Exhibit 10.7
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CREDIT AGREEMENT
dated as of
December 7, 1999,
among
XXXXXX ACQUISITION HOLDINGS, INC.,
XXXXXX MEDICAL TECHNOLOGY, INC.,
THE LENDERS PARTY HERETO,
THE CHASE MANHATTAN BANK,
as Administrative Agent, Collateral Agent and Issuing Bank,
CHASE MANHATTAN BANK, PARIS BRANCH,
as French Lender,
and
BANK OF AMERICA, N.A.,
as Syndication Agent
------------------------
CHASE SECURITIES INC.
and
BANC OF AMERICA SECURITIES LLC,
as Co-Lead Arrangers and Joint Book Managers
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS.............................................................................1
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS...................................................23
SECTION 1.03. TERMS GENERALLY..........................................................................24
SECTION 1.04. ACCOUNTING TERMS; GAAP...................................................................24
SECTION 1.05. FOREIGN CURRENCY TRANSLATION.............................................................24
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS..............................................................................25
SECTION 2.02. LOANS AND BORROWINGS.....................................................................25
SECTION 2.03. REQUESTS FOR BORROWINGS..................................................................26
SECTION 2.04. LETTERS OF CREDIT........................................................................26
SECTION 2.05. FUNDING OF BORROWINGS....................................................................35
SECTION 2.06. INTEREST ELECTIONS.......................................................................35
SECTION 2.07. TERMINATION AND REDUCTION OF COMMITMENTS.................................................37
SECTION 2.08. REPAYMENT OF LOANS; EVIDENCE OF DEBT.....................................................38
SECTION 2.09. AMORTIZATION OF TERM LOANS...............................................................38
SECTION 2.10. PREPAYMENT OF LOANS......................................................................39
SECTION 2.11. FEES.....................................................................................40
SECTION 2.12. INTEREST.................................................................................42
SECTION 2.13. ALTERNATE RATE OF INTEREST...............................................................42
SECTION 2.14. INCREASED COSTS..........................................................................43
SECTION 2.15. BREAK FUNDING PAYMENTS...................................................................44
SECTION 2.16. TAXES....................................................................................44
SECTION 2.17. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SET-OFFS..............................46
SECTION 2.18. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS...........................................47
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. ORGANIZATION; POWERS.....................................................................48
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY............................................................48
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS.....................................................49
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE..........................................49
SECTION 3.05. PROPERTIES...............................................................................50
SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS.....................................................50
SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS......................................................51
SECTION 3.08. INVESTMENT AND HOLDING COMPANY STATUS....................................................51
SECTION 3.09. TAXES....................................................................................51
SECTION 3.10. ERISA....................................................................................51
PAGE
SECTION 3.11. DISCLOSURE...............................................................................51
SECTION 3.12. SUBSIDIARIES.............................................................................52
SECTION 3.13. INSURANCE................................................................................52
SECTION 3.14. LABOR MATTERS............................................................................52
SECTION 3.15. SOLVENCY.................................................................................52
SECTION 3.16. WMT SECURITY DOCUMENTS...................................................................53
SECTION 3.17. MERGER AND ACQUISITION DOCUMENTS.........................................................53
SECTION 3.18. YEAR 2000 MATTERS........................................................................54
ARTICLE IV
CONDITIONS
SECTION 4.01. EFFECTIVE DATE...........................................................................54
SECTION 4.02. TERM CREDIT EVENT........................................................................56
SECTION 4.03. STANDBY LC CREDIT EVENT..................................................................58
SECTION 4.04. OTHER CREDIT EVENTS......................................................................59
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION...............................................60
SECTION 5.02. NOTICES OF MATERIAL EVENTS...............................................................62
SECTION 5.03. INFORMATION REGARDING COLLATERAL.........................................................62
SECTION 5.04. EXISTENCE; CONDUCT OF BUSINESS...........................................................62
SECTION 5.05. PAYMENT OF OBLIGATIONS...................................................................62
SECTION 5.06. MAINTENANCE OF PROPERTIES................................................................63
SECTION 5.07. INSURANCE................................................................................63
SECTION 5.08. CASUALTY AND CONDEMNATION................................................................63
SECTION 5.09. BOOKS AND RECORDS; INSPECTION AND AUDIT RIGHTS...........................................64
SECTION 5.10. COMPLIANCE WITH LAWS.....................................................................64
SECTION 5.11. USE OF PROCEEDS AND LETTERS OF CREDIT....................................................64
SECTION 5.12. ADDITIONAL SUBSIDIARIES..................................................................64
SECTION 5.13. FURTHER ASSURANCES.......................................................................65
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. INDEBTEDNESS; CERTAIN EQUITY SECURITIES..................................................66
SECTION 6.02. LIENS....................................................................................68
SECTION 6.03. FUNDAMENTAL CHANGES......................................................................68
SECTION 6.04. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND ACQUISITIONS................................69
SECTION 6.05. ASSET SALES..............................................................................70
SECTION 6.06. HEDGING AGREEMENTS.......................................................................71
SECTION 6.07. RESTRICTED PAYMENTS; CERTAIN PAYMENTS OF INDEBTEDNESS....................................71
SECTION 6.08. TRANSACTIONS WITH AFFILIATES.............................................................72
SECTION 6.09. RESTRICTIVE AGREEMENTS...................................................................72
SECTION 6.10. AMENDMENT OF MATERIAL DOCUMENTS..........................................................73
SECTION 6.11. CAPITAL EXPENDITURES.....................................................................73
SECTION 6.12. LEVERAGE RATIO...........................................................................73
SECTION 6.13. CONSOLIDATED CASH INTEREST EXPENSE COVERAGE RATIO........................................74
SECTION 6.14. CONSOLIDATED FIXED CHARGE COVERAGE RATIO.................................................74
SECTION 6.15. FISCAL YEAR..............................................................................74
PAGE
ARTICLE VII
EVENTS OF DEFAULT.......................................................................................74
ARTICLE VIII
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT ......................................................77
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES..................................................................................79
SECTION 9.02. WAIVERS; AMENDMENTS......................................................................79
SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER.......................................................80
SECTION 9.04. SUCCESSORS AND ASSIGNS...................................................................82
SECTION 9.05. SURVIVAL.................................................................................84
SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS.................................................84
SECTION 9.07. SEVERABILITY.............................................................................84
SECTION 9.08. RIGHT OF SETOFF..........................................................................84
SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS...............................85
SECTION 9.10. WAIVER OF JURY TRIAL.....................................................................85
SECTION 9.11. HEADINGS.................................................................................86
SECTION 9.12. CONFIDENTIALITY..........................................................................86
SECTION 9.13. INTEREST RATE LIMITATION.................................................................87
SCHEDULES:
Schedule 2.01 Commitments
Schedule 3.04(e) Material Adverse Change
Schedule 3.05 Real Property
Schedule 3.06 Disclosed Matters
Schedule 3.12 Subsidiaries
Schedule 3.13 Insurance
Schedule 3.16(d) Mortgaged Properties and Filing Offices
Schedule 6.01 Existing Indebtedness
Schedule 6.02 Existing Liens
Schedule 6.04 Investments
Schedule 6.09 Existing Restrictions
EXHIBITS:
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Cremascoli Credit Agreement
Exhibit D Form of Indemnity, Subrogation and Contribution
Agreement
Exhibit E Form of Mortgage
Exhibit F Form of Parent Guarantee Agreement
Exhibit G Form of Pledge Agreement
Exhibit H Form of Security Agreement
Exhibit I Form of Subsidiary Guarantee Agreement
Exhibit J Form of Standby Letter of Credit
Exhibit K-1 Form of Opinion of Borrower's Counsel on Effective
Date
Exhibit K-2 Form of Opinion of Borrower's Counsel on Term
Funding Date
Exhibit L Form of Opinion of Local Counsel
CREDIT AGREEMENT dated as of December 7,
1999, among XXXXXX ACQUISITION HOLDINGS, INC., a
Delaware corporation, XXXXXX MEDICAL TECHNOLOGY,
INC., a Delaware corporation, the LENDERS from time
to time party hereto, THE CHASE MANHATTAN BANK, a New
York banking corporation, as administrative agent and
collateral agent for such lenders and as issuing
bank, CHASE MANHATTAN BANK, PARIS BRANCH, as the
local facilities lender, and BANK OF AMERICA, N.A., a
national banking association, as syndication agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"ADJUSTED LIBO RATE" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest
Period MULTIPLIED by (b) the Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" means The Chase Manhattan Bank, in its capacity
as administrative agent for the Lenders hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in
the form of Exhibit A hereto or such other form as may be supplied by the
Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"AGENTS" means the Administrative Agent, the Collateral Agent and the
Syndication Agent.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day PLUS 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"APPLICABLE STANDBY LC PERCENTAGE" means, with respect to any Standby
LC Lender, the percentage of the total Standby LC Commitments represented by
such Lender's Standby LC Commitment. If the Standby LC Commitments have
terminated or expired, the Applicable Standby LC Percentages shall be determined
based upon the Standby LC Commitments most recently in effect, giving effect to
any assignments.
"APPLICABLE TRADE LC PERCENTAGE" means, with respect to any Revolving
Lender, the percentage of the total Revolving Commitments represented by such
Lender's Revolving Commitment. If the Revolving Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"APPLICABLE RATE" means, for any day with respect to any ABR Loan or
Eurodollar Loan, or with respect to the commitment fees payable hereunder, as
the case may be, the applicable rate per annum set forth below under the caption
"Eurodollar Spread", "ABR Spread" or "Commitment Fee Rate", as the case may be,
based upon the Leverage Ratio as of the most recent determination date; PROVIDED
that until the delivery by the Borrower to the Administrative Agent of the
financial statements required by Section 5.01 for the period ending December 31,
2000, the "Applicable Rate" shall be the applicable rate per annum set forth
below in Category 2:
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EURODOLLAR COMMITMENT FEE
LEVERAGE RATIO ABR SPREAD SPREAD PERCENTAGE
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CATEGORY 1 2.50% 3.50% 0.50%
Greater than or equal to
3.75 to 1.00
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CATEGORY 2 2.25% 3.25% 0.50%
Greater than or equal to
3.00 to 1.00 but less than
3.75 to 1.00
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CATEGORY 3 2.00% 3.00% 0.50%
Greater than or equal to
2.50 to 1.00 but less than
3.00 to 1.00
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CATEGORY 4 1.75% 2.75% 0.50%
Greater than or equal to
2.25 to 1.00 but less than
2.50 to 1.00
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CATEGORY 5 1.50% 2.50% 0.50%
Greater than or equal to
2.00 to 1.00 but less than
2.25 to 1.00
-----------------------------------------------------------------------------------------------------------
CATEGORY 6 1.25% 2.25% 0.50%
Less than 2.00 to 1.00
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3
For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of
the end of each fiscal quarter of Holdings' fiscal year based upon the
consolidated financial statements of Holdings delivered pursuant to Section
5.01(a) or (b) and (ii) each change in the Applicable Rate resulting from a
change in the Leverage Ratio shall be effective during the period commencing on
and including the date of delivery to the Administrative Agent of such
consolidated financial statements indicating such change and ending on the date
immediately preceding the effective date of the next such change; PROVIDED that
the Leverage Ratio shall be deemed to be in Category 1 (A) at any time that an
Event of Default described in paragraph (a) or (b) of Article VII has occurred
and is continuing or (B) if the Borrower fails to deliver the consolidated
financial statements required to be delivered by it pursuant to Section 5.01(a)
or (b), during the period from the expiration of the time for delivery thereof
until such consolidated financial statements are delivered.
"APPROVED FUND" means, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is managed
or advised by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit B or any other form approved by the Administrative Agent.
"BOARD" means the Board of Governors of the Federal Reserve System of
the United States of America.
"BORROWER" means Xxxxxx Medical Technology, Inc., a Delaware
corporation.
"BORROWING" means Loans of the same Class and Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect.
"BORROWING REQUEST" means a request by the Borrower for a Borrowing in
accordance with Section 2.03.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; PROVIDED that, when used in connection with a Eurodollar Loan,
the term "BUSINESS DAY" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"CAPITAL EXPENDITURES" means, for any period, (a) the additions to
property, plant and equipment and other capital expenditures of the Borrower and
the Subsidiaries that are (or would be) set forth in a consolidated statement of
cash flows of the Borrower for such period prepared in accordance with GAAP and
(b) Capital Lease Obligations incurred by the Borrower and the Subsidiaries
during such period.
4
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"CHANGE IN CONTROL" means any of the following events:
(a) prior to the initial Public Equity Offering by Holdings of
its common stock, (i) the Permitted Investors shall fail to own and
have the right to vote shares representing at least 51% of the
aggregate ordinary voting power represented by the issued and
outstanding capital stock of Holdings, (ii) the Sponsor and its
Affiliates shall fail to own and have the right to vote shares
representing at least 45% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of Holdings or
(iii) the Permitted Investors shall not have the right to elect at
least a majority of the board of directors of Holdings;
(b) after the initial Public Equity Offering of Holdings, (i)
the Permitted Investors shall fail to own and have the right to vote
shares representing more than 35% of the aggregate ordinary voting
power represented by the issued and outstanding capital stock of
Holdings, (ii) the Sponsor and its Affiliates shall fail to own and
have the right to vote shares representing more than 30% of the
aggregate ordinary voting power represented by the issued and
outstanding capital stock of Holdings or (iii) any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the
rules of the Securities and Exchange Commission thereunder as in effect
on the Effective Date) other than the Permitted Investors becomes,
directly or indirectly, the beneficial owner of a percentage of shares
representing the aggregate ordinary voting power represented by the
issued and outstanding capital stock of Holdings that is greater than
the percentage of such shares owned by the Permitted Investors;
(c) at any time, (i) occupation of a majority of the seats
(other than vacant seats) on the board of directors of Holdings or the
Borrower by Persons who were neither (x) nominated by the board of
directors of Holdings or the Borrower, as the case may be, nor (y)
appointed by directors so nominated or (ii) the occurrence of any
change in control or similar event (however denominated) with respect
to Holdings or the Borrower under and as defined in any other indenture
or agreement in respect of Material Indebtedness to which Holdings, the
Borrower or a Subsidiary is a party; or
(d) Holdings shall cease to directly own 100% of the issued
and outstanding capital stock of the Borrower.
"CHANGE IN LAW" means (a) the adoption of any law, rule or regulation
after the Effective Date, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the Effective Date or (c) compliance by any Lender or the Issuing Bank (or, for
purposes of Section 2.14(b), by any lending office of such Lender or by such
Lender's or the Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the Effective Date.
5
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Term Loans and, when used in reference to any Commitment, refers to whether
such Commitment is a Revolving Commitment or Term Commitment.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"CO-INVESTOR" means the Vertical Fund Associates, L.P., a Delaware
limited partnership.
"COLLATERAL" means the WMT Collateral and the Cremascoli Collateral.
"COLLATERAL AGENT" means The Chase Manhattan Bank, in its capacity as
collateral agent for the Lenders hereunder.
"COMMITMENT" means a Revolving Commitment, Term Commitment, Standby LC
Commitment or any combination thereof (as the context requires).
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the interest
expense, whether paid or payable in cash, in kind or otherwise (including the
interest component in respect of Capital Lease Obligations) by Holdings, the
Borrower and the Subsidiaries during such period, determined on a consolidated
basis in accordance with GAAP; PROVIDED, HOWEVER, that Consolidated Interest
Expense for each fiscal quarter of the fiscal year ended December 31, 1999,
shall be deemed to be $1,925,000 or, upon consummation of the Cremascoli
Acquisition, $2,975,000.
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period, the
interest expense, to the extent paid or payable in cash (including the interest
component in respect of Capital Lease Obligations) by Holdings, the Borrower and
the Subsidiaries during such period, determined on a consolidated basis in
accordance with GAAP; PROVIDED, HOWEVER, that Consolidated Cash Interest Expense
for each fiscal quarter of the fiscal year ended December 31, 1999, shall be
deemed to be $1,375,000 or, upon consummation of the Cremascoli Acquisition,
$1,950,000.
"CONSOLIDATED EBITDA" means, for any period, Consolidated Net Income
for such period, PLUS, without duplication and to the extent deducted from
revenues in determining Consolidated Net Income for such period, the sum of (a)
the aggregate amount of Consolidated Interest Expense for such period, (b) the
aggregate amount of income tax expense for such period, (c) all amounts
attributable to depreciation and amortization for such period, (d) other
non-cash charges during such period (except any non-cash charge that requires an
accrual of a cash reserve for anticipated cash charges for any period) and (e)
non-recurring charges incurred in connection with the Transactions, MINUS, to
the extent added in determining such Consolidated Net Income, (i) any interest
income and (ii) any non-cash income or gain. Notwithstanding the foregoing,
Consolidated EBITDA for the fiscal quarters ended March 31, 1999, June 30, 1999,
and September 30, 1999, shall be deemed to be $5,674,000, $5,036,000 and
$4,146,000 or, following the Cremascoli Acquisition, $7,397,000, $6,498,000, and
$4,801,000, respectively. In addition, Consolidated EBITDA for the fiscal
quarter ended December 31, 1999, shall be adjusted as follows: (x) increased or
decreased by any variance reflected in reported results or arising in the
production of inventory (PROVIDED that any such increase shall not exceed
$800,000) and (y) increased by any charge in connection with excess
6
and obsolete inventory to the extent such charge exceeds 4.5% of revenues for
such fiscal quarter (PROVIDED that any such increase shall not exceed
$1,000,000).
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum of (a)
Consolidated Cash Interest Expense for such period, (b) Capital Expenditures for
such period and (c) scheduled principal payments of long-term Indebtedness
(whether or not made) during such period; PROVIDED, HOWEVER, that any Capital
Expenditure financed with Investor Capital shall not be included in the
calculation of Consolidated Fixed Charges to the extent that Investor Capital
was used to finance such Capital Expenditure.
"CONSOLIDATED NET INCOME" means, for any period, net income or loss of
Holdings, the Borrower and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; PROVIDED that there shall be
excluded from such net income or loss (a) the income or loss of any Person in
which any other Person (other than Holdings, the Borrower or any of the
Subsidiaries or any director holding qualifying shares in compliance with
applicable law) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to Holdings, the Borrower or any
of the Subsidiaries by such Person during such period, (b) the income (or loss)
of any Person (other than Cremascoli and its subsidiaries) accrued prior to the
date it becomes a Subsidiary or is merged into or consolidated with Holdings,
the Borrower or any of the Subsidiaries or the date that Person's assets are
acquired by Holdings, the Borrower or any of the Subsidiaries, (c) any after-tax
gains or losses attributable to sales of assets out of the ordinary course of
business and (d) to the extent not included in clauses (a) through (c) above,
any extraordinary or unusual and non-recurring gains or non-cash extraordinary
or unusual and non-recurring losses.
"CONTINUING SHAREHOLDERS" means California Public Employees' Retirement
System and its Affiliates and Princes Gate Investors, L.P. and its Affiliates.
"CONTROL" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
"CREMASCOLI" means Cremascoli Ortho Holding SA, a societe anonyme
organized under laws of the Republic of France.
"CREMASCOLI ACQUISITION" means the acquisition of all of the
outstanding capital stock of Cremascoli by Cremascoli Holdings pursuant to the
Cremascoli Acquisition Documents.
"CREMASCOLI ACQUISITION DOCUMENTS" means the Agreement for the Sale and
Purchase of Cremascoli Ortho Holding S.A., to be entered into between the
sellers listed therein and Holdings and any other documents provided, or to be
provided, in connection therewith.
"CREMASCOLI COLLATERAL" means any and all "Collateral" as defined in
any applicable Cremascoli Loan Document.
"CREMASCOLI CREDIT AGREEMENT" means the Credit Agreement, substantially
in the form of Exhibit C, among Cremascoli, the French Lender and the
Administrative Agent.
7
"CREMASCOLI EQUITY FINANCING" means (a) the contribution by the
Permitted Investors to Holdings of an aggregate amount of not less than
$32,420,000 in cash in exchange for additional common stock of Holdings,
Preferred Stock or Investor Subordinated Debt, (b) the contribution by Holdings
to the Borrower of (i) an aggregate amount of not less than $32,420,000 in cash
and (ii) Preferred Stock with an aggregate liquidation value of $1,500,000, (c)
the contribution of the assets described in clause (b) to Cremascoli Holdings
for subordinated Indebtedness and all of the outstanding capital stock of
Cremascoli Holdings and (d) the contribution by Cremascoli Holdings to
Cremascoli of not less than $17,500,000 in cash.
"CREMASCOLI EXISTING DEBT" means all Indebtedness of Cremascoli and its
subsidiaries outstanding on the Standby LC Issuance Date.
"CREMASCOLI FINANCING TRANSACTIONS" means the execution, delivery and
performance by each Cremascoli Loan Party of the Cremascoli Loan Documents to
which it is to be a party, the borrowing of Cremascoli Loans, the use of the
proceeds thereof and the issuance of letters of credit thereunder.
"CREMASCOLI HOLDINGS" means a direct wholly owned subsidiary of the
Borrower to be organized under the laws of the Republic of France. Following the
Cremascoli Acquisition, Cremascoli will be a direct wholly owned subsidiary of
Cremascoli Holdings.
"CREMASCOLI LOAN DOCUMENTS" means the Cremascoli Credit Agreement and
any guarantee or security document executed by or on behalf of any Cremascoli
Loan Party and/or the French Lender in connection therewith.
"CREMASCOLI LOAN PARTIES" means Cremascoli Holdings, Cremascoli and any
subsidiary of Cremascoli that provides a Guarantee of the obligations of
Cremascoli under the Cremascoli Credit Agreement.
"CREMASCOLI LOANS" means the "Loans" as such term is defined in the
Cremascoli Credit Agreement.
