Exhibit 10.1
Execution Copy
$150,000,000
REVOLVING CREDIT AGREEMENT
Dated as of March 3, 2008
among
DAYTON SUPERIOR CORPORATION, AS THE BORROWER
THE LENDERS AND L/C ISSUERS PARTY HERETO
and
GENERAL ELECTRIC CAPITAL CORPORATION,
AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT
- - -
GE CAPITAL MARKETS, INC.,
AS SOLE LEAD ARRANGER AND BOOKRUNNER
REVOLVING CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS........................................................1
Section 1.1 Defined Terms..........................................................................1
Section 1.2 UCC Terms.............................................................................28
Section 1.3 Accounting Terms and Principles.......................................................28
Section 1.4 Payments..............................................................................28
Section 1.5 Interpretation........................................................................28
ARTICLE 2 THE REVOLVING CREDIT FACILITY..........................................................................29
Section 2.1 The Commitments.......................................................................29
Section 2.2 Borrowing Procedures..................................................................30
Section 2.3 Swing Loans...........................................................................31
Section 2.4 Letters of Credit.....................................................................32
Section 2.5 Reduction and Termination of the Commitments..........................................35
Section 2.6 Repayment of Loans....................................................................35
Section 2.7 Optional Prepayments..................................................................35
Section 2.8 Mandatory Prepayments.................................................................35
Section 2.9 Interest..............................................................................36
Section 2.10 Conversion and Continuation Options...................................................36
Section 2.11 Fees..................................................................................37
Section 2.12 Application of Payments...............................................................38
Section 2.13 Payments and Computations.............................................................39
Section 2.14 Evidence of Debt......................................................................40
Section 2.15 Suspension of Eurodollar Rate Option..................................................41
Section 2.16 Breakage Costs; Increased Costs; Capital Requirements.................................41
Section 2.17 Taxes.................................................................................42
Section 2.18 Substitution of Lenders...............................................................45
Section 2.19 Eligible Accounts.....................................................................45
Section 2.20 Eligible Inventory....................................................................47
ARTICLE 3 CONDITIONS TO LOANS AND LETTERS OF CREDIT..............................................................49
Section 3.1 Conditions Precedent to Initial Loans and Letters of Credit...........................49
Section 3.2 Conditions Precedent to Each Loan and Letter of Credit................................52
Section 3.3 Determinations of Initial Borrowing Conditions........................................52
ARTICLE 4 REPRESENTATIONS AND WARRANTIES.........................................................................52
Section 4.1 Corporate Existence; Compliance with Law..............................................53
Section 4.2 Loan and Related Documents............................................................53
Section 4.3 Ownership of Group Members............................................................54
Section 4.4 Financial Statements..................................................................54
Section 4.5 Material Adverse Effect...............................................................54
Section 4.6 Solvency..............................................................................54
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Section 4.7 Litigation............................................................................55
Section 4.8 Taxes.................................................................................55
Section 4.9 Margin Regulations....................................................................55
Section 4.10 No Defaults...........................................................................55
Section 4.11 Investment Company Act................................................................55
Section 4.12 Labor Matters.........................................................................55
Section 4.13 ERISA.................................................................................56
Section 4.14 Environmental Matters.................................................................56
Section 4.15 Intellectual Property.................................................................56
Section 4.16 Title; Real Property..................................................................57
Section 4.17 Full Disclosure.......................................................................57
Section 4.18 Patriot Act...........................................................................57
ARTICLE 5 OMITTED................................................................................................57
ARTICLE 6 REPORTING COVENANTS....................................................................................57
Section 6.1 Financial Statements..................................................................57
Section 6.2 Other Events..........................................................................61
Section 6.3 Copies of Notices and Reports.........................................................62
Section 6.4 Taxes.................................................................................62
Section 6.5 Labor Matters.........................................................................62
Section 6.6 ERISA Matters.........................................................................62
Section 6.7 Environmental Matters.................................................................62
Section 6.8 Other Information.....................................................................63
ARTICLE 7 AFFIRMATIVE COVENANTS..................................................................................63
Section 7.1 Maintenance of Corporate Existence....................................................63
Section 7.2 Compliance with Laws, Etc.............................................................63
Section 7.3 Payment of Obligations................................................................63
Section 7.4 Maintenance of Property...............................................................63
Section 7.5 Maintenance of Insurance..............................................................64
Section 7.6 Keeping of Books......................................................................64
Section 7.7 Access to Books and Property..........................................................64
Section 7.8 Environmental.........................................................................64
Section 7.9 Use of Proceeds.......................................................................65
Section 7.10 Additional Collateral and Guaranties..................................................65
Section 7.11 Deposit Accounts; Securities Accounts and Cash Collateral Accounts....................66
Section 7.12 Credit Rating.........................................................................66
ARTICLE 8 NEGATIVE COVENANTS.....................................................................................66
Section 8.1 Indebtedness..........................................................................67
Section 8.2 Liens.................................................................................68
Section 8.3 Investments...........................................................................69
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Section 8.4 Asset Sales...........................................................................69
Section 8.5 Restricted Payments...................................................................70
Section 8.6 Prepayment of Indebtedness............................................................71
Section 8.7 Fundamental Changes...................................................................72
Section 8.8 Change in Nature of Business..........................................................72
Section 8.9 Transactions with Affiliates..........................................................72
Section 8.10 Third-Party Restrictions on Indebtedness, Liens, Investments or Restricted Payments...73
Section 8.11 Modification of Certain Documents.....................................................73
Section 8.12 Accounting Changes; Fiscal Year.......................................................74
Section 8.13 Margin Regulations....................................................................74
Section 8.14 Compliance with ERISA.................................................................74
Section 8.15 Hazardous Materials...................................................................74
ARTICLE 9 EVENTS OF DEFAULT......................................................................................74
Section 9.1 Definition............................................................................74
Section 9.2 Remedies..............................................................................76
Section 9.3 Actions in Respect of Letters of Credit...............................................76
ARTICLE 10 THE ADMINISTRATIVE AGENT..............................................................................77
Section 10.1 Appointment and Duties................................................................77
Section 10.2 Binding Effect........................................................................78
Section 10.3 Use of Discretion.....................................................................78
Section 10.4 Delegation of Rights and Duties.......................................................78
Section 10.5 Reliance and Liability................................................................78
Section 10.6 Administrative Agent Individually.....................................................79
Section 10.7 Lender Credit Decision................................................................80
Section 10.8 Expenses; Indemnities.................................................................80
Section 10.9 Resignation of Administrative Agent or L/C Issuer.....................................80
Section 10.10 Release of Collateral or Guarantors...................................................81
Section 10.11 Additional Secured Parties............................................................82
ARTICLE 11 MISCELLANEOUS.........................................................................................82
Section 11.1 Amendments, Waivers, Etc..............................................................82
Section 11.2 Assignments and Participations; Binding Effect........................................84
Section 11.3 Costs and Expenses....................................................................86
Section 11.4 Indemnities...........................................................................86
Section 11.5 Survival..............................................................................87
Section 11.6 Limitation of Liability for Certain Damages...........................................87
Section 11.7 Lender-Creditor Relationship..........................................................87
Section 11.8 Right of Setoff.......................................................................88
Section 11.9 Sharing of Payments, Etc..............................................................88
Section 11.10 Marshaling; Payments Set Aside........................................................88
Section 11.11 Notices...............................................................................88
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Section 11.12 Electronic Transmissions..............................................................89
Section 11.13 Governing Law.........................................................................90
Section 11.14 Jurisdiction..........................................................................90
Section 11.15 Waiver of Jury Trial..................................................................91
SECTION 11.16 Severability..........................................................................91
Section 11.17 Execution in Counterparts.............................................................91
Section 11.18 Entire Agreement......................................................................91
Section 11.19 Use of Name...........................................................................91
Section 11.20 Non-Public Information; Confidentiality...............................................91
Section 11.21 Patriot Act Notice....................................................................92
Schedules
---------
Schedule I - Commitments
Schedule II - Original Letters of Credit
Schedule 1.1(a) - Consolidated EBITDA
Schedule 4.2 - Filings and Permits
Schedule 4.3 - Group Members and Subsidiaries
Schedule 4.12 - Labor Matters
Schedule 4.13 - ERISA
Schedule 4.14 - Environmental Matters
Schedule 4.16 - Real Property
Schedule 8.1 - Indebtedness
Schedule 8.2 - Liens
Schedule 8.3 - Investments
Exhibits
--------
Exhibit A - Form of Assignment Agreement
Exhibit B - Form of Note
Exhibit C - Form of Notice of Borrowing
Exhibit D - Form of Swingline Request
Exhibit E - Form of L/C Request
Exhibit F - Form of Notice of Conversion or Continuation
Exhibit G - Form of Compliance Certificate
Exhibit H - Form of Guaranty and Security Agreement
Exhibit I - Form of Closing Checklist
Exhibit J - Form of Intercreditor Agreement
Exhibit 6.1(k) - Form of Borrowing Base Certificate
REVOLVING CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
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This Revolving Credit Agreement, dated as of MARCH 3, 2008, is
entered into among DAYTON SUPERIOR CORPORATION, a Delaware corporation (the
"Borrower"), the Lenders (as defined below), the L/C Issuers (as defined below)
and GENERAL ELECTRIC CAPITAL CORPORATION ("GE Capital"), as administrative agent
and collateral agent for the Lenders and the L/C Issuers (in such capacity, and
together with its successors and permitted assigns, the "Administrative Agent").
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS
Section 1.1 Defined Terms. As used in this Agreement, the
following terms have the following meanings:
"Account Debtor" means any Person who may become obligated to any Loan
Party under, with respect to, or on account of, an Account, Chattel Paper or
General Intangibles (including a payment intangible).
"Accounts" means all "accounts," as such term is defined in the UCC,
now owned or hereafter acquired by any Loan Party, including (a) all accounts
receivable, other receivables, Rentals, book debts and other forms of
obligations (other than, except in the case of Rentals, forms of obligations
evidenced by Chattel Paper or Instruments), (including any such obligations that
may be characterized as an account or contract right under the UCC), (b) all of
each Loan Party's rights in, to and under all purchase orders or receipts for
goods or services, (c) all of each Loan Party's rights to any goods represented
by any of the foregoing (including unpaid sellers' rights of rescission,
replevin, reclamation and stoppage in transit and rights to returned, reclaimed
or repossessed goods), (d) all rights to payment due to any Loan Party for
property sold, leased, licensed, assigned or otherwise disposed of, for a policy
of insurance issued or to be issued, for a secondary obligation incurred or to
be incurred, for energy provided or to be provided, for the use or hire of a
vessel under a charter or other contract, arising out of the use of a credit
card or charge card, or for services rendered or to be rendered by such Loan
Party or in connection with any other transaction (whether or not yet earned by
performance on the part of such Loan Party), (e) all healthcare insurance
receivables, and (f) all collateral security of any kind, now or hereafter in
existence, given by any Account Debtor or other Person with respect to any of
the foregoing.
"Affected Lender" has the meaning specified in Section 2.18.
"Affiliate" means, with respect to any Person, each officer, director,
general partner or joint-venturer of such Person and any other Person that
directly or indirectly controls, is controlled by, or is under common control
with, such Person; provided, however, that no Secured Party shall be an
Affiliate of the Borrower. For purpose of this definition, "control" means the
possession of either (a) the power to vote, or the beneficial ownership of, 10%
or more of the Voting Stock of such Person or (b) the power to direct or cause
the direction of the management and policies of such Person, whether by contract
or otherwise.
"Agreement" means this Revolving Credit Agreement, as it may be
amended, restated, supplemented or otherwise modified from time to time.
"Applicable Margin" means, with respect to Revolving Loans and Swing
Loans (in each case, except in the case of any Special Overadvance), a
percentage equal to (a) during the period commencing on the Closing Date and
ending on the first date of determination (as set forth below) after the Closing
REVOLVING CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
Date, the percentage set forth in the applicable column opposite Level II in the
table set forth below and (b) thereafter, as of each date of determination (as
set forth below) (and until the next such date of determination), a percentage
equal to the percentage set forth below in the applicable column opposite the
level corresponding to the daily average Borrowing Availability as of the last
day of the most recently ended Fiscal Quarter:
------------------------------- ------------------------------------------------
If Daily Average Borrowing Level of Applicable Margins:
Availability for the Fiscal
Quarter is:
------------------------------- ------------------------------------------------
less than $40,000,000 Level I
------------------------------- ------------------------------------------------
less than $65,000,000, but Level II
equal to or more than
$40,000,000
------------------------------- ------------------------------------------------
more than 65,000,000 Level III
------------------------------- ------------------------------------------------
---------------------------------- ---------------------------------------------
Applicable Margins
---------------------------------- ---------------------------------------------
Level I Level II Level III
---------------------------------- -------------- --------------- --------------
Applicable Margin for Base
Rate Loans 1.50% 1.25% 1.00%
---------------------------------- -------------- --------------- --------------
Applicable Margin for
Eurodollar Rate Loans 2.50% 2.25% 2.00%
---------------------------------- -------------- --------------- --------------
Each date of determination for the "Applicable Margin" shall be the
first day of the calendar month that occurs at least one day after delivery by
the Borrower to the Administrative Agent of quarterly unaudited Financial
Statements (with the accompanying Compliance Certificate) pursuant to Section
6.1(d). Notwithstanding anything to the contrary set forth in this Agreement,
the Applicable Margin shall equal the percentage set forth in the appropriate
row below Level I in the table above, effective immediately upon (x) the
occurrence of an Event of Default under Section 9.1(e)(ii) or (y) the delivery
of a notice by the Administrative Agent or the Required Lenders to the Borrower
during the continuance of any other Event of Default pursuant to Sections
9.1(a), 9.1(c)(i), 9.1(d), 9.1(e)(i), 9.1(e)(iii) or 9.1(f) and, in each case,
for as long as such Event of Default shall be continuing.
In the case of any Special Overadvance, "Applicable Margin" means (a)
in the case of any portion of any Special Overadvance consisting of Base Rate
Loan, 4.00% per annum and (b) in the case of any portion of any Special
Overadvance consisting of Eurodollar Rate Loans, 5.00% per annum.
"Approved Fund" means, with respect to any Lender, any Person (other
than a natural Person) that (a) is or will be engaged in making, purchasing,
holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business and (b) is advised or managed by
(i) such Lender, (ii) any Affiliate of such Lender or (iii) any Person (other
than an individual) or any Affiliate of any Person (other than an individual)
that administers or manages such Lender.
"Assignment" means an assignment agreement entered into by a Lender, as
assignor, and any Person, as assignee, pursuant to the terms and provisions of
Section 11.2 (with the consent of any party whose consent is required by Section
11.2), accepted by the Administrative Agent, in substantially the form of
Exhibit A, or any other form approved by the Administrative Agent.
"Base Rate" means, at any time, a rate per annum equal to the higher of
(a) the rate last quoted by The Wall Street Journal as the "base rate on
corporate loans posted by at least 75% of the nation's largest banks" in the
United States or, if The Wall Street Journal ceases to quote such rate, the
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[DAYTON SUPERIOR CORPORATION]
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highest per annum interest rate published by the Federal Reserve Board in
Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the
"bank prime loan" rate or, if such rate is no longer quoted therein, any similar
rate quoted therein (as determined by the Administrative Agent) or any similar
release by the Federal Reserve Board (as determined by the Administrative Agent)
and (b) the sum of 0.5% per annum and the Federal Funds Rate.
"Base Rate Loan" means any Loan that bears interest based on the Base
Rate.
"Benefit Plan" means any employee benefit plan as defined in Section
3(3) of ERISA (whether governed by the laws of the United States or otherwise)
to which any Group Member incurs or otherwise has any obligation or liability,
contingent or otherwise.
"Borrowing" means a borrowing consisting of Loans (other than Swing
Loans and Loans deemed made pursuant to Section 2.3 or 2.4) made on the same day
by the Lenders according to their respective Commitments.
"Borrowing Availability" means as of any date of determination the
least of (i) the aggregate Commitments less the sum of (a) any Revolving Loans
then outstanding (including, without duplication, the outstanding balance of L/C
Obligations then outstanding), and (b) any Swing Loans then outstanding, (ii)
the Borrowing Base, less the sum of (a) any Revolving Loans then outstanding
(including, without duplication, the outstanding balance of L/C Obligations then
outstanding), and (b) any Swing Loans then outstanding, and (iii) for so long as
any Senior Subordinated Notes are outstanding, the maximum amount that if
advanced on such date under this Agreement, whether as a Revolving Loan or a
Letter of Credit, would constitute "Permitted Indebtedness" (under and as such
term is defined in the Senior Subordinated Notes Indenture as in effect at such
date).
"Borrowing Base" means, as of any date of determination by the
Administrative Agent, an amount equal to the sum at such time of:
(a) 85% of the net amount of Eligible Accounts of the Borrower and
its Domestic Subsidiaries which are not more than 120 days past invoice date and
80% of the net amount of Eligible Accounts of the Borrower and its Domestic
Subsidiaries which are more than 120 and not more than 150 days past invoice
date, in each case, at such time (such percentages being subject to adjustment
as provided in Section 2.19); plus
(b) (i) the lesser of (x) 60% of the cost of Eligible Inventory
(other than Rental Fleet) or (y) 85% of the Net Orderly Liquidation Value of
Eligible Inventory (other than Rental Fleet) of the Borrower and its Domestic
Subsidiaries (such percentages being subject to adjustment as provided in
Section 2.20), plus (ii) the lesser of (x) 60% of the cost of the Rental Fleet
or (y) 85% of the Net Orderly Liquidation Value of the Rental Fleet of the
Borrower and its Domestic Subsidiaries (such percentages being subject to
adjustment as provided in Section 2.20); minus
(c) Reserves required by the Administrative Agent in its Permitted
Discretion; minus
(d) $15,000,000.
"Borrowing Base Availability Limitation" means the limitation on Loans
and Letters of Credit imposed by clause (ii) of the definition of Borrowing
Availability.
"Borrowing Base Certificate" has the meaning provided in Section
6.1(k).
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[DAYTON SUPERIOR CORPORATION]
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"Business Day" means any day of the year that is not a Saturday, Sunday
or a day on which banks are required or authorized to close in New York City
and, when determined in connection with notices and determinations in respect of
any Eurodollar Rate or Eurodollar Rate Loan or any funding, conversion,
continuation, Interest Period or payment of any Eurodollar Rate Loan, that is
also a day on which dealings in Dollar deposits are carried on in the London
interbank market.
"Capital Lease" means, with respect to any Person, any lease of, or
other arrangement conveying the right to use, any property (whether real,
personal or mixed) by such Person as lessee that has been or should be accounted
for as a capital lease on a balance sheet of such Person prepared in accordance
with GAAP.
"Capitalized Lease Obligations" means, at any time, with respect to any
Capital Lease, any lease entered into as part of any Sale and Leaseback
Transaction of any Person or any synthetic lease, the amount of all obligations
of such Person that is (or that would be, if such synthetic lease or other lease
were accounted for as a Capital Lease) capitalized on a balance sheet of such
Person prepared in accordance with GAAP.
"Cash Collateral Account" means a deposit account or securities account
in the name of the Borrower and under the sole control (as defined in the
applicable UCC) of the Administrative Agent and (a) in the case of a deposit
account, from which the Borrower may not make withdrawals except as permitted by
the Administrative Agent and (b) in the case of a securities account, with
respect to which the Administrative Agent shall be the entitlement holder and
the only Person authorized to give entitlement orders with respect thereto.
"Cash Equivalents" means (a) any readily-marketable securities (i)
issued by, or directly, unconditionally and fully guaranteed or insured by the
United States federal government or (ii) issued by any agency of the United
States federal government the obligations of which are fully backed by the full
faith and credit of the United States federal government, (b) any
readily-marketable direct obligations issued by any other agency of the United
States federal government, any state of the United States or any political
subdivision of any such state or any public instrumentality thereof, in each
case having a rating of at least "A-1" from S&P or at least "P-1" from Moody's,
(c) any commercial paper rated at least "A-1" by S&P or "P-1" by Moody's and
issued by any Person organized under the laws of any state of the United States,
(d) any Dollar-denominated time deposit, insured certificate of deposit,
overnight bank deposit or bankers' acceptance issued or accepted by (i) any
Lender or (ii) any commercial bank that is (A) organized under the laws of the
United States, any state thereof or the District of Columbia, (B) "adequately
capitalized" (as defined in the regulations of its primary federal banking
regulators) and (C) has Tier 1 capital (as defined in such regulations) in
excess of $250,000,000 and (e) shares of any United States money market fund
that (i) has substantially all of its assets invested continuously in the types
of investments referred to in clause (a), (b), (c) or (d) above with maturities
as set forth in the proviso below, (ii) has net assets in excess of $500,000,000
and (iii) has obtained from either S&P or Moody's the highest rating obtainable
for money market funds in the United States; provided, however, that the
maturities of all obligations specified in any of clauses (a), (b), (c) and (d)
above shall not exceed 365 days.
"CERCLA" means the United States Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. xx.xx. 9601 et seq.).
"Change of Control" means any of the following: (i) (x) any "person" or
"group" (as such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), other than Odyssey
Investment Partners, one or more of its Related Parties or a Permitted Group,
shall become, or obtain rights (whether by means of warrants, options or
REVOLVING CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
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otherwise) to become, the "beneficial owner" (as defined in Rules 13(d)-3 and
13(d)-5 under the Exchange Act, except that such person or group shall be deemed
to have beneficial ownership of all shares that any such person or group has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 35% of the voting
power of the issued and outstanding shares of Stock of the Borrower having the
right to vote for the election of directors of the Borrower under ordinary
circumstances, and (y) Odyssey Investment Partners and its Related Parties and
any Permitted Group collectively "beneficially own" (as defined above), directly
or indirectly, in the aggregate a lesser percentage than such "person" or
"group" of the voting power of the issued and outstanding shares of Stock of the
Borrower having the right to vote for the election of directors of the Borrower
under ordinary circumstances and do not have the right or ability to designate
for election a majority of the Board of Directors of the Borrower; or (ii) for
so long as any Senior Subordinated Notes are outstanding, the occurrence of a
"Change of Control" (as defined in the Senior Subordinated Notes Indenture).
For the purpose of this definition, a person or group shall be deemed
to beneficially own Stock in a person held by a parent entity if such person or
group beneficially owns (as defined above) more than 50% of the issued and
outstanding shares of Stock of such parent entity having the right to vote for
the election of directors of such parent entity under ordinary circumstances.
"Chattel Paper" means any "chattel paper," as such term is defined in
the UCC, including electronic chattel paper, now owned or hereafter acquired in
connection with this Agreement, the other Loan Documents and the transactions
contemplated thereunder.
"Closing Checklist" means the checklist of closing items attached
hereto as Exhibit I.
"Closing Date" means the date and time at which the first Loan is made
or any Letter of Credit is issued hereunder.
"Code" means the U.S. Internal Revenue Code of 1986.
"Collateral" means all property and interests in property and proceeds
thereof now owned or hereafter acquired by any Loan Party in or upon which a
Lien is granted or purported to be granted pursuant to any Loan Document.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans and acquire interests in other Revolving Credit
Outstandings, which commitment is in the amount set forth opposite such Lender's
name on Schedule I under the caption "Commitment", as amended to reflect
Assignments and as such amount may be reduced pursuant to this Agreement. The
aggregate amount of the Commitments on the date hereof equals $150,000,000.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit G.
"Consolidated" means, with respect to any Person, the accounts of such
Person and its Subsidiaries consolidated in accordance with GAAP.
"Consolidated EBITDA" means, with respect to any Person for any period,
(a) the Consolidated Net Income of such Person for such period plus (b) the sum
of, in each case to the extent included in the calculation of such Consolidated
Net Income but without duplication, (i) any provision for United States federal
income taxes or other taxes measured by net income, (ii) Consolidated Interest
Expense, amortization of debt discount and commissions and other fees and
charges associated with Indebtedness (including, in the case of the Borrower,
the Loans and Letters of Credit and the "Loans" under and as defined in the Term
Loan Credit Agreement), (iii) any loss from extraordinary items, (iv) any
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depreciation, depletion or amortization expense, (v) any aggregate net loss on
the Sale of property (other than accounts (as defined under the applicable UCC)
and inventory) outside the ordinary course of business, (vi) any other non-cash
expenditure, charge or loss for such period (including, but not limited to,
impairment of goodwill and excluding any non-cash expenditure, charge or loss
relating to write-offs, write-downs or reserves with respect to accounts and
inventory), including the amount of any compensation deduction as the result of
any grant of Stock or Stock Equivalents to employees, officers, directors or
consultants, (vii) any financial advisory fees, accounting fees, legal fees and
other similar advisory and consulting fees and out-of-pocket expenses and
redemption premiums and costs incurred in connection with the Revolving Credit
Facility, the Term Loan Facility, the redemption of the Senior Notes or the
Senior Subordinated Notes or the refinancing of the Existing Credit Agreement or
any actual or proposed Permitted Investment (including any Permitted
Acquisition) or issuance of Permitted Indebtedness, (viii) expenses incurred in
connection with any Permitted Acquisition (whether or not consummated),
including expenses for early retirement of Indebtedness, consolidation or
discontinuance of any portion of the operations, employees and/or management, in
each case whether or not classified as restructuring charges under GAAP, (ix)
any one-time or non-recurring cash charges resulting from severance, relocation,
restructuring, integration and other similar adjustments, whether or not
classified as restructuring charges under GAAP or any business optimization
costs and expenses, in an aggregate amount not to exceed $5,000,000 during any
Fiscal Year and minus (c) the sum of, in each case to the extent included in the
calculation of such Consolidated Net Income and without duplication, (i) any
credit for United States federal income taxes or other taxes measured by net
income, (ii) any interest income, (iii) any gain from extraordinary items and
any other non-recurring gain, (iv) any aggregate net gain from the Sale of
property (other than accounts (as defined in the applicable UCC) and inventory)
out of the ordinary course of business by such Person, (v) any other non-cash
gain, including any reversal of a charge referred to in clause (b)(vi) above by
reason of a decrease in the value of any Stock or Stock Equivalent, and (vi) any
other cash payment in respect of expenditures, charges and losses that have been
added to Consolidated EBITDA of such Person pursuant to clause (b)(vi) above in
any prior period. It is agreed that Consolidated EBITDA for the Fiscal Months
ended December 31, 2006 through December 31, 2007 is as set forth on Schedule
1.1(a).
"Consolidated Interest Expense" means, for any Person for any period,
(a) Consolidated total interest expense of such Person and its Subsidiaries for
such period and including, in any event, (i) interest capitalized during such
period and net costs under Interest Rate Contracts for such period and (ii) all
fees, charges, commissions, discounts and other similar obligations (other than
reimbursement obligations) with respect to letters of credit, bank guarantees,
banker's acceptances, surety bonds and performance bonds (whether or not
matured) payable by such Person and its Subsidiaries during such period minus
(b) the sum of (i) Consolidated net gains of such Person and its Subsidiaries
under Interest Rate Contracts for such period and (ii) Consolidated interest
income of such Person and its Subsidiaries for such period.
"Consolidated Net Income" means, with respect to any Person, for any
period, the Consolidated net income (or loss) of such Person and its
Subsidiaries for such period; provided, however, that the following shall be
excluded: (a) the net income of any other Person in which such Person or one of
its Subsidiaries has a joint interest with a third-party (which interest does
not cause the net income of such other Person to be Consolidated into the net
income of such Person), except to the extent of the amount of dividends or
distributions paid to such Person or Subsidiary, (b) the net income of any
Subsidiary of such Person that is, on the last day of such period, subject to
any restriction or limitation on the payment of dividends or the making of other
distributions, to the extent of such restriction or limitation and (c) the net
income of any other Person arising prior to such other Person becoming a
Subsidiary of such Person or merging or consolidating into such Person or its
Subsidiaries.
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"Constituent Documents" means, with respect to any Person, collectively
and, in each case, together with any modification of any term thereof, (a) the
articles of incorporation, certificate of incorporation, constitution or
certificate of formation of such Person, (b) the bylaws, operating agreement or
joint venture agreement of such Person, (c) any other constitutive,
organizational or governing document of such Person, whether or not equivalent,
and (d) any other document setting forth the manner of election or duties of the
directors, officers or managing members of such Person or the designation,
amount or relative rights, limitations and preferences of any Stock of such
Person.
"Contractual Obligation" means, with respect to any Person, any
provision of any Security issued by such Person or of any document or
undertaking (other than a Loan Document) to which such Person is a party or by
which it or any of its property is bound or to which any of its property is
subject.
"Control Agreement" means, with respect to any deposit account (other
than Excluded Accounts), any securities account, commodity account, securities
entitlement or commodity contract, an agreement, in form and substance
reasonably satisfactory to the Administrative Agent, among the Administrative
Agent, the financial institution or other Person at which such account is
maintained or with which such entitlement or contract is carried and the Loan
Party maintaining such account, entitlement or contract effective to grant
"control" (as defined under the applicable UCC) over such account, securities
entitlement or commodities contract to the Administrative Agent.
"Controlled Deposit Account" means each deposit account (including all
funds on deposit therein and excluding any Excluded Accounts) that is the
subject of an effective Control Agreement and that is maintained by any Loan
Party with a financial institution approved by the Administrative Agent.
"Controlled Securities Account" means each securities account or
commodity account (including all financial assets held therein and all
certificates and instruments, if any, representing or evidencing such financial
assets) that is the subject of an effective Control Agreement and that is
maintained by any Loan Party with a securities intermediary or commodity
intermediary approved by the Administrative Agent.
"Copyrights" means all rights, title and interests (and all related IP
Ancillary Rights) arising under any Requirement of Law in or relating to
copyrights and all mask work, database and design rights, whether or not
registered or published, all registrations and recordations thereof and all
applications in connection therewith.
"Corporate Chart" means a document in form reasonably acceptable to the
Administrative Agent and setting forth, as of a date set forth therein, for each
Person that is a Loan Party, that is subject to Section 7.10 or that is a
Subsidiary or joint venture of any of them, (a) the full legal name of such
Person, (b) the jurisdiction of organization and any organizational number and
tax identification number of such Person, (c) the location of such Person's
chief executive office (or, if applicable, sole place of business) and (d) the
number of shares of each class of Stock of such Person authorized, the number
outstanding and the number and percentage of such outstanding shares for each
such class owned, directly or indirectly, by any Loan Party or any Subsidiary of
any of them.
"Customary Permitted Liens" means, with respect to any Person, any of
the following:
(a) Liens (i) with respect to the payment of taxes, assessments or
other governmental charges or (ii) of suppliers, carriers, materialmen,
warehousemen, workmen or mechanics and other similar Liens, in each case imposed
by law or arising in the ordinary course of business, and, for each of the Liens
in clauses (i) and (ii) above for amounts that are not yet due or that are being
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contested in good faith by appropriate proceedings diligently conducted and with
respect to which adequate reserves or other appropriate provisions are
maintained on the books of such Person in accordance with GAAP;
(b) Liens of a collection bank on items in the course of
collection arising under Section 4-208 of the UCC as in effect in the State of
New York or any similar section under any applicable UCC or any similar
Requirement of Law of any foreign jurisdiction;
(c) pledges or cash deposits made in the ordinary course of
business (i) in connection with workers' compensation, unemployment insurance or
other types of social security benefits (other than any Lien imposed by ERISA),
(ii) to secure the performance of bids, tenders, leases (other than Capital
Leases) sales or other trade contracts (other than for the repayment of borrowed
money) or (iii) made in lieu of, or to secure the performance of, surety,
customs, reclamation or performance bonds (in each case not related to judgments
or litigation);
(d) judgment liens (other than for the payment of taxes,
assessments or other governmental charges) securing judgments and other
proceedings not constituting an Event of Default under Section 9.1(e) and
pledges or cash deposits made in lieu of, or to secure the performance of,
judgment or appeal bonds in respect of such judgments and proceedings;
(e) Liens (i) arising by reason of zoning restrictions, easements,
licenses, reservations, restrictions, covenants, rights-of-way, encroachments,
minor defects or irregularities in title (including leasehold title) and other
similar encumbrances on the use of real property or (ii) consisting of leases,
licenses or subleases granted by a lessor, licensor or sublessor on its property
(in each case other than Capital Leases) otherwise permitted under Section 8.4
that, for each of the Liens in clauses (i) and (ii) above, do not, in the
aggregate, materially (x) impair the value or marketability of such real
property or (y) interfere with the ordinary conduct of the business conducted
and proposed to be conducted at such real property;
(f) Liens of landlords and mortgagees of landlords (i) arising by
statute or under any lease or related Contractual Obligation entered into in the
ordinary course of business, (ii) on fixtures and movable tangible property
located on the real property leased or subleased from such landlord, (iii) for
amounts not yet due or that are being contested in good faith by appropriate
proceedings diligently conducted and (iv) for which adequate reserves or other
appropriate provisions are maintained on the books of such Person in accordance
with GAAP; and
(g) the title and interest of a lessor or sublessor in and to
personal property leased or subleased (other than through a Capital Lease), in
each case extending only to such personal property.
"Default" means any Event of Default and any event that, with the
passing of time or the giving of notice or both, would become an Event of
Default.
"Disclosure Documents" means, collectively, (a) all confidential
information memoranda and related materials prepared in connection with the
syndication of the Revolving Credit Facility and (b) all other documents filed
by any Group Member with the United States Securities and Exchange Commission.
"Disqualified Stock" means that portion of any Stock or Stock
Equivalents which, by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event (other than an event which would
constitute a Change of Control), matures (excluding any maturity as the result
of an optional redemption by the issuer thereof) or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole
REVOLVING CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
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option of the holder thereof (except, in each case, upon the occurrence of a
Change of Control) on or before the date that is six months after the 6th
anniversary of the Closing Date.
"Dollars" and the sign "$" each mean the lawful money of the United
States.
"Domestic Person" means any "United States person" under and as defined
in Section 770l(a)(30) of the Code.
"Domestic Subsidiaries" means each Subsidiary of the Borrower that is
organized under the laws of a State of the United States or the District of
Columbia.
"E-Fax" means any system used to receive or transmit faxes
electronically.
"Electronic Transmission" means each document, instruction,
authorization, file, information and any other communication transmitted, posted
or otherwise made or communicated by e-mail or E-Fax, or otherwise to or from an
E-System or other equivalent service.
"Eligible Accounts" has the meaning provided in Section 2.19.
"Eligible Inventory" has the meaning provided in Section 2.20.
"Environmental Laws" means all Requirements of Law and Permits imposing
liability or standards of conduct for or relating to the regulation of Hazardous
Materials and/or the protection of human health, safety, the environment and
natural resources, including CERCLA, the SWDA, the Hazardous Materials
Transportation Act (49 U.S.C. xx.xx. 5101 et seq.), the Federal Insecticide,
Fungicide, and Rodenticide Act (7 U.S.C. xx.xx. 136 et seq.), the Toxic
Substances Control Act (15 U.S.C. xx.xx. 2601 et seq.), the Clean Air Act (42
U.S.C. xx.xx. 7401 et seq.), the Federal Water Pollution Control Act (33 U.S.C.
xx.xx. 1251 et seq.), the Occupational Safety and Health Act (29 U.S.C. xx.xx.
651 et seq.), the Safe Drinking Water Act (42 U.S.C. xx.xx. 300(f) et seq.), all
regulations promulgated under any of the foregoing, all analogous Requirements
of Law and Permits and any environmental transfer of ownership notification or
approval statutes, including the Industrial Site Recovery Act (N.J. Stat. Xxx.
xx.xx. 13:1K-6 et seq.).
"Environmental Liabilities" means all Liabilities (including costs of
Remedial Actions, natural resource damages and costs and expenses of
investigation and feasibility studies) that may be imposed on, incurred by or
asserted against any Group Member as a result of, or related to, any claim,
suit, action, investigation, proceeding or written demand by any Person, whether
based in contract, tort, implied or express warranty, strict liability, criminal
or civil statute or common law or otherwise, arising under any Environmental Law
or in connection with any environmental condition or with any Release and
resulting from the ownership, lease, sublease or other operation or occupation
of property by any Group Member, whether on, prior or after the date hereof.
"ERISA" means the United States Employee Retirement Income Security Act
of 1974.
"ERISA Affiliate" means, collectively, any Group Member, and any Person
under common control, or treated as a single employer, with any Group Member,
within the meaning of Section 414(b), (c), (m) or (o) of the Code.
"ERISA Event" means any of the following: (a) a reportable event
described in Section 4043(b) of ERISA (or, unless the 30-day notice requirement
has been duly waived under the applicable regulations, Section 4043(c) of ERISA)
with respect to a Title IV Plan, (b) the withdrawal of any ERISA Affiliate from
a Title IV Plan subject to Section 4063 of ERISA during a plan year in which it
REVOLVING CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
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was a substantial employer, as defined in Section 4001(a)(2) of ERISA, (c) the
complete or partial withdrawal of any ERISA Affiliate from any Multiemployer
Plan, (d) with respect to any Multiemployer Plan, the filing of a notice of
reorganization, insolvency or termination (or treatment of a plan amendment as
termination) under Section 4041A of ERISA, (e) the filing of a notice of intent
to terminate a Title IV Plan (or treatment of a plan amendment as termination)
under Section 4041 of ERISA, (f) the institution of proceedings to terminate a
Title IV Plan or Multiemployer Plan by the PBGC, (g) the failure to make any
required contribution to any Title IV Plan or Multiemployer Plan when due, (h)
the imposition of a lien under Section 430(k) of the Code or Section 303(k) or
4068 of ERISA on any property (or rights to property, whether real or personal)
of any ERISA Affiliate, or a violation of Section 436 of the Code with respect
to a Title IV Plan, (i) the failure of a Benefit Plan or any trust thereunder
intended to qualify for tax exempt status under Section 401 or 501 of the Code
or other Requirements of Law to qualify thereunder and (j) any other event or
condition that might reasonably be expected to constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Title IV Plan or Multiemployer Plan or for the imposition of any
liability upon any ERISA Affiliate under Title IV of ERISA other than for PBGC
premiums due but not delinquent.
"E-Signature" means the process of attaching to or logically
associating with an Electronic Transmission an electronic symbol, encryption,
digital signature or process (including the name or an abbreviation of the name
of the party transmitting the Electronic Transmission) with the intent to sign,
authenticate or accept such Electronic Transmission.
"E-System" means any electronic system, including Intralinks(R) and
CleraPar(R) and any other Internet or extranet-based site, whether such
electronic system is owned, operated or hosted by the Administrative Agent, any
of its Related Persons or any other Person, providing for access to data
protected by passcodes or other security system.
