1
EXHIBIT 10.22
APPENDIX 1
to
Participation Agreement and Master Lease
each dated as of December 23, 1997
(Extrusion Press Facility)
DEFINITIONS AND INTERPRETATION
A. Interpretation. In each Operative Document, unless a clear
contrary intention appears:
(i) the singular number includes the plural number and vice
versa;
(ii) reference to any Person includes such Person's
successors and assigns but, if applicable, only if such successors and
assigns are permitted by the Operative Documents, and reference to a
Person in a particular capacity excludes such Person in any other
capacity or individually;
(iii) reference to any gender includes each other gender;
(iv) reference to any agreement (including any Operative
Document), document or instrument means such agreement, document or
instrument as amended or modified and in effect from time to time in
accordance with the terms thereof and, if applicable, the terms of the
other Operative Documents and reference to any promissory note
includes any promissory note which is an extension or renewal thereof
or a substitute or replacement therefor;
(v) reference to any Applicable Law means such Applicable
Law as amended, modified, codified, replaced or reenacted, in whole or
in part, and in effect from time to time, including rules and
regulations promulgated thereunder, and reference to any section or
other provision of any Applicable Law means that provision of such
Applicable Law from time to time in effect and constituting the
substantive amendment, modification, codification, replacement or
reenactment of such section or other provision;
(vi) reference in any Operative Document to any Article,
Section, Appendix, Schedule, or Exhibit means such Article or Section
thereof or Appendix, Schedule or Exhibit thereto;
(vii) "hereunder", "hereof", "hereto" and words of similar
import shall be deemed references to an Operative Document as a whole
and not to any particular Article, Section or other provision thereof;
2
(viii) "including" (and with correlative meaning "include")
means including without limiting the generality of any description
preceding such term;
(ix) "or" is not exclusive; and
(x) relative to the determination of any period of time,
"from" means "from and including" and "to" means "to but excluding".
B. Accounting Terms. In each Operative Document, unless
expressly otherwise provided, accounting terms shall be construed and
interpreted, and accounting determinations and computations shall be made, in
accordance with GAAP.
C. Conflict in Operative Documents. If there is any conflict
between any Operative Documents, such Operative Document shall be interpreted
and construed, if possible, so as to avoid or minimize such conflict but, to
the extent (and only to the extent) of such conflict, the Participation
Agreement shall prevail and control.
D. Legal Representation of the Parties. The Operative Documents
were negotiated by the parties with the benefit of legal representation and any
rule of construction or interpretation otherwise requiring the Operative
Document to be construed or interpreted against any party shall not apply to
any construction or interpretation hereof or thereof.
E. Defined Terms. Unless a clear contrary intention appears,
terms defined herein have the respective indicated meanings when used in each
Operative Document.
"Account" is defined in Section 3.10 of the Participation Agreement.
"Adjusted Percentage" is defined in Section 11.6 of the Participation
Agreement.
"Advance" means an advance of funds by the Lessor pursuant to Section
3 of the Participation Agreement which will be used to pay Property
Improvements Costs.
"Affiliate" means, when used with respect to any Person, any other
Person directly or indirectly Controlling or Controlled by or under direct or
indirect common control with such Person.
"After Tax Basis" means, with respect to any payment to be received,
the amount of such payment increased so that, after deduction of the amount of
all taxes required to be paid by the recipient calculated at the then maximum
marginal rates generally applicable to Persons of the same type as the
recipient (less any tax savings realized as a result of the payment of the
indemnified amount) with respect to the receipt by the recipient of such
amounts, such increased payment (as so reduced) is equal to the payment
otherwise required to be made.
2
3
"Agent" means ABN AMRO Bank N.V., as agent for the Participants
pursuant to the Participation Agreement, or any successor or additional agent
appointed in accordance with the terms of the Participation Agreement.
"Agent Financing Statements" means UCC financing statements
appropriately completed and executed for filing in the applicable jurisdiction
in order to perfect a security interest in favor of the Agent for the ratable
benefit of the Participants in the Equipment located on the Site.
"Alternate Base Rate" means the higher of (i) the rate of interest
most recently announced by the Agent as its reference, base or prime lending
rate, as the case may be, for Dollar loans in the United States and (ii) the
Federal Funds Rate (as in effect from time to time) plus one-half of one
percent (1/2%) per annum. Any change in the interest rate on an Advance
resulting from a change in the Alternate Base Rate shall become effective as of
the opening of business on the day on which such change in the Alternate Base
Rate is announced.
"Alternate Base Rate Advance" means a Type of Advance which bears
interest at the Alternate Base Rate in accordance with the provisions of
Section 13.6 of the Participation Agreement.
"Applicable Law" means all existing and future applicable laws, rules,
regulations (including Environmental Laws), statutes, treaties, codes,
ordinances, permits, certificates, covenants, restrictions, requirements,
orders and licenses of and interpretations by, any Governmental Authorities,
and applicable judgments, decrees, injunctions, writs, orders or like action of
any court, arbitrator or other administrative, judicial or quasi-judicial
tribunal or agency of competent jurisdiction (including those pertaining to
health, safety or the environment (including, without limitation, wetlands) and
those pertaining to the construction, use or occupancy of the Property) and any
restrictive covenant or deed restriction or easement affecting the Property.
"Applicable Margin" means, with respect to any Eurodollar Rate Advance
at any time of determination, so long as no Event of Default has occurred and
is continuing, a margin above the Eurodollar Rate as set forth opposite the
applicable Leverage Ratio of the Loan Parties:
Leverage Ratio of the Loan Parties Margin Above Eurodollar
Rate
Less than 1.0:1.0 .375%
1.0:1.0 or greater but less than 1.5:1.0 .500%
1.5:1.0 or greater but less than 2.0:1.0 .625%
2.0:1.0 or greater but less than 2.5:1.0 .750%
2.5:1.0 or greater but less than 3.0:1.0 1.00%
Greater than 3.0:1.0 1.25%
The initial Applicable Margin for Eurodollar Rate Advances shall be .500%.
Subject to the provisions of the immediately succeeding sentence, the grid
reflecting "Leverage Ratio of the
3
4
Loan Parties" and "Margin Above Euro Dollar Rate" set forth above shall be
deemed amended simultaneously with any amendment to the grid in Section
4.1(a)(ii) of the Credit Agreement and/or any amendment to the definition of
"Leverage Ratio Level" contained in the Credit Agreement, with any change to
either of such provisions of the Credit Agreement resulting in a corresponding
modification to the definition of Applicable Margin and the grid set forth
hereinabove to the extent necessary to give effect to any such amendments to
the Credit Agreement. Notwithstanding the foregoing sentence, in the event
that Credit Agricole Indosuez shall not consent to any such amendment to the
grid in Section 4.1(a)(ii) of the Credit Agreement and/or any such amendment to
the definition of "Leverage Ratio Level" contained in the Credit Agreement,
then the provisions of Section 11.4(b) of the Participation Agreement shall
apply and become operative.
"Appraisal" means, with respect to the Property, an appraisal,
prepared by a reputable appraiser approved by the Lessor, the Agent and the
Required Participants, which in the judgment of counsel to the Lessor, the
Agent and the Required Participants, complies with all of the provisions of the
Financial Institutions Reform, Recovery and Enforcement Act of 1989, as
amended, the rules and regulations adopted pursuant thereto, and all other
applicable Requirements of Law, which appraisal will (i) appraise the Fair
Market Sales Value of the Property as built in accordance with the Plans and
Specifications: on the projected Closing Dates; on the third anniversary of
each Closing Date; as of the commencement of each Renewal Term, if any; and at
the end of each Renewal Term, if any; and (ii) contain an estimate of the
useful life of the Equipment as of each such date, all in a form satisfactory
to the Lessor, the Agent and the Required Participants.