"CREMASCOLI MANAGEMENT INVESTORS" means each of the following
individuals and such individual's Family Group: Xxxx Xxxxxxxx, Xxxxx Spurzen,
Xxxxxxxx Xxxxxxxxxx, Xxxxxxx Xxxxxxxxxx, Xxxxxx Xxxxxxxxxx, Xxxx Xxx, Xxxxxxxx
Xxxxxxx and Xxxxx Xxxxxxx.
"CREMASCOLI TERM BORROWINGS" means the "Term Borrowings" as such term
is defined in the Cremascoli Credit Agreement.
"CREMASCOLI TERM LOANS" means the "Term Loans" as such term is defined
in the Cremascoli Credit Agreement.
"CREMASCOLI TRANSACTIONS" means the Cremascoli Acquisition, the
Cremascoli Equity Financing and the Cremascoli Financing Transactions.
"DEFAULT" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
8
"DISCLOSED MATTERS" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"DOLLARS" or "$" refers to lawful money of the United States of
America.
"DOMESTIC SUBSIDIARY" means any Subsidiary, other than Cremascoli
Holdings and its subsidiaries, that is not a Foreign Subsidiary.
"EFFECTIVE DATE" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02). In order
to renew the representations and warranties contained in Article III upon the
consummation of the Cremascoli Acquisition, on and after the Standby LC Issuance
Date, the "Effective Date", as used in Article III (other than Section 3.10),
means the Standby LC Issuance Date.
"ENVIRONMENTAL LAWS" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to public health.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of Holdings, the Borrower or any Subsidiary directly
or indirectly resulting from or based upon (a) violation of any Environmental
Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator appointed by or on behalf of the PBGC of any notice relating to an
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of
any liability with respect to the withdrawal or partial
9
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"EURO" means the lawful money of the participating member states of the
European Union that adopt a single currency in accordance with the Treaty on
European Union signed February 7, 1992, and any legislative measures of the
European Union for the introduction of, changeover to or operation of the euro
in one or more member states.
"EURODOLLAR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"EVENT OF DEFAULT" has the meaning assigned to such term in Article
VII.
"EXCESS CASH FLOW" means, for any fiscal year, the excess of: (a) the
sum, without duplication, of (i) Consolidated EBITDA for such fiscal year, (ii)
extraordinary cash income of Holdings, the Borrower and the Subsidiaries, if
any, during such fiscal year and not included in Consolidated EBITDA and (iii)
the decrease, if any, in Net Working Capital from the beginning to the end of
such fiscal year, LESS (b) the sum, without duplication, of (i) the amount of
any cash income taxes payable by Holdings, the Borrower and the Subsidiaries
with respect to such fiscal year, (ii) Consolidated Cash Interest Expense for
such fiscal year, (iii) Capital Expenditures made in cash in accordance with
Section 6.11 during such fiscal year (other than any Capital Expenditure
financed with Investor Capital or other Indebtedness), (iv) scheduled principal
repayments of Indebtedness made by Holdings, the Borrower and the Subsidiaries
during such fiscal year, (v) optional and mandatory prepayments of the principal
of Loans during such fiscal year, but only to the extent that such prepayments
by their terms cannot be reborrowed or redrawn and do not occur in connection
with a refinancing of all or any portion of the Loans, (vi) extraordinary or
unusual and non-recurring cash expenses and losses paid or incurred by Holdings,
the Borrower and the Subsidiaries, if any, during such fiscal year and not
included in Consolidated EBITDA, (vii) the increase, if any, in Net Working
Capital from the beginning to the end of such fiscal year; PROVIDED that, to the
extent otherwise included therein, (x) the Net Proceeds of any Prepayment Event
shall be excluded from the calculation of Excess Cash Flow to the extent used to
prepay the Term Loans in accordance with Section 2.10(b) and (y) any cash used
to make an investment permitted by Section 6.04(j) shall be excluded from the
calculation of Excess Cash Flow.
"EXCLUDED TAXES" means, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income, capital,
branch profits, franchise or other similar taxes imposed on (or measured by) its
net or gross income, capital or profits by the United States of America or any
state or political subdivision thereof, or by the jurisdiction or any state or
political subdivision thereof under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located (PROVIDED, HOWEVER,
that no Lender shall be deemed to be located in any jurisdiction solely as a
result of receiving any payment under or taking any action related to any Loan),
and (b) in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Borrower under Section 2.18(b)), any withholding tax (i) that
10
is in effect and would apply to amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement (or designates a new
lending office) except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of such new lending office (or
assignment), to receive additional amounts from the Borrower with respect to any
withholding tax pursuant to Section 2.16(a), or (ii) that is attributable to
such Foreign Lender's failure to comply with 2.16(e).
"FAMILY GROUP" means, for any individual, such individual's estate,
spouse, ancestors and descendants of grandparents (in each case, whether
natural, by marriage or adopted) and any trust solely for the benefit of such
individual or such individual's spouse, ancestors and descendants of
grandparents (in each case, whether natural, by marriage or adopted).
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"FINANCIAL OFFICER", of any Person, means the chief financial officer,
principal accounting officer, treasurer or controller of such Person.
"FOREIGN LENDER" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"FOREIGN SUBSIDIARY" means any Subsidiary, other than Cremascoli
Holdings and its subsidiaries, that is organized under the laws of a
jurisdiction other than the United States of America or any State thereof or the
District of Columbia.
"FRENCH LENDER" means Chase Manhattan Bank, Paris Branch, in its
capacity as Local Agent and Initial Lender under the Cremascoli Credit
Agreement. Following the assignment (if any) of Cremascoli Loans by the French
Lender, the term "French Lender" shall mean, as the context requires, either the
"Required Lenders" or the "Local Agent" as such terms are defined in the
Cremascoli Credit Agreement.
"GAAP" means generally accepted accounting principles in the United
States of America.
"GOVERNMENTAL AUTHORITY" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any
11
Indebtedness or other obligation of any other Person (the "PRIMARY OBLIGOR") in
any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation or
to purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation
of the payment thereof, (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or (d)
as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation; PROVIDED that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. For the purpose of determining compliance with
Sections 6.01(a)(iv) and 6.04(e), the liability of any guarantor with respect to
any Guarantee of Indebtedness shall be the lesser of (i) the stated amount of
such Indebtedness (PLUS any interest, fees and expenses to the extent not paid
when due) and (ii) the maximum amount of liability of the guarantor permitted by
the terms of such Guarantee.
"GUARANTEE AGREEMENTS" means the Parent Guarantee Agreement and the
Subsidiary Guarantee Agreement.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all substances or wastes of any nature that are regulated, restricted
or subject to any prohibition by, under or pursuant to any Environmental Law as
a "hazardous waste", "hazardous substance", "toxic pollutant", "special waste",
"dangerous waste", "infectious waste", "medical waste", "hazardous air
pollutant", "hazardous water pollutant", specifically including any pesticide,
petroleum or petroleum distillate, asbestos or asbestos-containing materials,
polychlorinated biphenyls and radon gas.
"HEDGING AGREEMENT" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"HOLDINGS" means Xxxxxx Acquisition Holdings, Inc., a Delaware
corporation.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (e) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed (it being understood that the
amount of such Indebtedness shall be deemed to be the lesser of (x) the stated
amount of such Indebtedness and (y) the fair market value of the assets subject
to such Lien), (f) all Guarantees by such Person of Indebtedness of others, (g)
all Capital Lease Obligations of such Person, (h) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit
and letters of guaranty and (i) all obligations, contingent or otherwise, of
such Person in respect of bankers' acceptances. The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
12
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT" means the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit D, among the Borrower, the Subsidiary Loan Parties and the Collateral
Agent.
"INFORMATION MEMORANDUM" means, collectively, the Confidential
Information Memorandum dated October 1999 relating to the Borrower and the WMT
Transactions and the Confidential Information Memorandum dated November 1999
relating to the Borrower and the Cremascoli Transactions.
"INTEREST ELECTION REQUEST" means a request by the Borrower to convert
or continue a Revolving Borrowing or Term Borrowing in accordance with Section
2.06.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December and (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period.
"INTEREST PERIOD" means with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect; PROVIDED, that (a) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (b) any Interest Period
that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter shall
be the effective date of the most recent conversion or continuation of such
Borrowing.
"INVESTOR CAPITAL" means the Net Proceeds to Holdings from (a) all
Investor Equity Contributions and (b) the issuance of Investor Subordinated
Debt.
"INVESTOR EQUITY CONTRIBUTION" means any cash contribution (other than
the WMT Equity Financing or the Cremascoli Equity Financing) by the Permitted
Investors to Holdings in exchange for capital stock (other than Redeemable
Preferred Stock or any other capital stock that, by its terms, requires the
payment of dividends in cash) of Holdings.
"INVESTOR SUBORDINATED DEBT" means any Indebtedness of Holdings issued
to the Permitted Investors, which Indebtedness shall be subordinated to the
obligations of the Borrower and Holdings under any Loan Document on terms
satisfactory to the Required Lenders (including that the
13
stated maturity or redemption date of any such Investor Subordinated Debt shall
not occur before the date that is one year after the final maturity of any Loan
and that no portion of any such Investor Subordinated Debt shall be subject to
mandatory cash payments of any kind (whether of principal, cash interest or
otherwise) while any obligations of the Borrower hereunder are outstanding).
"ISSUING BANK" means The Chase Manhattan Bank, in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.04(c). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
"ITALIAN RECEIVABLES SUBSIDIARY" means any subsidiary of Cremascoli
organized under the laws of the Republic of Italy.
"ITALIAN RECEIVABLES PROGRAM" means the sale of accounts receivable by
the Italian Receivables Subsidiary in a manner and scale consistent with past
practice and any amendment, modification or replacement of such program;
PROVIDED that any such amendment, modification or replacement shall not be
materially adverse to the interests of the Lenders and shall also be subject to
the prior written approval of the Administrative Agent.
"LC DISBURSEMENT" means a Trade LC Disbursement or a Standby LC
Disbursement.
"LENDERS" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"LETTER OF CREDIT" means any Trade Letter of Credit or Standby Letter
of Credit.
"LEVERAGE RATIO" means, on any date, the ratio of (a) Total Debt as of
such date to (b) Consolidated EBITDA for the period of four consecutive fiscal
quarters of Holdings most recently ended on or prior to such date.
"LIBO RATE" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO RATE" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or
14
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"LOAN DOCUMENTS" means the WMT Loan Documents and, following the
Cremascoli Acquisition, the Cremascoli Loan Documents.
"LOAN PARTIES" means the WMT Loan Parties and, following the Cremascoli
Acquisition, the Cremascoli Loan Parties.
"LOANS" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"MANAGEMENT INVESTORS" means each of the following individuals and such
individual's Family Group: Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxx X. Xxxx,
Xxxx X. Stamp, Xxxxx X. Xxxx, Xxxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxxx, Xxxxx X.
Xxxxx and Xxxxxxx X. Xxxxxxx.
"MATERIAL ADVERSE EFFECT" means a material adverse effect, after taking
into account any applicable insurance and any applicable indemnification (to the
extent the provider of such insurance or indemnification has the financial
ability to support its obligations with respect thereto and is not disputing or
refusing to acknowledge such obligations), on (a) the business, operations,
property, condition (financial or otherwise) or prospects of Holdings, the
Borrower and the Subsidiaries taken as a whole, (b) the ability of the Loan
Parties to perform any of their material obligations under the Loan Documents or
(c) the rights of or benefits available to the Lenders or the French Lender
under the Loan Documents taken as a whole. Failure to close the Cremascoli
Acquisition shall not be deemed to be, or result in, a Material Adverse Effect.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans,
Letters of Credit and the WMT Existing Notes), or obligations in respect of one
or more Hedging Agreements, of any one or more of Holdings, the Borrower and the
Subsidiaries in an aggregate principal amount exceeding $2,000,000. For purposes
of determining Material Indebtedness, the "principal amount" of the obligations
of Holdings, the Borrower or any Subsidiary in respect of any Hedging Agreement
at any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that Holdings, the Borrower or such Subsidiary would be required to
pay if such Hedging Agreement were terminated at such time.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MORTGAGE" means a mortgage, deed of trust, assignment of leases and
rents or other security document, substantially in the form of Exhibit E,
granting a Lien on any Mortgaged Property to secure the Obligations. Each
Mortgage shall be reasonably satisfactory in form and substance to the
Collateral Agent.
"MORTGAGED PROPERTY" means, initially, each parcel of real property and
the improvements thereto owned or, to the extent specified by the Administrative
Agent, leased by a WMT Loan Party on the Effective Date, and includes each other
parcel of real property and improvements thereto with respect to which a
Mortgage is granted pursuant to Section 5.12 or 5.13.
15
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"NET PROCEEDS" means, with respect to any event (a) the cash proceeds
received in respect of such event including (i) any cash received in respect of
any non-cash proceeds, but only as and when received, (ii) in the case of a
casualty, insurance proceeds, and (iii) in the case of a condemnation or similar
event, condemnation awards and similar payments, net of (b) the sum of (i) all
reasonable fees and out-of-pocket expenses (including appraisals, and legal,
title and recording tax expenses and commissions) paid by Holdings, the Borrower
and the Subsidiaries to third parties (other than Affiliates) in connection with
such event, (ii) in the case of a sale or other disposition of an asset
(including pursuant to a casualty or condemnation), the amount of all payments
required to be made by Holdings, the Borrower and the Subsidiaries as a result
of such event to repay Indebtedness (other than Loans) secured by such asset or
otherwise subject to mandatory prepayment as a result of such event, (iii) the
amount of all taxes (including sales and value added taxes and including taxes
payable in connection with the transfer of funds to Holdings, the Borrower or
any of the Subsidiaries in connection with a prepayment pursuant to this
Agreement) paid (or reasonably estimated to be payable) by Holdings, the
Borrower and the Subsidiaries, and (iv) the amount of any reserves (whether or
not contained in an escrow or other similar arrangements) established by
Holdings, the Borrower and the Subsidiaries to fund contingent liabilities
reasonably estimated to be payable, in each case during the year that such event
occurred or the next succeeding year and that are directly attributable to such
event (as determined reasonably and in good faith by the chief financial officer
of the Borrower).
"NET WORKING CAPITAL" means, at any date, (a) the sum of (i) accounts
receivable and (ii) inventory (including finished goods, work in process and raw
materials and supplies, but excluding any applicable inventory reserves) of the
Borrower and the Subsidiaries as of such date MINUS (b) accounts payable of the
Borrower and the Subsidiaries as of such date, all determined on a consolidated
basis in accordance with GAAP. Net Working Capital at any date may be a positive
or negative number. Net Working Capital increases when it becomes more positive
or less negative and decreases when it becomes less positive or more negative.
"OBLIGATIONS" has the meaning assigned to such term in the Security
Agreement.
"OTHER TAXES" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any WMT Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, any WMT Loan Document;
PROVIDED, HOWEVER, in no event shall the term "Other Taxes" include Excluded
Taxes.
"PARENT GUARANTEE AGREEMENT" means the Parent Guarantee Agreement,
substantially in the form of Exhibit F, made by Holdings in favor of the
Collateral Agent for the benefit of the Secured Parties.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"PERFECTION CERTIFICATE" means a certificate in the form of Annex 1 to
the Security Agreement or any other form approved by the Collateral Agent.
16
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for taxes, assessments and other
governmental charges that are not yet due or, if due, are (i) not
delinquent or (ii) are being contested in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 45 days or are being contested in compliance with
Section 5.05;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations (or to obtain
letters of credit for the foregoing purposes);
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII;
(f) easements, licenses, covenants, zoning and building
restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do
not secure any monetary obligations and do not materially detract from
the value of the affected property or interfere with the ordinary
conduct of business of the Borrower or any Subsidiary; and
(g) liens arising by virtue of any statutory or common law
provision relating to banker's liens, rights of setoff or similar
rights as to deposit accounts or other funds maintained with a creditor
depository institution;
PROVIDED that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness (other than a lien specified in paragraph (g) of this
definition).
"PERMITTED INVESTORS" means the Sponsor and its Affiliates,
the Co-Investor, the Continuing Shareholders, the Management Investors and,
following the Cremascoli Acquisition, the Cremascoli Management Investors.
"PERMITTED INVESTMENTS" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency or instrumentality thereof to the extent
such obligations are backed by the full faith and credit of the United
States of America), in each case maturing within one year from the date
of acquisition thereof;
17
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from
Xxxxx'x;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above; and
(e) shares of money market mutual or similar funds having
assets in excess of $500,000,000 and which invest substantially all of
their assets in investments satisfying the requirements of clauses (a)
through (d) of this definition.
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"PLEDGE AGREEMENT" means the Pledge Agreement, substantially in the
form of Exhibit G, among Holdings, the Borrower, the Subsidiary Loan Parties and
the Collateral Agent for the benefit of the Secured Parties.
"PREPAYMENT EVENT" means:
(a) any sale, transfer or other disposition (including
pursuant to a sale and leaseback transaction) of any property or asset
of Holdings, the Borrower or any Subsidiary, other than dispositions
permitted under Section 6.05;
(b) any issuance by Holdings, the Borrower or any Subsidiary
of any equity interest in Holdings, the Borrower or any Subsidiary or
the receipt by Holdings, the Borrower or any Subsidiary of any capital
contribution, in each case, after the Effective Date, other than (i)
any such issuance of equity interests to, or receipt of any such
capital contribution from, Holdings, the Borrower or a Subsidiary, (ii)
any issuance of directors' qualifying shares, (iii) Investor Equity
Contributions, (iv) the Cremascoli Equity Financing and (v) other
issuances by Holdings of its common stock or Preferred Stock resulting
in aggregate Net Proceeds not exceeding $1,000,000 during any fiscal
year of Holdings;
18
(c) any casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar proceeding
of, any property or asset of Holdings, the Borrower or any Subsidiary,
but only to the extent that the Net Proceeds therefrom have not been
applied to acquire other Productive Assets within 270 days after such
event; or
(d) the incurrence by Holdings, the Borrower or any Subsidiary
of any Indebtedness of the type described in clause (a) or (b) of the
definition thereof, other than Indebtedness permitted by Section 6.01.
"PRIME RATE" means the rate of interest per annum publicly announced
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"PRODUCTIVE ASSETS" means assets of a kind used or usable by the
Borrower and the Subsidiaries in the Borrower's business or any Related
Business.
"PUBLIC EQUITY OFFERING" means an underwritten primary public offering
of the common stock of Holdings pursuant to an effective registration statement
filed with the Securities and Exchange Commission in accordance with the
Securities Act of 1933, as amended (whether alone or in conjunction with a
secondary public offering).
"REDEEMABLE PREFERRED STOCK" means preferred stock that by its terms
(or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
that is one year after the Term Maturity Date; PROVIDED that preferred stock
that is redeemable at the option of the holder in connection with a change of
control or a sale of substantially all of the issuer's assets shall not, solely
by virtue of such provisions, be deemed to be "Redeemable Preferred Stock".
"REGISTER" has the meaning set forth in Section 9.04.
"RELATED BUSINESS" means any business which is the same as or related,
ancillary or complimentary to the business of Holdings, the Borrower or any
Subsidiary on the Effective Date or, following the Cremascoli Acquisition,
Cremascoli and its subsidiaries on the Standby LC Issuance Date, as reasonably
determined by the board of directors of Holdings or the Borrower.
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, trustees, employees,
agents and advisors of such Person and such Person's Affiliates.
"REQUIRED LENDERS" means, at any time, Lenders having Revolving
Exposures, Term Loans and unused Commitments representing at least a majority of
the sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"RESTRICTED PAYMENT" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any shares of any class
of capital stock of Holdings, the
19
Borrower or any Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancelation or termination of any
such shares of capital stock of Holdings, the Borrower or any Subsidiary or any
option, warrant or other right to acquire any such shares of capital stock of
Holdings, the Borrower or any Subsidiary.
"REVOLVING AVAILABILITY PERIOD" means the period from and including the
Effective Date to but excluding the earlier of the Revolving Maturity Date and
the date of termination of the Revolving Commitments.
"REVOLVING COMMITMENT" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Trade Letters of Credit hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's Revolving Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.07 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount of
each Lender's Revolving Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Revolving Commitment, as applicable. The initial aggregate amount of the
Lenders' Revolving Commitments is $5,000,000.
"REVOLVING EXPOSURE" means, with respect to any Lender at any time, the
sum of the outstanding principal amount of such Lender's Revolving Loans and its
Trade LC Exposure at such time.
"REVOLVING LENDER" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"REVOLVING LOAN" means a Loan made pursuant to clause (b) of Section
2.01.
"REVOLVING MATURITY DATE" means December 7, 2005.
"S&P" means Standard & Poor's Rating Service.
"SECURED PARTIES" has the meaning assigned to such term in the Security
Agreement.
"SECURITY AGREEMENT" means the Security Agreement, substantially in the
form of Exhibit H, among Holdings, the Borrower, the Subsidiary Loan Parties and
the Collateral Agent for the benefit of the Secured Parties.
"PREFERRED STOCK" means the Series A Preferred Stock and Series B
Preferred Stock of Holdings as defined in Holdings' Certificate of Incorporation
as in effect on the Effective Date and filed with the Secretary of State for the
State of Delaware.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"Significant Subsidiary" of Holdings within the meaning of Rule 1-02 under
Regulation S-X promulgated by the U.S. Securities and Exchange Commission, as in
effect on the Effective Date.
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"SPONSOR" means Warburg, Xxxxxx Equity Partners, L.P., a Delaware
limited partnership and any successor thereto.
"SPOT EXCHANGE RATE" means, on any day, the spot rate at which dollars
are offered on such day for euro as such rate appears on applicable page of the
Telerate Service at approximately 11:00 a.m., London time (and if such spot rate
is not available on the Telerate Service, such spot rate as quoted by Chase
Manhattan International Limited at approximately 11:00 a.m., London time).
