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AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 11, 1996
among
FREEDOM CHEMICAL COMPANY
as U.S. Borrower
and
FREEDOM CHEMICAL DIAMALT GmbH
as European Borrower
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS ISSUING BANKS
and
CITICORP USA, INC.
as Agent
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ARTICLE I DEFINITIONS
1.01. Certain Defined ......................................................2
1.02. Computation of Time Periods..........................................34
1.03. Accounting Terms.....................................................34
1.04. Other Terms..........................................................35
ARTICLE II AMOUNTS AND TERMS OF LOANS
2.01. Revolving Credit Facility............................................36
2.02. Swing Loans..........................................................39
2.03. Authorized Officers and Agents.......................................40
2.04. Use of Proceeds of Loans.............................................41
2.05. Currency Equivalents.................................................41
2.06. Currency Exchanges...................................................42
ARTICLE III LETTERS OF CREDIT
3.01. Letters of Credit....................................................43
3.02 Transitional Provisions..............................................50
3.03. Obligations Several..................................................50
ARTICLE IV PAYMENTS AND PREPAYMENTS
4.01. Prepayments; Reductions in Commitments...............................51
4.02. Payments.............................................................54
4.03. Promise to Repay; Evidence of Indebtedness...........................59
4.04. Proceeds of Collateral; Concentration
Account Arrangements...............................................59
4.05. Cash Collateral Accounts.............................................61
4.06. Post-Default Withdrawals from the Concentration
Accounts and Cash Collateral Accounts. ...........................62
ARTICLE V INTEREST AND FEES
5.01. Interest on the Loans and other Obligations..........................64
5.02. Special Provisions Governing Eurocurrency
Rate Loans.........................................................67
5.03. Fees.................................................................69
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ARTICLE VI CONDITIONS TO LOANS AND LETTERS OF CREDIT
6.01. Conditions Precedent to the Effectiveness of Agreement...............72
6.02. Conditions Precedent to All Loans and Letters of Credit..............74
ARTICLE VII REPRESENTATIONS AND WARRANTIES
7.01. Representations and Warranties of the Borrowers......................76
ARTICLE VIII REPORTING COVENANTS
8.01. Financial Statements.................................................89
8.02. Operations Reports...................................................92
8.03. Events of Default....................................................92
8.04. Lawsuits.............................................................93
8.05. Insurance............................................................93
8.06. ERISA Notices........................................................94
8.07. Environmental Notices................................................95
8.08. Labor Matters........................................................97
8.09. Subordinated Debt....................................................97
8.10. Other Reports........................................................97
8.11. Other Information....................................................97
ARTICLE IX AFFIRMATIVE COVENANTS
9.01. Corporate Existence, Etc.............................................99
9.02. Corporate Powers; Conduct of Business................................99
9.03. Compliance with Laws, Etc............................................99
9.04. Payment of Taxes and Claims; Tax Consolidation.......................99
9.05. Insurance...........................................................100
9.06. Inspection of Property; Books and Records;
Discussions......................................................100
9.07. Insurance and Condemnation Proceeds.................................101
9.08. ERISA Compliance....................................................102
9.09. Foreign Employee Benefit Plan Compliance............................102
9.10. Deposit Accounts....................................................102
9.11. Maintenance of Property.............................................102
9.12. Condemnation........................................................102
9.13. Future Liens on Real Property.......................................102
9.14. Consignee/Bailee Letters; Filings...................................103
9.15. Future Pledges of Equity Securities;
Other Loan Documents..............................................103
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ARTICLE X NEGATIVE COVENANTS
10.01. Indebtedness.......................................................105
10.02. Sales of Assets....................................................107
10.03. Liens..............................................................108
10.04. Investments........................................................109
10.05. Restricted Junior Payments.........................................110
10.06. Conduct of Business................................................111
10.07. Transactions with Shareholders and Affiliates......................111
10.08. Restriction on Fundamental Changes.................................112
10.09. Sales and Leasebacks...............................................112
10.10. Margin Regulations; Securities Laws................................112
10.11. ERISA..............................................................112
10.12. Issuance of Equity Securities......................................113
10.13. Organizational Documents; Subordinated Debt
Documents........................................................114
10.14. Bank Accounts......................................................114
10.15. Fiscal Year........................................................114
10.17. Negative Pledge....................................................114
ARTICLE XI FINANCIAL COVENANTS
11.01. Leverage Ratio.....................................................116
11.02. Interest Coverage Ratio............................................116
11.03. Fixed Charge Coverage Ratio........................................117
11.04. Capital Expenditures...............................................117
11.05. Financial Covenant Calculations....................................118
ARTICLE XII EVENTS OF DEFAULT; RIGHTS AND REMEDIES
12.01. Events of Default..................................................119
12.02. Rights and Remedies................................................122
ARTICLE XIII THE AGENT
13.01. Appointment. ......................................................124
13.02. Nature of Duties...................................................124
13.03. Rights, Exculpation, Etc...........................................125
13.04. Reliance...........................................................126
13.05. Indemnification....................................................126
13.06. Citicorp Individually..............................................126
13.07. Successor Agents...................................................126
13.08. Relations Among Lenders............................................127
13.09. Concerning the Collateral and the Loan Documents...................127
ARTICLE XIV YIELD PROTECTION
14.01. Taxes..............................................................130
14.02. Increased Capital..................................................133
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14.03. Changes; Legal Restrictions. ......................................133
14.04. Illegality.........................................................134
14.05. Compensation.......................................................135
14.06. Limitation on Additional Amounts Payable
by the Borrowers.................................................135
14.07. Change in Lending Office...........................................136
ARTICLE XV MISCELLANEOUS
15.01. Assignments and Participations.....................................137
15.02. Expenses...........................................................139
15.03. Indemnity..........................................................140
15.04. Change in Accounting Principles....................................142
15.05. Setoff.............................................................142
15.06. Ratable Sharing....................................................143
15.07. Amendments and Waivers.............................................143
15.08. Notices............................................................145
15.09. Survival of Warranties and Agreements..............................145
15.10. Failure or Indulgence Not Waiver; Remedies
Cumulative......................................................146
15.11. Marshalling; Payments Set Aside....................................146
15.12. Severability.......................................................146
15.13. Headings...........................................................146
15.14. Governing Law......................................................147
15.15. Limitation of Liability............................................147
15.16. Successors and Assigns.............................................147
15.17. Certain Consents and Waivers of the Borrowers......................147
15.18. Counterparts; Effectiveness; Inconsistencies.......................149
15.19. Limitation on Agreements...........................................149
15.20. Confidentiality....................................................149
15.21. Entire Agreement; No Novation......................................150
15.22. Advice of Counsel. ...............................................150
15.23. Replacement of Lenders and Issuing Banks...........................150
15.24. Limitation on Liability of European Borrower.......................151
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AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement dated as of October 11,
1996 (as amended, supplemented or modified from time to time, the "Agreement")
is entered into among Freedom Chemical Company, a Delaware corporation (the
"U.S. Borrower"), Freedom Chemical Diamalt GmbH, a corporation formed under the
laws of The Federal Republic of Germany (the "European Borrower"), the
institutions from time to time a party hereto as Lenders, whether by execution
of this Agreement or an Assignment and Acceptance, the institutions from time to
time a party hereto as Issuing Banks, whether by execution of this Agreement or
an Assignment and Acceptance, and Citicorp USA, Inc., a Delaware corporation
("Citicorp"), in its capacity as agent for the Lenders and the Issuing Banks
hereunder (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the U.S. Borrower entered into that certain Amended and
Restated Credit Agreement dated as of May 26, 1994, as amended (the "1994 Credit
Agreement") with Citicorp, Bank of America Illinois, The Bank of New York,
Caisse Nationale de Credit Agricole, Crescent/Mach I Partners, L.P., Senior Debt
Portfolio, The First National Bank of Boston, Xxxxxx Financial, Inc., The
Long-Term Credit Bank of Japan, Limited, New York Branch, Mitsui Leasing (USA)
Inc., United States National Bank of Oregon, Xxxxxxx Xxxxx Senior Floating Rate
Fund, Inc., Xxxxxxx Xxxxx Prime Rate Portfolio, Senior Strategic Income Fund,
Inc., and Xxx Xxxxxx American Capital Prime Rate Income Trust, as lenders,
Citicorp, as agent, and Citibank, N.A., as issuing bank, pursuant to which the
aforesaid lenders and issuing bank have made certain extensions of credit and
other financial accommodations to or for the benefit of the U.S. Borrower;
WHEREAS, the European Borrower, a subsidiary of the U.S. Borrower,
is desirous of refinancing certain indebtedness it has incurred under extensions
of credit made by BHF-Bank Aktiengesellschaft and the U.S. Borrower has
requested that such refinancing be made available to the European Borrower by
lenders to the U.S. Borrower under a common credit facility;
WHEREAS, the U.S. Borrower intends to issue senior subordinated
notes due 2006 in the amount of $125,000,000 concurrently with this Agreement
becoming effective, the proceeds of which will be used, in part, to repay
certain of the indebtedness of the U.S. Borrower under the 1994 Credit
Agreement;
WHEREAS, certain shareholders of the U.S. Borrower will purchase
$10,000,000 of common equity of the U.S. Borrower concurrently with this
Agreement becoming effective, the proceeds of which will be used, in part, to
repay certain of the
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indebtedness of the U.S. Borrower under the 1994 Credit Agreement; and
WHEREAS, in connection with the foregoing, the U.S. Borrower has
requested that the credit facilities made available to it under the 1994 Credit
Agreement be restructured and that the 1994 Credit Agreement be further amended
and restated and the Agent, Lenders and Issuing Banks have agreed to such
requests;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01. Certain Defined Terms. The following terms used in this
Agreement shall have the following meanings, applicable both to the singular and
the plural forms of the terms defined:
"Accommodation Obligation" means any Contractual Obligation,
contingent or otherwise, of one Person with respect to any Indebtedness,
obligation or liability of another, if the primary purpose or intent thereof by
the Person incurring the Accommodation Obligation is to provide assurance to the
obligee of such Indebtedness, obligation or liability of another that such
Indebtedness, obligation or liability will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders thereof
will be protected (in whole or in part) against loss in respect thereof
including, without limitation, direct and indirect guarantees, endorsements
(except for collection or deposit in the ordinary course of business), notes
co-made or discounted, recourse agreements, take-or-pay agreements, keep-well
agreements, agreements to purchase or repurchase such Indebtedness, obligation
or liability or any security therefor or to provide funds for the payment or
discharge thereof, agreements to maintain solvency, assets, level of income, or
other financial condition, and agreements to make payment other than for value
received. The amount of any Accommodation Obligation shall be equal to the
amount of the Indebtedness, obligation or liability so guaranteed or otherwise
supported; provided, that (i) if the liability of the Person extending such
guaranty or support is limited with respect thereto to an amount less than the
Indebtedness, obligation or liability guaranteed or supported, or is limited to
recourse against a particular asset or assets of such Person, the amount of the
corresponding Accommodation Obligation shall be limited (in the case of a
guaranty or other support limited by amount) to such lesser amount or (in the
case of a guaranty or other support limited by recourse to a particular asset or
assets) to the higher of the Fair Market Value of such asset or assets at the
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date for determination of the amount of the Accommodation Obligation or the
value at which such asset or assets would, in conformity with GAAP, be reflected
on or valued for the purposes of preparing a consolidated balance sheet of such
Person as at such determination date; and (ii) if any obligation or liability is
guaranteed or otherwise supported jointly and severally by a Person and others,
then the amount of the obligation or liability of such Person with respect to
such guaranty or other support to be included in the amount of such Person's
Accommodation Obligation shall be the whole principal amount so guaranteed or
otherwise supported.
"Affected Lender" is defined in Section 14.05.
"Affiliate", as applied to any Person, means any other Person that
directly or indirectly controls, is controlled by, or is under common control
with, that Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to vote five percent (5.0%) or more of the Securities
having voting power for the election of directors of that Person or otherwise to
direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting Securities or by contract or otherwise.
"Agent" means Citicorp and each successor agent appointed pursuant
to the terms of Article XIII.
"Agreement" is defined in the preamble hereto.
"Alternative Currency" means the lawful currency of the United
Kingdom, France, or The Federal Republic of Germany; provided that the same is
freely transferable and convertible into Dollars.
"AMCY Preferred Stock" means the 2,800 shares of 11 7/8% Redeemable
Preferred Stock, Series A, issued by Textile to American Cyanamid Company on May
4, 1992 and maturing on May 4, 2002 for a total aggregate amount of $2,919,000.
"Applicable Lending Office" means, with respect to a particular
Lender, its Eurocurrency Lending Office in respect of provisions relating to
Eurocurrency Rate Loans and its Domestic Lending Office in respect of provisions
relating to Base Rate Loans.
"Applicable Payment Office" means, with respect to Obligations
payable in Dollars, the principal office of Citibank in New York, New York, and,
with respect to Obligations payable in any Alternative Currency, the principal
office of Citibank London in London, England or such other office or offices as
determined by the Agent from time to time of which notice is
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given to the Borrowers, Lenders and Issuing Banks in accordance with the
provisions of Section 15.08.
"Assignment and Acceptance" means an Assignment and Acceptance in
substantially the form of Exhibit A attached hereto and made a part hereof (with
blanks appropriately completed) delivered to the Agent in connection with an
assignment of a Lender's interest under this Agreement in accordance with the
provisions of Section 15.01.
"Bankruptcy Code" means Title 11 of the United States Code (11
U.S.C. xx.xx. 101 et seq.), as amended from time to time, and any successor
statute.
"Base Eurocurrency Rate" means, with respect to any Eurocurrency
Rate Interest Period applicable to a Borrowing of Eurocurrency Rate Loans, an
interest rate per annum determined by the Agent to be the average (rounded
upward to the nearest whole multiple of one sixteenth of one percent (0.0625%)
per annum, if such average is not such a multiple) of the rates per annum
specified by notice to the Agent by Citibank as the rate per annum at which
deposits in Dollars or in the relevant Alternative Currency are offered by the
principal office of Citibank in London, England to prime banks in the London
interbank market at approximately 11:00 a.m. (London time) on the Eurocurrency
Interest Rate Determination Date for such Eurocurrency Rate Interest Period for
a period equal to such Eurocurrency Rate Interest Period and in an amount
substantially equal to the amount of the Eurocurrency Rate Loan to be
outstanding to Citicorp for such Eurocurrency Interest Period.
"Base Rate" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall at all
times be equal to the highest of:
(i) the rate of interest announced publicly by Citibank in New York,
New York from time to time, as Citibank's base rate; and
(ii) the sum (adjusted to the nearest one-quarter of one percent
(0.25%) or, if there is no nearest one-quarter of one percent (0.25%), to
the next higher one-quarter of one percent (0.25%)) of (A) one-half of one
percent (0.50%) per annum plus (B) the rate per annum obtained by dividing
(I) the latest three-week moving average of secondary market morning
offering rates in the United States for three-month certificates of
deposit of major United States money market banks, such three-week moving
average (adjusted to the basis of a year of 360 days) being determined
weekly on each Monday (or, if any such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending on the
previous Friday (or, if such day is not a Business Day, on the next
preceding Business Day) by
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Citibank on the basis of such rates reported by certificate of deposit
dealers to, and published by, the Federal Reserve Bank of New York, or, if
such publication shall be suspended or terminated, on the basis of
quotations for such rates received by Citibank from three (3) New York
certificate of deposit dealers of recognized standing selected by
Citibank, by (II) a percentage equal to 100% minus the average of the
daily percentages specified during such three-week period by the Federal
Reserve Board (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency, supplemental or
other marginal reserve requirement) for Citibank in respect of liabilities
consisting of or including (among other liabilities) three-month Dollar
nonpersonal time deposits in the United States plus (C) the average during
such three-week period of the annual assessment rates estimated by
Citibank for determining the then current annual assessment payable by
Citibank to the Federal Deposit Insurance Corporation (or any successor)
for insuring Dollar deposits of Citibank in the United States; and
(iii) the sum of (A) one-half of one percent (0.50%) per annum plus
(B) the Federal Funds Rate in effect from time to time during such period.
"Base Rate Loans" means all Loans denominated in Dollars which bear
interest at a rate determined by reference to the Base Rate as provided in
Section 5.01(a).
"Base Rate Margin" means, as of any date of determination, a per
annum rate equal to the rate set forth below opposite the then applicable
Performance Level set forth below:
Performance Level Base Rate Margin
----------------- ----------------
1 0.50%
2 1.00%
3 1.25%
4 1.50%
"Benefit Plan" means a "defined benefit plan" as defined in Section
3(35) of ERISA (other than a Multiemployer Plan or Foreign Employee Benefit
Plan) in respect of which the U.S. Borrower or any ERISA Affiliate is, or within
the immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA.
"Borrower" means either the U.S. Borrower or the
European Borrower; "Borrowers" means, collectively, the U.S.
Borrower and the European Borrower.
"Borrowing" means a borrowing consisting of Loans of
the same type made, continued or converted on the same day and,
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in the case of Eurocurrency Rate Loans, for the same Eurocurrency Rate Interest
Period.
"Business Activity Report" means (A) a Notice of Business Activities
Report from the State of New Jersey Division of Taxation or (B) a Minnesota
Business Activity Report from the Minnesota Department of Revenue.
"Business Day" means a day, in the applicable local time, which is
not a Saturday or Sunday or a legal holiday and on which banks are not required
or permitted by law or other governmental action to close (i) in New York, New
York and (ii) in the case of Eurocurrency Rate Loans, in London, England and in
the country of issue of the currency of such Eurocurrency Rate Loans, and (iii)
in the case of Letter of Credit transactions for a particular Issuing Bank, in
the place where its office for issuance or administration of the pertinent
Letter of Credit is located.
"Capital Expenditures" means, for any period, the aggregate of all
expenditures (whether payable in cash or other Property or accrued as a
liability (but without duplication)) during such period that, in conformity with
GAAP, are required to be included in or reflected by the U.S. Borrower's or any
of its Subsidiaries' fixed asset accounts as reflected in any of their
respective balance sheets.
"Capital Lease" means any lease of any property (whether real,
personal or mixed) by a Person as lessee which, in conformity with GAAP, is
accounted for as a capital lease on the balance sheet of that Person.
"Capital Stock" means, with respect to any Person, any capital stock
of such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"Cash Collateral" means cash or Cash Equivalents held by the Agent,
any of the Issuing Banks or any of the Lenders as security for the Obligations.
"Cash Collateral Account" means an interest bearing account at
Citibank's offices in New York, New York designated by the Agent into which Cash
Collateral shall be deposited. The Cash Collateral Account shall be under the
sole dominion and control of the Agent, provided that all amounts deposited
therein shall be held by the Agent for the benefit of the Holders and shall be
subject to the terms of Sections 4.05 and 4.06.
"Cash Equivalents" means (i) marketable direct obligations issued or
unconditionally guaranteed by the United States government and backed by the
full faith and credit of the United States government; and (ii) domestic and
Eurodollar
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certificates of deposit and time deposits, bankers' acceptances and floating
rate certificates of deposit issued by any commercial bank organized under the
laws of the United States, any state thereof, the District of Columbia, any
foreign bank, or its branches or agencies (fully protected against currency
fluctuations); provided, that (x) the maturities of such Cash Equivalents shall
not exceed one year, (y) such Cash Equivalents shall be maintained in investment
and other accounts of the Agent at Citibank or any of the Lenders, and (z) if
the aggregate amount of Cash Equivalents described in clause (ii) exceeds
$1,000,000 at the time of acquisition, the issuer of such Cash Equivalents shall
be rated A-1 (or better) by Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc., or P-1 (or better) by Xxxxx'x Investors
Service, Inc.
"Cash Interest Expense" means, for any period, total interest
expense, whether paid or accrued but without duplication, (including the
interest component of Capital Leases but net of the difference between payments
received by a Borrower on all Hedge Agreements and payments made by it on all
Hedge Agreements other than the initial payments made to enter into such Hedge
Agreements and excluding deferred financing costs and fees) of the U.S. Borrower
and its Subsidiaries, which is payable in cash, all as determined on a
consolidated basis in conformity with GAAP.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. xx.xx. 9601 et seq., any
amendments thereto, any successor statutes, and any regulations promulgated
thereunder.
"Change of Control" means any of (i) JLL or any partnership or
corporation which is controlled by JLL Associates, L.P. ceasing to directly or
indirectly own an aggregate of twenty percent (20%) of the common stock of the
U.S. Borrower or (ii) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act), other than Permitted
Holders, is or becomes (including by merger, consolidation or otherwise) the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act, except that a Person shall be deemed to have beneficial ownership
of all shares that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of 50% or more of the voting power of the total outstanding Voting
Stock of the U.S. Borrower or (iii) during any period of two (2) consecutive
years, individuals who at the beginning of such period constituted the Board of
Directors of the U.S. Borrower (together with any new directors whose election
to such Board of Directors, or whose nomination for election by the stockholders
of the U.S. Borrower, was approved by a vote of 66 2/3% of the directors then
still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of such
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Board of Directors of the U.S. Borrower then in office or (iv) the sale or other
disposition (including by merger, consolidation or otherwise) of all or
substantially all of the Capital Stock or assets of the U.S. Borrower and/or
substantially all of the Subsidiaries of the U.S. Borrower to any Person or
"Group" (as defined in Rule 13d-5 under the Securities Exchange Act), other than
to the Permitted Holders, as an entirety or substantially as an entirety in one
transaction or a series of related transactions, but excluding transfers or
conveyances of Capital Stock or assets of Subsidiaries of the U.S. Borrower to
or among the U.S. Borrower's Wholly-Owned Subsidiaries, as permitted by this
Agreement or otherwise consented to, in writing, by the Requisite Lenders.
"Citibank" means Citibank, N.A., a national banking association.
"Citibank London" means Citibank International, plc, an Affiliate of
Citibank and Citicorp.
"Citicorp" is defined in the preamble of this Agreement.
"Claim" means any claim or demand, by any Person, of whatsoever kind
or nature for any alleged Liabilities and Costs, whether based in contract,
tort, implied or express warranty, strict liability, criminal or civil statute,
Permit, ordinance or regulation, common law or otherwise.
"Closing Date" means October 11, 1996.
"Collateral" means all Property and interests in Property now owned
or hereafter acquired by the U.S. Borrower or any of its Subsidiaries upon which
a Lien is granted under any of the Loan Documents.
"Collection Account" means each lock-box and blocked depository
account maintained by the U.S. Borrower or any of its Subsidiaries subject to a
Collection Account Agreement for the collection of Receivables and other
proceeds of Collateral.
"Collection Account Agreement" means a written agreement,
substantially in the form attached hereto as Exhibit B with such modifications
as the Agent and the U.S. Borrower, from time to time, deem acceptable, among
the U.S. Borrower or a Subsidiary of the U.S. Borrower, the Agent, and, as
applicable, each of the banks at which the U.S. Borrower or a Subsidiary of the
U.S. Borrower maintains a Collection Account.
"Commercial Letter of Credit" means any documentary letter of credit
issued by an Issuing Bank pursuant to Section 3.01 for the account of a Borrower
or for the account of any of a Borrower's Subsidiaries if such Borrower is
jointly and severally liable for reimbursement of amounts drawn under such
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letter of credit, which is drawable upon presentation of documents evidencing
the sale or shipment of goods purchased by such Borrower or such Subsidiary in
the ordinary course of its business.
"Commission" means the Securities and Exchange Commission and any
Person succeeding to the functions thereof.
"Commitment" means, with respect to any Lender at the time of
determination thereof, the aggregate amount of such Lender's Revolving Credit
Commitment; and "Commitments" means the aggregate amount of all Revolving Credit
Commitments.
"Commitment Letter" means that certain commitment letter dated
August 26, 1996, addressed to the U.S. Borrower from Citicorp and Fleet and
accepted by the U.S. Borrower on September 6, 1996.
"Compliance Certificate" is defined in Section 8.01(c).
"Concentration Account" means a depository account maintained at
Citibank in New York, New York, Citibank London in London, England, or such
other financial institutions designated for such purpose by the Agent into which
collections of Receivables, other proceeds of Collateral and other amounts are
transferred pursuant to the terms of the Collection Account Agreements or
otherwise as described in Section 4.04.
"Contaminant" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, radioactive materials, asbestos (in any form or condition),
polychlorinated biphenyls (PCBs), or any constituent of any such substance or
waste, and includes, but is not limited to, these terms as defined in
Environmental, Health or Safety Requirements of Law.
"Contractual Obligation", as applied to any Person, means any
provision of any Securities issued by that Person or any indenture, mortgage,
deed of trust, security agreement, pledge agreement, guaranty, contract,
undertaking, agreement or instrument to which that Person is a party or by which
it or any of its properties is bound, or to which it or any of its properties is
subject.
"Cowpens Plant" means that certain Real Property of Textile SC
located in Cowpens, South Carolina.
"Cure Loans" is defined in Section 4.02(b)(v)(C).
"Customary Permitted Liens" means
(i) Liens (other than Environmental Liens and Liens in favor of the
PBGC) with respect to the payment of taxes, assessments or governmental
charges in all
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cases which are not yet due or which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with GAAP;
(ii) statutory Liens of landlords and Liens of suppliers, mechanics,
carriers, materialmen, warehousemen or workmen and other Liens imposed by
law created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves or other appropriate provisions
are being maintained in accordance with GAAP;
(iii) Liens (other than any Lien in favor of the PBGC) incurred or
deposits made in the ordinary course of business in connection with
worker's compensation, unemployment insurance or other types of social
security benefits or to secure the performance of bids, tenders, sales,
contracts (other than for the repayment of borrowed money), and surety,
appeal and performance bonds; provided that (A) all such Liens do not in
the aggregate materially detract from the value of a Borrower's or any of
its Subsidiaries' assets or Property or materially impair the use thereof
in the operation of their respective businesses, and (B) all Liens of
attachment or judgment and Liens securing bonds to stay judgments or in
connection with appeals which do not secure at any time an aggregate
amount exceeding $1,000,000; and
(iv) Liens arising with respect to zoning restrictions, easements,
licenses, reservations, covenants, rights-of-way, utility easements,
building restrictions and other similar charges or encumbrances on the use
of Real Property which do not interfere with the ordinary conduct of the
business of a Borrower or any of its Subsidiaries.
"Designated Prepayment" means each mandatory prepayment required by
Section 4.01(b).
"DM" means the lawful money of The Federal Republic of Germany.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"Dollars" and "$" mean the lawful money of the United States.
"Domestic Lending Office" means, with respect to any Lender, such
Lender's office, located in the United States,
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specified as the "Domestic Lending Office" under its name on the signature pages
hereof or on the Assignment and Acceptance by which it became a Lender or such
other United States office of such Lender as it may from time to time specify by
written notice to the U.S. Borrower and the Agent.
"Domestic Subsidiary" means, each of Hilton, KCI, Textile, Textile
SC and each other Subsidiary of a Borrower domiciled in the U.S., one of its
states, districts or possessions.
"EBITDA" means, for any period, the amount calculated on a
consolidated basis for the U.S. Borrower in accordance with GAAP, without
duplication, for such period as (i) Net Income, plus (ii) depreciation and
amortization expense, plus (iii) interest expense, plus (iv) federal, state, and
local income taxes deducted from Net Income, plus (v) extraordinary and
non-recurring losses or costs (and any unusual losses or costs arising in or
outside of the ordinary course of business of the U.S. Borrower and its
Subsidiaries not included in extraordinary losses) which have been included in
the determination of Net Income, plus (vi) non-cash restructuring charges and
costs and other non-cash items decreasing Net Income for such period (including
such items accounting for minority interests in any Person in the calculation of
Net Income, except to the extent of the amount of cash dividends or
distributions actually paid to the U.S. Borrower or any of its Subsidiaries by
such Person during such period, plus (vii) any non-cash compensation expense
incurred minus (viii) extraordinary and non-recurring gains (and any unusual
gains arising in or outside of the ordinary course of business of the U.S.
Borrower and its Subsidiaries not included in extraordinary gains) which have
been included in the determination of Net Income, minus (ix) cash used to reduce
the reserve or liability for the non-cash restructuring charges and costs
referenced in clause (vi) above, minus (x) any other non-cash items increasing
Net Income for such period, minus (or plus) (xi) net gain (or loss) in respect
of any sale, transfer or other disposition of assets (including, without
limitation, pursuant to sale and leaseback transactions) other than in the
ordinary course of business of the U.S. Borrower and its Subsidiaries.
"Effective Date" is defined in Section 6.01.
"Eligible Assignee" means (i) a Lender or any Affiliate thereof,
(ii) a commercial bank having total assets in excess of $2,500,000,000, (iii)
the central bank of any country which is a member of the Organization for
Economic Cooperation and Development, or (iv) a finance company, insurance
company, other financial institution or fund; in each instance, which is (a)
acceptable to the Agent, (b) regularly engaged in making, purchasing or
investing in loans, and (c) having total assets in excess of $250,000,000.
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"Environmental, Health or Safety Requirements of Law" means all
Requirements of Law relating to, imposing liability or standards concerning, or
otherwise addressing, the environment, health and/or safety, including, but not
limited to the Clean Air Act, the Clean Water Act, CERCLA, RCRA, any so-called
"Superfund" or "Superlien" law, the Toxic Substances Control Act and OSHA, and
public health codes, each as from time to time in effect.
"Environmental Lien" means a Lien in favor of any Governmental
Authority for any (i) liabilities under any Environmental, Health or Safety
Requirement of Law, or (ii) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant.
"Environmental Property Transfer Acts" means any applicable
Requirement of Law that conditions, restricts, prohibits or requires any
notification or disclosure triggered by the transfer, sale, lease or closure of
any Property or deed or title for any Property for environmental reasons,
including, but not limited to, any so-called "Industrial Site Recovery Acts" or
"Responsible Property Transfer Acts" or "Environmental Clean-up Responsibility
Acts".
"Equipment" means, with respect to any Person, all of such Person's
present and future (i) equipment, including, without limitation, machinery,
manufacturing, distribution, selling, data processing and office equipment,
assembly systems, tools, molds, dies, fixtures, appliances, furniture,
furnishings, vehicles, vessels, aircraft, aircraft engines, and trade fixtures,
(ii) other tangible personal property (other than such Person's Inventory), and
(iii) any and all accessions, parts and appurtenances attached to any of the
foregoing or used in connection therewith, and any substitutions therefor and
replacements, products and proceeds thereof.
"Equity Infusion" means that certain $10,000,000 received by the
U.S. Borrower, in cash, from Xxxxxx Xxxxxxxxxx and Xxxx Fund, L.P., Xxxxxx
Xxxxxxxxxx and Levy Fund II, L.P., and, if applicable, other holders of common
stock of the U.S. Borrower in consideration of the issuance thereto of common
equity of the U.S. Borrower on the Effective Date.
"ERISA" means the Employee Retirement Income Security Act of 1974,
29 U.S.C. xx.xx. 1000 et seq., any amendments thereto, any successor statutes,
and any regulations or guidance promulgated thereunder.
"ERISA Affiliate" means (i) any corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of
the Internal Revenue Code) as the U.S. Borrower; (ii) a partnership or other
trade or business (whether or not incorporated) which is under common control
(within the meaning of Section 414(c) of the Internal Revenue
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Code) with the U.S. Borrower; and (iii) a member of the same affiliated service
group (within the meaning of Section 414(m) of the Internal Revenue Code) as the
U.S. Borrower, any corporation described in clause (i) above or any partnership
or trade or business described in clause (ii) above.
"Eurocurrency Affiliate" means, with respect to each Lender, the
Affiliate of such Lender (if any) set forth below such Lender's name under the
heading "Eurocurrency Affiliate" on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such Affiliate of a
Lender as it may from time to time specify by written notice to the U.S.
Borrower and the Agent.
"Eurocurrency Interest Rate Determination Date" is defined in
Section 5.02(c).
"Eurocurrency Lending Office" means, with respect to any Lender, the
office or offices of such Lender (if any) set forth below such Lender's name
under the heading "Eurocurrency Lending Office" on the signature pages hereof or
on the Assignment and Acceptance by which it became a Lender (or, if no such
office is so specified, its Domestic Lending Office) or such office or offices
of such Lender as it may from time to time specify by written notice to the U.S.
Borrower and the Agent.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurocurrency Rate" means, with respect to any Eurocurrency Interest
Period applicable to a Eurocurrency Rate Loan comprising part of the same
Borrowing, an interest rate per annum obtained by dividing (i) the Base
Eurocurrency Rate applicable to that Eurocurrency Interest Period by (ii) a
percentage equal to 100% minus the Eurocurrency Reserve Percentage in effect on
the relevant Eurocurrency Interest Rate Determination Date.
"Eurocurrency Rate Interest Payment Date" means (i) with respect to
any Eurocurrency Rate Loan, the last day of each Eurocurrency Rate Interest
Period applicable to such Loan and (ii) with respect to any Eurocurrency Rate
Loan having a Eurocurrency Rate Interest Period in excess of three (3) calendar
months, the last day of each three (3) calendar month interval during such
Eurocurrency Rate Interest Period.
"Eurocurrency Rate Interest Period" means, for each Eurocurrency
Rate Loan comprising part of the same Borrowing, the period commencing on the
date of such Loan or the date of the conversion of any Loan into such a Loan and
ending on the last day of the period selected by the U.S. Borrower pursuant to
the provisions of this Agreement and, thereafter, each subsequent period
commencing on the last day of the immediately preceding
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Eurocurrency Rate Interest Period and ending on the last day of the period
selected by the U.S. Borrower pursuant to the provisions of this Agreement.
"Eurocurrency Rate Loans" means those Loans denominated in Dollars
or in an Alternative Currency which bear interest at a rate determined by
reference to the Eurocurrency Rate and the Eurocurrency Rate Margin as provided
in Section 5.01(a).
"Eurocurrency Rate Margin" means, as of any date of determination, a
per annum rate equal to the rate set forth below opposite the then applicable
Performance Level set forth below:
Performance Level Eurocurrency Rate Margin
----------------- ------------------------
1 1.50%
2 2.00%
3 2.25%
4 2.50%
"Eurocurrency Reserve Percentage" means, for any day, that
percentage which is in effect on such day, as prescribed by the Federal Reserve
Board for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement)
for a member bank of the Federal Reserve System in New York, New York with
deposits exceeding Five Billion Dollars ($5,000,000,000) in respect of
"Eurocurrency Liabilities" (or in respect of any other category of liabilities
which includes deposits by reference to which the interest rate on Eurocurrency
Rate Loans is determined or any category of extensions of credit or other assets
which includes loans by a non-United States office of any bank to United States
residents).
"European Borrower" is defined in the preamble of this Agreement.
"Event of Default" means any of the occurrences set forth in Section
12.01 after the expiration of any applicable grace period, as expressly provided
in Section 12.01.
"Fair Market Value" means, with respect to any asset, the value of
the consideration obtainable in a sale of such asset in the open market,
assuming a sale by a willing seller to a willing purchaser dealing at arm's
length and arranged in an orderly manner over a reasonable period of time, each
having reasonable knowledge of the nature and characteristics of such asset,
neither being under any compulsion to act, and, if in excess of $250,000, as
determined (a) in good faith by the Board of Directors of the U.S. Borrower or
(b) in an appraisal of such asset performed relatively contemporaneously with
such sale by an independent third party appraiser, provided that the basic
assumptions underlying such appraisal have not materially changed since the date
thereof.
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"FCCAC" means FCC Acquisition Corp., a Delaware corporation.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day in New York, New York, for the next preceding
Business Day) in New York, New York by the Federal Reserve Bank of New York, or
if such rate is not so published for any day which is a Business Day in New
York, New York, the average of the quotations for such day on such transactions
received by the Agent from three federal funds brokers of recognized standing
selected by the Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any Governmental Authority succeeding to its functions.
"Fee Letter" means that certain fee letter addressed to Citicorp and
Fleet from the U.S. Borrower dated September 6, 1996.
"Financial Statements" means (i) statements of income and retained
earnings, statements of cash flow, and balance sheets and (ii) such other
financial statements as the U.S. Borrower and its Subsidiaries shall routinely
and regularly prepare.
"Fiscal Year" means the fiscal year of the U.S. Borrower and its
Subsidiaries for accounting and tax purposes, which shall be the 12-month period
ending on December 31 of each calendar year.
"Fixed Charge Coverage Ratio" means, for any period, the ratio of
(i) the sum of (a) EBITDA minus (b) the aggregate amount of Capital Expenditures
made in cash during such period to (ii) the sum of (a) the aggregate amount of
Cash Interest Expense paid on Indebtedness during such period (net of amounts
under Hedge Agreements and interest income, in each case actually received,
without duplication) plus (b) the aggregate amount of cash dividends paid by the
U.S. Borrower during such period (other than dividends paid on the AMCY
Preferred Stock); provided, however, that, for purposes of calculation of the
Fixed Charge Coverage Ratio for the four-quarter periods ending December 31,
1996 through September 30, 1998, Capital Expenditures made in cash shall be
reduced (A) for each of the four-quarter periods ending December 31, 1996, March
31, 1997, June 30, 1997, September 30, 1997, and December 31, 1997 by
$6,500,000, (B) for the four-quarter period ending March 31, 1998 by $4,900,000,
(C) for the four-quarter period ending June 30, 1998 by $3,300,000, and (D) for
the four-quarter period ending September 30, 1998 by $1,600,000.
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"Fleet" means Fleet National Bank, a national banking association.
"Foreign Employee Benefit Plan" means any employee benefit plan as
defined in Section 3(3) of ERISA which is maintained or contributed to for the
benefit of the employees of the U.S. Borrower, any of its Subsidiaries or any of
its ERISA Affiliates and is not subject to Title I of ERISA pursuant to Section
4(b)(4) of ERISA.
"Foreign Pension Plan" means any employee benefit plan as defined in
Section 3(3) of ERISA which (i) is maintained or contributed to for the benefit
of employees of the U.S. Borrower, any of its Subsidiaries or any of its ERISA
Affiliates, (ii) is not subject to Title I of ERISA pursuant to Section 4(b)(4)
of ERISA, and (iii) under applicable local law, is required to be funded through
a trust or other funding vehicle.
"Fronting Fee" is defined in Section 5.03(a).
"Funded Debt" means Indebtedness of the U.S. Borrower and its
Subsidiaries for borrowed money (determined on a consolidated basis in
accordance with GAAP), including, without limitation, Indebtedness under Capital
Leases.
"Funding Date" means, with respect to any Loan, the date of funding
of such Loan.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the American Institute of Certified Public
Accountants' Accounting Principles Board and Financial Accounting Standards
Board or in such other statements by such other entity as may be in general use
by significant segments of the accounting profession as in effect on the date
hereof (unless otherwise specified herein as in effect on another date or
dates).
"General Intangibles" means, with respect to any Person, all of such
Person's present and future (i) general intangibles, (ii) rights, interests,
choses in action, causes of action, claims and other intangible Property of
every kind and nature (other than Receivables), (iii) corporate and other
business records, (iv) loans, royalties, and other obligations receivable, (v)
trademarks, registered trademarks, trademark applications, service marks,
registered service marks, service xxxx applications, patents, registered
patents, patent applications, trade names, rights of use of any name, labels,
fictitious names, inventions, designs, trade secrets, computer programs,
software, printouts and other computer materials, goodwill, registrations,
copyrights, copyright applications, permits, licenses, franchises, customer
lists, credit files, correspondence, and advertising materials, (vi) customer
and supplier contracts, firm sale orders, rights under license and franchise
agreements, rights under tax sharing agreements, and
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other contracts and contract rights, (vii) interests in partnerships and joint
ventures, (viii) tax refunds and tax refund claims, (ix) right, title and
interest under leases, subleases, licenses and concessions and other agreements
relating to property, (x) deposit accounts (general or special) with any bank or
other financial institution, (xi) credits with and other claims against third
parties (including carriers and shippers), (xii) rights to indemnification and
with respect to support and keep-well agreements, (xiii) reversionary interests
in pension and profit sharing plans and reversionary, beneficial and residual
interests in trusts, (xiv) proceeds of insurance of which such Person is
beneficiary, (xv) letters of credit, guarantees, Liens, security interests and
other security held by or granted to such Person, (xvi) uncertificated
securities, and (xvii) dividends and distributions and claims with respect to
dividends and distributions.
"Governmental Authority" means any nation or government, any
federal, state, local or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantor" means each of those Persons identified on Schedule
1.01.1 attached hereto and made a part hereof and any other Person executing and
delivering a guaranty of payment and performance of all or any portion of the
Obligations; "Guarantors" means, collectively, all of such Persons.
"Hedge Agreement" means any agreement, including, without
limitation, interest rate exchange, swap, collar or cap agreement, interest rate
future or option contract, currency swap agreement, currency future or option
contract, and other similar agreement, evidencing an agreement or arrangement
intended to protect against fluctuation in interest rates and/or foreign
exchange rates or conversion rates for conversion of foreign currencies to
Dollars or Dollars to foreign currencies.
"Hilton" means Hilton Davis Chemical Co., a Delaware corporation.
"Holder" means any Person entitled to enforce any of the
Obligations, whether or not such Person holds any evidence of Indebtedness,
including, without limitation, the Agent, each Lender and each Issuing Bank.
"Indebtedness", as applied to any Person, means, at any time,
without duplication, (a) all indebtedness, obligations or other liabilities
(contingent or otherwise) of such Person (i) for borrowed money or evidenced by
debt Securities, debentures, acceptances, bonds, notes or other similar
instruments, and any accrued interest, fees and charges relating thereto, (ii)
under profit payment agreements or in respect of obligations to redeem,
repurchase or exchange any Securities of such Person or to pay
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dividends in respect of any Capital Stock (other than redemptions, repurchases,
exchanges or dividends permitted in Section 10.05), (iii) with respect to
letters of credit issued for such Person's account or upon the request or
application of such Person, (iv) to pay the deferred purchase price of property
or services, except accounts payable and accrued expenses arising in the
ordinary course of business, (v) in respect of Capital Leases, or (vi) which are
Accommodation Obligations or (vii) under warranties and indemnities; (b) all
indebtedness, obligations or other liabilities of other Persons secured by a
Lien on any property of such Person, whether or not such indebtedness,
obligations or liabilities are assumed by such Person, all as of such time; (c)
all indebtedness, obligations or other liabilities of such Person in respect of
Hedge Agreements, net of liabilities owed to such Person by the counterparties
thereon; (d) the AMCY Preferred Stock and all other preferred stock subject
(upon the occurrence of any contingency or otherwise) to mandatory redemption
within the term of this Agreement; and (e) all Accommodation Obligations with
respect to any of the foregoing.
"Indemnified Matters" is defined in Section 15.03.
"Indemnitees" is defined in Section 15.03.
"Indiamalt" means Indiamalt Private Ltd., an Indian company.
"Intercompany Security Documents" means all instruments, agreements,
security agreements, pledge agreements, guaranties, mortgages, deeds of trust,
and other written Contractual Obligations between a Subsidiary of the U.S.
Borrower and a Borrower or other Subsidiary of the U.S. Borrower creating or
purporting to create a Lien on such Subsidiary's Property for the benefit of
such Borrower or other Subsidiary party.
"Interest Coverage Ratio" means, for any period, the ratio of (i)
EBITDA to (ii) Cash Interest Expense.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, any successor
statute and any regulations or guidance promulgated thereunder.
"Inventory" means, with respect to any Person, all of such Person's
present and future (i) inventory, (ii) goods, merchandise and other personal
property furnished or to be furnished under any contract of service or intended
for sale or lease, and all consigned goods and all other items which have
previously constituted Equipment of such Person but are then currently being
held for sale or lease in the ordinary course of such Person's business, (iii)
raw materials, work-in-process and finished goods, (iv) materials and supplies
of any kind, nature or description used or consumed in such Person's business or
in
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connection with the manufacture, production, packing, shipping, advertising,
finishing or sale of any of the property described in clauses (i) through (iii)
above, (v) goods in which such Person has a joint or other interest or right of
any kind (including, without limitation, goods in which such Person has an
interest or right as consignee), and (vi) goods which are returned to or
repossessed by such Person; in each case whether in the possession of such
Person, a bailee, a consignee, or any other Person for sale, storage, transit,
processing, use or otherwise, and any and all documents for or relating to any
of the foregoing.
"Investment" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of Securities, or of a beneficial interest in
Securities, issued by any other Person, (ii) any purchase by that Person of all
or substantially all of the assets of a business conducted by another Person,
and (iii) any loan, advance (other than deposits with financial institutions
available for withdrawal on demand, prepaid expenses, accounts receivable,
advances to employees and similar items made or incurred in the ordinary course
of business) or capital contribution by that Person to any other Person,
including all Indebtedness to that Person arising from a sale of property by
that Person other than in the ordinary course of its business. The amount of any
Investment shall be the original cost of such Investment, plus the cost of all
additions thereto less the amount of any return of capital or principal to the
extent such return is in cash with respect to such Investment without any
adjustments for increases or decreases in value or write-ups, write-downs or
write-offs with respect to such Investment.
"IRS" means the Internal Revenue Service and any Person succeeding
to the functions thereof.
"Issuing Banks" means Citibank, Fleet, and each other Lender
designated as an "Issuing Bank" on the signature pages hereof or the signature
page of the Assignment and Acceptance by which it became a Lender and each other
Lender approved by the Agent and the U.S. Borrower who has agreed to become an
Issuing Bank for the purpose of issuing Letters of Credit pursuant to Section
3.01.
"JLL" means, collectively, Xxxxxx Xxxxxxxxxx & Xxxx Fund, L.P., a
Delaware limited partnership, and Xxxxxx Xxxxxxxxxx & Levy Fund II, L.P., a
Delaware limited partnership.
"Joint Venture" means (i) Indiamalt and (ii) any joint venture to
which the U.S. Borrower or a Subsidiary of the U.S. Borrower is a party under a
joint venture agreement and of which less than sixty-five percent (65%) of the
Securities having ordinary voting power or sixty-five percent (65%) of the
interests in its profits and losses is owned or controlled by the U.S. Borrower
or a Subsidiary of the U.S. Borrower; the Persons identified on Schedule 1.01.2
attached hereto and made a part
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hereof are the only Joint Ventures existing as of the Closing Date.
"KCI" means Kalama Chemical, Inc., a Washington corporation.
"Lender" means, as of the Closing Date, each financial institution a
signatory hereto as a Lender and, at any other given time, each financial
institution which is a party hereto as a Lender, whether as a signatory hereto
or pursuant to an Assignment and Acceptance.
"Letter of Credit" means any Commercial Letter of Credit or Standby
Letter of Credit.
"Letter of Credit Fee" is defined in Section 5.03(a).
"Letter of Credit Obligations" means, at any particular time, the
sum (calculated in Dollars) of (i) all outstanding Reimbursement Obligations,
plus (ii) the aggregate undrawn face amount of all outstanding Letters of
Credit, plus (iii) the aggregate face amount of all Letters of Credit requested
by the Borrowers but not yet issued (unless the request for an unissued Letter
of Credit has been denied by the designated Issuing Bank as referenced in
Section 3.01(c)(i)).
"Letter of Credit Reimbursement Agreement" means, with respect to a
Letter of Credit, such form of application therefor and form of reimbursement
agreement therefor (whether in a single or several documents, taken together) as
the Issuing Bank from which such Letter of Credit is requested may employ in the
ordinary course of business for its own account, with such modifications thereto
as may be agreed upon by such Issuing Bank and the Borrower applicant and as are
not materially adverse (in the judgment of such Issuing Bank and the Agent) to
the interests of the Lenders; provided, however, in the event of any conflict
between the terms of any Letter of Credit Reimbursement Agreement and this
Agreement, the terms of this Agreement shall control.
"Leverage Ratio" means, for any period, the ratio of Funded Debt as
of the end of such period to EBITDA for such period; provided, however, that for
purposes of this definition, Funded Debt shall be determined excluding
$3,000,000 of Indebtedness to insurers relating to prepaid insurance premiums.
"Liabilities and Costs" means all liabilities, obligations,
responsibilities, losses, damages, personal injury, death, punitive damages,
economic damages, consequential damages, treble damages, intentional, willful or
wanton injury, damage or threat to the environment, natural resources or public
health or welfare, costs and expenses (including, without limitation, attorney,
expert and consulting fees and costs and fees and costs associated with any
investigation, feasibility or Remedial Action studies), fines, penalties and
monetary sanctions, interest,
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direct or indirect, known or unknown, absolute or contingent, past, present or
future.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, conditional sale agreement, deposit arrangement, security interest,
encumbrance, lien (statutory or other and including, without limitation, any
Environmental Lien), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever in respect of any
property of a Person, whether granted voluntarily or imposed by law, and
includes the interest of a lessor under a Capital Lease or under any financing
lease having substantially the same economic effect as any of the foregoing and
the filing of any financing statement or similar notice (other than a financing
statement filed by a "true" lessor pursuant to ss. 9-408 of the Uniform
Commercial Code), naming the owner of such property as debtor, under the Uniform
Commercial Code or other comparable law of any jurisdiction.
"Loan Account" is defined in Section 4.03(b).
"Loan Documents" means this Agreement, the Notes, Hedge Agreements
to which any Lender or any Affiliate of a Lender is a party, foreign exchange
contracts to which any Lender or any Affiliate of a Lender is a party, and all
other instruments, agreements and written Contractual Obligations between the
U.S. Borrower, the European Borrower, or any Subsidiary of either Borrower and
any of the Agent, any Lender or any Issuing Bank delivered to either the Agent,
such Lender or such Issuing Bank pursuant to or in connection with the
transactions contemplated hereby.
"Loans" means all Revolving Loans and Swing Loans, whether Base Rate
Loans or Eurocurrency Rate Loans.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U and Regulation G.
"Material Adverse Effect" means a material adverse effect upon (i)
the financial condition, operations, assets or prospects of the U.S. Borrower
and its Subsidiaries, taken as a whole, (ii) the ability of either Borrower to
perform its respective obligations under the Loan Documents, or (iii) the
ability of the Lenders, the Issuing Banks or the Agent to enforce any of the
Loan Documents.
"MIS" means computerized management information system for recording
and maintenance of information regarding purchases, sales, aging,
categorization, and locations of Inventory, creation and aging of Receivables,
and accounts payable (including agings thereof).
"Multicurrency Sublimit" means $50,000,000.
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"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA (other than a Foreign Employee Benefit Plan) which
(i) is, or within the immediately preceding six (6) years was, contributed to by
either the U.S. Borrower or any ERISA Affiliate or in respect of which the U.S.
Borrower or any ERISA Affiliate has assumed any liability and (ii) is not a
Foreign Employee Benefit Plan.
"Net Cash Proceeds of Issuance of Indebtedness" means net cash
proceeds (including cash, equivalents readily convertible into cash, and such
proceeds of any notes or any other non-cash consideration received as
consideration) received by the U.S. Borrower or any of its Subsidiaries at any
time after the Closing Date on account of the issuance of Indebtedness (other
than Indebtedness permitted under Section 10.01) of the U.S. Borrower or any of
its Subsidiaries, in each case net of all transaction costs and underwriters'
discounts with respect thereto.
"Net Cash Proceeds of Sale" means (i) proceeds received by the U.S.
Borrower or any Subsidiary of the U.S. Borrower, in cash (including cash,
equivalents readily convertible into cash, and such proceeds of any notes or any
other non-cash consideration received as consideration), from the sale,
assignment or other disposition of (but not the lease or license of) any
Property, other than sales permitted under clauses (b), (c), and (f) of Section
10.02, net of (a) the costs of sale, assignment or other disposition, (b) any
income, franchise, transfer or other tax liability arising from such transaction
and (c) amounts applied to the repayment of Indebtedness (other than the
Obligations) secured by a Lien permitted by Section 10.03 on the asset disposed
of, if such net proceeds arise from any individual sale, assignment or other
disposition or from any group of related sales, assignments or other
dispositions; and (ii) to the extent provided in Section 9.07(b), proceeds of
insurance on account of the loss of or damage to any Property or Properties, and
payments of compensation for any Property or Properties taken by condemnation or
eminent domain.
"Net Income" means, for any period, the net earnings (or loss) after
taxes of the U.S. Borrower and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with GAAP.
Net Insurance and Condemnation Proceeds" means proceeds (including
cash, equivalents readily convertible into cash, and such proceeds of any notes
received in lieu of cash) of insurance policies described in Section 9.07 and
proceeds of condemnation awards described in Section 9.07 required to be
remitted to the Agent as provided in Section 9.07(b).
"New FCC Common Stock" means 14,231.5 shares of common Capital Stock
of the U.S. Borrower issued to Xxxxxx Xxxxxxxxxx & Xxxx Fund II, L.P., a
Delaware limited partnership, on May 26,
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1994 in exchange for a cash capital contribution in the amount of $1,500,000.
"1994 Credit Agreement" is defined in the premises to this
Agreement.
"1994 Preferred Stock" means the 8,064.52 shares of 11 7/8%
Redeemable Preferred Stock, Series B, issued by the U.S. Borrower to Xxxxxx
Xxxxxxxxxx & Levy Fund II, L.P., a Delaware corporation, on May 26, 1994 and
maturing on April 30, 2003, for a total aggregate amount of $8,500,000.
