EXHIBIT 4.15
$250,000,000
Secured Super Priority
Debtor In Possession Credit Agreement
Dated as of April 15, 2002
among
Exide Technologies
And Certain Of Its Subsidiaries
As Debtors and Debtors in Possession,
as Borrowers
Certain Subsidiaries Of The Borrowers Party Hereto
As Domestic Guarantors
and
The Lenders And Issuers From Time To Time Party Hereto
and
Citicorp USA, Inc.
as Administrative Agent
and
Citicorp USA, Inc.
as Collateral Monitoring Agent
Xxxxxxx Xxxxx Xxxxxx Inc.
as Sole Book Manager and Lead Arranger
Citicorp USA, Inc.
as Arranger
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
TABLE OF CONTENTS
Article I Definitions, Interpretation And Accounting Terms ........................ 1
Section 1.1 Defined Terms ....................................................... 1
Section 1.2 Computation of Time Periods ......................................... 49
Section 1.3 Accounting Terms and Principles ..................................... 49
Section 1.4 Certain Terms ....................................................... 50
Article II The Facilities .......................................................... 51
Section 2.1 The Commitments ..................................................... 51
Section 2.2 Borrowing Procedures ................................................ 52
Section 2.3 Swing Loans ......................................................... 54
Section 2.4 Letters of Credit ................................................... 55
Section 2.5 Reduction and Termination of the Commitments ........................ 60
Section 2.6 Repayment of Loans .................................................. 61
Section 2.7 Evidence of Debt .................................................... 61
Section 2.8 Optional Prepayments ................................................ 61
Section 2.9 Mandatory Prepayments ............................................... 62
Section 2.10 Interest ............................................................ 65
Section 2.11 Conversion/Continuation Option ...................................... 65
Section 2.12 Fees ................................................................ 66
Section 2.13 Payments and Computations ........................................... 67
Section 2.14 Special Provisions Governing Eurodollar Rate Loans .................. 70
Section 2.15 Capital Adequacy .................................................... 72
Section 2.16 Taxes ............................................................... 72
Section 2.17 Cash Collateral Accounts ............................................ 75
Section 2.18 Substitution of Lenders ............................................. 75
Article III Conditions To Loans And Letters Of Credit ............................... 76
Section 3.1 Conditions Precedent to Initial Loans and Letters of Credit ......... 76
Section 3.2 Conditions Precedent to Each Loan and Letter of Credit .............. 81
Section 3.3 Determinations of Initial Borrowing Conditions ...................... 82
Article IV Representations and Warranties .......................................... 82
Section 4.1 Corporate Existence; Compliance with Law ............................ 83
Section 4.2 Corporate Power; Authorization; Enforceable Obligations ............. 83
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Section 4.3 Ownership of Borrowers; Subsidiaries ............................ 84
Section 4.4 Financial Statements ............................................ 84
Section 4.5 Material Adverse Change ......................................... 85
Section 4.6 Litigation ...................................................... 85
Section 4.7 Taxes ........................................................... 85
Section 4.8 Full Disclosure ................................................. 86
Section 4.9 Margin Regulations .............................................. 86
Section 4.10 No Burdensome Restrictions; No Defaults ......................... 86
Section 4.11 Investment Company Act; Public Utility Holding Company Act ...... 87
Section 4.12 Use of Proceeds ................................................. 87
Section 4.13 Insurance ....................................................... 88
Section 4.14 Labor Matters ................................................... 88
Section 4.15 ERISA ........................................................... 88
Section 4.16 Environmental Matters ........................................... 89
Section 4.17 Intellectual Property ........................................... 90
Section 4.18 Title; Real Property ............................................ 90
Section 4.19 Secured, Super Priority Obligations ............................. 91
Section 4.20 Title; No Other Liens ........................................... 91
Section 4.21 Pledged Collateral .............................................. 91
Section 4.22 Material Intellectual Property .................................. 92
Article V Financial Covenants ................................................. 93
Section 5.1 Minimum EBITDAR ................................................. 93
Section 5.2 Capital Expenditures ............................................ 94
Section 5.3 Maximum Cash Restructuring Costs ................................ 95
Article VI Reporting Covenants ................................................. 95
Section 6.1 Financial Statements ............................................ 96
Section 6.2 Default Notices ................................................. 98
Section 6.3 Litigation ...................................................... 98
Section 6.4 Asset Sales ..................................................... 98
Section 6.5 Notices under Pre-Petition Facility and Standstill Agreement..... 98
Section 6.6 SEC Filings; Press Releases ..................................... 98
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Section 6.7 Labor Relations ...................................... 99
Section 6.8 Tax Returns .......................................... 99
Section 6.9 Insurance ............................................ 99
Section 6.10 ERISA Matters ........................................ 99
Section 6.11 Environmental Matters ................................ 100
Section 6.12 Borrowing Base Determination ......................... 101
Section 6.13 Post-Closing Schedules ............................... 102
Section 6.14 Other Information .................................... 102
Article VII Affirmative Covenants .................................... 103
Section 7.1 Preservation of Corporate Existence, Etc. ............ 103
Section 7.2 Compliance with Laws, Etc. ........................... 103
Section 7.3 Conduct of Business .................................. 103
Section 7.4 Payment of Taxes, Etc. ............................... 103
Section 7.5 Maintenance of Insurance ............................. 103
Section 7.6 Access ............................................... 104
Section 7.7 Keeping of Books ..................................... 104
Section 7.8 Maintenance of Properties, Etc. ...................... 104
Section 7.9 Application of Proceeds .............................. 104
Section 7.10 Environmental ........................................ 105
Section 7.11 Approved Deposit Accounts; Blocked Accounts .......... 105
Section 7.12 Debt Rating .......................................... 106
Section 7.13 Bankruptcy Court ..................................... 106
Section 7.14 Plan of Reorganization ............................... 106
Section 7.15 Restricted Payment Requirement ....................... 106
Section 7.16 Filing of Interim Order .............................. 106
Section 7.17 Real Property ........................................ 106
Article VIII Negative Covenants ....................................... 106
Section 8.1 Indebtedness ......................................... 107
Section 8.2 Liens, Etc. .......................................... 109
Section 8.3 Investments .......................................... 110
Section 8.4 Sale of Assets ....................................... 111
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Section 8.5 Restricted Payments ................................. 112
Section 8.6 Prepayment and Cancellation of Indebtedness ......... 112
Section 8.7 Restriction on Fundamental Changes .................. 113
Section 8.8 Change in Nature of Business ........................ 113
Section 8.9 Transactions with Affiliates ........................ 113
Section 8.10 Limitations on Restrictions on Subsidiary
Distributions; No New Negative Pledge ..................... 114
Section 8.11 Modification of Constituent Documents ............... 114
Section 8.12 Accounts ............................................ 114
Section 8.13 Accounting Changes; Fiscal Year ..................... 115
Section 8.14 Margin Regulations .................................. 115
Section 8.15 Operating Leases; Sale/Leasebacks ................... 115
Section 8.16 No Speculative Transactions ......................... 115
Section 8.17 Compliance with ERISA ............................... 115
Section 8.18 Chapter 11 Claims ................................... 115
Section 8.19 The Orders .......................................... 116
Section 8.20 Employment Expenses ................................. 116
Section 8.21 Adequate Protection Payments ........................ 116
Article IX Events of Default ....................................... 116
Section 9.1 Events of Default ................................... 116
Section 9.2 Remedies ............................................ 119
Section 9.3 Actions in Respect of Letters of Credit ............. 119
Section 9.4 Rescission .......................................... 120
Article X Guaranty ................................................ 120
Section 10.1 The Guaranty ........................................ 120
Section 10.2 Nature of Liability ................................. 120
Section 10.3 Independent Obligation .............................. 121
Section 10.4 Authorization ....................................... 121
Section 10.5 Reliance ............................................ 122
Section 10.6 Subordination ....................................... 122
Section 10.7 Waiver .............................................. 122
Section 10.8 Limitation on Enforcement ........................... 123
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Article XI Security ............................................................... 123
Section 11.1 Security ........................................................... 123
Section 11.2 Perfection of Security Interests ................................... 125
Section 11.3 Rights of Lender; Limitations on Lenders' Obligations .............. 126
Section 11.4 Covenants of the Loan Parties with Respect to Collateral ........... 127
Section 11.5 Performance by Agent of the Grantors Obligations ................... 131
Section 11.6 Limitation on Agent's Duty in Respect of Collateral ................ 131
Section 11.7 Remedies, Rights Upon Default ...................................... 132
Section 11.8 The Administrative Agent's Appointment as Attorney-in-Fact ......... 134
Section 11.9 Modifications ...................................................... 135
Article XII The Administrative Agent ............................................... 136
Section 12.1 Authorization and Action ........................................... 136
Section 12.2 Administrative Agent's Reliance, Etc. .............................. 137
Section 12.3 The Administrative Agent Individually .............................. 137
Section 12.4 Lender Credit Decision ............................................. 138
Section 12.5 Indemnification .................................................... 138
Section 12.6 Successor Administrative Agent ..................................... 138
Section 12.7 Concerning the Collateral .......................................... 139
Section 12.8 Collateral Matters Relating to Related Obligations ................. 140
Article XIII Miscellaneous .......................................................... 141
Section 13.1 Amendments, Waivers, Etc. .......................................... 141
Section 13.2 Assignments and Participations ..................................... 142
Section 13.3 Costs and Expenses ................................................. 145
Section 13.4 Indemnities ........................................................ 146
Section 13.5 Limitation of Liability ............................................ 148
Section 13.6 Right of Set-off ................................................... 148
Section 13.7 Sharing of Payments, Etc. .......................................... 148
Section 13.8 Notices, Etc. ...................................................... 149
Section 13.9 No Waiver; Remedies ................................................ 150
Section 13.10 Binding Effect ..................................................... 150
Section 13.11 Governing Law ...................................................... 150
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Section 13.12 Submission to Jurisdiction; Service of Process ................ 150
Section 13.13 Waiver of Jury Trial .......................................... 151
Section 13.14 Marshaling; Payments Set Aside ................................ 151
Section 13.15 Section Titles ................................................ 151
Section 13.16 Execution in Counterparts ..................................... 152
Section 13.17 Entire Agreement .............................................. 152
Section 13.18 Confidentiality ............................................... 152
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SCHEDULES
Schedule I - Revolving Credit Commitments
Schedule II - Applicable Lending Offices and Addresses for Notices
Schedule III - Foreign LC Subsidiaries
Schedule IV - Maximum Restructuring Costs
Schedule V - Wholly-Owned Subsidiaries
Schedule 4.2 - Consents
Schedule 4.3 - Ownership of Subsidiaries
Schedule 4.6 - Litigation
Schedule 4.14 - Labor Matters
Schedule 4.15 - List of Plans
Schedule 4.16 - Environmental Matters
Schedule 4.18 - Real Property
Schedule 4.21 - Pledged Collateral
Schedule 4.22 - Material Intellectual Property
Schedule 6.12 - Appraised Values
Schedule 8.1 - Existing Indebtedness
Schedule 8.2 - Existing Liens
Schedule 8.3 - Existing Investments
Schedule 8.6 - Specified Foreign Indebtedness
Schedule 8.10 - Existing Restrictive Agreements
Exhibits
Exhibit A - Form of Assignment and Acceptance
Exhibit B-1 - Form of Revolving Credit Note
Exhibit B-2 - Form of Term Loan Note
Exhibit C - Form of Notice of Borrowing
Exhibit D - Form of Swing Loan Request
Exhibit E - Form of Letter of Credit Request
Exhibit F - Form of Notice of Conversion or Continuation
Exhibit G-1 - Form of Opinion of Counsel for the Company and its
Domestic Subsidiaries
Exhibit G-2 - Form of Opinion of Counsel for the Foreign Loan Parties
Exhibit H - Form of Borrowing Base Certificate
Exhibit I - Form of Blocked Account Letter
Exhibit J - Form of Interim Order
Exhibit K - Form of Standstill Agreement
Exhibit L - Form of Deposit Account Control Agreement
Exhibit M - Form of Intercompany Revolving Note
Exhibit N - Form of Intercreditor Agreement
Exhibit O - Form of Pledge Amendment
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SECURED SUPER-PRIORITY DEBTOR IN POSSESSION CREDIT AGREEMENT,
dated as of April 15, 2002, among Exide Technologies, a Delaware corporation
(the "Company"), and the Subsidiaries (as defined below) of the Company listed
on the signature pages hereof as debtors and debtors in possession under Chapter
11 of the Bankruptcy Code (together with the Company, each a "Borrower" and
collectively the "Borrowers"), the Subsidiaries of the Company listed on the
signature pages hereof as Guarantors (each a "Domestic Guarantor" and
collectively the "Domestic Guarantors"), the Lenders (as defined below), the
Issuers (as defined below) and Citicorp USA, Inc. ("CUSA"), as agent for the
Lenders and the Issuers (in such capacity, the "Administrative Agent") and as
collateral monitoring agent (in such capacity, the "Collateral Monitoring
Agent").
W i t n e s s e t h:
Whereas, on April 15, 2002, the "Petition Date"), the
Borrowers each filed a voluntary petition for relief (collectively, the "Cases")
under Chapter 11 of the Bankruptcy Code with the United States Bankruptcy Court
for the District of Delaware (the "Bankruptcy Code");
Whereas, the Borrowers are continuing to operate their
respective businesses and manage their respective properties as debtors in
possession under Sections 1107 and 1108 of the Bankruptcy Code;
Whereas, the Borrowers have requested that the Lenders and the
Issuers provide a secured super-priority revolving credit and letter of credit
facility of up to $121,008,220 and a term facility of up to $128,991,780 in
order to fund the continued operation of the businesses of the Foreign
Subsidiaries of the Company and the businesses of the Borrowers as debtors and
debtors in possession under the Bankruptcy Code;
Whereas, the Lenders and the Issuers are willing to make
available to the Borrowers such post-petition loans and other extensions of
credit upon the terms and subject to the conditions set forth herein; and
Whereas, each of the Domestic Guarantors has agreed to
guaranty the obligations of the Borrowers hereunder and each of the Borrowers
and the Domestic Guarantors has agreed to secure its obligations to the Lenders
and the Issuers hereunder with, inter alia, security interests in, and liens on,
all of its property and assets, whether real or personal, tangible or
intangible, now existing or hereafter acquired or arising, all as more fully
provided herein;
Now, Therefore, in consideration of the premises and the
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
Definitions, Interpretation And Accounting Terms
Section 1.1 Defined Terms
(a) Terms used herein that are defined in the UCC have the
meanings given to them in the UCC, including the following which are capitalized
herein:
Credit Agreement
EXIDE TECHNOLOGIES
"Account Debtor"
"Accounts"
"Chattel Paper"
"Contracts"
"Deposit Account"
"Documents"
"Entitlement Holder"
"Entitlement Order"
"Equipment"
"General Intangibles"
"Instruments"
"Inventory"
"Investment Property"
"Letter of Credit Rights"
"Payment Intangibles"
"Proceeds"
"Securities Account"
"Security Entitlement"
(b) As used in this Agreement, the following terms have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"Adequate Protection Payment" means each payment made to the
Pre-Petition Lenders pursuant to the Orders.
"Additional Lender" has the meaning specified in subclause
(ii) of clause (d) of Section 2.1 (The Commitments).
"Additional Pledged Collateral" has the meaning specified in
Section 11.4(g)(i) (Pledged Collateral).
"Administrative Agent" has the meaning specified in the
preamble to this Agreement.
"Affected Lender" has the meaning specified in Section 2.18
(Substitution of Lenders).
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling or that is controlled by or is under
common control with such Person, each officer, director, general partner or
joint-venturer of such Person, and each Person that is the beneficial owner of
10% or more of any class of Voting Stock of such Person; provided, however that
Pacific Dunlop Limited ("Pacific") and its Subsidiaries shall not be deemed to
be Affiliates so long as Pacific and its Subsidiaries own less than twenty
percent (20%) of the Stock of the Company. For the purposes of this definition,
"control" means the possession of the power to direct or cause the direction of
the management and policies of such Person, whether through the ownership of
voting securities, by contract or otherwise.
"Agreement" means this Secured Super-Priority Debtor In
Possession Credit Agreement.
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EXIDE TECHNOLOGIES
"Alternative Currency" means any lawful currency other than
Dollars which is freely transferable into Dollars.
"Applicable Lending Office" means, with respect to each
Revolving Credit Lender, its Domestic Lending Office in the case of a Base Rate
Loan, and its Eurodollar Lending Office in the case of a Eurodollar Rate Loan.
"Applicable Margin" means, with respect to Loans maintained as
(i) Base Rate Loans, a rate equal to 2.75% per annum and (ii) Eurodollar Rate
Loans, a rate equal to 3.75% per annum.
"Applicable Unused Commitment Fee Rate" means .50% per annum.
"Approved Fund" means any Fund that is advised or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or Affiliate of an
entity that administers or manages a Lender.
"Approved Deposit Account" means a Deposit Account maintained
by any Grantor with a Deposit Account Bank which account is the subject of an
effective Deposit Account Control Agreement, and includes all monies on deposit
therein and all certificates and instruments, if any, representing or evidencing
such Approved Deposit Account.
"Arrangers" means the Lead Arranger, and Citicorp, in its
capacity as arranger for the Facilities.
"Asset Sale" has the meaning specified in Section 8.4 (Sale of
Assets).
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit A (Form of Assignment
and Acceptance).
"Available Prepayment Amount" means, at any time, (a) in
respect of any Property Loss Event or Asset Sale (other than any Asset Sale
contemplated in clause (b) below), an amount equal to the excess of (i) the sum
of the aggregate Net Cash Proceeds of all Asset Sales and Property Loss Events
received by the Company or any Subsidiary thereof after the Closing Date over
(ii) $10,000,000, and (b) in respect of any Asset Sale pursuant to clause (h) or
clause (i) of Section 8.4 (Sale of Assets), an amount equal to the excess of (i)
100% of the Net Cash Proceeds of such Asset Sale received by a Foreign
Subsidiary of the Company over (ii) the amount of such Net Cash Proceeds to be
utilized for the working capital needs of such Foreign Subsidiary and the
working capital needs of other Foreign Guarantors domiciled in such Foreign
Subsidiary's country of origin.
"Bankruptcy Code" means title 11, United States Code (11
U.S.C. 101 et seq.), as amended from time to time and any successor statute.
"Bankruptcy Court" is defined in the recitals to this
Agreement or shall mean any other Court having competent jurisdiction over the
Cases.
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EXIDE TECHNOLOGIES
"Base Rate" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time, which rate per annum shall be
equal at all times to the highest of the following:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 0.25% or, if there is no
nearest 0.25%, to the next higher 0.25%) of (i) 0.50% per annum plus (ii) the
rate per annum obtained by dividing (A) the latest three-week moving average of
secondary market morning offering rates in the United States for three-month
certificates of deposit of major United States money market banks, such
three-week moving average being determined weekly on each Monday (or, if any
such day is not a Business Day, on the next succeeding Business Day) for the
three-week period ending on the previous Friday by Citibank on the basis of such
rates reported by certificate of deposit dealers to and published by the Federal
Reserve Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by Citibank from
three New York certificate of deposit dealers of recognized standing selected by
Citibank, by (B) a percentage equal to 100% minus the average of the daily
percentages specified during such three-week period by the Federal Reserve Board
for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) for Citibank in respect of
liabilities consisting of or including (among other liabilities) three-month
U.S. dollar nonpersonal time deposits in the United States and (iii) the average
during such three-week period of the maximum annual assessment rates estimated
by Citibank for determining the then current annual assessment payable by
Citibank to the Federal Deposit Insurance Corporation (or any successor) for
insuring Dollar deposits in the United States; and
(c) the sum of (i) 0.50% per annum plus (ii) the Federal Funds
Rate.
If the Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Rate for any reason, including the inability to obtain sufficient
quotations in accordance with the terms of the definition of Federal Funds Rate,
the "Base Rate" shall be determined without regard to clause (e) above until the
Administrative Agent shall have determined that the circumstances giving rise to
such inability no longer exist. Any determination by the Administrative Agent
pursuant to this definition shall be conclusive absent manifest error.
Any change in the Base Rate due to a change in the Federal Funds Rate or
Citibank's base rate shall be effective on the effective date of such change in
the Federal Funds Rate or base rate, respectively.
"Base Rate Loan" means any Loan during any period in which it
bears interest based on the Base Rate.
"Blocked Account" means a deposit account maintained by a
Foreign Subsidiary of the Company with a Blocked Account Bank, which account is
the subject of an effective Blocked Account Letter and includes all monies on
deposit therein and all certificates and instruments, if any, representing or
evidencing such Blocked Account.
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EXIDE TECHNOLOGIES
"Blocked Account Bank" means a financial institution selected
or approved by the Administrative Agent and with respect to which a Foreign
Subsidiary of the Company has delivered to the Administrative Agent an executed
Blocked Account Letter.
"Blocked Account Letter" means a letter agreement,
substantially in the form of Exhibit I (Form of Blocked Account Letter) (with
such changes thereto as may be agreed to by the Administrative Agent), or other
letter agreement in form and substance satisfactory to the Administrative Agent,
executed by the relevant Foreign Subsidiary and the Administrative Agent and
acknowledged and agreed to by the relevant Blocked Account Bank.
"Borrowers" has the meaning specified in the preamble to this
Agreement.
"Borrowing" means a borrowing consisting of Loans made on the
same day by the Lenders ratably according to their respective Credit
Commitments. A Borrowing may be a Domestic Revolving Credit Borrowing, a Foreign
Revolving Credit Borrowing or a Term Loan Borrowing.
"Borrowing Base Certificate" means a certificate to be
executed and delivered from time to time by the Company to the Administrative
Agent substantially in the form of Exhibit H (Form of Borrowing Base
Certificate).
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable Business
Day relates to notices, determinations, fundings and payments in connection with
the Eurodollar Rate or any Eurodollar Rate Loans, a day on which dealings in
Dollar deposits are also carried on in the London interbank market.
"Capital Expenditures" means, for any Person for any period,
the sum, without duplication, of (a) all expenditures made, directly or
indirectly, by such Person or any of its Subsidiaries during such period for
equipment, fixed assets, real property or improvements, or for replacements or
substitutions thereof or additions thereto, that have been or should be, in
accordance with GAAP, reflected as additions to property, plant or equipment on
a Consolidated balance sheet of such Person or have a useful life of more than
one year plus (b) the aggregate principal amount of all Indebtedness (including
Capital Lease Obligations) assumed or incurred in connection with any such
expenditures (excluding any such equipment, fixed asset, real property or
improvements acquired with the proceeds of any casualty insurance or
condemnation award).
"Capital Lease" means, with respect to any Person, any lease
of, or other arrangement conveying the right to use, property by such Person as
lessee that would be accounted for as a capital lease on a balance sheet of such
Person prepared in conformity with GAAP.
"Capital Lease Obligations" means, with respect to any Person,
the capitalized amount of all obligations of such Person or any of its
Subsidiaries under Capital Leases, as determined on a Consolidated basis in
conformity with GAAP.
"Carve-Out" means claims of the following parties for the
following amounts: (i) the unpaid fees of the U.S. Trustee or the Clerk of the
Bankruptcy Court pursuant to 28 U.S.C. 1930(a) and (ii) the aggregate allowed
unpaid fees and expenses payable under Sections 330 and
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331 of the Bankruptcy Code to professional persons retained pursuant to an order
of the Bankruptcy Court by the Borrowers or any Committee not to exceed
$5,000,000, plus any fees and expenses accrued and not yet paid on the date of
the relevant Event of Default to the extent allowed by the Bankruptcy Court, in
the aggregate; provided, however, that the Carve-Out shall not include, apply to
or be available for any fees or expenses incurred by any party, including any
Borrower or any Committee, in connection with the investigation (including
discovery proceedings), initiation or prosecution of any claims, causes of
action, adversary proceedings or other litigation against the Administrative
Agent, the Lenders, the Issuers, the Pre-Petition Agent or the Pre-Petition
Lenders, including challenging the amount, validity, perfection, priority or
enforceability of or asserting any defense, counterclaim or offset to, the
Obligations or the security interests and Liens of the Secured Parties in
respect thereof or the obligations under the Pre-Petition Facility or the
security interests and Liens of the Pre-Petition Agent and the Pre-Petition
Lenders in respect thereof; and provided, further, that, as long as no Default
or Event of Default shall occur and be continuing, each Borrower shall be
permitted to pay compensation and reimbursement of expenses allowed and payable
under Sections 330 and 331 of the Bankruptcy Code, as the same may be due and
payable, and the same shall not reduce the Carve-Out.
"Cases" has the meaning set forth in the recitals hereof.
"Cash Collateral Account" means any Deposit Account or
Securities Account established as provided in Section 2.17 (Cash Collateral
Accounts) in which cash and Cash Equivalents may from time to time be deposited
or held thereon as provided in this Agreement, including the Concentration
Account.
"Cash Equivalents" means (a) securities issued or fully
guaranteed or insured by the United States government or any agency thereof, (b)
certificates of deposit, eurodollar time deposits, overnight bank deposits and
bankers' acceptances of any commercial bank organized under the laws of the
United States, any state thereof, the District of Columbia, any foreign bank, or
its branches or agencies (fully protected against currency fluctuations) that,
at the time of acquisition, are rated at least "A-1" by S&P or "P-1" by Xxxxx'x,
(c) commercial paper of an issuer rated at least "A-1" by S&P or "P-1" by
Xxxxx'x and (d) shares of any money market fund that (i) has at least 95% of its
assets invested continuously in the types of investments referred to in clauses
(a), (b) and (c) above, (ii) has net assets of not less than $500,000,000 and
(iii) is rated at least "A-1" by S&P or "P-1" by Xxxxx'x; provided, however,
that the maturities of all obligations of the type specified in clauses (a), (b)
and (c) above shall not exceed 180 days.
"Citibank" means Citibank, N.A., a national banking
association.
"Claim" has the meaning ascribed to such term in clause (5) of
Section 101 of the Bankruptcy Code.
"Closing Date" means the first date on which any Loan is made
or any Letter of Credit is Issued.
"Code" means the Internal Revenue Code of 1986 (or any
successor legislation thereto), as amended from time to time.
"Collateral" has the meaning specified in Section 11.1
(Security).
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"Collateral Agency Agreement" shall mean the Collateral Agency
Agreement dated as of April 15, 2002 among the DIP Agent, the Pre-Petition
Agent, and the Collateral Agent.
"Collateral Agent" shall mean Citicorp as Collateral Agent
under the Collateral Agency Agreement.
"Collateral Monitoring Agent" has the meaning specified in the
preamble to this Agreement.
"Commitment" means, with respect to any Lender, such Lender's
Revolving Credit Commitment, if any, and Term Loan Commitment, if any, and
"Commitments" means the aggregate Revolving Credit Commitments and Term Loan
Commitments of all Lenders.
"Commitment Date" means the date upon which the Eligible
Assignees wishing to participate in the Commitment Increase must commit to an
increase in the amount of their respective commitments, which date shall in any
event occur on or before the forty-fifth (45th) day after the Closing Date.
"Commitment Increase" means an increase of up to $50,000,000
in the aggregate consisting of Revolving Credit Commitments and/or the Term Loan
Commitments, as determined by the Administrative Agent in its sole discretion.
"Commitment Letter" means the commitment letter dated March
27, 2002, addressed to the Company from CUSA and the Lead Arranger.
"Committee" means the official statutory committee of
unsecured creditors approved in the Cases pursuant to Section 1102 of the
Bankruptcy Code.
"Company" has the meaning specified in the preamble to this
Agreement.
"Company's Accountants" means PriceWaterhouse Coopers or other
independent nationally-recognized public accountants acceptable to the
Administrative Agent.
"Compliance Certificate" has the meaning specified in Section
6.1(d) (Financial Statements).
"Concentration Account" has the meaning specified in Section
2.17 (Cash Collateral Accounts).
"Consolidated" means, with respect to any Person, the
consolidation of accounts of such Person and its Subsidiaries in accordance with
GAAP.
"Consolidated Net Income" means, for any Person for any
period, the net income (or loss) of such Person and its Subsidiaries for such
period, determined on a Consolidated basis in conformity with GAAP ; provided,
however, that (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 in accordance with GAAP) shall be included only to the
extent of the amount of dividends or distributions paid to such Person or
Subsidiary; provided that there is no deduction for changes
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with respect to equity loss if there is no corresponding requirement to make an
equity contribution and (b) the net income of any Subsidiary of such Person that
is subject to any restriction or limitation on the payment of dividends or the
making of other distributions shall be excluded to the extent of such
restriction or limitation.
"Constituent Documents" means, with respect to any Person, (a)
the articles of incorporation, certificate of incorporation or certificate of
formation (or the equivalent organizational documents) of such Person, (b) the
by-laws, operating agreement (or the equivalent governing documents) of such
Person and (c) any document setting forth the manner of election and duties of
the directors or managing members of such Person (if any) and the designation,
amount or relative rights, limitations and preferences of any class or series of
such Person's Stock.
"Contaminant" means any material, substance or waste that is
classified, regulated or otherwise characterized under any Environmental Law as
hazardous, toxic, a contaminant or a pollutant or by other words of similar
meaning or regulatory effect, including any petroleum or petroleum-derived
substance or waste, asbestos and polychlorinated biphenyls.
"Contractual Obligation" of any Person means any obligation,
agreement, undertaking or similar provision of any Security issued by such
Person or of any agreement, undertaking, contract, lease, indenture, mortgage,
deed of trust or other instrument (excluding 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 properties is subject.
"Copyrights" means (a) all copyrights arising under the laws
of the United States, any other country or any political subdivision thereof
(whether registered or unregistered and whether published or unpublished), all
registrations and recordings thereof and all applications in connection
therewith, including all registrations, recordings and applications in the
United States Copyright Office or in any foreign counterparts thereof and (b)
the right to obtain all renewals thereof.
"Copyright Licenses" means any written agreement naming any
Grantor as licensor or licensee granting any right under any Copyright,
including the grant of rights to copy, publicly perform, create derivative
works, manufacture, distribute, exploit and sell materials derived from any
Copyright.
"CUSA" has the meaning specified in the preamble to this
Agreement.
"Customary Permitted Liens" means, with respect to any Person,
any of the following Liens:
(a) Liens with respect to the payment of taxes, assessments or
governmental charges in each case that are not yet due or that are
being contested in good faith by appropriate proceedings and with
respect to which adequate reserves or other appropriate provisions are
being maintained to the extent required by GAAP;
(b) statutory Liens of landlords and liens of suppliers,
mechanics, carriers, materialmen, warehousemen or workmen and other
liens imposed by law created in the ordinary course of business for
amounts not yet due or that are being contested in good
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faith by appropriate proceedings and with respect to which adequate
reserves or other appropriate provisions are being maintained to the
extent required by GAAP;
(c) deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance or other
types of social security benefits or to secure the performance of bids,
tenders, sales, contracts (other than for the repayment of borrowed
money) and surety, appeal, customs or performance bonds;
(d) encumbrances arising by reason of zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar encumbrances on the
use of real property not materially detracting from the value of such
real property or not materially interfering with the ordinary conduct
of the business conducted and proposed to be conducted at such real
property;
(e) encumbrances arising under leases or subleases of real
property that do not, in the aggregate, materially detract from the
value of such real property or interfere with the ordinary conduct of
the business conducted and proposed to be conducted at such real
property; and
(f) financing statements with respect to a lessor's rights in
and to personal property leased to such Person in the ordinary course
of such Person's business.
"Default" means any event that, with the passing of time or
the giving of notice or both, would become an Event of Default.
"Deposit Account Bank" means a financial institution selected
or approved by the Administrative Agent and with respect to which a Grantor has
delivered to the Administrative Agent an executed Deposit Account Control
Agreement.
"Deposit Account Control Agreement" means a letter agreement,
substantially in the form of Exhibit L (Form of Deposit Account Control
Agreement) (with such changes as may be agreed to by the Administrative Agent),
executed by the Grantor, the Administrative Agent and the relevant Deposit
Account Bank.
"Disclosure Documents" means, collectively (a) the forms,
reports, and other documents, including, without limitation, any financial
statements or schedules included or incorporated by reference therein, filed by
the Company with the Securities and Exchange Commission, as amended from time to
time and (b) any pleadings, motions or other documents filed with the Bankruptcy
Court, as amended from time to time.
"DM Notes" means the 9.125% Senior Notes due 2004 of EHE,
issued pursuant to the DM Agreement.
"DM Agreement" means the Fiscal and Paying Agent Agreement,
dated as of April 23, 1997, between EHE, the Company, The Bank of New York, as
U.S. fiscal and paying agent and Deutsche Bank Aktiengesellschaft, as DM fiscal
and paying agent, pursuant to which the DM Notes were issued, as amended,
supplemented or otherwise modified prior to the Closing Date.
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"Documentary Letter of Credit" means any Letter of Credit that
is drawable upon presentation of documents evidencing the sale or shipment of
goods purchased by any Borrower or any of its Subsidiaries in the ordinary
course of its business.
"Dollar Equivalent" means with respect to any Alternative
Currency at the time of determination thereof, the equivalent of such currency
in Dollars determined by using the rate of exchange quoted by Citibank in New
York, New York at 11:00 a.m. (New York time) on the date of determination to
prime banks in New York for the spot purchase in the New York foreign exchange
market of such amount of Dollars with such Alternative Currency.
"Dollars" and the sign "$" each mean the lawful money of the
United States of America.
"Domestic Advance Rate" means (a) up to 85% in the case of
Eligible Domestic Receivables, (b) up to 52% in the case of Eligible Domestic
Raw Materials, (c) up to 54% in the case of Eligible Domestic Finished Goods,
(d) up to 26% in the case of Eligible Domestic Work-in-Process Inventory, (e) up
to 75% in the case of Eligible Domestic Equipment and (f) up to 50% in the case
of Eligible Domestic Real Property.
"Domestic Asset Sale" means any Asset Sale by any Borrower or
any Domestic Guarantor.
"Domestic Availability" means, at any time, the Domestic
Borrowing Base at such time minus any Domestic Availability Reserves in effect
at such time.
"Domestic Availability Reserves" means, as of four Business
Days after the date of written notice of any determination thereof to the
Company and the Pre-Petition Agent by the Collateral Monitoring Agent, such
amounts as the Collateral Monitoring Agent may from time to time establish
against the Domestic Facilities, in the Collateral Monitoring Agent's sole
discretion, in order either to (a) preserve the value of the Collateral or the
Administrative Agent's Lien thereon or (b) provide for the payment of
unanticipated liabilities of any Loan Party arising after the Closing Date,
including, without limitation, (x) a reserve for all Indebtedness constituting
preferences under Section 547 of the Bankruptcy Code which would under
applicable law have priority over the Obligations, (y) a reserve in an amount
equal to the Carve-Out, and (z) a reserve in the amount of the outstanding
Obligations at such time attributable to cash management, including but not
limited to Automatic Clearinghouse (ACH) functions, performed by Citibank with
respect to any Borrower.
"Domestic Available Credit" means, at any time, an amount
equal to (a) the lesser of (i) the Revolving Credit Commitments (as such amount
may be reduced from time to time pursuant to Section 2.5 (Reduction and
Termination of Commitments) and (ii) the Domestic Borrowing Base at such time,
minus (b) the sum of (i) the aggregate Domestic Revolving Credit Outstandings at
such time, (ii) the aggregate Term Loan Outstandings, and (iii) any Domestic
Availability Reserves in effect at such time.
"Domestic Borrowing" means a Term Loan Borrowing or a Domestic
Revolving Credit Borrowing, as applicable.
"Domestic Borrowing Base" means, at any time, the sum of (a)
the product of (i) the Domestic Advance Rate then in effect for Eligible
Domestic Receivables and (ii) the face
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amount of all Eligible Domestic Receivables of the Borrowers (calculated net of
all finance charges, late fees and other fees that are unearned, sales, excise
or similar taxes, and credits or allowances granted at such time) minus any
Domestic Eligibility Reserves then in effect with respect to such Eligible
Domestic Receivables, (b) the sum of the product of (i) the Domestic Advance
Rate then in effect for each class of Eligible Domestic Inventory and (ii) the
value of each such class of Eligible Domestic Inventory of the Borrowers
(valued, in each case, at the lower of cost and market on a first-in, first-out
basis) constituting each such class at such time of the Borrowers minus any
Domestic Eligibility Reserves then in effect with respect to such Eligible
Domestic Inventory, (c) the product of (i) the Domestic Advance Rate then in
effect for Eligible Domestic Equipment and (ii) the orderly liquidation value of
Eligible Domestic Equipment of the Borrowers (as determined by the
Administrative Agent) at such time minus any Domestic Eligibility Reserves then
in effect with respect to such Eligible Domestic Equipment, and (d) the product
of (i) the Domestic Advance Rate then in effect for Eligible Domestic Real
Property and (ii) the Mortgage Value of the Eligible Domestic Real Property of
the Borrowers at such time minus any Domestic Eligibility Reserves then in
effect with respect to such Eligible Domestic Real Property; provided that the
sum of (i) the availability under the Domestic Advance Rate based upon the
percentages contained in clauses (e) and (f) of the definition of "Domestic
Advance Rate" plus (ii) the availability under the Foreign Advance Rate based
upon the percentages contained in clauses (e) and (f) of the definition of
"Foreign Advance Rate" shall not exceed the lesser of (x) 20% of the aggregate
Total Availability and (y) $60,000,000.
"Domestic Eligibility Reserves" means, effective as of four
Business Days after the date of written notice of any determination thereof to
the Company and the Pre-Petition Agent by the Collateral Monitoring Agent, such
amounts as the Collateral Monitoring Agent, in its sole discretion, may from
time to time establish against the gross amounts of Eligible Domestic
Receivables, Eligible Domestic Inventory, Eligible Domestic Equipment and
Eligible Domestic Real Property to reflect risks or contingencies arising after
the Closing Date that may affect any one or class of such items and that have
not already been taken into account in the calculation of the Domestic Borrowing
Base, which shall include, without limitation, (a) in respect of Domestic
Eligible Inventory, (i) a reserve for estimated warranty exposure for both
industrial and automotive at the time of a liquidation as computed by a field
examination in an amount equal to three (3) months of such estimated exposure,
(ii) a reserve to eliminate capitalized unfavorable manufacturing variances per
the general ledger of the Company from the Inventory, (iii) a reserve for slow
moving/obsolete Inventory as identified by the Company and recorded as a reserve
per the Company's general ledger, (iv) a reserve for junk battery and premium
reserve per the Company's general ledger, (v) a shrink reserve for book to
physical Inventory adjustments, and (vi) a reserve to reconcile the difference
between the Company's perpetual Inventory and general ledger; and (b) in respect
of Eligible Domestic Receivables, (i) an excess dilution reserve equal to the
amount of dilution (computed on a rolling three (3) month average based upon the
Accounts rollforward provided by the Company) in excess of five percent (5%),
(ii) general ledger reserves for over-xxxxxxxx to customers for advertising,
promotional allowances, etc., and (iii) a reserve for open and unused credit
balances greater than sixty (60) days past due that have been issued for
returns, promotional allowances, stock lifts, rotations and price adjustments.
"Domestic Facilities" means the Domestic Revolving Credit
Facility and the Term Loan Facility.
"Domestic Guarantor" has the meaning specified in the preamble
to this Agreement.
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"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule II (Applicable Lending Offices and Addresses for Notices)
or on the Assignment and Acceptance by which it became a Lender or such other
office of such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"Domestic Letter of Credit Obligations" means, at any time,
the aggregate of all liabilities at such time of the Borrowers to all Issuers
with respect to Letters of Credit issued under the Domestic Revolving Credit
Facility, whether or not any such liability is contingent, including, without
duplication, the sum of (a) the Reimbursement Obligations in respect of such
Letters of Credit at such time and (b) the Domestic Letter of Credit Undrawn
Amounts at such time.
"Domestic Letter of Credit Undrawn Amounts" means, at any
time, the aggregate undrawn face amount of all Letters of Credit issued under
the Domestic Revolving Credit Facility outstanding at such time.
"Domestic Loans" means the Domestic Revolving Loans, the Swing
Loans and the Term Loans.
"Domestic Maximum Credit" means, at any time, the lesser of
(a) the Revolving Credit Commitments (as such amount may be reduced from time to
time pursuant to Section 2.5 (Reduction and Termination of Commitments) and (b)
the Domestic Borrowing Base at such time.
"Domestic Receivables Facility" means the (a) Receivables
Purchase Agreement, dated as of March 31, 1997, among Exide U.S. Funding
Corporation, as seller, Three Rivers Funding Corporation, as buyer, and the
Company, as servicer, (ii) the Sale Agreement, dated as of March 31, 1997,
between the Company, as seller, and Exide U.S. Funding Corporation, as buyer, as
amended, modified or supplemented prior to the Closing Date.
"Domestic Revolving Credit Borrowing" means Domestic Revolving
Credit Loans made on the same day by the Revolving Credit Lenders ratably
according to their respective Revolving Credit Commitments.
"Domestic Revolving Credit Facility" means the Revolving
Credit Commitments and the provisions herein related to the Domestic Revolving
Loans, Swing Loans and Letters of Credit.
"Domestic Revolving Credit Outstandings" means, at any
particular time, the sum of (a) the principal amount of the Domestic Revolving
Loans outstanding at such time, (b) the Domestic Letter of Credit Obligations
outstanding at such time, and (c) the principal amount of Swing Loans
outstanding at such time.
"Domestic Revolving Loan" means a Revolving Loan made to the
Borrowers for the purposes specified in Section 4.12(a) (Use of Proceeds).
"Domestic Subsidiary" means any Subsidiary of the Company
organized under the laws of any state of the United States of America or the
District of Columbia.
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"EBITDAR" means, with respect to any Person for any period, an
amount equal to (a) 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 income
taxes, (ii) Interest Expense, (iii) loss from extraordinary items, (iv)
depreciation, depletion and amortization of intangibles or financing or
acquisition costs (v) Restructuring Costs not to exceed the applicable amount
set forth in Schedule IV, (vi) any foreign currency translation losses required
to be recognized in accordance with GAAP, (vii) environmental liability accruals
not to exceed $5,000,000 per Fiscal Year so long as no Default or Event of
Default exists under Section 9.1(r) (Events of Default), (viii) inventory
write-offs for Fiscal Year 2003 not to exceed $5,000,000 (ix) goodwill and
intangible impairment charges and other property, plant and equipment
writedowns, (x) losses from the impact of adoption of new accounting standards,
(xi) non-cash losses attributable to Minority Interests, (xii) any aggregate net
loss from the sale, exchange or other disposition of capital assets by such
Person, and (xiii) losses on the sale of Accounts under the European A/R
Facility minus (c) the sum of, in each case to the extent included in the
calculation of such Consolidated Net Income but without duplication, (i) any
credit for income tax, (ii) gains from extraordinary items for such period,
(iii) gains from the impact of adoption of new accounting standards, (iv) any
aggregate net gain from the sale, exchange or other disposition of capital
assets by such Person, (v) any foreign currency translation gains required to be
recognized in accordance with GAAP, (vii) gains on the sale of Accounts under
the European A/R Facility, and (viii) non-cash gains attributable to Minority
Interests.
"EHE" means Exide Holding Europe S.A., a corporation organized
under the laws of the Republic of France.
"Eligible Assignee" means (a) a Lender or any Affiliate or
Approved Fund of such Lender, (b) a commercial bank having total assets in
excess of $5,000,000,000, (c) a finance company, insurance company or any other
financial institution or fund, in each case reasonably acceptable to the
Administrative Agent and regularly engaged in making, purchasing or investing in
loans and having a net worth, determined in accordance with GAAP, in excess of
$250,000,000 (or, to the extent net worth is less than such amount, a finance
company, insurance company, other financial institution or fund, reasonably
acceptable to the Administrative Agent and the Borrower) or (d) a savings and
loan association or savings bank organized under the laws of the United States
or any State thereof having a net worth, determined in accordance with GAAP, in
excess of $250,000,000.
"Eligible Domestic Equipment" means the Equipment of any
Borrower (a) that is owned solely by such Borrower, (b) with respect to which
the Administrative Agent has a valid and perfected first priority Lien, (c) with
respect to which no representation or warranty contained in any Loan Document
has been breached, (d) that is not, in the Administrative Agent's sole
discretion, obsolete or unmerchantable, and (e) that the Administrative Agent
deems to be Eligible Domestic Equipment, based on such credit and collateral
considerations as the Administrative Agent may, in its sole discretion, deem
appropriate; provided that no Equipment of any Borrower located at the
facilities in Xxxxxx Hollow, Missouri and Frisco, Texas may be Eligible Domestic
Equipment commencing with the two hundred seventy-first (271st) day after the
Closing Date; provided further that the Administrative Agent may consider
including such Equipment located at the facilities in Xxxxxx Hollow, Missouri
and Frisco, Texas in the Domestic Borrowing Base as Eligible Domestic Equipment
after such two hundred seventy (270) day period to the extent that the
Administrative Agent has re-evaluated such Equipment at such time
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and has determined that it meets the criteria for "Eligible Domestic Equipment,"
as determined by the Administrative Agent, in its sole discretion.
"Eligible Domestic Finished Goods" means the Eligible Domestic
Inventory of any Borrower that is classified, consistent with past practice, on
such Borrower's accounting system as "finished goods".
"Eligible Domestic Inventory" means the Inventory of any
Borrower (other than any Inventory that has been consigned by such Borrower)
including raw materials, work-in-process, finished goods, parts and supplies (a)
owned solely by such Borrower, (b) with respect to which the Administrative
Agent has a valid and perfected first priority Lien, (c) with respect to which
no representation or warranty contained in any Loan Document has been breached,
(d) which is not, in the Administrative Agent's sole discretion, obsolete or
unmerchantable, (e) with respect to which (in respect of any Inventory labeled
with a brand name or trademark and sold by such Borrower pursuant to a trademark
owned by such Borrower or a license granted to such Borrower) the Administrative
Agent would have rights under such trademark or license pursuant to this
Agreement or other agreement satisfactory to the Administrative Agent to sell
such Inventory in connection with a liquidation thereof and (f) that the
Administrative Agent deems to be Eligible Domestic Inventory based on such
credit and collateral considerations as the Administrative Agent may, in its
sole discretion, deem appropriate. No Inventory of any Borrower shall be
Eligible Domestic Inventory if such Inventory consists of (i) goods returned or
rejected by customers other than goods that are undamaged or are resaleable in
the normal course of business, (ii) goods to be returned to suppliers, (iii)
goods in transit between non-Affiliated Persons, (iv) goods located at outside
processors, and (v) consigned Inventory.
"Eligible Domestic Raw Materials" means the Eligible Inventory
of any Borrower that is classified, consistent with past practice, on the
Borrower's accounting system as "raw materials".
"Eligible Domestic Real Property" means any parcel of owned
Real Property in the United States owned by any Borrower as to which each of the
following conditions has been satisfied at such time:
(a) (i) a first priority Lien on such parcel of Real Property
shall have been granted by such Borrower in favor of the Administrative
Agent pursuant to this Agreement and (ii) such Lien shall be in full
force and effect in favor of the Administrative Agent at such time;
(b) except as otherwise permitted by the Administrative Agent,
the Administrative Agent and the title insurance company issuing the
policy referred to in clause (c) below shall have received maps or
plats of an as-built survey of such parcel of Real Property certified
to the Administrative Agent and such title insurance company in a
manner reasonably satisfactory to them, dated a date reasonably
satisfactory to the Administrative Agent and such title insurance
company, by an independent professional licensed land surveyor
reasonably satisfactory to the Administrative Agent and such title
insurance company, which maps or plats and the surveys on which they
are based shall be made in form and substance satisfactory to the
Administrative Agent;
(C) except as otherwise permitted by the Administrative Agent,
the Administrative Agent shall have received in respect of such parcel
of Real Property (i) a
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mortgagee's title policy (or policies) or marked-up unconditional
binder (or binders) for such insurance (or other evidence acceptable to
the Administrative Agent proving ownership thereof) ("Mortgagee's Title
Insurance Policy"), dated a date reasonably satisfactory to the
Administrative Agent, and such policy shall (A) be in an amount not
less than the Mortgage Value (as of the Closing Date) of such parcel of
Real Property, (B) be issued at ordinary rates, (C) insure that the
Lien granted pursuant to this Agreement insured thereby creates a valid
first Lien on such parcel of Real Property free and clear of all
defects and encumbrances, except such as may be approved by the
Administrative Agent and Customary Permitted Liens, (D) name the
Administrative Agent for the benefit of the Secured Parties as the
insured thereunder, (E) be in the form of ALTA Loan Policy - 1992 (or
such local equivalent thereof as is reasonably satisfactory to the
Administrative Agent), (F) contain a comprehensive lender's endorsement
(including, but not limited to, a revolving credit endorsement and a
floating rate endorsement) and (G) be issued by Chicago Title Insurance
Company, First American Title Insurance Company, Lawyers Title
Insurance Corporation or any other title company reasonably
satisfactory to the Administrative Agent (including any such title
companies acting as co-insurers or reinsurers), (ii) evidence
satisfactory to it that all premiums in respect of each such policy,
all recording fees and stamp, documentary, intangible or mortgage
taxes, if any, in connection with this Agreement or the filing of the
Interim Order have been paid and (iii) a copy of all documents referred
to, or listed as exceptions to title, in such title policy (or
policies);
(d) the Administrative Agent shall have received an appraisal
with respect to such parcel of Real Property that is satisfactory in
form and substance to the Administrative Agent and performed by an
appraiser that is satisfactory to the Administrative Agent;
(e) a Phase I environmental or equivalent report with respect
to such parcel of Real Property, dated a date not more than one year
prior to the Closing Date, showing no material condition of
environmental concern shall have been delivered to the Administrative
Agent and in form reasonably satisfactory to the Administrative Agent;
(f) no casualty shall have occurred affecting the use,
operation or value of such parcel of Real Property in any material
respect if such casualty has not been restored or repaired by the owner
of such Real Property;
(g) no condemnation or taking by eminent domain shall have
occurred nor shall any notice of any pending or threatened condemnation
or other proceeding against such parcel of Real Property been delivered
to the owner or lessee of such parcel of Real Property that would
materially affect the use, operation or value of such; and
(h) the Loan Party granting a Lien on such Real Property shall
comply in all material respects with the terms of this Agreement;
provided that the Real Property owned by any Borrower located
in Xxxxxx Hollow, Missouri and Frisco, Texas may not be Eligible Domestic Real
Property commencing with the two hundred seventy-first (271st) day after the
Closing Date; provided further that the Administrative Agent may consider
including such Real Property in Xxxxxx Hollow, Missouri and Frisco, Texas in the
Domestic Borrowing Base as Eligible Domestic Real Property after such two
hundred seventy (270) day period to the extent that the Administrative Agent has
re-
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evaluated such Real Property at such time and has determined that it meets the
criteria for "Eligible Domestic Real Property," as determined by the
Administrative Agent, in its sole discretion.
