to the Administrative Agent hereunder;
(ii) SECOND, to any other Lender Parties for any amount then due and
payable by such Defaulting Lender to such other Lender Parties hereunder,
ratably in accordance with such respective amounts then due and payable to
such other Lender Parties; and
(iii) THIRD, to such Borrower for any Advance then required to be
made by such Defaulting Lender pursuant to a Commitment of such Defaulting
Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by
57
such Lender Party to the Obligations owing to such Lender Party at such time
under this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.15 are in addition to other rights and remedies that either Borrower
may have against such Defaulting Lender with respect to any Defaulted Advance
and that the Administrative Agent or any Lender Party may have against such
Defaulting Lender with respect to any Defaulted Amount.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. CONDITIONS PRECEDENT TO THE INITIAL EXTENSION OF
CREDIT. The obligation of each Lender to make an Advance on the occasion of the
Initial Extension of Credit hereunder is subject to the satisfaction of the
following conditions precedent before or concurrently with the Initial Extension
of Credit:
(a) The Acquisition shall have been consummated in accordance with
the terms of the Stock Purchase Agreement without any waiver or amendment
thereto (unless such amendment or waiver in the reasonable judgment of the
Administrative Agent is not adverse in any material respect to the
interests of the Lender Parties), and in compliance with all applicable
laws.
(b) The U.S. Borrower (i) shall have received not less than
$108,000,000 in cash for the purchase of common equity by the Investor
Group, representing approximately 90% of the outstanding common equity, and
(ii) shall have received approximately $200,000,000 in gross cash proceeds
from the sale of the Subordinated Notes.
(c) The Administrative Agent shall be reasonably satisfied with the
corporate and legal structure and capitalization of each Loan Party,
including the terms and conditions of the charter, bylaws and each class of
capital stock of each Loan Party and of each agreement or instrument
relating to such structure or capitalization.
(d) The Administrative Agent shall be reasonably satisfied that all
Existing Debt, other than the Debt identified on Schedule 3.01(d) (the
"SURVIVING DEBT"), has been prepaid, redeemed or defeased in full or
otherwise satisfied and extinguished and that all such Surviving Debt shall
be on terms and conditions reasonably satisfactory to the Administrative
Agent.
(e) Before giving effect to the Acquisition and the other
transactions contemplated by this Agreement, there shall have occurred no
material adverse change in the business, financial condition, operations,
assets, liabilities or prospects of any Loan Party or any of its
Subsidiaries since June 30, 1997.
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(f) There shall have occurred no material adverse change in loan
syndication, financial or capital market conditions generally that has
impaired or could reasonably be expected to impair syndication of the
Facilities.
(g) There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that
(i) would reasonably be likely to have a Material Adverse Effect or
(ii) purports to affect the legality, validity or enforceability of the
Acquisition, this Agreement, any Note, any other Loan Document, any Related
Document or the consummation of the transactions contemplated hereby.
(h) Nothing shall have come to the attention of the Lender Parties
to lead them to believe (i) that the Information Memorandum was or has
become misleading, incorrect or incomplete in any material respect,
(ii) that, following the consummation of the Acquisition, either Borrower
or its Subsidiaries would not have good and marketable title to all
material assets of such Borrower and such Subsidiaries reflected in the
Information Memorandum and (iii) that the Acquisition will have a Material
Adverse Effect; without limiting the generality of the foregoing, the
Lender Parties shall have been given such access to the management,
records, books of account, contracts and properties of the Borrowers and
their respective Restricted Subsidiaries as they shall have reasonably
requested.
(i) All governmental and third party consents and approvals
necessary in connection with the Acquisition, the Loan Documents and the
Related Documents and the transactions contemplated thereby shall have been
obtained (without the imposition of any conditions that are not reasonably
acceptable to the Administrative Agent) and shall remain in effect; all
applicable waiting periods shall have expired without any action being
taken by any competent authority; and no law or regulation shall be
applicable in the reasonable judgment of the Administrative Agent that
restrains, prevents or imposes materially adverse conditions upon the
Acquisition, the Loan Documents and the Related Documents and the
transactions contemplated thereby.
(j) The Administrative Agent shall have received the fees referred
to in Section 2.08(c) to be received on the Closing Date and under a
separate letter agreement dated December 2, 1997 between the U.S. Borrower
and the Administrative Agent.
(k) The Administrative Agent shall have received on or before the
day of the Initial Extension of Credit the following, each dated such day
(unless otherwise specified), in form and substance reasonably satisfactory
to the Administrative Agent (unless otherwise specified) and (except for
the Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board of
Directors of each Borrower and each other Loan Party approving each
Loan Document and Related Document to which it is or is to be a party
and the transactions contemplated thereby,
59
and of all documents evidencing other necessary corporate action and
governmental and other third party approvals and consents, if any,
with respect to the Acquisition, this Agreement, the Notes, each other
Loan Document and each Related Document.
(iii) A copy of a certificate of the Secretary of State of
the jurisdiction of its incorporation, or in the case of the Canadian
Borrower, the Ministry of Consumer and Commercial Relations of the
Province of Ontario, dated reasonably near the date of the Initial
Extension of Credit, listing the charter of each Borrower and each
other Loan Party and each amendment thereto on file in his office and
certifying that (A) such amendments are the only amendments to such
Borrower's or such other Loan Party's charter on file in his office,
(B) each such Borrower and each such other Loan Party have paid all
franchise taxes to the date of such certificate and (C) each Borrower
and each other Loan Party are duly incorporated and in good standing
under the laws of the State or Province of the jurisdiction of its
incorporation.
(iv) A certificate of each Borrower and each other Loan
Party, signed on behalf of such Borrower and such other Loan Party by
its President or a Vice President and its Secretary or any Assistant
Secretary, dated the date of the Initial Extension of Credit (the
statements made in which certificate shall be true on and as of the
date of the Initial Extension of Credit), certifying as to (A) the
absence of any amendments to the charter of such Borrower or such
other Loan Party since the date of the certificate referred to in
Section 3.01(k)(iii), (B) a true and correct copy of the bylaws of
such Borrower and such other Loan Party as in effect on the date of
the Initial Extension of Credit, (C) the absence of any proceeding for
the dissolution or liquidation of such Borrower or such other Loan
Party, (D) the truth and accuracy of the representations and
warranties contained in the Loan Documents in all material respects as
though made on and as of the date of the Initial Extension of Credit,
(E) the absence of any event occurring and continuing, or resulting
from the Initial Extension of Credit, that constitutes a Default, and
(F) in the case of the U.S. Borrower only, the completion of the
restructuring contemplated by the memorandum attached hereto as
Schedule 3.01(l).
(v) A certificate of the Secretary or an Assistant
Secretary of each Borrower and each other Loan Party certifying the
names and true signatures of the officers of such Borrower and such
other Loan Party authorized to sign this Agreement, the Notes, each
other Loan Document and each Related Document to which they are or are
to be parties and the other documents to be delivered hereunder and
thereunder.
(vi) A pledge agreement in substantially the form of
Exhibit D hereto (together with each other pledge agreement or Pledge
Agreement Supplement delivered pursuant to Section 5.01(k), in each
case as amended, supplemented or otherwise modified from time to time
in accordance with its terms, the "PLEDGE AGREEMENT"), duly executed
by the U.S. Borrower and the Canadian Borrower, together with:
60
(A) certificates representing 100% of the issued and
outstanding stock (or other ownership or profit interest) owned
by the U.S. Borrower of all of its first-tier Subsidiaries
(other than Unrestricted Subsidiaries), accompanied by undated
stock powers executed in blank; PROVIDED that no more than 66%
of the issued and outstanding stock of any first-tier Foreign
Subsidiaries of the U.S. Borrower (other than Unrestricted
Subsidiaries and the Canadian Borrower) shall be required to be
pledged,
(B) copies of proper financing statements, to be duly filed
on or before the day of the Initial Extension of Credit under
the Uniform Commercial Code of all jurisdictions that the
Administrative Agent may deem necessary or desirable in order
to perfect and protect the first priority liens and security
interests created under the Pledge Agreement, covering the
Collateral described in the Pledge Agreement,
(C) completed requests for information, dated on or before
the date of the Initial Extension of Credit, listing all other
effective financing statements filed in the jurisdictions
referred to in clause (B) above that name the U.S. Borrower or
any other Loan Party as debtor, together with copies of such
other financing statements,
(D) evidence of the completion of all other recordings and
filings of or with respect to the Pledge Agreement that the
Administrative Agent may reasonably deem necessary or desirable
in order to perfect and protect the Liens created thereby, and
(E) evidence that all other action that the Administrative
Agent may reasonably deem necessary or desirable in order to
perfect and protect the first priority liens and security
interests created under the Pledge Agreement has been taken.
(vii) A guaranty in substantially the form of Exhibit E
hereto (together with each other guaranty required to be delivered as
of the Closing Date pursuant to Section 5.01(k), in each case as
amended, supplemented or otherwise modified from time to time in
accordance with its terms, the "SUBSIDIARIES GUARANTY"), duly executed
by each of the Subsidiary Guarantors.
(viii) Certified copies of each of the Related Documents, duly
executed by the parties thereto and in form and substance satisfactory
to the Lender Parties, together with all agreements, instruments and
other documents delivered in connection therewith.
(ix) Such financial, business and other information
regarding each Loan Party as the Lender Parties shall have reasonably
requested, including, without limitation, (A) audited Consolidated
financial statements of the U.S. Borrower and its
61
Consolidated Subsidiaries for Fiscal Years 1995 and 1996, (B)
unaudited Consolidated financial statements of the U.S. Borrower and
its consolidated Subsidiaries for each Fiscal Quarter in Fiscal Year
1997 that ended more than 45 days prior to the initial Closing Date,
(C) a Consolidated pro forma balance sheet of the U.S. Borrower and
its Consolidated Subsidiaries as of the Closing Date after giving
effect to the Acquisition and other transactions and financings
contemplated by the Related Documents and the Loan Documents, and
(D) Consolidated forecasted financial statements of the U.S. Borrower
and its Consolidated Subsidiaries for the five-year period after the
Closing Date, all of the foregoing (including, without limitation, the
statements to be delivered pursuant to clauses (A) through (D) above)
to be in form and substance reasonably satisfactory to the
Administrative Agent.
(x) Letters and certificates, in substantially the form of
Exhibit H and I hereto, respectively, attesting to the Solvency of
each of the Borrowers after giving effect to the Acquisition and the
other transactions contemplated hereby, from its chief financial
officer or, in the case of the Canadian Borrower, its assistant
treasurer, and a nationally recognized appraisal firm, valuation
consultant or investment banking firm satisfactory to the
Administrative Agent.
(xi) A favorable opinion of Xxxxxx and Xxxxxxx, U.S. counsel
for the Borrowers, in substantially the form of Exhibit F-1 hereto and
as to such other matters as any Lender Party through the
Administrative Agent may reasonably request.
(xii) A favorable opinion of Osler, Xxxxxx & Harcourt,
Canadian counsel for the Canadian Borrower, in substantially the form
of Exhibit F-2 and as to such other matters as any Lender Party
through the Administrative Agent may reasonably request.
(xiii) A favorable opinion of Shearman & Sterling, counsel for
the Administrative Agent, in form and substance satisfactory to the
Administrative Agent.
(l) On or prior to the Closing Date the U.S. Borrower shall have
completed the restructuring contemplated by the memorandum attached hereto
as Schedule 3.01(l).
SECTION 3.02. CONDITIONS PRECEDENT TO EACH BORROWING AND ISSUANCE.
The obligation of each Appropriate Lender to make an Advance (other than a
Letter of Credit Advance made by the Issuing Bank or a Revolving Credit Lender
pursuant to Section 2.03(c) and a Swing Line Advance made by a Revolving Credit
Lender pursuant to Section 2.02(b)) on the occasion of each Borrowing (including
the Initial Extension of Credit), and the obligation of the Issuing Bank to
issue a Letter of Credit (including the initial issuance) or renew a Letter of
Credit and the right of the U.S. Borrower to request a Swing Line Borrowing,
shall be subject to the further conditions precedent that on the date of such
Borrowing or issuance or renewal (a) the following statements shall be true in
all material respects (and each of the giving of the applicable Notice of
Borrowing, Notice of Swing Line Borrowing, Notice of Issuance or Notice of
Renewal and the acceptance by the Appropriate Borrower of the proceeds of such
Borrowing or of such Letter of Credit or the renewal of such Letter of Credit
62
shall constitute a representation and warranty by such Borrower that both on the
date of such notice and on the date of such Borrowing or issuance or renewal
such statements are true):
(i) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of such date,
before and after giving effect to such Borrowing or issuance or renewal and
to the application of the proceeds therefrom, as though made on and as of
such date, other than any such representations or warranties that, by their
terms, refer to a specific date other than the date of such Borrowing or
issuance or renewal, in which case, as of such specific date; and
(ii) no event has occurred and is continuing, or would result from
such Borrowing or issuance or renewal or from the application of the
proceeds therefrom, that constitutes a Default.
SECTION 3.03. DETERMINATIONS UNDER SECTION 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and, if the Initial Extension of Credit consists of a Borrowing, such Lender
Party shall not have made available to the Administrative Agent such Lender
Party's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF EACH BORROWER. Each
Borrower represents and warrants as follows:
(a) LOAN PARTIES - DUE ORGANIZATION; GOOD STANDING; CORPORATE POWER
AND AUTHORITY; CAPITAL STOCK. Each Loan Party (i) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and in good
standing as a foreign corporation in each other jurisdiction in which it
owns or leases property or in which the conduct of its business requires it
to so qualify or be licensed, except where the failure to be so qualified
or in good standing has not had or would not reasonably be likely to have a
Material Adverse Effect and (iii) has all requisite corporate power and
authority (including, without limitation, all material governmental
licenses, permits and other approvals) to own or lease and operate its
properties and to carry on its business as now conducted and as proposed to
be conducted. All of the outstanding capital stock of the U.S. Borrower
has been validly issued, is fully paid and non-assessable and is owned by
the Investor Group and Xxxxxx Dodge in the amounts specified on
Schedule 4.01(a) free and clear of all Liens.