"Non Pro Rata Loan" is defined in Section 4.02(b)(v).
"Note" means a promissory note in the form attached hereto as
Exhibit C payable to a Lender, evidencing certain of the Obligations of a
Borrower to such Lender and executed by a Borrower as required by Section
4.03(a), as the same may be amended, supplemented, modified or restated from
time to time, and any promissory note issued in substitution therefor; "Notes"
means, collectively, all of such promissory notes outstanding at any given time.
"Notice of Borrowing" means a notice substantially in the form of
Exhibit D attached hereto and made a part hereof.
"Notice of Conversion/Continuation" means a notice substantially in
the form of Exhibit E attached hereto and made a part hereof with respect to a
proposed conversion or continuation of a Loan pursuant to Section 5.01(c).
"Obligations" means all Loans, advances, debts, liabilities,
obligations, covenants and duties owing by the Borrowers to the Agent, any
Lender, any Issuing Bank, any Affiliate of the Agent, any Lender or any Issuing
Bank, or any Person entitled to indemnification pursuant to Section 15.03, of
any kind or nature, present or future, whether or not evidenced by any note,
guaranty or other instrument, arising under this Agreement, the Notes or any
other Loan Document, whether or not for the payment of money, whether arising by
reason of an extension of credit, opening or amendment of a Letter of Credit or
payment of any draft drawn thereunder, loan, guaranty, indemnification, Hedge
Agreement or in any other manner, whether direct or indirect (including those
acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired. The term includes, without
limitation, all interest, charges, expenses, fees, attorneys' fees and
disbursements and any other sum chargeable to the Borrowers, or either of them,
under this Agreement or any other Loan Document.
"Officer's Certificate" means, as to a corporation, a certificate
executed on behalf of such corporation by the chairman or vice-chairman of its
board of directors (if an officer of
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such corporation) or its president, any of its vice presidents, its chief
financial officer, or its treasurer.
"Operating Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which is not
a Capital Lease.
"Organizational Documents" means, with respect to any corporation,
limited liability company, or partnership (i) the articles/certificate of
incorporation (or the equivalent organizational documents) of such corporation
or limited liability company, (ii) the partnership agreement executed by the
partners in the partnership, (iii) the by-laws (or the equivalent governing
documents) of the corporation, limited liability company or partnership, and
(iv) any document setting forth the designation, amount and/or relative rights,
limitations and preferences of any class or series of such corporation's Capital
Stock or such limited liability company's or partnership's equity or ownership
interests.
"OSHA" means the Occupational Safety and Health Act of 1970, 29
U.S.C. xx.xx. 651 et seq., any amendments thereto, any successor statutes and
any regulations or guidance promulgated thereunder.
"PBGC" means the Pension Benefit Guaranty Corporation and any Person
succeeding to the functions thereof.
"Performance Level" means any of Performance Xxxxx 0, Xxxxxxxxxxx
Xxxxx 0, Xxxxxxxxxxx Level 3 or Performance Level 4.
"Performance Level 1" means that level of financial performance of
the U.S. Borrower and its Subsidiaries, on a consolidated basis, measured as of
the end of a fiscal quarter of the U.S. Borrower, at which the ratio of Funded
Debt as of the end of such fiscal quarter to EBITDA for the then most recently
ended four (4) fiscal quarter period of the U.S. Borrower is less than or equal
to 3.00 to 1.00.
"Performance Level 2" means that level of financial performance of
the U.S. Borrower and its Subsidiaries, on a consolidated basis, measured as of
the end of a fiscal quarter of the U.S. Borrower, at which the ratio of Funded
Debt as of the end of such fiscal quarter to EBITDA for the then most recently
ended four (4) fiscal quarter period of the U.S. Borrower is greater than 3.00
to 1.00 and less than or equal to 3.50 to 1.00.
"Performance Level 3" means that level of financial performance of
the U.S. Borrower and its Subsidiaries, on a consolidated basis, measured as of
the end of a fiscal quarter of the U.S. Borrower, at which the ratio of Funded
Debt as of the end of such fiscal quarter to EBITDA for the then most recently
ended four (4) fiscal quarter period of the U.S. Borrower is greater than 3.50
to 1.00 and less than or equal to 4.00 to 1.00.
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"Performance Level 4" means that level of financial performance of
the U.S. Borrower and its Subsidiaries, on a consolidated basis, measured as of
the end of a fiscal quarter of the U.S. Borrower, at which the ratio of Funded
Debt as of the end of such fiscal quarter to EBITDA for the then most recently
ended four (4) fiscal quarter period of the U.S. Borrower is greater than 4.00
to 1.00.
"Permit" means any permit, approval, authorization license,
variance, or permission required from a Governmental Authority or other Person
under an applicable Requirement of Law.
"Permitted Equity Securities Options" means the subscriptions,
options, warrants, rights, convertible securities and other agreements or
commitments relating to the issuance of equity Securities of the U.S. Borrower
or any Subsidiary of the U.S. Borrower identified as such on Schedule 1.01.3
attached hereto and made a part hereof.
"Permitted Existing Indebtedness" means the Indebtedness of the U.S.
Borrower and its Subsidiaries, including, without limitation, Accommodation
Obligations of the U.S. Borrower and its Subsidiaries, identified as such on
Schedule 1.01.4 attached hereto and made a part hereof.
"Permitted Existing Investments" means those Investments identified
as such on Schedule 1.01.5 attached hereto and made a part hereof.
"Permitted Existing Liens" means the Liens on assets of the U.S.
Borrower or any of its Subsidiaries identified as such on Schedule 1.01.6
attached hereto and made a part hereof.
"Permitted Holders" means (i) collectively or individually, Xxxxxx
Xxxxxxxxxx & Xxxx Fund, L.P., Xxxxxx Xxxxxxxxxx & Levy Fund II, L.P., The
Freedom Group Partnership, or (ii) any Affiliate of any of the Persons described
in clause (i) above and, with respect to JLL, any partnership or corporation
which is managed or controlled by JLL Associates, L.P. or any Affiliate thereof.
For purposes of this definition, "control", as used with respect to any Person,
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through ownership of voting securities or by contract or otherwise.
"Person" means any natural person, corporation, limited liability
company, limited partnership, general partnership, joint stock company, joint
venture, association, company, trust, bank, trust company, land trust, business
trust or other organization, whether or not a legal entity, and any Governmental
Authority.
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"Plan" means an employee benefit plan defined in Section 3(3) of
ERISA (other than a Foreign Employee Benefit Plan) (i) in respect of which the
U.S. Borrower or any ERISA Affiliate is, or within the immediately preceding six
(6) years was, an "employer" as defined in Section 3(5) of ERISA or the U.S.
Borrower or any ERISA Affiliate has assumed any liability and (ii) which is not
a Foreign Employee Benefit Plan.
"Potential Event of Default" means an event which, with the giving
of notice or the lapse of time, or both, would constitute an Event of Default.
"Preferred Stock" means, collectively, (i) the 17,000 shares of 11
7/8% Redeemable Preferred Stock, Series B, issued by Freedom Chemical
Acquisition Corporation, a Delaware corporation, to the U.S. Borrower on
September 9, 1993 and maturing on April 30, 2003, for a total aggregate amount
of $17,000,000 which converted to 17,000 shares of 11 7/8% Redeemable Preferred
Stock, Series B, issued by Hilton to the U.S. Borrower on May 26, 1994 and (ii)
the 8,064.52 shares of 11 7/8% Redeemable Preferred Stock, Series B, issued by
the U.S. Borrower to Xxxxxx Xxxxxxxxxx & Xxxx Fund II, L.P. on May 26, 1994 and
maturing on April 30, 2003, for a total aggregate amount of $8,500,000.
"President's Letter" is defined in Section 8.02.
"Process Agent" is defined in Section 15.17(a)(i).
"Pro Forma" means the unaudited pro forma opening balance sheet of
the U.S. Borrower and its Subsidiaries attached hereto as Exhibit F, prepared in
accordance with GAAP, dated the Effective Date, derived from the Financial
Statements of the U.S. Borrower and its Subsidiaries as of June 30, 1996 and
giving effect to the extensions of credit contemplated hereby, the funding of
the Subordinated Debt, and the making of the Equity Infusion.
"Projections" means the financial projections (including, without
limitation, capital expenditure budget) for the five-year period commencing on
the Effective Date and assumptions made in connection therewith prepared by the
U.S. Borrower dated as of the Closing Date and attached hereto as Exhibit G.
"Property" means any Real Property or personal property, plant,
building, facility, structure, underground storage tank or unit, Equipment,
Inventory, General Intangible, Receivable, or other asset owned, leased or
operated by either Borrower or any Subsidiary of either Borrower, as applicable,
(including any surface water thereon, and soil and groundwater thereunder).
"Pro Rata Share" means, with respect to any Lender, the
percentage obtained by dividing (i) the amount of such Lender's
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Revolving Credit Commitment (in each case, as adjusted from time to time in
accordance with the provisions of this Agreement or any Assignment and
Acceptance to which such Lender is a party) by (ii) the Revolving Credit
Commitments (notwithstanding the termination of any such Commitments).
"Protective Advance" is defined in Section 13.09(a).
"Purchase Agreement" means that certain Stock Purchase Agreement
among BC Sugar Refinery, Limited, a corporation organized under the laws of
Canada, Xxxxxxxxxx Petrochemical Corporation, a corporation formed under the
laws of the Province of British Columbia, Canada, and the U.S. Borrower, dated
as of May 11, 1994, as amended by Amendment No. 1 to Stock Purchase Agreement
dated as of May 26, 1994.
"RCRA" means the Resource Conservation and Recovery Act of 1976, 42
U.S.C. xx.xx. 6901 et seq., any amendments thereto, any successor statutes, and
any regulations promulgated thereunder.
"Real Property" means, with respect to any Person, all of such
Person's present and future right, title and interest (including, without
limitation, any leasehold estate) in (i) any plots, pieces or parcels of land,
(ii) any improvements, buildings, structures and fixtures now or hereafter
located or erected thereon or attached thereto of every nature whatsoever (the
rights and interests described in clauses (i) and (ii) above being the
"Premises"), (iii) all easements, rights of way, gores of land or lands occupied
by streets, ways, alleys, passages, sewer rights, water courses, water rights
and powers, and public places adjoining such land, and any other interests in
property constituting appurtenances to the Premises, or which hereafter shall in
any way belong, relate or be appurtenant thereto, (iv) all hereditaments, gas,
oil, minerals (with the right to extract, sever and remove such gas, oil and
minerals), and easements, of every nature whatsoever, located in or on the
Premises and (v) all other rights and privileges thereunto belonging or
appertaining and all extensions, additions, improvements, betterments, renewals,
substitutions and replacements to or of any of the rights and interests
described in clauses (iii) and (iv) above.
"Receivables" means, with respect to any Person, all of such
Person's present and future (i) accounts, (ii) contract rights, chattel paper,
instruments, documents, deposit accounts, and other rights to payment of any
kind, whether or not arising out of or in connection with the sale or lease of
goods or the rendering of services, and whether or not earned by performance,
(iii) any of the foregoing which are not evidenced by instruments or chattel
paper, (iv) intercompany receivables, and any security documents executed in
connection therewith, (v) proceeds of any letters of credit or insurance
policies on which such Person is named as beneficiary, (vi) claims against third
parties for advances and other financial accommodations and any other
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obligations whatsoever owing to such Person, (vii) rights in and to all security
agreements, leases, guarantees, instruments, securities, documents of title and
other contracts securing, evidencing, supporting or otherwise relating to any of
the foregoing, together with all rights in any goods, merchandise or Inventory
which any of the foregoing may represent, and (viii) rights in returned and
repossessed goods, merchandise and Inventory which any of the same may
represent, including, without limitation, any right of stoppage in transit.
"Refinanced Indebtedness" means the Indebtedness of the European
Borrower which is to be repaid or defeased out of the proceeds of the Loans made
on the Effective Date and identified as such on Schedule 1.01.7 attached hereto
and made a part hereof.
"Register" is defined in Section 15.01(c).
"Regulation A" means Regulation A of the Federal Reserve Board as in
effect from time to time.
"Regulation G" means Regulation G of the Federal Reserve Board as in
effect from time to time.
"Regulation T" means Regulation T of the Federal Reserve Board as in
effect from time to time.
"Regulation U" means Regulation U of the Federal Reserve Board as in
effect from time to time.
"Regulation X" means Regulation X of the Federal Reserve Board as in
effect from time to time.
"Reimbursement Date" is defined in Section 3.01(d)(i)(A).
"Reimbursement Obligations" means the aggregate non-contingent
reimbursement or repayment obligations of the Borrowers with respect to amounts
drawn under Letters of Credit.
"Release" means any release, spill, emission, leaking, pumping,
pouring, dumping, injection, deposit, disposal, abandonment, or discarding of
barrels, containers or other receptacles, discharge, emptying, escape,
dispersal, leaching or migration into the indoor or outdoor environment or into
or out of any Property, including the movement of Contaminants through or in the
air, soil, surface water, groundwater or Property.
"Remedial Action" means actions required to (i) clean up, remove,
treat or in any other way address Contaminants in the indoor or outdoor
environment; (ii) prevent the Release or threat of Release or minimize the
further Release of Contaminants; or (iii) investigate and determine if a
remedial response is needed
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and to design such a response and post-remedial investigation, monitoring,
operation and maintenance and care.
"Replacement Proceeds" means the amount of (i) proceeds of insurance
paid on account of the loss of or damage to any Property and awards of
compensation for Property taken by condemnation or eminent domain to the extent
actually used to replace, rebuild or restore the Property so lost, damaged or
taken, provided that (a) the U.S. Borrower shall have delivered written notice
to the Agent that it or its applicable Subsidiary intends to so replace, rebuild
or restore such Property and (b) the U.S. Borrower or such applicable Subsidiary
of the U.S. Borrower replaces or commences the restoration or rebuilding of such
Property within 180 days after the Agent's receipt of the proceeds of such
insurance payment or condemnation award and (ii) insurance paid on account of a
business interruption occurrence to the extent actually used in the restoration
or conduct of the business interrupted.
"Reportable Event" means any of the events described in Section
4043(b) of ERISA and the regulations promulgated thereunder as in effect from
time to time other than an event for which the thirty (30) day notice
requirement has been waived by the PBGC.
"Requirements of Law" means, as to any Person, the charter and
by-laws or other organizational or governing documents of such Person, and any
law, rule or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its Property or to which such Person or any of its Property is subject
including, without limitation, the Securities Act, the Securities Exchange Act,
Regulations G, T, U and X, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, the Americans with Disabilities Act
of 1990, and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or Permit or any Environmental, Health or
Safety Requirement of Law.
"Requisite Lenders" means Lenders whose Pro Rata Shares, in the
aggregate, are greater than fifty percent (50%); provided, however, that, in the
event any of the Lenders shall have failed to fund its Pro Rata Share of any
Revolving Loan requested by a Borrower which such Lenders are obligated to fund
under the terms of this Agreement and any such failure has not been cured, then
for so long as such failure continues, "Requisite Lenders" means Lenders
(excluding all Lenders whose failure to fund their respective Pro Rata Shares of
such Revolving Loans have not been so cured) whose Pro Rata Shares represent
more than fifty percent (50%) of the aggregate Pro Rata Shares of such Lenders;
provided, further, however, that, in the event that the Commitments have been
terminated pursuant to the terms of this Agreement, "Requisite Lenders" means
Lenders (without regard to such Lenders' performance of their respective
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obligations hereunder) whose aggregate ratable shares (stated as a percentage)
of the aggregate outstanding principal balance of all Loans are greater than
fifty percent (50%).
"Restricted Junior Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
Capital Stock of a Borrower or any of its Subsidiaries now or hereafter
outstanding, except a dividend payable solely in shares of that class of stock
or in any junior class of stock to the holders of that class, (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of equity
Securities of a Borrower or any of its Subsidiaries now or hereafter
outstanding, (iii) any payment or prepayment of principal of, premium, if any,
or interest, fees or other charges on or with respect to, and any redemption,
purchase, retirement, defeasance, sinking fund or similar payment and any claim
for rescission with respect to, the Subordinated Debt and any guarantee thereof,
or any other Indebtedness for borrowed money and (iv) any payment made to
redeem, purchase, repurchase or retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class of
Capital Stock of a Borrower or any of its Subsidiaries now or hereafter
outstanding.
"Revolving Credit Availability" means, at any time of determination
thereof, the amount (calculated in Dollars or the equivalent thereof in the
applicable Alternative Currency) by which the Revolving Credit Commitments then
in effect exceeds the Revolving Credit Obligations at such time.
"Revolving Credit Commitment" means, with respect to any Lender, the
obligation of such Lender to make Revolving Loans and to participate in Letters
of Credit pursuant to the terms and conditions of this Agreement, in an
aggregate amount at any time outstanding which shall not exceed the principal
amount set forth opposite such Lender's name under the heading "Revolving Credit
Commitment" on the signature pages hereof or the signature page of the
Assignment and Acceptance by which it became a Lender, as modified from time to
time pursuant to the terms of this Agreement or to give effect to any applicable
Assignment and Acceptance, and "Revolving Credit Commitments" means the
aggregate principal amount of the Revolving Credit Commitments of all the
Lenders, the maximum amount of which shall be $85,000,000, as reduced from time
to time pursuant to Section 4.01.
"Revolving Credit Obligations" means, at any particular time, the
sum (calculated in Dollars) of (i) the outstanding principal amount of the
Revolving Loans at such time, plus (ii) the Letter of Credit Obligations at such
time, plus (iii) the outstanding principal amount of the Swing Loans at such
time plus (iv) the outstanding amount of Protective Advances at such time.
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"Revolving Credit Termination Date" means the earliest to occur of
(i) October 10, 2001 (or, if not a Business Day, the next preceding Business
Day), (ii) the date of termination of the Revolving Credit Commitments pursuant
to the terms of this Agreement, and (iii) the date of acceleration of the
Obligations pursuant to Section 12.02.
"Revolving Loan" is defined in Section 2.01(b).
"Revolving Note" means a promissory note executed by a Borrower and
delivered to a Lender evidencing the Revolving Loans made to such Borrower by
such Lender, as the same may be amended, supplemented, modified or restated from
time to time, and any promissory note issued in substitution therefor,
substantially in the form attached hereto as Exhibit C-1; and "Revolving Notes"
means, collectively, all of the Revolving Notes executed by the Borrowers.
"Securities" means any Capital Stock, shares, voting trust
certificates, limited partnership certificates, bonds, debentures, notes or
other evidences of indebtedness, secured or unsecured, convertible, subordinated
or otherwise, or in general any instruments commonly known as "securities",
including, without limitation, any "security" as such term is defined in Section
8-102 of the Uniform Commercial Code, or any certificates of interest, shares,
or participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing, but shall not include the Notes or any other evidence of the
Obligations.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time, and any successor statute.
"Solvent", when used with respect to any Person, means that at the
time of determination:
(i) the Fair Market Value of its assets is in excess of the total
amount of its liabilities (including, without limitation, contingent
liabilities); and
(ii) the present fair saleable value of its assets is greater than
its probable liability on its existing debts as such debts become absolute
and matured; and
(iii) it is then able and expects to be able to pay its debts
(including, without limitation, contingent debts and other commitments) as
they mature; and
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(iv) it has capital sufficient to carry on its business as conducted
and as proposed to be conducted.
"Standby Letter of Credit" means any letter of credit issued by an
Issuing Bank pursuant to Section 3.01 for the account of a Borrower or for the
account of any of a Borrower's Subsidiaries if such Borrower is jointly and
severally liable for reimbursement of amounts drawn under such letter of credit,
which is not a Commercial Letter of Credit.
"Sterling" means the lawful money of the United Kingdom.
"Subordinated Debt" means the Indebtedness of the U.S. Borrower
issued pursuant to, and evidenced by, the Subordinated Debt Documents.
"Subordinated Debt Documents" means the Indenture dated as of
October 17, 1996, between the U.S. Borrower and The Bank of New York, as Trustee
relating to the U.S. Borrower's 10 5/8% Senior Subordinated Notes due 2006, the
notes from time to time issued thereunder, and the guarantees executed in
connection therewith, in each case as amended, modified or supplemented from
time to time in accordance with the terms hereof.
"Subsidiary" of a Person means any corporation, limited liability
company, general or limited partnership, or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other Persons performing similar functions with
respect to such entity are at the time directly or indirectly owned or
controlled by such Person, one or more of the other subsidiaries of such Person
or any combination thereof; provided, however, that no Joint Venture shall be
considered to be a Subsidiary for purposes of Articles IV, X, or XII or Sections
8.02, 8.03, 8.05 - 8.09, 9.07 - 9.12, and 9.14.
"Swing Loan Availability" is defined in Section 2.02(a).
"Swing Loan Reserve" means, at any time, a reserve in an amount
equal to the then outstanding balance of the Swing Loans.
"Swing Loans" is defined in Section 2.02(a).
"Swing Loan Subfacility" means, at any time, an amount equal to
$5,000,000 (or the equivalent thereof in Alternative Currencies).
"Swing Note" means a promissory note in the form attached hereto as
Exhibit C-2 evidencing the Swing Loans, as the same may be amended,
supplemented, modified, or restated from time to time.
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"Tax Sharing Agreement" means, collectively, that certain that
certain Tax Sharing Agreement dated as of December 31, 1995 between the U.S.
Borrower and KCI, as in effect on the Closing Date, and that certain Tax Sharing
Agreement dated as of December 31, 1995 among the U.S. Borrower, Textile and
Hilton, as in effect on the Closing Date.
"Taxes" is defined in Section 14.01(a).
"Termination Event" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of the U.S. Borrower or any ERISA Affiliate
from a Benefit Plan during a plan year in which the U.S. Borrower or such ERISA
Affiliate was a "substantial employer" as defined in Section 4001(a)(2) of ERISA
or the cessation of operations which results in the termination of employment of
20% of Benefit Plan participants who are employees of the U.S. Borrower or any
ERISA Affiliate; (iii) the imposition of an obligation on the U.S. Borrower or
any ERISA Affiliate under Section 4041 of ERISA to provide affected parties
written notice of intent to terminate a Benefit Plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the institution by the PBGC or any
similar foreign Governmental Authority of proceedings to terminate a Benefit
Plan or a Foreign Pension Plan; (v) any event or condition which could
reasonably be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Benefit Plan;
(vi) the appointment by a foreign Governmental Authority of, or the institution
of proceedings by a foreign Governmental Authority to appoint, a trustee to
administer any Foreign Pension Plan; or (vii) the partial or complete withdrawal
of the Borrower or any ERISA Affiliate from a Multiemployer Plan or a Foreign
Pension Plan.
"Textile" means Freedom Textile Chemicals Co., a Delaware
corporation.
"Textile SC" means Freedom Textile Chemical Company (South
Carolina), Inc., a Delaware corporation.
"Transaction Costs" means the fees, costs and expenses payable by
the Borrowers in connection with the execution, delivery and performance of the
Loan Documents and other Transaction Documents.
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"Transaction Documents" means the Loan Documents, the the
Subordinated Debt Documents, and the agreements and documents executed in
connection with the Equity Infusion.
"Uniform Commercial Code" means the Uniform Commercial Code as
enacted in the State of New York, as it may be amended from time to time.
"U.S." means the United States of America.
"U.S. Borrower" is defined in the preamble of this Agreement.
"Unused Commitment Fee" is defined in Section 5.03(b)(i).
"Voting Stock" means, with respect to any Person, the Capital Stock
of such Person of the class or classes pursuant to which the holders thereof
have the general voting power under ordinary circumstances to elect at least a
majority of the Board of Directors, managers or trustees of such Person
(irrespective of whether or not at the time stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency).
"Wholly-Owned Subsidiary" means a corporation (i) one hundred
percent (100%) of the Capital Stock of which is owned by the U.S. Borrower
and/or any Subsidiary of the U.S. Borrower or (ii) greater than ninety-eight
percent (98%) of the Capital Stock of which is owned by the U.S. Borrower and/or
a Subsidiary of the U.S. Borrower and the remainder of which Capital Stock is
owned by a nominee of the U.S. Borrower or such Subsidiary solely to comply with
the Requirements of Law of the jurisdiction governing such corporation's
organization and existence.
1.02. Computation of Time Periods. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding". Periods of days referred to in this Agreement shall be
counted in calendar days unless Business Days are expressly prescribed. Any
period determined hereunder by reference to a month or months or year or years
shall end on the day in the relevant calendar month in the relevant year, if
applicable, immediately preceding the date numerically corresponding to the
first day of such period; provided that if such period commences on the last day
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month during which such period is to end), such period
shall, unless otherwise expressly required by the other provisions of this
Agreement, end on the last day of the calendar month.
1.03. Accounting Terms. Subject to Section 15.04, for purposes of
this Agreement, all accounting terms not otherwise
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defined herein shall have the meanings assigned to them in conformity with GAAP.
1.04. Other Terms. All other terms contained in this Agreement
shall, unless the context indicates otherwise, have the meanings assigned to
such terms by the Uniform Commercial Code to the extent the same are defined
therein.
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ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.01. Revolving Credit Facility. (a) Intentionally omitted.
(b) Availability. (i) Subject to the terms and conditions set forth
in this Agreement, each Lender hereby severally and not jointly agrees to make
revolving loans, in Dollars or an Alternative Currency (each individually, a
"Revolving Loan" and, collectively, the "Revolving Loans") to the Borrowers,
collectively, from time to time during the period from the Effective Date to the
Business Day next preceding the Revolving Credit Termination Date, in an amount
not to exceed such Lender's Pro Rata Share of the Revolving Credit Availability
in the applicable currency at such time. If such Revolving Loans are made in one
or more Alternative Currencies, the amount thereof, when aggregated with all
other Revolving Credit Obligations denominated in Alternative Currencies, shall
not exceed the equivalent of the Multicurrency Sublimit.
(ii) All Revolving Loans comprising the same Borrowing under this
Agreement shall be made by the Lenders simultaneously and proportionately to
their then respective Pro Rata Shares, it being understood that no Lender shall
be responsible for any failure by any other Lender to perform its obligation to
make a Revolving Loan hereunder nor shall the Revolving Credit Commitment of any
Lender be increased or decreased as a result of any such failure.
(iii) Subject to the provisions of this Agreement, the Borrower
obligated therefor may repay any outstanding Revolving Loan made to it on any
day which is a Business Day and any amounts so repaid may be reborrowed, up to
the amount available under this Section 2.01(b) at the time of such Borrowing,
until the Business Day next preceding the Revolving Credit Termination Date.
(iv) Each requested respective Borrowing of Revolving Loans funded
on any Funding Date shall consist of Loans made in the same currency and shall
be (i) if Base Rate Loans, in a principal amount of at least $250,000 and in
integral multiples of $250,000 in excess of that amount and (ii) if Eurocurrency
Rate Loans, in a principal amount of at least $1,000,000 (or the equivalent
thereof in any Alternative Currency) and in integral multiples of $250,000 (or
the equivalent thereof in any Alternative Currency) in excess of that amount.
(c) Notice of Borrowing. When either Borrower desires to borrow
under this Section 2.01, the U.S. Borrower shall deliver to the Agent a Notice
of Borrowing, signed by it, (i) on the Closing Date, in the case of the
Borrowings on the Effective Date, (ii) no later than 11:30 a.m. (New York time)
on the
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Business Day immediately preceding the proposed Funding Date therefor, in the
case of a Borrowing of Base Rate Loans after the Effective Date, and (iii) no
later than 9:00 a.m. (New York time) at least three (3) Business Days in advance
of the proposed Funding Date therefor, in the case of a Borrowing of
Eurocurrency Rate Loans after the Effective Date. Such Notice of Borrowing shall
specify (i) the proposed Funding Date (which shall be a Business Day), (ii) the
amount and currency of the proposed Borrowing, (iii) the Revolving Credit
Availability in the applicable currency as of the date of such Notice of
Borrowing and, if such Borrowing is requested in an Alternative Currency, the
unfunded portion of the Multicurrency Sublimit as of the date of such Notice of
Borrowing, (iv) whether the proposed Borrowing will be of Base Rate Loans or
Eurocurrency Rate Loans, (v) in the case of Eurocurrency Rate Loans, the
requested Eurocurrency Rate Interest Period, (vi) which Borrower is making the
subject Borrowing, and (vii) instructions for the disbursement of the proceeds
of the proposed Borrowing. In lieu of delivering such a Notice of Borrowing
(except with respect to a Borrowing of Revolving Loans on the Effective Date),
the U.S. Borrower may give the Agent telephonic notice of any proposed Borrowing
by the time required under this Section 2.01(c), if the U.S. Borrower confirms
such notice by delivery of the required Notice of Borrowing to the Agent by
facsimile transmission promptly, but in no event later than 5:00 p.m. (New York
time) on the same day, the original of which facsimile copy shall be delivered
to the Agent within three (3) days after the date of such transmission. Any
Notice of Borrowing (or telephonic notice in lieu thereof) given pursuant to
this Section 2.01(c) shall be irrevocable, except as specifically provided in
Section 2.01(d)(i).
(d) Making of Revolving Loans. (i) Promptly after receipt of a
Notice of Borrowing under Section 2.01(c) (or telephonic notice in lieu
thereof), the Agent shall notify each Lender by telex or telecopy, or other
similar form of transmission, of the proposed Borrowing. Each Lender shall
deposit an amount equal to its Pro Rata Share of the amount requested by the
U.S. Borrower to be made as Revolving Loans, (A) in the case of a Borrowing in
Dollars, with the Agent at its office in New York, New York, in immediately
available funds, and (B) in the case of a Borrowing in an Alternative Currency,
with Citibank London at its office in London, England in immediately available
funds, in either instance, (1) on the Effective Date with respect to the
Borrowing of Revolving Loans on such date specified in the initial Notice of
Borrowing and (2) not later than 11:00 a.m. (New York time) on any other Funding
Date for Revolving Loans. Subject to the fulfillment of the conditions precedent
set forth in Section 6.01 or Section 6.02, as applicable, the Agent or Citibank
London, as applicable, shall make the proceeds of such amounts received by it
available to the applicable Borrower at the respective aforesaid office of the
Agent or Citibank London on such Funding Date (or on the date received if later
than such Funding Date) and shall disburse such proceeds in accordance with the
U.S. Borrower's disbursement instructions set forth in the
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applicable Notice of Borrowing. The failure of any Lender to deposit the amount
described above with the Agent on the applicable Funding Date shall not relieve
any other Lender of its obligations hereunder to make its Revolving Loan on such
Funding Date. In the event the conditions precedent set forth in Section 6.01 or
6.02, as applicable, are not fulfilled as of the proposed Funding Date for any
Borrowing, the Agent shall promptly return, by wire transfer of immediately
available funds, the amount deposited by each Lender to such Lender.
(ii) Unless the Agent shall have been notified by any Lender on the
Business Day immediately preceding the applicable Funding Date in respect of any
Borrowing of Revolving Loans that such Lender does not intend to fund its
Revolving Loan requested to be made on such Funding Date, the Agent may assume
that such Lender has funded its Revolving Loan and is depositing the proceeds
thereof with the Agent or Citibank London, as applicable, on the Funding Date
therefor, and the Agent or Citibank London, as applicable, in its sole
discretion may, but shall not be obligated to, disburse a corresponding amount
to the applicable Borrower on the applicable Funding Date. If the Revolving Loan
proceeds corresponding to that amount are advanced to a Borrower by the Agent or
Citibank London, as applicable, but are not in fact deposited with the Agent or
Citibank London, as applicable, by such Lender on or prior to the applicable
Funding Date, such Lender agrees to pay, and in addition the Borrower to which
such Loan was disbursed agrees to repay, to the Agent or Citibank London, as
applicable, forthwith on demand such corresponding amount, together with
interest thereon, for each day from the date such amount is disbursed to or for
the benefit of such Borrower until the date such amount is paid or repaid to the
Agent or Citibank London, as applicable, (A) in the case of such Borrower, at
the interest rate applicable to such Borrowing and (B) in the case of such
Lender, at the higher of (1) the Federal Funds Rate and (2) the cost of funds
incurred by the Agent in respect of such amount for the first three (3) Business
Days, and thereafter at the interest rate applicable to such Borrowing. If such
Lender shall pay to the Agent or Citibank London the corresponding amount, the
amount so paid shall constitute such Lender's Revolving Loan, and if both such
Lender and such Borrower shall pay and repay such corresponding amount, the
Agent shall promptly pay to such Borrower such corresponding amount. This
Section 2.01(d)(ii) does not relieve any Lender of its obligation to make its
Revolving Loan on any applicable Funding Date.
(iii) In the case of any Borrowing to be comprised of Eurocurrency
Rate Loans, the Borrowers hereby agree to indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of Borrowing for such
Borrowing the applicable conditions set forth in Article VI, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or
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reemployment of deposits or other funds acquired by any Lender to fund the Loan
to be made by such Lender as part of such Borrowing when such Loan, as a result
of such failure, is not made on such date.
(e) Revolving Credit Termination Date. The Revolving Credit
Commitments shall terminate on the Revolving Credit Termination Date. Each
Lender's obligation to make Revolving Loans shall terminate on the Business Day
next preceding the Revolving Credit Termination Date. All outstanding Revolving
Credit Obligations shall be paid in full (or, in the case of unmatured Letter of
Credit Obligations, provision for payment in cash shall be made to the
satisfaction of the Issuing Banks and the Requisite Lenders) on the Revolving
Credit Termination Date.
(f) Maximum Revolving Credit Facility; Multicurrency Sublimit.
Notwithstanding anything in this Agreement to the contrary, in no event shall
(i) the aggregate principal Revolving Credit Obligations exceed the Revolving
Credit Commitments or (ii) the aggregate principal Revolving Credit Obligations
denominated in Alternative Currencies exceed the Multicurrency Sublimit.
2.02. Swing Loans. (a) Amount. Subject to the terms and conditions
set forth in this Agreement, Citicorp, in its sole discretion, may from time to
time after the Closing Date make loans to the Borrowers solely for Citicorp's
own account in Dollars and/or Alternative Currencies (the "Swing Loans") up to
an aggregate principal amount at any one time outstanding equal to the lesser of
(i) the Swing Loan Subfacility calculated in Dollars and (ii) Citicorp's Pro
Rata Share of the Revolving Credit Commitments then in effect minus the
Revolving Credit Obligations (such lesser amount being referred to as the "Swing
Loan Availability"); provided that, after giving effect to such Swing Loans, the
Revolving Credit Availability is no less than zero (0) and the outstanding
balance of the Swing Loans is no greater than the Swing Loan Subfacility.
(b) Notice of Borrowing. When a Borrower desires to borrow under
this Section 2.02, the U.S. Borrower shall make a telephonic request to the
Agent (which shall be confirmed by a Notice of Borrowing, signed on its behalf,
delivered to the Agent on the same day by facsimile transmission) no later than
(i) 9:00 a.m. (New York time) on the Business Day immediately preceding the
proposed Funding Date therefor, if such Borrowing is to be denominated in an
Alternative Currency, and (ii) 11:30 a.m. (New York time) on the proposed
Funding Date therefor, if such Borrowing is to be denominated in Dollars. The
Notice of Borrowing with respect to any Swing Loan shall specify (i) the amount
and currency of the proposed Borrowing, (ii) the Swing Loan Availability in the
applicable currency as of the date of such Notice of Borrowing, (iii) which
Borrower is making the subject Borrowing, and (iv) the Funding Date for such
Borrowing and instructions for the disbursement of the proceeds of such
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proposed Borrowing. Swing Loans which are Eurocurrency Rate Loans shall have
Eurocurrency Rate Interest Periods of one (1) week.
(c) Making of Swing Loans. Citicorp shall have no duty to make or to
continue to make Swing Loans at any time. In the event Citicorp determines to
make any Swing Loan after the U.S. Borrower's request therefor, Citicorp shall
make the proceeds of such Swing Loan available to the applicable Borrower at the
Agent's office in New York, New York or at Citibank London in London, England
and shall disburse such proceeds in accordance with the disbursement
instructions set forth in the applicable Notice of Borrowing. Citicorp shall not
make any Swing Loan at any time if Citicorp shall have received a written notice
from any Lender or shall otherwise have actual knowledge before funding such
Swing Loan that one or more of the conditions precedent set forth in Section
6.02 will not be satisfied on the proposed Funding Date for such Swing Loan, but
Citicorp shall not otherwise be required to take any action to determine that
the conditions precedent set forth in Section 6.02 have been satisfied prior to
making any Swing Loan.
(d) Repayment of Swing Loans. All Swing Loans shall be payable,
together with accrued interest thereon, if denominated in Dollars, on the
earlier to occur of Citicorp's demand therefor or the Friday next succeeding the
Funding Date therefor and, if denominated in an Alternative Currency, one week
after the Funding Date therefor. The applicable Borrower shall be deemed to have
requested Revolving Loans to be made on the date on which repayment of Swing
Loans is due in the amount of Swing Loans then outstanding to it and the
proceeds of such Revolving Loans shall be applied to the repayment of such Swing
Loans. The Agent shall notify the Lenders of the outstanding balance of Swing
Loans prior to 9:00 a.m. (New York time) on the Business Day immediately
preceding the Funding Date for such Revolving Loans and each Lender other than
Citicorp shall deposit an amount, in the appropriate currency, equal to its Pro
Rata Share of the amount of Revolving Loans deemed requested with the Agent at
its office in New York, New York, if such Revolving Loans are denominated in
Dollars, or the office of Citibank London in London, England, if such Revolving
Loans are denominated in an Alternative Currency, in immediately available funds
not later than 11:00 a.m. (New York time) on such Funding Date. Swing Loans
denominated in Dollars shall be paid by Base Rate Loans; Swing Loans denominated
in an Alternative Currency shall be paid by Eurocurrency Rate Loans having a
Eurocurrency Rate Interest Period of one (1) month.
(e) Use of Proceeds of Swing Loans. The proceeds of the Swing Loans
may be used solely for the purposes set forth in Section 2.04.
2.03. Authorized Officers and Agents. On the Closing Date the U.S.
Borrower shall deliver, and from time to time thereafter the U.S. Borrower may
deliver, to the Agent an
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Officer's Certificate setting forth the names of the officers, employees and
agents authorized to request, on behalf of the respective Borrowers, Loans and
Letters of Credit and a conversion/continuation of any Loan, in each instance
containing a specimen signature of each such officer, employee or agent. The
officers, employees and agents so authorized shall also be authorized to act for
the respective Borrowers in respect of all other matters relating to the Loan
Documents. The Agent, Lenders and Issuing Banks shall be entitled to rely
conclusively on such officer's, employee's, or agent's authority to request such
Loan or Letter of Credit or such conversion/continuation until the Agent,
Lenders and Issuing Banks receive written notice to the contrary. None of the
Agent, the Lenders, or the Issuing Banks shall have any duty to verify the
authenticity of the signature appearing on any such Officer's Certificate,
written Notice of Borrowing, Notice of Conversion/Continuation, or any other
document, and, with respect to an oral request for such a Loan or Letter of
Credit or such conversion/continuation, the Agent shall have no duty to verify
the identity of any person representing himself or herself as one of the
officers, employees or agents authorized to make such request or otherwise to
act on behalf of the respective Borrowers. None of the Agent, any Lender or any
Issuing Bank shall incur any liability to either Borrower or any other Person in
acting upon any telephonic or facsimile notice referred to above which the
Agent, such Lender, or such Issuing Bank believes to have been given by a duly
authorized officer or other person authorized to borrow on behalf of such
Borrower.
2.04. Use of Proceeds of Loans. The proceeds of the Revolving Loans
made on the Effective Date shall be used to repay in full the Refinanced
Indebtedness and the Transactions Costs and the proceeds of all other Loans
shall be used for the lawful general corporate purposes of the Borrowers and
their Subsidiaries.
2.05. Currency Equivalents. The equivalent in Dollars of any
Alternative Currency shall be determined by using the quoted spot rate at which
Citibank offers to exchange Dollars for such Alternative Currency in New York,
New York at 9:00 a.m. (New York time) two (2) Business Days prior to the date on
which such equivalent is to be determined. The equivalent in any Alternative
Currency (i) of any other Alternative Currency shall be determined by using the
quoted spot rate at which Citibank offers to exchange such Alternative Currency
for the equivalent in such other Alternative Currency in New York, New York at
9:00 a.m. (New York time) two (2) Business Days prior to the date on which such
equivalent is to be determined and (ii) of Dollars shall be determined by using
the quoted spot rate at which Citibank offers to exchange such Alternative
Currency for Dollars in New York, New York at 9:00 a.m. (New York time) two (2)
Business Days prior the date on which such equivalent is to be determined. The
equivalent in Dollars of each Eurocurrency Rate Loan made in an Alternative
Currency shall be recalculated hereunder on each date that it shall be necessary
to determine the unused portion of
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each Lender's Revolving Credit Commitment, the Revolving Credit Availability,
and any or all Revolving Credit Obligations outstanding on such date and on each
date of a conversion or continuation of a Eurocurrency Rate Loan.
2.06. Currency Exchanges. At any time Eurocurrency Rate Loans
denominated in an Alternative Currency are required to be converted to Base Rate
Loans, the Borrowers shall indemnify the Lenders against any loss or liability
arising out of or as a result of the conversion of such Alternative Currency to
Dollars and exchange costs and taxes payable in connection with such conversion
and the Borrower to which such Loan was made shall forthwith on written demand
therefor pay to the Agent, for the benefit of the applicable Lenders, the amount
of such loss, liability, costs and taxes.
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ARTICLE III
LETTERS OF CREDIT
3.01. Letters of Credit. Subject to the terms and conditions set
forth in this Agreement, each Issuing Bank hereby severally agrees to issue for
the account of a Borrower, or for the account of any of a Borrower's
Subsidiaries if such Borrower is jointly and severally liable for reimbursement
of amounts drawn under such Letter of Credit, one or more Letters of Credit,
subject to the following provisions:
(a) Types and Amounts. An Issuing Bank shall not have any obligation
to issue, amend or extend, and shall not issue, amend or extend, any Letter of
Credit at any time:
(i) if the aggregate Letter of Credit Obligations with respect to
such Issuing Bank, after giving effect to the issuance, amendment or
extension of the Letter of Credit requested hereunder, shall exceed any
limit imposed by law or regulation upon such Issuing Bank;
(ii) if such Issuing Bank receives written notice from the Agent at
or before 11:00 a.m. (New York time) on the date of the proposed issuance,
amendment or extension of such Letter of Credit that (A) immediately after
giving effect to the issuance, amendment or extension of such Letter of
Credit, (I) the Letter of Credit Obligations at such time would exceed
$25,000,000, or (II) the Revolving Credit Obligations at such time would
exceed the Commitments at such time, or (III) the undrawn face amount of
the Letter of Credit Obligations denominated in Alternative Currencies,
when aggregated with all other Revolving Credit Obligations denominated in
Alternative Currencies, would exceed the equivalent of the Multicurrency
Sublimit, or (B) one or more of the conditions precedent contained in
Section 6.01 or 6.02, as applicable, would not on such date be satisfied,
unless such conditions are thereafter satisfied and written notice of such
satisfaction is given to such Issuing Bank by the Agent (and an Issuing
Bank shall not otherwise be required to determine that, or take notice
whether, the conditions precedent set forth in Section 6.01 or 6.02, as
applicable, have been satisfied);
(iii) which has an expiration date later than the earlier of (A) the
date one (1) year after the date of issuance (without regard to any
automatic renewal provisions thereof) or (B) the Business Day next
preceding the scheduled Revolving Credit Termination Date; or
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(iv) which is in a currency other than Dollars or an Alternative
Currency in which such Issuing Bank is then issuing letters of credit.
(b) Conditions. In addition to being subject to the satisfaction of
the conditions precedent contained in Sections 6.01 and 6.02, as applicable, the
obligation of an Issuing Bank to issue, amend or extend any Letter of Credit is
subject to the satisfaction in full of the following conditions:
(i) if such Issuing Bank so requests, the Borrower applicant or, in
the case of Letters of Credit issued for the account of any of a
Borrower's Subsidiaries, such Borrower and such Subsidiary shall have
executed and delivered to such Issuing Bank and the Agent a Letter of
Credit Reimbursement Agreement and such other documents and materials as
may be required pursuant to the terms thereof; and
(ii) the terms of the proposed Letter of Credit shall be
satisfactory to such Issuing Bank in its sole discretion.
(c) Issuance of Letters of Credit. (i) The Borrower applicant shall
give an Issuing Bank and the Agent written notice that it has selected such
Issuing Bank to issue a Letter of Credit not later than 11:00 a.m. (New York
time) on the third (3rd) Business Day preceding the requested date for issuance
thereof under this Agreement, or such shorter notice as may be acceptable to
such Issuing Bank and the Agent. Such notice shall be irrevocable unless and
until such request is denied by the applicable Issuing Bank and shall specify
(A) that the requested Letter of Credit is either a Commercial Letter of Credit
or a Standby Letter of Credit, (B) that such Letter of Credit is solely for the
account of the Borrower applicant or the name of the Subsidiary of such Borrower
which is jointly and severally applying for such Letter of Credit, (C) the
stated amount and currency of the Letter of Credit requested, (D) the effective
date (which shall be a Business Day) of issuance of such Letter of Credit, (E)
the date on which such Letter of Credit is to expire (which shall be a Business
Day and no later than the earlier of one (1) year after the date of issuance
(without regard to any automatic renewal provisions thereof) and the Business
Day immediately preceding the scheduled Revolving Credit Termination Date), (F)
the Person for whose benefit such Letter of Credit is to be issued, (G) other
relevant terms of such Letter of Credit, (H) the Revolving Credit Availability
(calculated in the applicable currency) at such time, (I) the amount of the then
outstanding Letter of Credit Obligations, and (J) if such Letter of Credit is to
be denominated in an Alternative Currency, the amount by which the Multicurrency
Sublimit exceeds the aggregate Revolving Credit Obligations denominated in
Alternative Currencies (calculated in Dollars). Such Issuing Bank shall notify
the Agent immediately upon receipt
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of a written notice from a Borrower requesting that a Letter of Credit be
issued, or that an existing Letter of Credit be extended or amended and, upon
the Agent's request therefor, send a copy of such notice to the Agent.
(ii) The applicable Issuing Bank shall give (A) the Agent written
notice, or telephonic notice confirmed promptly thereafter in writing, of the
issuance, amendment or extension of a Letter of Credit and (B) promptly after
issuance thereof, provide the Agent with a copy of each Letter of Credit issued
and each amendment thereto.
(d) Reimbursement Obligations; Duties of Issuing Banks. (i)
Notwithstanding any provisions to the contrary in any Letter of Credit
Reimbursement Agreement:
(A) the Borrower applicant shall reimburse, or cause its Subsidiary
for whose account a Letter of Credit is issued to reimburse, the
applicable Issuing Bank for amounts drawn under such Letter of Credit, in
the currency in which such Letter of Credit is denominated, no later than
the date (the "Reimbursement Date") which is the earlier of (I) the time
specified in the applicable Letter of Credit Reimbursement Agreement and
(II) one (1) Business Day after such Borrower receives written notice from
such Issuing Bank that payment has been made under such Letter of Credit
by such Issuing Bank; and
(B) all Reimbursement Obligations with respect to any Letter of
Credit shall bear interest at the rate applicable to Base Rate Loans, if
such Letter of Credit is denominated in Dollars, or Eurocurrency Rate
Loans with Eurocurrency Rate Interest Periods of one week, if such Letter
of Credit is denominated in an Alternative Currency, in accordance with
Section 5.01(a) from the date of the relevant drawing under such Letter of
Credit until the Reimbursement Date and thereafter at the rate applicable
to Base Rate Loans or Eurocurrency Rate Loans with Eurocurrency Rate
Interest Periods of one week, as applicable, in accordance with Section
5.01(d).
(ii) The applicable Issuing Bank shall give the Agent written
notice, or telephonic notice confirmed promptly thereafter in writing, of all
drawings under a Letter of Credit and the payment (or the failure to pay when
due) by the Borrower applicant or its applicable Subsidiary on account of a
Reimbursement Obligation (which notice the Agent shall promptly transmit by
telegram, telex, telecopy or similar transmission to each Lender).
(iii) No action taken or omitted in good faith by an Issuing Bank
under or in connection with any Letter of Credit
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shall put such Issuing Bank under any resulting liability to any Lender, the
Borrower applicant or any of its Subsidiaries or, so long as it is not issued in
violation of Section 3.01(a), relieve any Lender of its obligations hereunder to
such Issuing Bank. Solely as between the Issuing Banks and the Lenders, in
determining whether to pay under any Letter of Credit, the respective Issuing
Bank shall have no obligation to the Lenders other than to confirm that any
documents required to be delivered under a respective Letter of Credit appear to
have been delivered and that they appear on their face to comply with the
requirements of such Letter of Credit.
(e) Participations. (i) Immediately upon issuance by an Issuing Bank
of any Letter of Credit in accordance with the procedures set forth in this
Section 3.01 and immediately upon conversion of a letter of credit of an Issuing
Bank to a Letter of Credit pursuant to Section 3.02, each Lender shall be deemed
to have irrevocably and unconditionally purchased and received from that Issuing
Bank, without recourse or warranty, an undivided interest and participation in
such Letter of Credit to the extent of such Lender's Pro Rata Share, including,
without limitation, all obligations of the Borrower applicant with respect
thereto (other than amounts owing to that Issuing Bank under Section 3.01(g))
and any security therefor and guaranty pertaining thereto.
(ii) If any Issuing Bank makes any payment under any Letter of
Credit and the Borrower or the Subsidiary of a Borrower for whose account such
Letter of Credit was issued does not repay such amount to such Issuing Bank on
the Reimbursement Date, such Issuing Bank shall promptly notify the Agent, which
shall promptly notify each Lender, and each Lender shall promptly and
unconditionally pay to the Agent for the account of such Issuing Bank, in
immediately available funds in the applicable currency, the amount of such
Lender's Pro Rata Share of such payment (net of that portion of such payment, if
any, made by such Lender in its capacity as an Issuing Bank), and the Agent
shall promptly pay to such Issuing Bank such amounts received by it, and any
other amounts received by the Agent for such Issuing Bank's account, pursuant to
this Section 3.01(e). All amounts so paid to such Issuing Bank shall be deemed
to constitute Revolving Loans and, (A) if in Dollars, shall be Base Rate Loans
or (B) if in an Alternative Currency, shall be Eurocurrency Rate Loans with an
Eurocurrency Rate Interest Period of one (1) month. If a Lender does not make
its Pro Rata Share of the amount of such payment available to the Agent, such
Lender agrees to pay to the Agent for the account of such Issuing Bank,
forthwith on demand, such amount together with interest thereon, for the first
three (3) Business Days after the date such payment was first due at the Federal
Funds Rate (in the case of Revolving Loans in Dollars) or the rate per annum at
which call deposits in the respective Alternative Currency are offered by
Citibank London to prime banks in the London interbank market for such day (in
the case of Revolving Loans in an Alternative Currency), and thereafter at
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the interest rate then applicable to Base Rate Loans, if such Letter of Credit
is denominated in Dollars, or Eurocurrency Rate Loans with Eurocurrency Rate
Interest Periods of one week, if such Letter of Credit is denominated in an
Alternative Currency, in each instance in accordance with Section 5.01(a). The
failure of any Lender to make available to the Agent for the account of an
Issuing Bank its Pro Rata Share of any such payment shall neither relieve any
other Lender of its obligation hereunder to make available to the Agent for the
account of such Issuing Bank such other Lender's Pro Rata Share of any payment
on the date such payment is to be made nor increase the obligation of any other
Lender to make such payment to the Agent.
(iii) Whenever an Issuing Bank receives a payment on account of a
Reimbursement Obligation, including any interest thereon, as to which the Agent
has previously received payments from any Lender for the account of such Issuing
Bank pursuant to this Section 3.01(e), such Issuing Bank shall promptly pay to
the Agent and the Agent shall promptly pay to such Lender an amount equal to
such Lender's Pro Rata Share thereof. Each such payment shall be made by such
Issuing Bank or the Agent, as the case may be, on the Business Day on which such
Person receives the funds paid to such Person pursuant to the preceding
sentence, if received prior to 11:00 a.m. (New York time) on such Business Day,
and otherwise on the next succeeding Business Day.
(iv) Upon the request of any Lender, an Issuing Bank shall furnish
such Lender copies of any Letter of Credit or Letter of Credit Reimbursement
Agreement to which such Issuing Bank is party and such other documentation as
reasonably may be requested by such Lender.