"Appurtenant Rights" means (i) all agreements, easements, rights of
way or use, rights of ingress or egress, privileges, appurtenances, tenements,
hereditaments and other rights and benefits at any time belonging or pertaining
to the Equipment, including, without limitation, the use of any streets, ways,
alleys, vaults or strips of land adjoining, abutting, adjacent or contiguous to
the Site and (ii) all permits, licenses and rights, whether or not of record,
appurtenant to the Site.
"Arranger" means ABN AMRO Bank N.V.
"Asset Termination Value" means, as of any date of determination, an
amount equal to the aggregate sum of the outstanding balance of all Advances,
all accrued and unpaid interest on the Advances, and all other amounts owing by
the Lessee under the Operative Documents, including, without limitation, any
amounts owing by the Lessee under Section 13.9 of the Participation Agreement.
"Assignment and Acceptance" is defined in Section 12.1(b) of the
Participation Agreement.
"Assignment of Lease" means the Assignment of Lease, dated as of the
Closing Date, from the Lessor to the Agent for the benefit of the Participants,
and consented to by the Lessee
4
5
pursuant to that certain Lessee's Consent, dated as of the First Closing Date
(the "Consent to Assignment") by the Lessee, as obligor, in favor of the Agent
for the benefit of the Participants, in each case in the respective forms set
forth in Exhibit H to the Participation Agreement.
"Assignment of Warranties" means each of the Assignment of Warranties,
dated the applicable Closing Date between the Lessee and the Lessor covering
the Equipment delivered on such Closing Date, in the form of Exhibit M to the
Participation Agreement.
"Available Commitments" means as to any Participant at any time, an
amount equal to the excess, if any, of (a) the amount of such Participant's
Commitment over (b) the aggregate amount of its Participation Interest in all
Advances made by the Lessor then outstanding.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy," as now or hereafter in effect.
"Basic Rent" means the sum of (i) that portion of the Property
Improvement Costs due on any Payment Date, if any, as set forth under the
heading "Principal Component of Basic Rent Applied to Tranche A" on Annex B to
the applicable Lease Supplement and (ii) the interest on Advances in respect of
any such Property Improvement Costs due on any Payment Date as set forth in
Section 3.7 of the Participation Agreement.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Xxxx of Sale" shall mean the xxxx of sale, dated the applicable
Closing Date, from the Lessee to the Lessor covering the Equipment delivered on
such Closing Date, substantially in the form of Exhibit L to the Participation
Agreement.
"Board" means the Board of Governors of the Federal Reserve System of
the United States (or any successor).
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banks in Chicago, Illinois, Pittsburgh,
Pennsylvania, Montpelier, Ohio, or (if interest is being determined by
reference to the Eurodollar Rate) London, England, are generally authorized or
obligated, by law or executive order, to close.
"Capital Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is, or is required to be, accounted for as a capital
lease on the balance sheet of that Person.
"Capitalized Lease Obligations" shall mean any amount payable with
respect to any Capital Lease or any lease of any tangible or intangible
property (whether real, personal or mixed), however denoted, which either (i)
is required by GAAP to be reflected as a liability on
5
6
the face of the balance sheet of the lessee thereunder or (ii) based on actual
circumstances existing and ascertainable, either at the commencement of the
term of such lease or at any subsequent time at which any property becomes
subject thereto, can reasonably be anticipated to impose on such lessee
substantially the same economic risks and burdens, having regard to such
lessee's obligations and the lessor's rights thereunder both during and at the
termination of such lease, as would be imposed on such lessee by any lease
which is required to be so reflected or by the ownership of the leased
property.
"Casualty" means any damage or destruction of all or any portion of
the Property as a result of a fire or other casualty.
"CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, 42 U.S.C. '' 9601 et seq., as amended.
"Certifying Party" is defined in Section 26.1 of the Lease.
"CII Guarantee" means the Guarantee executed by the Guarantor in favor
of the Agent, for the benefit of the Participants, in the form of Exhibit J to
the Participation Agreement.
"Claims" means any and all obligations, liabilities, losses, actions,
suits, judgments, penalties, fines, claims, demands, settlements, costs and
expenses (including, without limitation, reasonable legal fees and expenses) of
any nature whatsoever, including, as they relate to issues involving any
Environmental Law or Environmental Violation, those matters set forth in
Section 13.3 of the Participation Agreement.
"Closing Date" is defined in Section 3.1 of the Participation
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor statute thereto.
"Commitment" means (i) as to any Participant, the obligation of such
Participant to purchase a Participation Interest in Advances to be made by the
Lessor under the Participation Agreement, in an aggregate amount at any one
time outstanding not to exceed the amount set forth opposite such Participant's
name on Schedule I to the Participation Agreement, as such amount may be
reduced from time to time in accordance with the provisions of the
Participation Agreement, and (ii) as to the Lessor, the obligation of the
Lessor to make Advances from amounts received from the Participants pursuant to
the purchase of Participation Interests under the Participation Agreement.
"Commitment Fee" is defined in Section 4.1 of the Participation
Agreement.
"Commitment Percentage" means, as to any Participant at any time, the
percentage which such Participant's Commitment then constitutes of the
aggregate Commitments of the Participants (or, at any time after the
Commitments of the Participants shall have expired or
6
7
terminated, the percentage which the aggregate amount of such Participant's
Participant Balance then outstanding constitutes of the aggregate amount of the
Participant Balances then outstanding).
"Commitment Period" means the period from and including the date
hereof to but not including February 15, 1998, or such earlier date on which
the Commitments shall terminate as provided in the Operative Documents.
"Compliance Certificate" means a certificate duly executed by a
Responsible Officer of the Lessee in substantially the form of Exhibit K to the
Participation Agreement, together with such changes as the Required
Participants may request from time to time for purposes of monitoring the
Lessee's compliance with the terms of the Participation Agreement.
"Condemnation" means any condemnation, requisition, confiscation,
seizure or other taking or sale of the use, access, occupancy, easement rights
or title to the Property or any part thereof, wholly or partially (temporarily
or permanently), by or on account of any actual or threatened eminent domain
proceeding or other taking of action by any Person having the power of eminent
domain, or by or on account of an eviction by paramount title or any transfer
made in lieu of any such proceeding or action. A "Condemnation" shall be
deemed to have occurred on the earliest of the dates that use, occupancy or
title is taken.
"Confidential Information" is defined in Section 15.13 of the
Participation Agreement.
"Consent to Assignment" is defined in the definition of the term
"Assignment of Lease".
"Control" means (including the correlative meanings of the terms
"controlled by" and "under common control with"), as used with respect to any
Person, the possession directly or indirectly, of the power to direct or cause
the direction of the management policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
"Covered Liabilities" is defined in Section 11.6 of the Participation
Agreement.
"Credit Agreement" means the $100,000,000 Credit Agreement dated as of
August 30, 1996 among Chase Brass & Copper Company, Inc., as Borrower, the
Banks named therein and PNC Bank, National Association, as agent and other
agents named therein, under which ABN AMRO Bank N.V., acting through its
Pittsburgh Branch, is a Bank, as the same may be amended, modified or otherwise
supplemented from time to time. References in the Operative Documents to
Sections of the Credit Agreement are to such Sections as in effect on the
Closing Date.
"Default" means any event or condition which, with the lapse of time
or the giving of notice, or both, would constitute an Event of Default.
"Defaulted Amount" is defined in Section 11.7 of the Participation
Agreement.
7
8
"Defaulting Participant" means, at any time, any of the Participants
which at such time has (i) failed to make a payment when due to the Lessor
equal to its Commitment Percentage of an Advance, (ii) has been notified of
such failure by the Lessor, and (iii) has not cured such failure by making such
payment, together with interest at the Late Payment Rate.
"Designated Payment Date" means the Expiration Date, the Termination
Date or other date of termination of the Lease.
"Dollars" and "$" mean dollars in lawful currency of the United States
of America.
"End of the Term Report" is defined in Section 13.2 of the
Participation Agreement.
"Environmental Audit" means a Phase One environmental site assessment
(the scope and performance of which meets or exceeds ASTM Standard Practice
E1527-93 Standard Practice for Environmental Site Assessments: Phase One
Environmental Site Assessment Process) of the Property to be remarketed under
the Remarketing Option under the Lease.