63
(b) LOAN PARTIES' SUBSIDIARIES - DUE ORGANIZATION; GOOD STANDING;
CORPORATE AUTHORIZATION AND AUTHORITY; CAPITAL STOCK. Set forth on
Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries
of each Loan Party as of the date of such schedule, showing as of the date
hereof (as to each such Subsidiary) the jurisdiction of its incorporation,
the number of shares of each class of capital stock authorized, and the
number outstanding, on the date hereof and the percentage of the
outstanding shares of each such class owned (directly or indirectly) by
such Loan Party and the number of shares covered by all outstanding
options, warrants, rights of conversion or purchase and similar rights at
the date hereof. All of the outstanding capital stock of all of such
Subsidiaries has been validly issued, is fully paid and non-assessable and
is owned by such Loan Party or one or more of its Subsidiaries free and
clear of all Liens, except those created under the Loan Documents. Each
such Subsidiary (i) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation,
(ii) is duly qualified and in good standing as a foreign corporation in
each other jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed, except
where the failure to be so qualified or in good standing has not had or
would not reasonably be likely to have a Material Adverse Effect and
(iii) has all requisite corporate power and authority (including, without
limitation, all governmental licenses, permits and other approvals) to own
or lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted.
(c) DUE AUTHORIZATION OF LOAN DOCUMENTS; NON-CONTRAVENTION, ETC.
The execution, delivery and performance of each Loan Document and each
Related Document have been duly authorized by all necessary corporate
action on the part of each Loan Party that is a party thereto, and do not
(i) contravene such Loan Party's charter or bylaws, (ii) violate any
applicable provision of any material law (including, without limitation,
the Securities Exchange Act of 1934 and the Racketeer Influenced and
Corrupt Organizations Chapter of the Organized Crime Control Act of 1970),
rule, regulation (including, without limitation, Regulation X of the Board
of Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award applicable to such Borrower or
to its Subsidiaries, (iii) result in the breach of, or constitute a default
under, any loan agreement, indenture, mortgage, deed of trust or other
financial instrument, or any material contract or agreement, binding on or
affecting any Loan Party, any of its Subsidiaries or any of their
properties or (iv) except for the Liens created under the Loan Documents,
result in or require the creation or imposition of any Lien upon or with
respect to any of the properties of any Loan Party or any of its
Subsidiaries.
(d) GOVERNMENTAL AND THIRD PARTY APPROVALS. Other than those that
have already been obtained and as set forth in Schedule 4.01(d) and are in
full force and effect, or as would not reasonably be expected to have a
Material Adverse Effect, no authorization or approval (including, in the
case of the Canadian Borrower, exchange control approval) or other action
by, and no notice to or filing with, any governmental authority or
regulatory body or any other third party is required for (i) the due
execution, delivery, recordation, filing or performance by any Loan Party
of any Loan Document or any Related Document to which it is or is to be a
party and (ii) the consummation of the transactions contemplated by the
Loan Documents and the Related Agreements.
64
(e) DUE EXECUTION AND DELIVERY; BINDING OBLIGATION. Each of the
Loan Documents has been duly executed and delivered by each Loan Party
party thereto and is the legal, valid and binding obligation of each Loan
Party party thereto, enforceable against such Loan Party in accordance with
its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditor's rights
generally or by general principles of equity.
(f) HISTORICAL FINANCIAL STATEMENTS. The Consolidated balance
sheet of each of such Borrower and its respective Subsidiaries as at
December 31, 1996, and the related Consolidated statements of income and
cash flow of such Borrower and its Subsidiaries for the fiscal year then
ended, accompanied by an opinion of Deloitte & Touche LLP, independent
public accountants, and the Consolidated balance sheet of such Borrower and
its Subsidiaries as at September 30, 1997, and the related Consolidated
statements of income and cash flow of such Borrower and its Subsidiaries
for the nine months then ended, duly certified by the chief financial
officer of such Borrower, copies of which have been furnished to each
Lender Party, fairly present in all material respects, subject, in the case
of said balance sheets as at September 30, 1997, and said statements of
income and cash flows for the nine months then ended, to year-end audit
adjustments, the Consolidated financial condition of such Borrower and its
respective Subsidiaries as at such dates and the Consolidated results of
the operations of such Borrower and its Subsidiaries for the periods ended
on such dates, all in accordance with generally accepted accounting
principles applied on a consistent basis (unless otherwise expressly noted
therein), and since December 31, 1996, there has been no Material Adverse
Change other than as a result of the Acquisition and the transactions
contemplated hereby.
(g) PRO FORMA FINANCIAL STATEMENTS. The Consolidated pro forma
balance sheet of such Borrower and its Subsidiaries as at September 30,
1997, and the related Consolidated pro forma statement of income and cash
flow of such Borrower and its Subsidiaries for the nine months then ended,
certified by the chief financial officer of such Borrower, copies of which
have been furnished to each Lender Party, fairly present in all material
respects the Consolidated pro forma financial condition of such Borrowers
and its Subsidiaries as at such date and the Consolidated pro forma results
of operations of such Borrower and its Subsidiaries for the period ended
on such date, in each case giving effect to the Acquisition and the other
transactions contemplated hereby.
(h) FORECASTS. The Consolidated forecasted balance sheets, income
statements and cash flows statements of the U.S. Borrower and its
Subsidiaries delivered to the Lender Parties pursuant to
Section 3.01(k)(ix) or 5.03 were prepared in good faith on the basis of the
estimates and assumptions stated therein, which estimates and assumptions
were believed to be reasonable and fair in the light of conditions existing
at the time made, it being understood by the Lender Parties that such
projections as to future events are not to be viewed as facts and that
actual results during the period or periods covered by any such projections
may differ from the projected results.
(i) OTHER INFORMATION. Neither the Information Memorandum nor any
other information, exhibit or report furnished by any Loan Party to the
Administrative Agent or any
65
Lender Party in writing in connection with the negotiation of the Loan
Documents or pursuant to the terms of the Loan Documents contained any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements made herein and therein, taken as a whole,
not misleading at such time in light of the circumstances in which the same
were made, it being understood that for purposes of this Section 4.01(i),
such factual information does not include projections and pro forma
financial information.
(j) LITIGATION, ETC. There is no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of its
Subsidiaries, including any Environmental Action, pending or, to the
knowledge of either Borrower, threatened before any court, governmental
agency or arbitrator that (i) could reasonably be expected to have a
Material Adverse Effect or (ii) purports to affect the legality, validity
or enforceability of the Acquisition, this Agreement, any Note, any other
Loan Document or any Related Document or the consummation of the
transactions contemplated hereby.
(k) COMPLIANCE WITH MARGIN REGULATIONS. (i) Such Borrower is not
engaged in the business of extending credit for the purpose of purchasing
or carrying Margin Stock, and no proceeds of any Advance or drawings under
any Letter of Credit will be used to purchase or carry any Margin Stock or
to extend credit to others for the purpose of purchasing or carrying any
Margin Stock.
(ii) Following application of the proceeds of each Advance or
drawing under each Letter of Credit, not more than 25 percent of the value
of the assets (either of either Borrower only or of either Borrower and its
Subsidiaries on a Consolidated basis) subject to the provisions of
Section 5.02(a) or 5.02(d) or subject to any restriction contained in any
agreement or instrument between either Borrower and any Lender Party or any
Affiliate of any Lender Party relating to Debt and within the scope of
Section 7.01(e) will be Margin Stock.
(l) EMPLOYEE BENEFIT PLANS AND ERISA RELATED MATTERS. (i) Each
Plan is in compliance with ERISA, the Internal Revenue Code and any
applicable Requirement of Law; no Reportable Event has occurred (or is
reasonably likely to occur) with respect to any Plan; no Plan is insolvent
or in reorganization (or is reasonably likely to be insolvent or in
reorganization), and no written notice of any such insolvency or
reorganization has been given to the Borrower, any Subsidiary or any ERISA
Affiliate; no Plan (other than a multiemployer plan ) has an accumulated or
waived funding deficiency (or is reasonably likely to have such a
deficiency); neither any Loan Party nor any ERISA Affiliate has incurred
(or is reasonably expected to incur) any liability to or on account of a
Plan pursuant to Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069,
4201 or 4204 of ERISA or Section 4971 or 4975 of the Internal Revenue Code
or has been notified in writing that it will incur any liability under any
of the foregoing Sections with respect to any Plan; no proceedings have
been instituted (or are reasonably likely to be instituted) to terminate or
to reorganize any Plan or to appoint a trustee to administer any Plan, and
no written notice of any such proceedings has been given to any Loan Party
or any ERISA Affiliate; and no lien imposed under the Internal Revenue Code
or ERISA on the assets of any Loan Party or any ERISA Affiliate exists on
account of any Plan (or is reasonably likely to exist) nor has any Loan
Party or any ERISA Affiliate been notified in
66
writing that such a lien will be imposed on the assets of any Loan Party or
any ERISA Affiliate on account of any Plan, EXCEPT to the extent that a
breach of any of the foregoing representations and warranties in this
Section 4.01(l)(i) would not result, individually or in the aggregate, in
an amount of liability that would be reasonably likely to have a Material
Adverse Effect. No Plan (other than a multiemployer plan) has an Unfunded
Current Liability that would, individually or when taken together with any
other liabilities referenced in this Section 4.01(l)(i), be reasonably
likely to have a Material Adverse Effect. With respect to Plans that are
multiemployer plans (as defined in Section 3(37) of ERISA), the
representations and warranties in this Section 4.01(l)(i), other than any
made with respect to (a) liability under Section 4201 or 4204 of ERISA or
(b) liability for termination or reorganization of such Plans under ERISA,
are made to the best knowledge of the Borrowers.
(ii) With respect to each scheme or arrangement mandated by a
government other than the United States (a "FOREIGN GOVERNMENT SCHEME OR
ARRANGEMENT") and with respect to each employee benefit plan maintained or
contributed to by any Subsidiary of any Loan Party that is not subject to
United States law (a "FOREIGN PLAN"), except as in the aggregate could not
reasonably be expected to have Material Adverse Effect:
(A) Any employer and employee contributions required by law
or by the terms of any Foreign Government Scheme or Arrangement or any
Foreign Plan have been made, or if applicable, accrued, in accordance
with normal accounting practices.
(B) The fair market value of the assets of each funded
Foreign Plan, the liability of each insurer for any Foreign Plan
funded through insurance or the book reserve established for any
Foreign Plan, together with any accrued contributions, is sufficient
to procure or provide for the accrued benefit obligations, as of the
date hereof, with respect to all current and former participants in
such Foreign Plan according to the actuarial assumptions and
valuations most recently used to determine employer contributions to
such Foreign Plan.
(C) Each Foreign Plan required to be registered has been
registered and has been maintained in good standing with applicable
regulatory authorities.
(m) ENVIRONMENTAL MATTERS. (i) Other than instances of
noncompliance that could not reasonably be expected to have a Material
Adverse Effect: (A) the U.S. Borrower and its Subsidiaries are in
compliance with all Environmental Laws in all jurisdictions in which such
Borrower and each of its Subsidiaries are currently doing business
(including, without limitation having obtained all material Environmental
Permits required under Environmental Laws) and (B) the U.S. Borrower will
comply and cause each of their Subsidiaries to comply with all such
Environmental Laws (including, without limitation, all Environmental
Permits required under Environmental Laws).
(ii) Neither Borrower nor any of its Subsidiaries has treated,
stored, transported or disposed of Hazardous Materials at or from any
currently or formerly owned real estate or
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facility relating to its business in a manner that could reasonably be
expected to have a Material Adverse Effect.
(n) SECURITIES LAWS. Neither any Loan Party nor any of its
Subsidiaries is an "investment company," or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended.
(o) SOLVENCY. Each Loan Party is, individually and together with
its Subsidiaries, Solvent.
(p) EXISTING DEBT. Set forth on Schedule 4.01(p) hereto is a
complete and accurate list of all Existing Debt (other than Surviving
Debt), showing as of the date of such Schedule the principal amount
outstanding thereunder, and such principal amount has not been increased
from that amount shown on such Schedule.
(q) SURVIVING DEBT. Set forth on Schedule 3.01(d) hereto is a
complete and accurate list of all Surviving Debt, showing as of the date of
such Schedule the principal amount outstanding thereunder, the maturity
date thereof and the amortization schedule therefor, and such principal
amount has not been increased from that amount shown on such Schedule.
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, each Borrower will:
(a) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA, Environmental Laws and the Racketeer
Influenced and Corrupt Organizations Chapter of the Organized Crime Control
Act of 1970, except such as may be contested in good faith or as to which a
bona fide dispute may exist and except to the extent that noncompliance
therewith could not reasonably be expected to have a Material Adverse
Effect.
(b) PAYMENT OF TAXES, ETC. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all material taxes, assessments and governmental charges or
levies imposed upon it or upon its property prior to the date on which
material penalties attach thereto, and (ii) all lawful material claims
that, if unpaid, might by law become a material Lien upon the property of
the U.S. Borrower or its Restricted Subsidiaries not otherwise expressly
permitted under this Agreement; PROVIDED,
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HOWEVER, that neither Borrower nor any of its Subsidiaries shall be
required to pay or discharge any such tax, assessment, charge or claim that
is being contested in good faith and by proper proceedings and as to which
appropriate reserves (in the good faith judgment of its management) are
being maintained in accordance with GAAP.
(c) MAINTENANCE OF INSURANCE. Maintain, and cause each of its
Restricted Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations (at the time the relevant
coverage is placed or renewed) in such amounts and covering such risks as
is usually carried by companies engaged in the same or similar businesses
and owning similar properties in the same general areas in which such
Borrower or such Restricted Subsidiary operates.