"Eurodollar Base Rate" means, with respect to any Interest Period for
any Eurodollar Rate Loan, the rate determined by the Administrative Agent to be
the offered rate for deposits in Dollars for the applicable Interest Period
appearing on the Reuters Screen LIBOR01 page as of 11:00 a.m. (London time) on
the second full Business Day next preceding the first day of each Interest
Period. In the event that such rate does not appear on the Reuters Screen
LIBOR01 page at such time, the "Eurodollar Base Rate" shall be determined by
reference to such other comparable publicly available service for displaying the
offered rate for deposit in Dollars in the London interbank market as may be
selected by the Administrative Agent and, in the absence of availability, such
other method to determine such offered rate as may be selected by the
Administrative Agent in its sole discretion.
"Eurodollar Rate" means, with respect to any Interest Period and for
any Eurodollar Rate Loan, an interest rate per annum determined as the ratio of
(a) the Eurodollar Base Rate with respect to such Interest Period for such
Eurodollar Rate Loan to (b) the difference between the number one and the
Eurodollar Reserve Requirements with respect to such Interest Period and for
such Eurodollar Rate Loan.
"Eurodollar Rate Loan" means any Loan that bears interest based on the
Eurodollar Rate.
"Eurodollar Reserve Requirements" means, with respect to any Interest
Period and for any Eurodollar Rate Loan, a rate per annum equal to the
aggregate, without duplication, of the maximum rates (expressed as a decimal
number) of reserve requirements in effect 2 Business Days prior to the first day
of such Interest Period (including basic, supplemental, marginal and emergency
reserves) under any regulations of the Federal Reserve Board or other
Governmental Authority having jurisdiction with respect thereto dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as "eurocurrency liabilities" in Regulation D of the Federal Reserve Board)
maintained by a member bank of the United States Federal Reserve System.
REVOLVING CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
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"Event of Default" has the meaning specified in Section 9.1.
"Excluded Accounts" means any (a) zero balance payroll, withholding tax
and other fiduciary accounts of any Group Member and (b) other deposit accounts
of any Group Member that in the aggregate do not hold more than $250,000 on an
overnight basis.
"Excluded Foreign Subsidiary" means (a) any Subsidiary of the Borrower
that is not a Domestic Person or is a Domestic Person all or substantially all
of whose assets consists of Stock of Subsidiaries that are not Domestic Persons,
and in respect of which the pledge of all of the Stock of such Subsidiary as
Collateral for any Obligation of the Borrower, would, in the good faith judgment
of the Borrower, result in materially adverse tax consequences to the Loan
Parties and their Subsidiaries, taken as a whole, and which has not guaranteed
any material Indebtedness of the Borrower or any Domestic Subsidiary of the
Borrower and more than 66 2/3% of the voting stock of such Domestic Person has
not been pledged to secure any such Indebtedness and (b) provided that it has
not guaranteed any material Indebtedness of the Borrower or any Domestic
Subsidiary thereof, Dayton Superior Canada Ltd.
"Existing Agent" means General Electric Capital Corporation, in its
capacity as administrative agent under the Existing Credit Agreement.
"Existing Credit Agreement" means that certain Credit Agreement, dated
as of January 30, 2004, as amended, among the Borrower, the institutions party
thereto as lenders and issuers and the Existing Agent.
"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 determined by the
Administrative Agent in its sole discretion.
"Federal Reserve Board" means the Board of Governors of the United
States Federal Reserve System and any successor thereto.
"Fee Letter" means the letter agreement, dated as of November 13, 2007,
addressed to the Borrower from the Administrative Agent and accepted by the
Borrower, with respect to certain fees to be paid from time to time to the
Administrative Agent and its Related Persons.
"Financial Statement" means each financial statement delivered pursuant
to Section 4.4 or 6.1.
"Fiscal Month" means any of the monthly accounting periods of the
Borrower.
"Fiscal Quarter" means each 3 Fiscal Month period ending on March 31,
June 30, September 30 or December 31.
"Fiscal Year" means the twelve-month period ending on December 31.
"GAAP" means generally accepted accounting principles in the United
States, as in effect from time to time, set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants, in the statements and pronouncements of the
Financial Accounting Standards Board and in such other statements by such other
entity as may be in general use by significant segments of the accounting
profession that are applicable to the circumstances as of the date of
determination. Subject to Section 1.3, all references to "GAAP" shall be to GAAP
REVOLVING CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
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applied consistently with the principles used in the preparation of the
Financial Statements described in Section 4.4(a).
"General Intangibles" means "general intangibles," as such term is
defined in the UCC, now owned or hereafter acquired by any Loan Party, including
all right, title and interest that such Loan Party may now or hereafter have in
or under any Contractual Obligation, all payment intangibles, customer lists,
licenses, Copyrights, Trademarks, Patents, and all applications therefor and
reissues, extensions or renewals thereof, rights in Intellectual Property,
interests in partnerships, joint ventures and other business associations,
licenses, permits, copyrights, trade secrets, proprietary or confidential
information, inventions (whether or not patented or patentable), technical
information, procedures, designs, knowledge, know-how, software, data bases,
data, skill, expertise, experience, processes, models, drawings, materials and
records, goodwill (including the goodwill associated with any Trademark or
Trademark license), all rights and claims in or under insurance policies
(including insurance for fire, damage, loss and casualty, whether covering
personal property, real property, tangible rights or intangible rights, all
liability, life, key man and business interruption insurance, and all unearned
premiums), uncertificated securities, chooses in action, deposit, checking and
other bank accounts, rights to receive tax refunds and other payments, rights to
receive dividends, distributions, cash, Instruments and other property in
respect of or in exchange for pledged Stock and Investment Property, rights of
indemnification, all books and records, correspondence, credit files, invoices
and other papers, including all tapes, cards, computer runs and other papers and
documents in the possession or under the control of such Loan Party or any
computer bureau or service company from time to time acting for such Loan Party.
"Governmental Authority" means any nation, sovereign or government, any
state or other political subdivision thereof, any agency, authority or
instrumentality thereof and any entity or authority exercising executive,
legislative, taxing, judicial, regulatory or administrative functions of or
pertaining to government, including any central bank, stock exchange, regulatory
body, arbitrator, public sector entity, supra-national entity (including the
European Union and the European Central Bank) and any self-regulatory
organization (including the National Association of Insurance Commissioners).
"Group Members" means, collectively, the Borrower and its Subsidiaries.
"Group Members' Accountants" means Deloitte & Touche USA LLP or other
nationally-recognized independent registered certified public accountants
designated by the Borrower and reasonably acceptable to the Administrative
Agent.
"Guarantor" means each Subsidiary of the Borrower listed on Schedule
4.3 that is a Domestic Subsidiary and party to the Guaranty and Security
Agreement on the Closing Date and, after the Closing Date, each other Subsidiary
of the Borrower that is a Domestic Subsidiary and is not an Excluded Foreign
Subsidiary and that becomes a party to the Guaranty and Security Agreement
pursuant to Section 7.10.
"Guaranty and Security Agreement" means a guaranty and security
agreement, in substantially the form of Exhibit H, among the Administrative
Agent, the Borrower and each Guarantor from time to time party thereto, as the
same may from time to time be amended, restated, supplemented or otherwise
modified.
"Guaranty Obligation" means, as applied to any Person, any direct or
indirect liability, contingent or otherwise, of such Person for any
Indebtedness, lease, dividend or other obligation (the "primary obligation") of
another Person (the "primary obligor"), if the purpose or intent of such Person
in incurring such liability, or the economic effect thereof, is to guarantee
such primary obligation or provide support, assurance or comfort to the holder
of such primary obligation or to protect or indemnify such holder against loss
with respect to such primary obligation, including (a) the direct or indirect
REVOLVING CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
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guaranty, endorsement (other than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with recourse
by such Person of any primary obligation, (b) the incurrence of reimbursement
obligations with respect to any letter of credit or bank guarantee in support of
any primary obligation, (c) the existence of any Lien, or any right, contingent
or otherwise, to receive a Lien, on the property of such Person securing any
part of any primary obligation and (d) any liability of such Person for a
primary obligation through any Contractual Obligation (contingent or otherwise)
or other arrangement (i) to purchase, repurchase or otherwise acquire such
primary obligation or any security therefor or to provide funds for the payment
or discharge of such primary obligation (whether in the form of a loan, advance,
stock purchase, capital contribution or otherwise), (ii) to maintain the
solvency, working capital, equity capital or any balance sheet item, level of
income or cash flow, liquidity or financial condition of any primary obligor,
(iii) to make take-or-pay or similar payments, if required, regardless of
non-performance by any other party to any Contractual Obligation, (iv) to
purchase, sell or lease (as lessor or lessee) any property, or to purchase or
sell services, primarily for the purpose of enabling the primary obligor to
satisfy such primary obligation or to protect the holder of such primary
obligation against loss or (v) to supply funds to or in any other manner invest
in, such primary obligor (including to pay for property or services irrespective
of whether such property is received or such services are rendered); provided,
however, that "Guaranty Obligations" shall not include (x) endorsements for
collection or deposit in the ordinary course of business and (y) product
warranties given in the ordinary course of business. The outstanding amount of
any Guaranty Obligation shall equal the outstanding amount of the primary
obligation so guaranteed or otherwise supported or, if lower, the stated maximum
amount for which such Person may be liable under such Guaranty Obligation.
"Hazardous Material" means any substance, material or waste that is
classified, regulated or otherwise characterized under any Requirements of Law
as hazardous, toxic, a contaminant or a pollutant or by other words of similar
meaning or regulatory effect, including petroleum or any fraction thereof,
asbestos, polychlorinated biphenyls and radioactive substances.
"Hedging Agreement" means any Interest Rate Contract, foreign exchange,
swap, option or forward contract, spot, cap, floor or collar transaction, any
other derivative instrument and any other similar speculative transaction and
any other similar agreement or arrangement designed to alter the risks of any
Person arising from fluctuations in any underlying variable.
"Indebtedness" of any Person means, without duplication, any of the
following, whether or not matured: (a) all indebtedness for borrowed money, (b)
all obligations evidenced by notes, bonds, debentures or similar instruments,
(c) all reimbursement and all obligations with respect to (i) letters of credit,
bank guarantees or bankers' acceptances or (ii) surety, customs, reclamation or
performance bonds (in each case not related to judgments or litigation) other
than those entered into in the ordinary course of business, (d) all obligations
to pay the deferred purchase price of property or services, other than trade
payables incurred in the ordinary course of business, (e) all obligations
created or arising under any conditional sale or other title retention
agreement, regardless of whether the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession or sale
of such property, (f) all Capitalized Lease Obligations, (g) all obligations,
whether or not contingent, to purchase, redeem, retire, defease or otherwise
acquire for value any of its own Disqualified Stock (or Stock Equivalents
relating to any Disqualified Stock) valued at, in the case of redeemable
preferred Disqualified Stock, the greater of the voluntary liquidation
preference and the involuntary liquidation preference of such Disqualified Stock
plus accrued and unpaid dividends, (h) all payments that would be required to be
made in respect of any Hedging Agreement in the event of a termination
(including an early termination) on the date of determination and (i) all
Guaranty Obligations for obligations of any other Person constituting
Indebtedness of such other Person; provided, however, that the items in each of
clauses (a) through (i) above shall constitute "Indebtedness" of such Person
solely to the extent, directly or indirectly, (x) such Person is liable for any
part of any such item, (y) any such item is secured by a Lien on such Person's
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property or (z) any other Person has a right, contingent or otherwise, to cause
such Person to become liable for any part of any such item or to grant such a
Lien.
"Indemnified Matter" has the meaning specified in Section 11.4.
"Indemnitee" has the meaning specified in Section 11.4.
"Initial Projections" means those financial projections, dated
February, 2008, covering the Fiscal Years ending in 2008 through 2012 and
delivered to the Administrative Agent by the Borrower prior to the date hereof.
"Instruments" means all "instruments," as such term is defined in the
UCC, now owned or hereafter acquired by any Loan Party, wherever located, and,
in any event, including all certificated securities, all certificates of
deposit, and all promissory notes and other evidences of indebtedness, other
than instruments that constitute, or are a part of a group of writings that
constitute, Chattel Paper.
"Intellectual Property" means all rights, title and interests in or
relating to intellectual property and industrial property arising under any
Requirement of Law and all IP Ancillary Rights relating thereto, including all
Copyrights, Patents, Trademarks, Internet Domain Names, Trade Secrets and IP
Licenses.
"Intercreditor Agreement" means the intercreditor agreement,
substantially in the form attached hereto as Exhibit J, among the Administrative
Agent, the Term Loan Agent, the Borrower and the other Loan Parties, as the same
may from time to time be amended, restated, supplemented or otherwise modified.
"Interest Period" means, with respect to any Eurodollar Rate Loan, the
period commencing on the date such Eurodollar Rate Loan is made or converted to
a Eurodollar Rate Loan or, if such loan is continued, on the last day of the
immediately preceding Interest Period therefor and, in each case, ending 1, 2,
3, 6 or, subject to availability by all affected Lenders, 9 or 12 months
thereafter, as selected by the Borrower pursuant hereto; provided, however, that
(a) if any Interest Period would otherwise end on a day that is not a Business
Day, such Interest Period shall be extended to the next succeeding Business Day,
unless the result of such extension would be to extend such Interest Period into
another such Business Day falls in the next calendar month, in which case such
Interest Period shall end on the immediately preceding Business Day, (b) any
Interest Period that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day of a
calendar month, (c) the Borrower may not select any Interest Period ending after
the Scheduled Maturity Date, (d) the Borrower may not select any Interest Period
in respect of Loans having an aggregate principal amount of less than $5,000,000
and (e) there shall be outstanding at any one time no more than 10 Interest
Periods.
"Interest Rate Contracts" means all interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements and interest rate
insurance.
"Internet Domain Names" means all rights, title and interests (and all
related IP Ancillary Rights) arising under any Requirement of Law in or relating
to Internet domain names.
"Inventory" means any "inventory," as such term is defined in the UCC,
now owned or hereafter acquired by any Loan Party, wherever located, including
inventory, merchandise, goods and other personal property that are held by or on
behalf of any Loan Party for sale or lease (or that are being leased and located
within a state of the United States) or are furnished or are to be furnished
under a contract of service, or that constitute raw materials, work in process,
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[DAYTON SUPERIOR CORPORATION]
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finished goods, returned goods, supplies or materials of any kind, nature or
description used or consumed or to be used or consumed in such Loan Party's
business or in the processing, production, packaging, promotion, delivery or
shipping of the same, including all supplies and embedded software.
"Investment" means, with respect to any Person, directly or indirectly,
(a) to own, purchase or otherwise acquire, in each case whether beneficially or
otherwise, any investment in, including any interest in, any Security of any
other Person (other than any evidence of any Obligation), (b) to purchase or
otherwise acquire, whether in one transaction or in a series of transactions,
all or a significant part of the property of any other Person or a business
conducted by any other Person or all or substantially all of the assets
constituting the business of a division, branch, brand or other unit operation
of any other Person, (c) to incur, or to remain liable under, any Guaranty
Obligation for Indebtedness of any other Person, to assume the Indebtedness of
any other Person or to make, hold, purchase or otherwise acquire, in each case
directly or indirectly, any deposit, loan, advance, commitment to lend or
advance, or other extension of credit (including by deferring or extending the
date of, in each case outside the ordinary course of business, the payment of
the purchase price for Sales of property or services to any other Person, to the
extent such payment obligation constitutes Indebtedness of such other Person),
excluding deposits with financial institutions available for withdrawal on
demand, prepaid expenses, accounts receivable and similar items created in the
ordinary course of business, (d) to make, directly or indirectly, any
contribution to the capital of any other Person or (e) to Sell to any Affiliate
any property for less than fair market value (including a disposition of cash or
Cash Equivalents in exchange for consideration of lesser value); provided,
however, that such Investment shall be valued at the difference between the
value of the consideration for such Sale and the fair market value of the
property Sold.
"Investment Property" means all "investment property," as such term is
defined in the UCC, now owned or hereafter acquired by any Loan Party, wherever
located, including: (i) all securities, whether certificated or uncertificated,
including stocks, bonds, interests in limited liability companies, partnership
interests, treasuries, certificates of deposit, and mutual fund shares; (ii) all
securities entitlements of any Loan Party, including the rights of such Loan
Party to any securities account and the financial assets held by a securities
intermediary in such securities account and any free credit balance or other
money owing by any securities intermediary with respect to that account; (iii)
all securities accounts of any Loan Party; (iv) all commodity contracts of any
Loan Party; and (v) all commodity accounts held by any Loan Party.
"IP Ancillary Rights" means, with respect to any other Intellectual
Property, as applicable, all foreign counterparts to, and all divisionals,
reversions, continuations, continuations-in-part, reissues, reexaminations,
renewals and extensions of, such Intellectual Property and all income,
royalties, proceeds and Liabilities at any time due or payable or asserted under
or with respect to any of the foregoing or otherwise with respect to such
Intellectual Property, including all rights to xxx or recover at law or in
equity for any past, present or future infringement, misappropriation, dilution,
violation or other impairment thereof, and, in each case, all rights to obtain
any other IP Ancillary Right.
"IP License" means all Contractual Obligations (and all related IP
Ancillary Rights), whether written or oral, granting any right title and
interest in or relating to any Intellectual Property.
"IRS" means the Internal Revenue Service of the United States and any
successor thereto.
"Issue" means, with respect to any Letter of Credit, to issue, extend
the expiration date of, renew (including by failure to object to any automatic
renewal on the last day such objection is permitted), increase the face amount
of, or reduce or eliminate any scheduled decrease in the face amount of, such
Letter of Credit, or to cause any Person to do any of the foregoing. The terms
"Issued" and "Issuance" have correlative meanings.
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[DAYTON SUPERIOR CORPORATION]
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"L/C Cash Collateral Account" means any Cash Collateral Account (a)
specifically designated as such by the Borrower in a notice to the
Administrative Agent and (b) from and after the effectiveness of such notice,
not containing any funds other than those required under the Loan Documents to
be placed therein.
"L/C Issuer" means (a) GE Capital or any of its Affiliates and (b) each
Person that hereafter becomes an L/C Issuer with the approval of, and pursuant
to an agreement with and in form and substance satisfactory to, the
Administrative Agent and the Borrower, in each case in their capacity as L/C
Issuers hereunder and together with their successors.
"L/C Obligations" means, for any Letter of Credit at any time, the sum
of (a) the L/C Reimbursement Obligations at such time for such Letter of Credit
and (b) the aggregate maximum undrawn face amount of such Letter of Credit
outstanding at such time.
"L/C Reimbursement Agreement" has the meaning specified in Section
2.4(a).
"L/C Reimbursement Date" has the meaning specified in Section 2.4(e).
"L/C Reimbursement Obligation" means, for any Letter of Credit, the
obligation of the Borrower to the L/C Issuer thereof, as and when matured, to
pay all amounts drawn under such Letter of Credit.
"L/C Request" has the meaning specified in Section 2.4(b).
"L/C Sublimit" means $30,000,000.
"Lender" means, collectively, the Swingline Lender and any other
financial institution or other Person that (a) is listed on the signature pages
hereof as a "Lender" or (b) from time to time becomes a party hereto by
execution of an Assignment, in each case together with its successors.
"Letter of Credit" means any letter of credit Issued pursuant to
Section 2.4.
"Liabilities" means all claims, actions, suits, judgments, damages,
losses, liability, obligations and any related fines, penalties, sanctions,
costs, fees, taxes, commissions, charges, disbursements and expenses, in each
case of any kind or nature (including interest accrued thereon or as a result
thereto and fees, charges and disbursements of financial, legal and other
advisors and consultants), whether joint or several, whether or not indirect,
contingent, consequential, actual, punitive, treble or otherwise.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, charge, deposit arrangement, encumbrance, easement, lien (statutory
or other), security interest or other security arrangement and any other
preference, priority or preferential arrangement of any kind or nature
whatsoever, including any conditional sale contract or other title retention
agreement, the interest of a lessor under a Capital Lease and any synthetic or
other financing lease having substantially the same economic effect as any of
the foregoing.
"Loan" means any loan made or deemed made by any Lender hereunder.
"Loan Documents" means, collectively, this Agreement, any Notes, the
Guaranty and Security Agreement, the Intercreditor Agreement, the Mortgages, the
Control Agreements, the Fee Letter, the L/C Reimbursement Agreements, the
Secured Hedging Agreements and, when executed, each document executed by a Loan
Party and delivered to the Administrative Agent, any Lender or any L/C Issuer in
REVOLVING CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
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connection with or pursuant to any of the foregoing or the Obligations, together
with any modification of any term, or any waiver with respect to, any of the
foregoing.
"Loan Party" means the Borrower and each Guarantor.
"Material Adverse Effect" means an effect that results in or causes, or
could reasonably be expected to result in or cause, a material adverse change in
any of (a) the condition (financial or otherwise), business, performance,
operations or property of the Group Members, taken as a whole, (b) the ability
of any Loan Party to perform its obligations under any Loan Document and (c) the
validity or enforceability of any Loan Document or the rights and remedies of
the Administrative Agent, the Lenders and the other Secured Parties under any
Loan Document.
"Material Environmental Liabilities" means Environmental Liabilities
exceeding $500,000.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means any mortgage, deed of trust or other document executed
or required herein to be executed by any Loan Party and granting a security
interest over any owned real property in favor of the Administrative Agent as
security for the Obligations.
"Mortgage Supporting Documents" means, with respect to any Mortgage for
a parcel of owned real property, each document (including title policies or
marked-up unconditional insurance binders (in each case, together with copies of
all documents referred to therein), maps, ALTA (or TLTA, if applicable) as-built
surveys (in form and as to date that is sufficiently acceptable to the title
insurer issuing title insurance to the Administrative Agent for such title
insurer to deliver endorsements to such title insurance as reasonably requested
by the Administrative Agent), environmental assessments and reports (in the case
of owned real property acquired after the Closing Date) and evidence regarding
recording and payment of fees, insurance premium and taxes) that the
Administrative Agent may reasonably request, to create, register, perfect,
maintain, evidence the existence, substance, form or validity of or enforce a
valid lien on such parcel of real property in favor of the Administrative Agent
for the benefit of the Secured Parties, subject only to Permitted Liens and such
other Liens as the Administrative Agent may reasonably approve.
"Multiemployer Plan" means any multiemployer plan, as defined in
Section 400l(a)(3) of ERISA, to which any ERISA Affiliate incurs or otherwise
has any obligation or liability, contingent or otherwise.
"Net Cash Proceeds" means proceeds received in cash from (a) any Sale
of, or Property Loss Event with respect to, property, net of (i) the reasonable
out-of-pocket cash costs, fees and expenses paid or required to be paid in
connection therewith, (ii) any taxes paid or reasonably estimated to be payable
as a result thereof, (iii) any amount required to be applied to the repayment of
Indebtedness other than owing to any Group Member (including any premium or
penalty, if any, and interest) secured by a Lien expressly permitted hereunder
on any asset that is the subject of such Sale or Property Loss Event (excluding
any Lien pursuant to a Loan Document and excluding, in the case of Revolving
Credit Priority Collateral, the Term Loan Documents but including in the case of
Term Loan Priority Collateral, the Term Loan Documents) and (iv) any amounts
provided as a reserve, in accordance with GAAP, against any liabilities in
respect of any indemnification obligations or purchase price adjustment
associated with such Sale (provided that, to the extent and at any time such
amounts are released from such reserve, such amounts shall constitute Net Cash
Proceeds), or (b) any sale or issuance of Stock or incurrence of Indebtedness,
in each case net of brokers', advisors' and investment banking fees and other
reasonable underwriting discounts, commissions and other reasonable
out-of-pocket cash costs, fees and expenses, in each case incurred in connection
with such transaction; provided, however, that any such proceeds received by any
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Subsidiary of the Borrower that is not a Wholly Owned Subsidiary of the Borrower
shall constitute "Net Cash Proceeds" only to the extent of the aggregate direct
and indirect beneficial ownership interest of the Borrower therein.
"Net Orderly Liquidation Value" means, at any time, as to the Rental
Fleet or as to any Eligible Inventory (other than the Rental Fleet), the net
orderly liquidation value thereof determined most recently at or prior to such
time in writing by an independent appraiser selected by the Administrative Agent
with the consent of the Borrower, such consent not to be unreasonably withheld,
each such determination to be made using the same basis and or approach to
valuation consistent with the approach used in the initial determination and
calculating the orderly liquidation value net of liquidation costs.
"Non-Excluded Taxes" has the meaning specified in Section 2.17(a).
"Non-Funding Lender" has the meaning specified in Section 2.2(c).
"Non-U.S. Lender Party" means each of the Administrative Agent, each
Lender, each L/C Issuer, each SPV and each participant, in each case that is not
a Domestic Person.
"Note" means a promissory note of the Borrower, in substantially the
form of Exhibit B, payable to the order of a Lender in a principal amount equal
to the amount of such Lender's Commitment.
"Notice of Borrowing" has the meaning specified in Section 2.2(a).
"Notice of Conversion or Continuation" has the meaning specified in
Section 2.10(b).
"Obligations" means, with respect to any Loan Party, all amounts,
obligations, liabilities, covenants and duties of every type and description
owing by such Loan Party to the Administrative Agent, any Lender, any L/C
Issuer, any other Indemnitee, any participant, any SPV or any Secured Hedging
Counterparty arising out of, under, or in connection with, any Loan Document,
whether direct or indirect (regardless of whether acquired by assignment),
absolute or contingent, due or to become due, whether liquidated or not, now
existing or hereafter arising and however acquired, and whether or not evidenced
by any instrument or for the payment of money, including, without duplication,
(a) if such Loan Party is the Borrower, all Loans and L/C Obligations, (b) all
interest, whether or not accruing after the filing of any petition in bankruptcy
or after the commencement of any insolvency, reorganization or similar
proceeding, and whether or not a claim for post-filing or post-petition interest
is allowed in any such proceeding, and (c) all other fees, expenses (including
fees, charges and disbursement of counsel), interest, commissions, charges,
costs, disbursements, indemnities and reimbursement of amounts paid and other
sums chargeable to such Loan Party under any Loan Document (including those
payable to L/C Issuers as described in Section 2.11).
"Odyssey Investment Partners" means Odyssey Investment Partners Fund,
L.P. and/or Odyssey Investment Partners, LLC and their respective Affiliates.
"Original Letters of Credit" means letters of credit issued by one more
L/C Issuers pursuant to (and as defined in) the Existing Credit Agreement (and
listed on Schedule II hereto) that remain outstanding on the Closing Date.
"Original Letter of Credit Obligations" means Letter of Credit
Obligations under (and as defined in) the Original Credit Agreement that remain
outstanding immediately prior to the Closing Date.
"Other Taxes" has the meaning specified in Section 2.17(c).
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[DAYTON SUPERIOR CORPORATION]
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"Overadvance" means any portion of the Loans (including Swing Loans) in
excess of the Borrowing Base.
"Patents" means all rights, title and interests (and all related IP
Ancillary Rights) arising under any Requirement of Law in or relating to letters
patent and applications therefor.
"PBGC" means the United States Pension Benefit Guaranty Corporation and
any successor thereto.
"Permit" means, with respect to any Person, any permit, approval,
authorization, license, registration, certificate, concession, grant, franchise,
variance or permission from, and any other Contractual Obligations with, any
Governmental Authority, in each case whether or not having the force of law and
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"Permitted Acquisition" means any Proposed Acquisition satisfying each
of the following conditions: (a) the aggregate amounts payable in connection
with, and other consideration for (in each case, including any transaction
costs, indemnification obligations and all Indebtedness and liabilities incurred
or assumed in connection therewith or otherwise reflected in a Consolidated
balance sheet of the Borrower and the Proposed Acquisition Target), such
Proposed Acquisition and all other Permitted Acquisitions consummated on or
prior to the date of the consummation of such Proposed Acquisition shall not
exceed $45,000,000, plus earn-out payments that are reasonably acceptable to the
Administrative Agent, (b) the Administrative Agent shall have received
reasonable advance notice of such Proposed Acquisition including a reasonably
detailed description thereof at least 30 days prior to the consummation of such
Proposed Acquisition (or such later date as may be agreed by the Administrative
Agent) and on or prior to the date of such Proposed Acquisition, the
Administrative Agent shall have received copies of the acquisition agreement and
related Contractual Obligations and other documents (including financial
information and analysis, environmental assessments and reports, opinions,
certificates and lien searches) and information reasonably requested by the
Administrative Agent and (c) as of the date of consummation of any transaction
as part of such Proposed Acquisition and after giving effect to all transactions
to occur on such date as part of such Proposed Acquisition, all conditions set
forth in clauses (i) and (ii) of Section 3.2(b) shall be satisfied or duly
waived.
"Permitted Discretion" means a determination made in good faith and in
the exercise of reasonable (from the perspective of a secured asset-based
lender) business judgment.
"Permitted Group" means any group of investors that is deemed to be a
"person" (as that term is used in Section 13(d)(3) of the Exchange Act) by
virtue of a Voting Agreement or any similar agreement, as the same may be
amended, modified or supplemented from time to time; provided, however, that no
single Person (other than Odyssey Investment Partners and its Related Parties)
beneficially owns (together with its Affiliates) more of the voting power of the
issued and outstanding shares of Stock of the Borrower, having the right to vote
for the election of directors of the Borrower under ordinary circumstances, that
is beneficially owned by such group of investors than is then collectively
beneficially owned by Odyssey Investment Partners and its Related Parties in the
aggregate.
"Permitted Indebtedness" means any Indebtedness of any Group Member
that is not prohibited by Section 8.1 or any other provision of any Loan
Document.
"Permitted Investment" means any Investment of any Group Member that is
not prohibited by Section 8.3 or any other provision of any Loan Document.
REVOLVING CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
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"Permitted Lien" means any Lien on or with respect to the property of
any Group Member that is not prohibited by Section 8.2 or any other provision of
any Loan Document.
"Permitted Refinancing" means Indebtedness constituting a refinancing
or extension of Permitted Indebtedness that (a) has an aggregate outstanding
principal amount not greater than the aggregate principal amount of such
Permitted Indebtedness outstanding at the time of such refinancing or extension,
together with accrued interest, fees (including any prepayment fees or premiums)
payable in connection therewith, (b) has a weighted average maturity (measured
as of the date of such refinancing or extension) and maturity no shorter than
that of such Permitted Indebtedness and, in the case of any refinancing of the
Senior Subordinated Notes has no scheduled amortization prior to maturity and
matures no earlier than 6 months after the 6th anniversary of the Closing Date,
(c) is not entered into as part of a Sale and Leaseback transaction, (d) is not
secured by any property or any Lien other than those securing such Permitted
Indebtedness, and if such Permitted Indebtedness is subordinated to the
Obligations, such Indebtedness is subordinated to the Obligations at least to
the same extent as such Permitted Indebtedness and in a manner and pursuant to
documentation reasonably acceptable to the Administrative Agent; provided, that,
in the case of any refinancing of the Senior Subordinated Notes, such
Indebtedness may rank pari passu in right of payment with the Obligations if
such Indebtedness is either unsecured or is secured on a junior priority basis
(that is junior both to the Liens securing the Obligations and to the Liens
securing the Term Loan Obligations) pursuant to an intercreditor agreement (that
binds all present and future holders of such Indebtedness and all
representatives and collateral agents therefor) and that is reasonably
satisfactory in all respects to the Administrative Agent, provided, further, in
the case of any refinancing of the Term Loan Obligations, (x) such Indebtedness
shall be subject to the Intercreditor Agreement (or another intercreditor
agreement that is in form and substance reasonably satisfactory to the
Administrative Agent and in any event no less favorable to the Lenders than the
Intercreditor Agreement, as reasonably determined by the Administrative Agent)
and (y) the lenders in such refinancing or any agent or trustee for such lenders
executes and delivers to the Administrative Agent an agreement reasonably
satisfactory to the Administrative Agent confirming that such lenders and their
agent or trustee are bound by the obligations under the Intercreditor Agreement
of the lenders under the Term Loan Credit Agreement and the Term Loan
Administrative Agent (and the Administrative Agent thereupon executes and
delivers to the lenders in such Permitted Refinancing or their agent or trustee
an agreement confirming that such lenders or their agent or trustee will be
entitled to enforce all rights under the Intercreditor Agreement of the lenders
under the Term Loan Credit Agreement and the Term Loan Administrative Agent) and
(e) is otherwise on terms that the board of directors of the Borrower shall have
determined in good faith to be consistent with the market terms for Indebtedness
of such type reasonably available to the Borrower at such time and that are
reasonably satisfactory to the Administrative Agent; provided, however, that,
notwithstanding the foregoing and in the case of clauses (a) through (e),
Guaranty Obligations for such Indebtedness shall constitute part of such
Permitted Refinancing if and to the extent such similar Guaranty Obligations
with respect to such Permitted Indebtedness existed and constituted Permitted
Indebtedness prior to such refinancing or extension.
"Permitted Reinvestment" means, with respect to the Net Cash Proceeds
of any Sale or Property Loss Event, the acquisition, repair, replacement,
improvement or construction of, to the extent otherwise permitted hereunder,
property useful in the business of the Borrower or any of its Subsidiaries
(including through a Permitted Acquisition) or, if such Property Loss Event
involves loss or damage to property to repair such loss or damage.
"Permitted Special Overadvance" means, at any time, any portion of the
Special Overadvances that is not required to be repaid at such time.
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[DAYTON SUPERIOR CORPORATION]
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"Person" means any individual, partnership, corporation (including a
business trust and a public benefit corporation), joint stock company, estate,
association, firm, enterprise, trust, limited liability company, unincorporated
association, joint venture and any other entity or Governmental Authority.
"Pro Forma Balance Sheet" has the meaning specified in Section 4.4(c).
"Pro Forma Basis" means, with respect to any determination for any
period and any Pro Forma Transaction, that such determination shall be made by
giving pro forma effect to each such Pro Forma Transaction, as if each such Pro
Forma Transaction had been consummated on the first day of such period, based on
historical results accounted for in accordance with GAAP and, to the extent
applicable, reasonable assumptions that are specified in detail in the relevant
Compliance Certificate, Financial Statement or other document provided to the
Administrative Agent or any Lender in connection herewith in accordance with
Regulation S-X of the Securities Act of 1933.
"Pro Forma Transaction" means (i) the redemption and retirement of the
Senior Notes, (ii) any transaction consummated as part of any Permitted
Acquisition, together with each other transaction relating thereto and
consummated in connection therewith, including any incurrence or repayment of
Indebtedness and (iii) any purchase, prepayment, acquisition or retirement for
value of any Senior Subordinated Note and any other Indebtedness.
"Projections" means, collectively, the Initial Projections and any
document delivered pursuant to Section 6.1(f).
"Property Loss Event" means, with respect to any property, any loss of
or damage to such property or any taking of such property or condemnation
thereof.
"Proposed Acquisition" means (a) any proposed acquisition that is
consensual and approved by the board of directors of such Proposed Acquisition
Target, of all or substantially all of the assets or Stock of any Proposed
Acquisition Target by the Borrower or any Subsidiary of the Borrower or (b) any
proposed merger of any Proposed Acquisition Target with or into the Borrower or
any Subsidiary of the Borrower (and, in the case of a merger with the Borrower,
with the Borrower being the surviving corporation).
"Proposed Acquisition Target" means any Person or any brand, line of
business, division, branch, operating division or other unit operation of any
Person.
"Pro Rata Outstandings", of any Lender at any time, means the sum of
(i) the outstanding principal amount of Revolving Loans owing to such Lender and
(ii) the amount of the participation of such Lender in the L/C Obligations
outstanding with respect to all Letters of Credit.
"Pro Rata Share" means, with respect to any Lender at any time, the
percentage obtained by dividing (a) the sum of the Commitments (or, if such
Commitments are terminated, the Pro Rata Outstandings therein) of such Lender
then in effect by (b) the sum of the Commitments (or, if such Commitments are
terminated, the Pro Rata Outstandings therein) of all Lenders then in effect;
provided, however, that, if there are no Commitments and no Pro Rata
Outstandings, such Lender's Pro Rata Share shall be determined based on the Pro
Rata Share most recently in effect, after giving effect to any subsequent
assignment and any subsequent non-pro rata payments of any Lender pursuant to
Section 2.18.
"Qualified Capital Stock" means Stock that is not Disqualified Stock.
REVOLVING CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
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"Register" has the meaning specified in Section 2.14(b).
"Reinvestment Prepayment Amount" means, with respect to any Net Cash
Proceeds on the Reinvestment Prepayment Date therefor, the amount of such Net
Cash Proceeds less any amount paid or required to be paid by any Group Member to
make Permitted Reinvestments with such Net Cash Proceeds pursuant to a
Contractual Obligation entered into prior to such Reinvestment Prepayment Date
with any Person that is not an Affiliate of the Borrower.
"Reinvestment Prepayment Date" means, with respect to any portion of
any Net Cash Proceeds of any Sale or Property Loss Event, the earliest of (a)
the 365th day after the completion of the portion of such Sale or Property Loss
Event corresponding to such Net Cash Proceeds, (b) the date that is 5 Business
Days after the date on which the Borrower shall have notified the Administrative
Agent of the Borrower's determination not to make Permitted Reinvestments with
such Net Cash Proceeds, (c) the occurrence of any Event of Default set forth in
Section 9.1(e)(ii) and (d) 5 Business Days after the delivery of a notice by the
Administrative Agent or the Required Lenders to the Borrower during the
continuance of any other Event of Default.
"Related Documents" means, collectively, the payoff letter with respect
to the Existing Credit Agreement executed and delivered to the Administrative
Agent in connection with Section 3.1(d), the notice of redemption issued in
connection with the redemption, satisfaction and discharge of the Senior Notes,
the Term Loan Documents, and each other document executed with respect to any of
the foregoing or any Related Transaction.
"Related Party" means:
(1) any controlling stockholder, 50% (or more) owned Subsidiary, or immediate
family member (in the case of an individual) of Odyssey Investment Partners;
(2) any trust, corporation, partnership, limited liability company or other
entity, the beneficiaries, stockholders, partners, members, owners or Persons
beneficially holding a 50% or more controlling interest of which consist of
Odyssey Investment Partners and/or such other Persons referred to in the
immediately preceding clause (1); or
(3) any investment partnership or investment fund controlled or managed by
Odyssey Investment Partners.
"Related Person" means, with respect to any Person, each Affiliate of
such Person and each director, officer, employee, agent, trustee,
representative, attorney, accountant and each insurance, environmental, legal,
financial and other advisor (including those retained in connection with the
satisfaction or attempted satisfaction of any condition set forth in Article
III) and other consultants and agents of or to such Person or any of its
Affiliates, together with, if such Person is the Administrative Agent, each
other Person or individual designated, nominated or otherwise mandated by or
helping the Administrative Agent pursuant to and in accordance with Section 10.4
or any comparable provision of any Loan Document.
"Related Transactions" means, collectively, the refinancing of the
Existing Credit Agreement, the redemption of the Senior Notes, the funding of
Indebtedness under the Term Loan Credit Agreement, the execution and delivery of
all Related Documents and the payment of all related fees, costs and expenses.