"STANDBY LC AVAILABILITY PERIOD" means the period from and including
the Standby LC Issuance Date to but excluding the earlier of the Standby LC
Maturity Date and the date of termination of the Standby LC Commitments.
"STANDBY LC COMMITMENT" means, with respect to each Lender, the
commitment, if any, of such Lender to acquire participations in Standby Letters
of Credit hereunder, expressed as an amount representing the maximum aggregate
amount of such Lender's Standby LC Exposure hereunder, as such commitment may be
(a) reduced from time to time pursuant to Section 2.07 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Standby LC
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Standby LC Commitment, as
applicable. The initial aggregate amount of the Lenders' Standby LC Commitments
is $25,000,000.
"STANDBY LC DISBURSEMENT" means a payment made by the Issuing Bank
pursuant to a Standby Letter of Credit.
"STANDBY LC EXPOSURE" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Standby Letters of Credit at such time PLUS
(b) the aggregate amount of all Standby LC Disbursements that have not yet been
reimbursed by or on behalf of the Borrower at such time. The Standby LC Exposure
of any Standby LC Lender at any time shall be its Applicable Standby LC
Percentage of the total Standby LC Exposure at such time.
"STANDBY LC ISSUANCE DATE" means the date on which the conditions
specified in Section 4.03 are satisfied (or waived in accordance with Section
9.02).
"STANDBY LC LENDER" means a Lender with a Standby LC Commitment or, if
the Standby LC Commitments have terminated or expired, a Lender with Standby LC
Exposure.
"STANDBY LC MATURITY DATE" means November 27, 2005.
"STANDBY LETTER OF CREDIT" means any letter of credit issued pursuant
to Section 2.04(b).
"STATUTORY RESERVE RATE" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one MINUS the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to
21
such reserve requirements without benefit of or credit for proration, exemptions
or offsets that may be available from time to time to any Lender under such
Regulation D or any comparable regulation. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"STOCKHOLDERS AGREEMENT" means the Stockholders Agreement dated as of
the Effective Date, among Holdings and the various Permitted Investors, as such
agreement may be amended from time to time in accordance with the terms thereof
and this Agreement.
"SUBSIDIARY" means, with respect to any Person (the "PARENT") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"SUBSIDIARY" means any subsidiary of the Borrower.
"SUBSIDIARY GUARANTEE AGREEMENT" means the Subsidiary Guarantee
Agreement, substantially in the form of Exhibit I, made by the Subsidiary Loan
Parties in favor of the Collateral Agent for the benefit of the Secured Parties.
"SUBSIDIARY LOAN PARTY" means any Subsidiary that is not (a) a Foreign
Subsidiary, (b) Cremascoli Holdings or (c) a subsidiary of Cremascoli Holdings.
"SYNDICATION AGENT" means Bank of America, N.A., a national banking
association.
"TAXES" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TERM AVAILABILITY PERIOD" means the period from and including the
Effective Date to and including the Business Day next following the date that is
34 days after the Effective Date.
"TERM COMMITMENT" means, with respect to each Lender, the commitment,
if any, of such Lender to make a Term Loan hereunder, expressed as an amount
representing the maximum principal amount of the Term Loan to be made by such
Lender hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.07 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Term Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Term Commitment, as applicable. The initial aggregate amount of the Lenders'
Term Commitments is $60,000,000.
"TERM FUNDING DATE" means the date on which the conditions specified in
Section 4.02 are satisfied (or waived in accordance with Section 9.02).
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"TERM LENDER" means a Lender with a Term Commitment or an outstanding
Term Loan.
"TERM LOAN" means a Loan made pursuant to clause (a) of Section 2.01.
"TERM MATURITY DATE" means December 7, 2005.
"TOTAL DEBT" means, as of any date of determination, without
duplication, the aggregate principal amount of Indebtedness (other than any
Investor Subordinated Debt) of Holdings, the Borrower and the Subsidiaries
outstanding as of such date, determined on a consolidated basis in accordance
with GAAP (other than Indebtedness of the type referred to in clause (h) or (i)
of the definition of the term "Indebtedness", except to the extent of any
unreimbursed drawings thereunder). Total Debt shall not include the aggregate
undrawn amount of any outstanding Standby Letter of Credit.
"TRADE LC DISBURSEMENT" means a payment made by the Issuing Bank
pursuant to a Trade Letter of Credit.
"TRADE LC EXPOSURE" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Trade Letters of Credit at such time PLUS (b)
the aggregate amount of all Trade LC Disbursements that have not yet been
reimbursed by or on behalf of the Borrower at such time. The Trade LC Exposure
of any Revolving Lender at any time shall be its Applicable Trade LC Percentage
of the total Trade LC Exposure at such time.
"TRADE LETTER OF CREDIT" means any letter of credit issued pursuant to
Section 2.04(a).
"TRANSACTIONS" shall mean the Cremascoli Transactions and the WMT
Transactions.
"TYPE", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"WAC" means Xxxxxx Acquisition Corp., Inc., a Delaware corporation.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
"WMT COLLATERAL" means any and all "Collateral" as defined in any
applicable WMT Security Document.
"WMT EQUITY FINANCING" means (a) the contribution by the Permitted
Investors to Holdings of an aggregate amount of not less than $65,000,000 in
cash in exchange for the issuance to the Permitted Investors of common stock of
Holdings, Preferred Stock and Investor Subordinated Debt and (b) the
contribution by Holdings to WAC of (i) an aggregate amount of not less than
$65,000,000 in cash and (ii) 167 shares of common stock of Holdings and
1,840,000 shares of Preferred Stock in exchange for the issuance to Holdings of
all the outstanding capital stock of WAC.
23
"WMT EXISTING CREDIT AGREEMENT" means the Credit Agreement dated as of
September 13, 1996, as amended, between the Borrower and Sanwa Business Credit
Corporation.
"WMT EXISTING DEBT" means the WMT Existing Notes and the Indebtedness
outstanding under the WMT Existing Credit Agreement.
"WMT EXISTING NOTES" means the Borrower's 11-3/4% Senior Secured
Step-Up Notes due 2000.
"WMT FINANCING TRANSACTIONS" means the execution, delivery and
performance by each WMT Loan Party of the WMT Loan Documents to which it is to
be a party and the borrowing of Loans and the use of the proceeds thereof.
"WMT LOAN DOCUMENTS" means this Agreement, the Guarantee Agreements,
the Indemnity, Subrogation and Contribution Agreement and, following execution
and delivery to the Collateral Agent, the WMT Security Documents.
"WMT LOAN PARTIES" means Holdings, the Borrower and the Subsidiary Loan
Parties.
"WMT MERGER" means the merger of WAC with and into the Borrower
pursuant to, and upon the terms and conditions specified in, the WMT Merger
Agreement.
"WMT MERGER AGREEMENT" means the Agreement and Plan of Merger dated as
of September 10, 1999, as amended as of October 15, 1999, and as amended and
restated as of December 7, 1999, among Holdings, the Borrower, the Sponsor and
WAC, as such agreement may be amended from time to time in accordance with the
terms thereof and this Agreement.
"WMT MERGER DOCUMENTS" means the WMT Merger Agreement and each other
agreement or instrument entered into by Holdings, the Borrower, the Sponsor, WAC
or any Affiliate of any of the foregoing to effectuate the WMT Merger Agreement.
"WMT MERGER PAYMENTS" means (a) the payment of not more than $600,000
in the aggregate to holders of the Borrower's pre-WMT Merger class A common and
preferred stock, (b) the payment of not more than $800,000 in the aggregate to
management of the Borrower and (c) the payment of not more than $8,600,000 in
the aggregate to holders of the Borrower's pre-WMT Merger class B and C
preferred stock.
"WMT SECURITY DOCUMENTS" means the Security Agreement, the Pledge
Agreement, the Mortgages and each other security agreement or other instrument
or document executed and delivered pursuant to Section 5.12 or 5.13 to secure
any of the Obligations.
"WMT TRANSACTIONS" means the WMT Merger, the WMT Equity Financing and
the WMT Financing Transactions.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of
this Agreement, Loans may be classified and referred to by Class (E.G., a
"Revolving Loan") or by Type (E.G., a "Eurodollar Loan") or by Class and Type
(E.G., a "Eurodollar Revolving Loan"). Borrowings
24
also may be classified and referred to by Class (E.G., a "Revolving Borrowing")
or by Type (E.G., a "Eurodollar Borrowing") or by Class and Type (E.G., a
"Eurodollar Revolving Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; PROVIDED
that, if the Borrower notifies the Administrative Agent that the Borrower and
Holdings request an amendment to any provision hereof to eliminate the effect of
any change occurring after the Effective Date in GAAP or in the application
thereof on the operation of such provision (or if the Administrative Agent
notifies the Borrower that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
SECTION 1.05. FOREIGN CURRENCY TRANSLATION. Except as otherwise
provided for herein, on each date that the calculation of the U.S. dollar
equivalent of the Cremascoli Loans or the Cremascoli Borrowings is required
under any Loan Document, the Administrative Agent shall determine the Spot
Exchange Rate to be used for such conversion, and the Administrative Agent's
determination of such Spot Exchange Rate shall be binding on all parties hereto,
absent manifest error.
25
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions set
forth herein, each Lender agrees, severally and not jointly, (a) to make a Term
Loan to the Borrower on a single day during the Term Availability Period in a
principal amount not exceeding its Term Commitment, (b) to make Revolving Loans
to the Borrower and to acquire participations in Trade Letters of Credit issued
hereunder from time to time during the Revolving Availability Period in an
aggregate principal amount that will not result in such Lender's Revolving
Exposure exceeding such Lender's Revolving Commitment and/or (c) to acquire
participations in Standby Letters of Credit issued hereunder from time to time
during the Standby LC Availability Period in an aggregate amount that will not
result in such Lender's Standby LC Exposure exceeding such Lender's Standby LC
Commitment. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
Amounts repaid in respect of Term Loans may not be reborrowed.
SECTION 2.02. LOANS AND BORROWINGS. (a) Each Loan shall be made as part
of a Borrowing consisting of Loans of the same Class and Type made by the
Lenders ratably in accordance with their respective Commitments of the
applicable Class. The failure of any Lender to make any Loan required to be made
by it shall not relieve any other Lender of its obligations hereunder; PROVIDED
that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith; PROVIDED that the Administrative
Agent may, in its sole discretion, require that all Borrowings made on the Term
Funding Date, if such date is also the Effective Date, be ABR Borrowings. Each
Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; PROVIDED that any
exercise of such option shall not affect the obligation of the Borrower to repay
such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000. At the time that each ABR Revolving Borrowing is made,
such Borrowing shall be in an aggregate amount that is not less than $250,000
and in integral multiples of $50,000; PROVIDED that an ABR Revolving Borrowing
may be in an aggregate amount that is equal to the entire unused balance of the
total Revolving Commitments or that is required to finance the reimbursement of
a Trade LC Disbursement as contemplated by Section 2.04(a)(iv). Borrowings of
more than one Type and Class may be outstanding at the same time; PROVIDED that
there shall not at any time be more than a total of six Eurodollar Borrowings
outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Revolving Maturity Date or Term Maturity Date, as applicable.
26
SECTION 2.03. REQUESTS FOR BORROWINGS. To request a Revolving Borrowing
or Term Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 10:00
a.m., New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving
Borrowing or Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business
Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.05.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. LETTERS OF CREDIT.
(a) TRADE LETTERS OF CREDIT. Subject to the terms and conditions set
forth herein, the Borrower may request the issuance of Trade Letters of Credit
for its own account, in a form reasonably acceptable to the Administrative Agent
and the Issuing Bank, at any time and from time to time during the Revolving
Availability Period. In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of letter
of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the Issuing Bank relating to any Trade Letter
of Credit, the terms and conditions of this Agreement shall control. Each Trade
Letter of Credit is subject to the following terms and conditions:
(i) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. To request the issuance of a Trade Letter of Credit (or the
amendment, renewal or extension of an outstanding Trade Letter of
Credit), the Borrower shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been
approved by
27
the Issuing Bank) to the Issuing Bank and the Administrative Agent
(reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Trade
Letter of Credit, or identifying the Trade Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the
date on which such Trade Letter of Credit is to expire (which shall
comply with paragraph (a)(ii) of this Section), the amount of such
Trade Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend,
renew or extend such Trade Letter of Credit. If requested by the
Issuing Bank, the Borrower also shall submit a letter of credit
application on the Issuing Bank's standard form in connection with any
request for a Trade Letter of Credit. The Issuing Bank agrees that such
terms and conditions shall not contain any financial or operating
covenants or require any Lien not otherwise contemplated by this
Agreement. A Trade Letter of Credit shall be issued, amended, renewed
or extended only if (and upon issuance, amendment, renewal or extension
of each Trade Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (A) the Trade LC Exposure shall not
exceed $2,500,000 and (B) the total Revolving Exposures shall not
exceed the total Revolving Commitments.
(ii) EXPIRATION DATE. Each Trade Letter of Credit shall expire
at or prior to the close of business on the earliest of (A) the date
one year after the date of the issuance of such Trade Letter of Credit
(or, in the case of any renewal or extension thereof, one year after
such renewal or extension), (B) the expiry date of such Trade Letter of
Credit and (C) the date that is five Business Days prior to the
Revolving Maturity Date.
(iii) PARTICIPATIONS. By the issuance of a Trade Letter of
Credit (or an amendment to a Trade Letter of Credit increasing the
amount thereof) and without any further action on the part of the
Issuing Bank or the Lenders, the Issuing Bank hereby grants to each
Revolving Lender, and each Revolving Lender hereby acquires from the
Issuing Bank, a participation in such Trade Letter of Credit equal to
such Lender's Applicable Trade LC Percentage of the aggregate amount
available to be drawn under such Trade Letter of Credit. In
consideration and in furtherance of the foregoing, each Revolving
Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, such
Lender's Applicable Trade LC Percentage of each Trade LC
Disbursement made by the Issuing Bank and not reimbursed by the
Borrower on the date due as provided in paragraph (a)(iv) of this
Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in
respect of Trade Letters of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Trade Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of
the Commitments, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever.
(iv) REIMBURSEMENT. If the Issuing Bank shall make any Trade
LC Disbursement in respect of a Trade Letter of Credit, the Borrower
shall reimburse such Trade LC Disbursement by paying to the
Administrative Agent an amount equal to such Trade LC Disbursement not
later than 12:00 noon, New York City time, on the Business Day that the
Borrower receives notice of such Trade LC Disbursement, if such notice
is received prior to
28
10:00 a.m., New York City time, or the Business Day immediately
following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt;
PROVIDED that the Borrower may, subject to the conditions to borrowing
set forth herein, request in accordance with Section 2.03 that such
payment be financed with an ABR Revolving Borrowing in an equivalent
amount and, to the extent so financed, the Borrower's obligation to
make such payment shall be discharged and replaced by the resulting ABR
Revolving Borrowing. If the Borrower fails to make such payment when
due, the Administrative Agent shall notify each Revolving Lender of the
applicable Trade LC Disbursement, the payment then due from the
Borrower in respect thereof and such Lender's Applicable Trade LC
Percentage thereof. Promptly following receipt of such notice, each
Revolving Lender shall pay to the Administrative Agent its Applicable
Trade LC Percentage of the payment then due from the Borrower, in the
same manner as provided in Section 2.05 with respect to Loans made by
such Lender (and Section 2.05 shall apply, MUTATIS MUTANDIS, to the
payment obligations of the Revolving Lenders), and the Administrative
Agent shall promptly pay to the Issuing Bank the amounts so received by
it from the Revolving Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to
the Issuing Bank or, to the extent that Revolving Lenders have made
payments pursuant to this paragraph to reimburse the Issuing Bank, then
to such Lenders and the Issuing Bank as their interests may appear. Any
payment made by a Revolving Lender pursuant to this paragraph to
reimburse the Issuing Bank for any Trade LC Disbursement (other than
the funding of ABR Revolving Loans as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation
to reimburse such Trade LC Disbursement.
29
(v) OBLIGATIONS ABSOLUTE. The Borrower's obligation to
reimburse Trade LC Disbursements as provided in paragraph (a)(iv) of
this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this
Agreement under any and all circumstances whatsoever and irrespective
of (A) any lack of validity or enforceability of any Trade Letter of
Credit or this Agreement, or any term or provision therein, (B) any
draft or other document presented under a Trade Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (C)
payment by the Issuing Bank under a Trade Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Trade Letter of Credit, or (D) any other event or
circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of
setoff against, the Borrower's obligations hereunder. None of the
Administrative Agent, the Lenders, the Issuing Bank or any of their
Related Parties, shall have any liability or responsibility by reason
of or in connection with the issuance or transfer of any Trade Letter
of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication
under or relating to any Trade Letter of Credit (including any document
required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the
control of the Issuing Bank; PROVIDED that the foregoing shall not be
construed to excuse the Issuing Bank from liability to the Borrower to
the extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are
caused by the Issuing Bank's failure to exercise care when determining
whether drafts and other documents presented under a Trade Letter of
Credit comply with the terms thereof. The parties hereto expressly
agree that, in the absence of gross negligence or wilful misconduct on
the part of the Issuing Bank (as finally determined by a court of
competent jurisdiction), the Issuing Bank shall be deemed to have
exercised care in each such determination. In furtherance of the
foregoing and without limiting the generality thereof, the parties
agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Trade Letter
of Credit, the Issuing Bank may, in its sole discretion, either accept
and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such
documents are not in strict compliance with the terms of such Trade
Letter of Credit.
(vi) DISBURSEMENT PROCEDURES. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Trade Letter of Credit. The
Issuing Bank shall promptly notify the Administrative Agent and the
Borrower by telephone (confirmed by telecopy) of such demand for
payment and whether the Issuing Bank has made or will make a Trade LC
Disbursement thereunder; PROVIDED that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Revolving Lenders with respect to
any such Trade LC Disbursement.
(vii) INTERIM INTEREST. If the Issuing Bank shall make any
Trade LC Disbursement, then, unless the Borrower shall reimburse such
Trade LC Disbursement in full on the date
30
such Trade LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such Trade LC
Disbursement is made to but excluding the date that the Borrower
reimburses such Trade LC Disbursement, at the rate per annum then
applicable to ABR Revolving Loans; PROVIDED that, if the Borrower fails
to reimburse such Trade LC Disbursement when due pursuant to paragraph
(a)(iv) of this Section, then Section 2.12(c) shall apply. Interest
accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of
payment by any Revolving Lender pursuant to paragraph (a)(iv) of this
Section to reimburse the Issuing Bank shall be for the account of such
Lender to the extent of such payment.
(viii) CASH COLLATERALIZATION. If any Event of Default shall
occur and be continuing, on the Business Day that the Borrower receives
notice from the Administrative Agent or the Required Lenders (or, if
the maturity of the Loans has been accelerated, Revolving Lenders with
Trade LC Exposure representing greater than 50% of the total Trade LC
Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for
the benefit of the Lenders, an amount in cash equal to the Trade LC
Exposure as of such date PLUS any accrued and unpaid fees and interest
thereon; PROVIDED that the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become
immediately due and payable, without demand or other notice of any
kind, upon the occurrence of any Event of Default with respect to the
Borrower or Holdings described in clause (h) or (i) of Article VII.
Each such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the
Borrower under this Agreement. The Administrative Agent shall have
exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the
Borrower's risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in
such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Bank for Trade LC
Disbursements for which it has not been reimbursed and, to the extent
not so applied, shall be held for the satisfaction of the reimbursement
obligations of the Borrower for the Trade LC Exposure at such time or,
if the maturity of the Loans has been accelerated (but subject to the
consent of Revolving Lenders with Trade LC Exposure representing
greater than 50% of the total Trade LC Exposure), be applied to satisfy
other obligations of the Borrower under this Agreement. If the Borrower
is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the
extent not applied as aforesaid) shall be returned to the Borrower
within three Business Days after all Events of Default have been cured
or waived.
(b) STANDBY LETTERS OF CREDIT. Subject to the terms and conditions set
forth herein, the Borrower may request the issuance of Standby Letters of Credit
for its own account for the benefit of the French Lender at any time and from
time to time during the Standby LC Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the Issuing
Bank relating to any Standby Letter of Credit, the terms and conditions of this
Agreement shall control. Each Standby Letter of Credit is subject to the
following terms and conditions:
31
(i) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. To request the issuance of a Standby Letter of Credit (or
the amendment, renewal or extension of an outstanding Standby Letter of
Credit), the Borrower shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been
approved by the Issuing Bank) to the Issuing Bank, the Administrative
Agent and the French Lender (reasonably in advance of the requested
date of issuance, amendment, renewal or extension) a notice (A)
requesting the issuance of a Standby Letter of Credit, or identifying
the Standby Letter of Credit to be amended, renewed or extended, and
(B) specifying (1) the date of issuance, amendment, renewal or
extension (which shall be a Business Day) and (2) the date on which
such Standby Letter of Credit is to expire (which shall comply with
paragraph (b)(ii) of this Section). Any Standby Letter of Credit issued
hereunder shall be substantially in the form of Exhibit J, or such
other form as the Issuing Bank, the Administrative Agent, the French
Lender and the Borrower agree. A Standby Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Standby Letter of Credit, the
Borrower shall be deemed to represent and warrant that), after giving
effect to such issuance, amendment, renewal or extension the Standby LC
Exposure shall not exceed the Standby LC Commitments.
(ii) EXPIRATION DATE. Each Standby Letter of Credit shall
expire at or prior to the close of business on the earliest of (A) the
expiry date of such Standby Letter of Credit and (B) the date that is
three Business Days prior to the Standby LC Maturity Date.