(v) The obligations of a Lender to make payments to the Agent for
the account of any Issuing Bank with respect to a Letter of Credit shall be
irrevocable, shall not be subject to any qualification or exception whatsoever
except willful misconduct or gross negligence of such Issuing Bank or such
Issuing Bank's failure to comply with the provisions of Section 3.01(a)(ii) or
(iii), and shall be honored in accordance with this Article III (irrespective of
the satisfaction of the conditions described in Sections 6.01 and 6.02, as
applicable) under all circumstances, including, without limitation, any of the
following circumstances:
(A) any lack of validity or enforceability of this Agreement or any
of the other Loan Documents;
(B) the existence of any claim, setoff, defense or other right which
the Borrower applicant may have at any time against a beneficiary named in
a Letter of Credit or any transferee of a beneficiary named in a Letter of
Credit (or any Person for whom any such transferee may be acting), the
Agent, such Issuing Bank, any Lender, or any other Person, whether in
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connection with this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any
underlying transactions between the account party and beneficiary named in
any Letter of Credit);
(C) any draft, certificate or any other document presented under
such Letter of Credit having been determined to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(D) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Loan Documents;
(E) any failure by that Issuing Bank to make any reports required
pursuant to Section 3.01(h) or the inaccuracy of any such report; or
(F) the occurrence of any Event of Default or Potential Event of
Default.
(f) Payment of Reimbursement Obligations. (i) The Borrower applicant
with respect to any Letter of Credit unconditionally agrees to pay, or cause its
Subsidiary for whose account a Letter of Credit is issued to pay, to each
Issuing Bank, in the currency in which such Letter of Credit is denominated, the
amount of all Reimbursement Obligations, interest and other amounts payable to
such Issuing Bank under or in connection with the Letters of Credit when such
amounts are due and payable, irrespective of any claim, setoff, defense or other
right which such Borrower may have at any time against any Issuing Bank or any
other Person.
(ii) In the event any payment by a Borrower applicant or such
Subsidiary received by an Issuing Bank with respect to a Letter of Credit and
distributed by the Agent to the Lenders on account of their participations is
thereafter set aside, avoided or recovered from such Issuing Bank in connection
with any receivership, liquidation or bankruptcy proceeding, each Lender which
received such distribution shall, upon demand by such Issuing Bank, contribute
such Lender's Pro Rata Share of the amount set aside, avoided or recovered
together with interest at the rate required to be paid by such Issuing Bank upon
the amount required to be repaid by it.
(g) Issuing Bank Charges. The Borrower applicant shall pay, or cause
its Subsidiary for whose account a Letter of Credit is issued to pay, to each
Issuing Bank, solely for its own account, the standard charges assessed by such
Issuing Bank in connection with the issuance, administration, amendment and
payment or cancellation of Letters of Credit and such compensation in respect of
such Letters of Credit for such
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Borrower's or such Subsidiary's account, as applicable, as may be agreed upon by
such Borrower and such Issuing Bank from time to time.
(h) Issuing Bank Reporting Requirements. Each Issuing Bank shall, no
later than the last day of each calendar month, provide to the Agent, the U.S.
Borrower, and each Lender separate schedules for Commercial Letters of Credit
and Standby Letters of Credit issued as Letters of Credit, in form and substance
reasonably satisfactory to the Agent, setting forth the aggregate Letter of
Credit Obligations outstanding to it as of such date and, to the extent not
otherwise provided in accordance with the provisions of Section 3.01(c)(ii), any
information requested by the Agent or the U.S. Borrower relating to the date of
issue, account party, amount, expiration date and reference number of each
Letter of Credit issued by it.
(i) Indemnification; Exoneration. (i) In addition to all other
amounts payable to an Issuing Bank, each Borrower hereby agrees to defend,
indemnify, and save harmless the Agent, each Issuing Bank and each Lender from
and against any and all claims, demands, liabilities, penalties, damages, losses
(other than loss of profits), costs, charges and expenses (including reasonable
attorneys' fees but excluding taxes) which the Agent, such Issuing Bank or such
Lender may incur or be subject to as a consequence, direct or indirect, of (A)
the issuance of any Letter of Credit for the account of such Borrower or a
Subsidiary of such Borrower other than, in respect of an Issuing Bank, as a
result of the gross negligence or willful misconduct of such Issuing Bank, as
determined by a court of competent jurisdiction, or (B) the failure of the
Issuing Bank issuing a Letter of Credit to honor a drawing under such Letter of
Credit as a result of any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto government or Governmental Authority.
(ii) As between a Borrower and any of its Subsidiaries for whose
account a Letter of Credit is issued on the one hand and the Agent, the Lenders
and the Issuing Banks on the other hand, such Borrower assumes all risks of the
acts and omissions of, or misuse of Letters of Credit by, the respective
beneficiaries of the Letters of Credit. In furtherance and not in limitation of
the foregoing, subject to the provisions of the Letter of Credit Reimbursement
Agreements, the Issuing Banks and the Lenders shall not be responsible for and
the Reimbursement Obligations shall not be affected by: (A) the form, validity,
legality, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
the Letters of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the
validity, legality or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective
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for any reason; (C) failure of the beneficiary of a Letter of Credit to comply
duly with conditions required in order to draw upon such Letter of Credit; (D)
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not they be
in cipher; (E) errors in interpretation of technical terms; (F) any loss or
delay in the transmission or otherwise of any document required in order to make
a drawing under any Letter of Credit or of the proceeds thereof; (G) the
misapplication by the beneficiary of a Letter of Credit of the proceeds of any
drawing under such Letter of Credit; and (H) any consequences arising from
causes beyond the control of the Agent, the Issuing Banks or the Lenders.
3.02 Transitional Provisions. Schedule 3.02 attached hereto and made
a part hereof contains a schedule of certain letters of credit issued prior to
the Effective Date by Citibank for the account of the U.S. Borrower or for the
account of a Subsidiary of the U.S. Borrower. Subject to the satisfaction of the
conditions precedent contained in Section 6.01, on the Effective Date (i) such
letters of credit, to the extent still outstanding, shall automatically and
without further action of the parties hereto be converted into Letters of Credit
issued pursuant to this Article III and subject to the provisions hereof, (ii)
the face amount of such letters of credit shall be included in the calculation
of Letter of Credit Obligations, and (iii) all liabilities of the U.S. Borrower
with respect to such letters of credit shall constitute Obligations.
3.03. Obligations Several. The obligations of each Issuing Bank and
each Lender under this Article III are several and not joint, and no Issuing
Bank or Lender shall be responsible for the obligation to issue Letters of
Credit or participation obligations hereunder, respectively, of any other
Issuing Bank or Lender.
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ARTICLE IV
PAYMENTS AND PREPAYMENTS
4.01. Prepayments; Reductions in Commitments.
(a) Voluntary Prepayments/Reductions. (i) Notice. The Borrowers may,
at any time and from time to time, prepay the Revolving Loans, in whole or in
part; provided that (A) if such prepayment is of Revolving Loans denominated in
an Alternative Currency, at least one (1) Business Day's prior written notice of
such prepayment is delivered to the Agent (which the Agent shall promptly
transmit to each Lender) and (B) Eurocurrency Rate Loans which are so prepaid
shall be prepaid (1) on the expiration date of the then applicable Eurocurrency
Rate Interest Period therefor or (2) on any other date upon payment of the
amounts described in Article XIV. Unless the aggregate outstanding principal
balance of the Revolving Loans is to be prepaid in full, voluntary prepayments
thereof shall be in an aggregate minimum amount of $250,000 (or the equivalent
in an Alternative Currency determined on the date of the aforesaid notice) and
integral multiples of $250,000 (or the equivalent in an Alternative Currency
determined on the date of the aforesaid notice) in excess of that amount. Any
notice of prepayment given to the Agent under this Section 4.01(a)(i) shall
specify the date (which shall be a Business Day) of prepayment, the aggregate
principal amount and currency of the prepayment, any allocation of such amount
between Revolving Loans outstanding to the U.S. Borrower and the European
Borrower, respectively, and any allocation of such amount among Base Rate Loans
and respective Eurocurrency Rate Loans. When notice of prepayment is delivered
as provided herein, the principal amount of the Revolving Loans specified in the
notice shall become due and payable on the prepayment date specified in such
notice, subject to the right to reborrow the same in accordance with Section
2.01. The Borrowers may repay Swing Loans, without prior written notice to the
Agent or Citicorp, at any time and from time to time.
(ii) Voluntary Revolving Credit Commitment Reductions. The U.S.
Borrower, upon at least three (3) Business Days' prior written notice to the
Agent (which the Agent shall promptly transmit to each Lender), shall have the
right, at any time and from time to time, to terminate in whole or permanently
reduce in part the Revolving Credit Commitments; provided that the Borrowers
shall have made whatever payment may be required to reduce the Revolving Credit
Obligations to an amount less than or equal to the Revolving Credit Commitments
as reduced or terminated. Any partial reduction of the Revolving Credit
Commitments shall be in an aggregate minimum amount of $250,000 and integral
multiples of $250,000 in excess of that amount, and shall reduce the Revolving
Credit Commitment of each Lender proportionately in accordance with its Pro Rata
Share. Any notice of termination or reduction given to the Agent under this
Section 4.01(a)(ii) shall specify the date (which shall be a
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Business Day) of such termination or reduction and, with respect to a partial
reduction, the aggregate principal amount thereof. When notice of termination or
reduction is delivered as provided herein, the principal amount of the Revolving
Loans required to be prepaid as a result thereof shall become due and payable on
the date specified in such notice.
(iii) No Prepayment Fee. The prepayments and payments in respect of
reductions and terminations described in clauses (i) and (ii) of this Section
4.01(a) may be made without premium or penalty (except as provided in Article
XIV).
(b) Mandatory Prepayments/Reductions.
(i) Net Cash Proceeds of Sale. In the event a Borrower or any
Subsidiary of a Borrower receives, in any Fiscal Year, Net Cash Proceeds of Sale
which, when aggregated with all other Net Cash Proceeds of Sale received by the
Borrowers and Subsidiaries of the Borrowers in such Fiscal Year, exceed
$2,500,000, such Borrower shall, immediately upon its or such Subsidiary's
receipt of such Net Cash Proceeds of Sale, make or cause to be made a mandatory
prepayment of the Obligations in an amount equal to one hundred percent (100%)
of such Net Cash Proceeds of Sale until such time as the Revolving Credit
Commitments are less than $60,000,000. Notwithstanding the foregoing, in the
event such Net Cash Proceeds of Sale otherwise required to be applied as a
mandatory prepayment of the Obligations are proceeds received from the sale,
transfer, assignment or other disposition of assets of
(A) a Borrower or Guarantor (and not otherwise subject to the
provisions of clause (C) below) or other Subsidiary of the U.S. Borrower
which is a Domestic Subsidiary, such Subsidiary may use such Net Cash
Proceeds of Sale within two hundred seventy (270) days after its receipt
thereof to make an investment in, or acquire assets and properties (or a
Person or entity owning such assets or properties) that will be used in
the business of the U.S. Borrower and its Subsidiaries existing on the
Effective Date or in a business reasonably related thereto and, to the
extent such Net Cash Proceeds of Sale are so used within such period, the
same shall not be required to be applied as a mandatory prepayment of the
Obligations and an amount equal to that portion of the Net Cash Proceeds
of Sale not so used, shall be delivered to the Agent as a mandatory
prepayment for application on the Obligations on the 271st day after
receipt thereof;
(B) a direct Subsidiary of the U.S. Borrower (other than the
European Borrower) which is not a Domestic Subsidiary, no prepayment shall
be required if repatriation of such Net Cash Proceeds of Sale would
require the U.S.
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Borrower to incur liabilities for U.S. federal income taxes which would
not be incurred absent such repatriation; or
(C) a Borrower or Guarantor and such sale, transfer, assignment or
other disposition is a sale, transfer, assignment of all or substantially
all of the assets of a Borrower or Guarantor or any of the Capital Stock
of the European Borrower or a Guarantor, a mandatory prepayment of the
Obligations shall be required as aforesaid regardless of the amount of the
Revolving Credit Commitments at the time of such sale, transfer,
assignment or other disposition.
(ii) Net Cash Proceeds of Issuance of Indebtedness. In the event a
Borrower or any Subsidiary of a Borrower receives Net Cash Proceeds of Issuance
of Indebtedness, such Borrower shall, immediately upon its or its Subsidiary's
receipt of such Net Cash Proceeds of Issuance of Indebtedness, make or cause to
be made a mandatory prepayment in an amount equal to one hundred percent (100%)
of such Net Cash Proceeds of Issuance of Indebtedness until such time as the
Revolving Credit Commitments are less than $60,000,000.
(iii) No Waiver or Consent. Nothing in this Section 4.01(b) shall be
construed to constitute the Lenders' consent to any transaction referenced
hereinabove which is not expressly permitted by Article X or affect any of the
Lenders' rights and remedies hereunder as a result of any non-compliance with
Article X.
(iv) Notice. The U.S. Borrower shall give the Agent prior written
notice or telephonic notice promptly confirmed in writing (each of which the
Agent shall promptly transmit to each Lender), when a Designated Prepayment will
be made (which date of prepayment shall be no later than the date on which such
Designated Prepayment becomes due and payable pursuant to this Section 4.01(b)).
(v) Application of Designated Prepayments. Designated Prepayments
shall be allocated and applied to the Obligations as follows:
(A) the amount of each Designated Prepayment shall be applied
ratably to the outstanding Revolving Loans, each application being made
first to the Revolving Loans which are Base Rate Loans until paid in full
and then to Revolving Loans which are Eurocurrency Rate Loans, with those
which have earlier expiring Eurocurrency Rate Interest Periods being
repaid prior to those which have later expiring Eurocurrency Rate Interest
Periods, until paid in full; provided that the U.S. Borrower may elect to
deposit with the Agent, as Cash Collateral and subject to the provisions
of Section 4.05, amounts that would otherwise be required
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to be applied to Eurocurrency Rate Loans hereunder until the end of the
Eurocurrency Rate Interest Period applicable to such Eurocurrency Rate
Loans, at which time the required application shall be made by the Agent;
(B) following the payment in full of the Revolving Loans, the
remaining balance of each Designated Prepayment shall be applied to the
Reimbursement Obligations until paid in full; and
(C) thereafter, the remaining balance of each Designated Prepayment
shall be applied to the Swing Loans then outstanding until paid in full.
(vi) Mandatory Revolving Loan Payments. The Borrowers shall, without
notice or demand of any kind, immediately make such repayments of the Revolving
Loans to the extent necessary to reduce the aggregate outstanding principal
amount of the (A) Revolving Loans to an amount no greater than the difference
between the then effective Revolving Credit Commitments and the sum of the
Letter of Credit Obligations as of such time plus the Swing Loans outstanding as
of such time; and (B) Revolving Loans denominated in Alternative Currencies to
an aggregate amount no greater than the difference between the Multicurrency
Sublimit and the Letter of Credit Obligations denominated in Alternative
Currencies as of such time.
(vii) Mandatory Revolving Credit Commitment Reductions. The
Revolving Credit Commitments shall be permanently reduced by the amount of each
Designated Prepayment required to be made on the date such Designated Prepayment
is required to be made, and the respective Revolving Credit Commitment of each
Lender shall be permanently reduced proportionately in accordance with its Pro
Rata Share.
4.02. Payments. (a) Manner and Time of Payment. All payments of
principal of and interest on the Loans and Reimbursement Obligations and other
Obligations (including, without limitation, fees and expenses) which are payable
to the Agent, the Lenders or any Issuing Bank shall be made without condition or
reservation of right, and, with respect to payments made other than from
application of deposits in a Concentration Account, in immediately available
funds in the applicable currency, delivered to the Agent (or, in the case of
Reimbursement Obligations, to the applicable Issuing Bank) not later than 11:30
a.m. (in the location of the Applicable Payment Office) on the date and at the
place due, to such account of the Agent (or such Issuing Bank) as it may
designate, for the account of the Agent, the Lenders or such Issuing Bank, as
the case may be; and funds received by the Agent, including, without limitation,
funds in respect of any Revolving Loans to be made on that date, not later than
11:30 a.m. (in the location of the Applicable Payment Office) on any given
Business Day shall be credited against payment to be
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made that day and funds received by the Agent after that time shall be deemed to
have been paid on the next succeeding Business Day. Payments actually received
by the Agent for the account of the Lenders or the Issuing Banks, or any of
them, shall be paid by the Agent promptly after its receipt thereof to them for
the account of their respective Applicable Lending Offices.
(b) Apportionment of Payments. (i) Subject to the provisions of
Section 4.01 and Section 4.02(b)(v), all payments of principal and interest in
respect of Loans outstanding to a respective Borrower, all payments in respect
of Reimbursement Obligations of such Borrower, all payments of fees and all
other payments in respect of any other Obligations of such Borrower, shall be
allocated among such of the Lenders and Issuing Banks as are entitled thereto,
in proportion to their respective Pro Rata Shares or otherwise as provided
herein. Except as provided in Section 4.02(b)(ii) with respect to payments by or
for the benefit of a respective Borrower and proceeds of Collateral for such
respective Borrower's Obligations received after the occurrence and during the
continuance of an Event of Default and except as provided in Section 4.04(b),
all such payments and any other amounts received by the Agent from or for the
benefit of such Borrower shall be applied
(A) first, to pay principal of and interest on any portion of the
Revolving Loans made to such Borrower which the Agent may have advanced on
behalf of any Lender other than Citicorp for which the Agent has not then been
reimbursed by such Lender or such Borrower,
(B) second, to pay principal of and interest on any Protective Advance in
respect of such Borrower's Obligations for which the Agent has not then been
paid by such Borrower or reimbursed by the Lenders,
(C) third, to pay principal of and accrued interest on any Swing Loans
then outstanding,
(D) fourth, to pay the principal of the Revolving Loans made to such
Borrower and then due and payable in the order described hereinbelow and
interest on such Loans then due and payable, ratably, based on the then
outstanding balances of the such Loans,
(E) fifth, to pay all other Obligations of such Borrower then due and
payable, ratably, and
(F) sixth, as such Borrower so designates.
All such principal and interest payments in respect of Revolving Loans to a
respective Borrower shall be applied to the Revolving Loans outstanding to such
Borrower and accrued interest thereon, first, to repay outstanding Base Rate
Loans and then to repay outstanding Eurocurrency Rate Loans with those
Eurocurrency Rate
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Loans which have earlier expiring Eurocurrency Rate Interest Periods being
repaid prior to those which have later expiring Eurocurrency Rate Interest
Periods.
(ii) After the occurrence of an Event of Default and while the same is
continuing, the Agent shall apply all payments in respect of any Obligations of
a respective Borrower and, subject to the provisions of Section 4.06, all
proceeds of Collateral securing the Obligations of such Borrower in the
following order:
(A) first, to pay principal of and interest on any portion of the
Revolving Loans made to such Borrower which the Agent may have advanced on
behalf of any Lender other than Citicorp for which the Agent has not then been
reimbursed by such Lender or such Borrower;
(B) second, to pay principal of and interest on any Protective Advance in
respect of such Borrower's Obligations for which the Agent has not then been
paid by such Borrower or reimbursed by the Lenders;
(C) third, to pay principal of and interest on any Swing Loans then
outstanding;
(D) fourth, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Agent by such Borrower;
(E) fifth, to pay principal of and interest on Letter of Credit
Obligations of such Borrower (or, to the extent such Obligations are contingent,
deposited in the Cash Collateral Account to provide Cash Collateral in respect
of such Obligations);
(F) sixth, to pay Obligations of such Borrower in respect of any fees,
expense reimbursements or indemnities then due to the Lenders and the Issuing
Banks;
(G) seventh, to pay interest due in respect of the Revolving Loans made to
such Borrower, ratably, in accordance with the Lenders' respective Pro Rata
Shares;
(H) eighth, to the ratable payment or prepayment of principal outstanding
on all Revolving Loans made to such Borrower;
(I) ninth, to the ratable payment of Hedge Agreements to which any of the
Lenders or any Affiliate of any of the Lenders and such Borrower is a party; and
(J) tenth, to the ratable payment of all other Obligations.
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The order of priority set forth in this Section 4.02(b) and the related
provisions of this Agreement are set forth solely to determine the rights and
priorities of the Agent, the Lenders, the Issuing Banks and other Holders as
among themselves.
(iii) The Agent, in its sole discretion subject only to the terms of
this Section 4.02(b)(iii), may pay from the proceeds of Revolving Loans made to
a respective Borrower hereunder, whether made following a request by such
Borrower pursuant to Section 2.01 or a deemed request as provided in this
Section 4.02(b)(iii), all amounts then due and payable by such Borrower
hereunder, including, without limitation, amounts payable with respect to
payments of principal, interest, Reimbursement Obligations and fees and all
reimbursements for expenses pursuant to Section 15.02. Each Borrower hereby
irrevocably authorizes the Lenders to make Revolving Loans in the applicable
currency upon notice from the Agent as described in the following sentence for
the purpose of paying principal, interest, Reimbursement Obligations and fees
due and payable from such Borrower, reimbursing expenses pursuant to Section
15.02 and paying any and all other amounts due and payable by such Borrower
hereunder or under the Notes, and agrees that all such Revolving Loans so made
shall be deemed to have been requested by it pursuant to Section 2.01 as of the
date of the aforementioned notice. The Agent may request Revolving Loans on
behalf of a Borrower as described in the preceding sentence by notifying the
Lenders by telecopy, telegram or other similar form of transmission (which
notice the Agent shall thereafter promptly transmit to the U.S. Borrower), of
the applicable currency, amount, applicable interest rate, and Funding Date of
the proposed Borrowing and that such Borrowing is being requested on such
Borrower's behalf pursuant to this Section 4.02(b)(iii). Such Revolving Loans
requested in Dollars shall be Base Rate Loans and such Revolving Loans requested
in an Alternative Currency shall be Eurocurrency Rate Loans with an initial
Eurocurrency Rate Interest Period of one (1) month. On the proposed Funding Date
for such Revolving Loan, the Lenders shall make the requested Revolving Loans in
accordance with the procedures and subject to the conditions specified in
Section 2.01.
(iv) Subject to Section 4.02(b)(v), the Agent shall promptly
distribute to each Lender and Issuing Bank at its primary address set forth on
the appropriate signature page hereof or the signature page to the Assignment
and Acceptance by which it became a Lender or Issuing Bank, or at such other
address as a Lender, an Issuing Bank or other Holder may request in writing,
such funds as such Person may be entitled to receive, subject to the provisions
of Article XIV; provided that the Agent shall under no circumstances be bound to
inquire into or determine the validity, scope or priority of any interest or
entitlement of any Holder and may suspend all payments or seek appropriate
relief (including, without limitation, instructions from the Requisite Lenders
or an action in the nature of
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interpleader) in the event of any doubt or dispute as to any apportionment or
distribution contemplated hereby.
(v) In the event that any Lender fails to fund its Pro Rata Share of
any Revolving Loan requested for a Borrower which such Lender is obligated to
fund under the terms of this Agreement (the funded portion of such Revolving
Loan being hereinafter referred to as a "Non Pro Rata Loan"), until the earlier
of such Lender's cure of such failure and the termination of the Revolving
Credit Commitments, the proceeds of all amounts thereafter repaid to the Agent
by such Borrower and otherwise required to be applied to such Lender's share of
all other Obligations pursuant to the terms of this Agreement shall be advanced
to such Borrower by the Agent on behalf of such Lender to cure, in full or in
part, such failure by such Lender, but shall nevertheless be deemed to have been
paid to such Lender in satisfaction of such other Obligations. Notwithstanding
anything in this Agreement to the contrary:
(A) the foregoing provisions of this Section 4.02(b)(v) shall apply
only with respect to the proceeds of payments of Obligations and shall not
affect the conversion or continuation of Loans pursuant to Section
5.01(c);
(B) a Lender shall be deemed to have cured its failure to fund its
Pro Rata Share of any Revolving Loan at such time as an amount equal to
such Lender's original Pro Rata Share of the requested principal portion
of such Revolving Loan is fully funded to the applicable Borrower, whether
made by such Lender itself or by operation of the terms of this Section
4.02(b)(v), and whether or not the Non Pro Rata Loan with respect thereto
has been repaid, converted or continued;
(C) amounts advanced to a Borrower to cure, in full or in part, any
such Lender's failure to fund its Pro Rata Share of any Revolving Loan to
that Borrower ("Cure Loans") shall bear interest at the rate in effect
from time to time pursuant to Section 5.01; and
(D) regardless of whether or not an Event of Default has occurred or
is continuing, and notwithstanding the instructions of a Borrower as to
its desired application, all repayments of principal which, in accordance
with the other terms of this Section 4.02, would be applied to such
outstanding Revolving Loans shall be applied first, ratably to all such
Loans constituting Non Pro Rata Loans, second, ratably to such Loans other
than those constituting Non Pro Rata Loans or Cure Loans and, third,
ratably to such Loans constituting Cure Loans.
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(c) Payments on Non-Business Days. Whenever any payment to be made
by the Borrower hereunder or under the Notes is stated to be due on a day which
is not a Business Day, the payment shall instead be due on the next succeeding
Business Day (except as set forth in Section 5.02(b)(iii) with respect to
payments due on the next preceding Business Day), and any such extension of time
shall be included in the computation of the payment of interest and fees
hereunder.
4.03. Promise to Repay; Evidence of Indebtedness.
(a) Promise to Repay. Each Borrower hereby severally agrees to pay
when due the principal amount of each Loan which is made to it, and further
agrees to pay all unpaid interest accrued thereon, in accordance with the terms
of this Agreement and the Notes. Each Borrower shall execute and deliver to each
Lender on the Effective Date a Note or Notes, evidencing the Loans made to it
hereunder and thereafter shall execute and deliver such other Notes as are
necessary to evidence Loans owing by it to other Lenders after giving effect to
any assignment thereof pursuant to Section 15.01.
(b) Loan Account. Each Lender shall maintain in accordance with its
usual practice an account or accounts (a "Loan Account") evidencing the
Indebtedness of each of the Borrowers to such Lender resulting from each Loan
owing to such Lender from time to time, including the amount of principal and
interest payable and paid to such Lender from time to time hereunder and under
the Notes.
(c) Control Account. The Register maintained by the Agent pursuant
to Section 15.01(c) shall include a control account, and a subsidiary account
for each Lender, in which accounts (taken together) shall be recorded (i) the
date, amount and currency of each Borrowing made hereunder, the type of Loan
comprising such Borrowing and any Eurocurrency Rate Interest Period applicable
thereto, (ii) the effective date and amount of each Assignment and Acceptance
delivered to and accepted by it and the parties thereto, (iii) the amount of any
principal or interest due and payable or to become due and payable from the
respective Borrowers to each Lender hereunder or under the Notes, and (iv) the
amount of any sum received by the Agent from the respective Borrowers hereunder
and each Lender's share thereof.
(d) Entries Binding. The entries made in the Register and each Loan
Account shall be conclusive and binding for all purposes, absent manifest error.
4.04. Proceeds of Collateral; Concentration Account Arrangements.
(a) Establishment. The European Borrower shall establish within sixty (60) days
after the Closing Date and thereafter maintain, and the U.S. Borrower shall
maintain its Collection Accounts which exist as of the Closing Date and shall
cause each Guarantor to establish and maintain, Collection
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Accounts into which all collections of Receivables shall be deposited and
promptly transferred directly to the applicable Concentration Account. The
Borrowers shall cause all proceeds of Collateral to be deposited in Collection
Accounts or the Concentration Account or pursuant to other similar arrangements
for the collection of such amounts established by the Borrowers and the Agent.
All collections of Receivables and proceeds of Collateral which are received
directly by a Borrower or any Guarantor shall be deemed to have been received by
such Borrower or Guarantor as the Agent's trustee and, upon such Borrower's or
such Guarantor's receipt thereof, such Borrower shall immediately transfer, or
cause to be transferred, all such amounts into the Concentration Account in
their original form. Such amounts will be deemed received by the Agent, will be
the sole property of the Agent, and will be held by the Agent, for the benefit
of the Holders (i) for application to the Obligations pursuant to Section 4.02
and (ii) thereafter, as Cash Collateral for the Obligations, subject to the
rights of the applicable Borrower set forth in Section 4.04(b) and the rights of
the Agent set forth in Section 4.06.
(b) Pre-Default Withdrawals from Concentration Account. So long as
(i) no Event of Default described in Section 12.01(a) shall have occurred and be
continuing or unwaived or (ii) the Commitments have not been terminated and the
Obligations accelerated as provided in Section 12.02(a), if requested by the
U.S. Borrower, the Agent shall, from time to time, (A) apply funds in that
Borrower's Concentration Account (1) promptly after deposit therein to payment
of the Loans made to such Borrower and (2) to payment of other Obligations of
such Borrower as they become due and payable and (B) transfer funds to such
Borrower's or its Subsidiaries' designated accounts, invest funds on deposit in
such Concentration Account and accrued interest thereon, reinvest proceeds of
any such investments which may mature or be sold, and invest interest or other
income received from such investments, in such Cash Equivalents as the U.S.
Borrower may select. Such funds, interest, proceeds, or income which are not so
disbursed, invested or reinvested shall be deposited and held in the
Concentration Account for the benefit of the Holders as provided in Section
4.04(a). None of the Agent, any Lender or any Issuing Bank shall be liable to
either Borrower or any Subsidiary of a Borrower for, or with respect to, any
decline in value of amounts on deposit in the Concentration Account which shall
have been invested pursuant to this Section 4.04(b). Cash Equivalents from time
to time purchased and held pursuant to this Section 4.04(b) shall constitute
Cash Collateral and shall, for purposes of this Agreement, be deemed to be part
of the funds held in the respective Concentration Account in amounts equal to
their respective outstanding principal amounts.
(c) Reasonable Care. The Agent shall exercise reasonable care in the
custody and preservation of any funds held in a Concentration Account and shall
be deemed to have exercised such care if such funds are accorded treatment
substantially
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equivalent to that which the Agent accords its own like property, it being
understood that the Agent shall not have any responsibility for taking any steps
necessary to preserve rights against any parties with respect to any such funds
but may do so at its option. All reasonable expenses incurred in connection
therewith shall be for the sole account of the Borrower for which such
Concentration Account is designated and shall constitute Obligations of such
Borrower hereunder.
4.05. Cash Collateral Accounts. (a) Investments. If requested by the
U.S. Borrower, the Agent shall, so long as no Event of Default shall have
occurred and be continuing, from time to time invest funds on deposit in the
Cash Collateral Accounts and accrued interest thereon, reinvest proceeds of any
such investments which may mature or be sold, and invest interest or other
income received from any such Investments, in each case in such Cash Equivalents
as the U.S. Borrower may select. Such funds, interest, proceeds or income which
are not so invested or reinvested in Cash Equivalents shall, except as otherwise
provided in Section 4.05(b) and Section 4.06, be deposited and held by the Agent
in the related Cash Collateral Account. None of the Agent, any Lender or any
Issuing Bank shall be liable to either Borrower for, or with respect to, any
decline in value of amounts on deposit in the Cash Collateral Accounts which
shall have been invested pursuant to this Section 4.05(a) at the direction of
the U.S. Borrower. Cash Equivalents from time to time purchased and held
pursuant to this Section 4.05(a) shall constitute Cash Collateral and shall, for
purposes of this Agreement, be deemed to be part of the funds held in the
related Cash Collateral Account in amounts equal to their respective outstanding
principal amounts.
(b) Withdrawal Rights. Neither of the Borrowers nor any Person or
entity claiming on behalf of or through a Borrower shall have any right to
withdraw any of the funds held in the Cash Collateral Accounts with respect to
Obligations of such Borrower, provided that, (i) at any time that the balance on
deposit in a Cash Collateral Account exceeds one hundred percent (100%) of the
sum of the Letter of Credit Obligations at such time plus the amount of the
Designated Prepayment(s) being held by the Agent as Cash Collateral as provided
in Section 4.01(b)(v)(A) at such time, the amount of such excess shall, upon the
written request of the U.S. Borrower, be remitted to, or disbursed at the
direction of, the Borrower for which such Cash Collateral Account is established
and (ii) upon the later to occur of (A) the expiration or termination of all of
the Letters of Credit for which such Borrower is an applicant in accordance with
their respective terms and (B) the payment in full in cash of the Obligations of
such Borrower, any funds of such Borrower remaining in the Cash Collateral
Accounts shall be returned by the Agent to the Borrower for which such Cash
Collateral Account is established or paid to whomever may be legally entitled
thereto.
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(c) Additional Deposits. If at any time the Agent determines that
any funds held in a Cash Collateral Account are subject to any interest, right,
claim or Lien of any Person other than the Agent, the applicable Borrower will,
forthwith upon demand by the Agent, pay to the Agent, as additional funds to be
deposited and held in the Cash Collateral Account established for it, an amount
equal to the amount of funds subject to such interest, right, claim or Lien.
(d) Reasonable Care. The Agent shall exercise reasonable care in the
custody and preservation of any funds held in the Cash Collateral Accounts and
shall be deemed to have exercised such care if such funds are accorded treatment
substantially equivalent to that which the Agent accords its own like property,
it being understood that the Agent shall not have any responsibility for taking
any necessary steps to preserve rights against any parties with respect to any
such funds but may do so at its option. All expenses incurred in connection
therewith shall be for the sole account of the applicable Borrower and shall
constitute Obligations hereunder.
4.06. Post-Default Withdrawals from the Concentration Accounts and
Cash Collateral Accounts. (a) Agent's Rights. The Agent may, at any time after
(i) the occurrence and during the continuance of an Event of Default described
in Section 12.01(a) or (ii) the Commitments have been terminated and the
Obligations accelerated as provided in Section 12.02(a), sell or cause to be
sold any Cash Equivalents being held by the Agent in the Concentration Accounts
or as Cash Collateral at any broker's board or at public or private sale, in one
or more sales or lots, at such price as the Agent may deem best, without
assumption of any credit risk, and the purchaser of any or all such Cash
Equivalents so sold shall thereafter own the same, absolutely free from any
claim, encumbrance or right of any kind whatsoever. The Agent or any Holder may,
in its own name or in the name of a designee or nominee, buy such Cash
Equivalents at any public sale and, if permitted by applicable law, buy such
Cash Equivalents at any private sale. The Agent shall apply the proceeds of any
such sale, net of any reasonable expenses incurred in connection therewith, and
any other funds deposited in the Concentration Accounts or Cash Collateral
Accounts to the payment of the Obligations in accordance with Section
4.02(b)(ii), other than amounts which are being held as Cash Collateral for
Reimbursement Obligations, which shall be applied to such Reimbursement
Obligations without regard to Section 4.02(b)(ii). The Borrowers each agree that
any sale of Cash Equivalents conducted in conformity with reasonable commercial
practices of banks, commercial finance companies, insurance companies or other
financial institutions disposing of property similar to such Cash Equivalents
shall be deemed to be commercially reasonable and any requirements of reasonable
notice shall be met if such notice is given by the Agent within a commercially
reasonable time prior to such disposition, the time of delivery of which notice
the parties hereto agree shall in no event be required to be greater
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than five (5) Business Days before the date of the intended sale or disposition.
Any other requirement of notice, demand or advertisement for sale is waived to
the extent permitted by law. The Agent may adjourn any public or private sale
from time to time by announcement at the time and place fixed therefor and such
sale may, without further notice, be made at the time and place to which it was
so adjourned.
(b) Termination of Borrowers' Rights. Notwithstanding any other
provision of this Agreement, (i) upon the occurrence and during the continuance
of an Event of Default described in Section 12.01(a) and (ii) from and after the
termination of the Commitments pursuant to Section 12.02(a), neither of the
Borrowers nor any Person or entity claiming on behalf of or through a Borrower
shall have any right to withdraw any of the funds held in a Concentration
Account.
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ARTICLE V
INTEREST AND FEES
5.01. Interest on the Loans and other Obligations. (a) Rate of
Interest. (i) All Loans shall bear interest on the unpaid principal amount
thereof from the date such Loans are made until paid in full and the outstanding
principal balance of all other Obligations (other than Obligations under Section
15.02(a)) shall bear interest on the unpaid principal amount thereof from the
date such other Obligations are due until paid in full, except as otherwise
provided in Section 5.01(d) or Section 14.04, as follows:
(A) If a Base Rate Loan or such other Obligation, at a rate per
annum equal to the sum of (1) the Base Rate, as in effect from time to
time as interest accrues plus (2) the applicable Base Rate Margin; and
(B) If a Eurocurrency Rate Loan, at a rate per annum equal to the
sum of (1) the Eurocurrency Rate determined for the applicable
Eurocurrency Rate Interest Period, plus (2) the applicable Eurocurrency
Rate Margin.
(ii) The applicable basis for determining the rate of interest on
the Revolving Loans shall be selected by the U.S. Borrower at the time a Notice
of Borrowing or a Notice of Conversion/Continuation is delivered by the U.S.
Borrower to the Agent; provided, however, the U.S. Borrower may not select the
Eurocurrency Rate as the applicable basis for determining the rate of interest
on such a Loan if, at the time of such selection, an Event of Default or a
Potential Event of Default would occur or has occurred and is continuing. If on
any day any Revolving Loan is outstanding with respect to which notice has not
been timely delivered to the Agent in accordance with the terms of this
Agreement specifying the basis for determining the rate of interest on that day,
then for that day interest on that Revolving Loan shall be determined by
reference to the Base Rate.
(iii) Notwithstanding anything to the contrary in this Agreement,
during the period commencing on the Effective Date and ending on the date on
which the Agent receives the Financial Statements of the U.S. Borrower for the
fiscal quarter ending on September 30, 1996 accompanied by the U.S. Borrower's
calculation of the Performance Level achieved with respect to such fiscal
quarter, for purposes of calculating interest chargeable under Section
5.01(a)(i) during such period, the applicable Base Rate Margin shall be deemed
to equal one and one-half percent (1.50%) per annum and the applicable
Eurocurrency Rate Margin shall be deemed to equal two and one-half percent
(2.50%) per annum. Thereafter, the Base Rate Margin and the Eurocurrency Rate
Margin applicable from time to time shall be determined for (A) the
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remainder of the fiscal quarter of the U.S. Borrower ending on December 31, 1996
based on the Financial Statements of the U.S. Borrower for the fiscal quarter
ending on September 30, 1996 and its calculation of the Performance Level
achieved with respect to such fiscal quarter as aforesaid, and (B) each fiscal
quarter of the U.S. Borrower ending thereafter, based on the Financial
Statements delivered with respect to the immediately preceding fiscal quarter of
the U.S. Borrower as required under the provisions of Section 8.01(b). All
interest rate adjustments made on the basis of the foregoing shall commence on
the date on which the Agent receives the Financial Statements for the applicable
preceding fiscal quarter of the U.S. Borrower accompanied by the U.S. Borrower's
calculation of the Performance Level achieved with respect to such preceding
fiscal quarter.
(b) Interest Payments. (i) Interest accrued on each Base Rate Loan
shall be payable in arrears in Dollars (A) on the first day of each calendar
quarter for the immediately preceding calendar quarter, commencing on the first
such day following the making of such Base Rate Loan, (B) upon conversion
thereof to a Eurocurrency Rate Loan, and (C) if not theretofore paid in full, at
maturity (whether by acceleration or otherwise) of such Base Rate Loan.
(ii) Interest accrued on each Eurocurrency Rate Loan shall be
payable in arrears in the currency in which the respective Eurocurrency Rate
Loan is denominated (A) on each Eurocurrency Rate Interest Payment Date
applicable to such Loan, (B) upon the payment or prepayment thereof in full or
in part, and (C) if not theretofore paid in full, at maturity (whether by
acceleration or otherwise) of such Eurocurrency Rate Loan.
(iii) Interest accrued on the principal balance of all other
Obligations shall be payable on demand.
(c) Conversion or Continuation. (i) The Borrowers shall have the
option (A) to convert at any time all or any part of outstanding Base Rate Loans
to Eurocurrency Rate Loans denominated in Dollars; (B) to convert all or any
part of outstanding Eurocurrency Rate Loans denominated in Dollars having
Eurocurrency Rate Interest Periods which expire on the same date to Base Rate
Loans on such expiration date; or (C) to continue all or any part of outstanding
Eurocurrency Rate Loans having Eurocurrency Interest Periods which expire on the
same date as Eurocurrency Rate Loans, and the succeeding Eurocurrency Interest
Period of such continued Loans shall commence on such expiration date; provided,
however, no such outstanding Loan may be continued as, or be converted into, a
Eurocurrency Rate Loan (i) if the continuation of, or the conversion into, such
Eurocurrency Rate Loan would violate any of the provisions of Section 5.02 or
(ii) if an Event of Default or a Potential Event of Default would occur as a
result thereof or has occurred and is continuing. Any conversion into or
continuation of Eurocurrency Rate Loans under this Section 5.01(c) shall be in a
minimum amount of $1,000,000
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(or the equivalent thereof in the applicable Alternative Currency) and in
integral multiples of $250,000 (or the equivalent thereof in the applicable
Alternative Currency) in excess of that amount except in the case of a
conversion into or a continuation of an entire Borrowing of Non Pro Rata Loans.
(ii) To convert or continue a Loan under Section 5.01(c)(i), the
U.S. Borrower shall deliver a Notice of Conversion/Continuation to the Agent no
later than 9:00 a.m. (New York time) at least (A) three (3) Business Days in
advance of the proposed conversion/continuation date with respect to conversions
to or continuations as Eurocurrency Rate Loans and (B) one (1) Business Day in
advance of the proposed conversion date with respect to conversions to Base Rate
Loans. A Notice of Conversion/Continuation shall specify (A) the proposed
conversion/continuation date (which shall be a Business Day), (B) the principal
amount and currency of the Loan to be converted/continued, (C) whether such Loan
shall be converted and/or continued, and (D) in the case of a conversion to, or
continuation of, a Eurocurrency Rate Loan, the requested Eurocurrency Rate
Interest Period. In lieu of delivering a Notice of Conversion/Continuation, the
U.S. Borrower may give the Agent telephonic notice of any proposed
conversion/continuation by the time required under this Section 5.01(c)(ii), and
such notice shall be confirmed in writing delivered to the Agent by facsimile
transmission promptly (but in no event later than 5:00 p.m. (New York time) on
the same day), the original of which facsimile copy shall be delivered to the
Agent within three (3) days after the date of such transmission. Promptly after
receipt of a Notice of Conversion/Continuation under this Section 5.01(c)(ii)
(or telephonic notice in lieu thereof), the Agent shall notify each Lender by
telex or telecopy, or other similar form of transmission, of the proposed
conversion/continuation. Any Notice of Conversion/Continuation for conversion
to, or continuation of, a Loan (or telephonic notice in lieu thereof) shall be
irrevocable, and the Borrowers shall be bound to convert or continue in
accordance therewith.
(d) Default Interest. Notwithstanding the rates of interest
specified in Section 5.01(a), effective immediately upon the occurrence of an
Event of Default described in Section 12.01(a) or the occurrence of any other
Event of Default and notice from the Requisite Lenders of the effectiveness of
this Section 5.01(d), and for as long thereafter as such Event of Default shall
be continuing unwaived, the principal balance of all Loans and other Obligations
on which interest is accruing shall bear interest at a rate which is two percent
(2.0%) per annum plus the rate of interest specified in Section 5.01(a)(i);
provided, however, that for purposes of determining the rate of interest under
Section 5.01(a)(i), the applicable Base Rate Margin and Eurocurrency Rate Margin
shall be calculated based on Performance Level 4.
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(e) Computation of Interest. Interest on all Base Rate Loans and
Obligations other than Eurocurrency Rate Loans shall be computed on the basis of
the actual number of days elapsed in the period during which interest accrues
and a year of 365/366 days. Interest on all Eurocurrency Rate Loans shall be
computed on the basis of the actual number of days elapsed in the period during
which interest accrues and a year of 360 days. In computing interest on any
Loan, the date of the making of such Loan or the first day of a Eurocurrency
Rate Interest Period, as the case may be, shall be included and the date of
payment or the expiration date of a Eurocurrency Rate Interest Period, as the
case may be, shall be excluded; provided, however, if a Loan is repaid on the
same day on which it is made, one (1) day's interest shall be paid on such Loan.
5.02. Special Provisions Governing Eurocurrency Rate Loans. With
respect to Eurocurrency Rate Loans requested or continuing or as a result of the
conversion of Base Rate Loans thereto:
(a) Amount of Eurocurrency Rate Loans. Each Eurocurrency Rate Loan
shall be for a minimum amount of $1,000,000 (or the equivalent thereof in the
applicable Alternative Currency) and in integral multiples of $250,000 (or the
equivalent thereof in the applicable Alternative Currency) in excess of that
amount.
(b) Determination of Eurocurrency Rate Interest Period. By giving
notice as set forth in Section 2.01(c) (with respect to a Borrowing of
Eurocurrency Rate Loans) or Section 5.01(c) (with respect to a conversion into
or continuation of Eurocurrency Rate Loans), the U.S. Borrower shall have the
option, subject to the other provisions of this Section 5.02, to select a
Eurocurrency Rate Interest Period to apply to the Revolving Loans to be made to
either Borrower described in such notice, subject to the following provisions:
(i) The U.S. Borrower may only select, as to a particular Borrowing
of Eurocurrency Rate Loans (A) which are Revolving Loans, a Eurocurrency
Rate Interest Period of one, two, three or six months in duration and (B)
which are Swing Loans, a Eurocurrency Rate Interest Period of one week in
duration;
(ii) In the case of immediately successive Eurocurrency Rate
Interest Periods applicable to a Borrowing of Eurocurrency Rate Loans,
each successive Eurocurrency Rate Interest Period shall commence on the
day on which the next preceding Eurocurrency Rate Interest Period expires;
(iii) If any Eurocurrency Rate Interest Period would otherwise
expire on a day which is not a Business Day, such Eurocurrency Rate
Interest Period shall be
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extended to expire on the next succeeding Business Day if the next
succeeding Business Day occurs in the same calendar month, and if there
will be no succeeding Business Day in such calendar month, such
Eurocurrency Rate Interest Period shall expire on the immediately
preceding Business Day;
(iv) The U.S. Borrower may not select a Eurocurrency Rate Interest
Period as to any Revolving Loan or Swing Loan if such Eurocurrency Rate
Interest Period terminates later than the scheduled Revolving Credit
Termination Date; and
(v) There shall be no more than ten (10) Eurocurrency Rate Interest
Periods in effect at any one time.
(c) Determination of Interest Rate. As soon as practicable on the
second Business Day prior to the first day of each Eurocurrency Rate Interest
Period (the "Eurocurrency Interest Rate Determination Date"), the Agent shall
determine (pursuant to the procedures set forth in the definition of
"Eurocurrency Rate") the interest rate which shall apply to the Eurocurrency
Rate Loans for which an interest rate is then being determined for the
applicable currency and Eurocurrency Rate Interest Period and shall promptly
give notice thereof (in writing or by telephone confirmed in writing) to the
U.S. Borrower and to each Lender. The Agent's determination shall be presumed to
be correct, absent manifest error, and shall be binding upon the Borrowers.
(d) Reference Bank. The Agent agrees to obtain from Citibank timely
information for the purpose of determining the Eurocurrency Rate. Upon the
reasonable request of the U.S. Borrower from time to time, the Agent shall
promptly provide to the U.S. Borrower such information with respect to the
applicable Eurocurrency Rate as may be so requested.
(e) Interest Rate Unascertainable, Inadequate or Unfair. In the
event that at least one (1) Business Day before any Eurocurrency Interest Rate
Determination Date:
(i) the Agent is advised by Citibank that deposits in the applicable
currency (in the applicable amounts) are not being offered by Citibank in
the London interbank market for such Eurocurrency Rate Interest Period; or
(ii) the Agent determines that adequate and fair means do not exist
for ascertaining the applicable interest rates by reference to which the
Eurocurrency Rate then being determined is to be fixed; or
(iii) the Requisite Lenders advise the Agent that the Eurocurrency
Rate for Eurocurrency Rate Loans
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comprising such Borrowing will not adequately reflect the cost to such
Requisite Lenders of obtaining funds in such applicable currency in the
London interbank market in the amount substantially equal to such Lenders'
Eurocurrency Rate Loans in such currency and for a period equal to such
Eurocurrency Rate Interest Period;
then the Agent shall forthwith give notice thereof to the U.S. Borrower and the
Lenders, whereupon (until the Agent notifies the U.S. Borrower that the
circumstances giving rise to such suspension no longer exist) the right of the
Borrower to elect to have Loans bear interest based upon the Eurocurrency Rate
shall be suspended and each outstanding Eurocurrency Rate Loan shall be
converted into a Base Rate Loan on the last day of the then current Eurocurrency
Rate Interest Period therefor, notwithstanding any prior election by the U.S.
Borrower to the contrary.
(f) Booking of Eurocurrency Rate Loans. Any Lender may make, carry
or transfer Eurocurrency Rate Loans at, to, or for the account of, its
Eurocurrency Lending Office or Eurocurrency Affiliate or its other offices or
Affiliates. No Lender shall be entitled, however, to receive any greater amount
under Section 4.03, 4.04, 5.01(g) or 14.05 as a result of the transfer of any
such Eurocurrency Rate Loan to any office (other than such Eurocurrency Lending
Office) or any Affiliate (other than such Eurocurrency Affiliate) than such
Lender would have been entitled to receive immediately prior thereto, unless (i)
the transfer occurred at a time when circumstances giving rise to the claim for
such greater amount did not exist and (ii) such claim would have arisen even if
such transfer had not occurred.
(g) Affiliates Not Obligated. No Eurocurrency Affiliate or other
Affiliate of any Lender shall be deemed a party to this Agreement or shall have
any liability or obligation under this Agreement.
5.03. Fees. (a) Letter of Credit Fees. In addition to any charges
paid pursuant to Section 3.01(g), the U.S. Borrower shall pay (i) to the
applicable Issuing Bank, a fee (the "Fronting Fee") equal to (A) one-quarter of
one percent (0.25%) on the face amount of each Standby Letter of Credit issued
by such Issuing Bank, upon issuance of such Standby Letter of Credit, and (B)
one-eighth of one percent (0.125%) on the face amount of each Commercial Letter
of Credit issued by such Issuing Bank, upon issuance of such Commercial Letter
of Credit, and (ii) to the Agent, for the account of the Lenders based on their
respective Pro Rata Shares, a fee (the "Letter of Credit Fee") accruing at the
Eurocurrency Rate Margin applicable from time to time on the undrawn face amount
of each outstanding Letter of Credit, payable quarterly, in arrears, on the
first day of each calendar quarter for the then immediately preceding calendar
quarter; provided, however, upon (A) the occurrence of an Event
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of Default described in Section 12.01(a) or (B) the occurrence of any other
Event of Default and notice from the Requisite Lenders of the effectiveness of
Section 5.01(d), and for so long thereafter as such Event of Default shall be
continuing, the rate at which the Letter of Credit Fees shall accrue and be
payable shall be equal to two percent (2.00%) per annum plus the Eurocurrency
Rate Margin determined based on Performance Level 4.
(b) Unused Commitment Fee. (i) The U.S. Borrower shall pay to the
Agent, for the account of the Lenders in accordance with their respective Pro
Rata Shares, a fee (the "Unused Commitment Fee"), accruing at the rate of
one-half of one percent (0.50%) per annum on the average daily amount by which
the Revolving Credit Commitments exceed the sum of (A) the outstanding principal
balance of the Revolving Loans (calculated in Dollars as described in Section
1.05), plus (B) the outstanding Reimbursement Obligations (calculated in Dollars
as described in Section 1.05), plus (C) the aggregate undrawn face amount of all
outstanding Letters of Credit (calculated in Dollars as described in Section
1.05), plus (D) the outstanding principal amount of the Swing Loans (calculated
in Dollars), for the period commencing on the Effective Date and ending on the
Revolving Credit Termination Date, such Unused Commitment Fee being payable (1)
quarterly, in arrears, commencing on the first day of the calendar quarter next
succeeding the Closing Date and (2) on the Revolving Credit Termination Date.
For purposes of determining the Pro Rata Share of the Unused Commitment Fee of
each Lender other than Citicorp, the Unused Commitment Fee shall be calculated
excluding the outstanding principal amount of the Swing Loans.
(ii) Notwithstanding the foregoing, in the event that any Lender
fails to fund its Pro Rata Share of any Revolving Loan requested for a Borrower
which such Lender is obligated to fund under the terms of this Agreement, (A)
such Lender shall not be entitled to any Unused Commitment Fees with respect to
its Revolving Credit Commitment until such failure has been cured in accordance
with Section 4.02(b)(v)(B) and (B) until such time, the Unused Commitment Fee
shall accrue in favor of the Lenders which have funded their respective Pro Rata
Shares of such requested Revolving Loan, shall be allocated among such
performing Lenders ratably based upon their relative Revolving Credit
Commitments, and shall be calculated based upon the average amount by which the
aggregate Revolving Credit Commitments of such performing Lenders exceed the sum
of (1) the outstanding principal amount of the Revolving Loans and Swing Loans
owing to such performing Lenders, plus (2) the outstanding Reimbursement
Obligations owing to such performing Lenders, plus (3) the aggregate
participation interests of such performing Lenders arising pursuant to Section
3.01(e) with respect to undrawn and outstanding Letters of Credit.
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(c) Agent's Fee. The U.S. Borrower shall pay to the Agent, solely
for the account of the Agent, a fee in the amount and on the dates set forth in
the Fee Letter.
(d) Calculation and Payment of Fees. All of the above fees shall be
calculated on the basis of the actual number of days elapsed in a 360-day year.