REVOLVING CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
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"Release" means any release, threatened release, spill, emission,
leaking, pumping, pouring, emitting, emptying, escape, injection, deposit,
disposal, discharge, dispersal, dumping, leaching or migration of Hazardous
Material into or through the environment.
"Remedial Action" means all actions required under Environmental Laws
to (a) clean up, remove, treat or in any other way address any Hazardous
Material in the indoor or outdoor environment, (b) prevent or minimize any
Release so that a Hazardous Material does not migrate or endanger or threaten to
endanger public health or welfare or the indoor or outdoor environment or (c)
perform pre-remedial studies and investigations and post-remedial monitoring and
care with respect to any Hazardous Material.
"Rental Fleet" means Eligible Inventory held for lease by the Borrower
or any of its Domestic Subsidiaries or being leased by the Borrower or any of
its Domestic Subsidiaries.
"Rentals" means rental payments due to the Borrower or any Domestic
Subsidiary from the rental of Inventory owned by the Borrower or such Domestic
Subsidiary.
"Required Lenders" means, at any time, Lenders having at such time in
excess of 50% of the sum of the aggregate Commitments (or, if such Commitments
are terminated, the sum of the amounts of the participations in Swing Loans, the
principal amount of unparticipated portions of the Swing Loans and the Pro Rata
Outstandings in the Revolving Credit Facility).
"Requirements of Law" means, with respect to any Person, collectively,
the common law and all federal, state, local, foreign, multinational or
international laws, statutes, codes, treaties, standards, rules and regulations,
guidelines, ordinances, orders, judgments, writs, injunctions, decrees
(including administrative or judicial precedents or authorities) and the
interpretation or administration thereof by, and other determinations,
directives, requirements or requests of, any Governmental Authority, in each
case whether or not having the force of law and that are applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject.
"Reserves" means, with respect to the Borrowing Base (a) reserves
established by the Administrative Agent from time to time against Eligible
Accounts or Eligible Inventory pursuant to Exhibit 6.1(k) and (b) such other
reserves against Eligible Accounts, Eligible Inventory or Borrowing Availability
that the Administrative Agent may, in its Permitted Discretion, establish from
time to time. Without limiting the generality of the foregoing, Reserves
established to ensure the payment of accrued interest expenses or Indebtedness
shall be deemed to be within the Administrative Agent's Permitted Discretion.
"Responsible Officer" means, with respect to any Person, any of the
president, chief executive officer, treasurer, assistant treasurer, controller,
managing member or general partner of such Person but, in any event, with
respect to financial matters, any such officer that is responsible for preparing
the Financial Statements delivered hereunder and, with respect to the Corporate
Chart and other documents delivered pursuant to Section 6.1(e), documents
delivered on the Closing Date and documents delivered pursuant to Section 7.10,
the secretary or assistant secretary of such Person or any other officer
responsible for maintaining the corporate and similar records of such Person.
"Restricted Payment" means (a) any dividend, return of capital,
distribution or any other payment or Sale of property for less than fair market
value, whether direct or indirect (including through the use of Hedging
Agreements, the making, repayment, cancellation or forgiveness of Indebtedness
and similar Contractual Obligations) and whether in cash, Securities or other
property, on account of any Stock or Stock Equivalent of the Borrower or any of
its Subsidiaries, in each case now or hereafter outstanding, including with
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respect to a claim for rescission of a Sale of such Stock or Stock Equivalent
and (b) any redemption, retirement, termination, defeasance, cancellation,
purchase or other acquisition for value, whether direct or indirect (including
through the use of Hedging Agreements, the making, repayment, cancellation or
forgiveness of Indebtedness and similar Contractual Obligations), of any Stock
or Stock Equivalent of any Group Member or of any direct or indirect parent
entity of the Borrower, now or hereafter outstanding, and any payment or other
transfer setting aside funds for any such redemption, retirement, termination,
cancellation, purchase or other acquisition, whether directly or indirectly and
whether to a sinking fund, a similar fund or otherwise.
"Revolving Credit Facility" means the Commitments and the provisions
herein related to the Revolving Loans, Swing Loans and Letters of Credit.
"Revolving Credit Outstandings" means, at any time, the sum of, in each
case to the extent outstanding at such time, (a) the aggregate principal amount
of the Revolving Loans and Swing Loans and (b) the L/C Obligations for all
Letters of Credit.
"Revolving Credit Priority Collateral" has the meaning specified for
such term in the Intercreditor Agreement.
"Revolving Loan" has the meaning specified in Section 2.1.
"S&P" means Standard & Poor's Rating Services.
"Sale and Leaseback Transaction" means, with respect to any Person (the
"obligor"), any Contractual Obligation or other arrangement with any other
Person (the "counterparty") consisting of a lease by such obligor of any
property that, directly or indirectly, has been or is to be Sold by the obligor
to such counterparty or to any other Person to whom funds have been advanced by
such counterparty based on a Lien on, or an assignment of, such property or any
obligations of such obligor under such lease.
"Satisfaction Date" means the date on which the events described in
Section 10.10(b)(iii)(A), (B) and (C) occur.
"Scheduled Maturity Date" means either (i) if all the Senior
Subordinated Notes have not been redeemed and retired on or prior to such date,
March 14, 2009 or (ii) if all the Senior Subordinated Notes have been redeemed
and retired on or prior to March 14, 2009, the 6th anniversary of the Closing
Date.
"Secured Hedging Agreement" means any Hedging Agreement that (a) has
been entered into with a Secured Hedging Counterparty, (b) in the case of a
Hedging Agreement not entered into with or provided or arranged by the
Administrative Agent or an Affiliate of the Administrative Agent, is expressly
identified as being a "Secured Hedging Agreement" hereunder in a joint notice
from such Loan Party and such Person delivered to the Administrative Agent
reasonably promptly after the execution of such Hedging Agreement and (c) meets
the requirements of Section 8.1(f).
"Secured Hedging Counterparty" means (a) a Person who has entered into
a Hedging Agreement with a Loan Party if such Hedging Agreement was provided or
arranged by the Administrative Agent or an Affiliate of the Administrative
Agent, and any assignee of such Person or (b) a Lender or an Affiliate of a
Lender who has entered into a Hedging Agreement with a Loan Party (or a Person
who was a Lender or an Affiliate of a Lender at the time of execution and
delivery of the Hedging Agreement).
"Secured Parties" means the Lenders, the L/C Issuers, the
Administrative Agent, any Secured Hedging Counterparty, each other Indemnitee
and any other holder of any Obligation of any Loan Party.
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"Security" means all Stock, Stock Equivalents, voting trust
certificates, bonds, debentures, instruments and other evidence of Indebtedness,
whether or not secured, convertible or subordinated, all certificates of
interest, share or participation in, all certificates for the acquisition of,
and all warrants, options and other rights to acquire, any Security.
"Sell" means, with respect to any property, to sell, convey, transfer,
assign, license, lease (as lessor) or otherwise dispose of, any interest therein
or to permit any Person to acquire any such interest, including, in each case,
through a Sale and Leaseback Transaction or through a sale, factoring at
maturity, collection of or other disposal, with or without recourse, of any
notes or accounts receivable. Conjugated forms thereof and the noun "Sale" have
correlative meanings.
"Senior Notes" means the "Notes" (as defined in the Senior Notes
Indenture) and "Exchange Notes" issued in exchange therefor in accordance with
the terms of the Senior Notes Indenture, not exceeding an aggregate principal
amount of $165,000,000.
"Senior Notes Indenture" means the Indenture, dated as of June 9, 2003,
by and among the Borrower, the guarantors named therein, and The Bank of New
York, as Trustee, relating to the Borrower's 10 3/4% Senior Second Secured Notes
due 2008, as amended, modified or supplemented from time to time in accordance
with its terms and the terms hereof.
"Senior Subordinated Notes" means the "Notes" (as defined in the Senior
Subordinated Notes Indenture) in an aggregate principal amount not exceeding
$155,000,000.
"Senior Subordinated Notes Indenture" means the Indenture, dated as of
June 16, 2000 among the Borrower, the guarantors party thereto and United States
Trust Company, as Trustee, relating to The Borrower's 13% Senior Subordinated
Notes due 2009, as supplemented through the Closing Date and as subsequently
amended, modified or supplemented in accordance with its term and the terms of
this Agreement.
"Solvent" means, with respect to any Person on a particular date, that
on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including subordinated and contingent
liabilities, of such Person; (b) the present fair saleable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts and liabilities, including
subordinated and contingent liabilities as they become absolute and matured; (c)
such Person does not intend to, and does not believe that it will, incur debts
or liabilities beyond such Person's ability to pay as such debts and liabilities
mature; and (d) such Person is not engaged in a business or transaction, and is
not about to engage in a business or transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities (such as litigation, guaranties and pension plan
liabilities) at any time shall be computed as the amount that, in light of all
the facts and circumstances existing at the time, represents the amount that can
be reasonably be expected to become an actual or matured liability.
"Special Overadvance" has the meaning specified in Section 2.1(c).
"Special Overadvance Maturity Date" has the meaning specified in
Section 2.1(c).
"SPV" means any special purpose funding vehicle identified as such in a
writing by any Lender to the Administrative Agent.
"Stock" means all shares of capital stock (whether denominated as
common stock or preferred stock), equity interests, beneficial, partnership or
membership interests, joint venture interests, participations or other ownership
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or profit interests in or equivalents (regardless of how designated) of or in a
Person (other than an individual), whether voting or non-voting.
"Stock Equivalents" means all securities convertible into or
exchangeable for Stock or any other Stock Equivalent and all warrants, options
or other rights to purchase, subscribe for or otherwise acquire any Stock or any
other Stock Equivalent, whether or not presently convertible, exchangeable or
exercisable.
"Subordinated Debt" means any Indebtedness that is subordinated to the
payment in full of the Obligations on terms and conditions reasonably
satisfactory to the Administrative Agent, including any Indebtedness under the
Senior Subordinated Notes.
"Subordinated Refinancing Indebtedness" means any Indebtedness, whether
or not constituting Subordinated Debt, resulting from any initial or subsequent
Permitted Refinancing of Subordinated Debt.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, joint venture, limited liability company, association or other
entity, the management of which is, directly or indirectly, controlled by, or of
which an aggregate of more than 50% of the outstanding Voting Stock is, at the
time, owned or controlled directly or indirectly by, such Person or one or more
Subsidiaries of such Person.
"Substitute Lender" has the meaning specified in Section 2.18(a).
"Supermajority Lenders" means Lenders having (a) 80% or more of the
Commitments of all Lenders, or (b) if the Commitments have been terminated, 80%
or more of the aggregate outstanding amount of the Revolving Loan (with the
Swing Loan being attributed to the Lender making such Loan).
"SWDA" means the Solid Waste Disposal Act (42 U.S.C. xx.xx. 6901 et
seq.).
"Swingline Commitment" means $10,000,000.
"Swingline Lender" means, each in its capacity as Swingline Lender
hereunder, GE Capital or, upon the resignation of GE Capital as Administrative
Agent hereunder, any Lender (or Affiliate or Approved Fund of any Lender) that
agrees, with the approval of the Administrative Agent (or, if there is no such
successor Administrative Agent, the Required Lenders) and the Borrower, to act
as the Swingline Lender hereunder.
"Swingline Request" has the meaning specified in Section 2.3(b).
"Swing Loan" has the meaning specified in Section 2.3(a).
"Tax Affiliate" means, (a) the Borrower and its Subsidiaries and (b)
any Affiliate of the Borrower with which the Borrower files or is eligible to
file consolidated, combined or unitary tax returns.
"Tax Return" has the meaning specified in Section 4.8.
"Taxes" has the meaning specified in Section 2.17(a).
"Termination Date" shall mean the earliest of (a) the Scheduled
Maturity Date, (b) the date of termination of the Commitments pursuant to
Section 2.5 or 9.2 and (c) the date on which the Obligations become due and
payable pursuant to Section 9.2.
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"Term Loan Administrative Agent" means General Electric Capital
Corporation, in its capacity as administrative agent under the Term Loan Credit
Agreement.
"Term Loan Credit Agreement" shall mean that certain Credit Agreement
dated as of the date hereof among the Borrower, the other Loan Parties, the
lenders named therein, and the Term Loan Administrative Agent, as the same may
from time to time be amended, restated, supplemented or otherwise modified
solely as permitted by the Intercreditor Agreement.
"Term Loan Documents" shall have the meaning specified for the term
"Loan Documents" in the Term Loan Credit Agreement.
"Term Loan Obligations" shall have the meaning specified for such term
in the Intercreditor Agreement and shall include all increases thereto permitted
by the Intercreditor Agreement.
"Title IV Plan" means a pension plan subject to Title IV of ERISA,
other than a Multiemployer Plan, to which any ERISA Affiliate incurs or
otherwise has any obligation or liability, contingent or otherwise.
"Trademarks" means all rights, title and interests (and all related IP
Ancillary Rights) arising under any Requirement of Law in or relating to
trademarks, trade names, corporate names, company names, business names,
fictitious business names, trade styles, service marks, logos and other source
or business identifiers and, in each case, all goodwill associated therewith,
all registrations and recordations thereof and all applications in connection
therewith.
"Trade Secrets" means all right, title and interest (and all related IP
Ancillary Rights) arising under any Requirement of Law in or relating to trade
secrets.
"UCC" means the Uniform Commercial Code of any applicable jurisdiction
and, if the applicable jurisdiction shall not have any Uniform Commercial Code,
the Uniform Commercial Code as in effect in the State of New York.
"United States" means the United States of America.
"Unused Commitment Fee" has the meaning specified in Section 2.11(a).
"U.S. Lender Party" means each of the Administrative Agent, each
Lender, each L/C Issuer, each SPV and each participant, in each case that is a
Domestic Person.
"Voting Agreement" means any voting trust or similar agreement among
current and/or former members of the management of Borrower and Odyssey
Investment Partners and/or one or more of its Related Parties pursuant to which
such current and/or former members of management grant Odyssey Investment
Partners and/or its Related Parties the right to vote shares of Borrower's
Stock.
"Voting Stock" means Stock of any Person having ordinary power to vote
in the election of members of the board of directors, managers, trustees or
other controlling Persons, of such Person (irrespective of whether, at the time,
Stock of any other class or classes of such entity shall have or might have
voting power by reason of the occurrence of any contingency).
"Wholly Owned Subsidiary" of any Person means any Subsidiary of such
Person, all of the Stock of which (other than nominal holdings and director's
qualifying shares) is owned by such Person, either directly or through one or
more Wholly Owned Subsidiaries of such Person.
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"Withdrawal Liability" means, at any time, any liability incurred
(whether or not assessed) by any ERISA Affiliate and not yet satisfied or paid
in full at such time with respect to any Multiemployer Plan pursuant to Section
4201 of ERISA.
Section 1.2 UCC Terms. The following terms have the
meanings given to them in the applicable UCC: "commodity account", "commodity
contract", "commodity intermediary", "deposit account", "entitlement holder",
"entitlement order", "equipment", "financial asset", "general intangible",
"goods", "instruments", "inventory", "securities account", "securities
intermediary" and "security entitlement".
Section 1.3 Accounting Terms and Principles(a) . (a)
GAAP. All accounting determinations required to be made pursuant hereto shall,
unless expressly otherwise provided herein, be made in accordance with GAAP. No
change in the accounting principles used in the preparation of any Financial
Statement hereafter adopted by the Borrower shall be given effect if such change
would affect a calculation that measures compliance with any provision of
Article VIII unless the Borrower, the Administrative Agent and the Required
Lenders agree to modify such provisions to reflect such changes in GAAP and,
unless such provisions are modified, all Financial Statements, Compliance
Certificates and similar documents provided hereunder shall be provided together
with a reconciliation between the calculations and amounts set forth therein
before and after giving effect to such change in GAAP.
(b) Pro Forma. All components of financial calculations made
to determine compliance with Article VIII shall be adjusted on a Pro Forma Basis
to include or exclude, as the case may be, without duplication, such components
of such calculations attributable to any Pro Forma Transaction consummated after
the first day of the applicable period of determination and prior to the end of
such period, as determined in good faith by the Borrower based on assumptions
expressed therein and that were reasonable based on the information available to
the Borrower at the time of preparation of the Compliance Certificate setting
forth such calculations.
Section 1.4 Payments. The Administrative Agent may set
up standards and procedures to determine or redetermine the equivalent in
Dollars of any amount expressed in any currency other than Dollars and otherwise
may, but shall not be obligated to, rely on any determination made by any Loan
Party or any L/C Issuer. Any such determination or redetermination by the
Administrative Agent shall be conclusive and binding for all purposes, absent
manifest error. No determination or redetermination by any Secured Party or Loan
Party and no other currency conversion shall change or release any obligation of
any Loan Party or of any Secured Party (other than the Administrative Agent and
its Related Persons) under any Loan Document, each of which agrees to pay
separately for any shortfall remaining after any conversion and payment of the
amount as converted. The Administrative Agent may round up or down, and may set
up appropriate mechanisms to round up or down, any amount hereunder to nearest
higher or lower amounts and may determine reasonable de minimis payment
thresholds.
Section 1.5 Interpretation(a) . (a) Certain Terms.
Except as set forth in any Loan Document, all accounting terms not specifically
defined herein shall be construed in accordance with GAAP (except for the term
"property", which shall be interpreted as broadly as possible, including, in any
case, cash, Securities, other assets, rights under Contractual Obligations and
Permits and any right or interest in any property). The terms "herein", "hereof"
and similar terms refer to this Agreement as a whole. In the computation of
periods of time from a specified date to a later specified date in any Loan
Document, the terms "from" means "from and including" and the words "to" and
"until" each mean "to but excluding" and the word "through" means "to and
including." In any other case, the term "including" when used in any Loan
Document means "including without limitation." The term "documents" means all
writings, however evidenced and whether in physical or electronic form,
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including all documents, instruments, agreements, notices, demands,
certificates, forms, financial statements, opinions and reports. The term
"incur" means incur, create, make, issue, assume or otherwise become directly or
indirectly liable in respect of or responsible for, in each case whether
directly or indirectly, and the terms "incurrence" and "incurred" and similar
derivatives shall have correlative meanings. All references to a time of day
shall refer to such time of day in New York.
(b) Certain References. Unless otherwise expressly indicated,
references (i) in this Agreement to an Exhibit, Schedule, Article, Section or
clause refer to the appropriate Exhibit or Schedule to, or Article, Section or
clause in, this Agreement and (ii) in any Loan Document, to (A) any agreement
shall include, without limitation, all exhibits, schedules, appendixes and
annexes to such agreement and, unless the prior consent of any Secured Party
required therefor is not obtained, any modification to any term of such
agreement, (B) any statute shall be to such statute as modified from time to
time and to any successor legislation thereto, in each case as in effect at the
time any such reference is operative and (C) any time of day shall be a
reference to New York time. Titles of articles, sections, clauses, exhibits,
schedules and annexes contained in any Loan Document are without substantive
meaning or content of any kind whatsoever and are not a part of the agreement
between the parties hereto. Unless otherwise expressly indicated, the meaning of
any term defined (including by reference) in any Loan Document shall be equally
applicable to both the singular and plural forms of such term.
ARTICLE 2
THE REVOLVING CREDIT FACILITY
Section 2.1 The Commitments(a). (a) Commitments. On the
terms and subject to the conditions contained in this Agreement, each Lender
severally, but not jointly, agrees to make loans in Dollars (each a "Revolving
Loan") to the Borrower from time to time on any Business Day during the period
from the date hereof until the Termination Date in an aggregate principal amount
at any time outstanding for all such loans by such Lender not to exceed such
Lender's Commitment; provided, however, that at no time shall any Lender be
obligated to make a Revolving Loan in excess of such Lender's Pro Rata Share of
the amount by which then effective Commitments exceeds the aggregate Revolving
Credit Outstandings at such time and provided, further, the amount of any
Revolving Loan to be made at any time shall not exceed Borrowing Availability
except as permitted by Section 2.1(b) and Section 2.1(c). Within the limits set
forth in the first sentence of this clause (a), amounts of Revolving Loans
repaid may be reborrowed under this Section 2.1.
(b) If the Borrower requests that the Lenders make, or permit
to remain outstanding any Overadvances, the Administrative Agent may, in its
sole discretion, elect to make, or permit to remain outstanding such
Overadvances; provided, however, that, except as provided in Section 2.1(c) the
Administrative Agent may not cause the Lenders to make, or permit to remain
outstanding, (a) aggregate Revolving Loans (including, without duplication,
Swing Loans) in excess of the Commitments or (b) Overadvances in an aggregate
amount in excess of $5,000,000, and until the second anniversary of the Closing
Date, the Administrative Agent may not elect to make or permit to remain
outstanding any Overadvances under this Section 2.1(b). If an Overadvance is
made, or permitted to remain outstanding, pursuant to this Section 2.1(b), then
all the Lenders shall be bound to make, or permit to remain outstanding, such
Overadvance based upon their Pro Rata Shares of the Commitments in accordance
with the terms of this Agreement. If an Overadvance (other than a Special
Overadvance) remains outstanding for more than ninety (90) days during any one
hundred eighty (180) day period, Revolving Loans must be repaid immediately in
an amount sufficient to eliminate all of such Overadvances. Furthermore,
Required Lenders may prospectively revoke the Administrative Agent's ability to
make or permit Overadvances under this Section 2.1(b) by written notice to the
Administrative Agent. Any Overadvance shall be made as a Swing Loan or as a
Revolving Loan that is a Base Rate Loan. No Overadvance shall be made, whether
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made pursuant to Section 2.1(b) or Section 2.1(c), if the making of such
Overadvance would cause the outstanding principal balance of the Loans and L/C
Obligations to exceed the Commitments.
(c) From the Closing Date to the date (the "Special
Overadvance Maturity Date") that is the earlier of the Scheduled Maturity Date
and the date that is twenty four months after the Closing Date, and subject to
compliance with all terms and conditions (other than the Borrowing Base
Availability Limitation) for borrowing or Issuance of Letters of Credit
hereunder (and in the manner otherwise provided for the borrowing of Revolving
Loans and Swing Loans and Issuance of Letters of Credit in this Agreement), the
Borrower shall be entitled under this Section 2.1(c) to utilize the Commitments
and Swingline Commitment to borrow and repay Revolving Loans and Swing Loans and
obtain the Issuance of Letters of Credit, in each case, that constitute, upon
the making thereof, Overadvances (each, a "Special Overadvance" and
collectively, the "Special Overadvances"), in an aggregate outstanding principal
or outstanding undrawn or unreimbursed amount not to exceed (i) from the Closing
Date to, but excluding, the date that is six months after the Closing Date,
$20,000,000, (ii) from and including the date that is six months after the
Closing Date to, but excluding, the date that is twelve months after the Closing
Date, $17,000,000, (iii) from and including the date that is twelve months after
the Closing Date to, but excluding, the date that is eighteen months after the
Closing Date, $14,000,000, (iv) from and including the date that is eighteen
months after the Closing date to, but excluding, the date that is twenty-four
months after the Closing Date $7,000,000 and (v) from and including the date
that is twenty four months after the Closing Date, $0. The Borrower shall
immediately repay (i) the outstanding principal balance of the Special
Overadvance on the Special Overadvance Maturity Date and (ii) any portion of the
Special Overadvance that exceeds the maximum amount of permitted Special
Overadvances under this Section 2.1(c). A Notice of Borrowing requesting a
Revolving Loan or Swing Loan and an L/C Request, in each case, that constitutes
in whole or in part a Special Overadvance shall identify same as such, and
specify the amount that constitutes a Special Overadvance. All the Lenders shall
be bound to make, or permit to remain outstanding Special Overadvances based
upon their Pro Rata Shares of the Commitments in accordance with the terms of
this Agreement. In making such identification, the Borrower shall refer to the
Borrowing Base as reflected in its most recently delivered Borrowing Base
Certificate.
Section 2.2 Borrowing Procedures(a) . (a) Notice From
the Borrower. Each Borrowing shall be made on notice given by the Borrower to
the Administrative Agent not later than 1:00 p.m. (New York time) on (i) the
first Business Day, in the case of a Borrowing of Base Rate Loans and (ii) the
third Business Day, in the case of a Borrowing of Eurodollar Rate Loans, prior
to the date of the proposed Borrowing. Each such notice may be made in a writing
substantially in the form of Exhibit C (a "Notice of Borrowing") duly completed
or by telephone if confirmed promptly, but in any event within one Business Day
and prior to such Borrowing, with such a Notice of Borrowing. Loans shall be
made as Base Rate Loans unless, outside of a suspension period pursuant to
Section 2.15, the Notice of Borrowing specifies that all or a portion thereof
shall be Eurodollar Rate Loans. Each Borrowing shall be in an aggregate amount
that is an integral multiple of $1,000,000.
(b) Notice to Each Lender. The Administrative Agent shall give
to each Lender prompt notice of the Administrative Agent's receipt of a Notice
of Borrowing and, if Eurodollar Rate Loans are properly requested in such Notice
of Borrowing, prompt notice of the applicable interest rate. Each Lender shall,
before 3:00 p.m. (New York time) on the date of the proposed Borrowing in the
case of Base Rate Loans and before 1:00 p.m. (New York time) on the date of the
proposed Borrowing in the case of Eurodollar Rate Loans, make available to the
Administrative Agent at its address referred to in Section 11.11, such Lender's
Pro Rata Share of such proposed Borrowing. Upon fulfillment or due waiver (i) on
the Closing Date, of the applicable conditions set forth in Section 3.1 and (ii)
on the Closing Date and any time thereafter, of the applicable conditions set
forth in Section 3.2, the Administrative Agent shall make such funds available
to the Borrower.
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(c) Non-Funding Lenders. Unless the Administrative Agent shall
have received notice from any Lender prior to the date such Lender is required
to make any payment hereunder with respect to any Loan or any participation in
any Swing Loan or Letter of Credit that such Lender will not make such payment
(or any portion thereof) available to the Administrative Agent, the
Administrative Agent may assume that such Lender has made such payment available
to the Administrative Agent on the date such payment is required to be made in
accordance with this Article II and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. The Borrower agrees to repay to the Administrative Agent
on demand such amount (until repaid by such Lender) with interest thereon for
each day from the date such amount is made available to the Borrower until the
date such amount is repaid to the Administrative Agent, at the interest rate
applicable to the Obligation that would have been created when the
Administrative Agent made available such amount to the Borrower had such Lender
made a corresponding payment available; provided, however, that such payment
shall not relieve such Lender of any obligation it may have to the Borrower, the
Swingline Lender or any L/C Issuer. In addition, any Lender that shall not have
made available to the Administrative Agent any portion of any payment described
above (any such Lender, a "Non-Funding Lender") agrees to pay such amount to the
Administrative Agent on demand together with interest thereon, for each day from
the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at the Federal Funds Rate for the
first Business Day and thereafter (i) in the case of a payment in respect of a
Loan, at the interest rate applicable at the time to such Loan and (ii)
otherwise, at the interest rate applicable to Base Rate Loans under the
Revolving Credit Facility. Such repayment shall then constitute the funding of
the corresponding Loan (including any Loan deemed to have been made hereunder
with such payment) or participation. The existence of any Non-Funding Lender
shall not relieve any other Lender of its obligations under any Loan Document,
but no other Lender shall be responsible for the failure of any Non-Funding
Lender to make any payment required under any Loan Document.
Section 2.3 Swing Loans(a) . (a) Availability. On the
terms and subject to the conditions contained in this Agreement, the Swingline
Lender may, in its sole discretion, make loans in Dollars (each a "Swing Loan")
available to the Borrower under the Revolving Credit Facility from time to time
on any Business Day during the period from the date hereof until the Termination
Date in an aggregate principal amount at any time outstanding not to exceed the
lesser of (A) its Swingline Commitment and (B) Borrowing Availability, except as
provided in Section 2.1(b) and Section 2.1(c); provided, however, that the
Swingline Lender may not make any Swing Loan (x) to the extent that after giving
effect to such Swing Loan, the aggregate Revolving Credit Outstandings would
exceed the Commitments and (y) in the period commencing on the first Business
Day after it receives notice from the Administrative Agent or the Required
Lenders that one or more of the conditions precedent contained in Section 3.2
are not satisfied and ending when such conditions are satisfied or duly waived.
In connection with the making of any Swing Loan, the Swingline Lender may but
shall not be required to determine that, or take notice whether, the conditions
precedent set forth in Section 3.2 have been satisfied or waived. Each Swing
Loan shall be a Base Rate Loan and must be repaid in full on the earliest of (i)
the funding date of any Borrowing of Revolving Loans and (ii) the Termination
Date. Within the limits set forth in the first sentence of this clause (a),
amounts of Swing Loans repaid may be reborrowed under this clause (a).
(b) Borrowing Procedures. In order to request a Swing Loan,
the Borrower shall give to the Administrative Agent a notice to be received not
later than 1:00 p.m. (New York time) on the day of the proposed borrowing, which
may be made in a writing substantially in the form of Exhibit D duly completed
(a "Swingline Request") or by telephone if confirmed promptly but, in any event,
prior to such borrowing, with such a Swingline Request. In addition, if any
Notice of Borrowing requests a Borrowing of Base Rate Loans, the Swing Line
Lender may, notwithstanding anything else to the contrary in Section 2.2, make a
Swing Loan available to the Borrower in an aggregate amount not to exceed such
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proposed Borrowing, and the aggregate amount of the corresponding proposed
Borrowing shall be reduced accordingly by the principal amount of such Swing
Loan. The Administrative Agent shall promptly notify the Swingline Lender of the
details of the requested Swing Loan. Upon receipt of such notice and subject to
the terms of this Agreement, the Swingline Lender may make a Swing Loan
available to the Borrower by making the proceeds thereof available to the
Administrative Agent and, in turn, the Administrative Agent shall make such
proceeds available to the Borrower on the date set forth in the relevant
Swingline Request.
(c) Refinancing Swing Loans. The Swingline Lender may at any
time forward a demand to the Administrative Agent (which the Administrative
Agent shall, upon receipt, forward to each Lender) that each Lender pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender's Pro
Rata Share of all or a portion of the outstanding Swing Loans. Each Lender shall
pay such Pro Rata Share to the Administrative Agent for the account of the
Swingline Lender. Upon receipt by the Administrative Agent of such payment
(other than during the continuation of any Event of Default under Section
9.1(e)), such Lender shall be deemed to have made a Revolving Loan to the
Borrower, which, upon receipt of such payment by the Swingline Lender from the
Administrative Agent, the Borrower shall be deemed to have used in whole to
refinance such Swing Loan. Any such Revolving Loan that is deemed to have been
made pursuant to this clause (c) prior to the date that is 24 months after the
Closing Date and is made in respect of a Swing Loan that constitutes an
Overadvance shall constitute a Special Overadvance. In addition, regardless of
whether any such demand is made, upon the occurrence of any Event of Default
under Section 9.1(e), each Lender shall be deemed to have acquired, without
recourse or warranty, an undivided interest and participation in each Swing Loan
in an amount equal to such Lender's Pro Rata Share of such Swing Loan. If any
payment made by any Lender as a result of any such demand is not deemed a
Revolving Loan, such payment shall be deemed a funding by such Lender of such
participation. Such participation shall not be otherwise required to be funded.
Upon receipt by the Swingline Lender of any payment from any Lender pursuant to
this clause (c) with respect to any portion of any Swing Loan, the Swingline
Lender shall promptly pay over to such Lender all payments of principal (to the
extent received after such payment by such Lender) and interest (to the extent
accrued with respect to periods after such payment) received by the Swingline
Lender with respect to such portion.
(d) Obligation to Fund Absolute. Each Lender's obligations
pursuant to clause (c) above shall be absolute, unconditional and irrevocable
and shall be performed strictly in accordance with the terms of this Agreement
under any and all circumstances whatsoever, including (A) the existence of any
setoff, claim, abatement, recoupment, defense or other right that such Lender,
any Affiliate thereof or any other Person may have against the Swing Loan
Lender, any other Secured Party or any other Person, (B) the failure of any
condition precedent set forth in Section 3.2 to be satisfied or the failure of
the Borrower to deliver any notice set forth in Section 2.2(a) (each of which
requirements the Lenders hereby irrevocably waive) and (C) any adverse change in
the condition (financial or otherwise) of any Loan Party.
Section 2.4 Letters of Credit(a) . (a) Commitment and
Conditions. On the terms and subject to the conditions contained herein, each
L/C Issuer agrees to Issue, at the request of the Borrower, in accordance with
such L/C Issuer's usual and customary business practices, and for the account of
the Borrower (or, as long as the Borrower remains responsible for the payment in
full of all amounts drawn thereunder and related fees, costs and expenses, for
the account of any Group Member), Letters of Credit (denominated in Dollars in a
minimum amount of $250,000 unless otherwise agreed by the applicable L/C Issuer)
from time to time on any Business Day during the period from the Closing Date
through the earlier of the Termination Date and 30 days prior to the Scheduled
Maturity Date (which for this purpose shall be March 14, 2009 until all the
Senior Subordinated Notes are redeemed and retired, except that that Borrower
may request one or more Letters of Credit in an aggregate amount not to exceed
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$15,000,000 have an expiration date later than March 14, 2009 but not later than
one year following the issuance date of such Letter of Credit); provided,
however, that such L/C Issuer shall not be under any obligation to Issue any
Letter of Credit upon the occurrence of any of the following, after giving
effect to such Issuance:
(i) (A) the aggregate Revolving Credit Outstandings would
exceed the lesser of the Borrowing Base, except as provided in
Section 2.1(c), and the aggregate Revolving Credit Commitments,
or (B) the L/C Obligations for all Letters of Credit would exceed
the L/C Sublimit;
(ii) the expiration date of such Letter of Credit (A) is not
a Business Day, (B) is more than one year after the date of
issuance thereof or (C) is later than 30 days prior to the
Scheduled Maturity Date (which for this purpose shall be March
14, 2009 until all the Senior Subordinated Notes are redeemed and
retired, except that that Borrower may request that Letters of
Credit in an aggregate amount not to exceed $15,000,000 have an
expiration date later than March 14, 2009 but not later than one
year following the issuance date of such Letter of Credit);
provided, however, that any Letter of Credit with a term not
exceeding one year may provide for its renewal for additional
periods not exceeding one year as long as (x) each of the
Borrower and such L/C Issuer have the option to prevent such
renewal before the expiration of such term or any such period and
(y) neither such L/C Issuer nor the Borrower shall permit any
such renewal to extend such expiration date beyond the date set
forth in clause (C) above; or
(iii) (A) any fee due in connection with, and on or prior
to, such Issuance has not been paid, (B) such Letter of Credit is
requested to be Issued in a form that is not acceptable to such
L/C Issuer or (C) such L/C Issuer shall not have received, each
in form and substance reasonably acceptable to it and duly
executed by the Borrower (and, if such Letter of Credit is issued
for the account of any other Group Member, such Group Member),
the documents that such L/C Issuer generally uses in the ordinary
course of its business for the Issuance of letters of credit of
the type of such Letter of Credit (collectively, the "L/C
Reimbursement Agreement").
For each such Issuance, the applicable L/C Issuer may, but shall not be required
to, determine that, or take notice whether, the conditions precedent set forth
in Section 3.2 have been satisfied or waived in connection with the Issuance of
any Letter of Credit; provided, however, that no Letter of Credit shall be
Issued during the period starting on the first Business Day after the receipt by
such L/C Issuer of notice from the Administrative Agent or the Required Lenders
that any condition precedent contained in Section 3.2 is not satisfied and
ending on the date all such conditions are satisfied or duly waived.
The parties hereto agree that all Original Letters of Credit and Original Letter
of Credit Obligations shall be deemed, respectively, Letters of Credit and L/C
Obligations issued or existing under and subject to and governed by and entitled
to the benefits of the terms of this Agreement.
(b) Notice of Issuance. The Borrower shall give the relevant
L/C Issuer and the Administrative Agent a notice of any requested Issuance of
any Letter of Credit, which shall be effective only if received by such L/C
Issuer and the Administrative Agent not later than 1:00 p.m. (New York time) on
the third Business Day prior to the date of such requested Issuance. Such notice
may be made in a writing substantially the form of Exhibit E duly completed or
in a writing in any other form acceptable to such L/C Issuer (an "L/C Request")
or by telephone if confirmed promptly, but in any event within one Business Day
and prior to such Issuance, with such an L/C Request.
(c) Reporting Obligations of L/C Issuers. Each L/C Issuer
agrees to provide the Administrative Agent (which, after receipt, the
Administrative Agent shall provide to each Lender), in form and substance
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satisfactory to the Administrative Agent, each of the following on the following
dates: (i) on or prior to (A) any Issuance of any Letter of Credit by such L/C
Issuer, (B) any drawing under any such Letter of Credit or (C) any payment (or
failure to pay when due) by the Borrower of any related L/C Reimbursement
Obligation, notice thereof, which shall contain a reasonably detailed
description of such Issuance, drawing or payment, (ii) upon the request of the
Administrative Agent (or any Lender through the Administrative Agent), copies of
any Letter of Credit Issued by such L/C Issuer and any related L/C Reimbursement
Agreement and such other documents and information as may reasonably be
requested by the Administrative Agent and (iii) on the first Business Day of
each calendar week, a schedule of the Letters of Credit Issued by such L/C
Issuer, in form and substance reasonably satisfactory to the Administrative
Agent, setting forth the L/C Obligations for such Letters of Credit outstanding
on the last Business Day of the previous calendar week.
(d) Acquisition of Participations. Upon any Issuance of a
Letter of Credit in accordance with the terms of this Agreement resulting in any
increase in the L/C Obligations, each Lender shall be deemed to have acquired,
without recourse or warranty, an undivided interest and participation in such
Letter of Credit and the related L/C Obligations in an amount equal to such
Lender's Pro Rata Share of such L/C Obligations.
(e) Reimbursement Obligations of the Borrower. The Borrower
agrees to pay to the L/C Issuer of any Letter of Credit each L/C Reimbursement
Obligation owing with respect to such Letter of Credit no later than the first
Business Day after the Borrower receives notice from such L/C Issuer that
payment has been made under such Letter of Credit or that such L/C Reimbursement
Obligation is otherwise due (the "L/C Reimbursement Date") with interest thereon
computed as set forth in clause (i) below. In the event that any L/C Issuer
incurs any L/C Reimbursement Obligation not repaid by the Borrower as provided
in this clause (e) (or any such payment by the Borrower is rescinded or set
aside for any reason), such L/C Issuer shall promptly notify the Administrative
Agent of such failure (and, upon receipt of such notice, the Administrative
Agent shall forward a copy to each Lender) and, irrespective of whether such
notice is given, such L/C Reimbursement Obligation shall be payable on demand by
the Borrower with interest thereon computed (i) from the date on which such L/C
Reimbursement Obligation arose to the L/C Reimbursement Date, at the interest
rate applicable during such period to Revolving Loans that are Base Rate Loans
and (ii) thereafter until payment in full, at the interest rate applicable
during such period to past due Revolving Loans that are Base Rate Loans.