(iii) PARTICIPATIONS. By the issuance of a Standby Letter of
Credit (or an amendment to a Standby Letter of Credit increasing the
amount thereof) and without any further action on the part of the
Issuing Bank or the Lenders, the Issuing Bank hereby grants to each
Standby LC Lender, and each Standby LC Lender hereby acquires from the
Issuing Bank, a participation in such Standby Letter of Credit equal to
such Lender's Applicable Standby LC Percentage of the aggregate amount
available to be drawn under such Standby Letter of Credit. In
consideration and in furtherance of the foregoing, each Standby LC
Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, such
Lender's Applicable Standby LC Percentage of each Standby LC
Disbursement made by the Issuing Bank and not reimbursed by the
Borrower on the date due as provided in paragraph (b)(iv) of this
Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in
respect of Standby Letters of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Standby Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of
the Commitments, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever.
(iv) REIMBURSEMENT. If the Issuing Bank shall make any Standby
LC Disbursement in respect of a Standby Letter of Credit, the Borrower
shall reimburse such Standby LC Disbursement by paying to the
Administrative Agent an amount equal to such Standby LC Disbursement
not later than 12:00 noon, New York City time, on the Business Day that
the Borrower receives notice of such Standby LC Disbursement, if such
notice is received prior to 10:00 a.m., New York City time, or the
Business Day immediately following the day that the Borrower receives
such notice, if such notice is not received prior to such time on the
day
32
of receipt. If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each Standby LC Lender of the
applicable Standby LC Disbursement, the payment then due from the
Borrower in respect thereof and such Lender's Applicable Standby LC
Percentage thereof. Promptly following receipt of such notice, each
Standby LC Lender shall pay to the Administrative Agent its Applicable
Standby LC Percentage of the payment then due from the Borrower, in the
same manner as provided in Section 2.05 with respect to Loans made by
such Lender (and Section 2.05 shall apply, MUTATIS MUTANDIS, to the
payment obligations of the Standby LC Lenders), and the Administrative
Agent shall promptly pay to the Issuing Bank the amounts so received by
it from the Standby LC Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to
the Issuing Bank or, to the extent that Standby LC Lenders have made
payments pursuant to this paragraph to reimburse the Issuing Bank, then
to such Lenders and the Issuing Bank as their interests may appear. Any
payment made by a Standby LC Lender pursuant to this paragraph to
reimburse the Issuing Bank for any Standby LC Disbursement shall not
constitute a Loan and shall not relieve the Borrower of its obligation
to immediately reimburse such Standby LC Disbursement.
33
(v) OBLIGATIONS ABSOLUTE. The Borrower's obligation to
reimburse Standby LC Disbursements as provided in paragraph (b)(iv) of
this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this
Agreement under any and all circumstances whatsoever and irrespective
of (A) any lack of validity or enforceability of any Standby Letter of
Credit or this Agreement, or any term or provision therein, (B) any
draft or other document presented under a Standby Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (C)
payment by the Issuing Bank under a Standby Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Standby Letter of Credit, or (D) any other event or
circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of
setoff against, the Borrower's obligations hereunder. None of the
Administrative Agent, the Lenders, the Issuing Bank, the French Lender
or any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or
transfer of any Standby Letter of Credit or any payment or failure to
make any payment thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft,
notice or other communication under or relating to any Standby Letter
of Credit (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the Issuing Bank;
PROVIDED that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrower to the extent of any direct
damages (as opposed to consequential damages, claims in respect of
which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the Issuing
Bank's failure to exercise care when determining whether drafts and
other documents presented under a Standby Letter of Credit comply with
the terms thereof. The parties hereto expressly agree that, in the
absence of gross negligence or wilful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care
in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect
to documents presented which appear on their face to be in substantial
compliance with the terms of a Standby Letter of Credit, the Issuing
Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation,
regardless of any notice or information to the contrary, or refuse to
accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Standby Letter of Credit.
(vi) SUBROGATION. Pursuant to, and subject to the terms and
conditions of, the Cremascoli Loan Documents, in the event that any
obligation of any Cremascoli Loan Party under any Cremascoli Loan
Document is paid or satisfied with the proceeds of a Standby LC
Disbursement, the Lenders will be subrogated to the rights of the
French Lender under the Cremascoli Loan Documents to the extent, and
not in excess of, such Standby LC Disbursement. The French Lender shall
provide the Issuing Bank, for the benefit of the Lenders, with a letter
of release in a form satisfactory to the Administrative Agent to effect
such subrogation.
(vii) DISBURSEMENT PROCEDURES. The Issuing Bank shall,
promptly following its receipt thereof, examine all documents
purporting to represent a demand for payment under
34
a Standby Letter of Credit. The Issuing Bank shall promptly notify the
Administrative Agent, the French Lender and the Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether the
Issuing Bank has made or will make a Standby LC Disbursement
thereunder; PROVIDED that any failure to give or delay in giving such
notice shall not relieve the Borrower of its obligation to reimburse
the Issuing Bank and the Standby LC Lenders with respect to any such
Standby LC Disbursement.
(viii) INTERIM INTEREST. If the Issuing Bank shall make any
Standby LC Disbursement, then, unless the Borrower shall reimburse such
Standby LC Disbursement in full on the date such Standby LC
Disbursement is made, the unpaid amount thereof shall bear interest,
for each day from and including the date such Standby LC Disbursement
is made to but excluding the date that the Borrower reimburses such
Standby LC Disbursement, at the rate per annum then applicable to
Eurodollar Revolving Loans; PROVIDED that, if the Borrower fails to
reimburse such Standby LC Disbursement when due pursuant to paragraph
(b)(iv) of this Section, then Section 2.12(c) shall apply. Interest
accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of
payment by any Standby LC Lender pursuant to paragraph (b)(iv) of this
Section to reimburse the Issuing Bank shall be for the account of such
Lender to the extent of such payment.
(ix) CASH COLLATERALIZATION. If any Event of Default shall
occur and be continuing, on the Business Day that the Borrower receives
notice from the Administrative Agent or the Required Lenders (or, if
the maturity of the Loans has been accelerated, Standby LC Lenders with
Standby LC Exposure representing greater than 50% of the total Standby
LC Exposure) demanding the deposit of cash collateral or prepayment of
Cremascoli Loans pursuant to this paragraph, the Borrower either (A)
shall deposit in an account with the Administrative Agent, in the name
of the Administrative Agent and for the benefit of the Lenders, an
amount in cash equal to the Standby LC Exposure as of such date PLUS
any accrued and unpaid fees and interest thereon or (B) subject to any
pro rata sharing requirements under this Agreement, prepay in full the
principal of and interest on each Cremascoli Loan, pay all fees owing
under the Cremascoli Credit Agreement and terminate all Cremascoli
Commitments; PROVIDED that the obligations under this paragraph (b)(ix)
shall become effective immediately, and such deposit shall become
immediately due and payable, without demand or other notice of any
kind, upon the occurrence of any Event of Default with respect to
Cremascoli, Cremascoli Holdings, the Borrower or Holdings described in
clause (h) or (i) of Article VII. Each such deposit shall be held by
the Administrative Agent as collateral for the payment and performance
of the obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other
than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrower's risk and expense, such
deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account
shall be applied by the Administrative Agent to reimburse the Issuing
Bank for Standby LC Disbursements for which it has not been reimbursed
and, to the extent not so applied, shall be held for the satisfaction
of the reimbursement obligations of the Borrower for the Standby LC
Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Standby LC Lenders with
Standby LC Exposure representing greater than 50% of the total Standby
LC Exposure), be applied to satisfy other obligations of the
35
Borrower under this Agreement or obligations of Cremascoli under the
Cremascoli Credit Agreement. If the Borrower provides an amount of cash
collateral hereunder as a result of the occurrence of an Event of
Default, such amount (to the extent not applied as aforesaid) shall be
returned to the Borrower within three Business Days after all Events of
Default have been cured or waived.
(c) REPLACEMENT OF THE ISSUING BANK. The Issuing Bank may be replaced
at any time by written agreement among the Borrower, the Administrative Agent,
the replaced Issuing Bank, the French Lender and the successor Issuing Bank. The
Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.11(b) and (c). From and after the effective
date of any such replacement, (i) the successor Issuing Bank shall have all the
rights and obligations of the Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
SECTION 2.05. FUNDING OF BORROWINGS. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds, to
an account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request;
PROVIDED that ABR Revolving Loans made to finance the reimbursement of a Trade
LC Disbursement as provided in Section 2.04(a)(iv) shall be remitted by the
Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.06. INTEREST ELECTIONS. (a) Each Revolving Borrowing and Term
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case
36
of a Eurodollar Borrowing, shall have an initial Interest Period as specified in
such Borrowing Request. Thereafter, the Borrower may elect to convert such
Borrowing to a different Type or to continue such Borrowing and, in the case of
a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in
this Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate
Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.02 and paragraph (f) of
this Section:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request
with respect to a Eurodollar Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at
the end of such Interest Period such Borrowing shall be converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Borrower, then, so long as an Event of
Default is continuing (i) no outstanding Borrowing may be converted to or
continued as a Eurodollar Borrowing and (ii) unless repaid, each
37
Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
(f) A Borrowing of any Class may not be converted to or continued as a
Eurodollar Borrowing if after giving effect thereto (i) the Interest Period
therefor would commence before and end after a date on which any principal of
the Loans of such Class is scheduled to be repaid and (ii) the sum of the
aggregate principal amount of outstanding Eurodollar Borrowings of such Class
with Interest Periods ending on or prior to such scheduled repayment date PLUS
the aggregate principal amount of outstanding ABR Borrowings of such Class would
be less than the aggregate principal amount of Loans of such Class required to
be repaid on such scheduled repayment date.
SECTION 2.07. TERMINATION AND REDUCTION OF COMMITMENTS. (a) Unless
previously terminated, (i) the Term Commitments shall terminate at 5:00 p.m.,
New York City time, on the earlier of (x) the last day of the Term Availability
Period and (y) the Term Funding Date, (ii) the Revolving Commitments shall
terminate on the Revolving Maturity Date and (iii) the Standby LC Commitments
shall terminate on the Standby LC Maturity Date; PROVIDED, HOWEVER, that (A) the
Revolving Commitments and the Standby LC Commitments shall terminate at 5:00
p.m., New York City time, on the last day of the Term Loan Availability Period
if there are no outstanding Term Loans as of such date and (B) the Standby LC
Commitments shall terminate at 5:00 p.m., New York City time, on January 31,
2000 if no Standby Letter of Credit has been issued by such date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments of any Class; PROVIDED that (i) each reduction of the
Commitments of any Class shall be in an amount that is an integral multiple of
$1,000,000, (ii) the Borrower shall not terminate or reduce the Revolving
Commitments if, after giving effect to any concurrent prepayment of the
Revolving Loans in accordance with Section 2.10, the sum of the Revolving
Exposures would exceed the total Revolving Commitments and (iii) the Borrower
shall not terminate or reduce the Standby LC Commitments if, after giving effect
to such reductions, the Standby LC Exposure would exceed the total Standby LC
Commitments.
(c) The Standby LC Commitments shall be automatically reduced from time
to time in an aggregate amount equal to the U.S. dollar equivalent of any
payment or prepayment of principal of the Cremascoli Term Loans (including any
scheduled payments and any mandatory or voluntary prepayments of such
principal). For the purposes of determining the U.S. dollar equivalent of any
such payment or prepayment of principal, an exchange rate of $1.00 to euro 1.00
shall be used.
(d) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable; PROVIDED that a notice of termination of
the Revolving Commitments delivered by the Borrower may state that such notice
is conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments of any Class shall be
permanent. Each reduction of the Commitments of any Class shall be made ratably
among the Lenders in accordance with their respective Commitments of such Class.
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SECTION 2.08. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
of such Lender on the Revolving Maturity Date and (ii) to the Administrative
Agent for the account of each Lender the then unpaid principal amount of each
Term Loan of such Lender as provided in Section 2.09.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the Indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be PRIMA FACIE evidence of the existence and
amounts of the obligations recorded therein; PROVIDED that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.09. AMORTIZATION OF TERM LOANS. (a) Subject to adjustment
pursuant to paragraph (c) of this Section, the Borrower shall repay Term
Borrowings on each date set forth below in the aggregate principal amount equal
to the amount set forth opposite such date:
DATE AMOUNT
June 30, 2000 $1,500,000
December 31, 2000 $1,500,000
June 30, 2001 $3,000,000
December 31, 2001 $3,000,000
June 30, 2002 $4,500,000
December 31, 2002 $4,500,000
June 30, 2003 $6,000,000
December 31, 2003 $6,000,000
June 30, 2004 $7,500,000
December 31, 2004 $7,500,000
June 30, 2005 $7,500,000
Term Maturity Date $7,500,000
39
(b) To the extent not previously paid, all Term Loans shall be due and
payable on the Term Maturity Date.
(c) Any prepayment of a Term Borrowing shall be applied to reduce the
subsequent scheduled repayments of the Term Borrowings to be made pursuant to
this Section ratably; PROVIDED that any prepayment of a Term Borrowing made
pursuant to Section 2.10(a) may be applied, at the Borrower's option, first, to
reduce the scheduled repayments of the Term Borrowings to be made pursuant to
this Section during the succeeding 12 months, in order of maturity, and, second,
to reduce the remaining scheduled repayments of the Term Borrowings to be made
pursuant to this Section ratably.
(d) Prior to any repayment of any Term Borrowings hereunder, the
Borrower shall select the Borrowing or Borrowings to be repaid and shall notify
the Administrative Agent by telephone (confirmed by telecopy) of such selection
not later than 11:00 a.m., New York City time, three Business Days before the
scheduled date of such repayment; PROVIDED that each repayment of Term
Borrowings shall be applied to repay any outstanding ABR Term Borrowings before
any other Term Borrowings. Each repayment of a Borrowing shall be applied
ratably to the Loans included in the repaid Borrowing. Repayments of Term
Borrowings shall be accompanied by accrued interest on the amount repaid.
SECTION 2.10. PREPAYMENT OF LOANS. (a) Subject to the requirements of
Section 2.17(f), the Borrower shall have the right at any time and from time to
time to prepay any Borrowing in whole or in part, subject to the requirements of
this Section.
(b) Subject to the requirements of Section 2.17(f), in the event and on
each occasion that any Net Proceeds are received by or on behalf of Holdings,
the Borrower or any Subsidiary in respect of any Prepayment Event, the Borrower
and/or Cremascoli shall, immediately after such Net Proceeds are received,
prepay Term Borrowings and/or Cremascoli Term Borrowings in an aggregate amount
equal to such Net Proceeds; PROVIDED that in the case of any issuance by
Holdings of its common stock or Preferred Stock, any prepayment otherwise
required by this Section 2.10(b) shall be limited to 50% of the Net Proceeds of
such issuance.
(c) Subject to the requirements of Section 2.17(f), following the end
of each fiscal year of the Borrower, commencing with the fiscal year ending
December 31, 2000, the Borrower and/or Cremascoli shall prepay Term Borrowings
and/or Cremascoli Term Borrowings in an aggregate amount equal to 75% of Excess
Cash Flow for such fiscal year; PROVIDED that such prepayment percentage shall
reduce to 50% of Excess Cash Flow for any fiscal year in which, as of the last
day of such fiscal year, (a) the aggregate outstanding principal amount of Term
Loans and Cremascoli Term Loans does not exceed $40,000,000 or, following the
Cremascoli Acquisition, $55,000,000 and (b) the Leverage Ratio is less than or
equal to 2.00 to 1.00. Each prepayment pursuant to this paragraph shall be made
on or before the date which is 95 days after the end of the fiscal year for
which Excess Cash Flow is being calculated.
40
(d) Subject to the requirements of paragraphs (b) and (c) of this
Section, prior to any optional or mandatory prepayment of Borrowings hereunder,
the Borrower shall select the Borrowing or Borrowings to be prepaid and shall
specify such selection in the notice of such prepayment pursuant to paragraph
(e) of this Section; PROVIDED that each prepayment of Borrowings of any Class
shall be applied to prepay ABR Borrowings of such Class before any other
Borrowings of such Class.
(e) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date, the principal amount of each
Borrowing or portion thereof to be prepaid and, in the case of a mandatory
prepayment, a reasonably detailed calculation of the amount of such prepayment;
PROVIDED that, if a notice of optional prepayment is given in connection with a
conditional notice of termination of the Revolving Commitments as contemplated
by Section 2.07, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.07. Promptly following
receipt of any such notice, the Administrative Agent shall advise the Lenders of
the contents thereof. Each partial prepayment of any Borrowing shall be in an
amount that would be permitted in the case of an advance of a Borrowing of the
same Type as provided in Section 2.02, except as necessary to apply fully the
required amount of a mandatory prepayment. Each prepayment of a Borrowing shall
be applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.12.
(f) Any prepayment of Cremascoli Term Borrowings shall be made pursuant
to, and in accordance with, the relevant provisions of the Cremascoli Credit
Agreement.
SECTION 2.11. FEES. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Rate on the daily unused amount of each
Commitment of such Lender during the period from and including the Effective
Date to but excluding the date on which such Commitment terminates. Accrued
commitment fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which each Commitment
terminates, commencing on the first such date to occur after the Effective Date.
All commitment fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first day
but excluding the last day). For purposes of computing commitment fees with
respect to Revolving Commitments, a Revolving Commitment of a Lender shall be
deemed to be used to the extent of the outstanding Revolving Loans and Trade LC
Exposure of such Lender. For purposes of computing commitment fees with respect
to Standby LC Commitments, a Standby LC Commitment of a Lender shall be deemed
to be used to the extent of the Standby LC Exposure of such Lender.
(b) The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Revolving Lender a participation fee with respect to its
participations in Trade Letters of Credit, which shall accrue at the same
Applicable Rate as interest on Eurodollar Revolving Loans on the daily amount of
such Lender's Trade LC Exposure (excluding any portion thereof attributable to
unreimbursed Trade LC Disbursements) during the period from and including the
Term Funding Date to but excluding the later of the date on which such Lender's
Revolving Commitment terminates and the date on which such Lender ceases to have
any Trade LC Exposure, and (ii) to the Issuing Bank a fronting fee, which shall
accrue at the rate of 1/4 of 1% per annum on the average daily amount of
41
the Trade LC Exposure (excluding any portion thereof attributable to
unreimbursed Trade LC Disbursements) during the period from and including the
Term Funding Date to but excluding the later of the date of termination of the
Revolving Commitments and the date on which there ceases to be any Trade LC
Exposure, as well as the Issuing Bank's standard fees (other than fees payable
as a percentage of the undrawn amount of the Trade Letter of Credit) with
respect to the issuance, amendment, renewal or extension of any Trade Letter of
Credit or processing of drawings thereunder. Participation fees and fronting
fees accrued through and including the last day of March, June, September and
December of each year shall be payable on the third Business Day following such
last day, commencing on the first such date to occur after the Term Funding
Date; PROVIDED that all such fees shall be payable on the date on which the
Revolving Commitments terminate and any such fees accruing after the date on
which the Revolving Commitments terminate shall be payable on demand. Any other
fees payable to the Issuing Bank pursuant to this paragraph shall be payable
within 10 days after demand. All participation fees and fronting fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
(c) The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Standby LC Lender a participation fee with respect to its
participations in Standby Letters of Credit, which shall accrue at the same
Applicable Rate as interest on Eurodollar Term Loans on the daily amount of such
Lender's Standby LC Exposure (excluding any portion thereof attributable to
unreimbursed Standby LC Disbursements) during the period from and including the
Standby LC Issuance Date to but excluding the later of the date on which such
Lender's Standby LC Commitment terminates and the date on which such Lender
ceases to have any Standby LC Exposure, and (ii) to the Issuing Bank a fronting
fee, which shall accrue at the rate of 1/4 of 1% per annum on the average daily
amount of the Standby LC Exposure (excluding any portion thereof attributable to
unreimbursed Standby LC Disbursements) during the period from and including the
Standby LC Issuance Date to but excluding the later of the date of termination
of the Standby LC Commitments and the date on which there ceases to be any
Standby LC Exposure, as well as the Issuing Bank's standard fees (other than
fees payable as a percentage of the undrawn amount of the Standby Letter of
Credit) with respect to the issuance, amendment, renewal or extension of any
Standby Letter of Credit or processing of drawings thereunder. Participation
fees and fronting fees accrued through and including the last day of March,
June, September and December of each year shall be payable on the third Business
Day following such last day, commencing on the first such date to occur after
the Standby LC Issuance Date; PROVIDED that all such fees shall be payable on
the date on which the Standby LC Commitments terminate and any such fees
accruing after the date on which the Standby LC Commitments terminate shall be
payable on demand. Any other fees payable to the Issuing Bank pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees
and fronting fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(d) The Borrower agrees to pay to the Agents, for their own respective
accounts, the fees payable in the amounts and at the times separately agreed
upon between the Borrower and the Agents.
(e) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
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SECTION 2.12. INTEREST. (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate PLUS the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
PLUS the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% PLUS the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section and (ii) in the case of any other amount, 2% PLUS the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this Section;
PROVIDED that any interest owed to any Lender in respect of a disbursement under
any Standby Letter of Credit shall be reduced, but not below zero, by any amount
received from time to time by such Lender pursuant to any right of subrogation
in the Cremascoli Loans.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Revolving Commitments; PROVIDED that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Revolving Loan prior to the end of the Revolving Availability Period),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurodollar Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.13. ALTERNATE RATE OF INTEREST. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate for such
Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (or Lender) of
making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
43
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.14. INCREASED COSTS. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing
Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or main taining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank,
as the case may be, for such additional costs incurred or reduction suffered;
PROVIDED that any such increased cost attributable to Taxes shall be governed
solely by Section 2.16 hereof.