"Eligible Domestic Receivables" means the gross outstanding
balance of the Accounts of any Borrower arising out of the sale of merchandise,
goods or services in the ordinary course of business, that is made by such
Borrower to a Person that is not an Affiliate of such Borrower and that
constitutes Collateral in which the Administrative Agent has a fully perfected
first priority Lien; provided, however, that an Account shall not be an
"Eligible Domestic Receivable" if any of the following shall be true:
(a) (i) to the extent the original terms of sale provide for
payment from 90 to 120 days, in each case, such Account is more than 30
days past due according to such original terms of sale, or (ii) to the
extent the original terms of sale provide for payment in less than 90
days, such Account is more than 60 days past due according to such
original terms of sale; or
(b) any representation or warranty contained in this Agreement
or any other Loan Document with respect to such specific Account is not
true and correct with respect to such Account; or
(c) the Account Debtor on such Account has disputed liability
or made any claim with respect to any other Account due from such
Account Debtor to the Borrower but only to the extent of such dispute
or claim; or
(d) the Account Debtor on such Account has (i) filed a
petition for bankruptcy or any other relief under the Bankruptcy Code
or any other law relating to bankruptcy, insolvency, reorganization or
relief of debtors, (ii) made an assignment for the benefit of
creditors, (iii) had filed against it any petition or other application
for relief under the Bankruptcy Code or any such other law, (iv) has
failed, suspended business operations, become insolvent, called a
meeting of its creditors for the purpose of obtaining any financial
concession or accommodation or (v) had or suffered a receiver or a
trustee to be appointed for all or a significant portion of its assets
or affairs, unless such Account Debtor (A) is a debtor-in-possession in
a case then pending under chapter 11 of the Bankruptcy Code, (B) has
established debtor-in-possession financing satisfactory to the
Administrative Agent in its sole discretion and (C) otherwise satisfies
each of the requirements set forth in this definition of Eligible
Receivables; or
(e) the Account Debtor on such Account or any of its
Affiliates is also a supplier to or creditor of such Borrower unless
such supplier or creditor has executed a no-offset letter satisfactory
to the Administrative Agent, in its sole discretion or, if such
supplier or creditor has not executed a no-offset letter, such Account
shall be ineligible pursuant to this clause (e) only to the extent of
such offset; or
(f) the sale represented by such Account is to an Account
Debtor located outside the United States, Canada or a territory of the
United States, unless the sale is on letter of credit or acceptance
terms acceptable to the Administrative Agent, in its sole discretion;
or
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(g) the sale to such Account Debtor on such Account is on a
xxxx-on-hold, guaranteed sale, cash sale, sale-and-return,
sale-on-approval or consignment basis; or
(h) such Account is subject to a Lien in favor of any Person
other than the Administrative Agent for the benefit of the Secured
Parties; or
(i) such Account is subject to any deduction, offset,
counterclaim, return privilege or other conditions other than volume
sales discounts given in the ordinary course of the Borrower's
business; provided, however, that such Account shall be ineligible
pursuant to this clause (i) only to the extent of such deduction,
offset, counterclaim, return privilege or other condition; or
(j) the Account Debtor on such Account is located in New
Jersey or Minnesota or any other State of the United States requiring
the holder of such Account, as a precondition to commencing or
maintaining any action in the courts of such State either to (i)
receive a certificate of authorization to do business in such State or
be in good standing in such State or (ii) file a Notice of Business
Activities Report with the appropriate office or agency of such State,
in each case unless the holder of such Account has received such a
certificate of authority to do business, is in good standing or, as the
case may be, has duly filed such a notice in such State; or
(k) the Account Debtor on such Account is a Governmental
Authority, unless such Borrower has assigned its rights to payment of
such Account to the Administrative Agent pursuant to the Assignment of
Claims Act of 1940, as amended, in the case of a federal Governmental
Authority, and pursuant to applicable law, if any, in the case of any
other Governmental Authority, and such assignment has been accepted and
acknowledged by the appropriate government officers; or
(l) 50% or more of the outstanding Accounts of the Account
Debtor have become, or have been determined by the Administrative
Agent, in accordance with the provisions hereof, to be, past due; or
(m) the sale represented by such Account is denominated in a
currency other than Dollars or Canadian Dollars; or
(n) such Account is not evidenced by an invoice or other
writing in form acceptable to the Administrative Agent, in its sole
discretion; or
(o) such Borrower, in order to be entitled to collect such
Account, is required to perform any additional service for, or perform
or incur any additional obligation to, the Person to whom or to which
it was made; or
(p) the total Accounts of such Account Debtor to the Borrowers
represent more than 25% of the Eligible Receivables of the Borrowers at
such time, but only to the extent of such excess; or
(q) such Account is included in the NAPA Xxxx Plus Program;
provided, that all such Accounts shall not be ineligible pursuant to
this clause (q) (i) for the first thirty (30) days after the Closing
Date, and (ii) commencing with the thirty-first (31st) day after the
Closing Date and thereafter, to the extent that NAPA has guaranteed or
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assumed such Account, as determined by the Administrative Agent in its
sole discretion; or
(r) the Administrative Agent, in accordance with its customary
criteria, determines, in its sole discretion, that such Account might
not be paid or is otherwise ineligible.
"Eligible Domestic Work-in-Process Inventory" means a class of
Eligible Domestic Inventory consisting of the Eligible Domestic Inventory of any
Borrower that is classified, consistent with past practice, on such Borrower's
accounting system as "work-in-process".
"Eligible Foreign Equipment" means the Equipment of any
Foreign Borrowing Base Subsidiary and any Included Subsidiary, if applicable,
(a) that is owned solely by such Foreign Borrowing Base Subsidiary or Included
Subsidiary, (b) with respect to which the Administrative Agent has a valid and
perfected first priority Lien, (c) with respect to which no representation or
warranty contained in any Loan Document has been breached, (d) that is not, in
the Administrative Agent's sole discretion, obsolete or unmerchantable, (e) is
located in either Canada or England, (f) with respect to which the granting of a
Lien on such Equipment would not violate applicable law or any Contractual
Obligation of such Foreign Borrowing Base Subsidiary or Included Subsidiary or
an Affiliate thereof, or require, pursuant to the DM Agreement, that the
obligations thereunder be secured by an equal and ratable Lien on such
Equipment, and (g) that the Administrative Agent deems to be Eligible Foreign
Equipment, based on such credit and collateral considerations as the
Administrative Agent may, in its sole discretion, deem appropriate.
"Eligible Foreign Finished Goods" means the Eligible Foreign
Inventory of any Foreign Borrowing Base Subsidiary and any Included Subsidiary,
if applicable, that is classified, consistent with past practice, on such
Foreign Borrowing Base Subsidiary's or Included Subsidiary's accounting system
as "finished goods".
"Eligible Foreign Inventory" means the Inventory of any
Foreign Borrowing Base Subsidiary and any Included Subsidiary, if applicable,
(other than any Inventory that has been consigned by such Foreign Borrowing Base
Subsidiary or Included Subsidiary) including raw materials, work-in-process,
finished goods, parts and supplies (a) owned solely by such Foreign Borrowing
Base Subsidiary or Included Subsidiary, (b) with respect to which the
Administrative Agent has a valid and perfected first priority Lien, (c) with
respect to which no representation or warranty contained in any Loan Document
has been breached, (d) which is not, in the Administrative Agent's sole
discretion, obsolete or unmerchantable, (e) with respect to which (in respect of
any Inventory labeled with a brand name or trademark and sold by such Foreign
Borrowing Base Subsidiary or Included Subsidiary pursuant to a trademark owned
by such Foreign Borrowing Base Subsidiary or Included Subsidiary or a license
granted to such Foreign Borrowing Base Subsidiary or Included Subsidiary) the
Administrative Agent would have rights under such trademark or license pursuant
to this Agreement or other agreement satisfactory to the Administrative Agent to
sell such Inventory in connection with a liquidation thereof, and (f) is located
in either Canada, Australia or England and (f) that the Administrative Agent
deems to be Eligible Foreign Inventory based on such credit and collateral
considerations as the Administrative Agent may, in its sole discretion, deem
appropriate. No Inventory of any Foreign Borrowing Base Subsidiary or Included
Subsidiary shall be Eligible Foreign Inventory if such Inventory consists of (i)
goods returned or rejected by customers other than goods that are
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undamaged or are resaleable in the normal course of business, (ii) goods to be
returned to suppliers, or (iii) goods in transit between non-Affiliated Persons,
(iv) goods located at outside processors, and (v) consigned Inventory.
"Eligible Foreign Raw Materials" means the Eligible Inventory
of any Foreign Borrowing Base Subsidiary and any Included Subsidiary, if
applicable, that is classified, consistent with past practice, on the Foreign
Borrowing Base Subsidiary's or Included Subsidiary's accounting system as "raw
materials" and is located in either Canada, Australia or England.
"Eligible Foreign Real Property" means any parcel of owned
Real Property in either Canada or England owned by any Foreign Borrowing Base
Subsidiary and any Included Subsidiary, if applicable, as to which each of the
following conditions has been satisfied at such time:
(a) (i) a first priority Lien on such parcel of Real Property
shall have been granted by such Foreign Borrowing Base Subsidiary or
Included Subsidiary in favor of the Administrative Agent pursuant to a
Foreign Mortgage in form and substance satisfactory to the
Administrative Agent and (ii) such Lien shall be in full force and
effect in favor of the Administrative Agent at such time;
(b) except as otherwise permitted by the Administrative Agent,
the Administrative Agent shall have received maps or plats of an
as-built or similar survey of such parcel of Real Property certified to
the Administrative Agent in a manner reasonably satisfactory to it,
dated a date reasonably satisfactory to the Administrative Agent, by an
independent professional licensed land surveyor reasonably satisfactory
to the Administrative Agent, which maps or plats and the surveys on
which they are based shall be made in form and substance satisfactory
to the Administrative Agent;
(c) except as otherwise permitted by the Administrative Agent,
the Administrative Agent shall have received in respect of such parcel
of Real Property evidence satisfactory to it addressing the
substantially the same matters customarily addressed in a Mortgagee's
Title Insurance Policy;
(d) the Administrative Agent shall have received an appraisal
with respect to such parcel of Real Property that is satisfactory in
form and substance to the Administrative Agent and performed by an
appraiser that is satisfactory to the Administrative Agent;
(e) a Phase I environmental report or equivalent environmental
report with respect to such parcel of Real Property, dated a date not
more than one year prior to the Closing Date, showing no material
condition of environmental concern shall have been delivered to the
Administrative Agent and in form reasonably satisfactory to the
Administrative Agent;
(f) no casualty shall have occurred affecting the use,
operation or value of such parcel of Real Property in any material
respect if such casualty has not been restored or repaired by the
mortgagor under the Foreign Mortgage encumbering such parcel of Real
Property;
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(g) no condemnation or taking by eminent domain shall have
occurred nor shall any notice of any pending or threatened condemnation
or other proceeding against such parcel of Real Property been delivered
to the owner or lessee of such parcel of Real Property that would
materially affect the use, operation or value of such;
(h) the granting of a Lien against such Real Property would
not violate applicable law or any Contractual Obligation of such
Foreign Borrowing Base Subsidiary or Included Subsidiary or an
Affiliate thereof, or require, pursuant to the DM Agreement, that the
obligations thereunder be secured by an equal and ratable Lien on such
Real Property; and
(i) the mortgagor under the relevant Foreign Mortgage
encumbering such parcel of Real Property shall comply in all material
respects with the terms of such Foreign Mortgage.
"Eligible Foreign Receivables" means the gross outstanding
balance of the Accounts of any Foreign Borrowing Base Subsidiary and any
Included Subsidiary, if applicable, arising out of the sale of merchandise,
goods or services in the ordinary course of business, that is made by such
Foreign Borrowing Base Subsidiary or Included Subsidiary to a Person that is not
an Affiliate of such Foreign Borrowing Base Subsidiary or Included Subsidiary
and that constitutes Collateral in which the Administrative Agent has a fully
perfected first priority Lien; provided, however, that an Account shall not be
an "Eligible Foreign Receivables" if any of the following shall be true:
(a) (i) to the extent the original terms of sale provide for
payment from 90 to 120 days, in each case, such Account is more than 30
days past due according to such original terms of sale, or (ii) to the
extent the original terms of sale provide for payment in less than 90
days, such Account is more than 60 days past due according to such
original terms of sale; or
(b) any representation or warranty contained in this Agreement
or any other Loan Document with respect to such specific Account is not
true and correct with respect to such Account; or
(c) the Account Debtor on such Account has disputed liability
or made any claim with respect to any other Account due from such
Account Debtor to such Foreign Borrowing Base Subsidiary or Included
Subsidiary but only to the extent of such dispute or claim; or
(d) the Account Debtor on such Account has (i) filed a
petition for bankruptcy or any other relief under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, (ii) made
an assignment for the benefit of creditors, (iii) had filed against it
any petition or other application for relief under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, (iv) has
failed, suspended business operations, become insolvent, called a
meeting of its creditors for the purpose of obtaining any financial
concession or accommodation or (v) had or suffered a receiver or a
trustee to be appointed for all or a significant portion of its assets
or affairs; or
(e) the Account Debtor on such Account or any of its
Affiliates is also a supplier to or creditor of such Foreign Borrowing
Base Subsidiary or Included Subsidiary
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unless such supplier or creditor has executed a no-offset letter
satisfactory to the Administrative Agent, in its sole discretion or, if
such supplier or creditor has not executed a no-offset letter, such
Account shall be ineligible pursuant to this clause (e) only to the
extent of such offset; or
(f) the sale represented by such Account is to an Account
Debtor located outside of Canada, Australia or England; or
(g) the sale to such Account Debtor on such Account is on a
xxxx-on-hold, guaranteed sale, cash sale, sale-and-return,
sale-on-approval or consignment basis; or
(h) such Account is subject to a Lien in favor of any Person
other than the Administrative Agent for the benefit of the Secured
Parties; or
(i) such Account is subject to any deduction, offset,
counterclaim, return privilege or other conditions other than volume
sales discounts given in the ordinary course of such Foreign Borrowing
Base Subsidiary's or Included Subsidiary's business; provided, however,
that such Account shall be ineligible pursuant to this clause (i) only
to the extent of such deduction, offset, counterclaim, return privilege
or other condition; or
(j) 50% or more of the outstanding Accounts of the Account
Debtor have become, or have been determined by the Administrative
Agent, in accordance with the provisions hereof, to be, past due; or
(k) the sale represented by such Account is denominated in a
currency other than Canadian Dollars, English Pounds or Australian
Dollars, as applicable; or
(l) such Account is not evidenced by an invoice or other
writing in form acceptable to the Administrative Agent, in its sole
discretion; or
(m) such Foreign Borrowing Base Subsidiary or Included
Subsidiary, in order to be entitled to collect such Account, is
required to perform any additional service for, or perform or incur any
additional obligation to, the Person to whom or to which it was made;
or
(n) the total Accounts of such Account Debtor to the Foreign
Borrowing Base Subsidiaries and Included Subsidiaries represent more
than 25% of the Eligible Receivables of the Foreign Borrowing Base
Subsidiaries and Included Subsidiaries at such time, but only to the
extent of such excess;
(o) such Account is included in the NAPA Xxxx Plus Program;
provided, that all such Accounts shall not be ineligible pursuant to
this clause (o) (i) for the first thirty (30) days after the Closing
Date, and (ii) commencing with the thirty-first (31st) day after the
Closing Date and thereafter, to the extent that NAPA has guaranteed or
assumed such Account, as determined by the Administrative Agent in its
sole discretion; or
(p) the Administrative Agent, in accordance with its customary
criteria, determines, in its sole discretion, that such Account might
not be paid or is otherwise ineligible.
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"Eligible Foreign Work-in-Process Inventory" means a class of
Eligible Foreign Inventory consisting of the Eligible Foreign Inventory of any
Foreign Borrowing Base Subsidiary and Included Subsidiary, if applicable, that
is classified, consistent with past practice, on such Foreign Borrowing Base
Subsidiary's or Included Subsidiary's accounting system as "work-in-process".
"Entry Date" means the date of the entry of the Final Order.
"Environmental Laws" means all applicable Requirements of Law
now or hereafter in effect and as amended or supplemented from time to time,
relating to pollution or the regulation and protection of human health, safety,
the environment or natural resources, including the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. (S)
9601 et seq.); the Hazardous Material Transportation Act, as amended (49
U.S.C.(S) 1801 et seq.); the Federal Insecticide, Fungicide, and Rodenticide
Act, as amended (7 U.S.C.(S) 136 et seq.); the Resource Conservation and
Recovery Act, as amended (42 U.S.C.(S) 6901 et seq.); the Toxic Substance
Control Act, as amended (42 U.S.C.(S) 7401 et seq.); the Clean Air Act, as
amended (42 U.S.C.(S) 740 et seq.); the Federal Water Pollution Control Act, as
amended (33 U.S.C.(S) 1251 et seq.); the Occupational Safety and Health Act, as
amended (29 U.S.C.(S) 651 et seq.); the Safe Drinking Water Act, as amended (42
U.S.C.(S) 300f et seq.); and in each case, their state and local counterparts or
equivalents and any transfer of ownership notification or approval statute,
including the Industrial Site Recovery Act (N.J. Stat. Xxx.(S) 13:1K-6 et seq.).
"Environmental Liabilities and Costs" means, with respect to
any Person, all liabilities, obligations, responsibilities, Remedial Actions,
losses, damages, punitive damages, consequential damages, treble damages, costs
and expenses (including all fees, disbursements and expenses of counsel, experts
and consultants and costs of investigation and feasibility studies), fines,
penalties, sanctions and interest incurred as a result of any claim or demand by
any other Person, whether based in contract, tort, implied or express warranty,
strict liability, criminal or civil statute, including any thereof arising under
any Environmental Law, Permit, order or agreement with any Governmental
Authority or other Person, in each case relating to any environmental, health or
safety condition or to any Release or threatened Release and resulting from the
past, present or future operations of, or ownership of property by, such Person
or any of its Subsidiaries.
"Environmental Lien" means any Lien in favor of any
Governmental Authority for Environmental Liabilities and Costs.
"ERISA" means the Employee Retirement Income Security Act of
1974 (or any successor legislation thereto), as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control or treated as a single employer with the
Borrower or any of its Subsidiaries within the meaning of Section 414(b), (c),
(m) or (o) of the Code.
"ERISA Event" means (a) a reportable event described in
Section 4043(b) or 4043(c)(1), (2), (3), (5), (6), (8) or (9) of ERISA with
respect to a Title IV Plan or a Multiemployer Plan, (b) the withdrawal of the
Borrower, any of its Subsidiaries or any ERISA Affiliate from a Title IV Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA, (c) the
complete or
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partial withdrawal of the Borrower, any of its Subsidiaries or any ERISA
Affiliate from any Multiemployer Plan, (d) notice of reorganization or
insolvency of a Multiemployer Plan, (e) the filing of a notice of intent to
terminate a Title IV Plan or the treatment of a plan amendment as a 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 a Title IV Plan or Multiemployer Plan, (h) the
imposition of a lien under Section 412 of the Code or Section 302 of ERISA on
the Borrower or any of its Subsidiaries or any ERISA Affiliate or (i) 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 the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA.
"Escrow Account" means the escrow account established pursuant
to the Intercreditor Agreement.
"Euro Liquidity" means Foreign Availability minus outstandings
under the Foreign Revolving Credit Facility plus the Specified Foreign Sublimit
Amount plus either (x) to the extent there are no Foreign Revolving Credit
Outstandings or Domestic Revolving Credit Outstandings under the Foreign
Sublimit at such time, cash at Mercolec or (y) to the extent there are Foreign
Revolving Credit Outstandings or Domestic Revolving Credit Outstandings under
the Foreign Sublimit at such time, $1,000,000.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Federal Reserve Board, as in effect from time to
time.
"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 Dow Xxxxx Markets Telerate Page 3750 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 Dow
Xxxxx Markets Telerate Page 3750 (or otherwise on the Dow Xxxxx Markets screen),
the Eurodollar Base Rate for the purposes of this definition shall be determined
by reference to such other comparable publicly available service for displaying
eurodollar rates as may be selected by the Administrative Agent, or, in the
absence of such availability, the Eurodollar Base Rate shall be the rate of
interest determined by the Administrative Agent to be the rate per annum at
which deposits in Dollars are offered by the principal office of Citibank in
London to major banks in the London interbank market at 11:00 a.m. (London time)
two Business Days before the first day of such Interest Period in an amount
substantially equal to the Eurodollar Rate Loan of Citibank for a period equal
to such Interest Period.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office" opposite
its name on Schedule II (Applicable Lending Offices and Addresses for Notices)
or on the Assignment and Acceptance by which it became a Lender (or, if no such
office is specified, its Domestic Lending Office) or such other office of such
Lender as such Lender may from time to time specify to the Borrowers and the
Administrative Agent.
"Eurodollar Rate" means, with respect to any Interest Period
for any Eurodollar Rate Loan, an interest rate per annum equal to the rate per
annum obtained by dividing (a) the
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Eurodollar Base Rate by (b)(i) a percentage equal to 100% minus (ii) the reserve
percentage applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Federal Reserve Board
for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) for a member bank of the
Federal Reserve System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to any
other category of liabilities that includes deposits by reference to which the
Eurodollar Rate is determined) having a term equal to such Interest Period.
"Eurodollar Rate Loan" means any Loan that, for an Interest
Period, bears interest based on the Eurodollar Rate.
"European A/R Facility" means the facility under which
Accounts are sold or pledged pursuant to (i) those certain receivables sale
agreements or receivables subrogation agreements, in each case entered into in
June 1997, between certain Subsidiaries of EHE as sellers and Exide Europe
Funding, Ltd. as buyer, (ii) that certain receivables purchase agreement, dated
as of June 3, 1997, by and among Exide Europe Funding, Ltd. as seller, Eureka
Securitization, plc as buyer and Citibank, N.A. as operating agent, (iii) that
certain parallel purchase agreement, dated as of June 3, 1997, by and among
Exide Europe Funding, Ltd. as seller, certain liquidity banks party thereto as
buyers and Citibank, ,N.A. as operating agent, and (iv) any agreements which
replace, amend or supplement any of the foregoing or add additional Foreign
Subsidiaries to the European A/R Facility in existence on the date of such
addition; provided that no recourse (other than recourse in connection with
Standard Securitization Undertakings) shall be provided to the Company or any of
its Subsidiaries (other than the European A/R Subsidiaries, if any) pursuant to
the European A/R Facility or any documentation related thereto (and no
representations, warranties, undertakings or assurances shall be provided by the
Company or any of its Subsidiaries (other than the European A/R Subsidiaries, if
any) in connection therewith, other than Standard Securitization Undertakings.
"European A/R Facility Accounts" means Accounts which have
been sold or pledged pursuant to the European A/R Facility.
"European A/R Facility Attributed Indebtedness" means at any
time, the amount equal to (a) the aggregate amount theretofore paid to EHE
and/or its Subsidiaries in respect of the Accounts sold by any of them pursuant
to the European A/R Facility, in each case to the extent the respective Accounts
have not yet been repaid by the respective Account Debtor, repurchased by EHE
and/or its Subsidiaries, written off as uncollectible or otherwise reduced or
cancelled minus (b) any cash and Cash Equivalents then held as collateral
security by the European A/R Financier on account of amounts owing to the
European A/R Financier under the European A/R Facility (it being the intent of
the parties that the amount of the European A/R Facility Attributed Indebtedness
at any time outstanding approximate as closely as possible, after reduction for
such cash and Cash Equivalent collateral, the principal amount of Indebtedness
which would be outstanding at such time under the European A/R Facility if same
were structured as a secured lending agreement).
"European A/R Financier" means at any time any purchaser,
lender or provider of credit (excluding EHE and its Subsidiaries) pursuant to
the European A/R Facility then in effect.
"European A/R Maximum Commitment Amount" means $200,000,000.
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Credit Agreement
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"European A/R Subsidiaries" means any Wholly-Owned
Subsidiaries of EHE which engage in no activities other than in connection with
the financing of accounts receivable and which are designated (as provided
below) as European A/R Subsidiaries (a) no portion of the Indebtedness or any
other obligation (contingent or otherwise) of which (i) is guaranteed by the
Company or any other Subsidiary of the Company (excluding guarantees of
obligations (other than the principal of, and interest on, Indebtedness))
pursuant to Standard Securitization Undertakings, (ii) is recourse to or
obligates the Company or any other Subsidiary of the Company in any way (other
than pursuant to Standard Securitization Undertakings) or (iii) subjects any
property or asset of the Company or any other Subsidiary of the Company,
directly or indirectly, contingently or otherwise to the satisfaction thereof
(other than pursuant to Standard Securitization Undertakings), (b) with which
neither the Company nor any of its Subsidiaries has any contract, agreement,
arrangement or understanding (other than pursuant to the European A/R Facility
(including with respect to fees payable in the ordinary course of business in
connection with the servicing of accounts receivable and related assets)) on
terms less favorable to the Company or such Subsidiary than those that might be
obtained at the time from Persons that are not Affiliates of the Company, and
(c) to which neither the Company nor any other Subsidiary of the Company has any
obligation to maintain or preserve either such entity's financial condition or
cause such entity to achieve certain levels of operating results. Any such
designation shall be evidenced by filing with the Administrative Agent an
officer's certificate of the Company certifying that, to the best of such
officer's knowledge and belief after consultation with counsel, such designation
complies with the foregoing conditions.
"European Cash Proceeds" means Net Cash Proceeds of an Asset
Sale of any Foreign Subsidiary of the Company.
"Event of Default" has the meaning specified in Section 9.1
(Events of Default).
"Existing Mercolec Loans" means each revolving loan made prior
to the Petition Date by any Other Foreign Subsidiary to Mercolec.
"Facilities" means the Term Loan Facility and the Revolving
Credit Facilities.
"Fair Market Value" means (a) with respect to any asset or
group of assets (other than a marketable Security) at any date, the value of the
consideration obtainable in a sale of such asset at such date assuming a sale by
a willing seller to a willing purchaser dealing at arm's length and arranged in
an orderly manner over a reasonable period of time having regard to the nature
and characteristics of such asset, as reasonably determined by the Board of
Directors of the relevant Borrower or, if such asset shall have been the subject
of a relatively contemporaneous appraisal by an independent third party
appraiser, the basic assumptions underlying which have not materially changed
since its date, the value set forth in such appraisal and (b) with respect to
any marketable Security at any date, the closing sale price of such Security on
the Business Day next preceding such date, as appearing in any published list of
any national securities exchange or the NASDAQ Stock Market or, if there is no
such closing sale price of such Security, the final price for the purchase of
such Security at face value quoted on such business day by a financial
institution of recognized standing regularly dealing in securities of such type
and selected by the Administrative 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
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Credit Agreement
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funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Federal Reserve Board" means the Board of Governors of the
United States Federal Reserve System, or any successor thereto.
"Fee Letters" shall mean any letters addressed to the Company
from CUSA and/or the Arrangers with respect to certain fees to be paid from time
to time to CUSA and/or the Arrangers.
"Filing Subsidiary" means each Domestic Subsidiary of the
Company other than any such Domestic Subsidiary which is a Non-Filing
Subsidiary.
"Final Order" means an order of the Bankruptcy Court pursuant
to Section 364 of the Bankruptcy Code, in form and substance satisfactory to the
Administrative Agent and the Requisite Lenders, approving this Agreement and the
other Loan Documents, authorizing the incurrence by the Borrowers of permanent
post-petition secured and super-priority Indebtedness in accordance with this
Agreement, as to which no stay has been entered that has not been reversed,
modified, vacated or overturned.
"Financial Statements" means the financial statements of the
Borrower and its Subsidiaries delivered in accordance with Section 4.4
(Financial Statements) and Section 6.1 (Financial Statements).
"First Day Orders" means all orders entered by the Bankruptcy
Court on the Petition Date or within five Business Days of the Petition Date or
based on motions filed on the Petition Date.
"Fiscal Quarter" means each of the three month periods ending
on March 31, June 30, September 30 and December 31.
"Fiscal Year" means the twelve month period ending on March
31.
"Foreign Advance Rate" means, with respect to any Foreign
Borrowing Base Subsidiary and any Included Subsidiary (a) up to 85% in the case
of Eligible Foreign Receivables, (b) up to 52% in the case of Eligible Foreign
Raw Materials, (c) up to 54% in the case of Eligible Foreign Finished Goods, (d)
up to 26% in the case of Eligible Foreign Work-in-Process Inventory, (e) up to
75% of the orderly liquidation value in the case of Eligible Foreign Equipment,
and (f) up to 50% in the case of Eligible Foreign Real Property.
"Foreign Availability" means, at any time, the Foreign
Borrowing Base at such time minus any Foreign Availability Reserves in effect at
such time.
"Foreign Availability Reserves" means, as of four Business
Days after the date of written notice of any determination thereof to the
Company and the Pre-Petition Agent by the Collateral Monitoring Agent, such
amounts as the Collateral Monitoring Agent may from time to time establish
against the Foreign Revolving Credit Facility, in the Collateral Monitoring
Agent's
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sole discretion, in order either to (a) preserve the value of the Foreign
Collateral or the Administrative Agent's Lien thereon, (b) provide for the
payment of unanticipated liabilities of any Loan Party arising after the Closing
Date, including, without limitation, (x) preferential debts which under
applicable law would be prior to the claims of the Secured Parties, (y)
Inventory which is subject to title retention claims of the suppliers thereof,
and (z) a reserve in the amount of the outstanding Obligations at such time
attributable to cash management, including but not limited to Automatic
Clearinghouse (ACH) functions, performed by Citibank with respect to any Foreign
Borrowing Base Subsidiary or Included Subsidiary.
"Foreign Available Credit" means, at any time, an amount equal
to (a) the lesser of (i) $50,000,000 of the Revolving Credit Commitments (as
such amount may be reduced from time to time pursuant to Section 2.5 (Reduction
and Termination of Commitments) and (ii) the Foreign Borrowing Base of the
relevant Foreign Borrowing Base Subsidiary and Included Subsidiary, if
applicable, at such time, minus (b) the sum of (i) the aggregate Foreign
Revolving Credit Outstandings at such time and (ii) any Foreign Availability
Reserves in effect at such time.
"Foreign Borrowing Base" means, at any time for any Foreign
Borrowing Base Subsidiary and any Included Subsidiary, if applicable, the sum of
(a) the product of (i) the Foreign Advance Rate then in effect for Eligible
Foreign Receivables and (ii) the face amount of all Eligible Foreign Receivables
of such Foreign Borrowing Base Subsidiary and Included Subsidiary (calculated
net of all finance charges, late fees and other fees that are unearned, sales,
excise or similar taxes, and credits or allowances granted at such time) minus
any Foreign Eligibility Reserves then in effect with respect to such Eligible
Foreign Receivables, (b) the sum of the product of (i) the Foreign Advance Rate
then in effect for each class of Eligible Foreign Inventory and (ii) the value
of each such class of Eligible Foreign Inventory of such Foreign Borrowing Base
Subsidiary and Included Subsidiary (valued, in each case, at the lower of cost
and market on a first-in, first-out basis) constituting each such class at such
time of such Foreign Borrowing Base Subsidiary and Included Subsidiary minus any
Foreign Eligibility Reserves then in effect with respect to such Eligible
Foreign Inventory, (c) the product of (i) the Foreign Advance Rate then in
effect for Eligible Foreign Equipment and (ii) the orderly liquidation value of
Eligible Foreign Equipment of such Foreign Borrowing Base Subsidiary and
Included Subsidiary (as determined by the Collateral Monitoring Agent) at such
time minus any Foreign Eligibility Reserves then in effect with respect to such
Eligible Foreign Equipment, (d) the product of (i) the Foreign Advance Rate then
in effect for Eligible Foreign Real Property and (ii) the Mortgage Value of the
Eligible Foreign Real Property of such Foreign Borrowing Base Subsidiary and
Included Subsidiary at such time, minus any Foreign Eligibility Reserves then in
effect with respect to such Eligible Foreign Real Property, and (e) up to 95% of
the aggregate European Cash Proceeds held in a Deposit Account or Securities
Account under the sole dominion and control of the Administrative Agent and in
which the Administrative Agent, for the ratable benefit of the Lenders, has a
first priority, perfected security interest (as confirmed by an opinion of
counsel to the Company, which opinion shall be in form and substance reasonably
satisfactory to the Administrative Agent); provided that the sum of (i) the
availability under the Foreign Advance Rate based upon the percentages contained
in clauses (e) and (f) of the definition of "Foreign Advance Rate", plus (ii)
the availability under the Domestic Advance Rate based upon the percentages
contained in clauses (e) and (f) of the definition of "Domestic Advance Rate"
shall not exceed the lesser of (x) 20% of the aggregate Total Availability and
(y) $60,000,000.
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"Foreign Borrowing Base Asset Sale" means an Asset Sale by any
Foreign Borrowing Base Subsidiary or any Included Subsidiary of assets which
comprise any part of the Foreign Borrowing Base.
"Foreign Borrowing Base Subsidiary" means Exide Canada Inc.,
Euro Exide Corporation Limited and Exide Australia Pty Limited.
"Foreign Collateral" means the "Collateral" as defined in each
Foreign Collateral Document.
"Foreign Collateral Requirement" means, with respect to each
Foreign Loan Party, the requirement that:
(a) the Administrative Agent shall have received:
(i) with respect to each Foreign Guarantor,
counterparts, duly executed and delivered by such Foreign Guarantor, of
each Foreign Loan Document (other than any Foreign Collateral
Document); provided that such Foreign Guaranty may be limited to the
extent that the incurrence of the Foreign Guaranty Obligations by such
Foreign Guarantor pursuant to a Foreign Guaranty would violate
applicable law or any Contractual Obligation of such Foreign Guarantor
or an Affiliate thereof; provided, further, that the Administrative
Agent shall have received evidence of such violation in form and
substance satisfactory to it;
(ii) with respect to each Foreign Borrowing Base
Subsidiary, an original Intercompany Note, duly executed and delivered
by such Foreign Borrowing Base Subsidiary and endorsed in blank to the
Administrative Agent;
(iii) counterparts, duly executed and delivered by
the relevant Foreign Loan Party, of each Foreign Collateral Document,
except for any Foreign Collateral Document pursuant to which the grant
of a Lien in respect of any property covered or purported to be covered
by such Foreign Collateral Document would violate applicable law or any
Contractual Obligation of such Foreign Loan Party or an Affiliate
thereof; provided, that, the Administrative Agent shall have received
evidence of such violation in form and substance satisfactory to it;
(iv) share certificates together with stamped (where
applicable), executed blank stock transfers or other relevant transfer
documents in respect of all shares owned by such Foreign Loan Party
incorporated in England and Wales and charged or pledged under the
Foreign Collateral Documents;
(v) a search in respect of such Foreign Loan Party
at the applicable commercial register showing, inter alia, no Liens
over any of its assets (other than Liens permitted under the terms of
this Agreement) and no appointment of a receiver, liquidator or
administrator or the presentation of any petition in respect of any of
the same;
(vi) evidence satisfactory to it that all stamp duty
payable (if any) in connection with such Foreign Loan Documents has
been paid or will be paid following the date upon which such Foreign
Loan Documents are executed and delivered within the prescribed time
periods;
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(vii) to the extent such Foreign Loan Party is
required to deliver a Foreign Mortgage, all original title deeds (if
any) in respect of such Foreign Loan Party's interest in real property
together with such undertakings as to the safe custody and delivery of
documents of title and such copies of such documents as the
Administrative Agent may require;
(viii) a letter from such firm of attorneys as the
Administrative Agent may require addressed to the Administrative Agent
undertaking:
(i) to deal with registration of the
Company's or the Administrative Agent's legal charges, as the
case may be, over such of such Foreign Loan Party's properties
as are situated in England and Wales; and
(ii) subject as required to comply with clause
(viii)(i) above, to hold the title deeds to such properties to
the order of the Company or the Administrative Agent, as
applicable;
(ix) official priority searches relating to the
properties charged under the Foreign Collateral Documents in favor of
the Company or the Administrative Agent, as applicable, in respect of
any registered titles giving a sufficient period of priority and
official priority searches relating to the properties charged under the
Foreign Collateral Documents in favor of the Company or the
Administrative Agent, as applicable, in respect of any unregistered
land in respect of each of the land charges registers giving a
sufficient period of priority;
(x) written confirmation from the person being
appointed by such Foreign Loan Party as its agent for the acceptance of
process to the effect that such person accepts such appointment;
(xi) copies of all third party consents which the
Administrative Agent requires pursuant to the terms of the Foreign
Collateral Documents in connection with the creation or registration of
any Lien contained in any Foreign Collateral Document and all notices
of assignment or charge required to be given under the terms of the
Foreign Collateral Documents;
(xii) a certificate of the Secretary or an Assistant
Secretary of such Foreign Loan Party certifying (A) the names and true
signatures of each officer of such Foreign Loan Party who has been
authorized to execute and deliver any Foreign Loan Document or other
document required hereunder to be executed and delivered by or on
behalf of such Foreign Loan Party, (B) the by-laws (or equivalent
Constituent Document) of such Foreign Loan Party as in effect on the
date of such certification, and (C) the resolutions of such Foreign
Loan Party's Board of Directors (or equivalent governing body)
approving and authorizing the execution, delivery and performance of
this Agreement and the other Foreign Loan Documents to which it is a
party;
(xiii) a favorable opinion of counsel to such Foreign
Guarantor, in substantially the form of Exhibit G-2 (Form of Opinion of
Counsel for the Foreign Loan Parties), addressed to the Administrative
Agent and the Lenders and addressing such other matters as any Lender
through the Administrative Agent may reasonably request; and
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(b) all documents and instruments required by applicable law
or reasonably requested by the Administrative Agent to be filed, registered or
recorded to create the Liens intended to be created by such Foreign Collateral
Documents and to perfect such Liens to the extent required by, and with the
priority required by, such Foreign Collateral Documents shall have been filed,
registered or recorded or delivered to the Administrative Agent for filing,
registration or recording; and
(c) the Administrative Agent shall have received such
additional documents, information and materials as any Lender, through the
Administrative Agent, may reasonably request.
"Foreign Collateral Documents" means the Foreign Pledge and
Security Agreements, the Foreign Mortgages and any other document executed and
delivered by a Foreign Guarantor granting a Lien on any of its property to
secure payment of its Foreign Guaranty Obligations.
"Foreign Eligibility Reserves" means, effective as of four
Business Days after the date of written notice of any determination thereof to
the Company and the Pre-Petition Agent by the Collateral Monitoring Agent, such
amounts as the Collateral Monitoring Agent, in its sole discretion, may from
time to time establish against the gross amounts of Eligible Foreign
Receivables, Eligible Foreign Inventory, Eligible Foreign Equipment and Eligible
Foreign Real Property to reflect risks or contingencies arising after the
Closing Date that may affect any one or class of such items and that have not
already been taken into account in the calculation of the Foreign Borrowing
Base, which shall include, without limitation, (a) in respect of Eligible
Foreign Inventory, (i) a reserve for estimated warranty exposure for both
industrial and automotive at the time of a liquidation as computed by a field
examination in an amount equal to three (3) months of such estimated exposure,
(ii) a reserve to eliminate capitalized unfavorable manufacturing variances per
the general ledger of the Company from the Inventory, (iii) a reserve for slow
moving/obsolete Inventory as identified by the Company and recorded as a reserve
per the Company's general ledger, (iv) a reserve for junk battery and premium
reserve per the Company's general ledger, (v) a shrink reserve for book to
physical Inventory adjustments, and (vi) a reserve to reconcile the difference
between the Company's perpetual Inventory and general ledger; and (b) in respect
of Eligible Foreign Receivables, (i) an excess dilution reserve equal to the
amount of dilution (computed on a rolling three (3) month average based upon the
accounts receivable rollforward provided by the Company) in excess of five
percent (5%), (ii) general ledger reserves for over-xxxxxxxx to customers for
advertising, promotional allowances, etc., and (iii) a reserve for open and
unused credit balances greater than sixty (60) days past due that have been
issued for returns, promotional allowances, stock lifts, rotations and price
adjustments.
"Foreign Guarantor" means each Foreign Subsidiary of the
Company party to a Foreign Guaranty.
"Foreign Guaranty" means each guaranty, in form and substance
satisfactory to the Administrative Agent, executed and delivered by (a) an Other
Foreign Subsidiary Borrower or a Second Tier Foreign Subsidiary Borrower in
favor of the Company and assigned to the Administrative Agent, guaranteeing the
obligations of the relevant Foreign Subsidiary Lender in respect of any Foreign
Revolving Loans or Domestic Revolving Loans advanced to such Foreign Subsidiary
Lender pursuant to a Foreign Intercompany Loan, and (b) any Non-EHE Subsidiary
in favor of the Administrative Agent, guaranteeing the Obligations of the
Borrowers in respect of
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any Foreign Revolving Loans or Domestic Revolving Loans advanced to such Non-EHE
Subsidiary pursuant to a Foreign Intercompany Loan.
"Foreign Intercompany Loan" means each revolving loan made by
an Intercompany Lender to an Intercompany Borrower. Foreign Intercompany Loans
may not be Mercolec Loans.
"Foreign LC Subsidiary" means each Foreign Subsidiary of the
Company listed on Schedule III hereto or as otherwise approved by the
Administrative Agent.
"Foreign Letter of Credit Obligations" means, at any time, the
aggregate of all liabilities at such time of the Borrowers to all Issuers with
respect to Letters of Credit issued under the Foreign Revolving Credit Facility,
whether or not any such liability is contingent, including, without duplication,
the sum of (a) the Reimbursement Obligations in respect of such Letters of
Credit at such time and (b) the Foreign Letter of Credit Undrawn Amounts at such
time.
"Foreign Letter of Credit Undrawn Amounts" means, at any time,
the aggregate undrawn face amount of all Letters of Credit issued under the
Foreign Revolving Credit Facility outstanding at such time.
"Foreign Loan Documents" means the Foreign Guaranty, each
Intercompany Note, the Foreign Collateral Documents and each other document
executed and delivered by a Foreign Loan Party in respect of its Foreign
Obligations.
"Foreign Loan Party" means each Foreign Guarantor and each
Foreign Borrowing Base Subsidiary.
"Foreign Maximum Credit" means, at any time, the lesser of (i)
$50,000,000 of the Revolving Credit Commitments (as such amount may be reduced
from time to time pursuant to Section 2.5 (Reduction and Termination of
Commitments) and (ii) the Foreign Borrowing Base of the relevant Foreign
Borrowing Base Subsidiary at such time.
"Foreign Mortgages" means the mortgages, deeds of trust or
other real estate security documents, in form and substance satisfactory to the
Administrative Agent, executed and delivered by a Foreign Loan Party in favor of
the Company and assigned to the Administrative Agent, or with respect to any
Non-EHE Subsidiary, in favor of the Administrative Agent, in each case, to
secure its Foreign Obligations.
"Foreign Non-Borrowing Base Asset Sale" means an Asset Sale by
any Foreign Borrowing Base Subsidiary or an Included Subsidiary of assets which
do not comprise part of the Foreign Borrowing Base.
"Foreign Obligations" means, in the case of any Foreign
Guarantor, its obligations under any Foreign Guaranty executed by it and, in the
case of any Intercompany Borrower, its obligations under any Intercompany Note
made by it.
"Foreign Pledge and Security Agreements" means each fixed and
floating charge or security agreement, in form and substance satisfactory to the
Administrative Agent, executed and delivered by a Foreign Loan Party in favor of
the Company and assigned to the
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Administrative Agent, or with respect to any Non-EHE Subsidiary, in favor of the
Administrative Agent, in each case, to secure its Foreign Obligations.
"Foreign Revolving Credit Borrowing" means Foreign Revolving
Loans made on the same day by the Revolving Credit Lenders ratably according to
their respective Revolving Credit Commitment.
"Foreign Revolving Credit Facility" means the Revolving Credit
Commitments and the provisions herein related to the Foreign Revolving Loans.
"Foreign Revolving Credit Outstandings" means, at any
particular time, the sum of (a) the principal amount of the Foreign Revolving
Loans outstanding at such time and (b) the Foreign Letter of Credit Obligations
outstanding at such time.
"Foreign Revolving Loan" means a Revolving Loan made to the
Borrowers for the purposes specified in Section 4.12(b) (Use of Proceeds).
"Foreign Sublimit" means $65,000,000.
"Foreign Subsidiary" means any Subsidiary of the Company other
than a Domestic Subsidiary.
"Foreign Subsidiary Lender" has the meaning specified in
Section 8.1(j) (Indebtedness).
"Fund" means any Person (other than a natural Person) that 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.
"GAAP" means generally accepted accounting principles in the
United States of America (or, in the case of financial statements with respect
to any Foreign Subsidiary, generally accepted accounting principles in the
country of organization of such Foreign Subsidiary that are acceptable to the
Administrative Agent) 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 and the statements and pronouncements of the
Financial Accounting Standards Board, or in such other statements by such other
entity as may be in general use by significant segments of the accounting
profession, that are applicable to the circumstances as of the date of
determination (or, in the case of financial statements with respect to any
Foreign Subsidiary, the applicable authority in the country of organization of
such Foreign Subsidiary).
"GNB" means GNB Battery Technologies Japan, Inc.
"Governmental Authority" means any nation, sovereign or
government, any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, including any central bank.
"Grantor" means each Borrower and each Domestic Guarantor.
"Guarantor" means each Domestic Guarantor and each Foreign
Guarantor.
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"Guaranty" means the guaranty of the Obligations of the
Borrowers made by the Domestic Guarantors pursuant to Article X (Guaranty).
"Guaranty Obligation" means, as applied to any Person, any
direct or indirect liability, contingent or otherwise, of such Person with
respect to any Indebtedness of another Person, if the purpose or intent of such
Person in incurring the Guaranty Obligation is to provide assurance to the
obligee of such Indebtedness that such Indebtedness will be paid or discharged,
that any agreement relating thereto will be complied with, or that any holder of
such Indebtedness will be protected (in whole or in part) against loss in
respect thereof, including (a) the direct or indirect 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
Indebtedness of another Person and (b) any liability of such Person for
Indebtedness of another Person through any agreement (contingent or otherwise)
(i) to purchase, repurchase or otherwise acquire such Indebtedness or any
security therefor or to provide funds for the payment or discharge of such
Indebtedness (whether in the form of a loan, advance, stock purchase, capital
contribution or otherwise), (ii) to maintain the solvency or any balance sheet
item, level of income or financial condition of another Person, (iii) to make
take-or-pay or similar payments, if required, regardless of non-performance by
any other party or parties to an agreement, (iv) to purchase, sell or lease (as
lessor or lessee) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Indebtedness or to assure
the holder of such Indebtedness against loss or (v) to supply funds to, or in
any other manner invest in, such other Person (including to pay for property or
services irrespective of whether such property is received or such services are
rendered), if in the case of any agreement described under clause (b)(i), (ii),
(iii), (iv) or (v) above the primary purpose or intent thereof is to provide
assurance that Indebtedness of another Person will be paid or discharged, that
any agreement relating thereto will be complied with or that any holder of such
Indebtedness will be protected (in whole or in part) against loss in respect
thereof. The amount of any Guaranty Obligation shall be equal to the amount of
the Indebtedness so guaranteed or otherwise supported.
"Hedging Contracts" means all Interest Rate Contracts, foreign
exchange contracts, currency swap or option agreements, forward contracts,
commodity swap, purchase or option agreements, other commodity price hedging
arrangements and all other similar agreements or arrangements designed to alter
the risks of any Person arising from fluctuations in interest rates, currency
values or commodity prices.
"Included Subsidiary" means, in the case of any Foreign
Borrowing Base Subsidiary, any Subsidiary or Affiliate thereof domiciled in the
same country as such Foreign Borrowing Base Subsidiary with respect to which the
Foreign Collateral Requirement has been satisfied.
"Increase Date" has the meaning specified in subclause (ii) of
clause (d) of Section 2.1 (The Commitments).
"Indebtedness" of any Person means without duplication (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person evidenced by notes, bonds, debentures or similar instruments or that bear
interest, (c) all reimbursement and all obligations with respect to letters of
credit, bankers' acceptances, surety bonds and performance bonds, whether or not
matured, (d) all indebtedness for the deferred purchase price of property or
services, other than trade payables (including intercompany trade payables)
incurred in the ordinary course of business that are not overdue, (e) all
indebtedness of such Person created or
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arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such property), (f) all Capital Lease Obligations of
such Person and the present value of future rental payments under all synthetic
leases, (g) all Guaranty Obligations of such Person, (h) all obligations of such
Person to purchase, redeem, retire, defease or otherwise acquire for value any
Stock or Stock Equivalents of such Person, valued, in the case of redeemable
preferred stock, at the greater of its voluntary liquidation preference and its
involuntary liquidation preference plus accrued and unpaid dividends, (i) all
payments that such Person would have to make in the event of an early
termination on the date Indebtedness of such Person is being determined in
respect of Hedging Contracts of such Person and (j) all Indebtedness of the type
referred to above secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien upon or
in property (including Accounts and General Intangibles) owned by such Person,
even though such Person has not assumed or become liable for the payment of such
Indebtedness.
"Indemnified Matter" has the meaning specified in Section 13.4
(Indemnities).
"Indemnitee" has the meaning specified in Section 13.4
(Indemnities).
"Intellectual Property" means, collectively, all rights,
priorities and privileges of any Grantor relating to intellectual property,
whether arising under United States, multinational or foreign laws or otherwise,
including Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks,
Trademark Licenses and trade secrets, in each case together with all rights to
xxx at law or in equity for any infringement or other impairment thereof,
including the right to receive all proceeds and damages therefrom.
"Intercompany Borrower" means each Other Foreign Subsidiary
Borrower or Foreign Borrowing Base Subsidiary that executes and delivers an
Intercompany Note in favor of an Intercompany Lender.
"Intercompany Lender" means the Company or any Foreign
Subsidiary Lender that has made Foreign Intercompany Loans to any Intercompany
Borrower.
"Intercompany Notes" means each promissory note evidencing a
Foreign Intercompany Loan, in substantially the form attached hereto as Exhibit
M (Form of Intercompany Revolving Credit Note) (with such changes thereto as may
be agreed by the Administrative Agent) issued by an Intercompany Borrower in
favor of an Intercompany Lender.
"Intercreditor Agreement" means the Intercreditor and
Subordination Agreement, in the form attached hereto as Exhibit N (Form of
Intercreditor Agreement), executed by the Pre-Petition Agent, the Administrative
Agent, the Company, GNB and certain Foreign Subsidiaries of the Company.
"Interest Expense" means, for any Person for any period, (a)
total interest expense of such Person and its Subsidiaries for such period
determined on a Consolidated basis in conformity with GAAP and including, in any
event, interest capitalized during such period and net costs under Interest Rate
Contracts for such period minus (b) net gains of such Person and its
Subsidiaries under Interest Rate Contracts for such period determined on a
Consolidated basis in
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conformity with GAAP and minus (c) any interest income of such Person and its
Subsidiaries for such period determined on a Consolidated basis in conformity
with GAAP.
"Interest Period" means, in the case of any Eurodollar Rate
Loan, (a) initially, the period commencing on the date such Eurodollar Rate Loan
is made or on the date of conversion of a Base Rate Loan to such Eurodollar Rate
Loan and ending (i) prior to the Syndication Completion Date, one, two or four
weeks thereafter, and (ii) after the Syndication Completion Date, one, two,
three or six months thereafter, as selected by the Borrower in its Notice of
Borrowing or Notice of Conversion or Continuation given to the Administrative
Agent pursuant to Section 2.2 (Borrowing Procedures) or Section 2.11
(Conversion/Continuation Option) and (b) thereafter, if such Loan is continued,
in whole or in part, as a Eurodollar Rate Loan pursuant to Section 2.11
(Conversion/Continuation Option), a period commencing on the last day of the
immediately preceding Interest Period therefor and ending (i) prior to the
Syndication Completion Date, one, two or four weeks thereafter, and (ii) after
the Syndication Completion Date, one, two, three or six months thereafter, as
selected by the Company in its Notice of Conversion or Continuation given to the
Administrative Agent pursuant to Section 2.11 (Conversion/Continuation Option);
provided, however, that all of the foregoing provisions relating to Interest
Periods in respect of Eurodollar Rate Loans are subject to the following:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day, unless the
result of such extension would be to extend such Interest
Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period that 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;
(iii) the Company may not select any Interest Period in
respect of Loans having an aggregate principal amount of less
than $5,000,000; and
(iv) there shall be outstanding at any one time no
more than eight (8) Interest Periods in the aggregate.
"Interest Rate Contracts" means all interest rate swap
agreements, interest rate cap agreements, interest rate collar agreements and
interest rate insurance.
"Interim Facilities" means that portion of the Facilities made
available to the Borrowers prior to the Entry Date, as approved by the Interim
Order. The aggregate principal amount of the Interim Facilities shall not exceed
$200,000,000 of which no more than $96,806,576 in aggregate principal amount may
consist of Revolving Loans and no more than $40,000,000 in aggregate principal
amount may consist of Revolving Loans under the Foreign Sublimit and the Foreign
Revolving Credit Facility.
"Interim Order" means that certain order issued by the
Bankruptcy Court in substantially the form of Exhibit J (Form of Interim Order)
and otherwise in form and substance satisfactory to the Administrative Agent.
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"Interim Period" means the period beginning on the Closing
Date and ending on the earlier to occur of (a) thirty (30) days after the
Closing Date and (b) satisfaction of the Foreign Collateral Requirement with
respect to each Foreign Subsidiary of the Company.
"Investment" means, with respect to any Person, (a) any
purchase or other acquisition by such Person of (i) any Security issued by, (ii)
a beneficial interest in any Security issued by, or (iii) any other equity
ownership interest in, any other Person, (b) any purchase by such Person of all
or a significant part of the assets of a business conducted by any other Person,
or all or substantially all of the assets constituting the business of a
division, branch or other unit operation of any other Person, (c) any loan,
advance (other than deposits with financial institutions available for
withdrawal on demand, prepaid expenses, accounts receivable and similar items
made or incurred in the ordinary course of business as presently conducted) or
capital contribution by such Person to any other Person, including all
Indebtedness of any other Person to such Person arising from a sale of property
by such Person other than in the ordinary course of its business and (d) any
Guaranty Obligation incurred by such Person in respect of Indebtedness of any
other Person.
"Investment Consideration" means, with respect to any
Investment, the aggregate amount of consideration paid by any Borrower or any of
their respective Subsidiaries in connection with therewith, including, without
duplication:
(a) the aggregate amount of cash paid, the aggregate Fair
Market Value of non-cash property delivered and the aggregate principal
amount of Indebtedness incurred by any of Holdings, the Borrower or any
of their respective Subsidiaries in connection with such Investment;
(b) the aggregate amount of Indebtedness and other liabilities
of any Person assumed by any of the Borrowers or any of their
respective Subsidiaries in connection with such Investment; and
(c) the aggregate amount of Indebtedness and other liabilities
retained by any Person that becomes a Wholly-Owned Subsidiary of the
Borrowers or any of their respective Subsidiaries as part of such
Investment.
"IRS" means the Internal Revenue Service of the United States
or any successor thereto.
"Issue" means, with respect to any Letter of Credit, to issue,
extend the expiry of, renew or increase the maximum stated amount (including by
deleting or reducing any scheduled decrease in such maximum stated amount) of,
such Letter of Credit. The terms "Issued" and "Issuance" shall have a
corresponding meaning.