(f) Reimbursement Obligations of the Lenders. Upon receipt of
the notice described in clause (e) above from the Administrative Agent, each
Lender shall pay to the Administrative Agent for the account of such L/C Issuer
its Pro Rata Share of such L/C Reimbursement Obligation. By making such payment
(other than during the continuation of an Event of Default under Section
9.1(e)), such Lender shall be deemed to have made a Revolving Loan to the
Borrower, which, upon receipt thereof by such L/C Issuer, the Borrower shall be
deemed to have used in whole to repay such L/C Reimbursement Obligation. Any
such payment that is not deemed a Revolving Loan shall be deemed a funding by
such Lender of its participation in the applicable Letter of Credit and the
related L/C Obligations. Such participation shall not otherwise be required to
be funded. Upon receipt by any L/C Issuer of any payment from any Lender
pursuant to this clause (f) with respect to any portion of any L/C Reimbursement
Obligation, such L/C Issuer shall promptly pay over to such Lender all payments
received after such payment by such L/C Issuer with respect to such portion.
(g) Obligations Absolute. The obligations of the Borrower and
the Lenders pursuant to clauses (d), (e) and (f) above shall be absolute,
unconditional and irrevocable and performed strictly in accordance with the
terms of this Agreement irrespective of (i) (A) the invalidity or
unenforceability of any term or provision in any Letter of Credit, any document
transferring or purporting to transfer a Letter of Credit, any Loan Document
(including the sufficiency of any such instrument), or any modification to any
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provision of any of the foregoing, (B) any document presented under a Letter of
Credit being forged, fraudulent, invalid, insufficient or inaccurate in any
respect or failing to comply with the terms of such Letter of Credit or (C) any
loss or delay, including in the transmission of any document, (ii) the existence
of any setoff, claim, abatement, recoupment, defense or other right that any
Person (including any Group Member) may have against the beneficiary of any
Letter of Credit or any other Person, whether in connection with any Loan
Document or any other Contractual Obligation or transaction, or the existence of
any other withholding, abatement or reduction, (iii) in the case of the
obligations of any Lender, (A) the failure of any condition precedent set forth
in Section 3.2 to be satisfied (each of which conditions precedent the Lenders
hereby irrevocably waive) or (B) any adverse change in the condition (financial
or otherwise) of any Loan Party and (iv) any other act or omission to act or
delay of any kind of any Secured Party or any other Person or any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section 2.4, constitute a legal or
equitable discharge of any obligation of the Borrower or any Lender hereunder.
Section 2.5 Reduction and Termination of the Commitments.
(a) Optional. The Borrower may, upon notice to the
Administrative Agent, terminate in whole at any time and/or reduce in part
ratably, from time to time, any unused portion of the Commitments; provided,
however, that each partial reduction shall be in an aggregate amount that is an
integral multiple of $1,000,000.
(b) Mandatory. All outstanding Commitments shall terminate on
the Scheduled Maturity Date.
Section 2.6 Repayment of Loans. The Borrower promises to
repay the entire unpaid principal amount of the Revolving Loans and the Swing
Loans on the Scheduled Maturity Date.
Section 2.7 Optional Prepayments. The Borrower may prepay the
outstanding principal amount of any Loan in whole at any time and/or in part,
from time to time, without premium or penalty except that the Borrower will
remain liable for any breakage costs that may be owing pursuant to Section
2.16(a) after giving effect to such prepayment; provided, however, that each
partial prepayment that is not of the entire outstanding amount shall be in an
aggregate amount that is an integral multiple of $500,000.
Section 2.8 Mandatory Prepayments.
(a) Omitted.
(b) Omitted.
(c) Asset Sales and Property Loss Events. Upon receipt on or
after the Closing Date by any Loan Party or any of its Subsidiaries of Net Cash
Proceeds arising from (i) any Sale by any Group Member of any Revolving Credit
Priority Collateral, to the extent that such Net Cash Proceeds exceed $1,000,000
in any Fiscal Year, other than Sales of property permitted hereunder in reliance
upon any of clauses (a), (c) or (d) of Section 8.4 or (ii) any Property Loss
Event with respect to any Revolving Credit Priority Collateral of any Group
Member to the extent resulting, in the aggregate with all other such Property
Loss Events, in the receipt by any of them of Net Cash Proceeds in excess of
$1,000,000, the Borrower shall immediately pay or cause to be paid to the
Administrative Agent an amount equal to 100% of such Net Cash Proceeds;
provided, however, that, upon any such receipt, as long as no Event of Default
shall be continuing, any Group Member may make Permitted Reinvestments with such
Net Cash Proceeds and the Borrower shall not be required to make or cause such
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payment to the extent (x) such Net Cash Proceeds are intended to be used to make
Permitted Reinvestments and (y) on each Reinvestment Prepayment Date for such
Net Cash Proceeds, the Borrower shall pay or cause to be paid to the
Administrative Agent an amount equal to the Reinvestment Prepayment Amount
applicable to such Reinvestment Prepayment Date and such Net Cash Proceeds.
(d) Excess Outstandings. On any date on which the aggregate
principal amount of Revolving Credit Outstandings exceeds the aggregate
Commitments or (except in the case of permitted Overadvances under Section
2.1(b) or any Permitted Special Overadvance), the Borrowing Base, the Borrower
shall pay to the Administrative Agent, in reduction of the principal amount of
the Revolving Loans, an amount equal to such excess. To the extent that any
Revolving Loan or Swing Loan was made, or Letter of Credit was issued, in either
case, in excess of Borrowing Availability (and, solely with respect to the
Borrowing Base Availability Limitation, was not a permitted Overadvance under
Section 2.1(b) or is not a Permitted Special Overadvance), the Borrower shall
immediately pay to the Administrative Agent in reduction of the principal amount
of the Revolving Loans an amount equal to such excess.
(e) Application of Payments. Any payments made to the
Administrative Agent pursuant to this Section 2.8 shall be applied to the
Obligations in accordance with Section 2.12(b).
Section 2.9 Interest(a) . (a) Rate. All Loans and the
outstanding amount of all other Obligations (other than pursuant to Secured
Hedging Agreements) shall bear interest, in the case of Loans, on the unpaid
principal amount thereof from the date such Loans are made and, in the case of
such other Obligations, from the date such other Obligations are due and payable
until, in all cases, paid in full, except as otherwise provided in clause (c)
below, as follows: (i) in the case of Base Rate Loans, at a rate per annum equal
to the sum of the Base Rate and the Applicable Margin, each as in effect from
time to time, (ii) in the case of Eurodollar Rate Loans, at a rate per annum
equal to the sum of the Eurodollar Rate and the Applicable Margin, each as in
effect for the applicable Interest Period, and (iii) in the case of other
Obligations, at a rate per annum equal to the sum of the Base Rate and the
Applicable Margin for Revolving Loans that are Base Rate Loans, each as in
effect from time to time.
(b) Payments. Interest accrued shall be payable in arrears (i)
if accrued on the principal amount of any Loan, (A) at maturity (whether by
acceleration or otherwise), (B) (1) if such Loan is a Base Rate Loan (including
a Swing Loan), on the last day of each calendar quarter commencing on the first
such day following the making of such Loan, (2) if such Loan is a Eurodollar
Rate Loan, on the last day of each Interest Period applicable to such Loan and,
if applicable, on each date during such Interest Period occurring every 3 months
from the first day of such Interest Period and (ii) if accrued on any other
Obligation, on demand from any after the time such Obligation is due and payable
(whether by acceleration or otherwise).
(c) Default Interest. Notwithstanding the rates of interest
specified in clause (a) above or elsewhere in any Loan Document, effective
immediately upon (A) the occurrence of any Event of Default under Section
9.1(a), Section 9.1(d) or Section 9.1(e)(ii) or (B) the delivery of a notice by
the Administrative Agent or the Required Lenders to the Borrower during the
continuance of any other Event of Default pursuant to Sections 9.1(a),
9.1(c)(i), 9.1(d), 9.1(e)(i), 9.1(e)(iii) or 9.1(f) and, in each case, for as
long as such Event of Default shall be continuing, the principal balance of all
Obligations (including any Obligation that bears interest by reference to the
rate applicable to any other Obligation) then due and payable shall bear
interest at a rate that is 2% per annum in excess of the interest rate
applicable to such Obligations from time to time, payable on demand or, in the
absence of demand, on the date that would otherwise be applicable.
Section 2.10 Conversion and Continuation Options(a) . (a)
Option. The Borrower may elect (i) in the case of any Eurodollar Rate Loan, (A)
to continue such Eurodollar Rate Loan or any portion thereof for an additional
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Interest Period on the last day of the Interest Period applicable thereto and
(B) to convert such Eurodollar Rate Loan or any portion thereof into a Base Rate
Loan at any time on any Business Day, subject to the payment of any breakage
costs required by Section 2.16(a), and (ii) in the case of Base Rate Loans
(other than Swing Loans), to convert such Base Rate Loans or any portion thereof
into Eurodollar Rate Loans at any time on any Business Day upon 3 Business Days'
prior notice; provided, however, that, (x) for each Interest Period, the
aggregate amount of Eurodollar Rate Loans having such Interest Period must be an
integral multiple of $1,000,000 and (y) no conversion in whole or in part of
Base Rate Loans to Eurodollar Rate Loans and no continuation in whole or in part
of Eurodollar Rate Loans shall be permitted at any time at which (1) an Event of
Default shall be continuing and the Administrative Agent or the Required Lenders
shall have determined in their sole discretion not to permit such conversions or
continuations or (2) such continuation or conversion would be made during a
suspension imposed by Section 2.15.
(b) Procedure. Each such election shall be made by giving the
Administrative Agent at least 3 Business Days' prior notice in substantially the
form of Exhibit F (a "Notice of Conversion or Continuation") duly completed. The
Administrative Agent shall promptly notify each Lender of its receipt of a
Notice of Conversion or Continuation and of the options selected therein. If the
Administrative Agent does not receive a timely Notice of Conversion or
Continuation from the Borrower containing a permitted election to continue or
convert any Eurodollar Rate Loan, then, upon the expiration of the applicable
Interest Period, such Loan shall be automatically converted to a Base Rate Loan.
Each partial conversion or continuation shall be allocated ratably among the
Lenders in accordance with their Pro Rata Share.
Section 2.11 Fees(a) . (a) Unused Commitment Fee. The Borrower
agrees to pay to each Lender a commitment fee on the actual daily amount by
which the Commitment of such Lender exceeds its Pro Rata Share of the sum of (i)
the aggregate outstanding principal amount of Revolving Loans and (ii) the
outstanding amount of the L/C Obligations for all Letters of Credit (the "Unused
Commitment Fee") from the date hereof through the Termination Date at a rate per
annum equal to 0.375%, payable in arrears (x) on the last day of each calendar
quarter and (y) on the Termination Date.
(b) Letter of Credit Fees. The Borrower agrees to pay, with
respect to all Letters of Credit issued by any L/C Issuer, (i) to such L/C
Issuer, certain fees, documentary and processing charges as separately agreed
between the Borrower and such L/C Issuer or otherwise in accordance with such
L/C Issuer's standard schedule in effect at the time of determination thereof
and (ii) to the Administrative Agent, for the benefit of the Lenders according
to their Pro Rata Shares, a fee accruing at a rate per annum equal to the
Applicable Margin for Revolving Loans that are Eurodollar Rate Loans on the
maximum undrawn face amount of such Letters of Credit, payable in arrears (A) on
the last day of each calendar quarter, ending after the issuance of such Letter
of Credit and (B) on the Termination Date; provided, however, that the fee
payable under this clause (ii) shall be increased by 2% per annum and shall be
payable, in addition to being payable on any date it is otherwise required to be
paid hereunder, on demand effective immediately upon (x) the occurrence of any
Event of Default under Section 9.1(a), Section 9.1(d) or Section 9.1(e)(ii) or
(y) the delivery of a notice by the Administrative Agent or the Required Lenders
to the Borrower during the continuance of any other Event of Default pursuant to
Sections 9.1(a), 9.1(c)(i), 9.1(d), 9.1(e)(i), 9.1(e)(iii) or 9.1(f) and, in
each case, for as long as such Event of Default shall be continuing.
(c) Additional Fees. The Borrower shall pay to the
Administrative Agent and its Related Persons its reasonable and customary fees
and expenses in connection with any payments made pursuant to Section 2.16(a)
(Breakage Costs) and has agreed to pay the additional fees described in the Fee
Letter.
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Section 2.12 Application of Payments(a). (a) Application of
Voluntary Prepayments. Unless otherwise provided in this Section 2.12 or
elsewhere in any Loan Document, all payments and any other amounts received by
the Administrative Agent from or for the benefit of the Borrower shall be
applied to repay the Obligations the Borrower designates.
(b) Application of Mandatory Prepayments. Subject to the
provisions of clause (c) below with respect to the application of payments
during the continuance of an Event of Default, any payment made by the Borrower
to the Administrative Agent pursuant to Section 2.8 or any other prepayment of
the Obligations required to be applied in accordance with this clause (b) and
any prepayments that are required by Section 2.1(c), shall be applied first, to
repay the outstanding principal balance of the Revolving Loans and the Swing
Loans, to be applied first to reduce the Special Overadvances, and then to other
Revolving Loans and Swing Loans, second, to provide cash collateral to the
extent and in the manner in Section 9.3; and, then, except to the extent
required to pay other Indebtedness of the Borrower, any excess shall be retained
by the Borrower.
(c) Application of Payments During an Event of Default. The
Borrower hereby irrevocably waives, and agrees to cause each Loan Party and each
other Group Member to waive, the right to direct the application during the
continuance of an Event of Default of any and all payments in respect of any
Obligation and any proceeds of Collateral and agrees that, notwithstanding the
provisions of clause (a) above, the Administrative Agent may, and, upon either
(A) the direction of the Required Lenders or (B) the termination of any
Commitment or the acceleration of any Obligation pursuant to Section 9.2, shall,
apply all payments in respect of any Obligation, all funds on deposit in any
Cash Collateral Account and all other proceeds of Collateral (i) first, to pay
Obligations in respect of any cost or expense reimbursements, fees or
indemnities then due to the Administrative Agent, (ii) second, to pay
Obligations in respect of any cost or expense reimbursements, fees or
indemnities then due to the Lenders and the L/C Issuers, (iii) third, to pay
interest then due and payable in respect of the Loans and L/C Reimbursement
Obligations, (iv) fourth, to repay the outstanding principal amounts of the
Loans and L/C Reimbursement Obligations, to provide cash collateral for Letters
of Credit in the manner and to the extent described in Section 9.3 and (v)
fifth, to the ratable payment of all other Obligations.
(d) Application of Payments Generally. All payments that would
otherwise be allocated to the Lenders pursuant to this Section 2.12 shall
instead be allocated first, to repay interest on Swing Loans (including any
Swing Loan that constitutes all or a portion of the Special Overadvances), on
any portion of the Revolving Loans that the Administrative Agent may have
advanced on behalf of any Lender, on any Overadvance (other than the Special
Overadvances) or any L/C Reimbursement Obligation, in each case for which the
Administrative Agent or, as the case may be, the L/C Issuer has not then been
reimbursed by such Lender or the Borrower, second to pay the outstanding
principal amount of the foregoing obligations and third, to repay the Revolving
Loans, to be applied to the Special Overadvances before any other Revolving
Loans. All repayments of any Revolving Loans shall be applied first, to repay
such Loans outstanding as Base Rate Loans and then, to repay such Loans
outstanding as Eurodollar Rate Loans, with those Eurodollar Rate Loans having
earlier expiring Interest Periods being repaid prior to those having later
expiring Interest Periods; provided that, unless otherwise elected by the
Borrower, the Borrowing of Revolving Loans on the Closing Date in the amount
identified by the Borrower in its initial Notice of Borrowing and classified by
the Borrower as "Refinancing Indebtedness" under the Senior Subordinated Notes
Indenture shall be paid after all other Revolving Loans. If sufficient amounts
are not available to repay all outstanding Obligations described in any priority
level set forth in this Section 2.12, the available amounts shall be applied,
unless otherwise expressly specified herein, to such Obligations ratably based
on the proportion of the Secured Parties' interest in such Obligations. Any
priority level set forth in this Section 2.12 that includes interest shall
include all such interest, whether or not accruing after the filing of any
REVOLVING CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
38
petition in bankruptcy or the commencement of any insolvency, reorganization or
similar proceeding, and whether or not a claim for post-filing or post-petition
interest is allowed in any such proceeding.
Section 2.13 Payments and Computations(a) . (a) Procedure. The
Borrower shall make each payment under any Loan Document not later than 2:00
p.m. (New York time) on the day when due to the Administrative Agent by wire
transfer to the following account (or at such other account or by such other
means to such other address as the Administrative Agent shall have notified the
Borrower in writing within a reasonable time prior to such payment) in
immediately available Dollars and without setoff or counterclaim:
ABA No. 000-000-000
Account Number 000-000-00
Deutsche Bank Trust Company Americas, New York, New York
Account Name: GECC/CAF Depository,
Reference: CFN 8845 - GE Capital Re Dayton Superior Corporation
The Administrative Agent shall promptly thereafter cause to be distributed
immediately available funds relating to the payment of principal, interest or
fees to the Lenders, in accordance with the application of payments set forth in
Section 2.12. The Lenders shall make any payment under any Loan Document in
immediately available Dollars and without setoff or counterclaim. Each Lender
shall make each payment for the account of any L/C Issuer or Swingline Lender
required pursuant to Section 2.3 or 2.4 prior to 3:00 p.m. (New York time) on
the Business Day immediately succeeding the Business Day on which demand or
notice, as applicable, has been given to such Lender. Payments received by the
Administrative Agent after 3:00 p.m. (New York time) shall be deemed to be
received on the next Business Day.
(b) Computations of Interests and Fees. All computations of
interest and of fees shall be made by the Administrative Agent on the basis of a
year of 360 days (or, in the case of Base Rate Loans whose interest rate is
calculated based on the rate set forth in clause (a) of the definition of "Base
Rate", 365/366 days), in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest and fees are payable. Each determination of an interest rate or the
amount of a fee hereunder shall be made by the Administrative Agent (including
determinations of a Eurodollar Rate or Base Rate in accordance with the
definitions of "Eurodollar Rate" and "Base Rate", respectively) and shall be
conclusive, binding and final for all purposes, absent manifest error.
(c) Payment Dates. Whenever any payment hereunder shall be
stated to be due on a day other than a Business Day, the due date for such
payment shall be extended to the next succeeding Business Day without any
increase in such payment as a result of additional interest or fees; provided,
however, that such interest and fees shall continue accruing as a result of such
extension of time.
(d) Advancing Payments. Unless the Administrative Agent shall
have received notice from the Borrower to the Lenders prior to the date on which
any payment is due hereunder that the Borrower will not make such payment in
full, the Administrative Agent may assume that the Borrower has made such
payment in full to the Administrative Agent on such date and the Administrative
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent that the Borrower shall not have made such payment in full to
the Administrative Agent, each Lender shall repay to the Administrative Agent on
demand such amount distributed to such Lender together with interest thereon (at
the Federal Funds Rate for the first Business Day and thereafter, at the rate
applicable to Base Rate Loans) for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Administrative Agent.
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[DAYTON SUPERIOR CORPORATION]
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Section 2.14 Evidence of Debt(a) . (a) Records of Lenders. Each Lender shall
maintain in accordance with its usual practice accounts evidencing Indebtedness
of the Borrower to such Lender resulting from each Loan of such Lender from time
to time, including the amounts of principal and interest payable and paid to
such Lender from time to time under this Agreement. In addition, each Lender
having sold a participation in any of its Obligations or having identified an
SPV as such to the Administrative Agent, acting as agent of the Borrower solely
for this purpose and solely for tax purposes, shall establish and maintain at
its address referred to in Section 11.11 (or at such other address as such
Lender shall notify the Borrower) a record of ownership, in which such Lender
shall register by book entry (A) the name and address of each such participant
and SPV (and each change thereto, whether by assignment or otherwise) and (B)
the rights, interest or obligation of each such participant and SPV in any
Obligation, in any Commitment and in any right to receive any payment hereunder.
(b) Records of Administrative Agent. The Administrative Agent,
acting as agent of the Borrower solely for tax purposes and solely with respect
to the actions described in this Section 2.14, shall establish and maintain at
its address referred to in Section 11.11 (or at such other address as the
Administrative Agent may notify the Borrower) (A) a record of ownership (the
"Register") in which the Administrative Agent agrees to register by book entry
the interests (including any rights to receive payment hereunder) of the
Administrative Agent, each Lender and each L/C Issuer in the Revolving Credit
Outstandings, each of their obligations under this Agreement to participate in
each Loan, Letter of Credit and L/C Reimbursement Obligation, and any assignment
of any such interest, obligation or right and (B) accounts in the Register in
accordance with its usual practice in which it shall record (1) the names and
addresses of the Lenders and the L/C Issuers (and each change thereto pursuant
to Section 2.18 (Substitution of Lenders) and Section 11.2 (Assignments and
Participations; Binding Effect)), (2) the Commitments of each Lender, (3) the
amount of each Loan and each funding of any participation described in clause
(A) above, for Eurodollar Rate Loans, the Interest Period applicable thereto,
(4) the amount of any principal or interest due and payable or paid, (5) the
amount of the L/C Reimbursement Obligations due and payable or paid and (6) any
other payment received by the Administrative Agent from the Borrower and its
application to the Obligations.
(c) Registered Obligations. Notwithstanding anything to the
contrary contained in this Agreement, the Loans (including any Notes evidencing
such Loans and, in the case of Revolving Loans, the corresponding obligations to
participate in L/C Obligations and Swing Loans) and the L/C Reimbursement
Obligations are registered obligations, the right, title and interest of the
Lenders and the L/C Issuers and their assignees in and to such Loans or L/C
Reimbursement Obligations, as the case may be, shall be transferable only upon
notation of such transfer in the Register and no assignment thereof shall be
effective until recorded therein. This Section 2.14 and Section 11.2 shall be
construed so that the Loans and L/C Reimbursement Obligations are at all times
maintained in "registered form" within the meaning of Sections 163(f), 871(h)(2)
and 881(c)(2) of the Code and any related regulations (and any successor
provisions).
(d) Prima Facie Evidence. The entries made in the Register and
in the accounts maintained pursuant to clauses (a) and (b) above shall, to the
extent permitted by applicable Requirements of Law, be prima facie evidence of
the existence and amounts of the obligations recorded therein; provided,
however, that no error in such account and no failure of any Lender or the
Administrative Agent to maintain any such account shall affect the obligations
of any Loan Party to repay the Loans in accordance with their terms. In
addition, the Loan Parties, the Administrative Agent, the Lenders and the L/C
Issuers shall treat each Person whose name is recorded in the Register as a
Lender or L/C Issuer, as applicable, for all purposes of this Agreement.
Information contained in the Register with respect to any Lender or any L/C
Issuer shall be available for access by the Borrower, the Administrative Agent,
such Lender or such L/C Issuer at any reasonable time and from time to time upon
reasonable prior notice. No Lender or L/C Issuer shall, in such capacity, have
access to or be otherwise permitted to review any information in the Register
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[DAYTON SUPERIOR CORPORATION]
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other than information with respect to such Lender or L/C Issuer unless
otherwise agreed by the Administrative Agent.
(e) Notes. Upon any Lender's request, the Borrower shall
promptly execute and deliver Notes to such Lender evidencing the Loans of such
Lender and substantially in the form of Exhibit B; provided, however, that only
one Note shall be issued to each Lender, except (i) to an existing Lender
exchanging existing Notes to reflect changes in the Register relating to such
Lender, in which case the new Notes delivered to such Lender shall be dated the
date of the original Notes and (ii) in the case of loss, destruction or
mutilation of existing Notes and similar circumstances. Each Note, if issued,
shall only be issued as means to evidence the right, title or interest of a
Lender or a registered assignee in and to the related Loan, as set forth in the
Register, and in no event shall any Note be considered a bearer instrument or
obligation.
Section 2.15 Suspension of Eurodollar Rate Option.
Notwithstanding any provision to the contrary in this Article II, the following
shall apply:
(a) Interest Rate Unascertainable, Inadequate or Unfair. In
the event that (A) the Administrative Agent determines that adequate and fair
means do not exist for ascertaining the applicable interest rates by reference
to which the Eurodollar Rate is determined or (B) the Required Lenders notify
the Administrative Agent that the Eurodollar Rate for any Interest Period will
not adequately reflect the cost to the Lenders of making or maintaining such
Loans for such Interest Period, the Administrative Agent shall promptly so
notify the Borrower and the Lenders, whereupon the obligation of each Lender to
make or to continue Eurodollar Rate Loans shall be suspended as provided in
clause (c) below until the Administrative Agent shall notify the Borrower that
the Required Lenders have determined that the circumstances causing such
suspension no longer exist.
(b) Illegality. If any Lender determines that the introduction
of, or any change in or in the interpretation of, any Requirement of Law after
the date of this Agreement shall make it unlawful, or any Governmental Authority
shall assert that it is unlawful, for any Lender or its applicable lending
office to make Eurodollar Rate Loans or to continue to fund or maintain
Eurodollar Rate Loans, then, on notice thereof and demand therefor by such
Lender to the Borrower through the Administrative Agent, the obligation of such
Lender to make or to continue Eurodollar Rate Loans shall be suspended as
provided in clause (c) below until such Lender shall, through the Administrative
Agent, notify the Borrower that it has determined that it may lawfully make
Eurodollar Rate Loans.
(c) Effect of Suspension. If the obligation of any Lender to
make or to continue Eurodollar Rate Loans is suspended, (A) the obligation of
such Lender to convert Base Rate Loans into Eurodollar Rate Loans shall be
suspended, (B) such Lender shall make a Base Rate Loan at any time such Lender
would otherwise be obligated to make a Eurodollar Rate Loan, (C) the Borrower
may revoke any pending Notice of Borrowing or Notice of Conversion or
Continuation to make or continue any Eurodollar Rate Loan or to convert any Base
Rate Loan into a Eurodollar Rate Loan and (D) each Eurodollar Rate Loan of such
Lender shall automatically and immediately (or, in the case of any suspension
pursuant to clause (a) above, on the last day of the current Interest Period
thereof) be converted into a Base Rate Loan.
Section 2.16 Breakage Costs; Increased Costs; Capital
Requirements(a) . (a) Breakage Costs. The Borrower shall compensate each Lender,
upon demand from such Lender to the Borrower (with copy to the Administrative
Agent), for all Liabilities (including, in each case, those incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by such
Lender to prepare to fund, to fund or to maintain the Eurodollar Rate Loans of
such Lender to the Borrower but excluding any loss of the Applicable Margin on
the relevant Loans) that such Lender may incur (A) to the extent, for any reason
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[DAYTON SUPERIOR CORPORATION]
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other than solely by reason of such Lender being a Non-Funding Lender, a
proposed Borrowing, conversion into or continuation of Eurodollar Rate Loans
does not occur on a date specified therefor in a Notice of Borrowing or a Notice
of Conversion or Continuation or in a similar request made by telephone by the
Borrower, (B) to the extent any Eurodollar Rate Loan is paid (whether through a
scheduled, optional or mandatory prepayment) or converted to a Base Rate Loan
(including because of Section 2.15) on a date that is not the last day of the
applicable Interest Period or (C) as a consequence of any failure by the
Borrower to repay Eurodollar Rate Loans when required by the terms hereof. For
purposes of this clause (a), each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it using a matching deposit or other borrowing in
the London interbank market.
(b) Increased Costs. If at any time any Lender or L/C Issuer
determines that, after the date hereof, the adoption of, or any change in or in
the interpretation, application or administration of, or compliance with, any
Requirement of Law (other than any imposition or increase of Eurodollar Reserve
Requirements) from any Governmental Authority shall have the effect of (i)
increasing the cost to such Lender of making, funding or maintaining any
Eurodollar Rate Loan or to agree to do so or of participating, or agreeing to
participate, in extensions of credit, (ii) increasing the cost to such L/C
Issuer of Issuing or maintaining any Letter of Credit or of agreeing to do so or
(iii) imposing any other cost to such Lender or L/C Issuer with respect to
compliance with its obligations under any Loan Document, then, upon demand by
such Lender or L/C Issuer (with copy to the Administrative Agent), the Borrower
shall pay to the Administrative Agent for the account of such Lender or L/C
Issuer amounts sufficient to compensate such Lender or L/C Issuer for such
increased cost; provided, however, that this Section 2.16(b) shall not apply to
any increase in or imposition of any taxes which shall be governed by Section
2.17.
(c) Increased Capital Requirements. If at any time any Lender
or L/C Issuer determines that, after the date hereof, the adoption of, or any
change in or in the interpretation, application or administration of, or
compliance with, any Requirement of Law (other than any imposition or increase
of Eurodollar Reserve Requirements) from any Governmental Authority regarding
capital adequacy, reserves, special deposits, compulsory loans, insurance
charges against property of, deposits with or for the account of, Obligations
owing to, or other credit extended or participated in by, any Lender or L/C
Issuer or any similar requirement (in each case other than any imposition or
increase of Eurodollar Reserve Requirements) shall have the effect of reducing
the rate of return on the capital of such Lender's or L/C Issuer (or any
corporation controlling such Lender or L/C Issuer) as a consequence of its
obligations under or with respect to any Loan Document or Letter of Credit to a
level below that which, taking into account the capital adequacy policies of
such Lender, L/C Issuer or corporation, such Lender, L/C Issuer or corporation
could have achieved but for such adoption or change, then, upon demand from time
to time by such Lender or L/C Issuer (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative Agent for
the account of such Lender amounts sufficient to compensate such Lender for such
reduction.
(d) Compensation Certificate. Each demand for compensation
under this Section 2.16 shall be accompanied by a certificate of the Lender or
L/C Issuer claiming such compensation, setting forth the amounts to be paid
hereunder, which certificate shall be conclusive, binding and final for all
purposes, absent manifest error. In determining such amount, such Lender or L/C
Issuer may use any reasonable averaging and attribution methods.
Section 2.17 Taxes(a) . (a) Payments Free and Clear of Taxes.
Except as otherwise provided in this Section 2.17, each payment by any Loan
Party under any Loan Document shall be made free and clear of and without
deduction for all present or future taxes, levies, imposts, deductions, charges
or withholdings and all liabilities with respect thereto (and without deduction
for any of them) (collectively, the "Taxes") other than for (i) taxes measured
by net income (including branch profits taxes) and franchise taxes imposed in
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[DAYTON SUPERIOR CORPORATION]
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lieu of net income taxes, in each case imposed on any Secured Party as a result
of a present or former connection between such Secured Party and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than such connection
arising solely from any Secured Party having executed, delivered or performed
its obligations or received a payment under, or enforced, any Loan Document) or
(ii) taxes that are directly attributable to the failure (other than as a result
of a change in any Requirement of Law) by any Secured Party to deliver the
documentation required to be delivered pursuant to clause (f) below (all such
non-excluded taxes, "Non-Excluded Taxes").
(b) Gross-Up. If any Taxes shall be required by law to be
deducted from or in respect of any amount payable under any Loan Document (other
than any Secured Hedging Agreement) to any Secured Party (i) in the case of
Non-Excluded Taxes, such amount shall be increased as necessary to ensure that,
after all required deductions for Non-Excluded Taxes are made (including
deductions of Non-Excluded Taxes applicable to any increases to any amount under
this Section 2.17), such Secured Party receives the amount it would have
received had no such deductions been made, (ii) the relevant Loan Party shall
make deductions for all relevant Taxes, (iii) the relevant Loan Party shall
timely pay the full amount deducted to the relevant taxing authority or other
authority in accordance with applicable Requirements of Law and (iv) within 30
days after such payment is made, the relevant Loan Party shall deliver to the
Administrative Agent an original or certified copy of a receipt evidencing such
payment or, if a receipt is not available, other evidence of payment reasonably
satisfactory to the Administrative Agent in the Administrative Agent's sole
discretion; provided, however, that no such increase shall be made with respect
to, and no Loan Party shall be required to indemnify any such Secured Party
pursuant to clause (d) below for, withholding taxes to the extent that the
obligation to withhold amounts existed on the date that such Secured Party
became a "Secured Party" under this Agreement in the capacity under which such
Secured Party makes a claim under this clause (b), except in each case to the
extent such Secured Party is a direct or indirect assignee (other than pursuant
to Section 2.18 (Substitution of Lenders)) of any other Secured Party that was
entitled, at the time the assignment of such other Secured Party became
effective, to receive additional amounts under this clause (b).
(c) Other Taxes. In addition, the Borrower agrees to pay, and
authorizes the Administrative Agent to pay in its name, any stamp, documentary,
excise or property tax, charges or similar levies imposed by any applicable
Requirement of Law or Governmental Authority and all Liabilities with respect
thereto (including by reason of any delay in payment thereof), in each case
arising from the execution, delivery or registration of, or otherwise with
respect to, any Loan Document or any transaction contemplated therein
(collectively, "Other Taxes"). The Swingline Lender may, without any need for
notice, demand or consent from the Borrower, by making funds available to the
Administrative Agent in the amount equal to any such payment, make a Swing Loan
to the Borrower in such amount, the proceeds of which shall be used by the
Administrative Agent in whole to make such payment. Within 30 days after the
date of any payment of Taxes or Other Taxes by any Loan Party pursuant to this
Section 2.17, the Borrower shall furnish to the Administrative Agent, at its
address referred to in Section 11.11, the original or a certified copy of a
receipt evidencing payment thereof or, if a receipt is not available, other
evidence of payment reasonably acceptable to the Administrative Agent in the
Administrative Agent's sole discretion.
(d) Indemnification. The Borrower shall reimburse and
indemnify, within 30 days after receipt of demand therefor (with copy to the
Administrative Agent), each Secured Party for all Non-Excluded Taxes and Other
Taxes (including any such Non-Excluded Taxes and Other Taxes imposed by any
jurisdiction on amounts payable under this Section 2.17) paid by such Secured
Party and any Liabilities arising therefrom or with respect thereto (other than
any taxes referred to in clauses (i) and (ii) of Section 2.17(a)), whether or
not such Non-Excluded Taxes or Other Taxes were correctly or legally asserted. A
certificate of the Secured Party (or of the Administrative Agent on behalf of
REVOLVING CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
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such Secured Party) claiming any compensation under this clause (d), setting
forth a calculation of the amounts to be paid thereunder and delivered to the
Borrower with a copy to the Administrative Agent, shall be conclusive, binding
and final for all purposes, absent manifest error.
(e) Mitigation. Any Lender claiming any additional amounts
payable pursuant to this Section 2.17 shall use its reasonable efforts
(consistent with its internal policies and Requirements of Law) to change the
jurisdiction of its lending office if such a change would reduce any such
additional amounts (or any similar amount that may thereafter accrue) and would
not, in the sole determination of such Lender, be otherwise disadvantageous to
such Lender.
(f) Tax Forms. (i) Each Non-U.S. Lender Party that, at any of
the following times, is entitled to an exemption from United States withholding
tax or is subject to such withholding tax at a reduced rate under an applicable
tax treaty, shall (w) on or prior to the date such Non-U.S. Lender Party becomes
a "Non-U.S. Lender Party" hereunder, (x) on or prior to the date on which any
such form or certification expires or becomes obsolete, (y) after the occurrence
of any event requiring a change in the most recent form or certification
previously delivered by it pursuant to this clause (i) and (z) from time to time
if requested by the Borrower or the Administrative Agent (or, in the case of a
participant or SPV, the relevant Lender), provide the Administrative Agent and
the Borrower (or, in the case of a participant or SPV, the relevant Lender) with
two properly completed and duly executed originals of each of the following, as
applicable: (A) Forms W-8ECI (claiming exemption from U.S. withholding tax
because the income is effectively connected with a U.S. trade or business),
W-8BEN (claiming exemption from, or a reduction of, U.S. withholding tax under
an income tax treaty) and/or W-8IMY (together with any required accompanying
forms) or any successor forms, (B) in the case of a Non-U.S. Lender Party
claiming exemption under Sections 871(h) or 881(c) of the Code, Form W-8BEN
(claiming exemption from U.S. withholding tax under the portfolio interest
exemption) or any successor form and a certificate in form and substance
acceptable to the Administrative Agent that such Non-U.S. Lender Party is not
(1) a "bank" within the meaning of Section 881(c)(3)(A) of the Code, (2) a "10
percent shareholder" of the Borrower within the meaning of Section 881(c)(3)(B)
of the Code or (3) a "controlled foreign corporation" described in Section
881(c)(3)(C) of the Code or (C) any other applicable document prescribed by the
IRS certifying as to the entitlement of such Non-U.S. Lender Party to such
exemption from United States withholding tax or reduced rate with respect to all
payments to be made to such Non-U.S. Lender Party under the Loan Documents.
Unless the Borrower and the Administrative Agent have received forms or other
documents satisfactory to them indicating that payments under any Loan Document
to or for a Non-U.S. Lender Party are not subject to United States withholding
tax, the Loan Parties and the Administrative Agent shall withhold amounts
required to be withheld by applicable Requirements of Law from such payments at
the applicable statutory rate or at a reduced rate under an applicable tax
treaty.
(i) Each U.S. Lender Party shall (A) on or prior to the date
such U.S. Lender Party becomes a "U.S. Lender Party" hereunder,
(B) on or prior to the date on which any such form or
certification expires or becomes obsolete, (C) after the
occurrence of any event requiring a change in the most recent
form or certification previously delivered by it pursuant to this
clause (f) and (D) from time to time if requested by the Borrower
or the Administrative Agent (or, in the case of a participant or
SPV, the relevant Lender), provide the Administrative Agent and
the Borrower (or, in the case of a participant or SPV, the
relevant Lender) with two properly completed and duly executed
originals of Form W-9 (certifying that such U.S. Lender Party is
entitled to an exemption from U.S. backup withholding tax) or any
successor form.
(ii) Each Lender having sold a participation in any of its
Obligations or identified an SPV as such to the Administrative
Agent shall collect from such participant or SPV the documents
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[DAYTON SUPERIOR CORPORATION]
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described in this clause (f) and provide them, along with two
properly completed and duly executed originals of Form W-8IMY to
the Administrative Agent.
Section 2.18 Substitution of Lenders(a). (a) Substitution
Right. In the event that any Lender that is not an Affiliate of the
Administrative Agent (an "Affected Lender"), (i) makes a claim under clause (b)
(Increased Costs) or (c) (Increased Capital Requirements) of Section 2.16, (ii)
notifies the Borrower pursuant to Section 2.15(b) (Illegality) that it becomes
illegal for such Lender to continue to fund or make any Eurodollar Rate Loan,
(iii) makes a claim for payment pursuant to Section 2.17(b) or (d) (Taxes), (iv)
becomes a Non-Funding Lender or (v) does not consent to any amendment, waiver or
consent to any Loan Document for which the consent of the Required Lenders is
obtained but that requires the consent of other Lenders, the Borrower may either
pay in full such Affected Lender with respect to amounts due with the consent of
the Administrative Agent or substitute for such Affected Lender any Lender or
any Affiliate or Approved Fund of any Lender or any other Person acceptable
(which acceptance shall not be unreasonably withheld or delayed) to the
Administrative Agent (in each case, a "Substitute Lender").