(b) If any Lender or the Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the Issuing Bank's capital or on the capital of
such Lender's or the Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit held
by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level
below that which such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's or the Issuing Bank's policies and the policies
of such Lender's or the Issuing Bank's holding company with respect to capital
adequacy), then from time to time the Borrower will pay to such Lender or the
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or the Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing
44
Bank's right to demand such compensation; PROVIDED that the Borrower shall not
be required to compensate a Lender or the Issuing Bank pursuant to this Section
for any increased costs or reductions incurred more than 180 days prior to the
date that such Lender or the Issuing Bank, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender's or the Issuing Bank's intention to claim compensation
therefor; PROVIDED FURTHER that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 180-day period referred
to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.15. BREAK FUNDING PAYMENTS. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.10(e) and is revoked in accordance therewith), or (d)
the assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.18, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of the
present value of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), LESS (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.16. TAXES. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other WMT Loan Document shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes; PROVIDED that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case
45
may be, on or with respect to any payment by or on account of any obligation of
the Borrower hereunder or under any other WMT Loan Document (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto (other than any such
penalties, interest and reasonable expenses to the extent resulting from the
gross negligence or willful misconduct of the Administrative Agent, such Lender
or the Issuing Bank), whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate containing a summary calculation of the amount of such payment or
liability delivered to the Borrower by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent and
which is customarily issued by the applicable Governmental Authority.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate, it being understood that a
Foreign Lender claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest" may, for purposes of satisfying the foregoing requirement, deliver a
Form W-8, or any subsequent versions thereof or successors thereto (and, if such
Lender delivers a Form W-8, a certificate representing that such Lender is not a
"bank" for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Borrower and is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code)).
(f) If the Administrative Agent or any Lender receives a refund solely
in respect of Indemnified Taxes or Other Taxes, it shall pay over such refund to
the Borrower to the extent that it has already received indemnity payments or
additional amounts pursuant to this Section with respect to such Indemnified
Taxes or Other Taxes giving rise to the refund, net of all reasonable out-
of-pocket expenses and without interest (other than interest paid by the
relevant Governmental Authority with respect to such refund); PROVIDED, HOWEVER,
that the Borrower shall, upon request of the Administrative Agent or such
Lender, repay such refund (plus penalties, interest or other charges imposed by
the relevant Governmental Authority (other than any such penalties, interest or
other charges to the extent resulting from the gross negligence or willful
misconduct of the Administrative Agent, such Lender or the Issuing Bank)) to the
Administrative Agent or such Lender if the Administrative Agent or such Lender
is required to repay such refund to such Governmental Authority. Nothing
contained herein shall require the Administrative Agent or such Lender to make
its tax returns (or any other information relating to its taxes which it deems
confidential) available to the Borrower or any other person.
46
(g) Any tax-related payments to, or indemnification of, the Lenders or
the Cremascoli Lenders in respect of the Cremascoli Loans shall be governed by
Section 2.15 of the Cremascoli Credit Agreement and not by this Section 2.16.
SECTION 2.17. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS. (a) The Borrower shall make each payment required to be made by it
hereunder or under any other WMT Loan Document (whether of principal, interest,
fees or reimbursement of LC Disbursements, or of amounts payable under Section
2.14, 2.15 or 2.16, or otherwise) prior to 12:00 noon, New York City time, on
the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, except payments to be made directly to the
Issuing Bank as expressly provided herein and except that payments pursuant to
Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to the Persons
entitled thereto and payments pursuant to other WMT Loan Documents shall be made
to the Persons specified therein. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment under
any WMT Loan Document shall be due on a day that is not a Business Day, the date
for payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments under each WMT Loan Document shall be
made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Term Loans or participations in LC
Disbursements resulting in such Lender receiving payment of a greater proportion
of the aggregate amount of its Revolving Loans, Term Loans and participations in
LC Disbursements and accrued interest thereon than the proportion received by
any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Revolving Loans, Term
Loans and participations in LC Disbursements of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans, Term Loans and
participations in LC Disbursements; PROVIDED that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant,
47
other than to Holdings, the Borrower or any Subsidiary or Affiliate thereof (as
to which the provisions of this paragraph shall apply). The Borrower consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or the Issuing Bank, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be made by
it pursuant to Section 2.04(a)(iii) or (iv), 2.04(b)(iii) or (iv), 2.05(b),
2.17(d) or 9.03(c), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy
such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
(f) Any funds to be used to prepay Term Borrowings and/or Cremascoli
Term Borrowings pursuant to Section 2.10 or 2.04(b)(ix) shall first be allocated
pro rata between the Term Borrowings and the Cremascoli Term Borrowings based
upon the aggregate outstanding principal amount of the Term Borrowings and the
Cremascoli Term Borrowings on the date of such prepayment. Notwithstanding the
preceding sentence (but without reducing the aggregate amount of Term Borrowings
or Cremascoli Term Borrowings to be prepaid pursuant to Section 2.10(b) or (c)),
to the extent (i) any prepayment of Term Borrowings would require the transfer
of funds (by dividend, repayment of intercompany Indebtedness or otherwise) to
the Borrower from Cremascoli Holdings or any of its subsidiaries and (ii) no
tax-efficient method of transfer (by dividend, repayment of intercompany
Indebtedness or otherwise) exists to transfer such funds to the Borrower, the
Borrower may elect to require Cremascoli to prepay Cremascoli Term Borrowings
with any funds that would otherwise be used to prepay Term Borrowings.
SECTION 2.18. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. (a) If
any Lender requests compensation under Section 2.14, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, or to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment) if, in the judgment of
such Lender, such designation or assignment (i) would
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eliminate or reduce amounts payable pursuant to Section 2.14 or 2.16, as the
case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.
(b) If any Lender defaults in its obligation to fund Loans hereunder,
or if any Lender requests compensation under Section 2.14, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); PROVIDED that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Commitment is being assigned, the Issuing Bank), which consent
shall not unreasonably be withheld or delayed and (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
and participations in LC Disbursements, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder, from the assignee (to the extent
of such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts). A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrower represents and warrants to the
Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of Holdings, the Borrower and
the Subsidiaries is duly organized, validly existing and in good standing, if
applicable, under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, if applicable, every jurisdiction
where failure to maintain such qualification would result in a Material Adverse
Effect.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Transactions to be
entered into by each Loan Party are within such Loan Party's corporate powers
and have been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement has been duly executed and delivered by each
of Holdings and the Borrower and constitutes, and each other Loan Document to
which any Loan Party is to be a party, when executed and delivered by such Loan
Party, will constitute, a legal, valid and binding obligation of Holdings, the
Borrower or such Loan Party (as the case may be), enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
49
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. (a) The WMT
Transactions and the making of each Loan (a) do not require any consent or
approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in
full force and effect and except filings necessary to perfect Liens created
under the WMT Loan Documents, (b) will not violate any applicable law or
regulation or the charter, by-laws or other organizational documents of
Holdings, the Borrower or any of the Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding upon Holdings, the Borrower or
any of the Subsidiaries or its assets (other than the indenture for the WMT
Existing Notes), or give rise to a right thereunder to require any payment to be
made by Holdings, the Borrower or any of the Subsidiaries, and (d) will not
result in the creation or imposition of any Lien on any asset of Holdings, the
Borrower or any of the Subsidiaries, except Liens created under the WMT Loan
Documents.
(b) On and after the Standby LC Issuance Date, the Cremascoli
Transactions and the making of each Cremascoli Loan (a) do not require any
consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in
full force and effect and except filings necessary to perfect Liens created
under the Cremascoli Loan Documents, (b) will not violate any applicable law or
regulation or the charter, by-laws or other organizational documents of
Holdings, the Borrower or any of the Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding upon Holdings, the Borrower or
any of the Subsidiaries or its assets, or give rise to a right thereunder to
require any payment to be made by Holdings, the Borrower or any of the
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of Holdings, the Borrower or any of the Subsidiaries, except Liens
created under the Cremascoli Loan Documents.
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE. (a) The
Borrower has heretofore furnished to the Lenders its consolidated balance sheet
and the related consolidated statements of income, stockholders' equity and cash
flows (i) as of and for the fiscal years ended December 31, 1996, December 31,
1997, and December 31, 1998, reported on by each of BDO Xxxxxxx, LLP,
independent public accountants, and Xxxxxx Xxxxxxxx, independent public
accountants, and (ii) as of and for each fiscal quarter of fiscal year 1999
ended prior to the Effective Date. Such financial statements present fairly, in
all material respects, the consolidated financial position and results of
operations and cash flows of the Borrower as of such dates and for such periods
in accordance with GAAP, subject to year-end audit adjustments.
(b) The Borrower has heretofore furnished to the Lenders the
consolidated balance sheet and the related consolidated statements of income,
stockholders' equity and cash flows for Cremascoli and its subsidiaries (i) as
of and for the fiscal years ended December 31, 1997, and December 31, 1998,
reported on by PricewaterhouseCoopers LLP (or a predecessor firm), independent
public accountants, and (ii) as of and for each fiscal quarter of fiscal year
1999 ended prior to the Effective Date. Such financial statements present
fairly, in all material respects, the consolidated financial position and
results of operations and cash flows of Cremascoli as of such dates and for such
periods in accordance with International Accounting Standards, subject to year-
end audit adjustments.
(c) Holdings has heretofore furnished to the Lenders its pro forma
consolidated balance sheet as of September 30, 1999, prepared giving effect to
the Transactions (including the Cremascoli Transactions) as if the Transactions
had occurred on such date (including (x) the
50
repurchase of all outstanding WMT Existing Notes and the payment of any premium
and accrued and unpaid interest thereon and (y) the making of the Term Loans
contemplated hereby). Such pro forma consolidated balance sheet (i) has been
prepared in good faith based on the same assumptions used to prepare the pro
forma financial statements included in the Information Memorandum (which
assumptions are believed as of the Effective Date by Holdings and the Borrower
to be reasonable), (ii) is based on the best information available as of the
Effective Date to Holdings and the Borrower after due inquiry, (iii) accurately
reflects all adjustments necessary to give effect to the Transactions and (iv)
presents fairly, in all material respects, the pro forma financial position of
Holdings, the Borrower and the Subsidiaries (including Cremascoli and its
subsidiaries) as of September 30, 1999, as if the Transactions had occurred on
such date.
(d) Except as disclosed in the financial statements referred to above
or the notes thereto or in the Information Memorandum and except for the
Disclosed Matters, after giving effect to the Transactions, none of Holdings,
the Borrower or the Subsidiaries has, as of the Effective Date, any material
contingent liabilities, unusual long-term commitments or unrealized losses.
(e) Except as disclosed on Schedule 3.04(e), since December 31, 1998,
there has been no material adverse change in the business, operations, property,
condition (financial or otherwise) or prospects of Holdings, the Borrower and
the Subsidiaries, taken as a whole.
SECTION 3.05. PROPERTIES. (a) Each of Holdings, the Borrower and the
Subsidiar ies has good title to, or valid leasehold interests in, all its real
and personal property material to its business (including its Mortgaged
Properties), except for Permitted Encumbrances and for minor defects in title
that do not interfere with its ability to conduct its business as currently
conducted or to utilize such properties for their intended purposes.
(b) Each of Holdings, the Borrower and the Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by Holdings,
the Borrower and the Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(c) Schedule 3.05 sets forth the address of each real property that is
owned or leased by Holdings, the Borrower or any of the Subsidiaries as of the
Effective Date after giving effect to the Transactions occurring on or before
the Effective Date.
(d) As of the Effective Date, neither Holdings, the Borrower nor any of
the Subsidiaries has received notice of, or has actual knowledge of, any pending
or contemplated condemnation proceeding affecting any Mortgaged Property or any
sale or disposition thereof in lieu of condemnation. Neither any Mortgaged
Property nor any interest therein is subject to any right of first refusal,
option or other contractual right to purchase such Mortgaged Property or
interest therein.
SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of Holdings or the Borrower,
threatened against or affecting Holdings, the Borrower or any of the
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result
51
in a Material Adverse Effect (other than the Disclosed Matters) or (ii) that
involve any of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, none of Holdings, the Borrower
or any of the Subsidiaries (i) has failed to comply with any Environmental Law
or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received written notice of any claim with
respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability.
(c) Since the Effective Date, there has been no change in the status of
the Disclosed Matters that, individually or in the aggregate, has resulted in,
or materially increased the likelihood of, a Material Adverse Effect.
SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of Holdings,
the Borrower and the Subsidiaries is in compliance with all laws, regulations
and orders of any Governmental Authority applicable to it or its property and
all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. No
Default has occurred and is continuing.
SECTION 3.08. INVESTMENT AND HOLDING COMPANY STATUS. None of Holdings,
the Borrower or any of the Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. TAXES. Each of Holdings, the Borrower and the
Subsidiaries has timely filed or caused to be filed all material Tax returns and
reports required to have been filed and has paid or caused to be paid all Taxes
required to have been paid by it, except (a) Taxes that are being contested in
good faith by appropriate proceedings and for which Holdings, the Borrower or
such Subsidiary, as applicable, has set aside on its books adequate reserves or
(b) to the extent that the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. As of the Effective Date, the present value
of all accumulated benefit obligations under each Plan (based on the assumptions
used for purposes of Statement of Financial Accounting Standards No. 87) did not
exceed by more than $500,000 the fair market value of the assets of such Plan,
and the present value of all accumulated benefit obligations of all underfunded
Plans (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not exceed by more than $500,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 3.11. DISCLOSURE. Each of Holdings and the Borrower has
disclosed to the Lenders all agreements, instruments and corporate or other
restrictions to which Holdings, the Borrower or any of the Subsidiaries is
subject, and all other matters known to any of them, that, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse
Effect.
52
Neither the Information Memorandum nor any of the other reports, financial
statements, certificates or other information furnished by or on behalf of any
Loan Party to the Administrative Agent, the French Lender or any Lender in
connection with the negotiation of this Agreement or any other Loan Document or
delivered hereunder or thereunder (as modified or supplemented by other
information so furnished) when taken as a whole contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; PROVIDED that, with respect to projected financial
information, each of Holdings and the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time, it being understood that actual results may differ from
projections.
SECTION 3.12. SUBSIDIARIES. Schedule 3.12 sets forth the name of,
jurisdiction of incorporation or organization and the ownership interest of
Holdings in the Borrower and the Borrower in each Subsidiary as of the Effective
Date.
SECTION 3.13. INSURANCE. Schedule 3.13 sets forth a description of all
insurance maintained by or on behalf of Holdings, the Borrower and the
Subsidiaries as of the Effective Date. As of the Effective Date, all premiums in
respect of such insurance have been paid when due and payable.
SECTION 3.14. LABOR MATTERS. As of the Effective Date, there are no
strikes, lockouts or slowdowns against Holdings, the Borrower or any Subsidiary
pending or, to the knowledge of Holdings or the Borrower, threatened. The hours
worked by and payments made to employees of Holdings, the Borrower and the
Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable Federal, state, local or foreign law dealing with such matters.
All payments due from Holdings, the Borrower or any Subsidiary, or for which any
claim may be made against Holdings, the Borrower or any Subsidiary, on account
of wages and employee health and welfare insurance and other benefits, have been
paid or accrued as a liability on the books of Holdings, the Borrower or such
Subsidiary, except where any failure to make or accrue any such payment would
not violate applicable law or result in a Material Adverse Effect. The
consummation of the Transactions will not give rise to any right of termination
or right of renegotiation on the part of any union under any collective
bargaining agreement to which Holdings, the Borrower or any Subsidiary is bound.
SECTION 3.15. SOLVENCY. Immediately after the consummation of the
Transactions to occur on each of the Effective Date and the Term Funding Date
and immediately following the making of each Loan or the issuance of each Letter
of Credit, and after giving effect to the application of the proceeds of such
Loans, (i) the fair value of the assets of each Loan Party, at a fair valuation,
will exceed its debts and liabilities, subordinated, contingent or otherwise;
(ii) the present fair saleable value of the property of each Loan Party will be
greater than the amount that will be required to pay the probable liability of
its debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and matured; (iii) each Loan Party
will be able to pay its debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; and (iv)
each Loan Party will not have unreasonably small capital with which to conduct
the business in which it is engaged as such business is now conducted and is
proposed to be conducted following the Effective Date.
53
SECTION 3.16. WMT SECURITY DOCUMENTS. On and after the Term Funding
Date:
(a) The Pledge Agreement is effective to create in favor of
the Collateral Agent, for the ratable benefit of the Secured Parties, a
legal, valid and enforceable security interest in the Collateral (as
defined in the Pledge Agreement) and, when the portion of the
Collateral constituting certificated securities (as defined in the
Uniform Commercial Code) is delivered to the Collateral Agent, the
Pledge Agreement shall constitute a fully perfected first priority Lien
on, and security interest in, all right, title and interest of the
pledgor thereunder in such Collateral, in each case prior and superior
in right to any other Person.
(b) The Security Agreement is effective to create in favor of
the Collateral Agent, for the ratable benefit of the Secured Parties, a
legal, valid and enforceable security interest in the Collateral (as
defined in the Security Agreement) and, when financing statements in
appropriate form are filed in the offices specified on Schedule 6 to
the Perfection Certificate, to the extent that a security interest may
be perfected under applicable law, the Security Agreement shall
constitute a fully perfected Lien on, and security interest in, all
right, title and interest of the grantors thereunder in such Collateral
(other than any such Collateral in which a security interest may not be
perfected under applicable law), in each case prior and superior in
right to any other Person, other than with respect to Liens expressly
permitted by the Security Agreement.
(c) When the Security Agreement is filed and recorded in the
United States Patent and Trademark Office and the United States
Copyright Office, the security interest created thereunder shall
constitute a fully perfected Lien on, and security interest in, all
right, title and interest of the WMT Loan Parties in the Intellectual
Property (as defined in the Security Agreement) to the extent that a
security interest may be perfected under applicable law by filing,
recording or registering a security agreement, financing statement or
analogous document in the United States Patent and Trademark Office or
the United States Copyright Office, as applicable, in each case prior
and superior in right to any other Person, other than with respect to
the rights of Persons pursuant to Liens expressly permitted by the
Security Agreement (it being understood that subsequent recordings in
the United States Patent and Trademark Office and the United States
Copyright Office may be necessary to perfect a lien on registered
trademarks, trademark applications and copyrights acquired by the WMT
Loan Parties after the date hereof).
(d) Each Mortgage is effective to create, subject to the
exceptions listed in each title insurance policy covering such
Mortgage, in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties, a legal, valid and enforceable Lien on all of the
WMT Loan Parties' right, title and interest in and to the Mortgaged
Property thereunder and the proceeds thereof, and when such Mortgage is
filed in the offices specified on Schedule 3.16(d), such Mortgage shall
constitute a Lien on, and security interest in, all right, title and
interest of the WMT Loan Parties in such Mortgaged Property and the
proceeds thereof, in each case prior and superior in right to any other
Person, other than with respect to the rights of Persons pursuant to
Liens expressly permitted by such Mortgage.
SECTION 3.17. MERGER AND ACQUISITION DOCUMENTS. The WMT Merger
Agreement and the Cremascoli Acquisition Documents have been duly authorized,
executed and delivered by each of the parties thereto and constitutes a legal,
valid and binding obligation of each such party, enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium
54
or other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law. A true, correct and complete copy of the WMT Merger Agreement has
been furnished to the Administrative Agent.
SECTION 3.18. YEAR 2000 MATTERS. (a) Any reprogramming required to
permit the proper functioning, in and following the year 2000, of (a) the
mission-critical computer systems of Holdings, the Borrower and the Subsidiaries
(other than Cremascoli and its subsidiaries) and (b) equipment containing
embedded microchips which are material to the operation of the business of
Holdings, the Borrower or any Subsidiary (other than Cremascoli and its
subsidiaries) (including systems and equipment supplied by others), and the
preliminary testing of all such systems and equipment, as so reprogrammed, has
been completed in all material respects. The reasonably foreseeable consequences
of year 2000 to Holdings, the Borrower and the Subsidiaries (other than
Cremascoli and its subsidiaries) (including reprogramming errors and the failure
of others' systems or equipment) could not reasonably be expected to result in
an Event of Default or a Material Adverse Effect. The computer and management
information systems of Holdings, the Borrower and the Subsidiaries (other than
Cremascoli and its subsidiaries) are and, with ordinary course upgrading and
maintenance, will continue for the term of this Agreement to be, sufficient to
permit Holdings, the Borrower and the Subsidiaries to conduct their respective
businesses without a Material Adverse Effect.
(b) Cremascoli and its subsidiaries have addressed the issue of the
proper functioning of its mission-critical computers systems in and following
the year 2000 by testing its mission-critical computers and equipment containing
embedded microchips which are material to the operations of Cremascoli and its
subsidiaries (including systems and equipment supplied by others) (the
"CREMASCOLI COMPUTER SYSTEMS"). Management of Cremascoli and its subsidiaries
reasonably believes that no further action is necessary to ensure that neither
the performance nor the functionality of the Cremascoli Computer Systems are or
will be affected by dates prior to, during or after the year 2000. The
Cremascoli Computer Systems are and, with ordinary course upgrading and
maintenance, will continue for the term of this Agreement to be, sufficient to
permit Cremascoli and its subsidiaries to conduct their respective businesses
without a Material Adverse Effect.
ARTICLE IV
CONDITIONS
SECTION 4.01. EFFECTIVE DATE. This Agreement and the Commitments of the
Lenders shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent, the Issuing
Bank and the Lenders and dated the Effective Date) of Xxxxxxx Xxxx &
Xxxxxxxxx, counsel for Holdings and the Borrower,
55
substantially in the form of Exhibit K-1. Holdings and the Borrower
hereby request such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of each WMT Loan Party, the authorization of the WMT
Transactions and any other legal matters relating to the WMT Loan
Parties, the WMT Loan Documents or the WMT Transactions, all in form
and substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by any WMT
Loan Party hereunder or under any other WMT Loan Document.
(e) WAC shall have received not less than $65,000,000 in cash
from the WMT Equity Financing.