"Issuer" means each Lender or Affiliate of a Lender that (a)
is listed on the signature pages hereof as an "Issuer" or (b) hereafter becomes
an Issuer with the approval of the Administrative Agent and the Company by
agreeing pursuant to an agreement with and in form and substance satisfactory to
the Administrative Agent and the Company to be bound by the terms hereof
applicable to Issuers.
"Land" means, in respect of any Person, all of those plots,
pieces or parcels of land now owned, leased or hereafter acquired or leased or
purported to be owned, leased or
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hereafter acquired or leased (including, in respect of the Loan Parties, as
reflected in the most recent Financial Statements) by such Person.
"Lead Arranger" means Xxxxxxx Xxxxx Barney Inc., in its
capacity as lead arranger and sole book runner for the Facilities.
"Leases" means, with respect to any Person, all of those
leasehold estates in real property of such Person, as lessee, as such may be
amended, supplemented or otherwise modified from time to time.
"Lender" means the Swing Loan Lender and each financial
institution or other entity 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 and Acceptance.
"Letter of Credit" means any letter of credit issued pursuant
to Section 2.4 (Letters of Credit).
"Letter of Credit Obligations" means the Domestic Letter of
Credit Obligations and the Foreign Letter of Credit Obligations.
"Letter of Credit Reimbursement Agreement" has the meaning
specified in clause (e) of Section 2.4 (Letters of Credit).
"Letter of Credit Request" has the meaning specified in clause
(c) of Section 2.4 (Letters of Credit).
"Letter of Credit Undrawn Amounts" means the sum of the
Domestic Letter of Credit Undrawn Amounts plus the Foreign Letter of Credit
Undrawn Amounts.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, charge, deposit arrangement, encumbrance, lien
(statutory or other), security interest or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
intended to assure payment of any Indebtedness or the performance of any other
obligation, including any conditional sale or other title retention agreement,
the interest of a lessor under a Capital Lease, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the UCC or comparable law of any jurisdiction
naming the owner of the asset to which such Lien relates as debtor.
"Liquidity Test" means, on any Measurement Date, after giving
effect to any proposed Adequate Protection Payment (i) US Liquidity shall be
greater than or equal to $35,000,000 and (ii) Euro Liquidity shall be greater
than or equal to $35,000,000. The Liquidity Test shall be measured on each
Measurement Date by reference to the position of the Company and its
Subsidiaries as of the last day of the immediately preceding fiscal month and
shall assume for purposes of such measurement that the mandatory prepayment
under Section 2.9(l) (Mandatory Prepayments) occurred on the last day of such
immediately preceding fiscal month.
"LLC" means each limited liability company in which a Grantor
has an interest.
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"LLC Agreement" means each operating agreement with respect to
an LLC, as each agreement has heretofore been and may hereafter be amended,
restated, supplemented or otherwise modified from time to time.
"Loan" means any loan made by any Lender pursuant to this
Agreement.
"Loan Documents" means, collectively, this Agreement, the
Notes (if any), the Fee Letters, each Letter of Credit Reimbursement Agreement,
each Blocked Account Letter, each Deposit Account Control Letter, the Standstill
Agreement, the Intercreditor Agreement, the Collateral Agency Agreement, each
Hedging Contract between any Loan Party and any Lender or any Affiliate of any
Lender entered into after the date hereof in connection herewith, each Foreign
Loan Document and each certificate, agreement or document executed by a Loan
Party and delivered to the Administrative Agent or any Lender in connection with
or pursuant to any of the foregoing.
"Loan Party" means each Borrower, each Guarantor, each
Intercompany Borrower and each other Subsidiary of the Company that executes and
delivers a Loan Document.
"Material Adverse Change" means a material adverse change in
any of (a) the condition (financial or otherwise), business, performance,
prospects, operations or properties of any Borrower or any Guarantor,
individually, or the Borrowers and their Subsidiaries taken as a whole, (b) the
legality, validity or enforceability of any Loan Document, (c) the perfection or
priority of the Liens granted pursuant to the Collateral Documents, (d) the
ability of any Borrower to repay the Obligations or of the other Loan Parties to
perform their respective obligations under the Loan Documents or (e) the rights
and remedies of the Administrative Agent, the Lenders or the Issuers under the
Loan Documents.
"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.
"Material Intellectual Property" means Intellectual Property
owned by or licensed to a Grantor that is material to the business of the
Company and the Domestic Subsidiaries taken as a whole.
"Measurement Date" means each date on which the Liquidity Test
for each Adequate Protection Payment shall be measured pursuant to the Orders,
the first being the tenth (10th) Business Day of June, 2002, and thereafter the
tenth (10th) Business Day of each month.
"Mercolec" Mercolec Tudor, B.V., a company organized under the
laws of the Netherlands.
"Mercolec Cash Proceeds" means any cash proceeds received by
Mercolec arising from (a) any Mercolec Loan, (b) any repayment or prepayment of
any Foreign Intercompany Loan made by Mercolec and (c) any repayment or
prepayment of any intercompany loan made by Mercolec to any Foreign Subsidiary
of the Company permitted under clauses (q), (r) or (s) of Section 8.1
(Indebtedness).
"Mercolec Loans" means each revolving loan made after the
Petition Date by any Other Foreign Subsidiary to Mercolec. Mercolec Loans may
not be Foreign Intercompany Loans.
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"Minority Interests" shall mean any share of Stock of any
class of a Subsidiary of the Company that are not owned by the Company or one of
its Subsidiaries. Minority Interests shall be valued in accordance with GAAP.
"Xxxxx'x" means Xxxxx'x Investors Services, Inc.
"Mortgage Value" means, with respect to any parcel of Eligible
Domestic Real Property or Eligible Foreign Real Property, as applicable, the
lesser of (a) the maximum stated amount secured by the Lien on such parcel of
Eligible Domestic Real Property or Eligible Foreign Real Property, as
applicable, granted in favor of the Administrative Agent pursuant to the this
Agreement or the relevant Foreign Mortgage and (b) the Fair Market Value of such
parcel of Eligible Domestic Real Property or Eligible Foreign Real Property, as
applicable, set forth in the appraisal delivered with respect thereto.
"Mortgagee's Title Insurance Policy" has the meaning specified
in the definition of Eligible Domestic Real Property.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower, any of its Subsidiaries or
any ERISA Affiliate has any obligation or liability, contingent or otherwise.
"NAPA" means the National Auto Parts Association.
"NAPA Xxxx Plus Program" means the program pursuant to which
Accounts attributable to Inventory supplied by the Borrowers and the Foreign
Borrowing Base Subsidiaries (and Included Subsidiaries, if applicable) to master
battery installers are billed to NAPA.
"Net Cash Proceeds" means proceeds received by any Borrower or
any of its Subsidiaries after the Closing Date in cash or Cash Equivalents from
any (a) Asset Sale, other than an Asset Sale permitted under clauses (a), (b),
(c), (d), (e), (f) or (g) of Section 8.4 (Sale of Assets), net of (i) the
reasonable cash costs of sale, assignment or other disposition, (ii) taxes paid
or reasonably estimated to be payable as a result thereof and (iii) any amount
required by the Bankruptcy Court to be paid or prepaid on Indebtedness (other
than the Obligations) secured by a perfected and unavoidable Lien on the assets
subject to such Asset Sale, provided, however, that evidence of each of clauses
(i), (ii) and (iii) above is provided to the Administrative Agent in form and
substance satisfactory to it, or (b) Property Loss Event net of (i) reasonable
costs and expenses associated with settling any claim with respect to such
Property Loss Event, (ii) taxes paid or payable as a result thereof, and (iii)
any amount required by the Bankruptcy Court to be paid or prepaid on
Indebtedness (other than the Obligations) secured by a perfected and unavoidable
Lien on the assets subject to such Asset Sale; provided, however, that in the
case of this clause (b), evidence of each of clauses (i), (ii) and (iii) is
provided to the Administrative Agent in form and substance satisfactory to it or
(c) any incurrence of Indebtedness by any Foreign Subsidiary of the Company
domiciled in Europe permitted under (o) of Section 8.1 (Indebtedness), net of
brokers' and advisors' fees and other costs incurred in connection with such
transaction; provided, however, that in the case of this clause (c), evidence of
such costs is provided to the Administrative Agent in form and substance
satisfactory to it.
"Non-EHE Subsidiary" means each Foreign Subsidiary of the
Company which is not a Subsidiary of EHE.
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"Non-Filing Subsidiary" means any Subsidiary of the Company
which is not a debtor or debtor in possession under the Cases.
"Non-Funding Lender" has the meaning specified in clause (e)
of Section 2.2 (Borrowing Procedures).
"Non-Stayed Order" means an order of the Bankruptcy Court that
is in full force and effect, as to which no stay has been entered and that has
not been reversed, modified, vacated or overturned.
"Non-U.S. Lender" means each Lender (or the Administrative
Agent) that is not a United States person as defined in Section 7701(a)(30) of
the Code.
"Notice of Borrowing" has the meaning specified in clause (a)
of Section 2.2 (Borrowing Procedures).
"Notice of Conversion or Continuation" has the meaning
specified in Section 2.11 (Conversion/Continuation Option).
"Obligations" means the Loans, the Letter of Credit
Obligations and all other amounts, obligations, covenants and duties owing by
any Borrower to the Administrative Agent, any Lender, any Issuer, any Affiliate
of any of them or any Indemnitee, of every type and description (whether by
reason of an extension of credit, opening or amendment of a letter of credit or
payment of any draft drawn thereunder, loan, guaranty, indemnification, foreign
exchange or currency swap transaction, interest rate hedging transaction or
otherwise), present or future, arising under this Agreement, any other Loan
Document (including Hedging Contracts that are Loan Documents), whether direct
or indirect (including those acquired by assignment), absolute or contingent,
due or to become due, now existing or hereafter arising and however acquired and
whether or not evidenced by any note, guaranty or other instrument or for the
payment of money, including all letter of credit, cash management and other
fees, interest, charges, expenses, attorneys' fees and disbursements, and other
sums chargeable to any Borrower under this Agreement, any other Loan Document
(including Hedging Contracts that are Loan Documents) and all obligations of
each Borrower under any Loan Document to provide cash collateral for Letter of
Credit Obligations.
"Orders" means the Interim Order or the Final Order, as
applicable.
"Other Foreign Asset Sale" means any Asset Sale by any Other
Foreign Subsidiary.
"Other Foreign Subsidiary" means each Foreign Subsidiary of
the Company other than a Foreign Borrowing Base Subsidiary.
"Other Foreign Subsidiary Borrower" means Mercolec and each
other Other Foreign Subsidiary approved by the Administrative Agent in
consultation with the Company that borrows a Foreign Intercompany Loan.
"Partnership" means each Partnership in which a Grantor has an
interest.
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"Partnership Agreement" means each partnership agreement
governing a Partnership, as each such agreement has heretofore been and may
hereafter be amended, restated, supplemented or otherwise modified.
"Patents" means (a) all letters patent of the United States,
any other country or any political subdivision thereof and all reissues and
extensions thereof, (b) all applications for letters patent of the United States
or any other country and all divisions, continuations and continuations-in-part
thereof and (c) all rights to obtain any reissues or extensions of the
foregoing.
"Patent License" means all agreements, whether written or
oral, providing for the grant by or to any Grantor or any of its Subsidiaries of
any right to manufacture, use, import, sell or offer for sale any invention
covered in whole or in part by a Patent.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"Permanent Facilities" means that portion of the Facilities
made available to the Borrowers from and after the Entry Date. The aggregate
principal amount of the Permanent Facilities shall not exceed $250,000,000
(except to the extent increased in accordance with the terms of clause (d) of
Section 2.1 (The Commitments).
"Permit" means any permit, approval, authorization, license,
variance or permission required from a Governmental Authority under an
applicable Requirement of Law.
"Permitted Prepetition Claim Payment" means a payment (as
adequate protection or otherwise) on account of any Claim arising or deemed to
have arisen prior to the Petition Date (excluding any Adequate Protection
Payment), that is made (i) pursuant to authority granted by a Non-Stayed Order
of the Bankruptcy Court and (ii) when aggregated with all such payments does not
exceed the amount of such payments authorized pursuant to the First Day Orders
as in effect on the Closing Date; provided, however, that no such payment shall
be made after the occurrence and during the continuation of a Default or an
Event of Default.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, estate, trust, limited
liability company, unincorporated association, joint venture or other entity or
a Governmental Authority.
"Petition Date" has the meaning specified in the recitals to
this Agreement.
"Plan" means a plan of reorganization of the Borrowers under
Chapter 11 of the Bankruptcy Code.
"Pledge Amendment" means the Pledge Amendment, in the form
attached hereto as Exhibit O (Form of Pledge Amendment).
"Pledged Collateral" means, collectively, the Pledged Notes,
the Pledged Stock, the Pledged Partnership Interests, the Pledged LLC Interests,
any other Investment Property of any Grantor, all certificates or other
instruments representing any of the foregoing, all Security Entitlements of any
Grantor in respect of any of the foregoing, all dividends, interest
distributions, cash warrants, rights, instruments and other property or Proceeds
from time to time
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received, receivable or otherwise distributed in respect of or in exchange for
any or all of the foregoing. Pledged Collateral may be General Intangibles or
Investment Property.
"Pledged LLC Interests" means all of any Grantor's right,
title and interest as a member of any LLC and all of such Grantor's right, title
and interest in, to and under any LLC Agreement to which it is a party.
"Pledged Notes" means all right, title and interest of any
Grantor, in the Instruments evidencing all Indebtedness owed to such Grantor,
issued by the obligors named therein, and all interest, cash, Instruments and
other property or Proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such Indebtedness,
including without limitation, the Intercompany Notes.
"Pledged Partnership Interests" shall mean all of any
Grantor's right, title and interest as a limited or general partner in all
Partnerships and all of such Grantor's right, title and interest in, to and
under any Partnership Agreements to which it is a party.
"Pledged Stock" means the shares of capital stock owned by
each Grantor, including all shares of capital stock listed on Schedule 4.21
(Pledged Collateral).
"Pre-Petition Agent" means Credit Suisse First Boston, as
administrative agent under the Pre-Petition Facility.
"Pre-Petition Facility" means that certain Amended and
Restated Credit and Guaranty Agreement dated as of September 29, 2000 (as
amended, modified or supplemented prior to the Closing Date), by and among the
Company, certain Subsidiaries of the Company, the Pre-Petition Lenders and the
Pre-Petition Agent, as amended by the Standstill Agreement on the Closing Date.
"Pre-Petition Lenders" means the financial institutions party
to the Pre-Petition Facility as lenders.
"Property Loss Event" means (a) any loss of or damage to
property of any Borrower or any of the Domestic Guarantors that results in the
receipt by such Person of proceeds of insurance or (b) any taking of property of
any Borrower or any of the Domestic Guarantors that results in the receipt by
such Person of a compensation payment in respect thereof.
"Protective Advances" means all expenses, disbursements and
advances incurred by the Administrative Agent pursuant to the Loan Documents
after the occurrence and during the continuance of an Event of Default that the
Administrative Agent, in its sole discretion, deems necessary or desirable to
preserve or protect the Collateral or any portion thereof or to enhance the
likelihood, or maximize the amount, of repayment of the Obligations.
"Purchasing Lender" has the meaning specified in Section 13.7
(Sharing of Payments, Etc.).
"Ratable Portion" or "ratably" means, with respect to any
Lender, (a) with respect to the Revolving Credit Facility, the percentage
obtained by dividing (i) the Revolving Credit Commitment of such Lender by (ii)
the aggregate Revolving Credit Commitments of all Lenders (or, at any time after
the Scheduled Termination Date, the percentage obtained by
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dividing the aggregate outstanding principal balance of the Revolving Credit
Outstandings owing to such Lender by the aggregate outstanding principal balance
of the Revolving Credit Outstandings owing to all Lenders), and (b) with respect
to the Term Loan Facility, the percentage obtained by dividing (i) the Term Loan
Commitment of such Lender by (ii) the aggregate Term Loan Commitments of all
Lenders (or, at any time after the Closing Date, the percentage obtained by
dividing the principal amount of such Lender's Term Loans by the aggregate Term
Loans of all Lenders).
"Real Property" means, in respect of any Person, the Land of
such Person, together with the right, title and interest of such Person, if any,
in and to the streets, the Land lying in the bed of any streets, roads or
avenues, opened or proposed, in front of, the air space and development rights
pertaining to the Land and the right to use such air space and development
rights, all rights of way, privileges, liberties, tenements, hereditaments and
appurtenances belonging or in any way appertaining thereto, all fixtures, all
easements now or hereafter benefiting the Land and all royalties and rights
appertaining to the use and enjoyment of the Land, including all alley, vault,
drainage, mineral, water, oil and gas rights, together with all of the buildings
and other improvements now or hereafter erected on the Land and any fixtures
appurtenant thereto.
"Register" has the meaning specified in Section 13.2(c)
(Assignments and Participations).
"Reimbursement Date" has the meaning specified in Section
2.4(h) (Letters of Credit).
"Reimbursement Obligations" means all matured reimbursement or
repayment obligations of the Borrowers to any Issuer with respect to amounts
drawn under Letters of Credit.
"Reinvestment Deferred Amount" means, with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by any Borrower or
any Domestic Guarantor in connection therewith that are not initially applied to
prepay the Loans pursuant to clause (a) if Section 2.9 (Mandatory Prepayments)
as a result of the delivery of a Reinvestment Notice.
"Reinvestment Event" means any Domestic Asset Sale or Property
Loss Event in respect of which the Company has delivered a Reinvestment Notice.
"Reinvestment Notice" means a written notice executed by a
Responsible Officer of the Company stating that no Default or Event of Default
has occurred and is continuing and that the Company (directly or indirectly
through one of its Domestic Subsidiaries) intends and expects to use all or a
specified portion of the Net Cash Proceeds of a Domestic Asset Sale to acquire
replacement assets useful in its or one of its Domestic Subsidiaries' businesses
or, in the case of a Property Loss Event, to effect repairs or to replace
destroyed or damaged assets useful in its or one of its Domestic Subsidiaries'
businesses.
"Reinvestment Prepayment Amount" means, with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amount expended or required to be expended pursuant to a Contractual Obligation
entered into prior to the relevant Reinvestment Prepayment Date to acquire
replacement assets useful in the Borrower's business or, in the case of a
Property Loss Event, to effect repairs.
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"Reinvestment Prepayment Date" means, with respect to any
Reinvestment Event, the earlier of (a) the date occurring 180 days after such
Reinvestment Event and (b) the date that is five Business Days after the date on
which the Company shall have notified the Administrative Agent of the Company's
determination not to acquire replacement assets useful in the relevant
Borrower's or a Domestic Subsidiary's business (or, in the case of a Property
Loss Event, not to effect repairs) with all or any portion of the relevant
Reinvestment Deferred Amount.
"Release" means, with respect to any Person, any release,
spill, emission, leaking, pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration, in each case, of any Contaminant into the
workplace or the environment or into or out of any property owned by such
Person, including the movement of Contaminants through or in the air, soil,
surface water, ground water or property.
"Remedial Action" means all actions required to (a) clean up,
remove, treat or in any other way address any Contaminant in the workplace or
the environment, (b) prevent the Release or threat of Release or minimize the
further Release so that a Contaminant 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.
"Requirement of Law" means, with respect to any Person, the
common law and all federal, state, local and foreign laws, rules and
regulations, orders, judgments, decrees and other determinations of any
Governmental Authority or arbitrator, applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"Requisite Lenders" means, collectively, Lenders having more
than fifty-one percent (51%) of the sum of (a) the aggregate outstanding amount
of the Revolving Credit Commitments or, after the Scheduled Termination Date,
the aggregate Revolving Credit Outstandings and (b) the aggregate outstanding
amount of the Term Loan Commitments and, after the Closing Date, the principal
amount of all Term Loans then outstanding. A Non-Funding Lender shall not be
included in the calculation of "Requisite Lenders".
"Responsible Officer" means, with respect to any Person, any
of the principal executive officers, managing members or general partners of
such Person, but in any event, with respect to financial matters, the chief
financial officer, treasurer or controller of such Person.
"Restricted Payment" means (a) any dividend, distribution or
any other payment whether direct or indirect, on account of any Stock or Stock
Equivalents of any Borrower or any of its Subsidiaries now or hereafter
outstanding, and (b) any redemption, retirement, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of any
Stock or Stock Equivalents of any Borrower or any of its Subsidiaries now or
hereafter outstanding.
"Restructuring" means the reorganization of the business,
operations and structure of the Company and its Subsidiaries.
"Restructuring Costs" means non-recurring and other one-time
costs incurred by the Company in connection with the reorganization of its and
its Subsidiaries' business, operations and structure in respect of (i) the
implementation of lean manufacturing initiatives, (ii) plant closures and the
consolidation, relocation or elimination of operations, (iii) related
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severance costs and other costs incurred in connection with the termination,
relocation and training of employees, and (iv) legal, consulting, employee
retention and other advisor fees incurred in connection with the Cases and the
related Plan.
"Revolving Credit Borrowing" means a Domestic Revolving Credit
Borrowing or a Foreign Revolving Credit Borrowing.
"Revolving Credit Commitment" means, with respect to each
Revolving Credit Lender, the commitment of such Lender to make Revolving Credit
Loans to the Borrowers in the aggregate principal amount outstanding not to
exceed the amount set forth opposite such Lender's name on Schedule I under the
caption "Revolving Credit Commitment" as amended to reflect each Assignment and
Acceptance executed by such Lender and as such amount may be reduced pursuant to
this Agreement.
"Revolving Credit Facilities" means the Domestic Revolving
Credit Facility and the Foreign Revolving Credit Facility.
"Revolving Credit Lender" means each Lender having a Revolving
Credit Commitment.
"Revolving Credit Note" means a promissory note of the
Borrowers payable to the order of any Revolving Credit Lender in a principal
amount equal to the amount of such Revolving Credit Lender's Revolving Credit
Commitment evidencing the aggregate Indebtedness of the Borrowers to such
Revolving Credit Lender resulting from the Revolving Loans owing to such
Revolving Credit Lender.
"Revolving Credit Outstandings" means, at any particular time,
the sum of the Domestic Revolving Credit Outstandings plus the Foreign Revolving
Credit Outstandings at such time.
"Revolving Loans" means the Domestic Revolving Loans and the
Foreign Revolving Loans.
"S&P" means Standard & Poor's Rating Services.
"Scheduled Termination Date" means the earliest to occur of
(a) February 15, 2004, (b) the date of termination of the Commitments pursuant
to Section 2.5 (Reduction and Termination of the Commitments), (c) the date on
which the Obligations become due and payable pursuant to Section 9.2 (Remedies),
(d) the effective date of a Plan entered by the Bankruptcy Court, and (e) thirty
(30) days prior to the final maturity of any principal obligations under the
Pre-Petition Facility.
"Second Tier Foreign Subsidiary Borrower" has the meaning
specified in Section 8.1(j) (Indebtedness).
"Secured Obligations" means (a) in the case of the Borrowers,
the Obligations and, (b) in the case of any other Loan Party, the obligations of
such Loan Party under the Loan Documents to which it is a party.
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"Secured Parties" means the Lenders, the Issuers, the
Administrative Agent, each of their respective successors and assigns and any
other holder of the Obligations or any other obligations under the Loan
Documents, including the beneficiaries of each indemnification obligation
undertaken by the Loan Parties and the Administrative Agent.
"Security" means any Stock, Stock Equivalent, voting trust
certificate, bond, debenture, note or other evidence of Indebtedness, whether
secured, unsecured, convertible or subordinated, or any certificate of interest,
share or participation in, any temporary or interim certificate for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing, but shall not include any evidence of the Obligations.
"Selling Lender" has the meaning specified in Section 13.7
(Sharing of Payments, Etc.).
"Special Purpose Vehicle" means any special purpose funding
vehicle identified as such in writing by any Lender to the Administrative Agent.
"Specified Foreign Sublimit Amount" means the lesser of (a)
the unused amount of the available Foreign Sublimit and (b) the amount by which
$35,000,000 exceeds Foreign Availability minus outstandings under the Foreign
Revolving Credit Facility plus either (x) to the extent there are no Foreign
Revolving Credit Outstandings or Domestic Revolving Credit Outstandings under
the Foreign Sublimit at such time, cash at Mercolec or (y) to the extent there
are Foreign Revolving Credit Outstandings or Domestic Revolving Credit
Outstandings under the Foreign Sublimit at such time, $1,000,000.
"Stage I Test Period" means the period commencing on April 1,
2002, and ending on the fiscal month then last ended (in each case, taken as one
accounting period).
"Stage II Test Period" means any period of twelve (12)
calendar months ending on the calendar month then last ended (in each case,
taken as one accounting period).
"Standby Letter of Credit" means any Letter of Credit that is
not a Documentary Letter of Credit.
"Standard Securitization Undertaking" means representations,
warranties, covenants, performance guaranties and indemnities entered into by
the Company or any of its Subsidiaries in connection with the European A/R
Facility which are reasonably customary in an accounts receivables transaction
for a similarly situated company; it being understood and agreed that Standard
Securitization Undertakings shall include without limitation (i) the
representations, warranties, covenants, performance guaranties and indemnities
of the Company and its Subsidiaries under the European A/R Facility existing on
the date hereof and (ii) the representations, warranties, covenants, performance
guaranties and indemnities of the Company and its Subsidiaries contemplated by
the draft term sheet, dated as of March 26, 2002 between EHE and Citibank, N.A.,
as operating agent, describing certain amendments to and refinancing
arrangements in connection with, the European A/R Facility.
"Standstill Agreement" means the Subordination and Standstill
Agreement, in the form attached hereto as Exhibit K (Form of Standstill
Agreement), executed by the Pre-Petition Agent, the Pre-Petition Lenders holding
100% of the obligations under the Pre-Petition Facility, the Administrative
Agent and the Company.
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"Standstill Termination Event" has the meaning ascribed to
such term in the Standstill Agreement.
"Stock" means shares of capital stock (whether denominated as
common stock or preferred stock), beneficial, partnership or membership
interests, participations or other equivalents (regardless of how designated) of
or in a corporation, partnership, limited liability company or equivalent
entity, whether voting or non-voting.
"Stock Equivalents" means all securities convertible into or
exchangeable for Stock and all warrants, options or other rights to purchase or
subscribe for any Stock, whether or not presently convertible, exchangeable or
exercisable.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, limited liability company or other business entity of
which an aggregate of 50% or more of the outstanding Voting Stock is, at the
time, directly or indirectly, owned or controlled by such Person or one or more
Subsidiaries of such Person.
"Super-Majority Lenders" means, collectively, Lenders having
more than seventy-five percent (75%) of the sum of (a) the aggregate outstanding
amount of the Revolving Credit Commitments or, after the Scheduled Termination
Date, the aggregate Revolving Credit Outstandings and (b) the aggregate
outstanding amount of the Term Loan Commitments and, after the Closing Date, the
principal amount of all Term Loans then outstanding. A Non-Funding Lender shall
not be included in the calculation of "Super-Majority Lenders".
"Swing Loan" has the meaning specified in Section 2.3 (Swing
Loans).
"Swing Loan Lender" means CUSA or any other Revolving Credit
Lender that becomes the Administrative Agent or agrees, with the approval of the
Administrative Agent and the Borrower, to act as Swing Loan Lender hereunder, in
each case in its capacity as Swing Loan Lender hereunder.
"Swing Loan Request" has the meaning specified in Section
2.3(b) (Swing Loans).
"Syndication Completion Date" means the earlier to occur of
(a) the 90/th/ day following the Closing Date and (b) the date upon which the
Arranger determines in its sole discretion that the primary syndication of the
Loans and Revolving Credit Commitments has been completed.
"Tax Affiliate" means, with respect to any Person, (a) any
Subsidiary of such Person and (b) any Affiliate of such Person with which such
Person files or is eligible to file consolidated, combined or unitary tax
returns.
"Tax Return" has the meaning specified in Section 4.7(a)
(Taxes).
"Taxes" has the meaning specified in Section 2.16(a) (Taxes).
"Term Loan" has the meaning specified in clause (c) of Section
2.1 (The Commitments).
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"Term Loan Borrowing" means Term Loans made on the same day by
the Term Loan Lenders ratably according to their respective Term Loan
Commitments.
"Term Loan Commitment" means, with respect to each Term Loan
Lender, the commitment of such Lender to make Term Loans to the Borrowers in the
aggregate principal amount outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule I under the caption "Term Loan
Commitment" as amended to reflect each Assignment and Acceptance executed by
such Lender and as such amount may be reduced pursuant to this Agreement.
"Term Loan Facility" means the Term Loan Commitments and the
provisions herein related to the Term Loans.
"Term Loan Lender" means each Lender having a Term Loan
Commitment.
"Term Loan Note" means a promissory note of the Borrowers
payable to the order of any Term Loan Lender in a principal amount equal to the
amount of such Lender's Term Loan Commitment evidencing the Indebtedness of the
Borrowers to such Lender resulting from the Term Loan owing to such Lender.
"Term Loan Outstandings" means, at any particular time, the
principal amount of the Term Loans outstanding at such time.
"Title IV Plan" means a pension plan, other than a
Multiemployer Plan, covered by Title IV of ERISA and to which the Borrower any
of its Subsidiaries or any ERISA Affiliate has any obligation or liability
(contingent or otherwise).
"Total Availability" means, at any time, an amount equal to
the sum of Domestic Availability plus Foreign Availability.
"Trademarks" means (a) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, in each case now
existing or hereafter adopted or acquired and together with all goodwill
associated therewith, all registrations and recordings thereof, all applications
in connection therewith, whether in the United States Patent and Trademark
Office or in any similar office or agency of the United States, any State
thereof or any other country or political subdivision thereof or otherwise and,
in each case, all common-law rights related thereto and (b) the right to obtain
all renewals thereof.
"Trademark License" means any agreement, whether written or
oral, providing for the grant by or to any Grantor of any right to use any
Trademark.
"UCC" means the Uniform Commercial Code as from time to time
in effect in the State of New York.
"Unfunded Pension Liability" means, with respect to the
Borrower or any of its Subsidiaries at any time, the sum of (a) the amount, if
any, by which the present value of all accrued benefits under each Title IV Plan
(other than any Title IV Plan subject to Section 4063 of ERISA) exceeds the fair
market value of all assets of such Title IV Plan allocable to such benefits in
accordance with Title IV of ERISA, as determined as of the most recent valuation
date for such
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Title IV Plan using the actuarial assumptions in effect under such Title IV
Plan, (b) the aggregate amount of withdrawal liability that could be assessed
under Section 4063 with respect to each Title IV Plan subject to such section,
separately calculated for each such Title IV Plan as of its most recent
valuation date and (c) for a period of five years following a transaction
reasonably likely to be covered by Section 4069 of ERISA, the liabilities
(whether or not accrued) that could be avoided by the Borrower, any of its
Subsidiaries or any ERISA Affiliate as a result of such transaction.
"Unused Commitment Fee" has the meaning specified in clause
(a) of Section 2.12 (Fees).
"US Liquidity" means Domestic Availability minus outstandings
under the Domestic Revolving Credit Facility minus any unused Foreign Sublimit
amounts included in the calculation of Euro Liquidity.
"U.S. Trustee" means the United States Trustee for the
District of Delaware.
"Vehicles" means all vehicles covered by a certificate of
title law of any state.
"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 happening of any contingency).
"Wholly-Owned Subsidiary" means, in respect of any Person, any
other Person, all of the Stock of which (other than director's qualifying
shares, as may be required by law) is owned by such Person directly and/or
through other Wholly-Owned Subsidiaries of such Person; provided, however that
each of the Foreign Subsidiaries of the Company set forth on Schedule V shall be
deemed to be a "Wholly-Owned Subsidiary" to the extent that the Company owns
beneficially at least the percentage of such Foreign Subsidiary set forth
opposite such Foreign Subsidiary's name on Schedule V.
"Withdrawal Liability" means, with respect to the Borrower or
any of its Subsidiaries at any time, the aggregate liability incurred (whether
or not assessed) with respect to all Multiemployer Plans pursuant to Section
4201 of ERISA or for increases in contributions required to be made pursuant to
Section 4243 of ERISA.
Section 1.2 Computation of Time Periods
In this Agreement, in the computation of periods of time from
a specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but excluding" and the
word "through" means "to and including."
Section 1.3 Accounting Terms and Principles
(a) Except as set forth below, all accounting terms not
specifically defined herein shall be construed in conformity with GAAP and all
accounting determinations required to be made pursuant hereto shall, unless
expressly otherwise provided herein, be made in conformity with GAAP.
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(b) If any change in the accounting principles used in the
preparation of the most recent Financial Statements referred to in Section 6.1
(Financial Statements) is hereafter required or permitted by the rules,
regulations, pronouncements and opinions of the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or any
successors thereto) and such change is adopted by the Borrower with the
agreement of the Borrower's Accountants and results in a change in any of the
calculations required by Article V (Financial Covenants) or Article VIII
(Negative Covenants) had such accounting change not occurred, the parties hereto
agree to enter into negotiations in order to amend such provisions so as to
equitably reflect such change with the desired result that the criteria for
evaluating compliance with such covenants by the Borrower shall be the same
after such change as if such change had not been made; provided, however, that
no change in GAAP that would affect a calculation that measures compliance with
any covenant contained in Article V (Financial Covenants) or Article VIII
(Negative Covenants) shall be given effect until such provisions are amended to
reflect such changes in GAAP.
Section 1.4 Certain Terms
(a) The terms "herein," "hereof" and "hereunder" and similar
terms refer to this Agreement as a whole and not to any particular Article,
Section, subsection or clause in, this Agreement.
(b) Unless otherwise expressly indicated herein, (i)
references in this Agreement to an Exhibit, Schedule, Article, Section, clause
or sub-clause refer to the appropriate Exhibit or Schedule to, or Article,
Section, clause or sub-clause in this Agreement and (ii) the words "above" and
"below", when following a reference to a clause or a sub-clause of any Loan
Document, refer to a clause or sub-clause within, respectively, the same Section
or clause.
(c) Each agreement defined in this Article I (Definitions,
Interpretations and Accounting Terms) shall include all appendices, exhibits and
schedules thereto. Unless the prior written consent of the Requisite Lenders is
required hereunder for an amendment, restatement, supplement or other
modification to any such agreement and such consent is not obtained, references
in this Agreement to such agreement shall be to such agreement as so amended,
restated, supplemented or modified.
(d) References in this Agreement to any statute shall be to
such statute as amended or 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.
(e) The term "including" when used in any Loan Document means
"including without limitation" except when used in the computation of time
periods.
(f) The terms "Lender," "Issuer" and "Administrative Agent"
include, without limitation, their respective successors.
(g) Upon the appointment of any successor Administrative Agent
pursuant to Section 12.6 (Successor Administrative Agent), references to CUSA in
Section 12.3 (The Administrative Agent Individually) and to Citibank in the
definitions of Base Rate, Eurodollar Rate and Reference Bank shall be deemed to
refer to the financial institution then acting as the Administrative Agent or
one of its Affiliates if it so designates.
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ARTICLE II
The Facilities
Section 2.1 The Commitments
(a) Revolving Credit Commitments for Domestic Revolving Loans.
On the terms and subject to the conditions contained in this Agreement, each
Revolving Credit Lender severally agrees to make Domestic Revolving Loans in
Dollars to the Borrowers from time to time on any Business Day during the period
from the date hereof until the Scheduled Termination Date in an aggregate
principal amount not to exceed at any time outstanding for all such loans by
such Revolving Credit Lender such Revolving Credit Lender's Revolving Credit
Commitment; provided, however, that at no time shall any Revolving Credit Lender
be obligated to make a Domestic Revolving Loan (i) in excess of such Revolving
Credit Lender's Ratable Portion of the Domestic Available Credit, (ii) to the
extent that the sum of the aggregate Domestic Revolving Credit Outstandings plus
the aggregate Term Loan Outstandings, after giving effect to such Revolving
Loan, would exceed the Domestic Maximum Credit in effect at such time and (iii)
if such Domestic Revolving Loan will be used by the Company to make a Foreign
Intercompany Loan pursuant to clause (i) of Section 8.1 (Indebtedness) (A)
during the Interim Period, to the extent the aggregate of all such Domestic
Revolving Loans would exceed $40,000,000 and (B) commencing on the first day
after the Interim Period and thereafter, to the extent that (1) there is Foreign
Available Credit under the Foreign Revolving Credit Facility at such time or (2)
the aggregate proceeds of Domestic Revolving Loans advanced as Foreign
Intercompany Loans pursuant to clause (i) of Section 8.1 (Indebtedness), after
giving effect to such Domestic Revolving Loan, would exceed the Foreign
Sublimit. Within the limits of the Revolving Credit Commitment of each Revolving
Credit Lender, amounts of Domestic Revolving Loans repaid may be reborrowed
under this Section 2.1 (The Commitments).
(b) Revolving Credit Commitments for Foreign Revolving Loans.
On the terms and subject to the conditions contained in this Agreement, each
Revolving Credit Lender severally agrees to make Foreign Revolving Loans in
Dollars to the Borrowers from time to time on any Business Day during the period
from the date hereof until the Scheduled Termination Date in an aggregate
principal amount not to exceed at any time outstanding for all such loans by
such Revolving Credit Lender such Revolving Credit Lender's Revolving Credit
Commitment; provided, however, that at no time shall any Revolving Credit Lender
be obligated to make a Foreign Revolving Loan (i) in excess of such Revolving
Credit Lender's Ratable Portion of the Foreign Available Credit, (ii) if such
Foreign Revolving Loan is requested during the Interim Period and (iii) to the
extent that the aggregate Foreign Revolving Credit Outstandings, after giving
effect to such Foreign Revolving Loan, would exceed the Foreign Maximum Credit
in effect at such time. Within the limits of the Revolving Credit Commitment of
each Revolving Credit Lender, amounts of Foreign Revolving Loans repaid may be
reborrowed under this Section 2.1 (The Commitments).
(c) Term Loan Commitments. On the terms and subject to the
conditions contained in this Agreement, each Term Loan Lender severally agrees
to make a loan (each a "Term Loan") to the Borrowers on the Closing Date (and,
to the extent the Commitment Increase has become effective pursuant to subclause
(ii) of clause (d) of this Section 2.1 (The Commitments), and any part of the
Commitment Increase consists of Term Loan Commitments, on the Increase Date), in
an aggregate principal amount not to exceed such Lender's Term Loan Commitment;
provided, however, that no Term Loan Lender shall be obligated to make a Term
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Loan (i) in excess of such Term Loan Lender's Ratable Portion of the Domestic
Available Credit and (ii) to the extent that the sum of the aggregate Revolving
Credit Outstandings plus the aggregate Term Loan Outstandings after giving
effect to such Term Loan, would exceed the Domestic Maximum Credit in effect at
such time. Amounts of Term Loans prepaid may not be reborrowed.
(d) Commitment Increase.
(i) Promptly following the Commitment Date, the
Administrative Agent shall notify the Company as to the amount, if any,
by which one or more Eligible Assignees are willing to participate in
any portion of the Commitment Increase; provided, however, that the
Commitment of each such Eligible Assignee shall be in an amount equal
to $1,000,000 or an integral multiple of $1,000,000 in excess thereof.
(ii) The Commitment Increase shall become effective
upon a date (the "Increase Date") on or after the satisfaction of
conditions precedent to be agreed by the Administrative Agent and the
receipt by the Administrative Agent of each of the following:
(A) certified copies of resolutions of the Board
of Directors of the Borrowers approving the Commitment
Increase;
(B) an assumption agreement (an "Assumption
Agreement") from each Eligible Assignee that accepts an offer
to participate in such Commitment Increase in accordance with
clause (i) above (each, an "Additional Lender"), in form and
substance satisfactory to the Company and the Administrative
Agent, duly executed by such Additional Lender, the
Administrative Agent and the Company; and
(C) any costs, expenses, fees and other amounts
then due hereunder and under the Fee Letters.
(iii) As of the Increase Date, (A) each Additional
Lender shall be deemed to become a Lender party to this Agreement and
(B) the Administrative Agent shall notify the Lenders (including each
Additional Lender) and the Company, on or before 1:00 P.M. (New York
City time), by telecopier or telex, of the occurrence of the Commitment
Increase to be effected on the Increase Date and shall record in the
Register the relevant information with respect to each Additional
Lender on such date.
Section 2.2 Borrowing Procedures
(a) Each Revolving Credit Borrowing shall be made on notice
given by the Company to the Administrative Agent not later than 11:00 A.M. (New
York City time) (i) (A) on the Closing Date, and (B) thereafter, one Business
Day, in the case of a Borrowing of Base Rate Loans and (ii) three Business Days,
in the case of a Borrowing of Eurodollar Rate Loans, prior to the date of the
proposed Revolving Credit Borrowing. Each such notice shall be in substantially
the form of Exhibit C (a "Notice of Borrowing"), specifying (A) the date of such
proposed Revolving Credit Borrowing, (B) the aggregate amount of such proposed
Revolving Credit Borrowing, (C) whether any portion of the proposed Revolving
Credit Borrowing will be of Base Rate Loans or Eurodollar Rate Loans, (D) the
initial Interest Period or Periods for any such
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Eurodollar Rate Loans, (E) the Domestic Available Credit, or Foreign Available
Credit as it relates to the relevant Foreign Borrowing Base Subsidiary, as
applicable (after giving effect to the proposed Revolving Credit Borrowing) and
(F) the unused Foreign Sublimit, if applicable (after giving effect to the
proposed Revolving Credit Borrowing). The Revolving Loans shall be made as Base
Rate Loans unless, subject to Section 2.14 (Special Provisions Governing
Eurodollar Rate Loans), the Notice of Borrowing specifies that all or a portion
thereof shall be Eurodollar Rate Loans. Notwithstanding anything to the contrary
contained in Section 2.3(a) (Swing Loans), if any Notice of Borrowing requests a
Borrowing of Base Rate Loans, the Administrative Agent may make a Swing Loan
available to the Borrower in an aggregate amount not to exceed such proposed
Borrowing, and the aggregate amount of the corresponding proposed Borrowing
shall be reduced accordingly by the principal amount of such Swing Loan. Subject
to Section 2.3(b) (Swing Loans), each Revolving Credit Borrowing shall be in an
aggregate amount of not less than $5,000,000 or an integral multiple of
$1,000,000 in excess thereof.
(b) All Term Loan Borrowings shall be made upon receipt of a
Notice of Borrowing given by the Company to the Administrative Agent not later
than 11:00 A.M. (New York City time) (i) on the Closing Date (or the Increase
Date, if applicable), in the case of a Borrowing of Base Rate Loans and (ii)
three Business Days prior to the Closing Date (or the Increase Date, if
applicable), in the case of a Borrowing of Eurodollar Rate Loans, prior to the
date of the proposed Term Loan Borrowing. The Notice of Borrowing shall specify
(A) the date of the proposed Term Loan Borrowing, (B) the aggregate amount of
such proposed Term Loan Borrowing, (C) whether any portion of the proposed Term
Loan Borrowing will be of Base Rate Loans or Eurodollar Rate Loans, (D) the
initial Interest Period or Periods for any such Eurodollar Rate Loans, and (E)
the Domestic Available Credit. The Term Loans shall be made as Base Rate Loans
unless, subject to Section 2.14 (Special Provisions Governing Eurodollar Rate
Loans), the Notice of Borrowing specifies that all or a portion thereof shall be
Eurodollar Rate Loans.
(c) 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, the
applicable interest rate determined pursuant to clause (a) of Section 2.14
(Special Provisions Governing Eurodollar Rate Loans). Each Lender shall, before
11:00 A.M. (New York City time) on the date of the proposed Borrowing, make
available to the Administrative Agent at its address referred to in Section 13.8
(Notices, Etc.), in immediately available funds, such Lender's Ratable Portion
of such proposed Borrowing. Upon the fulfillment (or due waiver in accordance
with Section 13.1 (Amendments, Waivers, Etc.)) (i) on the Closing Date, of the
applicable conditions set forth in Section 3.1 (Conditions Precedent to Initial
Loans and Letters of Credit) and (ii) at any time (including the Closing Date),
of the applicable conditions set forth in Section 3.2 (Conditions Precedent to
Each Loan and Letter of Credit), and after the Administrative Agent's receipt of
such funds, the Administrative Agent will make such funds available to the
Borrowers.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any proposed Borrowing that such Lender will
not make available to the Administrative Agent such Lender's Ratable Portion of
such Borrowing, the Administrative Agent may assume that such Lender has made
such Ratable Portion available to the Administrative Agent on the date of such
Borrowing in accordance with this Section 2.2 (Borrowing Procedures), and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrowers on such date a corresponding amount. If and to the extent that
such Lender shall not have so made such Ratable Portion available to the
Administrative Agent,
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such Lender and the Borrowers severally agree to repay to the Administrative
Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to the
Borrowers until the date such amount is repaid to the Administrative Agent, at
(i) in the case of the Borrowers, the interest rate applicable at the time to
the Loans comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Rate for the first Business Day and thereafter at the interest
rate applicable at the time to the Loans comprising such Borrowing. If such
Lender shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Lender's Loan as part of such Borrowing
for purposes of this Agreement. If the Borrowers shall repay to the
Administrative Agent such corresponding amount, such payment shall not relieve
such Lender of any obligation it may have hereunder to the Borrowers.
(e) The failure of any Lender to make the Loan or any payment
required by it on the date specified (a "Non-Funding Lender"), including any
payment in respect of its participation in Swing Loans and Letter of Credit
Obligations, shall not relieve any other Lender of its obligations to make such
Loan or payment on such date but no such other Lender shall be responsible for
the failure of any Non-Funding Lender to make a Loan or payment required under
this Agreement.
Section 2.3 Swing Loans
(a) On the terms and subject to the conditions contained in
this Agreement, the Swing Loan Lender may, in its sole discretion, make loans
(each a "Swing Loan") otherwise available to the Borrowers under the Revolving
Credit Facility from time to time on any Business Day during the period from the
date hereof until the Scheduled Termination Date in an aggregate principal
amount at any time outstanding not to exceed the lesser of $25,000,000 and the
Swing Loan Lender's Ratable Portion of the Domestic Available Credit or Foreign
Available Credit, as the case may be, at such time. Each Swing Loan shall be a
Base Rate Loan and must be repaid in full within seven days after its making or,
if sooner, upon any Borrowing hereunder and shall in any event mature no later
than the Scheduled 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) In order to request a Swing Loan, the Company shall
telecopy (or forward by electronic mail or similar means) to the Administrative
Agent a duly completed request in substantially the form of Exhibit D (Form of
Swing Loan Request), setting forth the requested amount (which shall be in a
minimum amount of $500,000 or an integral multiple of $100,000 in excess
thereof) and date of the Swing Loan (a "Swing Loan Request"), to be received by
the Administrative Agent not later than 1:00 p.m. (New York time) on the day of
the proposed borrowing. The Administrative Agent shall promptly notify the Swing
Loan Lender of the details of the requested Swing Loan. Subject to the terms of
this Agreement, the Swing Loan Lender may make a Swing Loan available to the
Administrative Agent and, in turn, the Administrative Agent shall make such
amounts available to the Borrower on the date of the relevant Swing Loan
Request. The Swing Loan Lender shall not make any Swing Loan in the period
commencing on the first Business Day after it receives written notice from the
Administrative Agent or any Revolving Credit Lender that one or more of the
conditions precedent contained in Section 3.2 (Conditions Precedent to Each Loan
and Letter of Credit) shall not on such date be satisfied, and ending when such
conditions are satisfied. The Swing Loan Lender shall not otherwise be required
to determine that, or take notice whether, the conditions precedent set forth in
Section
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3.2 (Conditions Precedent to Each Loan and Letter of Credit) have been satisfied
in connection with the making of any Swing Loan.
(c) The Swing Loan Lender shall notify the Administrative
Agent in writing (which writing may be a telecopy or electronic mail) weekly, by
no later than 10:00 a.m. (New York time) on the first Business Day of each week,
of the aggregate principal amount of its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each
Revolving Credit Lender pay to the Administrative Agent, for the account of the
Swing Loan Lender, in the manner provided in clause (e) below, such Revolving
Credit Lender's Ratable Portion of all or a portion of the outstanding Swing
Loans, which demand shall be made through the Administrative Agent, shall be in
writing and shall specify the outstanding principal amount of Swing Loans
demanded to be paid.
(e) The Administrative Agent shall forward each notice
referred to in clause (c) above and each demand referred to in clause (d) above
to each Revolving Credit Lender on the day such notice or such demand is
received by the Administrative Agent (except that any such notice or demand
received by the Administrative Agent after 2:00 p.m. (New York time) on any
Business Day or any such demand received on a day that is not a Business Day
shall not be required to be forwarded to the Revolving Credit Lenders by the
Administrative Agent until the next succeeding Business Day), together with a
statement prepared by the Administrative Agent specifying the amount of each
Revolving Credit Lender's Ratable Portion of the aggregate principal amount of
the Swing Loans stated to be outstanding in such notice or demanded to be paid
pursuant to such demand, and, notwithstanding whether or not the conditions
precedent set forth in Section 3.2 (Conditions Precedent to Each Loan and Letter
of Credit) shall have been satisfied (which conditions precedent the Revolving
Credit Lenders hereby irrevocably waive), each Revolving Credit Lender shall,
before 11:00 a.m. (New York time) on the Business Day next succeeding the date
of such Revolving Credit Lender's receipt of such notice or demand, make
available to the Administrative Agent, in immediately available funds, for the
account of the Swing Loan Lender, the amount specified in such statement. Upon
such payment by a Revolving Credit Lender, such Revolving Credit Lender shall,
except as provided in clause (f) below, be deemed to have made a Revolving Loan
to the Borrowers. The Administrative Agent shall use such funds to repay the
Swing Loans to the Swing Loan Lender. To the extent that any Revolving Credit
Lender fails to make such payment available to the Administrative Agent for the
account of the Swing Loan Lender, the Borrowers shall repay such Swing Loan on
demand.
(f) From and after the date on which any Revolving Credit
Lender is deemed to have made a Revolving Loan pursuant to clause (e) above with
respect to any Swing Loan, the Swing Loan Lender shall promptly distribute to
such Revolving Credit Lender such Revolving Credit Lender's Ratable Portion of
all payments of principal of and interest received by the Swing Loan Lender on
account of such Swing Loan other than those received from a Revolving Credit
Lender pursuant to clause (e) above.
Section 2.4 Letters of Credit
(a) On the terms and subject to the conditions contained in
this Agreement, each Issuer agrees to Issue at the request of the Company and
for the account of the Borrowers or, if approved by the Bankruptcy Court, for
the benefit of any Foreign LC Subsidiary, one or more Letters of Credit from
time to time on any Business Day during the period commencing on the
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Closing Date and ending on or prior to the Scheduled Termination Date; provided,
however, that no Issuer shall be under any obligation to Issue any Letter of
Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall purport by its terms to enjoin or
restrain such Issuer from Issuing such Letter of Credit or any
Requirement of Law applicable to such Issuer or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over such Issuer shall
prohibit, or request that such Issuer refrain from, the Issuance of
letters of credit generally or such Letter of Credit in particular or
shall impose upon such Issuer with respect to such Letter of Credit any
restriction or reserve or capital requirement (for which such Issuer is
not otherwise compensated) not in effect on the date of this Agreement
or result in any unreimbursed loss, cost or expense that was not
applicable, in effect or known to such Issuer as of the date of this
Agreement and that such Issuer in good xxxxx xxxxx material to it;
(ii) such Issuer shall have received written notice from
the Administrative Agent, any Revolving Credit Lender or any Borrower,
on or prior to the requested date of Issuance of such Letter of Credit,
that one or more of the applicable conditions contained in Section 3.1
(Conditions Precedent to Initial Loans and Letters of Credit) and
Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) is
not then satisfied or duly waived;
(iii) after giving effect to the Issuance of such Letter
of Credit, the aggregate Domestic Revolving Credit Outstandings would
exceed the Domestic Maximum Credit at such time, if applicable;
(iv) after giving effect to the Issuance of such Letter
of Credit, the aggregate Foreign Revolving Credit Outstandings would
exceed the Foreign Maximum Credit at such time, if applicable;
(v) after giving effect to the Issuance of such Letter
of Credit, the sum of (i) the Letter of Credit Undrawn Amounts at such
time and (ii) the Reimbursement Obligations at such time exceeds
$40,000,000;
(vi) any fees due in connection with a requested Issuance
have not been paid;
(vii) such Letter of Credit is requested to be Issued in a
form that is not acceptable to such Issuer consistent with the Issuer's
standard practices;
(viii) such Letter of Credit is requested to be Issued
under the Foreign Sublimit and there is Foreign Available Credit under
the Foreign Revolving Credit Facility at such time; or
(ix) unless otherwise approved by the Administrative
Agent and such Issuer, such Letter of Credit is to be Issued to renew,
replace, backstop or succeed a letter of credit issued or deemed
issued under the Pre-Petition Facility or otherwise Issued prior to
the Petition Date.
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None of the Lenders (other than the Issuers in their capacity as such) shall
have any obligation to Issue any Letter of Credit.