(d) PRESERVATION OF CORPORATE EXISTENCE, ETC. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain, its
existence, legal structure, legal name, rights (charter and statutory),
permits, licenses, approvals, privileges and franchises, except to the
extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; PROVIDED, HOWEVER, that each Borrower and its
Restricted Subsidiaries may consummate any merger or consolidation
permitted under Section 5.02(c) and PROVIDED FURTHER that neither Borrower
nor any of its Restricted Subsidiaries shall be required to preserve any
right, permit, license, approval, privilege or franchise if the Board of
Directors of such Borrower or such Restricted Subsidiary shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of such Borrower or such Restricted Subsidiary, as the case may
be, and that the loss thereof is not disadvantageous in any material
respect to such Borrower, such Restricted Subsidiary or the Lender Parties.
(e) CONDUCT OF BUSINESS. From and after the Closing Date, cause,
and cause its Subsidiaries (taken as a whole) to, engage primarily in (i)
the vehicle component business and any activity or business incidental,
directly related or similar thereto, or any other lines of business carried
on by such Borrower and its Subsidiaries on the Closing Date or utilizing
such Borrower's or Subsidiaries' manufacturing capabilities on the Closing
Date and (ii) other businesses or activities that constitute a reasonable
extension, development or expansion thereof or that are ancillary or
reasonably related thereto.
(f) VISITATION RIGHTS. At any reasonable time and from time to
time, upon reasonable notice and during normal business hours, permit any
authorized representatives designated by the Administrative Agent or the
Majority Lenders to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, such Borrower
and any of its Restricted Subsidiaries, and to discuss the affairs,
finances and accounts of such Borrower and any of its Restricted
Subsidiaries with any of their officers or directors and with their
independent certified public accountants, PROVIDED, that such Borrower may,
if it so chooses, be present at or participate in any such discussion.
(g) KEEPING OF BOOKS. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial
69
transactions and the assets and business of such Borrower and each such
Subsidiary in accordance with generally accepted accounting principles in
effect from time to time.
(h) MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve, and
cause each of its Restricted Subsidiaries to maintain and preserve, all of
its properties that are used or useful in the conduct of its business
(including intellectual property) in good working order and condition,
ordinary wear and tear excepted, in each case consistent with past
practice, and will from time to time make or cause to be made all
appropriate repairs, renewals and replacements thereof, except where the
failure to do so would not reasonably be likely to have a Material Adverse
Effect.
(i) TRANSACTIONS WITH AFFILIATES. Conduct, and cause each of its
Restricted Subsidiaries to conduct, all transactions otherwise permitted
under the Loan Documents with any of their Affiliates on terms that are
fair and reasonable and no less favorable to such Borrower or such
Restricted Subsidiary than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate, other than (i) transactions
between or among the Loan Parties and any Restricted Subsidiaries of the
U.S. Borrower, (ii) payment of customary annual fees to KKR or its
Affiliates for management consulting and financial services rendered to
such Borrower and its Restricted Subsidiaries and investment banking fees
paid to KKR or its Affiliates for services rendered to such Borrower and
its Restricted Subsidiaries in connection with divestitures, acquisitions,
financings and other transactions to the extent permitted under this
Agreement, (iii) reasonable and customary fees paid to members of the U.S.
Borrower's board of directors, (iv) transactions permitted by
Section 5.02(f), and (v) transactions otherwise expressly permitted
hereunder.
(j) APPLICATION OF TERM A ADVANCE. On the day on which the Term A
Loan is borrowed, cause the proceeds received by the Canadian Borrower from
the Term A Advance to be distributed by dividend or intercompany loan to
the U.S. Borrower, net of the amount of any Canadian withholding taxes or
to repay outstanding intercompany loans owed to the U.S. Borrower.
(k) COVENANT TO GUARANTY OBLIGATIONS AND TO GIVE SECURITY. When
any new Restricted Subsidiary of the U.S. Borrower is formed, acquired or
designated by the U.S. Borrower or any of its Restricted Subsidiaries,
then, in each case at the expense of the U.S. Borrower,
(i) within 20 days after such formation, acquisition or
designation, in the case of a new Restricted Subsidiary that is a
Domestic Subsidiary of the U.S. Borrower or any of its Restricted
Subsidiaries, cause each such Restricted Subsidiary to duly execute
and deliver to the Administrative Agent a Subsidiaries Guaranty
Supplement under which such Restricted Subsidiary guarantees payment
of all the Obligations of the Borrowers under the Loan Documents;
PROVIDED, that no Restricted Subsidiary which is not wholly-owned
(directly or indirectly) by the U.S. Borrower and the organizational
documents or agreements with other shareholders of which prohibit the
issuance of any such guaranty shall be required to issue such guaranty
if, after using its
70
reasonable efforts, the U.S. Borrower has failed to obtain any
necessary consents or approvals for the issuance of such guaranty,
(ii) within 20 days after such formation, acquisition or
designation in the case of a wholly-owned Restricted Subsidiary which
is a first-tier Subsidiary of the U.S. Borrower, cause the U.S.
Borrower, to pledge the stock of each such Restricted Subsidiary and
to duly execute and deliver a Pledge Agreement Supplement covering
such stock and/or a new pledge agreement in substantially the form of
the Pledge Agreement or otherwise in form and substance satisfactory
to the Administrative Agent, pledging 100% of the issued and
outstanding stock owned by the U.S. Borrower in such Restricted
Subsidiary, together with delivery to the Administrative Agent of
certificates representing such pledged stock accompanied by undated
stock powers executed in blank; PROVIDED, in the case of a first-tier
Restricted Subsidiary which is a Foreign Subsidiary (other than
Canadian Borrower) the U.S. Borrower shall not be required to pledge
more than 66% of the issued and outstanding stock of such Restricted
Subsidiary, and PROVIDED FURTHER, that the stock of any Restricted
Subsidiary which is not wholly-owned (directly or indirectly) will be
owned by a wholly owned first-tier Restricted Subsidiary of the U.S.
Borrower whose stock or other equity interests have been pledged in
accordance with the Loan Documents,
(iii) within 20 days after such request, take whatever action
(including, without limitation, the filing of Uniform Commercial Code
financing statements, the giving of notices and the endorsement of
notices on title documents) as may be reasonably necessary or
advisable in the opinion of the Administrative Agent to vest in the
Administrative Agent (or in any representative of the Administrative
Agent designated by it) valid and subsisting Liens on the properties
purported to be subject to the Pledge Agreement Supplement or pledge
agreement delivered pursuant to this Section 5.01(k), enforceable
against all third parties in accordance with their terms, and
(iv) within 60 days after such request, deliver to the
Administrative Agent a signed copy of a favorable opinion, addressed
to the Administrative Agent, of counsel for the Borrowers reasonably
acceptable to the Administrative Agent as to the matters contained in
clauses (i), (ii) and (iii) above, as to such guarantees and security
agreements being legal, valid and binding obligations of each of the
Borrowers and their respective Restricted Subsidiaries enforceable in
accordance with their terms and as to such other matters as the
Administrative Agent may reasonably request.
(l) INVESTMENTS IN CANADIAN BORROWER. In the case of the U.S.
Borrower, make loans or advances, or make equity contributions, to the
Canadian Borrower from time to time in amounts sufficient to enable the
Canadian Borrower to perform its Obligations pursuant to Sections 2.02(d),
2.04, 2.06, 2.07, 2.12, 9.04(b) and 9.12(b).
(m) ESTABLISHMENT OF CASH MANAGEMENT SYSTEMS. Within 180 days of
the Closing Date, establish and maintain lockbox accounts and other cash
management systems reasonably acceptable to the Administrative Agent.
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SECTION 5.02. NEGATIVE COVENANTS. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, neither Borrower will, at any time:
(a) LIENS, ETC. Create, incur, assume or suffer to exist, or
permit any of its Restricted Subsidiaries to create, incur, assume or
suffer to exist, any Lien on or with respect to any of its properties of
any character (including, without limitation, accounts) whether now owned
or hereafter acquired, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described on
Schedule 5.02(a) hereto;
(iv) (A) purchase money Liens upon or in real property or
equipment acquired or held by the Borrowers or any of their Restricted
Subsidiaries in the ordinary course of business to secure the purchase
price of such property or equipment or to secure Debt incurred solely
for the purpose of financing the acquisition, construction or
improvement of any such property or equipment to be subject to such
Liens, or Liens existing on any such property or equipment at the time
of acquisition (other than any such Liens created in contemplation of
such acquisition that do not secure the purchase price), or
extensions, renewals or replacements of any of the foregoing for the
same or a lesser amount and (B) Liens to secure Debt incurred within
270 days of the acquisition, construction or improvement of fixed or
capital assets to finance the acquisition, construction or improvement
of such fixed or capital assets or otherwise incurred during such 270
day period in respect of Capital Expenditures permitted pursuant to
Section 5.02(j); PROVIDED, HOWEVER, that no such Lien shall extend to
or cover any property other than the property or equipment being
acquired, constructed or improved, and no such extension, renewal or
replacement shall extend to or cover any property not theretofore
subject to the Lien being extended, renewed or replaced; and PROVIDED
FURTHER, HOWEVER, that the aggregate principal amount of the Debt
secured by Liens permitted by this clause (iv) shall not exceed the
aggregate amount permitted under Section 5.02(b)(iii)(B) at any time
outstanding and that any such Debt shall not otherwise be prohibited
by the terms of the Loan Documents;
(v) Liens arising in connection with Capitalized Leases
permitted under Section 5.02(b)(iii)(B); PROVIDED that no such Lien
shall extend to or cover any Collateral or assets other than the
assets subject to such Capitalized Leases;
(vi) with respect to any Debt incurred pursuant to Section
5.02(b)(iii)(D) or (F) Liens (A) placed upon the assets of any
Restricted Subsidiary to secure Debt of
72
such Restricted Subsidiary incurred in connection with any acquisition
by such Restricted Subsidiary or (B) placed upon the assets or stock
(unless required to be pledged to the Administrative Agent pursuant to
Section 5.01(k)) of any acquired Person to secure a guarantee by such
Person of any Debt of a Borrower or any Restricted Subsidiary;
(vii) the replacement, extension or renewal of any Lien
permitted hereunder upon or in the same property theretofore subject
thereto or the replacement, extension or renewal (without increase in
the amount or change in any direct or contingent obligor) of the Debt
secured thereby;
(viii) Liens on the stock and/or assets of the Mexico
Subsidiary to secure Debt permitted under Section 5.02(b)(ii)(B); and
(ix) other Liens securing Obligations of the U.S. Borrower
and its Restricted Subsidiaries in an aggregate principal amount not
to exceed $10,000,000 at any time outstanding.
(b) DEBT. Create, incur, assume or suffer to exist, or permit any
of its Restricted Subsidiaries to create, incur, assume or suffer to exist,
any Debt other than:
(i) in the case of the Borrowers,
(A) Subordinated Debt evidenced by the Subordinated Notes,
and any Debt extending the maturity of, or refinancing, in
whole or in part such Subordinated Notes, PROVIDED that the
terms of any such extension or refinancing, and of any
agreement entered into and of any instrument issued in
connection therewith, are not prohibited by the Loan Documents,
PROVIDED, FURTHER, that the principal amount of such Debt shall
not be increased above the principal amount thereof outstanding
immediately prior to such extension or refinancing, PROVIDED,
FURTHER, that the terms relating to principal amount,
amortization, maturity, interest rate, subordination, and other
material terms of any such extension or refinancing and of any
agreement entered into and of any instrument issued in
connection therewith, are no less favorable in any material
respect to the Loan Parties or the Lender Parties than the
terms of the Subordinated Notes.
(B) Debt in respect of Hedge Agreements incurred in the
ordinary course of business and consistent with prudent
business practice, and
(C) Debt consisting of any undertaking by the U.S. Borrower
to guaranty the obligations of the Mexico Subsidiary, in an
aggregate principal amount not to exceed $35,000,000;
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(ii) in the case of any of its Restricted Subsidiaries (A)
Debt owed to the Borrowers or to a Restricted Subsidiary of the
Borrowers, and (B) in the case of the Mexico Subsidiary only, Debt in
an aggregate amount not to exceed $35,000,000 at any time outstanding;
and
(iii) in the case of the Borrowers and any of their
Restricted Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section 5.02(a)(iv)
and Capitalized Leases not to exceed an aggregate amount equal
to $50,000,000 at any time outstanding,
(C) the Surviving Debt, and any Debt extending the maturity
of, or refunding or refinancing, in whole or in part, any
Surviving Debt, provided that the terms of any such extending,
refunding or refinancing Debt, and of any agreement entered
into and of any instrument issued in connection therewith, are
not prohibited by the Loan Documents, PROVIDED that the
principal amount of such Surviving Debt shall not be increased
above the principal amount thereof outstanding immediately
prior to such extension, refunding or refinancing, and the
direct and contingent obligors therefor shall not be changed,
as a result of or in connection with such extension, refunding
or refinancing,
(D) Debt of any Person existing at the time such Person is
merged into or consolidated with, or acquired by, either
Borrower or any Restricted Subsidiary or becomes a Restricted
Subsidiary of either Borrower in accordance with the provisions
of Section 5.02(e)(xi) or (xii); PROVIDED that such Debt was
not incurred in contemplation of such merger, consolidation or
investment; and PROVIDED FURTHER that neither Borrower nor any
Restricted Subsidiary which acquired such Person is liable for
such Debt; and PROVIDED FURTHER, that the aggregate amount of
all Debt incurred pursuant hereunder shall, when taken together
with any Debt incurred pursuant to clause (F) of this Section
5.02(b)(iii), in no event exceed $100,000,000 in the aggregate
at any time outstanding,
(E) indorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of
business,
(F) Debt incurred in connection with an Investment made
pursuant to Section 5.02(e)(xi) or (xii); PROVIDED, that the
aggregate amount of all Debt incurred pursuant hereunder shall,
when taken together with any Debt incurred pursuant to clause
(D) of this Section 5.02(b)(iii), in no event exceed
$100,000,000 in the aggregate at any time outstanding,
74
(G) Debt consisting of guaranty Obligations in the ordinary
course of business of the obligations of suppliers, customers,
franchisees and licensees of the U.S. Borrower and its
Restricted Subsidiaries,
(H) Debt in respect of any bankers' acceptance, letter of
credit, warehouse receipt or similar facilities entered into in
the ordinary course of business, and
(I) other Debt outstanding in an aggregate amount not to
exceed $50,000,000 at any time outstanding.