All such fees shall be payable in addition to, and not in lieu of, interest,
compensation, expense reimbursements, indemnification and other Obligations, to
the Agent at its Applicable Payment Office in immediately available funds. All
fees shall be fully earned and nonrefundable when paid. All fees specified or
referred to in this Agreement due to the Agent, any Issuing Bank or any Lender,
including, without limitation, those referred to in this Section 5.03, shall
bear interest, if not paid when due, at the interest rate for Base Rate Loans
set forth in Section 5.01(d), shall constitute Obligations and shall be secured
by all of the Collateral.
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ARTICLE VI
CONDITIONS TO LOANS AND LETTERS OF CREDIT
6.01. Conditions Precedent to the Effectiveness of Agreement. This
Agreement shall become effective upon and be subject to the satisfaction by 5:00
p.m. (New York time) on October 17, 1996 (the "Effective Date") of all of the
following conditions precedent:
(a) Documents. The Agent shall have received on or before the
Effective Date all of the following:
(i) this Agreement, the Notes and all other agreements, documents
and instruments relating to the loan and other credit transactions
contemplated by this Agreement and described in the List of Closing
Documents attached hereto as Exhibit H and made a part hereof, each duly
executed where appropriate and in form and substance satisfactory to the
Agent; without limiting the foregoing, the U.S. Borrower hereby directs
its counsel, Skadden, Arps, Slate, Xxxxxxx & Xxxx, Xxxxx X. XxXxxxxx and
Xxxxx & Gates, and the European Borrower hereby directs its counsel,
Boesebeck, Barz & Partner, to prepare and deliver to the Agent, the
Lenders, the Issuing Banks and Sidley & Austin, the opinions referred to
in such List of Closing Documents;
(ii) a written status memorandum of Sidley & Austin, counsel to the
Agent, with respect to certain environmental investigations conducted by
independent consultants to the U.S. Borrower and the Agent in connection
with the 1994 Credit Agreement and the predecessor credit agreement
thereto addressing any significant environmental, health and safety
violations, hazards or Liabilities and Costs to which the U.S. Borrower or
any of its Subsidiaries may be subject, in form and substance satisfactory
to the Agent;
(iii) an Officer's Certificate executed and delivered by the
president or vice president of the U.S. Borrower certifying that all
conditions precedent have been met and no Potential Event of Default or
Event of Default has occurred or is continuing; and
(iv) such additional documentation as the Agent may reasonably
request.
(b) Perfection of Liens; Title Insurance. Evidence that (i) all
financing statements filed in connection with the 1994 Credit Agreement and
predecessor agreements thereto continue
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filed and of record, and (ii) title commitments for title insurance policies in
form and substance satisfactory to the Agent with respect to mortgages and
leasehold mortgages of Real Property and/or interests in Real Property which are
part of the Collateral have been issued to the Agent, for the benefit of the
Agent, the Issuing Banks and the Lenders, and all title charges, recording fees
and filing taxes have been paid.
(c) Equity Infusion; Subordinated Debt. The Lenders shall be
satisfied in all material respects (i) with the terms of the Equity Infusion,
Subordinated Debt, and guarantees thereof, and (ii) that all conditions
precedent to the issuance of the notes evidencing the Subordinated Debt have
been satisfied (or waived with the prior written consent of the Agent); cash
proceeds of the Equity Infusion in the aggregate amount of $10,000,000 and gross
cash proceeds of the Subordinated Debt in the amount of $125,000,000 shall have
been received by the U.S. Borrower; and the Subordinated Debt Documents shall
have been executed and delivered and become effective in accordance with their
terms. Copies of the Subordinated Debt Documents certified by the secretary of
the U.S. Borrower shall have been delivered to the Agent.
(d) No Legal Impediments. No law, regulation, order, judgment or
decree of any Governmental Authority shall, and the Agent shall not have
received any notice that litigation is pending or threatened which is likely to,
(i) enjoin, prohibit or restrain (A) the making of the Loans and/or the issuance
of Letters of Credit under this Agreement or (B) the issuance of the
Subordinated Debt or making of the Equity Infusion or (ii) result in a Material
Adverse Effect.
(e) No Change in Condition. No change in the business, assets,
management, operations, financial condition or prospects of the U.S. Borrower
and its Subsidiaries, taken as a whole, shall have occurred since December 31,
1995, which change, in the judgment of the Agent, will, or is reasonably likely
to, result in a Material Adverse Effect.
(f) Interim Liabilities and Equity. Since December 31, 1995, neither
the U.S. Borrower nor any of its Subsidiaries shall have (i) entered into any
material (as determined in good faith by the Agent) commitment or transaction,
including, without limitation, transactions for borrowings and capital
expenditures, which are not in the ordinary course of the U.S. Borrower's or its
Subsidiaries' respective businesses except with respect to the transactions
contemplated hereby or otherwise permitted by the 1994 Credit Agreement, (ii)
declared or paid any dividends or distributions not permitted by the 1994 Credit
Agreement, (iii) established or assumed any obligations with respect to
compensation or employee benefit plans other than the Plans in effect on
December 31, 1995 or (iv) redeemed or repurchased Capital Stock other than the
repurchase of the 60.48 shares of preferred stock which was issued on terms
substantially similar
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to the 1994 Preferred Stock held by Xxxxxx Xxxxxx and the 106.74 shares of
common stock of the U.S. Borrower held by Xxxxxx Xxxxxx or (v) issued any
Capital Stock other than in connection with the Equity Infusion.
(g) No Loss of Material Agreements and Licenses. Since December 31,
1995, no agreement or license which, in the judgment of the Requisite Lenders,
is material to the business, operations or employee relations of the Borrowers
or any of their Subsidiaries shall have been terminated, modified, revoked,
breached or declared to be in default.
(h) No Market Changes. Since September 6, 1996, no material adverse
change shall have occurred in the conditions in the capital markets or the
market for loan syndications generally that, in Citicorp Securities, Inc.'s or
Fleet's judgment, would materially impair syndication of the Commitments.
(i) No Default. No Event of Default or Potential Event of Default
shall have occurred and be continuing under the 1994 Credit Agreement or would
result under this Agreement from the making of the Loans or the issuance of the
Subordinated Debt.
(j) Representations and Warranties. All of the representations and
warranties contained in Section 7.01 and in any of the other Loan Documents
shall be true and correct in all material respects on and as of the Effective
Date.
(k) Fees and Expenses Paid. There shall have been paid to the Agent,
for the accounts of the Lenders, the Issuing Banks, and the Agent, as
applicable, (i) all fees and expenses due and payable on or before the Effective
Date in connection with this Agreement and all fees and expenses due and payable
on or before the Effective Date pursuant to the Commitment Letter and the Fee
Letter and (ii) all fees and expenses due and payable on or before the Effective
Date under the terms of the 1994 Credit Agreement.
6.02. Conditions Precedent to All Loans and Letters of Credit. The
obligation of each Lender to make any Loan requested to be made by it on any
Funding Date and the agreement of each Issuing Bank to issue any Letter of
Credit on any date is subject to the following conditions precedent as of each
such date, both before and after giving effect to the Loans to be made and/or
the Letter of Credit to be issued on such date:
(a) Representations and Warranties. All of the representations and
warranties of the Borrowers contained in Section 7.01 and of the Borrowers and
Guarantors contained in any other Loan Document (other than representations and
warranties which expressly speak as of a different date) shall be true and
correct in all material respects as of such Funding Date.
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(b) No Defaults. No Event of Default or Potential Event of Default
shall have occurred and be continuing or would result from the making of the
requested Loan or issuance of the requested Letter of Credit.
(c) No Legal Impediments. No law, regulation, order, judgment or
decree of any Governmental Authority shall, and the Agent shall not have
received from any Lender or Issuing Bank notice that, in the judgment of such
Lender or Issuing Bank, litigation is pending or threatened which is likely to,
enjoin, prohibit or restrain, or impose or result in the imposition of any
material adverse condition upon, (i) such Lender's making of the requested Loan
or participation in the requested Letter of Credit or (ii) such Issuing Bank's
issuance of the requested Letter of Credit.
(d) No Material Adverse Effect. No event shall have occurred since
December 31, 1995 which has resulted, or is reasonably likely to result, in a
Material Adverse Effect.
Each submission by the U.S. Borrower to the Agent of a Notice of Borrowing with
respect to any Loan or a Notice of Conversion/Continuation with respect to any
conversion to or continuation as a Eurocurrency Rate Loan, each acceptance by a
Borrower of the proceeds of each Loan made to it or converted to a Eurocurrency
Rate Loan or continued as a Eurocurrency Rate Loan hereunder, each submission by
a Borrower to an Issuing Bank of a request for issuance of a Letter of Credit
and the issuance of such Letter of Credit, shall constitute a representation and
warranty by the Borrowers as of the Funding Date in respect of such Loan, the
date of conversion or continuation and the date of issuance of such Letter of
Credit, that all the conditions contained in this Section 6.02 have been
satisfied or waived in accordance with Section 15.07.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.01. Representations and Warranties of the Borrowers. In order to
induce the Lenders and the Issuing Banks to enter into this Agreement and to
make the Loans and the other financial accommodations to the Borrowers and to
issue the Letters of Credit described herein, the Borrowers hereby represent and
warrant to each Lender, each Issuing Bank and the Agent that the following
statements are true, correct and complete:
(a) Organization; Corporate Powers. (i) The U.S. Borrower and each
of its Subsidiaries (A) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (B) is
duly qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction in which failure to be so qualified and in
good standing will have or is reasonably likely to have a Material Adverse
Effect, (C) has filed and maintained effective (unless exempt from the
requirements for filing) a current Business Activity Report with the appropriate
Governmental Authority in the states of Minnesota and New Jersey, and (D) has
all requisite corporate power and authority to own, operate and encumber its
Property and to conduct its business as presently conducted and as proposed to
be conducted in connection with and following the consummation of the
transactions contemplated by the Transaction Documents.
(ii) True, correct and complete copies of the Organizational
Documents identified on Schedule 7.01-A attached hereto and made a part hereof
have been delivered to the Agent, each of which is in full force and effect, has
not been modified or amended except to the extent indicated therein and, to the
best of each Borrower's knowledge, there are no defaults under such
Organizational Documents and no events which, with the passage of time or giving
of notice or both, would constitute a default under such Organizational
Documents.
(b) Authority. (i) The U.S. Borrower and each of its Subsidiaries
have the requisite corporate power and authority (A) to execute, deliver and
perform each of the Transaction Documents which have been or are to be executed
by them as required by this Agreement on or prior to the Effective Date and (B)
to file or record the Transaction Documents which are required to be filed or
recorded by them in connection with the Subordinated Debt, and guarantees
thereof, or which have been filed or recorded by them as required by this
Agreement on or prior to the Effective Date, with any Governmental Authority.
(ii) The execution, delivery, performance and filing or recording,
as the case may be, of each of the Transaction Documents which have been or are
required to be executed, filed or recorded as required by this Agreement or the
Subordinated Debt Documents on or prior to the Effective Date and to which
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either Borrower or any Subsidiary of either Borrower is party and the
consummation of the transactions contemplated thereby, have been duly approved
by the respective boards of directors and, if necessary, the shareholders of
such Borrower and its Subsidiaries and such approvals have not been rescinded.
No other corporate action or proceedings on the part of either Borrower or any
Subsidiary of either Borrower are necessary to consummate such transactions.
(iii) Each of the Transaction Documents to which a Borrower or any
of its Subsidiaries is a party (A) has been duly executed, delivered, filed or
recorded, as the case may be, by it, (B) where applicable, creates valid and
perfected first Liens in the Collateral covered thereby securing the payment of
all of the Obligations purported to be secured thereby, (C) constitutes such
Borrower's or such Subsidiary's legal, valid and binding obligation, enforceable
against it in accordance with its terms, and (D) is in full force and effect and
no material term or condition thereof has been amended, modified or waived from
the terms and conditions contained therein as delivered to the Agent pursuant to
Section 6.01(a) without the prior written consent of the Requisite Lenders or
all Lenders, as applicable. All parties to the Transaction Documents have
performed and complied with all the terms, provisions, agreements and conditions
set forth therein and required to be performed or complied with by such parties
on or before the Effective Date, all filings and recordings and other actions
which are necessary or desirable to perfect and protect the Liens granted
pursuant to the Loan Documents and preserve their required priority have been
duly taken or all documents necessary therefor have been delivered to the Agent
for filing, and no Potential Event of Default, Event of Default or breach of any
covenant by any such party exists thereunder.
(c) Subsidiaries; Ownership of Equity Securities. Schedule 7.01-C
attached hereto and made a part hereof (i) contains a diagram indicating the
corporate structure of the U.S. Borrower, its Subsidiaries and any other Person
in which either Borrower or any of its Subsidiaries holds a direct or indirect
partnership, joint venture or other equity interest and indicates the nature of
such interest with respect to each Person included in such diagram; and (ii)
accurately sets forth (A) the correct legal name of such Person, the
jurisdiction of its incorporation or organization and the jurisdictions in which
it is qualified to transact business as a foreign corporation or otherwise and
(B) the authorized, issued and outstanding shares or interests of each class of
equity Securities of each Borrower and each of its Subsidiaries and the owners
of such shares or interests. Except as set forth on Schedule 7.01-C, none of
such issued and outstanding equity Securities is subject to any vesting,
redemption, or repurchase agreement, and there are no warrants or options (other
than Permitted Equity Securities Options) outstanding with respect to such
equity Securities. The outstanding equity Securities of the U.S. Borrower and
each of
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its Subsidiaries are duly authorized, validly issued, fully paid and
nonassessable, and free and clear of any Liens, except for the Liens granted
pursuant to the Loan Documents and are not Margin Stock.
(d) No Conflict. The execution, delivery and performance of each of
the Transaction Documents to which either Borrower or any of its Subsidiaries is
a party do not and will not (i) conflict with the Organizational Documents of
such Person, (ii) constitute a tortious interference with any Contractual
Obligation of any Person or conflict with, result in a breach of or constitute
(with or without notice or lapse of time or both) a default under any
Requirement of Law or Contractual Obligation of such Person, or require
termination of any Contractual Obligation, (iii) result in or require the
creation or imposition of any Lien whatsoever upon any of the Property or assets
of either Borrower or any such Subsidiary, other than Liens contemplated by the
Loan Documents, or (iv) require any approval of either Borrower's or any such
Subsidiary's shareholders, which has not been obtained.
(e) Governmental Consents. The execution, delivery and performance
of each of the Transaction Documents to which either Borrower or any of its
Subsidiaries is a party do not and will not require any registration with,
consent or approval of, or notice to, or other action to, with or by any
Governmental Authority, except (i) filings, consents or notices which have been
made, obtained or given, (ii) filings necessary to create or perfect security
interests in the Collateral, and (iii) as otherwise set forth on Schedule 7.01-E
attached hereto and made a part hereof.
(f) Governmental Regulation. Neither of the Borrowers, nor any
Subsidiary of a Borrower, is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Interstate Commerce Act,
or the Investment Company Act of 1940, or any other Requirement of Law which
limits its ability to incur indebtedness or its ability to consummate the
transactions contemplated hereby or by the other Transaction Documents.
(g) Restricted Junior Payments. Since December 31, 1995, neither
Borrower nor any Subsidiary of either Borrower has directly or indirectly
declared, ordered, paid or made or set apart any sum or Property for any
Restricted Junior Payment or agreed to do so, except (i) prior to the Effective
Date, as permitted pursuant to Section 10.06 of the 1994 Credit Agreement and
(ii) from and after the Effective Date, as permitted pursuant to Section 10.05
of this Agreement.
(h) Financial Position. Complete and accurate copies of the
following Financial Statements, materials and other information have been
delivered to the Agent: (i) the Pro Forma and Projections, (ii) the U.S.
Borrower's audited Financial
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Statements for the Fiscal Year ended December 31, 1995, and (iii) the Offering
Memorandum with respect to the Subordinated Debt dated October 10, 1996. All
Financial Statements included in such materials were prepared in all material
respects in conformity with GAAP, except as otherwise noted therein, and fairly
present in all material respects the respective consolidated financial
positions, and the consolidated results of operations and cash flows for each of
the periods covered thereby of the U.S. Borrower and its Subsidiaries as at the
respective dates thereof. Neither Borrower and no Subsidiary of either Borrower
has any Accommodation Obligation, contingent liability or liability for any
taxes, long-term leases or commitments, not reflected in the audited Financial
Statements delivered to the Agent on or prior to the Closing Date as aforesaid
or otherwise disclosed to the Agent and the Lenders in writing, which will have
or is reasonably likely to have a Material Adverse Effect.
(i) Pro Forma Financials. The Pro Forma, copies of which have been
furnished to the Lenders, fairly presents on a pro forma basis the financial
position of the U.S. Borrower and its Subsidiaries as of June 30, 1996, and
reflects on a pro forma basis those liabilities reflected in the notes thereto
and resulting from consummation of the transactions contemplated by the
Transaction Documents. The Projections and the assumptions expressed therein are
reasonable based on the information available to the Borrower at the time so
furnished.
(j) Indebtedness; Refinanced Indebtedness. Schedule 1.01.3 sets
forth all Funded Debt of the respective Borrowers and their Subsidiaries and
there are no defaults in the payment of principal or interest on any such
Indebtedness and no payments thereunder have been deferred or extended beyond
their stated maturity (except as disclosed on such Schedule). The Refinanced
Indebtedness and all accrued and unpaid interest thereon has been paid in full
or provision for payment has been made such that, in accordance with the express
provisions of the instruments governing such Indebtedness, the European Borrower
has been or will be, upon payment in full of the Refinanced Indebtedness owing
by it, irrevocably released from all liability and Contractual Obligations with
respect thereto. Any and all Liens securing the Refinanced Indebtedness owing by
the European Borrower have been released or provision for release of such Liens
satisfactory to the Agent has been made.
(k) Litigation; Adverse Effects. Except as set forth in Schedule
7.01-K attached hereto and made a part hereof, there is no action, suit,
proceeding, Claim, investigation or arbitration before or by any Governmental
Authority or private arbitrator pending or, to the knowledge of the Borrowers or
any of their Subsidiaries, threatened against either Borrower or any Subsidiary
of either Borrower or any of their respective Property (i) challenging the
validity or the enforceability of any of the Transaction Documents, (ii) which
will, or is reasonably likely to, result in any Material Adverse Effect, or
(iii) under the
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Racketeering Influenced and Corrupt Organizations Act or any similar federal or
state statute where such Person is a defendant in a criminal indictment that
provides for the forfeiture of assets to any Governmental Authority as a
criminal penalty. There is no material loss contingency within the meaning of
GAAP which has not been reflected in the consolidated Financial Statements of
the U.S. Borrower. Neither Borrower and no Subsidiary of either Borrower is (A)
in violation of any applicable Requirements of Law which violation will result,
or is reasonably likely to result, in a Material Adverse Effect, or (B) subject
to or in default with respect to any final judgment, writ, injunction,
restraining order or order of any nature, decree, rule or regulation of any
court or Governmental Authority which will, or is reasonably likely to, result
in a Material Adverse Effect.
(l) Compensation. Except (i) as disclosed in documents filed with
the Commission, (ii) as set forth on Schedule 7.01-L attached hereto and made a
part hereof, and (iii) for increases in the ordinary course of business and in
accordance with past practices, during the period commencing on September 9,
1993 and ending on the Closing Date, neither Borrower and no Subsidiary of
either Borrower has increased or agreed to increase the aggregate compensation
or benefits (including severance benefits) payable or accruing to any past or
present officer of any of such Persons.
(m) No Material Adverse Effect. Since December 31, 1995, there has
occurred no event with respect to either Borrower, Hilton, Textile, KCI, FCCAC
or Textile SC which has resulted, or is reasonably likely to result, in a
Material Adverse Effect.
(n) Tax Examinations. (i) The IRS is foreclosed from examining by
applicable statutes KCI's federal income tax returns for all tax periods other
than the period commencing on Setpember 1, 1993 through May 31, 1994. All
deficiencies which have been asserted against the U.S. Borrower or any of its
Subsidiaries as a result of any federal, state, local or foreign tax examination
for each taxable year in respect of which an examination has been conducted have
been fully paid or finally settled or are being contested in good faith, and no
issue has been raised in any such examination which, by application of similar
principles, reasonably can be expected to result in assertion of a material
deficiency for any other year not so examined which has not been reserved for in
the U.S. Borrower's consolidated Financial Statements to the extent, if any,
required by GAAP. Neither Borrower and no Subsidiary of either Borrower has
taken any reporting positions for which it does not have a reasonable basis.
(ii) There are no investigations by the German fiscal authorities
pending against the European Borrower.
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(o) Payment of Taxes. All tax returns and reports of each Borrower
and its Subsidiaries required to be filed with respect to Real Property, income,
withholding, and payroll taxes have been timely filed, and all taxes,
assessments, fees and other charges of Governmental Authorities thereupon and
upon or relating to their respective Property, assets, income and franchises
which are shown in such returns or reports to be due and payable have been paid.
Neither Borrower has any knowledge of any proposed tax assessment against either
Borrower or any Subsidiary of either Borrower that will, or is reasonably likely
to, result in a Material Adverse Effect.
(p) Performance. Neither Borrower and no Subsidiary of either
Borrower has received any notice or citation, or has actual knowledge, that (i)
it is in default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any Contractual Obligation
applicable to it, (ii) any of its Property is in violation of any Requirement of
Law, or (iii) any condition exists which, with the giving of notice or the lapse
of time or both, would constitute a default with respect to any such Contractual
Obligation, in each case, except where such default or defaults, if any, will
not, or is not reasonably likely to, result in a Material Adverse Effect.
(q) Disclosure. The representations and warranties of the Borrowers
and Guarantors contained in the Transaction Documents, and all certificates and
other documents delivered to the Agent pursuant to the terms thereof, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained herein or therein, in light
of the circumstances under which they were made, not misleading. The Borrower
has not intentionally withheld any fact from the Agent, the Issuing Banks or the
Lenders in regard to any matter which will, or is reasonably likely to, result
in a Material Adverse Effect.
(r) Requirements of Law. Each Borrower and each Subsidiary of a
Borrower is in compliance with all Requirements of Law applicable to it and its
respective business, in each case where the failure to so comply individually or
in the aggregate will, or is reasonably likely to, result in a Material Adverse
Effect.
(s) Environmental Matters. (i) Except as disclosed on Schedule
7.01-S attached hereto and made a part hereof:
(A) each Borrower and Subsidiary of a Borrower, their respective
operations, and their respective Properties comply in all material respects with
all applicable Environmental, Health or Safety Requirements of Law;
(B) each Borrower and Subsidiary of a Borrower has obtained all
environmental, health and safety Permits necessary for its respective operations
and Properties, and all such
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Permits are in good standing and each Borrower and Subsidiary of a Borrower is
currently in material compliance with all terms and conditions of such Permits;
(C) neither of the Borrowers and none of their respective
Subsidiaries, and none of their respective present Property or operations, or to
the knowledge of either Borrower any past Property, are subject to or the
subject of any judicial or administrative proceeding, order, judgment, decree,
dispute, negotiation, agreement, or settlement, or to the knowledge of either
Borrower, any investigation respecting (I) any Remedial Action, (II) any Claims
or Liabilities and Costs arising from the Release or threatened Release of a
Contaminant, or (III) any violation of or liability under any Environmental,
Health or Safety Requirement of Law that either Borrower or any Subsidiary of
either Borrower reasonably believes will result in an expenditure over $500,000
where such violation has not been corrected to the satisfaction of the
appropriate Governmental Authority and any penalty requested by such
Governmental Authority has not yet been paid;
(D) neither of the Borrowers and no Subsidiary of either Borrower
has filed any notice under any applicable Requirement of Law (I) reporting a
Release of a Contaminant where Remedial Action has not been conducted to the
satisfaction of the appropriate Governmental Authority; (II) under Section
103(c) of CERCLA, indicating past or present treatment, storage or disposal of a
hazardous waste, as that term is defined under 40 C.F.R. Part 261 or any state
equivalent; or (III) reporting a violation of any applicable Environmental,
Health or Safety Requirement of Law where such violation has not been corrected
to the satisfaction of the appropriate Governmental Authority and any penalty
requested by such Governmental Authority has not yet been paid;
(E) to the knowledge of either Borrower, none of the present or past
Property is listed or proposed for listing on the National Priorities List
("NPL") pursuant to CERCLA or on the Comprehensive Environmental Response
Compensation Liability Information System List ("CERCLIS") or any similar state
list of sites requiring Remedial Action;
(F) to the knowledge of either Borrower, neither the U.S. Borrower
nor any Domestic Subsidiary has sent or directly arranged for the transport of
any waste to any current or proposed NPL site, CERCLIS or any similar state list
of sites requiring Remedial Action;
(G) there is not now in connection with or resulting from the
operations of either Borrower or any Subsidiary of either Borrower, nor, to
either Borrower's knowledge, has there ever been on or in any of the Property
(I) any treatment, recycling, storage or disposal of any hazardous waste
requiring a permit under 40 C.F.R. Parts 264 and 265 or any state equivalent
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or (II) any landfill, waste pile, underground storage tank or surface
impoundment, as each of those terms is defined under RCRA;
(H) neither of the Borrowers and no Subsidiary of either Borrower
has received any notice or Claim to the effect that any of such Persons is or
may be liable to any Person as a result of the Release or threatened Release of
a Contaminant, which notice or Claim has not been resolved to the satisfaction
of the Person asserting it;
(I) to neither Borrower's knowledge, have there been any Releases of
any Contaminants from any past or present Property, except in compliance with
Environmental, Health or Safety Requirements of Law, or which have not been
corrected to the satisfaction of the appropriate Governmental Authorities;
(J) to the knowledge of each Borrower after reasonable inquiry, no
Environmental Lien has attached to any Property;
(K) to the knowledge of each Borrower the Property does not contain
any asbestos-containing material; and
(L) none of the Property is subject to any Environmental Property
Transfer Act, or to the extent any such act is applicable to any Property, the
applicable Borrower or Subsidiary of a Borrower has fully complied with the
requirements of such acts.
(ii) Each of the Borrowers and their respective Subsidiaries is
conducting and will continue to conduct its respective business and operations
in an environmentally responsible manner, and the U.S. Borrower and its
Subsidiaries, taken as a whole, have not been, and the U.S. Borrower has no
reason to believe that it and its Subsidiaries, taken as a whole, will be,
subject to Liabilities and Costs arising out of or relating to environmental,
health or safety matters that have or will result in cash expenditures by the
U.S. Borrower and its Subsidiaries in excess of $500,000 in the aggregate, in
addition to any amounts included in the operating and Capital Expenditures
budgets of the U.S. Borrower and its Subsidiaries, for any calendar year ending
after the Closing Date.
(t) ERISA. Neither the U.S. Borrower nor any ERISA Affiliate
maintains or contributes to any Benefit Plan, Multiemployer Plan or Foreign
Pension Plan other than those listed on Schedule 7.01-T attached hereto and made
a part hereof. Each Plan which is intended to be qualified under Section 401(b)
of the Internal Revenue Code as currently in effect either (i) has received a
favorable determination letter from the IRS that such Plan is so qualified or
(ii) an application for determination of such tax-qualified status will be made
to the IRS as soon as practicable and the U.S. Borrower or an ERISA Affiliate
shall diligently seek to obtain a determination letter
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with respect to such application. Except as identified on Schedule 7.01-T,
neither the U.S. Borrower nor any of its Subsidiaries maintains or contributes
to any employee welfare benefit plan within the meaning of Section 3(1) of ERISA
which provides benefits to employees after termination of employment other than
as required by Section 601 of ERISA. The U.S. Borrower and all of its
Subsidiaries are in compliance in all material respects with the
responsibilities, obligations and duties imposed on them by ERISA and the
Internal Revenue Code with respect to all Plans. No Benefit Plan has incurred
any accumulated funding deficiency (as defined in Sections 302(a)(2) of ERISA
and 412(a) of the Internal Revenue Code) whether or not waived. Neither the U.S.
Borrower nor any ERISA Affiliate nor any fiduciary of any Plan which is not a
Multiemployer Plan (i) has engaged in a nonexempt prohibited transaction
described in Section 406 of ERISA or 4975 of the Internal Revenue Code or (ii)
has taken or failed to take any action which would constitute or result in a
Termination Event, which, in either event, will result in an obligation to pay a
material amount of money. Neither the U.S. Borrower nor any ERISA Affiliate is
subject to any liability under Section 4063, 4064, 4069, 4204 or 4212(c) of
ERISA which, singly or in the aggregate, will result in an obligation to pay a
material amount of money. Neither the U.S. Borrower nor any ERISA Affiliate has
incurred any liability to the PBGC which remains outstanding other than the
payment of premiums, and there are no premium payments which have become due
which are unpaid. Schedule B to the most recent annual report filed with the IRS
with respect to each Benefit Plan and furnished to the Agent is complete and
accurate in all material respects. Except as provided on Schedule 7.01-T, since
the date of each such Schedule B, there has been no material adverse change in
the funding status or financial condition of the Benefit Plan relating to such
Schedule B. Neither the U.S. Borrower nor any ERISA Affiliate has (i) failed to
make a required contribution or payment to a Multiemployer Plan or (ii) made a
complete or partial withdrawal under Section 4203 or 4205 of ERISA from a
Multiemployer Plan. Neither the U.S. Borrower nor any ERISA Affiliate has failed
to make a required installment or any other required payment under Section 412
of the Internal Revenue Code on or before the due date for such installment or
other payment. Neither the U.S. Borrower nor any ERISA Affiliate is required to
provide security to a Benefit Plan under Section 401(a)(29) of the Internal
Revenue Code due to a Benefit Plan amendment that results in an increase in
current liability for the plan year. Neither the U.S. Borrower nor any of its
Subsidiaries has, by reason of the transactions contemplated hereby, any
obligation to make any payment to any employee pursuant to any Plan or existing
contract or arrangement. The U.S. Borrower has given to the Agent copies of all
of the following: each Benefit Plan (including all amendments to such Plan) in
existence or committed to as of the Closing Date and in respect of which the
U.S. Borrower or any ERISA Affiliate is currently an "employer" as defined in
Section 3(5) of ERISA, and the most recent summary plan description, actuarial
report,
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determination letter issued by the IRS and Form 5500 filed in respect of each
such Benefit Plan in existence; a listing of all of the Multiemployer Plans
currently contributed to by the U.S. Borrower or any ERISA Affiliate with the
aggregate amount of the most recent annual contributions required to be made by
the U.S. Borrower and all ERISA Affiliates to each such Multiemployer Plan, any
information which has been provided to the U.S. Borrower or an ERISA Affiliate
regarding withdrawal liability under any Multiemployer Plan and the collective
bargaining agreement pursuant to which such contribution is required to be made;
and as to each employee welfare benefit plan within the meaning of Section 3(1)
of ERISA which provides benefits to employees of the U.S. Borrower or any of its
Subsidiaries after termination of employment other than as required by Section
601 of ERISA, the most recent summary plan description for such plan and the
aggregate amount of the most recent annual payments made to terminated employees
under each such plan.
(u) Foreign Employee Benefit Matters. Each Foreign Employee Benefit
Plan is in compliance in all material respects with all laws, regulations and
rules applicable thereto and the respective requirements of the governing
documents for such Plan. The aggregate liabilities with respect to accrued
benefits under any Foreign Pension Plan does not exceed the current fair market
value of the assets held in the trust or other funding vehicle for such Plan.
With respect to any Foreign Employee Benefit Plan maintained or contributed to
by the U.S. Borrower, any of its Subsidiaries or any ERISA Affiliate (other than
a Foreign Pension Plan), reasonable reserves have been established in accordance
with prudent business practice or where required by ordinary accounting
practices in the jurisdiction in which such Plan is maintained. The aggregate
unfunded liabilities, after giving effect to any reserves for such liabilities,
with respect to such Plans will not result in an obligation to pay a material
amount of money. There are no actions, suits or claims (other than routine
claims for benefits) pending or, to the best knowledge of the U.S. Borrower,
threatened against the U.S. Borrower, any of its Subsidiaries or any ERISA
Affiliate with respect to any Foreign Employee Benefit Plan.
(v) Labor Matters. Schedule 7.01-V attached hereto and made a part
hereof accurately sets forth all labor contracts to which either Borrower or any
Subsidiary of either Borrower is a party on the date hereof and the expiration
date of each such contract. There are no strikes, lockouts or other grievances
relating to any collective bargaining or similar agreement to which either
Borrower or any Subsidiary of a Borrower is a party.
(w) Securities Activities. Neither Borrower and no Subsidiary of
either Borrower is engaged in the business of extending credit for the purpose
of purchasing or carrying Margin Stock.
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(x) Solvency. After giving effect to the Obligations outstanding on
the Effective Date, the Subordinated Debt, the Equity Infusion, the redemption
of the AMCY Preferred Stock, and the Loans to be made and Letters of Credit to
be issued or continued on the Effective Date or such other date as Loans
requested hereunder are made or Letters of Credit requested hereunder are
issued, and the disbursement of the proceeds of such Loans and Equity Infusion
pursuant to the Borrowers' instructions, each Borrower and each Subsidiary of a
Borrower is Solvent.
(y) Patents, Trademarks, Permits, Etc.; Government Approvals. (i)
The Borrowers and each of their Subsidiaries own, are licensed or otherwise have
the lawful right to use, or have all Permits and other governmental approvals,
patents, trademarks, service marks, trade names, copyrights, technology,
know-how, and processes used in or necessary for the conduct of their respective
businesses as currently conducted which are material to its condition (financial
or otherwise), operations, performance and prospects, taken as a whole. Except
as set forth on Schedule 7.01-Y attached hereto and made a part hereof, no
claims are pending or, to the best of Borrowers' knowledge following diligent
inquiry, threatened that a Borrower or any of its Subsidiaries is infringing or
otherwise adversely affecting the rights of any Person with respect to such
Permits and other governmental approvals, patents, trademarks, service marks,
trade names, copyrights, technology, know-how, and processes, except for such
claims and infringements as do not, in the aggregate, give rise to any liability
on the part of a Borrower or any of its Subsidiaries which will, or is
reasonably likely to, result in a Material Adverse Effect.
(ii) The consummation of the transactions contemplated by the
Transaction Documents will not impair the ownership of or rights under (or the
license or other right to use, as the case may be) any Permits and governmental
approvals, patents, trademarks, service marks, trade names, copyrights,
technology, know-how, or processes by either Borrower or any Subsidiary of
either Borrower in any manner which will, or is reasonably likely to, result in
a Material Adverse Effect.
(z) Assets and Properties. The Borrowers and each of their
Subsidiaries have good and marketable title to all of the assets and Property
(tangible and intangible) owned by them, respectively, (except insofar as
marketability may be limited by any laws or regulations of any Governmental
Authority affecting such assets), and all such assets and Property are free and
clear of all Liens except Liens securing the Obligations and Liens permitted
under Section 10.03. Substantially all of the assets and Property owned by,
leased to, or used by the Borrowers and/or each such Subsidiary is in adequate
operating condition and repair, ordinary wear and tear excepted, is free and
clear of any known defects except such defects as do not substantially interfere
with the continued use thereof in the conduct of normal
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operations, and is able to serve the function for which they are currently being
used, except in each case where the failure of such asset to meet such
requirements would not, or is not reasonably likely to, result in a Material
Adverse Effect. Neither this Agreement nor any other Transaction Document, nor
any transaction contemplated under any such agreement, will affect any right,
title or interest of either Borrower or any Subsidiary of either Borrower in and
to any of such assets in a manner that would, or is reasonably likely to, result
in a Material Adverse Effect.
(aa) Insurance. Schedule 7.01-AA attached hereto and made a part
hereof accurately sets forth as of the Closing Date all insurance policies and
programs currently in effect with respect to the respective Property and assets
and business of the Borrowers and their Subsidiaries, specifying for each such
policy and program, (i) the amount thereof, (ii) the risks insured against
thereby, (iii) the name of the insurer and each insured party thereunder, (iv)
the policy or other identification number thereof, (v) the expiration date
thereof, and (vi) the annual premium with respect thereto. Such insurance
policies and programs are in compliance with the requirements of Section 9.05
and are in amounts sufficient to cover the replacement value of the respective
Property and assets of the Borrowers and their Subsidiaries.
(bb) The Subordinated Debt; Equity Infusion. (i) Each of the
Transaction Documents filed with the Commission or any other securities
authority complied in all material respects with the provisions of the
Securities Act, the Securities Exchange Act, any other federal securities law,
state securities or "Blue Sky" law, foreign securities law or applicable general
corporation law and the rules and regulations thereunder;
(ii) All conditions precedent to, and all consents necessary to
permit, the making of the Equity Infusion pursuant to the related Transaction
Documents have been satisfied or delivered, or waived with the prior written
consent of the Agent, and no material breach of any term or provision of any
Transaction Document related thereto has occurred and no action has been taken
by any competent authority which restrains, prevents or imposes material adverse
conditions upon, or seeks to restrain, prevent or impose material adverse
conditions upon, the making of the Equity Infusion or the funding of any Loans
and issuance of any Letters of Credit hereunder.
(iii) All conditions precedent to, and all consents necessary to
permit, the Subordinated Debt Documents to become effective and the Subordinated
Debt to be funded, have been satisfied or delivered, or waived with the prior
written consent of the Agent, and no material breach of any term or provision of
the Subordinated Debt Documents has occurred and no action has been taken by any
competent authority which restrains, prevents or imposes material adverse
conditions upon, or seeks to
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restrain, prevent or impose material adverse conditions upon, the effectiveness
of the Subordinated Debt Documents or the funding of the Subordinated Debt.
(cc) Pledge of Capital Stock. The grant and perfection of the
security interest in the Capital Stock of the Subsidiaries of the Borrowers
constituting a portion of the Collateral for the benefit of the Holders, as
contemplated by the terms of the Loan Documents, is not made in violation of the
registration provisions of the Securities Act, any applicable provisions of
other federal securities laws, state securities or "Blue Sky" law, foreign
securities law, or applicable general corporation law or in violation of any
other Requirement of Law.
(dd) Immunity, Levies, Etc. Neither the European Borrower nor its
Property has any immunity from jurisdiction of any court or from set-off or any
legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) under the laws of The
Federal Republic of Germany and there is no tax, levy, impost, deduction, charge
or withholding imposed by The Federal Republic of Germany or any political
subdivision thereof either (i) on or by virtue of the execution or delivery of
this Agreement or any of the other Loan Documents or (ii) on any payment to be
made by the European Borrower pursuant to this Agreement or any of the other
Loan Documents. Except as set forth on Schedule 7.01-DD attached hereto and made
a part hereof, it is not necessary that this Agreement or any of the other Loan
Documents be filed or recorded with any court or other authority in The Federal
Republic of Germany or that any stamp or similar tax be paid on or in respect of
this Agreement or any of the other Loan Documents.
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ARTICLE VIII
REPORTING COVENANTS
Each Borrower covenants and agrees that so long as any Commitments
are outstanding and thereafter until payment in full of all of the Obligations
(other than indemnities not yet due), unless the Requisite Lenders shall
otherwise give their prior written consent thereto:
8.01. Financial Statements. The Borrowers shall maintain, and cause
each of their Subsidiaries to maintain, a system of accounting established and
administered in accordance with sound business practices to permit preparation
of consolidated and consolidating Financial Statements in conformity with GAAP
(as in effect from time to time) and each of the Financial Statements described
below shall be prepared from such system and records. The U.S. Borrower shall
deliver or cause to be delivered to the Agent and the Lenders:
(a) Monthly/Quarterly Reports. During the period (i) commencing on
the Effective Date and ending December 31, 1997, as soon as practicable, and in
any event within thirty (30) days after the end of each calendar month (other
than calendar months which are the last month of a fiscal quarter, in which case
the aforesaid thirty (30) day period shall be extended to forty-five (45) days)
and (ii) from and after December 31, 1997, as soon as practicable, and in any
event within forty-five (45) days after the end of each fiscal quarter in each
Fiscal Year, the consolidated and consolidating balance sheets of the U.S.
Borrower and its Subsidiaries as at the end of the subject period and the
related consolidated statements of income, stockholders' equity and cash flow,
and consolidating statements of income and cash flow, of the U.S. Borrower and
its Subsidiaries for such subject period, setting forth in each case in
comparative form the corresponding figures as of the end of, and for, the
corresponding period of the previous Fiscal Year and the corresponding figures
from the consolidated financial forecast for the current Fiscal Year delivered
on the Effective Date or pursuant to Section 8.01(e), as applicable, certified
by the Chief Executive Officer or Chief Financial Officer of the U.S. Borrower
as fairly presenting the consolidated and consolidating financial position of
the U.S. Borrower and its Subsidiaries as at the dates indicated and the results
of their operations and cash flow for the periods indicated in accordance with
GAAP, subject to normal year end adjustments.
(b) Annual Reports. As soon as practicable, and in any event within
ninety (90) days after the end of each Fiscal Year, (i) the audited consolidated
balance sheets of the U.S. Borrower and its Subsidiaries as at the end of such
Fiscal Year and the related consolidated statements of income, stockholders'
equity and cash flow of the U.S. Borrower and its Subsidiaries for such Fiscal
Year, setting forth in each case in comparative
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form the corresponding figures as of the end of, and for, the previous Fiscal
Year and the corresponding figures from the consolidated financial forecast for
the current Fiscal Year delivered on the Effective Date or pursuant to Section
8.01(e), as applicable, (ii) a report thereon of Coopers & Xxxxxxx or other
independent certified public accountants acceptable to the Agent, which report
shall be unqualified and shall state that such Financial Statements fairly
present the consolidated financial position of the U.S. Borrower and its
Subsidiaries as at the dates indicated and the results of their operations and
cash flow for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years (except for changes with which Coopers & Xxxxxxx or
any such other independent certified public accountants, if applicable, shall
concur and which shall have been disclosed in the notes to the Financial
Statements) and that the examination by such accountants in connection with such
consolidated Financial Statements has been made in accordance with generally
accepted auditing standards, and (iii) the unaudited consolidating balance
sheets of the U.S. Borrower and its Subsidiaries as at the end of such Fiscal
Year and the related consolidating statements of income and cash flow of the
U.S. Borrower and its Subsidiaries for such Fiscal Year, certified by the Chief
Executive Officer or Chief Financial Officer of the U.S. Borrower as fairly
presenting the consolidating financial position of the U.S. Borrower and its
Subsidiaries as at the dates indicated and the results of their operations and
cash flow for the periods indicated in conformity with GAAP and setting forth in
each case in comparative form the corresponding figures as of the end of, and
for, the previous Fiscal Year and the corresponding figures from the
consolidating financial forecast for the current Fiscal Year delivered on the
Closing Date or pursuant to Section 8.01(e), as applicable.
(c) Officer's Certificate. Together with each delivery of any
Financial Statement pursuant to clauses (a) and (b) of this Section 8.01, (i) an
Officer's Certificate of the Chief Executive Officer or Chief Financial Officer
of the U.S. Borrower substantially in the form of Exhibit I attached hereto and
made a part hereof, stating that the officer signatory thereto has reviewed the
terms of the Loan Documents, and has made, or caused to be made under his/her
supervision, a review in reasonable detail of the transactions and consolidated
and consolidating financial condition of the U.S. Borrower and its Subsidiaries
during the accounting period covered by such Financial Statements, that such
review has not disclosed the existence during or at the end of such accounting
period, and that such Person does not have knowledge of the existence as at the
date of such Officer's Certificate, of any condition or event which constitutes
an Event of Default or Potential Event of Default, or, if any such condition or
event existed or exists, specifying the nature and period of existence thereof
and what action the U.S. Borrower or any of its Subsidiaries has taken, is
taking and proposes to take with respect thereto; and (ii) a certificate (the
"Compliance Certificate"), signed by the U.S.
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Borrower's Chief Executive Officer or Chief Financial Officer, setting forth
calculations (with such specificity as the Agent may reasonably request) for the
period then ended which demonstrate compliance, when applicable, with the
provisions of Article XI and the Performance Level attainment required by
Section 5.01(a)(iii).
(d) Accountant's Statement and Privity Letter. Together with each
delivery of the Financial Statements referred to in Section 8.01(b), a written
statement of the firm of independent certified public accountants giving the
report thereon (i) stating that their audit examination has included a review of
the terms of this Agreement as it relates to accounting matters, (ii) stating
whether, in connection with their audit examination, any condition or event
which constitutes an Event of Default or Potential Event of Default has come to
their attention, and if such condition or event has come to their attention,
specifying the nature and period of existence thereof; provided that such
accountants shall not be liable by reason of any failure to obtain knowledge of
any such condition or event that would not be disclosed in the course of their
audit examination, and (iii) stating that based on their audit examination
nothing has come to their attention which causes them to believe that the
information contained in either or both of the certificates delivered therewith
pursuant to Section 8.01(c) (as the information contained in such certificates
relates to the covenants set forth in Article XI) is not correct or that the
matters set forth in the Compliance Certificate delivered therewith pursuant to
Section 8.01(c)(ii) for the applicable Fiscal Year are not stated in accordance
with the terms of this Agreement. The statement referred to above shall be
accompanied by (x) a copy of the management letter or any similar report
delivered to the U.S. Borrower or to any officer or employee thereof by such
accountants in connection with such Financial Statements and (y) a letter in
substantially the form of Exhibit J attached hereto and made a part hereof from
the U.S. Borrower to such accountants informing such accountants that the
Lenders are relying upon the Financial Statements audited by such accountants
and delivered to the Agent and the Lenders pursuant to Section 8.01(b) and that
a primary intent of the Borrower in having such Financial Statements audited is
to induce the Lenders to continue to make Loans to, and issue and participate in
Letters of Credit for the account of, the Borrowers under this Agreement. The
Agent and each Lender may, with the written consent of the U.S. Borrower (which
consent shall not be unreasonably withheld or delayed), communicate directly
with such accountants.
(e) Budgets; Business Plans; Financial Projections. As soon as
practicable and in any event not later than sixty (60) days after the
commencement of each Fiscal Year (beginning with the Fiscal Year ending in
1997), (i) a monthly budget for such Fiscal Year; (ii) an annual business plan
for such Fiscal Year,
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substantially in the form of the business plan heretofore delivered to the
Agent and the Lenders, accompanied by a report reconciling all changes and
departures from the business plan delivered to the Agent and the Lenders for the
preceding Fiscal Year; and (iii) a consolidated plan and financial forecast,
prepared in accordance with the U.S. Borrower's normal accounting procedures
applied on a consistent basis, for each succeeding Fiscal Year of the U.S.
Borrower and its Subsidiaries until the scheduled Revolving Credit Termination
Date, including, without limitation, (A) a forecasted consolidated balance sheet
and statement of cash flow of the U.S. Borrower for each Fiscal Year, (B)
forecasted consolidated and consolidating balance sheets, statements of earnings
and retained earnings, and cash flow of the U.S. Borrower and its Subsidiaries
for and as of the end of each fiscal quarter of such Fiscal Year, (C) the amount
of forecasted Capital Expenditures for such Fiscal Year, and (D) forecasted
compliance with the provisions of Article XI.
8.02. Operations Reports. The U.S. Borrower shall deliver to the
Agent and the Lenders, as and when Financial Statements are required to be
delivered as described in Section 8.01(a), a report detailing the operations of
the U.S. Borrower and its Subsidiaries which report shall include a management
commentary with respect to the respective Borrowers' and their Subsidiaries'
financial performance during such month, together with an explanation of any
material changes in the consolidated and consolidating statements of income,
stockholders' equity and cash flow of the U.S. Borrower and its Subsidiaries for
the applicable period from such statements for the corresponding period of the
previous Fiscal Year and the corresponding figures from the consolidated
financial forecast for the current Fiscal Year delivered by the Effective Date
or pursuant to Section 8.01(e) (the "President's Letter").
8.03. Events of Default. Promptly upon any of the chief executive
officer, chief operating officer, chief financial officer, treasurer, controller
or secretary of the U.S. Borrower obtaining knowledge (a) of any condition or
event which constitutes an Event of Default or Potential Event of Default, or
becoming aware that any Lender or the Agent has given any notice with respect to
a claimed Event of Default or Potential Event of Default under this Agreement,
(b) that any Person has given any notice to a Borrower or any Subsidiary of a
Borrower or taken any other action with respect to a claimed default or event or
condition of the type referred to in Section 12.01(e), or (c) of any condition
or event which has resulted, or is reasonably likely to result, in a Material
Adverse Effect or affect the value of, or the Agent's interest in, the
Collateral in any material respect, the U.S. Borrower shall deliver to the Agent
and the Lenders an Officer's Certificate specifying (i) the nature and period of
existence of any such claimed default, Event of Default, Potential Event of
Default, condition or event, (ii) the notice given or action taken by such
Person in connection therewith, and (iii) what action the U.S. Borrower or
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any of its Subsidiaries has taken, is taking and proposes to take with respect
thereto.
8.04. Lawsuits. (a) Institution of Proceedings. Promptly upon the
U.S. Borrower obtaining knowledge of the institution of, or written threat of,
any action, suit, proceeding, governmental investigation or arbitration against
or affecting either Borrower or any of their Subsidiaries or any of the Property
not previously disclosed pursuant to Section 7.01(k), which action, suit,
proceeding, governmental investigation or arbitration exposes, or in the case of
multiple actions, suits, proceedings, governmental investigations or
arbitrations arising out of the same general allegations or circumstances which
(i) could reasonably be expected to result, in the U.S. Borrower's reasonable
judgment, in either Borrower and/or any Subsidiary of either Borrower incurring
liability in an amount aggregating $1,000,000 or more (exclusive of claims
covered by insurance policies of the U.S. Borrower and its Subsidiaries unless
the insurers of such claims have disclaimed coverage or reserved the right to
disclaim coverage on such claims) or (ii) challenges the validity or
enforceability of any of the Transaction Documents, the U.S. Borrower shall give
written notice thereof to the Agent and the Lenders and provide such other
information as may be reasonably available to enable the each Lender and the
Agent and its counsel to evaluate such matters.
(b) Quarterly Litigation Reports. As soon as practicable and in any
event within forty-five (45) days after the end of each fiscal quarter of the
U.S. Borrower, the U.S. Borrower shall provide a written quarterly report to the
Agent and the Lenders covering the institution of, or written threat of, any
action, suit, proceeding, governmental investigation or arbitration (not
previously reported) against or affecting the U.S. Borrower or any of its
Subsidiaries or any Property not previously disclosed by the U.S. Borrower to
the Agent and the Lenders, and shall provide such other information at such time
as may be reasonably available to enable each Lender and the Agent and its
counsel to evaluate such matters.
(c) Additional Information Upon Request. In addition to the
requirements set forth in clauses (a) and (b) of this Section 8.04, the U.S.
Borrower upon request of the Agent or the Requisite Lenders shall promptly give
written notice of the status of any action, suit, proceeding, governmental
investigation or arbitration covered by a report delivered pursuant to either of
such clauses (a) or (b) and provide such other information as may be reasonably
available to it to enable each Lender and the Agent and its counsel to evaluate
such matters.
8.05. Insurance. As soon as practicable and in any event by the last
day of January in each Fiscal Year, the U.S. Borrower shall deliver to the Agent
(a) a report in form and
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substance reasonably satisfactory to the Agent and the Lenders outlining all
material insurance coverage maintained as of the date of such report by the U.S.
Borrower and its Subsidiaries and the duration of such coverage and (b) evidence
that all premiums with respect to such coverage have been paid when due.
8.06. ERISA Notices. The U.S. Borrower shall deliver or cause to be
delivered to the Agent and the Lenders, at the Borrower's expense, the following
information and notices as soon as reasonably possible, and in any event:
(a) within ten (10) Business Days after the U.S. Borrower or any
ERISA Affiliate knows or has reason to know that a Termination Event has
occurred, a written statement of the Chief Financial Officer of the U.S.