(b) In no event shall the expiration date of any Letter of
Credit (i) be more than one year after the date of issuance thereof or (ii)
occur after the Scheduled Termination Date.
(c) In connection with the Issuance of each Letter of Credit,
the Company shall give the relevant Issuer and the Administrative Agent at least
three Business Days' prior written notice, in substantially the form of Exhibit
E (Form of Letter of Credit Request) (or in such other written or electronic
form as is acceptable to the Issuer), of the requested Issuance of such Letter
of Credit (a "Letter of Credit Request"). Such notice shall be irrevocable and
shall specify the Issuer of such Letter of Credit, the stated amount of the
Letter of Credit requested, the date of Issuance of such requested Letter of
Credit (which date shall be a Business Day), the date on which such Letter of
Credit is to expire (which date shall be a Business Day) and the Person for
whose benefit the requested Letter of Credit is to be Issued. Such notice, to be
effective, must be received by the relevant Issuer and the Administrative Agent
not later than 11:00 a.m. (New York time) on the third Business Day prior to the
requested Issuance of such Letter of Credit.
(d) Subject to the satisfaction of the conditions set forth in
this Section 2.4 (Letters of Credit), the relevant Issuer shall, on the
requested date, Issue a Letter of Credit on behalf of the Borrowers in
accordance with such Issuer's usual and customary business practices. No Issuer
shall Issue any Letter of Credit in the period commencing on the first Business
Day after it receives written notice from the Administrative Agent or any
Revolving Credit Lender that one or more of the conditions precedent contained
in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall
not on such date be satisfied and ending when such conditions are satisfied. The
relevant Issuer shall not otherwise be required to determine that, or take
notice whether, the conditions precedent set forth in Section 3.2 (Conditions
Precedent to Each Loan and Letter of Credit) have been satisfied in connection
with the Issuance of any Letter of Credit.
(e) If requested by the relevant Issuer, prior to the issuance
of each Letter of Credit by such Issuer, and as a condition of such Issuance and
of the participation of each Revolving Credit Lender in the applicable Letter of
Credit Obligations arising with respect thereto, the Company shall have
delivered to such Issuer a letter of credit reimbursement agreement, in such
form as the Issuer may employ in its ordinary course of business for its own
account (a "Letter of Credit Reimbursement Agreement"), signed by the Company,
and such other documents or items as may be required pursuant to the terms
thereof. In the event of any conflict between the terms of any Letter of Credit
Reimbursement Agreement and this Agreement, the terms of this Agreement shall
govern.
(f) Each Issuer shall:
(i) give the Administrative Agent written notice (or
telephonic notice confirmed promptly thereafter in writing), which
writing may be a telecopy or electronic mail, of the Issuance or
renewal of a Letter of Credit issued by it, of all drawings under a
Letter of Credit issued by it and the payment (or the failure to pay
when due) by the Borrowers of any Reimbursement Obligation when due
(which notice the Administrative Agent shall promptly transmit by
telecopy or similar transmission to each Lender);
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(ii) upon the request of any Revolving Credit Lender,
furnish to such Revolving Credit Lender copies of any Letter of Credit
Reimbursement Agreement to which such Issuer is a party and such other
documentation as may reasonably be requested by such Revolving Credit
Lender; and
(iii) no later than 10 Business Days following the last
day of each calendar month, provide to the Administrative Agent (and
the Administrative Agent shall provide a copy to each Lender
requesting the same) and the Borrowers separate schedules for
Documentary and Standby Letters of Credit issued by it, in form and
substance reasonably satisfactory to the Administrative Agent, setting
forth the aggregate Letter of Credit Obligations outstanding at the
end of each month.
(g) Immediately upon the issuance by an Issuer of a Letter of
Credit in accordance with the terms and conditions of this Agreement, such
Issuer shall be deemed to have sold and transferred to each Revolving Credit
Lender, and each Revolving Credit Lender shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuer, without
recourse or warranty, an undivided interest and participation, to the extent of
such Revolving Credit Lender's Ratable Portion, in such Letter of Credit and the
obligations of the Borrowers with respect thereto (including all Letter of
Credit Obligations with respect thereto) and any security therefor and guaranty
pertaining thereto.
(h) The Borrowers jointly and severally agree to pay to the
Issuer of any Letter of Credit the amount of all Reimbursement Obligations owing
to such Issuer under any Letter of Credit issued for its account no later than
the date that is the next succeeding Business Day after the Borrowers receive
written notice from such Issuer that payment has been made under such Letter of
Credit (the "Reimbursement Date"), irrespective of any claim, set-off, defense
or other right that the Borrowers may have at any time against such Issuer or
any other Person. In the event that any Issuer makes any payment under any
Letter of Credit and the Borrowers shall not have repaid such amount to such
Issuer pursuant to this clause (h) or such payment is rescinded or set aside for
any reason, such Reimbursement Obligation shall be payable on demand with
interest thereon computed (i) from the date on which such Reimbursement
Obligation arose to the Reimbursement Date, at the rate of interest applicable
during such period to Base Rate Loans and (ii) from the Reimbursement Date until
the date of repayment in full, at the rate of interest applicable during such
period to past due Loans bearing interest at a rate based on the Base Rate
during such period, and such Issuer shall promptly notify the Administrative
Agent, which shall promptly notify each Revolving Credit Lender of such failure,
and each Revolving Credit Lender shall promptly and unconditionally pay to the
Administrative Agent for the account of such Issuer the amount of such Revolving
Credit Lender's Ratable Portion of such payment in Dollars and in immediately
available funds. If the Administrative Agent so notifies such Revolving Credit
Lender prior to 11:00 a.m. (New York time) on any Business Day, such Revolving
Credit Lender shall make available to the Administrative Agent for the account
of such Issuer its Ratable Portion of the amount of such payment on such
Business Day in immediately available funds. Upon such payment by a Revolving
Credit Lender, such Revolving Credit Lender shall, notwithstanding whether or
not the conditions precedent set forth in Section 3.2 (Conditions Precedent to
Each Loan and Letter of Credit) shall have been satisfied (which conditions
precedent the Revolving Credit Lenders hereby irrevocably waive), be deemed to
have made a Revolving Loan to the Borrowers in the principal amount of such
payment. Whenever any Issuer receives from the Borrowers a payment of a
Reimbursement Obligation as to which the Administrative Agent has received for
the account of such Issuer any payment from a Revolving
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Credit Lender pursuant to this clause (h), such Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each
Revolving Credit Lender, in immediately available funds, an amount equal to such
Revolving Credit Lender's Ratable Portion of the amount of such payment
adjusted, if necessary, to reflect the respective amounts the Revolving Credit
Lenders have paid in respect of such Reimbursement Obligation.
(i) The Borrowers' obligation to pay each Reimbursement Obligation
and the obligations of the Revolving Credit Lenders to make payments to the
Administrative Agent for the account of the Issuers with respect to Letters of
Credit 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 the occurrence of any Default or Event of
Default, and irrespective of any of the following:
(i) any lack of validity or enforceability of any Letter
of Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or any Loan
Document;
(iii) the existence of any claim, set off, defense or other
right that any Borrower, any other party guaranteeing, or otherwise
obligated with, such Borrower, any Subsidiary or other Affiliate
thereof or any other Person may at any time have against the
beneficiary under any Letter of Credit, any Issuer, the Administrative
Agent or any Lender or any other Person, whether in connection with
this Agreement, any other Loan Document or any other related or
unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by the Issuer under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind
of the Issuer, the Lenders, the Administrative Agent 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 (Letters of Credit), constitute a legal or equitable
discharge of the Borrowers' obligations hereunder.
Any action taken or omitted to be taken by the relevant Issuer under or in
connection with any Letter of Credit, if taken or omitted in the absence of
gross negligence or willful misconduct, shall not put such Issuer under any
resulting liability to any Borrower or any Lender. In determining whether drafts
and other documents presented under a Letter of Credit comply with the terms
thereof, the Issuer may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any
notice or information to the contrary and, in making any payment under any
Letter of Credit, the Issuer may rely exclusively on the documents presented to
it under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary thereunder equals the
amount of such draft and
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whether or not any document presented pursuant to such Letter of Credit proves
to be insufficient in any respect, if such document on its face appears to be in
order, and whether or not any other statement or any other document presented
pursuant to such Letter of Credit proves to be forged or invalid or any
statement therein proves to be inaccurate or untrue in any respect whatsoever,
and any noncompliance in any immaterial respect of the documents presented under
such Letter of Credit with the terms thereof shall, in each case, be deemed not
to constitute willful misconduct or gross negligence of the Issuer.
(j) If and to the extent such Revolving Credit Lender shall not have so
made its Ratable Portion of the amount of the payment required by clause (h)
above available to the Administrative Agent for the account of such Issuer, such
Revolving Credit Lender agrees to pay to the Administrative Agent for the
account of such Issuer forthwith on demand any such unpaid amount together with
interest thereon, for the first Business Day after payment was first due at the
Federal Funds Rate and, thereafter until such amount is repaid to the
Administrative Agent for the account of such Issuer, at the rate per annum
applicable to Base Rate Loans under the Facilities. The failure of any Revolving
Credit Lender to make available to the Administrative Agent for the account of
such Issuer its Ratable Portion of any such payment shall not relieve any other
Revolving Credit Lender of its obligation hereunder to make available to the
Administrative Agent for the account of such Issuer its Ratable Portion of any
payment on the date such payment is to be made, but no Revolving Credit Lender
shall be responsible for the failure of any other Revolving Credit Lender to
make available to the Administrative Agent for the account of the Issuer such
other Revolving Credit Lender's Ratable Portion of any such payment.
Section 2.5 Reduction and Termination of the Commitments
(a) The Borrowers may, upon at least five (5) Business Days' prior
notice to the Administrative Agent, terminate in whole or reduce in part ratably
the unused portions of the respective Commitments of the Lenders; provided,
however, that each partial reduction shall be in an aggregate amount of not less
than $5,000,000 or an integral multiple of $1,000,000 in excess thereof.
(b) To the extent that any prepayment of Swing Loans or Domestic
Revolving Loans is made pursuant to Section 2.9(a) (Mandatory Prepayments) as a
result of a Domestic Asset Sale of assets which comprise part of the Domestic
Borrowing Base, the then current Revolving Credit Commitments shall be reduced
on each date on which such prepayment of Swing Loans or Domestic Revolving Loans
is made, or would be required to be made had the outstanding Swing Loans and
Domestic Revolving Loans equaled the applicable Revolving Credit Commitments
then in effect, in each case in the amount of such prepayment (or deemed
prepayment) and the Revolving Credit Commitment of each Revolving Credit Lender
shall be reduced by its Ratable Portion of such amount.
(c) To the extent that any prepayment of Foreign Revolving Loans is
made pursuant to Section 2.9(c) (Mandatory Prepayments), the then current
Revolving Credit Commitments shall be reduced on each date on which such
prepayment of Foreign Revolving Loans is made, or would be required to be made
had the outstanding Foreign Revolving Loans equaled the applicable Revolving
Credit Commitments then in effect, in each case in the amount of such prepayment
(or deemed prepayment) and the Revolving Credit Commitment of each Revolving
Credit Lender shall be reduced by its Ratable Portion of such amount.
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Section 2.6 Repayment of Loans
The Borrowers jointly and severally promise to repay the
entire unpaid principal amount of the Loans and the Swing Loans and all accrued
but unpaid interest thereon on the Scheduled Termination Date or such earlier
date on which the Loans shall be due and payable pursuant to this Agreement.
Section 2.7 Evidence of Debt
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing Indebtedness of the Borrowers 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.
(b) The Administrative Agent shall maintain accounts in
accordance with its usual practice in which it shall record (i) the amount of
each Loan made and, if a Eurodollar Rate Loan, the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable by the
Borrowers to each Lender hereunder with respect to each Loan and (iii) the
amount of any sum received by the Administrative Agent hereunder from the
Borrowers, whether such sum constitutes principal or interest (and the type of
Loan to which it applies), fees, expenses or other amounts due under the Loan
Documents and each Lender's share thereof, if applicable.
(c) The entries made in the accounts maintained pursuant to
clauses (a) and (b) above shall, to the extent permitted by applicable law, be
prima facie evidence of the existence and amounts of the obligations recorded
therein; provided, however, that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner
affect the obligations of the Borrowers to repay the Loans in accordance with
their terms.
(d) Notwithstanding any other provision of the Agreement, in
the event that any Lender requests that the Borrowers execute and deliver a
promissory note or notes payable to such Lender in order to evidence the
Indebtedness owing to such Lender by the Borrowers hereunder, the Borrowers
shall promptly execute and deliver a Note or Notes to such Lender evidencing any
Term Loans and Revolving Loans, as the case may be, of such Lender,
substantially in the forms of Exhibit B-1 (Form of Revolving Credit Note) or
Exhibit B-2 (Form of Term Note).
Section 2.8 Optional Prepayments
(a) Revolving Loans. Notwithstanding the provisions contained
in Section 2.9(n) (Mandatory Prepayments), the Borrowers may, upon at least five
Business Days' prior notice to the Administrative Agent, stating the proposed
date and aggregate principal amount of the prepayment, prepay the outstanding
principal amount of the Revolving Loans and Swing Loans in whole or in part;
provided, however, that if any prepayment of any Eurodollar Rate Loan is made by
the Borrowers other than on the last day of an Interest Period for such Loan,
the Borrowers shall also pay any amounts owing pursuant to Section 2.14(e)
(Breakage Costs); and, provided, further, that each partial prepayment shall be
in an aggregate principal amount not less than $5,000,000 or integral multiples
of $1,000,000 in excess thereof. Upon the giving of such notice of prepayment,
the principal amount of Revolving Loans and Swing Loans specified to be prepaid
shall become due and payable on the date specified for such prepayment.
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(b) Term Loans. The Borrowers may, upon at least five Business
Days' prior notice to the Administrative Agent, stating the proposed date and
aggregate principal amount of the prepayment, prepay the outstanding principal
amount of the Term Loans in whole or in part; together with accrued interest to
the date of such prepayment on the principal amount prepaid; provided, however,
that if any prepayment of any Eurodollar Rate Loan is made by the Borrowers
other than on the last day of an Interest Period for such Loan, the Borrowers
shall also pay any amounts owing pursuant to Section 2.14(e) (Breakage Costs),
and, provided, further, that each partial prepayment shall be in an aggregate
amount not less than $5,000,000 or integral multiples of $1,000,000 in excess
thereof. Upon the giving of such notice of prepayment, the principal amount of
Term Loans specified to be prepaid shall become due and payable on the date
specified for such prepayment.
(c) The Borrower shall have no right to prepay the principal
amount of any Revolving Loan or any Term Loan other than as provided in this
Section 2.8 (Optional Prepayments).
Section 2.9 Mandatory Prepayments
(a) Upon receipt by any Borrower or any of the Domestic
Guarantors of any Net Cash Proceeds arising from any Property Loss Event or
Domestic Asset Sale, the Borrowers shall immediately prepay the Domestic Loans
(or provide cash collateral in respect of Letters of Credit) in an amount equal
to the Available Prepayment Amount; provided, however, that in the case of any
Net Cash Proceeds arising from a Reinvestment Event, the Borrowers shall prepay
the Domestic Loans (or provide cash collateral in respect of Letters of Credit)
in an amount equal to the Reinvestment Prepayment Amount applicable to such
Reinvestment Event, if any, on the Reinvestment Prepayment Date with respect to
such Reinvestment Event and, pending application of such proceeds as specified
in the Reinvestment Notice, shall pay the same to the Administrative Agent to be
held in a Cash Collateral Account. Any such mandatory prepayment shall be
applied in accordance with clause (b) below.
(b) Subject to the provisions of Section 2.13(g) (Payments and
Computations), any prepayments made by the Borrowers pursuant to clause (a)
above required to be applied in accordance with this clause (b)shall be applied
as follows: first, to repay the outstanding principal balance of the Swing Loans
until such Swing Loans shall have been repaid in full; second, to repay the Term
Loans and the Domestic Revolving Loans ratably in accordance with the then
outstanding amounts thereof; and third, to provide cash collateral for any
Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in
Respect of Letters of Credit) until all such Letter of Credit Obligations have
been fully cash collateralized in the manner set forth therein. All repayments
of Domestic Loans required to be made pursuant to this clause (b) shall result
in a permanent reduction of the Commitments to the extent provided in Section
2.5(b) (Reduction and Termination of the Commitments).
(c) Upon receipt by any Foreign Borrowing Base Subsidiary or
any Included Subsidiary of any Net Cash Proceeds arising from any Foreign
Borrowing Base Asset Sale, the Company shall cause such Foreign Borrowing Base
Subsidiary to prepay Foreign Intercompany Loans made to such Foreign Borrowing
Base Subsidiary by the Company pursuant to clauses (h) and (i) of Section 8.1
(Indebtedness), and the Borrowers shall immediately prepay the Domestic
Revolving Loans and the Foreign Revolving Loans in each case, in an amount equal
to the Available Prepayment Amount. Any such mandatory prepayment shall be
applied in accordance with clause (d) below.
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(d) Subject to the provisions of Section 2.13(g) (Payments and
Computations), any prepayments made by the Borrowers pursuant to clause (c)
above required to be applied in accordance with this clause (d) shall be applied
as follows: first, to repay the outstanding principal balance of the Domestic
Revolving Loans under the Foreign Sublimit until such Domestic Revolving Loans
shall have been repaid in full, second to repay the outstanding principal
balance of the Foreign Revolving Loans until such Foreign Revolving Loans shall
have been paid in full, and third, to provide cash collateral for any Letter of
Credit Obligations in the manner set forth in Section 9.3 (Actions in Respect of
Letters of Credit) until all such Letter of Credit Obligations have been fully
cash collateralized in the manner set forth therein. All repayments of Revolving
Loans required to be made pursuant to this clause (d) shall result in a
permanent reduction of the Revolving Credit Commitments to the extent provided
in Section 2.5(c) (Reduction and Termination of the Commitments).
(e) If at any time, the sum of the aggregate principal amount
of Domestic Revolving Credit Outstandings plus the aggregate principal amount of
Term Loan Outstandings exceeds the Domestic Maximum Credit at such time, the
Borrowers shall forthwith prepay the Swing Loans first and then the Domestic
Revolving Loans then outstanding in an amount equal to such excess. If any such
excess remains after repayment in full of the aggregate outstanding Swing Loans
and Domestic Revolving Loans, the Borrower shall provide cash collateral for the
Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in
Respect of Letters of Credit) in an amount equal to 105% of such excess.
(f) If at any time, the aggregate principal amount of Foreign
Revolving Credit Outstandings exceeds the Foreign Maximum Credit at such time,
the Borrowers shall forthwith prepay the Foreign Revolving Loans then
outstanding in an amount equal to such excess. If any such excess remains after
repayment in full of the aggregate outstanding Foreign Revolving Loans, the
Borrowers shall provide cash collateral for the Letter of Credit Obligations in
the manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) in
an amount equal to 105% of such excess.
(g) Upon receipt by any Foreign Subsidiary of any Net Cash
Proceeds arising from any Other Foreign Asset Sale or Foreign Non-Borrowing Base
Asset Sale, the Company shall cause such Foreign Subsidiary to pay an amount
equal to the Available Prepayment Amount to the Administrative Agent to be held
in the Escrow Account. Any such mandatory prepayment shall be applied in
accordance with clause (h) below.
(h) Subject to the provisions of Section 2.13(g) (Payments and
Computations), any Net Cash Proceeds held by the Administrative Agent required
to be applied in accordance with this clause (h) shall be applied as follows:
first, to prepay Foreign Intercompany Loans made to such Foreign Subsidiary by
the Company under the Foreign Sublimit pursuant to clauses (i) and (j) of
Section 8.1 (Indebtedness), second, to prepay Foreign Intercompany Loans made to
such Foreign Subsidiary by the Company under the Foreign Revolving Credit
Facility pursuant to clauses (h) and (j) of Section 8.1 (Indebtedness), and,
then, to be held by the Administrative Agent until such time as the Obligations
are paid in full and all Letters of Credit have been fully cash collateralized
at which time the Administrative Agent shall apply any such remaining Net Cash
Proceeds in accordance with the terms of the Intercreditor Agreement.
(i) Upon receipt by any Foreign Subsidiary domiciled in Europe
of any Net Cash Proceeds arising from any Indebtedness incurred by it pursuant
to clause (o) of Section 8.1 (Indebtedness), the Borrowers shall cause Mercolec
to prepay Foreign Intercompany Loans made
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to it by any Intercompany Lender pursuant to clause (j) of Section 8.1
(Indebtedness), and the Borrowers shall immediately prepay the Domestic
Revolving Loans and the Foreign Revolving Loans in each case, in an amount equal
to 100% of such Net Cash Proceeds. Any such mandatory prepayment shall be
applied in accordance with clause (j) below.
(j) Subject to the provisions of Section 2.13(g) (Payments and
Computations), any prepayments made by the Borrowers pursuant to clause (i)
above or clause (l) below required to be applied in accordance with this clause
(j) shall be applied as follows: first, to repay the outstanding principal
balance of the Domestic Revolving Loans under the Foreign Sublimit until such
Domestic Revolving Loans shall have been repaid in full, second to repay the
outstanding principal balance of the Foreign Revolving Loans until such Foreign
Revolving Loans shall have been paid in full, and third, to provide cash
collateral for any Letter of Credit Obligations in the manner set forth in
Section 9.3 (Actions in Respect of Letters of Credit) until all such Letter of
Credit Obligations have been fully cash collateralized in the manner set forth
therein.
(k) (i) During the sixty (60) day period commencing on the
Closing Date, on the first Business Day after the end of each calendar week, and
(ii) commencing on the sixty-first (61st) day after the Closing Date and
thereafter, on the first Business Day after receipt thereof, to the extent that
the sum of (1) the aggregate cash and Cash Equivalents held by Mercolec plus (2)
the Mercolec Cash Proceeds received by it during such preceding period exceeds
$1,000,000 on such date, the Borrowers shall cause Mercolec to apply such excess
to prepay the outstanding balance of (x) all intercompany loans made to Mercolec
pursuant to clause (r) of Section 8.1 (Indebtedness) during the Interim Period,
and (y) after the Interim Period, all Foreign Intercompany Loans made to
Mercolec by any Intercompany Lender pursuant to clause (j) of Section 8.1
(Indebtedness), in either case, in an amount equal to 100% of such excess.
(l) On the last Business Day of each calendar month, the
Borrowers shall cause each Foreign Borrowing Base Subsidiary to apply all
proceeds received by it pursuant to clause (k) above to the repayment of all
Foreign Intercompany Loans made to it by the Company pursuant to clause (h) and
clause (i) of Section 8.1 (Indebtedness), and the Borrowers shall immediately
prepay the Domestic Revolving Loans and the Foreign Revolving Loans, in each
case, in an amount equal to 100% of such proceeds. Any such mandatory prepayment
shall be applied in accordance with clause (j) above.
(m) Upon receipt by any Foreign Subsidiary of the Company of
any Net Cash Proceeds arising from any Asset Sale pursuant to clause (h) or (i)
of Section 8.4 (Sale of Assets), the Borrowers shall cause such Foreign
Subsidiary to prepay Foreign Intercompany Loans made to such Foreign Subsidiary
pursuant to clause (j) of Section 8.1 (Indebtedness).
(n) Except during the continuance of an Event of Default (in
which case Section 2.13(g) (Payments and Computations) shall apply), all
available funds in the Concentration Account (other than an amount equal to any
Proceeds arising from a Reinvestment Event that are held in the Concentration
Account pending application of such proceeds as specified in a Reinvestment
Notice) shall be applied on a daily basis as follows: first, to repay the
outstanding principal amount of the Swing Loans until such Swing Loans have been
repaid in full; second to repay the outstanding principal balance of the
Revolving Loans until such Revolving Loans shall have been repaid in full; and
then to any other Obligation then due and payable. The Administrative Agent
agrees so to apply such funds and the Borrowers consent to such application. If,
following such application, there are no Loans outstanding and no other
Obligations that are then due and payable (and, during the continuance of an
Event of Default,
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cash collateral has been provided in the amount of 105% of all outstanding
Letter of Credit Obligations), then the Administrative Agent shall cause any
remaining funds in the Cash Collateral Account to be paid at the written
direction of the Company.
Section 2.10 Interest
(a) Rate of Interest. All Loans and the outstanding amount of
all other Obligations 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) if a Base Rate Loan or such other Obligation, at a
rate per annum equal to the sum of (A) the Base Rate as in effect from
time to time plus (B) the Applicable Margin; and
(ii) if a Eurodollar Rate Loan, at a rate per annum
equal to the sum of (A) the Eurodollar Rate determined for the
applicable Interest Period plus (B) the Applicable Margin in effect
from time to time during such Eurodollar Interest Period.
(b) Interest Payments. (i) Interest accrued on each Base Rate
Loan (other than Swing Loans) shall be payable in arrears (A) on the first
Business Day of each calendar month, commencing on the first such day following
the making of such Base Rate Loan and (B) if not previously paid in full, at
maturity (whether by acceleration or otherwise) of such Base Rate Loan, (ii)
interest accrued on Swing Loans shall be payable in arrears on the first
Business Day of the immediately succeeding calendar month, (iii) interest
accrued on each Eurodollar Rate Loan shall be payable in arrears (A) on the last
day of each Interest Period applicable to such Loan and, if such Interest Period
has a duration of more than three months, on each day during such Interest
Period occurring every three months from the first day of such Interest Period,
(B) upon the payment or prepayment thereof in full or in part and (C) if not
previously paid in full, at maturity (whether by acceleration or otherwise) of
such Eurodollar Rate Loan and (iv) interest accrued on the amount of all other
Obligations shall be payable on demand from and after the time such Obligation
becomes due and payable (whether by acceleration or otherwise).
(c) Default Interest. Notwithstanding the rates of interest
specified in clause (a) above or elsewhere herein, effective immediately upon
the occurrence of an Event of Default and for as long thereafter as such Event
of Default shall be continuing, the principal balance of all Loans and the
amount of all other Obligations shall bear interest at a rate that is two
percent per annum in excess of the rate of interest applicable to such Loans or
such other Obligations from time to time.
Section 2.11 Conversion/Continuation Option
(a) The Company may elect (i) at any time on any Business Day,
to convert Base Rate Loans (other than Swing Loans) or any portion thereof to
Eurodollar Rate Loans and (ii) at the end of any applicable Interest Period, to
convert Eurodollar Rate Loans or any portion thereof into Base Rate Loans or to
continue such Eurodollar Rate Loans or any portion thereof for an additional
Interest Period; provided, however, that the aggregate amount of the Eurodollar
Loans for each Interest Period must be in the amount of at least $ 5,000,000 or
an integral multiple of $1,000,000 in excess thereof. Each conversion or
continuation shall be allocated among the
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Loans of each Lender in accordance with such Lender's Ratable Portion. Each
such election shall be in substantially the form of Exhibit F (Form of Notice of
Conversion or Continuation) (a "Notice of Conversion or Continuation") and shall
be made by giving the Administrative Agent at least three Business Days' prior
written notice specifying (A) the amount and type of Loan being converted or
continued, (B) in the case of a conversion to or a continuation of Eurodollar
Rate Loans, the applicable Interest Period and (C) in the case of a conversion,
the date of conversion (which date shall be the last day of the applicable
Interest Period if a conversion from Eurodollar Rate Loans).
(b) The Administrative Agent shall promptly notify each Lender of its
receipt of a Notice of Conversion or Continuation and of the options selected
therein. Notwithstanding the foregoing, (i) no conversion in whole or in part of
Base Rate Loans to Eurodollar Rate Loans with an Interest Period in excess of
one, two or four weeks shall be permitted at any time prior to the Syndication
Completion Date and (ii) 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 upon the expiration of any applicable Interest Period shall be permitted
at any time at which (A) a Default or an Event of Default shall have occurred
and be continuing or (B) the continuation of, or conversion into, a Eurodollar
Rate Loan would violate any provision of Section 2.14 (Special Provisions
Governing Eurodollar Rate Loans). If, within the time period required under the
terms of this Section 2.11 (Conversion/Continuation Option), the Administrative
Agent does not receive a Notice of Conversion or Continuation from the Company
containing a permitted election to continue any Eurodollar Rate Loans for an
additional Interest Period or to convert any such Loans, then, upon the
expiration of the applicable Interest Period, such Loans shall be automatically
converted to Base Rate Loans. Each Notice of Conversion or Continuation shall be
irrevocable.
(c) The Administrative Agent will use commercially reasonable efforts
to minimize costs under Section 2.14(e) (Breakage Costs) incurred in connection
with the syndication of the Facilities prior to the Syndication Completion Date.
Section 2.12 Fees
(a) Unused Commitment Fee. The Borrowers jointly and severally agree
to pay to each Lender a commitment fee on the actual daily amount by which the
Revolving Credit Commitment of such Lender exceeds such Lender's Ratable Portion
of the sum of (i) the Revolving Credit Outstandings and (ii) the outstanding
amount of the Letter of Credit Obligations (the "Unused Commitment Fee") from
the date hereof through the Scheduled Termination Date at the Applicable Unused
Commitment Fee Rate, payable in arrears (x) on the first Business Day of each
calendar month, commencing on the first such Business Day following the Closing
Date and (y) on the Scheduled Termination Date.
(b) Letter of Credit Fees. The Borrowers jointly and severally agree
to pay the following amounts with respect to Letters of Credit issued by any
Issuer:
(i) to the Administrative Agent for the account of each Issuer
of a Letter of Credit, with respect to each Letter of Credit issued by
such Issuer, an issuance fee equal to .50% per annum of the maximum amount
available from time to time to be drawn under such Letter of Credit
payable in arrears (A) on the first Business Day of each calendar month,
commencing on the first such Business Day following the issuance of such
Letter of Credit and (B) on the Scheduled Termination Date;
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(ii) to the Administrative Agent for the ratable benefit of the
Revolving Credit Lenders, with respect to each Letter of Credit, a fee
accruing at a rate per annum equal to the Applicable Margin for Revolving
Loans that are Eurodollar Rate Loans on the maximum amount available from
time to time to be drawn under such Letter of Credit, payable in arrears
(A) on the first Business Day of each calendar month, commencing on the
first such Business Day following the issuance of such Letter of Credit
and (B) on the Scheduled Termination Date; provided, however, that during
the continuance of an Event of Default, such fee shall be increased by two
percent per annum and shall be payable on demand; and
(iii) to the Issuer of any Letter of Credit, with respect to
the issuance, amendment or transfer of each Letter of Credit and each
drawing made thereunder, documentary and processing charges in accordance
with such Issuer's standard schedule for such charges in effect at the
time of issuance, amendment, transfer or drawing, as the case may be.
(c) Additional Fees. The Company has agreed to pay to the
Administrative Agent and the Arrangers additional fees, the amount and dates of
payment of which are embodied in the Fee Letters.
Section 2.13 Payments and Computations
(a) The Borrowers shall make each payment hereunder (including fees
and expenses) not later than 11:00 a.m. (New York time) on the day when due, in
Dollars, to the Administrative Agent at its address referred to in Section 13.8
(Notices, Etc.) in immediately available funds without set-off or counterclaim.
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
clause (f) and (g) of this Section 2.13 (Payments and Computations), as
applicable, for the account of their respective Applicable Lending Offices;
provided, however, that amounts payable pursuant to Section 2.15 (Capital
Adequacy), Section 2.16 (Taxes), Section 2.14(c) (Special Provisions Governing
Eurodollar Rate Loans) or Section 2.14(d) (Special Provisions Governing
Eurodollar Rate Loans) shall be paid only to the affected Lender or Lenders and
amounts payable with respect to Swing Loans shall be paid only to the Swing Loan
Lender. Payments received by the Administrative Agent after 11:00 a.m. (New York
time) shall be deemed to be received on the next Business Day.
(b) All computations of interest and of fees shall be made by the
Administrative Agent on the basis of a year of 360 days, except with respect to
Base Rate Loans, the rate of interest on which shall be calculated on the basis
of a year of 365 days or 366 days, as the case may be, 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 by the Administrative Agent of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(c) If and to the extent any payment owed to the Administrative Agent
or any Lender is not made within three Business Days after the date it was due,
each Loan Party hereby authorizes the Administrative Agent and such Lender,
subject to any notice period provided in the Orders, to setoff and charge any
amount so due against any deposit account maintained by such
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Loan Party with the Administrative Agent or such Lender or against other
amounts due from the Administrative Agent or such Lender, in each case whether
or not the deposit therein is then due.
(d) 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, and such extension of time shall in such case
be included in the computation of payment of interest or fees, as the case may
be; provided, however, that if such extension would cause payment of interest on
or principal of any Eurodollar Rate Loan to be made in the next calendar month,
such payment shall be made on the immediately preceding Business Day. All
repayments of any Loans shall be applied as follows: 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
Eurodollar Interest Periods being repaid prior to those which have later
expiring Eurodollar Interest Periods.
(e) Unless the Administrative Agent shall have received notice from
the Borrowers to the Lenders prior to the date on which any payment is due
hereunder that the Borrowers will not make such payment in full, the
Administrative Agent may assume that the Borrowers have 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 Borrowers shall not have made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith 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.
(f) Subject to the provisions of Section 2.13(g) (Payments and
Computations) and, except as otherwise provided in Section 2.9 (Mandatory
Prepayments)), all payments and any other amounts received by the Administrative
Agent from or for the benefit of the Borrowers shall be applied as follows:
first, to pay principal of, and interest on, any portion of the Loans the
Administrative Agent may have advanced pursuant to the express provisions of
this Agreement on behalf of any Lender, for which the Administrative Agent has
not then been reimbursed by such Lender or the Borrowers; second, to pay all
other Obligations then due and payable; and third, as the Company so designates.
Payments in respect of Swing Loans received by the Administrative Agent shall be
distributed to the Swing Loan Lender; payments in respect of Term Loans received
by the Administrative Agent shall be distributed to each Term Lender in
accordance with such Term Loan Lender's Ratable Portion; payments in respect of
Revolving Loans received by the Administrative Agent shall be distributed to
each Revolving Credit Lender in accordance with such Revolving Credit Lender's
Ratable Portion; and all payments of fees and all other payments in respect of
any other Obligation shall be allocated among such of the Lenders and Issuers as
are entitled thereto and, if to the Lenders, in proportion to their respective
Ratable Portions.
(g) The Borrowers hereby irrevocably waive the right to direct the
application of any and all payments in respect of the Obligations and any
proceeds of Collateral after the occurrence and during the continuance of an
Event of Default and agree that, notwithstanding the provisions of Section
2.9(n) (Mandatory Prepayments) and Section 2.13(f) (Payments and Computations),
the Administrative Agent may, and, upon either (A) the written direction of the
Requisite Lenders or (B) the acceleration of the Obligations pursuant to Section
9.2 (Remedies),
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shall, apply all payments in respect of any Obligations and all funds on
deposit in any Cash Collateral Account (including all proceeds arising from a
Reinvestment Event that are held in the Cash Collateral Account pending
application of such proceeds as specified in a Reinvestment Notice) and all
other proceeds of Collateral in the following order:
(i) first, to pay interest on and then principal of
any portion of the Loans that the Administrative Agent may have advanced
on behalf of any Lender for which the Administrative Agent has not then
been reimbursed by such Lender or the Borrower;
(ii) second, to pay interest on and then principal of any
Swing Loan;
(iii) third, to pay Obligations in respect of any expense
reimbursements or indemnities then due to the Administrative Agent;
(iv) fourth, to pay Obligations in respect of any expense
reimbursements, including fees and expenses in respect of cash management
services, or indemnities then due to the Lenders and the Issuers;
(v) fifth, to pay Obligations in respect of any fees then
due to the Administrative Agent, the Lenders and the Issuers;
(vi) sixth, to pay interest then due and payable in respect
of the Loans and Reimbursement Obligations;
(vii) seventh, to pay or prepay principal amounts on the Loans
and Reimbursement Obligations and to provide cash collateral for
outstanding Letter of Credit Undrawn Amounts in the manner described in
Section 9.3 (Actions in Respect of Letters of Credit), ratably to the
aggregate principal amount of such Loans, Reimbursement Obligations and
Letter of Credit Undrawn Amounts, and Obligations owing with respect to
Hedging Contracts; and
(viii) eighth, to the ratable payment of all other Obligations;
provided, however, that if sufficient funds are not available to fund all
payments to be made in respect of any of the Obligations described in any of the
foregoing clauses first through eighth, the available funds being applied with
respect to any such Obligation (unless otherwise specified in such clause) shall
be allocated to the payment of such Obligations ratably, based on the proportion
of the Administrative Agent's and each Lender's or Issuer's interest in the
aggregate outstanding Obligations described in such clauses. The order of
priority set forth in clauses first through eighth above may at any time and
from time to time be changed by the agreement of the Requisite Lenders without
necessity of notice to or consent of or approval by the Company, any Secured
Party that is not a Lender or an Issuer or by any other Person that is not a
Lender or Issuer. The order of priority set forth in clauses first through fifth
may be changed only with the prior written consent of the Administrative Agent
in addition to that of the Requisite Lenders. The order of priority set forth in
clause second above may be changed only with the prior written consents of the
Swing Loan Lender in addition to that of the Requisite Lenders and the
Administrative Agent.
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(h) At the option of the Administrative Agent, principal on the Swing
Loans, Reimbursement Obligations, interest, fees, expenses and other sums due
and payable in respect of the Loans and Protective Advances may be paid from the
proceeds of Swing Loans or Revolving Loans. The Borrowers hereby authorize the
Swing Loan Lender to make Swing Loans pursuant to Section 2.3(a) (Swing Loans)
and the Revolving Credit Lenders to make Revolving Loans pursuant to clause (a)
of Section 2.2 (Borrowing Procedures) from time to time in the Swing Loan
Lender's or such Revolving Credit Lender's discretion, that are in the amounts
of any and all principal payable with respect to the Swing Loans and interest,
fees, expenses and other sums payable in respect of the Loans, and further
authorizes the Administrative Agent to give the Lenders notice of any Borrowing
with respect to such Swing Loans and Revolving Loans and to distribute the
proceeds of such Swing Loans and Revolving Loans to pay such amounts. The
Borrowers agree that all such Swing Loans and Revolving Loans so made shall be
deemed to have been requested by it (irrespective of the satisfaction of the
conditions in Section 3.2 (Conditions Precedent to Each Loan and Letter of
Credit), which conditions the Lenders irrevocably waive) and direct that all
proceeds thereof shall be used to pay such amounts.
Section 2.14 Special Provisions Governing Eurodollar Rate Loans
(a) Determination of Interest Rate
The Eurodollar Rate for each Interest Period for Eurodollar Rate Loans
shall be determined by the Administrative Agent pursuant to the procedures set
forth in the definition of "Eurodollar Rate." The Administrative Agent's
determination shall be presumed to be correct absent manifest error and shall be
binding on the Borrowers.
(b) Interest Rate Unascertainable, Inadequate or Unfair
In the event that (i) 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 then being determined is to be
fixed or (ii) the Requisite 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 forthwith so notify the Borrowers and the Revolving
Credit Lenders, whereupon each Eurodollar Loan shall automatically, on the last
day of the current Interest Period for such Loan, convert into a Base Rate Loan
and the obligations of the Lenders to make Eurodollar Rate Loans or to convert
Base Rate Loans into Eurodollar Rate Loans shall be suspended until the
Administrative Agent shall notify the Borrowers that the Requisite Lenders have
determined that the circumstances causing such suspension no longer exist.
(c) Increased Costs
If at any time any Lender shall determine that the introduction of, or
any change in or in the interpretation of, any law, treaty or governmental rule,
regulation or order (other than any change by way of imposition or increase of
reserve requirements included in determining the Eurodollar Rate) or the
compliance by such Lender with any guideline, request or directive from any
central bank or other Governmental Authority (whether or not having the force of
law), there shall be any increase in the cost to such Lender of agreeing to make
or making, funding or maintaining any Eurodollar Rate Loans, then the Borrowers
shall from time to time, upon demand by such Lender (with a copy of such demand
to the Administrative Agent), pay to the Administrative Agent for the account of
such Lender additional amounts sufficient to compensate such Lender for such
increased cost. A certificate as to the amount of such increased cost,
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submitted to the Borrowers and the Administrative Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error. If any Lender
becomes entitled to claim any additional amounts pursuant to this Section
2.14(c) (Increased Costs), such certificate shall certify that that it is
generally charging such other costs to other similarly situated borrowers.
Notwithstanding the foregoing, to the extent such certificate is given by such
Lender more than one hundred eighty (180) days after it has knowledge (or should
have had knowledge) of the occurrence of the event giving rise to the incurrence
of such increased costs, such Lender shall not be entitled to compensation for
such increased costs incurred or accruing more than one hundred eighty (180)
days prior to the delivery of such certificate to the Borrowers.
(d) Illegality
Notwithstanding any other provision of this Agreement, if any Lender
determines that the introduction of, or any change in or in the interpretation
of, any law, treaty or governmental rule, regulation or order after the date of
this Agreement shall make it unlawful, or any central bank or other Governmental
Authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to make Eurodollar Rate Loans or to continue to fund or maintain
Eurodollar Rate Loans, then, on notice thereof and demand therefor by such
Revolving Credit Lender to the Borrowers through the Administrative Agent, (i)
the obligation of such Revolving Credit Lender to make or to continue Eurodollar
Rate Loans and to convert Base Rate Loans into Eurodollar Rate Loans shall be
suspended, and each such Lender shall make a Base Rate Loan as part of any
requested Borrowing of Eurodollar Rate Loans and (ii) if the affected Eurodollar
Rate Loans are then outstanding, the Borrowers shall immediately convert each
such Loan into a Base Rate Loan. If, at any time after a Lender gives notice
under this Section 2.14(d) (Special Provisions Governing Eurodollar Rate Loans),
such Lender determines that it may lawfully make Eurodollar Rate Loans, such
Lender shall promptly give notice of that determination to the Borrowers and the
Administrative Agent, and the Administrative Agent shall promptly transmit the
notice to each other Lender. The Borrowers' right to request, and such Lender's
obligation, if any, to make Eurodollar Rate Loans shall thereupon be restored.
(e) Breakage Costs
In addition to all amounts required to be paid by the Borrowers pursuant to
Section 2.10 (Interest), the Borrowers shall compensate each Lender, upon
demand, for all losses, expenses and liabilities (including any loss or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund or maintain such Lender's Eurodollar Rate Loans
to the Borrowers but excluding any loss of the Applicable Margin on the relevant
Loans) that such Lender may sustain (i) if for any reason 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 given by the Company or in a telephonic request by it for borrowing
or conversion or continuation or a successive Interest Period does not commence
after notice therefor is given pursuant to Section 2.11 (Conversion/Continuation
Option), (ii) if for any reason any Eurodollar Rate Loan is prepaid (including
mandatorily pursuant to Section 2.9 (Mandatory Prepayments)) on a date that is
not the last day of the applicable Interest Period, (iii) as a consequence of a
required conversion of a Eurodollar Rate Loan to a Base Rate Loan as a result of
any of the events indicated in clause (d) above or (iv) as a consequence of any
failure by the Borrowers to repay Eurodollar Rate Loans when required by the
terms hereof. The Lender making demand for such compensation shall deliver to
the Borrowers concurrently with such demand a written statement as to such
losses,
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expenses and liabilities, and this statement shall be conclusive as to the
amount of compensation due to such Lender, absent manifest error.
Section 2.15 Capital Adequacy
If at any time any Lender determines that (a) the adoption of, or any
change in or in the interpretation of, any law, treaty or governmental rule,
regulation or order after the date of this Agreement regarding capital adequacy,
(b) compliance with any such law, treaty, rule, regulation or order or (c)
compliance with any guideline or request or directive from any central bank or
other Governmental Authority (whether or not having the force of law) shall have
the effect of reducing the rate of return on such Lender's (or any corporation
controlling such Lender's) capital as a consequence of its obligations hereunder
or under or in respect of any Letter of Credit to a level below that which such
Lender or such corporation could have achieved but for such adoption, change,
compliance or interpretation, then, upon demand from time to time by such Lender
(with a copy of such demand to the Administrative Agent), the Borrowers shall
pay to the Administrative Agent for the account of such Lender, from time to
time as specified by such Lender, additional amounts sufficient to compensate
such Lender for such reduction. A certificate as to such amounts submitted to
the Borrowers and the Administrative Agent by such Lender shall be conclusive
and binding for all purposes absent manifest error. If any Lender becomes
entitled to claim any additional amounts pursuant to this Section 2.15 (Capital
Adequacy), such certificate shall certify that that it is generally charging
such other costs to other similarly situated borrowers. Notwithstanding the
foregoing, to the extent such certificate is given by such Lender more than one
hundred eighty (180) days after it has knowledge (or should have had knowledge)
of the occurrence of the event giving rise to the incurrence of such additional
amounts, such Lender shall not be entitled to compensation for such additional
amounts incurred or accruing more than one hundred eighty (180) days prior to
the delivery of such certificate to the Borrowers.
Section 2.16 Taxes
Any and all payments by any Loan Party under each Loan Document shall be
made free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding (i) in the case of each Lender and the
Administrative Agent (A) taxes measured by its net income, and franchise taxes
imposed on it, by the jurisdiction (or any political subdivision thereof) under
the laws of which such Lender or the Administrative Agent (as the case may be)
is organized and (B) any United States withholding taxes payable with respect to
payments under the Loan Documents under laws (including any statute, treaty or
regulation) in effect on the Closing Date (or, in the case of an Eligible
Assignee, the date of the Assignment and Acceptance) applicable to such Lender
or the Administrative Agent, as the case may be, but not excluding any United
States withholding taxes payable as a result of any change in such laws
occurring after the Closing Date (or the date of such Assignment and Acceptance)
and (ii) in the case of each Lender, taxes measured by its net income and
franchise taxes imposed on it as a result of a present or former connection
between such Lender and the jurisdiction of the Governmental Authority imposing
such tax or any taxing authority thereof or therein (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"); provided that the Borrowers shall not be
required to increase any such amounts payable to any Non-U.S. Lender that are
attributable to such Non-U.S. Lender's failure to comply with the requirements
of clause (f) below unless such Non-U.S. Lender's non-compliance is due to a
change in governing statute, treaty or regulation occurring subsequent to the
date on which such
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forms and certificates were required to be provided pursuant to clause (f)
below. If any Taxes shall be required by law to be deducted from or in respect
of any sum payable under any Loan Document to any Lender or the Administrative
Agent (w) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.16 (Taxes) such Lender or the Administrative
Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (x) the relevant Loan Party shall
make such deductions, (y) the Borrowers shall pay the full amount deducted to
the relevant taxing authority or other authority in accordance with applicable
law and (z) the relevant Loan Party shall deliver to the Administrative Agent
evidence of such payment.
(b) In addition, each Loan Party agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies of the United States or any political subdivision thereof or any
applicable foreign jurisdiction, and all liabilities with respect thereto, in
each case arising from any payment made under any Loan Document or from the
execution, delivery or registration of, or otherwise with respect to, any Loan
Document (collectively, "Other Taxes").
(c) Each Loan Party shall indemnify each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this Section 2.16
(Taxes) paid by such Lender or the Administrative Agent (as the case may be) and
any liability (including for penalties, interest and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted. This indemnification shall be made within 30 days from the
date such Lender or the Administrative Agent (as the case may be) makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes by any Loan Party, the Borrowers shall furnish to the Administrative
Agent, at its address referred to in Section 13.8 (Notices, Etc.) the original
or a certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder, the agreements and obligations of the Loan Parties
contained in this Section 2.16 (Special Provisions Governing Eurodollar Rate
Loans) shall survive the payment in full of the Obligations.
(f) Prior to the Closing Date in the case of each Non-U.S. Lender that
is a signatory hereto, and on the date of the Assignment and Acceptance pursuant
to which it becomes a Lender in the case of each other Non-U.S. Lender and from
time to time thereafter if requested by the Company or the Administrative Agent,
each Non-U.S. Lender that is entitled at such time to an exemption from United
States withholding tax, or that is subject to such tax at a reduced rate under
an applicable tax treaty, shall provide the Administrative Agent and the
Borrowers with two completed originals of each of the following: (i) Form W-8ECI
(claiming exemption from withholding because the income is effectively connected
with a U.S. trade or business) or any successor form, (ii) Form W-8BEN (claiming
exemption from, or a reduction of, withholding tax under an income tax treaty)
or any successor form, (iii) in the case of a Non-U.S. Lender claiming exemption
under Sections 871(h) or 881(c) of the Code, a Form W-8BEN (claiming exemption
from withholding under the portfolio interest exemption) or any successor form
or (iv) any other applicable form, certificate or document prescribed by the IRS
certifying as to such
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Non-U.S. Lender's entitlement 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 under the Loan Documents. Unless the Borrowers 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 are not
subject to United States withholding tax or are subject to such tax at a rate
reduced by an applicable tax treaty, the Borrowers or the Administrative Agent
shall withhold amounts required to be withheld by applicable Requirements of Law
from such payments at the applicable statutory rate.
(g) Any Lender claiming any additional amounts payable pursuant to
this Section 2.16 (Taxes) shall use its reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Applicable Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that would be payable or may thereafter accrue and would not, in the sole
determination of such Lender, be otherwise disadvantageous to such Lender.
(h) If any Lender becomes entitled to claim any additional amounts
pursuant to this Section 2.16 (Taxes), to the extent the written demand
delivered under clause (c) above is given by such Lender more than one hundred
eighty (180) days after it has knowledge (or should have had knowledge) of the
occurrence of the event giving rise to the incurrence of such increased costs,
such Lender shall not be entitled to compensation for such additional amounts
incurred or accruing more than one hundred eighty (180) days prior to the
delivery of such written demand to the Borrowers.
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Section 2.17 Cash Collateral Accounts.
The Administrative Agent has established a Deposit Account at Citibank
designated as "Citicorp USA, Inc. - Exide Concentration Account" (the
"Concentration Account"). The Administrative Agent may establish one or more
other Deposit Accounts and one or more Securities Accounts with such
depositaries and Securities Intermediaries as it in its sole discretion shall
determine. Each such account shall be in the name of the Administrative Agent
(but may also have words referring to the Borrowers and the account's purpose).
Each Borrower agrees that each such account shall be under the sole dominion and
control of the Administrative Agent. The Administrative Agent shall be the
Entitlement Holder with respect to each such Securities Account and the only
Person authorized to give entitlement orders with respect thereto. Without
limiting the foregoing, funds on deposit in any Cash Collateral Account may be
invested in Cash Equivalents at the direction of the Administrative Agent and,
except during the continuance of an Event of Default, the Administrative Agent
agrees with the Company to issue Entitlement Orders for such investments in Cash
Equivalents as requested by the Company; provided, however, that the
Administrative Agent shall not have any responsibility for, or bear any risk of
loss of, any such investment or income thereon. Neither the Borrowers nor any
other Loan Party or Person claiming on behalf of or through the Borrowers or any
other Loan Party shall have any right to demand payment of any of the funds held
in any Cash Collateral Account at any time prior to the termination of all
outstanding Letters of Credit and the payment in full of all then outstanding
and payable monetary Obligations. The Administrative Agent shall apply all funds
on deposit in a Cash Collateral Account as provided this Agreement and except
during the continuance of an Event of Default agrees to cause any funds
remaining on deposit therein after all Obligations then due and payable have
been satisfied and all Letter of Credit Obligations have been cash
collateralized at 105% to be paid at the written direction of the Company.
Section 2.18 Substitution of Lenders.
In the event that (a) (i) any Lender makes a claim under Section
2.14(c) (Increased Costs) or Section 2.15 (Capital Adequacy), or (ii) it becomes
illegal for any Lender to continue to fund or make any Eurodollar Rate Loan and
such Lender notifies the Borrowers pursuant to Section 2.14(d) (Illegality), or
(iii) the Borrowers are required to make any payment pursuant to Section 2.16
(Taxes) that is attributable to any Lender, (b) in the case of clause (a)(i)
above, as a consequence of increased costs in respect of which such claim is
made, the effective rate of interest payable to such Lender under this Agreement
with respect to its Loans materially exceeds the effective average annual rate
of interest payable to the Requisite Lenders under this Agreement and (c)
Lenders holding at least 75% of the Commitments are not subject to such
increased costs or illegality, payment or proceedings (any such Lender, an
"Affected Lender"), the Borrowers may substitute another financial institution
for such Affected Lender hereunder, upon reasonable prior written notice (which
written notice must be given within 90 days following the occurrence of any of
the events described in clauses (a)(i), (ii) or (iii)) by the Borrowers to the
Administrative Agent and the Affected Lender that the Borrowers intend to make
such substitution, which substitute financial institution must be an Eligible
Assignee and, if not a Lender, reasonably acceptable to the Administrative
Agent; provided, however, that if more than one Lender claims increased costs,
illegality or right to payment arising from the same act or condition and such
claims are received by the Borrowers within thirty (30) days of each other then
the Borrowers may substitute all, but not (except to the extent the Borrowers
has already substituted one of such Affected Lenders before the Borrowers'
receipt of the other Affected Lenders' claim) less than all, Lenders making such
claims. In the event that the proposed
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substitute financial institution or other entity is reasonably acceptable to the
Administrative Agent and the written notice was properly issued under this
Section 2.18 (Substitution of Lenders), the Affected Lender shall sell and the
substitute financial institution or other entity shall purchase, pursuant to an
Assignment and Acceptance, all rights and claims of such Affected Lender under
the Loan Documents and the substitute financial institution or other entity
shall assume and the Affected Lender shall be relieved of its Commitments and
all other prior unperformed obligations of the Affected Lender under the Loan
Documents (other than in respect of any damages (other than exemplary or
punitive damages, to the extent permitted by applicable law) in respect of any
such unperformed obligations). Upon the effectiveness of such sale, purchase and
assumption (which, in any event shall be conditioned upon the payment in full by
the Borrowers to the Affected Lender in cash of all fees, unreimbursed costs and
expenses and indemnities accrued and unpaid through such effective date), the
substitute financial institution or other entity shall become a "Lender"
hereunder for all purposes of this Agreement having a Commitment (if applicable)
in the amount of such Affected Lender's Commitment assumed by it and such
Commitment (if applicable) of the Affected Lender shall be terminated, provided
that all indemnities under the Loan Documents shall continue in favor of such
Affected Lender.