(c) MERGERS, ETC. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Restricted
Subsidiaries to do so, except that (i) any Restricted Subsidiary of either
Borrower may merge into or consolidate with any other Restricted Subsidiary
of such Borrower, (ii) either Borrower's Restricted Subsidiaries may merge
into such Borrower and (iii) either Borrower or any of its Restricted
Subsidiaries may merge into or consolidate with any other Person or permit
any other Person to merge into or consolidate with it; PROVIDED HOWEVER,
that in each case referred to in clause (i) through (iii) above,
immediately after giving effect thereto, no event shall occur and be
continuing or result therefrom that constitutes a Default and, in the case
of any merger or consolidation to which any Loan Party is a party, the
corporation formed by such consolidation or into which such Loan Party
shall be merged shall, at the effective time of such merger or
consolidation, (A) assume such Loan Party's Obligations under the Loan
Documents and performance of such Loan Party's covenants under the Loan
Documents to which it is a party in a writing satisfactory in form and
substance to the Majority Lenders and (B), if a party to the Pledge
Agreement, take or have taken all action required by Section 9 of the
Pledge Agreement, and take or have taken such other action as may be
necessary or desirable, or as the Administrative Agent may request, in
order to preserve the Liens, and continue the perfection thereof with the
same priority, as granted and provided for or purported to be granted and
provided for by the Pledge Agreement.
(d) SALES, ETC. OF ASSETS. Sell, lease, transfer or otherwise
dispose of, or permit any of its Restricted Subsidiaries to sell, lease,
transfer or otherwise dispose of, any assets, or grant any option or other
right to purchase, lease or otherwise acquire any assets, except:
(i) sales, transfers or other dispositions of used or
surplus equipment, vehicles, inventory or other assets in the ordinary
course of its business;
(ii) sales of assets for fair value in an aggregate amount
not to exceed $100,000,000 during the term of this Agreement; PROVIDED
that (A) any non-cash consideration in respect of such sale in the
form of Debt of any Person in an amount in excess of $5,000,000 shall
be evidenced by a promissory note which shall be pledged to the
Administrative Agent for the benefit of the Secured Parties pursuant
to the Pledge Agreement as security for the Obligations of such
pledgor hereunder, and the Net Cash Proceeds of any such sales shall
be applied pursuant to, and in the amount
75
and the order of priority set forth in, Section 2.06(b)(ii), (B)
immediately before and after giving effect to such sale, no Default
shall have occurred and be continuing or would result therefrom and
(C) with respect to any such sale (or series of related sales) in an
aggregate amount in excess of $10,000,000, immediately after giving
effect to such sale, the U.S. Borrower and its Restricted Subsidiaries
shall be in pro forma compliance with the covenants contained in
Section 5.04, calculated based on the relevant financial statements
delivered pursuant to Section 5.03(b) or (c), as though such sale had
occurred at the beginning of the Measurement Period covered thereby,
as evidenced by a certificate of the chief financial officer of the
U.S. Borrower furnished to the Lender Parties demonstrating such
compliance; and
(iii) sales or contributions of equipment or other personal
property to Restricted Subsidiaries or other joint ventures; PROVIDED,
that the aggregate fair market value of the assets so sold or
contributed (determined, in each case, at the time of such sale or
contribution) does not exceed $15,000,000 during the term of this
Agreement.
(e) INVESTMENTS IN OTHER PERSONS. Make or hold, or permit any of
its Restricted Subsidiaries to make or hold, any Investment in any Person
other than:
(i) Investments existing on December 31, 1997 and described
on Schedule 5.02(e), and any extensions, renewals or reinvestments
thereof, so long as the aggregate amount of all Investments pursuant
to this clause (measured by the amount actually invested) is not
increased at any time above the amount of such Investments existing on
such date;
(ii) loans and advances to employees in the ordinary course
of the business of the Borrowers and their Restricted Subsidiaries as
presently conducted in an aggregate amount not to exceed $5,000,000 at
any time outstanding and other loans and advances to employees for the
purchase of capital stock of the U.S. Borrower;
(iii) Investments by the Borrowers and their Restricted
Subsidiaries in Cash Equivalents;
(iv) Investments by the Borrowers in Hedge Agreements
permitted under Section 5.02(b)(i)(B);
(v) Investments consisting of intercompany Debt permitted
under Section 5.02(b)(ii);
(vi) Investments received in connection with the bankruptcy
or reorganization of suppliers or customers and in settlement of
delinquent obligations of, and other disputes with, customers arising
in the ordinary course of business;
(vii) Investments to the extent that payment for such
Investments is made solely with capital stock of the U.S. Borrower;
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(viii) Investments constituting non-cash proceeds of sales,
transfers and other dispositions of assets to the extent permitted by
Section 5.02(d)(ii);
(ix) Investments made to pay for the repurchase, retirement
or other acquisition of the capital stock of the U.S. Borrower in an
aggregate amount at the time of such Investment not in excess of the
lesser of (i) the Available Amount at such time and (ii) the aggregate
amount of such Investments then permitted to be made under the
Subordinated Debt Documents;
(x) In the case of the U.S. Borrower, Investments required
pursuant to Section 5.01(l);
(xi) (A) Investments in Restricted Subsidiaries and (B)
Investments in other Persons in an aggregate amount not to exceed
$25,000,000; PROVIDED that with respect to all such Investments (A)
immediately before and after giving effect thereto, no Default shall
have occurred and be continuing or would result therefrom; (B) any
business acquired or invested in pursuant to this clause shall comply
with the requirements of Section 5.01(e); (C) immediately after giving
effect to the acquisition of a company or business pursuant to this
clause, the U.S. Borrower and its Restricted Subsidiaries shall be in
pro forma compliance with the covenants contained in Section 5.04,
calculated based on the relevant financial statements delivered
pursuant to Section 5.03(b) or (c), as though such acquisition had
occurred at the beginning of the Measurement Period covered thereby,
as evidenced by a certificate of the chief financial officer of the
U.S. Borrower furnished to the Lender Parties demonstrating such
compliance; and (D) the U.S. Borrower shall have a Leverage Ratio,
calculated based on the relevant financial statements delivered
pursuant to Section 5.03(b) or (c), as though such acquisition had
occurred at the beginning of the Measurement Period covered thereby,
as evidenced by a certificate of the chief financial officer of the
U.S. Borrower furnished to the Lender Parties demonstrating such
compliance, for any such Investment made prior to December 31, 2000,
of less than or equal to 6.50:1.00 and for any such Investment made
thereafter, of less than or equal to 6.00:1.00; and
(xii) other Investments in other Persons in an aggregate
amount not to exceed $25,000,000 plus, at any time, the Available
Amount at such time; PROVIDED that with respect to all such
Investments (A) immediately before and after giving effect thereto, no
Default shall have occurred and be continuing or would result
therefrom; (B) any business acquired or invested in pursuant to this
clause shall comply with the requirements of Section 5.01(e); (C)
immediately after giving effect to the acquisition of a company or
business pursuant to this clause, the U.S. Borrower and its Restricted
Subsidiaries shall be in pro forma compliance with the covenants
contained in Section 5.04, calculated based on the relevant financial
statements delivered pursuant to Section 5.03(b) or (c), as though
such acquisition had occurred at the beginning of the Measurement
Period covered thereby, as evidenced by a certificate of the chief
financial officer of the U.S. Borrower furnished to the Lender Parties
demonstrating such compliance.
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(f) DIVIDENDS, ETC. In the case only of the U.S. Borrower, declare
or pay any dividends, purchase, redeem, retire, defease or otherwise
acquire for value any of its capital stock or any warrants, rights or
options to acquire such capital stock, now or hereafter outstanding, return
any capital to its stockholders as such, make any distribution of assets,
capital stock, warrants, rights, options, obligations or securities to its
stockholders as such, or permit any of its Subsidiaries to purchase,
redeem, retire, defease or otherwise acquire for value any capital stock of
the U.S. Borrower or any warrants, rights or options to acquire such
capital stock or to issue or sell any such capital stock or any warrants,
rights or options to acquire such capital stock, except that, so long as no
Default shall have occurred and be continuing at the time of any action
described below or would result therefrom, (i) the U.S. Borrower may
declare and pay dividends and distributions payable only in common stock of
the U.S. Borrower, (ii) the U.S. Borrower may redeem in whole or in part
any capital stock of the U.S. Borrower for another class of capital stock
or rights to acquire capital stock of the U.S. Borrower or with proceeds
from substantially concurrent equity contributions or issuances of new
shares of capital stock, PROVIDED that such other class of capital stock
contains terms and provisions at least as advantageous to the Lender
Parties as those contained in the capital stock redeemed thereby, (iii) the
U.S. Borrower may repurchase shares of its capital stock (and/or options or
warrants in respect thereof) held by its officers, directors and employees
so long as such repurchase is pursuant to, and in accordance with the terms
of, management and/or employee stock plans, stock subscription agreements
on shareholder agreements, (iv) either Borrower may make Investments
permitted by Section 5.02(e)(vii), and (v) the U.S. Borrower may, so long
as after giving effect to the payment of any dividends pursuant to this
subclause (v) the Leverage Ratio is less than or equal to 4.00:1.00, pay
dividends in any Fiscal Year in an amount not to exceed 50% of the
Cumulative Available Consolidated Net Income.
(g) PREPAYMENTS, ETC. OF DEBT. Prepay, redeem, purchase, defease
or otherwise satisfy prior to the scheduled maturity thereof in any manner,
or make any payment in violation of any subordination terms of, any
Subordinated Debt; PROVIDED, HOWEVER, that so long as no Default or Event
of Default has occurred and is continuing, the U.S. Borrower may optionally
prepay, repurchase or redeem Subordinated Notes (i) for an aggregate price
not in excess of the Available Amount at the time of such prepayment,
repurchase or redemption or (ii) with the proceeds of subordinated Debt
that (A) is permitted by Section 5.02(b) and (B) has terms material to the
interests of the Lender Parties not materially less advantageous to the
Lender Parties.
(h) AMENDMENT, ETC. OF SUBORDINATED DEBT DOCUMENTS. Amend or
otherwise change any of the terms of any Subordinated Debt Document in a
manner that would be adverse to the Lender Parties in any material respect.
(i) PARTNERSHIPS, ETC. Become a general partner in any general or
limited partnership or joint venture which is not a limited liability
entity, or permit any of its Restricted Subsidiaries to do so, other than
any Restricted Subsidiary the sole assets of which consist of its interest
in such partnership or joint venture.
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(j) CAPITAL EXPENDITURES. (i) Make, or permit any of its
Restricted Subsidiaries to make, any Capital Expenditures that would cause
the aggregate amount of all Capital Expenditures of the U.S. Borrower and
its Restricted Subsidiaries in any Fiscal Year (exclusive of those
described in clauses (ii), (iii) and (iv) below) to exceed an amount equal
to (A) for the Fiscal Year 1998, $35,000,000, (B) for the Fiscal Years 1999
and 2000, $20,000,000 and (C) for each year thereafter, the greater of
$15,000,000 and 5% of Consolidated Revenues, in each case as determined at
the end of the prior Fiscal Year PLUS, in each case, the Available Amount,
PROVIDED that the unused portion of Capital Expenditures permitted in any
Fiscal Year and not used in such period may be carried over and added to
the amount otherwise permitted in the immediately three succeeding Fiscal
Years, it being understood that for purposes of the foregoing, the
Borrowers and their Restricted Subsidiaries shall be deemed to have used
the amount originally available during each such succeeding Fiscal Year
prior to any such carry-over amount, and PROVIDED FURTHER, that the
aggregate amount so carried over at any time may not exceed $20,000,000;
(ii) Make, or permit any of its Restricted Subsidiaries to make, any
Capital Expenditures in the Light Wheels Facility, except that such Capital
Expenditures may be made in an amount not to exceed $30,000,000 in the
aggregate through December 31, 2002;
(iii) Make or permit any of its Restricted Subsidiaries to make, any
Capital Expenditures in the Mexico Facility, except that the Mexico
Subsidiary may make such Capital Expenditures in an amount not to exceed
$33,000,000 in the aggregate through December 31, 2002; and
(iv) Make or permit any of its Restricted Subsidiaries to make, any
other Capital Expenditures, except that such Capital Expenditures may be
made in an aggregate amount not to exceed the lesser of $10,000,000 and the
Purchase Price Adjustment Amount.
SECTION 5.03. REPORTING REQUIREMENTS. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, each Borrower will furnish to the Lender
Parties:
(a) DEFAULT OR LITIGATION NOTICE. Promptly upon any Responsible
Officer of either Borrower or any of their respective Subsidiaries
obtaining knowledge thereof, notice of (i) the occurrence of any event that
constitutes a Default or an Event of Default, which notice shall specify
the nature thereof, the period of existence thereof and what action the
appropriate Borrower proposes to take with respect thereto, and (ii) any
litigation or governmental proceeding pending against either Borrower or
any of their respective Subsidiaries that could reasonably be expected to
result in a Material Adverse Effect.
(b) QUARTERLY FINANCIALS. As soon as available and in any event
within 60 days after the end of each of the first three Fiscal Quarters of
each Fiscal Year, a Consolidated balance sheet of (i) the U.S. Borrower and
its Subsidiaries and (ii) if the U.S. Borrower has any Unrestricted
Subsidiaries, the U.S. Borrower and its Restricted Subsidiaries, in each
case as of the end of such Fiscal Quarter and the related Consolidated
statements of income and cash
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flow for the period commencing at the end of the previous Fiscal Quarter
and ending with the end of such Fiscal Quarter and for the period
commencing at the end of the previous Fiscal Year and ending with the end
of such Fiscal Quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding period of the preceding Fiscal
Year, all in reasonable detail and duly certified (subject to year-end
audit adjustments) by the chief financial officer of such Borrower as
having been prepared in accordance with GAAP, together with (i) a
certificate of said officer stating that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a statement as
to the nature thereof and the action that such Borrower has taken and
proposes to take with respect thereto, (ii) a schedule in form satisfactory
to the Administrative Agent of the computations used by the U.S. Borrower
in determining compliance with the covenants contained in Sections 5.02(j)
and 5.04, PROVIDED that in the event of any change in GAAP used in the
preparation of such financial statements, the U.S. Borrower shall also
provide, if necessary for the determination of compliance with Sections
5.02(j) and 5.04, a statement of reconciliation conforming such financial
statements to GAAP and (iii) if there is any change in the Pro Forma EBITDA
Adjustment from the amount set forth in any certificate previously
delivered to the Administrative Agent pursuant to Section 5.03(g), setting
forth the recalculated amount of such Pro Forma EBITDA Adjustment and, in
reasonable detail satisfactory to the Administrative Agent, the
calculations and basis thereof.