"Environmental Law" means, whenever enacted or promulgated, any
Federal, state, county or local law, statute, ordinance, rule, regulation,
license, permit, authorization, approval, covenant, criteria, guideline,
administrative or court order, judgment, decree, injunction, code or
requirement or any agreement with a Governmental Authority:
(x) relating to pollution (or the cleanup, removal,
remediation or encapsulation thereof, or any other response thereto),
or the regulation or protection of human health, safety or the
environment, including air, water, vapor, surface water, groundwater,
drinking water, land (including surface or subsurface), plant, aquatic
and animal life, or
(y) concerning exposure to, or the use, containment,
storage, recycling, treatment, generation, discharge, emission,
Release or threatened Release, transportation, processing, handling,
labeling, containment, production, disposal or remediation of any
Hazardous Substance, Hazardous Condition or Hazardous Activity;
in each case as amended and as now or hereafter in effect, and any common law
or equitable doctrine (including, without limitation, injunctive relief and
tort doctrines such as negligence, nuisance, trespass and strict liability)
that may impose liability or obligations for injuries (whether personal or
property) or damages due to or threatened as a result of the presence of,
exposure to, or ingestion of, any Hazardous Substance, whether such common law
or equitable doctrine is now or hereafter recognized or developed. Applicable
laws include, but are not limited to, CERCLA; the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. Section 6901 et seq.; the Federal Water
Pollution Control Act, 33 U.S.C. Section 1251 et seq.; the Clean Air Act, 42
U.S.C. Section 7401 et seq.; the National Environmental Policy Act, 42 U.S.C
Section 4321; the Refuse Act, 33 U.S.C. Section 401 et seq.; the Hazardous
Materials Transportation Act of 1975, 49 U.S.C. Sections 1801-1812; the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Federal
8
9
Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Section 136 et seq.; the
Safe Drinking Water Act, 42 U.S.C. Section 300f et seq.; and the Occupational
Safety and Health Act of 1970, each as amended and as now or hereafter in
effect, and their state and local counterparts or equivalents, including any
regulations promulgated thereunder.
"Environmental Violation" means any activity, occurrence or condition
or omission that violates or results in non-compliance with any Environmental
Law.
"Equipment" means equipment, apparatus, furnishings, fittings and
personal property of every kind and nature whatsoever purchased, leased or
otherwise acquired by the Lessor using the proceeds of the Participation
Interests in the Advances now or subsequently attached to, contained in or used
or usable in any way in connection with any operation or letting of the
Property, including but without limiting the generality of the foregoing, all
chip dryers, air compressors and associated support equipment, billet heaters,
water treatment equipment, exhaust air handling systems, heat exchange systems,
water cooling towers, pick and place gantry apparatus, electrical substation
equipment, piping, conveyors, indoor air handling equipment, electronic
spectrometers, extrusion press container shells, electrical switchgear,
automatic C-hooks, substation replacements, extrusion press containers,
straight rod pickling equipment, filter press/dryer-sludge dryer equipment,
autobander upgrade equipment, furnace linings, natural gas heating units, spare
parts, mechanical scrap pushers, Xxxxxxx sideloader-material handling
equipment, five and six line saw upgrades, air compressor equipment, extrusion
press systems, billet heater spare parts and capital items, three-piece
extrusion press container assemblies, replacement of #9 substation, electrical
distribution panels, rod "buck" transport cart, extrusion press production
monitoring systems, pump sets, three-line rotary straighteners, billet lanes
modicon upgrades, extrusion press modicon upgrades, runout table hydraulic lift
systems, 953 Bobcats with grapple buckets, spare Coreco drums, plant
ventilation upgrades, Hyster fork lift trucks, waste water treatment system
upgrades, UPS System - battery back-ups, computers, printers, furniture and
furnishings, heating, electrical and mechanical equipment, lighting,
switchboards, plumbing, ventilation, air conditioning and air-cooling
apparatus, refrigerating, and incinerating equipment, escalators, elevators,
loading and unloading equipment and systems, cleaning systems, telephones,
communication systems (including satellite dishes and antennae), televisions,
computers, sprinkler systems and other fire prevention and extinguishing
apparatus and materials, security systems, motors, engines, machinery, pipes,
pumps, tanks, conduits, appliances, fittings and fixtures of every kind and
description, including all substitutions, repairs and replacements of any of
the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time or any successor Federal statute.
"ERISA Affiliate" means each entity required to be aggregated with the
Lessee pursuant to the requirements of Section 414(b) or (c) of the Code.
9
10
"ERISA Group" means the Lessee and all members of a controlled group
of corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Lessee, are treated as a single
employer under Section 414 of the Code.
"Eurocurrency Reserve Requirements" means, for any day as applied to
an Advance or any Participation Interest therein, the aggregate (without
duplication) of the rates (expressed as a decimal fraction) of reserve
requirements in effect on such day (including, without limitation, basic,
supplemental, marginal and emergency reserves under any regulations of the
Board or other Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for Eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board) maintained by a member bank of the Federal Reserve System.
"Eurodollar Rate" means, with respect to any Interest Period, the rate
per annum equal to the London InterBank offered rate for deposits in Dollars
for such Interest Period which appears on Telerate Page 3750 as of 11:00 a.m.,
London time, two (2) Business Days prior to the beginning of such Interest
Period.
"Eurodollar Rate Advance" means a Type of Advance which bears interest
at the Eurodollar Rate plus the Applicable Margin.
"Event of Default" means a Lease Event of Default or a Guarantee Event
of Default.
"Excepted Payments" means:
(a) all indemnity payments (including indemnity payments
made pursuant to Section 13 of the Participation Agreement) to which
the Lessor, or any of its Affiliates, agents, officers, directors or
employees is entitled;
(b) any amounts (other than Basic Rent or amounts payable by
Lessee pursuant to Section 16.2, Section 16.3 or Articles XVII, XX or
XXII of the Lease) payable under any Operative Document to reimburse
the Lessor or any of its respective Affiliates (including the
reasonable expenses of the Lessor incurred in connection with any such
payment) for performing or complying with any of the obligations of
the Lessee under and as permitted by any Operative Document, except to
the extent that one or more Participants have indemnified the Lessor
with respect thereto pursuant to the Participation Agreement;
(c) any amount payable to the Lessor by any Participant or
transferee permitted under the Operative Documents of the interest of
the Lessor as the purchase price of such Participant's Participation
Interest;
(d) any insurance proceeds (or payments with respect to
risks self-insured or policy deductibles) under liability policies
other than such proceeds or payments payable
10
11
to the Agent or the Lessor and assigned to the Agent, for the benefit
of the Participants under the Operative Documents;
(e) any insurance proceeds under policies maintained by the
Lessor;
(f) Transaction Expenses or other amounts or expenses paid
or payable to or for the benefit of the Lessor;
(g) all right, title and interest of the Lessor to the
Property or any portion thereof or any other property to the extent
any of the foregoing has been released from the Lien of the Assignment
of Lease pursuant to the terms thereof following the payment of the
Participant Balances of all of the Participants and all amounts due
and owing to the Agent; and
(h) any payments in respect of interest to the extent
attributable to payments referred to in clauses (a) through (g) above.
"Excess Investment" of the Lessor means the excess (if any) of the
outstanding Participant Balance of the Lessor in the Property from time to time
over the amount that would have been the Lessor's Participant Balance if, in
connection with all Advances actually made under the Participation Agreement,
all Participants had paid to the Lessor an amount equal to such Advances times
their respective Commitment Percentages, as such excess may be determined by
the Lessor. Absent the existence of a Defaulting Participant, a failure by
Participant to make a payment required by Section 3.4 of the Participation
Agreement or some other unexpected contingency, it is expected that the Lessor
will have no Excess Investment.