ARTICLE III
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 the Loans requested to be made
by it on the Closing Date and the obligation of each Issuer to issue Letters of
Credit on the Closing Date is subject to the satisfaction of all of the
following conditions precedent:
(a) Bankruptcy Court Orders.
(i) The Bankruptcy Court shall have entered the Interim Order,
certified by the Clerk of the Bankruptcy Court as having been duly entered,
and the Interim Order shall be in full force and effect and shall not have
been vacated, reversed, modified, amended or stayed without the prior
written consent of the Administrative Agent and the Requisite Lenders.
(ii) All First Day Orders shall be in form and substance
satisfactory to the Administrative Agent.
(b) Certain Documents. The Administrative Agent shall have received on
the Closing Date each of the following, each dated the Closing Date unless
otherwise indicated or agreed to by the Administrative Agent, in form and
substance satisfactory to the Administrative Agent and each Lender and each of
their respective counsel and in sufficient copies for each Lender:
(i) this Agreement, duly executed and delivered by each of the
Loan Parties party th ereto and, for the account of each Lender requesting
the same, a Note or Notes of the Borrowers conforming to the requirements
set forth herein;
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(ii) the Standstill Agreement, duly executed and delivered by
the Pre-Petition Agent, the Pre-Petition Lenders holding 100% of the
obligations under the Pre-Petition Facility, the Administrative Agent and
the Company;
(iii) the Intercreditor Agreement, duly executed and delivered
by the Administrative Agent, the Pre-Petition Agent, the Company, GNB and
certain Foreign Subsidiaries of the Company;
(iv) copies of UCC search reports as of a recent date listing
all effective financing statements that name the Company as debtor,
together with copies of such financing statements;
(v) (A) delivery by the Pre-Petition Agent of share
certificates held by it pursuant to the Pre-Petition Facility representing
such of the certificated Pledged Stock being pledged pursuant to this
Agreement and stock powers for such share certificates executed in blank,
as the Administrative Agent may require;
(B) delivery by the Pre-Petition Agent of instruments
held by it pursuant to the Pre-Petition Facility representing such of
the Pledged Notes pledged pursuant to this Agreement as shall be
requested by the Administrative Agent, in each case duly endorsed in
favor of the Administrative Agent or in blank;
(C) delivery by the Company of share certificates not in
the possession of the Pre-Petition Agent representing such of the
remaining Pledged Stock being pledged pursuant to this Agreement and
stock powers for such share certificates executed in blank, as the
Administrative Agent may require; and
(D) delivery by the Company of instruments not in the
possession of the Pre-Petition Agent representing such of the
remaining Pledged Notes pledged pursuant to this Agreement as shall
be requested by the Administrative Agent, in each case duly endorsed
in favor of the Administrative Agent or in blank;
(vi) evidence satisfactory to the Administrative Agent that
all Liens encumbering the assets of any Non-Filing Subsidiary (which are
not permitted under the terms of this Agreement) have been or will be
discharged and released on the Closing Date;
(vii) a favorable opinion of Xxxxxxxx & Xxxxx, counsel to the
Company and its Domestic Subsidiaries, in substantially the form of Exhibit
G-1 (Form of Opinion of Counsel for the Company and its Domestic
Subsidiaries), addressed to the Administrative Agent and the Lenders and
addressing such other matters as any Lender through the Administrative
Agent may reasonably request;
(viii) a copy of the articles or certificate of incorporation
(or equivalent Constituent Document) of the Company and each of the
Domestic Guarantors, certified as of a recent date by the Secretary of
State of the state of incorporation of such Person, in each case, together
with certificates of such official attesting to the good standing of each
such Person;
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(ix) a certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying (A) the names and true signatures of each
officer of such Loan Party who has been authorized to execute and deliver
any Loan Document or other document required hereunder to be executed and
delivered by or on behalf of such Loan Party, (B) the by-laws (or
equivalent Constituent Document) of such Loan Party as in effect on the
date of such certification, (C) the resolutions of such Loan Party's
Board of Directors (or equivalent governing body) approving and
authorizing the execution, delivery and performance of this Agreement and
the other Loan Documents to which it is a party and (D) that there have
been no changes in the certificate of incorporation (or equivalent
Constituent Document) of such Loan Party from the certificate of
incorporation (or equivalent Constituent Document) delivered pursuant to
subclause (viii) above;
(x) a certificate of a Responsible Officer of the Company to
the effect that the condition set forth in Section 3.2(b) (Conditions
Precedent to Each Loan and Letter of Credit) has been satisfied;
(xi) evidence satisfactory to the Administrative Agent that
the insurance policies required by Section 7.5 (Maintenance of Insurance)
are in full force and effect, together with endorsements naming the
Administrative Agent, on behalf of the Secured Parties, as an additional
insured or loss payee under all insurance policies to be maintained with
respect to the properties of each Loan Party;
(xii) such title insurance policies, current as built surveys,
zoning letters and certificates of occupancy, delivered by the Company in
connection with the Third Amendment dated as of December 28, 2001, to the
Pre-Petition Facility, in each case satisfactory to the Administrative
Agent, in its sole discretion;
(xiii) evidence satisfactory to the Administrative Agent of the
receipt of the consents, authorizations and approvals, and the making of
the filings, listed on Schedule 4.2 (Consents); and
(xiv) evidence of satisfactory adequate protection provisions
and treatment (if any) with respect to the obligations of the Company and
its Domestic Subsidiaries (other than GNB) under the Pre-Petition
Facility that have been agreed to by the Pre-Petition Lenders, the
Pre-Petition Agents and the Administrative Agent pursuant to the Interim
Order, which adequate protection provisions shall include:
(A) subject to the satisfaction of the Liquidity Test,
the payment of Adequate Protection Payments on the third (3rd)
Business Day after each Measurement Date;
(B) a super priority Claim as contemplated by Section
507(b) of the Bankruptcy Code immediately junior to the Claims under
Section 364(c)(1) of the Bankruptcy Code held by the Lenders, subject
to the Carve-Out;
(C) a Lien on all of the assets of the Borrowers
(including, without limitation, the Accounts in the United States)
that are encumbered in favor of the Administrative Agent, which
adequate protection Lien shall have a
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priority immediately junior to the priming and other Liens to be
granted in favor of the Administrative Agent hereunder, subject to
the Carve-Out;
(D) the payment on a current basis of the reasonable
fees and expenses (including, but not limited to, the reasonable fees
and disbursements of counsel and internal and third-party
consultants, including financial consultants and auditors) incurred
by the Pre-Petition Agent (including any unpaid pre-petition fees and
expenses) and the continuation of the payment to the Pre-Petition
Agent on a current basis of the administration fees that are provided
for thereunder; and
(E) an agreed upon cash budget for the twelve-month
period commencing on April 15, 2002.
(xv) reasonably satisfactory evidence that the amounts
outstanding under the Domestic Receivables Facility have been paid in
full, the commitments thereunder have been terminated and all related
guarantees and security interests have been terminated;
(xvi) reasonably satisfactory evidence that Citibank, N.A.,
London branch, shall have received commitments under the European A/R
Facility of no less than the Dollar Equivalent of $165,000,000, on terms
and conditions satisfactory to the Administrative Agent, on or prior to
the Closing Date;
(xvii) a consent, in form and substance satisfactory to the
Administrative Agent, of the Pre-Petition Lenders and the Pre-Petition
Agents to the super-priority status of the Liens granted pursuant to this
Agreement, duly executed and delivered by the Pre-Petition Agents, or
satisfactory evidence of non-objection to the Interim Order by the
Pre-Petition Agents and a preponderance of the Pre-Petition Lenders.
(xviii) the Administrative Agent shall have received
satisfactory appraisal reports on the Inventory and the fixed assets to
be included in the calculation of Total Availability on the Closing Date.
(xix) such other certificates, documents, agreements and
information respecting any Loan Party as any Lender through the
Administrative Agent may reasonably request.
(c) Financial Statements. The Lenders shall have received and be
satisfied with (i) audited Consolidated and consolidating balance sheets and
related statements of income, changes in stockholders' equity and cash flows of
the Company and its Subsidiaries for the fiscal period ending March 31, 2001,
which audited financial statements shall be without qualification as to the
scope of the audit and (ii) unaudited quarterly and monthly balance sheets and
related statements of income, changes in stockholders' equity and cash flows
through the Fiscal Quarter ending December 31, 2001, and each fiscal month
thereafter of (A) the Company and as Subsidiaries, which shall be on a
Consolidated and consolidating basis, (B) the Company and its Domestic
Subsidiaries, which shall be on a Consolidated basis, and (C) the Foreign
Subsidiaries of the Company, which shall be on a Consolidated basis, which
unaudited financial statements shall be calculated in accordance with, or
reconciled to, GAAP.
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(d) Business Plan. The Administrative Agent shall have received, in form
and substance satisfactory to it, (a) the annual business plan of the Company
for the twelve month period occurring after the Closing Date approved by the
Board of Directors of the Company, which shall include (i) forecasts prepared by
management of the Company for each fiscal month occurring during such twelve
month period and for each Fiscal Quarter through the Fiscal Year in which the
Scheduled Termination Date is scheduled to occur, and (ii) historical
comparative financial information for the twelve months preceding the Closing
Date, and (b) a report, summary and analysis of such annual business plan
prepared by Xxxxxxx and Marsal on or before March 26, 2002.
(e) Benefit Plans. The Administrative Agent shall be satisfied that the
Company and its Subsidiaries will be able to meet their obligations under all
employee and retiree welfare plans of the Company and its Subsidiaries, that
such employee benefit plans are, in all material respects, funded in accordance
with the minimum statutory requirements, that no material "reportable event" (as
defined in ERISA, but excluding events for which reporting has been waived) has
occurred as to any such employee benefit plan and that no termination of, or
withdrawal from, any such employee benefit plan has occurred or is contemplated
that could result in a material liability. The Administrative Agent shall have
reviewed and be satisfied with all employee benefit plans of the Company and its
Subsidiaries.
(f) Fee and Expenses Paid. There shall have been paid to the Administrative
Agent, for the account of the Administrative Agent, the Lenders, the Collateral
Monitoring Agent and the Arrangers, as applicable, all fees and expenses
(including reasonable fees and expenses of counsel) due and payable on or before
the Closing Date (including all such fees described in the Fee Letters).
(g) Field Examination. The Administrative Agent shall be satisfied with the
results of a field examination of the Borrowers and their respective
Subsidiaries conducted by Citicorp's internal auditors within fourteen (14) days
prior to the Closing Date.
(h) Environmental Assessments. For each piece of Eligible Domestic Real
Property and Eligible Foreign Real Property expected to be included in the
Domestic Borrowing Base and the Foreign Borrowing Base, respectively, the
Administrative Agent shall have received a Phase I environmental site assessment
report or an equivalent report prepared by Environmental Resource Management or
by another consultant acceptable to the Administrative Agent and in a form and
scope satisfactory to the Administrative Agent, in each case, in its reasonable
discretion.
(i) No Litigation. There shall exist no action, suit, investigation,
litigation or proceeding (other than the Cases) pending or threatened in any
court or before any arbitrator or governmental instrumentality that (i) could
reasonably be expected to result in a Material Adverse Change or (ii) restrains,
prevents or imposes or can reasonably be expected to impose materially adverse
conditions upon the Facilities or the transactions contemplated thereby.
(j) Total Availability. After giving effect to all the extensions of credit
under the Facilities on the Closing Date the aggregate Total Availability under
the Facilities (without regard to any interim reduction in commitment amounts)
less all the outstanding Loans and Letters of Credit shall be in excess of
$60,000,000.
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Section 3.2 Conditions Precedent to Each Loan and Letter of Credit
The obligation of each Lender on any date (including the Closing Date) to
make any Loan and of each Issuer on any date (including the Closing Date) to
Issue any Letter of Credit is subject to the satisfaction of each of the
following conditions precedent:
(a) Request for Borrowing or Issuance of Letter of Credit. With respect
to any Loan, the Administrative Agent shall have received a duly executed Notice
of Borrowing (or, in the case of Swing Loans, a duly executed Swing Loan
Request) and, with respect to any Letter of Credit, the Administrative Agent and
the Issuer shall have received a duly executed Letter of Credit Request.
(b) Representations and Warranties; No Defaults. The following statements
shall be true on the date of such Loan or Issuance, both before and after giving
effect thereto and, in the case of any Loan, to the application of the proceeds
therefrom:
(i) the representations and warranties set forth in Article IV
(Representations and Warranties) and in the other Loan Documents shall be
true and correct on and as of the Closing Date and shall be true and correct
in all material respects on and as of any such date after the Closing Date
with the same effect as though made on and as of such date, except to the
extent such representations and warranties expressly relate to an earlier
date, in which case such representations and warranties shall have been true
and correct in all material respects as of such earlier date, and except for
the representations and warranties in Section 4.16 (Environmental Matters),
which shall be deemed to include on Schedule 4.16 (Environmental Matters)
any notices provided pursuant to Section 6.11 (Environmental Matters); and
(ii) no Default or Event of Default shall have occurred and be
continuing.
(c) Borrowing Base. The Company shall have delivered, as the case may be:
(i) the Borrowing Base Certificate required to be delivered by
Section 6.12(a) (Borrowing Base Determination) in respect of the Domestic
Borrowing Base. After giving effect to (A) the Domestic Loans or Letters of
Credit requested to be made or Issued on any such date and the use of
proceeds thereof, the Domestic Revolving Credit Outstandings and Term Loan
Outstandings shall not exceed the Domestic Maximum Credit at such time, and
(B) all Loans or Letters of Credit requested to be made or Issued on any
such date and the use of proceeds thereof, the Revolving Credit Outstandings
and Term Loan Outstandings shall not exceed the Interim Facilities or
Permanent Facilities, as applicable; and/or
(ii) the Borrowing Base Certificate required to be delivered by
Section 6.12(a) (Borrowing Base Determination) in respect of the Foreign
Borrowing Base for the relevant Foreign Borrowing Base Subsidiary and
Included Subsidiary, if applicable. After giving effect to (A) the Foreign
Revolving Loans or Letters of Credit requested to be made or Issued on any
such date and the use of proceeds thereof, the Foreign Revolving Credit
Outstandings shall not exceed the Foreign Maximum Credit at such time, and
(B) all Loans or Letters of Credit requested to be made or Issued on any
such date and the use of proceeds thereof, the Revolving Credit Outstandings
and Term
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Loan Outstandings shall not exceed the Interim Facilities or Permanent
Facilities, as applicable.
(d) No Legal Impediments. The making of the Loans or the Issuance of
such Letter of Credit on such date does not violate any Requirement of Law on
the date of or immediately following such Loan or Issuance of such Letter of
Credit and is not enjoined, temporarily, preliminarily or permanently.
(e) Final Order. From and after the 45th day after the Closing Date,
the Bankruptcy Court shall have entered the Final Order, certified by the Clerk
of the Bankruptcy Court as having been duly entered, and the Final Order shall
be in full force and effect and shall not have been vacated, reversed, modified,
amended or stayed without the prior written consent of the Administrative Agent
and the Requisite Lenders.
(f) Additional Matters. The Administrative Agent shall have received
such additional documents, information and materials as any Lender, through the
Administrative Agent, may reasonably request.
Each submission by the Company to the Administrative Agent of a Notice of
Borrowing or a Swing Loan Request and the acceptance by the Borrowers of the
proceeds of each Loan requested therein, and each submission by the Company to
an Issuer of a Letter of Credit Request, and the Issuance of each Letter of
Credit requested therein, shall be deemed to constitute a representation and
warranty by each Borrower as to the matters specified in clause (b) above on the
date of the making of such Loan or the Issuance of such Letter of Credit.
Section 3.3 Determinations of Initial Borrowing Conditions
For purposes of determining compliance with the conditions specified
in Section 3.1 (Conditions Precedent to Initial Loans and Letters of Credit),
each Lender shall be deemed to have consented to, approved, accepted or be
satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless
an officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
prior to the initial Borrowing or Issuance hereunder specifying its objection
thereto and such Lender shall not have made available to the Administrative
Agent such Lender's Ratable Portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Lenders, the Issuers and the Administrative Agent to
enter into this Agreement, each Loan Party represents and warrants each of the
following to the Lenders, the Issuers and the Administrative Agent, on and as of
the Closing Date and after giving effect to the making of the Loans and the
other financial accommodations on the Closing Date and on and as of each date as
required by Section 3.2(b)(i) (Conditions Precedent to Each Loan and Letter of
Credit):
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Section 4.1 Corporate Existence; Compliance with Law
Each Borrower and its Subsidiaries (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 corporation 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 have a Material Adverse Effect, (c) has all requisite power and authority
and the legal right to own, pledge, mortgage and operate its properties, to
lease the property it operates under lease and to conduct its business as now or
currently proposed to be conducted, (d) is in compliance with its Constituent
Documents, (e) is in compliance with all applicable Requirements of Law except
where the failure to be in compliance would not, in the aggregate, have a
Material Adverse Effect and (f) has all necessary licenses, permits, consents or
approvals 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, operation and conduct, except for licenses,
permits, consents, approvals or filings that can be obtained or made by the
taking of ministerial action to secure the grant or transfer thereof or the
failure to obtain or make would not, in the aggregate, have a Material Adverse
Effect.
Section 4.2 Corporate Power; Authorization; Enforceable Obligations
(a) The execution, delivery and performance by each Loan Party of the
Loan Documents to which it is a party and the consummation of the transactions
contemplated thereby, including the obtaining of the Loans and the creation and
perfection of the Liens on the Collateral as security therefor:
(i) are, subject to the entry of the Orders, within such Loan
Party's corporate, limited liability company, partnership or other powers;
(ii) have been or, at the time of delivery thereof pursuant to
Article III (Conditions to Loans And Letters of Credit) will have been duly
authorized by all necessary corporate, partnership or limited liability
company action;
(iii) subject to the entry of the Orders, do not and will not
(A) contravene such Loan Party's or any of its Subsidiaries' respective
Constituent Documents, (B) violate any other Requirement of Law applicable
to such Loan Party (including Regulations T, U and X of the Federal Reserve
Board), or any order or decree of any Governmental Authority or arbitrator
applicable to such Loan Party, (C) conflict with or result in the breach
of, or constitute a default under, or result in or permit the termination
or acceleration of, any Contractual Obligation of such Loan Party or any of
its Subsidiaries or (D) result in the creation or imposition of any Lien
upon any property of such Loan Party or any of its Subsidiaries, other than
those in favor of the Secured Parties pursuant to this Agreement and the
Orders; and
(iv) do not require the consent of, authorization by, approval
of, notice to, or filing or registration with, any Governmental Authority
or any other Person, other than those listed on Schedule 4.2 (Consents) and
that have been or will be, prior to the Closing Date, obtained or made,
copies of which have been or will be delivered to the Administrative Agent
pursuant to Section 3.1 (Conditions Precedent to Initial Loans and Letters
of Credit), and each of which on the Closing Date will be in full force and
effect.
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(b) This Agreement has been, and each of the other Loan Documents will
have been upon delivery thereof pursuant to the terms of this Agreement, duly
executed and delivered by each Loan Party party thereto. Subject to the entry of
the Orders, this Agreement is, and the other Loan Documents will be, when
delivered hereunder, the legal, valid and binding obligation of each Loan Party
party thereto, enforceable against such Loan Party in accordance with its terms.
Section 4.3 Ownership of Borrowers; Subsidiaries
(a) As of the Closing Date, the authorized capital stock of the
Company consists of 100,000,000 shares of common stock, $.01 par value per
share, of which 27,383,084 shares are issued and outstanding. All of the
outstanding capital stock of the Company has been validly issued, is fully paid
and non-assessable.
(b) Set forth on Schedule 4.3 (Ownership of Subsidiaries) is a
complete and accurate list showing, as of the Closing Date, all Subsidiaries of
the Company and, as to each such Subsidiary, the jurisdiction of its
organization, with respect to the Domestic Subsidiaries of the Company only, the
number of shares of each class of Stock authorized (if applicable) and the
number outstanding on the Closing Date, and with respect to all such
Subsidiaries, the percentage of the outstanding shares of each such class owned
(directly or indirectly) by the owner thereof. No stock of any Domestic
Subsidiary of the Company is subject to any outstanding option, warrant, right
of conversion or purchase of any similar right. All of the outstanding Stock of
each Subsidiary of the Company owned (directly or indirectly) by the Company has
been validly issued, is fully paid and non-assessable (to the extent applicable)
and is owned by the Company or a Subsidiary of the Company, free and clear of
all Liens (other than (x) the Lien in favor of the Pre-Petition Agent under the
Pre-Petition Facility, (y) the Liens permitted pursuant to Section 8.2(i)
(Liens, Etc.) and (z) the Lien in favor of the Secured Parties created pursuant
to this Agreement), and with respect to the Domestic Subsidiaries of the Company
only, options, warrants, rights of conversion or purchase or any similar rights.
Except as set forth on Schedule 4.3 and as permitted in Section 8.10
(Limitations on Restrictions on Subsidiary Distributions; No New Negative
Pledge), neither the Company nor any such Domestic Subsidiary is a party to, or
has knowledge of, any agreement restricting the transfer or hypothecation of any
Stock of any such Domestic Subsidiary, other than the Loan Documents. The
Company does not own or hold, directly or indirectly, any Stock of any Person
other than such Subsidiaries and Investments permitted by Section 8.3
(Investments).
Section 4.4 Financial Statements
(a) (i) (A) The Consolidated balance sheet of (1) the Company and its
Subsidiaries, (2) the Company and its non-European Subsidiaries, and (3) the
European Subsidiaries of the Company, and (B) the consolidating balance sheet of
the Company and its Subsidiaries, in each case as at March 31, 2001, and the
related Consolidated and consolidating statements of income, retained earnings
and cash flows for the fiscal year then ended, in the case of such Consolidated
balance sheets and statements of the Company and its Subsidiaries only,
certified by the Company's Accountants, and (ii) (A) the Consolidated balance
sheets of (1) the Company and its Subsidiaries, (2) the Company and its
non-European Subsidiaries, and (3) the European Subsidiaries of the Company, and
(B) the consolidating balance sheet of the Company and its Subsidiaries, in each
case as at December 31, 2001, and the related Consolidated and consolidating
statements of income, retained earnings and cash flows for each fiscal month
ended thereafter, copies of which have been furnished to each Lender, fairly
present, subject, in the case
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of said balance sheets as at December 31, 2001, and said statements of income,
retained earnings and cash flows for the fiscal months ended thereafter, to the
absence of footnote disclosure and normal recurring year-end adjustments, the
Consolidated and/or consolidating, as applicable, financial condition of the
Company and its Subsidiaries as at such dates and the Consolidated and
consolidating, as applicable, results of the operations of the Company and its
Subsidiaries for the period ended on such dates, all in conformity with GAAP.
(b) The business plan delivered pursuant to clause (d) of Section 3.1
(Conditions Precedent to Initial Loans and Letters of Credit) has been prepared
by the Company in light of the past operations of its business, and reflect
projections for the twelve month period year period beginning on the Closing
Date, on a month by month basis for such twelve month period and on a quarterly
basis thereafter. Such business plan is based upon estimates and assumptions
stated therein, all of which the Company believes to be reasonable and fair in
light of current conditions and current facts known to the Company and, as of
the Closing Date, reflect the Company's good faith and reasonable projections of
the future financial performance of the Company and its Subsidiaries and of the
other information projected therein for the periods set forth therein.
Section 4.5 Material Adverse Change
Other than the filing of the Cases (and the events leading up
thereto), since March 31, 2001, there has been no Material Adverse Change and
there have been no events or developments that, in the aggregate, have had a
Material Adverse Effect.
Section 4.6 Litigation
Other than the filing of the Cases and except as set forth on Schedule
4.6 (Litigation), there are no pending or, to the knowledge of any Borrower,
threatened actions, investigations or proceedings affecting any Borrower or any
of its Subsidiaries before any court, Governmental Authority or arbitrator other
than those that, in the aggregate, are not reasonably likely to be determined
adversely to any Loan Party and, if so determined, would not have a Material
Adverse Effect. The performance of any action by any Loan Party required or
contemplated by any Loan Document is not restrained or enjoined (either
temporarily, preliminarily or permanently).
Section 4.7 Taxes
(a) 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 the Borrowers or any of their respective Tax
Affiliates 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 material taxes,
charges and other impositions reflected therein or otherwise due and payable
have been paid prior to the date on which any fine, penalty, interest, late
charge or loss may be added thereto for non-payment thereof except where
contested in good faith and by appropriate proceedings if adequate reserves
therefor have been established on the books of such Borrower or such Tax
Affiliate in conformity with GAAP. Except as set forth on Schedule 4.7 (Taxes),
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 the Borrowers and each of their respective Tax
Affiliates from their respective employees for all periods in material
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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.
(b) None of the Borrowers or any of their respective Tax Affiliates has
(i) executed or filed with the IRS or any other Governmental Authority any
agreement or other document extending, or having the effect of extending, the
period for the filing of any Tax Return or the assessment or collection of any
charges, (ii) incurred any obligation under any tax sharing agreement or
arrangement other than those of which the Administrative Agent has received a
copy prior to the date hereof or (iii) been a member of an affiliated, combined
or unitary group other than the group of which such Borrower (or its Tax
Affiliate) is the common parent.
Section 4.8 Full Disclosure
(a) The information prepared or furnished by or on behalf of the
Borrowers in connection with this Agreement or the consummation of the
transactions contemplated hereunder taken as a whole, including the information
contained in the Disclosure Documents, does not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements contained therein or herein not misleading. All facts known to the
Borrowers and material to an understanding of the financial condition, business,
properties or prospects of the Borrowers and their respective Subsidiaries taken
as one enterprise have been disclosed to the Lenders.
(b) The Disclosure Documents comply as to form in all material respects
with all applicable requirements of all applicable state and Federal laws.
Section 4.9 Margin Regulations
No Borrower is engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of Regulation
U of the Federal Reserve Board), and no proceeds of any Borrowing will be used
to purchase or carry any such margin stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock in contravention of
Regulation T, U or X of the Federal Reserve Board.
Section 4.10 No Burdensome Restrictions; No Defaults
(a) No Borrower nor any of its Subsidiaries is a party to any
Contractual Obligation the compliance with which would have a Material Adverse
Effect in the aggregate or the performance of which by any thereof, either
unconditionally or upon the happening of an event, would result in the creation
of a Lien (other than a Lien permitted under Section 8.2 (Liens, Etc.)) on the
property or assets of any thereof.
(b) Other than defaults occurring as a result of the filing of the
Cases, neither the Borrowers nor any of their respective Subsidiaries is in
default under or with respect to any Contractual Obligation owed by it and, to
the knowledge of each Borrower, no other party is in default under or with
respect to any Contractual Obligation owed to any Loan Party or to any
Subsidiary of a Loan Party, other than, in either case, those defaults that, in
the aggregate, would not have a Material Adverse Effect.
(c) No Default or Event of Default has occurred and is continuing.
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Section 4.11 Investment Company Act; Public Utility Holding Company Act
Neither the Borrowers nor any of their respective Subsidiaries is (a)
an "investment company" or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are defined
in the Investment Company Act of 1940, as amended or (b) a "holding company," or
an "affiliate" or a "holding company" or a "subsidiary company" of a "holding
company," as each such term is defined and used in the Public Utility Holding
Company Act of 1935, as amended.
Section 4.12 Use of Proceeds
(a) The proceeds of the Domestic Loans and the Letters of Credit are
being used by the Borrowers solely as follows: (a) to fund post-petition
operating expenses of the Borrowers and their respective Domestic Subsidiaries
incurred in the ordinary course of business, (b) to pay Permitted Prepetition
Claim Payments, Adequate Protection Payments (to the extent permitted pursuant
to the Orders) and certain other costs and expenses of administration of the
Cases to be specified in writing to the Administrative Agent (including by
notice of application for Orders), (c) for working capital, capital expenditures
and other general corporate purposes of the Borrowers and their respective
Domestic Subsidiaries not in contravention of any Requirement of Law or the Loan
Documents, (d) to make Foreign Intercompany Loans to Foreign Subsidiaries of the
Company pursuant to clauses (i) and (j) of Section 8.1 (Indebtedness) for
working capital, capital expenditures and other general corporate purposes of
such Foreign Subsidiaries, (e) to refinance and restructure in full all
Indebtedness outstanding under the Domestic Receivables Facility, and (f) to
fund fees and expenses incurred in connection with the Restructuring. The
Borrowers shall use the entire amount of the proceeds of each Domestic Borrowing
in accordance with this Section 4.12(a) (Use of Proceeds); provided, however,
that nothing herein shall in any way prejudice or prevent the Administrative
Agent or the Lenders from objecting, for any reason, to any requests, motions or
applications made in the Bankruptcy Court, including any applications for
interim or final allowances of compensation for services rendered or
reimbursement of expenses incurred under clause (a) of Section 105, or Section
330 or 331 of the Bankruptcy Code, by any party in interest; and provided,
further, that the Borrowers shall not use the proceeds from any Loans or Letters
of Credit for any purpose that is prohibited under the Bankruptcy Code or any
orders of the Bankruptcy Court or in connection with the investigation
(including discovery proceedings), initiation or prosecution of any claims,
causes of action, adversary proceedings or other litigation against the
Administrative Agent or the Lenders, including challenging the amount, validity,
perfection, priority or enforceability of or asserting any defense, counterclaim
or offset to, the Obligations or the security interests and Liens of the Secured
Parties in respect thereof.
(b) The proceeds of the Foreign Revolving Loans are being used by the
Borrowers solely to make Foreign Intercompany Loans to the Foreign Subsidiaries
of the Company pursuant to clauses (h) and (j) of Section 8.1 (Indebtedness) for
working capital, capital expenditures and other general corporate purposes of
such Foreign Subsidiaries. The Borrowers shall use the entire amount of the
proceeds of each Foreign Revolving Credit Borrowing in accordance with this
Section 4.12(b) (Use of Proceeds).
(c) Notwithstanding anything to the contrary contained in this
Agreement, no Letter of Credit shall be requested to be Issued in contravention
of Section 2.4(a)(ix) (Letters of Credit).
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Section 4.13 Insurance
All policies of insurance of any kind or nature of the Borrowers or any
of their respective Subsidiaries, including policies of life, fire, theft,
product liability, public liability, property damage, other casualty, employee
fidelity, workers' compensation and employee health and welfare insurance, are
in full force and effect and are of a nature and provide such coverage as is
sufficient and as is customarily carried by businesses of the size and character
of such Person. None of the Borrowers or any of their respective Subsidiaries
has been refused insurance for any material coverage for which it had applied or
had any policy of insurance terminated (other than at its request) except to the
extent such Person has obtained replacement insurance in compliance with Section
7.5 (Maintenance of Insurance).
Section 4.14 Labor Matters
(a) There are no strikes, work stoppages, slowdowns or lockouts pending
or, to the best knowledge of the Borrowers, threatened against or involving the
Borrowers or any of their respective Subsidiaries, other than those that, in the
aggregate, would not have a Material Adverse Effect.
(b) There are no unfair labor practices, grievances or complaints
pending, or, to the Borrowers' knowledge, threatened, against or involving the
Borrowers or any of their respective Subsidiaries, nor, to the best knowledge of
the Borrowers, are there any arbitrations or grievances threatened involving the
Borrowers or any of their respective Subsidiaries, other than those that, in the
aggregate, if resolved adversely to any Borrower or such Subsidiary, would not
have a Material Adverse Effect.
(c) Except as set forth on Schedule 4.14 (Labor Matters), as of the
Closing Date, there is no collective bargaining agreement covering any employee
of the Borrowers or their respective Domestic Subsidiaries.
(d) Except to the extent included in any Form 10-Q or Form 10-K of the
Company, Schedule 4.14 (Labor Matters) sets forth, as of the date hereof, all
material consulting agreements, executive employment agreements, executive
compensation plans, deferred compensation agreements, employee stock purchase
and stock option plans and severance plans of the Borrowers and any of their
respective Domestic Subsidiaries.
Section 4.15 ERISA
(a) Schedule 4.15 (List of Plans) separately identifies as of the date
hereof all Title IV Plans, all Multiemployer Plans and all of the employee
benefit plans within the meaning of Section 3(3) of ERISA to which any Borrower
or any of its Subsidiaries has any obligation or liability, contingent or
otherwise.
(b) Each employee benefit plan of each Borrower or any of its
Subsidiaries intended to qualify under Section 401 of the Code does so qualify,
and any trust created thereunder is exempt from tax under the provisions of
Section 501 of the Code, except where such failures, in the aggregate, would not
have a Material Adverse Effect.
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(c) Each Title IV Plan is in compliance in all material respects
with applicable provisions of ERISA, the Code and other Requirements of Law
except for non-compliances that, in the aggregate, would not have a Material
Adverse Effect.
(d) Other than the filing of the Cases, there has been no, nor is
there reasonably expected to occur, any ERISA Event other than those that, in
the aggregate, would not have a Material Adverse Effect.
(e) Except to the extent set forth on Schedule 4.15 (List of
Plans), none of the Borrowers, any of the Borrowers' Subsidiaries or any ERISA
Affiliate would have any Withdrawal Liability as a result of a complete
withdrawal as of the date hereof from any Multiemployer Plan.
Section 4.16 Environmental Matters
(a) Except as disclosed on Schedule 4.16 (Environmental Matters):
(i) the operations of the Borrowers and each of their
respective Subsidiaries have been and are in compliance with all
Environmental Laws, including obtaining and complying with all
required environmental, health and safety Permits, other than
non-compliances that would not have a reasonable likelihood of any
Borrower and its Subsidiaries incurring unbudgeted Environmental
Liabilities and Costs after the date hereof in excess of $5,000,000
individually or in the aggregate;
(ii) none of the Borrowers or any of their respective
Subsidiaries or any Real Property currently or, to the knowledge of the
Borrower, previously owned, operated or leased by or for the Borrowers
or any of their respective Subsidiaries is subject to any pending or,
to the knowledge of the Borrowers, threatened, claim, order, agreement,
notice of violation, notice of potential liability or is the subject of
any pending or threatened proceeding or governmental investigation
under or pursuant to Environmental Laws other than those that are not
reasonably likely to result in the Borrowers and their respective
Subsidiaries incurring unbudgeted Environmental Liabilities and Costs
in excess of $5,000,000 individually or in the aggregate;
(iii) none of the Borrowers or any of their respective
Subsidiaries is a treatment, storage or disposal facility requiring a
Permit under the Resource Conservation and Recovery Act, 42 U.S.C.(S)
6901 et seq., the regulations thereunder or any state analog;
(iv) there are no facts, circumstances or conditions
constituting violations of, or liabilities under, Environmental Laws,
arising out of or relating to the operations or ownership of any
Borrower or of Real Property owned, operated or leased by any Borrower
or any of its Subsidiaries that are not specifically included in the
financial information furnished to the Lenders other than those that
would not have a reasonable likelihood of the Borrowers and their
respective Subsidiaries incurring unbudgeted Environmental Liabilities
and Costs in excess of $5,000,000 individually or in the aggregate;
(v) as of the date hereof, no Environmental Lien has
attached to any property of the Borrowers or any of their respective
Subsidiaries and, to the knowledge of
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the Borrowers, no facts, circumstances or conditions exist that
could reasonably be expected to result in any such Lien attaching
to any property included or prepared for inclusion in the Eligible
Domestic Real Property and Eligible Foreign Real Property; and
(vi) the Borrowers and each of their respective Subsidiaries
have made available to the Lenders copies of all third-party
material environmental, health or safety audits, studies,
assessments, inspections, investigations or other material
environmental health and safety reports relating to the operations
of the Borrowers or any of their respective Subsidiaries or any
Real Property of any of them that are in the possession, custody
or control of the Borrowers or any of their respective
Subsidiaries.
(b) This Section 4.16 (Environmental Matters) contains the sole and
exclusive representations and warranties regarding environmental matters by the
Borrowers and their Subsidiaries.
Section 4.17 Intellectual Property
The Borrowers and their respective Subsidiaries own or license or
otherwise have the right to use all Intellectual Property that is material to
the operations of their respective businesses, without infringement upon or
conflict with the rights of any other Person with respect thereto, including all
trade names associated with any private label brands of any Borrower or any of
its Subsidiaries. To the Borrowers' knowledge, no slogan or other advertising
device, product, process, method, substance, part or component, or other
material now employed, or now contemplated to be employed, by the Borrowers or
any of their respective Subsidiaries, which is material to the business of the
Company and its Subsidiaries taken as a whole, infringes upon or conflicts with
any rights owned by any other Person in any material respect, and no claim or
litigation regarding any of the foregoing is pending or threatened.
Section 4.18 Title; Real Property
(a) Each Borrower and its Subsidiaries has good and marketable
title to, or valid leasehold interests in, (i) all Real Property constituting
Eligible Domestic Real Property and Eligible Foreign Real Property, and (ii) all
other material Real Property, and has good title to all material personal
property, in each case that is purported to be owned or leased by it, including
those reflected on the most recent Financial Statements delivered by the
Borrowers, and none of such properties and assets is subject to any Lien, except
Liens permitted under Section 8.2 (Liens, Etc.). Each Borrower and its
Subsidiaries have received all deeds, assignments, waivers, consents,
non-disturbance and recognition or similar agreements, bills of sale and other
documents and have duly effected all recordings, filings and other actions
necessary to establish, protect and perfect the Borrower's and its Subsidiaries'
right, title and interest in and to all such property.
(b) Set forth on Schedule 4.18 (Real Property) is a complete and
accurate list of all Real Property owned by each Borrower and its Domestic
Subsidiaries and showing, as of the Closing Date, the current street address
(including, where applicable, county, state and other relevant jurisdictions)
and the record owner thereof.
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Section 4.19 Secured, Super Priority Obligations
(a) On and after the Closing Date, upon entry of the Interim Order or
the Final Order, as applicable, the provisions of the Loan Documents and the
Orders are effective to create in favor of the Administrative Agent, for the
benefit of the Secured Parties, legal, valid and perfected Liens on and security
interests (having the priority provided for herein and in the Orders) in all
right, title and interest in the Collateral, enforceable against each Loan Party
that owns an interest in such Collateral.
(b) Pursuant to subclauses (2) and (3) of clause (c) and subclause (1)
of clause (d) of Section 364 of the Bankruptcy Code and the Orders, all amounts
owing by the Borrowers under this Agreement and the other Loan Documents in
respect thereof (including any exposure of a Lender or any of its affiliates in
respect of hedging transactions incurred on behalf of any Loan Party) will be
secured by a first priority, senior, priming perfected Lien on the Collateral
(including the "Collateral" under the Pre-Petition Facility), subject only to
(i) valid, perfected, nonavoidable and enforceable Liens existing as of the
Petition Date (other than Liens securing the Pre-Petition Facility), and (ii)
the Carve-Out.
(c) Pursuant to clause (c) of Section 364 of the Bankruptcy Code and
the Orders, all obligations of the Borrowers in respect thereof (including any
exposure of a Lender in respect of hedging transactions incurred on behalf of
any Loan Party) at all times shall constitute allowed super-priority
administrative expense claims in each of the Cases having priority over all
administrative expenses of the kind specified in clause (b) of Section 503 or
clause (b) of Section 507 of the Bankruptcy Code, subject only to the Carve-Out.
(d) The Orders and the transactions contemplated hereby and thereby,
are in full force and effect and have not been vacated, reversed, modified,
amended or stayed without the prior written consent of the Administrative Agent.
Section 4.20 Title; No Other Liens
Each Grantor is the record and beneficial owner of the Pledged
Collateral pledged by it hereunder constituting Instruments or certificated
securities and is the entitlement holder of all such Pledged Collateral
constituting Investment Property held in a Securities Account and owns each
other item of Collateral in which a Lien is granted by it hereunder and (b) all
such Collateral is owned free and clear of any and all Liens, other than (i) the
Lien granted to the Administrative Agent pursuant to this Agreement, (ii) the
Lien in favor of the Pre-Petition Agent under the Pre-Petition Facility, (iii)
with respect to the Pledged Collateral only, Liens in favor of the Pre-Petition
Agent permitted pursuant to Section 8.2(i) (Liens, Etc.), and (iv) with respect
to all Collateral other than the Pledged Collateral, the Liens permitted
pursuant to Section 8.2 (Liens, Etc.).
Section 4.21 Pledged Collateral
(a) The Pledged Stock pledged hereunder by each Grantor constitutes
that percentage of the issued and outstanding equity of all classes of each
issuer thereof as set forth on Schedule 4.21 (Pledged Collateral).
(b) All of the shares of Pledged Stock have been duly and validly
issued and are fully paid and nonassessable.
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(c) Each of the Pledged Notes constitutes the legal, valid and binding
obligation of the obligor with respect thereto, enforceable in accordance with
its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and general equitable principles (whether
considered in a proceeding in equity or at law).
(d) All Pledged Stock of such Grantor as of the date hereof are listed
on Schedule 4.21 (Pledged Collateral).
(e) All Pledged Collateral consisting of certificated securities or
Instruments has been delivered to the Administrative Agent to the extent
requested by the Administrative Agent.
(f) There is no Pledged Collateral other than that represented by
certificated securities or Instruments in the possession of the Administrative
Agent or that consisting of Financial Assets held in a Securities Account under
the sole dominion and control of the Administrative Agent.
(g) No Person other than the Administrative Agent has Control over any
Investment Property of such Grantor.
Section 4.22 Material Intellectual Property
(a) Schedule 4.22 (Material Intellectual Property) lists all Material
Intellectual Property of each Grantor on the date hereof, separately identifying
that owned by such Grantor and that licensed to such Grantor. The Material
Intellectual Property set forth on Schedule 4.22 (Material Intellectual
Property) for such Grantor constitutes all of the intellectual property rights
necessary to conduct its business.
(b) On the date hereof, all Material Intellectual Property owned by
such Grantor is valid, subsisting, unexpired and enforceable, has not been
adjudged invalid and has not been abandoned and the use thereof in the business
of such Grantor does not infringe the intellectual property rights of any other
Person.
(c) Except as set forth in Schedule 4.22 (Material Intellectual
Property), on the date hereof, none of the Material Intellectual Property owned
by such Grantor is the subject of any licensing or franchise agreement pursuant
to which such Grantor is the licensor or franchisor.
(d) No holding, decision or judgment has been rendered by any
Governmental Authority that would limit, cancel or question the validity of, or
such Grantor's rights in, any Material Intellectual Property.
(e) No action or proceeding seeking to limit, cancel or question the
validity of any Material Intellectual Property owned by such Grantor or such
Grantor's ownership interest therein is on the date hereof pending or, to the
knowledge of such Grantor, threatened. There are no claims, judgments or
settlements to be paid by such Grantor relating to the Material Intellectual
Property.
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ARTICLE V
FINANCIAL COVENANTS
Each Borrower agrees with the Lenders and the Administrative Agent to
each of the following as long as any Obligation (other than contingent
indemnification obligations not then due and payable which survive the repayment
of the Loans and termination of the Commitments) or any Commitment remains
outstanding and, in each case, unless the Requisite Lenders otherwise consent in
writing:
Section 5.1 Minimum EBITDAR
(a) The Company and its Domestic Subsidiaries shall have, for any Stage
I Test Period ending on the last day of a calendar month set forth below,
cumulative EBITDAR of not less than the following:
-------------------------------------------------------------------
MONTH MINIMUM EBITDAR
-------------------------------------------------------------------
May 2002 ($4,500,000)
-------------------------------------------------------------------
June 2002 ($2,500,000)
-------------------------------------------------------------------
July 2002 $500,000
-------------------------------------------------------------------
August 2002 $8,500,000
-------------------------------------------------------------------
September 2002 $18,500,000
-------------------------------------------------------------------
October 2002 $28,500,000
-------------------------------------------------------------------
November 2002 $34,000,000
-------------------------------------------------------------------
December 2002 $38,500,000
-------------------------------------------------------------------
January 2003 $45,000,000
-------------------------------------------------------------------
February 2003 $49,000,000
-------------------------------------------------------------------
March 2003 $55,000,000
-------------------------------------------------------------------
(b) The Company and its Domestic Subsidiaries shall have, for any Stage
II Test Period ending on the last day of a calendar month set forth below,
cumulative EBITDAR of not less than the following:
-------------------------------------------------------------------
MONTH MINIMUM EBITDAR
-------------------------------------------------------------------
April 2003 $61,500,000
-------------------------------------------------------------------
May 2003 $69,000,000
-------------------------------------------------------------------
June 2003 $76,500,000
-------------------------------------------------------------------
July 2003 $82,000,000
-------------------------------------------------------------------
August 2003 $84,000,000
-------------------------------------------------------------------
September 2003 $84,500,000
-------------------------------------------------------------------
October 2003 $83,500,000
-------------------------------------------------------------------
November 2003 $86,500,000
-------------------------------------------------------------------
December 2003 $91,000,000
-------------------------------------------------------------------
January 2004 $93,000,000
-------------------------------------------------------------------
February 2004 $98,000,000
-------------------------------------------------------------------
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(c) The Company and its Subsidiaries shall have, for any Stage I Test
Period ending on the last day of a calendar month set forth below, cumulative
EBITDAR of not less than the following:
-------------------------------------------------------------------
MONTH MINIMUM EBITDAR
-------------------------------------------------------------------
May 2002 $3,000,000
-------------------------------------------------------------------
June 2002 $12,500,000
-------------------------------------------------------------------
July 2002 $21,000,000
-------------------------------------------------------------------
August 2002 $26,000,000
-------------------------------------------------------------------
September 2002 $47,500,000
-------------------------------------------------------------------
October 2002 $70,500,000
-------------------------------------------------------------------
November 2002 $93,000,000
-------------------------------------------------------------------
December 2002 $108,500,000
-------------------------------------------------------------------
January 2003 $131,500,000
-------------------------------------------------------------------
February 2003 $146,500,000
-------------------------------------------------------------------
March 2003 $162,500,000
-------------------------------------------------------------------
(d) The Company and its Subsidiaries shall have, for any Stage II Test
Period ending on the last day of a calendar month set forth below, cumulative
EBITDAR of not less than the following:
-------------------------------------------------------------------
MONTH MINIMUM EBITDAR
-------------------------------------------------------------------
April 2003 $172,500,000
-------------------------------------------------------------------
May 2003 $180,000,000
-------------------------------------------------------------------
June 2003 $182,000,000
-------------------------------------------------------------------
July 2003 $190,000,000
-------------------------------------------------------------------
August 2003 $202,500,000
-------------------------------------------------------------------
September 2003 $199,000,000
-------------------------------------------------------------------
October 2003 $199,500,000
-------------------------------------------------------------------
November 2003 $200,500,000
-------------------------------------------------------------------
December 2003 $209,500,000
-------------------------------------------------------------------
January 2004 $207,000,000
-------------------------------------------------------------------
February 2004 $214,000,000
-------------------------------------------------------------------
Section 5.2 Capital Expenditures
(a) The Company and its Domestic Subsidiaries shall not make or incur,
or permit to be made or incurred, Capital Expenditures during the twelve-month
period ending on the last day of the calendar month set forth below to be, in
the aggregate, in excess of the maximum amount set forth below for such period:
------------------------------------------------------------------
MONTH MAXIMUM CAPITAL
EXPENDITURES
------------------------------------------------------------------
March 2003 $39,000,000
------------------------------------------------------------------
August 2003 $27,000,000
------------------------------------------------------------------
November 2003 $25,000,000
------------------------------------------------------------------
(b) The Company and its Subsidiaries shall not make or incur, or permit
to be made or incurred, Capital Expenditures during the twelve-month period
ending on the last day of
94
the calendar month set forth below to be, in the aggregate, in excess of the
maximum amount set forth below for such period:
------------------------------------------------------------------
MONTH MAXIMUM CAPITAL
EXPENDITURES
------------------------------------------------------------------
March 2003 $76,000,000
------------------------------------------------------------------
August 2003 $60,000,000
------------------------------------------------------------------
November 2003 $56,000,000
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provided, however, that to the extent that actual Capital Expenditures for any
such period set forth in clause (a) or (b) above shall be less than the maximum
amount set forth above for such period (without giving effect to the carryover
permitted by this proviso), 50% of the difference between said stated maximum
amount and such actual Capital Expenditures shall, in addition, be available for
Capital Expenditures in the next succeeding period.
Section 5.3 Maximum Cash Restructuring Costs
The Company and its Subsidiaries shall not make or incur, or permit to be made
or incurred, cash Restructuring Costs during the twelve-month period ending on
the last day of the month set forth below to be, in the aggregate, in excess of
the maximum amount set forth below for such period:
------------------------------------------------------------------
MONTH MAXIMUM CASH
RESTRUCTURING COSTS
------------------------------------------------------------------
March 2003 $94,300,000
------------------------------------------------------------------
August 2003 $81,500,000
------------------------------------------------------------------
November 2003 $76,200,000
------------------------------------------------------------------
provided, however, that to the extent that actual cash Restructuring Costs for
any such period set forth above shall be less than the maximum amount set forth
above for such period (without giving effect to the carryover permitted by this
proviso), 100% of the difference between said stated maximum amount and such
actual cash Restructuring Costs shall, in addition, be available for cash
Restructuring Costs in the next succeeding period.
ARTICLE VI
REPORTING COVENANTS
Each Borrower agrees with the Lenders and the Administrative Agent to
each of the following, as long as any Obligation (other than contingent
indemnification obligations not then due and payable which survive the repayment
of the Loans and termination of the Commitments) or any Commitment remains
outstanding and, in each case, unless the Requisite Lenders otherwise consent in
writing:
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Section 6.1 Financial Statements
The Company shall furnish to the Administrative Agent (with
sufficient copies for each of the Lenders) the following:
(a) Monthly Reports. Within 45 days after the end of each
fiscal month in each Fiscal Year, financial information regarding (i) the
Company and its Subsidiaries, which shall be on a Consolidated basis, (ii) the
Company and the Filing Subsidiaries, which shall be on a Consolidated basis, and
(iii) the Foreign Subsidiaries of the Company, which shall be on a Consolidated
basis, in each case, consisting of unaudited balance sheets as of the close of
such month and the related statements of income and cash flow for such month and
that portion of the current Fiscal Year ending as of the close of such month,
setting forth in comparative form the figures for the corresponding period in
the prior year and the figures contained in the Projections or, if applicable,
the latest business plan provided pursuant to clause (e) below for the current
Fiscal Year, accompanied by a management discussion, analysis and narrative in
respect of such financial information in each case certified by a Responsible
Officer of the Company as fairly presenting the Consolidated financial position,
as applicable, of such Persons as at the dates indicated and the results of
their operations and cash flow for the periods indicated in accordance with GAAP
(subject to the absence of footnote disclosure and normal year-end adjustments).
(b) Quarterly Reports. Within 50 days after the end of each
Fiscal Quarters of each Fiscal Year, financial information (i) regarding the
Company and its Subsidiaries, which shall be on a Consolidated basis, (ii) the
Company and the Filing Subsidiaries, which shall be on a Consolidated basis, and
(iii) the Foreign Subsidiaries of the Company, which shall be on a Consolidated
basis, in each case, consisting of unaudited balance sheets as of the close of
such quarter and the related statements of income and cash flow for such quarter
and that portion of the Fiscal Year ending as of the close of such quarter,
setting forth in comparative form the figures for the corresponding period in
the prior year and the figures contained in the Projections or, if applicable,
the latest business plan provided pursuant to clause (e) below for the current
Fiscal Year, accompanied by a management discussion, analysis and narrative in
respect of such financial information, in each case certified by a Responsible
Officer of the Company as fairly presenting the Consolidated and/or
consolidating financial position of such Persons as at the dates indicated and
the results of their operations and cash flow for the periods indicated in
accordance with GAAP (subject to the absence of footnote disclosure and normal
year-end adjustments).