(f) All material consents and approvals required to be
obtained from any Governmental Authority or other Person (other than
holders of the WMT Existing Notes) in connection with the WMT Merger
shall have been obtained, and all applicable waiting periods and appeal
periods shall have expired, in each case without the imposition of any
materially burdensome conditions and there shall be no action by or
before any Governmental Authority, actual or threatened, that could
reasonably be expected to restrain, prevent or impose materially
burdensome conditions on the WMT Transactions or the other transactions
contemplated hereby. The WMT Merger shall have been consummated in
accordance with the WMT Merger Documents and applicable law, without
any amendment to or waiver of any material terms or conditions of the
WMT Merger Documents not approved by the Required Lenders. The
Administrative Agent shall have received (or arrangements satisfactory
to the Administrative Agent for such receipt shall have been made)
copies of the WMT Merger Documents and all certificates, opinions and
other documents delivered thereunder, certified by a Financial Officer
of the Borrower as complete and correct.
(g) The Agents shall be reasonably satisfied with the
arrangements for the retention of management of the Borrower, after
giving effect to the WMT Transactions and the other transactions
contemplated hereby.
(h) The Collateral Agent shall have received a counterpart of
the Parent Guarantee Agreement signed on behalf of Holdings.
(i) The Lenders shall have received the pro forma balance
sheet described in Section 3.04(c), and such pro forma consolidated
balance sheet shall be consistent in all material respects with the
forecasts and other information previously provided to the Lenders. The
aggregate amount of fees and expenses (including underwriting discounts
and commissions) payable or otherwise borne by Holdings, the Borrower
and the Subsidiaries in connection with the WMT Transactions shall not
exceed $5,000,000 (or if such fees and expenses exceed $5,000,000, an
Investor Equity Contribution has been made equal to such excess).
56
(j) Except as disclosed on Schedule 3.04(e), since December
31, 1998, there has been no material adverse change in the business,
operations, prospects or financial condition of Holdings, the Borrower
and the Subsidiaries, taken as a whole.
(k) The representations and warranties of Holdings and the
Borrower set forth in Article III shall be true and correct on and as
of the Effective Date, and the Administrative Agent shall have received
a certificate, dated the Effective Date and signed by the President, a
Vice President or a Financial Officer of each of Holdings and the
Borrower, confirming that such representations and warranties are true
and correct on and as of such date.
(l) The Lenders shall have received a solvency letter from
Valuation Research Corp., in form and substance reasonably satisfactory
to the Lenders, as to the solvency of Holdings, the Borrower and the
Subsidiaries on a consolidated basis after giving effect to the WMT
Transactions (including (i) the repurchase of all outstanding WMT
Existing Notes and the payment of any premium and accrued and unpaid
interest thereon and (ii) the making of the Term Loans) contemplated
hereby and the consummation of the other transactions contemplated
hereby.
(m) After giving effect to the WMT Transactions and the other
transactions contemplated hereby (other than the Cremascoli
Transactions), neither Holdings, the Borrower nor any of the
Subsidiaries shall have outstanding any shares of preferred stock or
any Indebtedness, other than (i) Indebtedness incurred under the WMT
Loan Documents, (ii) the Preferred Stock, (iii) not more than
$30,000,000 of Investor Subordinated Debt, (iv) the WMT Existing Notes
and (v) the Indebtedness listed on Schedule 6.01.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on
December 23, 1999.
SECTION 4.02. TERM CREDIT EVENT. The obligation of each Lender to make
a Term Loan on the occasion of the Term Borrowing is subject to the satisfaction
of the following conditions:
(a) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent, the Issuing
Bank and the Lenders and dated the Term Funding Date) of each of (i)
Xxxxxxx Xxxx & Xxxxxxxxx, counsel for Holdings and the Borrower,
substantially in the form of Exhibit K-2, and (ii) local counsel in
each jurisdiction where WMT Collateral (other than inventory in the
possession of distributors) is located, substantially in the form of
Exhibit L, and, in the case of each such opinion required by this
paragraph, covering such other matters relating to the WMT Loan
Parties, the WMT Loan Documents or the WMT Transactions as the Required
Lenders shall reasonably request. Holdings and the Borrower hereby
request such counsel to deliver such opinions.
(b) The representations and warranties contained in Sections
3.01, 3.02, 3.03, 3.06(a)(ii), 3.11, 3.15, and 3.16 shall be true and
correct on and as of the date of such Borrowing.
57
(c) No Event of Default shall have occurred and be continuing.
(d) The Administrative Agent shall have received a
certificate, dated the Term Funding Date and signed by the President, a
Vice President or a Financial Officer of each of Holdings and the
Borrower, confirming compliance with the conditions specified in
clauses (b) and (c) above.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Term Funding Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by any WMT
Loan Party hereunder or under any other WMT Loan Document.
(f) The Collateral Agent shall have received counterparts of
the Pledge Agreement signed on behalf of Holdings, the Borrower and
each Subsidiary Loan Party, together with stock certificates
representing all the outstanding shares of capital stock of the
Borrower and each Subsidiary owned by or on behalf of any WMT Loan
Party as of the Term Funding Date after giving effect to the WMT
Transactions (except that stock certificates representing shares of
voting stock of Cremascoli Holdings or any directly owned Foreign
Subsidiary may be limited to 65% of the outstanding shares of voting
stock of Cremascoli Holdings or such Foreign Subsidiary), promissory
notes evidencing all intercompany Indebtedness owed to any WMT Loan
Party by Holdings, the Borrower or any Subsidiary as of the Term
Funding Date after giving effect to the WMT Transactions and stock
powers and instruments of transfer, endorsed in blank, with respect to
such stock certificates and promissory notes.
(g) The Collateral Agent shall have received counterparts of
the Security Agreement signed on behalf of Holdings, the Borrower and
each Subsidiary Loan Party, together with the following:
(i) all documents and instruments, including Uniform
Commercial Code financing statements, required by law or
reasonably requested by the Administrative Agent to be filed,
registered or recorded to create or perfect the Liens intended
to be created under the Security Agreement; and
(ii) a completed Perfection Certificate dated the
Term Funding Date and signed by an executive officer or
Financial Officer of each of Holdings and the Borrower,
together with all attachments contemplated thereby, including
the results of a search of the Uniform Commercial Code (or
equivalent) filings made with respect to the WMT Loan Parties
in the jurisdictions contemplated by the Perfection
Certificate and copies of the financing statements (or similar
documents) disclosed by such search and evidence reasonably
satisfactory to the Collateral Agent that the Liens indicated
by such financing statements (or similar documents) are
permitted by Section 6.02 or have been released.
(h) The Collateral Agent shall have received (i) counterparts
of a Mortgage with respect to each Mortgaged Property signed on behalf
of the record owner of such Mortgaged Property, (ii) a policy or
policies of title insurance issued by a nationally recognized title
insurance company, insuring the Lien of each such Mortgage as a valid
first Lien on the Mortgaged Property described therein, free of any
other Liens except as permitted by
58
Section 6.02, together with such endorsements, coinsurance and
reinsurance as the Collateral Agent or the Required Lenders may
reasonably request, and (iii) such surveys, abstracts and appraisals as
may be required pursuant to such Mortgages or as the Collateral Agent
or the Required Lenders may reasonably request.
(i) The Administrative Agent shall have received evidence
satisfactory to it that the insurance required by Section 5.07 is in
effect.
(j) None of Holdings, the Borrower or any of the Subsidiaries
shall have outstanding any shares of preferred stock or any
Indebtedness except Indebtedness and preferred stock permitted under
Section 6.01.
(k) The Administrative Agent shall have received written
notice requesting a Term Borrowing as required by Section 2.03.
SECTION 4.03. STANDBY LC CREDIT EVENT. The obligation of the Issuing
Bank to issue the initial Standby Letter of Credit is subject to the
satisfaction of the following conditions:
(a) The Administrative Agent shall have received revisions to
Schedules 3.05, 3.12, 3.13 and 3.16(d), and such revisions shall be
satisfactory in all material respect to the Administrative Agent.
(b) After giving effect to the revisions provided pursuant to
clause (a) above, the representations and warranties of Holdings and
the Borrower set forth in Article III shall be true and correct on and
as of the Standby LC Issuance Date.
(c) No Default or Event of Default shall have occurred and be
continuing.
(d) The Administrative Agent shall have received (i) a
certificate, dated the Standby LC Issuance Date and signed by the
President, a Vice President or a Financial Officer of each of Holdings
and the Borrower, confirming compliance with the conditions specified
in clauses (b) and (c) above and certifying the revisions provided
pursuant to clause (a) above are true and correct as of the Standby LC
Issuance Date and (ii) a solvency certificate, dated as of the Standby
LC Issuance Date, from the chief financial officer of the Borrower, in
form and substance reasonably satisfactory to the Lenders, as to the
solvency of Holdings, the Borrower and the Subsidiaries on a
consolidated basis after giving effect to the Cremascoli Transactions
and the consummation of the other transactions contemplated hereby.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Standby LC Issuance
Date, including, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses required to be reimbursed or paid by any
Loan Party hereunder or under any other Loan Document.
(f) The Administrative Agent shall have received counterparts
of the Cremascoli Credit Agreement signed on behalf of Cremascoli and
the French Lender and all conditions to effectiveness of the Cremascoli
Credit Agreement shall have been satisfied.
(g) The Administrative Agent and the Issuing Bank shall have
received written notice requesting the issuance of a Standby Letter of
Credit as required by Section 2.04(b)(i).
59
(h) Cremascoli Holdings shall have received not less than
$32,420,000 in cash from the Cremascoli Equity Financing and
contributed not less than $17,500,000 of such amount to Cremascoli.
(i) All material consents and approvals required to be
obtained from any Governmental Authority or other Person in connection
with the Cremascoli Acquisition shall have been obtained, and all
applicable waiting periods and appeal periods shall have expired, in
each case without the imposition of any materially burdensome
conditions and there shall be no action by or before any Governmental
Authority, actual or threatened, that could reasonably be expected to
restrain, prevent or impose materially burdensome conditions on the
Cremascoli Transactions or the other transactions contemplated hereby.
The Cremascoli Transaction shall have been consummated in accordance
with the Cremascoli Acquisition Documents and applicable law, without
any amendment to or waiver of any material terms or conditions of the
Cremascoli Acquisition Documents not approved by the Required Lenders.
The Administrative Agent shall have received (or arrangements
satisfactory to the Administrative Agent for such receipt shall have
been made) copies of the Cremascoli Acquisition Documents and all
certificates, opinions and other documents delivered thereunder,
certified by a Financial Officer of the Borrower as complete and
correct.
(j) The Agents shall be reasonably satisfied with the
arrangements for the retention of management of Cremascoli, after
giving effect to the Cremascoli Transactions and the other transactions
contemplated hereby.
(k) The aggregate amount of fees and expenses (including
underwriting discounts and commissions) payable or otherwise borne by
Holdings, the Borrower and the Subsidiaries (including Cremascoli and
its subsidiaries) in connection with the Cremascoli Transactions shall
not exceed $2,500,000 (or if such fees and expenses exceed $2,500,000,
Investor Equity Contributions have been made equal to the sum of any
such excess plus the excess of any fees and expenses described in
Section 4.01(i) over $5,000,000).
(l) Except as disclosed on Schedule 3.04(e), since December
31, 1998, there has been no material adverse change in the business,
operations, prospects or financial condition of Holdings, the Borrower
and the Subsidiaries (including Cremascoli and its subsidiaries), taken
as a whole.
(m) None of Holdings, the Borrower or any of the Subsidiaries
shall have outstanding any shares of preferred stock or any
Indebtedness except Indebtedness and preferred stock permitted under
Section 6.01.
SECTION 4.04. OTHER CREDIT EVENTS. The obligation of each Lender to
make a Revolving Loan on the occasion of any Revolving Borrowing, and of the
Issuing Bank to issue, amend, renew or extend any Letter of Credit (other than
the initial issuance of the Standby Letter of Credit), is subject to the
satisfaction of the following conditions:
(a) The representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct on and as of the
date of such Borrowing or the date of
60
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable (other than those which expressly relate to a specified
date).
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default shall have occurred and be
continuing.
(c) All of the conditions listed in Section 4.02 shall have
been satisfied (or waived in accordance with Section 9.02).
(d) The Administrative Agent shall have received notice
requesting a Borrowing or the issuance of a Letter of Credit as
required by Section 2.03, 2.04(a)(i) or 2.04(b)(i), as the case may be.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by Holdings
and the Borrower on the date thereof as to the matters specified in paragraphs
(a), (b) and (c) of this Section.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal
of and interest on each Loan and all fees payable hereunder shall have been paid
in full and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, each of Holdings and the Borrower
covenants and agrees with the Lenders that:
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Borrower
will furnish to the Administrative Agent and each Lender:
(a) within 90 days (as soon as practicable, but in no event
any later than 120 days, for fiscal year 1999) after the end of each
fiscal year of Holdings, its audited consolidated balance sheet and
related statements of operations, stockholders' equity and cash flows
as of the end of and for such year, and setting forth in each case in
comparative form the figures for the previous fiscal year, all reported
on by Ernst & Young LLP, or other independent public accountants of
recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the
financial condition and results of operations of Holdings, the Borrower
and the Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;
(b) within 45 days (as soon as practicable, but in no event
any later than 60 days, for each fiscal quarter ended prior to October
1, 2000) after the end of each of the first three fiscal quarters of
each fiscal year of Holdings, its consolidated balance sheet and
related statements of operations, stockholders' equity and cash flows
as of the end of and for such fiscal quarter and the then elapsed
portion of the fiscal year, and setting forth in each case in
comparative form the figures for the corresponding period or periods of
(or, in the case of the balance
61
sheet, as of the end of) the previous fiscal year, all certified by a
Financial Officer of the Borrower as presenting fairly in all material
respects the financial condition and results of operations of Holdings,
the Borrower and the Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer of
the Borrower (i) certifying as to whether a Default has occurred and,
if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting
forth reasonably detailed calculations demonstrating compliance with
Sections 6.11, 6.12, 6.13 and 6.14 and (iii) stating whether any change
in GAAP or in the application thereof has occurred since the date of
the Borrower's audited financial statements referred to in Section 3.04
and, if any such change has occurred, specifying the effect of such
change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements
under clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the
extent required by accounting rules or guidelines); PROVIDED that no
such certificate shall be required if each of Holdings and the Borrower
has used its best efforts to obtain the same and such accountants are
unwilling to provide such a certificate and other independent certified
public accountants of recognized national standing are unwilling to
provide such a certificate;
(e) as soon as practicable, and in any event within 60 days
after the commencement of each fiscal year of Holdings, a detailed
consolidated budget for such fiscal year (including a projected
consolidated balance sheet and related statements of projected
operations and cash flow as of the end of and for such fiscal year)
and, promptly when available, any significant revisions of such budget;
(f) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by Holdings, the Borrower or any Subsidiary with the Securities
and Exchange Commission, or any Governmental Authority succeeding to
any or all of the functions of said Commission, or with any national
securities exchange, as the case may be; and
(g) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of Holdings, the Borrower or any Subsidiary, or compliance
with the terms of any Loan Document, as the Administrative Agent or any
Lender may reasonably request.
62
SECTION 5.02. NOTICES OF MATERIAL EVENTS. The Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Permitted Investors, Holdings, the Borrower or
any Subsidiary that, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect; and
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of Holdings, the Borrower and the
Subsidiaries in an aggregate amount exceeding $2,000,000.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. INFORMATION REGARDING COLLATERAL. (a) The Borrower will
furnish to the Administrative Agent prompt written notice of any change (i) in
any Loan Party's corporate name or in any trade name used to identify it in the
conduct of its business or in the ownership of its properties, (ii) in the
location of any Loan Party's chief executive office, its principal place of
business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by it
is located (including the establishment of any such new office or facility),
(iii) in any Loan Party's identity or corporate structure or (iv) in any Loan
Party's Federal Taxpayer Identification Number (if applicable). Each of Holdings
and the Borrower agrees not to effect or permit any change referred to in the
preceding sentence unless all filings have been made under the Uniform
Commercial Code or otherwise that are required in order for the Collateral Agent
or the French Lender to continue at all times following such change to have a
valid, legal and perfected security interest in all the Collateral. The Borrower
also agrees promptly to notify the Administrative Agent if any material portion
of the tangible Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial statements
with respect to the preceding fiscal year pursuant to clause (a) of Section
5.01, the Borrower shall deliver to the Administrative Agent a certificate of a
Financial Officer and the chief legal officer of each of Holdings and the
Borrower setting forth the information required pursuant to Section 2 of the
Perfection Certificate or confirming that there has been no change in such
information since the Term Funding Date or the date of the most recent
certificate delivered pursuant to this Section.
SECTION 5.04. EXISTENCE; CONDUCT OF BUSINESS. Each of Holdings and the
Borrower will, and will cause each of the Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and the rights, licenses, permits, privileges, franchises,
patents, copyrights, trademarks and trade names used in the conduct of its
business; PROVIDED that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.03 and shall
not require any such action if the failure to take such action could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. PAYMENT OF OBLIGATIONS. Each of Holdings and the Borrower
will, and will cause each of the Subsidiaries to, pay, settle or discharge (a)
all Taxes, assessments and governmental charges or levies imposed upon it, or
upon its income or profits, or upon any of its properties, before they shall
become delinquent, (b) all lawful claims (including claims for labor, materials
and supplies) which, if unpaid, might give rise to a Lien upon any of its
properties, and (c) except as prohibited hereunder, all of its other
Indebtedness as it shall become due; PROVIDED,
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HOWEVER, that none of Holdings, the Borrower or any Subsidiary shall be required
to pay any such Tax, assessment, charge, levy, claim or Indebtedness which (x)
is being contested in good faith by appropriate proceedings and as to which
adequate reserves therefor have been established in accordance with GAAP, unless
the failure to make any such payment (i) would give rise to an immediate right
to foreclose on a Lien securing such amounts or (ii) would have a Material
Adverse Effect or (y) if the aggregate amount of such unpaid tax, assessment,
charge, levy, claim or Indebtedness does not exceed $2,000,000 (taking into
account applicable insurances or indemnities to the extent the provider of such
insurance or indemnity has been notified thereof, has the financial ability to
support its obligations with respect thereto and is not disputing the same).
SECTION 5.06. MAINTENANCE OF PROPERTIES. Each of Holdings and the
Borrower will, and will cause each of the Subsidiaries to, keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted.
SECTION 5.07. INSURANCE. Each of Holdings and the Borrower will, and
will cause each of the Subsidiaries to, at all times maintain in full force and
effect, with financially sound and reputable insurance companies, insurance on
all property owned, occupied or controlled by it in at least such amounts
(including deductibles) and against at least such risks insured against in the
same general area by companies engaged in the same or a similar business and
such other insurance as may be required by law. Each of Holdings and the
Borrower will, and will cause each Subsidiary to, furnish to the Administrative
Agent, upon written request of the Administrative Agent, a summary of the
insurance carried together with certificates of insurance and other evidence of
such insurance, if any, naming the Administrative Agent as an additional insured
and/or loss payee. Without limiting the generality of the foregoing, each of
Holdings and the Borrower will, and will cause each of the Subsidiaries to,
maintain, with the same or other financially sound and reputable insurance
companies, the products liability insurance of Holdings, the Borrower and the
Subsidiaries as in existence on the Effective Date.
SECTION 5.08. CASUALTY AND CONDEMNATION. (a) The Borrower will furnish
to the Administrative Agent, the French Lender and the Lenders prompt written
notice of any casualty or other insured damage to any material portion of any
Collateral or the commencement of any action or proceeding for the taking of any
Collateral or any part thereof or interest therein under power of eminent domain
or by condemnation or similar proceeding.
(b) If any event described in paragraph (a) of this Section results in
Net Proceeds (whether in the form of insurance proceeds, condemnation award or
otherwise), the Administrative Agent is authorized to collect such Net Proceeds
and, if received by Holdings, the Borrower or any Subsidiary, such Net Proceeds
shall be paid over to the Administrative Agent or the French Lender, as directed
by the Administrative Agent; PROVIDED that (i) if the aggregate Net Proceeds in
respect of such event (other than proceeds of business income insurance) are
less than $1,000,000, such Net Proceeds shall be paid over to the Borrower
unless a Default has occurred and is continuing, and (ii) all proceeds of
business income insurance shall be paid over to the Borrower unless a Default
has occurred and is continuing. All such Net Proceeds retained by or paid over
to the Administrative Agent or the French Lender shall be held by the
Administrative Agent or the French Lender, as the case may be, and released from
time to time to pay the costs of repairing, restoring or replacing the affected
property in accordance with the terms of the applicable Loan Document, subject
to the provisions of the applicable Loan Document regarding application of such
Net Proceeds during a Default.
64
(c) If any Net Proceeds retained by or paid over to the Administrative
Agent as provided above continue to be held by the Administrative Agent on the
date that is 270 days after the occurrence of the event resulting in such Net
Proceeds, then such Net Proceeds shall be applied to prepay Term Borrowings as
provided in Section 2.10(b).
SECTION 5.09. BOOKS AND RECORDS; INSPECTION AND AUDIT RIGHTS. Each of
Holdings and the Borrower will, and will cause each of the Subsidiaries to, keep
proper books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and
activities. Each of Holdings and the Borrower will, and will cause each of the
Subsidiaries to, permit any representatives designated by the Administrative
Agent, the French Lender or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested and, in the case of any Lender (other than the
Administrative Agent, the Collateral Agent or the French Lender or as provided
in Section 9.03), at the sole expense of such Lender.
SECTION 5.10. COMPLIANCE WITH LAWS. Each of Holdings and the Borrower
will, and will cause each of the Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.11. USE OF PROCEEDS AND LETTERS OF CREDIT. The proceeds of
the Term Loans, together with a portion of the proceeds of the WMT Equity
Financing, will be used only for repayment or repurchase of the WMT Existing
Notes, including any premium and accrued and unpaid interest thereon. The
proceeds of the Revolving Loans will be used only for general corporate
purposes. No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations T, U and X. Trade Letters of Credit will be
issued only for general corporate purposes. Standby Letters of Credit will be
issued only to support the obligations of the Cremascoli Loan Parties under the
Cremascoli Loan Documents.