Borrower describing such Termination Event and the action, if any, which
the U.S. Borrower or any ERISA Affiliate has taken, is taking or proposes
to take with respect thereto, and when known, any action taken or
threatened by the IRS, DOL or PBGC with respect thereto;
(b) within ten (10) Business Days after the U.S. Borrower or any of
its Subsidiaries knows or has reason to know that an assessment of a
prohibited transaction excise tax under Section 4975 of the Internal
Revenue Code has occurred, a statement of the Chief Financial Officer of
the U.S. Borrower describing such transaction and the action which the
U.S. Borrower or any ERISA Affiliate has taken, is taking or proposes to
take with respect thereto;
(c) within three (3) Business Days after the U.S. Borrower receives
written notice from the Agent requesting the same, a copy of the annual
report (Form 5500 series), including Schedule B thereto, filed with
respect to each Benefit Plan;
(d) within three (3) Business Days after the U.S. Borrower receives
written notice from the Agent requesting the same, a copy of the actuarial
report for any Benefit Plan or Multiemployer Plan and annual report for
any Multiemployer Plan;
(e) within three (3) Business Days after the filing of the same with
the IRS, a copy of each funding waiver request filed with respect to any
Benefit Plan and all communications received by the U.S. Borrower or any
ERISA Affiliate with respect to such request;
(f) within three (3) Business Days after the occurrence any material
increase in the benefits of any existing Benefit Plan or the establishment
of any new Benefit Plan or the commencement of contributions to
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any Benefit Plan to which the U.S. Borrower or any ERISA Affiliate was not
previously contributing, notification of such increase, establishment or
commencement;
(g) within three (3) Business Days after the U.S. Borrower or any
ERISA Affiliate receives notice of the PBGC's intention to terminate a
Benefit Plan or to have a trustee appointed to administer a Benefit Plan,
copies of each such notice;
(h) within three (3) Business Days after the U.S. Borrower or any of
its Subsidiaries receives notice of any unfavorable determination letter
from the IRS regarding the qualification of a Plan under Section 401(a) of
the Internal Revenue Code, copies of each such notice and letter;
(i) within three (3) Business Days after the U.S. Borrower or any
ERISA Affiliate receives notice from a Multiemployer Plan regarding the
imposition of withdrawal liability, copies of each such notice;
(j) within three (3) Business Days after the U.S. Borrower or any
ERISA Affiliate fails to make a required installment or any other required
payment under Section 412 of the Internal Revenue Code on or before the
due date for such installment or payment, a notification of such failure;
(k) within three (3) Business Days after the U.S. Borrower or any
ERISA Affiliate knows (1) a Multiemployer Plan has been terminated, (2)
the administrator or plan sponsor of a Multiemployer Plan intends to
terminate a Multiemployer Plan, or (3) the PBGC has instituted or will
institute proceedings under Section 4042 of ERISA to terminate a
Multiemployer Plan, notice thereof; and
(l) within ten (10) Business Days after the U.S. Borrower receives
written notice from the Agent requesting the same, copies of any Foreign
Employee Benefit Plan and related documents, reports and correspondence
specified in such notice.
For purposes of this Section 8.06, the U.S. Borrower and any ERISA Affiliate
shall be deemed to know all facts known by the administrator of any Plan of
which the U.S. Borrower or any ERISA Affiliate is the plan sponsor.
8.07. Environmental Notices. (a) The U.S. Borrower shall notify the
Agent and the Lenders in writing, promptly upon either Borrower's learning
thereof, of any:
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(i) notice or claim to the effect that the U.S. Borrower or any of
its Subsidiaries is or may be liable to any Person as a result of the
Release or threatened Release of any Contaminant which could reasonably be
expected by the U.S. Borrower to result in an expenditure over $500,000;
(ii) notice that the U.S. Borrower or any of its Subsidiaries is
subject to investigation by any Governmental Authority evaluating whether
any Remedial Action is needed to respond to the Release or threatened
Release of any Contaminant which could reasonably be expected by the U.S.
Borrower to result in an expenditure over $500,000;
(iii) notice that any Property is subject to an Environmental Lien;
(iv) notice to the U.S. Borrower or any of its Subsidiaries of any
material violation of any Environmental, Health or Safety Requirement of
Law;
(v) condition or occurrence of which the U.S. Borrower or any of its
Subsidiaries has knowledge and which might reasonably be expected by the
U.S. Borrower to result in a material violation of any Environmental,
Health or Safety Requirement of Law;
(vi) commencement or threat of any judicial or administrative
proceeding alleging a material violation by the U.S. Borrower or any of
its Subsidiaries of any Environmental, Health or Safety Requirement of
Law;
(vii) new or proposed changes to any existing Environmental, Health
or Safety Requirement of Law that could result in a Material Adverse
Effect;
(viii) any proposed acquisition of stock, assets, real estate, or
leasing of property, or any other action by the U.S. Borrower or any of
its Subsidiaries that could subject the U.S. Borrower or any of its
Subsidiaries to environmental, health or safety Liabilities and Costs
which could reasonably be expected by the U.S. Borrower to result in an
expenditure over $500,000; or
(ix) any filing or report made by the U.S. Borrower or any of its
Subsidiaries with any Governmental Authority with respect to any
unpermitted Release or threatened Release of a Contaminant which could
reasonably be expected by the U.S. Borrower to result in an expenditure
over $500,000.
(b) Within forty-five (45) days after the end of each Fiscal Year,
the U.S. Borrower shall submit to the Agent and the
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Lenders a report summarizing the status of environmental, health or safety
compliance, hazard or liability issues identified in notices required pursuant
to Section 8.07(a), disclosed on Schedule 7.01-S or identified in any notice or
report required herein. In the event the Agent requests, after its and the
Lenders' review of the foregoing status report, a review of such environmental,
health or safety compliance, hazard or liability issues by an independent
environmental consultant, the U.S. Borrower shall engage such a consultant as is
reasonably satisfactory to the Agent to prepare such a review, the cost of which
shall be for the account of the U.S. Borrower.
8.08. Labor Matters. The U.S. Borrower shall notify the Agent and
the Lenders in writing, promptly upon the U.S. Borrower's learning thereof, of
(i) any material labor dispute to which the U.S. Borrower reasonably believes it
or any of its Subsidiaries may become a party, including, without limitation,
any strikes, lockouts or other grievances relating to such Persons' plants and
other facilities and (ii) any liability relating to its employees incurred with
respect to the closing of any plant or other facility of the U.S. Borrower or
any of its Subsidiaries.
8.09. Subordinated Debt. The U.S. Borrower shall deliver a copy to
the Agent and the Lenders of (a) any notice or other communication delivered by
or on behalf of the U.S. Borrower to any Person in connection with any
Subordinated Debt Document at the same time and by the same means as such notice
or other communication is delivered to such Person and (b) any material notice
or other material communication received by the U.S. Borrower from any Person in
connection with any Subordinated Debt Document promptly after such notice or
other communication is received by the U.S. Borrower.
8.10. Other Reports. The U.S. Borrower shall deliver or cause to be
delivered to the Agent and the Lenders copies of all Financial Statements,
reports and notices, if any, sent or made available generally by the U.S.
Borrower to its Securities holders or filed with the Commission and all press
releases made available generally by the U.S. Borrower or any of its
Subsidiaries to the public concerning material developments in the business of
the U.S. Borrower or any such Subsidiary, and all notifications received by the
U.S. Borrower or any such Subsidiary pursuant to the Securities Exchange Act and
the rules promulgated thereunder.
8.11. Other Information. Promptly upon receiving a request therefor
from the Agent or the Requisite Lenders, the U.S. Borrower shall prepare and
deliver to the Agent and the Lenders such other information with respect to
either Borrower, any of their respective Subsidiaries, or the Collateral,
including, without limitation, schedules identifying and describing the
Collateral and any dispositions thereof, as from
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time to time may be reasonably requested by the Agent or the Requisite Lenders.
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ARTICLE IX
AFFIRMATIVE COVENANTS
Each of the Borrowers covenants and agrees that so long as any
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than indemnities not yet due), unless the Requisite Lenders
shall otherwise give prior written consent:
9.01. Corporate Existence, Etc. The Borrowers shall, and shall cause
each of their Subsidiaries to, at all times maintain their corporate existence
and preserve and keep, or cause to be preserved and kept, in full force and
effect their rights and franchises material to their businesses, except where
the loss or termination of such rights and franchises is not likely to result in
a Material Adverse Effect.
9.02. Corporate Powers; Conduct of Business. The Borrowers shall,
and shall cause each of their Subsidiaries to, qualify and remain qualified to
do business and maintain their good standing in each jurisdiction in which the
nature of their business and the ownership of their Property requires them to be
so qualified and in good standing and a failure to qualify and remain qualified
renders Contractual Obligations of Persons in such jurisdictions unenforceable
by a Borrower or a Subsidiary of the U.S. Borrower without cure.
9.03. Compliance with Laws, Etc. The Borrowers shall, and shall
cause each of their Subsidiaries to, (a) comply with all Requirements of Law and
all restrictive covenants and material Contractual Obligations affecting them or
their respective businesses, Property, assets or operations and (b) obtain as
needed all Permits necessary for their respective operations and maintain such
Permits in good standing, except in the case where noncompliance with either
clause (a) or (b) above is not reasonably likely to result in a Material Adverse
Effect.
9.04. Payment of Taxes and Claims; Tax Consolidation. The Borrowers
shall, and shall cause each of their Subsidiaries to, pay (a) all taxes,
assessments and other governmental charges imposed upon them or on any of their
Property or assets or in respect of any of their franchises, business, income or
Property before any penalty or interest accrues thereon, and (b) all Claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums which have become due and payable and which by law have or
may become a Lien (other than a Lien permitted by Section 10.03) upon any of
such Person's Property or assets, prior to the time when any penalty shall be
incurred with respect thereto; provided, however, that no such taxes,
assessments and governmental charges referred to in clause (a) above or Claims
referred to in clause (b) above need be paid if being contested in good faith by
appropriate proceedings diligently instituted and conducted and if such reserve
or other
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appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor. The Borrowers will not, nor will they permit any
of their Subsidiaries to, file or consent to the filing of any consolidated
income tax return with any Person (other than the U.S. Borrower and its
Subsidiaries).
9.05. Insurance. The U.S. Borrower shall maintain for itself and its
Subsidiaries, or shall cause each of its Subsidiaries to maintain in full force
and effect the insurance policies and programs listed on Schedule 7.01-AA or
substantially similar policies and programs or other policies and programs as
are acceptable to the Agent. All such policies and programs shall be maintained
with responsible and reputable insurance companies or associations in such
amounts and covering such risks as are usual for companies engaged in similar
businesses and owning similar property in the same general geographic areas in
which the U.S. Borrower and/or its Subsidiaries operate. Each certificate and
policy relating to property damage, boiler and machinery and/or business
interruption coverage shall contain an endorsement, in form and substance
acceptable to the Agent, showing loss payable to the Agent, for the benefit of
the Holders, and, if required by the Agent, naming the Agent as an additional
insured under such policy. Each certificate and policy relating to coverage
other than the foregoing shall, if required by the Agent, contain an endorsement
naming the Agent as an additional insured under such policy. Such endorsement or
an independent instrument furnished to the Agent shall provide that the
insurance companies will give the Agent at least thirty (30) days' written
notice before any such policy or policies of insurance shall be altered
adversely to the interests of the Holders or canceled and that no act, whether
willful or negligent, or default of the U.S. Borrower, any of its Subsidiaries,
or any other Person shall affect the right of the Agent to recover under such
policy or policies of insurance in case of loss or damage. In the event the U.S.
Borrower or any of its Subsidiaries, at any time or times hereafter shall fail
to obtain or maintain any of the policies or insurance required herein or to pay
any premium in whole or in part relating thereto, then the Agent, without
waiving or releasing any obligations or resulting Event of Default hereunder,
may at any time or times thereafter (but shall be under no obligation to do so)
obtain and maintain such policies of insurance and pay such premiums and take
any other action with respect thereto which the Agent deems advisable. All sums
so disbursed by the Agent shall constitute Protective Advances hereunder and be
part of the Obligations, payable as provided in this Agreement.
9.06. Inspection of Property; Books and Records; Discussions. Each
Borrower shall, and shall cause each of its Subsidiaries to, permit any
authorized representative(s) designated by the Agent to visit and inspect,
whether by access to such Borrower's and its Subsidiaries' MIS or otherwise, any
of the Property, to examine, audit, check and make copies of its respective
financial and accounting records, books, journals,
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orders, receipts and any correspondence (other than privileged correspondence
with legal counsel) and other data relating to their respective businesses or
the transactions contemplated hereby or referenced herein (including, without
limitation, in connection with environmental compliance, hazard or liability),
and to discuss their affairs, finances and accounts with their officers,
management personnel, and independent certified public accountants (with the
U.S. Borrower having the right to be present at any meeting with such
accountants), all upon reasonable written notice and at such reasonable times
during normal business hours, as often as may be reasonably requested. Each
Lender (or representatives designated by it) shall have the access and rights
described in the preceding sentence from and after the occurrence and during the
continuance of an Event of Default. Each such visitation and inspection (i) by
or on behalf of any Lender shall be at such Lender's expense and (ii) by or on
behalf of the Agent shall be at the U.S. Borrower's expense. Each Borrower shall
keep and maintain, and cause each of its Subsidiaries to keep and maintain, in
all material respects on its MIS and otherwise proper books of record and
account in which entries in conformity with GAAP shall be made of all dealings
and transactions in relation to its respective businesses and activities,
including, without limitation, transactions and other dealings with respect to
the Collateral. If an Event of Default has occurred and is continuing, the
Borrowers, upon the Agent's request, shall, and shall cause each of their
Subsidiaries to, turn over any such records to the Agent or its representatives;
provided, however, that the Borrowers may, in their discretion, retain copies of
such records. Notwithstanding the foregoing, the Agent and Lenders shall not
have such rights to make the aforesaid visits and inspections with respect to
Joint Ventures if the joint venture agreement between or among the joint venture
parties does not permit the U.S. Borrower or its Subsidiary which is a joint
venture party with respect to a given Joint Venture to have such access to such
Joint Venture's Property.
9.07. Insurance and Condemnation Proceeds. (a) Direction to
Insurers. The Borrowers hereby direct (and, if applicable, shall cause their
Subsidiaries to direct) all insurers under policies of property damage, boiler
and machinery and business interruption insurance and payors of any condemnation
claim or award relating to the Property to pay all proceeds payable under such
policies or with respect to such claim or award directly to the Agent, for the
benefit of the Holders. In no case shall such proceeds be payable to either
Borrower or one or more of their Subsidiaries and the Agent.
(b) Application of Proceeds. In the event proceeds of insurance
received by the Agent under property damage or boiler and machinery policies, or
business interruption insurance policies, or with respect to a condemnation
claim or award, exceed $500,000 and do not constitute Replacement Proceeds, the
Agent shall, upon receipt of such proceeds, apply all of the proceeds so
received in repayment of the Obligations in the
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manner set forth in Section 4.02(b)(i). Notwithstanding the foregoing, in the
event proceeds of insurance received by the Agent under property damage, boiler
and machinery policies or business interruption insurance policies (i) is less
than $500,000 or (ii) constitutes Replacement Proceeds, Agent shall, upon
receipt of such proceeds, remit the amount so received to the applicable
Borrower or such Subsidiary.
9.08. ERISA Compliance. The U.S. Borrower shall, and shall cause
each of its Subsidiaries and ERISA Affiliates to, establish, maintain and
operate all Plans to comply in all material respects with the provisions of
ERISA, the Internal Revenue Code, all other applicable laws, and the regulations
and interpretations thereunder and the respective requirements of the governing
documents for such Plans.
9.09. Foreign Employee Benefit Plan Compliance. The U.S. Borrower
shall, and shall cause each of its Subsidiaries and ERISA Affiliates to,
establish, maintain and operate all Foreign Employee Benefit Plans to comply in
all material respects with all laws, regulations and rules applicable thereto
and the respective requirements of the governing documents for such Plans.
9.10. Deposit Accounts. Within ninety (90) days after the Effective
Date, the European Borrower shall, and shall cause each of its Subsidiaries to,
enter into Collection Account Agreements with respect to each of their
respective depository accounts into which collections of Receivables and other
proceeds of Collateral are deposited.
9.11. Maintenance of Property. Each Borrower shall, and shall cause
each of its Subsidiaries to, maintain in all material respects all of its
respective owned and leased Property in good, safe and insurable condition and
repair, and not permit, commit or suffer any waste or abandonment of any such
Property in any material respect and from time to time shall make or cause to be
made all material repairs, renewal and replacements thereof, including, without
limitation, any capital improvements which may be required; provided, however,
that such Property may be altered or renovated in the ordinary course of such
Borrower's or its Subsidiaries' business.
9.12. Condemnation. Immediately upon learning of the institution of
any proceeding for the condemnation or other taking of any of the owned or
leased Real Property of either Borrower or any Subsidiary of either Borrower,
such Borrower shall notify the Agent of the pendency of such proceeding, and
permit the Agent to participate in any such proceeding, and from time to time
will deliver to the Agent all instruments reasonably requested by the Agent to
permit such participation.
9.13. Future Liens on Real Property. Upon the request of the Agent,
each Borrower shall, and shall cause its
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Subsidiaries to, execute and deliver to the Agent, for the benefit of the
Holders, immediately upon the acquisition of any Real Property having an
appraised value in excess of $5,000,000 on which material operations of a
Borrower or Subsidiary of a Borrower are located or leasing any Real Property on
which material operations of a Borrower or any Subsidiary of a Borrower are
located, a mortgage, deed of trust, assignment or other appropriate instrument
evidencing a Lien upon any such Real Property, lease or interest, together with
such title insurance policies (mortgagee's form), certified surveys, appraisals
(to the extent required by, and which meet or exceed the minimum appraisal
standards set forth in, the Financial Institutions Reform, Recovery and
Enforcement Act (12 C.F.R. ss.4 (1990)), as amended), and local counsel opinions
with respect thereto and such other agreements, documents and instruments which
the Agent deems necessary or desirable, the same to be in form and substance
acceptable to the Agent and to be subject only to (a) Liens permitted under
Section 10.03 and (b) such other Liens as the Agent and the Requisite Lenders
may reasonably approve, it being understood that the granting of such additional
security for the Obligations is a material inducement to the execution and
delivery of this Agreement by each Lender. Notwithstanding the foregoing, (a)
the Agent shall make such requests with respect to Subsidiaries of the U.S.
Borrower which are not Domestic Subsidiaries only where the Property or
operations of such Subsidiary are deemed by the Agent, in its reasonable
discretion, to be material to the recovery of the Obligations and (b) Liens
against the Securities and Property of any Joint Venture shall not be required
if there is a prohibition against the pledging of the same in the joint venture
agreements relating thereto.
9.14. Consignee/Bailee Letters; Filings. The U.S. Borrower shall
obtain consignee or bailee letters (as applicable) substantially in the form
attached hereto as Exhibit K from each consignee or bailee of Inventory of any
operating Subsidiary of the U.S. Borrower (separately or in the aggregate)
having a minimum value (at the lower of cost or market) of $500,000, promptly
upon delivery of such Inventory to such consignee or bailee, and (ii) cause to
be executed and delivered to the Agent concurrently with execution and delivery
of such consignee or bailee letter, UCC financing statements in form and
substance satisfactory to the Agent with respect to Inventory located on the
premises of such consignee or bailee.
9.15. Future Pledges of Equity Securities; Other Loan Documents. (a)
The U.S. Borrower shall, and shall cause each of its Subsidiaries to, execute
and deliver to the Agent concurrently with the issuance of any equity Securities
to the U.S. Borrower or any Subsidiary of the U.S. Borrower in connection with
any Investment made by such Person, or formation or acquisition of a Subsidiary,
a pledge of (i) all of the equity Securities issued to or acquired by such
Person, if the Person formed, acquired or in which such Investment is made is a
Domestic Subsidiary, (ii) 65% of the equity Securities of such
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Person (or such lesser percentage as is owned by the pledgor) to secure the
Obligations of the U.S. Borrower, if such Person is not a Domestic Subsidiary
and is a direct Subsidiary of the U.S. Borrower, and (iii) all of the equity
Securities of such Person to secure the Obligations of the European Borrower, if
such Person is not a Domestic Subsidiary and is a direct Subsidiary of the
European Borrower.
(b) The U.S. Borrower shall cause each Subsidiary of the U.S.
Borrower to execute and deliver to the Agent, upon the Agent's request therefor,
such agreements as the Agent may reasonably request to effect such Subsidiary's
becoming a Guarantor and granting Liens on its Property to secure the
Obligations; provided, however, that no such Subsidiary shall be required to
become a Guarantor or grant Liens on its Property to secure the Obligations if
the same would result in the U.S. Borrower incurring liabilities for U.S.
federal income taxes which would not otherwise be incurred.
(c) Notwithstanding the foregoing, (i) nothing in this Section 9.15
shall permit the U.S. Borrower or any Subsidiary of the U.S. Borrower to make
any Investment not otherwise permitted by Section 10.04 and (ii) Liens against
the Securities of any Joint Venture shall not be required if there is a
prohibition against the pledging of the same in the joint venture agreements
relating thereto.
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ARTICLE X
NEGATIVE COVENANTS
Each of the Borrowers covenants and agrees that it shall comply with
the following covenants so long as any Commitments are outstanding and
thereafter until payment in full of all of the Obligations (other than
indemnities not yet due), unless the Requisite Lenders shall otherwise give
prior written consent:
10.01. Indebtedness. Neither Borrower shall, nor shall either
Borrower permit any of its Subsidiaries to, directly or indirectly create,
incur, assume or otherwise become or remain directly or indirectly liable with
respect to any Indebtedness, except:
(a) the Obligations;
(b) Permitted Existing Indebtedness and any extensions, renewals,
refundings or replacements thereof, provided that any such extension,
renewal, refunding or replacement is in an aggregate principal amount not
greater than the principal amount of, and is on terms determined by the
Agent to be no less favorable to the Borrower or Subsidiary obligor than
the terms of, the Permitted Existing Indebtedness so extended, renewed,
refunded or replaced;
(c) to the extent permitted by Article XI and in any event in an
aggregate amount not to exceed a principal amount of $5,000,000 at any
time outstanding, Capital Leases and purchase money Indebtedness incurred
to finance the acquisition of fixed assets, and Indebtedness incurred to
refinance such Capital Leases and purchase money Indebtedness;
(d) Indebtedness arising from intercompany loans from a Borrower to
any of its respective Subsidiaries which is a Guarantor or from any such
Subsidiary to the Borrower or to any other such Subsidiary;
(e) the Subordinated Debt;
(f) Indebtedness in respect of profit sharing plans to the extent
permitted under Section 10.04;
(g) Indebtedness in respect of Hedge Agreements entered into to
hedge against fluctuations in interest rates or foreign exchange rates
incurred in the ordinary course of business and consistent with prudent
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business practices and not entered into for speculative purposes;
(h) Indebtedness with respect to reasonable warranties and
indemnities made under (i) any agreements for asset sales permitted under
Section 10.02, and (ii) Contractual Obligations of a Borrower or any
Subsidiary of a Borrower entered into in the ordinary course of its
business;
(i) Indebtedness under appeal bonds in connection with judgments
which do not result in an Event of Default or a Potential Event of Default
or any other breach hereunder, provided that the aggregate amount of all
such Indebtedness does not exceed $5,000,000;
(j) recourse obligations resulting from endorsement of negotiable
instruments for collection in the ordinary course of its business;
(k) Accommodation Obligations included in Permitted Existing
Indebtedness, and any extensions, renewals or replacements thereof,
provided that the aggregate Indebtedness under any such extension, renewal
or replacement is not greater than the Indebtedness under, and shall be on
terms determined by the Agent to be no less favorable to the Borrower or
Subsidiary obligor than the terms of, such Accommodation Obligation so
extended, renewed or replaced;
(l) Indebtedness in an aggregate amount not to exceed $5,000,000 at
any time outstanding to insurers with respect to premiums for insurance
coverage obtained in the ordinary course of business, including, without
limitation, such Indebtedness which is Permitted Existing Indebtedness;
(m) Accommodation Obligations in an aggregate amount not to exceed
$5,000,000 at any time outstanding with respect to obligations of Joint
Ventures; provided, however, that in the event any such Accommodation
Obligation is extinguished by payment thereof, the aforesaid $5,000,000
shall be reduced by the amount of such payment;
(n) Accommodation Obligations arising under Section 11.2(d) of the
Purchase Agreement;
(o) Indebtedness of Subsidiaries of the U.S. Borrower which are
neither Domestic Subsidiaries nor the European Borrower arising from loans
from a Borrower or a Domestic Subsidiary not to exceed, at any time
outstanding, the amount equal to $5,000,000 minus the amount of
Investments made after the Closing Date in such Persons by a Borrower or
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a Domestic Subsidiary other than by means of loans or advances to such
Persons;
(p) Indebtedness of Subsidiaries of the U.S. Borrower which are
neither Domestic Subsidiaries nor the European Borrower owing to a Person
other than a Borrower or Domestic Subsidiary or other such Subsidiary in
an aggregate amount outstanding not to exceed either (i) $2,500,000 at any
time outstanding for any individual such Subsidiary or (ii) when
aggregated with such Indebtedness of all other such Subsidiaries,
$5,000,000 at any time outstanding;
(q) Indebtedness of Subsidiaries of the U.S. Borrower which are
neither Domestic Subsidiaries nor the European Borrower owing to a Person
which is another such Subsidiary;
(r) Indebtedness issued as consideration for acquisitions of Capital
Stock or other Property permitted under Section 10.04(k) not to exceed
twenty-five percent (25%) of the purchase price therefor; and
(s) in addition to the Indebtedness permitted hereinabove, other
unsecured Indebtedness in an aggregate amount not to exceed $5,000,000 at
any time outstanding.
In the event any Indebtedness is permitted under this Section 10.01,
Indebtedness for accrued interest, fees and charges in connection therewith also
shall be deemed to be permitted.
10.02. Sales of Assets. Neither Borrower shall, nor shall either
Borrower permit any of its Subsidiaries to, sell, assign, transfer, lease,
convey or otherwise dispose of any Property, whether now owned or hereafter
acquired, or any income or profits therefrom, or enter into any agreement to do
so, except:
(a) the sale of Property for consideration not less than the Fair
Market Value thereof so long as (i) any non-cash consideration resulting
from such sale shall be pledged or assigned to the Agent, for the benefit
of the Holders, pursuant to an instrument in form and substance acceptable
to the Agent and (ii) the Borrowers comply with the mandatory prepayment
provisions set forth in Section 4.01(b) and the conditions to the release
of Collateral described in Section 13.09(c);
(b) the transfer of Property (i) from a Subsidiary of a Borrower to
such Borrower or (ii) from a Subsidiary of a Borrower to another
Subsidiary of such Borrower, provided that the Subsidiary transferee is,
or simultaneous with such transfer becomes, a Guarantor;
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(c) the sale of Inventory in the ordinary course of such Person's
respective business;
(d) the disposition of Equipment constituting less than
substantially all of the assets of such Person, if the consideration
received therefor is not less than the Fair Market Value thereof;
(e) the licensing of General Intangibles as permitted by the Loan
Documents;
(f) the sale of Investments in Cash Equivalents permitted pursuant
to Section 10.04(a); and
(g) the sale of the Cowpens Plant.
10.03. Liens. Neither Borrower shall, nor shall either Borrower
permit any of its Subsidiaries to, directly or indirectly create, incur, assume
or permit to exist any Lien on or with respect to any of their respective
Property or assets except:
(a) Liens created pursuant to the Loan Documents or Intercompany
Security Documents;
(b) Permitted Existing Liens;
(c) Customary Permitted Liens;
(d) purchase money Liens (including the interest of a lessor under a
Capital Lease and Liens to which any Property is subject at the time of
such Person's purchase thereof) and Liens securing refinancings of
purchase money Liens permitted under Section 10.01(c) which secure an
amount not to exceed $5,000,000 in the aggregate at any time outstanding,
provided that such Liens shall not apply to any Property other than that
purchased or subject to such Capital Lease or pre-existing Liens;
(e) extensions, renewals, refundings and replacements of Liens
referred to in clauses (a) and (b) of this Section 10.03; provided that
any such extension, renewal, refunding or replacement of a Lien referred
to in clause (b) shall be limited to the Property covered by the Lien
extended, renewed, refunded or replaced and that the obligations secured
by any such extension, renewal, refunding or replacement Lien shall be in
an amount not greater than the amount of the obligations then secured by
the Lien extended, renewed, refunded or replaced; and
(f) Liens securing the Indebtedness described in Section 10.01(p) or
(q).
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10.04. Investments. Neither Borrower shall, nor shall either
Borrower permit any of its Subsidiaries to, directly or indirectly make or own
any Investment except:
(a) Investments in Cash Equivalents;
(b) Permitted Existing Investments;
(c) Investments in the form of advances to employees in the ordinary
course of business for moving, relocation and travel expenses, and other
loans to employees for any lawful purpose; provided that each loan
permitted under this clause (c) shall be evidenced by a promissory note
and that the aggregate principal amount of all such advances and loans at
any time outstanding shall not exceed $500,000;
(d) Investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising
in the ordinary course of business;
(e) Investments by a Borrower or Domestic Subsidiary in equity
Securities of any of its respective Subsidiaries which is a Guarantor;
(f) Investments by a Borrower or a Domestic Subsidiary in a
Subsidiary of the U.S. Borrower which is neither a Domestic Subsidiary nor
the European Borrower which do not exceed $5,000,000 in the aggregate at
any time;
(g) Investments in Joint Ventures and newly created Subsidiaries
formed for the purpose of making Investments in Joint Ventures in an
aggregate amount (without duplication) not to exceed $5,000,000 at any
time plus Investments in Joint Ventures resulting from subrogation to the
rights of a creditor which is the beneficiary of an Accommodation
Obligation of the U.S. Borrower or Subsidiary of the U.S. Borrower
permitted under Section 10.01(m), which Accommodation Obligation is
extinguished by payment as referenced in Section 10.01(m);
(h) Investments permitted under Section 10.02(a)(i);
(i) Investments in no more than ten (10) newly created Domestic
Subsidiaries (in addition to the newly created Domestic Subsidiaries
described in Section 10.04(g)), which shall not exceed $10,000 per such
Domestic Subsidiary;
(j) to the extent they constitute Investments, contributions to and
payments of benefits under any Plan in existence as of the Closing Date as
required by
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the benefit commitments in such Plan as of the Closing Date;
(k) Investments made in connection with acquisitions of the Capital
Stock or substantially all of the Property of one or more Persons which
are not an Affiliate of the U.S. Borrower in an aggregate amount not to
exceed $15,000,000;
(l) Investments by way of issuance of Capital Stock of the U.S.
Borrower made in connection with acquisitions of the Capital Stock or
substantially all of the Property of one or more Persons which are not an
Affiliate of the U.S. Borrower;
(m) Investments in promissory notes issued to the U.S. Borrower by
holders (other than JLL) of the common Capital Stock of the U.S. Borrower
in connection with such holders' making of additional investments in the
common Capital Stock of the U.S. Borrower in an amount sufficient to
maintain such holders' ownership percentage as of the Closing Date; and
(n) Investments by Subsidiaries of the U.S. Borrower which are
neither Domestic Subsidiaries nor the European Borrower in a Person which
is another such Subsidiary.
10.05. Restricted Junior Payments. Neither Borrower shall, nor shall
either Borrower permit any of its Subsidiaries to, declare or make any
Restricted Junior Payment, except:
(a) dividends or distributions to a Borrower or to Wholly-Owned
Subsidiaries;
(b) dividends on the Capital Stock of the U.S. Borrower declared
during any fiscal quarter of the U.S. Borrower; provided that (i) only one
such dividend may be declared during any such fiscal quarter, (ii) any
such dividend declared during any such fiscal quarter must be paid within
one (1) year after the date of declaration, (iii) the amount of such
dividend declared may not exceed the lesser of (A) the amount of the
retained earnings of the U.S. Borrower as of the last day of the
immediately preceding fiscal quarter and (B) thirty percent (30%) of the
Net Income for the immediately preceding fiscal quarter, (iv) no such
dividend may be declared or paid during any fiscal quarter unless (A) the
Fixed Charge Coverage Ratio for the twelve-month period ending as of the
last day of the immediately preceding fiscal quarter is no less than 1.30
to 1.00 and (B) the Agent has received the certified reports described in
Section 8.01(a) confirming that, after giving effect to such dividend, the
condition described in the foregoing clause (A) has been met;
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(c) redemption of the AMCY Preferred Stock provided that such
redemption occurs within sixty (60) days after the Effective Date;
(d) dividends on the AMCY Preferred Stock in the event the same is
not redeemed as permitted in Section 10.05(c);
(e) redemption of the Preferred Stock from proceeds of an initial
public offering of Capital Stock of the U.S. Borrower;
(f) scheduled interest payments in respect of the Subordinated Debt
when required to be made under the Subordinated Debt Documents but subject
to the subordination provisions relating thereto in the Subordinated Debt
Documents;
(g) payments in respect of Funded Debt which is permitted under
Section 10.01; and
(h) repurchase of Capital Stock of the U.S. Borrower (including
options, warrants or other rights to acquire such Capital Stock) from
departing or deceased directors, officers or employees of the U.S.
Borrower or its Subsidiaries pursuant to the terms of a Benefit Plan or
employee agreement; provided that the aggregate amount of all such
repurchases in any Fiscal Year shall not exceed $1,500,000; and provided
further that in the event such repurchases aggregate less than $1,500,000
in any Fiscal Year, such repurchases permitted in the next succeeding
Fiscal Year may aggregate $1,500,000 plus the amount of such deficiency
for the preceding Fiscal Year up to a maximum of $1,000,000
provided, however, the Restricted Junior Payments described in clauses (a)
through (e), (g) and (h) above shall not be permitted after the occurrence and
during the continuance of an Event of Default or a Potential Event of Default or
if an Event of Default or a Potential Event of Default would result therefrom.
10.06. Conduct of Business. Neither Borrower shall, nor shall either
Borrower permit any of its Subsidiaries or any Joint Venture to, engage in any
business other than (a) the businesses engaged in by the U.S. Borrower and its
Subsidiaries on the date hereof and (b) any business or activities which are
substantially similar, related or incidental thereto.
10.07. Transactions with Shareholders and Affiliates. Neither
Borrower shall, nor shall either Borrower permit any of its Subsidiaries to,
directly or indirectly enter into or permit to exist any transaction (including,
without limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with any holder or holders of more than five percent
(5%) of any class of equity Securities of the U.S.
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Borrower, or with any other Affiliate of the U.S. Borrower which is not its
Subsidiary, on terms that are less favorable to such Borrower or such Subsidiary
of such Borrower, as applicable, than those that might be obtained in an arm's
length transaction at the time from Persons who are not such a holder or
Affiliate. Nothing contained in this Section 10.07 shall prohibit (a) any
transaction expressly permitted by Sections 10.01, 10.04 and 10.05; (b)
management fees paid by the European Borrower to the U.S. Borrower; (c) payment
of customary directors' fees and indemnities; or (d) performance of any
obligations arising under the Transaction Documents.
10.08. Restriction on Fundamental Changes. Neither Borrower shall,
nor shall either Borrower permit any of its Subsidiaries to, enter into any
merger or consolidation, or liquidate, wind-up or dissolve (or suffer any
liquidation or dissolution), or convey, lease, sell, transfer or otherwise
dispose of, in one transaction or series of transactions, all or substantially
all of such Person's business or Property, whether now or hereafter acquired.
10.09. Sales and Leasebacks. Neither Borrower shall, nor shall
either Borrower permit any of its Subsidiaries to, become liable, directly, by
assumption or by Accommodation Obligation, with respect to any lease, whether an
Operating Lease or a Capital Lease, of any Property (whether real or personal or
mixed) which it or one of its Subsidiaries (a) sold or transferred or is to sell
or transfer to any other Person, or (b) intends to use for substantially the
same purposes as any other Property which has been or is to be sold or
transferred by it or one of its Subsidiaries to any other Person, in either
instance, in connection with such lease.
10.10. Margin Regulations; Securities Laws. Neither Borrower shall,
nor shall either Borrower permit any of its Subsidiaries to, use all or any
portion of the proceeds of any credit extended under this Agreement to purchase
or carry Margin Stock.
10.11. ERISA. The U.S. Borrower shall not:
(a) engage, or permit any of its Subsidiaries to engage, in any
prohibited transaction described in Section 406 of ERISA or 4975 of the
Internal Revenue Code for which a statutory or class exemption is not
available or a private exemption has not been previously obtained from the
DOL;
(b) permit to exist any accumulated funding deficiency (as defined
in Sections 302 of ERISA and 412 of the Internal Revenue Code), with
respect to any Benefit Plan, whether or not waived;
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(c) fail, or permit any ERISA Affiliate to fail, to pay timely
required contributions or annual installments due with respect to any
waived funding deficiency to any Benefit Plan;
(d) terminate, or permit any ERISA Affiliate to terminate, any
Benefit Plan which would result in any liability of the U.S. Borrower or
any ERISA Affiliate under Title IV of ERISA;
(e) fail to make any contribution or payment to any Multiemployer
Plan which the U.S. Borrower or any ERISA Affiliate may be required to
make under any agreement relating to such Multiemployer Plan, or any law
pertaining thereto;
(f) fail, or permit any ERISA Affiliate to fail, to pay any required
installment or any other payment required under Section 412 of the
Internal Revenue Code on or before the due date for such installment or
other payment;
(g) amend, or permit any ERISA Affiliate to amend, a Benefit Plan
resulting in an increase in current liability for the plan year such that
the U.S. Borrower or any ERISA Affiliate is required to provide security
to such Plan under Section 401(a)(29) of the Internal Revenue Code;
(h) permit any unfunded liabilities with respect to any Foreign
Pension Plan; or
(i) fail, or permit any of its Subsidiaries or ERISA Affiliates to
fail, to pay any required contributions or payments to a Foreign Pension
Plan on or before the due date for such required installment or payment;
if such event results, either singly or in the aggregate, after taking into
account all other such events and any liabilities associated therewith, in an
aggregate liability in excess of $250,000.
10.12. Issuance of Equity Securities. Neither Borrower shall, nor
shall either Borrower permit any of its Subsidiaries to, issue any equity
Securities except equity Securities of the U.S. Borrower (a) pursuant to
Permitted Equity Securities Options, (b) which are common stock and issued under
an initial public offering made at a time when neither an Event of Default nor a
Potential Event of Default exists and continues unwaived, (c) which are
preferred stock, on terms and conditions substantially similar to, and in no
event less favorable to the U.S. Borrower than, those of the 1994 Preferred
Stock, to members of the management of the U.S. Borrower and its Subsidiaries,
(d)
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which are common stock, on terms and conditions substantially similar to, and in
no event less favorable to the U.S. Borrower than, those of the New FCC Common
Stock, to members of the management of the U.S. Borrower and its Subsidiaries,
(e) which are common stock, on terms and conditions substantially similar to
those of the common stock issued in connection with the Equity Infusion to
holders (other than JLL) of common stock of the U.S. Borrower on the Closing
Date and (f) issued in connection with Investments permitted under Section
10.04(l).
10.13. Organizational Documents; Subordinated Debt Documents.
Neither Borrower shall, nor shall either Borrower permit any of its Subsidiaries
to, amend, modify or otherwise change any of the terms or provisions in any of
(a) its respective Organizational Documents as in effect on the Closing Date
(or, in the case of any Subsidiary of the U.S. Borrower which is acquired or
formed after the Effective Date, as in effect on the date of such acquisition or
formation), except amendments to effect a change of name of such Person, written
notice of which change of name the U.S. Borrower shall have provided the Agent
within thirty (30) days prior to the effective date of any such name change or
(b) the Subordinated Debt Documents as in effect on the Effective Date.
10.14. Bank Accounts. The Borrowers shall not and shall not permit
any of their respective Subsidiaries to establish or maintain any deposit
account into which collections of Receivables and proceeds of other Collateral
are deposited other than those identified as existing on the Closing Date and
disclosed on Schedule 10.14 attached hereto and made a part hereof, unless the
U.S. Borrower gives the Agent prior written notice of such establishment and
delivers to the Agent, if the Agent so requests, an executed Collection Account
Agreement concurrently with such deposit account being established.
10.15. Fiscal Year. The U.S. Borrower shall not and shall not permit
any of its Subsidiaries to change its Fiscal Year for accounting or tax purposes
from a period consisting of the 12-month period ending on December 31 of each
calendar year.
10.17. Negative Pledge. Neither Borrower shall, nor shall either
Borrower permit any of its Subsidiaries to, covenant with any third party to
keep any of its Property (other than Property subject to Capital Leases or
purchase money Indebtedness permitted pursuant to the terms of this Agreement)
free and clear of Liens in favor of, or for the benefit of, the Holders, other
than pursuant to customary non-assignment provisions in Contractual Obligations
to the extent such provisions restrict the transfer or assignment of a lease or
a license or a purchase order issued by such Person relating to Inventory or
Equipment which is either (a) not material to the Agent's completion of work in
process or the Agent's recovery on the Collateral or (b) not readily obtainable
on terms and conditions no less favorable
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to the Agent than pertain to the terms and conditions available to the issuer of
such purchase order.
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ARTICLE XI
FINANCIAL COVENANTS
The U.S. Borrower covenants and agrees that so long as any
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than indemnities not yet due):
11.01. Leverage Ratio. The U.S. Borrower shall maintain a Leverage
Ratio, as determined as of the last day of each fiscal quarter of the U.S.
Borrower set forth below for the four-fiscal-quarter period then ending, of not
more than the ratio set forth below opposite such determination date:
Fiscal Quarter Ending Ratio
--------------------- -----
December 31, 1996 5.25 to 1.00
March 31, 1997 5.25 to 1.00
June 30, 1997 5.15 to 1.00
September 30, 1997 5.15 to 1.00
December 31, 1997 5.00 to 1.00
March 31, 1998 5.00 to 1.00
June 30, 1998 5.00 to 1.00
September 30, 1998 5.00 to 1.00
December 31, 1998 4.75 to 1.00
March 31, 1999 4.75 to 1.00
June 30, 1999 4.50 to 1.00
September 30, 1999 4.50 to 1.00
December 31, 1999 4.50 to 1.00
March 31, 2000 4.25 to 1.00
June 30, 2000 4.00 to 1.00
September 30, 2000 4.00 to 1.00
December 31, 2000 4.00 to 1.00
March 31, 2001 4.00 to 1.00
June 30, 2001 4.00 to 1.00
September 30, 2001 4.00 to 1.00
11.02. Interest Coverage Ratio. The U.S. Borrower
shall maintain an Interest Coverage Ratio as determined as of the
last day of each fiscal quarter of the U.S. Borrower set forth
below for the four-fiscal-quarter period then ending of at least
the ratio set forth below opposite such determination date:
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Fiscal Quarter Ending Ratio
--------------------- -----
December 31, 1996 1.70 to 1.00
March 31, 1997 1.70 to 1.00
June 30, 1997 1.70 to 1.00
September 30, 1997 1.70 to 1.00
December 31, 1997 1.75 to 1.00
March 31, 1998 1.75 to 1.00
June 30, 1998 1.75 to 1.00
September 30, 1998 1.80 to 1.00
December 31, 1998 1.80 to 1.00
March 31, 1999 1.80 to 1.00
June 30, 1999 1.85 to 1.00
September 30, 1999 1.90 to 1.00
December 31, 1999 2.00 to 1.00
and each fiscal quarter
thereafter through
September 30, 2001
11.03. Fixed Charge Coverage Ratio. The U.S. Borrower shall maintain
a Fixed Charge Coverage Ratio as determined as of the last day of each fiscal
quarter of the U.S. Borrower set forth below for the four-fiscal-quarter period
then ending of at least the ratio set forth below opposite such determination
date:
Fiscal Quarter Ending Ratio
--------------------- -----
December 31, 1996 1.00 to 1.00
and each fiscal quarter
thereafter through
September 30, 1999
December 31, 1999 1.10 to 1.00
and each fiscal quarter
thereafter through
June 30, 2000
September 30, 2000 1.15 to 1.00
and each fiscal quarter
thereafter through
September 30, 2001
11.04. Capital Expenditures. Capital Expenditures of the U.S.
Borrower and its Subsidiaries shall not exceed $20,000,000 during any Fiscal
Year; provided, however, that to the extent the U.S. Borrower and its
Subsidiaries have not made Capital Expenditures in the amount permitted above
for any given Fiscal Year, Capital Expenditures in an amount equal to fifty
percent (50%) of the amount permitted but not expended in such Fiscal Year may
be made in the Fiscal Year next succeeding such
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Fiscal Year in addition to the amount otherwise permitted for such succeeding
Fiscal Year.
11.05. Financial Covenant Calculations. Notwithstanding any
requirements under GAAP, calculations made (a) with respect to (i) the
definitions of "EBITDA", "Fixed Charge Coverage Ratio", "Interest Coverage
Ratio", and "Leverage Ratio" and (ii) determination of compliance with the
financial covenants set forth in this Article XI, each shall be made without
regard to the requirements of Accounting Principles Board Opinion 16 or changes
in requirements under GAAP which become effective after the Closing Date, (b)
with respect to any of the covenants set forth in Sections 11.01 through 11.04
shall be made without regard to the results of operations or Capital
Expenditures of Indiamalt, and (c) with respect to the definition of "EBITDA"
for any period shall be made without regard to clause (ix) thereof unless cash
restructuring charges and costs for the four-fiscal-quarter period then ending
exceed $5,000,000, whereupon the amount included for purposes of clause (ix)
shall equal the amount by which $5,000,000 is exceeded.
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ARTICLE XII
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
12.01. Events of Default. Each of the following occurrences shall
constitute an Event of Default under this Agreement:
(a) Failure to Make Payments When Due. Either Borrower shall fail to
pay (i) any of the Obligations (other than interest) when due or (ii) any of the
Obligations constituting interest within two (2) Business Days after the date
such Obligations are due.
(b) Breach of Certain Covenants. Either Borrower shall fail duly and
punctually to perform or observe any agreement, covenant or obligation binding
on such Person under Sections 8.08, 9.01, 9.02, 9.03, 9.04, and 9.06, Article X
or Article XI.
(c) Breach of Representation or Warranty. Any representation or
warranty made or deemed made by a Borrower to the Agent, any Lender or any
Issuing Bank herein or by a Borrower or any of its Subsidiaries in any of the
other Loan Documents or in any written statement or certificate at any time
given by any such Person pursuant to any of the Loan Documents shall be false or
misleading in any material respect on the date as of which made (or deemed
made).
(d) Other Defaults. Either Borrower shall default in the performance
of or compliance with any term contained in this Agreement (other than as
identified in clause (a), (b) or (c) of this Section 12.01) or any default or
event of default shall occur under any of the other Loan Documents, and such
default or event of default shall continue for fifteen (15) days after the
occurrence thereof.
(e) Default as to Other Indebtedness; Operating Leases. Either
Borrower or any Subsidiary of either Borrower shall fail to make any payment
when due (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise) with respect to the Subordinated Debt or any other
Indebtedness (other than an Obligation) in excess of $3,000,000; or any breach,
default or event of default shall occur, or any other condition shall exist
under any instrument, agreement or indenture pertaining to any such
Indebtedness, if the effect thereof is to cause an acceleration, mandatory
redemption or other required repurchase of such Indebtedness, or permit the
holder(s) of such Indebtedness to accelerate the maturity of any such
Indebtedness or require a redemption or other repurchase of such Indebtedness;
or any such Indebtedness shall be otherwise declared to be due and payable (by
acceleration or otherwise) or required to be prepaid, redeemed or otherwise
repurchased by either Borrower or any Subsidiary of either Borrower (other than
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by a regularly scheduled required prepayment) prior to the stated maturity
thereof.
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc. (i) An
involuntary case shall be commenced against either Borrower or any Subsidiary of
either Borrower and the petition shall not be dismissed, stayed, bonded or
discharged within thirty (30) days after commencement of the case; or a court
having jurisdiction in the premises shall enter a decree or order for relief in
respect of such Borrower or Subsidiary in an involuntary case, under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect; or any other similar relief shall be granted under any applicable
federal, state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over either Borrower or any
Subsidiary of either Borrower or over all or a substantial part of the Property
of such Borrower or Subsidiary shall be entered; or an interim receiver, trustee
or other custodian of either Borrower or any Subsidiary of either Borrower or of
all or a substantial part of the Property of such Borrower or Subsidiary shall
be appointed or a warrant of attachment, execution or similar process against
any substantial part of the Property of such Borrower or Subsidiary shall be
issued and any such event shall not be stayed, dismissed, bonded or discharged
within thirty (30) days after entry, appointment or issuance.
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. Either
Borrower or any Subsidiary of either Borrower shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its Property; or either Borrower or any Subsidiary of either Borrower
shall make any assignment for the benefit of creditors or shall be unable or
fail, or admit in writing its inability, to pay its debts as such debts become
due; or the board of directors (or equivalent) of either Borrower or any
Subsidiary of either Borrower (or any committee thereof) adopts any resolution
or otherwise authorizes any action to approve any of the foregoing.
(h) Dissolution. Any order, judgment or decree shall be entered
against either Borrower or any Subsidiary of either Borrower decreeing its
involuntary dissolution or split up and such order shall remain undischarged and
unstayed for a period in excess of thirty (30) days; or either Borrower or any
Subsidiary of either Borrower shall otherwise dissolve, be dissolved, or
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cease to exist except as specifically permitted by this Agreement.
(i) Loan Documents; Failure of Security. At any time, for any
reason, (i) any Loan Document ceases to be in full force and effect or either
Borrower or any Subsidiary of either Borrower party thereto seeks to repudiate
its obligations thereunder and the Liens intended to be created thereby are, or
either Borrower or any such Subsidiary seeks to render such Liens, invalid or
unperfected, or (ii) Liens in favor of the Agent for the benefit of the Holders
contemplated by the Loan Documents shall, at any time, for any reason, be
invalidated or otherwise cease to be in full force and effect, or such Liens
shall be subordinated or shall not have the priority contemplated by this
Agreement or the other Loan Documents.
(j) Judgments and Attachments. (i) Any money judgment (other than a
money judgment covered by insurance as to which the insurance company has
acknowledged coverage), writ or warrant of attachment, or similar process
against either Borrower or any Subsidiary of either Borrower or any of their
respective assets involving in any case an amount in excess of $250,000 is
entered and shall remain undischarged, unvacated, unbonded or unstayed for a
period of thirty (30) days or in any event later than five (5) days prior to the
date of any proposed sale thereunder; provided, however, if any such judgment,
writ or warrant of attachment or similar process is in excess of $1,000,000, the
entry thereof shall immediately constitute an Event of Default hereunder.
(ii) A federal tax Lien is filed against the U.S. Borrower or any of
its Property which is not discharged of record, bonded over or otherwise secured
to the satisfaction of the Agent within forty-five (45) days after the filing
thereof or the date upon which the Agent receives actual knowledge of the filing
thereof for an amount which, either separately or when aggregated with the
amount of any judgments described in clause (i) above and/or the amount of any
Environmental Lien Claims described in clause (iii) below, equals or exceeds
$1,000,000.
(iii) An Environmental Lien is filed (and is not discharged of
record, bonded over or otherwise secured to the satisfaction of the Agent within
forty-five (45) days after the filing thereof) against any Property of the U.S.
Borrower or its Subsidiaries with respect to Claims in an amount which, when
aggregated with the amount of judgments set forth in clause (i) above and/or the
federal tax Lien Claims described in clause (ii) above, equals or exceeds
$1,000,000.
(k) Termination Event. Any Termination Event occurs which could
reasonably be expected to subject either the U.S. Borrower or any ERISA
Affiliate to liability in excess of $250,000.
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(l) Waiver Application. The plan administrator of any Benefit Plan
applies under Section 412(d) of the Code for a waiver of the minimum funding
standards of Section 412(a) of the Internal Revenue Code and the Agent believes
that the substantial business hardship upon which the application for the waiver
is based could subject either the U.S. Borrower or any ERISA Affiliate to an
obligation to pay a material amount of money.
(m) Change in Control. A Change of Control shall occur.
(n) Material Adverse Effect. An event shall occur which results in a
Material Adverse Effect.
An Event of Default shall be deemed "continuing" until cured or
waived in writing in accordance with Section 15.07.
12.02. Rights and Remedies.
(a) Acceleration and Termination. Upon the occurrence of any Event
of Default described in Section 12.01(f) or 12.01(g) with respect to a Borrower
or a Guarantor, the Lenders' respective obligations to make Revolving Loans
under the Revolving Credit Commitments or issue or participate in additional
Letters of Credit shall automatically and immediately terminate and the unpaid
principal amount of, and any and all accrued interest on, the Obligations and
all accrued fees shall automatically become immediately due and payable, without
presentment, demand, or protest or other requirements of any kind (including,
without limitation, valuation and appraisement, diligence, presentment, notice
of intent to demand or accelerate and of acceleration), all of which are hereby
expressly waived by the Borrowers; and upon the occurrence and during the
continuance of any other Event of Default, the Agent shall at the request, or
may with the consent, of the Requisite Lenders, by written notice to the U.S.
Borrower, (i) declare that the Lenders' respective obligations to make Revolving
Loans under the Revolving Credit Commitments are terminated, whereupon such
obligation of each Lender to make any Revolving Loan hereunder and of each
Lender or Issuing Bank to issue or participate in any Letter of Credit not then
issued shall immediately terminate, and/or (ii) declare the unpaid principal
amount of and any and all accrued and unpaid interest on the Obligations to be,
and the same shall thereupon be, immediately due and payable, without
presentment, demand, or protest or other requirements of any kind (including,
without limitation, valuation and appraisement, diligence, presentment, notice
of intent to demand or accelerate and of acceleration), all of which are hereby
expressly waived by the Borrowers.
(b) Deposit for Letters of Credit. In addition, after the occurrence
and during the continuance of an Event of Default described in Section 12.01(a)
or the termination of the Commitments and the acceleration of the Obligations as
provided in Section 12.02(a), each Borrower shall, promptly upon demand by
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the Agent, deliver to the Agent Cash Collateral in such form as requested by the
Agent for deposit in the Cash Collateral Account, together with such
endorsements, and execution and delivery of such documents and instruments, as
the Agent may request in order to perfect or protect the Agent's Lien for the
benefit of the Holders with respect thereto, in an aggregate principal amount
equal to the then outstanding Letter of Credit Obligations of such Borrower.