(b) Procedure. To substitute such Affected Lender or pay in
full the Obligations owed to such Affected Lender, the Borrower shall deliver a
notice to the Administrative Agent and such Affected Lender. The effectiveness
of such payment or substitution shall be subject to the delivery to the
Administrative Agent by the Borrower (or, as may be applicable in the case of a
substitution, by the Substitute Lender) of (i) payment for the account of such
Affected Lender, of, to the extent accrued through, and outstanding on, the
effective date for such payment or substitution, all Obligations owing to such
Affected Lender (including those that will be owed because of such payment),
(ii) in the case of a payment in full of the Obligations owing to such Affected
Lender, payment of any amount that, after giving effect to the termination of
the Commitment of such Affected Lender, is required to be paid pursuant to
Section 2.8(d) (Excess Outstandings) and (iii) in the case of a substitution,
(A) payment of the assignment fee set forth in Section 11.2(c) and (B) an
assumption agreement in form and substance reasonably satisfactory to the
Administrative Agent whereby the Substitute Lender shall, among other things,
agree to be bound by the terms of the Loan Documents and assume the Commitment
of the Affected Lender.
(c) Effectiveness. Upon satisfaction of the conditions set
forth in clause (b) above, the Administrative Agent shall record such
substitution or payment in the Register, whereupon (i) in the case of any
payment in full, such Affected Lender's Commitments shall be terminated and (ii)
in the case of any substitution, (A) the Affected Lender shall sell and be
relieved of, and the Substitute Lender shall purchase and assume, all rights and
claims of such Affected Lender under the Loan Documents, except that the
Affected Lender shall retain such rights expressly providing that they survive
the repayment of the Obligations and the termination of the Commitments, (B) the
Substitute Lender shall become a "Lender" hereunder having a Commitment in the
amount of such Affected Lender's Commitment and (C) the Affected Lender shall
execute and deliver to the Administrative Agent an Assignment to evidence such
substitution and deliver any Note in its possession; provided, however, that the
failure of any Affected Lender to execute any such Assignment or deliver any
such Note shall not render such sale and purchase (or the corresponding
assignment) invalid.
Section 2.19 Eligible Accounts. All of the Accounts owned by
the Borrower or any of its Domestic Subsidiaries and reflected in the most
recent Borrowing Base Certificate delivered by the Borrower to the
Administrative Agent shall be "Eligible Accounts" for purposes of this
Agreement, except any Account to which any of the exclusionary criteria set
forth below applies. The Administrative Agent shall have the right to establish,
modify or eliminate Reserves against Eligible Accounts from time to time in its
Permitted Discretion. In addition, the Administrative Agent reserves the right,
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at any time and from time to time after the Closing Date, to adjust any of the
criteria set forth below, to establish new criteria and to adjust advance rates
with respect to Eligible Accounts, in its Permitted Discretion exercised in good
faith, subject to the approval of Supermajority Lenders in the case of
adjustments, new criteria or changes in advance rates which have the effect of
making more credit available. Eligible Accounts shall not include any Account of
the Borrower or its Domestic Subsidiaries:
(a) that does not arise from the sale of goods or the
performance of services by the Borrower or a Domestic Subsidiary in the ordinary
course of its business;
(b) (i) upon which the Borrower's or a Domestic Subsidiary's
right to receive payment is not absolute or is contingent upon the fulfillment
of any condition whatsoever or (ii) as to which the Borrower or such Domestic
Subsidiary is not able to bring suit or otherwise enforce its remedies against
the Account Debtor through judicial process, or (iii) if the Account represents
a progress billing consisting of an invoice for goods sold or used or services
rendered pursuant to a contract under which the Account Debtor's obligation to
pay that invoice is subject to the Borrower's or a Domestic Subsidiary's
completion of further performance under such contract or is subject to the
equitable lien of a surety bond issuer;
(c) to the extent that any defense, counterclaim, setoff or
dispute is asserted as to such Account;
(d) that is not a true and correct statement of bona fide
indebtedness incurred in the amount of the Account for merchandise sold to or
services rendered and accepted by the applicable Account Debtor;
(e) with respect to which an invoice has not been sent to the
applicable Account Debtor;
(f) that (i) is not owned by the Borrower or a Domestic
Subsidiary or (ii) is subject to any right, claim, security interest or other
interest of any other Person, other than Permitted Liens that are junior to the
Lien of the Administrative Agent securing the Obligations);
(g) that arises from a sale to any Loan Party, director,
officer, other employee or Affiliate of any Loan Party, or to any entity that
has any common officer or director with any Loan Party;
(h) that is the obligation of an Account Debtor that is the
United States government or a political subdivision thereof, or any state,
county or municipality or department, agency or instrumentality thereof to the
extent such obligations in the aggregate exceed $2,500,000 unless the
Administrative Agent, in its sole discretion, has agreed to the contrary in
writing and the Borrower or the applicable Domestic Subsidiary, if necessary or
desirable, has complied with respect to such obligation with the Federal
Assignment of Claims Act of 1940, or any applicable state, county or municipal
law restricting the assignment thereof with respect to such obligation;
(i) that is the obligation of an Account Debtor located in a
foreign country other than Canada unless payment thereof is assured by a letter
of credit assigned and delivered to the Administrative Agent, satisfactory to
the Administrative Agent as to form, amount and issuer;
(j) to the extent the Borrower or any Subsidiary thereof is
liable for goods sold or services rendered by the applicable Account Debtor to
the Borrower or any Subsidiary thereof but only to the extent of the potential
offset;
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(k) that arises with respect to goods that are delivered on a
xxxx-and-hold, cash-on-delivery basis or placed on consignment, guaranteed sale
or other terms by reason of which the payment by the Account Debtor is or may be
conditional;
(l) that is in default; provided, that, without limiting the
generality of the foregoing, an Account shall be deemed in default upon the
occurrence of any of the following:
(i) (x) the Account has not been paid and there has elapsed
120 (but not more than 150) days since its invoice date and the Account is not
otherwise ineligible; (y) the Account has not been paid and there has elapsed
more than 150 days since its invoice date; or (z) the Account has not been paid
and there has elapsed more than 90 days since its due date and it is not an
Account taken into account under clause (y);
(ii) the Account Debtor obligated upon such Account suspends
business, makes a general assignment for the benefit of creditors or fails to
pay its debts generally as they come due; or
(iii) a petition is filed by or against any Account Debtor
obligated upon such Account under any bankruptcy law or any other federal, state
or foreign (including any provincial) receivership, insolvency relief or other
law or laws for the relief of debtors;
(m) that is the obligation of an Account Debtor if 50% or more
of the Dollar amount of all Accounts owing by that Account Debtor are ineligible
under the other criteria set forth in paragraph (l) of this Section 2.19;
(n) as to which the Administrative Agent's Lien thereon, on
behalf of itself and Lenders, is not a first priority perfected Lien;
(o) as to which any of the representations or warranties in
the Loan Documents are untrue;
(p) to the extent such Account is evidenced by a judgment,
Instrument or, except in the case of a Rental, Chattel Paper;
(q) to the extent that such Account, together with all other
Accounts owing by such Account Debtor and its Affiliates as of any date of
determination exceed 10% of all Eligible Accounts, except as otherwise agreed by
the Administrative Agent;
(r) that is payable in any currency other than Dollars;
(s) in the case of any Rental, is not subject to a written
lease agreement; or
(t) in the case of any Rental, is not subject to a first
priority security interest of the Administrative Agent on behalf of Lenders,
perfected by possession of all Chattel Paper related to such Rental by
possession or by the filing of a financing statement, which financing statement
indicates that a purchase of or security interest in such chattel paper by or in
favor of any Person other than the Administrative Agent is violative of the
rights of the Administrative Agent.
Section 2.20 Eligible Inventory. All of the Inventory owned by
the Borrower or any of its Domestic Subsidiaries and reflected in the most
recent Borrowing Base Certificate delivered by the Borrower to the
Administrative Agent shall be "Eligible Inventory" for purposes of this
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Agreement, except any Inventory to which any of the exclusionary criteria set
forth below applies. The Administrative Agent shall have the right to establish,
modify, or eliminate Reserves against Eligible Inventory from time to time in
its Permitted Discretion. In addition, the Administrative Agent reserves the
right, at any time and from time to time after the Closing Date, to adjust any
of the criteria set forth below, to establish new criteria and to adjust advance
rates with respect to Eligible Inventory in its Permitted Discretion exercised
in good faith, subject to the approval of Supermajority Lenders in the case of
adjustments, new criteria or changes in advance rates which have the effect of
making more credit available. Eligible Inventory shall not include any Inventory
of the Borrower or a Domestic Subsidiary that:
(a) is not owned by the Borrower or a Domestic Subsidiary free
and clear of all Liens and rights of any other Person (including the rights of a
purchaser that has made progress payments and the rights of a surety that has
issued a bond to assure the Borrower's or a Domestic Subsidiary's performance
with respect to that Inventory), except the Liens in favor of the Administrative
Agent, on behalf of itself and Lenders;
(b) (i) except in the case of Inventory on lease to customers
in the ordinary course of business (w) is not located on premises located in a
state of the United States or the District of Columbia owned, leased or rented
by the Borrower or a Domestic Subsidiary and set forth in Schedule 4.16, (x) is
stored at a leased location, unless the Administrative Agent has given its prior
consent thereto and unless (1) a reasonably satisfactory, landlord waiver has
been delivered to the Administrative Agent, or (2) Reserves in an amount equal
to three months rent have been established with respect thereto, (y) is stored
with a bailee or warehouseman or is in a processor or converter facility unless
a reasonably satisfactory, acknowledged waiver or subordination of all Liens and
claims by the bailee, warehouseman, processor or converter has been received by
the Administrative Agent or Reserves reasonably satisfactory to the
Administrative Agent have been established with respect thereto, or (z) is
located at an owned location subject to a mortgage in favor of a lender other
than the Administrative Agent, unless a reasonably satisfactory mortgagee waiver
has been delivered to the Administrative Agent or Reserves reasonably
satisfactory to the Administrative Agent have been established with respect
thereto, or (ii) is located at any site if the aggregate book value of Inventory
at any such location is less than $100,000;
(c) is placed on consignment or is in transit, except for
Inventory in transit between domestic locations of Loan Parties as to which the
Administrative Agent's Liens have been perfected at origin and destination;
(d) is covered by a negotiable document of title, unless such
document has been delivered to the Administrative Agent with all necessary
endorsements, free and clear of all Liens except those in favor of the
Administrative Agent and Lenders;
(e) is excess, obsolete, unsaleable, shopworn, seconds,
damaged, unfit for sale or customized inventory;
(f) consists of display items or packing or shipping
materials, manufacturing supplies, work-in-process Inventory to the extent such
work-in-process Inventory in the aggregate exceeds $5,000,000 or replacement
parts;
(g) is not held for sale or lease in the ordinary course of
the Borrower's or a Domestic Subsidiary's business;
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(h) is not subject to a first priority lien in favor of the
Administrative Agent on behalf of itself and Lenders subject to no other Lien
other than Permitted Liens that are junior to the Lien of the Administrative
Agent securing the Obligations;
(i) breaches any of the representations or warranties
pertaining to Inventory set forth in the Loan Documents;
(j) consists of any costs associated with "freight-in"
charges, to the extent such "freight-in" charges can be determined by the Loan
Parties;
(k) consists of Hazardous Materials or goods that can be
transported or sold only with licenses that are not readily available;
(l) is not covered by casualty insurance in accordance with
Section 7.5;
(m) is being leased to a third party as lessee subject to a
lease that is not owned by the Borrower or a Domestic Subsidiary or is subject
to a lease owned by the Borrower or a Domestic Subsidiary that is subject to a
Lien (other than a Permitted Lien); or
(n) is being leased to a third party as lessee (i) which has
commenced a voluntary case or has consented 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 the Bankruptcy Code or (ii) with respect to which a court
has entered a decree or order for relief in an involuntary case under the
Bankruptcy Code.
ARTICLE 3
CONDITIONS TO LOANS AND LETTERS OF CREDIT
Section 3.1 Conditions Precedent to Initial Loans and Letters
of Credit. The obligation of each Lender to make any Loan on the Closing Date
and the obligation of each L/C Issuer to Issue any Letter of Credit on the
Closing Date is subject to the satisfaction or due waiver of each of the
following conditions precedent on or before March 3, 2008:
(a) Certain Documents. The Administrative Agent shall have
received on or prior to the Closing Date each of the following, each (in the
case of clauses (i) through (iv), (vii) and (viii)) dated the Closing Date
unless otherwise agreed by the Administrative Agent, in form and substance
reasonably satisfactory to the Administrative Agent:
(i) this Agreement duly executed by the Borrower and, for
the account of each Lender having requested the same by notice to
the Administrative Agent and the Borrower received by each at
least 3 Business Days prior to the Closing Date (or such later
date as may be agreed by the Borrower), Notes conforming to the
requirements set forth in Section 2.14(e);
(ii) the Guaranty and Security Agreement, duly executed by
each Guarantor, together with (A) copies of UCC, Intellectual
Property and other appropriate search reports and of all
effective prior filings listed therein, together with evidence of
the termination of such prior filings that are not in respect of
any Permitted Lien, in each case as may be reasonably requested
by the Administrative Agent, (B) all documents representing all
certificated Securities required to be pledged pursuant to such
Guaranty and Security Agreement and related undated powers or
endorsements duly executed in blank and (C) all Control
Agreements that, in the reasonable judgment of the Administrative
Agent, are required for the Loan Parties to comply with the Loan
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Documents as of the Closing Date, each duly executed by, in
addition to the applicable Loan Party, the applicable financial
institution;
(iii) the Intercreditor Agreement, duly executed and
delivered by the Administrative Agent, the Term Loan
Administrative Agent, the Borrower and the other Loan Parties;
(iv) a duly executed favorable opinion of counsel to the
Loan Parties in New York, addressed to the Administrative Agent,
the L/C Issuers and the Lenders and addressing such matters as
the Administrative Agent may reasonably request;
(v) a copy of each Constituent Document of each Loan Party
that is on file with any Governmental Authority in the
jurisdiction of organization of such Loan Party, certified as of
a recent date by such Governmental Authority, together with, if
applicable, certificates attesting to the good standing of such
Loan Party in such jurisdiction and each other jurisdiction where
such Loan Party is qualified to do business as a foreign entity
or where such qualification is necessary (and, if required in any
such jurisdiction, related tax certificates);
(vi) a certificate of the secretary or other officer of each
Loan Party in charge of maintaining books and records of such
Loan Party certifying as to (A) the names and signatures of each
officer of such Loan Party authorized to execute and deliver any
Loan Document, (B) the Constituent Documents of such Loan Party
attached to such certificate are complete and correct copies of
such Constituent Documents as in effect on the date of such
certification (or, for any such Constituent Document delivered
pursuant to clause (vi) above, that there have been no changes
from such Constituent Document so delivered) and (C) the
resolutions of such Loan Party's board of directors or other
appropriate governing body approving and authorizing the
execution, delivery and performance of each Loan Document to
which such Loan Party is a party;
(vii) a certificate of a Responsible Officer of the Borrower
to the effect that (A) each condition set forth in Section 3.2(b)
has been satisfied, (B) the Loan Parties taken as a whole are
Solvent after giving effect to the initial Loans and Letters of
Credit, the consummation of the Related Transactions, the
application of the proceeds thereof in accordance with Section
7.9 and the payment of all fees and expenses related hereto and
thereto and (C) attached thereto are complete and correct copies
of each Related Document (other than the payoff letter for the
Existing Credit Agreement and the Term Loan Documents);
(viii) insurance certificates in form and substance
reasonably satisfactory to the Administrative Agent demonstrating
that the insurance policies required by Section 7.5 are in full
force and effect and have all endorsements required by such
Section 7.5;
(ix) interim unaudited monthly and quarterly Financial
Statements of the Borrower and its Subsidiaries through the
Fiscal Month or Fiscal Quarter, as applicable, ending September
30, 2007 and each subsequent Fiscal Month and Fiscal Quarter
occurring no later than 30 days (or 45 days in the case of
monthly and quarterly financing statements for the Fiscal Month
and Fiscal Quarter, respectively, ending December 31, 2007) prior
to the Closing Date and for which Financial Statements are
available;
(x) (a) a pro forma estimated balance sheet of the Borrower
and its Subsidiaries at the last day of the Fiscal Month for
which Financial Statements are available prior to the Closing
Date (so long as such date is not more than 60 days prior to the
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Closing Date) after giving effect to the refinancing of the
Existing Credit Agreement, the redemption of the Senior Notes and
the funding of the Indebtedness hereunder and under the Term Loan
Credit Agreement, and (b) the Borrower's business plan which
shall include a financial forecast on a monthly basis for the
first twelve months after the Closing Date (such financial
forecast for the first twelve months to include projected
Borrowing Availability for each month) and on an annual basis
thereafter through 2012 prepared by the Borrower's management; in
each case, with such updates as the Administrative Agent shall
reasonably request; and
(xi) the other documents listed on the Closing Checklist.
(b) Fee and Expenses. There shall have been paid to the
Administrative Agent, for the account of the Administrative Agent, its Related
Persons, any L/C Issuer or any Lender, as the case may be, all fees and all
reimbursements of costs or expenses, in each case due and payable under any Loan
Document on or before the Closing Date.
(c) Consents. Each Group Member shall have received all
consents and authorizations required pursuant to any material Contractual
Obligation with any other Person and shall have obtained all Permits of, and
effected all notices to and filings with, any Governmental Authority, in each
case, as may be necessary in connection with the consummation of the
transactions contemplated in any Loan Document or Related Document (including
the Related Transactions).
(d) Related Transactions. The Administrative Agent shall be
satisfied that, (i) subject only to the funding of the initial Loans hereunder
and the Indebtedness under the Term Loan Credit Agreement and the use of
proceeds thereof, (x) all obligations under the Existing Credit Agreement will
have been repaid in full, as evidenced by a payoff letter duly executed and
delivered by the Borrower and the Existing Agent and (y) the Borrower shall
issue (and mail) on the Closing Date a notice of redemption to the holders of
the Senior Notes calling for a redemption of the Senior Notes no later than the
date that is 30 days after the Closing Date (the "Redemption Date") and shall
deposit on the Closing Date with the Trustee under the Senior Notes Indenture
cash in an amount sufficient to fund such redemption on the Redemption Date
which shall result on the Closing Date in a discharge of the Senior Notes
Indenture pursuant to the terms thereof and a release of the Lien of the Senior
Notes Indenture on the Closing Date and (ii) all conditions precedent to the
making of the term loans under the Term Loan Credit Agreement shall have been
satisfied or waived, and the lenders thereunder shall have made term loans in
the amount of $100,000,000.
(e) Revolving Credit Facility. Omitted.
(f) Minimum Consolidated EBITDA. The aggregate Consolidated
EBITDA of the Borrower for the most recent period of twelve months prior to the
Closing Date for which financial statements are required to have been delivered
under the Existing Credit Agreement shall not be less than $65,000,000.
(g) Senior Subordinated Notes. The Administrative Agent shall
have received evidence reasonably satisfactory to it that all Indebtedness of
the Borrower under this Agreement (taking into account the advances under the
Term Loan Credit Agreement) constitutes and will constitute "Permitted
Indebtedness," "Designated Senior Debt" and "Senior Debt" under (and as such
terms are defined in) the Senior Subordinated Notes Indenture and all liens
securing the Obligations and the Term Loan Obligations constitute "Permitted
Liens" (under and as such term is defined in the Senior Subordinated Notes
Indenture), including, if applicable, certified copies of any supplemental
indentures needed to permit such indebtedness or liens.
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Section 3.2 Conditions Precedent to Each Loan and Letter of Credit. Except as
otherwise provided herein, no Lender or L/C Issuer shall be obligated to make
any Loan or Issue any Letter of Credit if, as of the date thereof:
(a) Request. The Administrative Agent (and, in the case of any
Issuance, the relevant L/C Issuer) shall not have received, to the extent
required by Article II, a written, timely and duly executed and completed Notice
of Borrowing, Swingline Request or, as the case may be, L/C Request.
(b) Representations and Warranties; No Defaults.
(i) any representation or warranty by any Loan Party
contained herein or in any other Loan Document is untrue or
incorrect in any material respect (without duplication of any
materiality qualifier contained herein) as of such date, except
to the extent that such representation or warranty expressly
relates to an earlier date, and the Administrative Agent or the
Required Lenders shall have determined not to make such Loan or
Issue such Letter of Credit as a result of the fact that such
warranty or representation is untrue or incorrect; or
(ii) any Default or Event of Default has occurred and is
continuing or would result after making any Loan (or Issuing any
Letter of Credit), and the Administrative Agent or the Required
Lenders shall have determined not to make any Loan or Issue any
Letter of Credit as a result of such Default or Event of Default.
(c) Borrowing Base. Except as provided in Section 2.1(b) and
Section 2.1(c), the requested Loan or Issuance shall exceed Borrowing
Availability or, as to any Overadvance (including any Special Overadvance), the
requested Loan shall not be identified as an Overadvance (including any Special
Overadvance) or shall not indicate the amount requested as an Overadvance, or in
any event shall, so long as any Senior Subordinated Note remains outstanding,
exceed the component of the Borrowing Availability contained in clause (iii) of
the definition of such term.
The representations and warranties set forth in any Notice of Borrowing,
Swingline Request or L/C Request (or any certificate delivered in connection
therewith) shall be deemed to be made again on and as of the date of the
relevant Loan or Issuance and the acceptance of the proceeds thereof or of the
delivery of the relevant Letter of Credit.
Section 3.3 Determinations of Initial Borrowing Conditions.
For purposes of determining compliance with the conditions specified in Section
3.1, each Lender shall be deemed to be satisfied with each document and each
other matter required to be satisfactory to such Lender unless, prior to the
Closing Date, the Administrative Agent receives notice from such Lender
specifying such Lender's objections and such Lender has not made available its
Pro Rata Share of any Borrowing scheduled to be made on the Closing Date and
each Lender shall be deemed to be satisfied with each document and each other
matter required to be satisfactory to such Lender upon the receipt of an
effectiveness memo transmitted by facsimile by the Administrative Agent on the
Closing Date and the Administrative Agent agrees to transmit such memo to each
of the Lenders by facsimile on the Closing Date.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
To induce the Lenders, the L/C Issuers and the Administrative
Agent to enter into the Loan Documents, the Borrower (and, to the extent set
forth in any other Loan Document, each other Loan Party) represents and warrants
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to each of them each of the following on and as of each date applicable pursuant
to Section 3.2:
Section 4.1 Corporate Existence; Compliance with Law. Each
Group Member (a) is 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 entity and in good standing under the laws of each
jurisdiction where such qualification is necessary, except where the failure to
be so qualified or in good standing would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect, (c) has all requisite power and
authority and the legal right to own, pledge, mortgage and operate its property,
to lease or sublease any property it operates under lease or sublease and to
conduct its business as currently conducted, (d) is in compliance with all
applicable Requirements of Law except where the failure to be in compliance
would not, in the aggregate, reasonably be expected to have a Material Adverse
Effect and (e) has all necessary Permits from or by, has made all necessary
filings with, and has given all necessary notices to, each Governmental
Authority having jurisdiction, to the extent required for such ownership, lease,
sublease, operation, occupation or conduct of business, except where the failure
to obtain such Permits, make such filings or give such notices would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
Section 4.2 Loan and Related Documents. (a) Power and
Authority. The execution, delivery and performance by each Loan Party of the
Loan Documents and Related Documents to which it is a party and the consummation
of the Related Transactions and other transactions contemplated therein (i) are
within such Loan Party's corporate or similar powers and, at the time of
execution thereof, have been duly authorized by all necessary corporate and
similar action (including, if applicable, consent of holders of its Securities),
(ii) do not (A) contravene such Loan Party's Constituent Documents, (B) violate
any applicable Requirement of Law, (C) conflict with, contravene, constitute a
default or breach under, or result in or permit the termination or acceleration
of, any material Contractual Obligation of any Loan Party or any of its
Subsidiaries (including other Related Documents or Loan Documents) other than in
the case of this clause (ii) those that would not, in the aggregate, reasonably
be expected to have a Material Adverse Effect or (D) result in the imposition of
any Lien (other than a Permitted Lien) upon any property of any Loan Party or
any of its Subsidiaries and (iii) do not require any Permit of, or filing with,
any Governmental Authority or any consent of, or notice to, any Person, other
than (A) with respect to the Loan Documents, the filings required to perfect the
Liens created by the Loan Documents, and (B) those listed on Schedule 4.2 and
that have been, or will be prior to the Closing Date, obtained or made, copies
of which have been, or will be prior to the Closing Date, delivered to the
Administrative Agent, and each of which on the Closing Date will be in full
force and effect.
(a) Due Execution and Delivery. From and after its delivery to
the Administrative Agent, each Loan Document and Related Document has been duly
executed and delivered to the other parties thereto by each Loan Party party
thereto, is the legal, valid and binding obligation of such Loan Party and is
enforceable against such Loan Party in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
(b) Senior Subordinated Notes. The Obligations (taking into
account the advances under the Term Loan Credit Agreement) constitute "Permitted
Indebtedness", "Senior Debt" and "Designated Senior Debt" under and as defined
in the Senior Subordinated Notes Indenture. No other Indebtedness (other than
the Term Loan Obligations) qualifies as "Permitted Indebtedness", "Senior Debt"
or "Designated Senior Debt" under the Senior Subordinated Notes Indenture. The
Borrower hereby designates all Obligations and Indebtedness in respect of the
Revolving Credit Facility as "Designated Senior Debt" as such term is defined in
the Senior Subordinated Notes Indenture.
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Section 4.3 Ownership of Group Members. Set forth on Schedule
4.3 is a complete and accurate list showing, as of the Closing Date, for each
Group Member and each Subsidiary of any Group Member and each joint venture of
any of them, its jurisdiction of organization, the number of shares of each
class of Stock authorized (if applicable), the number outstanding on the Closing
Date and the number and percentage of the outstanding shares of each such class
owned (directly or indirectly) by the Borrower. All outstanding Stock of each of
them has been validly issued, is fully paid and non-assessable (to the extent
applicable) and, except in the case of the Borrower, is owned beneficially and
of record by a Group Member free and clear of all Liens other than the security
interests created by the Loan Documents and the Term Loan Documents, any
non-consensual Liens arising as a matter of law and permitted under Section 8.2
and, in the case of joint ventures, Permitted Liens. Except as provided in
Schedule 4.3, as of the Closing Date, there are no preemptive or other
outstanding rights, options, warrants, conversion rights or similar agreements
or understandings for the purchase or acquisition from any Group Member or any
of their Subsidiaries of any Stock of any such entity.
Section 4.4 Financial Statements(a) . (a) Each of (i) the
audited Consolidated balance sheet of the Borrower as at December 31, 2006 and
the related Consolidated statements of income, retained earnings and cash flows
of the Borrower for the Fiscal Year then ended, certified by Deloitte & Touche
USA LLP and (ii) subject to the absence of footnote disclosure and normal
recurring year-end audit adjustments, the unaudited Consolidated balance sheets
of the Borrower as at December 31, 2007, and the related Consolidated statements
of income, retained earnings and cash flows of the Borrower for the twelve
months then ended, copies of each of which have been furnished to the
Administrative Agent, fairly present in all material respects the Consolidated
financial position, results of operations and cash flow of the Borrower as at
the dates indicated and for the periods indicated in accordance with GAAP.
(b) The Initial Projections have been prepared by the Borrower
in light of the past operations of the business of the Borrower and its
Subsidiaries and reflect projections for the 4 year period beginning with the
2008 Fiscal Year on a monthly basis for the first year (which shall include
projected Borrowing Availability for each such month) and on a year-by-year
basis thereafter. As of the Closing Date, the Initial Projections are based upon
estimates and assumptions stated therein, all of which the Borrower believes to
be reasonable and fair in light of conditions and facts known to the Borrower as
of the Closing Date and reflect the good faith, reasonable and fair estimates by
the Borrower of the future Consolidated financial performance of the Borrower
and the other information projected therein for the periods set forth therein.
(c) The unaudited Consolidated balance sheet of the Borrower
(the "Pro Forma Balance Sheet") delivered to the Administrative Agent prior to
the date hereof, has been prepared as of the last day of the Fiscal Month ending
prior to the Closing Date and reflects as of such date, on a Pro Forma Basis for
the Related Transactions and the other transactions contemplated herein to occur
on the Closing Date, the Consolidated financial condition of the Borrower, and
the assumptions expressed therein are reasonable based on the information
available to the Borrower at such date and on the Closing Date.
Section 4.5 Material Adverse Effect. Since September 30, 2007,
there have been no events, circumstances, developments or other changes in facts
that would, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
Section 4.6 Solvency. Both before and after giving effect to
(a) the Loans and Letters of Credit made or Issued on or prior to the date this
representation and warranty is made, (b) the disbursement of the proceeds of
such Loans, (c) the consummation of the Related Transactions and (d) the payment
and accrual of all transaction costs in connection with the foregoing, the Loan
Parties taken as a whole are Solvent.
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Section 4.7 Litigation. There are no pending (or, to the
knowledge of any Group Member, threatened) actions, investigations, suits,
proceedings, audits, claims, demands, orders or disputes affecting the Borrower
or any of its Subsidiaries with, by or before any Governmental Authority other
than those that would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
Section 4.8 Taxes. All federal, state, local and foreign
income and franchise and other material tax returns, reports and statements
(collectively, the "Tax Returns") required to be filed by any Tax Affiliate have
been filed with the appropriate Governmental Authorities in all jurisdictions in
which such Tax Returns are required to be filed, all such Tax Returns are true
and correct in all material respects, and all taxes, charges and other
impositions reflected therein or otherwise due and payable have been paid prior
to the date on which any Liability may be added thereto for non-payment thereof
except for those contested in good faith by appropriate proceedings diligently
conducted and for which adequate reserves are maintained on the books of the
appropriate Tax Affiliate in accordance with GAAP. No Tax Return is under audit
or examination by any Governmental Authority and no notice of such an audit or
examination or any assertion of any claim for Taxes has been given or made by
any Governmental Authority. Proper and accurate amounts have been withheld by
each Tax Affiliate from their respective employees for all periods in full and
complete compliance with the tax, social security and unemployment withholding
provisions of applicable Requirements of Law and such withholdings have been
timely paid to the respective Governmental Authorities. No Tax Affiliate has
participated in a "listed transaction" within the meaning of Treasury Regulation
Section 1.6011-4(b)(2) or has participated in a "reportable transaction" within
the meaning of Treasury Regulation Section 1.6011-4(b)(2) that has not been or
will not be properly reported. No Tax Affiliate has been with respect to any
open tax year a member of an affiliated, combined or unitary group of which a
Tax Affiliate is the common parent.
Section 4.9 Margin Regulations. The Borrower is not engaged in
the business of extending credit for the purpose of, and no proceeds of any Loan
or other extensions of credit hereunder will be used for the purpose of, buying
or carrying margin stock (within the meaning of Regulation U of the Federal
Reserve Board) or extending credit to others for the purpose of purchasing or
carrying any such margin stock, in each case in contravention of Regulation T, U
or X of the Federal Reserve Board.
Section 4.10 No Defaults. No Group Member (and, to the
knowledge of each Group Member, no other party thereto) is in default under or
with respect to any Contractual Obligation of any Group Member, other than those
that would not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
Section 4.11 Investment Company Act. No Group Member is an
"investment company" or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company", as such terms are defined in the
Investment Company Act of 1940.
Section 4.12 Labor Matters. There are no strikes, work
stoppages, slowdowns or lockouts existing, pending (or, to the knowledge of any
Group Member, threatened) against or involving any Group Member, except, for
those that would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect. Except as set forth on Schedule 4.12, as of the Closing
Date, (a) there is no collective bargaining or similar agreement with any union,
labor organization, works council or similar representative covering any
employee of any Group Member, (b) no petition for certification or election of
any such representative is existing or pending with respect to any employee of
any Group Member and (c) no such representative has sought certification or
recognition with respect to any employee of any Group Member.
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[DAYTON SUPERIOR CORPORATION]
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Section 4.13 ERISA. Schedule 4.13 sets forth, as of the
Closing Date, a complete and correct list of, and that separately identifies,
(a) all Title IV Plans, (b) all Multiemployer Plans and (c) all material Benefit
Plans. Each Benefit Plan, and each trust thereunder, intended to qualify for tax
exempt status under Section 401 or 501 of the Code or other Requirements of Law
has been determined by the Internal Revenue Service to so qualify and nothing
has occurred since such determination that could adversely affect such status.
Except for those that would not, in the aggregate, have a Material Adverse
Effect, (x) each Benefit Plan is in compliance with applicable provisions of
ERISA, the Code and other Requirements of Law, (y) there are no existing or
pending (or to the knowledge of any Group Member, threatened) claims (other than
routine claims for benefits in the normal course), sanctions, actions, lawsuits
or other proceedings or investigation involving any Benefit Plan to which any
Group Member incurs or otherwise has or could have an obligation or any
Liability and (z) no ERISA Event is reasonably expected to occur. On the Closing
Date, no ERISA Event has occurred in connection with which obligations and
liabilities (contingent or otherwise) remain outstanding. No ERISA Affiliate
would have any Withdrawal Liability in excess of $500,000 as a result of a
complete withdrawal from any Multiemployer Plan on the date this representation
is made which Withdrawal Liability could be reasonably likely to require any
Group Member to make any payment in satisfaction thereof.
Section 4.14 Environmental Matters. Except as set forth on
Schedule 4.14, (a) the operations of each Group Member are and, for the past
five years, have been in compliance with all applicable Environmental Laws,
including obtaining, maintaining and complying with all Permits required by any
applicable Environmental Law, other than non-compliances that, in the aggregate,
would not have a reasonable likelihood of resulting in Material Environmental
Liabilities, (b) no Group Member is party to, and no Group Member is subject to
or, with respect to any real property currently (or to the knowledge of any
Group Member previously) owned, leased, subleased, operated or otherwise
occupied by or for any Group Member, the subject of, any Contractual Obligation
by any Group Member or any pending (or, to the knowledge of any Group Member,
threatened) order, action, suit, proceeding, claim, written demand, dispute or
notice of violation or of potential liability or similar notice under or
pursuant to any Environmental Law other than those that, in the aggregate, are
not reasonably likely to result in Material Environmental Liabilities, (c) no
Lien in favor of any Governmental Authority securing, in whole or in part,
Environmental Liabilities has attached to any property of any Group Member and,
to the knowledge of any Group Member, no facts, circumstances or conditions
exist that could reasonably be expected to result in any such Lien attaching to
any such property, (d) no Group Member has caused or permitted to occur a
Release of Hazardous Materials at, to or from any real property of any Group
Member and each such real property is free of contamination by any Hazardous
Materials except for such Release or contamination that could not reasonably be
expected to result, in the aggregate, in Material Environmental Liabilities and
(e) no Group Member (i) is or has been engaged in, or has permitted any current
or former tenant to engage in, operations, or (ii) knows of any facts,
circumstances or conditions, including receipt of any information request or
notice of potential responsibility under CERCLA or similar Environmental Laws,
that, in the aggregate, would have a reasonable likelihood of resulting in
Material Environmental Liabilities.
Section 4.15 Intellectual Property. Each Group Member owns or
licenses all Intellectual Property that is necessary for the conduct of its
businesses as currently conducted. To the knowledge of each Group Member, (a)
the conduct and operations of the businesses of each Group Member does not
infringe, misappropriate, dilute, violate or otherwise impair any Intellectual
Property that is necessary for the conduct of its businesses and owned by any
other Person and (b) no other Person has contested any right, title or interest
of any Group Member in, or relating to, any Intellectual Property that is
necessary for the conduct of its businesses, other than, in each case, as would
not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
In addition, (x) there are no pending (or, to the knowledge of any Group Member,
threatened) actions, investigations, suits, proceedings, audits, claims,
demands, orders or disputes affecting any Group Member with respect to, (y) no
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judgment or order regarding any such claim has been rendered by any competent
Governmental Authority, no settlement agreement or similar Contractual
Obligation has been entered into by any Group Member, with respect to and (z) no
Group Member knows of any valid basis for any claim based on, any such
infringement, misappropriation, dilution, violation or impairment or contest,
other than, in each case, as would not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
Section 4.16 Title; Real Property(a) . (a) Each Group Member
has good fee simple title to all owned real property and valid leasehold
interests in all leased real property, and none of such property is subject to
any Lien except Permitted Liens.
(b) Set forth on Schedule 4.16 is, as of the Closing Date, (i)
a complete and correct list of all real property owned in fee simple by any
Group Member or in which any Group Member owns a leasehold interest setting
forth, for each such real property, the current street address (including, where
applicable, county, state and other relevant jurisdictions), the record owner
thereof and, where applicable, each lessee and sublessee thereof, (ii) any
lease, or sublease of such real property by any Group Member and (iii) for each
such real property that is required to be subject to a Mortgage pursuant to the
terms hereof, each Contractual Obligation by any Group Member, whether
contingent or otherwise, to Sell such real property.
Section 4.17 Full Disclosure. No representation or warranty of
any Loan Party contained in this Agreement, the Financial Statements referred to
in Section 6.1, the other Related Documents or any other document, certificate
or written statement furnished to the Administrative Agent or any Lender by or
on behalf of any such Person for use in connection with the Loan Documents or
the Related Documents contains any untrue statement of a material fact or taken
as a whole, omitted, omits or will omit to state a material fact necessary in
order to make the statements contained herein or therein not misleading in light
of the circumstances in which the same were made.
Section 4.18 Patriot Act. No Group Member (and, to the
knowledge of each Group Member, no joint venture or subsidiary thereof) is in
violation in any material respects of any United States Requirements of Law
relating to terrorism, sanctions or money laundering (the "Anti-Terrorism
Laws"), including the United States Executive Order No. 13224 on Terrorist
Financing (the "Anti-Terrorism Order") and the Patriot Act.
ARTICLE 5
OMITTED
ARTICLE 6
REPORTING COVENANTS
The Borrower (and, to the extent set forth in any other Loan
Document, each other Loan Party) agrees with the Lenders, the L/C Issuers and
the Administrative Agent to perform and observe each of the following covenants
until the Satisfaction Date:
Section 6.1 Financial Statements. The Borrower shall deliver
to the Administrative Agent each of the following:
(a) Monthly Reports. As soon as available, and in any event
within 30 days after the end of each of the first two Fiscal Months in each
Fiscal Quarter, the Consolidated unaudited balance sheet of the Borrower as of
the close of such Fiscal Month and related Consolidated statements of income and
cash flow for such Fiscal Month and that portion of the Fiscal Year ending as of
the close of such Fiscal Month, setting forth in comparative form the figures
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for the corresponding period in the prior Fiscal Year, in each case certified by
a Responsible Officer of the Borrower as fairly presenting in all material
respects the Consolidated financial position, results of operations and cash
flow of the Borrower as at the dates indicated and for the periods indicated in
accordance with GAAP (subject to the absence of footnote disclosure and normal
year-end audit adjustments).