SECTION 5.12. ADDITIONAL SUBSIDIARIES. If any additional Subsidiary is
formed or acquired after the Effective Date, the Borrower will notify the
Administrative Agent and the Lenders thereof and (a) if such Subsidiary is a
Subsidiary Loan Party, the Borrower will cause such Subsidiary to become a party
to the Subsidiary Guarantee Agreement, the Indemnity, Subrogation and
Contribution Agreement and each applicable WMT Security Document within three
Business Days after such Subsidiary is formed or acquired and promptly take such
actions to create and perfect Liens on such Subsidiary's assets to secure the
Obligations as the Administrative Agent or the Required Lenders shall reasonably
request, (b) if any shares of capital stock or Indebtedness of such Subsidiary
are directly owned by or on behalf of any WMT Loan Party, the Borrower will
pledge or cause to be pledged such shares and promissory notes evidencing such
Indebtedness to be pledged pursuant to the Pledge Agreement within three
Business Days after such Subsidiary is formed or acquired (except that, except
as otherwise provided by Section 5.13, if such Subsidiary is Cremascoli Holdings
or a Foreign Subsidiary directly owned by the Borrower or a Subsidiary Loan
Party, shares of voting stock of Cremascoli Holdings or such Foreign Subsidiary
to be pledged pursuant to the Pledge Agreement may be limited to 65% of the
outstanding shares of voting stock of Cremascoli Holdings or such Foreign
Subsidiary) and (c) following the Cremascoli Acquisition, if such Subsidiary is
a subsidiary
65
of Cremascoli, the Borrower shall cause such Subsidiary to comply with the
requirements of paragraph (c) of Article V of the Cremascoli Credit Agreement;
PROVIDED that, in the event that such Subsidiary is formed or acquired prior to
the Term Funding Date, all of the foregoing actions shall be deferred to the
Term Funding Date (other than the requirement that such Subsidiary become a
party to the Subsidiary Guarantee Agreement and the Indemnity, Subrogation and
Contribution Agreement).
SECTION 5.13. FURTHER ASSURANCES. (a) Each of Holdings and the Borrower
will, and will cause each Loan Party to, execute any and all further documents,
financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture
filings, mortgages, deeds of trust and other documents), which may be required
under any applicable law, or which the Administrative Agent, the French Lender
or the Required Lenders may reasonably request, to effectuate the transactions
contemplated by the Loan Documents or to grant, preserve, protect or perfect the
Liens created or intended to be created by the Loan Documents or the validity or
priority of any such Lien, all at the expense of the Loan Parties. Each of
Holdings and the Borrower also agrees to provide to the Administrative Agent,
from time to time upon request, evidence reasonably satisfactory to the
Administrative Agent as to the perfection and priority of the Liens created or
intended to be created by the Loan Documents.
(b) If any material assets (other than (i) assets constituting
Collateral under any Loan Document that become subject to the Lien of such Loan
Document upon acquisition thereof and (ii) certain de minimis assets that do not
have a fair market value in excess of, individually, $100,000 or, in the
aggregate, $500,000), including any real property or improvements thereto or any
interest therein, are acquired by any Loan Party after the Term Funding Date or
the Standby LC Issuance Date, as the case may be, Holdings and the Borrower
will, or will cause such Loan Party to, undertake the following actions:
(i) in the case of a WMT Loan Party, the Borrower will
promptly notify the Administrative Agent and the Lenders thereof, and,
if requested by the Administrative Agent or the Required Lenders, the
Borrower will cause such assets to be subjected to a Lien securing the
Obligations and will take, and cause the Subsidiary Loan Parties to
take, such actions as shall be necessary or reasonably requested by the
Administrative Agent to grant and perfect such Liens, including actions
described in paragraph (a) of this Section, all at the expense of the
WMT Loan Parties, or
(ii) in the case of a Cremascoli Loan Party, the Borrower will
promptly notify the Administrative Agent, the French Lender and the
Lenders thereof, and, if requested by the French Lender or the Required
Lenders, the Borrower will cause such assets to be subjected to a Lien
securing the obligations of the Cremascoli Loan Parties and will cause
such actions as shall be necessary or reasonably requested by the
French Lender to grant and perfect such Liens, including actions
described in paragraph (a) of this Section, all at the expense of the
Cremascoli Loan Parties.
Without limiting the generality of the foregoing and notwithstanding Section
5.12(b), if the Collateral Agent reasonably requests the Borrower to pledge or
to cause to be pledged more than 65% of the voting stock of Cremascoli Holdings
or any directly owned Foreign Subsidiary or the capital stock of any indirectly
owned Foreign Subsidiary and such pledge may be accomplished without causing
adverse tax consequences to Holdings or the Borrower, then the Borrower shall
pledge such voting stock or cause such capital stock to be pledged to the
Collateral Agent for the benefit of the Secured
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Parties; PROVIDED, HOWEVER, that, following any such pledge described in this
sentence, if the Borrower notifies the Collateral Agent that the continued
existence of such pledge is reasonably likely to cause adverse tax consequences
to Holdings or the Borrower, then, so long as no Event of Default shall have
occurred and be continuing, the Collateral Agent shall promptly release such
pledge to the extent necessary to eliminate such adverse tax consequences.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, each of Holdings and the Borrower covenants and
agrees with the Lenders that:
SECTION 6.01. INDEBTEDNESS; CERTAIN EQUITY SECURITIES. (a) Each of
Holdings and the Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Effective Date and set forth
in Schedule 6.01 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof or result in an earlier maturity date or decreased weighted
average life thereof;
(iii) Indebtedness of the Borrower to any Subsidiary and any
Subsidiary to the Borrower or any other Subsidiary; PROVIDED that
Indebtedness of any Subsidiary that is not a Loan Party to any Loan
Party shall be subject to Section 6.04;
(iv) Guarantees by (A) Holdings of Indebtedness of the
Borrower or any Subsidiary, (B) the Borrower of Indebtedness of any
Subsidiary and (C) any Subsidiary of Indebtedness of the Borrower or
any other Subsidiary; PROVIDED that Guarantees by any Loan Party of
Indebtedness of any Subsidiary that is not a Loan Party shall be
subject to Section 6.04;
(v) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition
thereof; PROVIDED that (A) such Indebtedness is incurred prior to or
within 90 days after such acquisition or the completion of such
construction or improvement and (B) the aggregate principal amount of
Indebtedness permitted by this clause (v) shall not exceed $2,500,000
or, following the Cremascoli Acquisition, $4,000,000 at any time
outstanding, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof;
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(vi) Indebtedness of any Person that becomes a Subsidiary
after the Effective Date; PROVIDED that (A) such Indebtedness exists at
the time such Person becomes a Subsidiary and is not created in
contemplation of or in connection with such Person becoming a
Subsidiary and (B) the aggregate principal amount of Indebtedness
permitted by this clause (vi) shall not exceed $2,500,000 or, following
the Cremascoli Acquisition, $6,500,000 at any time outstanding, and
extensions, renewals and replacements of any such Indebtedness that do
not increase the principal amount thereof;
(vii) Investor Subordinated Debt in an aggregate principal
amount of up to $30,000,000 or following the Cremascoli Acquisition,
$45,000,000;
(viii) on and prior to the Term Funding Date, the WMT Existing
Notes;
(ix) following the Cremascoli Acquisition, Indebtedness of the
Italian Receivables Subsidiary in connection with the Italian
Receivables Program not to exceed $6,000,000.
(x) other unsecured Indebtedness in an aggregate principal
amount not exceeding $2,000,000 or, following the Cremascoli
Acquisition, $3,000,000 at any time outstanding.
(b) Holdings will not create, incur, assume or permit to exist any
Redeemable Preferred Stock; PROVIDED that Holdings may issue Redeemable
Preferred Stock to the extent such preferred stock, for the purposes of Section
6.01(a), is deemed to be Indebtedness of Holdings with an aggregate principal
amount equal to the stated value thereof.
(c) The Borrower will not, and will not permit any Subsidiary to, issue
any preferred stock or be or become liable in respect of any obligation
(contingent or otherwise) to purchase, redeem, retire, acquire or make any other
payment (other than dividends permitted under Section 6.07) in respect of any
shares of capital stock of Holdings, the Borrower or any Subsidiary or any
option, warrant or other right to acquire any such shares of capital stock;
PROVIDED, HOWEVER, that nothing in this Section 6.01(c) shall prevent (i) the
Borrower or any Subsidiary from acquiring the equity securities of any
Subsidiary not owned by it if such purchase is otherwise permitted by this
Agreement, (ii) any Subsidiary from issuing preferred stock to the Borrower or
the Borrower from issuing preferred stock (other than Redeemable Preferred
Stock) to Holdings, so long as such preferred stock is pledged to the Collateral
Agent to secure the Obligations, to the extent required by the Loan Documents,
or (iii) any Subsidiary from issuing preferred stock to any third party;
PROVIDED that for purposes of Section 6.01(a), such preferred stock shall be
deemed to be Indebtedness of such Subsidiary with an aggregate principal amount
equal to the stated value thereof.
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SECTION 6.02. LIENS. Each of Holdings and the Borrower will not, and
will not permit any Subsidiary to, create, incur, assume or permit to exist any
Lien on any property or asset now owned or hereafter acquired by it, or assign
or sell any income or revenues (including accounts receivable) or rights in
respect of any thereof, except:
(a) Liens created under the Loan Documents;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the Effective Date and set forth in Schedule
6.02; PROVIDED that (A) such Lien shall not apply to any other property
or asset of the Borrower or any Subsidiary and (B) such Lien shall
secure only those obligations which it secures on the Effective Date
and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof;
(d) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on
any property or asset of any Person that becomes a Subsidiary after the
Effective Date prior to the time such Person becomes a Subsidiary;
PROVIDED that (A) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary ,
as the case may be, (B) such Lien shall not apply to any other property
or assets of Holdings, the Borrower or any Subsidiary and (C) such Lien
shall secure only those obligations which it secures on the date of
such acquisition or the date such Person becomes a Subsidiary, as the
case may be and extensions, renewals and replacements thereof that do
not increase the outstanding principal amount thereof;
(e) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; PROVIDED that (A) such
security interests secure Indebtedness permitted by clause (v) of
Section 6.01(a), (B) such security interests and the Indebtedness
secured thereby are incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement and
(C) such security interests shall not apply to any other property or
assets of Holdings, the Borrower or any Subsidiary;
(f) Liens on the accounts receivables of the Italian
Receivables Subsidiary pursuant to the Italian Receivables Program;
(g) on and prior to the Term Funding Date, Liens securing the
WMT Existing Notes; and
(h) Liens on any escrow accounts established pursuant to the
Cremascoli Acquisition Documents.
SECTION 6.03. FUNDAMENTAL CHANGES. (a) Each of Holdings and the
Borrower will not, nor will it permit any Subsidiary to, merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing (i) any Subsidiary may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation, (ii) any Person
(other than the Borrower or Holdings) may merge into any
69
Subsidiary in a transaction in which the surviving entity is a Subsidiary and
(iii) any Subsidiary may liquidate or dissolve if the Borrower determines in
good faith that such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders; PROVIDED that any
such merger involving a Person that is not a wholly owned Subsidiary immediately
prior to such merger shall not be permitted unless also permitted by Section
6.04.
(b) The Borrower will not, and will not permit any of the Subsidiaries
to, engage to any material extent in any trade or business other than a Related
Business. Holdings will not engage in any trade or business, or otherwise
conduct any business activity, other than the ownership of capital stock of the
Borrower and activities incidental thereto. Cremascoli Holdings will not engage
in any trade or business, or otherwise conduct any business activity, other than
the ownership of capital stock of Cremascoli and activities incidental thereto.
SECTION 6.04. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND
ACQUISITIONS. Each of Holdings and the Borrower will not, and will not permit
any of the Subsidiaries to, purchase, hold or acquire (including pursuant to any
merger with any Person that was not a wholly owned Subsidiary prior to such
merger) any capital stock, evidences of Indebtedness or other securities
(including any option, warrant or other right to acquire any of the foregoing)
of, make or permit to exist any loans or advances to, Guarantee any obligations
of, or make or permit to exist any investment or any other interest in, any
other Person, or purchase or otherwise acquire (in one transaction or a series
of transactions) any assets of any other Person constituting a business unit,
except:
(a) Permitted Investments;
(b) investments, loans or advances existing on the Effective
Date and set forth on Schedule 6.04, to the extent such investments,
loans or advances would not be permitted under any other clause of this
Section;
(c) investments by (i) Holdings in the capital stock of the
Borrower, (ii) the Borrower in the capital stock of any Subsidiary (not
including any such Subsidiary that becomes a Subsidiary pursuant to
such investment) and (iii) any Subsidiary in the capital stock of any
other Subsidiary (not including any such Subsidiary that becomes a
Subsidiary pursuant to such investment); PROVIDED that (A) any such
shares of capital stock held by a Loan Party shall be pledged, if
required, pursuant to the applicable Loan Document (subject to the
limitations applicable to voting stock of Cremascoli Holdings or a
Foreign Subsidiary referred to in Section 5.12), (B) the amount of
investments by Loan Parties in Subsidiaries that are not Loan Parties,
together with the amount of all outstanding loans or advances to such
Subsidiaries, shall not exceed 10% of the total assets of Holdings, the
Borrower and the Subsidiaries at the time of such investment, loan or
advance and after giving effect thereto and (C) at the time any
investment, loan or advance described in clause (B) is made, the
portion of Consolidated EBITDA attributable to all Subsidiaries that
are not Loan Parties taken as a whole for the most recent four
consecutive fiscal quarters for which financials are available shall
not exceed 15% of the Consolidated EBITDA for such period;
(d) loans or advances made by the Borrower to any Subsidiary
and made by any Subsidiary to the Borrower or any other Subsidiary;
PROVIDED that (i) any such loans and advances made by a Loan Party
shall be evidenced by a promissory note pledged, if required, pursuant
to the applicable Loan Document, (ii) the outstanding amount of all
such loans and
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advances by Loan Parties to Subsidiaries that are not Loan Parties,
together with the amount of investments in such Subsidiaries, shall not
exceed 10% of the total assets of Holdings, the Borrower and the
Subsidiaries at the time of such loan or advance and after giving
effect thereto and (iii) at the time any loan or advance described in
clause (ii) is made, the Consolidated EBITDA attributable to all
Subsidiaries that are not Loan Parties taken as a whole for the most
recent four consecutive fiscal quarters for which financials are
available shall not exceed 15% of the Consolidated EBITDA for such
period;
(e) Guarantees constituting Indebtedness permitted by Section
6.01;
(f) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers, in each case in the ordinary course of
business;
(g) investments received in consideration of sales or other
dispositions permitted under clause (e) of Section 6.05;
(h) loans or advances to employees and officers of the
Borrower or any Subsidiary in the ordinary course of business to
provide for the payment of reasonable expenses incurred by such persons
in the performance of their responsibilities to the Borrower or such
Subsidiary or in connection with any relocation;
(i) the Cremascoli Acquisition; and
(j) other investments, (i) payable in cash, in an aggregate
amount not to exceed $4,000,000 or, following the Cremascoli
Acquisition, $5,000,000 at any time outstanding or (ii) payable in
capital stock of Holdings with an aggregate value not to exceed
$10,000,000; PROVIDED that the Borrower or any Subsidiary may make
additional investments (including acquisitions) not otherwise
prohibited hereunder to the extent financed solely with Investor
Capital
SECTION 6.05. ASSET SALES. Each of Holdings and the Borrower will not,
and will not permit any of the Subsidiaries to, sell, transfer, lease or
otherwise dispose of any asset, including any capital stock of another Person,
and the Borrower will not, and each of Holdings and the Borrower will not permit
any of the Subsidiaries to, issue any additional shares of capital stock of the
Borrower or such Subsidiary or other ownership interest in the Borrower or such
Subsidiary, as the case may be, except:
(a) sales of inventory, used or surplus equipment and
Permitted Investments, in each case in the ordinary course of business;
(b) sales, transfers and dispositions (including the issuance
of capital stock) to the Borrower or a Subsidiary; PROVIDED that the
fair market value of the assets subject to any such sales, transfers or
dispositions (i) to a Subsidiary that is not a Loan Party shall (A) be
deemed an investment in such Subsidiary subject to the limitations of
Section 6.04, to the extent not compensated at fair market value in
cash, and (B) be made in compliance with Section 6.08 and (ii) to a
Cremascoli Loan Party from a WMT Loan Party shall not exceed
$10,000,000 in the aggregate (calculated on a net basis after giving
effect to the fair market value of any
71
sale, transfer or other disposition of assets to a WMT Loan Party from
a Cremascoli Loan Party), to the extent not compensated at fair market
value in cash;
(c) sales, transfers or dispositions of assets constituting
investments permitted under Section 6.04(g);
(d) following the Cremascoli Acquisition, sales of accounts
receivable of the Italian Receivables Subsidiary in connection with the
Italian Receivables Program; and
(e) sales, transfers and dispositions of assets not permitted
by clauses (a) - (d) above not to exceed $2,000,000 or, following the
Cremascoli Acquisition, $3,000,000 during any fiscal year of Holdings;
PROVIDED that all sales, transfers, leases and other dispositions permitted
hereby shall be made for fair value and (other than sales, transfers and other
dispositions permitted under clause (b)) for at least 80% cash consideration.
SECTION 6.06. HEDGING AGREEMENTS. Each of Holdings and the Borrower
will not, and will not permit any of the Subsidiaries to, enter into any Hedging
Agreement, other than Hedging Agreements entered into in the ordinary course of
business to hedge or mitigate risks to which the Borrower or any Subsidiary is
exposed in the conduct of its business or the management of its liabilities.
SECTION 6.07. RESTRICTED PAYMENTS; CERTAIN PAYMENTS OF INDEBTEDNESS.
(a) Each of Holdings and the Borrower will not, nor will it permit any
Subsidiary to, declare or make, or agree to pay or make, directly or indirectly,
any Restricted Payment, except (i) Holdings may declare and pay dividends with
respect to its capital stock payable solely in additional shares of its capital
stock (other than Redeemable Preferred Stock), (ii) Subsidiaries may declare and
pay dividends ratably with respect to their capital stock, (iii) the Borrower or
any Subsidiary may acquire the equity securities of any Subsidiary not owned by
it if such purchase is otherwise permitted by this Agreement, (iv) the Borrower
may make the WMT Merger Payments, (v) Holdings and/or the Borrower may,
collectively, make Restricted Payments, not exceeding $2,000,000 or, following
the Cremascoli Acquisition, $3,000,000 during any fiscal year, pursuant to and
in accordance with stock option plans or other benefit plans for management,
directors or employees of Holdings, the Borrower and the Subsidiaries, PROVIDED
that any unused portion of such amount in any fiscal year (without giving effect
to this proviso) may be carried forward to the next fiscal year only and (vi)
the Borrower may make Restricted Payments to Holdings in an amount necessary to
allow Holdings to pay any operating expenses of Holdings in an amount not to
exceed $150,000 per fiscal year of Holdings.
(b) Each of Holdings and the Borrower will not, nor will it permit any
Subsidiary to, make or agree to pay or make, directly or indirectly, any payment
or other distribution (whether in cash, securities or other property) of or in
respect of principal of or interest on any Indebtedness, or any payment or other
distribution (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
72
(ii) payment of regularly scheduled interest and principal
payments as and when due in respect of any Indebtedness, other than
payments in respect of subordinated Indebtedness prohibited by the
subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by
Section 6.01;
(iv) payment of Indebtedness that becomes due as a result of
the sale or disposition (including pursuant to a casualty or
condemnation) of the property or assets securing such Indebtedness; and
(v) (A) repayment of the WMT Existing Debt with the proceeds
of the Term Loans and the WMT Equity Financing and (B) repayment of the
Cremascoli Existing Debt with the proceeds of the Cremascoli Term Loans
and the Cremascoli Equity Financing.
SECTION 6.08. TRANSACTIONS WITH AFFILIATES. Each of Holdings and the
Borrower will not, nor will it permit any Subsidiary to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) transactions in the
ordinary course of business that are at prices and on terms and conditions not
less favorable to Holdings, the Borrower or such Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties, (b) transactions
between or among Loan Parties (other than Holdings) not involving any other
Affiliate or unrelated third party (PROVIDED such transaction complies with the
requirements of Section 6.05), (c) contributions of capital from Holdings to the
Borrower, (d) any Restricted Payment permitted by Section 6.07, (e) loans or
advances to employees and officers of Holdings, the Borrower or any Subsidiary
in the ordinary course of business to provide for the payment of reasonable
expenses incurred by such persons in the performance of their responsibilities
to Holdings, the Borrower or such Subsidiary or in connection with any
relocation, (f) fees, compensation or employee benefit arrangements paid to and
indemnity provided on behalf of directors, officers or employees of Holdings,
the Borrower or any Subsidiary in the ordinary course of business and (g)
employment agreements (including customary benefits thereunder) entered into at
any time by Holdings, the Borrower or any Subsidiary in the ordinary course of
business.