(c) Annual Reports. Within 120 days after the end of each
Fiscal Year, financial information regarding (i) the Company and its
Subsidiaries, which shall be on a Consolidated and consolidating basis, (ii) the
Company and the Filing Subsidiaries, which shall be on a Consolidated basis, and
(iii) the Foreign Subsidiaries of the Company, which shall be on a Consolidated
basis, in each case, consisting of balance sheets of such Persons as of the end
of such year and related statements of income and cash flows of such Persons for
such Fiscal Year, all prepared in conformity with GAAP accompanied by a
management discussion, analysis and narrative in respect of such financial
information, and certified, in the case of the Company's Consolidated Financial
Statements, without qualification as to the scope of the audit by the Company's
Accountants, together with the report of such accounting firm stating that (i)
such Financial Statements fairly present the Consolidated financial position of
such Persons as at the dates indicated and the results of their operations and
cash flow for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years (except for changes with which the Company's
Accountants shall concur and that shall have been disclosed in the notes to the
Financial Statements) and (ii) the examination by the Company's Accountants in
connection
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with such Consolidated Financial Statements has been made in accordance with
generally accepted auditing standards, and accompanied by a certificate stating
that in the course of the regular audit of the business of the Company and its
Subsidiaries such accounting firm has obtained no knowledge that a Default or
Event of Default in respect of the financial covenants contained in Article V
(Financial Covenants) has occurred and is continuing, or, if in the opinion of
such accounting firm, a Default or Event of Default has occurred and is
continuing in respect of such financial covenants, a statement as to the nature
thereof.
(d) Compliance Certificate. Together with each delivery of any
financial statement pursuant to clauses (a), (b) and (c) of Section 6.1
(Financial Statements), a certificate of a Responsible Officer of the Company
(each, a "Compliance Certificate") (i) showing in reasonable detail the
calculations demonstrating compliance with each of the financial covenants
contained in Article V (Financial Covenants) and (ii) stating that no Default or
Event of Default has occurred and is continuing or, if a Default or an Event of
Default has occurred and is continuing, stating the nature thereof and the
action that the Borrowers propose to take with respect thereto.
(e) Business Plan. Not later than the end of each Fiscal Year,
(i) the annual business plan of the Company for the next succeeding Fiscal Year
approved by the Board of Directors of the Company, (ii) forecasts prepared by
management of the Company for each fiscal month in the next succeeding Fiscal
Year and (iii) forecasts prepared by management of the Company for each of the
succeeding Fiscal Years through the Fiscal Year in which the Scheduled
Termination Date is scheduled to occur, including, in each instance described in
clauses (ii) and (iii) above, (1) a projected year-end balance sheet and income
statement and statement of cash flows, (2) a statement of all of the material
assumptions on which such forecasts are based, and (3) the projected Domestic
Available Credit and Foreign Available Credit, which shall in each case, be
provided (w) on a Consolidated and consolidating basis for the Company and its
Subsidiaries, (x) on a Consolidated basis for the Company and the Filing
Subsidiaries, (y) on a Consolidated basis for the Foreign Subsidiaries of the
Company, and (z) by global business unit of the Company.
(f) Updates. As soon as available, but no more than five (5)
Business Days after any such change, updates of the information provided
pursuant to clause (e) above to reflect any changes in the latest business plan
since delivery thereof.
(g) Cash Flows. As soon as available, but no more than five (5)
Business Days after the end of each calendar week (i)(x) the results of the
operations of the Borrowers during the immediately preceding calendar week and
(y) an updated 13 week rolling cash flow projection, together with a
reconciliation of such cash flows to actual results, (ii) the projected cash
needs of the Borrowers during such 13 week period and (iii) projected Domestic
Availability, Domestic Available Credit, Foreign Availability and Foreign
Available Credit under the Facilities for such 13 week period.
(h) Intercompany Balances. Together with each delivery of any
financial statement pursuant to clause (a) of this Section 6.1 (Financial
Statements), a summary of all repayments and prepayments with respect to, and
the outstanding balance of, all Foreign Intercompany Loans, Mercolec Loans and
other intercompany loans permitted under clauses (q), (r) and (s) of Section 8.1
(Indebtedness) as of the last day of the fiscal month covered by such financial
statements, certified by a Responsible Officer of the Company.
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(i) Management Letters, Etc. Within five Business Days after
receipt thereof by any Loan Party, copies of each management letter, exception
report or similar letter or report received by such Loan Party from its
independent certified public accountants (including the Company's Accountants).
Section 6.2 Default Notices
As soon as practicable, and in any event within two (2)
Business Days after a Responsible Officer of the Company has actual knowledge of
the existence of any Default, Event of Default or other event having had a
Material Adverse Effect or having any reasonable likelihood of causing or
resulting in a Material Adverse Change, the Company shall give the
Administrative Agent notice specifying the nature of such Default or Event of
Default or other event, including the anticipated effect thereof, which notice,
if given by telephone, shall be promptly confirmed in writing on the next
Business Day.
Section 6.3 Litigation
Promptly after the commencement thereof, the Company shall give
the Administrative Agent written notice of the commencement of all actions,
suits and proceedings before any domestic or foreign Governmental Authority or
arbitrator affecting the Company or any of its Subsidiaries that (i) seeks
injunctive or similar relief or (ii) in the reasonable judgment of the Company
or such Subsidiary, exposes the Company or such Subsidiary to liability in an
amount aggregating $2,500,000 or more or that, if adversely determined, would
have a Material Adverse Effect.
Section 6.4 Asset Sales
Prior to any Asset Sale anticipated to generate in excess of
$1,000,000 (or its Dollar Equivalent) in Net Cash Proceeds, the Company shall
send the Administrative Agent a notice (a) describing such Asset Sale or the
nature and material terms and conditions of such transaction and (b) stating the
estimated Net Cash Proceeds anticipated to be received by the Company or any of
its Subsidiaries.
Section 6.5 Notices under Pre-Petition Facility and Standstill
Agreement
Promptly after the sending thereof, the Company shall send the
Administrative Agent copies of all notices delivered pursuant to the
Pre-Petition Facility and the Standstill Agreement.
Section 6.6 SEC Filings; Press Releases
Promptly after the sending or filing thereof, the Company
shall send the Administrative Agent copies of (a) all reports that the Company
sends to its security holders generally, (b) all reports and registration
statements that the Company or any of its Subsidiaries files with the Securities
and Exchange Commission or any national or foreign securities exchange or the
National Association of Securities Dealers, Inc., (c) all press releases and (d)
all other statements concerning material changes or developments in the business
of such Loan Party made available by any Loan Party to the public or any other
creditor.
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Section 6.7 Labor Relations
Promptly after becoming aware of the same, the Company shall
give the Administrative Agent written notice of (a) any material labor dispute
to which the Company or any of its Subsidiaries 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) any Worker Adjustment and
Retraining Notification Act or related liability incurred with respect to the
closing of any plant or other facility of any such Person.
Section 6.8 Tax Returns
Upon the request of any Lender, through the Administrative
Agent, the Company shall provide copies of all federal, state, local and foreign
tax returns and reports filed by the Company or any of its Subsidiaries in
respect of taxes measured by income (excluding sales, use and like taxes).
Section 6.9 Insurance
As soon as is practicable and in any event within 90 days after
the end of each Fiscal Year, the Company shall furnish the Administrative Agent
(in sufficient copies for each of the Lenders) with (a) a report in form and
substance satisfactory to the Administrative Agent and the Lenders outlining all
material insurance coverage maintained as of the date of such report by the
Company and its Subsidiaries and the duration of such coverage and (b) an
insurance broker's statement that all premiums then due and payable with respect
to such coverage have been paid and confirming that the Administrative Agent has
been named as loss payee or additional insured, as applicable.
Section 6.10 ERISA Matters
The Company shall furnish the Administrative Agent (with
sufficient copies for each of the Lenders) each of the following:
(a) promptly and in any event within 30 days after the Company,
any of its Subsidiaries or any ERISA Affiliate knows or has reason to know that
any ERISA Event has occurred, written notice describing such event;
(b) promptly and in any event within 10 days after the Company,
any of its Subsidiaries or 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, a written
statement of a Responsible Officer of the Company describing such ERISA Event or
waiver request and the action, if any, the Borrowers, their Subsidiaries and
ERISA Affiliates propose to take with respect thereto and a copy of any notice
filed with the PBGC or the IRS pertaining thereto; and
(c) simultaneously with the date that the Company, any of its
Subsidiaries or any ERISA Affiliate files a notice of intent to terminate any
Title IV Plan, if such termination would require material additional
contributions in order to be considered a standard termination within the
meaning of Section 4041(b) of ERISA, a copy of each notice.
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Section 6.11 Environmental Matters
(a) The Company shall provide the Administrative Agent promptly
and in any event within fifteen (15) days after the Company or any Subsidiary
obtains actual knowledge of any of the following, written notice of each of the
following:
(i) that any Loan Party is or may be liable to any Person
as a result of a Release or threatened Release that could reasonably
be expected to subject such Loan Party to Environmental Liabilities
and Costs of $1,000,000 or more;
(ii) the receipt by any Loan Party of notification that any
real or personal property of such Loan Party is subject to any
Environmental Lien or is reasonably likely to be subject to an
Environmental Lien which could reasonably be expected to prime or
otherwise take priority over any Lien in favor of any Secured Party
under this Agreement;
(iii) the receipt by any Loan Party of any notice of
violation of or potential liability under, or knowledge by such Loan
Party that there exists a condition that could reasonably be expected
to result in a violation of or liability under, any Environmental Law,
the consequence of which, in the aggregate, would be reasonably likely
to subject the Loan Parties collectively to previously unbudgeted
Environmental Liabilities and Costs of $5,000,000 or more individually
or in the aggregate in any Fiscal Year;
(iv) the commencement of any judicial or administrative
proceeding or investigation alleging a violation of or liability under
any Environmental Law, that, in the aggregate, if adversely
determined, would have a reasonable likelihood of subjecting the Loan
Parties collectively to previously unbudgeted Environmental
Liabilities and Costs of $5,000,000 or more individually or in the
aggregate in any Fiscal Year;
(v) any proposed acquisition of stock, assets or real
estate or any proposed leasing of property or any proposed expansion
or change in operations by any Loan Party or any of its Subsidiaries
the consequences of which, in the aggregate, have reasonable
likelihood of subjecting the Loan Parties collectively to previously
unbudgeted Environmental Liabilities and Costs of $5,000,000 or more
individually or in the aggregate;
(vi) upon reasonable written request by any Lender through
the Administrative Agent, a report providing an update of the status
of any environmental, health or safety compliance, hazard or liability
issue identified in any notice or report delivered pursuant to this
Agreement, which report shall not be required any more often than
quarterly.
(b) Promptly and in any event within fifteen (15) days after
the Company's or any Subsidiary's receipt thereof, the Company shall provide the
Administrative Agent with copies of material documentation or correspondence
relating to environmental conditions of any Real Property included in the
Domestic Borrowing Base or the Foreign Borrowing Base, including, but not
limited to, any Phase I environmental assessments or similar reports, no further
action letters or similar documentation.
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(c) Upon the reasonable request of the Administrative Agent, the
Borrowers and their respective Subsidiaries shall provide the Lenders with
copies of all material environmental, health or safety audits, studies,
assessments, inspections, investigations or other material environmental health
and safety reports or documentation relating to the operations of the Borrowers
or any of their respective Subsidiaries or any Real Property of any of them that
are in the possession, custody or control of the Borrowers or any of their
respective Subsidiaries or any other information relating to environmental
matters that the Administrative Agent or any Lender may reasonably request.
Section 6.12 Borrowing Base Determination
(a) The Company shall deliver, as soon as available and in any event
not later than (x) ten (10) Business Days after the end of each fiscal month in
respect of Inventory, Equipment and Real Property, and (y) five (5) Business
Days after the end of each calendar week in respect of Accounts, a Borrowing
Base Certificate as of the end of such fiscal month or calendar week, as
applicable, executed by a Responsible Officer of the Company in respect of (i)
the Domestic Borrowing Base and (ii) the Foreign Borrowing Base as it relates to
each Foreign Borrowing Base Subsidiary and Included Subsidiary, if applicable.
(b) The Company shall conduct, or shall cause to be conducted, at its
expense and upon request of the Administrative Agent, and present to the
Administrative Agent for approval, such appraisals, investigations and reviews
as the Administrative Agent shall request for the purpose of determining the
Domestic Borrowing Base and the Foreign Borrowing Base, all upon notice and at
such times during normal business hours and as often as may be reasonably
requested; provided, however, that for the purposes of determining the value of
Eligible Domestic Equipment, Eligible Real Property, Eligible Foreign Equipment
and Eligible Foreign Real Property on the Closing Date, such appraisals shall be
obtained in accordance with Section 6.12(f) (Borrowing Base Determination). The
Company shall furnish to the Administrative Agent any information that the
Administrative Agent may reasonably request regarding the determination and
calculation of the Domestic Borrowing Base and the Foreign Borrowing Base
including correct and complete copies of any invoices, underlying agreements,
instruments or other documents and the identity of all Account Debtors in
respect of Accounts referred to therein.
(c) The Company shall promptly notify the Administrative Agent in
writing in the event that at any time the Company receives or otherwise gains
knowledge that (i) the Domestic Borrowing Base is less than 90% of the Domestic
Borrowing Base reflected in the most recent Borrowing Base Certificate delivered
in respect thereto pursuant to Section 6.12(a) (Borrowing Base Determination),
or (ii) the outstanding Domestic Revolving Credit Outstandings and Term Loan
Outstandings exceed the Domestic Borrowing Base as a result of a decrease
therein, in which case such notice shall also include the amount of such excess.
(d) The Company shall promptly notify the Administrative Agent in
writing in the event that at any time the Company receives or otherwise gains
knowledge that (i) the Foreign Borrowing Base in respect of any Foreign
Borrowing Base Subsidiary and any Included Subsidiary, if applicable, is less
than 90% of the Foreign Borrowing Base of such Foreign Borrowing Base Subsidiary
reflected in the most recent Borrowing Base Certificate delivered in respect
thereto pursuant to Section 6.12(a) (Borrowing Base Determination), or (ii) the
outstanding Foreign Revolving Credit Outstandings exceed the Foreign Borrowing
Base as a result of a decrease therein, in which case such notice shall also
include the amount of such excess.
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(e) The Administrative Agent may, at the Borrowers' sole cost and
expense, make test verifications of the Accounts and physical verifications of
the Inventory in any manner and through any medium that the Administrative Agent
considers advisable, and the Borrowers shall furnish all such assistance and
information as the Administrative Agent may require in connection therewith.
(f) For the purposes of determining the value of Eligible Domestic
Equipment, Eligible Domestic Real Estate, Eligible Foreign Equipment and
Eligible Real Property in effect on the Closing Date, (i) the orderly
liquidation value of the Borrower's Eligible Domestic Equipment and Eligible
Foreign Equipment shall be determined using the valuations set forth on Schedule
6.12 (Appraised Values) and (ii) the Fair Market Value of Eligible Domestic Real
Property and Eligible Foreign Real Property shall be determined using the
valuations set forth on Schedule 6.12 (Appraised Values), as reflected in the
Borrowing Base Certificate delivered to the Administrative Agent prior to the
Closing Date.
Section 6.13 Post-Closing Schedules
The Borrowers shall provide the Administrative Agent with the following
schedules within the time periods specified below:
(a) within ninety (90) days after the Closing Date, with respect to
each Foreign Subsidiary of the Company, a schedule showing the number of shares
of each class of Stock authorized (if applicable), the number of shares of each
class of Stock outstanding at such date, any options, warrants, rights of
conversion or purchase or any similar rights with respect to such Stock and a
list of any agreements to which any such Foreign Subsidiary is subject
restricting the transfer or hypothecation of any such Stock (other than the Loan
Documents);
(b) within sixty (60) days after the Closing Date, a schedule listing
all collective bargaining agreements covering any employees of each Foreign
Subsidiary;
(c) within sixty (60) days after the Closing Date, except to the extent
included in any Form 10-Q or Form 10-K of the Company, a schedule listing all
material consulting agreements, executive employment agreements, executive
compensation plans, deferred compensation arrangements, employee stock purchase
and stock option plans and severance plans of each Foreign Subsidiary;
(d) within ninety (90) days after the Closing Date, a schedule listing
all Real Property owned by each Foreign Subsidiary at such date, showing the
current address (including, where applicable, county, state and other relevant
jurisdictions) and the record owner thereof; and
(e) within thirty (30) days after the Closing Date, updated Schedules
8.1 (Existing Indebtedness), 8.2 (Existing Liens) and 8.10 (Existing Restrictive
Agreements).
Section 6.14 Other Information
The Company shall provide the Administrative Agent or any Lender with
such other information respecting the business, properties, condition, financial
or otherwise, or operations of the Company or any of its Subsidiaries as the
Administrative Agent or such Lender through the Administrative Agent may from
time to time reasonably request.
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ARTICLE VII
AFFIRMATIVE COVENANTS
Each Borrower agrees with the Lenders and the Administrative Agent to
each of the following, as long as any Obligation (other than contingent
indemnification obligations not then due and payable which survive the repayment
of the Loans and termination of the Commitments) or any Revolving Credit
Commitment remains outstanding and, in each case, unless the Requisite Lenders
otherwise consent in writing:
Section 7.1 Preservation of Corporate Existence, Etc.
Such Borrower shall, and shall cause each of its Subsidiaries to,
preserve and maintain its legal existence, rights (charter and statutory) and
franchises, except as permitted by Section 8.3 (Investments), Section 8.4 (Sale
of Assets) and Section 8.7 (Restriction on Fundamental Changes).
Section 7.2 Compliance with Laws, Etc.
Except as non-compliance is permitted by the Bankruptcy Court or
compliance is prohibited by the Bankruptcy Code, such Borrower shall, and shall
cause each of its Subsidiaries to, comply with all applicable Requirements of
Law, Contractual Obligations and Permits, except where the failure so to comply
would not, in the aggregate, have a Material Adverse Effect.
Section 7.3 Conduct of Business
Except as non-compliance is permitted by the Bankruptcy Court or
compliance is prohibited by the Bankruptcy Code, such Borrower shall, and shall
cause each of its Subsidiaries to, (a) conduct its business in the ordinary
course and (b) use its reasonable efforts, in the ordinary course and consistent
with past practice, to preserve its business and the goodwill and business of
the customers, advertisers, suppliers and others having business relations with
such Borrower or any of its Subsidiaries, except in each case where the failure
to comply with the covenants in each of clauses (a) and (b) above would not, in
the aggregate, have a Material Adverse Effect.
Section 7.4 Payment of Taxes, Etc.
Except as non-payment is permitted or payment is prohibited by the
Bankruptcy Code or the Bankruptcy Court, such Borrower shall, and shall cause
each of its Subsidiaries to, pay and discharge before the same shall become
delinquent (after giving effect to any applicable grace period), all lawful
material governmental claims, taxes, assessments, charges and levies arising
from the Petition Date, except where contested in good faith, by proper
proceedings and adequate reserves therefor have been established on the books of
such Borrower or the appropriate Subsidiary in conformity with GAAP.
Section 7.5 Maintenance of Insurance
Such Borrower shall (a) maintain for, or cause to be maintained by,
each of its Subsidiaries, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar
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businesses and owning similar properties in the same general areas in which each
Borrower or such Subsidiary operates, and such other insurance as may be
reasonably requested by the Requisite Lenders, and, in any event, all insurance
required by any Loan Document and (b) cause all such insurance 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' written notice thereof to the Administrative Agent.
Section 7.6 Access
Such Borrower shall from time to time permit the Administrative Agent
and the Lenders, or any agents or representatives thereof, within two Business
Days after written notification of the same (except that during the continuance
of an Event of Default, no such notice shall be required) to (a) examine and
make copies of and abstracts from the records and books of account of such
Borrower and each of its Subsidiaries, (b) visit the properties of such Borrower
and each of its Subsidiaries, (c) discuss the affairs, finances and accounts of
such Borrower and each of its Subsidiaries with any of their respective officers
or directors and (d) communicate directly and discuss the affairs, finances and
accounts of such Borrower and each of its Subsidiaries (i) with any other party
in interest to the Cases, as lessor under any Contract or Lease to which any
other party in interest in the Cases, as Lessor under any Contract or Lease to
which any Loan Party or its Subsidiaries, the Committee or otherwise and (ii)
with any of its certified public accountants (including the Company's
Accountants). Such Borrower shall authorize its certified public accountants
(including the Company's Accountants) to disclose to the Administrative Agent or
any Lender any and all financial statements and other information of any kind,
as the Administrative Agent or any Lender reasonably requests from such Borrower
and that such accountants may have with respect to the business, financial
condition, results of operations or other affairs of such Borrower or any of its
Subsidiaries.
Section 7.7 Keeping of Books
Such Borrower shall, and shall cause each of its Subsidiaries to keep,
proper books of record and account, in which full and correct entries shall be
made in conformity with GAAP of all financial transactions and the assets and
business of such Borrower and each such Subsidiary.
Section 7.8 Maintenance of Properties, Etc.
Except as otherwise required by the Bankruptcy Code or permitted by the
Bankruptcy Court, such Borrower shall, and shall cause each of its Subsidiaries
to, maintain and preserve (a) in good working order and condition all of its
properties necessary in the conduct of its business, (b) all rights, permits,
licenses, approvals and privileges (including all Permits) used or useful or
necessary in the conduct of its business and (c) all Intellectual Property with
respect to its business, except where failure to so maintain and preserve the
items set forth in clauses (a), (b) and (c) above would not, in the aggregate,
have a Material Adverse Effect.
Section 7.9 Application of Proceeds
The Borrowers shall use the entire amount of the proceeds of the Loans
as provided in Section 4.12 (Use of Proceeds).
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Section 7.10 Environmental
Except as otherwise required by the Bankruptcy Code, such Borrower
shall, and shall cause all of its Subsidiaries to, comply in all material
respects with Environmental Laws and, without limiting the foregoing, such
Borrower shall, at its sole cost and expense, upon receipt of any notification
or otherwise obtaining knowledge of any Release or other event that has any
reasonable likelihood of such Borrower and its Subsidiaries incurring unbudgeted
Environmental Liabilities and Costs in excess of $5,000,000 individually or in
the aggregate, (a) if appropriate and reasonable under the circumstances,
conduct or pay for consultants to conduct, tests or assessments of environmental
conditions at such operations or properties, including the investigation and
testing of subsurface conditions and (b) take such Remedial Action and undertake
such investigation or other action as required by Environmental Laws or as any
Governmental Authority.
Section 7.11 Approved Deposit Accounts; Blocked Accounts
(a) The Borrowers shall establish Approved Deposit Accounts, and shall
cause each of the Foreign Borrowing Base Subsidiaries and Included Subsidiaries
to establish Blocked Accounts, in each case, within sixty (60) days after the
Closing Date.
(b) Within sixty (60) days after the Closing Date, the Borrowers shall,
and shall cause each of the Foreign Borrowing Base Subsidiaries and Included
Subsidiaries to, (i) deposit in an Approved Deposit Account or a Blocked
Account, as the case may be, all Proceeds received by the Borrowers, the Foreign
Borrowing Base Subsidiaries and the Included Subsidiaries, and (ii) not
establish or maintain any account with any financial institution in which
Proceeds are deposited other than with a Blocked Account Bank, Deposit Account
Bank, a Lender or an Affiliate of a Lender.
(c) Within sixty (60) days after the Closing Date, each Borrower shall
and shall cause each of the Foreign Borrowing Base Subsidiaries and Included
Subsidiaries to, instruct each Account Debtor or other Person obligated to make
a payment to such Borrower, Foreign Borrowing Base Subsidiary or Included
Subsidiary to make payment, or to continue to make payment, as the case may be,
to an Approved Deposit Account or a Blocked Account, as the case may be, and
shall deposit in an Approved Deposit Account or a Blocked Account all Proceeds
received by such Borrower, Foreign Borrowing Base Subsidiary or Included
Subsidiary from any other Person immediately upon receipt.
(d) In the event (i) any Borrower, Foreign Borrowing Base Subsidiary,
Included Subsidiary, Deposit Account Bank or Blocked Account Bank shall, after
the date upon which any Approved Deposit Account or Blocked Account has been
established, terminate an agreement with respect to the maintenance of such
Approved Deposit Account or Blocked Account for any reason, (ii) the
Administrative Agent shall demand such termination as a result of the failure of
a Deposit Account Bank or Blocked Account Bank to comply with the terms of the
applicable Deposit Account Control Letter or Blocked Account Letter or (iii) the
Administrative Agent determines in its sole discretion that the financial
condition of a Deposit Account Bank or a Blocked Account Bank has materially
deteriorated, such Borrower agrees to or shall cause such Foreign Borrowing Base
Subsidiary or Included Subsidiary to, as applicable, notify all of its obligors
that were making payments to such terminated Approved Deposit Account or Blocked
Account to make all future payments to another Approved Deposit Account or
Blocked Account.
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Section 7.12 Debt Rating.
The Borrowers shall use their best efforts to obtain a rating
of the Facilities by S&P and Xxxxx'x no later than ninety (90) days after the
Closing Date.
Section 7.13 Bankruptcy Court
The Borrowers shall use their best efforts to obtain the
approval of the Bankruptcy Court of this Agreement and the other Loan Documents
and deliver to the Administrative Agent and the Administrative Agent's counsel
all material pleadings, motions and other documents filed on behalf of all of
the Loan Parties with the Bankruptcy Court.
Section 7.14 Plan of Reorganization
The Borrowers shall use their best efforts to file the Plan
with the Bankruptcy Court no later than June 30, 2003. The Borrowers agree that
any such Plan shall provide for payment in full of all of the Obligations.
Section 7.15 Restricted Payment Requirement
The Borrowers shall cause Exide U.S. Funding Corp. ("Funding")
to make a Restricted Payment to the Company of any excess cash or Cash
Equivalents held at Funding on each date upon which such cash or Cash
Equivalents are received by it.
Section 7.16 Filing of Interim Order
The Borrowers shall, within thirty (30) days after the Closing
Date, file a copy of the Interim Order in the real property records in each
county where any Real Property is located.
Section 7.17 Real Property
The Borrowers shall, within sixty (60) days of the Closing
Date, provide the Administrative Agent with an updated Mortgagee's Title
Insurance Policy in respect of all Real Property for which such policy was
delivered pursuant to Section 3.1(b)(xii)(Conditions Precedent to Initial Loans
and Letters of Credit) in an amount equal to the purchase price of such Real
Property. Upon the request of the Administrative Agent, the Borrowers shall
deliver a Mortgagee's Title Insurance Policy for any other Real Property in an
amount equal to the purchase price o f such Real Property, a current ALTA survey
thereof and a surveyor's certificate in form and substance satisfactory to the
Administrative Agent and such other information reasonably requested by the
Administrative Agent.
ARTICLE VIII
Negative Covenants
Each Borrower agrees with the Lenders and the Administrative
Agent to each of the following, as long as any Obligation (other than contingent
indemnification obligations not then due and payable which survive the repayment
of the Loans and termination of the
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Commitments) or any Commitment remains outstanding and, in each case, unless the
Requisite Lenders otherwise consent in writing:
Section 8.1 Indebtedness
Such Borrower shall not, nor shall it permit any of its
Subsidiaries to, directly or indirectly create, incur, assume or otherwise
become or remain directly or indirectly liable with respect to any Indebtedness
except for the following:
(a) the Obligations;
(b) Indebtedness existing on the date of this Agreement and
disclosed on Schedule 8.1 (Existing Indebtedness) ("Existing Indebtedness");
(c) Guaranty Obligations incurred by any Borrower or any
Domestic Guarantor in respect of Indebtedness of any Borrower or any Domestic
Guarantor that is permitted by this Section 8.1 (Indebtedness);
(d) Capital Lease Obligations and purchase money Indebtedness
incurred by such Borrower or a Subsidiary of such Borrower to finance the
acquisition of fixed or capital assets; provided, however, that the Capital
Expenditure related thereto is otherwise permitted by Section 5.2 (Capital
Expenditures) and that the aggregate outstanding principal amount of all such
Capital Lease Obligations and purchase money Indebtedness shall not exceed
$15,000,000 at any time;
(e) Renewals, extensions, refinancings and refundings of
Indebtedness permitted by clause (b) or (d) above or this clause (e); provided,
however, that any such renewal, extension, refinancing or refunding is in an
aggregate principal amount not greater than the principal amount of, and is on
terms no less favorable to such Borrower or such Subsidiary, including as to
weighted average maturity, than the Indebtedness being renewed, extended,
refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from any
Borrower to any Domestic Guarantor or, (ii) from any Domestic Guarantor to any
Borrower or any other Domestic Guarantor;
(g) Indebtedness arising under any performance or surety bond
entered into in the ordinary course of business;
(h) Foreign Intercompany Loans to any Foreign Borrowing Base
Subsidiary from the Company made with the proceeds of Foreign Revolving Credit
Loans; provided that (i) the Foreign Collateral Requirement shall have been
satisfied with respect to such Foreign Borrowing Base Subsidiary, (ii) no
Foreign Intercompany Loans shall be made pursuant to this clause (h) during the
Interim Period, and (iii) the aggregate principal amount of all Foreign
Intercompany Loans permitted under this clause (h) shall not at any time exceed
$50,000,000;
(i) Foreign Intercompany Loans to any Foreign Borrowing Base
Subsidiary from the Company made with the proceeds of Domestic Revolving Credit
Loans; provided that (i) upon the expiration of the Interim Period, the Foreign
Collateral Requirement shall have been satisfied with respect to such Foreign
Borrowing Base Subsidiary, (ii) the aggregate principal
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amount of all Foreign Intercompany Loans permitted under this clause (i) shall
not at any time exceed (A) during the Interim Period, $40,000,000 and (B) after
the Interim Period, the Foreign Sublimit, and (iii) except during the Interim
Period, the Foreign Revolving Credit Facility shall have been fully utilized
prior to the making of any Foreign Intercompany Loan permitted under this clause
(i);
(j) Foreign Intercompany Loans to any Other Foreign Subsidiary
Borrower (each a "Second Tier Foreign Subsidiary Borrower") from another Other
Foreign Subsidiary Borrower or a Foreign Borrowing Base Subsidiary (each, a
"Foreign Subsidiary Lender") made with the proceeds of a Foreign Intercompany
Loan permitted under clause (h) or clause (i) above or this clause (j); provided
that (i) the Foreign Collateral Requirement shall have been satisfied with
respect to such Second Tier Foreign Subsidiary Borrower, (ii) no Foreign
Intercompany Loans shall be made pursuant to this clause (j) during the Interim
Period, and (iii) the aggregate principal amount of all Foreign Intercompany
Loans permitted under this clause (j) shall not at any time exceed the sum of
the Foreign Sublimit plus $50,000,000;
(k) Indebtedness of EHE and/or its Subsidiaries which may be
deemed to exist pursuant to the European A/R Facility, so long as the European
A/R Facility Attributed Indebtedness at no time exceeds the European A/R Maximum
Commitment Amount as then in effect;
(l) Hedging Contracts entered into in the ordinary course of
business for non-speculative purposes;
(m) Indebtedness incurred by the Company or any Subsidiary
thereof resulting from the sale to an affiliate of Fiat S.p.A. of Accounts owing
to the Company and its Subsidiaries by Fiat S.p.A. in an aggregate amount not to
exceed $30,000,000 at any one time outstanding;
(n) Indebtedness incurred by any Foreign Subsidiary of the
Company domiciled in Poland resulting from the sale of such Foreign Subsidiary's
Accounts pursuant to a factoring arrangement in an aggregate amount not to
exceed $10,000,000;
(o) Indebtedness of the type or categories permitted to be
incurred under Section 8.2 of the Pre-Petition Facility, as in effect on the
Closing Date (without giving effect to the amendments contemplated by the
Standstill Agreement), in an aggregate amount not to exceed $20,000,000, of
which only $5,000,000 may be secured pursuant to clause (k) of Section 8.2
(Liens, Etc.); provided that all Net Cash Proceeds of such Indebtedness are
applied as set forth in, and to the extent required by, Section 2.9 (Mandatory
Prepayments);
(p) Indebtedness of Mercolec arising from the Mercolec Loans;
(q) Indebtedness arising from intercompany loans from any
Foreign Guarantor domiciled in a particular country to any other Foreign
Guarantor which is domiciled in the same country;
(r) During the Interim Period only, Indebtedness arising from
intercompany loans from any Foreign Subsidiary of the Company to any other
Foreign Subsidiary of the Company;
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(s) Indebtedness arising from intercompany loans made by
Mercolec to any Foreign Guarantor so long as Mercolec is in compliance with
Section 2.9(k) (Mandatory Prepayments) and such intercompany loans are not made
with proceeds of the Loans; and
(t) to the extent the prior consent of the Administrative
Agent is obtained, Guaranty Obligations incurred by any Foreign Guarantor in
respect of Indebtedness of any other Foreign Guarantor that is permitted by this
Section 8.1 (Indebtedness).
Section 8.2 Liens, Etc.
Such Borrower shall not, nor shall it permit any of its
Subsidiaries to, create or suffer to exist, any Lien upon or with respect to any
of its properties or assets, whether now owned or hereafter acquired, or assign,
or permit any of its Subsidiaries to assign, any right to receive income, except
for the following:
(a) Liens created pursuant to the Loan Documents;
(b) Liens existing on the date of this Agreement and disclosed
on Schedule 8.2 (Existing Liens);
(c) Customary Permitted Liens of such Borrower and its
Subsidiaries;
(d) purchase money Liens granted by such Borrower or any
Subsidiary of such Borrower (including the interest of a lessor under a Capital
Lease and purchase money Liens to which any property is subject at the time, on
or after the date hereof, of such Borrower's or such Subsidiary's acquisition
thereof) securing Indebtedness permitted under Section 8.1(d) (Indebtedness) and
limited in each case to the property purchased with the proceeds of such
purchase money Indebtedness or subject to such Capital Lease;
(e) any Lien securing the renewal, extension, refinancing or
refunding of any Indebtedness secured by any Lien permitted by clause (b) or (d)
above or this clause (e) without any change in the assets subject to such Lien;
(f) Liens in favor of lessors securing operating leases
permitted hereunder;
(g) Liens securing Indebtedness permitted pursuant to clauses
(h), (i) and (j) of Section 8.1 (Indebtedness);
(h) Liens on Accounts of Foreign Subsidiaries of the Company
and Proceeds thereof, in each case so long as (i) such Accounts are sold or
pledged pursuant to the European A/R Facility in accordance with the
requirements of Section 8.4(g) (Sale of Assets) and (ii) the amount of European
A/R Facility Attributed Indebtedness at such time shall not exceed the European
A/R Maximum Commitment Amount;
(i) Liens in favor of the Pre-Petition Agent granted pursuant
to the Orders, the Standstill Agreement and any Foreign Collateral Document;
(j) attachment, judgment or other similar Liens arising in
connection with court or arbitration proceedings, provided that (i) the same are
discharged, or that execution or enforcement thereof is stayed pending appeal,
within 20 days or (in the case of any execution or
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enforcement pending appeal) such lesser time during which such appeal may be
taken and (ii) the circumstances giving rise to such Liens do not constitute an
Event of Default hereunder;
(k) Liens on assets of Subsidiaries of the Company securing
Indebtedness permitted by clause (o) of Section 8.1 (Indebtedness) so long as
the amount of Indebtedness secured by such Liens does not exceed $5,000,000 in
the aggregate at any one time outstanding;
(l) Liens consisting of the right of the Company's joint
venture partner (the "Partner") in the Lion Compact Energy Inc. joint venture to
require the Company to put its ownership interests in such joint venture to the
Partner in the event the Company does not make certain of the investments
required by the joint venture agreement relating to such joint venture;
(m) Liens in favor of customs and revenue authorities to
secure the payment of customs duties in connection with the importation of goods
and deposits made to secure statutory obligations in the form of excise taxes;
and
(n) Liens on Accounts of Foreign Subsidiaries of the Company
and Proceeds thereof so long as such Accounts are sold or pledged pursuant to
the agreements governing the Indebtedness permitted under clauses (m) and (n) of
Section 8.1 (Indebtedness).
Section 8.3 Investments
Such Borrower shall not, nor shall they permit any of their
respective Subsidiaries to, directly or indirectly make or maintain any
Investment except for the following:
(a) Investments existing on the date of this Agreement and
disclosed on Schedule 8.3 (Existing Investments);
(b) Investments in cash and Cash Equivalents (i) held in a
Cash Collateral Account with respect to which the Administrative Agent for the
benefit of the Secured Parties has a first priority perfected Lien and (ii)
permitted under Section 8.12 (Accounts);
(c) Investments in Accounts, Payment Intangibles and Chattel
Paper, notes receivable and similar items arising or acquired in the ordinary
course of business consistent with the past practice of such Borrower and its
Subsidiaries;
(d) Investments received in settlement of amounts due to such
Borrower or any Subsidiary of such Borrower effected in the ordinary course of
business;
(e) Investments by any Borrower in any Domestic Guarantor or
by any Domestic Guarantor in any Borrower or any other Domestic Guarantor;
(f) Investments consisting of Foreign Intercompany Loans
permitted under clauses (h), (i) and (j) of Section 8.1 (Indebtedness).
(g) loans or advances to employees of such Borrower or any of
its Subsidiaries in the ordinary course of business as presently conducted;
provided, however, that the aggregate principal amount of all such loans and
advances shall not exceed $1,000,000 at any time;
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(h) Investments constituting Guaranty Obligations permitted by
Section 8.1 (Indebtedness);
(i) Investments in joint ventures in an aggregate amount
thereof at any one time not to exceed $10,000,000 for all Investments made
pursuant to this clause (i); provided that such joint ventures shall be engaged
in the same business lines permitted by Section 8.8 (Change in Nature of
Business);
(j) Investments of any Other Foreign Subsidiary consisting of
Mercolec Loans permitted under clause (p) of Section 8.1(Indebtedness);
(k) Investments consisting of intercompany loans permitted
under clauses (q), (r) and (s) of Section 8.1(Indebtedness); and
(l) Investments not otherwise permitted hereby; provided,
however, that the aggregate outstanding amount of the Investment Consideration
for all such Investments shall not exceed $1,000,000 at any time.
Section 8.4 Sale of Assets
Such Borrower shall not, nor shall it permit any of its
Subsidiaries to, sell, convey, transfer, lease or otherwise dispose of, any of
its assets or any interest therein (including the sale or factoring at maturity
or collection of any accounts) to any Person, or permit or suffer any other
Person to acquire any interest in any of their respective assets or, in the case
of any Subsidiary, issue or sell any shares of such Subsidiary's Stock or Stock
Equivalent (any such disposition being an "Asset Sale"), except for the
following:
(a) the sale or disposition of Inventory in the ordinary
course of business;
(b) the sale or disposition of equipment that has become
obsolete or is replaced in the ordinary course of business; provided, however,
that the aggregate Fair Market Value of all such equipment disposed of in any
Fiscal Year shall not exceed $5,000,000;
(c) the lease or sublease of real property not constituting a
sale and leaseback, to the extent not otherwise prohibited by this Agreement;
(d) assignments and licenses of intellectual property of the
Borrower and its Subsidiaries in the ordinary course of business;
(e) any Asset Sale to any Borrower or any Domestic Guarantor;
(f) any Asset Sale to any Foreign Guarantor;
(g) the sale or pledge of Accounts by Foreign Subsidiaries of
the Company pursuant to the European A/R Facility, so long as the amount of
European A/R Facility Attributed Indebtedness shall at no time outstanding
exceed the European A/R Maximum Commitment Amount;
(h) the sale to an affiliate of Fiat S.p.A. in the ordinary
course of business and without recourse of Accounts owing to the Company and its
Subsidiaries by Fiat S.p.A. and its
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Subsidiaries, so long as the aggregate undiscounted face amount of all Accounts
so sold (but remaining outstanding) does not exceed $30,000,000 at any one time
outstanding;
(i) the sale of Accounts owing to any Foreign Subsidiary of
the Company domiciled in Poland pursuant to a factoring arrangement permitted
under clause (n) of Section 8.1 (Indebtedness) so long as the aggregate
undiscounted face amount of all Accounts so sold (but remaining outstanding)
does not exceed $10,000,000; and
(j) as long as no Default or Event of Default is continuing or
would result therefrom, any other Asset Sale for Fair Market Value, payable in
cash upon such sale (or, to the extent previously consented to by the
Administrative Agent, payable for at least seventy-five percent (75%) cash);
provided, however, that with respect to any such Asset Sale pursuant to this
clause (j), (i) the aggregate consideration received for the sale of all assets
sold during any Fiscal Year shall not exceed $10,000,000 and (ii) all Net Cash
Proceeds of such Asset Sale are applied as set forth in, and to the extent
required by Section 2.9 (Mandatory Prepayments);
provided, however, that the foregoing limitations are not intended to prevent
such Borrower or any Domestic Subsidiary thereof from rejecting unexpired leases
or executory contracts pursuant to Section 365 of the Bankruptcy Code in
connection with the Cases.
Section 8.5 Restricted Payments
(a) Such Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart
any sum for any Restricted Payment except for the following:
(i) Restricted Payments by any Subsidiary of any
Borrower to such Borrower or any Domestic Guarantor; and
(ii) Restricted Payments by any Subsidiary of any
Foreign Guarantor to such Foreign Guarantor or any other Foreign Guarantor;
(b) Such Borrower shall not directly or indirectly make any
payments to vendors or suppliers on account of any pre-petition Claim (other
than Permitted Pre-Petition Claim Payments) without the prior written consent of
the Required Lenders.
Section 8.6 Prepayment and Cancellation of Indebtedness
(a) Such Borrower shall not, nor shall it permit any of its
Subsidiaries to, cancel any claim or Indebtedness owed to any of them except in
the ordinary course of business consistent with past practice.
(b) Such Borrower shall not, and shall not permit any of its
Subsidiaries to, (i) make any payment of principal, premium (if any), interest,
fees (including fees to obtain any waiver or consent in connection with any
Security) or other charges on, or (ii) prepay, redeem, purchase, retire,
defease, make any sinking fund or similar payment with respect to, or otherwise
satisfy prior to the scheduled maturity thereof in any manner, or make any
payment in violation of any subordination terms of, any Indebtedness (including,
without limitation, except as permitted under clause (ix) below, the Existing
Mercolec Loans); provided, however, that the Borrowers and their respective
Subsidiaries may (i) prepay the Obligations in accordance with the
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terms of this Agreement, (ii) prepay the Foreign Intercompany Loans, (iii)
Mercolec may prepay the Mercolec Loans so long as there is no outstanding
balance under any Foreign Intercompany Loan made to Mercolec pursuant to clause
(j) of Section 8.1 (Indebtedness) (both before and after giving effect to such
prepayment), (iv) prepay intercompany loans permitted under clause (q) of
Section 8.1 (Indebtedness), (v) make scheduled payments of principal, interest
and fees on any Indebtedness permitted under Section 8.1 (Indebtedness) (other
than Indebtedness of the Borrowers under the Pre-Petition Facility and any other
pre-petition Indebtedness of the Borrowers), (vi) pay the Adequate Protection
Payments (to the extent permitted pursuant to the Orders), (vii) make any
Permitted Pre-Petition Claim Payments, (viii) prepay any Indebtedness of the
type permitted under clause (d) of Section 8.1 (Indebtedness) so long as the
aggregate amount of all Indebtedness prepaid under this clause (viii) does not
exceed $5,000,000, (ix) subject to the prior consent of the Administrative Agent
(which consent may be withheld in its sole discretion) prepay any Indebtedness
listed on Schedule 8.6 (Specified Foreign Indebtedness) and (x) prepay
intercompany loans permitted under clauses (q), (r) and (s) of Section 8.1
(Indebtedness) so long as Mercolec is in compliance with Section 2.9(k)
(Mandatory Prepayments) (both before and after giving effect to such
prepayment).
Section 8.7 Restriction on Fundamental Changes
Such Borrower shall not, nor shall it permit any of its
Subsidiaries to, (a) merge with any Person, (b) consolidate with any Person, (c)
acquire all or substantially all of the Stock or Stock Equivalents of any
Person, (d) acquire all or substantially all of the assets of any Person or all
or substantially all of the assets constituting the business of a division,
branch or other unit operation of any Person, (e) except as permitted under
Section 8.3(j) (Investments), enter into any joint venture or partnership with
any Person or (f) acquire or create any Subsidiary, except any (i) merger or
consolidation of any Subsidiary of the Company into any other Subsidiary of the
Company; or (ii) any acquisition of all or substantially all of the Stock or
Stock Equivalents of any Subsidiary of the Company by another Subsidiary of the
Company; provided that if such merger, consolidation or acquisition involves a
Loan Party and a non-Loan Party, the Loan Party shall be the surviving Person;
provided that, the Administrative Agent shall not be required to release any
security interests in the assets of any such Person except in connection with
the simultaneous grant by the surviving Person to the Administrative Agent of
security interests in the same assets and, provided further that, none of the
events described in this Section 8.7 (Restriction on Fundamental Changes) shall
have the effect of reducing the collateral security and credit support provided
on account of the Obligations.
Section 8.8 Change in Nature of Business
Such Borrower shall not, and shall not permit any of its
Subsidiaries to, make any material change in the nature or conduct of its
business as carried on at the date hereof.
Section 8.9 Transactions with Affiliates
Such Borrower shall not, and shall not permit any of its
Subsidiaries to, except as otherwise expressly permitted herein, do any of the
following: (a) make any Investment in an Affiliate of such Borrower that is not
a Subsidiary of such Borrower, (b) transfer, sell, lease, assign or otherwise
dispose of any asset to any Affiliate of such Borrower that is not a Subsidiary
of such Borrower, (c) merge into or consolidate with or purchase or acquire
assets from any Affiliate of such Borrower that is not a Subsidiary of such
Borrower, (d) repay any Indebtedness to any Affiliate of such Borrower that is
not a Subsidiary of such Borrower or (e) enter into any
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other transaction directly or indirectly with or for the benefit of any
Affiliate of such Borrower that is not a Subsidiary (including guaranties and
assumptions of obligations of any such Affiliate), except for (i) transactions
in the ordinary course of business on a basis no less favorable to such Borrower
or such Subsidiary as would be obtained in a comparable arm's length transaction
with a Person not an Affiliate and (ii) salaries and other director or employee
compensation to officers or directors of such Borrower or any of its
Subsidiaries commensurate with current compensation levels.
Section 8.10 Limitations on Restrictions on Subsidiary
Distributions; No New Negative Pledge
Except pursuant to (i) the Loan Documents, (ii) any agreements
governing purchase money Indebtedness or Capital Lease Obligations permitted by
clauses (b), (d) or (e) of Section 8.1 (Indebtedness) (in which latter case, any
prohibition or limitation shall only be effective against the assets financed
thereby), (iii) the Standstill Agreement, (iv) the DM Notes and the DM
Agreement, (v) the Orders, (vi) the Pre-Petition Facility, (vii) the agreements
listed on Schedule 8.10 (Existing Restrictive Agreements), (viii) the European
A/R Facility, (ix) any agreements governing Indebtedness permitted by clauses
(m), (n) or (o) of Section 8.1 (Indebtedness), (x) customary provisions
restricting subletting or assignment of any lease governing a leasehold interest
of the Company or any of its Subsidiaries, and (xi) customary provisions
restricting assignment of any licensing agreement entered into by the Company or
any of its Subsidiaries in the ordinary course of business, such Borrower shall
not, and shall not permit any of its Subsidiaries to, (a) agree to enter into or
suffer to exist or become effective any consensual encumbrance or restriction of
any kind on the ability of such Subsidiary to pay dividends or make any other
distribution or transfer of funds or assets or make loans or advances to or
other Investments in, or pay any Indebtedness owed to, such Borrower or any
other Subsidiary of such Borrower or (b) enter into or suffer to exist or become
effective any agreement prohibiting or limiting the ability of such Borrower or
any Subsidiary to create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired, to
secure the Obligations, including any agreement requiring any other Indebtedness
or Contractual Obligation to be equally and ratably secured with the
Obligations.
Section 8.11 Modification of Constituent Documents
Except as otherwise previously approved by the Administrative
Agent, such Borrower shall not, nor shall it permit any of its Subsidiaries to,
change its capital structure (including in the terms of its outstanding Stock)
or otherwise amend its Constituent Documents, except for changes and amendments
that do not materially affect the rights and privileges of such Borrower or any
of its Subsidiaries and do not materially affect the interests of the
Administrative Agent, the Lenders and the Issuers under the Loan Documents or in
the Collateral.
Section 8.12 Accounts
Such Borrower shall not, nor shall it permit any of its
Subsidiaries to, permit the aggregate amount of cash or Cash Equivalents held by
such Person in any deposit account, operating account or other account (other
than the Escrow Account, any Cash Collateral Account, any Blocked Account or any
Approved Deposit Account) (a) located outside the United States to exceed
$20,000,000 for any period of five (5) consecutive Business Days unless all
Foreign Intercompany Loans have been paid in full, and (b) on the sixtieth day
after the Closing Date and
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thereafter, in respect of the Borrowers only, to exceed $1,000,000 in the
aggregate at any one time outstanding.
Section 8.13 Accounting Changes; Fiscal Year
Such Borrower shall not, nor shall it permit any of its
Subsidiaries to, change its (a) accounting treatment and reporting practices or
tax reporting treatment, except as required by GAAP or any Requirement of Law
and disclosed to the Lenders and the Administrative Agent or (b) Fiscal Year.
Section 8.14 Margin Regulations
Such Borrower shall not, and shall not permit any of its
Subsidiaries to, 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 8.15 Operating Leases; Sale/Leasebacks
(a) Such Borrower shall not, and shall not permit any of its
Subsidiaries to, become or remain liable as lessee or guarantor or other surety
with respect to any operating lease, unless that aggregate amount of all rents
paid or accrued under all such operating leases shall not exceed $2,500,000 in
any Fiscal Year.
(b) Such Borrower shall not, and shall not permit any of its
Subsidiaries to, enter into any sale and leaseback transaction if, after giving
effect to such sale and leaseback transaction, the aggregate Fair Market Value
of all properties covered by sale and leaseback transactions would exceed
$5,000,000.
Section 8.16 No Speculative Transactions
Such Borrower shall not, and shall not permit any of its
Subsidiaries to, engage in any speculative transaction or in any transaction
involving Hedging Contracts except for the sole purpose of hedging in the normal
course of business and consistent with industry practices.
Section 8.17 Compliance with ERISA
Such Borrower shall not cause or permit to occur, and shall
not permit any of its Subsidiaries or ERISA Affiliates to cause or permit to
occur, (a) an event that could result in the imposition of a Lien under Section
412 of the Code or Section 302 or 4068 of ERISA or (b) an ERISA Event (other
than the Cases), in either case, that would have a Material Adverse Effect.
Section 8.18 Chapter 11 Claims
Such Borrower shall not, and shall not permit any of its
Domestic Subsidiaries (other than the Non-Filing Subsidiaries) to, incur,
create, assume, suffer to exist or permit any administrative expense, unsecured
claim, or other super-priority claim or lien that is pari passu with or senior
to the claims of the Secured Parties against the Loan Parties hereunder, or
apply to the Bankruptcy Court for authority to do so, except for the Carve-Out.
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Section 8.19 The Orders
Such Borrower shall not, and shall not permit any of its
Subsidiaries to, make or permit to be made any change, amendment or
modification, or any application or motion for any change, amendment or
modification, to either Order without the prior written consent of the Requisite
Lenders and the Administrative Agent.
Section 8.20 Employment Expenses
Such Borrower shall not, and shall not permit any of its
Domestic Subsidiaries (other than the Non-Filing Subsidiaries) to, pay to any
officer, director or employee any employment wages, salary, bonus or other
compensation of any type or character that is not consistent with past practices
other than "stay-pay" approved as part of the Business Plan by the Bankruptcy
Court or otherwise approved in writing by the Requisite Lenders.
Section 8.21 Adequate Protection Payments
Such Borrower shall not, and shall not permit any of its
Subsidiaries to, pay any Adequate Protection Payment except to the extent
permitted under the Orders.