(b) Quarterly Reports. As soon as available, and in any event
within 45 days after the end of each of the first three Fiscal Quarters of each
Fiscal Year, the Consolidated unaudited balance sheet of the Borrower as of the
close of such Fiscal Quarter and related Consolidated statements of income and
cash flow for such Fiscal Quarter and that portion of the Fiscal Year ending as
of the close of such Fiscal Quarter, setting forth in comparative form the
figures for the corresponding period in the prior Fiscal Year and the figures
contained in the latest Projections, in each case certified by a Responsible
Officer of the Borrower as fairly presenting in all material respects the
Consolidated financial position, results of operations and cash flow of the
Borrower as at the dates indicated and for the periods indicated in accordance
with GAAP (subject to the absence of footnote disclosure and normal year-end
audit adjustments).
(c) Annual Reports. As soon as available, and in any event
within 90 days after the end of each Fiscal Year, the Consolidated balance sheet
of the Borrower as of the end of such year and related Consolidated statements
of income, stockholders' equity and cash flow for such Fiscal Year, each
prepared in accordance with GAAP, together with a certification by the Group
Members' Accountants that such Consolidated Financial Statements fairly present
in all material respects the Consolidated financial position, results of
operations and cash flow of the Borrower as at the dates indicated and for the
periods indicated therein in accordance with GAAP without qualification as to
the scope of the audit or as to going concern and without any other similar
qualification.
(d) Compliance Certificate. Together with each delivery of any
Financial Statement pursuant to clause (b) or (c) above, a Compliance
Certificate duly executed by a Responsible Officer of the Borrower that, among
other things, states that, to the best of his or her knowledge, no Default is
continuing as of the date of delivery of such Compliance Certificate or, if a
Default is continuing, states the nature thereof and the action that the
Borrower proposes to take with respect thereto.
(e) Corporate Chart and Other Collateral Updates. As part of
the Compliance Certificate delivered pursuant to clause (d) above, each in form
and substance satisfactory to the Administrative Agent, a certificate by a
Responsible Officer of the Borrower that (i) the Corporate Chart attached
thereto (or the last Corporate Chart delivered pursuant to this clause (e)) is
correct and complete as of the date of such Compliance Certificate, (ii) the
Loan Parties have delivered all documents (including updated schedules as to
locations of Collateral and acquisition of Intellectual Property or real
property) they are required to deliver pursuant to any Loan Document on or prior
to the date of delivery of such Compliance Certificate and (iii) complete and
correct copies of all documents modifying any term of any Constituent Document
of any Group Member or any Subsidiary or joint venture thereof on or prior to
the date of delivery of such Compliance Certificate have been delivered to the
Administrative Agent or are attached to such certificate.
(f) Additional Projections. As soon as available and in any
event not later than 30 days after the end of each Fiscal Year, any significant
revisions to, (i) the annual business plan of the Group Members for the Fiscal
Year next succeeding such Fiscal Year and (ii) forecasts prepared by management
of the Borrower (A) for each Fiscal Quarter in such next succeeding Fiscal Year
and (B) for each other succeeding Fiscal Year through the Fiscal Year containing
the Scheduled Maturity Date, in each case including in such forecasts (x) a
projected year-end Consolidated balance sheet, income statement and statement of
cash flows, (y) a statement of all of the material assumptions on which such
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forecasts are based and (z) substantially the same type of financial information
as that contained in the Initial Projections.
(g) Management Discussion and Analysis. Together with each
delivery of any Compliance Certificate pursuant to clause (d) above, a
discussion and analysis of the financial condition and results of operations of
the Group Members for the portion of the Fiscal Year then elapsed and discussing
the reasons for any significant variations from the Projections for such period
and the figures for the corresponding period in the previous Fiscal Year.
(h) Audit Reports, Management Letters, Etc. Together with each
delivery of any Financial Statement for any Fiscal Year pursuant to clause (c)
above, copies of each management letter, audit report or similar letter or
report received by any Group Member from any independent registered certified
public accountant (including the Group Members' Accountants) in connection with
such Financial Statements or any audit thereof, each certified to be complete
and correct copies by a Responsible Officer of the Borrower as part of the
Compliance Certificate delivered in connection with such Financial Statements.
(i) Insurance. Together with each delivery of any Financial
Statement for any Fiscal Year pursuant to clause (c) above, each in form and
substance reasonably satisfactory to the Administrative Agent and certified as
complete and correct by a Responsible Officer of the Borrower as part of the
Compliance Certificate delivered in connection with such Financial Statements, a
summary of all material insurance coverage maintained as of the date thereof by
any Group Member, together with such other related documents and information as
the Administrative Agent may reasonably require.
(j) Additional Deliveries.
(i) Upon the request of the Administrative Agent, and in any
event no less frequently than noon New York time on (x) at any
time when Borrowing Availability is equal to or more than
$45,000,000, the twentieth day and (y) at any time when Borrowing
Availability is less than $45,000,000, the tenth Business Day, in
each case, after the end of each Fiscal Month (together with a
copy of any of the following reports reasonably requested by any
Lender in writing after the Closing Date), each of the following
reports, each of which shall be prepared by the Borrower as of
the last day of the immediately preceding Fiscal Month or the
date 3 days prior to the date of any such request:
(A) a Borrowing Base Certificate with respect to the
Borrower and its Domestic Subsidiaries, accompanied by such
supporting detail and documentation as shall be requested by
the Administrative Agent in its reasonable discretion (in
substantially the same form as Exhibit 6.1(k), the
"Borrowing Base Certificate") as at the last day of such
period; provided that while Borrowing Availability is less
than $35,000,000 or an Event of Default is continuing,
Borrowing Base Certificates shall be delivered at such
intervals as the Administrative Agent may reasonably
request;
(B) with respect to the Borrower and its Domestic
Subsidiaries, a summary of Inventory by location and, to the
extent available, by type with a supporting perpetual
Inventory report, in each case accompanied by such
supporting detail and documentation as shall be requested by
the Administrative Agent in its reasonable discretion; and
(C) with respect to the Borrower, a monthly trial
balance showing Accounts outstanding aged from invoice date
as follows: 1 to 30 days, 31 to 60 days, 61 to 90 days, 91
to 120 days, 121 to 150 days and 150 days or more,
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accompanied by such supporting detail and documentation as
shall be requested by the Administrative Agent in its
reasonable discretion.
(ii) At any time during which the Administrative Agent has
blocked the Borrower's access to funds in the deposit account
associated with any lock-box established in connection with this
Agreement, to the Administrative Agent, on a weekly basis or at
such more frequent intervals as the Administrative Agent may
reasonably request from time to time (together with a copy of all
or any part of such delivery requested by any Lender in writing
after the Closing Date), collateral reports with respect to the
Borrower, including all additions and reductions (cash and
non-cash) with respect to Accounts of the Borrower, in each case
accompanied by such supporting detail and documentation as shall
be requested by the Administrative Agent in its reasonable
discretion each of which shall be prepared by the Borrower as of
the last day of the immediately preceding week or the date 2 days
prior to the date of any request;
(iii) At the time of delivery of each of the monthly
Financial Statements delivered pursuant to this Section 6.1:
(A) a reconciliation of the most recent Borrowing Base,
general ledger and month-end Inventory reports of the
Borrower to the Borrower's general ledger and monthly
Financial Statements delivered pursuant to this Section 6.1,
in each case accompanied by such supporting detail and
documentation as shall be requested by the Administrative
Agent in its reasonable discretion;
(B) to the extent available, a reconciliation of the
perpetual inventory by location to the Borrower's most
recent Borrowing Base Certificate, general ledger and
monthly Financial Statements delivered pursuant to this
Section 6.1, in each case accompanied by such supporting
detail and documentation as shall be requested by the
Administrative Agent in its reasonable discretion;
(C) an aging of accounts payable and a reconciliation
of that accounts payable aging to the Borrower's general
ledger and monthly Financial Statements delivered pursuant
to this Section 6.1, in each case accompanied by such
supporting detail and documentation as shall be requested by
the Administrative Agent in its reasonable discretion;
(D) a reconciliation of the outstanding Loans as set
forth in the monthly Financial Statements delivered pursuant
to this Section 6.1, accompanied by such supporting detail
and documentation as shall be requested by Agent in its
reasonable discretion; and
(E) a certification that (1) no Loan Party has sold,
granted a lien with respect to or advanced against, any
Chattel Paper (other than under and pursuant to the Loan
Documents) and (2) no Chattel Paper is in the possession of
third parties;
(iv) At the time of delivery of each of the annual Financial
Statements delivered pursuant to Section 6.1, (i) a listing of
government contracts of The Borrower subject to the Federal
Assignment of Claims Act of 1940; and (ii) a list of any
applications for the registration of any Patent, Trademark or
Copyright filed by any Loan Party with the United States Patent
and Trademark Office, the United States Copyright Office or any
similar office or agency in the prior Fiscal Quarter.
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(k) Appraisals; Inspections.
(i) The Borrower, at its own expense, shall, promptly upon
the reasonable request by the Administrative Agent, deliver to
the Administrative Agent the results of each physical
verification, if any, that the Borrower or any of its
Subsidiaries may in their discretion have made, or caused any
other Person to have made on their behalf, of all or any portion
of their Inventory (and, if a Default or an Event of Default has
occurred and is continuing, the Borrower shall, upon the
reasonable request of the Administrative Agent, conduct, and
deliver the results of, such physical verifications as the
Administrative Agent may reasonably require); and
(ii) The Borrower, at its own expense, shall cause to be
delivered to the Administrative Agent an appraisal, performed by
Xxxxx Asset Services or another independent appraiser reasonably
acceptable to the Administrative Agent, of the Net Orderly
Liquidation Value of its Inventory twice in each Fiscal Year (and
at the time during such Fiscal Year determined by Agent),
provided, that that so long as an Event of Default is continuing
or any monthly average Borrowing Availability is less than
$20,000,000, the Borrower, at its own expense, shall cause such
appraisals to be performed at such times as the Administrative
Agent shall reasonably require. For the purposes of this clause
(ii), an appraisal requested or initiated by the Administrative
Agent while an Event of Default is continuing or while any
monthly average Borrowing Availability is less than $20,000,000,
shall be required whether or not such Event of Default continues
or such any monthly average Borrowing Availability continues at
less than $20,000,000 through the time of completion of such
appraisal; and
(iii) The Borrower, at its own expense, shall permit the
Administrative Agent or a Person designated by the Administrative
Agent to conduct up to two collateral audits during each Fiscal
Year (at the cost and expense of the Borrower); provided, that
-------- that so long as an Event of Default is continuing or any
monthly average Borrowing Availability is less than $20,000,000,
the Borrower, at its own expense, shall permit the Administrative
Agent or a Person designated by the Administrative Agent to
perform such audits at such times as the Administrative Agent
shall reasonably require. For the purposes of this clause (iii),
an audit initiated by the Administrative Agent or such Person
while an Event of Default is continuing or while any monthly
average Borrowing Availability is less than $20,000,000, shall be
required whether or not such Event of Default continues or such
Borrowing Availability continues at less than $20,000,000 through
the time of completion of such audit.
Section 6.2 Other Events. The Borrower shall give the
Administrative Agent notice of each of the following (which may be made by
telephone if promptly confirmed in writing) promptly after any Responsible
Officer of any Group Member has knowledge thereof: (a)(i) any Default and (ii)
any event that would reasonably be expected to have a Material Adverse Effect,
specifying, in each case, the nature and anticipated effect thereof and any
action proposed to be taken in connection therewith, (b) any event (other than
any event involving loss or damage to property) reasonably expected to result in
a mandatory payment of the Obligations pursuant to Section 2.8, stating the
material terms and conditions of such transaction and estimating the Net Cash
Proceeds thereof, (c) the commencement of, or any material developments in, any
action, investigation, suit, proceeding, audit, claim, demand, order or dispute
with, by or before any Governmental Authority affecting any Group Member or any
property of any Group Member that (i) seeks injunctive or similar relief, (ii)
in the reasonable judgment of the Borrower, exposes any Group Member to
liability in an aggregate amount in excess of $5,000,000 or (iii) if adversely
determined would reasonably be expected to have a Material Adverse Effect and
(d) the acquisition of any material real property or the entering into any
material lease.
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Section 6.3 Copies of Notices and Reports. The Borrower shall,
promptly upon their becoming available, deliver to the Administrative Agent
copies of each of the following: (a) all reports that the Borrower transmits to
its security holders generally, (b) all documents that any Group Member files
with the Securities and Exchange Commission, the National Association of
Securities Dealers, Inc., any securities exchange or any Governmental Authority
exercising similar functions, (c) all press releases not made available directly
to the general public and (d) any material document transmitted or received
pursuant to, or in connection with, any Contractual Obligation governing
Indebtedness of any Group Member in excess of $25,000,000.
Section 6.4 Taxes. The Borrower shall give the Administrative
Agent notice of each of the following (which may be made by telephone if
promptly confirmed in writing) promptly after any Responsible Officer of any
Group Member knows or has reason to know of it: (a) the creation, or filing with
the IRS or any other Governmental Authority, of any Contractual Obligation or
other document extending, or having the effect of extending, the period for
assessment or collection of any taxes with respect to any Tax Affiliate and (b)
the creation of any Contractual Obligation of any Tax Affiliate, or the receipt
of any request directed to any Tax Affiliate, to make any adjustment under
Section 481(a) of the Code, by reason of a change in accounting method or
otherwise, which would in the case of either (a) or (b) have a Material Adverse
Effect.
Section 6.5 Labor Matters. The Borrower shall give the
Administrative Agent notice of each of the following (which may be made by
telephone if promptly confirmed in writing), promptly after, and in any event
within 30 days after any Responsible Officer of any Group Member knows or has
reason to know of it: (a) the commencement of any material labor dispute to
which any Group Member is or may become a party, including any strikes, lockouts
or other disputes relating to any of such Person's plants and other facilities
and (b) the incurrence by any Group Member of any Worker Adjustment and
Retraining Notification Act or related or similar liability incurred with
respect to the closing of any plant or other facility of any such Person (other
than those that, in the case of either (a) or (b), would not, in the aggregate,
have a Material Adverse Effect).
Section 6.6 ERISA Matters. The Borrower shall give the
Administrative Agent (a) on or prior to any filing by any ERISA Affiliate of any
notice of intent to terminate any Title IV Plan, which termination could be
reasonably likely to require any Group Member to make any payment in respect
thereof, a copy of such notice and (b) promptly, and in any event within 10
days, after any Responsible Officer of any ERISA Affiliate knows or has reason
to know that a request for a minimum funding waiver under Section 412 of the
Code has been filed with respect to any Title IV Plan or Multiemployer Plan,
which, in either case, could be reasonably likely to require any Group Member to
make any payment in respect thereof, a notice (which may be made by telephone if
promptly confirmed in writing) describing such waiver request and any action
that any ERISA Affiliate proposes to take with respect thereto, together with a
copy of any notice filed with the PBGC or the IRS pertaining thereto.
Section 6.7 Environmental Matters(a) . (a) The Borrower shall
provide the Administrative Agent notice of each of the following (which may be
made by telephone if promptly confirmed by the Administrative Agent in writing)
promptly after any Responsible Officer of any Group Member knows (and, upon
reasonable request of the Administrative Agent, documents and information in
connection therewith): (i)(A) unpermitted Releases, (B) the receipt by any Group
Member of any notice of violation of or potential liability or similar notice
under, or the existence of any condition that could reasonably be expected to
result in violations of or liabilities under, any Environmental Law or (C) the
commencement of, or any material change to, any action, investigation, suit,
proceeding, audit, claim, written demand, dispute alleging a violation of or
liability under any Environmental Law, that, for each of clauses (A), (B) and
(C) above (and, in the case of clause (C), if adversely determined), in the
aggregate for each such clause, could reasonably be expected to result in
Environmental Liabilities in excess of $500,000, (ii) the receipt by any Group
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Member of notification that any property of any Group Member is subject to any
Lien in favor of any Governmental Authority securing, in whole or in part,
Environmental Liabilities and (iii) any proposed acquisition or lease of real
property (except as part of any Permitted Acquisition) if such acquisition or
lease would have a reasonable likelihood of resulting in aggregate Environmental
Liabilities in excess of $500,000.
(b) Upon reasonable request of the Administrative Agent, the
Borrower shall provide the Administrative Agent a report containing an update as
to the status of any environmental, health or safety compliance, hazard or
liability issue identified in any document delivered to any Secured Party
pursuant to any Loan Document or as to any condition reasonably believed by the
Administrative Agent to result in material Environmental Liabilities.
Section 6.8 Other Information. The Borrower shall provide the
Administrative Agent with such other documents and information with respect to
the business, property, condition (financial or otherwise), legal, financial or
corporate or similar affairs or operations of any Group Member as the
Administrative Agent or such Lender through the Administrative Agent may from
time to time reasonably request.
ARTICLE 7
AFFIRMATIVE COVENANTS
The Borrower (and, to the extent set forth in any other Loan
Document, each other Loan Party) agrees with the Lenders, the L/C Issuers and
the Administrative Agent to perform and observe each of the following covenants
until the Satisfaction Date:
Section 7.1 Maintenance of Corporate Existence. Each Group
Member shall (a) preserve and maintain its legal existence, except in the
consummation of transactions expressly permitted by Sections 8.4 and 8.7, and
(b) preserve and maintain its rights (charter and statutory), privileges
franchises and Permits required in the conduct of its business, except, in the
case of this clause (b), where the failure to do so would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 7.2 Compliance with Laws, Etc. Each Group Member shall
comply with all applicable Requirements of Law, Contractual Obligations and
Permits, except for such failures to comply that would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 7.3 Payment of Obligations. Each Group Member shall
pay or discharge before they become delinquent (a) all material claims, taxes,
assessments, charges and levies imposed by any Governmental Authority and (b)
all other lawful claims, in each case, that if unpaid would, by the operation of
applicable Requirements of Law, become a Lien upon any property of any Group
Member, except, in each case, for those whose amount or validity is being
contested in good faith by proper proceedings diligently conducted and for which
adequate reserves are maintained on the books of the appropriate Group Member in
accordance with GAAP.
Section 7.4 Maintenance of Property. Each Group Member shall
maintain and preserve (a) in good working order and condition all of its
property necessary in the conduct of its business and (b) all rights, permits,
licenses, approvals and privileges (including all Permits) necessary, in the
conduct of its business and shall make all necessary or appropriate filings
with, and give all required notices to, Government Authorities, except for such
failures to maintain and preserve the items set forth in clauses (a) and (b)
above that would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
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Section 7.5 Maintenance of Insurance. Each Group Member shall
(a) maintain or cause to be maintained in full force and effect all policies of
insurance of any kind with respect to the property and businesses of the Group
Members (including policies of life, fire, theft, product liability, public
liability, property damage, other casualty, employee fidelity, workers'
compensation, business interruption and employee health and welfare insurance)
with financially sound and reputable insurance companies or associations (in
each case that are not Affiliates of the Borrower) of a nature and providing
such coverage as is customarily carried by businesses of the size and character
of the business of the Group Members and (b) cause all such insurance relating
to any property or business of any Loan Party to name the Administrative Agent
on behalf of the Secured Parties as additional insured or loss payee, as
appropriate, and to provide that no cancellation, material addition in amount or
material change in coverage shall be effective until after 30 days' notice
thereof to the Administrative Agent.
Section 7.6 Keeping of Books. The Group Members shall keep
proper books of record and account, in which full, true and correct entries
shall be made in accordance with GAAP and all other applicable Requirements of
Law of all financial transactions and the assets and business of each Group
Member.
Section 7.7 Access to Books and Property. Each Group Member
shall permit the Administrative Agent, the Lenders and any Related Person of any
of them, as often as reasonably requested, at any reasonable time during normal
business hours and with reasonable advance notice (except that, during the
continuance of an Event of Default, no such notice shall be required) to (a)
visit and inspect the property of each Group Member and examine and make copies
of and abstracts from, the corporate (and similar), financial, operating and
other books and records of each Group Member, (b) discuss the affairs, finances
and accounts of each Group Member with any officer or director of any Group
Member and (c) communicate directly with any registered certified public
accountants (including the Group Members' Accountants); provided that if such
visit or inspection occurs at any time when no Default has occurred and is
continuing, such visit or inspection shall be coordinated through the
Administrative Agent and shall be limited to two visits and two inspections
during any consecutive twelve-month period. Each Group Member shall authorize
their respective registered certified public accountants (including the Group
Members' Accountants) to communicate directly with the Administrative Agent, the
Lenders and their Related Persons and to disclose to the Administrative Agent,
the Lenders and their Related Persons all financial statements and other
documents and information as they might have and the Administrative Agent or any
Lender reasonably requests with respect to any Group Member.
Section 7.8 Environmental. Each Group Member shall comply
with, and maintain its real property, whether owned, leased, subleased or
otherwise operated or occupied, in compliance with, all applicable Environmental
Laws (including by implementing any Remedial Action necessary to achieve such
compliance or that is required by orders and directives of any Governmental
Authority) except for failures to comply that would not, in the aggregate, have
a Material Adverse Effect. Without limiting the foregoing, if an Event of
Default is continuing or if the Administrative Agent at any time has a
reasonable basis to believe that there exist violations of Environmental Laws by
any Group Member or that there exist any Environmental Liabilities, in each
case, that would have, in the aggregate, a Material Adverse Effect, then each
Group Member shall, promptly upon receipt of request from the Administrative
Agent, cause the performance of, and allow the Administrative Agent and its
Related Persons access to such real property for the purpose of conducting, such
environmental audits and assessments, including subsurface sampling of soil and
groundwater, and cause the preparation of such reports, in each case as the
Administrative Agent may from time to time reasonably request. Such audits,
assessments and reports, to the extent not conducted by the Administrative Agent
or any of its Related Persons, shall be conducted and prepared by reputable
environmental consulting firms reasonably acceptable to the Administrative Agent
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and shall be in form and substance reasonably acceptable to the Administrative
Agent.
Section 7.9 Use of Proceeds. The proceeds of the Loans shall
be used by the Borrower (and, to the extent distributed to them by the Borrower,
each other Group Member) solely (a) to consummate the Related Transactions and
for the payment of related transaction costs, fees and expenses, (b) for the
payment of transaction costs, fees and expenses incurred in connection with the
Loan Documents and the transactions contemplated therein and (c) for any lawful
purpose.
Section 7.10 Additional Collateral and Guaranties. To the
extent not delivered to the Administrative Agent on or before the Closing Date
(including in respect of after-acquired property and Persons that become
Subsidiaries of any Loan Party after the Closing Date), each Group Member shall,
promptly, do each of the following, unless otherwise agreed by the
Administrative Agent:
(a) deliver to the Administrative Agent such modifications to
the terms of the Loan Documents (or to the extent applicable as determined by
the Administrative Agent, such other documents), in each case, in form and
substance reasonably satisfactory to the Administrative Agent and as the
Administrative Agent deems reasonably necessary to ensure the following:
(i) each Wholly Owned Subsidiary of the Borrower that is not
an Excluded Foreign Subsidiary (including any such Subsidiary
acquired or created after the Closing Date) shall be a Guarantor
hereunder and under the Guaranty and Security Agreement; and
(ii) each Loan Party (including any Person required to
become a Guarantor pursuant to clause (i) above) shall grant to
the Administrative Agent, for the benefit of the Secured Parties,
a valid and enforceable security interest in all of its property
(other than property of a type excluded from the granting clauses
of the Guaranty and Security Agreement or constituting leased
real property), including all of its Stock and Stock Equivalents
and other Securities, as security for the Obligations of such
Loan Party;
provided, however, that in no event shall the Loan Parties, individually or
collectively, be required to pledge in excess of 66% of the outstanding Voting
Stock of any Excluded Foreign Subsidiary or any Subsidiary of an Excluded
Foreign Subsidiary;
(b) deliver to the Administrative Agent all documents
representing all certificated Stock, Stock Equivalents and other Securities
required to be pledged pursuant to the documents delivered pursuant to clause
(a) above, together with undated powers or endorsements duly executed in blank;
(c) upon request of the Administrative Agent, deliver to the
Administrative Agent a Mortgage on any real property owned by any Loan Party the
fair market value of which exceeds $1,000,000 on the date of determination,
together with all Mortgage Supporting Documents relating thereto (or, if such
real property is located in a jurisdiction outside the United States, similar
documents deemed reasonably necessary by the Administrative Agent to obtain the
equivalent in such jurisdiction of a first-priority mortgage on such real
property);
(d) to take all other actions reasonably necessary to ensure
the validity or continuing validity of any guaranty for any Obligation or any
Lien securing any Obligation, to perfect, maintain, evidence or enforce any Lien
securing any Obligation or to ensure such Liens have the same priority as that
of the Liens on similar Collateral set forth in the Loan Documents executed on
the Closing Date (or, for Collateral located outside the United States, a
similar priority reasonably acceptable to the Administrative Agent), including
the filing of UCC financing statements in such jurisdictions as may be required
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by the Loan Documents or applicable Requirements of Law or as the Administrative
Agent may otherwise reasonably request and to become a party to the
Intercreditor Agreement as an "Obligor" pursuant to documents in form and
substance reasonably acceptable to the Administrative Agent; and
(e) deliver to the Administrative Agent legal opinions
relating to the matters described in this Section 7.10, which opinions shall be
as reasonably required by, and in form and substance and from counsel reasonably
satisfactory to, the Administrative Agent.
Section 7.11 Deposit Accounts; Securities Accounts and Cash
Collateral Accounts(a) . (a) Each Loan Party shall (i) deposit all of its cash
(other than cash in respect of any Excluded Account) into deposit accounts that
are Controlled Deposit Accounts, and (ii) deposit all of its Cash Equivalents
into securities accounts that are Controlled Securities Accounts.
(b) The Administrative Agent shall not have any responsibility
for, or bear any risk of loss of, any investment or income of any funds in any
Controlled Deposit Account, Controlled Securities Account or Cash Collateral
Account. From time to time after funds are required to be deposited in any Cash
Collateral Account pursuant to the terms hereof or any other Loan Document, the
Administrative Agent may apply funds then held in such Cash Collateral Account
to the payment of Obligations in accordance with Section 2.12. No Group Member
and no Person claiming on behalf of or through any Group Member shall have any
right to demand payment of any funds held in any Cash Collateral Account at any
time prior to the termination of all Commitments and the payment in full of all
Obligations and, in the case of L/C Cash Collateral Accounts, the termination,
or to the extent acceptable to the L/C Issuers, the issuance of back-to back
letters of credit issued by issuers and in form and substance satisfactory in
all respects to the applicable L/C Issuers and the Administrative Agent in
respect of, and in an aggregate amount equal to 105% of the amount of, the
outstanding Letters of Credit.
(c) The Administrative Agent will exercise its rights to block
access to and direct payment and delivery of cash or securities in any
Controlled Deposit Account or Controlled Securities Account only while an Event
of Default is continuing, and will terminate such exercise promptly thereafter
once no Event of Default is continuing.
Section 7.12 Credit Rating. The Borrower shall at all times
use its commercially reasonable efforts to obtain and to cause a credit rating
by S&P and by Xxxxx'x to be maintained with respect to the Revolving Credit
Facility and the Borrower hereunder.
Section 7.13 Further Assurances.
(a) Before the date that is thirty (30) days following the
Closing Date (or such longer time as may be agreed to by the Administrative
Agent in writing), the Loan Parties shall deliver to the Administrative Agent
and cause to be recorded in the proper recording offices Mortgages for each
owned real property of the Loan Parties identified on Schedule 4.16 (except as
may be agreed to by the Administrative Agent), together with all Mortgage
Supporting Documents relating thereto.
ARTICLE 8
NEGATIVE COVENANTS
The Borrower (and, to the extent set forth in any other Loan
Document, each other Loan Party) agrees with the Lenders, the L/C Issuers and
the Administrative Agent to perform and observe each of the following covenants
until the Satisfaction Date:
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Section 8.1 Indebtedness. No Group Member shall, directly or
indirectly, incur or otherwise remain liable with respect to or responsible for,
any Indebtedness except for the following:
(a) the Obligations;
(b) Indebtedness existing on the date hereof and set forth on
Schedule 8.1, together with any Permitted Refinancing of any Indebtedness
permitted hereunder in reliance upon this clause (b);
(c) Indebtedness consisting of Capitalized Lease Obligations
(other than with respect to a lease entered into as part of a Sale and Leaseback
Transaction) and purchase money Indebtedness, in each case incurred by any Group
Member to finance the acquisition, repair, improvement or construction of fixed
or capital assets of such Group Member, together with any Permitted Refinancing
of any Indebtedness permitted hereunder in reliance upon this clause (c);
provided, however, that (i) the aggregate outstanding principal amount of all
such Indebtedness does not exceed $5,000,000 at any time and (ii) the principal
amount of such Indebtedness does not exceed the lower of the cost or fair market
value of the property so acquired or built or of such repairs or improvements
financed, whether directly or through a Permitted Refinancing, with such
Indebtedness (each measured at the time such acquisition, repair, improvement or
construction is made);
(d) Capitalized Lease Obligations arising under Sale and
Leaseback Transactions entered into prior to the date hereof;
(e) intercompany loans owing to any Group Member and
constituting Permitted Investments of such Group Member;
(f) (i) obligations under Interest Rate Contracts entered into
to comply with Section 7.13 of the Term Loan Credit Agreement and (ii)
obligations under other Hedging Agreements entered into for the sole purpose of
hedging in the normal course of business and consistent with industry practices;
(g) Guaranty Obligations of any Group Member with respect to
Indebtedness of any Group Member (other than Indebtedness permitted hereunder in
reliance upon clause (b) or (c) above, for which Guaranty Obligations may be
permitted to the extent set forth in such clauses);
(h) unsecured Indebtedness of the Borrower owing under the
Senior Subordinated Notes pursuant to the Senior Subordinated Notes Indenture
and any Permitted Refinancing thereof; provided, however, that the aggregate
outstanding principal amount of all such Indebtedness shall not exceed
$155,000,000 at any time, plus, in the case of any Permitted Refinancing
thereof, any fees, interest, premiums, costs and expenses financed thereby;
(i) the Term Loan Obligations and any Permitted Refinancing
thereof;
(j) any unsecured Indebtedness of any Group Member and any
Permitted Refinancing thereof; provided, however, that the aggregate outstanding
principal amount of all such unsecured Indebtedness shall not exceed $10,000,000
at any time;
(k) Indebtedness arising from agreements of the Borrower or a
Subsidiary of the Borrower providing for indemnification, adjustment of purchase
price, earn out or other similar obligations, in each case, incurred or assumed
in connection with the disposition of any business, assets or Subsidiary of the
Borrower, other than guarantees of Indebtedness incurred by any Person acquiring
all or any portion of such business, assets or Subsidiary for the purpose of
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financing such acquisition; provided that the maximum assumable liability in
respect of all such Indebtedness shall at no time exceed the gross proceeds
actually received by the Borrower and its Subsidiaries in connection with such
disposition and such disposition shall be permitted by the terms of this
Agreement;
(l) Indebtedness of Dayton Superior Canada Ltd. in a principal
amount not exceeding $5,000,000 or its equivalent in Canadian dollars
outstanding at any time and any Permitted Refinancing thereof, provided, that
(i) the credit agreement and related documents are in form and substance
reasonably satisfactory to the Administrative Agent and (ii) no other Loan Party
shall have any liability with respect to such Indebtedness or shall provide any
collateral security or other support with respect thereto;
(m) unsecured Indebtedness issued or acquired in connection
with a Permitted Acquisition in an amount not to exceed $7,500,000 on the date
of issuance or assumption, as applicable, and any Permitted Refinancing thereof;
provided that, in the case of any such Indebtedness that was issued in
connection with a Permitted Acquisition, the final maturity of such Indebtedness
is on or after the date that is six months after the 6th anniversary of the
Closing Date;
(n) Indebtedness arising from performance and surety bonds and
completion guarantees provided by the Borrower or any Subsidiary of the Borrower
in the ordinary course of business not in excess of $2,000,000 in the aggregate
outstanding at any time; and
(o) Indebtedness arising under indemnity agreements to title
insurers to cause such title insurers to issue to the Administrative Agent
mortgagee title insurance policies.
Section 8.2 Liens. No Group Member shall incur, maintain or
otherwise suffer to exist any Lien upon or with respect to any of its property,
whether now owned or hereafter acquired, or assign any right to receive income
or profits, except for the following:
(a) Liens created pursuant to any Loan Document;
(b) Customary Permitted Liens of Group Members;
(c) Liens existing on the date hereof and set forth on
Schedule 8.2 and any extensions or renewals thereof;
(d) Liens on the property of the Borrower or any of its
Subsidiaries securing Indebtedness permitted hereunder in reliance upon Section
8.1(c); provided, however, that (i) such Liens exist prior to the acquisition
of, or attach substantially simultaneously with, or within 90 days after, the
acquisition, repair, improvement or construction of, such property financed,
whether directly or through a Permitted Refinancing, by such Indebtedness and
(ii) such Liens do not extend to any property of any Group Member other than the
property (and proceeds thereof) acquired or built, or the improvements or
repairs, financed, whether directly or through a Permitted Refinancing, by such
Indebtedness;
(e) Liens on the property of the Borrower or any of its
Subsidiaries securing the Permitted Refinancing of any Indebtedness secured by
any Lien on such property permitted hereunder in reliance upon clause (c) or (d)
above or this clause (e) without any change in the property subject to such
Liens;
(f) Liens securing the Term Loan Obligations and Liens
securing any Permitted Refinancing of the Term Loan Obligations, so long as the
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Intercreditor Agreement or in the case of such a Permitted Refinancing, another
intercreditor agreement satisfying the requirements of the term "Permitted
Refinancing" is in effect;
(g) Liens securing any Permitted Refinancing of the Senior
Subordinated Notes; and
(h) Liens on any property of the Borrower or any of its
Subsidiaries securing any of their Indebtedness or their other liabilities;
provided, however, that the aggregate outstanding principal amount of all such
Indebtedness and other liabilities shall not exceed $10,000,000 at any time.
Section 8.3 Investments. No Group Member shall make or
maintain, directly or indirectly, any Investment except for the following:
(a) Investments existing on the date hereof and set forth on
Schedule 8.3;
(b) Investments in cash and Cash Equivalents;
(c) (i) endorsements for collection or deposit in the ordinary
course of business consistent with past practice, (ii) extensions of trade
credit (other than to Affiliates of the Borrower) arising or acquired in the
ordinary course of business and (iii) Investments received in settlements in the
ordinary course of business of such extensions of trade credit;
(d) Investments made as part of a Permitted Acquisition;
(e) Investments by (i) any Loan Party in any other Loan Party,
(ii) any Group Member that is not a Loan Party in any Group Member or in any
joint venture or (iii) any Loan Party in any Group Member that is not a Loan
Party or in any joint venture; provided, however, that the aggregate outstanding
amount of all Investments permitted pursuant to this clause (iii) shall not
exceed $5,000,000 at any time; and provided, further, that any Investment
consisting of loans or advances to any Loan Party pursuant to clause (ii) above
shall be subordinated in full to the payment of the Obligations of such Loan
Party on terms and conditions reasonably satisfactory to the Administrative
Agent;
(f) loans or advances to employees of the Borrower or any of
its Subsidiaries to finance travel, entertainment and relocation expenses and
other ordinary business purposes in the ordinary course of business as presently
conducted; provided, however, that the aggregate outstanding principal amount of
all loans and advances permitted pursuant to this clause (f) shall not exceed
$5,000,000 at any time;
(g) other Investments of the Borrower and its Subsidiaries to
the extent paid for with Qualified Capital Stock of the Borrower the proceeds of
which have not been used for any other purpose or any other calculation
hereunder;
(h) Guaranty Obligations permitted to be incurred under
Section 8.1;
(i) Investments made by the Borrower or its Subsidiaries as a
result of consideration received in connection with Sales of assets made in
compliance with Section 8.4; and
(j) any Investment by the Borrower or any of its Subsidiaries;
provided, however, that the aggregate outstanding amount of all such Investments
shall not exceed $10,000,000 at any time.
Section 8.4 Asset Sales. No Group Member shall Sell any of its
property (other than cash or Cash Equivalents) or issue shares of its own Stock,
except for the following:
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(a) in each case to the extent entered into in the ordinary
course of business and made to a Person that is not an Affiliate of the
Borrower, (i) Sales of Cash Equivalents, inventory (including items in the
rental fleet), (ii) Sales of property that has become obsolete or worn out and
(ii) non-exclusive licenses of Intellectual Property;
(b) a true lease or sublease of real property not constituting
Indebtedness and not entered into as part of a Sale and Leaseback Transaction;
(c) (i) any Sale of any property (other than their own Stock
or Stock Equivalents) by any Group Member to any other Group Member to the
extent any resulting Investment constitutes a Permitted Investment, (ii) any
Restricted Payment by any Group Member permitted pursuant to Section 8.5 and
(iii) any distribution by the Borrower of the proceeds of Restricted Payments
from any other Group Member to the extent permitted in Section 8.5;
(d) (i) any Sale or issuance by the Borrower of its own Stock,
(ii) any Sale or issuance by any Subsidiary of the Borrower of its own Stock to
any Group Member or any other Person to the extent not prohibited by this
Agreement or creating a Default or Event of Default, provided, however, that in
the case of this clause (ii), the proportion of such Stock and of each class of
such Stock (both on an outstanding and fully-diluted basis) held by the Loan
Parties, taken as a whole, does not change as a result of such Sale or issuance
and (iii) to the extent necessary to satisfy any Requirement of Law in the
jurisdiction of incorporation of any Subsidiary of the Borrower, any Sale or
issuance by such Subsidiary of its own Stock constituting directors' qualifying
shares or nominal holdings; and
(e) as long as no Default is continuing or would result
therefrom, any Sale of property (other than as part of a Sale and Leaseback
Transaction) of, or Sale or issuance of its own Stock by, any Group Member for
at least the fair market value thereof and where at least 75% of the
consideration in respect thereof is in the form of cash, except as otherwise
agreed by the Administrative Agent; provided, however, that the aggregate
consideration received during any Fiscal Year for all such Sales shall not
exceed $5,000,000.