(c) Rescission. If at any time after termination of the Lenders'
obligations to make Revolving Loans under the Revolving Credit Commitments and
issue or participate in additional Letters of Credit and/or acceleration of the
maturity of the Loans, the respective Borrowers shall pay all arrears of
interest and all payments on account of principal of the Loans outstanding to
them, respectively, and their respective Reimbursement Obligations which shall
have become due otherwise than by acceleration (with interest on principal and,
to the extent permitted by law, on overdue interest, at the rates specified in
this Agreement) and all Events of Default and Potential Events of Default (other
than nonpayment of principal of and accrued interest on the Loans due and
payable solely by virtue of acceleration) shall be remedied or waived pursuant
to Section 15.07, then upon the written consent of the Requisite Lenders and
written notice to the U.S. Borrower, the termination of Lenders' respective
obligations to make Revolving Loans under the Revolving Credit Commitments and
the respective Lenders' and Issuing Banks' obligations to participate in or
issue Letters of Credit and/or the aforesaid acceleration and its consequences
may be rescinded and annulled; but such action shall not affect any subsequent
Event of Default or Potential Event of Default or impair any right or remedy
consequent thereon. The provisions of the preceding sentence are intended merely
to bind the Lenders and the Issuing Banks to a decision which may be made at the
election of the Requisite Lenders; they are not intended to benefit the
Borrowers and do not give either Borrower the right to require the Lenders to
rescind or annul any termination of the aforesaid obligations of the Lenders or
Issuing Banks or any acceleration hereunder, even if the conditions set forth
herein are met.
(d) Enforcement. Each Borrower acknowledges that in the event either
Borrower or any Subsidiary of either Borrower fails to perform, observe or
discharge any of their respective obligations or liabilities under this
Agreement or any other Loan Document, any remedy of law may prove to be
inadequate relief to the Agent, the Issuing Banks and the Lenders; therefore,
each Borrower agrees that the Agent, the Issuing Banks and the Lenders shall be
entitled to temporary and permanent injunctive relief in any such case without
the necessity of proving actual damages.
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ARTICLE XIII
THE AGENT
13.01. Appointment. (a) Each Lender and each Issuing Bank hereby
designates and appoints Citicorp as the Agent of such Lender or such Issuing
Bank under this Agreement, and each Lender and each Issuing Bank hereby
irrevocably authorizes the Agent to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and to exercise such
powers as are set forth herein or therein together with such other powers as are
reasonably incidental thereto. The Agent agrees to act as such on the express
conditions contained in this Article XIII.
(b) The provisions of this Article XIII are solely for the benefit
of the Agent, the Lenders and the Issuing Banks, and neither any Borrower nor
any Subsidiary of either Borrower shall have any rights to rely on or enforce
any of the provisions hereof (other than as expressly set forth in Section
13.07). In performing its functions and duties under this Agreement, the Agent
shall act solely as agent of the Lenders and the Issuing Banks and does not
assume and shall not be deemed to have assumed any obligation or relationship of
agency, trustee or fiduciary with or for either Borrower or any Affiliate of
either Borrower. The Agent may perform any of its duties hereunder, or under the
other Loan Documents, by or through its agents or employees.
13.02. Nature of Duties. The Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement or in the
other Loan Documents. The duties of the Agent shall be mechanical and
administrative in nature. The Agent shall not have by reason of this Agreement a
fiduciary relationship in respect of any Holder. Nothing in this Agreement or
any of the other Loan Documents, expressed or implied, is intended to or shall
be construed to impose upon the Agent any obligations in respect of this
Agreement or any of the other Loan Documents except as expressly set forth
herein or therein. Each Lender and each Issuing Bank shall make its own
independent investigation of the financial condition and affairs of each
Borrower and its Affiliates in connection with the making and the continuance of
the Loans hereunder and with the issuance of the Letters of Credit and shall
make its own appraisal of the creditworthiness of each Borrower and Guarantor
initially and on a continuing basis, and the Agent shall not have any duty or
responsibility, either initially or on a continuing basis, to provide any Holder
with any credit or other information with respect thereto (except for reports
required to be delivered by the Agent under the terms of this Agreement). If the
Agent seeks the consent or approval of the Lenders to the taking or refraining
from taking of any action hereunder, the Agent shall send notice thereof to each
Lender. The Agent shall promptly notify each Lender at any time that the Lenders
so required hereunder have instructed the Agent to act or refrain from acting
pursuant hereto. As to any matters not expressly provided for by
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this Agreement (including, without limitation, enforcement or collection of the
Notes or any amount payable under any provision of Article IV when due) or the
other Loan Documents, the Agent shall not be required to exercise any discretion
or take any action. Notwithstanding the foregoing, the Agent shall be required
to act or refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Requisite Lenders (unless
the instructions or consent of all of the Lenders is required hereunder or
thereunder) and such instructions shall be binding upon all Lenders, Issuing
Banks and Holders; provided, however, the Agent shall not be required to take
any action which (i) the Agent reasonably believes will expose it to personal
liability unless the Agent receives an indemnification satisfactory to it from
the Lenders with respect to such action or (ii) is contrary to this Agreement,
the other Loan Documents or applicable law.
13.03. Rights, Exculpation, Etc. (a) Liabilities; Responsibilities.
None of the Agent, any Affiliate of the Agent, or any of their respective
officers, directors, employees or agents shall be liable to any Holder for any
action taken or omitted by them hereunder or under any of the other Transaction
Documents, or in connection therewith, except that no Person shall be relieved
of any liability for gross negligence or willful misconduct. The Agent shall not
be liable for any apportionment or distribution of payments made by it in good
faith pursuant to Section 4.02(b), and if any such apportionment or distribution
is subsequently determined to have been made in error the sole recourse of any
Holder to whom payment was due, but not made, shall be to recover from other
Holders any payment in excess of the amount to which they are determined to have
been entitled. The Agent shall not be responsible to any Holder for any
recitals, statements, representations or warranties herein or for the execution,
effectiveness, genuineness, validity, legality, enforceability, collectibility,
or sufficiency of this Agreement or any of the other Transaction Documents or
the transactions contemplated thereby, or for the financial condition of the
Borrower or any of its Affiliates or any Guarantor. The Agent shall not be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement, any of the other
Loan Documents or the Subordinated Debt Documents, or the financial condition of
the Borrower or any of its Affiliates or any Guarantor, or the existence or
possible existence of any Potential Event of Default or Event of Default.
(b) Right to Request Instructions. The Agent may at any time request
instructions from the Lenders with respect to any actions or approvals which by
the terms of any of the Loan Documents the Agent is permitted or required to
take or to grant, and the Agent shall be absolutely entitled to refrain from
taking any action or to withhold any approval and shall not be under any
liability whatsoever to any Person for refraining from any action or withholding
any approval under any of the Loan Documents until
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it shall have received such instructions from those Lenders from whom the Agent
is required to obtain such instructions for the pertinent matter in accordance
with the Loan Documents. Without limiting the generality of the foregoing, no
Holder shall have any right of action whatsoever against the Agent as a result
of the Agent acting or refraining from acting under the Loan Documents in
accordance with the instructions of the Requisite Lenders or, where required by
the express terms of this Agreement, a greater proportion of the Lenders.
13.04. Reliance. The Agent shall be entitled to rely upon any
written notices, statements, certificates, orders or other documents or any
telephone message believed by it in good faith to be genuine and correct and to
have been signed, sent or made by the proper Person, and with respect to all
matters pertaining to this Agreement or any of the other Loan Documents and its
duties hereunder or thereunder, upon advice of legal counsel (including counsel
for the Borrowers), independent public accountants and other experts selected by
it.
13.05. Indemnification. To the extent that the Agent is required to
be reimbursed and indemnified by the Borrowers but is not reimbursed and
indemnified by the Borrowers, the Lenders will reimburse and indemnify the Agent
for and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against it in any way relating to or arising out of the Loan Documents or any
action taken or omitted by the Agent under the Loan Documents, in proportion to
each Lender's Pro Rata Share. The obligations of the Lenders under this Section
13.05 shall survive the payment in full of the Loans, the Reimbursement
Obligations and all other Obligations and the termination of this Agreement.
13.06. Citicorp Individually. With respect to its Pro Rata Share of
the Commitments hereunder, if any, and the Loans made by it, if any, Citicorp
shall have and may exercise the same rights and powers hereunder and is subject
to the same obligations and liabilities as and to the extent set forth herein
for any other Lender. The terms "Lenders" or "Requisite Lenders" or any similar
terms shall, unless the context clearly otherwise indicates, include Citicorp in
its individual capacity as a Lender or one of the Requisite Lenders. Citicorp
and its Affiliates may accept deposits from, lend money to, and generally engage
in any kind of banking, trust or other business with the Borrowers or any of
their Affiliates as if it were not acting as the Agent pursuant hereto.
13.07. Successor Agents. (a) Resignation. The Agent may resign from
the performance of all its functions and duties hereunder at any time by giving
at least thirty (30) Business Days' prior written notice to the U.S. Borrower
and the Lenders.
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Such resignation shall take effect upon the acceptance by a successor Agent of
appointment pursuant to this Section 13.07.
(b) Appointment by Requisite Lenders. Upon any such notice of
resignation, the Requisite Lenders shall have the right to appoint a successor
Agent selected from among the Lenders which appointment shall be subject to the
prior written approval of the U.S. Borrower (which may not be unreasonably
withheld, and shall not be required upon the occurrence and during the
continuance of an Event of Default).
(c) Appointment by Retiring Agent. If a successor Agent shall not
have been appointed within the thirty (30) Business Day period provided in
clause (a) of this Section 13.07, the retiring Agent, with the consent of the
U.S. Borrower (which may not be unreasonably withheld, and shall not be required
upon the occurrence and during the continuance of an Event of Default), shall
then appoint a successor Agent who shall serve as Agent until such time, if any,
as the Requisite Lenders appoint a successor Agent as provided above.
(d) Rights of the Successor and Retiring Agents. Upon the acceptance
of any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon 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 under this Agreement. After any
retiring Agent's resignation hereunder as Agent, the provisions of this Article
XIII shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was the Agent under this Agreement.
13.08. Relations Among Lenders. Each Lender and each Issuing Bank
agrees (except as provided in Section 15.05) that it will not take any legal
action, or institute any actions or proceedings, against either Borrower or any
Guarantor or other obligor hereunder or with respect to any Collateral, without
the prior written consent of the Requisite Lenders. Without limiting the
generality of the foregoing, no Lender may accelerate or otherwise enforce its
portion of the Obligations, or unilaterally terminate its Commitments except in
accordance with Section 12.02(a).
13.09. Concerning the Collateral and the Loan Documents. (a)
Protective Advances. The Agent may from time to time, before or after the
occurrence of an Event of Default, make such disbursements and advances pursuant
to the Loan Documents in an amount not to exceed the lesser of (i) the Revolving
Credit Availability (calculated in Dollars) at such time and (ii) $5,000,000,
which the Agent, in its sole discretion, deems necessary or desirable to
preserve or protect the Collateral or any portion thereof or to enhance the
likelihood or maximize the amount of repayment of the Loans and other
Obligations ("Protective Advances"). The Agent shall notify the U.S.
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Borrower and each Lender in writing of each such Protective Advance, which
notice shall include a description of the purpose of such Protective Advance.
The U.S. Borrower agrees to pay the Agent, upon demand, the principal amount of
all outstanding Protective Advances, together with interest thereon at the rate
from time to time applicable to Base Rate Loans from the date of such Protective
Advance until the outstanding principal balance thereof is paid in full. If the
U.S. Borrower fails to make payment in respect of any Protective Advance within
one (1) Business Day after the date the U.S. Borrower receives written demand
therefor from the Agent, the Agent shall promptly notify each Lender and each
Lender agrees that it shall thereupon make available to the Agent, in Dollars in
immediately available funds, an amount equal to such Lender's Pro Rata Share of
such Protective Advance. If such funds are not made available to the Agent by
such Lender within one (1) Business Day after the Agent's demand therefor, the
Agent will be entitled to recover any such amount from such Lender together with
interest thereon at the Federal Funds Rate for each day during the period
commencing on the date of such demand and ending on the date such amount is
received. The failure of any Lender to make available to the Agent its Pro Rata
Share of any such Protective Advance shall neither relieve any other Lender of
its obligation hereunder to make available to the Agent such other Lender's Pro
Rata Share of such Protective Advance on the date such payment is to be made nor
increase the obligation of any other Lender to make such payment to the Agent.
All outstanding principal of, and interest on, Protective Advances shall
constitute Obligations bearing interest at the rate applicable to Base Rate
Loans and secured by the Collateral until paid in full by the U.S.
Borrower.
(b) Authority. Each Lender and each Issuing Bank authorizes and
directs the Agent to enter into the Loan Documents relating to the Collateral
for the benefit of the Lenders and the Issuing Banks. Each Lender and each
Issuing Bank agrees that any action taken by the Agent or the Requisite Lenders
(or, where required by the express terms of this Agreement, a greater proportion
of the Lenders) in accordance with the provisions of this Agreement or the other
Loan Documents, and the exercise by the Agent or the Requisite Lenders (or,
where so required, such greater proportion) of the powers set forth herein or
therein, together with such other powers as are reasonably incidental thereto,
shall be authorized and binding upon all of the Lenders and Issuing Banks.
Without limiting the generality of the foregoing, the Agent shall have the sole
and exclusive right and authority to (i) act as the disbursing and collecting
agent for the Lenders and the Issuing Banks with respect to all payments and
collections arising in connection with this Agreement and the other Loan
Documents relating to the Collateral; (ii) execute and deliver each Loan
Document relating to the Collateral and accept delivery of each such agreement
delivered by a Borrower, any Subsidiary of a Borrower or Guarantor a party
thereto; (iii) act as collateral agent for the Lenders and the Issuing Banks for
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purposes of the perfection of all security interests and Liens created by such
agreements and all other purposes stated therein; provided, however, the Agent
hereby appoints, authorizes and directs the Lenders and the Issuing Banks to act
as collateral sub-agent for the Agent, the Lenders and the Issuing Banks for
purposes of the perfection of all security interests and Liens with respect to
the Property at any time in the possession of such Lender or such Issuing Bank,
including, without limitation, deposit accounts maintained with, and cash and
Cash Equivalents held by, such Lender or such Issuing Bank; (iv) manage,
supervise and otherwise deal with the Collateral; (v) take such action as is
necessary or desirable to maintain the perfection and priority of the security
interests and liens created or purported to be created by the Loan Documents;
and (vi) except as may be otherwise specifically restricted by the terms of this
Agreement or any other Loan Document, exercise all remedies given to the Agent,
the Lenders or the Issuing Banks with respect to the Collateral under the Loan
Documents relating thereto, applicable law or otherwise.
(c) Release of Collateral; Guarantors. (i) Each Lender and each
Issuing Bank hereby directs, in accordance with the terms of this Agreement, the
Agent to release any Lien held by the Agent for the benefit of the Holders:
(A) against all of the Collateral, upon final and indefeasible
payment in full of the Obligations and termination of this Agreement;
(B) against any part of the Collateral sold or disposed of by a
Borrower or any Guarantor, if such sale or disposition is permitted by
Section 10.02 or is otherwise consented to by the Requisite Lenders, as
certified to the Agent by the U.S. Borrower in an Officer's Certificate;
and/or
(C) against any part of the Collateral consisting of a promissory
note, upon final and indefeasible payment in full of the Indebtedness
evidenced thereby
and to release any Guarantor from its obligations under the Loan Documents
executed and delivered by it in the event the Capital Stock of such Guarantor or
of the Subsidiary of the U.S. Borrower which owns all of the Capital Stock of
such Guarantor is transferred, with the prior written consent of the Requisite
Lenders, to a Person which is not the U.S. Borrower or a Subsidiary thereof.
(ii) Each Lender and each Issuing Bank hereby directs the Agent to
execute and deliver or file such termination and partial release statements and
do such other things as are necessary to release Liens to be released pursuant
to this Section 13.09(c) promptly upon the effectiveness of any such release.
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ARTICLE XIV
YIELD PROTECTION
14.01. Taxes. (a) Payment of Taxes. Any and all payments by a
Borrower hereunder or under any Note or other document evidencing any
Obligations shall be made, in accordance with Section 4.02, free and clear of
and without reduction for any and all present or future taxes, levies, imposts,
deductions, charges, withholdings, and all other liabilities with respect
thereto excluding, in the case of each Lender, each Issuing Bank and the Agent,
taxes imposed on or measured by net income or overall gross receipts, capital
and franchise taxes and branch profits taxes imposed on it by (i) the United
States or any political subdivision thereof, (ii) the Governmental Authority of
the jurisdiction in which such Lender's Applicable Lending Office is located or
any political subdivision thereof or (iii) the Governmental Authority of the
jurisdiction in which such Person is organized, managed and controlled, or such
Person has an office or other fixed place of business or is otherwise engaged in
business, or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges and withholdings being hereinafter referred
to as "Taxes" and all such excluded taxes shall be referred to as "Excluded
Taxes"). If a Borrower shall be required by law to withhold or deduct any Taxes
from or in respect of any sum payable hereunder or under any such Note or
document to any Lender, any Issuing Bank or the Agent, (x) the sum payable to
such Lender, such Issuing Bank, or the Agent shall be increased as may be
necessary so that after making all required withholding or deductions (including
withholding or deductions applicable to additional sums payable under this
Section 14.01) such Lender, such Issuing Bank or the Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
withholding or deductions been made, (y) such Borrower shall make such
withholding or deductions, and (z) such Borrower shall pay the full amount
withheld or deducted to the relevant taxation authority or other authority in
accordance with applicable law. In addition, each Borrower agrees to pay any
present and future stamp and documentary taxes and any other excise and property
taxes, charges and similar levies which arise from any payment made hereunder or
under the Notes or from the execution, delivery or registration of, or otherwise
with respect to, this Agreement or the Notes ("Other Taxes").
(b) Indemnification. The Borrowers will indemnify each Lender, each
Issuing Bank and the Agent against, and reimburse each on demand for, the full
amount of all Taxes and Other Taxes (including, without limitation, any Taxes
imposed by any Governmental Authority on amounts payable under this Section
14.01 and any additional income or franchise taxes resulting therefrom) incurred
or paid in good faith by such Lender, such Issuing Bank or the Agent (as the
case may be) or any of their
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respective Affiliates and any liability (including penalties, interest, and
reasonable out-of-pocket expenses paid to third parties) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes were lawfully
payable; provided, however, that the Borrowers shall not indemnify any Lender,
any Issuing Bank or the Agent under this Section 14.01 for any liability arising
as a result of such Lender's, such Issuing Bank's or the Agent's willful
misconduct or gross negligence. Demand under this Section 14.01(b) shall be
deemed made on the date of delivery by such Lender, Issuing Bank, or Agent (as
the case may be) to the U.S. Borrower of a certificate as to any Taxes or Other
Taxes (together with amounts thereof) payable to any Person under this Section
14.01, which certificate shall, absent manifest error, be final, conclusive and
binding upon all parties hereto. Each Lender and each Issuing Bank agrees,
within a reasonable time after receiving a written request from the U.S.
Borrower, to provide the U.S. Borrower and the Agent with such certificates as
are reasonably required, and take such other actions as are reasonably necessary
to claim such exemptions as such Lender or such Issuing Bank may be entitled to
claim in respect of all or a portion of any Taxes or Other Taxes which are
otherwise required to be paid or deducted or withheld pursuant to this Section
14.01 in respect of any payments under this Agreement or under the Notes.
(c) Receipts. Within thirty (30) days after the date of any payment
of Taxes by the Borrowers, the U.S. Borrower will furnish to the Agent, at its
address referred to in Section 15.08, the original or a certified copy of a
receipt evidencing payment thereof.
(d) Foreign Bank Certifications. (i) Each Lender or Issuing Bank
that is not created or organized under the laws of the United States or a
political subdivision thereof shall deliver to the U.S. Borrower and the Agent
on the Closing Date or the date on which such Lender or Issuing Bank becomes a
Lender pursuant to Section 15.01 or an Issuing Bank a true and accurate
certificate executed in duplicate by a duly authorized officer of such Lender or
Issuing Bank to the effect that such Lender or Issuing Bank is eligible to
receive payments hereunder and under the Notes without deduction or withholding
of United States federal income tax (I) under the provisions of an applicable
tax treaty concluded by the United States (in which case the certificate shall
be accompanied by two duly completed copies of IRS Form 1001 (or any successor
or substitute form or forms)), (II) because such payments are effectively
connected with the conduct of a U.S. trade or business of such Lender or Issuing
Bank (in which case the certificate shall be accompanied by two duly completed
copies of IRS Form 4224 (or any successor or substitute form or forms)), or
(III) under Section 871(h) or Section 881(c) of the Internal Revenue Code with
respect to "portfolio interest" payments (in which case, the certificate shall
be accompanied by two accurate and complete original signed copies of IRS Form
W-8 (or any successor or substitute form or
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forms) and a certificate representing that such Lender or Issuing Bank is not a
bank for purposes of Section 881(c) of the Internal Revenue Code, is not a 10
percent shareholder of either of the Borrowers (within the meaning of Section
871(h)(3)(B) of the Internal Revenue Code) and is not a "controlled foreigh
corporation" related to either of the Borrowers (within the meaning of Section
864(d)(4) of the Internal Revenue Code).
(ii) Each Lender and Issuing Bank referred to in Section 14.01(d)(i)
further agrees to deliver to the U.S. Borrower and the Agent from time to time,
a true and accurate certificate executed in duplicate by a duly authorized
officer of such Lender or Issuing Bank before or promptly upon the occurrence of
any event requiring a change in the most recent certificate previously delivered
by it to the U.S. Borrower and the Agent pursuant to this Section 14.01(d). Each
certificate required to be delivered pursuant to this Section 14.01(d)(ii) shall
certify as to one of the following:
(A) that such Lender or Issuing Bank can continue to receive
payments hereunder and under the Notes without deduction or withholding of
United States federal income tax;
(B) that such Lender or Issuing Bank cannot continue to receive
payments hereunder or under some or all of the Notes without deduction or
withholding of United States federal income tax as specified therein but
does not require additional payments pursuant to Section 14.01(a) because
it is entitled to recover the full amount of any such deduction or
withholding from a source other than the applicable Borrower; or
(C) that such Lender or Issuing Bank is no longer capable of
receiving payments hereunder or under some or all of the Notes without
deduction or withholding of United States federal income tax as specified
therein and that it is not capable of recovering the full amount of the
same from a source other than the applicable Borrower.
Each Lender and Issuing Bank referred to in Section 14.01(d)(i) agrees to
deliver to the U.S. Borrower and the Agent further duly completed copies of the
above-mentioned IRS forms on or before the earlier of (x) the date that any such
form expires or becomes obsolete or otherwise is required to be resubmitted as a
condition to obtaining an exemption from withholding from United States federal
income tax and (y) fifteen (15) days after the occurrence of any event requiring
a change in the most recent form previously delivered by such Lender or Issuing
Bank to the U.S. Borrower and Agent, unless any change in treaty, law,
regulation, or official interpretation thereof which would render such form
inapplicable or which would prevent such Lender or Issuing Bank from duly
completing and delivering such form has
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occurred prior to the date on which any such delivery would otherwise be
required and such Lender or Issuing Bank promptly advises the U.S. Borrower that
it is not capable of receiving payments hereunder or under some or all of the
Notes without any deduction or withholding of United States federal income tax.
14.02. Increased Capital. If after the date hereof any Lender or
Issuing Bank determines that (i) the adoption or implementation of or any change
in or in the interpretation or administration of any law or regulation or any
guideline or request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over any
Lender, any Issuing Bank or banks or financial institutions generally (whether
or not having the force of law), compliance with which affects or would affect
the amount of capital required or expected to be maintained by such Lender or
Issuing Bank or any corporation controlling such Lender or Issuing Bank and (ii)
the amount of such capital is increased by or based upon (A) the making or
maintenance by any Lender of its Loans, any Lender's participation in or
obligation to participate in the Loans, Letters of Credit or other advances made
hereunder or the existence of any Lender's obligation to make Loans or (B) the
issuance or maintenance by any Issuing Bank of, or the existence of any Issuing
Bank's obligation to issue, Letters of Credit, then, in any such case, upon
written demand by such Lender or Issuing Bank (with a copy of such demand to the
Agent), the Borrowers shall immediately pay to the Agent for the account of such
Lender or Issuing Bank, from time to time as specified by such Lender or Issuing
Bank, additional amounts sufficient to compensate such Lender or Issuing Bank or
such corporation therefor. Such demand shall be accompanied by a statement as to
the amount of such compensation and include a brief summary of the basis for
such demand. Such statement shall be conclusive and binding for all purposes,
absent manifest error.
14.03. Changes; Legal Restrictions. If after the date hereof any
Lender or Issuing Bank determines that the adoption or implementation of or any
change in or in the interpretation or administration of any law or regulation or
any guideline or request from any central bank or other Governmental Authority
or quasi-governmental authority exercising jurisdiction, power or control over
any Lender, any Issuing Bank or over banks or financial institutions generally
(whether or not having the force of law), compliance with which:
(a) does or will subject a Lender or an Issuing Bank (or its
Applicable Lending Office or Eurocurrency Affiliate) to charges (other
than taxes) of any kind which such Lender or Issuing Bank reasonably
determines to be applicable to the Commitments of the Lenders and/or the
Issuing Banks to make Eurocurrency Rate Loans or issue and/or participate
in Letters of Credit or change the basis of taxation of payments to that
Lender or Issuing Bank of principal, fees, interest, or
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any other amount payable hereunder with respect to Eurocurrency Rate Loans
or Letters of Credit; or
(b) does or will impose, modify, or hold applicable, in the
determination of a Lender or an Issuing Bank, any reserve (other than
reserves to the extent taken into account in calculating the Eurocurrency
Rate), special deposit, compulsory loan, FDIC insurance or similar
requirement against assets held by, or deposits or other liabilities
(including those pertaining to Letters of Credit) in or for the account
of, advances or loans by, commitments made by, or other credit extended
by, or any other acquisition of funds by, a Lender or an Issuing Bank or
any Applicable Lending Office or Eurocurrency Affiliate of that Lender or
Issuing Bank;
and the result of any of the foregoing is to increase the cost to that Lender or
Issuing Bank of making, renewing or maintaining the Loans or its Commitments
with respect to, or issuing or participating in, the Letters of Credit or to
reduce any amount receivable thereunder; then, in any such case, upon written
demand by such Lender or Issuing Bank (with a copy of such demand to the Agent),
the Borrowers shall immediately pay to the Agent for the account of such Lender
or Issuing Bank, from time to time as specified by such Lender or Issuing Bank,
such amount or amounts as may be necessary to compensate such Lender or Issuing
Bank or its Eurocurrency Affiliate for any such additional cost incurred or
reduced amount received. Such demand shall be accompanied by a statement as to
the amount of such compensation and include a brief summary of the basis for
such demand. Such statement shall be conclusive and binding for all purposes,
absent manifest error.
14.04. Illegality. (a) If at any time any Lender determines (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties) that the making or continuation of any Eurocurrency Rate Loan
has become unlawful or impermissible by compliance by that Lender with any law,
governmental rule, regulation or order of any Governmental Authority (whether or
not having the force of law and whether or not failure to comply therewith would
be unlawful or would result in costs or penalties), then, and in any such event,
such Lender may give notice of that determination, in writing, to the U.S.
Borrower and the Agent, and the Agent shall promptly transmit the notice to each
other Lender.
(b) When notice is given by a Lender under Section 14.04(a), (i) the
Borrowers' right to request from such Lender and such Lender's obligation, if
any, to make, or to continue or convert Loans into, Eurocurrency Rate Loans
shall be immediately suspended, and such Lender shall make a Base Rate Loan as
part of any requested Borrowing of Eurocurrency Rate Loans and (ii) if the
affected Eurocurrency Rate Loan or Loans are then outstand-
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ing, the Borrowers shall immediately, or if permitted by applicable law, no
later than the date permitted thereby, upon at least one (1) Business Day's
prior written notice to the Agent and the affected Lender, convert each such
Loan into a Base Rate Loan.
(c) If at any time after a Lender gives notice under Section
14.04(a) such Lender determines that it may lawfully make Eurocurrency Rate
Loans, such Lender shall promptly give notice of that determination, in writing,
to the U.S. Borrower and the Agent, and the Agent shall promptly transmit such
notice to each other Lender. The Borrowers' right to request, and such Lender's
obligation, if any, to make, or to continue or convert Loans into, Eurocurrency
Rate Loans shall thereupon be restored.
14.05. Compensation. In addition to all amounts required to be paid
by the Borrowers pursuant to Section 5.01, the Borrowers shall compensate each
Lender, upon written demand therefor, for all losses, expenses and liabilities
(including, without limitation, any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund or maintain such Lender's Eurocurrency Rate Loans to the Borrowers but
excluding any loss of Applicable Eurocurrency Rate Margin on the relevant Loans)
which that Lender may sustain (i) if for any reason, other than a default by
such Lender, a Borrowing, conversion into or continuation of Eurocurrency Rate
Loans does not occur on a date specified therefor in a Notice of Borrowing or a
Notice of Conversion/Continuation given by the U.S. Borrower or in a telephonic
request by it for borrowing or conversion/continuation or a successive
Eurocurrency Rate Interest Period does not commence after notice therefor is
given pursuant to Section 5.01(c), including, without limitation, pursuant to
Section 5.02(f), (ii) if for any reason any Eurocurrency Rate Loan is prepaid
(including, without limitation, mandatorily pursuant to Section 4.01) on a date
which is not the last day of the applicable Eurocurrency Rate Interest Period,
(iii) as a consequence of a required conversion of a Eurocurrency Rate Loan to a
Base Rate Loan as a result of any of the events indicated in Section 5.02(e), or
(iv) as a consequence of any failure by the Borrowers, or either of them, to
repay Eurocurrency Rate Loans when required by the terms of this Agreement. The
Lender making demand for such compensation shall deliver to the U.S. Borrower
concurrently with such demand a written statement in reasonable detail as to
such losses, expenses and liabilities, and this statement shall be conclusive as
to the amount of compensation due to that Lender, absent manifest error.
14.06. Limitation on Additional Amounts Payable by the Borrowers.
Notwithstanding the provisions of Section 14.01(a), the Borrowers shall not be
required to pay any additional amounts hereunder to a Lender or Issuing Bank if
(a) the obligation to pay such additional amounts would not have arisen but for
a failure by such Lender or Issuing Bank to comply with the
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requirements described in Section 14.01 applicable to it, (b) such Lender or
Issuing Bank shall not have furnished the U.S. Borrower with such forms or shall
not have taken such other action as reasonably may be available to it under
applicable tax laws and any applicable tax treaty to obtain an exemption from,
or reduction (to the lowest applicable rate) of withholding of such United
States federal income tax, or (c) any representation or certification on any IRS
form or other documentation required to be furnished pursuant to Section 14.01
by a Lender or an Issuing Bank is, or proves to be, incorrect, false or
misleading when so made; provided, however, the Borrowers' obligations to pay
such additional amounts shall be reinstated upon receipt of such forms or
evidence that action with respect to obtaining such exemption or reduction has
been taken, but only to the extent such Lender or Issuing Bank is entitled to
such exemption or reduction.
14.07. Change in Lending Office. Any Lender claiming any additional
amounts payable pursuant to Section 14.01 shall use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the Domestic Lending Office designated by it for purposes of this
Agreement to a Domestic Lending Office in another jurisdiction, if the making of
such a change would avoid the need for, or reduce the amount of, any such
additional amounts which may thereafter accrue and would not, in the judgment of
such Lender, be otherwise disadvantageous to such Lender.
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ARTICLE XV
MISCELLANEOUS
15.01. Assignments and Participations. (a) Assignments. No
assignments or participations of any Lender's rights or obligations under this
Agreement shall be made except in accordance with this Section 15.01. Each
Lender may assign to one or more Eligible Assignees all or a portion of its
rights and obligations under this Agreement (including all of its rights and
obligations with respect to the Revolving Loans and the Letters of Credit) in
accordance with the provisions of this Section 15.01.
(b) Limitations on Assignments. Each assignment shall be subject to
the following conditions: (i) each such assignment shall be of a constant, and
not a varying, ratable percentage of all of the assigning Lender's rights and
obligations under this Agreement which are subject to such assignment and, in
the case of a partial assignment, shall be in a minimum principal amount of
$10,000,000, (ii) each such assignment shall be to an Eligible Assignee, (iii)
the U.S. Borrower shall have the right to approve each such Eligible Assignee
which is not an U.S. Affiliate of a Lender, which approval shall not be
unreasonably withheld or delayed and (iv) the parties to each such assignment
shall execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance. Upon such execution, delivery,
acceptance and recording in the Register, from and after the effective date
specified in each Assignment and Acceptance and agreed to by the Agent, (A) the
assignee thereunder shall, in addition to any rights and obligations hereunder
held by it immediately prior to such effective date, if any, have the rights and
obligations hereunder that have been assigned to it pursuant to such Assignment
and Acceptance and shall, to the fullest extent permitted by law, have the same
rights and benefits hereunder as if it were an original Lender hereunder, (B)
the assigning Lender shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights (other than those specifically surviving termination of this
Agreement) and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of such assigning Lender's rights and obligations under this Agreement, the
assigning Lender shall cease to be a party hereto), and (C) the Borrowers shall
execute and deliver to the assignee thereunder one or more Notes, as applicable,
evidencing their respective obligations to such assignee with respect to the
Loans.
(c) The Register. The Agent shall maintain at its address referred
to in Section 15.08 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register (the "Register") for the recordation of the names
and addresses of the Lenders and the Commitment of, and principal amount of the
Loans owing to, each Lender from time to time and whether such
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Lender is an original Lender or the assignee of another Lender pursuant to an
Assignment and Acceptance. The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrowers and each of
their Subsidiaries, the Agent and the Lenders may treat each Person whose name
is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrowers or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(d) Fee. Upon its receipt of an Assignment and Acceptance executed
by the assigning Lender and an Eligible Assignee and a processing and
recordation fee of $3,500 (payable by the assigning Lender or the assignee, as
shall be agreed between them), the Agent shall, if such Assignment and
Acceptance has been completed and is in compliance with this Agreement and in
substantially the form of Exhibit A, (i) accept such Assignment and Acceptance,
(ii) record the information contained therein in the Register and (iii) give
prompt notice thereof to the U.S. Borrower and the Lenders.
(e) Participations. Each Lender may sell participations to one or
more other financial institutions in or to all or a portion of its rights and
obligations under and in respect of any and all facilities under this Agreement
(including, without limitation, all or a portion of any or all of its Commitment
hereunder and the Loans owing to it and its undivided interest in the Letters of
Credit); provided, however, that (i) such Lender's obligations under this
Agreement (including, without limitation, its Commitment hereunder) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the Borrowers, the Agent
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 and (iv) such participant's rights to agree or to restrict such
Lender's ability to agree to the modification, waiver or release of any of the
terms of the Loan Documents or to the release of any Collateral covered by the
Loan Documents, to consent to any action or failure to act by any party to any
of the Loan Documents or any of their respective Affiliates, or to exercise or
refrain from exercising any powers or rights which any Lender may have under or
in respect of the Loan Documents or any Collateral, shall be limited to the
right to consent to (A) increase in the Commitment of the Lender from whom such
participant purchased a participation, (B) reduction of the principal of, or
rate or amount of interest on the Loans(s) subject to such participation (other
than by the payment or prepayment thereof), (C) postponement of any date fixed
for any payment of principal of, or interest on, the Loan(s) subject to such
participation amount or any date fixed for payment of fees and (D) release of
any guarantor of the Obligations or all or a substantial portion of the
Collateral except as provided in Section 13.09(c).
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(f) Information Regarding the Borrowers. Any Lender may, in
connection with any assignment or participation or proposed assignment or
participation pursuant to this Section 15.01, disclose to the assignee or
participant or proposed assignee or participant, any information relating to the
Borrowers or their Subsidiaries furnished to such Lender by the Agent or by or
on behalf of the Borrowers or either of them; provided that, prior to any such
disclosure, such assignee or participant, or proposed assignee or participant,
shall agree to preserve in accordance with Section 15.20 the confidentiality of
any confidential information described therein.
(g) Payment to Participants. Anything in this Agreement to the
contrary notwithstanding, in the case of any participation, all amounts payable
by the Borrowers under the Loan Documents shall be calculated and made in the
manner and to the parties required hereby as if no such participation had been
sold.
(h) Lenders' Creation of Security Interests. Notwithstanding any
other provision set forth in this Agreement, any Lender may at any time create a
security interest in all or any portion of its rights under this Agreement
(including, without limitation, Obligations owing to it and any Notes held by
it) in favor of any Federal Reserve bank in accordance with Regulation A of the
Federal Reserve Board.
(i) Assignments by Citicorp and/or Fleet. If Citicorp or Fleet
ceases to be a Lender under this Agreement by virtue of any assignment made
pursuant to this Section 15.01, then, as of the effective date of such
cessation, Citibank's and Fleet's (as applicable) obligations to issue Letters
of Credit pursuant to Section 3.01 shall terminate and Citibank and Fleet (as
applicable) shall be an Issuing Bank hereunder only with respect to outstanding
Letters of Credit issued prior to such date.
15.02. Expenses.
(a) Generally. The Borrowers jointly and severally agree upon demand
to pay, or reimburse the Agent for, all of the Agent's reasonable internal and
external audit, legal, appraisal, valuation, filing, document duplication and
reproduction and investigation expenses and for all other out-of-pocket costs
and expenses of every type and nature (including, without limitation, the
reasonable fees, expenses and disbursements of Sidley & Austin, local legal
counsel, auditors, accountants, appraisers, printers, insurance and
environmental advisers, and other consultants and agents) incurred by the Agent
in connection with (i) the Agent's review and investigation of the Borrowers and
their Affiliates and the Collateral in connection with the preparation,
negotiation, and execution of the Loan Documents and the Agent's periodic
reviews and audits of the Borrowers; (ii) the preparation, negotiation,
execution and interpretation
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of this Agreement (including, without limitation, the satisfaction or attempted
satisfaction of any of the conditions set forth in Article VI) and the other
Loan Documents and the making of the Loans and issuance of Letters of Credit
hereunder; (iii) the creation, perfection or protection of the Liens under the
Loan Documents (including, without limitation, any reasonable fees and expenses
for local counsel in various jurisdictions); (iv) the ongoing administration of
this Agreement, the other Loan Documents and the Loans, including consultation
with attorneys in connection therewith and with respect to the Agent's rights
and responsibilities under this Agreement and the other Loan Documents; (v) the
protection, collection or enforcement of any of the Obligations or the
enforcement of any of the Loan Documents; (vi) the commencement, defense or
intervention in any court proceeding relating in any way to the Obligations, the
Property, the Borrowers, any of their Subsidiaries, this Agreement or any of the
other Loan Documents; (vii) the response to, and preparation for, any subpoena
or request for document production with which the Agent is served or deposition
or other proceeding in which the Agent is called to testify, in each case,
relating in any way to the Obligations, the Property, the Borrowers, any of
their Subsidiaries, this Agreement or any of the other Loan Documents; and
(viii) any amendments, consents, waivers, assignments, restatements, or
supplements to any of the Loan Documents and the preparation, negotiation, and
execution of the same.
(b) After Default. The Borrowers further jointly and severally agree
to pay or reimburse the Agent, the Issuing Banks and the Lenders upon demand for
all out-of-pocket costs and expenses, including, without limitation, reasonable
attorneys' fees (including allocated costs of internal counsel and costs of
settlement) incurred by the Agent, any Issuing Bank or any Lender after the
occurrence of an Event of Default (i) in enforcing any Loan Document or
Obligation or any security therefor or exercising or enforcing any other right
or remedy available by reason of such Event of Default; (ii) in connection with
any refinancing or restructuring of the credit arrangements provided under this
Agreement in the nature of a "work-out" or in any insolvency or bankruptcy
proceeding; (iii) in commencing, defending or intervening in any litigation or
in filing a petition, complaint, answer, motion or other pleadings in any legal
proceeding relating to the Obligations, the Property, the Borrowers or any of
their Subsidiaries and related to or arising out of the transactions
contemplated hereby or by any of the other Transaction Documents; and (iv) in
taking any other action in or with respect to any suit or proceeding (bankruptcy
or otherwise) described in clauses (i) through (iii) above.
15.03. Indemnity. The Borrowers further jointly and severally agree
(a) to defend, protect, indemnify, and hold harmless the Agent and each and all
of the Lenders and Issuing Banks and each of their respective officers,
directors, employees, attorneys and agents (including, without limitation,
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those retained in connection with the satisfaction or attempted satisfaction of
any of the conditions set forth in Article VI) (collectively, the "Indemnitees")
from and against any and all liabilities, obligations, losses (other than loss
of profits), damages, penalties, actions, judgments, suits, claims, costs,
expenses and disbursements of any kind or nature whatsoever (excluding any taxes
and including, without limitation, the fees and disbursements of counsel for
such Indemnitees in connection with any investigative, administrative or
judicial proceeding, whether or not such Indemnitees shall be designated a party
thereto), imposed on, incurred by, or asserted against such Indemnitees in any
manner relating to or arising out of (i) this Agreement or the other Loan
Documents, or any act, event or transaction related or attendant thereto or to
the Subordinated Debt, the making of the Loans and the issuance of and
participation in Letters of Credit hereunder, the management of such Loans or
Letters of Credit, the use or intended use of the proceeds of the Loans or
Letters of Credit hereunder, or any of the other transactions contemplated by
any of the Transaction Documents, or (ii) any Liabilities and Costs relating to
any violation by either Borrower, any Subsidiary of either Borrower, or any
Guarantor, or their respective predecessors-in-interest of any Environmental,
Health or Safety Requirements of Law, the past, present or future operations of
the Borrowers, their Subsidiaries, any Guarantor, or any of their respective
predecessors in interest, or the past, present or future environmental, health
or safety condition (including, without limitation, the presence of
asbestos-containing material) of any respective past, present or future Property
of a Borrower, any Subsidiary of a Borrower, or a Guarantor, or the Release or
threatened Release of any Contaminant by a Borrower, any Subsidiary of a
Borrower, a Guarantor, or their respective predecessors-in-interest, or the
Release or threatened Release of any Contaminant from or at any facility to
which a Borrower, any Subsidiary of a Borrower, or a Guarantor, or their
respective predecessors-in-interest sent or directly arranged for the transport
of any Contaminant (collectively, the "Indemnified Matters"); provided, however,
the Borrowers shall have no obligation to an Indemnitee hereunder with respect
to Indemnified Matters caused by or resulting from the willful misconduct or
gross negligence of such Indemnitee, as determined by a court of competent
jurisdiction and (b) not to assert any claim against any of the Indemnified
Parties on any theory of liability for special, indirect, consequential or
punitive damages arising out of, or in any way in connection with, the
Commitments, the Obligations or any other matters governed by this Agreement
and/or the other Loan Documents. To the extent that the undertaking to
indemnify, pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the Borrowers
shall contribute the maximum portion which they are permitted to pay and satisfy
under applicable law, to the payment and satisfaction of all Indemnified Matters
incurred by the Indemnitees.
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15.04. Change in Accounting Principles. If any change in the
accounting principles used in the preparation of the most recent Financial
Statements referred to in Section 8.01 are hereafter required or permitted by
the rules, regulations, pronouncements and opinions of the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions) and are adopted by the
U.S. Borrower with the agreement of its independent certified public accountants
and such changes result in a change in the method of calculation of any of the
covenants, standards or terms found in Article IX, Article X, and Article XI,
the parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating compliance with such covenants, standards and terms
by the U.S. Borrower shall be the same after such changes as if such changes had
not been made; provided, however, no change in GAAP that would affect the method
of calculation of any of the covenants, standards or terms shall be given effect
in such calculations until such provisions are amended, in a manner satisfactory
to the Requisite Lenders and the Borrower, to so reflect such change in
accounting principles.
15.05. Setoff. In addition to any Liens granted under the Loan
Documents and any rights now or hereafter granted under applicable law, upon the
occurrence and during the continuance of any Event of Default, each Lender, each
Issuing Bank and any Affiliate of any Lender or Issuing Bank is hereby
authorized by each Borrower at any time or from time to time, without notice to
any Person (any such notice being hereby expressly waived) to set off and to
appropriate and to apply any and all deposits (general or special, including,
but not limited to, indebtedness evidenced by certificates of deposit, whether
matured or unmatured (but not including trust accounts)) and any other
Indebtedness at any time held or owing by such Lender, Issuing Bank or any of
their Affiliates to or for the credit or the account of such Borrower against
and on account of the Obligations of such Borrower to such Lender, Issuing Bank
or any of their Affiliates, including, but not limited to, all Loans and Letters
of Credit and all claims of any nature or description arising out of or in
connection with this Agreement, irrespective of whether or not (i) such Lender
or Issuing Bank shall have made any demand hereunder or (ii) the Agent, at the
request or with the consent of the Requisite Lenders, shall have declared the
principal of and interest on the Loans and other amounts due hereunder to be due
and payable as permitted by Article XII and even though such Obligations may be
contingent or unmatured. Each Lender and each Issuing Bank agrees that it shall
not, without the express consent of the Requisite Lenders, and that it shall, to
the extent it is lawfully entitled to do so, upon the request of the Requisite
Lenders, exercise its setoff rights hereunder against any accounts of a
Borrower, any of its Subsidiaries, or any Guarantor now or hereafter maintained
with such Lender, Issuing Bank or any Affiliate of such Lender or Issuing Bank.
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15.06. Ratable Sharing. The Lenders agree among themselves that (i)
with respect to all amounts received by them which are applicable to the payment
of the Obligations (including, without limitation, amounts applied to the
Obligations under Section 15.05, but excluding the fees described in Section
5.03 and Article XIV), equitable adjustment will be made so that, in effect, all
such amounts will be shared among them ratably in accordance with their Pro Rata
Shares, whether received by voluntary payment, by the exercise of the right of
setoff or banker's lien, by counterclaim or cross-action or by the enforcement
of any or all of the Obligations (excluding the fees described in Section 5.03
and Article XIV) or the Collateral, (ii) if any of them shall by voluntary
payment or by the exercise of any right of counterclaim, setoff, banker's lien
or otherwise, receive payment of a proportion of the aggregate amount of the
Obligations held by it, which is greater than the amount which such Lender is
entitled to receive hereunder, the Lender receiving such excess payment shall
purchase, without recourse or warranty, an undivided interest and participation
(which it shall be deemed to have done simultaneously upon the receipt of such
payment) in such Obligations owed to the others so that all such recoveries with
respect to such Obligations shall be applied ratably in accordance with their
Pro Rata Shares; provided, however, that if all or part of such excess payment
received by the purchasing party is thereafter recovered from it, those
purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such party to the extent necessary to adjust
for such recovery, but without interest except to the extent the purchasing
party is required to pay interest in connection with such recovery. Each
Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 15.06 may, to the fullest extent permitted by
law, exercise all its rights of payment (including, subject to Section 15.05,
the right of setoff) with respect to such participation as fully as if such
Lender were the direct creditor of such Borrower in the amount of such
participation.
15.07. Amendments and Waivers. (a) General Provisions. Unless
otherwise provided for or required in this Agreement, no amendment or
modification of any provision of this Agreement or any of the other Loan
Documents shall be effective without the written agreement of the Requisite
Lenders (which the Requisite Lenders shall have the right to grant or withhold
in their sole discretion) and the Borrowers or Guarantors party thereto. No
termination or waiver of any provision of this Agreement or any of the other
Loan Documents, or consent to any departure by either Borrower therefrom, shall
be effective without the written concurrence of the Requisite Lenders, which the
Requisite Lenders shall have the right to grant or withhold in their sole
discretion. All amendments, modifications, waivers and consents not specifically
reserved to Lenders, Issuing Banks, and the Agent in Section 15.07(b), Section
15.07(c) and in other provisions of this Agreement or any other Loan Document
shall
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require only the approval of the Requisite Lenders. Any waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which it was given. No notice to or demand on either Borrower in any case shall
entitle such Borrower or the other Borrower to any other or further notice or
demand in similar or other circumstances.
(b) Amendments, Consents and Waivers by Affected Lenders. Any
amendment, modification, termination, waiver or consent with respect to any of
the following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender or Issuing Bank affected thereby as described
below:
(i) waiver of any of the conditions specified in Sections 6.01 and 6.02
(except with respect to a condition based upon another provision of this
Agreement, the waiver of which requires only the concurrence of the
Requisite Lenders),
(ii) increase in the amount of the Commitment of such Lender,
(iii) reduction of the principal of, or rate or amount of interest on, the
Loans, the Reimbursement Obligations, or any fees or other amounts payable
to such Lender (other than by the payment or prepayment thereof),
(iv) postponement of the Revolving Credit Termination Date or any date
fixed for any payment of principal of, or interest on, the Loans, the
Reimbursement Obligations or any fees or other amounts payable to such
Lender,
(v) the orders of priority set forth in Section 4.01, in Section
4.02(b)(i), or in clauses (D) through (I) of Section 4.02(b)(ii), and
(vi) change in the definition of Revolving Credit Commitments.
(c) Amendments, Consents and Waivers by All Lenders. Any amendment,
modification, termination, waiver or consent with respect to any of the
following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender:
(i) release of any Guarantor or all or a substantial portion of the
Collateral (except as provided in Section 13.09(c)),
(ii) change in the (A) definition of Requisite Lenders or (B) the
aggregate Pro Rata Shares of the Lenders which shall be required for the
Lenders or any of them to take action under this Agreement or the other
Loan Documents,
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(iii) amendment of Section 15.01, Section 15.05 or this Section 15.07, and
(iv) assignment of any right or interest in or under this Agreement or any
of the other Loan Documents by a Borrower or a Guarantor.
(d) Agent Authority. The Agent may, but shall have no obligation to,
with the written concurrence of any Lender, execute amendments, modifications,
waivers or consents on behalf of that Lender. Notwithstanding anything to the
contrary contained in this Section 15.07, no amendment, modification, waiver or
consent shall affect the rights or duties of the Agent under this Agreement or
the other Loan Documents, unless made in writing and signed by the Agent in
addition to the Lenders required above to take such action; and the order of
priority set forth in clauses (A) through (C) of Section 4.02(b)(ii) may be
changed only with the prior written consent of the Agent. Notwithstanding
anything herein to the contrary, in the event that the Borrowers shall have
requested, in writing, that any Lender agree to an amendment, modification,
waiver or consent with respect to any particular provision or provisions of this
Agreement or the other Loan Documents, and such Lender shall have failed to
state, in writing, that it either agrees or disagrees (in full or in part) with
all such requests (in the case of its statement of agreement, subject to
satisfactory documentation and such other conditions it may specify) within
thirty (30) days after such request, then such Lender shall be deemed to not
have approved such amendment, modification, waiver or consent and the Agent
shall thereupon determine whether the Lenders required above to take the
requested action have approved the same within the required time and communicate
such determination to the U.S. Borrower and the Lenders.
15.08. Notices. Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given shall be
in writing and may be personally served, sent facsimile transmission or courier
service or United States certified mail and shall be deemed to have been given
when delivered in person or by courier service, upon receipt of a facsimile
transmission, or four (4) Business Days after deposit in the United States mail
with postage prepaid and properly addressed. Notices to the Agent pursuant to
Article II, IV or XIII shall not be effective until received by the Agent. For
the purposes hereof, the addresses of the parties hereto (until notice of a
change thereof is delivered as provided in this Section 15.08) shall be as set
forth below each party's name on the signature pages hereof or the signature
page of any applicable Assignment and Acceptance, or, as to each party, at such
other address as may be designated by such party in a written notice to all of
the other parties to this Agreement.
15.09. Survival of Warranties and Agreements. All representations
and warranties made herein shall survive
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execution and delivery of this Agreement and the other Loan Documents and all
obligations of the Borrowers in respect of Taxes, indemnification and expense
reimbursement shall survive the execution and delivery of this Agreement and the
other Loan Documents, the making and repayment of the Loans, the issuance and
discharge of Letters of Credit hereunder and the termination of this Agreement
and shall not be limited in any way by the passage of time or occurrence of any
event and shall expressly cover time periods when the Agent, any of the Issuing
Banks or any of the Lenders may have come into possession or control of any of
the Borrowers' or their Subsidiaries' Property.
15.10. Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of the Agent, any Lender or any Issuing Bank in the
exercise of any power, right or privilege under any of the Loan Documents shall
impair such power, right or privilege or be construed to be a waiver of any
default or acquiescence therein, nor shall any single or partial exercise of any
such power, right or privilege preclude any other or further exercise thereof or
of any other right, power or privilege. All rights and remedies existing under
the Loan Documents are cumulative to and not exclusive of any rights or remedies
otherwise available.