"Excess Proceeds" means the excess, if any, of the aggregate of all
awards, compensation or insurance proceeds payable in connection with a
Casualty or Condemnation over the Asset Termination Value paid by the Lessee
pursuant to Articles XIV and XV of the Lease with respect to such Casualty or
Condemnation.
"Excess Reimbursement" is defined in Section 11.6 of the Participation
Agreement.
"Exempt Environmental Conditions" means all of the conditions,
including the presence of Hazardous Substances, described on Schedule III to
the Participation Agreement and all environmental conditions, including the
presence of Hazardous Substances, discovered pursuant to or as a result of the
activities being conducted as described in paragraph 9 of Schedule III to the
Participation Agreement or any subsequent sampling and/or testing activities
conducted at the Site under, pursuant to or as contemplated by the Remediation
Agreement and any and all other environmental conditions, including the
presence of Hazardous Substances, at, on, under or adjacent to the Site, or
otherwise existing, the sampling, investigation, cleanup or other remedial
activity with respect to which is to be conducted in accordance with or as
contemplated by the terms of the Remediation Agreement. It is the intent that
the term Exempt Environmental
11
12
Conditions include all environmental conditions covered by or otherwise subject
to the Remediation Agreement, whether now existing or hereafter arising or
discovered.
"Expiration Date" means the later to occur of (i) the third
anniversary of the applicable Closing Date, (ii) the scheduled expiration of
the then current Renewal Term, if any or (iii) the Maturity Date.
"Expiration Date Purchase Obligation" means the Lessee's obligation,
pursuant to Section 20.2 of the Lease, to purchase all (but not less than all)
of the Property on the Expiration Date.
"Extension Request" is defined in Section 3.7(b) of the Participation
Agreement.
"Extension Response Date" is defined in Section 3.7(b) of the
Participation Agreement.
"Fair Market Sales Value" means, with respect to the Property, the
amount, which in any event shall not be less than zero, that would be paid in
cash in an arm's-length transaction between an informed and willing purchaser
and an informed and willing seller, neither of whom is under any compulsion to
purchase or sell, respectively, for the ownership of the Property. The Fair
Market Sales Value of the Property shall be determined based on the assumption
that, except for purposes of Article XVII of the Lease and Section 13.2 of the
Participation Agreement, the Property is in the condition and state of repair
required under Section 10.1 of the Lease and the Lessee is in compliance with
the other requirements of the Operative Documents.
"Federal Funds Effective Rate" means, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of quotations for such day on such transaction received by the
Agent from three Federal funds brokers of recognized standing selected by it.
"First Closing Date" is defined in Section 3.1 of the Participation
Agreement.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means, with respect to the Lessee, any period of twelve
consecutive fiscal months ending on the 31st day of December of any calendar
year; references to a Fiscal Year with a number corresponding to any calendar
year (e.g., the "1996 Fiscal Year") refer to the Fiscal Year ending on the 31st
day of December occurring during such calendar year.
"Fixtures" means all fixtures relating to the Equipment, including all
components thereof, located in or on the Equipment, together with all
replacements, modifications, alterations and additions thereto.
12
13
"Force Majeure Event" means with respect to the Property any event
(the existence or potentiality of which was not known and could not have been
discovered through the exercise of due diligence by the Lessee prior to the
Closing Date) beyond the control of the Construction Agent, other than a
Casualty or Condemnation, including, but not limited to, strikes, lockouts,
adverse soil conditions, acts of God, adverse weather conditions, inability to
obtain labor or materials, government activities, civil commotion and enemy
action; but excluding any event, cause or condition that results from any
event, cause or condition which could be remedied through the exercise of
commercially reasonable efforts or the commercially reasonable expenditure of
funds.
"Funding Office" means the office of each Participant identified on
Schedule II to the Participation Agreement as its Funding Office.
"Funding Request" is defined in Section 3.4 of the Participation
Agreement.
"GAAP" means United States generally accepted accounting principles
(including principles of consolidation), in effect from time to time.
"Governmental Action" means all permits, authorizations,
registrations, consents, approvals, waivers, exceptions, variances, orders,
judgments, written interpretations, decrees, licenses, exemptions,
publications, filings, notices to and declarations of or with, or required by,
any Governmental Authority, or required by any Applicable Law, and shall
include, without limitation, all environmental and operating permits and
licenses that are required for the full use, occupancy, zoning and operation of
the Property.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Gross Proceeds" is defined in Section 22.1(k) of the Lease.
"Guarantee" means the Guarantee executed by the Lessee, as guarantor,
in favor of the Agent, for the benefit of the Participants, in the form of
Exhibit I to the Participation Agreement.
"Guarantee Event of Default" is defined in the Guarantee and the CII
Guarantee.
"Guarantor" means Chase Industries Inc., a Delaware corporation.
"Hazardous Activity" means any activity, process, procedure or
undertaking that directly or indirectly (i) produces, generates or creates any
Hazardous Substance; (ii) causes or results in (or threatens to cause or result
in) the Release of any Hazardous Substance into the environment (including air,
water vapor, surface water, groundwater, drinking water, land (including
surface or subsurface), plant, aquatic and animal life); (iii) involves the
containment or storage of any
13
14
Hazardous Substance; or (iv) would be regulated as hazardous waste treatment,
storage or disposal within the meaning of any Environmental Law.
"Hazardous Condition" means any condition that violates or threatens
to violate, or that results in or threatens noncompliance with, any
Environmental Law.
"Hazardous Substance" means any of the following: (i) any petroleum or
petroleum product, explosives, radioactive materials, asbestos, formaldehyde,
polychlorinated biphenyls, lead and radon gas; (ii) any substance, material,
product, derivative, compound or mixture, mineral, chemical, waste, gas,
medical waste or pollutant, in each case whether naturally occurring, man-made
or the by-product of any process, that is toxic, harmful or hazardous to the
environment or human health or safety; or (iii) any substance, material,
product, derivative, compound or mixture, mineral, chemical, waste, gas,
medical waste or pollutant that would support the assertion of any claim under
any Environmental Law, whether or not defined as hazardous as such under any
Environmental Law.
"Hedge Breaking Fees" means, to the extent required pursuant to the
terms of any Interest Rate Protection Agreements, the Lessee shall pay all
reasonable costs, fees and expenses incurred by the Lessor, Agent, or
applicable Participant in connection with any unwinding, breach or termination
of any transactions arising under any Interest Rate Protection Agreements, all
as calculated pursuant to the applicable Interest Rate Protection Agreements.
"Hedge Transactions" shall have the meaning ascribed to such term in
Section 3.21 of the Participation Agreement.
"Impositions" means, except to the extent described in the following
sentence, any and all liabilities, losses, expenses, costs, charges and Liens
of any kind whatsoever for fees, taxes, levies, imposts, duties, charges,
assessments or withholdings ("Taxes") including (i) real and personal property
taxes, including personal property taxes on any property covered by the Lease
that is classified by Governmental Authorities as personal property, and real
estate or ad valorem taxes in the nature of property taxes; (ii) sales taxes,
use taxes and other similar taxes (including rent taxes and intangibles taxes);
(iii) any excise taxes; (iv) real estate transfer taxes, mortgage taxes,
conveyance taxes, stamp taxes and documentary recording taxes and fees; (v)
taxes that are or are in the nature of franchise, income, value added,
privilege and doing business taxes, license and registration fees; (vi)
assessments on the Property, including all assessments for public improvements
or benefits, whether or not such improvements are commenced or completed within
the Term; and (vii) any tax, Lien, assessment or charge asserted, imposed or
assessed by the PBGC or any governmental authority succeeding to or performing
functions similar to, the PBGC, and in each case all interest, additions to tax
and penalties thereon, which at any time prior to, during or with respect to
the Term or in respect of any period for which the Lessee shall be obligated to
pay Supplemental Rent, may be levied, assessed or imposed by any Governmental
Authority upon or with respect to (a) the Property or any part thereof or
interest therein; (b) the leasing, financing, refinancing, demolition,
construction, substitution, subleasing, assignment, control, condition,
occupancy, servicing, maintenance, repair, ownership,
14
15
possession, activity conducted on, delivery, insuring, use, operation,
improvement, transfer of title, return or other disposition of the Property or
any part thereof or interest therein; (c) the Participation Interests with
respect to the Property or any part thereof or interest therein; (d) the
rentals, receipts or earnings arising from the Property or any part thereof or
interest therein; (e) the Operative Documents, the performance thereof, or any
payment made or accrued pursuant thereto; (f) the income or other proceeds
received with respect to the Property or any part thereof or interest therein
upon the sale or disposition thereof; (g) any contract relating to the
construction, acquisition, installation or delivery of the Equipment or any
part thereof or interest therein; or (h) otherwise in connection with the
transactions contemplated by the Operative Documents.