(c) ANNUAL FINANCIALS. As soon as available and in any event
within 120 days after the end of each Fiscal Year, a Consolidated balance
sheet of (i) such Borrower and its Subsidiaries and (ii) if the U.S.
Borrower has any Unrestricted Subsidiaries, such Borrower and its
Restricted Subsidiaries, in each case as of the end of such Fiscal Year and
the related Consolidated statements of income and cash flow for such Fiscal
Year setting forth in each case in comparative form the corresponding
figures for the previous Fiscal Year, accompanied by an opinion which shall
be unqualified as to the scope of the audit and as to the going concern
status of such Borrower and its Subsidiaries or such Borrower and its
Restricted Subsidiaries, as the case may be, taken as a whole, of Deloitte
& Touche LLP or other independent public accountants of recognized standing
acceptable to the Majority Lenders, together with (A) a certificate of such
accounting firm to the Lender Parties stating that in the course of the
regular audit of the business of such Borrower and its Subsidiaries or such
Borrower and its Restricted Subsidiaries, as the case may be, which audit
was conducted by such accounting firm in accordance with generally accepted
auditing standards, such accounting firm has obtained no knowledge that a
Default has occurred and is continuing, or if, in the opinion of such
accounting firm, a Default or Event of Default has occurred and is
continuing, a statement as to the nature thereof, (B) a schedule in form
satisfactory to the Administrative Agent of the computations used by the
U.S. Borrower in determining, as of the end of such Fiscal Year, compliance
with the covenants contained in Sections 5.02(j) and 5.04, PROVIDED that in
the event of any change in GAAP used in the preparation of such financial
statements, the U.S. Borrower shall also provide, if necessary for the
determination of compliance with Sections 5.02(j) and 5.04, a statement of
reconciliation conforming such financial statements to GAAP and (C) a
certificate of the chief financial officer of such Borrower stating that no
Default has occurred and is continuing or, if a default has occurred and is
continuing, a statement as to the nature thereof and the action that such
Borrower has taken and proposes to take with respect thereto.
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(d) ANNUAL FORECASTS. As soon as available and in any event no
later than 60 days after the beginning of each Fiscal Year, forecasts
prepared by management of such Borrower, in reasonable detail and in form
customarily prepared by management of such Borrower for its internal use
and setting forth an explanation for the principal assumptions on which
such forecasts were based, of balance sheets, income statements and cash
flow statements on a monthly basis for the Fiscal Year following such
Fiscal Year then ended and on an annual basis for each of the four Fiscal
Years thereafter.
(e) ERISA. Promptly after any Loan Party or any ERISA Affiliate
obtains knowledge, or has reason to know, of the occurrence of any of the
following events that individually or in the aggregate (including in the
aggregate such events previously disclosed or exempt from disclosure
hereunder, to the extent the liability therefor remains outstanding), would
be reasonably likely to have a Material Adverse Effect, a certificate of a
Responsible Officer of the U.S. Borrower setting forth details as to such
occurrence and the action, if any, that any Loan Party or any ERISA
Affiliate is required or proposes to take, together with any notices
(required, proposed or otherwise) given to or filed with or by or received
by any Loan Party, any ERISA Affiliate, the PBGC, a Plan participant (other
than notices relating to an individual participant's benefits) or the Plan
administrator with respect thereto: that a Reportable Event has occurred;
that an accumulated funding deficiency has been incurred or an application
has been or is to be made to the Secretary of the Treasury for a waiver or
modification of the minimum funding standard (including any required
installment payments) or an extension of any amortization period under
Section 412 of the Internal Revenue Code with respect to a Plan; that a
Plan having an Unfunded Current Liability has been or is to be terminated,
reorganized, partitioned or declared insolvent under Title IV of ERISA
(including the giving of written notice thereof); that a Plan has an
Unfunded Current Liability that has or is reasonably expected to result in
a lien under ERISA or the Internal Revenue Code; that proceedings are
reasonably expected to be or have been instituted to terminate a Plan
having an Unfunded Current Liability (including the giving of written
notice thereof); that a proceeding has been instituted against any Loan
Party or any ERISA Affiliate pursuant to Section 515 of ERISA to collect a
delinquent contribution to a Plan; that the PBGC has notified any Loan
Party or any ERISA Affiliate of its intention to appoint a trustee to
administer any Plan; that any Loan Party or any ERISA Affiliate has failed
to make a required installment or other payment pursuant to Section 412 of
the Internal Revenue Code with respect to a Plan; or that any Loan Party or
any ERISA Affiliate has incurred or is reasonably expected to incur (or has
been notified in writing that it will incur) any liability (including any
contingent or secondary liability) to or on account of a Plan pursuant to
Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of
ERISA or Section 4971 or 4975 or the Internal Revenue Code.
(f) ENVIRONMENTAL CONDITIONS. Promptly after obtaining knowledge
of any one or more of the following environmental matters, unless such
environmental matters would not, individually or when aggregated with all
other such matters, be reasonably expected to result in a Material Adverse
Effect:
(i) notice of any pending or threatened Environmental Claim
against the U.S. Borrower or any of its Subsidiaries or any Real
Estate (as defined below);
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(ii) notice of any condition or occurrence on any Real
Estate that (x) results in noncompliance by the U.S. Borrower or any
of its Subsidiaries with any applicable Environmental Law or (y) could
reasonably be anticipated to form the basis of an Environmental Claim
against the U.S. Borrower or any of its Subsidiaries or any Real
Estate;
(iii) notice of any condition or occurrence on any Real
Estate that could reasonably be anticipated to cause such Real Estate
to be subject to any restrictions on the ownership, occupancy, use or
transferability of such Real Estate under any Environmental Law; and
(iv) notice of the taking of any removal or remedial action
in response to the actual or alleged presence of any Hazardous
Material on any Real Estate.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial action
and the U.S. Borrower's response thereto. The term "REAL ESTATE" shall
mean land, buildings and improvements owned or leased by the U.S. Borrower
or any of its Subsidiaries, but excluding all operating fixtures and
equipment, whether or not incorporated into improvements.
(g) PRO FORMA EBITDA ADJUSTMENT CERTIFICATE. Upon the consummation
of the acquisition of any Restricted Subsidiary, a certificate of the chief
financial officer of the U.S. Borrower demonstrating compliance with the
provisions of Section 5.02(e)(xi) and 5.04 and, if there is to be any Pro
Forma EBITDA Adjustment, setting forth the amount of such Pro Forma EBITDA
Adjustment and, in reasonable detail satisfactory to the Administrative
Agent, setting forth the calculations and basis therefor.
(h) DESIGNATION CERTIFICATE. Upon the designation of any
Subsidiary (A) as a Restricted Subsidiary from an Unrestricted Subsidiary
or (B) as an Unrestricted Subsidiary from a Restricted Subsidiary, a
certificate of the chief financial officer of the U.S. Borrower certifying
as to compliance with the provisions of Section 5.02(a), 5.02(b) and
5.02(e) and demonstrating compliance with the provisions of Section 5.04
and setting forth the calculations and basis therefor, in each case after
giving effect to such designation in reasonable detail satisfactory to the
Administrative Agent.
(i) SECURITIES REPORTS/OTHER INFORMATION. Promptly after the
sending or filing thereof, copies of all proxy statements, financial
statements and reports that any Loan Party or any of its Subsidiaries sends
to its stockholders, and copies of all regular, periodic and special
reports, and all registration statements, that any Loan Party or any of its
Subsidiaries files with the Securities and Exchange Commission or any
governmental authority that may be substituted therefor, or with any
national securities exchange (in each case to the extent not theretofore
delivered to the Lender Parties pursuant to this Agreement), and with
reasonable promptness such other information (financial or otherwise) as
the Administrative Agent on its own behalf or on behalf of any Lender Party
may reasonably request in writing from time to time
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SECTION 5.04. FINANCIAL COVENANTS. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, the U.S. Borrower will:
(a) LEVERAGE RATIO. Maintain at the end of each Fiscal Quarter a
Leverage Ratio of not more than the ratio set forth below for each
Measurement Period set forth below:
MEASUREMENT
PERIOD ENDING RATIO
------------- -----
March 31, 1998 6.000
June 30, 1998 6.000
September 30, 1998 6.000
December 31, 1998 6.000
March 31, 1999 5.750
June 30, 1999 5.750
September 30, 1999 5.750
December 31, 1999 5.750
March 31, 2000 5.500
June 30, 2000 5.500
September 30, 2000 5.500
December 31, 2000 5.500
March 31, 2001 5.250
June 30, 2001 5.250
September 30, 2001 5.250
December 31, 2001 5.000
March 31, 2002 5.000
June 30, 2002 5.000
September 30, 2002 4.750
December 31, 2002 4.750
March 31, 2003 4.500
June 30, 2003 4.500
September 30, 2003 4.250
December 31, 2003 4.250
March 31, 2004 4.000
and thereafter
(b) INTEREST COVERAGE RATIO. Maintain at the end of each
Fiscal Quarter an Interest Coverage Ratio of not less than the ratio
set forth below for each Measurement Period set forth below:
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MEASUREMENT
PERIOD ENDING RATIO
------------- -----
March 31, 1998 1.500
June 30, 1998 1.500
September 30, 1998 1.500
December 31, 1998 1.500
March 31, 1999 1.500
June 30, 1999 1.500
September 30, 1999 1.500
December 31, 1999 1.500
March 31, 2000 1.625
June 30, 2000 1.625
September 30, 2000 1.625
December 31, 2000 1.625
March 31, 2001 1.750
June 30, 2001 1.750
September 30, 2001 1.750
December 31, 2001 1.750
March 31, 2002 2.000
June 30, 2002 2.000
September 30, 2002 2.000
December 31, 2002 2.000
March 31, 2003 2.000
June 30, 2003 2.000
September 30, 2003 2.000
December 31, 2003 2.000
March 31, 2004 2.000
June 30, 2004 2.000
September 30, 2004 2.500
and thereafter
(c) FIXED CHARGE COVERAGE RATIO. Maintain at the end of
each Fiscal Quarter a Fixed Charge Coverage of not less than the ratio
set forth below for each Measurement Period set forth below:
MEASUREMENT
PERIOD ENDING RATIO
------------- -----
March 31, 1998
and thereafter 1.050
ARTICLE VI
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GUARANTY
SECTION 6.01. GUARANTY. The U.S. Borrower hereby unconditionally and
irrevocably guarantees (the provisions set forth in this Article VI being the
"GUARANTY") the punctual payment when due, whether at scheduled maturity or at a
date fixed for prepayment or by acceleration, demand or otherwise, of all of the
Obligations of the Canadian Borrower now or hereafter existing under or in
respect of the Loan Documents, whether direct or indirect, absolute or
contingent, and whether for principal, interest, fees, indemnification payments,
costs, expenses or otherwise (such Obligations being the "GUARANTEED
OBLIGATIONS"), and agrees to pay any and all expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or any of the other Lender Parties in enforcing any rights
under this Guaranty. Without limiting the generality of the foregoing, the
liability of the U.S. Borrower shall extend to all amounts that constitute part
of the Guaranteed Obligations and would be owed by the Canadian Borrower under
or in respect of the Loan Documents but for the fact that such Guaranteed
Obligations are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving the Canadian
Borrower.
SECTION 6.02. GUARANTY ABSOLUTE. (a) The U.S. Borrower guarantees
that all of the Guaranteed Obligations will be paid strictly in accordance with
the terms of the Loan Documents, regardless of any Requirements of Law now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Administrative Agent or any of the other Lender Parties with
respect thereto. The Obligations of the U.S. Borrower under this Guaranty are
independent of the Guaranteed Obligations or any other Obligations of the
Canadian Borrower under or in respect of the Loan Documents, and a separate
action or actions may be brought and prosecuted against the U.S. Borrower to
enforce this Guaranty, irrespective of whether any action is brought against the
Canadian Borrower or whether the Canadian Borrower is joined in any such action
or actions. The liability of the U.S. Borrower under this Guaranty shall be
absolute, unconditional and irrevocable irrespective of, and the U.S. Borrower
hereby irrevocably waives any defenses it may now have or may hereafter acquire
in any way relating to, any and all of the following:
(i) any lack of validity or enforceability of any of the Loan
Documents or any other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations or any other
Obligations of the Canadian Borrower under or in respect of the Loan
Documents, or any other amendment or waiver of or any consent to departure
from any of the Loan Documents (including, without limitation, any increase
in the Guaranteed Obligations resulting from the extension of additional
credit to the Canadian Borrower or any of its Subsidiaries or otherwise);
(iii) any taking, exchange, release or nonperfection of any of the
Collateral, or any taking, release or amendment or waiver of, or consent to
departure from, the Subsidiaries Guaranty or any other guarantee, for all
or any of the Guaranteed Obligations;
85
(iv) any manner of application of Collateral, or proceeds thereof,
to all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any Collateral for all or any of the Guaranteed Obligations
or any other Obligations of the Canadian Borrower under or in respect of
the Loan Documents, or any other property and assets of the Canadian
Borrower or any of its Subsidiaries;
(v) any change, restructuring or termination of the legal structure
or existence of the Canadian Borrower or any of its Subsidiaries;
(vi) any failure of any of the Lender Parties to disclose to the
Canadian Borrower any information relating to the business, condition
(financial or otherwise), operations, performance, properties or prospects
of the Canadian Borrower now or hereafter known to such Lender Party;
(vii) the failure of any other Person to execute the Subsidiaries
Guaranty or any other guarantee or agreement or the release or reduction of
liability of the Canadian Borrower or any other guarantor or surety with
respect to the Guaranteed Obligations; or
(viii) any other circumstance (including, without limitation, any
statute of limitations or any existence of or reliance on any
representation by the Administrative Agent or any of the other Lender
Parties) that might otherwise constitute a defense available to, or a
discharge of, the U.S. Borrower or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Administrative Agent or any of the other
Lender Parties or by any other Person upon the insolvency, bankruptcy or
reorganization of the Canadian Borrower or otherwise, all as though such payment
had not been made, and the U.S. Borrower hereby unconditionally and irrevocably
agrees that it will indemnify the Administrative Agent and each of the other
Lender Parties, upon demand, for all of the costs and expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or such other Lender Party in connection with any such
rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference,
a fraudulent transfer or a similar payment under any bankruptcy, insolvency or
similar Requirements of Law.