Section 8.5 Restricted Payments. No Group Member shall
directly or indirectly, declare, order, pay, make or set apart any sum for any
Restricted Payment except for the following:
(a) (i) Restricted Payments (A) by any Group Member that is a
Loan Party to any Loan Party and (B) by any Group Member that is not a Loan
Party to any Group Member and (ii) dividends and distributions by any Subsidiary
of the Borrower that is not a Loan Party to any holder of its Stock, to the
extent made to all such holders ratably according to their ownership interests
in such Stock;
(b) dividends and distributions declared and paid on the
common Stock of any Group Member ratably to the holders of such common Stock and
payable only in common Stock of such Group Member;
(c) omitted;
(d) if no Default or Event of Default shall have occurred and
be continuing or shall occur as a consequence thereof, the acquisition of any
shares of Stock of the Borrower (the "Retired Capital Stock") either (i) solely
in exchange for shares of Qualified Capital Stock of the Borrower (the
"Refunding Capital Stock") or (ii) through the application of net proceeds of a
substantially concurrent sale for cash (other than to a Subsidiary of the
Borrower) or shares of Qualified Capital Stock of the Borrower;
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(e) if no Default or Event of Default shall have occurred and
be continuing or shall occur as a consequence thereof, the redemption or
repurchase of the Borrower's common equity or options in respect thereof, in
each case in connection with the repurchase provisions of employee stock option
or stock purchase agreements or other agreements to compensate management
employees; provided that all such redemptions or repurchases pursuant to this
paragraph (f) shall not exceed $2,500,000 (with unused amounts in any fiscal
year being carried over to succeeding Fiscal Years subject to a maximum of
$5,000,000 in any Fiscal Year) in any Fiscal Year; provided, further, that the
cancellation of Indebtedness owing to the Borrower from members of management of
the Borrower or any of its Subsidiaries in connection with any repurchase of
Stock of the Borrower (or warrants or options or rights to acquire such Stock)
will not be deemed to constitute a Restricted Payment under this Agreement;
(f) repurchases of Stock deemed to occur upon the exercise of
stock options if such Stock represents a portion of the exercise price thereof;
(g) if no Default or Event of Default shall have occurred and
be continuing or shall occur as a consequence thereof, other Restricted Payments
in an aggregate amount not to exceed $5,000,000; and
(h) the Borrower may pay merger and acquisition advisory fees
in connection with Permitted Acquisitions in an amount not exceeding one percent
(1%) of the transaction value, and reasonable out-of-pocket expense
reimbursements payable to Odyssey Investment Partners, LLC; provided, that no
Default or Event of Default exists at the time of any such Restricted Payment or
would occur as a result thereof.
Section 8.6 Prepayment of Indebtedness. No Group Member shall
(x) prepay, redeem, purchase, defease or otherwise satisfy prior to the
scheduled maturity thereof any Subordinated Debt or Subordinated Refinancing
Indebtedness, (y) set apart any property for such purpose, whether directly or
indirectly and whether to a sinking fund, a similar fund or otherwise, or (z)
make any payment in violation of any subordination terms of any Indebtedness;
provided, however, that each Group Member may, to the extent not otherwise
prohibited by the Loan Documents, do each of the following:
(a) prepay, redeem, purchase, defease or otherwise satisfy
prior to the scheduled maturity thereof (or set apart any property for such
purpose) (A) in the case of any Group Member that is not a Loan Party, any
Indebtedness owing by such Group Member to any other Group Member and (B)
otherwise, any Indebtedness owing to any Loan Party;
(b) (i) make regularly scheduled cash interest payments
pursuant to the terms of the Senior Subordinated Notes, any other Subordinated
Debt or Subordinated Refinancing Indebtedness (but only, in the case of the
Senior Subordinated Notes or other Subordinated Debt, to the extent permitted by
the subordination provisions thereof) or pursuant to the terms of any other
Subordinated Refinancing Indebtedness, and (ii) prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof, the Senior
Subordinated Notes, other Subordinated Debt or Subordinated Refinancing
Indebtedness, in each case, (A) with the proceeds of a Permitted Refinancing;
(B) solely in exchange for shares of Qualified Capital Stock of the Borrower;
(C) through the application of net proceeds of a substantially concurrent sale
for cash (other than to a Subsidiary of the Borrower) of shares of Qualified
Capital Stock of the Borrower and (D) in connection solely with the payment or
prepayment in full or redemption of all Senior Subordinated Notes or the
defeasance or other satisfaction of the Senior Subordinated Note Indenture in
respect of all outstanding Senior Subordinated Notes and only if and after
giving effect thereto Borrowing Availability is at least $20,000,000, from (x)
up to $25,000,000 in proceeds from an increase in the Term Loan Obligations and
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(y) other cash resources of the Borrower (including proceeds of the Revolving
Loans) not exceeding $25,000,000 in the aggregate, less (in the case of this
clause (y)) all amounts (if any) expended as permitted by Section 8.6(e);
(c) make regularly scheduled or otherwise required repayments
or redemptions of the Senior Subordinated Notes, other Subordinated Debt or
Subordinated Refinancing Indebtedness, but only, in the case of the Senior
Subordinated Notes or other Subordinated Debt, to the extent permitted by the
subordination provisions thereof;
(d) the acquisition of any Subordinated Debt or Subordinated
Refinancing Indebtedness of the Borrower that is subordinate or junior in right
of payment to the Obligations either (i) solely in exchange for shares of
Qualified Capital Stock of the Borrower or (ii) through the application of net
proceeds of a substantially concurrent sale for cash (other than to a Subsidiary
of the Borrower) of shares of Qualified Capital Stock of the Borrower; and
(e) the purchase, prepayment, acquisition or retirement for
value of up to $25,000,000 in aggregate principal amount of Senior Subordinated
Notes during the term of this Agreement, so long as (i) no Default or Event of
Default shall have occurred and be continuing or shall occur as a consequence
thereof, (ii) after giving effect thereto and the incurrence of any Obligations
in connection therewith, on a Pro Forma Basis as of the end of the period for
which financial statements or a Borrowing Base Certificate, as applicable, have
been delivered under Section 6.1 most recently prior to such purchase,
prepayment, acquisition or retirement for value, (x) the Consolidated Leverage
Ratio (as defined in the Term Loan Credit Agreement as in effect on the Closing
Date) shall not be greater than 3.5:1.0 and (y) Borrowing Availability shall be
greater than $40,000,000 and the Borrower has delivered to the Administrative
Agent projections, in form and substance reasonably acceptable to the
Administrative Agent, that Borrowing Availability for the ensuing six months
will not be less than $40,000,000, and (iii) any such Senior Subordinated Note
is retired upon any such purchase, prepayment or acquisition for value.
Section 8.7 Fundamental Changes. No Group Member shall (a)
merge, consolidate or amalgamate with any Person, (b) acquire all or
substantially all of the Stock or Stock Equivalents of any Person or (c) acquire
all or substantially all of the assets of any Person or all or substantially all
of the assets constituting any line of business, division, branch, operating
division or other unit operation of any Person, in each case except for the
following: (x) to consummate any Permitted Acquisition, (y) the merger,
consolidation or amalgamation of (i) any Subsidiary of the Borrower into any
Loan Party or (ii) of any Subsidiary of the Borrower that is not a Loan Party
into any other Subsidiary of the Borrower that is not a Loan Party and (z) the
merger, consolidation or amalgamation of any Group Member for the sole purpose,
and with the sole material effect, of changing its State of organization or
formation, as applicable, within the United States; provided, however, that (A)
in the case of any merger, consolidation or amalgamation involving the Borrower,
the Borrower shall be the surviving Person and (B) in the case of any merger,
consolidation or amalgamation involving any other Loan Party, a Loan Party shall
be the surviving corporation and all actions required to maintain the perfection
of the Lien of the Administrative Agent on the Stock or property of such Loan
Party shall have been made.
Section 8.8 Change in Nature of Business. No Group Member
shall carry on any business, operations or activities (whether directly, through
a joint venture, in connection with a Permitted Acquisition or otherwise)
substantially different from those carried on by the Group Members at the date
hereof and any business, operations and activities reasonably related or
incidental thereto.
Section 8.9 Transactions with Affiliates. No Group Member
shall, except as otherwise expressly permitted herein, enter into any other
transaction directly or indirectly with, or for the benefit of, any Affiliate of
the Borrower that is not a Loan Party (including Guaranty Obligations with
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respect to any obligation of any such Affiliate) other than (x) transactions
with any such Affiliate that are on terms that are not materially less favorable
to such Group Member than those that might reasonably have been obtained in a
comparable transaction at such time on an arm's-length basis from a Person not
an Affiliate of such Group Member and (y) each of the following:
(a) reasonable fees and compensation paid to, and indemnity
provided on behalf of, officers, directors, employees or consultants of the
Borrower or any Subsidiary of the Borrower as determined in good faith by the
Borrower's Board of Directors or senior management;
(b) transactions exclusively between or among the Borrower and
any of its Subsidiaries that are Loan Parties or exclusively between or among
such Subsidiaries, provided such transactions are not otherwise prohibited by
this Agreement;
(c) Restricted Payments permitted by this Agreement and
Investments permitted by this Agreement;
(d) the payment of customary annual management, consulting and
advisory fees and related expenses to Odyssey Investment Partners and general or
limited partners made pursuant to any financial advisory, financing,
underwriting or placement agreement or in respect of other investment banking
activities, including, without limitation, in connection with acquisitions or
divestitures which are approved by the Board of Directors of Borrower or such
Subsidiary in good faith;
(e) payments or loans to employees or consultants that are
approved by the Board of Directors of Borrower in good faith; and
(f) sales of Qualified Capital Stock.
Section 8.10 Third-Party Restrictions on Indebtedness, Liens,
Investments or Restricted Payments. No Group Member shall incur or otherwise
suffer to exist or become effective or remain liable on or responsible for any
Contractual Obligation limiting the ability of (a) any Subsidiary of the
Borrower to make Restricted Payments to, or Investments in, or repay
Indebtedness or otherwise Sell property to, any Group Member or (b) any Group
Member to incur or suffer to exist any Lien upon any property of any Group
Member, whether now owned or hereafter acquired, securing any of its Obligations
(including any "equal and ratable" clause and any similar Contractual Obligation
requiring, when a Lien is granted on any property, another Lien to be granted on
such property or any other property), except, for each of clauses (a) and (b)
above, (x) pursuant to the Loan Documents, the Term Loan Documents and the
Senior Subordinated Notes Indenture and the documents governing any Permitted
Refinancing of the Senior Subordinated Notes or the Term Loan Documents, (y)
limitations on Liens (other than those securing any Obligation) on any property
whose acquisition, repair, improvement or construction is financed by purchase
money Indebtedness, Capitalized Lease Obligations or Permitted Refinancings
permitted hereunder in reliance upon Section 8.1(b) or (c) set forth in the
Contractual Obligations governing such Indebtedness, Capitalized Lease
Obligations or Permitted Refinancing or Guaranty Obligations with respect
thereto.
Section 8.11 Modification of Certain Documents. No Group
Member shall do any of the following:
(a) waive or otherwise modify any term of any Related Document
or any Constituent Document of, or otherwise change the capital structure of,
any Group Member (including the terms of any of their outstanding Stock or Stock
Equivalents), in each case except for those modifications and waivers that (x)
do not elect, or permit the election, to treat the Stock or Stock Equivalents of
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any limited liability company (or similar entity) as certificated and (y) do not
materially and adversely affect the rights and privileges of any Group Member
and do not materially and adversely affect the interests of any Secured Party
under the Loan Documents or in the Collateral;
(b) waive or otherwise modify any term of any Subordinated
Debt in a manner contrary to any applicable subordination agreement or in any
manner that would not be permitted as a Permitted Refinancing thereof; or
(c) permit any Indebtedness (other than the Obligations and
the Term Loan Obligations) to qualify as "Designated Senior Debt" under the
Senior Subordinated Notes Indenture or permit the Obligations to cease
qualifying as such or as "Senior Debt" as defined in the Senior Subordinated
Notes Indenture.
Section 8.12 Accounting Changes; Fiscal Year. No Group Member
shall change its (a) accounting treatment or reporting practices, except as
permitted or required by GAAP or any Requirement of Law, or (b) its Fiscal Year
or its method for determining Fiscal Quarters or Fiscal Months; provided that
upon thirty (30) days' prior notice to the Administrative Agent the Group
Members may change their Fiscal Year, Fiscal Quarter or Fiscal Month (such
change to be applicable to all Group Members included in consolidated financial
reporting under GAAP); provided, further, that (i) such change does not defer
the delivery of audited financial statements required hereunder by more than one
Fiscal Quarter and (ii) the Borrower shall deliver such financial information
(including reconciliations if required under GAAP) as the Administrative Agent
may reasonably request with respect to such change in Fiscal Year.
Section 8.13 Margin Regulations. No Group Member shall use all
or any portion of the proceeds of any credit extended hereunder to purchase or
carry margin stock (within the meaning of Regulation U of the Federal Reserve
Board) in contravention of Regulation U of the Federal Reserve Board.
Section 8.14 Compliance with ERISA. No ERISA Affiliate shall
cause or suffer to exist (a) any event that could result in the imposition of a
Lien with respect to any Title IV Plan or Multiemployer Plan or (b) any other
ERISA Event, that would, in the aggregate, have a Material Adverse Effect. No
Group Member shall cause or suffer to exist any event that could result in the
imposition of a Lien with respect to any Benefit Plan.
Section 8.15 Hazardous Materials. No Group Member shall cause,
or permit any other Person to cause, any Release of any Hazardous Material at,
to or from any real property owned, leased, subleased or otherwise operated or
occupied by any Group Member that would violate any Environmental Law, form the
basis for any Environmental Liabilities or otherwise adversely affect the value
or marketability of any real property (whether or not owned by any Group
Member), other than such violations, Environmental Liabilities and effects that
would not, in the aggregate, have a Material Adverse Effect.
ARTICLE 9
EVENTS OF DEFAULT
Section 9.1 Definition. Each of the following shall be an
Event of Default:
(a) the Borrower shall fail to pay (i) any principal of any
Loan or any L/C Reimbursement Obligation when the same becomes due and payable
or (ii) any interest on any Loan, any fee under any Loan Document or any other
Obligation (other than those set forth in clause (i) above) and, in the case of
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this clause (ii), such non-payment continues for a period of 3 Business Days
after the due date therefor; or
(b) any representation, warranty or certification made or
deemed made by or on behalf of any Loan Party in any Loan Document or by or on
behalf of any Loan Party (or any Responsible Officer thereof) in connection with
any Loan Document (including in any document delivered in connection with any
Loan Document) shall prove to have been incorrect in any material respect when
made or deemed made; or
(c) any Loan Party shall fail to comply with (i) any provision
of Section 6.1 (Financial Statements), 6.2(a)(i) (Other Events), 7.1
(Maintenance of Corporate Existence), 7.9 (Use of Proceeds) or Article VIII
(Negative Covenants) or (ii) any other provision of any Loan Document (other
than those specified in clauses (a), (b) and (c)(i) of this Section 9.1) if, in
the case of this clause (ii), such failure shall remain unremedied for 30 days
after the earlier of (A) the date on which a Responsible Officer of the Borrower
becomes aware of such failure and (B) the date on which notice thereof shall
have been given to the Borrower by the Administrative Agent or the Required
Lenders; or
(d) (i) any Group Member shall fail to make any payment when
due (whether due because of scheduled maturity, required prepayment provisions,
acceleration, demand or otherwise), after giving effect to any applicable grace
period, on any Indebtedness of any Group Member (other than the Obligations or
any Hedging Agreement) and, in each case, such failure relates to Indebtedness
having a principal amount of $5,000,000 or more, (ii) any other event shall
occur or condition shall exist under any Contractual Obligation relating to any
such Indebtedness (other than the Obligations), if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity of
such Indebtedness having an individual principal amount in excess of $5,000,000
or (iii) any such Indebtedness (other than the Obligations) having an individual
principal amount in excess of $5,000,000 shall become or be declared to be due
and payable, or be required to be prepaid, redeemed, defeased or repurchased
(other than by a regularly scheduled required prepayment), prior to the stated
maturity thereof; or
(e) (i) any Group Member shall generally not pay its debts as
such debts become due, shall admit in writing its inability to pay its debts
generally or shall make a general assignment for the benefit of creditors, (ii)
any proceeding shall be instituted by or against any Group Member seeking to
adjudicate it a bankrupt or insolvent or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, composition of it
or its debts or any similar order, in each case under any Requirement of Law
relating to bankruptcy, insolvency or reorganization or relief of debtors or
seeking the entry of an order for relief or the appointment of a custodian,
receiver, trustee, conservator, liquidating agent, liquidator, other similar
official or other official with similar powers, in each case for it or for any
substantial part of its property and, in the case of any such proceedings
instituted against (but not by or with the consent of) any Group Member, either
such proceedings shall remain undismissed or unstayed for a period of 60 days or
more or any action sought in such proceedings shall occur or (iii) any Group
Member shall take any corporate or similar action or any other action to
authorize any action described in clause (i) or (ii) above; or
(f) one or more judgments, orders or decrees (or other similar
process) shall be rendered against any Group Member (i)(A) in the case of money
judgments, orders and decrees, involving an aggregate amount (excluding amounts
adequately covered by insurance payable to any Group Member, to the extent the
relevant insurer has not denied coverage therefor) in excess of $5,000,000 or
(B) otherwise, that would have, in the aggregate, a Material Adverse Effect and
(ii)(A) enforcement proceedings shall have been commenced by any creditor upon
any such judgment, order or decree or (B) such judgment, order or decree shall
not have been vacated or discharged for a period of 30 consecutive days and
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there shall not be in effect (by reason of a pending appeal or otherwise) any
stay of enforcement thereof; or
(g) except pursuant to a valid, binding and enforceable
termination or release permitted under the Loan Documents and executed by the
Administrative Agent or as otherwise expressly permitted under any Loan
Document, (i) any provision of any Loan Document shall, at any time after the
delivery of such Loan Document, fail to be valid and binding on, or enforceable
against, any Loan Party party thereto, (ii) any Loan Document purporting to
xxxxx x Xxxx to secure any Obligation shall, at any time after the delivery of
such Loan Document, fail to create a valid and enforceable Lien on any
Collateral that constitutes part of the Borrowing Base or any material portion
of any other Collateral purported to be covered thereby or such Lien shall fail
or cease to be a perfected Lien with the priority required in the relevant Loan
Document on any Collateral that constitutes part of the Borrowing Base or any
material portion of any other Collateral or (iii) any subordination provision
pertaining to Subordinated Debt shall, in whole or in part, terminate or
otherwise fail or cease to be valid and binding on, or enforceable against any
holder of Subordinated Debt or any trustee or representative thereof, or any
Group Member shall state in writing that any of the events described in clause
(i), (ii) or (iii) above shall have occurred; or
(h) any information contained in any Borrowing Base
Certificate is untrue or incorrect in any respect (other than inadvertent,
immaterial errors not exceeding $250,000 in the aggregate in any Borrowing Base
Certificate), or any representation or warranty herein or in any Loan Document
or in any written statement, report, financial statement or certificate (other
than a Borrowing Base Certificate) made or delivered to the Administrative Agent
or any Lender by any Loan Party is untrue or incorrect in any material respect
(without duplication of materiality qualifiers contained therein) as of the date
when made or deemed made; or
(i) there shall occur any Change of Control.
Section 9.2 Remedies. During the continuance of any Event of
Default, the Administrative Agent may, and, at the request of the Required
Lenders, shall, in each case by notice to the Borrower and in addition to any
other right or remedy provided under any Loan Document or by any applicable
Requirement of Law, do each of the following: (a) declare all or any portion of
the Commitments terminated, whereupon the Commitments shall immediately be
reduced by such portion or, in the case of a termination in whole, shall
terminate together with any obligation any Lender may have hereunder to make any
Loan and any L/C Issuer may have hereunder to Issue any Letter of Credit or (b)
declare immediately due and payable all or part of any Obligation (including any
accrued but unpaid interest thereon), whereupon the same shall become
immediately due and payable, without presentment, demand, protest or further
notice or other requirements of any kind, all of which are hereby expressly
waived by the Borrower (and, to the extent provided in any other Loan Document,
other Loan Parties); provided, however, that, effective immediately upon the
occurrence of the Events of Default specified in Section 9.1(e)(ii), (x) the
Commitments of each Lender to make Loans and the commitment of each L/C Issuer
to Issue Letters of Credit shall each automatically be terminated and (y) each
Obligation (including in each case any accrued all accrued but unpaid interest
thereon) shall automatically become and be due and payable, without presentment,
demand, protest or further notice or other requirement of any kind, all of which
are hereby expressly waived by the Borrower (and, to the extent provided in any
other Loan Document, any other Loan Party).
Section 9.3 Actions in Respect of Letters of Credit. At any
time (i) upon the Termination Date, (ii) after the Termination Date when the
aggregate funds on deposit in L/C Cash Collateral Accounts shall be less than
105% of the L/C Obligations for all Letters of Credit at such time and (iii) as
required by Section 2.12, the Borrower shall pay to the Administrative Agent in
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immediately available funds at the Administrative Agent's office referred to in
Section 11.11, for deposit in a L/C Cash Collateral Account, the amount required
so that, after such payment, the aggregate funds on deposit in the L/C Cash
Collateral Accounts equals or exceeds 105% of the L/C Obligations for all
Letters of Credit at such time (not to exceed, in the case of clause (iii)
above, the payment to be applied pursuant to Section 2.12 to provide cash
collateral for Letters of Credit).
ARTICLE 10
THE ADMINISTRATIVE AGENT
Section 10.1 Appointment and Duties(a) . (a) Appointment of
Administrative Agent. Each Lender and each L/C Issuer hereby appoints GE Capital
(together with any successor Administrative Agent pursuant to Section 10.9) as
the Administrative Agent hereunder and authorizes the Administrative Agent to
(i) execute and deliver the Loan Documents and accept delivery thereof on its
behalf from any Group Member, (ii) take such action on its behalf and to
exercise all rights, powers and remedies and perform the duties as are expressly
delegated to the Administrative Agent under such Loan Documents and (iii)
exercise such powers as are reasonably incidental thereto. Without limitation of
the foregoing, each Lender acknowledges that it has been provided with a copy of
the Intercreditor Agreement, authorizes the Administrative Agent to enter into
such Intercreditor Agreement, agrees that upon the execution and delivery of the
Intercreditor Agreement by the parties thereto, such Lender shall be bound by
the terms of the Intercreditor Agreement, the terms of which, to the extent
inconsistent with this Agreement and the other Loan Documents shall govern.
(b) Duties as Collateral and Disbursing Agent. Without
limiting the generality of clause (a) above, the Administrative Agent shall have
the sole and exclusive right and authority (to the exclusion of the Lenders and
L/C Issuers), and is hereby authorized, to (i) act as the disbursing and
collecting agent for the Lenders and the L/C Issuers with respect to all
payments and collections arising in connection with the Loan Documents
(including in any proceeding described in Section 9.1(e)(ii) or any other
bankruptcy, insolvency or similar proceeding), and each Person making any
payment in connection with any Loan Document to any Secured Party is hereby
authorized to make such payment to the Administrative Agent, (ii) file and prove
claims and file other documents necessary or desirable to allow the claims of
the Secured Parties with respect to any Obligation in any proceeding described
in Section 9.1(e)(ii) or any other bankruptcy, insolvency or similar proceeding
(but not to vote, consent or otherwise act on behalf of such Secured Party),
(iii) act as collateral agent for each Secured Party for purposes of the
perfection of all Liens created by such agreements and all other purposes stated
therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take
such other action as is necessary or desirable to maintain the perfection and
priority of the Liens created or purported to be created by the Loan Documents,
(vi) except as may be otherwise specified in any Loan Document, exercise all
remedies given to the Administrative Agent and the other Secured Parties with
respect to the Collateral, whether under the Loan Documents, applicable
Requirements of Law or otherwise and (vii) execute any amendment, consent or
waiver under the Loan Documents on behalf of any Lender that has consented in
writing to such amendment, consent or waiver; provided, however, that the
Administrative Agent hereby appoints, authorizes and directs each Lender and L/C
Issuer to act as collateral sub-agent for the Administrative Agent, the Lenders
and the L/C Issuers for purposes of the perfection of all Liens with respect to
the Collateral, including any deposit account maintained by a Loan Party with,
and cash and Cash Equivalents held by, such Lender or L/C Issuer, and may
further authorize and direct the Lenders and the L/C Issuers to take further
actions as collateral sub-agents for purposes of enforcing such Liens or
otherwise to transfer the Collateral subject thereto to the Administrative
Agent, and each Lender and L/C Issuer hereby agrees to take such further actions
to the extent, and only to the extent, so authorized and directed.
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(c) Limited Duties. Under the Loan Documents, the
Administrative Agent (i) is acting solely on behalf of the Lenders and the L/C
Issuers (except to the limited extent provided in Section 2.14(b) with respect
to the Register and in Section 10.11), with duties that are entirely
administrative in nature, notwithstanding the use of the defined term
"Administrative Agent", the terms "agent", "administrative agent" and
"collateral agent" and similar terms in any Loan Document to refer to the
Administrative Agent, which terms are used for title purposes only, (ii) is not
assuming any obligation under any Loan Document other than as expressly set
forth therein or any role as agent, fiduciary or trustee of or for any Lender,
L/C Issuer or any other Secured Party and (iii) shall have no implied functions,
responsibilities, duties, obligations or other liabilities under any Loan
Document, and each Lender and L/C Issuer hereby waives and agrees not to assert
any claim against the Administrative Agent based on the roles, duties and legal
relationships expressly disclaimed in clauses (i) through (iii) above.
Section 10.2 Binding Effect. Each Lender and each L/C Issuer
agrees that (i) any action taken by the Administrative Agent or the Required
Lenders (or, if expressly required hereby, a greater proportion of the Lenders)
in accordance with the provisions of the Loan Documents, (ii) any action taken
by the Administrative Agent in reliance upon the instructions of Required
Lenders (or, where so required, such greater proportion) and (iii) the exercise
by the Administrative Agent or the Required 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 Secured Parties.
Section 10.3 Use of Discretion(a) . (a) No Action without
Instructions. The Administrative Agent shall not be required to exercise any
discretion or take, or to omit to take, any action, including with respect to
enforcement or collection, except any action it is required to take or omit to
take (i) under any Loan Document or (ii) pursuant to instructions from the
Required Lenders (or, where expressly required by the terms of this Agreement, a
greater proportion of the Lenders).
(b) Right Not to Follow Certain Instructions. Notwithstanding
clause (a) above, the Administrative Agent shall not be required to take, or to
omit to take, any action (i) unless, upon demand, the Administrative Agent
receives an indemnification satisfactory to it from the Lenders (or, to the
extent applicable and acceptable to the Administrative Agent, any other Secured
Party) against all Liabilities that, by reason of such action or omission, may
be imposed on, incurred by or asserted against the Administrative Agent or any
Related Person thereof or (ii) that is, in the opinion of the Administrative
Agent or its counsel, contrary to any Loan Document or applicable Requirement of
Law.
Section 10.4 Delegation of Rights and Duties. The
Administrative Agent may, upon any term or condition it specifies, delegate or
exercise any of its rights, powers and remedies under, and delegate or perform
any of its duties or any other action with respect to, any Loan Document by or
through any trustee, co-agent, employee, attorney-in-fact and any other Person
(including any Secured Party). Any such Person shall benefit from this Article X
to the extent provided by the Administrative Agent.
Section 10.5 Reliance and Liability(a) . (a) The
Administrative Agent may, without incurring any liability hereunder, (i) treat
the payee of any Note as its holder until such Note has been assigned in
accordance with Section 11.2(e), (ii) rely on the Register to the extent set
forth in Section 2.14, (iii) consult with any of its Related Persons and,
whether or not selected by it, any other advisors, accountants and other experts
(including advisors to, and accountants and experts engaged by, any Loan Party)
and (iv) rely and act upon any document and information (including those
transmitted by Electronic Transmission) and any telephone message or
conversation, in each case believed by it to be genuine and transmitted, signed
or otherwise authenticated by the appropriate parties.
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(b) None of the Administrative Agent and its Related Persons
shall be liable for any action taken or omitted to be taken by any of them under
or in connection with any Loan Document, and each Lender, L/C Issuer, the
Borrower hereby waive and shall not assert (and the Borrower shall cause each
other Loan Party to waive and agree not to assert) any right, claim or cause of
action based thereon, except to the extent of liabilities resulting primarily
from the gross negligence or willful misconduct of the Administrative Agent or,
as the case may be, such Related Person (each as determined in a final,
non-appealable judgment by a court of competent jurisdiction) in connection with
the duties expressly set forth herein. Without limiting the foregoing, the
Administrative Agent:
(i) shall not be responsible or otherwise incur liability
for any action or omission taken in reliance upon the
instructions of the Required Lenders or for the actions or
omissions of any of its Related Persons selected with reasonable
care (other than employees, officers and directors of the
Administrative Agent, when acting on behalf of the Administrative
Agent);
(ii) shall not be responsible to any Secured Party for the
due execution, legality, validity, enforceability, effectiveness,
genuineness, sufficiency or value of, or the attachment,
perfection or priority of any Lien created or purported to be
created under or in connection with, any Loan Document;
(iii) makes no warranty or representation, and shall not be
responsible, to any Secured Party for any statement, document,
information, representation or warranty made or furnished by or
on behalf of any Related Person or any Loan Party in connection
with any Loan Document or any transaction contemplated therein or
any other document or information with respect to any Loan Party,
whether or not transmitted or (except for documents expressly
required under any Loan Document to be transmitted to the
Lenders) omitted to be transmitted by the Administrative Agent,
including as to completeness, accuracy, scope or adequacy
thereof, or for the scope, nature or results of any due diligence
performed by the Administrative Agent in connection with the Loan
Documents; and
(iv) shall not have any duty to ascertain or to inquire as
to the performance or observance of any provision of any Loan
Document, whether any condition set forth in any Loan Document is
satisfied or waived, as to the financial condition of any Loan
Party or as to the existence or continuation or possible
occurrence or continuation of any Default or Event of Default and
shall not be deemed to have notice or knowledge of such
occurrence or continuation unless it has received a notice from
the Borrower, any Lender or L/C Issuer describing such Default or
Event of Default clearly labeled "notice of default" (in which
case the Administrative Agent shall promptly give notice of such
receipt to all Lenders);
and, for each of the items set forth in clauses (i) through (iv) above, each
Lender, L/C Issuer, the Borrower hereby waives and agrees not to assert (and the
Borrower shall cause each other Loan Party to waive and agree not to assert) any
right, claim or cause of action it might have against the Administrative Agent
based thereon.
Section 10.6 Administrative Agent Individually. The
Administrative Agent and its Affiliates may make loans and other extensions of
credit to, acquire Stock and Stock Equivalents of, engage in any kind of
business with, any Loan Party or Affiliate thereof as though it were not acting
as Administrative Agent and may receive separate fees and other payments
therefor. To the extent the Administrative Agent or any of its Affiliates makes
any Loan or otherwise becomes a Lender hereunder, it shall have and may exercise
the same rights and powers hereunder and shall be subject to the same
obligations and liabilities as any other Lender and the terms "Lender",
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"Required Lender", and any similar terms shall, except where otherwise expressly
provided in any Loan Document, include, without limitation, the Administrative
Agent or such Affiliate, as the case may be, in its individual capacity as
Lender or as one of the Required Lenders, respectively.
Section 10.7 Lender Credit Decision. Each Lender and each L/C
Issuer acknowledges that it shall, independently and without reliance upon the
Administrative Agent, any Lender or L/C Issuer or any of their Related Persons
or upon any document (including the Disclosure Documents) solely or in part
because such document was transmitted by the Administrative Agent or any of its
Related Persons, conduct its own independent investigation of the financial
condition and affairs of each Loan Party and make and continue to make its own
credit decisions in connection with entering into, and taking or not taking any
action under, any Loan Document or with respect to any transaction contemplated
in any Loan Document, in each case based on such documents and information as it
shall deem appropriate. Except for documents expressly required by any Loan
Document to be transmitted by the Administrative Agent to the Lenders or L/C
Issuers, the Administrative Agent shall not have any duty or responsibility to
provide any Lender or L/C Issuer with any credit or other information concerning
the business, prospects, operations, property, financial and other condition or
creditworthiness of any Loan Party or any Affiliate of any Loan Party that may
come in to the possession of the Administrative Agent or any of its Related
Persons.
Section 10.8 Expenses; Indemnities(a) . (a) Each Lender agrees
to reimburse the Administrative Agent and each of its Related Persons (to the
extent not reimbursed by any Loan Party) promptly upon demand for such Lender's
Pro Rata Share of any costs and expenses (including fees, charges and
disbursements of financial, legal and other advisors and Other Taxes paid in the
name of, or on behalf of, any Loan Party) that may be incurred by the
Administrative Agent or any of its Related Persons in connection with the
preparation, syndication, execution, delivery, administration, modification,
consent, waiver or enforcement (whether through negotiations, through any
work-out, bankruptcy, restructuring or other legal or other proceeding or
otherwise) of, or legal advice in respect of its rights or responsibilities
under, any Loan Document.
(b) Each Lender further agrees to indemnify the Administrative
Agent and each of its Related Persons (to the extent not reimbursed by any Loan
Party), from and against such Lender's aggregate Pro Rata Share of the
Liabilities (including taxes, interests and penalties imposed for not properly
withholding or backup withholding on payments made to on or for the account of
any Lender) that may be imposed on, incurred by or asserted against the
Administrative Agent or any of its Related Persons in any matter relating to or
arising out of, in connection with or as a result of any Loan Document, any
Related Document or any other act, event or transaction related, contemplated in
or attendant to any such document, or, in each case, any action taken or omitted
to be taken by the Administrative Agent or any of its Related Persons under or
with respect to any of the foregoing; provided, however, that no Lender shall be
liable to the Administrative Agent or any of its Related Persons to the extent
such liability has resulted primarily from the gross negligence or willful
misconduct of the Administrative Agent or, as the case may be, such Related
Person, as determined by a court of competent jurisdiction in a final
non-appealable judgment or order.
Section 10.9 Resignation of Administrative Agent or L/C
Issuer(a) . (a) The Administrative Agent may resign at any time by delivering
notice of such resignation to the Lenders and the Borrower, effective on the
date set forth in such notice or, if not such date is set forth therein, upon
the date such notice shall be effective. If the Administrative Agent delivers
any such notice, the Required Lenders shall have the right to appoint a
successor Administrative Agent. If, within 30 days after the retiring
Administrative Agent having given notice of resignation, no successor
Administrative Agent has been appointed by the Required Lenders that has
accepted such appointment, then the retiring Administrative Agent may, on behalf
of the Lenders, appoint a successor Administrative Agent from among the Lenders.
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Each appointment under this clause (a) shall be subject to the prior consent of
the Borrower, which may not be unreasonably withheld but shall not be required
during the continuance of a Default.
(b) Effective immediately upon its resignation, (i) the
retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents, (ii) the Lenders shall assume and perform
all of the duties of the Administrative Agent until a successor Administrative
Agent shall have accepted a valid appointment hereunder, (iii) the retiring
Administrative Agent and its Related Persons shall no longer have the benefit of
any provision of any Loan Document other than with respect to any actions taken
or omitted to be taken while such retiring Administrative Agent was, or because
such Administrative Agent had been, validly acting as Administrative Agent under
the Loan Documents and (iv) subject to its rights under Section 10.3, the
retiring Administrative Agent shall take such action as may be reasonably
necessary to assign to the successor Administrative Agent its rights as
Administrative Agent under the Loan Documents. Effective immediately upon its
acceptance of a valid appointment as Administrative Agent, a successor
Administrative Agent shall succeed to, and become vested with, all the rights,
powers, privileges and duties of the retiring Administrative Agent under the
Loan Documents.
(c) Any L/C Issuer may resign at any time by delivering notice
of such resignation to the Administrative Agent, effective on the date set forth
in such notice or, if no such date is set forth therein, on the date such notice
shall be effective. Upon such resignation, the L/C Issuer shall remain an L/C
Issuer and shall retain its rights and obligations in its capacity as such
(other than any obligation to Issue Letters of Credit but including the right to
receive fees or to have Lenders participate in any L/C Reimbursement Obligation
thereof) with respect to Letters of Credit issued by such L/C Issuer prior to
the date of such resignation and shall otherwise be discharged from all other
duties and obligations under the Loan Documents.
Section 10.10 Release of Collateral or Guarantors. Each Lender
and L/C Issuer hereby consents to the release and hereby directs the
Administrative Agent to release (or, in the case of clause (b)(ii) below,
release or subordinate) the following:
(a) any Subsidiary of the Borrower from its guaranty of any
Obligation of any Loan Party if all of the Securities of such Subsidiary owned
by any Group Member are Sold in a Sale permitted under the Loan Documents
(including pursuant to a waiver or consent), to the extent that, after giving
effect to such Sale, such Subsidiary would not be required to guaranty any
Obligations pursuant to Section 7.10; and
(b) any Lien held by the Administrative Agent for the benefit
of the Secured Parties against (i) any Collateral that is Sold by a Loan Party
in a Sale permitted by the Loan Documents (including pursuant to a valid waiver
or consent), to the extent all Liens required to be granted in such Collateral
pursuant to Section 7.10 after giving effect to such Sale have been granted,
(ii) any property subject to a Lien permitted hereunder in reliance upon Section
8.2(d) or (e) and (iii) all of the Collateral and all Loan Parties, upon (A)
termination of the Commitments, (B) payment and satisfaction in full of all
Loans, all L/C Reimbursement Obligations and all other Obligations (other than
contingent indemnification Obligations not relating to Letters of Credit and as
to which no underlying claim has arisen or been asserted) that the
Administrative Agent has been notified in writing are then due and payable by
the holder of such Obligation, and (C) deposit of cash collateral with respect
to all contingent Obligations (or, in the case of any L/C Obligation, deposit of
funds in the applicable L/C Cash Collateral Account equal to at least 105% of
such L/C Obligation, or to the extent acceptable to the L/C Issuers, the
issuance of back-to back letters of credit issued by issuers and in form and
substance reasonably satisfactory in all respects to the applicable L/C Issuer
and the Administrative Agent and in an amount equal to 105% of each outstanding
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Letter of Credit), in amounts and on terms and conditions and with parties
reasonably satisfactory to the Administrative Agent.
Each Lender and L/C Issuer hereby directs the Administrative Agent, and the
Administrative Agent hereby agrees, upon receipt of reasonable advance notice
from the Borrower, to execute and deliver or file such documents and to perform
other actions reasonably necessary to release the guaranties and Liens when and
as directed in this Section 10.10.