SECTION 6.09. RESTRICTIVE AGREEMENTS. Each of Holdings and the
Borrower will not, nor will it permit any Subsidiary to, directly or indirectly,
enter into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon the ability of any Subsidiary
to pay dividends or other distributions with respect to any shares of its
capital stock or to make or repay loans or advances to the Borrower or any other
Subsidiary or to Guarantee Indebtedness of the Borrower or any other Subsidiary;
PROVIDED that the foregoing shall not apply to (a) restrictions and conditions
imposed by law or by any Loan Document, (b) restrictions and conditions existing
on the Effective Date identified on Schedule 6.09 (but shall apply to any
extension or renewal of, or any amendment or modification expanding the scope
of, any such restriction or condition), (c) customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending
such sale (PROVIDED such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder), (d)
customary net worth provisions contained in leases and other similar agreements,
(e) customary anti-assignment provisions contained in leases, licenses and other
similar agreements (PROVIDED that each of Holdings and the Borrower will, and
will cause each Subsidiary to, use commercially reasonable efforts, whenever
practicable, to obtain waivers or releases of such provisions with respect to
Liens created under the Loan Documents) and (f) any
73
provisions contained in any Indebtedness of a Person existing at the time such
Person becomes a Subsidiary (PROVIDED that (i) such Indebtedness is not incurred
in connection with, or in contemplation of, such Person becoming a Subsidiary,
(ii) such restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person acquired and such Person's
subsidiaries and (iii) such Indebtedness is otherwise permitted to be incurred
under this Agreement).
SECTION 6.10. AMENDMENT OF MATERIAL DOCUMENTS. Each of Holdings and the
Borrower will not, nor will it permit any Subsidiary to, amend, modify or waive
any of its rights under (a) its certificate of incorporation, by-laws or other
organizational documents, (b) the WMT Merger Documents, (c) the Cremascoli
Acquisition Documents or (d) the Stockholders Agreement, if any such amendment,
modification or waiver would be adverse to the interests of the Lenders or the
Loan Parties.
SECTION 6.11. CAPITAL EXPENDITURES. Each of Holdings and the Borrower
will not permit the aggregate amount of Capital Expenditures made by the
Borrower and the Subsidiaries (a) in the period beginning with the Effective
Date and ending on December 31, 1999, to exceed $1,000,000 or (b) in any of the
following fiscal years to exceed the sum of (i) Investor Capital received by
Holdings and contributed to the Borrower during such year and used to finance
Capital Expenditures and (ii) (A) prior to the Cremascoli Acquisition, the
amount set forth below opposite such year under the caption "WMT Amount" or (B)
following the Cremascoli Acquisition, the amount set forth below opposite such
year under the caption "WMT and Cremascoli Amount":
WMT AND
FISCAL YEAR WMT AMOUNT CREMASCOLI AMOUNT
2000 $7,000,000 $10,500,000
2001 $7,500,000 $11,000,000
2002 $6,000,000 $10,500,000
2003 $6,000,000 $10,500,000
2004 $6,000,000 $10,500,000
2005 $6,000,000 $10,500,000
If the amount of Capital Expenditures made during any fiscal year is less than
the amount permitted under this Section for such fiscal year (disregarding any
amount permitted by reason of this sentence), then the amount of Capital
Expenditures permitted in the next succeeding fiscal year shall be increased by
the unutilized amount.
SECTION 6.12. LEVERAGE RATIO. Each of Holdings and the Borrower will
not permit the Leverage Ratio as of the last day of any period of four
consecutive fiscal quarters ending during any period set forth below to exceed
the ratio set forth below opposite such period:
PERIOD RATIO
Effective Date - September 30, 2000 4.0 to 1.0
October 1, 2000 - September 30, 2001 3.5 to 1.0
October 1, 2001 - September 30, 2002 3.0 to 1.0
Thereafter 2.5 to 1.0
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SECTION 6.13. CONSOLIDATED CASH INTEREST EXPENSE COVERAGE RATIO. Each
of Holdings and the Borrower will not permit the ratio of (a) Consolidated
EBITDA to (b) Consolidated Cash Interest Expense as of the last day of any
period of four consecutive fiscal quarters ending during any period set forth
below to be less than the ratio set forth below opposite such period:
PERIOD RATIO
Effective Date - September 30, 2000 2.5 to 1.0
October 1, 2000 - September 30, 2001 3.0 to 1.0
October 1, 2001 - September 30, 2002 3.5 to 1.0
Thereafter 4.0 to 1.0
SECTION 6.14. CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Each of
Holdings and the Borrower will not permit the ratio of (a) Consolidated EBITDA
to (b) Consolidated Fixed Charges as of the last day of any period of four
consecutive fiscal quarters ending during any period set forth below to be less
than the ratio set forth below opposite such period:
PERIOD RATIO
Effective Date - September 30, 2001 1.0 to 1.0
October 1, 2001 - September 30, 2002 1.1 to 1.0
Thereafter 1.2 to 1.0
SECTION 6.15. FISCAL YEAR. Each of Holdings and the Borrower will not
permit its fiscal year to end on any day other than December 31.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan
or any reimbursement obligation in respect of any LC Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement or any other Loan
Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of Holdings, the Borrower or any Subsidiary in or in
connection with any Loan Document or any amendment or modification
thereof or waiver thereunder, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection with
any Loan
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Document or any amendment or modification thereof or waiver thereunder,
shall prove to have been incorrect in any material respect when made or
deemed made;
(d) either Holdings or the Borrower shall fail to observe or
perform any covenant, condition or agreement contained in Section 5.02,
5.04 (with respect to the existence of the Borrower) or 5.11 or in
Article VI;
(e) any Loan Party shall fail to observe or perform any
covenant, condition or agree ment contained in any Loan Document (other
than those specified in clause (a), (b) or (d) of this Article), and
such failure shall continue unremedied for a period of 30 days after
notice thereof from the Administrative Agent to the Borrower (which
notice will be given at the request of any Lender);
(f) Holdings, the Borrower or any Significant Subsidiary shall
fail to make any payment (whether of principal or interest and
regardless of amount) in respect of any Material Indebtedness, when and
as the same shall become due and payable within the lesser of (i) any
applicable grace period and (ii) five Business Days;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of
time or both, but, solely in respect of Hedging Agreements, only after
the lapse of five days) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause
any Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; PROVIDED that this clause (g) shall not apply to Indebtedness
that becomes due as a result of the sale or disposition (including
pursuant to a casualty or condemnation) of the property or assets
securing such Indebtedness or to provisions requiring the offer to
purchase outstanding Indebtedness in the event of a sale of assets of
Holdings, the Borrower or the Subsidiaries;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of Holdings, the Borrower or
any Significant Subsidiary or its debts, or of a substantial part of
its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, the Borrower or any
Significant Subsidiary or for a substantial part of its assets, and, in
any such case, such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(i) Holdings, the Borrower or any Significant Subsidiary shall
(i) voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, the Borrower or any
Significant Subsidiary or for a substantial part of its assets, (iv)
file an answer admitting the material allegations of a
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petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) Holdings, the Borrower or any Significant Subsidiary shall
become unable, admit in writing its inability or fail generally to pay
its debts as they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $2,000,000 or, following the Cremascoli
Acquisition, $3,000,000 shall be rendered against Holdings, the
Borrower, any Significant Subsidiary or any combination thereof and the
same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to attach or levy upon
any assets of Holdings, the Borrower or any Significant Subsidiary to
enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a
Material Adverse Effect;
(m) any Lien purported to be created under any Loan Document
shall cease to be, or shall be asserted by any Loan Party not to be, a
valid and perfected Lien on any Collateral on which a Lien may be
perfected pursuant to such Loan Document under applicable law, with the
priority required by the applicable Loan Document, except (i) as a
result of the sale or other disposition of the applicable Collateral in
a transaction permitted under the Loan Documents or (ii) as a result of
the failure of the Administrative Agent or the French Lender to
maintain possession of any stock certificates, promissory notes or
other instruments delivered to it under any Loan Document; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to Holdings or
the Borrower described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, with the consent of the
Required Lenders, the Administrative Agent may, and at the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower,
take either or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower; and in case of any event with respect to Holdings or the Borrower
described in clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
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ARTICLE VIII
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
The Chase Manhattan Bank as Administrative Agent and Collateral Agent (for
purposes of this Article VIII, collectively, the "AGENT") and authorizes the
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Agent by the terms of the WMT Loan Documents and the Cremascoli
Credit Agreement, together with such actions and powers as are reasonably
incidental thereto.
The bank serving as the Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not the Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if it
were not the Agent hereunder.
The Agent shall not have any duties or obligations except those
expressly set forth in the WMT Loan Documents and the Cremascoli Credit
Agreement. Without limiting the generality of the foregoing, (a) the Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Agent shall not have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the WMT Loan Documents
and the Cremascoli Credit Agreement that the Agent is required to exercise in
writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02), and (c) except as expressly set forth in the WMT Loan Documents, the
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to Holdings, the Borrower or any
of the Subsidiaries that is communicated to or obtained by the bank serving as
Agent or any of its Affiliates in any capacity. The Agent shall not be liable to
any Lender for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or wilful misconduct. The
Agent shall not be deemed to have knowledge of any Default unless and until
written notice thereof is given to the Agent by Holdings, the Borrower or a
Lender, and the Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with any Loan Document, (ii) the contents of any certificate, report
or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to the Agent.
The Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. The Agent may consult with legal counsel (who may be counsel for
Holdings or the Borrower), independent accountants and other
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experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
The Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by the Agent. The
Agent and any such sub-agent may perform any and all its duties and exercise its
rights and powers through their respective Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of each Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent.
Subject to the appointment and acceptance of a successor to the Agent
as provided in this paragraph, the Agent may resign at any time by notifying the
Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor. So long as no
Default or Event of Default shall have occurred and be continuing, the
appointment of a new Agent shall require the consent of the Borrower (which
consent shall not be unreasonably withheld). If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation, then
the retiring Agent may, on behalf of the Lenders and the Issuing Bank, appoint a
successor Agent which shall be a bank with an office in New York, New York, or
an Affiliate of any such bank, having a combined capital and surplus of at least
$250,000,000. Upon the acceptance of its appointment as Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Agent's resignation hereunder, the provisions of this
Article and Section 9.03 shall continue in effect for the benefit of such
retiring Agent, its sub- agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while it was acting
as Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or related agreement
or any document furnished hereunder or thereunder.
The Syndication Agent shall have no rights, powers, obligations,
liabilities, responsibilities or duties under this Agreement other than those
applicable to it as a Lender. Without limiting the foregoing sentence, the
Syndication Agent shall not have, or be deemed to have, any fiduciary
relationship with any other Lender. Each Lender acknowledges that it has not
relied, and will not rely, on the Syndication Agent in deciding to enter into
this Agreement or in taking or not taking any action hereunder.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower or to Holdings, to it at Xxxxxx Medical
Technology, Inc., 0000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000,
Attention of General Counsel (Telecopy No. (000) 000-0000; with a copy
to Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention of Xxxxxx X. Xxxxxxx (Telecopy No. (000) 000-0000);
(b) if to the Administrative Agent, the Collateral Agent or
the Issuing Bank, to The Chase Manhattan Bank, Loan and Agency Services
Group, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention of Xxxx Xxxxxx (Telecopy No. (000) 000-0000), with a copy to
The Chase Manhattan Bank, 000 Xxxx Xxxxxx, Xxx Xxxx 00000, Attention of
Xxxxx Xxxxxxxx (Telecopy No. (000) 000-0000);
(c) if to the French Lender, to Chase Manhattan Bank, Paris
Branch, Washington Plaza, 00-00 xxx Xxxxxxxxxx, 00000 Xxxxx, Xxxxxx,
Attention of X. Xxxxx (Telecopy No. 00 (0) 0 00 00 00 49), with a copy
to the US Administrative Agent.
(d) if to the Syndication Agent, to Bank of America, N.A. at
000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention of
Xxxxx Xxxxxxxxx (Telecopy No. (704) 386- 9607); and
(e) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. WAIVERS; AMENDMENTS. (a) No failure or delay by any
Agent, the Issuing Bank, the French Lender or any Lender in exercising any right
or power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of any Agent, the Issuing Bank, the
French Lender and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of any Loan Document or consent to
any departure by any Loan Party therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the foregoing, the
making of a Loan or issuance of a Letter of Credit shall not be construed as a
waiver
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of any Default, regardless of whether any Agent, any Lender, the Issuing Bank or
the French Lender may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by Holdings, the Borrower and the Required Lenders or, in the case
of any other Loan Document, pursuant to an agreement or agreements in writing
entered into by the Collateral Agent, the Administrative Agent or the French
Lender, as the case may be, and the Loan Party or Loan Parties that are parties
thereto, in each case with the consent of the Required Lenders; PROVIDED that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan,
Cremascoli Loan or LC Disbursement or reduce the rate of interest thereon, or
reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of the principal
amount of any Loan or LC Disbursement, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) change Section 2.17(b) or (c) in a
manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, (v) change Section 2.17(f) or
Section 2.16(f) of the Cremascoli Credit Agreement in a manner that would alter
the pro rata sharing of payments required thereby, without the written consent
of each Term Lender and the French Lender, (vi) change any of the provisions of
this Section or the definition of "Required Lenders" or any other provision of
any Loan Document specifying the number or percentage of Lenders (or Lenders of
any Class) required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender (or each Lender of such Class, as the case may be) and the French
Lender, (vii) release any Loan Party from its Guarantee under any Loan Document
(except as expressly provided in such Loan Document), or limit its liability in
respect of such Guarantee, without the written consent of each Lender, (viii)
release all or substantially all of the Collateral from the Liens of the Loan
Documents, without the written consent of each Lender, or (ix) change any
provisions of any Loan Document in a manner that by its terms adversely affects
the rights in respect of payments due to Lenders holding Loans of any Class
differently than those holding Loans of any other Class, without the written
consent of Lenders holding a majority in interest of the outstanding Loans and
unused Commitments of each affected Class; PROVIDED FURTHER that (A) no such
agreement shall amend, modify or otherwise affect the rights or duties of any
Agent, the French Lender or the Issuing Bank without the prior written consent
of such Agent, the French Lender or the Issuing Bank, as the case may be, and
(B) any waiver, amendment or modification of this Agreement that by its terms
affects the rights or duties under this Agreement of a single Class of Lenders
(but not any other Class of Lenders) may be effected by an agreement or
agreements in writing entered into by Holdings, the Borrower and requisite
percentage in interest of the affected Class of Lenders.
SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) Holdings and the
Borrower, jointly and severally, shall pay (i) all reasonable out-of-pocket
expenses incurred by any Agent, the French Lender and their respective
Affiliates, including the reasonable fees, charges and disbursements of counsel
for any Agent or the French Lender, in connection with the syndication of the
credit facilities provided for herein, the preparation and administration of the
Loan Documents or any amendments, modifications or waivers of the provisions
thereof (whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing
Bank in connection with the issuance, amendment, renewal or extension of
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any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by any Agent, the Issuing Bank, the French
Lender or any Lender, including the fees, charges and disbursements of any
counsel for any Agent, the Issuing Bank, the French Lender or any Lender, in
connection with the enforcement or protection of its rights in connection with
the Loan Documents, including its rights under this Section, or in connection
with the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) Holdings and the Borrower, jointly and severally, shall indemnify
each Agent, the Issuing Bank, the French Lender and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
"INDEMNITEE") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of any Loan Document or any other
agreement or instrument contemplated hereby, the performance by the parties to
the Loan Documents of their respective obligations thereunder or the
consummation of the Transactions or any other transactions contemplated hereby,
(ii) any Loan or Letter of Credit or the use of the proceeds therefrom
(including any refusal by the Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any Mortgaged
Property or any other property owned or operated by Holdings, the Borrower or
any of the Subsidiaries, or any Environmental Liability related in any way to
Holdings, the Borrower or any of the Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; PROVIDED that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such Indemnitee or
any Related Party of such Indemnitee.
(c) To the extent that Holdings and the Borrower fail to pay any amount
required to be paid by them to any Agent or the Issuing Bank under paragraph (a)
or (b) of this Section, each Lender severally agrees to pay to such Agent or the
Issuing Bank, as the case may be, such Lender's pro rata share (determined as of
the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; PROVIDED that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against any Agent or the Issuing Bank in its
capacity as such. For purposes hereof, a Lender's "pro rata share" shall be
determined based upon its share of the sum of the total Revolving Exposures,
outstanding Term Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, each of Holdings and the
Borrower shall not assert, and each hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.
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(e) All amounts due under this Section shall be payable not later than
10 days after written demand therefor setting forth a computation of the amount
due and reasonable supporting documentation.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that
each of Holdings and the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by Holdings or the Borrower
without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
(including any Affiliate of the Issuing Bank that issues any Letter of Credit)
and, to the extent expressly contemplated hereby, the Related Parties of each of
the Agents, the Issuing Bank, the French Lender and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans at the time owing to it); PROVIDED that (i) except
in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund, each of the Borrower and the Administrative Agent (and, in the
case of an assignment of all or a portion of a Revolving Commitment or a Standby
LC Commitment or any Lender's obligations in respect of its Trade LC Exposure or
Standby LC Exposure, the Issuing Bank) must give their prior written consent to
such assignment (which consent shall not be unreasonably withheld), (ii) except
in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning
Lender's Commitment or Loans, the amount of the Commitment or Loans of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement, except that this
clause (iii) shall not be construed to prohibit the assignment of a
proportionate part of all the assigning Lender's rights and obligations in
respect of one Class of Commitments or Loans, (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,500, and
(v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and PROVIDED FURTHER that
any consent of the Borrower otherwise required under this paragraph shall not be
required if an Event of Default under clause (a), (b), (h) or (i) of Article VII
has occurred and is continuing. Subject to acceptance and recording thereof
pursuant to paragraph (d) of this Section, from and after the effective date
specified in each Assignment and Acceptance the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14, 2.15, 2.16 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for
83
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "REGISTER"). The entries in
the Register shall be conclusive, and Holdings, the Borrower, the Agents, the
Issuing Bank, the French Lender and the Lenders may treat each Person whose name
is recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by Holdings, the Borrower, the
Issuing Bank, the French Lender and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the Agents,
the French Lender or the Issuing Bank, sell participations to one or more banks
or other entities (a "PARTICIPANT") in all or a portion of such Lender's rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); PROVIDED that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) Holdings, the Borrower, the Agents, the Issuing Bank,
the French Lender and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce the Loan Documents and to approve any amendment,
modification or waiver of any provision of the Loan Documents; PROVIDED that
such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (f) of this Section, each of Holdings and the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 2.14,
2.15 and 2.16 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section; PROVIDED that
the amount payable to the seller of the participation and the Participant in the
aggregate shall not exceed the amount which would otherwise be payable had a
participation not been sold. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 9.08 as though it were a
Lender; PROVIDED that such Participant agrees to be subject to Section 2.17(c)
as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.14 or 2.16 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. Subject to the preceding sentence, a Participant that
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would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.16 unless the Borrower is notified of the participation
sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.16(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; PROVIDED that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. SURVIVAL. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instru ments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that any Agent, the Issuing Bank, the
French Lender or any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan or any fee or any other amount payable
under this Agreement is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof.
SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement, the other
Loan Documents and any separate letter agreements with respect to fees payable
to the Agents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 9.07. SEVERABILITY. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to
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time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other obligations at any time owing by such Lender or Affiliate to or
for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS. (a) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAW OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW
PRINCIPLES THEREOF.
(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document, or for recognition or
enforcement of any judgment, and each of 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 such New York State or, to the extent
permitted by law, in such Federal court. 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 or any other Loan Document shall
affect any right that any Agent, the Issuing Bank, the French Lender or any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against either Holdings or the Borrower or
its properties in the courts of any jurisdiction.
(c) Each of Holdings and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS
86
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION 9.11. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. CONFIDENTIALITY. Each of the Agents, the Issuing Bank,
the French Lender and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors in connection with the
administration of the Loans and Commitments (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to a written
agreement containing provisions substantially the same as those of this Section,
to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (g) with
the consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to any Agent, the Issuing Bank, the French Lender or any
Lender on a nonconfidential basis from a source other than the Borrower or
Holdings. For the purposes of this Section, "INFORMATION" means all information
received from the Borrower or Holdings relating to Holdings, the Borrower or
their respective businesses, other than any such information that is available
to any Agent, the Issuing Bank, the French Lender or any Lender on a
nonconfidential basis prior to disclosure by Holdings or the Borrower; PROVIDED
that, in the case of information received from Holdings or the Borrower after
the Effective Date, such information is clearly identified at the time of
delivery as confidential or contains business plans or projections. The Lenders
shall use all information supplied by or on behalf of Holdings or the Borrower
under this Agreement and the other Loan Documents solely in connection with the
Loan Documents the Obligations and/or in dealing with its other credits with
Holdings, the Borrower or the Subsidiaries. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
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SECTION 9.13. INTEREST RATE LIMITATION. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "CHARGES"), shall exceed the
maximum lawful rate (the "MAXIMUM RATE") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXXXX ACQUISITION HOLDINGS, INC.,
as Holdings,
by /s/ Xxxxxxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxxxxxx X. Xxxxxxxxxx
Title: President & Secretary
XXXXXX MEDICAL TECHNOLOGY, INC.,
as the Borrower,
by /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: EVP & CFO
THE CHASE MANHATTAN BANK,
as a Lender, as Administrative Agent,
Collateral Agent and Issuing Bank,
by /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
CHASE MANHATTAN BANK,
PARIS BRANCH,
as the French Lender,
by /s/ Xxxx Xxxxx
---------------------------
Name: Xxxx Xxxxx
Title: V.P.
BANK OF AMERICA, N.A.,
as a Lender and as Syndication Agent,
by /s/ Xxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Principal
89
FLEET NATIONAL BANK,
by /s/ Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
FIRST UNION NATIONAL BANK,
by /s/ Xxxx Xxxxxxx Xx.
---------------------------
Name: Xxxx Xxxxxxx Xx.
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
by /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
BANKERS TRUST COMPANY,
by /s/ Xxxx Xxx Xxxxx
---------------------------
Name: Xxxx Xxx Xxxxx
Title: Managing Director
SUNTRUST BANK, NASHVILLE, N.A.,
by /s/ X. X. Xxxxxxx
---------------------------
Name: W. Xxxxxx Xxxxxxx
Title: AVP