15.11. Marshalling; Payments Set Aside. None of the Agent, any
Lender or any Issuing Bank shall be under any obligation to xxxxxxxx any assets
in favor of either Borrower or any other Person or against or in payment of any
or all of the Obligations. To the extent that either Borrower or a Guarantor
makes a payment or payments to the Agent, the Lenders or the Issuing Banks or
any of such Persons receives payment from the proceeds of the Collateral or
exercises its rights of setoff, and such payment or payments or the proceeds of
such enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
a trustee, receiver or any other party, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens,
rights and remedies therefor, shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or setoff had
not occurred.
15.12. Severability. In case any provision in or obligation under
this Agreement or the other Loan Documents shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.
15.13. Headings. Section headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Agreement or be given any substantive effect.
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15.14. Governing Law. THIS AGREEMENT SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
15.15. Limitation of Liability. No claim may be made by either
Borrower, any Lender, any Issuing Bank, the Agent or any other Person against
the Agent, any other Issuing Bank or any other Lender or the Affiliates,
directors, officers, employees, attorneys or agents of any of them for any
special, consequential or punitive damages in respect of any claim for breach of
contract or any other theory of liability arising out of or related to the
transactions contemplated by this Agreement, or any act, omission or event
occurring in connection therewith; and each Borrower, each Lender, each Issuing
Bank and the Agent hereby waives, releases and agrees not to xxx upon any such
claim for any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor.
15.16. Successors and Assigns. This Agreement and the other Loan
Documents shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and
the successors and permitted assigns of the Lenders and the Issuing Banks.
Neither Borrower's rights or obligations hereunder, nor any interest therein,
may be assigned without the written consent of all Lenders.
15.17. Certain Consents and Waivers of the Borrowers.
(a) Personal Jurisdiction. (i) EACH OF THE AGENT, THE LENDERS, THE
ISSUING BANKS AND THE BORROWERS IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR
ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE
COURT OR FEDERAL COURT SITTING IN NEW YORK, NEW YORK, AND ANY COURT HAVING
JURISDICTION OVER APPEALS OF MATTERS HEARD IN SUCH COURTS, IN ANY ACTION OR
PROCEEDING ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, WHETHER ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, OR
FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE
EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH BORROWER IRREVOCABLY
DESIGNATES AND APPOINTS CT CORPORATION SYSTEM, INC., 0000 XXXXXXXX, XXX XXXX,
XXX XXXX 00000, AS ITS AGENT (THE "PROCESS AGENT") FOR SERVICE OF ALL PROCESS IN
ANY SUCH PROCEEDING IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED TO
BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. EACH OF THE AGENT, THE
LENDERS, THE ISSUING BANKS AND THE BORROWERS 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.
EACH BORROWER WAIVES IN ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT CONSIDERING THE DISPUTE.
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(ii) EACH BORROWER AGREES THAT THE AGENT SHALL HAVE THE RIGHT TO
PROCEED AGAINST SUCH BORROWER OR ITS PROPERTY IN A COURT IN ANY LOCATION TO
ENABLE THE AGENT, THE ISSUING BANKS AND THE LENDERS TO REALIZE ON THE COLLATERAL
OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER ENTERED IN FAVOR OF THE AGENT, ANY ISSUING BANK OR ANY LENDER. EACH
BORROWER AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY
PROCEEDING BROUGHT BY THE AGENT, ANY LENDER OR ANY ISSUING BANK TO REALIZE ON
THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE AGENT, ANY LENDER OR ANY ISSUING
BANK. EACH BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE
COURT IN WHICH THE AGENT, ANY ISSUING BANK OR ANY LENDER MAY COMMENCE A
PROCEEDING DESCRIBED IN THIS SECTION.
(b) Service of Process. EACH BORROWER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE PROCESS AGENT OR SUCH BORROWER'S NOTICE ADDRESS
SPECIFIED BELOW, SUCH SERVICE TO BECOME EFFECTIVE FIVE (5) DAYS AFTER SUCH
MAILING. EACH BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE
RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWERS IN
THE COURTS OF ANY OTHER JURISDICTION.
(c) Waiver of Jury Trial. EACH OF THE AGENT, LENDERS, ISSUING BANKS,
AND BORROWERS IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT. ANY OF THE BORROWERS, THE
AGENT, THE LENDERS, OR THE ISSUING BANKS MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(d) Judgment Currency. If for the purposes of obtaining judgment in
any court it is necessary to convert a sum due under this Agreement or any Note
in any currency (the "first currency") into another currency (the "second
currency"), the parties hereto agree, to the fullest extent permitted by law,
that the exchange rate used shall be that determined on the Business Day
preceding that on which final judgment is given. To the fullest extent permitted
by applicable law, the Obligation in respect of any sum due in a first currency
shall, notwithstanding any judgment in a second currency, be discharged only to
the extent that on the Business Day following receipt by any of the Agent,
Citibank London, any Lender or any Issuing Bank of any sum
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adjudged to be so due in the second currency, such Person may purchase the first
currency with the second currency at the exchange rate determined on the date of
such purchase; if the amount of the first currency so purchased is less than the
sum originally due to such Person in the first currency, each Borrower agrees,
as a separate obligation and notwithstanding any such judgment, to indemnify
such Person against such loss, and if the amount of the first currency so
purchases exceeds the sum originally due to such Person in the first currency,
such Person agrees to remit to the relevant Borrower such excess.
(e) Waiver of Immunity. To the extent that the European Borrower has
or hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its Property, the European Borrower hereby irrevocably waives such immunity
in respect of its Obligations and, without limiting the generality of the
foregoing, agrees that the waivers set forth in this Section 15.17(e) shall have
the fullest scope permitted under the Foreign Sovereign Immunities Act of 1976
of the United States and all other applicable Requirements of Law and are
intended to be irrevocable for purposes of such Act and other Requirements of
Law.
15.18. Counterparts; Effectiveness; Inconsistencies. This Agreement
and any amendments, waivers, consents, or supplements hereto may be executed in
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. This Agreement shall become effective against each Borrower,
each Lender, each Issuing Bank and the Agent on the Effective Date. This
Agreement and each of the other Loan Documents shall be construed to the extent
reasonable to be consistent one with the other, but to the extent that the terms
and conditions of this Agreement are actually inconsistent with the terms and
conditions of any other Loan Document, this Agreement shall govern.
15.19. Limitation on Agreements. All agreements between each
Borrower, the Agent, each Lender and each Issuing Bank in the Loan Documents are
hereby expressly limited so that in no event shall any of the Loans or other
amounts payable by the Borrowers under any of the Loan Documents be directly or
indirectly secured (within the meaning of Regulation U) by Margin Stock.
15.20. Confidentiality. Subject to Section 15.01(f), the Lenders and
the Issuing Banks shall hold all nonpublic information obtained pursuant to the
requirements of this Agreement and identified as such by the U.S. Borrower in
accordance with such Lender's or such Issuing Bank's customary procedures for
handling confidential information of this nature and in accordance with safe and
sound banking practices and in
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any event may make disclosure reasonably required by a bona fide offeree,
transferee or participant in connection with the contemplated transfer or
participation or as required or requested by any Governmental Authority or
representative thereof or pursuant to legal process and shall require any such
offeree, transferee or participant to agree (and require any of its offerees,
transferees or participants to agree) to comply with this Section 15.20. In no
event shall any Lender or any Issuing Bank be obligated or required to return
any materials furnished by the Borrowers; provided, however, each offeree shall
be required to agree that if it does not become a transferee or participant it
shall return all materials furnished to it by the Borrowers in connection with
this Agreement. Any and all confidentiality agreements entered into between any
Lender or any Issuing Bank and the Borrowers shall survive the execution of this
Agreement.
15.21. Entire Agreement; No Novation. This Agreement, taken together
with all of the other Loan Documents, embodies the entire agreement and
understanding among the parties hereto with respect to the subject matter hereof
and thereof and supersedes the Commitment Letter (except for provisions therein
specifically referred to herein). Upon this Agreement becoming effective, the
terms and provisions of the 1994 Credit Agreement and all prior agreements and
understandings, written and oral, relating to the subject matter hereof shall be
and hereby are amended, superseded and restated in their entirety by the terms
and provisions of this Agreement, except any provisions which survive
termination thereof. This Agreement shall not constitute a novation.
15.22. Advice of Counsel. The Borrowers and each Lender and Issuing
Bank understand that the Agent's counsel represents only the Agent's and its
Affiliates' interests and that the Borrowers, Lenders and Issuing Banks are
advised to obtain their own counsel. Each Borrower represents and warrants to
the Agent and the other Holders that it has discussed this Agreement with its
counsel.
15.23. Replacement of Lenders and Issuing Banks. (a) Lenders. In the
event a Lender has delivered to the U.S. Borrower a notice described in, or made
demand for additional amounts pursuant to, Section 14.01, 14.02 or 14.03, unless
the circumstances described in such notice or the conditions creating the cause
for such demand for such additional amounts, as the case may be, have been
cured, the U.S. Borrower may designate an Eligible Assignee to purchase the
Commitment of, and Notes issued to, such Lender and such Lender's rights and
obligations as a Lender hereunder subject to an Assignment and Acceptance for a
purchase price equal to the outstanding principal amount of the Notes issued to
such Lender plus accrued but unpaid interest thereon and accrued but unpaid fees
payable to such Lender under this Agreement and, upon execution and delivery of
an Assignment and Acceptance by such Lender, such Eligible Assignee, and the
Agent and the U.S. Borrower's payment to the Agent of the fee otherwise required
under Section 15.01(d) and
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payment to such Lender of amounts payable pursuant to Section 14.01, 14.02, and
14.03, such Lender shall cease to be a Lender and such Eligible Assignee shall
become a Lender in its stead.
(b) Issuing Banks. In the event an Issuing Bank is unable at any
time to issue Letters of Credit as and when required by the terms of this
Agreement, the U.S. Borrower and Agent may designate a financial institution
which is also a Lender as an Issuing Bank and, upon the execution and delivery
by such financial institution of its written agreement, in form and substance
satisfactory to the U.S. Borrower and Agent, to act as an Issuing Bank, such
financial institution shall thereupon become an Issuing Bank.
(c) Swing Loan Lender. In the event Citicorp is unwilling to
continue to provide Swing Loans in accordance with the provisions of Section
2.03, the U.S. Borrower and Agent may designate another Lender to make Swing
Loans hereunder and, upon the execution and delivery by such financial
institution of its written agreement, in form and substance satisfactory to the
U.S. Borrower and Agent, to so provide Swing Loans hereunder, such Lender shall
thereupon be substituted for Citicorp with respect to the provisions of Section
2.03 and all other terms of this Agreement relating to the making and repayment
of Swing Loans.
15.24. Limitation on Liability of European Borrower. Notwithstanding
anything to the contrary contained in this Agreement or in any other Loan
Document, the obligation of the European Borrower to make any payments under
this Agreement (other than in respect of Borrowings by the European Borrower
directly) is limited at any time to the then maximum amount that would not
result in a depletion of the European Borrower's stated share capital
(Stammkapital) as stated in the commercial register relating to the European
Borrower.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first above written.
BORROWERS: FREEDOM CHEMICAL COMPANY
By /s/ Xxxxx X. XxXxxxxx
--------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Secretary
FREEDOM CHEMICAL DIAMALT GmbH
By /s/ Xxxxx X. XxXxxxxx
--------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Attorney-in-Fact
Notice Address:
Mellon Center, Suite 3500
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Chief Financial Officer
Telecopier No. (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxxxxx & Xxxx Fund, L.P.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx
Telecopier No. (000) 000-0000
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AGENT: CITICORP USA, INC., as Agent
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx
Attorney-in-Fact
Notice Address:
Citicorp USA, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Telecopier No. (000) 000-0000
with a copy to:
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: XxXxxxxxx X. Xxxxxx
Telecopier No. (000) 000-0000
CITIBANK LONDON: CITIBANK INTERNATIONAL, plc
By /s/ Xxxxxxx Xxxxxx
--------------------------------
Xxxxxxx Xxxxxx
Vice President
Notice Address:
0xx Xxxxx Xxxxxxxxx Xxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx XX00 0XX
Attn: Xxxxxxx Xxxxxx
Telecopier: 000-000-000000000
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ISSUING BANKS: CITIBANK, N.A.
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx
Attorney-in-Fact
Notice Address:
Citibank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Telecopier No. (000) 000-0000
FLEET NATIONAL BANK
By /s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx
Managing Director
Notice Address:
Fleet National Bank
One Federal Street
3rd Floor, Mail Stop MAOF 0324
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Telecopier No. (000) 000-0000
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LENDER: CITICORP USA, INC.
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx
Attorney-in-Fact
Notice Address, Domestic Lending Office and
Eurocurrency Lending Office:
Citicorp USA, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Telecopier No. (000) 000-0000
Pro Rata Share: 25.88235294118%
Revolving Credit Commitment: $22,000,000
FLEET NATIONAL BANK
By /s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx
Managing Director
Notice Address, Domestic Lending Office and
Eurocurrency Lending Office:
Fleet National Bank
One Federal Street
3rd Floor
Mail Stop MAOF 0324
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Telecopier No. (000) 000-0000
Pro Rata Share: 21.17647058824%
Revolving Credit Commitment: $18,000,000
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CAISSE NATIONALE DE CREDIT AGRICOLE
By /s/ Xxxx Xxxxxx
--------------------------------
Xxxx Xxxxxx
Senior Vice President
Notice Address, Domestic Lending Office
and Eurocurrency Lending Office:
Caisse Nationale de Credit Agricole
00 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxx
Telecopier No. (000) 000-0000
Pro Rata Share: 17.64705882353%
Revolving Credit Commitment: $15,000,000
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BHF-BANK AKTIENGESELLSCHAFT
By /s/ Xxxxx X. Xxxx
--------------------------------
Xxxxx X. Xxxx
Assistant Vice President
By /s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx
Vice President
Notice Address, Domestic Lending Office
and Eurocurrency Lending Office:
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxx
Telecopier No. (000) 000-0000
Pro Rata Share: 17.64705882353%
Revolving Credit Commitment: $15,000,000
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THE BANK OF NEW YORK
By /s/ Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx
Vice President
Notice Address, Domestic Lending Office
and Eurocurrency Lending Office:
The Bank of New York
One Wall Street
Northeast Division
22nd Floor
New York, New York 10286
Attn: Xxxxx X. Xxxxxx
Telecopier No. (000) 000-0000
Pro Rata Share: 17.64705882353%
Revolving Credit Commitment: $15,000,000
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EXHIBITS
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Collection Account Agreement
Exhibit C -- Forms of Notes
Exhibit D -- Form of Notice of Borrowing
Exhibit E -- Form of Notice of Conversion/Continuation
Exhibit F -- Pro Forma Financial Statements
Exhibit G -- Projections
Exhibit H -- List of Closing Documents
Exhibit I -- Form of Officer's Certificate to Accompany Reports
Exhibit J -- Form of Letter to Accountants
Exhibit K -- Form of Consignee/Bailee Letters
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SCHEDULES
Schedule 1.01.1 -- Guarantors
Schedule 1.01.2 -- Existing Joint Ventures
Schedule 1.01.3 -- Permitted Equity Securities Options
Schedule 1.01.4 -- Permitted Existing Indebtedness
Schedule 1.01.5 -- Permitted Existing Investments
Schedule 1.01.6 -- Permitted Existing Liens
Schedule 1.01.7 -- Refinanced Indebtedness
Schedule 3.02 -- Existing Letters of Credit
Schedule 7.01-A -- Organizational Documents
Schedule 7.01-C -- Organizational Structure
Schedule 7.01-E -- Governmental Consents
Schedule 7.01-K -- Pending Actions
Schedule 7.01-L -- Compensation Matters
Schedule 7.01-S -- Environmental Matters
Schedule 7.01-T -- ERISA Matters
Schedule 7.01-V -- Labor Contracts
Schedule 7.01-Y -- Patent, Trademark & Permit Claims Pending
Schedule 7.01-AA -- Insurance Policies
Schedule 7.01-DD -- German Filing and Tax Requirements
Schedule 10.14 -- Collection Accounts
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EXHIBIT A
to
Amended and Restated Credit Agreement
dated as of October 11, 1996
--------------------------------------------------------------------------------
FORM OF ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ACCEPTANCE dated as of ________, 19__, between (the
"Assignor") and __________________ (the "Assignee").
PRELIMINARY STATEMENT
A. Reference is made to the Amended and Restated Credit Agreement
dated as of October 11, 1996 (as the same may be amended, supplemented, restated
or otherwise modified from time to time, the "Credit Agreement") among Freedom
Chemical Company (the "U.S. Borrower"), Freedom Chemical Diamalt GmbH (the
"European Borrower", and together with the U.S. Borrower, collectively, the
"Borrowers"), the institutions from time to time party thereto as Lenders and
Issuing Banks and Citicorp USA, Inc., as Agent for the Lenders and Issuing
Banks. Capitalized terms used herein and not otherwise defined herein are used
as defined in the Credit Agreement.
B. The Assignor is a Lender under the Credit Agreement and desires
to sell and assign to the Assignee, and the Assignee desires to purchase and
assume from the Assignor, on terms and conditions set forth below, a $_________
interest in the Assignor's Revolving Credit Commitment and related outstanding
Revolving Loans made thereunder (the "Assigned Interest") from the Assignor,
together with the Assignor's rights and obligations under the Credit Agreement
with respect to the Assigned Interest.
NOW, THEREFORE, the Assignor and the Assignee hereby agree as
follows:
1. In consideration of the Assignee's payment of $______________,
the Assignor hereby sells and assigns to the Assignee, and the Assignee hereby
purchases and assumes from the Assignor, the Assigned Interest, together with
the Assignor's rights and obligations under the Credit Agreement and all of the
other Loan Documents with respect to the Assigned Interest as of the date hereof
(after giving effect to any other assignments thereof made prior to the date
hereof, whether or not such assignments have become effective, but without
giving effect to any other assignments thereof also made on the date hereof)
including, without limitation, the obligation to make Revolving Loans and the
obligation to participate in Letters of Credit.
2. The Assignor (i) represents and warrants that as of the date
hereof its Revolving Credit Commitment is $___________ and its Pro Rata Share is
___ percent (___%)(after giving effect to any other assignments thereof made
prior to the date hereof, whether or not such assignments have become effective,
but without giving effect to any other assignments thereof made as of the date
hereof); (ii) represents and warrants that it is the legal and beneficial owner
of the interest being assigned by it hereunder and that such interest is free
and clear of any adverse claim; (iii) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or any of the
other Loan Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any of the other
Loan Documents or any other instrument or document furnished pursuant thereto;
and (iv) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrowers or the Guarantors or the
performance or observance by either Borrower or any Guarantor of any obligations
under the Credit Agreement or any of the other Loan Documents or any other
instrument or document furnished pursuant thereto or in connection therewith.
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit Agreement, together with copies of such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (iii) agrees
that it shall have no recourse against the Assignor with respect to any matter
relating to the Credit Agreement, any of the other Loan Documents, or this
Assignment and Acceptance (except with respect to the representations and
warranties made by the Assignor in clauses (i) and (ii) of paragraph 2 above);
(iv) agrees that it will, independently and without reliance upon the Agent, the
Assignor or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (v) confirms that it is
an Eligible Assignee; (vi) appoints and authorizes the Agent to take such action
as agent on its behalf and to exercise such powers under the Credit Agreement
and the other Loan Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (vii) agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of the Credit Agreement are required to be performed by it as a
Lender; [and] (viii) specifies as its Domestic Lending Office (and address for
notices) and Eurocurrency Lending Office(s) the offices set forth beneath its
name on the signature pages hereof [and (ix) attaches the forms prescribed by
the Internal Revenue Service of the United States certifying as to
A-2
the Assignee's status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to the Assignee under
the Credit Agreement and the Notes or such other documents as are necessary to
indicate that all such payments are subject to such rates at a rate reduced by
an applicable tax treaty]. (1)
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, it will be delivered to the Agent for acceptance and
recording by the Agent. The effective date of this Assignment and Acceptance
shall be the date of acceptance thereof by the Agent specified on the signature
page hereof (the "Effective Date").
5. As of the Effective Date, (i) the Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights (other than those specifically surviving the termination
of the Credit Agreement) and be released from its obligations under the Credit
Agreement with respect to the Assigned Interest.
6. From and after the Effective Date, the Agent shall make all
payments under the Credit Agreement and the Notes in respect of the Assigned
Interest (including, without limitation, all payments of principal, interest and
fees with respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Credit Agreement and the Notes
for periods prior to the Effective Date directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES HEREUNDER DETERMINED, IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
8. This Assignment and Acceptance may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
----------
(1) If the Assignee is organized under the laws of a jurisdiction outside the
United States.
A-3
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
[NAME OF ASSIGNOR], as a Lender
[and an Issuing Bank]
By ________________________________
Name:
Title:
Adjusted
Pro Rata Share: __________%
Adjusted Revolving Credit
Commitment: $__________
[NAME OF ASSIGNEE]
By _________________________________
Name:
Title:
Notice Address
and Domestic Lending Office:
[Address]
Eurocurrency Lending Office
or Eurocurrency Affiliate:
[Address]
Assigned Pro Rata Share: __________%
Assigned Revolving Credit
Commitment: $__________
A-4
Accepted this day
of __________, ____
CITICORP USA, INC., as Agent
By____________________________
Name:
Title:
[Consented to this ______ day
of ___________, ____
FREEDOM CHEMICAL COMPANY
By _____________________
Name:
Title:]
A-5
EXHIBIT B
to
Amended and Restated Credit Agreement
dated as of October 11, 1996
FORM OF COLLECTION ACCOUNT AGREEMENT
--------------------------------------------------------------------------------
(Attached)
COLLECTION ACCOUNT AGREEMENT
(With Lock Box)
TO: Citicorp USA, Inc. ("Citicorp"), acting as agent ("Agent") under that
certain Amended and Restated Credit Agreement dated as of October 11,
1996, (as amended, restated, modified or supplemented from time to time,
the "Credit Agreement") among Freedom Chemical Company ("FCC"), Freedom
Chemical Diamalt GmbH ("Diamalt"), the Agent and the financial
institutions from time to time parties thereto as "Lenders" and/or
"Issuing Banks".
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopier No. (000) 000-0000
RE: Deposit Account[s] No[s]. ____________
maintained with ____________________________________
This will confirm that [Relevant Guarantor (the "Company")][FCC] and the
undersigned collection bank (the "Bank") have agreed as follows with respect to
the above-referenced deposit account (the "Account").
1. [The Company][FCC] and the Bank acknowledge and confirm that all funds
now or at any time hereafter deposited to the Account and all of [the
Company's][FCC's] rights regarding such Account constitute part of the
collateral granted by [the Company][FCC] to [(i)] the Agent to secure certain
obligations of [the Company][FCC] to financial institutions for which the Agent
acts as agent [and (ii) FCC to secure the obligations of the Company under that
certain Intercompany Note dated as of [_____________, ____] (the "Intercompany
Note")] and that the Agent [and FCC] hold[s] a security interest in such funds.
2. A post box (the "Lock Box") has been rented in the name of [the
Company][FCC] at the ____________________________ Post Office and the respective
address to be used for such box is:
[Relevant Guarantor][FCC]
[Address]
3. Checks from [the Company's][FCC's] customers will be mailed to the
foregoing address. The Bank's authorized representatives will have access to the
Lock Box under the authority given by [the Company][FCC] to the Post Office and
will make regular pick-ups from the Lock Box timed to gain the maximum benefit
of early presentation and availability of funds. Checks so received will be
processed and, where possible, started on
B-2
their way through the regular channels for payment upon receipt by the Bank.
Credit for such items will be given in total on the Bank's books relating to the
Account. The Bank will present checks so received for payment through the
customary collection procedures and subject to the terms of the Bank's by-laws
covering the handling of items deposited with it. Collected funds on deposit in
the Account are to be electronically transferred on the date of deposit directly
to Citibank, N.A., Funding Account, Ref. Freedom Chemical Company, Citibank,
N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Account Number CUSA SAO Freedom
Chemical 40646594, attention: Xxxxx Xxxxx, or to such other account as the Agent
may designate in writing from time to time.
4. The Bank may charge the amounts of deposited customer checks that are
returned for any reason to the Account.
5. All monies in the Account will become the property of the Agent upon
deposit therein and [the Company][FCC] will have no interest therein or any
control thereover. The Account will not be subject to any deductions, setoff,
banker's liens, or any other right in favor of any person other than the Agent,
except for the amount of returned checks as provided in paragraph 4 above. All
charges incurred in connection with the administration of the Account will be
payable by [the Company] [FCC]. [The Company][FCC] and the Bank agree that
neither will close the Account without giving the Agent at least 60 days' prior
written notice.
6. At the end of each month, the Bank's regular statement covering the
deposits to and withdrawals from the Account is to be sent to [the Company][FCC]
at [Address of Relevant Guarantor or FCC], with a copy to the Agent, 399 Park
Avenue, 6th Floor, Xxxx 0, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxxxxx Xxxxxx.
7. This letter agreement is binding upon the Bank and [the Company][FCC]
and their successors and assigns and is enforceable by the Agent and its
successors and assigns. This letter agreement may not be modified except upon
the mutual consent of the Agent, the Bank, [and the Company][and FCC]. The Bank
and [the Company][FCC] waive notice of acceptance hereof by the Agent and of any
action taken or omitted in reliance hereon.
8. Governing Law. THIS AGREEMENT SHALL BE INTERPRETED, AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
9. Counterparts. This Collection Account Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
shall together constitute one and the same agreement.
B-3
DATE: ____________, _____
[RELEVANT GUARANTOR]
[FREEDOM CHEMICAL COMPANY]
By_________________________________
Name:
Title:
[NAME OF BANK]
By_________________________________
Name:
Title:
Address: __________________________
CITICORP USA, INC.
as Agent
By_________________________________
Name:
Title:
B-4
COLLECTION ACCOUNT AGREEMENT
(without Lock Box)
TO: Citicorp USA, Inc. ("Citicorp"), acting as agent ("Agent") under that
certain Amended and Restated Credit Agreement dated as of October 11,
1996, (as amended, restated, modified or supplemented from time to time,
the "Credit Agreement") among Freedom Chemical Company ("FCC"), Freedom
Chemical Diamalt GmbH ("Diamalt"), the Agent and the financial
institutions from time to time parties thereto as "Lenders" and/or
"Issuing Banks".
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopier No. (000) 000-0000
RE: Deposit Account[s] No[s]. ____________
maintained with ____________________________________
This will confirm that [Relevant Guarantor (the "Company")][FCC] and the
undersigned collection bank (the "Bank") have agreed as follows with respect to
the above-referenced deposit account (the "Account").
1. [The Company][FCC] and the Bank acknowledge and confirm that all funds
now or at any time hereafter deposited to the Account and all of [the
Company's][FCC's] rights regarding such Account constitute part of the
collateral granted by [the Company][FCC] to [(i)] the Agent to secure certain
obligations of [the Company][FCC] to financial institutions for which the Agent
acts as agent [and (ii) FCC to secure the obligations of the Company under that
certain Intercompany Note dated as of [_____________, _____] (the "Intercompany
Note")] and that the Agent [and FCC] hold[s] a security interest in such funds.
2. Checks from [the Company's][FCC's] customers will be deposited by [the
Company][FCC] from time to time in the Account. Checks so received will be
processed and, where possible, started on their way through the regular channels
for payment upon receipt by the Bank. Credit for such items will be given in
total on the Bank's books relating to the Account. The Bank will present checks
so received for payment through the customary collection procedures and subject
to the terms of the Bank's by-laws covering the handling of items deposited with
it. Collected funds on deposit in the Account are to be electronically
transferred on the date of deposit after one business day directly to Freedom
Chemical Company, Citibank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, XXX No.
000000000, Account Number CUSA SAO Freedom Chemical 40646594, attention: Xxxxx
Xxxxx, or to such other account as the Agent may designate in writing from time
to time.
B-5
3. The Bank may charge the amounts of deposited customer checks that are
returned for any reason to the Account.
4. All monies in the Account will become the property of the Agent upon
deposit therein and [the Company][FCC] will have no interest therein or any
control thereover. The Account will not be subject to any deductions, setoff,
banker's liens, or any other right in favor of any person other than the Agent,
except for the amount of returned checks as provided in paragraph 3 above. All
charges incurred in connection with the administration of the Account will be
payable by [the Company][FCC]. [The Company][FCC] and the Bank agree that
neither will close the Account without giving the Agent at least 60 days' prior
written notice.
5. At the end of each month, the Bank's regular statement covering the
deposits to and withdrawals from the Account is to be sent to [the Company][FCC]
at [Address of Relevant Guarantor or FCC], with a copy to the Agent, 399 Park
Avenue, 6th Floor, Xxxx 0, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxxxxx Xxxxxx.
6. This letter agreement is binding upon the Bank and [the Company][FCC]
and their successors and assigns and is enforceable by the Agent and its
successors and assigns. This letter agreement may not be modified or terminated
except upon the mutual consent of the Agent, the Bank, [and the Company][and
FCC]. The Bank and [the Company][FCC] waive notice of acceptance hereof by the
Agent and of any action taken or omitted in reliance hereon.
7. Governing Law. THIS AGREEMENT SHALL BE INTERPRETED, AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
8. Counterparts. This Collection Account Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
shall together constitute one and the same agreement.
B-6
DATE: ___________, _____
[RELEVANT GUARANTOR]
[FREEDOM CHEMICAL COMPANY]
By________________________________
Name:
Title:
[NAME OF BANK]
By________________________________
Name:
Title:
Address:__________________________
CITICORP USA, INC.
as Agent
By________________________________
Name:
Title:
B-7
EXHIBIT C-1
to
Amended and Restated Credit Agreement
dated as of October 11, 1996
FORM OF REVOLVING NOTE
--------------------------------------------------------------------------------
PROMISSORY NOTE
(Revolving Loans)
[Date]
FOR VALUE RECEIVED, the undersigned, [FREEDOM CHEMICAL COMPANY, a
Delaware corporation] [FREEDOM CHEMICAL DIAMALT GmbH, a corporation formed under
the laws of The Federal Republic of Germany] (the "Borrower"), HEREBY PROMISES
TO PAY to the order of _______________________ (the "Lender"), on the Revolving
Credit Termination Date, the aggregate principal amount of the Revolving Loans
made by the Lender to the Borrower pursuant to that certain Amended and Restated
Credit Agreement dated as of October 11, 1996 among the Borrower, [Freedom
Chemical Diamalt GmbH][Freedom Chemical Company], the Lender, the other
financial institutions from time to time a party thereto as Lenders and Issuing
Banks, and Citicorp USA, Inc., a Delaware corporation, as Agent for the Lenders
and Issuing Banks (as the same may be amended, restated, supplemented, or
otherwise modified from time to time, the "Credit Agreement") then outstanding.
The Borrower further promises to pay interest on the unpaid
principal amount of each Revolving Loan made to the Borrower from the date
advanced until such principal amount is paid in full, at such interest rates
(which shall not exceed the maximum rate permitted by applicable law), and at
such times, as are specified in the Credit Agreement.
All payments of principal and interest in respect of each Revolving
Loan made by the Lender to the Borrower (i) if denominated in Dollars, shall be
made in lawful money of the United States of America and (ii) if denominated in
an Alternative Currency, shall be made in such Alternative Currency, in either
case, to the Agent at the Applicable Payment Office in same day funds for the
account of the Lender in accordance with the terms of the Credit Agreement. Each
Revolving Loan made by the Lender to the Borrower pursuant to the Credit
Agreement, and all payments made on account of principal thereof, shall be
recorded by the Lender on its books and records.
This Promissory Note is issued pursuant to the Credit Agreement, and
is entitled to the benefit of and security granted pursuant to the Loan
Documents referenced therein. Capitalized terms used herein, and not otherwise
defined herein, shall have the meanings ascribed to such terms in the Credit
Agreement.
This Promissory Note is one of the Notes referred to in, is executed
and delivered by the Borrower pursuant to the terms of, and is entitled to the
benefits of, the Credit Agreement, to which reference is hereby made for a more
complete statement of the terms and conditions under which the Revolving Loans
evidenced hereby are made and are to be repaid, including, without limitation,
provisions for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified. [This Promissory Note is
issued in substitution for certain Promissory Notes (Revolving Loan) executed
and delivered by the Borrower (the "Original Revolving Notes") and is not in
repayment of the Original Revolving Notes, and is in no way intended to
constitute a novation of the Original Revolving Notes.] (1)
Upon the occurrence of certain Events of Default as more
particularly described in the Credit Agreement, the unpaid principal amount
evidenced by this Promissory Note shall become, and upon the occurrence and
during the continuance of certain other Events of Default, such unpaid principal
amount may be declared to be, due and payable in the manner, upon the
conditions, and with the effect provided in the Credit Agreement.
Demand, presentment, diligence, protest and notice of nonpayment are
hereby waived by the Borrower.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrower has caused this Promissory Note to
be executed and delivered by its duly authorized officer as of the day and year
first above written.
[FREEDOM CHEMICAL COMPANY]
[FREEDOM CHEMICAL DIAMALT GmbH]
By__________________________________________
Name:
Title:
----------
(1) To be included in the Revolving Notes executed and delivered by the U.S.
Borrower on the Effective Date.
C-1-2
EXHIBIT C-2
to
Amended and Restated Credit Agreement
dated as of October 11, 1996
FORM OF SWING NOTE
--------------------------------------------------------------------------------
SWING LOAN NOTE
[Date]
FOR VALUE RECEIVED, the undersigned, [FREEDOM CHEMICAL COMPANY, a
Delaware Corporation][FREEDOM CHEMICAL DIAMALT GmbH, a corporation formed under
the laws of The Federal Republic of Germany] ("Borrower"), hereby PROMISES TO
PAY to the order of Citicorp USA, Inc., a Delaware corporation ("Lender"), the
aggregate outstanding principal amount of the Swing Loans made by Lender to the
Borrower pursuant to that certain Amended and Restated Credit Agreement dated as
of October 11, 1996 among the Borrower, [Freedom Chemical Company][Freedom
Chemical Diamalt GmbH], the Lender, the other financial institutions from time
to time a party thereto as Lenders and Issuing Banks, and Citicorp USA, Inc., a
Delaware corporation, as Agent for the Lenders and Issuing Banks (as the same
may be amended, restated, supplemented, or otherwise modified from time to time,
the "Credit Agreement"), if denominated in Dollars, on the earlier of Lender's
demand therefor or the Friday next succeeding the Funding Date therefor and, if
denominated in an Alternative Currency, one week after the Funding Date
therefor.
The Borrower further promises to pay interest on the unpaid
principal amount of each Swing Loan made to the Borrower from the date advanced
until such principal amount is paid in full, at such interest rates (which shall
not exceed the maximum rate permitted by applicable law), and at such times, as
are specified in the Credit Agreement.
All payments of principal and interest in respect of this Swing Loan
Note (i) if denominated in Dollars, shall be made in lawful money of the United
States of America to the Agent at its office in New York, New York and (ii) if
denominated in an Alternative Currency, shall be made in such Alternative
Currency, to Citibank London at its office in London, England, in each case, in
same day funds for the account of the Lender in accordance with the terms of the
Credit Agreement. Each Swing Loan made by the Lender to the Borrower pursuant to
the Credit Agreement, and all payments made on account of principal thereof,
shall be recorded by the Lender on its books and records.
This Swing Loan Note is issued pursuant to the Credit Agreement, and
is entitled to the benefit of and security granted
pursuant to the Loan Documents referenced therein. Capitalized terms used
herein, and not otherwise defined herein, shall have the meanings ascribed to
such terms in the Credit Agreement.
This Swing Loan Note is one of the Notes referred to in, is executed
and delivered by the Borrower pursuant to the terms of, evidences Swing Loans
made by Lender to Borrower pursuant to, and is entitled to the benefits of, the
Credit Agreement, to which reference is hereby made for a more complete
statement of the terms and conditions under which the Swing Loans evidenced
hereby are made and are to be repaid, including, without limitation, provisions
for prepayments on account of principal hereof prior to the maturity hereof upon
the terms and conditions, therein specified. [This Swing Loan Note is issued in
substitution for that certain Swing Loan Note dated November 4, 1994, executed
and delivered by the Borrower (the "Original Swing Loan Note") and is not in
repayment of the Original Swing Loan Note, and is in no way intended to
constitute a novation of the Original Swing Loan Note.] (1)
Upon the occurrence of certain Events of Default as more
particularly described in the Credit Agreement, the unpaid principal amount
evidenced by this Swing Loan Note shall become, and upon the occurrence and
during the continuance of certain other Events of Default, such unpaid principal
amount may be declared to be, due and payable in the manner, upon the conditions
and with the effect provided in the Credit Agreement.
Demand, presentment, diligence, protest and notice of nonpayment are
hereby waived by the Borrower.
THIS SWING LOAN NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrower has caused this Promissory Note to
be executed and delivered by its duly authorized officer as of the day and year
first above written.
[FREEDOM CHEMICAL COMPANY]
[FREEDOM CHEMICAL DIAMALT GmbH]
By: _______________________________
Name:
Title:
----------
(1) To be included in the Swing Loan Note executed and delivered by the U.S.
Borrower on the Effective Date.
C-2-2
EXHIBIT D
to
Amended and Restated Credit Agreement
dated as of October 11, 1996
FORM OF NOTICE OF BORROWING
--------------------------------------------------------------------------------
[Date]
Citicorp USA, Inc., as Agent
for the Lenders and Issuing Banks
party to the Credit Agreement
referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Gentlemen:
Reference is hereby made to that certain Amended and Restated Credit
Agreement dated as of October 11, 1996 (as the same may be amended,
supplemented, restated or otherwise modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among Freedom Chemical Company, a Delaware corporation (the "U.S. Borrower"),
Freedom Chemical Diamalt GmbH, a corporation organized under the laws of The
Federal Republic of Germany (the "European Borrower"), the institutions from
time to time party thereto as Lenders and Issuing Banks, and Citicorp USA, Inc.,
as Agent for the Lenders and Issuing Banks.
The U.S. Borrower hereby gives you notice, irrevocably, pursuant to
[Section 2.01(c)][Section 2.02(b)] of the Credit Agreement that the
[U.S.][European] Borrower hereby requests a Borrowing of [Revolving Loans][Swing
Loans] under the Credit Agreement and, in that connection, sets forth below the
information relating to such Borrowing (the "Proposed Borrowing") as required
pursuant to the terms of the Credit Agreement:
The Business Day of the Proposed Borrowing is _______, ____.
The principal amount of the Proposed Borrowing is ______________.
The Proposed Borrowing will be denominated in [Dollars][Pounds
Sterling][French Francs][DM].
The [Revolving Credit] [Swing Loan] Availability, in the applicable
currency of the Proposed Borrowing, as of the date of this Notice of
Borrowing is ___________.
[The unfunded portion of the Multicurrency Sublimit as
of the date of this Notice of Borrowing is $__________.]
The Proposed Borrowing will consist of [Base Rate Loans]
[Eurocurrency Rate Loans].
[The initial Eurocurrency Interest Period for each Eurocurrency Rate
Loan made as part of the Proposed Borrowing is _____ month[s][one week].]
The Proposed Borrowing will be made by the [U.S.][European]
Borrower.
The instructions for disbursement of the proceeds of the Proposed
Borrowing are as set forth in the attached Disbursement Authorization of
even date herewith.
The U.S. Borrower hereby certifies that the conditions precedent
contained in Section 6.02 are satisfied on the date hereof and will be satisfied
on the date of the Proposed Borrowing.
FREEDOM CHEMICAL COMPANY
By___________________________________
Title:
[Attach Disbursement Instructions]
D-2
EXHIBIT E
to
Amended and Restated Credit Agreement
dated as of October 11, 1996
FORM OF NOTICE OF CONVERSION/CONTINUATION
--------------------------------------------------------------------------------
[Date]
Citicorp USA, Inc., as Agent
for the Lenders and Issuing Banks
party to the Credit Agreement
referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Gentlemen:
Reference is made to that certain Amended and Restated Credit
Agreement dated as of October 11, 1996 (as the same may be amended,
supplemented, restated or otherwise modified from time to time, the "Credit
Agreement", terms defined therein being used herein as therein defined), among
Freedom Chemical Company, a Delaware corporation (the "U.S. Borrower"), Freedom
Chemical Diamalt GmbH, a corporation organized under the laws of The Federal
Republic of Germany (the "European Borrower"), the institutions from time to
time party thereto as Lenders and Issuing Banks and Citicorp USA, Inc., as Agent
for the Lenders and Issuing Banks.
The U.S. Borrower hereby gives you notice pursuant to Section
5.01(c)(ii) of the Credit Agreement that the [U.S.][European] Borrower hereby
elects to(1):
1. Convert $__________ in aggregate principal amount of Revolving
Loans which are Base Rate Loans from Base Rate Loans to Eurocurrency Rate Loans
denominated in Dollars on ____________, _____(2). The initial Interest Period
for such Eurocurrency Rate Loans is requested to be _____ month[s].
----------
(1) Include those items that are applicable, completed appropriately for the
circumstances.
(2) Date of conversion must be a Business Day.
2. Convert ____________ in aggregate principal amount of Revolving
Loans which are Eurocurrency Rate Loans denominated in Dollars with a current
Interest Period ending ____________, _____, to Base Rate Loans. (3)
3. Continue as Eurocurrency Rate Loans __________ in aggregate
principal amount of Eurocurrency Rate Loans with a current Interest Period
ending ____________, _____. The succeeding Interest Period for such Eurocurrency
Rate Loans is requested to be _____ month[s].
The U.S. Borrower hereby certifies that on the date hereof there are
no prohibitions under the Credit Agreement to the requested
conversion/continuation, and no such prohibitions will exist on the date of the
requested conversion/continuation.
FREEDOM CHEMICAL COMPANY
By______________________________
Title:
----------
(3) The Conversion of Eurocurrency Rate Loans to Base Rate Loans shall be made
on, and only on, the last day of the Interest Period for such Eurocurrency Rate
Loans.
E-2
EXHIBIT F
to
Amended and Restated Credit Agreement
dated as of October 11, 1996
PRO FORMA FINANCIAL STATEMENTS
--------------------------------------------------------------------------------
(Attached)
================================================================================
SECTION I FREEDOM CHEMICAL COMPANY
EXECUTIVE SUMMARY CONFIDENTIAL INFORMATION MEMORANDUM
================================================================================
D. PRO FORMA CAPITALIZATION
The following table sets forth Freedom's estimated pro forma capitalization as
of June 30, 1996, adjusted to reflect the consummation of the Transactions.
------------------------------------------------------------------------------
PRO FORMA CAPITALIZATION
($ millions)
------------------------------------------------------------------------------
Debt: Amount Percentage
----- ------ ----------
Revolving Credit Facility $12.0 7.1%
Other Debt(1) 3.1 1.8%
Subordinated Notes 125.0 73.5%
----- -----
Total Debt $140.1 82.3%
Book Equity:
Preferred Stock 42.9 25.2%
Common Equity(2) (12.8) (7.5)%
------ ------
Total Book Equity $30.1 17.7%
Total Book Capitalization(3) $170.1 100.0%
------------------------------------------------------------------------------
(1) Includes Notes Payable, Capitalized Leases and the FCD Construction loan.
(2) Excludes tax benefit from the write off of existing deferred financing fees
and assumes $2.5 million of new deferred financing fees are written off.
(3) Excludes Minority Interest.
------------------------------------------------------------------------------
F-2
EXHIBIT G
to
Amended and Restated Credit Agreement
dated as of October 11, 1996
PROJECTIONS
--------------------------------------------------------------------------------
(Not included)
EXHIBIT H
to
Amended and Restated Credit Agreement
dated as of October 11, 1996
LIST OF CLOSING DOCUMENTS
--------------------------------------------------------------------------------
(Attached)
Senior Secured Revolving Credit Facility
to
Freedom Chemical Company
and
Freedom Chemical Diamalt GmbH
October 11, 1996
LIST OF CLOSING DOCUMENTS
Capitalized terms used in this List of Closing Documents which are not defined
herein are used as defined in the Credit Agreement. When used herein, the
following names shall refer to the entities set forth opposite such names:
A-Chem A-Chem (U.K.), Limited, a company organized under the
laws of England.
Agent Citicorp, in its capacity as agent under the Credit
Agreement
Agricole Caisse Nationale de Credit Agricole
BHF BHF-Bank Aktiengesellschaft
BONY The Bank of New York, a New York banking corporation
Borrowers Freedom and Diamalt
Citibank Citibank, N.A., a national banking
association
Citicorp Citicorp USA, Inc., a Delaware corporation
Closing Date October 11, 1996
Credit Agreement Amended and Restated Credit Agreement dated as of the
Closing Date among the Borrowers, the Agent, the
Lenders and the Issuing Bank
Diamalt Freedom Chemical Diamalt GmbH, a corporation
organized under the laws of The Federal Republic of
Germany
Effective Date October 17, 1996
FCCAC FCC Acquisition Corp., a Delaware corporation
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Fleet Fleet National Bank, a national banking association
Freedom Freedom Chemical Company, a Delaware corporation
Freedom Europe Freedom Europe B.V., a corporation organized under
the laws of The Netherlands
Hilton Hilton Davis Chemical Co., a Delaware corporation
Issuing Banks Citibank and Fleet
Kalama Kalama Chemical, Inc., a Washington corporation
KFSC Kalama Foreign Sales Corporation, a corporation
organized under the laws of Guam
KSCI Kalama Specialty Chemicals, Inc., a Washington
corporation
Lenders Citicorp, Fleet, Agricole, BONY, and BHF, as
signatories to the Credit Agreement on the Closing
Date and those financial institutions which become
parties to the Credit Agreement pursuant to an
Assignment and Acceptance Agreement after the Closing
Date
1994 Credit
Agreement Amended and Restated Credit Agreement dated as of May
26, 1994 among Freedom, Citicorp, as agent, the
lender parties thereto and the issuing bank
thereunder
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Subsidiary
Guarantors FCCAC, Hilton, Kalama, KFSC, KSCI, Textile, Textile
SC and Diamalt (each individually a "Subsidiary
Guarantor")
Textile Freedom Textile Chemicals Co., a Delaware corporation
Textile SC Freedom Textile Chemical Company (South Carolina),
Inc., a Delaware corporation
A. Loan Documents
1. Amended and Restated Credit Agreement pursuant to which the 1994
Credit Agreement is amended and restated, together with exhibits and schedules
attached thereto and described on Schedule A attached hereto.
2. Promissory Notes executed by Freedom and made payable to (a) the
Lenders evidencing the Revolving Loans made to Freedom and (b) Citicorp
evidencing the Swing Loans made to Freedom.
3. Promissory Notes executed by Diamalt and made payable to (a) the
Lenders evidencing the Revolving Loans made to Diamalt and (b) Citicorp
evidencing the Swing Loans made to Diamalt.
4. Copies of Letters of Credit continuing outstanding as of the
Effecitve Date issued by Citibank as more particularly described on Schedule B
attached hereto.
5. Notice of Conversion/Continuation dated the Closing Date executed
by Freedom.
6. Notice of Borrowing dated the Closing Date executed by Freedom on
behalf of Diamalt.
7. Funding Indemnity Agreement dated the Closing Date executed by
Freedom and acknowledged by the Agent on behalf of the Lenders.
8. Officer's Certificate dated the Closing Date executed by the
Chief Financial Officer of Freedom certifying the authorization of certain
officers of the Borrowers required under Section 2.03 of the Credit Agreement.
9. Disbursement Authorization dated the Effective Date with respect
to disbursements of proceeds of Loans made on the Effective Date.
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10. Officer's Certificate dated the Effective Date executed by the
Chief Financial Officer of Freedom certifying that the conditions precedent to
the Credit Agreement becoming effective have been satisfied.
11. Guaranties executed by Freedom and Diamalt, respectively,
pursuant to which each guaranties the payment and performance of the Obligations
of the other.
12. Guaranties executed by KFSC and KSCI, respectively, pursuant to
which each guaranties the payment and performance of the Obligations.
13. Amended and Restated Contribution Agreement dated as of the
Effective Date executed by the Subsidiary Guarantors and Diamalt.
B. Reaffirmation Documents
14. Reaffirmation Agreement dated as of the Effective Date executed
by Freedom and accepted by the Agent.
15. Reaffirmation Agreement dated as of the Effective Date executed
by Hilton and accepted by the Agent.
16. Reaffirmation Agreement dated as of the Effective Date executed
by Kalama and accepted by the Agent.
17. Reaffirmation Agreement dated as of the Effective Date executed
by Textile and accepted by the Agent.
18. Reaffirmation Agreement dated as of the Effective Date executed
by FCCAC and accepted by the Agent.
19. Reaffirmation Agreement dated as of the Effective Date executed
by Textile SC and accepted by the Agent.
C. UCC Financing Statements/PPSA Filing & Fixture Filings
20. UCC Financing Statements naming the Borrower and the respective
Subsidiary Guarantors as debtors and the Agent as the secured party filed in the
offices listed on Schedule C attached hereto.
21. UCC Fixture Filings naming the Borrower and the respective
Subsidiary Guarantors as debtors and the Agent as the secured party filed in the
offices listed on Schedule C.
22. UCC Financing Statements naming the respective Subsidiary
Guarantors as debtors, the Borrower as the secured party and the Agent as
assignee in the offices listed on Schedule C.
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23. UCC Fixture Filings naming the respective Subsidiary Guarantors
as debtors, the Borrower as the secured party and the Agent as assignee filed in
the offices listed on Schedule C.
24. Bailee UCC Financing Statement naming Dyna-Bulk, Inc., a bailee
of Kalama, as debtor filed in the office listed on Schedule C.
25. PPSA Financing Statement naming Hilton as debtor and filed in
the office of the Personal Property Security Act Registry of Ontario, Canada.
D. Security Documents
26. Release of Share Pledge Agreement made by each of the agent,
lenders and issuing bank party to the l994 Credit Agreement.
27. Share Pledge Agreement dated as of the Effective Date and
executed by Freedom and Hilton evidencing the pledge of the capital stock of
Diamalt and Ratification executed by the Agent, Lenders, and Issuing Banks.
28. Release of equitable charge executed and delivered by Citicorp,
as agent under the l994 Credit Agreement pursuant to which the Lien on the
A-Chem (U.K.), Limited capital stock is released.
29. Deed of Charge dated as of the Effective Date executed by
Textile and the Agent for the benefit of the Holders, together with share
certificates representing the same and an executed undated share transfer form
in blank.
30. Evidence of submission of the Deed of Charge for registration in
the Slavenburg Register maintained by Companies House and confirmation that it
is not registrable.
31. Application for a stop order from the Chancery Division of the
High Court of Justice and evidence of the granting and notice thereof.
32. Global Assignment Agreement dated as of the Effective Date
executed by Diamalt and the Agent.
33. Security Transfer Agreement dated as of the Effective Date
executed by Diamalt and the Agent.
34. Grundschuld dated as of the Effective Date made by Diamalt in
favor of the Agent and Ratification by Xx. Xxxxxx Xxxx as Managing Director of
Diamalt.
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35. Account Pledge Agreement dated as of the Effective Date executed
by Diamalt and ratified by each of the Agent, Lenders and Issuing Banks together
with acknowledgement letters from each of the following Collection Account
Banks:
a. BHF, Munich;
b. Hypobank, Haar; and
c. Citibank AG (European Concentration Account).
36. Security Agreement executed by KFSC in favor of the Agent for
the benefit of the Holders evidencing KFSC's grant of a security interest in all
of its personal property as security for the Obligations and its obligations
under its Guaranty.
37. Security Agreement executed by KSCI in favor of the Agent for
the benefit of the Holders evidencing KSCI's grant of a security interest in all
of its personal property as security for the Obligations and its obligations
under its Guaranty.
38. Demand Promissory Note (" KFSC Intercompany Note") executed by
KFSC, payable to Freedom, and endorsed to the Agent.
39. Demand Promissory Note ("KSCI Intercompany Note") executed by
KSCI, payable to Freedom, and endorsed to the Agent.
40. Security Agreement executed by KSFC in favor of Freedom
evidencing KSFC's grant of a security interest in all of its personal property
as security for its obligations under the KSFC Intercompany Note.
41. Security Agreement executed by KSCI in favor of Freedom
evidencing KSFC's grant of a security interest in all of its personal property
as security for its obligations under the KSCI Intercompany Note.
42. Mortgage Modification Agreements dated as of the Effective Date
and executed by the mortgagors of Real Property under the documents described on
Schedule D attached hereto.
43. Reaffirmation of Collateral Assignment Agreements dated as of
the Effective Date executed by Freedom in favor of the Agent with respect to the
Real Property locations described on Schedule D attached hereto.