ARTICLE IX
EVENTS OF DEFAULT
Section 9.1 Events of Default
Each of the following events shall be an Event of Default:
(a) the Borrowers shall fail to pay any principal of any Loan
or any Reimbursement Obligation when the same becomes due and payable; or
(b) the Borrowers shall fail to pay any interest on any Loan,
any fee under any of the Loan Documents or any other Obligation (other than one
referred to in clause (a) above) and such non-payment continues for a period of
two Business Days after the due date therefor; or
(c) any representation or warranty made or deemed made by any
Loan Party in any Loan Document or by any Loan Party (or any of its officers) in
connection with any Loan Document shall prove to have been incorrect in any
material respect when made or deemed made; or
(d) any Loan Party shall fail to perform or observe (i) any
term, covenant or agreement contained in Article V (Financial Covenants),
Section 6.1 (Financial Statements), Section 6.2 (Default Notices), Section
6.13(e) (Post-Closing Schedules), Section 7.1 (Preservation of Corporate
Existence, Etc.), Section 7.6 (Access), Section 7.9 (Application of Proceeds),
Section 7.11 (Approved Deposit Accounts; Blocked Accounts), or Article VIII
(Negative Covenants) or (ii) any other term, covenant or agreement contained in
this Agreement or in any other Loan Document if such failure under this clause
(ii) shall remain unremedied for 30 days after the earlier of (A) the date on
which a Responsible Officer of any Borrower becomes aware of such
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failure and (B) the date on which written notice thereof shall have been given
to the Borrowers by the Administrative Agent or any Lender; or
(e) (i) any Borrower or any of its Subsidiaries shall fail to
make any payment on any Indebtedness arising after the Petition Date (other than
the Obligations) of such Borrower or any such Subsidiary or any Guaranty
Obligation arising after the Petition Date (other than the Obligations) in
respect of Indebtedness of any other Person, or any Non-Filing Subsidiary shall
fail to make any payment on any Indebtedness of any such Non-Filing Subsidiary
or any Guaranty Obligation in respect of Indebtedness of any other Person, and,
in each case, such failure relates to Indebtedness having a principal amount of
$5,000,000 or more, when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), (ii) any
other event shall occur or condition shall exist under any agreement or
instrument relating to any such Indebtedness, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity of
such Indebtedness or (iii) any such Indebtedness shall become or be declared to
be due and payable, or required to be prepaid or repurchased (other than by a
regularly scheduled required prepayment), prior to the stated maturity thereof;
or
(f) (i) any of the Non-Filing Subsidiaries 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 of the
Non-Filing Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts, under any 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 or other similar official for it or for any substantial part
of its property; provided, however, that, in the case of any such proceedings
instituted against any of the Non-Filing Subsidiaries (but not instituted by any
of the Non-Filing Subsidiaries), either such proceedings shall remain
undismissed or unstayed for a period of 30 days or more or any action sought in
such proceedings shall occur or (iii) any of the Non-Filing Subsidiaries shall
take any corporate action to authorize any action set forth in clauses (i) and
(ii) above; or
(g) one or more judgments or orders (or other similar process)
involving, in the case of money judgments, an aggregate amount in excess of
$2,000,000, to the extent not covered by insurance, shall be rendered against
one or more of any Loan Party and its Subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 20 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(h) The Loan Documents and the Orders shall, for any reason,
cease to create a valid Lien on any of the Collateral purported to be covered
thereby or such Lien shall cease to be a perfected Lien having the priority
provided herein pursuant to Section 364 of the Bankruptcy Code against each Loan
Party, or any Loan Party shall so allege in any pleading filed in any court or
any material provision of any Loan Document shall, for any reason, cease to be
valid and binding on each Loan Party party thereto or any Loan Party shall so
state in writing; or
(i) an ERISA Event (other than the Cases) shall occur and the
amount of all liabilities and deficiencies resulting therefrom, whether or not
assessed, exceeds $1,000,000 in the aggregate; or
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(j) Any of the Cases shall be dismissed (or the Bankruptcy
Court shall make a ruling requiring the dismissal of the Cases), suspended or
converted to a case under chapter 7 of the Bankruptcy Code, or any Loan Party
shall file any pleading requesting any such relief; or an application shall be
filed by any Loan Party for the approval of, or there shall arise, (i) any other
Claim having priority senior to or pari passu with the claims of the
Administrative Agent and the Lenders under the Loan Documents or any other claim
having priority over any or all administrative expenses of the kind specified in
clause (b) of Section 503 or clause (b) of Section 507 of the Bankruptcy Code
(other than the Carve-Out) or (ii) any Lien on the Collateral having a priority
senior to or pari passu with the Liens and security interests granted herein,
except as expressly provided herein; or
(k) Any Loan Party shall file a motion seeking, or the
Bankruptcy Court shall enter, an order (i) approving payment of any pre-petition
Claim other than a Permitted Prepetition Claim Payment, (ii) approving a First
Day Order not approved by the Administrative Agent, (iii) granting relief from
the automatic stay applicable under Section 362 of the Bankruptcy Code to any
holder of any security interest to permit foreclosure on any assets (other than
certain assets identified by the Borrowers and agreed to by the Administrative
Agent) having a book value in excess of $1,000,000 in the aggregate or (iv)
except to the extent the same would not constitute a Default under any of the
previous clauses, approving any settlement or other stipulation with any
creditor of any Loan Party, other than the Administrative Agent and the Lenders,
or otherwise providing for payments as adequate protection or otherwise to such
creditor individually or in the aggregate in excess of $100,000 for any and all
such creditors; or
(l) (i) The Interim Order shall cease to be in full force and
effect and the Final Order shall not have been entered prior to such cessation,
(ii) the Final Order shall not have been entered by the Bankruptcy Court on or
before the 45th day following the Closing Date, (iii) from and after the date of
entry thereof, the Final Order shall cease to be in full force and effect, (iv)
any Loan Party shall fail to comply with the terms of the Interim Order or the
Final Order in any material respect or (v) the Interim Order or the Final Order
shall be amended, supplemented, stayed, reversed, vacated or otherwise modified
(or any of the Loan Parties shall apply for authority to do so) without the
written consent of the Requisite Lenders; or
(m) The Bankruptcy Court shall enter an order appointing a
responsible officer or an examiner with powers beyond the duty to investigate
and report, as set forth in subclauses (3) and (4) of clause (a) of Section 1106
of the Bankruptcy Code, in any of the Cases; or
(n) a senior representative of X. Xxxx & Co. or another
restructuring firm reasonably satisfactory to the Administrative Agent shall
cease to act as chief restructuring officer of the Company in connection with
the Restructuring; or
(o) there shall occur a Material Adverse Change or any event
or circumstances that would have a Material Adverse Effect; or
(p) a Standstill Termination Event shall occur; or
(q) the Standstill Agreement shall cease to be valid and
binding on any party thereto or shall otherwise terminate; or
(r) one or more of the Borrowers and their respective
Subsidiaries shall have entered into one or more consent or settlement decrees
or agreements or similar arrangements
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with a Governmental Authority or one or more judgments, orders, decrees or
similar actions shall have been entered or otherwise asserted against one or
more of the Borrowers and their respective Subsidiaries or one or more of the
Borrower or their respective Subsidiaries shall have discovered a condition
based on or arising from the violation of or pursuant to any Environmental Law,
or the generation, storage, transportation, treatment, disposal or Release of
any Contaminant and, in connection with all the foregoing, the Borrowers and
their Subsidiaries are likely to incur Environmental Liabilities and Costs in
excess of $5,000,000 in the aggregate that were not reflected in the Financial
Statements delivered pursuant to Section 4.4 (Financial Statements); or
(s) the European A/R Facility in existence on the Closing Date
(the "Existing European A/R Facility") shall not have been refinanced on or
before June 4, 2002, or such later date of the final termination of the Existing
European A/R Facility to the extent such date of final termination has been
extended pursuant to documentation satisfactory to the Administrative Agent, or
if so refinanced, shall have commitments thereunder of less than $165,000,000 in
aggregate principal amount.
Section 9.2 Remedies
During the continuance of any Event of Default, without
further order of, application to, or action by, the Bankruptcy Court, the
Administrative Agent (a) may, and shall at the request of the Requisite Lenders,
by notice to the Borrowers declare that all or any portion of the Commitments be
terminated, whereupon any and all obligations of each Lender to make any Loan
and each Issuer to Issue any Letter of Credit shall immediately terminate and
(b) may, and shall at the request of the Requisite Lenders, by notice to the
Borrowers, declare the Loans, all interest thereon and all other amounts and
Obligations payable under this Agreement to be forthwith due and payable,
whereupon the Loans, all such interest and all such amounts and Obligations
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by each Borrower. In addition, subject solely to any requirement of the giving
of notice by the terms of the Interim Order or the Final Order, the automatic
stay provided in Section 362 of the Bankruptcy Code shall be deemed
automatically vacated without further action or order of the Bankruptcy Court,
and the Administrative Agent and the Lenders shall be entitled to exercise all
of their respective rights and remedies under the Loan Documents, including all
rights and remedies with respect to the Collateral and the Domestic Guarantors.
Section 9.3 Actions in Respect of Letters of Credit
Upon the Scheduled Termination Date or as may be required by
Section 2.9 (Mandatory Prepayments) and at any time after the Scheduled
Termination Date when the funds in a Cash Collateral Account shall be less than
the Letter of Credit Obligations, the Borrowers shall pay to the Administrative
Agent in immediately available funds at the Administrative Agent's office
referred to in Section 13.8 (Notices, Etc.), for deposit in a Cash Collateral
Account, an amount equal to 105% of the sum of all outstanding Letter of Credit
Obligations. The Administrative Agent may, from time to time after funds are
deposited in any Cash Collateral Account, apply funds then held in such Cash
Collateral Account to the payment of any amounts, in accordance with Section
2.13(g) (Payments and Computations), as shall have become or shall become due
and payable by the Borrowers to the Issuers or Lenders in respect of the Letter
of Credit Obligations (including, for any Letters of Credit Obligations in any
currency other than Dollars, the Dollar Equivalent thereof). The Administrative
Agent shall promptly give written
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notice of any such application; provided, however, that the failure to give such
written notice shall not invalidate any such application.
Section 9.4 Rescission
If at any time after termination of the Commitments or
acceleration of the maturity of the Loans, the Borrowers shall pay all arrears
of interest and all payments on account of principal of the Loans and
Reimbursement Obligations that shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted by law, on
overdue interest, at the rates specified herein) and all Events of Default and
Defaults (other than non-payment of principal of and accrued interest on the
Loans due and payable solely by virtue of acceleration) shall be remedied or
waived pursuant to Section 13.1 (Amendments, Waivers, Etc.), then upon the
written consent of the Requisite Lenders and written notice to the Borrowers,
the termination of the Commitments or the acceleration and their consequences
may be rescinded and annulled; provided, however, that such action shall not
affect any subsequent Event of Default or Default or impair any right or remedy
consequent thereon. The provisions of the preceding sentence are intended merely
to bind the Lenders and the Issuers to a decision that may be made at the
election of the Requisite Lenders, and such provisions are not intended to
benefit the Borrowers and do not give the Borrowers the right to require the
Lenders to rescind or annul any acceleration hereunder, even if the conditions
set forth herein are met.
ARTICLE X
Guaranty
Section 10.1 The Guaranty
In order to induce the Lenders to enter into this Agreement
and to extend credit hereunder and in recognition of the direct benefits to be
received by each Domestic Guarantor from the proceeds of the Loans and the
issuance of the Letters of Credit, each Domestic Guarantor hereby agrees with
the Administrative Agent and the Lenders that such Domestic Guarantor hereby
unconditionally and irrevocably, jointly and severally, guarantees as primary
obligor and not merely as surety the full and prompt payment and performance
when due, whether upon maturity, by acceleration or otherwise, of any and all of
the Obligations of the Borrowers to the Lenders. If any or all of the
Obligations of the Borrowers to the Lenders become due and payable hereunder,
each Domestic Guarantor, jointly and severally, unconditionally promises to pay
and perform such Obligations to the Lenders, or order, on demand, together with
any and all reasonable expenses that may be incurred by the Administrative Agent
or the Lenders in collecting any of the Obligations.
Section 10.2 Nature of Liability
The liability of each Domestic Guarantor hereunder is
exclusive and independent of any security for or other guaranty of the
Obligations of the Borrowers whether executed by such Domestic Guarantor, any
other Domestic Guarantor, any other guarantor or by any other party, and the
liability of each Domestic Guarantor hereunder shall not be affected or impaired
by (a) any direction as to application of payment by the Borrowers or by any
other party, (b) any other continuing or other guaranty, undertaking or maximum
liability of a guarantor or of any
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other party as to the Obligations of the Borrowers, (c) any payment on or in
reduction of any such other guaranty or undertaking, (d) any dissolution,
termination or increase, decrease or change in personnel by any Borrower or (e)
any payment made to the Administrative Agent or the Lenders in respect the
Obligations and that the Administrative Agent or such Lenders repay to the
Borrowers pursuant to court order in any bankruptcy, reorganization,
arrangement, moratorium or other debtor relief proceeding, and each Domestic
Guarantor hereby waives any right to the deferral or modification of its
obligations hereunder by reason of any such proceeding.
Section 10.3 Independent Obligation
The obligations of each Domestic Guarantor hereunder are
independent of the obligations of any other Domestic Guarantor, any other
guarantor or the Borrowers, and a separate action or actions may be brought and
prosecuted against each Domestic Guarantor, whether or not action is brought
against any other Domestic Guarantor, any other guarantor or the Borrowers and
whether or not any other Domestic Guarantor, any other guarantor or any Borrower
be joined in any such action or actions. Each Domestic Guarantor waives, to the
fullest extent permitted by law, the benefit of any statute of limitations
affecting its liability hereunder or the enforcement thereof. Any payment by the
Borrowers or other circumstance operating to toll any statute of limitations as
to any Borrower shall operate to toll the statute of limitations as to the
Domestic Guarantor.
Section 10.4 Authorization
Each Domestic Guarantor authorizes the Administrative Agent
and the Lenders without notice or demand (except as shall be required by
applicable statute and cannot be waived), and without affecting or impairing its
liability hereunder, from time to time to do any of the following:
(a) change the manner, place or terms of payment of, or change
or extend the time of payment of, renew, increase, accelerate or alter, any of
the Obligations (including any increase or decrease in the rate of interest
thereon), any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the Guaranty herein made shall apply to the
Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Obligations
and sell, exchange, release, surrender, realize upon or otherwise deal with in
any manner and in any order any property by whomsoever at any time pledged or
mortgaged to secure, or howsoever securing, the Obligations or any liabilities
(including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof and any offset there against;
(c) exercise or refrain from exercising any rights against the
Borrowers or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers,
guarantors, the Borrowers or other obligors;
(e) settle or compromise any of the Obligations, any security
therefor or any liability (including any of those hereunder) incurred directly
or indirectly in respect thereof or hereof, or subordinate the payment of all or
any part thereof to the payment of any liability (whether due or not) of any
Borrower to its creditors;
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(f) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of the Borrowers to the Lenders regardless of what
liability or liabilities of such Domestic Guarantor or any Borrower remain
unpaid; or
(g) consent to or waive any breach of, or any act, omission or
default under, this Agreement or any of the instruments or agreements referred
to herein, or otherwise amend, modify or supplement this Agreement or any of
such other instruments or agreements.
Section 10.5 Reliance
It is not necessary for the Administrative Agent or the
Lenders to inquire into the capacity or power of any Borrower or its
Subsidiaries or the officers, directors, partners or agents acting or purporting
to act on its behalf, and any Obligations made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.
Section 10.6 Subordination
Any of the Indebtedness of any Borrower now or hereafter owing
to any Domestic Guarantor is hereby subordinated to the Obligations of the
Borrowers; provided, however, that payment may be made by such Borrower on any
such Indebtedness owing to such Domestic Guarantor so long as the same is not
prohibited by this Agreement; and provided, further, that, if the Administrative
Agent so requests at a time when a Default or an Event of Default exists, all
such Debt of such Borrower to such Domestic Guarantor shall be collected,
enforced and received by such Domestic Guarantor as trustee for the Lenders and
be paid over to the Administrative Agent on behalf of the Lenders on account of
the Obligations of the Borrower to Lenders, but without affecting or impairing
in any manner the liability of such Domestic Guarantor under the other
provisions of this Guaranty. Prior to the transfer by any Domestic Guarantor of
any note or negotiable instrument evidencing any of the Indebtedness of any
Borrower to such Domestic Guarantor, such Domestic Guarantor shall xxxx such
note or negotiable instrument with a legend that the same is subject to this
subordination.
Section 10.7 Waiver
(a) Each Domestic Guarantor waives any right (except as shall
be required by applicable statute and cannot be waived) to require the
Administrative Agent or the Lenders to (i) proceed against any Borrower, any
other Domestic Guarantor, any other guarantor or any other party, (ii) proceed
against or exhaust any security held from any Borrower, any other Domestic
Guarantor, any other guarantor or any other party or (iii) pursue any other
remedy in the Administrative Agent's or the Lenders' power whatsoever. Each
Domestic Guarantor waives (except as shall be required by applicable statute and
cannot be waived) any defense based on or arising out of any defense of any
Borrower, any other Domestic Guarantor, any other guarantor or any other party
other than payment in full of the Obligations, including any defense based on or
arising out of the disability of any Borrower, any other Domestic Guarantor, any
other guarantor or any other party, or the unenforceability of the Obligations
or any part thereof from any cause, or the cessation from any cause of the
liability of any Borrower other than payment in full of the Obligations. Subject
to the giving of three (3) Business Days prior written notice in accordance with
the Orders and except for the application of proceeds of Collateral received by
the Administrative Agent, during such three (3) Business Days the Administrative
Agent and the Lenders may, at their election, foreclose on any security held by
the Administrative Agent or the Lenders by one or more judicial or nonjudicial
sales, whether or not every aspect of any such sale
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is commercially reasonable (to the extent such sale is permitted by applicable
law), and may exercise any other right or remedy the Administrative Agent and
the Lenders may have against any Borrower, any other guarantor, any other party
or any security, without affecting or impairing in any way the liability of any
Domestic Guarantor hereunder, in each case except to the extent the Obligations
have been paid. Each Domestic Guarantor hereby waives any defense arising out of
any such election by the Administrative Agent and the Lenders, even though such
election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of such Domestic Guarantor against the
Borrowers, any other party or any security.
(b) Each Domestic Guarantor waives all presentments, demands
for performance, protests and notices, including notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Guaranty
and notices of the existence, creation or incurring of new or additional
Obligations. Each Domestic Guarantor (i) assumes all responsibility for being
and keeping itself informed of the Borrowers' financial condition and assets,
all other circumstances bearing upon the risk of nonpayment of the Obligations
and the nature, scope and extent of the risks that such Domestic Guarantor
assumes and incurs hereunder and (ii) agrees that the Administrative Agent and
the Lenders shall have no duty to advise such Domestic Guarantor of information
known to them regarding such circumstances or risks.
Section 10.8 Limitation on Enforcement
The Lenders agree that this Guaranty may be enforced only by
the action of the Administrative Agent acting upon the instructions of the
Requisite Lenders, and that no Lender shall have any right individually to seek
to enforce or to enforce this Guaranty, it being understood and agreed that such
rights and remedies may be exercised by the Administrative Agent for the benefit
of the Lenders upon the terms of this Agreement.
ARTICLE XI
Security
Section 11.1 Security
(a) To induce the Lenders to make the Loans and the Issuers to
issue Letters of Credit, each Grantor hereby grants to the Administrative Agent,
for itself and for the ratable benefit of the Secured Parties, as security for
the full and prompt payment when due (whether at stated maturity, by
acceleration or otherwise) of the obligations of such Grantor, a continuing
first priority Lien and security interest (subject only to (i) the Carve-Out,
(ii) valid, perfected, nonavoidable and enforceable Liens existing on the
Petition Date (other than Liens securing the Pre-Petition Facility), and (iii)
Liens permitted under Section 8.2(d) (Liens, Etc.)) in accordance with Sections
364(c)(2) and (3) and Section 364(d)(1) of the Bankruptcy Code, in and to all
Collateral of such Grantor wherever located, whether real, personal or mixed and
whether now owned or hereafter acquired. For purposes of this Agreement, all of
the following property now owned or at any time hereafter acquired by a Grantor
or in which a Grantor now has or at any time in the future may acquire any
right, title or interests is collectively referred to as the "Collateral":
(i) all Accounts;
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(ii) all Inventory;
(iii) all Equipment;
(iv) all General Intangibles, including all Intellectual
Property and that portion of the Pledged Collateral constituting General
Intangibles;
(v) all Payment Intangibles;
(vi) all Investment Property, including all Pledged
Collateral constituting Investment Property;
(vii) all Documents, Instruments and Chattel Paper;
(viii) all Deposit Accounts;
(ix) all Securities Accounts;
(x) all Letter of Credit Rights;
(xi) all Vehicles;
(xii) all Real Property;
(xiii) all books and records pertaining to the property
described in this Section 11.1 (Security);
(xiv) all other goods and personal property of such Grantor,
whether tangible or intangible, wherever located, including money, letters of
credit and all rights of payment or performance under letters of credit;
(xv) all property of any Grantor held by the Administrative
Agent or any Secured Party, including all property of every description, in the
possession or custody of or in transit to the Administrative Agent or such
Secured Party for any purpose, including safekeeping, collection or pledge, for
the account of such Grantor, or as to which such Grantor may have any right or
power;
(xvi) to the extent not otherwise included, all monies and
other property of any kind received after the Petition Date by such Grantor in
connection with refunds with respect to taxes, assessments and governmental
charges imposed on such Grantor or any of its property or income;
(xvii) to the extent not otherwise included, all causes of
action (including claims of the Grantors under Sections 544, 545, 547 and 548 of
the Bankruptcy Code), all monies and other property of any kind received
therefrom and all monies and other property of any kind recovered by any
Grantor; and
(xviii) to the extent not otherwise included, all Proceeds of,
all accessions to, substitutions and replacements for and all rents, profits and
products of,
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each of the foregoing and any and all proceeds of insurance, indemnity,
warranty or guaranty payable to any Grantor from time to time with
respect to any of the foregoing.
Section 11.2 Perfection of Security Interests
(a) Each Grantor shall, at its expense, perform any and all
steps reasonably requested by the Administrative Agent at any time as may be
necessary to perfect, maintain, protect, and enforce the Lenders' security
interest in the Collateral of such Grantor, including (i) executing and filing
financing or continuation statements, and amendments thereof, in form and
substance satisfactory to the Administrative Agent, (ii) maintaining complete
and accurate stock records, (iii) using its best efforts in delivering to the
Administrative Agent negotiable warehouse receipts, if any, and, upon the
Administrative Agent's request therefor, non-negotiable warehouse receipts
covering any portion of the Collateral located in warehouses and for which
warehouse receipts are issued, (iv) placing notations on such Grantor's books of
account to disclose the Administrative Agent's security interest therein, (v)
delivering to the Administrative Agent all documents, certificates and
Instruments necessary or desirable to perfect the Administrative Agent's Lien in
letters of credit on which such Grantor is named as beneficiary and all
acceptances issued in connection therewith, (vi) after the occurrence and during
the continuation of an Event of Default, transferring Inventory maintained in
warehouses to other warehouses designated by the Administrative Agent and (vii)
taking such other steps as are deemed necessary or desirable to maintain the
Administrative Agent's security interest in the Collateral, including title
insurance policies, current as built surveys, zoning letters and certificates of
occupancy, as shall be reasonably requested by the Administrative Agent, in each
case satisfactory to the Administrative Agent, in its sole discretion.
(b) Each Grantor hereby authorizes the Administrative Agent to
execute and file financing or continuation statements or other relevant filings
and recordings on such Grantor's behalf covering the Collateral. The
Administrative Agent may file one or more financing or continuation statements
or other relevant filings and recordings disclosing the Administrative Agent's
security interest under this Agreement or the other Loan Documents without the
signature of such Grantor appearing thereon. Each Grantor shall pay the costs
of, or incidental to, any recording or filing of any financing or continuation
statements or other relevant filings ad recordings concerning the Collateral.
Each Grantor agrees that a carbon, photographic, photostatic, or other
reproduction of this Agreement or the other Loan Documents or of a financing or
continuation statement is sufficient as such filing or recording. If any
Collateral is at any time in the possession or control of any warehouseman,
bailee or such Grantor's agents or processors, such Grantor shall notify such
warehouseman, bailee, agents or processors of the Administrative Agent's
security interest, which notification shall specify that such Person shall, upon
the occurrence and during the continuance of an Event of Default, hold all such
Collateral for the Administrative Agent's account subject to the Administrative
Agent's instructions. From time to time, each Grantor shall, upon the
Administrative Agent's request, execute and deliver written instruments pledging
to the Administrative Agent the Collateral described in any such instruments or
otherwise, but the failure of such Grantor to execute and deliver such
confirmatory instruments shall not affect or limit the Administrative Agent's
security interest or other rights in and to the Collateral. Until all
Obligations (other than contingent indemnification obligations not then due and
payable which survive the repayment of the Loans and termination of the
Commitments) have been fully satisfied and the Commitments shall have been
terminated, the Administrative Agent's security interest in the Collateral and
all Proceeds and products thereof shall continue in full force and effect.
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(c) Notwithstanding clauses (a) and (b) above, or any failure
on the part of any Grantor or the Administrative Agent to take any of the
actions set forth in such clauses, the Liens and security interests granted
herein shall be deemed valid, enforceable and perfected by entry of the Interim
Order and the Final Order, as applicable. No financing statement, notice of
lien, mortgage, deed of trust or similar instrument in any jurisdiction or
filing office need be filed or any other action taken in order to validate and
perfect the Liens granted by or pursuant to this Agreement, the Interim Order or
the Final Order.
Section 11.3 Rights of Lender; Limitations on Lenders'
Obligations
(a) Subject to each Grantor's rights and duties under the
Bankruptcy Code (including Section 365 of the Bankruptcy Code), it is expressly
agreed by each Grantor that, anything herein to the contrary notwithstanding,
such Grantor shall remain liable under its Contracts to observe and perform all
the conditions and obligations to be observed and performed by it thereunder.
Neither the Administrative Agent nor any Secured Party shall have any obligation
or liability under any Contract by reason of or arising out of this Agreement,
the Loan Documents, or the granting to the Administrative Agent of a security
interest therein or the receipt by the Administrative Agent or any Lender of any
payment relating to any Contract pursuant hereto, nor shall the Administrative
Agent be required or obligated in any manner to perform or fulfill any of the
obligations of any Grantor under or pursuant to any Contract, or to make any
payment, or to make any inquiry as to the nature or the sufficiency of any
payment received by it or the sufficiency of any performance by any party under
any Contract, or to present or file any claim, or to take any action to collect
or enforce any performance or the payment of any amounts that may have been
assigned to it or to which it may be entitled at any time or times.
(b) Subject to Section 11.5 (Performance by Agent of the Loan
Parties' Obligations), the Administrative Agent authorizes each Grantor to
collect its Accounts (provided, however, that such collection shall be performed
in accordance with such Grantor's customary procedures), and the Administrative
Agent may, upon the occurrence and during the continuation of any Event of
Default and without notice, other than any requirement of notice provided in the
Orders, limit or terminate said authority at any time.
(c) Subject to any requirement of notice provided in the
Orders, the Administrative Agent may at any time, upon the occurrence and during
the continuation of any Event of Default, after first notifying the Borrowers of
its intention to do so, notify Account Debtors, notify the other parties to the
Contracts of any Borrower or any other Grantor, notify obligors of Instruments
and Investment Property of any Borrower or any other Grantor and notify obligors
in respect of Chattel Paper of any Borrower or any other Grantor that the right,
title and interest of such Borrower or such Grantor in and under such Accounts,
such Contracts, such Instruments, such Investment Property and such Chattel
Paper have been assigned to the Administrative Agent and that payments shall be
made directly to the Administrative Agent. Subject to any requirement of notice
provided in the Orders or approval by the Bankruptcy Court, upon the request of
the Administrative Agent, such Borrower or such other Grantor shall so notify
such Account Debtors, such parties to Contracts, obligors of such Instruments
and Investment Property and obligors in respect of such Chattel Paper. Subject
to any requirement of notice provided in the Orders or approval by the
Bankruptcy Court, upon the occurrence and during the continuation of an Event of
Default, the Administrative Agent may in its own name, or in the name of others,
communicate with such parties to such Accounts, Contracts, Instruments,
Investment Property and Chattel Paper to verify with such Persons to the
Administrative Agent's
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reasonable satisfaction the existence, amount and terms of any such Accounts,
Contracts, Instruments, Investment Property or Chattel Paper.
(d) The Administrative Agent shall have the right to make test
verification of the Accounts in any manner and through any medium that it
considers advisable, and each Grantor agrees to furnish all such assistance and
information as the Administrative Agent may require in connection therewith.
Each Grantor, at its expense, shall cause certified independent public
accountants satisfactory to the Requisite Lenders to prepare and deliver to the
Administrative Agent at any time and from time to time, promptly upon the
Administrative Agent's request, the following reports: (i) a reconciliation of
all Accounts of such Grantor, (ii) an aging of all Accounts of such Grantor,
(iii) trial balances and (iv) a test verification of such Accounts as the
Administrative Agent may request. The Administrative Agent shall have the right
at any time to conduct periodic audits of the Accounts of any Grantor at the
expense of the Borrowers.
Section 11.4 Covenants of the Loan Parties with Respect to
Collateral
Each Grantor hereby covenants and agrees with the
Administrative Agent that from and after the date of this Agreement and until
the Obligations (other than contingent indemnification obligations not then due
and payable which survive the repayment of the Loans and termination of the
Commitments) are fully satisfied:
(a) Maintenance of Records. Such Grantor shall keep and
maintain, at its own cost and expense, satisfactory and complete records of the
Collateral, in all material respects, including a record of all payments
received and all credits granted with respect to the Collateral and all other
dealings concerning the Collateral. For the Administrative Agent's further
security, each Grantor agrees that the Administrative Agent shall have a
property interest in all of such Grantor's books and records pertaining to the
Collateral and, upon the occurrence and during the continuation of an Event of
Default, such Grantor shall deliver and turn over any such books and records to
the Administrative Agent or to its representatives at any time on demand of the
Administrative Agent.
(b) Indemnification With Respect to Collateral. In any suit,
proceeding or action brought by the Administrative Agent relating to any
Account, Chattel Paper, Contract, General Intangible, Investment Property,
Instrument, Intellectual Property or other Collateral for any sum owing
thereunder or to enforce any provision of any Account, Chattel Paper, Contract,
General Intangible, Investment Property, Instrument, Intellectual Property or
other Collateral, such Grantor shall save, indemnify and keep the Secured
Parties harmless from and against all expense, loss or damage suffered by the
Secured Parties by reason of any defense, setoff, counterclaim, recoupment or
reduction of liability whatsoever of the obligor thereunder, arising out of a
breach by such Grantor of any obligation thereunder or arising out of any other
agreement, indebtedness or liability at any time owing to, or in favor of, such
obligor or its successors from such Grantor, and all such obligations of such
Grantor shall be, and shall remain, enforceable against and only against such
Grantor and shall not be enforceable against the Administrative Agent.
(c) Limitation on Liens on Collateral. Such Grantor shall not
create, permit or suffer to exist, shall defend the Collateral against and shall
take such other action as is necessary to remove, any Lien on the Collateral
except Liens permitted under Section 8.2 (Liens, Etc.), and such Grantor shall
defend the right, title and interest of the Administrative Agent in and to all
of such Grantor's rights under the Chattel Paper, Leases, Real Estate,
Contracts, Documents,
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General Intangibles, Instruments, Investment Property and to the Intellectual
Property, Equipment and Inventory and in and to the Proceeds thereof against the
claims and demands of all Persons whomsoever other than claims or demands
arising out of Liens permitted under Section 8.2 (Liens, Etc.).
(d) Limitations on Modifications of Accounts. Such Grantor
shall not, without the Administrative Agent's prior written consent, grant any
extension of the time of payment of any of the Accounts, Chattel Paper or
Instruments, compromise, compound or settle the same for less than the full
amount thereof, release, wholly or partly, any Person liable for the payment
thereof, or allow any credit or discount whatsoever thereon other than any of
the foregoing done in the ordinary course of business, consistent with past
practices and trade discounts granted in the ordinary course of business of such
Grantor.
(e) Notices. Such Grantor shall advise the Lenders promptly,
in reasonable detail, (i) of any Lien asserted against any of the Collateral
other than Liens permitted under Section 8.2 (Liens, Etc.) and (ii) of the
occurrence of any other event that would result in a material adverse change
with respect to the aggregate value of the Collateral or on the security
interests created hereunder.
(f) Maintenance of Equipment. Such Grantor shall keep and
maintain the Equipment in good operating condition sufficient for the
continuation of the business conducted by such Grantor on a basis consistent
with past practices, ordinary wear and tear excepted.
(g) Pledged Collateral.
(i) Upon the request of the Administrative Agent, such
Grantor shall (x) deliver to the Administrative Agent, all certificates
or Instruments representing or evidencing any Pledged Collateral not
delivered to the Administrative Agent on the Closing Date (the
"Additional Pledged Collateral"), whether now arising or hereafter
acquired, in suitable form for transfer by delivery or, as applicable,
accompanied by such Grantor's endorsement, where necessary, or duly
executed instruments of transfer or assignment in blank, all in form
and substance satisfactory to the Administrative Agent, together with a
Pledge Amendment, duly executed by the Grantor, in substantially the
form of Exhibit O (Form of Pledge Amendment) (a "Pledge Amendment"), in
respect of such Additional Pledged Collateral and authorizes the
Administrative Agent to attach each Pledge Amendment to this Agreement
and (y) maintain all other Pledged Collateral constituting Investment
Property in a Securities Account under the sole dominion and control of
the Administrative Agent. The Administrative Agent shall have the
right, at any time in its discretion and without notice to the Grantor,
to transfer to or to register in its name or in the name of its
nominees any or all of the Pledged Collateral. The Administrative Agent
shall have the right at any time to exchange certificates or
instruments representing or evidencing any of the Pledged Collateral
for certificates or instruments of smaller or larger denominations.
(ii) Except as provided in Section 11.7 (Remedies,
Rights Upon Default), such Grantor shall be entitled to receive all
cash dividends paid in respect of the Pledged Collateral (other than
liquidating or distributing dividends) with respect to the Pledged
Collateral. Any sums paid upon or in respect of any of the Pledged
Collateral upon the liquidation or dissolution of any issuer of any of
the Pledged Collateral, any distribution of capital made on or in
respect of any of the Pledged Collateral or any
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property distributed upon or with respect to any of the Pledged
Collateral pursuant to the recapitalization or reclassification of the
capital of any issuer of Pledged Collateral or pursuant to the
reorganization thereof shall, unless otherwise subject to a perfected
security interest in favor of the Administrative Agent, be delivered to
the Administrative Agent to be held by it hereunder as additional
collateral security for the Secured Obligations. If any sums of money
or property so paid or distributed in respect of any of the Pledged
Collateral shall be received by such Grantor, such Grantor shall, until
such money or property is paid or delivered to the Administrative
Agent, hold such money or property in trust for the Administrative
Agent, segregated from other funds of such Grantor, as additional
security for the Secured Obligations.
(iii) Except as provided in Section 11.7 (Remedies,
Rights Upon Default), such Grantor shall be entitled to exercise all
voting, consent and corporate rights with respect to the Pledged
Collateral; provided, however, that no vote shall be cast, consent
given or right exercised or other action taken by such Grantor that
would impair the Collateral or that would be inconsistent with or
result in any violation of any provision of this Agreement, any other
Loan Document, the Bankruptcy Code or the Orders or, without prior
notice to the Administrative Agent, to enable or take any other action
to permit any issuer of Pledged Collateral to issue any stock or other
equity securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange for any
stock or other equity securities of any nature of any issuer of Pledged
Collateral.
(iv) Such Grantor shall not grant "control" (within
the meaning of the UCC) over any Investment Property to any Person
other than the Administrative Agent.
(v) In the case of each Grantor that is an issuer of
Pledged Collateral, such Grantor agrees to be bound by the terms of
this Agreement relating to the Pledged Collateral issued by it and
shall comply with such terms insofar as such terms are applicable to
it. In the case of each Grantor that is a partner in a Partnership,
such Grantor hereby consents to the extent required by the applicable
Partnership Agreement to the pledge by each other Grantor, pursuant to
the terms hereof, of the Pledged Partnership Interests in such
Partnership and to the transfer of such Pledged Partnership Interests
to the Administrative Agent or its nominee and to the substitution of
the Administrative Agent or its nominee as a substituted partner in
such Partnership with all the rights, powers and duties of a general
partner or a limited partner, as the case may be. In the case of each
Grantor that is a member of an LLC, such Grantor hereby consents to the
extent required by the applicable LLC Agreement to the pledge by each
other Grantor, pursuant to the terms hereof, of the Pledged LLC
Interests in such LLC and to the transfer of such Pledged LLC Interests
to the Administrative Agent or its nominee and to the substitution of
the Administrative Agent or its nominee as a substituted member of the
LLC with all the rights, powers and duties of a member of the LLC in
question.
(vi) Such Grantor shall not agree to any amendment of
an LLC Agreement or Partnership Agreement that in any way adversely
affects the perfection of the security interest of the Administrative
Agent in the Pledged Partnership Interests or Pledged LLC Interests
pledged by such Grantor hereunder, including electing to treat the
membership interest or partnership interest of such Grantor as a
security under Section 8-103 of the UCC.
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(h) Intellectual Property
(i) Such Grantor (either itself or through licensees) shall
(A) continue to use each Trademark that is Material Intellectual Property in
order to maintain such Trademark in full force and effect with respect to
each class of goods for which such Trademark is currently used, free from
any claim of abandonment for non-use, (B) maintain as in the past the
quality of products and services offered under such Trademark, (C) use such
Trademark with the appropriate notice of registration and all other notices
and legends required by applicable Requirements of Law, (D) not adopt or use
any xxxx that is confusingly similar or a colorable imitation of such
Trademark unless the Administrative Agent shall obtain a perfected security
interest in such xxxx pursuant to this Agreement and (E) not (and not permit
any licensee or sublicensee thereof to) do any act or knowingly omit to do
any act whereby such Trademark may become invalidated or impaired in any
way.
(ii) Such Grantor (either itself or through licensees) shall
not do any act, or omit to do any act, whereby any Patent that is Material
Intellectual Property may become forfeited, abandoned or dedicated to the
public.
(iii) Such Grantor (either itself or through licensees) (A)
shall not (and shall not permit any licensee or sublicensee thereof to) do
any act or omit to do any act whereby any portion of the Copyrights that is
Material Intellectual Property may become invalidated or otherwise impaired
and (B) shall not (either itself or through licensees) do any act whereby
any portion of the Copyrights that is Material Intellectual Property may
fall into the public domain.
(iv) Such Grantor (either itself or through licensees) shall
not do any act, or omit to do any act, whereby any trade secret that is
Material Intellectual Property may become publicly available or otherwise
unprotectable.
(v) Such Grantor (either itself or through licensees) shall
not do any act that knowingly uses any Material Intellectual Property to
infringe the intellectual property rights of any other Person.
(vi) Such Grantor shall notify the Administrative Agent
within five (5) Business Days if it knows, or has reason to know, that any
application or registration relating to any Material Intellectual Property
may become forfeited, abandoned or dedicated to the public, or of any
adverse determination or development (including the institution of, or any
such determination or development in, any proceeding in the United States
Patent and Trademark Office, the United States Copyright Office or any court
or tribunal in any country) regarding such Grantor's ownership of, right to
use, interest in, or the validity of, any Material Intellectual Property or
such Grantor's right to register the same or to own and maintain the same.
(vii) Whenever such Grantor, either by itself or through any
agent, licensee or designee, shall file an application for the registration
of any Material Intellectual Property with the United States Patent and
Trademark Office, the United States Copyright Office or any similar office
or agency within or outside the United States, such Grantor shall report
such filing to the Administrative Agent within five (5) Business Days after
the last day of the fiscal quarter in which such filing occurs. Upon
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request of the Administrative Agent, such Grantor shall execute, deliver and
have recorded, any and all agreements, instruments, documents and papers as
the Administrative Agent may request to evidence the Administrative Agent's
security interest in any Copyright, Patent or Trademark and the goodwill and
general intangibles of such Grantor relating thereto or represented thereby.
(viii) Such Grantor shall take all reasonable actions
necessary or requested by the Administrative Agent, including in any
proceeding before the United States Patent and Trademark Office, the United
States Copyright Office or any similar office or agency, to maintain and
pursue each application (and to obtain the relevant registration) and to
maintain each registration of any Copyright, Trademark or Patent that is
Material Intellectual Property, including filing of applications for
renewal, affidavits of use, affidavits of incontestability and opposition
and interference and cancellation proceedings.
(ix) In the event that any Material Intellectual Property is
infringed upon or misappropriated or diluted by a third party, such Grantor
shall notify the Administrative Agent promptly after such Grantor learns
thereof. Such Grantor shall take appropriate action in response to such
infringement, misappropriation of dilution, including promptly bringing suit
for infringement, misappropriation or dilution and to recover any and all
damages for such infringement, misappropriation of dilution, and shall take
such other actions may be appropriate in its reasonable judgment under the
circumstances to protect such Material Intellectual Property.
Section 11.5 Performance by Agent of the Grantors Obligations
If any Grantor fails to perform or comply with any of its
agreements contained herein and the Administrative Agent, as provided for by the
terms of this Agreement, shall itself perform or comply, or otherwise cause
performance or compliance, with such agreement, the expenses of the
Administrative Agent incurred in connection with such performance or compliance,
together with interest thereon at the rate then in effect in respect of the
Revolving Loan, shall be payable by such Grantor to the Administrative Agent on
demand and shall constitute Obligations secured by the Collateral. Performance
of such Grantor's obligations as permitted under this Section 11.5 (Performance
by Agent of the Loan Parties' Obligations) shall in no way constitute a
violation of the automatic stay provided by Section 362 of the Bankruptcy Code
and each Grantor hereby waives applicability thereof. Moreover, the
Administrative Agent shall in no way be responsible for the payment of any costs
incurred in connection with preserving or disposing of Collateral pursuant to
clause (c) of Section 506 of the Bankruptcy Code and the Collateral may not be
charged for the incurrence of any such cost.
Section 11.6 Limitation on Agent's Duty in Respect of
Collateral
Neither the Administrative Agent nor any Lender shall have any
duty as to any Collateral in its possession or control or in the possession or
control of any agent or nominee of it or any income thereon or as to the
preservation of rights against prior parties or any other rights pertaining
thereto, except that the Administrative Agent shall, with respect to the
Collateral in its possession or under its control, deal with such Collateral in
the same manner as the Administrative Agent deals with similar property for its
own account. Upon request of the Company, the Administrative Agent shall account
for any moneys received by it in respect of any foreclosure on or disposition of
the Collateral of any Grantor.
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Section 11.7 Remedies, Rights Upon Default
(a) If any Event of Default shall occur and be continuing, the
Administrative Agent may exercise in addition to all other rights and remedies
granted to it in this Agreement and in any other Loan Document, all rights and
remedies of a secured party under the UCC. Without limiting the generality of
the foregoing, each Grantor expressly agrees that in any such event the
Administrative Agent, without demand of performance or other demand,
advertisement or notice of any kind (except the notice required by the Interim
Order or Final Order or the notice specified below of time and place of public
or private sale) to or upon such Grantor or any other Person (all and each of
which demands, advertisements and notices are hereby expressly waived to the
maximum extent permitted by the UCC and other applicable law), may forthwith
collect, receive, appropriate and realize upon the Collateral, or any part
thereof, and may forthwith sell, lease, assign, give an option or options to
purchase, or sell or otherwise dispose of and deliver said Collateral (or
contract to do so), or any part thereof, in one or more parcels at public or
private sale or sales, at any exchange or broker's board or at any of the
Administrative Agent's offices or elsewhere at such prices at it may deem best,
for cash or on credit or for future delivery without assumption of any credit
risk. The Administrative Agent shall have the right upon any such public sale or
sales to purchase the whole or any part of said Collateral so sold, free of any
right or equity of redemption, which equity of redemption each Grantor hereby
releases. Each Grantor further agrees, at the Administrative Agent's request, to
assemble the Collateral make it available to the Administrative Agent at places
the Administrative Agent shall reasonably select, whether at such Grantor's
premises or elsewhere. The Administrative Agent shall apply the proceeds of any
such collection, recovery, receipt, appropriation, realization or sale (net of
all expenses incurred by the Administrative Agent in connection therewith,
including attorney's fees and expenses), to the Obligations in any order deemed
appropriate by the Administrative Agent, such Grantor remaining liable for any
deficiency remaining unpaid after such application, and only after so paying
over such net proceeds and after the payment by the Administrative Agent of any
other amount required by any provision of law, including Section 9-615(a)(3) of
the UCC, need the Administrative Agent account for the surplus, if any, to such
Grantor. To the maximum extent permitted by applicable law, each Grantor waives
all claims, damages, and demands against the Administrative Agent and the
Lenders arising out of the repossession, retention or sale of the Collateral
except such as arise out of the gross negligence or willful misconduct of the
Administrative Agent. Each Grantor agrees that the Administrative Agent need not
give more than ten (10) days' notice to the Borrowers (which notification shall
be deemed given when mailed or delivered on an overnight basis, postage prepaid,
addressed to the Borrowers at the address referred to in Section 13.8 (Notices,
Etc.)) of the time and place of any public sale or of the time after which a
private sale may take place and that such notice is reasonable notification of
such matters. The Grantors shall remain liable for any deficiency if the
proceeds of any sale or disposition of the Collateral are insufficient to pay
all amounts to which the Administrative Agent is entitled, the Grantors also
being liable for the fees and expenses of any attorneys employed by the
Administrative Agent to collect such deficiency.
(b) Each Grantor hereby waives presentment, demand, protest or
any notice (to the maximum extent permitted by applicable law) of any kind in
connection with this Agreement or any Collateral.
(c) Pledged Collateral
(i) During the continuance of an Event of Default, if
the Administrative Agent shall give notice of its intent to exercise such
rights to the relevant
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Grantor or Grantors, (A) the Administrative Agent shall have the right to
receive any and all cash dividends, payments or other Proceeds paid in
respect of the Pledged Collateral and make application thereof to the
Obligations in the order set forth herein and (B) the Administrative Agent
or its nominee may exercise (1) all voting, consent, corporate and other
rights pertaining to the Pledged Collateral at any meeting of shareholders,
partners or members, as the case may be, of the relevant issuer or issuers
of Pledged Collateral or otherwise and (2) any and all rights of conversion,
exchange and subscription and any other rights, privileges or options
pertaining to the Pledged Collateral as if it were the absolute owner
thereof (including the right to exchange at its discretion any and all of
the Pledged Collateral upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate structure of
any issuer of Pledged Securities, the right to deposit and deliver any and
all of the Pledged Collateral with any committee, depositary, transfer
agent, registrar or other designated agency upon such terms and conditions
as the Administrative Agent may determine), all without liability except to
account for property actually received by it, but the Administrative Agent
shall have no duty to any Grantor to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or delay in so
doing.
(ii) In order to permit the Administrative Agent to
exercise the voting and other consensual rights it may be entitled to
exercise pursuant hereto and to receive all dividends and other
distributions it may be entitled to receive hereunder, (A) each Grantor
shall promptly execute and deliver (or cause to be executed and delivered)
to the Administrative Agent all such proxies, dividend payment orders and
other instruments as the Administrative Agent may from time to time
reasonably request and (B) without limiting the effect of subclause (i)
above, such Grantor hereby grants to the Administrative Agent an irrevocable
proxy to vote all or any part of the Pledged Collateral and to exercise all
other rights, powers, privileges and remedies to which a holder of the
Pledged Collateral would be entitled (including giving or withholding
written consents of shareholders, partners or members, as the case may be,
calling special meetings of shareholders, partners or members, as the case
may be, and voting at such meetings), which proxy shall be effective,
automatically and without the necessity of any action (including any
transfer of any Pledged Collateral on the record books of the issuer
thereof) by any other person (including the issuer of such Pledged
Collateral or any officer or agent thereof) during the continuance of an
Event of Default and which proxy shall only terminate upon the payment in
full of the Secured Obligations.
(iii) Each Grantor hereby expressly authorizes and
instructs each issuer of any Pledged Collateral pledged hereunder by such
Grantor to (A) comply with any instruction received by it from the
Administrative Agent in writing that (1) states that an Event of Default has
occurred and is continuing and (2) is otherwise in accordance with the terms
of this Agreement, without any other or further instructions from such
Grantor, and each Grantor agrees that such issuer shall be fully protected
in so complying, and (B) unless otherwise expressly permitted hereby, pay
any dividends or other payments with respect to the Pledged Collateral
directly to the Administrative Agent.
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Section 11.8 The Administrative Agent's Appointment as
Attorney-in-Fact
(a) Each Grantor hereby irrevocably constitutes and appoints
the Administrative Agent and any officer or agent thereof, with full power of
substitution, as its and its Subsidiaries true and lawful attorney-in-fact with
full irrevocable power and authority in the place and stead of such Grantor and
in the name of such Grantor, or in its own name, from time to time in the
Administrative Agent's discretion, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action, and to execute and
deliver any and all documents and instruments, that may be necessary and
desirable to accomplish the purposes of this Agreement and the transactions
contemplated hereby, and, without limiting the generality of the foregoing,
hereby give the Administrative Agent the power and right, on behalf of such
Grantor, without notice to or assent by such Grantor to do the following:
(i) to ask, demand, collect, receive and give acquittances
and receipts for any and all moneys due and to become due under any
Collateral and, in the name of such Grantor, its own name or otherwise,
to take possession of, and endorse and collect, any checks, drafts,
notes, acceptances or other Instruments for the payment of moneys due
under any Collateral and to file any claim or to take any other action
or proceeding in any court of law or equity or otherwise deemed
appropriate by the Administrative Agent for the purpose of collecting
any and all such moneys due under any Collateral whenever payable and
to file any claim or to take any other action or proceeding in any
court of law or equity or otherwise deemed appropriate by the
Administrative Agent for the purpose of collecting any and all such
moneys due under any Collateral whenever payable;
(ii) to pay or discharge taxes, liens, security interests or
other encumbrances levied or placed on or threatened against the
Collateral, to effect any repairs or any insurance called for by the
terms of this Agreement and to pay all or any part of the premiums
therefor and the costs thereof; and
(iii) (A) to direct any party liable for any payment under any
of the Collateral to make payment of any and all moneys due and to
become due thereunder directly to the Administrative Agent or as the
Administrative Agent shall direct, (B) to receive payment of and
receipt for any and all moneys, claims and other amounts due and to
become due at any time in respect of or arising out of any Collateral,
(C) to sign and indorse any invoices, freight or express bills, bills
of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications and notices in connection with accounts and
other documents constituting or relating to the Collateral, (D) to
commence and prosecute any suits, actions or proceedings at law or
equity in any court of competent jurisdiction to collect the Collateral
or any part thereof and to enforce any other right in respect of any
Collateral, (E) to defend any suit, action or proceeding brought
against any Grantor with respect to any Collateral of such Grantor, (F)
to settle, compromise or adjust any suit, action or proceeding
described above and, in connection therewith, to give such discharges
or releases as the Administrative Agent may deem appropriate, (G) to
license or, to the extent permitted by an applicable license,
sublicense, whether general, special or otherwise, and whether on an
exclusive or non-exclusive basis, any trademarks, throughout the world
for such term or terms, on such conditions, and in such manner, as the
Administrative Agent shall in its sole discretion determine and (H)
generally to sell, transfer, pledge, make any agreement with respect to
or otherwise deal with any of the
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Collateral as fully and completely as though the Administrative Agent
were the absolute owner thereof for all purposes, and to do, at the
Administrative Agent's option and such Grantor's expense, at any time,
or from time to time, all acts and things the Administrative Agent
reasonably deems necessary to protect, preserve or realize upon the
Collateral and the Administrative Agent's Lien therein, in order to
effect the intent of this Agreement, all as fully and effectively as
such Grantor might do.
(b) The Administrative Agent agrees that it will forbear from
exercising the power of attorney or any rights granted to the Administrative
Agent pursuant to this Section 11.8 (The Administrative Agent's Appointment as
Attorney-in-Fact), except upon the occurrence or during the continuation of an
Event of Default. The Grantors hereby ratify, to the extent permitted by law,
all that said attorneys shall lawfully do or cause to be done by virtue hereof.
Exercise by the Administrative Agent of the powers granted hereunder is not a
violation of the automatic stay provided by Section 362 of the Bankruptcy Code
and each Grantor waives applicability thereof. The power of attorney granted
pursuant to this Section 11.8 (The Administrative Agent's Appointment as
Attorney-in-Fact) is a power coupled with an interest and shall be irrevocable
until the Obligations are indefeasibly paid in full.
(c) The powers conferred on the Administrative Agent hereunder
are solely to protect the Administrative Agent's and the Lenders' interests in
the Collateral and shall not impose any duty upon it to exercise any such
powers. The Administrative Agent shall be accountable only for amounts that it
actually receives as a result of the exercise of such powers, and neither it nor
any of its officers, directors, employees or agents shall be responsible to any
Grantor for any act or failure to act, except for its own gross negligence or
willful misconduct.
(d) Each Grantor also authorizes the Administrative Agent, at
any time and from time to time upon the occurrence and during the continuation
of any Event of Default or as otherwise expressly permitted by this Agreement,
(i) to communicate in its own name or the name of its Subsidiaries with any
party to any Contract with regard to the assignment of the right, title and
interest of such Grantor in and under the Contracts hereunder and other matters
relating thereto and (ii) to execute any endorsements, assignments or other
instruments of conveyance or transfer with respect to the Collateral.
(e) All Obligations shall constitute, in accordance with
Section 364(c)(1) of the Bankruptcy Code, claims against each Borrower and each
other Grantor in its Case that are administrative expense claims having priority
over any all administrative expenses of the kind specified in Sections 503(b) or
507(b) of the Bankruptcy Code.