The term "Imposition" shall not mean or include:
(i) Taxes and impositions (other than Taxes that are, or are
in the nature of, sales, use, transfer or property taxes) that are
imposed on an Indemnitee by the United States federal government that
are based on or measured by the net income (including taxes based on
capital gains and minimum taxes) of such Person; provided, that this
clause (i) shall not be interpreted to prevent a payment from being
made on an After Tax Basis if such payment is otherwise required to be
so made;
(ii) Taxes and impositions (other than Taxes that are, or are
in the nature of, sales, use, transfer or property taxes) that are
imposed by any state or local jurisdiction or taxing authority within
any state or local jurisdiction and that are franchise taxes or are
based upon or measured by the net income or net receipts except that
this clause (ii) shall not apply to (and thus shall not exclude) any
such net incremental Taxes imposed on an Indemnitee with respect to
the transactions contemplated by the Operative Documents by a state
(or any local taxing authority thereof or therein) where the Property
is located, possessed or used under the Lease by reason of the
transactions contemplated by the Operative Documents being
characterized by such state authority as something other than a loan;
provided, that this clause (ii) shall not be interpreted to prevent a
payment from being made on an After Tax Basis if such payment is
otherwise required to be so made (anything to the contrary
notwithstanding, nothing in the Operative Documents shall be construed
to impose upon Lessee any liability for Taxes imposed upon an
Indemnitee to the extent imposed with respect to any activities of
such Indemnitee other than under the transactions contemplated by the
Operative Documents);
(iii) any Tax or imposition to the extent, but only to such
extent, it relates to any act, event or omission that occurs after the
termination of the Lease and redelivery or sale of the Property in
accordance with the terms of the Lease (but not any Tax or imposition
that relates to any period prior to such termination and redelivery);
(iv) any Tax or imposition for so long as, but only for so
long as, it is being contested in accordance with the provisions of
Section 13.5 of the Participation Agreement; or
15
16
(v) any Taxes which are imposed on an Indemnitee as a result
of the gross negligence or wilful misconduct of such Indemnitee itself
(as opposed to gross negligence or wilful misconduct imputed to such
Indemnitee), but not Taxes imposed as a result of ordinary negligence
of such Indemnitee.
Any Tax excluded from the defined term "Imposition" in any one of the foregoing
clauses (i) through (v) shall not be construed as constituting an Imposition by
any provision of any other of the aforementioned clauses.
"Indebtedness" with respect to any Person means, as of the date of
determination thereof, (i) all items which in accordance with GAAP would be
included in determining total liabilities on the liability side of such
Person's balance sheet as at such date, (ii) all indebtedness of such Person or
any Person secured by any Lien with respect to any property or asset owned or
held by such Person, regardless of whether the indebtedness secured thereby
shall have been assumed by such Person, (iii) all indebtedness of other Persons
which such Person has directly or indirectly guaranteed (whether by discount or
otherwise), endorsed (otherwise than for collection or deposit in the ordinary
course of business), discounted with recourse to such Person or with respect to
which such Person is otherwise directly or indirectly liable, including,
without limitation, indebtedness in effect guaranteed by such Person through
any agreement (contingent or otherwise) to (A) purchase, repurchase or
otherwise acquire such Indebtedness or any security therefor, (B) provide funds
for the payment of discharge of such indebtedness or any other liability of the
obligor of such indebtedness (whether in the form of loans, advances, stock
purchases, capital contribution or otherwise), (C) maintain the solvency of any
balance sheet or other financial condition of the obligor of such indebtedness,
or (D) make payment for any products, materials or supplies or for any
transportation or services regardless of the non-delivery or non- furnishing
thereof, if in any such case the purpose or intent of such agreement is to
provide assurance that such indebtedness will be paid or discharged or that any
agreements relating thereto will be complied with or that the holders of such
indebtedness will be protected against loss in respect thereof, (iv) all of
such Person's Capitalized Lease Obligations, and (v) all actual or contingent
reimbursement obligations with respect to letters of credit issued for such
Person's account.
"Indemnitee" means the Lessor, the Agent, the Participants, their
respective Affiliates and their respective successors, assigns, directors,
shareholders, partners, officers, employees and agents.
"Insurance Requirements" means all terms and conditions of any
insurance policy required by the Lease to be maintained by the Lessee, and all
requirements of the issuer of any such policy.
"Interest Period" means, with respect to any Advance based upon the
Eurodollar Rate:
16
17
(a) initially, the period commencing on the funding with
respect to such Advance and ending three, six, nine or twelve months
thereafter, as selected by the Lessee in its Funding Request given
with respect thereto; and
(b) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such Advance and
ending three, six, nine or twelve months thereafter, as selected by
the Lessee by irrevocable notice to the Lessor and the Agent not less
than three Business Days prior to the last day of the then current
Interest Period with respect thereto; provided, if the Lessee shall
not have given such notice of the length of any succeeding Interest
Period or Interest Periods to follow such then current Interest Period
with respect to any Advance, the Lessee shall be deemed to have
selected an Interest period of three month's duration;
provided further, that, the foregoing provisions relating to Interest Periods
are subject to the following:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period that would otherwise extend beyond
the Expiration Date shall end on the Expiration Date;
(iii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(iv) the Lessee shall select Interest Periods so as not to
require a payment or prepayment of any Advance during an Interest
Period for such Advance.
"Interest Rate Protection Agreement" shall mean any interest rate
exchange, collar, cap or similar agreements providing interest rate protection,
entered into by the Lessee with a Participant, in accordance with Section
6.1(z) of the Participation Agreement or at anytime after the First Closing
Date.
"Investment Company Act" means the Investment Company Act of 1940, as
amended, together with the rules and regulations promulgated thereunder.
"Late Payment Rate" means (a) for each day (other than as set forth in
clause (b) of this definition) the Federal Funds Effective Rate or (b) for the
purpose of computing interest on past due payments for each day following the
fifth day after such payments first became due, a rate of
17
18
two percent (2%) per annum in excess of the Alternate Base Rate then in effect;
provided, the Late Payment Rate shall not, notwithstanding anything to the
contrary herein contained, exceed the maximum rate of interest permitted by
applicable law.
"Lease" means the Master Lease, dated as of the date hereof, between
the Lessor and the Lessee, together with all Lease Supplements thereto.
"Lease Balance" means, as of any date of determination, an amount
equal to the aggregate sum of the outstanding amount of the Advances, all
accrued and unpaid interest on the Advances, and all other amounts owing by the
Lessee under the Operative Documents.
"Lease Default" means any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute a Lease Event of
Default.
"Lease Event of Default" is defined in Section 17.1 of the Lease.
"Lease Supplement" means the Lease Supplement substantially in the
form of Exhibit A to the Lease together with all attachments and schedules
thereto, as such Lease Supplement may be supplemented, amended or modified from
time to time.
"Lessee" means Chase Brass & Copper Company, Inc., a Delaware
corporation, as lessee under the Lease, and its successors and assigns
expressly permitted under the Operative Documents.
"Lessor" means ABN AMRO Bank N.V., as Lessor under the Lease.
"Lessor Financing Statements" means UCC financing statements
appropriately completed and executed for filing in the applicable jurisdiction
in order to protect the Lessor's interest under the Lease to the extent the
Lease is a security agreement.