E. Corporate Documents
44. Certificate of the Secretary of Freedom certifying (i) the names
and signatures of the officers of Freedom authorized to sign the Credit
Agreement, Notes, Reaffirmation Agreement, and all other Loan Documents executed
by Freedom, and all reports, certificates and other documents required under the
Credit Agreement, (ii) that attached thereto is a true and
H-7
complete copy of the Certificate of Incorporation and the By-Laws of Freedom as
in efffect on the date of such certificate, (iii) that attached thereto is a
true and complete copy of the resolutions of Freedom's Board of Directors
approving and authorizing the execution, delivery and performance of the Credit
Agreement, Notes, Reaffirmation Agreement, and all other Loan Documents executed
by Freedom, and (iv) that the Agent, each Lender and the Issuing Bank may
conclusively rely on such certificate until the Agent, each Lender and the
Issuing Bank shall receive a further certificate of the Secretary of Freedom
amending the prior such certificate to change the names of authorized officers
and submitting the signatures of the officers named in such further certificate.
45. Certificate of an Officer of Diamalt certifying (i) the names
and signatures of the officers of Diamalt authorized to sign the Credit
Agreement, Notes, Guaranty, and all other Loan Documents executed by Diamalt,
and all reports, certificates and other documents required under the Credit
Agreement, (ii) that attached thereto is a true and complete copy of the
Articles of Assocation of Diamalt as in efffect on the date of such certificate,
(iii) that attached thereto is a true and complete copy of the resolutions of
Diamalt's shareholders approving and authorizing the execution, delivery and
performance of the Credit Agreement, Notes, Guaranty, and all other Loan
Documents executed by Diamalt, and (iv) that the Agent, each Lender and the
Issuing Bank may conclusively rely on such certificate until the Agent, each
Lender and the Issuing Bank shall receive a further certificate of the Secretary
of Freedom amending the prior such certificate to change the names of authorized
officers and submitting the signatures of the officers named in such further
certificate.
46. Power of Attorney authorizing certain officers of Freedom as
signatories on behalf of Diamalt for purpose of executing various Loan
Documents.
47. Certificates of the Secretaries of the respective Subsidiary
Guarantors certifying (i) the names and signatures of the officers of the
respective Subsidiary Guarantor authorized to sign the Reaffirmation Agreement
executed and delivered on behalf of such Subsidiary Guarantor and all other Loan
Documents executed by such Subsidiary Guarantor, and all reports, certificates
and other documents required thereunder, (ii) that attached thereto is a true
and complete copy of the Certificate/Articles of Incorporation and the By-Laws
of such Subsidiary Guarantor as in efffect on the date of such certificate,
(iii) that attached thereto is a true and complete copy of the resolutions of
such Subsidiary Guarantor's Board of Directors approving and authorizing the
execution, delivery and performance of the Reaffirmation Agreement and other
Loan Documents executed by such Subsidiary Guarantor, and (iv) that the Agent,
each Lender and the Issuing Bank may conclusively rely on such certificate until
the Agent, each Lender and the Issuing
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Bank shall receive a further certificate of the Secretary of such Subsidiary
Guarantor amending the prior such certificate to change the names of authorized
officers and submitting the signatures of the officers named in such further
certificate.
48. Certificates/Articles of Incorporation, together with all
amendments thereto, for Freedom and each Subsidiary Guarantor certified by the
Secretary of State of the State in which such Person is incorporated.
49. Good Standing Certificates for Freedom and each Subsidiary
Guarantor designated on Schedule E attached hereto.
50. Articles of Association of Diamalt duly notorized under the laws
of the Federal Republic of Germany.
51. Notorized extract from the Commercial Register of Diamalt.
52. Agreements of CT Corporation Systems, Inc. to act as Process
Agent for the Borrowers.
F. Legal Opinions
53. Opinion of counsel to Freedom and the Subsidiary Guarantors:
Skadden, Arps, Slate, Xxxxxxx & Xxxx.
54. Opinion of counsel to Diamalt: Boesebeck, Barz & Partner.
55. Opinion of General Counsel to the Borrowers: Xxxxx X. XxXxxxxx.
56. Opinion of counsel to Kalama: Xxxxx & Xxxxx P.L.L.C.
57. Opinions of counsel to the Agent: Sidley & Austin and Xxxxxxxx
Chance.
G. Other Documents
58. Assignment and Acceptance Agreement dated as of the Effective
Date executed by certain of the lenders under the 1994 Credit Agreement and
Fleet.
59. Notes issued under the 1994 Credit Agreement returned to the
Borrower evidencing Indebtedness paid in full on the Effective Date or in
exchange for Notes issued under the Credit Agreement:
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Citicorp USA, Inc. Term A Note $ 8,823,529
Term B Note $ 4,200,000
Acquisition Note $ 1,882,352.80
Revolving Credit Note
Swing Note
Bank of America Illinois Term A Note $ 3,099,125
Acquisition Note $ 661,146.80
Revolving Credit Note
The Bank of New York Term A Note $ 4,132,167
Term B Note $ 5,000,000
Acquisition Note $ 881,528.80
Revolving Credit Note
Caisse Nationale de Credit Agricole Term A Note $ 2,066,083
Acquisition Note $ 440,764.40
Revolving Credit Note
Crescent/Mach I Partners, L.P. Term B Note $ 9,000,000
Senior Debt Portfolio Term B Note $ 9,000,000
The First National Bank of Boston Term A Note $ 3,099,125
Acquisition Note $ 661,146.80
Revolving Credit Note
Xxxxxx Financial, Inc. Term A Note $ 4,132,167
Acquisition Note $ 881,528.80
Revolving Credit Note
The Long-Term Credit Bank of Japan, Term A Note $ 3,099,125
Limited New York Branch Acquisition Note $ 661,146.80
Revolving Credit Note
Mitsui Leasing (USA) Inc. Term A Note $ 1,549,562
Acquisition Note $ 330,573.20
Revolving Credit Note
United States National Bank Term A Note $ 2,066,083
of Oregon
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Acquisition Note $ 440,764.40
Revolving Credit Note
Xxx Xxxxxx American Capital Prime Term B Note $ 9,000,000
Rate Income Trust
Xxxxxxx Xxxxx Senior Floating Rate Term B Note $27,000,000
Fund, Inc.
Xxxxxxx Xxxxx Prime Rate Portfolio Term B Note $ 3,500,000
Senior Strategic Income Fund, Inc. Term B Note $ 1,500,000
60. Publication Consent dated the Effective Date executed by the
Borrowers, Lenders and Issuing Banks.
61. Summary of UCC and tax lien and judgment searches conducted
against Freedom in the jurisdictions set forth on Schedules F and G attached
hereto.
62. Summary of UCC and tax lien and judgment searches conducted
against the Subsidiary Guarantors in the jurisdictions set forth on Schedules F
and G.
63. Commitments for Title Insurance (mortgagee's policies) to date
down or supplement the policies identified on Schedule H attached hereto.
64. Release Agreement between BHF, Munich and Diamalt and letter of
direction executed by Citibank.
65. Standby Letter of Credit issued by Citibank in favor of BHF,
Munich.
H. Senior Note and Equity Documents
66. Offering Memorandum dated October 10, 1996 prepared in
connection with the issuance of $125,000,000 Freedom Chemical Company 10 5/8%
Senior Subordinated Notes due 2006.
67. Purchase Agreement dated as of October 10, l996 by and among
Freedom as issuer, Textile, Hilton, Kalama, Diamalt, KSCI, KFSC, and FCCAC as
guarantors and the initial purchasers.
68. Indenture dated as of October 15, 1996 among Freedom, as issuer,
Textile, Hilton, Kalama, Diamalt, KSCI, KFSC, and FCCAC, as guarantors, and
BONY, a New York banking company, as trustee.
H-11
69. Registration Rights Agreement dated as of October 17, 1996 among
Freedom, Diamalt, Subsidiary Guarantors and the initial purchasers identified
therein.
70. 10 5/8% Senior Subordinated Note due 2006 dated October 17, l996
in the amount $121,350,000 executed by Freedom payable to Cede & Co. (the
"Global Security").
71. Eight 10 5/8% Senior Subordinated Notes due 2006, each dated
October 17, l996 and excuted by Freedom, in the amount and payable to the party
identified therein (the "Physical Securities").
72. Senior Subordinated Guarantees executed by each of the
Subsidiary Guarantors and Diamalt pursuant to which each guaranties the Senior
Notes.
73. Trustee's certificate executed by BONY.
74. Acknowledgment of the delivery of the Global Security to the
initial purchasers on October 17, l996.
75. Acknowledgment by Freedom on October 17, l996 of full payment of
the Senior Notes.
76. Opinion of Counsel to the initial purchasers: Xxxxxx Xxxxxx &
Xxxxxxx.
77. Opinion of Counsel to the issuer and guarantors: Skadden, Arps,
Slate, Xxxxxxx & Xxxx.
I. 1993 - 1996 Documents -- See Schedules I through O attached hereto.
SCHEDULE A
TO
LIST OF CLOSING DOCUMENTS
Credit Agreement Exhibits and Schedules
Exhibits
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Collection Account Agreement
Exhibit C Forms of Notes
Exhibit D Form of Notice of Borrowing
Exhibit E Form of Notice of Conversion/Continuation
Exhibit F Pro Forma Financial Statements
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Exhibit G Projections
Exhibit H List of Closing Documents
Exhibit I Form of Officer's Certificate to Accompany Reports
Exhibit J Form of Letter to Accountants
Exhibit K Form of Consignee/Bailee Letters
Schedules
Schedule 1.01.1 Guarantors
Schedule 1.01.2 Existing Joint Ventures
Schedule 1.01.3 Permitted Equity Securities Options
Schedule 1.01.4 Permitted Existing Indebtedness
Schedule 1.01.5 Permitted Existing Investments
Schedule 1.01.6 Permitted Existing Liens
Schedule 1.01.7 Refinanced Indebtedness
Schedule 3.02 Existing Letters of Credit
Schedule 7.01-A Organizational Documents
Schedule 7.01-C Organizational Structure
Schedule 7.01-E Governmental Consents
Schedule 7.01-K Pending Actions
Schedule 7.01-L Compensation Matters
Schedule 7.01-S Environmental Matters
Schedule 7.01-T ERISA Matters
Schedule 7.01-V Labor Contracts
Schedule 7.01-Y Patent, Trademark & Permit Claims Pending
Schedule7.01-AA Insurance Policies
Schedule 7.01-DD German Filing and Tax Requirements
Schedule 10.14 Collection Accounts
H-13
SCHEDULE B
TO
LIST OF CLOSING DOCUMENTS
Existing Letters of Credit
Applicant: Kalama
L/C Reference: NY 20512-30016750
Amount: $222,416.00
Originating Date: 12/29/94
Expiration Date: 12/29/96
Beneficiary: US EPA Third-Party Liability
Applicant: Textile
L/C Reference: NY 20512-30018283
Amount: Belgian Francs 500,000
Originating Date: 11/24/95
Expiration Date: 12/31/96
Beneficiary: Belgium Ministry of Finance
Applicant: Textile
L/C Reference: NY 08683-30018555
Amount: $77,155.59
Originating Date: 01/18/96
Expiration Date: 01/18/97
Beneficiary: N.C. Dept. of Environ., Health & Natural
Resources
H-14
SCHEDULE C
TO
LIST OF CLOSING DOCUMENTS
UCC Financing Statement and Fixture Filing Offices
UCC Financing Statement Offices
Debtor: Freedom Chemical Company
a. Secretary of the Commonwealth of Pennsylvania; and
b. Prothonotary of Philadelphia County, Pennsylvania.
Debtor: FCC Acquisition Corp.
a. Secretaries of State of Massachusetts, North Carolina, Texas and
Wisconsin;
b. Secretary of the Commonwealth of Pennsylvania;
c. Town/City of Peabody, Massachusetts;
d. Registers of Deeds of Guilford and Mecklenburg Counties, North
Carolina; and
e. Prothonotary of Xxxxxxxxxx County, Pennsylvania.
Debtor: Hilton Davis Chemical Co.
a. Secretaries of State of Alabama, California, Illinois, Indiana,
Kansas, Kentucky, New Jersey, Ohio, South Carolina, and Texas;
b. Department of Assessments and Taxation of Maryland;
c. Superior Court Clerks of DeKalb and Monroe Counties, Georgia;
d. Recorders of Elkhart County, Indiana and Xxxxxxxx and Portage
Counties, Ohio; and
e. Clerk of Jefferson County, Kentucky.
Debtor: Kalama Chemical, Inc.
a. Secretaries of State of Illinois, Indiana, New Jersey and Texas;
b. Department of Licensing of Washington; and
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c. Recorder of Deeds of Lake County, Indiana.
Debtor: Freedom Textile Chemicals Co.
a. Secretaries of State of Alabama, California, Massachusetts, New
Jersey, North Carolina, South Carolina, Texas and Wisconsin;
b. Secretary of the Commonwealth of Pennsylvania;
c. Superior Court Clerk of Monroe County, Georgia;
d. Town/City Clerk of Peabody, Massachusetts;
e. Registers of Deeds of Guilford and Mecklenburg Counties, North
Carolina; and
f. Prothonotary of Xxxxxxxxxx County, Pennsylvania.
Debtor: Freedom Textile Chemical Company (South Carolina), Inc.
a. Secretaries of State of Alabama, California, North Carolina and
South Carolina;
b. Superior Court Clerk of Monroe County, Georgia; and
c. Register of Deeds of Mecklenburg County, North Carolina.
Debtor: Kalama Foreign Sales Corporation
a. Treasurer of Guam; and
b. Department of Licensing of Washington.
Debtor: Kalama Specialty Chemicals, Inc.
a. Secretary of State of South Carolina; and
b. Department of Licensing of Washington.
Fixture Filing Offices
Debtor: FCC Acquisition Corp.
a. Register of Deeds of Guilford County, North Carolina; and
b. Recorder of Deeds of Xxxxxxxxxx County, Pennsylvania.
Debtor: Hilton Davis Chemical Co.
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a. Register of Deeds and Mortgages of Essex County, New Jersey;
b. Recorder of Xxxxxxxx County, Ohio; and
c. Register of Mesne Conveyances of Spartanburg County, South
Carolina.
Debtor: Kalama Chemical, Inc.
a. Clerk of Court of Bergen County, New Jersey; and
b. Auditor of Cowlitz County, Washington.
Debtor: Freedom Textile Chemicals Co.
a. Registers of Deeds of Guilford and Mecklenburg Counties, North
Carolina;
b. Recorder of Deeds of Xxxxxxxxxx County, Pennsylvania; and
c. Register of Mesne Conveyances of Spartanburg County, South
Carolina.
Debtor: Freedom Textile Chemical Company (South Carolina), Inc.
a. Register of Mesne Conveyances of Spartanburg County, South
Carolina.
Bailee UCC Financing Statement Filing Office
Xxxxxx: Kalama Chemical, Inc.
Bailee: Dyna Bulk Inc., Summit, Illinois
a. Secretary of State of Illinois.
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SCHEDULE D
TO
LIST OF CLOSING DOCUMENTS
Mortgages
Mortgage Reaffirmations
1. Mortgage, Security Agreement, Financing Statement and Assignments
of Rents and Leases, delivered in connection with the closing of the 1993 Credit
Agreement, relating to Hilton's owned real property located in:
a. Newark, New Jersey; and
b. Cowpens, South Carolina.
in each case, as reaffirmed and modified as of the Closing Date and January 9,
1995.
2. Open-End Fee and Leasehold Mortgage, Security Agreement,
Financing Statement and Assignment of Rents relating to Hilton's leased real
property located in Cincinnati, Ohio, as reaffirmed and modified as of the
Closing Date and January 9, 1995.
3. Deed of Trust, Security Agreement, Financing Statement and
Assignment of Rents and Leases relating to Kalama's owned real property located
in Kalama, Washington, as reaffirmed and modified as of January 9, 1995.
4. Deed of Trust, Security Agreement, Financing Statement and
Assignment of Rents and Leases relating to Textile's owned real property located
in Charlotte, North Carolina, as reaffirmed and modified as of January 9, 1995.
5. Leasehold Mortgage, Security Agreement, Financing Statement and
Assignment of Rents relating to FCCAC's leased real property located in
Conshohocken, Pennsylvania, as reaffirmed and modified as of January 9, 1995.
6. Mortgage, Security Agreement, Financing Statement and Assignment
of Rents and Leases dated as of December 15, 1995, executed and delivered by
Textile South Carolina pursuant to which Textile South Carolina grants a
mortgage of its right, title and interest in and to certain real property and
fixtures located in Cowpens, South Carolina, together with exhibits and
schedules thereto.(4)
----------
(4) Awaiting recorded deed to record this mortgage.
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Collateral Assignment Reaffirmations
1. Collateral Assignments of Mortgage/Deed of Trust pursuant to which
Freedom assigns its interest in the respective Hilton Intercompany Mortgages to
the Agent with respect to Hilton's owned real property located in:
a. Newark, New Jersey; and
b. Cowpens, South Carolina.
2. Collateral Assignment of Junior Deed of Trust pursuant to which Freedom
assigns to the Agent its interest in Kalama Intercompany Mortgage.
3. Collateral Assignment of Junior Deed of Trust pursuant to which Freedom
assigns to the Agent its interest in the Textile Intercompany Mortgage.
4. Collateral Assignment of Junior Leasehold Mortgage pursuant to which
Freedom assigns to the Agent its interest in the FCCAC Intercompany Mortgage.(5)
----------
(5) Awaiting recorded copy.
H-19
SCHEDULE E
TO
LIST OF CLOSING DOCUMENTS
Good Standing Certificate Jurisdictions
Freedom Delaware
Hilton Delaware
California
New Jersey
Ohio
South Carolina
Kalama Washington
Illinois
New Jersey
Texas
KFSC Guam
KSCI Washington
South Carolina
Textile Delaware
North Carolina
FCCAC Delaware
Pennsylvania
North Carolina
Textile SC Delaware
South Carolina
H-20
SCHEDULE F
TO
LIST OF CLOSING DOCUMENTS
UCC Lien Search Offices
Debtor: Freedom Chemical Company
a. Secretary of the Commonwealth of Pennsylvania; and
b. Prothonotary of Philadelphia County, Pennsylvania.
Debtor: FCC Acquisition Corp.
a. Secretaries of State of Massachusetts, North Carolina, Texas and
Wisconsin;
b. Secretary of the Commonwealth of Pennsylvania;
c. Town/City Clerk of Peabody, Massachusetts;
d. Registers of Deeds of Guilford (to include fixture filings) and
Mecklenburg Counties, North Carolina;
e. Prothonotary of Xxxxxxxxxx County, Pennsylvania; and
f. Recorder of Deeds of Xxxxxxxxxx County, Pennsylvania (fixture
filings).
Debtor: Hilton Davis Chemical Co.
a. Secretaries of State of Alabama, California, Illinois, Indiana,
Kansas, New Jersey, Ohio, South Carolina and Texas;
b. Deparment of Assessments and Taxation of Maryland;
c. Superior Court Clerks' Cooperative Authority of Georgia;
d. Superior Court Clerks of DeKalb and Monroe Counties, Georgia;
e. Recorders of Elkhart County, Indiana and Xxxxxxxx County (to
include fixture filings) and Portage County, Ohio;
f. Register of Deeds and Mortgages of Essex County, New Jersey
(fixture filings);
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g. Register of Mesne Conveyances of Spartanburg County, South
Carolina (fixture filings); and
h. Personal Property Security Act Registry in Ontario, Canada.
Debtor: Kalama Chemical, Inc.
a. Secretaries of State of Illinois, Indiana, New Jersey and Texas;
b. Department of Licensing of Washington;
c. Recorder of Lake County, Indiana;
d. Clerk of Court of Bergen County, New Jersey (fixture filings);
and
e. Auditor of Cowlitz County, Washington (fixture filings).
Debtor: Freedom Textile Chemicals Co.
a. Secretaries of State of Alabama, California, Massachusetts, New
Jersey, North Carolina, South Carolina, Texas and Wisconsin;
b. Secretary of the Commonwealth of Pennsylvania:
c. Superior Court Clerks' Cooperative Authority of Georgia;
d. Superior Court Clerk of Monroe County, Georgia;
e. Town/City Clerk of Peabody, Massachusetts;
f. Registers of Deeds of Guilford and Mecklenburg Counties, North
Carolina (to include fixture filings);
g. Prothonotary of Xxxxxxxxxx County, Pennsylvania;
h. Recorder of Deeds of Xxxxxxxxxx County, Pennsylvania (fixture
filings); and
i. Register of Mesne Conveyances of Spartanburg County, South
Carolina (fixture filings).
Debtor: Freedom Textile Chemical Company (South Carolina), Inc.
a. Secretaries of State of Alabama, California, North Carolina and
South Carolina;
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b. Superior Court Clerks' Cooperative Authority of Georgia;
c. Superior Court Clerk of Monroe County, Georgia;
d. Register of Deeds of Mecklenburg County, North Carolina; and
e. Register of Mesne Conveyances of Spartanburg County, South
Carolina (fixture filings).
Debtor: Kalama Foreign Sales Corporation
a. Treasurer of Guam; and
b. Department of Licensing of Washington.
Debtor: Kalama Specialty Chemicals, Inc.
a. Secretary of State of South Carolina;
b. Department of Licensing of Washington; and
c. Register of Mesne Conveyances of Beaufort County, South Carolina
(fixture filings).
H-23
SCHEDULE G
TO
LIST OF CLOSING DOCUMENTS
Tax Lien and Judgment Search Offices
Debtor: Freedom Chemical Company
a. Secretary of the Commonwealth of Pennsylvania; and
b. Prothonotary of Philadelphia County, Pennsylvania.
Debtor: FCC Acquistion Corp.
a. Secretary of State of North Carolina;
b. Secretary of the Commonwealth of Pennsylvania;
c. Superior Court Clerks of Guilford and Mecklenburg Counties, North
Carolina; and
d. Prothonotary of Xxxxxxxxxx County, Pennsylvania.
Debtor: Hilton Davis Chemical Co.
a. Secretary of State of New Jersey;
b. Recorder of Xxxxxxxx County, Ohio;
c. Register of Deeds and Mortgages of Essex County, New Jersey; and
d. Register of Mesne Conveyances of Spartanburg County, South
Carolina.
Debtor: Kalama Chemical, Inc.
a. Secretary of State of New Jersey;
b. Department of Licensing of Washington;
c. Clerk of Court of Bergen County, New Jersey; and
d. Auditors of Cowlitz and King Counties, Washington.
Debtor: Freedom Textile Chemicals Co.
a. Secretary of State of North Carolina;
b. Secretary of the Commonwealth of Pennsylvania;
H-24
c. Superior Court Clerks of Guilford and Mecklenburg Counties, North
Carolina; and
d. Prothonotary of Xxxxxxxxxx County, Pennsylvania.
Debtor: Freedom Textile Chemical Company (South Carolina), Inc.
a. Register of Mesne Conveyances of Spartanburg County, South
Carolina.
Debtor: Kalama Foreign Sales Corporation
a. Department of Licensing of Washington; and
b. Auditors of Cowlitz and King Counties.
Debtor: Kalama Specialty Chemicals, Inc.
a. Register of Mesne Conveyances of Beaufort County, South Carolina;
b. Department of Licensing of Washington; and
c. Auditors of Cowlitz and King Counties.
H-25
SCHEDULE H
TO
LIST OF CLOSING DOCUMENTS
Title Insurance Policies
1. Title Insurance Policies relating to Hilton's real property and
interests in real property located in Newark, New Jersey, Cincinnati, Ohio and
Cowpens, South Carolina.
2. Title Insurance Policy relating to Kalama's real property located
in Kalama, Washington.
3. Title Insurance Policy relating to Textile's real property
located in Charlotte, North Carolina.
4. Title Insurance Policy relating to the real property and
interests in FCCAC's real property located in Conshohocken, Pennsylvania.
H-26
SCHEDULE I
TO
LIST OF CLOSING DOCUMENTS
Freedom Security Documents
1. Security Agreement executed by the Borrower in favor of the Agent
for the benefit of the Holders evidencing the Borrower's grant of a security
interest in all of the Borrower's personal property including, without
limitation, the Demand Promissory Notes described in items 2-8 below.
2. Demand Promissory Note executed by Hilton, payable to the
Borrower, and endorsed to the Agent.
3. Promissory Note executed by Diamalt, payable to the Borrower in
the principal amount of $6,847 000 and endorsed to the Agent.
4. Promissory Note executed by Freedom Europe, payable to the
Borrower in the principal amount of $1,152,650 and endorsed to Agent.
5. Demand Promissory Note executed by Kalama, payable to the
Borrower, and endorsed to the Agent.
6. Demand Promissory Note executed by Textile, payable to the
Borrower, and endorsed to the Agent.
7. Demand Promissory Note executed by FCCAC, payable to the
Borrower, and endorsed to the Agent.
8. Demand Promissory Note dated as of December 15, 1995, executed by
Textile SC, payable to the Borrower, and endorsed to the Agent.
9. Pledge Agreement executed by the Borrower and the Agent and
acknowledged by each of Hilton, Kalama and Textile, evidencing the Borrower's
pledge of 100% of the capital stock of each of Hilton, Kalama and Textile as
security for the Obligations, together with the stock certificates (and powers
executed in blank) evidencing the capital stock pledged pursuant thereto, as
supplemented.
10. Pledge Agreement executed by the Borrower and the Agent and
acknowledged by FCCAC, evidencing the Borrower's pledge of 100% of the capital
stock of FCCAC as security for the Obligations, together with the stock
certificates (and powers executed in blank) evidencing the capital stock pledged
pursuant thereto.
H-27
11. Security Assignment Agreement executed by the Borrower
evidencing the grant of a security interest in the intellectual property
purchased under the terms of the German Acquisition Agreement (as defined
below).
12. Collateral Assignment of Rights executed by the Borrower as
assignor, and the Agent, as assignee, for the benefit of the Holders pursuant to
which the Borrower assigns its rights and remedies under the Kalama Purchase
Agreement (as defined below) and the Kalama Trust Agreement (as defined below)
to the Agent as security for the Obligations.
13. Concentration Account Agreement dated as of the Closing Date
between the Borrower and Citibank (Account No. 4064-6594).
14. Instrument of Pledge dated as of August 10, 1995 among the
Agent, the Borrower and Freedom Europe together with authenticated copy thereof.
H-28
SCHEDULE J
TO
LIST OF CLOSING DOCUMENTS
Hilton Documents
Guaranty and Security Documents
1. Guaranty ("Hilton Guaranty") executed by Hilton evidencing
Hilton's continuing, unconditional guaranty of payment and performance of the
Obligations.
2. Amended and Restated Security Agreement executed by Hilton in
favor of the Agent for the benefit of the Holders evidencing Xxxxxx'x xxxxx of a
security interest in all of its personal property, including without limitation,
(i) that certain Promissory Note executed by Rulco, Inc., and guaranteed by Xxxx
X. Xxxxx, in the principal amount of $200,000 payable to Hilton and (ii) that
certain Demand Note executed by A-Chem in the principal amount of $900,000
payable to Hilton, as security for the Obligations and the its obligations under
the Hilton Guaranty.
3. Promissory Note executed by Rulco, Inc., and guaranteed by Xxxx
X. Xxxxx, in the principal amount of $200,000 payable to Hilton, together with
stock certificates C5 and P5 issued by the Borrower in favor of Rulco, Inc. as
security for such note, representing 300 shares of common stock and 170 shares
of Senior B Preferred Stock of the Borrower, respectively.
4. Demand Note executed by A-Chem in the principal amount of
$900,000 payable to Hilton.
5. Promissory Note in the principal amount of $6,578,000 executed
by Diamalt, payable to Hilton and endorsed to the Agent.
6. Security Agreement executed by Hilton in favor of the Borrower
evidencing Xxxxxx'x xxxxx of a security interest in all of the its personal
property as security for its obligations under the Hilton Intercompany Note.
7. Patent Security Agreement executed by Hilton in favor of the
Agent for the benefit of the Holders evidencing Xxxxxx'x xxxxx of a security
interest in all of the Hilton's patents, patent applications and licenses as
security for its obligations under the 1993 Credit Agreement, as amended as of
the Closing Date.
8. Patent Security Agreement executed Hilton in favor of the
Borrower evidencing Xxxxxx'x xxxxx of a security interest in all of its patents,
patent applications and patent licenses as security for its obligations under
the Hilton Intercompany Note.
H-29
9. Trademark Security Agreement executed by Hilton in favor of the
Lender evidencing Xxxxxx'x xxxxx of a security interest in all of the Hilton's
trademarks, trademark applications and licenses as security for its obligations
under the 1993 Credit Agreement, as amended as of the Closing Date.
10. Trademark Security Agreement executed by Hilton in favor of the
Borrower evidencing Xxxxxx'x xxxxx of a security interest in all of its
trademarks, trademark applications and trademark licenses as security for its
obligations under the Hilton Intercompany Note.
11. Junior Mortgage/Deed of Trust, Security Agreement, Financing
Statement and Assignment of Rents and Leases ("Hilton Intercompany Mortgages")
relating to Hilton's owned real property located in:
a. Newark, New Jersey; and
b. Cowpens, South Carolina.
12. Collateral Assignment of Rights executed by Hilton as assignor,
and the Agent, as assignee, for the benefit of the Holders pursuant to which
Hilton assigns its rights and remedies under certain agreements among Freedom
Chemical Acquisition Corporation, a Delaware corporation ("FCAC"),
Sterling-Winthrop Inc., and Hilton to the Agent as security for its obligations
under the 1993 Credit Agreement.
13. Collateral Assignment of Rights executed by Hilton as assignor,
and the Agent, as assignee, for the benefit of the Holders pursuant to which
Hilton assigns its rights and remedies under that certain Stock Purchase
Agreement dated as of May 21, 1993 between PMC, Inc. and FCAC to the Agent as
security for its obligations under the 1993 Credit Agreement.
14. Collection Account Agreement executed by The Fifth Third Bank,
Hilton, the Borrower and the Agent (Account No. 727-91040).
Other Document
15. Ground Lease dated as of September 9, 1993 between SDI and
Hilton covering SDI's real property located in Cincinnati, Ohio along with
Amendment to Lease Provisions dated as of September 9, 1993 among SDI, Hilton
and the Agent.
H-30
SCHEDULE K
TO
LIST OF CLOSING DOCUMENTS
Kalama Documents
Guaranty and Security Documents
1. Guaranty ("Kalama Guaranty") executed by Kalama evidencing
Kalama's continuing, unconditional guaranty of payment and performance of the
Obligations.
2. Security Agreement executed by Kalama in favor of the Agent for
the benefit of the Holders evidencing Xxxxxx'x xxxxx of a security interest in
all of its personal property as security for the Obligations and its obligations
under the Kalama Guaranty.
3. Security Agreement executed by Kalama in favor of the Borrower
evidencing Xxxxxx'x xxxxx of a security interest in all of the its personal
property as security for its obligations under the Kalama Intercompany Note.
4. Pledge Agreement executed by Kalama and the Agent for the benefit
of the Holders and acknowledged by each of KFSC and KSCI, evidencing Kalama's
pledge of 100% of the capital stock of each of KFSC and KSCI as security for the
Obligations and its obligations under the Kalama Guaranty together with the
stock certificates (and powers executed in blank) evidencing the capital stock
pledged pursuant thereto.
5. Junior Deed of Trust, Security Agreement, Financing Statement and
Assignment of Rents and Leases ("Kalama Intercompany Mortgage") relating to
Kalama's owned real property located in Kalama, Washington.
6. Collateral Assignment of Rights executed by Kalama as assignor,
and the Agent, as assignee for the benefit of the Holders, pursuant to which
Kalama assigns its rights and remedies under the Tenneco Agreement as security
for the Obligations and its obligations under the Kalama Guaranty.
7. Collection Account Agreement executed by Citibank,
Kalama, the Borrower and the Agent (Account No. 4065-4762).
Other Documents
8. Settlement Agreement, dated as of April 28, 1994, between Kalama
and Tenneco Polymers, Inc., including a guaranty executed by Tenneco Corporation
(the "Tenneco Agreement"), together with copies of exhibits and schedules
thereto.
H-31
9. Assignment Agreement dated as of May 26, 1994 between Kalama, as
assignor, and the Trustee, as assignee, pursuant to which Kalama assigns its
rights to certain property to the Trustee.
10. Agreement dated as of the Closing Date among the Agent, BC Sugar
and CPC.
11. Trust Agreement dated as of May 26, 1994 (the "Kalama Trust
Agreement") among CPC, the Borrower, Kalama and United States Trust Company of
New York, a New York corporation (the "Trustee"), pursuant to which the Trustee
holds various funds, rights to insurance and other proceeds to be distributed to
either CPC or the Borrower pursuant to the terms of the Purchase Agreement.
H-32
SCHEDULE L
TO
LIST OF CLOSING DOCUMENTS
Textile Guaranty and Security Documents
1. Guaranty ("Textile Guaranty") executed by Textile evidencing
Textile's continuing, unconditional guaranty of payment and performance of the
Obligations.
2. Security Agreement executed by Textile in favor of the Agent for
the benefit of the Holders evidencing Textile's grant of a security interest in
all of its personal property as security for the Obligations and its obligations
under the Textile Guaranty.
3. Security Agreement executed by Textile in favor of the Borrower
evidencing Textile's grant of a security interest in all of the its personal
property as security for its obligations under the Textile Intercompany Note.
4. Pledge Agreement dated as of December 15, 1995 between Textile
and the Agent evidencing the pledge to the Agent for the benefit of the Holders
of the capital stock of FCCAC and Textile SC, together with stock certificates
representing the capital stock of FCCAC and Textile SC, and undated stock powers
executed in blank with respect thereto.
5. Patent Security Agreement executed by Textile in favor of the
Agent for the benefit of the Holders evidencing Textile's grant of a security
interest in all of Textile's patents, patent applications and patent licenses as
security for the Obligations and its obligations under the Textile Guaranty.
6. Patent Security Agreement executed by Textile in favor of the
Borrower evidencing Textile's grant of a security interest in all of its
patents, patent applications and patent licenses as security for its obligations
under the Textile Intercompany Note.
7. Trademark Security Agreement executed by Textile in favor of the
Agent for the benefit of the Holders evidencing Textile's grant of a security
interest in all of Textile's trademarks, trademark applications and trademark
licenses as security for the Obligations and its obligations under the Textile
Guaranty.
8. Trademark Security Agreement executed by Textile in favor of the
Borrower evidencing Textile's grant of a security interest in all of its
trademarks, trademark applications and trademark licenses as security for its
obligations under the Textile Intercompany Note.
H-33
9. Junior Deed of Trust, Security Agreement, Financing Statement and
Assignment of Rents and Leases ("Textile Intercompany Mortgage") relating to
Textile's owned real property located in Charlotte, North Carolina.
10. Collection Account Agreement executed by Citibank, Textile, the
Borrower and the Agent (Account No. 4065-4789).
H-34
SCHEDULE M
TO
LIST OF CLOSING DOCUMENTS
FCCAC Guaranty and Security Documents
1. Guaranty ("FCCAC Guaranty") executed by FCCAC evidencing FCCAC's
continuing, unconditional guaranty of payment and performance of the
Obligations.
2. Security Agreement executed by FCCAC in favor of the Agent for
the benefit of the Holders evidencing FCCAC's grant of a security interest in
all of its personal property as security for the Obligations and its obligations
under the FCCAC Guaranty.
3. Security Agreement executed by FCCAC in favor of the Borrower
evidencing FCCAC's grant of a security interest in all of the its personal
property as security for its obligations under the FCCAC Intercompany Note.
4. Trademark Security Agreement executed by FCCAC in favor of the
Agent for the benefit of the Holders evidencing FCCAC's grant of a security
interest in all of FCCAC's trademarks, trademark applications and trademark
licenses as security for the Obligations and its obligations under the FCCAC
Guaranty.
5. Trademark Security Agreement executed by FCCAC in favor of the
Borrower evidencing FCCAC's grant of a security interest in all of its
trademarks, trademark applications and trademark licenses as security for its
obligations under the FCCAC Intercompany Note.
6. Collateral Assignment of Rights executed by FCCAC as assignor,
and the Agent, as assignee, for the benefit of the Holders evidencing FCCAC's
assignment of its rights and remedies under that certain Asset Purchase
Agreement dated as of November 8, 1994 among FCCAC, The Xxxxxx Corp. and
Xxxxxx-Xxxxxxxx Inc. ("FCCAC Purchase Agreement") and certain other documents,
agreements and instruments executed in connection therewith, to the Agent as
security for the Obligations and its obligations under the FCCAC Guaranty.
7. Open-End Junior Leasehold Mortgage, Security Agreement, Financing
Statement and Assignment of Rents and Leases ("FCCAC Intercompany Mortgage")
relating to FCCAC's leased real property located in Conshohocken, Pennsylvania.
8. Collection Account Agreement executed by Citibank, FCCAC, the
Borrower and the Agent (Account No. 4066-1903), as amended.
H-35
SCHEDULE N
TO
LIST OF CLOSING DOCUMENTS
Textile SC Guaranty and Security Documents
1. Guaranty dated as of December 15, 1995 ("Textile SC Guaranty"),
executed and delivered by Textile SC pursuant to which Textile SC guarantees
payment and performance of the Obligations.
2. Security Agreement dated as of December 15, 1995, executed and
delivered by Textile SC pursuant to which Textile SC grants Liens against all of
its personal property and interests in property to the Agent for the benefit of
the Holders, as security for the Obligations and its obligations under the
Textile SC Guaranty.
3. Security Agreement dated as of December 15, 1995, executed by
Textile SC in favor of the Borrower evidencing Textile SC's grant of a security
interest in all of its personal property as security for its obligations under
the Textile SC Intercompany Note.
4. Trademark Security Agreement dated as of December 15, 1995,
executed and delivered by Textile SC pursuant to which Textile SC grants Liens
against all of its trademarks and interests in such trademarks for the benefit
of the Holders, as security for the Obligations and its obligations under the
Textile SC Guaranty.
5. Trademark Security Agreement dated as of December 15, 1995,
executed and delivered by Textile SC pursuant to which Textile SC grants Liens
against all of its trademarks and interests in such trademarks in favor of the
Borrower as security for its obligations under the Textile SC Intercompany Note.
H-36
SCHEDULE O
TO
LIST OF CLOSING DOCUMENTS
Bailee Agreements and Landlord Waivers
1. Bailee Letters executed by the following bailees of Hilton:
Xxxxx Xxxxxxxxx, Xxxxx Xx Xxxxxxx, Xxxxxxxxxx
Atlas Printing Ink Inc., Dallas, Texas
Dion Chemical, Elkhart, Indiana
Quaker Oats, Lawrence, Kansas
Xxxxxxx Corp., Alexander City, Alabama
Xxxxxxxx-Xxxxxxxxx, Inc., Chicago, Illinois
BDP Warehouse, El Sequndo, California
2. Bailee Letter executed by the following bailee of Kalama:
Dyna Bulk Inc., Summit, Illinois
3. Landlord's Waiver executed by The SDI Divestiture Corp. relating
to Hilton's leased property located in Cincinnati, Ohio.
4. Landlord's Waiver executed by Ninety-three Larchwood Partners
relating to FCCAC's leased warehouse space located in Conshohocken,
Pennsylvania.
5. Bailee Letter executed by the following bailee of Textile SC:
BDP Warehouse, Edison, New Jersey
6. Bailee Letter executed by the following bailee of Textile:
BDP Warehouse, Edison, New Jersey
H-37
EXHIBIT I
to
Amended and Restated Credit Agreement
dated as of October 11, 1996
FORM OF OFFICER'S CERTIFICATE TO
ACCOMPANY REPORTS
--------------------------------------------------------------------------------
[Date]
Citicorp USA, Inc., as Agent
for the Lenders and Issuing Banks
party to the Credit Agreement
referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Gentlemen:
Pursuant to Section 8.01(c) of that certain Amended and Restated
Credit Agreement dated as of October 11, 1996 (as the same may be amended,
supplemented, restated or otherwise modified from time to time, the "Credit
Agreement", terms defined therein being used herein as therein defined) among
Freedom Chemical Company, a Delaware corporation ("U.S. Borrower"), Freedom
Chemical Diamalt GmbH, a corporation organized under the laws of The Federal
Republic of Germany, the institutions from time to time party thereto as Lenders
and Issuing Banks, and Citicorp USA, Inc., as Agent for the Lenders and Issuing
Banks, the undersigned, __________________, the [Chief Executive Officer][Chief
Financial Officer] of the U.S. Borrower, hereby certifies that:
1. The undersigned has reviewed the terms of the Loan Documents, and
has made, or caused to be made under [his/her] supervision, a review in
reasonable detail of the transactions and consolidated and consolidating
financial condition of the U.S. Borrower and its Subsidiaries during the
accounting period covered by the Financial Statements identified below. Such
review has not disclosed the existence during or at the end of such accounting
period, and as of the date hereof the undersigned does not have knowledge, of
the existence of any condition or
event which constitutes an Event of Default or Potential Event of Default.(1)
2. The financial statements, reports and copies of certain
instruments and documents attached hereto, namely,
A. [Compliance Certificate], dated ________________(2)
B. ______________________, dated ________________
C. ______________________, dated ________________
D. ______________________, dated ________________
are true and complete copies of the aforesaid which constitute part of [or are
based upon](3) the customary books and records of the U.S. Borrower, and, to the
best of the undersigned's knowledge and belief, there exist no facts or
circumstances which would materially and adversely affect or vary the
information contained in any of the aforesaid.
_______________________________________
[Name]
[Chief Executive Officer]
[Chief Financial Officer]
----------
(1) If such condition or event exists or existed, specify (i) the nature and
period of such condition or event and (ii) the action taken, being taken or
proposed to be taken with respect thereto.
(2) Attach if applicable for the period covered by this Officer's Certificate.
(3) To be included if a Compliance Certificate is attached.
I-2
EXHIBIT J
to
Amended and Restated Credit Agreement
dated as of October 11, 1996
FORM OF LETTER TO ACCOUNTANTS
--------------------------------------------------------------------------------
[Freedom Chemical Company Stationery]
[Date]
[Insert Name and Address of
Accounting Firm]
Re: Freedom Chemical Company
Ladies and Gentlemen:
Reference is hereby made to that certain Amended and Restated Credit
Agreement dated as of October 11, 1996 (as the same may be amended,
supplemented, restated or otherwise modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among Freedom Chemical Company, a Delaware corporation (the "U.S. Borrower"),
Freedom Chemical Diamalt GmbH, a corporation organized under The laws of the
Federal Republic of Germany (the "European Borrower", and together with the U.S.
Borrower, collectively, the "Borrowers"), the institutions from time to time
party thereto as Lenders and Issuing Banks and Citicorp USA, Inc., as Agent for
the Lenders and Issuing Banks.
This letter is to inform you that the Credit Agreement requires
that, as a condition to the willingness of the Lenders and the Issuing Banks to
continue to extend financing to the Borrowers thereunder, annual audited
financial statements be prepared and delivered to the Agent, the Lenders and the
Issuing Banks accompanied by, among other things, an opinion from the
independent accountants who prepared such financial statements. The Lenders are
relying upon the financial statements audited by you.
Accordingly, it is a primary intention of the U.S. Borrower in
engaging your services in connection with your audit and preparation of
financial statements with respect to the U.S. Borrower's currently ended fiscal
year, to satisfy the
requirement of the Credit Agreement mentioned above and to induce the Lenders
and the Issuing Banks, who are relying on the financial statements audited by
you, to continue provision of their financing accommodations under the Credit
Agreement.
Very truly yours,
FREEDOM CHEMICAL COMPANY
By_____________________
Title:
J-2
EXHIBIT K
to
Amended and Restated Credit Agreement
dated as of October 11, 1996
FORMS OF CONSIGNEE/BAILEE LETTERS
--------------------------------------------------------------------------------
(Attached)
FORM OF CONSIGNEE LETTER(1)
[LETTERHEAD OF
RELEVANT GUARANTOR]
_______ ___, ____
VIA FEDERAL EXPRESS
[NAME AND ADDRESS OF CONSIGNEE]
Re: [Relevant Guarantor]
Ladies and Gentlemen:
This letter is to confirm that we, from time to time, deliver
merchandise to you for processing or on consignment (such merchandise heretofore
or hereafter delivered to you being referred to as "Consigned Inventory") and
that title to the Consigned Inventory remains with us at all times.
This letter is also to advise you that, pursuant to a certain
[Amended and Restated](2) Security Agreement (the "Security Agreement") executed
by us, we have granted to Citicorp USA, Inc. as agent (the "Agent") for certain
financial institutions, a security interest in, without limitation, all of our
inventory, including the Consigned Inventory, to secure our obligations under a
certain Guaranty in favor of the financial institutions for which the Agent is
acting (as the same may be amended, modified, restated or supplemented from time
to time, the "Guaranty"). In order to protect our ownership interest and the
Agent's security interest in the Consigned Inventory, the Agent has required
that we file a UCC financing statement covering the Consigned Inventory in
accordance with Section 9-114 of the Uniform Commercial Code. Such a financing
statement, naming you as Debtor-Consignee, us as Secured Party-Consignor and the
Agent as Assignee of Secured Party is enclosed herewith. We ask that you sign
the enclosed financing statement, and return it directly to the Agent's
attorneys, Sidley & Austin, Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, 00000, Attention:
XxXxxxxxx X. Xxxxxx, Esquire.
----------
(1) The Company, Citicorp and the bailee will have to execute three copies of
this document.
(2) For Hilton only.
K-2
We also ask that you sign and return to the Agent's attorneys one of
the enclosed copies of this letter (i) to acknowledge and confirm that you are
holding the Consigned Inventory for processing or on consignment, that such
Consigned Inventory is our property and is subject to the Agent's security
interest, that such security interest in the Consigned Inventory shall be senior
to all liens, claims and interests, including fees charged by you for the actual
processing of the Consigned Inventory and that you will notify all of your
successors and assigns of the existence of the agreements contained herein and
(ii) to evidence your agreement that if, at any time hereafter, the Agent shall
notify you in writing that we have defaulted on our obligations under the
Guaranty, you will comply with the Agent's written instructions as to the
disposition of the Consigned Inventory and that until the Guaranty has been
terminated and the Agent has been paid in full, you shall not deduct from or
offset against any amounts due and owing by us to you at any time hereafter by
applying any of the Consigned Inventory in payment for processing services
provided by you to us. We agree that you shall have no liability to us if you
comply with the Agent's written directions and we agree to reimburse you for all
reasonable costs and expenses incurred by you as a direct result of such
compliance.
Please return the second copy of this letter to the Company's
attorneys (Skadden, Arps, Slate, Xxxxxxx & Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000, Attention: Xxxxxxx X. Xxx, Esquire) after it has been signed, so that the
Company may complete its file. The third copy is for your records.
Very truly yours,
[RELEVANT GUARANTOR]
By__________________________________
Title:
CITICORP USA, INC., as Agent
By__________________________________
Title:
Acknowledged and agreed to this ____ day of _______, ____.
CONSIGNEE:
By________________________
Name:
Title:
K-3
FORM OF BAILEE LETTER(1)
[LETTERHEAD OF
RELEVANT GUARANTOR]
________ __, 1994
VIA FEDERAL EXPRESS
[NAME AND ADDRESS OF BAILEE]
Re: [Relevant Guarantor]
Ladies and Gentlemen:
This letter is to confirm that [Relevant Guarantor] (the "Company"),
from time to time, delivers merchandise to you for processing or warehousing
storage (such merchandise heretofore or hereafter delivered to you being
referred to as "Bailed Goods") and that title to the Bailed Goods remains with
the Company at all times.
This letter is also to advise you that, pursuant to a certain
[Amended and Restated](2) Security Agreement (the "Security Agreement") executed
by the Company, the Company has granted to Citicorp USA, Inc. as agent for
certain financial institutions ("Agent"), a security interest in, among other
things, all of the Company's inventory, including, without limitation, the
Bailed Goods, to secure obligations of the Company under a certain Guaranty in
favor of the financial institutions for which the Agent is acting (as the same
may be amended, modified, restated or supplemented from time to time, the
"Guaranty").
This letter serves as notice to you pursuant to Section 9-304(3) of
the Uniform Commercial Code of the Agent's interest in the Bailed Goods. In
order to protect the Company's ownership interest and the Agent's security
interest in the Bailed Goods, the Company asks that you sign and return to the
Agent's attorneys (Sidley & Austin, Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, 00000,
Attention: XxXxxxxxx X. Xxxxxx, Esquire) one of the three enclosed copies of
this letter (i) to acknowledge and confirm that you are holding the Bailed Goods
on bailment for processing or warehousing, that such Bailed Goods are the
Company's property and subject to the Agent's security interest, that such
security interest in the Bailed Goods shall be senior to all liens, claims
----------
(1) The Company, Citicorp and the bailee will have to execute three copies of
this document.
(2) For Hilton only
K-4
and interests, including fees charged by you for the actual processing or
storage of the Bailed Goods and that you will notify all of your successors and
assigns of the existence of the agreements contained herein and (ii) to evidence
your agreement that if, at any time hereafter, the Agent shall notify you in
writing that the Company has defaulted on its obligations under the Guaranty,
you will comply with the Agent's written instructions as to the disposition of
the Bailed Goods and that until the Guaranty has been terminated and the Agent
and the Lenders have been paid in full, you shall not deduct from or offset
against any amounts due and owing by the Company to you at any time hereafter by
applying any of the Bailed Goods in payment for processing or storage services
provided by you to the Company. We agree that you shall have no liability to the
Company if you comply with the Agent's written directions and the Company agrees
to reimburse you for all reasonable costs and expenses incurred by you as a
direct result of such compliance.
Please return the second copy of this letter to the Company's
attorneys (Skadden, Arps, Slate, Xxxxxxx & Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000, Attention: Xxxxxxx X. Xxx, Esquire) after it has been signed, so that the
Company may complete its file. The third copy is for your records.
Very truly yours,
[RELEVANT GUARANTOR]
By__________________________________
Title:
CITICORP USA, INC., as Agent
By__________________________________
Title:
Acknowledged and agreed to this _____ day of _______________, ____.
BAILEE:
By:_____________________________
Name:
Title:
K-5
Form of Processor's/Warehouse Keeper's Acknowledgement
[Letterhead of Freedom Chemical Diamalt GmbH]
[Date]
[Name and address of relevant Processor/Warehouse Keeper]
Freedom Chemical Diamalt GmbH
Ladies and Gentlemen:
1. This letter is to confirm that we (the "Company"), from time to time,
deliver merchandise to you for processing or warehouse storage (such goods
heretofore or hereafter delivered to you being referred to as the "Stored
Goods"). Following a Security Transfer Agreement dated 17 October 1996 (as
the same may be amended, restated, supplemented or otherwise modified from
time to time, the "Security Transfer Agreement") and made between
ourselves and Citicorp USA, Inc. as agent (the "Agent") for and on behalf
of the Lenders and Issuing Banks under a credit agreement dated 11 October
1996 (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement") and made between
Freedom Chemical Company and ourselves as Borrowers and certain financial
institutions we have transferred to the Agent title to the fixtures,
fittings, furniture, equipment, machinery and inventory as more
particularly described in the Security Transfer Agreement.
2. This letter is also to advise you that all of the Stored Goods have been
transferred to the Agent under the Security Transfer Agreement as security
for certain obligations arising under the Credit Agreement. In order to
protect the Agent's title in the Stored Goods, the Agent has required that
we notify you of the Agent's title in the Stored Goods and that you
acknowledge receipt of this notice and your agreement to the terms hereof
by signing the enclosed copy and returning the same to
Citicorp USA, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx
Facsimile 212 758-6278
with copy to:
Sidley & Austin
One First National Plaza
Chicago 60603
Attn: XxXxxxxxx X. Xxxxxx.
3. May we kindly ask you:
(i) to acknowledge and confirm that you are holding the Stored Goods for
processing or warehousing, that such Stored Goods are the Agent's
property, that its title therein shall be senior to all liens,
claims and interests including fees charged by you for your actual
processing or storage of the Stored Goods (which remain owing by
ourselves and are under no circumstances owing by the Agent) and
that you will notify all of your successors and assignees of the
existence of the agreements contained herein; and
K-6
(ii) to evidence your agreement that if, at any time hereafter, the Agent
shall notify you in writing that the Company has defaulted on its
obligations arising under (a) the Credit Agreement or (b) under a
guaranty dated as of 17 October 1996 made by ourselves in favour of
the Agent, the Lenders and the Issuing Banks under the Credit
Agreement (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Guaranty"), you will
comply with the Agent's written instructions as to the disposition
of the Stored Goods and that until the Guaranty and the Credit
Agreement have been terminated and the Agent and the Lenders and the
Issuing Banks have been paid in full, you shall not deduct from or
offset against any amounts due and owing by ourselves to you at any
time hereafter by applying any of the Stored Goods in payment for
processing or storage services provided by you to ourselves.
4. We agree that you shall have no liability towards ourselves if you comply
with the Agent's written directions and we agree to reimburse you for all
reasonable costs and expenses incurred by you as a direct result of such
compliance.
5. This letter shall be subject to and construed in accordance with the laws
of the Federal Republic of Germany.
Very truly yours,
________________________________ __________________________
Freedom Chemical Diamalt GmbH Date
________________________________ __________________________
Citicorp USA, Inc. as Agent Date
acknowledged and agreed
________________________________ __________________________
[Processor/Warehouse Keeper] Date
K-7