(b) The U.S. Borrower hereby further agrees that, as between the
U.S. Borrower, on the one hand, and the Administrative Agent and the Lender
Parties, on the other hand, (i) the Guaranteed Obligations of the Canadian
Borrower may be declared to be forthwith due and payable as provided in Section
7.01 (and shall be deemed to have become automatically due and payable in the
circumstances provided in Section 7.01) for purposes of this Guaranty,
notwithstanding any stay, injunction or other prohibition preventing such
declaration in respect of such Guaranteed Obligations (or preventing such
Guaranteed Obligations from becoming automatically due and payable) as against
any other Person and (ii) in the event of any declaration of acceleration of
such Guaranteed Obligations (or such Guaranteed Obligations being deemed to have
become automatically due and payable) as provided in Section 7.01, such
Guaranteed Obligations (whether or not due and payable by the
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Canadian Borrower) shall forthwith become due and payable by the U.S. Borrower
for all purposes of this Guaranty.
SECTION 6.03. WAIVERS AND ACKNOWLEDGMENTS. (a) The U.S. Borrower
hereby unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, protest, dishonor and any other notice with respect to any of the
Guaranteed Obligations and this Guaranty, and any requirement that the
Administrative Agent or any of the other Lender Parties protect, secure, perfect
or insure any Lien or any property or assets subject thereto or exhaust any
right or take any action against the Canadian Borrower or any other Person or
any of the Collateral.
(b) The U.S. Borrower hereby waives (i) any defense arising by
reason of any claim or defense based upon an election of remedies by the
Administrative Agent or the other Lender Parties which in any manner impairs,
reduces, releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of the U.S. Borrower or any
other rights of the U.S. Borrower to proceed against the Canadian Borrower, any
other guarantor or any other Person or any of the Collateral, and (ii) any
defense based on any right of setoff or counterclaim against or in respect of
the Obligations of the U.S. Borrower under this Guaranty.
(c) The U.S. Borrower hereby unconditionally and irrevocably waives
any duty on the part of the Administrative Agent or any of the other Lender
Parties to disclose to the U.S. Borrower any fact or other matter relating to
the business, condition (financial or otherwise), operations, performance,
properties or prospects of the Canadian Borrower or any of its Subsidiaries or
the property and assets thereof now or hereafter known by the Administrative
Agent or such other Lender Party.
(d) The U.S. Borrower hereby unconditionally waives any right to
revoke this Guaranty, and acknowledges that this Guaranty is continuing in
nature and applies to all Guaranteed Obligations, whether existing now or in the
future.
(e) The U.S. Borrower hereby acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in Section
6.02 and in this Section 6.03 are knowingly made in contemplation of such
benefits.
SECTION 6.04. SUBROGATION. The U.S. Borrower hereby unconditionally
and irrevocably agrees not to exercise any rights that it may now have or may
hereafter acquire against the Canadian Borrower or any other insider guarantor
that arise from the existence, payment, performance or enforcement of the
Obligations of the U.S. Borrower under this Guaranty or any of the other Loan
Documents, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Administrative Agent or any of the
other Lender Parties against the Canadian Borrower or any other insider
guarantor or any Collateral, whether or not such claim, remedy or right arises
in equity or under contract, statute, common law or any other Requirements of
Law, including, without limitation, the right to take or receive from such other
Loan Party or any other insider guarantor, directly or
87
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
such time as all of the Guaranteed Obligations and all of the other amounts
payable under this Guaranty shall have been paid in full in cash. If any amount
shall be paid to the U.S. Borrower in violation of the immediately preceding
sentence at any time prior to the latest of the payment in full in cash of all
of the Guaranteed Obligations and all of the other amounts payable under this
Guaranty, such amount shall be received and held in trust for the benefit of the
Administrative Agent and the other Lender Parties, shall be segregated from the
other property and funds of the U.S. Borrower and shall be delivered forthwith
to the Administrative Agent in the same form as so received (with any necessary
endorsement or assignment) to be credited and applied to the Guaranteed
Obligations and the other amounts payable under this Guaranty, whether matured
or unmatured, in accordance with the terms of the Loan Documents, or to be held
as Collateral for any of the Guaranteed Obligations or any of the other amounts
payable under this Guaranty thereafter arising. If (i) the U.S. Borrower shall
pay to the Administrative Agent all or any part of the Guaranteed Obligations
and (ii) all of the Guaranteed Obligations and all of the other amounts payable
under this Guaranty shall have been paid in full in cash, the Administrative
Agent and the other Lender Parties will, at the U.S. Borrower's request and
expense, execute and deliver to the U.S. Borrower appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer of subrogation to the U.S. Borrower of an interest in the Guaranteed
Obligations resulting from the payment made by the U.S. Borrower under this
Guaranty.
SECTION 6.05. CONTINUING GUARANTY; ASSIGNMENTS. This Guaranty is a
continuing guarantee and shall (a) remain in full force and effect until the
payment in full in cash of all of the Guaranteed Obligations and all of the
other amounts payable under this Guaranty, (b) be binding upon the U.S. Borrower
and its successors and assigns and (c) inure to the benefit of, and be
enforceable by, the Administrative Agent and the other Lender Parties and their
respective successors, transferees and assigns. Without limiting the generality
of clause (c) of the immediately preceding sentence, any of the Lender Parties
may assign or otherwise transfer all or any portion of its rights and
obligations under this Agreement (including, without limitation, all or any
portion of its Commitment or Commitments, the Advances owing to it and the Note
or Notes held by it) to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to such Lender
under this Article VI or otherwise, in each case as provided in Section 9.07.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. EVENTS OF DEFAULT. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) either Borrower shall (i) fail to pay any principal of any
Advance owing by it when the same shall become due and payable or (ii) fail
to pay any interest on any Advance owing by it, or any fees payable
pursuant to Section 2.08, or any other amounts owing by it under any Loan
Document, in each case within five days after the due date thereof; or
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(b) any representation or warranty made by any Loan Party in any
Loan Document or any certificate delivered or required to be delivered
pursuant thereto shall prove to have been untrue in any material respect on
the date as of which made or deemed made; or
(c) either Borrower shall default in the due performance or
observance by it of any term, covenant or agreement required to be
performed or observed by it contained in Section 5.01(j), 5.02, 5.03(a) or
5.04; or
(d) any Loan Party shall default in the due performance or
observance by it of any other term, covenant or agreement contained in any
Loan Document on its part to be performed or observed if such failure shall
remain unremedied for 30 days after written notice thereof shall have been
given to the U.S. Borrower by the Administrative Agent or any Lender Party;
or
(e) any Loan Party or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on or any other amount payable in respect
of any Debt that is outstanding in a principal amount of at least
$20,000,000 (or its equivalent in another currency) either individually or
in the aggregate (but excluding Debt outstanding hereunder) of such Loan
Party or such Subsidiary (as the case may be), when the same becomes due
and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after
the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity
of such Debt or otherwise to cause, or to permit the holder thereof to
cause, such Debt to mature; or any such Debt shall be declared to be due
and payable or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made other than in connection with a sale of assets
permitted by Section 5.02(d), in each case prior to the stated maturity
thereof; or
(f) any Loan Party or any of its Subsidiaries shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any Loan Party or any of its Subsidiaries seeking
to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding
up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee, or other
similar official for it or for any substantial part of its property and, in
the case of any such proceeding instituted against it (but not instituted
by it) that is being diligently contested by it in good faith, either such
proceeding shall remain undismissed or unstayed for a period of 60 days or
any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of
a receiver, trustee, custodian or other similar official for, it or any
substantial part of its property) shall occur; or any Loan Party or any of
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its Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (f); or
(g) one or more judgments or decrees shall be entered against
either Borrower or any of the Restricted Subsidiaries involving a liability
of $20,000,000 or more in the aggregate for all such judgments and decrees
for the Borrowers and their Restricted Subsidiaries (to the extent not paid
or fully covered by insurance provided by a carrier not disputing coverage)
and any such judgments or decrees shall not have been satisfied, vacated,
discharged or stayed or bonded pending appeal within 60 days from the entry
thereof; or
(h) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01 or 5.01(k) shall for any reason cease to be valid
and binding on or enforceable against any Loan Party party to it, or any
such Loan Party shall so state in writing; or
(i) any Collateral Document after delivery thereof pursuant to
Section 3.01 or 5.01(k) shall for any reason (other than pursuant to the
terms thereof) cease to create a valid and perfected first priority lien on
and security interest in the Collateral purported to be covered thereby; or
(j) any Change of Control shall occur; or
(k) (i) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof or a waiver of such
standard or extension of any amortization period is sought or granted under
Section 412 of the Internal Revenue Code; any Plan is or shall have been
terminated or is the subject of termination proceedings under ERISA
(including the giving of written notice thereof); an event shall have
occurred or a condition shall exist in either case entitling the PBGC to
terminate any Plan or to appoint a trustee to administer any Plan
(including the giving of written notice thereof); any Plan shall have an
accumulated funding deficiency (whether or not waived); or any Loan Party
or any ERISA Affiliate has incurred or is likely to incur a liability to or
on account of a Plan under Section 409, 502(i), 502(1), 515, 4062, 4063,
4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Internal
Revenue Code (including the giving of written notice thereof); and (ii)
there could result from any event or events set forth in clause (i) of this
Section 7.01(k) the imposition of a lien, the granting of a security
interest, or a liability, or the reasonable likelihood of incurring a lien,
security interest or liability; and (iii) such lien, security interest or
liability will or would be reasonably likely to result in a liability of
any Loan Party or any ERISA Affiliate of $20,000,000 or more;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Majority Lenders, by notice to the Appropriate
Borrower, declare the obligation of each Appropriate Lender to make Advances
(other than Letter of Credit Advances by the Issuing Bank or a Revolving Credit
Lender pursuant to Section 2.03(c) and Swing Line Advances by a Revolving Credit
Lender pursuant to Section 2.02(b)) and of the Issuing Bank to issue Letters of
Credit to be terminated, whereupon the same shall forthwith terminate, and
(ii) shall at the request, or may with the consent, of the Majority Lenders,
(A) by notice to the Appropriate Borrower, declare the Notes, all interest
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thereon and all other amounts payable under this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by each Borrower and (B) by notice to each party
required under the terms of any agreement in support of which a Standby Letter
of Credit is issued, request that all Obligations under such agreement be
declared to be due and payable; PROVIDED, HOWEVER, that in the event of an
actual or deemed entry of an order for relief with respect to any Loan Party or
any of its Restricted Subsidiaries under the Federal Bankruptcy Code, (x) the
obligation of each Lender to make Advances (other than Letter of Credit Advances
by the Issuing Bank or a Revolving Credit Lender pursuant to Section 2.03(c) and
Swing Line Advances by a Revolving Credit Lender pursuant to Section 2.02(b))
and of the Issuing Bank to issue Letters of Credit shall automatically be
terminated and (y) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
each Borrower.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01. AUTHORIZATION AND ACTION. Each Lender Party (in its
capacities as a Lender, the Swing Line Bank (if applicable), the Issuing Bank
(if applicable) and a potential Hedge Bank) hereby appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement and the other Loan Documents as
are delegated to the Administrative Agent by the terms hereof and thereof,
together with such powers and discretion as are reasonably incidental thereto.
As to any matters not expressly provided for by the Loan Documents (including,
without limitation, enforcement or collection of the Notes), the Administrative
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Majority
Lenders, and such instructions shall be binding upon all Lender Parties and all
holders of Notes; PROVIDED, HOWEVER, that the Administrative Agent shall not be
required to take any action that exposes the Administrative Agent to personal
liability or that is contrary to this Agreement or applicable law. The
Administrative Agent agrees to give to each Lender Party prompt notice of each
notice given to it by either Borrower pursuant to the terms of this Agreement.
SECTION 8.02. ADMINISTRATIVE AGENT'S RELIANCE, ETC. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with the Loan Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (a) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07;
(b) may consult with legal counsel (including counsel for any Loan Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or
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experts; (c) makes no warranty or representation to any Lender Party and shall
not be responsible to any Lender Party for any statements, warranties or
representations (whether written or oral) made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any
Loan Document on the part of any Loan Party or to inspect the property
(including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 8.03. CITICORP AND AFFILIATES. With respect to its
Commitments, the Advances made by it and the Notes issued to it, Citicorp shall
have the same rights and powers under the Loan Documents as any other Lender
Party and may exercise the same as though it were not the Administrative Agent;
and the term "Lender Party" or "Lender Parties" shall, unless otherwise
expressly indicated, include Citicorp in its individual capacity. Citicorp and
its Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage
in any kind of business with, any Loan Party, any of its Subsidiaries and any
Person who may do business with or own securities of any Loan Party or any such
Subsidiary, all as if Citicorp were not the Administrative Agent and without any
duty to account therefor to the Lender Parties.