Section 10.11 Additional Secured Parties. The benefit of the
provisions of the Loan Documents directly relating to the Collateral or any Lien
granted thereunder shall extend to and be available to any Secured Party that is
not a Lender or L/C Issuer as long as, by accepting such benefits, such Secured
Party agrees, as among the Administrative Agent and all other Secured Parties,
that such Secured Party is bound by (and, if requested by the Administrative
Agent, shall confirm such agreement in a writing in form and substance
acceptable to the Administrative Agent) this Article X, Section 11.8 (Right of
Setoff), Section 11.9 (Sharing of Payments) and Section 11.20 (Confidentiality)
and the decisions and actions of the Administrative Agent and the Required
Lenders (or, where expressly required by the terms of this Agreement, a greater
proportion of the Lenders) to the same extent a Lender is bound; provided,
however, that, notwithstanding the foregoing, (a) such Secured Party shall be
bound by Section 10.8 only to the extent of Liabilities, costs and expenses with
respect to or otherwise relating to the Collateral held for the benefit of such
Secured Party, in which case the obligations of such Secured Party thereunder
shall not be limited by any concept of Pro Rata Share or similar concept, (b)
except as set forth specifically herein, each of the Administrative Agent, the
Lenders and the L/C Issuers shall be entitled to act at its sole discretion,
without regard to the interest of such Secured Party, regardless of whether any
Obligation to such Secured Party thereafter remains outstanding, is deprived of
the benefit of the Collateral, becomes unsecured or is otherwise affected or put
in jeopardy thereby, and without any duty or liability to such Secured Party or
any such Obligation and (c) except as set forth specifically herein, such
Secured Party shall not have any right to be notified of, consent to, direct,
require or be heard with respect to, any action taken or omitted in respect of
the Collateral or under any Loan Document.
ARTICLE 11
MISCELLANEOUS
Section 11.1 Amendments, Waivers, Etc.(a) (a) No amendment or
waiver of any provision of any Loan Document (other than the Fee Letter, the
Control Agreements, the L/C Reimbursement Agreements and the Secured Hedging
Agreements) and no consent to any departure by any Loan Party therefrom shall be
effective unless the same shall be in writing and signed (1) in the case of an
amendment, consent or waiver to cure any ambiguity, omission, defect or
inconsistency or granting a new Lien for the benefit of the Secured Parties or
extending an existing Lien over additional property, by the Administrative Agent
and the Borrower, (2) in the case of any other waiver or consent, by the
Required Lenders (or by the Administrative Agent with the consent of the
Required Lenders) and (3) in the case of any other amendment, by the Required
Lenders (or by the Administrative Agent with the consent of the Required
Lenders) and the Borrower; provided, however, that no amendment, consent or
waiver described in clause (2) or (3) above shall, unless in writing and signed
by each Lender directly affected thereby (or by the Administrative Agent with
the consent of such Lender), in addition to any other Person the signature of
which is otherwise required pursuant to any Loan Document, do any of the
following:
(i) waive any condition specified in Section 3.1, except any
condition referring to any other provision of any Loan Document;
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(ii) increase the Commitment of such Lender or subject such
Lender to any additional obligation; provided, that increases in
the aggregate amount of the Commitments shall only require the
consent of the Required Lenders and each Lender providing such
increase in the Commitments;
(iii) reduce (including through release, forgiveness,
assignment or otherwise) (A) the principal amount of, the
interest rate on, or any obligation of the Borrower to repay
(whether or not on a fixed date), any outstanding Loan owing to
such Lender, (B) any fee or accrued interest payable to such
Lender or (C) any L/C Reimbursement Obligation or any obligation
of the Borrower to repay (whether or not on a fixed date) any L/C
Reimbursement Obligation; provided, however, that this clause
(iii) does not apply to any change to any provision increasing
any interest rate or fee during the continuance of an Event of
Default or to any payment of any such increase;
(iv) waive or postpone any scheduled maturity date or other
scheduled date fixed for the payment, in whole or in part, of
principal of or interest on any Loan or fee owing to such Lender
or for the reduction of such Lender's Commitment; provided,
however, that this clause (iv) does not apply to any change to
mandatory prepayments, including those required under Section
2.1(c) and Section 2.8, or to the application of any payment,
including as set forth in Section 2.12;
(v) except as provided in Section 10.10, release all or
substantially all of the Collateral or any Guarantor from its
guaranty of any Obligation of the Borrower;
(vi) reduce or increase the proportion of Lenders required
for the Lenders (or any subset thereof) to take any action
hereunder or change the definition of the terms "Required
Lenders", "Pro Rata Share" or "Pro Rata Outstandings"; or
(vii) amend Section 10.10 (Release of Collateral or
Guarantor), Section 11.9 (Sharing of Payments) or this Section
11.1;
and provided, further, that (x) no amendment, waiver or consent shall affect the
rights or duties under any Loan Document of, or any payment to, the
Administrative Agent (or otherwise modify any provision of Article X or the
application thereof), the Swingline Lender, any L/C Issuer or any SPV that has
been granted an option pursuant to Section 11.2(f) unless in writing and signed
by the Administrative Agent, the Swingline Lender, such L/C Issuer or, as the
case may be, such SPV in addition to any signature otherwise required, (y) the
consent of the Borrower shall not be required to change any order of priority
set forth in Section 2.12 and (z) no amendment or modification of Section 2.1(b)
or Section 2.1(c) that increases the amount of Overadvances that may be
outstanding at any time shall be effective unless signed by the Supermajority
Lenders. No amendment, modification or waiver of this Agreement or any Loan
Document altering the ratable treatment of Obligations arising under Secured
Hedging Agreement resulting in such Obligations being junior in right of payment
to principal of the Loans or resulting in Obligations owing to any Secured
Hedging Counterparty being unsecured (other than releases of Liens in accordance
with the terms hereof), in each case in a manner adverse to any Secured Hedging
Counterparty, shall be effective without the written consent of such Secured
Hedging Counterparty or, in the case of a Secured Hedging Agreement provided or
arranged by the Administrative Agent or an Affiliate thereof, the Administrative
Agent.
(b) Each waiver or consent under any Loan Document shall be
effective only in the specific instance and for the specific purpose for which
it was given. No notice to or demand on any Loan Party shall entitle any Loan
Party to any notice or demand in the same, similar or other circumstances. No
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failure on the part of any Secured Party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right.
Section 11.2 Assignments and Participations; Binding Effect(a)
.. (a) Binding Effect. This Agreement shall become effective when it shall have
been executed by the Borrower and the Administrative Agent and when the
Administrative Agent shall have been notified by each Lender and L/C Issuer that
such Lender or L/C Issuer has executed it. Thereafter, it shall be binding upon
and inure to the benefit of, but only to the benefit of, the Borrower (in each
case except for Article X), the Administrative Agent, each Lender and L/C Issuer
and, to the extent provided in Section 10.11, each other Indemnitee and Secured
Party and, in each case, their respective successors and permitted assigns.
Except as expressly provided in any Loan Document (including in Section 10.9),
none of the Borrower, any L/C Issuer or the Administrative Agent shall have the
right to assign any rights or obligations hereunder or any interest herein.
(b) Right to Assign. Each Lender may sell, transfer, negotiate
or assign all or a portion of its rights and obligations hereunder (including
all or a portion of its Commitments and its rights and obligations with respect
to Loans and Letters of Credit) to (i) any existing Lender, (ii) any Affiliate
or Approved Fund of any existing Lender or (iii) any other Person acceptable
(which acceptance shall not be unreasonably withheld or delayed) to the
Administrative Agent and, as long as no Event of Default is continuing, the
Borrower; provided, however, that (x) such Sales must be ratable among the
obligations owing to and owed by such Lender with respect to the Revolving
Credit Facility and (y) the aggregate outstanding principal amount (determined
as of the effective date of the applicable Assignment) of the Loans, Commitments
and L/C Obligations subject to any such Sale shall be in a minimum amount of
$5,000,000, unless such Sale is made to an existing Lender or an Affiliate or
Approved Fund of any existing Lender, is of the assignor's (together with its
Affiliates and Approved Funds) entire interest in the Revolving Credit Facility
or is made with the prior consent of the Borrower and the Administrative Agent.
(c) Procedure. The parties to each Sale made in reliance on
clause (b) above (other than those described in clause (e) or (f) below) shall
execute and deliver to the Administrative Agent an Assignment via an electronic
settlement system designated by the Administrative Agent (or if previously
agreed with the Administrative Agent, via a manual execution and delivery of the
assignment) evidencing such Sale, together with any existing Note subject to
such Sale (or any affidavit of loss therefor acceptable to the Administrative
Agent), any tax forms required to be delivered pursuant to Section 2.17(f) and
payment of an assignment fee in the amount of $3,500, provided that (1) if a
Sale by a Lender is made to an Affiliate or an Approved Fund of such assigning
Lender, then no assignment fee shall be due in connection with such Sale, and
(2) if a Sale by a Lender is made to an assignee that is not an Affiliate or
Approved Fund of such assignor Lender, and concurrently to one or more
Affiliates or Approved Funds of such assignee, then only one assignment fee of
$3,500 shall be due in connection with such Sale. Upon receipt of all the
foregoing, and conditioned upon such receipt and, if such assignment is made in
accordance with Section 11.2(b)(iii), upon the Administrative Agent (and the
Borrower, if applicable) consenting to such Assignment, from and after the
effective date specified in such Assignment, the Administrative Agent shall
record or cause to be recorded in the Register the information contained in such
Assignment.
(d) Effectiveness. Subject to the recording of an Assignment
by the Administrative Agent in the Register pursuant to Section 2.14(b), (i) the
assignee thereunder shall become a party hereto and, to the extent that rights
and obligations under the Loan Documents have been assigned to such assignee
pursuant to such Assignment, shall have the rights and obligations of a Lender,
(ii) any applicable Note shall be transferred to such assignee through such
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entry and (iii) the assignor thereunder shall, to the extent that rights and
obligations under this Agreement have been assigned by it pursuant to such
Assignment, relinquish its rights (except for those surviving the termination of
the Commitments and the payment in full of the Obligations) and be released from
its obligations under the Loan Documents, other than those relating to events or
circumstances occurring prior to such assignment (and, in the case of an
Assignment covering all or the remaining portion of an assigning Lender's rights
and obligations under the Loan Documents, such Lender shall cease to be a party
hereto except that each Lender agrees to remain bound by Article X, Section 11.8
(Right of Setoff) and Section 11.9 (Sharing of Payments) to the extent provided
in Section 10.11 (Additional Secured Parties)).
(e) Grant of Security Interests. In addition to the other
rights provided in this Section 11.2, each Lender may grant a security interest
in, or otherwise assign as collateral, any of its rights under this Agreement,
whether now owned or hereafter acquired (including rights to payments of
principal or interest on the Loans), to (A) any federal reserve bank (pursuant
to Regulation A of the Federal Reserve Board), without notice to the
Administrative Agent or (B) any holder of, or trustee for the benefit of the
holders of, such Lender's Securities by notice to the Administrative Agent;
provided, however, that no such holder or trustee, whether because of such grant
or assignment or any foreclosure thereon (unless such foreclosure is made
through an assignment in accordance with clause (b) above), shall be entitled to
any rights of such Lender hereunder and no such Lender shall be relieved of any
of its obligations hereunder.
(f) Participants and SPVs. In addition to the other rights
provided in this Section 11.2, each Lender may, (x) with notice to the
Administrative Agent, grant to an SPV the option to make all or any part of any
Loan that such Lender would otherwise be required to make hereunder (and the
exercise of such option by such SPV and the making of Loans pursuant thereto
shall satisfy the obligation of such Lender to make such Loans hereunder) and
such SPV may assign to such Lender the right to receive payment with respect to
any Obligation and (y) without notice to or consent from the Administrative
Agent or the Borrower, sell participations to one or more Persons in or to all
or a portion of its rights and obligations under the Loan Documents (including
all its rights and obligations with respect to the Revolving Loans and Letters
of Credit); provided, however, that, whether as a result of any term of any Loan
Document or of such grant or participation, (i) no such SPV or participant shall
have a commitment, or be deemed to have made an offer to commit, to make Loans
hereunder, and, except as provided in the applicable option agreement, none
shall be liable for any obligation of such Lender hereunder, (ii) such Lender's
rights and obligations, and the rights and obligations of the Loan Parties and
the Secured Parties towards such Lender, under any Loan Document shall remain
unchanged and each other party hereto shall continue to deal solely with such
Lender, which shall remain the holder of the Obligations in the Register, except
that (A) each such participant and SPV shall be entitled to the benefit of
Sections 2.16 (Breakage Costs; Increased Costs; Capital Requirements) and 2.17
(Taxes), but only to the extent such participant or SPV delivers the tax forms
such Lender is required to collect pursuant to Section 2.17(f) and then only to
the extent of any amount to which such Lender would be entitled in the absence
of any such grant or participation and (B) each such SPV may receive other
payments that would otherwise be made to such Lender with respect to Loans
funded by such SPV to the extent provided in the applicable option agreement and
set forth in a notice provided to the Administrative Agent by such SPV and such
Lender, provided, however, that in no case (including pursuant to clause (A) or
(B) above) shall an SPV or participant have the right to enforce any of the
terms of any Loan Document, and (iii) the consent of such SPV or participant
shall not be required (either directly, as a restraint on such Lender's ability
to consent hereunder or otherwise) for any amendments, waivers or consents with
respect to any Loan Document or to exercise or refrain from exercising any
powers or rights such Lender may have under or in respect of the Loan Documents
(including the right to enforce or direct enforcement of the Obligations),
except for those described in clauses (iii) and (iv) of Section 11.1(a) with
respect to amounts, or dates fixed for payment of amounts, to which such
participant or SPV would otherwise be entitled and, in the case of participants,
except for those described in Section 11.1(a)(v) (or amendments, consents and
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waivers with respect to Section 10.10 to release all or substantially all of the
Collateral). No party hereto shall institute (and each of the Borrower shall
cause each other Loan Party not to institute) against any SPV grantee of an
option pursuant to this clause (f) any bankruptcy, reorganization, insolvency,
liquidation or similar proceeding, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper of such SPV;
provided, however, that each Lender having designated an SPV as such agrees to
indemnify each Indemnitee against any Liability that may be incurred by, or
asserted against, such Indemnitee as a result of failing to institute such
proceeding (including a failure to get reimbursed by such SPV for any such
Liability). The agreement in the preceding sentence shall survive the
termination of the Commitments and the payment in full of the Obligations.
Section 11.3 Costs and Expenses. Any action taken by any Loan
Party under or with respect to any Loan Document, even if required under any
Loan Document or at the request of any Secured Party, shall be at the expense of
such Loan Party, and no Secured Party shall be required under any Loan Document
to reimburse any Loan Party or Group Member therefor except as expressly
provided therein. In addition, the Borrower agrees to pay or reimburse upon
demand (a) the Administrative Agent for all reasonable out-of-pocket costs and
expenses incurred by it or any of its Related Persons in connection with the
investigation, development, preparation, negotiation, syndication, execution,
interpretation or administration of, any modification of any term of or
termination of, any Loan Document, any commitment or proposal letter therefor,
any other document prepared in connection therewith or the consummation and
administration of any transaction contemplated therein (including periodic
audits and appraisals in connection therewith and environmental audits and
assessments), in each case including the reasonable fees, charges and
disbursements of legal counsel to the Administrative Agent or such Related
Persons, reasonable fees, costs and expenses incurred in connection with
Intralinks(R) or any other E-System and reasonable fees, charges and
disbursements of the auditors, appraisers, printers and other of their Related
Persons retained by or on behalf of any of them or any of their Related Persons,
(b) the Administrative Agent for all reasonable costs and expenses incurred by
it or any of its Related Persons in connection with internal audit reviews,
field examinations and Collateral examinations (which shall be reimbursed, in
addition to the reasonable out-of-pocket costs and expenses of such examiners,
at the per diem rate per individual charged by the Administrative Agent for its
examiners) and (c) each of the Administrative Agent, its Related Persons, and
each Lender and L/C Issuer for all costs and expenses incurred in connection
with (i) any refinancing or restructuring of the credit arrangements provided
hereunder in the nature of a "work-out", (ii) the enforcement or preservation of
any right or remedy under any Loan Document, any Obligation, with respect to the
Collateral or any other related right or remedy or (iii) the commencement,
defense, conduct of, intervention in, or the taking of any other action with
respect to, any proceeding (including any bankruptcy or insolvency proceeding)
related to any Group Member, Loan Document, Obligation or Related Transaction
(or the response to and preparation for any subpoena or request for document
production relating thereto), including fees and disbursements of counsel,
limited, solely in the case of Lenders other than the Administrative Agent, to
one legal counsel.
Section 11.4 Indemnities(a) . (a) The Borrower agrees to
indemnify, hold harmless and defend the Administrative Agent, each Lender, each
L/C Issuer, each Secured Hedging Counterparty, each Person that each L/C Issuer
causes to Issue Letters of Credit hereunder and each of their respective Related
Persons (each such Person being an "Indemnitee") from and against all
Liabilities (including brokerage commissions, fees and other compensation) that
may be imposed on, incurred by or asserted against any such Indemnitee in any
matter relating to or arising out of, in connection with or as a result of (i)
any Loan Document, any Related Document, any Disclosure Document, any Obligation
(or the repayment thereof), any Letter of Credit, the use or intended use of the
proceeds of any Loan or the use of any Letter of Credit, any Related
Transaction, or any securities filing of, or with respect to, any Group Member,
(ii) any commitment letter, proposal letter or term sheet with any Person or any
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Contractual Obligation, arrangement or understanding with any broker, finder or
consultant, in each case entered into by or on behalf of any Group Member or any
Affiliate of any of them in connection with any of the foregoing and any
Contractual Obligation entered into in connection with any E-Systems or other
Electronic Transmissions, (iii) any actual or prospective investigation,
litigation or other proceeding, whether or not brought by any such Indemnitee or
any of its Related Persons, any holders of Securities or creditors (and
including attorneys' fees in any case), whether or not any such Indemnitee,
Related Person, holder or creditor is a party thereto, and whether or not based
on any securities or commercial law or regulation or any other Requirement of
Law or theory thereof, including common law, equity, contract, tort or
otherwise, or (iv) any other act, event or transaction related, contemplated in
or attendant to any of the foregoing (collectively, the "Indemnified Matters");
provided, however, that the Borrower shall not have any liability under this
Section 11.4 to any Indemnitee with respect to any Indemnified Matter, and no
Indemnitee shall have any liability with respect to any Indemnified Matter other
than (to the extent otherwise liable), to the extent such liability has resulted
primarily from the gross negligence, bad faith or willful misconduct of such
Indemnitee, as determined by a court of competent jurisdiction in a final
non-appealable judgment or order. Furthermore, the Borrower waives and agrees
not to assert against any Indemnitee, and shall cause each other Loan Party to
waive and not assert against any Indemnitee, any right of contribution with
respect to any Liabilities that may be imposed on, incurred by or asserted
against any Related Person.
(b) Without limiting the foregoing, "Indemnified Matters"
includes all Environmental Liabilities, including those arising from, or
otherwise involving, any property of any Related Person or any actual, alleged
or prospective damage to property or natural resources or harm or injury alleged
to have resulted from any Release of Hazardous Materials on, upon or into such
property or natural resource or any property on or, to the extent caused or
alleged to have been caused by any Related Person, contiguous to any real
property of any Related Person, whether or not, with respect to any such
Environmental Liabilities, any Indemnitee is a mortgagee pursuant to any
leasehold mortgage, a mortgagee in possession, the successor-in-interest to any
Related Person or the owner, lessee or operator of any property of any Related
Person through any foreclosure action, in each case except to the extent such
Environmental Liabilities (i) are incurred solely following foreclosure by any
Secured Party or following any Secured Party having become the
successor-in-interest to any Loan Party and (ii) are attributable solely to acts
of such Indemnitee.
Section 11.5 Survival. Any indemnification or other protection
provided to any Indemnitee pursuant to any Loan Document (including pursuant to
Section 2.17 (Taxes), Section 2.16 (Breakage Costs; Increased Costs; Capital
Requirements), Article X (The Administrative Agent), Section 11.3 (Costs and
Expenses), Section 11.4 (Indemnities) or this Section 11.5) and all
representations and warranties made in any Loan Document shall (A) survive the
termination of the Commitments and the payment in full of other Obligations and
(B) inure to the benefit of any Person that at any time held a right thereunder
(as an Indemnitee or otherwise) and, thereafter, its successors and permitted
assigns.
Section 11.6 Limitation of Liability for Certain Damages. In
no event shall any Indemnitee be liable on any theory of liability for any
special, indirect, consequential or punitive damages (including any loss of
profits, business or anticipated savings). The Borrower hereby waives, releases
and agrees (and shall cause each other Loan Party to waive, release and agree)
not to xxx upon any such claim for any special, indirect, consequential or
punitive damages, whether or not accrued and whether or not known or suspected
to exist in its favor.
Section 11.7 Lender-Debtor Relationship. The relationship
between the Lenders, the L/C Issuers and the Administrative Agent, on the one
hand, and the Loan Parties, on the other hand, is solely that of lender and
debtor. No Secured Party has any fiduciary relationship or duty to any Loan
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[DAYTON SUPERIOR CORPORATION]
87
Party arising out of or in connection with, and there is no agency, tenancy or
joint venture relationship between the Secured Parties and the Loan Parties by
virtue of, any Loan Document or any transaction contemplated therein.
Section 11.8 Right of Setoff. Each of the Administrative
Agent, each Lender, each L/C Issuer and each Affiliate (including each branch
office thereof) of any of them is hereby authorized, without notice or demand
(each of which is hereby waived by the Borrower), at any time and from time to
time during the continuance of any Event of Default and to the fullest extent
permitted by applicable Requirements of Law, to set off and apply any and all
deposits (whether general or special, time or demand, provisional or final) at
any time held and other Indebtedness, claims or other obligations at any time
owing by the Administrative Agent, such Lender, such L/C Issuer or any of their
respective Affiliates to or for the credit or the account of the Borrower
against any Obligation of any Loan Party now or hereafter existing, whether or
not any demand was made under any Loan Document with respect to such Obligation
and even though such Obligation may be unmatured. Each of the Administrative
Agent, each Lender and each L/C Issuer agrees promptly to notify the Borrower
and the Administrative Agent after any such setoff and application made by such
Lender or its Affiliates; provided, however, that the failure to give such
notice shall not affect the validity of such setoff and application. The rights
under this Section 11.8 are in addition to any other rights and remedies
(including other rights of setoff) that the Administrative Agent, the Lenders
and the L/C Issuers and their Affiliates and other Secured Parties may have.
Section 11.9 Sharing of Payments, Etc. If any Lender, directly
or through an Affiliate or branch office thereof, obtains any payment of any
Obligation of any Loan Party (whether voluntary, involuntary or through the
exercise of any right of setoff or the receipt of any Collateral or "proceeds"
(as defined under the applicable UCC) of Collateral) other than pursuant to
Sections 2.16 (Breakage Costs; Increased Costs; Capital Requirements), 2.17
(Taxes) and 2.18 (Substitution of Lenders) and such payment exceeds the amount
such Lender would have been entitled to receive if all payments had gone to, and
been distributed by, the Administrative Agent in accordance with the provisions
of the Loan Documents, such Lender shall purchase for cash from other Secured
Parties such participations in their Obligations as necessary for such Lender to
share such excess payment with such Secured Parties to ensure such payment is
applied as though it had been received by the Administrative Agent and applied
in accordance with this Agreement (or, if such application would then be at the
discretion of the Borrower, applied to repay the Obligations in accordance
herewith); provided, however, that (a) if such payment is rescinded or otherwise
recovered from such Lender or L/C Issuer in whole or in part, such purchase
shall be rescinded and the purchase price therefor shall be returned to such
Lender or L/C Issuer without interest and (b) such Lender shall, to the fullest
extent permitted by applicable Requirements of Law, be able to exercise all its
rights of payment (including the right of setoff) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
Section 11.10 Marshaling; Payments Set Aside. No Secured Party
shall be under any obligation to marshal any property in favor of any Loan Party
or any other party or against or in payment of any Obligation. To the extent
that any Secured Party receives a payment from the Borrower, from the proceeds
of the Collateral, from the exercise of its rights of setoff, any enforcement
action or otherwise, and such payment is subsequently, in whole or in part,
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 occurred.
Section 11.11 Notices(a) . (a) Addresses. All notices,
demands, requests, directions and other communications required or expressly
authorized to be made by this Agreement shall, whether or not specified to be in
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[DAYTON SUPERIOR CORPORATION]
88
writing but unless otherwise expressly specified to be given by any other means,
be given in writing and (i) addressed to (A) if to the Borrower, to 0000
Xxxxxxxxxx Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxx 00000, Attention: Xxxxxx X.
Xxxxxx, Fax: (000) 000-0000, with copy to Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxxxx, Fax: (212)
000-0000, (B) if to the Administrative Agent or the Swingline Lender, to General
Electric Capital Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, CFN
8845, Attention: Xxxx Xxxxxxx, Fax: (000) 000-0000, with copy to King & Spalding
LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X.
Xxxxxx, Fax: (000) 000-0000 and (C) otherwise to the party to be notified at its
address on the signature page of any applicable Assignment, (ii) posted to
Intralinks(R) (to the extent such system is available and set up by or at the
direction of the Administrative Agent prior to posting) in an appropriate
location by uploading such notice, demand, request, direction or other
communication to xxx.xxxxxxxxxx.xxx, faxing it to 000-000-0000 with an
appropriate bar-coded fax coversheet or using such other means of posting to
Intralinks(R) as may be available and reasonably acceptable to the
Administrative Agent prior to such posting, (iii) posted to any other E-System
set up by or at the direction of the Administrative Agent in an appropriate
location or (iv) addressed to such other address as shall be notified in writing
(A) in the case of the Borrower, the Administrative Agent and the Swingline
Lender, to the other parties hereto and (B) in the case of all other parties, to
the Borrower and the Administrative Agent. Transmission by electronic mail
(including E-Fax, even if transmitted to the fax numbers set forth in clause (i)
above) shall not be sufficient or effective to transmit any such notice under
this clause (a) unless such transmission is an available means to post to any
E-System.
(b) Effectiveness. All communications described in clause (a)
above and all other notices, demands, requests and other communications made in
connection with this Agreement shall be effective and be deemed to have been
received (i) if delivered by hand, upon personal delivery, (ii) if delivered by
overnight courier service, one Business Day after delivery to such courier
service, (iii) if delivered by mail, when deposited in the mails, (iv) if
delivered by facsimile (other than to post to an E-System pursuant to clause
(a)(ii) or (a)(iii) above), upon sender's receipt of confirmation of proper
transmission, and (v) if delivered by posting to any E-System, on the later of
the date of such posting in an appropriate location and the date access to such
posting is given to the recipient thereof in accordance with the standard
procedures applicable to such E-System; provided, however, that no
communications to the Administrative Agent pursuant to Article II or Article X
shall be effective until received by the Administrative Agent.
Section 11.12 Electronic Transmissions(a) . (a) Authorization.
Subject to the provisions of Section 11.11(a), each of the Administrative Agent,
the Borrower, the Lenders, the L/C Issuers and each of their Related Persons is
authorized (but not required) to transmit, post or otherwise make or
communicate, in its sole discretion, Electronic Transmissions in connection with
any Loan Document and the transactions contemplated therein. Each of the
Borrower and each other Group Member and each Secured Party hereby acknowledges
and agrees that the use of Electronic Transmissions is not necessarily secure
and that there are risks associated with such use, including risks of
interception, disclosure and abuse and each indicates it assumes and accepts
such risks by hereby authorizing the transmission of Electronic Transmissions.
(b) Signatures. Subject to the provisions of Section 11.11(a),
(i)(A) no posting to any E-System shall be denied legal effect merely because it
is made electronically, (B) each E-Signature on any such posting shall be deemed
sufficient to satisfy any requirement for a "signature" and (C) each such
posting shall be deemed sufficient to satisfy any requirement for a "writing",
in each case including pursuant to any Loan Document, any applicable provision
of any UCC, the federal Uniform Electronic Transactions Act, the Electronic
Signatures in Global and National Commerce Act and any substantive or procedural
Requirement of Law governing such subject matter, (ii) each such posting that is
not readily capable of bearing either a signature or a reproduction of a
signature may be signed, and shall be deemed signed, by attaching to, or
REVOLVING CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
89
logically associating with such posting, an E-Signature, upon which each Secured
Party and Loan Party may rely and assume the authenticity thereof, (iii) each
such posting containing a signature, a reproduction of a signature or an
E-Signature shall, for all intents and purposes, have the same effect and weight
as a signed paper original and (iv) each party hereto or beneficiary hereto
agrees not to contest the validity or enforceability of any posting on any
E-System or E-Signature on any such posting under the provisions of any
applicable Requirement of Law requiring certain documents to be in writing or
signed; provided, however, that nothing herein shall limit such party's or
beneficiary's right to contest whether any posting to any E-System or
E-Signature has been altered after transmission.
(c) Separate Agreements. All uses of an E-System shall be
governed by and subject to, in addition to Section 11.11 and this Section 11.12,
separate terms and conditions posted or referenced in such E-System and related
Contractual Obligations executed by Secured Parties and Group Members in
connection with the use of such E-System.
(d) Limitation of Liability. All E-Systems and Electronic
Transmissions shall be provided "as is" and "as available". None of
Administrative Agent or any of its Related Persons warrants the accuracy,
adequacy or completeness of any E-Systems or Electronic Transmission, and each
disclaims all liability for errors or omissions therein. No Warranty of any kind
is made by the Administrative Agent or any of its Related Persons in connection
with any E-Systems or Electronic Communication, including any warranty of
merchantability, fitness for a particular purpose, non-infringement of
third-party rights or freedom from viruses or other code defects. Each of the
Borrower and each other Loan Party and each Secured Party agrees that the
Administrative Agent has no responsibility for maintaining or providing any
equipment, software, services or any testing required in connection with any
Electronic Transmission or otherwise required for any E-System.
Section 11.13 Governing Law. This Agreement, each other Loan
Document that does not expressly set forth its applicable law, and the rights
and obligations of the parties hereto and thereto shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
Section 11.14 Jurisdiction(a) . (a) Submission to
Jurisdiction. Any legal action or proceeding with respect to any Loan Document
may be brought in the courts of the State of New York located in the City of New
York, Borough of Manhattan, or of the United States for the Southern District of
New York and, by execution and delivery of this Agreement, the Borrower hereby
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The parties hereto
(and, to the extent set forth in any other Loan Document, each other Loan Party)
hereby irrevocably waive any objection, including any objection to the laying of
venue or based on the grounds of forum non conveniens, that any of them may now
or hereafter have to the bringing of any such action or proceeding in such
jurisdictions.
(b) Service of Process. The Borrower (and, to the extent set
forth in any other Loan Document, each other Loan Party) hereby irrevocably
waives personal service of any and all legal process, summons, notices and other
documents and other service of process of any kind and consents to such service
in any suit, action or proceeding brought in the United States with respect to
or otherwise arising out of or in connection with any Loan Document by any means
permitted by applicable Requirements of Law, including by the mailing thereof
(by registered or certified mail, postage prepaid) to the address of the
Borrower specified in Section 11.11 (and shall be effective when such mailing
shall be effective, as provided therein). The Borrower (and, to the extent set
forth in any other Loan Document, each other Loan Party) 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.
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[DAYTON SUPERIOR CORPORATION]
90
(c) Non-Exclusive Jurisdiction. Nothing contained in this
Section 11.14 shall affect the right of the Administrative Agent or any Lender
to serve process in any other manner permitted by applicable Requirements of Law
or commence legal proceedings or otherwise proceed against any Loan Party in any
other jurisdiction.
Section 11.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT
TO, OR DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH, ANY
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREIN OR RELATED THERETO
(WHETHER FOUNDED IN CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO OTHER PARTY AND NO RELATED PERSON OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THE LOAN
DOCUMENTS, AS APPLICABLE, BY THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 11.15.
Section 11.16 Severability. Any provision of any Loan Document
being held illegal, invalid or unenforceable in any jurisdiction shall not
affect any part of such provision not held illegal, invalid or unenforceable,
any other provision of any Loan Document or any part of such provision in any
other jurisdiction.
Section 11.17 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Signature pages may be detached from multiple separate counterparts and attached
to a single counterpart. Delivery of an executed signature page of this
Agreement by facsimile transmission or Electronic Transmission shall be as
effective as delivery of a manually executed counterpart hereof.
Section 11.18 Entire Agreement. The Loan Documents embody the
entire agreement of the parties and supersede all prior agreements and
understandings relating to the subject matter thereof and any prior letter of
interest, commitment letter, fee letter, confidentiality and similar agreements
involving any Loan Party and any of the Administrative Agent, any Lender or any
L/C Issuer or any of their respective Affiliates relating to a financing of
substantially similar form, purpose or effect. In the event of any conflict
between the terms of this Agreement and any other Loan Document, the terms of
this Agreement shall govern (unless such terms of such other Loan Documents are
necessary to comply with applicable Requirements of Law, in which case such
terms shall govern to the extent necessary to comply therewith).
Section 11.19 Use of Name. The Borrower agrees, and shall
cause each other Loan Party to agree, that it shall not, and none of its
Affiliates shall, issue any press release or other public disclosure (other than
any document filed with any Governmental Authority relating to a public offering
of the Securities of any Loan Party) using the name, logo or otherwise referring
to GE Capital or of any of its Affiliates, the Loan Documents or any transaction
contemplated therein to which the Secured Parties are party without at least 2
Business Days' prior notice to GE Capital and without the prior consent of GE
Capital except to the extent required to do so under applicable Requirements of
Law and then, only after consulting with GE Capital prior thereto.
Section 11.20 Non-Public Information; Confidentiality(a) . (a)
Each Lender and L/C Issuer and the Administrative Agent acknowledges and agrees
that it may receive material non-public information hereunder concerning the
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[DAYTON SUPERIOR CORPORATION]
91
Loan Parties and their Affiliates and Securities and agrees to use such
information in compliance with all relevant policies, procedures and Contractual
Obligations and applicable Requirements of Laws (including United States federal
and state security laws and regulations).
(b) Each Lender, L/C Issuer and the Administrative Agent
agrees to use all reasonable efforts to maintain, in accordance with its
customary practices, the confidentiality of information obtained by it pursuant
to any Loan Document and designated in writing by any Loan Party as
confidential, except that such information may be disclosed (i) with the
Borrower's consent, (ii) to Related Persons of such Lender, L/C Issuer or the
Administrative Agent, as the case may be, or to any Person that any L/C Issuer
causes to Issue Letters of Credit hereunder, that are advised of the
confidential nature of such information and are instructed to keep such
information confidential, (iii) to the extent such information presently is or
hereafter becomes available to such Lender, L/C Issuer or the Administrative
Agent, as the case may be, on a non-confidential basis from a source other than
any Loan Party, (iv) to the extent disclosure is required by applicable
Requirements of Law or other legal process or requested or demanded by any
Governmental Authority; provided that, unless prohibited by applicable
Requirements of Law or by the rules governing the process requiring such
disclosure, (x) it will promptly notify the Borrower of the existence, terms and
circumstances surrounding such requirement, (y) it will consult with the
Borrower on the advisability of taking legally available steps to resist or
narrow such requirement, and (z) it will identify to the Borrower any such
information which is legally required to be disclosed, (v) to the extent
necessary or customary for inclusion in league table measurements or in any
tombstone or other advertising materials (and the Loan Parties consent to the
publication of such tombstone or other advertising materials by the
Administrative Agent, any Lender, any L/C Issuer or any of their Related
Persons), (vi) to the National Association of Insurance Commissioners or any
similar organization, any examiner or any nationally recognized rating agency in
each case to the extent required by such examiner, association, organization or
agency in connection with the administration of the Loans, regulatory
examinations or ratings or proposed rating of the Loans or otherwise to the
extent consisting of general portfolio information that does not identify any
Loan Party or any of their Subsidiaries, (vii) to current or prospective
assignees, SPVs grantees of any option described in Section 11.2(f) or
participants, direct or contractual counterparties to any Hedging Agreement
permitted hereunder and to their respective Related Persons, in each case to the
extent such assignees, participants, counterparties or Related Persons agree to
be bound by provisions substantially similar to the provisions of this Section
11.20 and (viii) in connection with the exercise of any remedy under any Loan
Document. In the event of any conflict between the terms of this Section 11.20
and those of any other Contractual Obligation entered into with any Loan Party
(whether or not a Loan Document), the terms of this Section 11.20 shall govern.
Section 11.21 Patriot Act Notice. Each Lender subject to the
USA Patriot Act of 2001 (31 U.S.C. 5318 et seq.) hereby notifies the Borrower
that, pursuant to Section 326 thereof, it is required to obtain, verify and
record information that identifies the Borrower, including the name and address
of the Borrower and other information allowing such Lender to identify the
Borrower in accordance with such Act.
[SIGNATURE PAGES FOLLOW]
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[DAYTON SUPERIOR CORPORATION]
92
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
DAYTON SUPERIOR CORPORATION,
as the Borrower
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
DAYTON SUPERIOR CANADA LTD.,
as a Group Member (as to Section 11.12)
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
GENERAL ELECTRIC CAPITAL
CORPORATION, as Administrative Agent, L/C
Issuer, Swingline Lender and Lender
By: Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
SCHEDULE I
COMMITMENTS
------------------------------------------------------------- ------------------
Lender Commitment
------------------------------------------------------------- ------------------
General Electric Capital Corporation $150,000,000.00
------------------------------------------------------------- ------------------
Total $150,000,000.00
------------------------------------------------------------- ------------------
SCHEDULE II
DAYTON SUPERIOR CORPORATION
CONTINUING LETTERS OF CREDIT
----------------------------------------------------------------------------------------------------------------------------------
Initial Issue Expiration Original ----------- ------------
Beneficiary LOC # Purpose Type Date Date LOC Amount 1/25/2008 2/22/2008
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
The Travelers SM208537W Workers' Irrevocable Standby 6/10/2004 4/12/2008 6,000,000 6,000,000 6,000,000
Indeminity Company Compensation
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Hickory Partners, SE444357W Facility Lease Irrevocable Standby 6/9/2004 6/24/2008 385,000 385,000 385,000
LLC
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
STAG II Aurora SE445727W Facility Lease Irrevocable Standby 10/27/2005 10/12/2008 140,650 140,650 140,650
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
STAG II Kansas City SE445729W Facility Lease Irrevocable Standby 10/27/2005 10/12/2008 87,300 87,300 87,300
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
STAG II Miamisburg SE445728W Facility Lease Irrevocable Standby 10/27/2005 10/12/2008 164,900 164,900 164,900
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
STAG II Xxxxxxx SE445726W Facility Lease Irrevocable Standby 10/27/2005 10/12/2008 92,150 92,150 92,150
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
TIAA Elk Grove SE447000W Facility Lease Irrevocable Standby 1/5/2007 12/31/2008 2,439,108 2,439,108 2,439,108
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Alsina Forms SE446146W Foreign Forms Irrevocable Standby 3/28/2006 3/31/2008 1,000,000 1,000,000 1,000,000
Company Purchase
----------------------------------------------------------------------------------------------------------------------------------
TOTALS 10,309,108 10,309,108 10,309,108
----------------------------------------------------------------------------------------------------------------------------------