"Lessor Lien" means any Lien, true lease or sublease or disposition of
title arising as a result of (a) any claim against the Lessor not resulting
from the transactions contemplated by the Operative Documents, (b) any act or
omission of the Lessor which is not required by the Operative Documents or is
in violation of any of the terms of the Operative Documents, (c) any claim
against the Lessor with respect to Taxes or Transaction Expenses against which
Lessee is not required to indemnify the Lessor, pursuant to Sections 9 or 13.5
of the Participation Agreement or (d) any claim against the Lessor arising out
of any transfer by the Lessor of all or any portion of the interest of the
Lessor in the Property or the Operative Documents other than the transfer of
title to or possession of the Property by the Lessor pursuant to and in
accordance with the Lease or the Participation Agreement or pursuant to the
exercise of the remedies set forth in Article XVII of the Lease.
"Leverage Ratio of the Loan Parties" is defined in Section 1.1 of the
Credit Agreement.
18
19
"Lien" means any mortgage, deed of trust, pledge, security interest,
encumbrance, lien, easement, servitude or charge of any kind, including,
without limitation, any irrevocable license, conditional sale or other title
retention agreement, any lease in the nature thereof, or any other right of or
arrangement with any creditor to have its claim satisfied out of any specified
property or asset with the proceeds therefrom prior to the satisfaction of the
claims of the general creditors of the owner thereof, whether or not filed or
recorded, or the filing of, or agreement to execute as "debtor", any financing
or continuation statement under the Uniform Commercial Code of any jurisdiction
or any federal, state or local lien imposed pursuant to any Environmental Law.
"Marketing Period" means the period commencing on the date one hundred
eighty (180) days prior to the Expiration Date and ending on the Expiration
Date.
"Material", "Materially", and "Material Adverse Effect" mean material
to, or a material adverse effect on, (i) the consolidated financial position,
business or consolidated results of operations of the Lessee, (ii) the ability
of the Lessee to perform its obligations under any of the Operative Documents,
(iii) the value or condition of the Property or the Lessor's interests therein
or title thereto, or (iv) the ability of the Lessor, the Agent or any
Participant to enforce any of its rights or remedies under any Operative
Document.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $1,000,000.
"Maturity Date" means the earlier to occur of (i) the Expiration Date
or (ii) the sixth anniversary of the applicable Closing Date, as such date may
be accelerated or extended from time to time pursuant to Section 3.6 of the
Participation Agreement.
"Modifications" is defined in Section 11.1(a) of the Lease.
"Xxxxx'x" means Xxxxx'x Investors Services, Inc.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"Net Cure Proceeds" is defined in Section 11.8 of the Participation
Agreement.
"Net Proceeds" means all amounts paid in connection with any Casualty
or Condemnation, and all interest earned thereon, less the expense of claiming
and collecting such amounts, including all costs and expenses in connection
therewith for which the Agent or the Lessor is entitled to be reimbursed
pursuant to the Lease.
19
20
"Net Sales Proceeds" means the Gross Proceeds actually received by the
Lessor upon any sale by the Lessor of any part of the Property pursuant to
Articles XVII or XXII of the Lease, including, without limitation, (i) any such
payments made to the Lessor by the Lessee or any purchaser, (ii) any Shortfall
Amount paid to the Lessor by the Lessee, and (iii) any interest paid by the
Lessee to the Lessor on past due amounts under the Lease; but excluding any
payments applied by the Lessor to pay, or received by the Lessor as
reimbursement for, bona fide costs of the sale and further excluding any excess
net sales proceeds received from a purchaser that the Lessor is required to pay
over to the Lessee. In the event that for any reason whatsoever, including a
default by the Lessee, the Lessor does not sell the Property pursuant to the
Lease on the Designated Payment Date, "Net Sales Proceeds" shall nonetheless
include any Shortfall Amount actually received by the Lessor. Further, if the
Lessor does not sell the Property pursuant to the Lease, then "Net Sales
Proceeds" shall also include the excess, if any, of:
(A) all rents and all sales, condemnation and insurance
proceeds actually received by the Lessor from any sale or lease after
the Designated Payment Date of any interest in, or because of any
subsequent taking or damage to, the Property; over
(B) the sum of (i) all costs of collecting the rents and
proceeds described in the preceding clause (A) plus (ii) all ad
valorem taxes, insurance premiums and other costs of every kind
incurred by the Lessor with respect to the ownership, operation or
maintenance of the Property.
However, for purposes of computing any excess described in the preceding
sentence, costs described in clause (B) shall not include the Lessor's general
overhead costs or any costs for which the Participants have already paid the
Lessor their Commitment Percentages thereof as required by Section 11.6 of the
Participation Agreement.
"Non-Consenting Participant" means any Participant which has denied,
or is deemed to have denied, an Extension Request pursuant to Section 3.6 of
the Participation Agreement.
"Operative Documents" means the following:
(a) the Participation Agreement;
(b) the Lease and Lease Supplement;
(c) the Xxxx of Sale;
(d) the Assignment of Warranties;
(e) the Guarantee;
(f) the CII Guarantee;
(g) the Assignment of Lease and each Supplement to the
Assignment of Lease;
(h) the Consent to Assignment; and
(i) any Interest Rate Protection Agreements.
"Original Executed Counterpart" is defined in Section 31.8 of the
Lease.
20
21
"Overdue Rate" means, with respect to the Advances, fees or any other
payment due under the Operative Documents, the interest rate then applicable to
the Advances plus 2% per annum.
"Participant's Letter" is defined in Section 12.1(b) of the
Participation Agreement.
"Participation Agreement" means the Participation Agreement, dated as
of the date hereof, among the Lessee, the Lessor, the Participants and the
Agent.
"Participation Interest" means, as to each Participant, a
participation interest in the Lease and the right to receive that percentage of
the following payments actually received by the Lessor from or on behalf of the
Lessee as is set forth on Schedule I to the Participation Agreement, subject to
the provisions of Sections 3.10 - 3.20 and Section 11 of the Participation
Agreement: (i) Basic Rent, (ii) Supplemental Rent, (iii) Asset Termination
Value, (iv) Purchase Option Price, (v) Net Sales Proceeds, (vi) Residual Value
Guarantee Amount, (vii) the Shortfall Amount, and (viii) other payments in
respect of indemnities or pursuant to the Guarantee or the exercise of remedies
under the Operative Documents, excluding, however, (x) any Excepted Payments
and (y) as to a particular Participant, any payments on account of any Advances
and any Required Supplemental Payments (and interest thereon) for which the
Lessor has not received payment from such Participant of such Participant's
Commitment Percentage thereof. For example, if the Lessor elects to pay for
insurance required of the Lessee by the Lease because of the Lessee's failure
to obtain such insurance, the Lessor's receipt of reimbursement for the cost of
such insurance from the Lessee shall be included within "Participation
Interest" for purposes of this Agreement only if such Participant has paid to
the Lessor such Participant's Commitment Percentage of such cost pursuant to
Section 11.6 or Section 11.7 of the Participation Agreement.
"Participants" means ABN AMRO Bank N.V., Credit Agricole Indosuez and
each Person executing the Participation Agreement or a Participant's Letter as
a Participant and purchasing a Participating Interest in the transactions
contemplated by the Participation Agreement and the other Operative Documents.
"Participant Balance" means for each Participant the sum of its
Tranche A Participation Interest Balance and its Tranche B Participation
Interest Balance.