SECTION 8.04. LENDER PARTY CREDIT DECISION. Each Lender Party
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender Party and based on the financial
statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender Party also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender Party and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 8.05. INDEMNIFICATION. (a) Each Lender Party severally
agrees to indemnify the Administrative Agent (to the extent not promptly
reimbursed by the Borrowers) from and against such Lender Party's ratable share
(determined as provided below) of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against the Administrative Agent in any way relating to or arising out
of the Loan Documents or any action taken or omitted by the Administrative Agent
under the Loan Documents; PROVIDED, HOWEVER, that no Lender Party shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender Party agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, reasonable fees and expenses of
counsel) payable by the
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Borrowers under Section 9.04, to the extent that the Administrative Agent is not
promptly reimbursed for such costs and expenses by the Borrowers. For purposes
of this Section 8.05(a), the Lender Parties' respective ratable shares of any
amount shall be determined, at any time, according to the sum of (i) the
aggregate principal amount of the Advances outstanding at such time and owing to
the respective Lender Parties, (ii) their respective Pro Rata Shares of the
aggregate Available LC Amount of all Letters of Credit outstanding at such time,
(iii) the aggregate unused portions of their respective Term A Commitments and
Term B Commitments at such time and (iv) their respective Unused Revolving
Credit Commitments at such time; PROVIDED that the aggregate principal amount of
Swing Line Advances owing to the Swing Line Bank and of Letter of Credit
Advances owing to the Issuing Bank shall be considered to be owed to the
Revolving Credit Lenders ratably in accordance with their respective Revolving
Credit Commitments. In the event that any Defaulted Advance shall be owing by
any Defaulting Lender at any time, such Lender Party's Commitment with respect
to the Facility under which such Defaulted Advance was required to have been
made shall be considered to be unused for purposes of this Section 8.05(a) to
the extent of the amount of such Defaulted Advance. The failure of any Lender
Party to reimburse the Administrative Agent promptly upon demand for its ratable
share of any amount required to be paid by the Lender Party to the
Administrative Agent as provided herein shall not relieve any other Lender Party
of its obligation hereunder to reimburse the Administrative Agent for its
ratable share of such amount, but no Lender Party shall be responsible for the
failure of any other Lender Party to reimburse the Administrative Agent for such
other Lender Party's ratable share of such amount. Without prejudice to the
survival of any other agreement of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this Section 8.05(a) shall survive
the payment in full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
(b) Each Revolving Credit Lender severally agrees to indemnify the
Issuing Bank (to the extent not promptly reimbursed by the Borrowers) from and
against such Lender Party's ratable share (determined as provided below) of any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the Issuing
Bank in any way relating to or arising out of the Loan Documents or any action
taken or omitted by the Issuing Bank under the Loan Documents; PROVIDED,
HOWEVER, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Issuing Bank's gross
negligence or willful misconduct. Without limitation of the foregoing, each
such Lender Party agrees to reimburse the Issuing Bank promptly upon demand for
its ratable share of any costs and expenses (including, without limitation,
reasonable fees and expenses of counsel) payable by the Borrowers under Section
9.04, to the extent that the Issuing Bank is not promptly reimbursed for such
costs and expenses by the Borrowers. For purposes of this Section 8.05(b), the
Lender Parties' respective ratable shares of any amount shall be determined, at
any time, according to the sum of (i) the aggregate principal amount of the
Advances outstanding at such time and owing to the respective Lender Parties,
(ii) their respective Pro Rata Shares of the aggregate Available LC Amount of
all Letters of Credit outstanding at such time, (iii) the aggregate unused
portions of their respective Term A Commitments and Term B Commitments at such
time PLUS (iv) their respective Unused Revolving Credit Commitments at such
time; PROVIDED that the aggregate principal amount of Swing Line Advances owing
to the Swing Line Bank and of Letter of Credit Advances owing to the Issuing
Bank shall be considered to be owed to the Revolving Credit Lenders ratably in
accordance with their
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respective Revolving Credit Commitments. In the event that any Defaulted
Advance shall be owing by any Defaulting Lender at any time, such Lender Party's
Commitment with respect to the Facility under which such Defaulted Advance was
required to have been made shall be considered to be unused for purposes of this
Section 8.05(b) to the extent of the amount of such Defaulted Advance. The
failure of any Lender Party to reimburse the Issuing Bank promptly upon demand
for its ratable share of any amount required to be paid by the Lender Parties to
the Issuing Bank as provided herein shall not relieve any other Lender Party of
its obligation hereunder to reimburse the Issuing Bank for its ratable share of
such amount, but no Lender Party shall be responsible for the failure of any
other Lender Party to reimburse the Issuing Bank for such other Lender Party's
ratable share of such amount. Without prejudice to the survival of any other
agreement of any Lender Party hereunder, the agreement and obligations of each
Lender Party contained in this Section 8.05(b) shall survive the payment in full
of principal, interest and all other amounts payable hereunder and under the
other Loan Documents.
SECTION 8.06. SUCCESSOR ADMINISTRATIVE AGENTS. The Administrative
Agent may resign as to any or all of the Facilities at any time by giving
written notice thereof to the Lender Parties and the Borrowers and may be
removed as to all of the Facilities at any time with or without cause by the
Majority Lenders. Upon any such resignation or removal, the Majority Lenders
shall, with the consent of the U.S. Borrower (such consent not to be
unreasonably withheld or delayed) have the right to appoint a successor
Administrative Agent as to such of the Facilities as to which the Administrative
Agent has resigned or been removed. If no successor Administrative Agent shall
have been so appointed by the Majority Lenders and consented to by the U.S.
Borrower, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation or the Majority
Lenders' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lender Parties and with the consent
of the U.S. Borrower (such consent not to be unreasonably withheld or delayed)
appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States or of any State thereof and having
a combined capital and surplus of at least $250,000,000. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor Administrative
Agent as to all of the Facilities and upon the execution and filing or recording
of such financing statements, or amendments thereto, and such other instruments
or notices, as may be necessary or desirable, or as the Majority Lenders may
request, in order to continue the perfection of the Liens granted or purported
to be granted by the Collateral Documents, such successor Administrative Agent
shall succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
the Loan Documents. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent as to less than all of the
Facilities and upon the execution and filing or recording of such financing
statements, or amendments thereto, and such other instruments or notices, as may
be necessary or desirable, or as the Majority Lenders may request, in order to
continue the perfection of the Liens granted or purported to be granted by the
Collateral Documents, such successor Administrative Agent shall succeed to and
become vested with all the rights, powers, discretion, privileges and duties of
the retiring Administrative Agent as to such Facilities, other than with respect
to funds transfers and other similar aspects of the administration of Borrowings
under such Facilities, issuances of Letters of Credit (notwithstanding any
resignation as Administrative Agent with respect to the Letter of Credit
Facility) and payments by the Borrowers in respect of such Facilities, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement
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as to such Facilities, other than as aforesaid. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative Agent
as to all of the Facilities, the provisions of this Article VIII shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent as to any Facilities under this Agreement.
SECTION 8.07. ARRANGER, SYNDICATION AGENT AND DOCUMENTATION AGENT.
The Arranger, the Syndication Agent and the Documentation Agent shall have no
duties or obligations under this Agreement or the other Loan Documents in their
respective capacities as Arranger, Syndication Agent and Documentation Agent.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement or the Notes or any other Loan Document, nor consent
to any departure by either Borrower therefrom, shall in any event be effective
unless the same shall be in writing and signed (or, in the case of the
Collateral Documents, consented to) by the Majority Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; PROVIDED, HOWEVER, that (a) no amendment,
waiver or consent shall, unless in writing and signed by all of the Lenders
(other than any Lender that is, at such time, a Defaulting Lender), do any of
the following at any time: (i) waive any of the conditions specified in
Section 3.01 or, in the case of the Initial Extension of Credit, Section 3.02,
(ii) change the number of Lenders or the percentage of (x) the Commitments, (y)
the aggregate unpaid principal amount of the Advances or (z) the aggregate
Available LC Amount of outstanding Letters of Credit that, in each case, shall
be required for the Lenders or any of them to take any action hereunder, (iii)
release all or substantially all of the Collateral in any transaction or series
of related transactions, (iv) amend this Section 9.01, (v) release the U.S.
Borrower from its guaranty obligations or reduce or limit the obligations of the
U.S. Borrower under Section 6.01 of the Guaranty or (vi) otherwise limit either
Borrower's liability with respect to the Obligations owing to the Administrative
Agent and the Lender Parties under any of the Loan Documents, (b) no amendment,
waiver or consent shall, unless in writing and signed by the Majority Lenders
and each Appropriate Lender if affected by such amendment, waiver or consent,
(i) increase the Commitments of such Lender or subject such Lender to any
additional obligations, (ii) reduce the principal of, or interest (other than a
waiver of increased interest following Default pursuant to Section 2.07(b)) on,
the Notes held by such Lender or any fees or other amounts payable hereunder to
such Lender or (iii) postpone any date fixed for any payment of interest on the
Notes held by such Lender or any fees or other amounts payable hereunder to such
Lender or the final maturity date of any Facility and (c) no amendment, waiver
or consent shall, unless in writing and signed by the Majority Lenders (all of
which shall be Appropriate Lenders), waive, reduce, postpone or change the order
of application of, or right to decline to receive, any repayment or prepayment
of principal required to be paid pursuant Sections 2.04 or 2.06; PROVIDED,
HOWEVER, that no amendment, waiver or consent shall, unless in writing and
signed by the Swing Line Bank or the Issuing Bank, as the case may be, in
addition to the Lenders required above to take such action, affect the rights or
obligations of the Swing Line Bank or of the Issuing Bank, as the case may be,
under this Agreement; and PROVIDED FURTHER that
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no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement.
SECTION 9.02. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered,
if to the U.S. Borrower, to its address at 0000 Xxxxx Xxxx, X.X. Xxx 00,
Xxxxxxxxx, XX 00000, Attn: Xxxxxxx Xxxxxxx, with a copy to KKR at 0000 Xxxx Xxxx
Xxxx, Xxxxx 000, Xxxxx Xxxx, XX 00000, Attn: Xxxx Xxxxxx; if to the Canadian
Borrower, addressed to it c/o the U.S. Borrower at the U.S. Borrower's address;
if to any Initial Lender or the Initial Issuing Bank, to its Domestic Lending
Office specified opposite its name on Schedule I hereto; if to any other Lender
Party, to its Domestic Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender Party; and if to the Administrative Agent,
to its address at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx
Xxxxxx; or, as to either Borrower or the Administrative Agent, to such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the U.S. Borrower and the
Administrative Agent pursuant to this Section 9.02. All such notices and
communications shall, when mailed, telegraphed, telecopied or telexed, be
effective when deposited in the mails, delivered to the telegraph company,
transmitted by telecopier or confirmed by telex answerback, respectively, except
that notices and communications to the Administrative Agent pursuant to Sections
2.02, 2.03, 2.05, 2.06(a) and (c) and 2.09(a) and with respect to selected
Interest Periods in respect of Eurodollar Rate Advances shall not be effective
until received by the Administrative Agent. Delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
SECTION 9.03. NO WAIVER; REMEDIES. No failure on the part of any
Lender Party or the Administrative Agent to exercise, and no delay in
exercising, any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 9.04. COSTS, EXPENSES. (a) Each Borrower agrees to pay on
demand (i) all costs and expenses of the Administrative Agent in connection with
the preparation, execution, delivery, administration, modification and amendment
of the Loan Documents (including, without limitation, (A) all due diligence,
collateral review, syndication, transportation, computer, duplication,
appraisal, audit, insurance, consultant, search, filing and recording fees and
expenses and (B) the reasonable fees and expenses of counsel for the
Administrative Agent with respect thereto, with respect to advising the
Administrative Agent as to its rights and responsibilities, or the perfection,
protection or preservation of rights or interests, under the Loan Documents,
with respect to negotiations with any Loan Party or with other creditors of any
Loan Party or any of its Subsidiaries arising out of any Default or any events
or circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto) and (ii) all costs and
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expenses of the Administrative Agent and the Lender Parties in connection with
the enforcement of the Loan Documents, whether in any action, suit or
litigation, any bankruptcy, insolvency or other similar proceeding affecting
creditors' rights generally (including, without limitation, the reasonable fees
and expenses of counsel for the Administrative Agent and each Lender Party with
respect thereto).
(b) Each Borrower agrees to indemnify and hold harmless the
Administrative Agent, each Lender Party and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an "INDEMNIFIED
PARTY") from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation, litigation
or proceeding or preparation of a defense in connection therewith) (i) the
Facilities, the actual or proposed use of the proceeds of the Advances or the
Letters of Credit, the Loan Documents or any of the transactions contemplated
thereby, including, without limitation, any acquisition or proposed acquisition
(including, without limitation, the Acquisition and any of the other
transactions contemplated hereby) by the Investor Group or any of their
Subsidiaries or Affiliates of all or any portion of the stock or substantially
all the assets of such Borrower or any of its Subsidiaries or (ii) the actual or
alleged presence of Hazardous Materials on any property of any Loan Party or any
of its Subsidiaries or any Environmental Action relating in any way to any Loan
Party or any of its Subsidiaries, except to the extent, in each case, such
claim, damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 9.04(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by any Loan Party, its
directors, shareholders or creditors or an Indemnified Party or any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by either Borrower to or for the account of a
Lender Party other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.09(b)(i) or
2.10(d), acceleration of the maturity of the Notes pursuant to Section 7.01 or
for any other reason, such Borrower shall, upon demand by such Lender Party
(with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender Party any amounts required
to compensate such Lender Party for any additional losses, costs or expenses
that it may reasonably incur as a result of such payment, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by the Administrative Agent or any Lender
Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrowers
97
contained in Sections 2.10 and 2.12 and this Section 9.04 shall survive the
payment in full of principal, interest and all other amounts payable hereunder
and under any of the other Loan Documents.
SECTION 9.05. RIGHT OF SET-OFF. Upon (a) the occurrence and during
the continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 7.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 7.01, each Lender Party and each of its respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender Party or such
Affiliate to or for the credit or the account of either Borrower against any and
all of the Obligations of such Borrower now or hereafter existing under this
Agreement and the Note or Notes (if any) held by such Lender Party, irrespective
of whether such Lender Party shall have made any demand under this Agreement or
such Note or Notes and although such obligations may be unmatured. Each Lender
Party agrees promptly to notify such Borrower after any such set-off and
application; PROVIDED, HOWEVER, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
Party and its respective Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender Party and its respective Affiliates may have.