Section 11.9 Modifications
(a) The Liens, lien priority, administrative priorities and
other rights and remedies granted to the Administrative Agent for the benefit of
the Lenders pursuant to this Agreement, the Interim Order or the Final Order
(including the existence, perfection and priority of the Liens provided herein
and therein and the administrative priority provided herein and therein) shall
not be modified, altered or impaired in any manner by any other financing or
extension of credit or incurrence of Indebtedness by any of the Grantors
(pursuant to Section 364 of the Bankruptcy Code or otherwise), or by any
dismissal or conversion of any of the Cases, or by any other act or omission
whatsoever. Without limitation, notwithstanding any such order, financing,
extension, incurrence, dismissal, conversion, act or omission:
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(i) except for the Carve-Out having priority over the
Obligations, no costs or expenses of administration that have been or
may be incurred in any of the Cases or any conversion of the same or
in any other proceedings related thereto, and no priority claims, are
or shall be prior to or on a parity with any claim of the
Administrative Agent or the Lenders against the Grantors in respect of
any Obligation;
(ii) the Liens granted herein shall constitute valid and
perfected first priority, senior, priming liens and security interests
(subject only to (A) the Carve-Out, (B) valid, perfected, nonavoidable
and enforceable Liens existing as of the Petition Date (other than
Liens securing the Pre-Petition Facility), and (C) Liens permitted
under Section 8.2(d) (Liens, Etc.)) in accordance with subclauses (2)
and (3) of Section 364(c) of the Bankruptcy Code and subclause (1) of
Section 364(d) of the Bankruptcy Code and shall be prior to all other
Liens, now existing or hereafter arising, in favor of any other
creditor or any other Person whatsoever; and
(iii) other than with respect to Liens granted by GNB
hereunder, the Liens granted hereunder shall continue valid and
perfected without the necessity that financing statements be filed or
that any other action be taken under applicable nonbankruptcy law.
(b) Notwithstanding any failure on the part of any Grantor or
the Administrative Agent or the Lenders to perfect, maintain, protect or enforce
the Liens in the Collateral granted hereunder, the Interim Order and the Final
Order (when entered) shall, automatically and without further action by any
Person, perfect such Liens against the Collateral.
ARTICLE XII
THE ADMINISTRATIVE AGENT
Section 12.1 Authorization and Action
(a) Each Lender and each Issuer hereby appoints CUSA as the
Administrative Agent hereunder and each Lender and each Issuer authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement and the other Loan Documents as are delegated
to the Administrative Agent under such agreements and to exercise such powers as
are reasonably incidental thereto. Without limiting the foregoing, each Lender
and each Issuer hereby authorizes the Administrative Agent to execute and
deliver, and to perform its obligations under, each of the Loan Documents to
which the Administrative Agent is a party, to exercise all rights, powers and
remedies that the Administrative Agent may have under such Loan Documents.
(b) As to any matters not expressly provided for by this
Agreement and the other Loan Documents (including enforcement or collection),
the Administrative Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Requisite Lenders, and such instructions shall be binding
upon all Lenders and each Issuer; provided, however, that the Administrative
Agent shall not be required to take any action that (i) the Administrative Agent
in good faith believes exposes it to personal liability
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unless the Administrative Agent receives an indemnification satisfactory to it
from the Lenders and the Issuers with respect to such action or (ii) is contrary
to this Agreement or applicable law. The Administrative Agent agrees to give to
each Lender and each Issuer prompt notice of each notice given to it by any Loan
Party pursuant to the terms of this Agreement or the other Loan Documents.
(c) In performing its functions and duties hereunder and under
the other Loan Documents, the Administrative Agent is acting solely on behalf of
the Lenders and the Issuers and its duties are entirely administrative in
nature. The Administrative Agent does not assume and shall not be deemed to have
assumed any obligation other than as expressly set forth herein and in the other
Loan Documents or any other relationship as the agent, fiduciary or trustee of
or for any Lender, Issuer or holder of any other Obligation. The Administrative
Agent may perform any of its duties under any Loan Document by or through its
agents or employees.
Section 12.2 Administrative Agent's Reliance, Etc.
None of the Administrative Agent, any of its Affiliates or any
of their respective directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it, him, her or them under or in
connection with this Agreement or the other Loan Documents, except for its, his,
her or their own gross negligence or willful misconduct. Without limiting the
foregoing, the Administrative Agent (a) may treat the payee of any Note as its
holder until such Note has been assigned in accordance with Section 13.2
(Assignments and Participations), (b) may rely on the Register to the extent set
forth in Section 13.2(c) (Assignments and Participations), (c) may consult with
legal counsel (including counsel to the Borrowers or any other Loan Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts, (d) makes no
warranty or representation to any Lender or Issuer and shall not be responsible
to any Lender or Issuer for any statements, warranties or representations made
by or on behalf of any Borrower or any of its Subsidiaries in or in connection
with this Agreement or any other Loan Document, (e) shall not have any duty to
ascertain or to inquire either as to the performance or observance of any term,
covenant or condition of this Agreement or any other Loan Document, as to the
financial condition of any Loan Party or as to the existence or possible
existence of any Default or Event of Default, (f) shall not be responsible to
any Lender or Issuer for the due execution, legality, validity, enforceability,
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, this
Agreement, any other Loan Document or any other instrument or document furnished
pursuant hereto or thereto and (g) shall incur no liability under or in respect
of this Agreement or any other Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which writing may be a telecopy or
electronic mail) or any telephone message believed by it to be genuine and
signed or sent by the proper party or parties.
Section 12.3 The Administrative Agent Individually
With respect to its Ratable Portion, CUSA shall have and may
exercise the same rights and powers hereunder and is subject to the same
obligations and liabilities as and to the extent set forth herein for any other
Lender. The terms "Lenders", "Revolving Credit Lenders", "Term Loan Lenders",
"Requisite Lenders" and any similar terms shall, unless the context clearly
otherwise indicates, include, without limitation, the Administrative Agent in
its individual capacity as a Lender, a Revolving Credit Lender, a Term Loan
Lender or as one of the Requisite
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Lenders. CUSA and its Affiliates may accept deposits from, lend money to, and
generally engage in any kind of banking, trust or other business with, any Loan
Party as if CUSA were not acting as the Administrative Agent.
Section 12.4 Lender Credit Decision
Each Lender and each Issuer acknowledges that it shall,
independently and without reliance upon the Administrative Agent or any other
Lender conduct its own independent investigation of the financial condition and
affairs of each Borrower and each other Loan Party in connection with the making
and continuance of the Loans and with the issuance of the Letters of Credit.
Each Lender and each Issuer also acknowledges that it shall, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement and other Loan Documents.
Section 12.5 Indemnification
Each Lender agrees to indemnify the Administrative Agent and
each of its Affiliates, and each of their respective directors, officers,
employees, agents and advisors (to the extent not reimbursed by the Borrowers),
from and against such Lender's aggregate Ratable Portion of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses and disbursements (including fees, expenses and disbursements of
financial and legal advisors) of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against, the Administrative Agent or any of
its Affiliates, directors, officers, employees, agents and advisors in any way
relating to or arising out of this Agreement or the other Loan Documents or any
action taken or omitted by the Administrative Agent under this Agreement or the
other Loan Documents; provided, however, that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's or such Affiliate's gross negligence or willful
misconduct. Without limiting the foregoing, each Lender agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including fees, expenses and disbursements of financial
and legal advisors) incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of its rights or responsibilities under, this
Agreement or the other Loan Documents, to the extent that the Administrative
Agent is not reimbursed for such expenses by any Borrower or another Loan Party.
Section 12.6 Successor Administrative Agent
The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Company. Upon any such
resignation, the Requisite Lenders shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Requisite Lenders, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, selected from among the
Lenders. In either case, such appointment shall be subject to the prior written
approval of the Company (which approval may not be unreasonably withheld and
shall not be required upon the occurrence and during the continuance of an Event
of Default). Upon the acceptance of any appointment as Administrative Agent by a
successor Administrative
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Agent, such successor Administrative Agent shall succeed to, and become vested
with, all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement and the other Loan
Documents. Prior to any retiring Administrative Agent's resignation hereunder as
Administrative Agent, 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. After such
resignation, the retiring Administrative Agent shall continue to have the
benefit of this Article XII as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement and the other Loan
Documents.
Section 12.7 Concerning the Collateral
(a) Each Lender and each Issuer agrees that any action taken by
the Administrative Agent or the Requisite Lenders (or, where required by the
express terms of this Agreement, a greater proportion of the Lenders) in
accordance with the provisions of this Agreement or of the other Loan Documents,
and the exercise by the Administrative Agent or the Requisite Lenders (or, where
so required, such greater proportion) of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Lenders, Issuers and other Secured
Parties. Without limiting the generality of the foregoing, the Administrative
Agent shall have the sole and exclusive right and authority to (i) act as the
disbursing and collecting agent for the Lenders and the Issuers with respect to
all payments and collections arising in connection herewith, (ii) act as
collateral agent for the Lenders, the Issuers and the other Secured Parties for
purposes of the perfection of all security interests and Liens created by this
Agreement and all other purposes stated herein, provided, however, that the
Administrative Agent hereby appoints, authorizes and directs each Lender and
Issuer to act as collateral sub-agent for the Administrative Agent, the Lenders
and the Issuers for purposes of the perfection of all security interests and
Liens with respect to the Borrowers' and its Subsidiaries' respective Deposit
Accounts maintained with, and cash and Cash Equivalents held by, such Lender or
such Issuer, (iv) manage, supervise and otherwise deal with the Collateral, (v)
take such action as is necessary or desirable to maintain the perfection and
priority of the security interests and Liens created or purported to be created
by this Agreement, and (vi) except as may be otherwise specifically restricted
by the terms hereof or of any other Loan Document, exercise all remedies given
to the Administrative Agent, the Lenders, the Issuers and the other Secured
Parties with respect to the Collateral under the Loan Documents relating
thereto, applicable law or otherwise.
(b) Each of the Lenders and the Issuers hereby directs, in
accordance with the terms hereof, the Administrative Agent to release (or, in
the case of clause (ii) below, release or subordinate) any Lien held by the
Administrative Agent for the benefit of the Lenders and the Issuers against any
of the following:
(i) all of the Collateral, upon termination of the
Commitments and payment and satisfaction in full of all Loans,
Reimbursement Obligations and all other Obligations (other than
contingent indemnification obligations not then due and payable which
survive the repayment of the Loans and termination of the Commitments)
that the Administrative Agent has been notified in writing are then
due and payable (and, in respect of contingent Letter of Credit
Obligations, with respect to which cash collateral has been deposited
or a back-up letter of credit has been issued, in either case on terms
satisfactory to the Administrative Agent and the applicable Issuers);
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(ii) any assets that are subject to a Lien permitted by
clause (c) or (d) of Section 8.2 (Liens, Etc.); and
(iii) any part of the Collateral sold or disposed of by a
Loan Party if such sale or disposition is permitted by this Agreement
(or permitted pursuant to a waiver or consent of a transaction
otherwise prohibited by this Agreement) or, if not pursuant to such
sale or disposition, against Collateral with a book value of up to
$1,000,000, if such release is consented to by the Administrative
Agent, or any part of the Collateral in excess of such amount, if such
release is consented to by the Lenders.
Each of the Lenders and the Issuers hereby directs the Administrative Agent to
execute and deliver or file such termination and partial release statements and
do such other things as are necessary to release Liens to be released pursuant
to this Section 12.7 (Concerning the Collateral) promptly upon the effectiveness
of any such release.
Section 12.8 Collateral Matters Relating to Related Obligations
The benefit of the Loan Documents and of the provisions of this
Agreement relating to the Collateral shall extend to and be available in respect
of any Secured Obligation arising under any Hedging Contract or that is
otherwise owed to Persons other than the Administrative Agent, the Lenders and
the Issuers (collectively, "Related Obligations") solely on the condition and
understanding, as among the Administrative Agent and all Secured Parties, that
(a) the Related Obligations shall be entitled to the benefit of the Loan
Documents and the Collateral to the extent expressly set forth in this Agreement
and the other Loan Documents and to such extent the Administrative Agent shall
hold, and have the right and power to act with respect to, the Guaranty and the
Collateral on behalf of and as agent for the holders of the Related Obligations,
but the Administrative Agent is otherwise acting solely as agent for the Lenders
and the Issuers and shall have no fiduciary duty, duty of loyalty, duty of care,
duty of disclosure or other obligation whatsoever to any holder of Related
Obligations, (b) all matters, acts and omissions relating in any manner to the
Guaranty, the Collateral, or the omission, creation, perfection, priority,
abandonment or release of any Lien, shall be governed solely by the provisions
of this Agreement and the other Loan Documents and no separate Lien, right,
power or remedy shall arise or exist in favor of any Secured Party under any
separate instrument or agreement or in respect of any Related Obligation, (c)
each Secured Party shall be bound by all actions taken or omitted, in accordance
with the provisions of this Agreement and the other Loan Documents, by the
Administrative Agent and the Requisite Lenders, each of whom shall be entitled
to act at its sole discretion and exclusively in its own interest given its own
Commitments and its own interest in the Loans, Letter of Credit Obligations and
other Obligations to it arising under this Agreement or the other Loan
Documents, without any duty or liability to any other Secured Party or as to any
Related Obligation and without regard to whether any Related Obligation remains
outstanding or is deprived of the benefit of the Collateral or becomes unsecured
or is otherwise affected or put in jeopardy thereby, (d) no holder of Related
Obligations and no other Secured Party (except the Administrative Agent, the
Lenders and the Issuers, to the extent set forth in this Agreement) shall have
any right to be notified of, or to direct, require or be heard with respect to,
any action taken or omitted in respect of the Collateral or under this Agreement
or the Loan Documents and (e) no holder of any Related Obligation shall exercise
any right of setoff, banker's lien or similar right except as expressly provided
in Section 13.6 (Right of Set-off).
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ARTICLE XIII
MISCELLANEOUS
Section 13.1 Amendments, Waivers, Etc.
(a) No amendment or waiver of any provision of this Agreement
or any other Loan Document nor consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Requisite Lenders (or by the Administrative Agent with the
consent of the Requisite Lenders) and, in the case of any amendment, by the
Borrowers, and then any such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by each Lender directly affected thereby, in addition to the Requisite
Lenders (or the Administrative Agent with the consent thereof), do any of the
following:
(i) waive any condition specified in Section 3.1
(Conditions Precedent to Initial Loans and Letters of Credit) or
Section 3.2(b) (Conditions Precedent to Each Loan and Letter of
Credit), except with respect to a condition based upon another
provision hereof, the waiver of which requires only the concurrence of
the Requisite Lenders and, in the case of the conditions specified in
Section 3.1 (Conditions Precedent to Initial Loans and Letters of
Credit), subject to the provisions of Section 3.3 (Determinations of
Initial Borrowing Conditions);
(ii) increase the Commitment of such Lender or subject
such Lender to any additional obligation; provided, however, that any
such increase in either Commitment shall require the consent of the
Requisite Lenders;
(iii) increase the Foreign Sublimit or the Foreign
Revolving Credit Facility;
(iv) extend the scheduled final maturity of any Loan
owing to such Lender, or waive, reduce or postpone any scheduled date
fixed for the payment or reduction of principal of any such Loan (it
being understood that Section 2.9 (Mandatory Prepayments) does not
provide for scheduled dates fixed for payment) or for the reduction of
such Lender's Revolving Credit Commitment;
(v) reduce the principal amount of any Loan or
Reimbursement Obligation owing to such Lender (other than by the
payment or prepayment thereof);
(vi) reduce the rate of interest on any Loan or
Reimbursement Obligations outstanding to such Lender or any fee
payable hereunder to such Lender;
(vii) postpone any scheduled date fixed for payment of
such interest or fees owing to such Lender;
(viii) change the aggregate Ratable Portions of Lenders
required for any or all Lenders to take any action hereunder;
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(ix) release all or substantially all of the Collateral, or
subordinate any Lien in favor of the Administrative Agent on the
Collateral, in each case except as provided in Section 12.7(b)
(Concerning the Collateral), or release any Borrower from its payment
obligation to such Lender under this Agreement or the Notes owing to
such Lender (if any) or release any Guarantor from its obligations
under any Loan Document except in connection with sale or other
disposition of a Guarantor (or all or substantially all of the assets
thereof) permitted by this Agreement (or permitted pursuant to a
waiver or consent of a transaction otherwise prohibited by this
Agreement); or
(x) amend Section 12.7(b) (Concerning the Collateral),
this Section 13.1 (Amendments, Waivers, Etc.) or any definition of the
terms "Domestic Advance Rate," "Foreign Advance Rate," "Requisite
Lenders", "Ratable Portion" or "Super-Majority Lenders";
and provided, further, that (u) no amendment, waiver or consent shall, unless in
writing and signed by the Super-Majority Lenders, amend the definition of the
term "Liquidity Test"; (v) no amendment, waiver or consent shall, unless in
writing and signed by the Swing Loan Lender, in addition to the Requisite
Lenders, amend, modify or waive any provision of Section 2.3 (Swing Loans); (w)
no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent, in addition to the Requisite Lenders, subject to the
limitations set forth in the Orders (i) amend the definition of the terms "US
Liquidity" or "Euro Liquidity", (ii) waive the Event of Default contained in
Section 9.1(p) (Events of Default), (iii) permit the payment by the Borrowers of
any pre-petition Claim in excess of the aggregate pre-petition Claims approved
for payment by the Lenders pursuant to the First Day Orders filed with the
Bankruptcy Court on the Closing Date, (iv) waive compliance by the Borrowers
with Section 7.14 (Plan of Reorganization), or (v) amend, modify or otherwise
supplement, or waive any provisions under, the Intercreditor Agreement; (y) no
amendment, waiver or consent shall, unless in writing and signed by any Special
Purpose Vehicle that has been granted an option pursuant to Section 13.2(f)
(Assignments and Participations), in addition to the Requisite Lenders, affect
the grant or nature of such option or the right or duties of such Special
Purpose Vehicle hereunder and (z) no amendment, waiver or consent shall, unless
in writing and signed by the Administrative Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or the other Loan Documents.
(b) The Administrative Agent may, but shall have no obligation
to, with the written concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of such Lender. Any waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given. No notice to or demand on any Borrower in any
case shall entitle such Borrower to any other or further notice or demand in
similar or other circumstances.
Section 13.2 Assignments and Participations
Each Lender may sell, transfer, negotiate or assign to one or
more Eligible Assignees all or a portion of its rights and obligations hereunder
(including all of its rights and obligations with respect to the Revolving
Loans, the Term Loans, the Swing Loans and the Letters of Credit); provided,
however, that (i) (A) if any such assignment shall be of the assigning Lender's
Revolving Credit Outstandings and Revolving Credit Commitments or Term Loan
Outstanding, such assignment shall cover the same percentage of such Lender's
Revolving Credit Outstandings and Revolving Credit Commitments and (B) if any
such assignment shall be of the
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assigning Lender's Term Loans and related Term Loan Commitment, such assignment
shall cover the same percentage of such Lender's Term Loans and related Term
Loan Commitment, (ii) the aggregate amount being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event (if less than the Assignor's
entire interest) be less than $5,000,000 or an integral multiple of $1,000,000
in excess thereof, except, in either case, (A) with the consent of the Company
and the Administrative Agent or (B) if such assignment is being made to a Lender
or an Affiliate or Approved Fund of such Lender and (iii) if such Eligible
Assignee is not, prior to the date of such assignment, a Lender or an Affiliate
or Approved Fund of a Lender, such assignment shall be subject to the prior
consent of the Administrative Agent and the Company (which consent shall not be
unreasonably withheld or delayed); and provided, further, that, notwithstanding
any other provision of this Section 13.2 (Assignments and Participations), the
consent of the Company shall not be required for any assignment occurring when
any Event of Default shall have occurred and be continuing.
(b) The parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording, an
Assignment and Acceptance, together with any Note (if the assigning Lender's
Loans are evidenced by a Note) subject to such assignment. Upon the execution,
delivery, acceptance and recording of any Assignment and Acceptance and the
receipt by the Administrative Agent from the assignee of an assignment fee in
the amount of $3,500 from and after the effective date specified in such
Assignment and Acceptance, (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 and Acceptance,
have the rights and obligations of a Lender and, if such Lender were an Issuer,
of such Issuer hereunder and thereunder and (ii) the assignor thereunder shall,
to the extent that rights and obligations under this Agreement have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
(except for those surviving 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 and Acceptance 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).
(c) The Administrative Agent shall maintain at its address
referred to in Section 13.8 (Notices, Etc.) a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the recording of
the names and addresses of the Lenders and the Commitments of and principal
amount of the Loans and Letter of Credit Obligations owing to each Lender from
time to time (the "Register"). Any assignment pursuant to this Section 13.2
(Existing Indebtedness) shall not be effective until such assignment is recorded
in the Register. The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and the Loan Parties, the Administrative
Agent and the Lenders may treat each Person whose name is recorded in the
Register as a Lender for all purposes of this Agreement. The Register shall be
available for inspection by the Company, the Administrative Agent or any Lender
at any reasonable time and from time to time upon reasonable prior notice.
(d) Notwithstanding anything to the contrary contained in
clause (b) above, the Loans (including the Notes evidencing such Loans) are
registered obligations and the right, title, and interest of the Lenders and
their assignees in and to such Loans shall be transferable only upon notation of
such transfer in the Register. A Note shall only evidence the Lender's or an
assignee's right, title and interest in and to the related Loan, and in no event
is any such Note to
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be considered a bearer instrument or obligation. This Section 13.2 (Assignments
and Participations) shall be construed so that the Loans are at all times
maintained in "registered form" within the meaning of Sections 163(f), 871(h)(2)
and 881(c)(2) of the Internal Revenue Code and any related regulations (or any
successor provisions of the Internal Revenue Code or such regulations). Solely
for purposes of this and for tax purposes only, the Administrative Agent shall
act as the Borrower's agent for purposes of maintaining such notations of
transfer in the Register.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee, the Administrative Agent shall, if such
Assignment and Acceptance has been completed, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Company. Within five Business Days after
its receipt of such notice, the Company, at its own expense, shall, if requested
by such assignee, execute and deliver to the Administrative Agent, new Notes to
the order of such assignee in an amount equal to the Commitments assumed by it
pursuant to such Assignment and Acceptance and, if the assigning Revolving
Credit Lender has surrendered any Note for exchange in connection with the
assignment and has retained Commitments hereunder, new Notes to the order of the
assigning Lender in an amount equal to the Commitments retained by it hereunder.
Such new Notes shall be dated the same date as the surrendered Notes and be in
substantially the form of Exhibit B-1 (Form of Revolving Credit Note) or Exhibit
B-2 (Form of Term Loan Note), as the case may be.
(f) In addition to the other assignment rights provided in this
Section 13.2 (Assignments and Participations), each Lender may (i) grant to a
Special Purpose Vehicle 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 any such Special Purpose Vehicle and the making of Loans pursuant
thereto shall satisfy (once and to the extent that such Loans are made) the
obligation of such Lender to make such Loans thereunder, provided, however, that
nothing herein shall constitute a commitment or an offer to commit by such a
Special Purpose Vehicle to make Loans hereunder and no such Special Purpose
Vehicle shall be liable for any indemnity or other Obligation (other than the
making of Loans for which such Special Purpose Vehicle shall have exercised an
option, and then only in accordance with the relevant option agreement), and
(ii) assign, as collateral or otherwise, 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 (x) any Federal Reserve Bank pursuant to
Regulation A of the Federal Reserve Board without notice to or consent of the
Borrowers or the Administrative Agent, (y) any trustee for the benefit of the
holders of such Lender's Securities and (z) to any Special Purpose Vehicle to
which such Lender has granted an option pursuant to clause (i) above; and
provided, further, that no such assignment or grant shall release such Lender
from any of its obligations hereunder except as expressly provided in clause (i)
above. Each party hereto acknowledges and agrees that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior debt of any such Special Purpose Vehicle, such party shall
not institute against, or join any other Person in instituting against, any
Special Purpose Vehicle that has been granted an option pursuant to this clause
(f) any bankruptcy, reorganization, insolvency or liquidation proceeding (such
agreement shall survive the payment in full of the Obligations).
(g) Each Lender may 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,
the Term Loans and Letters of Credit). The
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terms of such participation shall not, in any event, require the participant's
consent to any amendments, waivers or other modifications of any provision of
any Loan Documents, the consent to any departure by any Loan Party therefrom, or
to the exercising or refraining from exercising any powers or rights such Lender
may have under or in respect of the Loan Documents (including the right to
enforce the obligations of the Loan Parties), except if any such amendment,
waiver or other modification or consent would (i) reduce the amount, or postpone
any date fixed for, any amount (whether of principal, interest or fees) payable
to such participant under the Loan Documents, to which such participant would
otherwise be entitled under such participation or (ii) result in the release of
all or substantially all of the Collateral other than in accordance with Section
12.7(b) (Concerning the Collateral). In the event of the sale of any
participation by any Lender, (w) such Lender's obligations under the Loan
Documents shall remain unchanged, (x) such Lender shall remain solely
responsible to the other parties for the performance of such obligations, (y)
such Lender shall remain the holder of such Obligations for all purposes of this
Agreement and (z) the Borrowers, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. Each participant
shall be entitled to the benefits of Section 2.15 (Capital Adequacy) and Section
2.16 (Taxes) and of Section 2.14(d) (Illegality) as if it were a Lender;
provided, however, that anything herein to the contrary notwithstanding, no
Borrower shall, at any time, be obligated to make under Section 2.15 (Capital
Adequacy) or Section 2.16 (Taxes) or Section 2.14(d) (Illegality) to the
participants in the rights and obligations of any Lender (together with such
Lender) any payment in excess of the amount the Borrowers would have been
obligated to pay to such Lender in respect of such interest had such
participation not been sold.
(h) Any Issuer may at any time assign its rights and
obligations hereunder to any other Lender by an instrument in form and substance
satisfactory to the Company, the Administrative Agent, such Issuer and such
Lender. If any Issuer ceases to be a Lender hereunder by virtue of any
assignment made pursuant to this Section 13.2 (Assignments and Participations),
then, as of the effective date of such cessation, such Issuer's obligations to
Issue Letters of Credit pursuant to Section 2.4 (Letters of Credit) shall
terminate and such Issuer shall be an Issuer hereunder only with respect to
outstanding Letters of Credit issued prior to such date.
Section 13.3 Costs and Expenses
(a) Each Borrower and each Domestic Guarantor jointly and
severally agree upon demand to pay, or reimburse the Administrative Agent, the
Collateral Monitoring Agent and the Arrangers for, all of the Administrative
Agent's, the Collateral Monitoring Agent's and the Arrangers' reasonable
internal and external audit, legal, appraisal, valuation, filing, document
duplication and reproduction and investigation expenses and for all other
reasonable out-of-pocket costs and expenses of every type and nature (including,
without limitation, the reasonable fees, expenses and disbursements of the
Administrative Agent's counsel, Weil, Gotshal & Xxxxxx LLP, local legal counsel,
auditors, accountants, appraisers, printers, insurance and environmental
advisors, and other consultants and agents) incurred by any of them in
connection with any of the following: (i) the Administrative Agent's and the
Collateral Monitoring Agent's audit and investigation of the Borrowers and their
Subsidiaries in connection with the preparation, negotiation or execution of any
Loan Document or the Administrative Agent's periodic audits of the Borrowers or
any of their Subsidiaries, as the case may be, (ii) the preparation,
negotiation, execution or interpretation of this Agreement (including, without
limitation, the satisfaction or attempted satisfaction of any condition set
forth in Article III (Conditions To Loans and Letters of
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Credit)), any Loan Document or any proposal letter or commitment letter issued
in connection therewith, or the making of the Loans hereunder, (iii) the
creation, perfection or protection of the Liens under any Loan Document
(including any reasonable fees, disbursements and expenses for local counsel in
various jurisdictions), (iv) the ongoing administration of this Agreement and
the Loans, including consultation with attorneys in connection therewith and
with respect to any of their rights and responsibilities hereunder and under the
other Loan Documents, (v) the protection, collection or enforcement of any
Obligation or the enforcement of any Loan Document, (vi) the commencement,
defense or intervention in any court proceeding relating in any way to the
Obligations, any Loan Party, any of the Borrowers' Subsidiaries, this Agreement
or any other Loan Document, (vii) the response to, and preparation for, any
subpoena or request for document production with which any of them is served or
deposition or other proceeding in which any of them is called to testify, in
each case, relating in any way to the Obligations, any Loan Party, any of the
Borrowers' Subsidiaries, this Agreement or any other Loan Document or (viii) any
amendment, consent, waiver, assignment, restatement, or supplement to any Loan
Document or the preparation, negotiation, and execution of the same.
(b) Each Borrower and each Domestic Guarantor jointly and severally
further agree to pay or reimburse the Administrative Agent, the Collateral
Monitoring Agent and each of the Lenders and Issuers upon demand for all
out-of-pocket costs and expenses, including, without limitation, reasonable
attorneys' fees (including allocated costs of internal counsel and costs of
settlement), incurred by the Administrative Agent, the Collateral Monitoring
Agent, such Lenders or Issuers in connection with any of the following: (i) in
enforcing any Loan Document or Obligation or any security therefor or exercising
or enforcing any other right or remedy available by reason of an Event of
Default, (ii) in connection with any refinancing or restructuring of the credit
arrangements provided hereunder in the nature of a "work-out" or in any
insolvency or bankruptcy proceeding, (iii) in commencing, defending or
intervening in any litigation or in filing a petition, complaint, answer, motion
or other pleadings in any legal proceeding relating to the Obligations, any Loan
Party, any of the Borrower's Subsidiaries and related to or arising out of the
transactions contemplated hereby or by any other Loan Document or Related
Document or (iv) in taking any other action in or with respect to any suit or
proceeding (bankruptcy or otherwise) described in clause (i), (ii) or (iii)
above.
Section 13.4 Indemnities
(a) The Borrowers and the Domestic Guarantors jointly and severally
agree to indemnify and hold harmless the Administrative Agent, the Collateral
Monitoring Agent, the Arrangers, each Lender and each Issuer and each of their
respective Affiliates, and each of the directors, officers, employees, agents,
representative, attorneys, consultants and advisors of or to any of the
foregoing (including those retained in connection with the satisfaction or
attempted satisfaction of any condition set forth in Article III (Conditions To
Loans And Letters Of Credit)) (each such Person being an "Indemnitee") from and
against any and all claims, damages, liabilities, obligations, losses,
penalties, actions, judgments, suits, costs, disbursements and expenses of any
kind or nature (including fees, disbursements and expenses of financial and
legal advisors to any such Indemnitee) that may be imposed on, incurred by or
asserted against any such Indemnitee in connection with or arising out of any
investigation, litigation or proceeding, whether or not any such Indemnitee is a
party thereto, whether direct, indirect, or consequential and whether based on
any federal, state or local law or other statutory regulation, securities or
commercial law or regulation, or under common law or in equity, or on contract,
tort or otherwise, in any manner relating to or arising out of this Agreement,
any other Loan Document,
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any Obligation, any Letter of Credit, any Disclosure Document, or any act, event
or transaction related or attendant to any thereof, or the use or intended use
of the proceeds of the Loans or Letters of Credit or in connection with any
investigation of any potential matter covered hereby (collectively, the
"Indemnified Matters"); provided, however, that no Borrower or Domestic
Guarantor shall have any obligation under this Section 13.4 (Indemnities) to an
Indemnitee with respect to any Indemnified Matter caused by or resulting from
the gross negligence or willful misconduct of that Indemnitee, as determined by
a court of competent jurisdiction in a final non-appealable judgment or order.
Without limiting the foregoing, "Indemnified Matters" include (i) all
Environmental Liabilities and Costs arising from or connected with the past,
present or future operations of any Borrower or any of its Subsidiaries
involving any property subject to a Loan Document, or damage to real or personal
property or natural resources or harm or injury alleged to have resulted from
any Release of Contaminants on, upon or into such property or any contiguous
real estate, (ii) any costs or liabilities incurred in connection with any
Remedial Action concerning any Borrower or any of its Subsidiaries, (iii) any
costs or liabilities incurred in connection with any Environmental Lien and (iv)
any costs or liabilities incurred in connection with any other matter under any
Environmental Law, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (49 U.S.C. ss. 9601 et seq.) and
applicable state property transfer laws, whether, with respect to any such
matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a
mortgagee in possession, the successor in interest to any Borrower or any of its
Subsidiaries, or the owner, lessee or operator of any property of any Borrower
or any of its Subsidiaries by virtue of foreclosure, except, with respect to
those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the
extent (x) incurred following foreclosure by the Administrative Agent, any
Lender or any Issuer, or the Administrative Agent, any Lender or any Issuer
having become the successor in interest to any Borrower or any of its
Subsidiaries and (y) attributable solely to acts of the Administrative Agent,
such Lender or such Issuer or any agent on behalf of the Administrative Agent,
such Lender or such Issuer.
(b) Each Borrower and each Domestic Guarantor shall indemnify the
Administrative Agent, the Lenders and each Issuer for, and hold the
Administrative Agent, the Lenders and each Issuer harmless from and against, any
and all claims for brokerage commissions, fees and other compensation made
against the Administrative Agent, the Lenders and the Issuers for any broker,
finder or consultant with respect to any agreement, arrangement or understanding
made by or on behalf of any Loan Party or any of its Subsidiaries in connection
with the transactions contemplated by this Agreement.
(c) The Borrowers and the Domestic Guarantors, at the request of any
Indemnitee, shall have the joint and several obligation to defend against such
investigation, litigation or proceeding or requested Remedial Action and the
Borrowers and the Domestic Guarantors, in any event, may participate in the
defense thereof with legal counsel of the Borrowers' choice. In the event that
such Indemnitee requests the Borrowers and the Domestic Guarantors to defend
against such investigation, litigation or proceeding or requested Remedial
Action, the Borrowers and the Domestic Guarantors shall promptly do so and such
Indemnitee shall have the right to have legal counsel of its choice participate
in such defense. No action taken by legal counsel chosen by such Indemnitee in
defending against any such investigation, litigation or proceeding or requested
Remedial Action, shall vitiate or in any way impair the Borrowers' and the
Domestic Guarantors' obligation and duty hereunder to indemnify and hold
harmless such Indemnitee.
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(d) The Borrowers and the Domestic Guarantors jointly and severally
agree that any indemnification or other protection provided to any Indemnitee
pursuant to this Agreement (including pursuant to this Section 13.4
(Indemnities)) or any other Loan Document shall (i) survive payment in full of
the Obligations and (ii) inure to the benefit of any Person that was at any time
an Indemnitee under this Agreement or any other Loan Document.
Section 13.5 Limitation of Liability
Each Borrower and each Domestic Guarantor agrees that no Indemnitee
shall have any liability (whether direct or indirect, in contract, tort or
otherwise) to any Loan Party or any of their respective Subsidiaries or any of
their respective equity holders or creditors for or in connection with the
transactions contemplated hereby and in the other Loan Documents, except for
direct damages (as opposed to special, indirect, consequential or punitive
damages (including, without limitation, any loss of profits, business or
anticipated savings)) determined in a final non-appealable judgment by a court
of competent jurisdiction to have resulted from such Indemnitee's gross
negligence or willful misconduct. Each Borrower and each Domestic Guarantor
hereby waives, releases and agrees (each for itself and on behalf of its
Subsidiaries) 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 13.6 Right of Set-off
Upon the occurrence and during the continuance of any Event of Default
each Lender and each Affiliate of a Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender or its
Affiliates to or for the credit or the account of any Borrower or any Domestic
Guarantor against any and all of the Obligations now or hereafter existing
whether or not such Lender shall have made any demand under this Agreement or
any other Loan Document and even though such Obligations may be unmatured. Each
Lender agrees promptly to notify the Company after any such set-off 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 set-off and
application. The rights of each Lender under this Section 13.6 (Right of
Set-off) are in addition to the other rights and remedies (including other
rights of set-off) that such Lender may have.
Section 13.7 Sharing of Payments, Etc.
(a) If any Lender obtains any payment (whether voluntary, involuntary,
through the exercise of any right of set-off or otherwise) of the Loans owing to
it, any interest thereon, fees in respect thereof or amounts due pursuant to
Section 13.3 (Costs and Expenses) or Section 13.4 (Indemnities) (other than
payments pursuant to Section 2.14 (Special Provisions Governing Eurodollar Rate
Loans), Section 2.15 (Capital Adequacy) or Section 2.16 (Taxes)) in excess of
its Ratable Portion of all payments of such Obligations obtained by all the
Lenders, such Lender (a "Purchasing Lender") shall forthwith purchase from the
other Lenders (each, a "Selling Lender") such participations in their Loans or
other Obligations as shall be necessary to cause such Purchasing Lender to share
the excess payment ratably with each of them.
(b) If all or any portion of any payment received by a Purchasing
Lender is thereafter recovered from such Purchasing Lender, such purchase from
each Selling Lender shall be rescinded and such Selling Lender shall repay to
the Purchasing Lender the purchase price to
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the extent of such recovery together with an amount equal to such Selling
Lender's ratable share (according to the proportion of (i) the amount of such
Selling Lender's required repayment in relation to (ii) the total amount so
recovered from the Purchasing Lender) of any interest or other amount paid or
payable by the Purchasing Lender in respect of the total amount so recovered.
(c) The Borrowers and the Domestic Guarantors jointly and severally
agree that any Purchasing Lender so purchasing a participation from a Selling
Lender pursuant to this Section 13.7 (Sharing of Payments, Etc.) may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrowers in the amount of such
participation.
Section 13.8 Notices, Etc.
All notices, demands, requests and other communications provided for in
this Agreement shall be given in writing, or by any telecommunication device
capable of creating a written record (including electronic mail), and addressed
to the party to be notified as follows:
(a) if to the Borrowers or the Domestic Guarantors:
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000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Treasurer
Telecopy no: (000) 000-0000
E-Mail Address:
with a copy to:
XXXXXXXX & XXXXX
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx
Attention: Xxxxxx Xxxxxxx
Telecopy no: (000) 000-0000
E-Mail Address: xxxxxx_xxxxxxx@xxxxxxx.xxxxxxxx.xxx
(b) if to any Lender, at its Domestic Lending Office specified opposite
its name on Schedule II (Applicable Lending Offices and Addresses for Notices)
or on the signature page of any applicable Assignment and Acceptance;
(c) if to any Issuer, at the address set forth under its name on
Schedule II (Applicable Lending Offices and Addresses for Notices); and
(d) if to the Administrative Agent or the Swing Loan Lender:
CITICORP USA, INC.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy no: (000) 000-0000
E-Mail Address: xxxxxxx.x.xxxxxx@xxxx.xxx
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with a copy to:
WEIL, GOTSHAL & XXXXXX LLP
000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy no: (000) 000-0000
E-Mail Address: xxxxxxx.xxxxxxxx@xxxx.xxx
or at such other address as shall be notified in writing (x) in the case of the
Borrowers and the Domestic Guarantors, the Administrative Agent and the Swing
Loan Lender, to the other parties and (y) in the case of all other parties, to
the Borrowers and the Administrative Agent. All such notices and communications
shall be effective upon personal delivery (if delivered by hand, including any
overnight courier service), when deposited in the mails (if sent by mail), or
when properly transmitted (if sent by a telecommunications device or through the
Internet); provided, however, that notices and communications to the
Administrative Agent pursuant to Article II (The Facilities) or Article XII (The
Administrative Agent) shall not be effective until received by the
Administrative Agent.
Section 13.9 No Waiver; Remedies
No failure on the part of any Lender, Issuer or the Administrative
Agent 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. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 13.10 Binding Effect
This Agreement shall become effective when it shall have been executed
by each Borrower and the Administrative Agent and when the Administrative Agent
shall have been notified by each Lender and Issuer that such Lender or Issuer
has executed it and thereafter shall be binding upon and inure to the benefit of
each Borrower, the Administrative Agent and each Lender and Issuer and, in each
case, their respective successors and assigns; provided, however, that no
Borrower shall have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders.
Section 13.11 Governing Law
This Agreement and the rights and obligations of the parties hereto
shall be governed by, and construed and interpreted in accordance with, the law
of the State of New York, and to the extent controlling, the laws of the United
States of America.
Section 13.12 Submission to Jurisdiction; Service of Process
(a) Any legal action or proceeding with respect to this Agreement or
any other Loan Document shall be brought in the Bankruptcy Court, and, by
execution and delivery of this Agreement, each Borrower hereby accepts for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of the Bankruptcy Court. The parties hereto hereby irrevocably
waive any objection, including any objection to the laying of venue or based on
the grounds of
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forum non conveniens, that any of them may now or hereafter have to the bringing
of any such action or proceeding in such jurisdiction.
(b) Each Borrower hereby irrevocably consents to the service of any
and all legal process, summons, notices and documents in any suit, action or
proceeding brought in the United States of America arising out of or in
connection with this Agreement or any other Loan Document by the mailing (by
registered or certified mail, postage prepaid) or delivering of a copy of such
process to the Borrowers at the address specified in Section 13.8 (Notices,
Etc.). Each Borrower 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.
(c) Nothing contained in this Section 13.12 (Submission to
Jurisdiction; Service of Process) shall affect the right of the Administrative
Agent or any Lender to serve process in any other manner permitted by law or
commence legal proceedings or otherwise proceed against any Borrower or any
other Loan Party in any other jurisdiction.
(d) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in Dollars into another currency, the
parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase Dollars with such
other currency at the spot rate of exchange quoted by the Administrative Agent
at 11:00 a.m. (New York time) on the Business Day preceding that on which final
judgment is given, for the purchase of Dollars, for delivery two Business Days
thereafter.
Section 13.13 Waiver of Jury Trial
EACH OF THE ADMINISTRATIVE AGENT, THE LENDERS, THE ISSUERS AND THE
BORROWERS IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
Section 13.14 Marshaling; Payments Set Aside
None of the Administrative Agent, any Lender or any Issuer shall be
under any obligation to marshal any assets in favor of the Borrowers or any
other party or against or in payment of any or all of the Obligations. To the
extent that any Borrower makes a payment or payments to the Administrative
Agent, the Lenders or the Issuers or any such Person receives payment from the
proceeds of the Collateral or exercise their rights of setoff, and such payment
or payments or the proceeds of such enforcement or setoff or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required to be repaid to a trustee, receiver or any other party, then
to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied, and all Liens, right and remedies therefor, shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.
Section 13.15 Section Titles
The section titles contained in this Agreement are and shall be
without substantive meaning or content of any kind whatsoever and are not a part
of the agreement
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between the parties hereto, except when used to reference a section. Any
reference to the number of a clause, sub-clause or subsection hereof immediately
followed by a reference in parenthesis to the title of the Section containing
such clause, sub-clause or subsection is a reference to such clause, sub-clause
or subsection and not to the entire Section; provided, however, that, in case of
direct conflict between the reference to the title and the reference to the
number of such Section, the reference to the title shall govern absent manifest
error. If any reference to the number of a Section (but not to any clause,
sub-clause or subsection thereof) is followed immediately by a reference in
parenthesis to the title of a Section, the title reference shall govern in case
of direct conflict absent manifest error.
Section 13.16 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 so that all signature pages
are attached to the same document. Delivery of an executed signature page of
this Agreement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart hereof. A set of the copies of this Agreement
signed by all parties shall be lodged with the Company and the Administrative
Agent.
Section 13.17 Entire Agreement
This Agreement, together with all of the other Loan Documents, the
Commitment Letter, and all certificates and documents delivered hereunder or
thereunder, embodies the entire agreement of the parties and supersedes all
prior agreements and understandings relating to the subject matter hereof
Section 13.18 Confidentiality
Each Lender and the Administrative Agent agree to keep information
obtained by it pursuant hereto and the other Loan Documents confidential in
accordance with such Lender's or the Administrative Agent's, as the case may be,
customary practices and agrees that it shall only use such information in
connection with the transactions contemplated by this Agreement and not disclose
any such information other than (a) to such Lender's or the Administrative
Agent's, as the case may be, employees, representatives and agents that are or
are expected to be involved in the evaluation of such information in connection
with the transactions contemplated by this Agreement and are advised of the
confidential nature of such information, (b) to the extent such information
presently is or hereafter becomes available to such Lender or the Administrative
Agent, as the case may be, on a non-confidential basis from a source other than
the Borrowers, (c) to the extent disclosure is required by law, regulation or
judicial order or requested or required by bank regulators or auditors or (d) to
current or prospective assignees, participants and Special Purpose Vehicles
grantees of any option described in Section 13.2(f) (Assignments and
Participations), in each case to the extent such assignees, participants or
grantees agree to be bound by the provisions of this Section 13.18
(Confidentiality).
[SIGNATURE PAGES FOLLOW]
152
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.
EXIDE TECHNOLOGIES,
as a Borrower
By: _______________________________________
Name:
Title:
[OTHER BORROWERS],
as a Borrower
By: _______________________________________
Name:
Title:
CITICORP USA, INC.,
as Administrative Agent, Swing Loan
Lender, Collateral Monitoring Agent,
and Lender
By: _______________________________________
Name:
Title:
CITIBANK, N.A.,
as Issuer
By: _______________________________________
Name:
Title:
[SIGNATURE PAGE TO EXIDE TECHNOLOGIES CREDIT AGREEMENT]
Other Lenders:
[NAME OF LENDER]
By: ___________________________________
Name:
Title:
[NAME OF LENDER]
By: ___________________________________
Name:
Title:
[SIGNATURE PAGE TO EXIDE TECHNOLOGIES CREDIT AGREEMENT]
SCHEDULE IV
Maximum Restructuring Costs
(a) The Company and its Domestic Subsidiaries may not include in the
calculation of EBITDAR, for any Stage I Test Period ending on the last day of a
calendar month set forth below, Restructuring Costs in excess of the following:
-------------------------------------------------------------------
MONTH MAXIMUM RESTRUCTURING COSTS
-------------------------------------------------------------------
May 2002 $30,800,000
-------------------------------------------------------------------
June 2002 $34,600,000
-------------------------------------------------------------------
July 2002 $38,400,000
-------------------------------------------------------------------
August 2002 $41,200,000
-------------------------------------------------------------------
September 2002 $44,100,000
-------------------------------------------------------------------
October 2002 $46,900,000
-------------------------------------------------------------------
November 2002 $49,800,000
-------------------------------------------------------------------
December 2002 $52,700,000
-------------------------------------------------------------------
January 2003 $55,500,000
-------------------------------------------------------------------
February 2003 $58,400,000
-------------------------------------------------------------------
March 2003 $61,200,000
-------------------------------------------------------------------
(b) The Company and its Domestic Subsidiaries may not include in the
calculation of EBITDAR, for any Stage II Test Period ending on the last day of a
calendar month set forth below, Restructuring Costs in excess of the following:
-------------------------------------------------------------------
MONTH MAXIMUM RESTRUCTURING COSTS
-------------------------------------------------------------------
April 2003 $51,700,000
-------------------------------------------------------------------
May 2003 $42,200,000
-------------------------------------------------------------------
June 2003 $32,600,000
-------------------------------------------------------------------
July 2003 $31,100,000
-------------------------------------------------------------------
August 2003 $29,700,000
-------------------------------------------------------------------
September 2003 $28,200,000
-------------------------------------------------------------------
October 2003 $25,300,000
-------------------------------------------------------------------
November 2003 $22,400,000
-------------------------------------------------------------------
December 2003 $19,600,000
-------------------------------------------------------------------
January 2004 $16,700,000
-------------------------------------------------------------------
February 2004 $13,900,000
-------------------------------------------------------------------
SCHEDULE IV-PAGE 1
(c) The Company and its Subsidiaries may not include in the calculation
of EBITDAR, for any Stage I Test Period ending on the last day of a calendar
month set forth below, Restructuring Costs in excess of the following:
-------------------------------------------------------------------
MONTH MAXIMUM RESTRUCTURING COSTS
-------------------------------------------------------------------
May 2002 $56,400,000
-------------------------------------------------------------------
June 2002 $60,200,000
-------------------------------------------------------------------
July 2002 $64,000,000
-------------------------------------------------------------------
August 2002 $66,800,000
-------------------------------------------------------------------
September 2002 $69,700,000
-------------------------------------------------------------------
October 2002 $72,500,000
-------------------------------------------------------------------
November 2002 $75,400,000
-------------------------------------------------------------------
December 2002 $78,300,000
-------------------------------------------------------------------
January 2003 $81,100,000
-------------------------------------------------------------------
February 2003 $84,000,000
-------------------------------------------------------------------
March 2003 $86,800,000
-------------------------------------------------------------------
(d) The Company and its Subsidiaries may not include in the calculation
of EBITDAR, for any Stage II Test Period ending on the last day of a calendar
month set forth below, Restructuring Costs in excess of the following:
-------------------------------------- ----------------------------
MONTH MAXIMUM RESTRUCTURING COSTS
-------------------------------------------------------------------
April 2003 $75,500,000
-------------------------------------------------------------------
May 2003 $64,200,000
-------------------------------------------------------------------
June 2003 $52,900,000
-------------------------------------------------------------------
July 2003 $51,400,000
-------------------------------------------------------------------
August 2003 $49,900,000
-------------------------------------------------------------------
September 2003 $48,400,000
-------------------------------------------------------------------
October 2003 $45,500,000
-------------------------------------------------------------------
November 2003 $42,700,000
-------------------------------------------------------------------
December 2003 $39,800,000
-------------------------------------------------------------------
January 2004 $37,000,000
-------------------------------------------------------------------
February 2004 $34,100,000
-------------------------------------------------------------------
SCHEDULE IV-PAGE 2
SCHEDULE 6.12
Appraised Values
Address of Property Date of Appraisal Appraisal Firm Appraisal Value Valuation Methodology
---------------------------------------------------------------------------------------------------------------------------
(1) 000 XXXXX XXXXX 11-Feb-02 Binswanger $5,600,000 Fair Market Value
CITY OF BRISTOL
XXXXXXXX COUNTY, TENNESSEE
(2) 0000 XXXXX XXXXXX 7-Feb-02 Binswanger $4,085,000 Fair Market Value
CITY OF XXXXXXX
REGIONAL MUNICIPALITY XX XXXX
XXXXXXXX XX XXXXXXX, XXXXXX
(3) 00000 XXXXXX XXXXXX 12-Feb-02 Binswanger $4,700,000 Fair Market Value
CITY OF INDUSTRY
LOS ANGELES COUNTY, CALIFORNIA
(4) 3001 AND 3035 FAIRFAX TRAFFICWAY 13-Feb-02 Binswanger $1,700,000 Fair Market Value
FAIRFAX INDUSTRIAL DISTRICT
KANSAS CITY
WYANDOTTE COUNTY, KANSAS
(5) 000 X. XXXX XXXX 12-Feb-02 Binswanger $3,860,000 Fair Market Value
SALINE COUNTY, KANSAS
(6) 000 XXXXX 00XX XXXXXX 14-Feb-02 Binswanger $3,250,000 Fair Market Value
CITY OF MANCHESTER
DELAWARE COUNTY, IOWA
SCHEDULE 6.12 - PAGE 1
Address of Property Date of Appraisal Appraisal Firm Appraisal Value Valuation Methodology
---------------------------------------------------------------------------------------------------------------------------
(7) 0000 XXXX XXXXXXX XXXX 13-Feb-02 Binswanger $ 2,360,000 Fair Market Value
CITY OF KANKAKEE
KANKAKEE COUNTY, ILLINOIS
(8) XXXXXXX XXXX, 00-Xxx-00 Xxxxxxxxxx $ 8,771,000 Fair Market Value
OVER HULTON, XXXXXX
ENGLAND
(9) XXXXXXXX XXX, 00-Xxx-00 Xxxxxxxxxx $ 2,571,480 Fair Market Value
CWMBRAN, GWENT,
WALES
(10) 0000 XXXXX XXXXX XXXXXX 6-Mar-02 MB Valuations $10,000,000 Fair Market Value
FRISCO, TEXAS
(11) X.X. XXX 000 0-Xxx-00 XX Valuations $ 3,000,000 Fair Market Value
CANON HOLLOW ROAD
FOREST CITY, MISSOURI
SCHEDULE 6.12 - PAGE 2
Address of Property Date of Appraisal Appraisal Firm Appraisal Value Valuation Methodology
-------------------------------------------------------------------------------------------------------------------------
(1) FORT XXXXX, ARKANSAS 30-Jan-02 MB Valuations $ 3,027,815 Orderly Liquidation Value
(2) KANKAKEE, ILLINOIS 30-Jan-02 MB Valuations $ 2,034,715 Orderly Liquidation Value
(3) COLUMBUS, GEORGIA 30-Jan-02 MB Valuations $ 1,807,207 Orderly Liquidation Value
(4) LOMBARD, ILLINOIS 30-Jan-02 MB Valuations $ 584,005 Orderly Liquidation Value
(5) XXXXXX, 30-Jan-02 MB Valuations $ 257,200 Orderly Liquidation Value
ONTARIO, CANADA
(6) CWMBRAN, 30-Jan-02 MB Valuations $ 1,208,945 Orderly Liquidation Value
UNITED KINGDOM
(7) BOLTON, 30-Jan-02 MB Valuations $ 2,957,675 Orderly Liquidation Value
UNITED KINGDOM
(8) MANCHESTER, 30-Jan-02 MB Valuations $ 92,805 Orderly Liquidation Value
UNITED KINGDOM
(9) CANON HOLLOW, 27-Feb-02 MB Valuations $ 2,500,590 Liquidation Value - In Place
FOREST CITY, MISSOURI
(10) FRISCO, TEXAS 27-Feb-02 MB Valuations $ 4,527,535 Liquidation Value - In Place
SCHEDULE 6.12 - PAGE 3