"Payment Date" means (a) any Scheduled Payment Date and (b) any date
on which interest is payable pursuant to Section 3.7(c) of the Participation
Agreement in connection with any prepayment of the Advances.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Liens" means:
21
22
(i) the respective rights and interests of the parties to the
Operative Documents as provided in the Operative Documents;
(ii) the rights of any sublessee or assignee under a sublease
or an assignment expressly permitted by the terms of the Lease;
(iii) Liens for Taxes that either are not yet due or are being
contested in accordance with the provisions of Section 13.1 of the
Lease;
(iv) Liens arising by operation of law, materialmen's,
mechanics', workers', repairmen's, employees', carriers',
warehousemen's and other like Liens in connection with any
Modifications or arising in the ordinary course of business for
amounts that either are not more than 60 days past due or are being
diligently contested in good faith by appropriate proceedings, so long
as such proceedings satisfy the conditions for the continuation of
proceedings to contest Taxes set forth in Section 13.1 of the Lease;
(v) Liens of any of the types referred to in clause (iv) above
that have been bonded for not less than the full amount in dispute (or
as to which other security arrangements satisfactory to the Lessor
have been made), which bonding (or arrangements) shall comply with
applicable Requirements of Law, and has effectively stayed any
execution or enforcement of such Liens;
(vi) Liens arising out of judgments or awards with respect to
which appeals or other proceedings for review are being prosecuted in
good faith and for the payment of which adequate reserves have been
provided as required by GAAP or other appropriate provisions have been
made, so long as such proceedings have the effect of staying the
execution of such judgments or awards and satisfy the conditions for
the continuation of proceedings to contest set forth in Section 13.1
of the Lease;
(vii) all encumbrances, exceptions, restrictions, easements,
rights of way, servitudes, encroachments and irregularities in title,
other than Liens which, in the reasonable assessment of the Agent, do
not materially impair the value of the Property or the use of the
Property for its intended purpose;
(viii) easements, rights of way and other encumbrances on
title to real property pursuant to Section 12.2 of the Lease; and
(ix) to the extent not duplicative of clauses (i-viii), Liens
on properties of the Lessee (other than Liens on the Property)
permitted under Section 8.2(e) of the Credit Agreement.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
governmental authority or any other entity.
22
23
"Plan" means at any time an employee pension benefit plan (other than
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group for employees
of any member of the ERISA Group or (ii) has at any time within the preceding
five years been maintained, or contributed to, by any Person which was at such
time a member of the ERISA Group for employees of any Person which was at such
time a member of the ERISA Group.
"Plans and Specifications" means, with respect to the Property, the
plans and specifications for the Equipment to be installed and delivered on the
Site.
"Project" means the extrusion press facility and related capital
equipment, all as more particularly described in Schedule V to the
Participation Agreement.
"Property" means all of the Equipment and Fixtures at any time located
on or under the Site financed by an Advance, and those items of property
becoming property of the Lessor under Article XI of the Lease.
"Property Balance" means, with respect to the Property, an amount
equal to the outstanding amount of the Advances and all accrued and unpaid
interest thereon.
"Property Improvements Cost" means, with respect to the Property, the
amount funded by the Lessor under the Participation Agreement to the Lessee for
reimbursement of the cost of acquiring any Equipment, Fixtures or Modifications
in accordance with the Operative Documents, as set forth in the Funding
Requests therefor.
"Purchase Notice" is defined in Section 20.1 of the Lease.
"Purchase Option" is defined in Section 20.1 of the Lease.
"Purchase Option Price" is defined in Section 20.1 of the Lease.
"Release" means any release, pumping, pouring, emptying, injecting,
escaping, leaching, dumping, seepage, spill, leak, flow, discharge, disposal or
emission of a Hazardous Substance.
"Remarketing Option" is defined in Section 22.1 of the Lease.
"Remediation Agreement" means the Remediation Agreement, entered into
as of August 24, 1990, by and among BP Exploration (Alaska) Inc., The Standard
Oil Company, Chase Industries, Inc. (then named Chase Brass & Copper Holding
Company) and Lessee (then named CBC Acquisition Corporation), as such agreement
is in effect on the First Closing Date.
"Renewal Option" is defined in Section 21.1(a) of the Lease.
23
24
"Renewal Request" is defined in Section 21.1(a) of the Lease.
"Renewal Response Date" is defined in Section 21.1(a) of the Lease.
"Renewal Term" means either of the three one-year periods which
immediately follow the third anniversary of the applicable Closing Date with
respect to which Lessee has exercised its Renewal Option pursuant to Section
21.1 of the Lease.
"Rent" means, collectively, the Basic Rent and the Supplemental Rent,
in each case payable under the Lease.
"Replacement Participant" is defined in Section 3.6(c) of the
Participation Agreement.
"Requesting Party" is defined in Section 26.1 of the Lease.
"Required Modification" is defined in Section 11.1(a) of the Lease.
"Required Participants" means, at any time, Participants the
Commitment Percentages of which aggregate at least 66 2/3%.
"Required Supplemental Payments" shall mean all payments of
Supplemental Rent that the Lessee has agreed to pay the Lessor under the Lease
and the other Operative Agreements, other than (i) Commitment Fees, (ii) the
Underwriting Fee, (iii) Excepted Payments, (iv) Residual Value Guarantee
Amount, (v) Asset Termination Value, (vi) Purchase Option Price and (vii)
interest accruing on any amount due from the Lessee, which amount is itself not
a Required Supplemental Payment under this definition. For example, if the
Lessor incurs attorneys' fees because of a breach by the Lessee of the Lease,
the payments required of the Lessee by the Lease as reimbursement for such fees
shall constitute a Required Supplemental Payment.
"Requirement of Law" means all Federal, state, county, municipal and
other governmental statutes, laws, rules, orders, regulations, ordinances,
judgments, decrees and injunctions affecting the Property, the Improvements or
the demolition, construction, use or alteration thereof, whether now or
hereafter enacted and in force, including any that require repairs,
modifications or alterations in or to the Property or in any way limit the use
and enjoyment thereof (including all building, zoning and fire codes and the
Americans with Disabilities Act of 1990, 42 U.S.C. Section 1201 et. seq. and
any other similar Federal, state or local laws or ordinances and the
regulations promulgated thereunder) and any that may relate to environmental
requirements (including all Environmental Laws), and all permits, certificates
of occupancy, licenses, authorizations and regulations relating thereto, and
all covenants, agreements, restrictions and encumbrances contained in any
instruments which are either of record or known to the Lessee affecting the
Property, the Appurtenant Rights and any easements, licenses or other
agreements entered into pursuant to Section 12.2 of the Lease.
24
25
"Residual Value Guarantee Amount" shall mean as of the Maturity Date
the amount set forth on Annex B to the applicable Lease Supplement.
"Response Actions" means remove, removal, remedy, and remedial action
as those terms are defined in CERCLA, 42 U.S.C. ' 9601.
"Responsible Officer" means the President, any Vice President or the
Treasurer of the Lessee or the Guarantor, as applicable.
"Responsible Officer's Certificate" means a certificate signed by any
Responsible Officer, which certificate shall certify as true and correct the
subject matter being certified to in such certificate.
"Scheduled Payment Date" means (a) as to any Advance having an
Interest Period of three months, the last day of such Interest Period, (b) as
to any Advance having an Interest Period longer than three months, each day
which is a monthly anniversary of the first day of such Interest Period and the
last day of such Interest Period and (c) as to any Alternate Basic Rate
Advance, the last day of each fiscal quarter of the Lessee.
"Second Closing Date" is defined in Section 3.1 of the Participation
Agreement.
"Secured Party" shall mean the Agent, the Participants and any
Participant which is a counterparty to an Interest Rate Protection Agreement.
"Securities Act" means the Securities Act of 1933, as amended,
together with the rules and regulations promulgated thereunder.
"Security Documents" means the collective reference to the Assignment
of Lease and all other security documents hereafter delivered to the Agent
granting a Lien on any asset or assets of any Person to secure the obligations
and liabilities of the Lessor to the Agent and the Participants under the
Participation Agreement or of the Lessee to the Lessor under the Lease.
"Shortfall Amount" means, as of the Expiration Date, the amount that
the Asset Termination Value will exceed the aggregate of the Gross Proceeds and
the Residual Value Guarantee Amount upon the completion of a sale of the
Property pursuant to Article XXII of the Lease.