SECTION 9.06. BINDING EFFECT. This Agreement shall become effective
when it shall have been executed by each Borrower and the Administrative Agent
and when the Administrative Agent shall have been notified by each Initial
Lender and the Initial Issuing Bank that such Initial Lender and the Initial
Issuing Bank has executed it and thereafter shall be binding upon and inure to
the benefit of each Borrower, the Administrative Agent and each Lender Party and
their respective successors and assigns, except that neither Borrower shall have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lender Parties.
SECTION 9.07. ASSIGNMENTS AND PARTICIPATIONS. (a) Each Lender may,
with the consent of the Administrative Agent, and, so long as no Event of
Default has occurred and is continuing, with the consent of the Appropriate
Borrower (in each case, such consent not to be unreasonably withheld), assign to
one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment or Commitments, the Advances owing to it and the Note or Notes held
by it); PROVIDED, however, that no consent by either Borrower or the
Administrative Agent shall be required for an assignment to any Person who is an
Affiliate of such Lender, and PROVIDED, FURTHER, that (i) each such assignment
shall be of a uniform, and not a varying, percentage of all rights and
obligations under and in respect of one or more Facilities, (ii) except in the
case of an assignment to a Person that, immediately prior to such assignment,
was a Lender or an assignment of all of a Lender's rights and obligations under
this Agreement or all of a Lender's rights and obligations with respect to its
Term B Commitment, the amount of the Commitment of the assigning Lender being
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be
less than $5,000,000 (or integral multiples of $1,000,000 in excess thereof),
(iii) each such assignment shall be to an Eligible Assignee, and (vi) the
parties to each such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with any Note or Notes subject to such assignment and,
other
98
than in the case of an assignment to an Affiliate of such Lender, a processing
and recordation fee of $3,000; PROVIDED, however, that the foregoing processing
and recordation fee for any assignment made pursuant to this Section 9.07 on or
prior to March 31, 1998 which is, in the opinion of the Administrative Agent,
associated with the original syndication of the Facilities, will be waived.
(b) Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in such Assignment and Acceptance,
(x) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender or
Issuing Bank, as the case may be, hereunder and (y) the Lender or Issuing Bank
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's or Issuing Bank's rights and obligations under this
Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the
Lender Party assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than
as provided in such Assignment and Acceptance, such assigning Lender Party makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, this Agreement or any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto; (ii) such
assigning Lender Party makes no representation or warranty and assumes no
responsibility with respect to the financial condition of either Borrower or any
other Loan Party or the performance or observance by any Loan Party of any of
its obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Administrative Agent, such assigning Lender Party or
any other Lender Party and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Loan Documents as are delegated to the
Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of this Agreement are required to be performed by it as a Lender or
Issuing Bank, as the case may be.
(d) The Administrative Agent, acting for this purpose (but only for
this purpose) as the agent of the Borrowers, shall maintain at its address
referred to in Section 9.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the
99
names and addresses of the Lender Parties and the Commitment under each Facility
of, and principal amount of the Advances owing under each Facility to, each
Lender Party from time to time (the "REGISTER"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Administrative Agent and the Lender Parties shall treat each
Person whose name is recorded in the Register as a Lender Party hereunder for
all purposes of this Agreement. The Register shall be available for inspection
by the Borrowers or any Lender Party at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Appropriate Borrower. In the case of any assignment by a Lender, within five
Business Days after its receipt of such notice, the Appropriate Borrower, at its
own expense, shall execute and deliver to the Administrative Agent in exchange
for the surrendered Note or Notes a new Note to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it under a Facility
pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained a Commitment hereunder under such Facility, a new Note to the order of
the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit X-0, X-0 or A-3 hereto, as the
case may be.
(f) The Issuing Bank may, with the consent of the Administrative
Agent, and, so long as no Event of Default shall have occurred and be
continuing, with the consent of the U.S. Borrower (such consent not to be
unreasonably withheld), assign to an Eligible Assignee all of its rights and
obligations under the undrawn portion of its Letter of Credit Commitment at any
time; PROVIDED, HOWEVER, that (i) each such assignment shall be to an Eligible
Assignee and (ii) the parties to each such assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording in the Register,
an Assignment and Acceptance, together with a processing and recordation fee of
$3,000.
(g) Each Lender Party may sell participations to one or more
Persons (other than any Loan Party or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); PROVIDED, HOWEVER, that (i) such Lender
Party's rights and obligations under this Agreement (including, without
limitation, its Commitments) shall remain unchanged, (ii) such Lender Party
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) such Lender Party shall remain the holder of any such
Note for all purposes of this Agreement, (iv) the Borrowers, the Administrative
Agent and the other Lender Parties shall continue to deal solely and directly
with such Lender Party in connection with such Lender Party's rights and
obligations under this Agreement, (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by any Loan
Party therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest (other than increased interest
following
100
Default pursuant to Section 2.07(b)) on, the Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation,
postpone any Termination Date, or date fixed for payment of interest on, the
Notes or any fees or other amounts payable hereunder, in each case to the extent
subject to such participation, or release the U.S. Borrower from its Obligations
under Article VI hereof, or all or substantially all of the Collateral, and (vi)
neither Borrower shall be subject to any increased liability to any Lender Party
pursuant to this Agreement by virtue of such participation.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section 9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrowers furnished to such Lender
Party by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time create a security interest in all or
any portion of its rights under this Agreement (including, without limitation,
the Advances owing to it and the Note or Notes held by it) in favor of any
Federal Reserve Bank in accordance with Regulation A of the Board of Governors
of the Federal Reserve System.
SECTION 9.08. REPLACEMENTS OF LENDERS UNDER CERTAIN CIRCUMSTANCES.
The U.S. Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to Section 2.10 or 2.12, (b) is
affected in the manner described in Section 2.10(d) and as a result thereof any
of the actions described in such Section is required to be taken or (c) becomes
a Defaulting Lender, with a replacement bank or other financial institution,
PROVIDED that (i) such replacement does not conflict with any Requirement of
Law, (ii) no Event of Default shall have occurred and be continuing at the time
of such replacement, (iii) the Appropriate Borrower shall repay (or the
replacement bank or institution shall purchase, at par) all Loans and other
amounts (other than any disputed amounts), pursuant to Section 2.10, 2.11 or
2.12, as the case may be) owing to such replaced Lender prior to the date of
replacement, (iv) the replacement bank or institution, if not already a Lender,
and the terms and conditions of such replacement, shall be reasonably
satisfactory to the Administrative Agent, (v) the replaced Lender shall be
obligated to make such replacement in accordance with the provisions of Section
9.07 (provided that such Borrower shall be obligated to pay the registration and
processing fee referred to therein) and (vi) any such replacement shall not be
deemed to be a waiver of any rights that either Borrower, the Administrative
Agent or any other Lender Party shall have against the replaced Lender.
SECTION 9.09. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
101
SECTION 9.10. NO LIABILITY OF THE ISSUING BANK. The U.S. Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
the Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith;
(b) the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by the Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, EXCEPT that the
U.S. Borrower shall have a claim against the Issuing Bank, and the Issuing Bank
shall be liable to the U.S. Borrower, to the extent of any direct, but not
consequential, damages suffered by the U.S. Borrower that the U.S. Borrower
proves were caused by (i) the Issuing Bank's willful misconduct or gross
negligence in determining whether documents presented under any Letter of Credit
comply with the terms of the Letter of Credit or (ii) the Issuing Bank's willful
failure to make lawful payment under a Letter of Credit after the presentation
to it of a draft and certificates strictly complying with the terms and
conditions of the Letter of Credit. In furtherance and not in limitation of the
foregoing, the Issuing Bank may accept documents that appear on their face to be
in order, without responsibility for further investigation, regardless of any
notice or information to the contrary.
SECTION 9.11. CONFIDENTIALITY. The Administrative Agent and each
Lender shall hold all non-public information furnished by or on behalf of either
Borrower in connection with such Lender's evaluation of whether to become a
Lender hereunder or obtained by such Lender or the Administrative Agent pursuant
to the requirements of this Agreement ("CONFIDENTIAL INFORMATION"), in
accordance with its customary procedure for handling confidential information of
this nature and (in the case of a Lender that is a bank) in accordance with safe
and sound banking practices. Neither the Administrative Agent nor any Lender
Party shall disclose any Confidential Information to any Person without the
consent of the Borrowers, other than (a) to the Administrative Agent's or such
Lender Party's Affiliates and their officers, directors, employees, agents and
advisors and to actual or prospective Eligible Assignees and participants, and
then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process and (c) as requested or required by any state,
federal or foreign authority or examiner regulating such Lender Party or the
Administrative Agent.
SECTION 9.12. JURISDICTION, ETC. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court. Each Borrower
irrevocably consents to the service of any and all process in any such action or
proceeding by the mailing of copies of such process by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such
Borrower at its address specified in Section 9.02 and agrees that nothing herein
shall affect the right to effect service of process in any other manner
permitted by law or shall
102
limit the right to xxx in any other jurisdiction. Each of the 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 shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or any of the other Loan Documents in the courts of
any jurisdiction.
(b) Each of the parties hereto 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 of the
other Loan Documents to which it is a party in any New York State or federal
court. 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.
SECTION 9.13. JUDGMENT. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder or under
any of the other Loan Documents in U.S. dollars into another currency, the
parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase U.S. dollars with
such other currency at Citibank on the Business Day preceding that on which
final judgment is given.
(b) The obligation of each Borrower in respect of any sum due from
it to any Lender Party or the Administrative Agent hereunder or under any of the
other Loan Documents held by such Lender Party shall, notwithstanding any
judgment in a currency other than U.S. dollars, be discharged only to the extent
that on the Business Day of receipt by such Lender Party or the Administrative
Agent (as the case may be) of any sum adjudged to be so due in such other
currency such Lender Party or the Administrative Agent (as the case may be) may
in accordance with normal banking procedures purchase U.S. dollars with such
other currency; if the U.S. dollars so purchased are less than the sum
originally due by such Borrower to such Lender Party or the Administrative Agent
(as the case may be) in U.S. dollars, such Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Lender Party
or the Administrative Agent (as the case may be) against such loss, and if the
U.S. dollars so purchased exceed the sum originally due by such Borrower to any
Lender Party or the Administrative Agent (as the case may be) in U.S. dollars,
such Lender Party or the Administrative Agent (as the case may be) agrees to
remit to such Borrower such excess.
SECTION 9.14. GOVERNING LAW. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of
New York, United States.
SECTION 9.15. WAIVER OF JURY TRIAL. Each of the Borrowers, the
Administrative Agent and the Lender Parties irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to any of the Loan
Documents, the Advances or the actions of the Administrative Agent or any Lender
Party in the negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
ACCURIDE CORPORATION, as U.S.
Borrower
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
ACCURIDE CANADA INC., as Canadian
Borrower
By /s/ J. Xxxx Xxxxx
---------------------------------
Name: J. Xxxx Xxxxx
Title: President
CITICORP USA, INC., as
Administrative Agent and Swing Line
Bank
By /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Attorney-in-Fact
CITIBANK, N.A., as Initial Issuing
Bank
By /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Attorney-in-Fact
CITICORP SECURITIES, INC., as
Arranger
By /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Attorney-in-Fact
BANKERS TRUST COMPANY, as
Syndication Agent
By /s/ Xxxx Xx Xxxxx
---------------------------------
Name: Xxxx Xx Xxxxx
Title: Assistant Vice President
XXXXX FARGO BANK N.A., as
Documentation Agent
By /s/ Illegible
---------------------------------
Name:
Title:
INITIAL LENDERS
BANK OF AMERICA CANADA
By /s/ Xxxxxxx Xxxx
---------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
BANK OF AMERICA NT & SA
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Attorney-in-fact
THE BANK OF NEW YORK
By /s/ Xxxxxx X. Xxxxxxxxx III
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx III
Title: U.S. Commercial Banking
THE BANK OF NOVA SCOTIA, SAN
FRANCISCO AGENCY
By /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President
BANKERS TRUST COMPANY
By /s/ Xxxx Xx Xxxxx
---------------------------------
Name: Xxxx Xx Xxxxx
Title: Assistant Vice President
CITIBANK CANADA
By /s/ Xxxxx Xxxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
CITICORP USA, INC.
By /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Attorney-in-fact
COMERICA BANK
By /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
DEEPROCK & COMPANY
By: Xxxxx Xxxxx Management
as Investment Advisor
By /s/ Xxxxx X. Page
---------------------------------
Name: Xxxxx X. Page
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxxx Xxxx-Xxxxxx
---------------------------------
Name: Xxxxx Xxxx-Xxxxxx
Title: Vice President
FIRST CHICAGO NBD BANK, CANADA
By /s/ Xxxxx Xxxx-Xxxxxx
---------------------------------
Name: Xxxxx Xxxx-Xxxxxx
Title: Vice President
FLEET NATIONAL BANK
By /s/ Illegible
---------------------------------
Name:
Title: Director
FUJI BANK CANADA
By /s/ Xxxxxx Xxx
---------------------------------
Name: Xxxxxx Xxx
Title: Vice President
THE FUJI BANK, LIMITED, NEW YORK
BRANCH
By /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President & Manager
KZH-SOLEIL CORPORATION
By /s/ U Xxxxxx
---------------------------------
Name: U Xxxxxx
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By
---------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
NATIONAL WESTMINSTER BANK PLC
By /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
PRIME INCOME TRUST
By /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
ROYAL BANK OF CANADA
By /s/ Xxxx X. D'Angilo
---------------------------------
Name: Xxxx X. D'Angilo
Title: Manager
By /s/ P.R. Everest
---------------------------------
Name: P.R. Everest
Title: Manager - Commercial
Markets
THE SUMITOMO BANK, LIMITED
By /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Joint General Manager
THE SUMITOMO BANK OF CANADA
By /s/ Xxxxxx Xxx
---------------------------------
Name: Xxxxxx Xxx
Title: Vice President
XXXXX FARGO BANK N.A.
By /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