"Significant Casualty" means (i) a Casualty that results in an
insurance settlement on the basis of a total loss, or a constructive or
compromised total loss, or (ii) a Casualty that in the reasonable, good faith
judgment of the Lessee (as evidenced by a Responsible Officer's Certificate
delivered to the Lessor pursuant to Section 16.1 of the Lease) either (a)
renders the Property unsuitable for continued use as a commercial property of
the type of such property immediately prior to such Casualty or (b) is so
substantial in nature that restoration of the
25
26
Property to substantially its condition as existed immediately prior to such
Casualty would be impracticable or impossible.
"Significant Condemnation" means (i) a Condemnation that involves a
taking of Lessor's entire title to the related Land Interest, (ii) a
Condemnation that results in loss of possession of the Property by the Lessee
for a period in excess of one hundred eighty (180) consecutive days, or (iii) a
Condemnation that in the reasonable, good faith judgment of the Lessee (as
evidenced by a Responsible Officer's Certificate delivered to the Lessor
pursuant to Section 16.1 of the Lease) either (a) renders the Property
unsuitable for continued use as commercial of the type of such property
immediately prior to such Condemnation or (b) is such that restoration of the
Property to substantially its condition as existed immediately prior to such
Condemnation would be impracticable or impossible.
"Significant Event" means (i) a Significant Casualty, (ii) a
Significant Condemnation or (iii) an event where the restoration of the
Property subject to a Casualty or Condemnation shall not be completed prior to
the earlier of (A) the 180th day prior to the Expiration Date or (B) twelve
(12) months following the occurrence of such Casualty or Condemnation.
"Site" means the land on which the Project is to be located, as
described in Schedule IV to the Participation Agreement.
"Standard & Poor's" means Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies, Inc.
"Subsidiary" means, as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such corporation,
partnership or other entity are at the time owned, or the management of which
is otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Persons. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Lessee.
"Supplemental Rent" means all amounts, liabilities and obligations
(other than Basic Rent) which Lessee assumes or agrees to pay to Lessor or any
other Person under the Lease, or under any of the other Operative Documents,
including, without limitation, payments of the Residual Value Guarantee Amount,
the Shortfall Amount and payments pursuant to Sections 16.2, 16.3 or 17.6 of
the Lease and Articles XX and XXII of the Lease.
"Supplement to Assignment of Lease" means the Supplement substantially
in the form of Exhibit A to the Assignment of Lease together with all
attachments and schedules thereto, as such Supplement to Assignment of Lease
may be supplemented, amended or modified from time to time.
26
27
"Taxes" is defined in the definition of Impositions.
"Term" is defined in Section 2.3 of the Lease.
"Termination Date" is defined in Section 15.1(d), 16.2(a) and 17.2(e)
of the Lease.
"Termination Notice" is defined in Section 16.1 of the Lease.
"Tranche A Participants" means those Participants purchasing a Tranche
A Participation Interest in the Advances and maintaining a Tranche A
Participation Interest Commitment.
"Tranche A Participation Interest" means, as to each Tranche A
Participant, such Participant's Tranche A Participation Interest Commitment
Percentage, multiplied by the outstanding amount of all Advances as to which
such Participant has funded its Tranche A Participation Interest Commitment
Percentage under Section 3.4 of the Participation Agreement.
"Tranche A Participation Interest Balance" means for each Tranche A
Participant as of any date of determination an amount equal to the sum of such
Participant's Tranche A Participation Interest in all Advances less any
payments (or portions thereof) of Basic Rent comprising principal of the
Advances allocated in accordance with Section 3.11 of the Participation
Agreement, together with all accrued and unpaid interest thereon and all other
amounts owed to such Tranche A Participant under the Operative Documents.
"Tranche A Participation Interest Commitment" is defined in Section
3.5 of the Participation Agreement.
"Tranche A Participation Interest Commitment Percentage" means (i)
with respect to all Participants in the aggregate, 85.55% of the aggregate
Commitments, and (ii) with respect to each Tranche A Participant, the
percentage of the aggregate Commitments set forth after such Participant's
Tranche A Participation Interest Commitment in Schedule I to the Participation
Agreement.
"Tranche B Participants" means those Participants purchasing a Tranche
B Participation Interest in the Advances and maintaining a Tranche B
Participation Interest Commitment.
"Tranche B Participation Interest" means, as to each Tranche B
Participant, such Tranche B Participant's Tranche B Participation Interest
Commitment multiplied by the outstanding amount of all Advances as to which
such Participant has funded its Tranche B Participation Interest Commitment
Percentage under Section 3.4 of the Participation Agreement.
"Tranche B Participation Interest Balance" means for each Tranche B
Participant as of any date of determination an amount equal to the sum of such
Participant's Tranche B Participation Interest in all Advances, together with
all accrued and unpaid interest thereon and all other amounts owed to such
Tranche B Participant under the Operative Documents.
27
28
"Tranche B Participation Interest Commitment" is defined in Section
3.5 of the Participation Agreement.
"Tranche B Participation Interest Commitment Percentage" means (i)
with respect to all Participants in the aggregate, 14.45% of the aggregate
Commitments, and (ii) with respect to each Tranche B Participant, the
percentage of the aggregate Commitments set forth after such Participant's
Tranche B Participation Interest Commitment in Schedule I to the Participation
Agreement.
"Transaction Expenses" means all costs and expenses incurred in
connection with the preparation, execution and delivery of the Operative
Documents and the transactions contemplated by the Operative Documents
including without limitation:
(a) the reasonable fees (up to the amount separately agreed
to by the Agent and the Lessee), out-of-pocket expenses and
disbursements of counsel for each of the Lessor, the Participants and
the Agent, in negotiating the terms of the Operative Documents and the
other transaction documents, preparing for the closing under, and
rendering opinions in connection with, such transactions and in
rendering other services customary for counsel representing parties to
transactions of the types involved in the transactions contemplated by
the Operative Documents;
(b) the reasonable fees, out-of-pocket expenses and
disbursements of counsel, and (without duplication) the reasonable
allocated cost of internal legal services and all disbursements of
internal counsel of each of the Lessor, the Participants and the Agent
in connection with (1) any amendment, supplement, waiver or consent
with respect to any Operative Documents requested or approved by the
Lessee and (2) any enforcement of any rights or remedies against the
Lessee in respect of the Operative Documents;
(c) any other reasonable fees, out-of-pocket expenses,
disbursements or costs of any party to the Operative Documents or any
of the other transaction documents;
(d) any and all search costs, Taxes and fees incurred in
recording, registering or filing any Operative Document or any other
transaction document, any deed, declaration, mortgage, security
agreement, notice or financing statement with any public office,
registry or governmental agency in connection with the transactions
contemplated by the Operative Documents;
(e) any title fees, premiums and escrow costs and other
expenses relating to title insurance and title certificates and the
closing contemplated by the Operative Documents;
(f) all expenses relating to all Environmental Audits; and
28
29
(g) the fees of American Appraisal Associates, Inc. for
their services rendered in connection with delivering the Appraisal
required by Section 6.1(d) of the Participation Agreement.
"Type" of Advance refers to the manner of computing an interest charge
on a particular Advance. The Types of Advances are Alternate Base Rate
Advances and Eurodollar Rate Advances.
"UCC Financing Statements" means collectively the Agent Financing
Statements and the Lessor Financing Statements.
"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all benefits under such
Plan exceeds (ii) the fair market value of all Plan assets allocable to such
benefits (excluding any accrued but unpaid contributions), all determined as of
the then most recent valuation date for such Plan, but only to the extent that
such excess represents a potential liability of a member of the ERISA Group to
the PBGC or any other Person under Title IV of ERISA.
"Underwriting Fee" is defined in Section 4.2 of the Participation
Agreement.
"Uniform Commercial Code" and "UCC" means the Uniform Commercial Code
as in effect in any applicable jurisdiction.
"Voluntary Retention of the Property" means any election made by the
Lessor to keep the Property pursuant to the Lease when the Lessee has made and
caused to be made all payments to the Lessor required by the Operative
Documents (including the Shortfall Amount).
29
