EXHIBIT 2.2
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF OCTOBER 1, 2002
AMONG
RAYOVAC CORPORATION,
VARTA GERATEBATTERIE GMBH,
VARIOUS FINANCIAL INSTITUTIONS,
LASALLE BANK NATIONAL ASSOCIATION,
AS DOCUMENTATION AGENT,
CITICORP NORTH AMERICA, INC.,
AS SYNDICATION AGENT,
AND
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
ARRANGED BY
BANC OF AMERICA SECURITIES LLC
AND
XXXXXXX XXXXX XXXXXX INC.
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS................................................................................1
1.1 Certain Defined Terms..........................................................................1
1.2 Other Interpretive Provisions.................................................................27
1.3 Accounting Principles.........................................................................28
1.4 Reallocation of Loans and Commitments.........................................................28
ARTICLE II THE CREDITS...............................................................................29
2.1 Amounts and Terms of Commitments..............................................................29
2.2 Loan Accounts.................................................................................30
2.3 Procedure for Borrowing.......................................................................31
2.4 Conversion and Continuation Elections.........................................................31
2.5 Swingline Loans...............................................................................33
2.6 Changes in Revolving Commitments..............................................................38
2.7 Optional Prepayments..........................................................................40
2.8 Mandatory Prepayments of Loans................................................................40
2.9 Repayment.....................................................................................42
2.10 Interest......................................................................................42
2.11 Fees..........................................................................................43
2.12 Computation of Fees and Interest..............................................................44
2.13 Payments by the Borrowers.....................................................................44
2.14 Payments by the Lenders to the Administrative Agent...........................................45
2.15 Sharing of Payments, Etc......................................................................46
ARTICLE III THE LETTERS OF CREDIT.....................................................................47
3.1 The Letter of Credit Subfacility; Existing Letters of Credit..................................47
3.2 Issuance, Amendment and Renewal of Letters of Credit..........................................48
3.3 Risk Participations, Drawings and Reimbursements..............................................50
3.4 Repayment of Participations...................................................................51
3.5 Role of the Issuing Lender....................................................................52
3.6 Obligations Absolute..........................................................................53
3.7 Cash Collateral Pledge........................................................................53
3.8 Letter of Credit Fees.........................................................................54
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3.9 Applicability of ISP98 and UCP................................................................54
3.10 Non-Dollar Letters of Credit..................................................................54
ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY....................................................55
4.1 Taxes.........................................................................................56
4.2 Illegality....................................................................................57
4.3 Increased Costs and Reduction of Return.......................................................58
4.4 Funding Losses................................................................................59
4.5 Inability to Determine Rates..................................................................59
4.6 Certificates of Lenders.......................................................................60
4.7 Substitution of Lenders.......................................................................60
4.8 Survival......................................................................................60
ARTICLE V CONDITIONS PRECEDENT......................................................................60
5.1 Conditions of Effectiveness...................................................................60
5.2 Conditions to All Credit Extensions...........................................................63
ARTICLE VI REPRESENTATIONS AND WARRANTIES............................................................63
6.1 Corporate Existence and Power.................................................................63
6.2 Corporate Authorization; No Contravention.....................................................64
6.3 Governmental Authorization....................................................................64
6.4 Binding Effect................................................................................64
6.5 Litigation....................................................................................65
6.6 No Default....................................................................................65
6.7 ERISA Compliance..............................................................................65
6.8 Use of Proceeds; Margin Regulations...........................................................66
6.9 Title to Properties...........................................................................66
6.10 Taxes.........................................................................................66
6.11 Financial Condition...........................................................................66
6.12 Regulated Entities............................................................................67
6.13 No Burdensome Restrictions....................................................................67
6.14 Copyrights, Patents, Trademarks and Licenses, etc.............................................67
6.15 Subsidiaries..................................................................................67
6.16 Insurance.....................................................................................67
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6.17 Solvency, etc.................................................................................67
6.18 Real Property.................................................................................68
6.19 Swap Obligations..............................................................................68
6.20 Full Disclosure...............................................................................68
6.21 Environmental Warranties......................................................................68
6.22 VARTA Financial Statements....................................................................69
6.23 VARTA Acquisition.............................................................................70
ARTICLE VII AFFIRMATIVE COVENANTS.....................................................................70
7.1 Financial Statements..........................................................................70
7.2 Certificates; Other Information...............................................................71
7.3 Notices.......................................................................................72
7.4 Preservation of Corporate Existence, etc......................................................73
7.5 Maintenance of Property.......................................................................73
7.6 Insurance.....................................................................................73
7.7 Payment of Obligations........................................................................74
7.8 Compliance with Laws..........................................................................74
7.9 Compliance with ERISA.........................................................................74
7.10 Inspection of Property and Books and Records..................................................74
7.11 Environmental Covenant........................................................................75
7.12 Use of Proceeds...............................................................................75
7.13 Further Assurances............................................................................75
7.14 Swap Contracts................................................................................76
7.15 Subsidiary Borrower Financial Condition.......................................................77
7.16 Real Estate Documents.........................................................................77
7.17 Opinions......................................................................................77
ARTICLE VIII NEGATIVE COVENANTS........................................................................78
8.1 Limitation on Liens...........................................................................78
8.2 Disposition of Assets.........................................................................80
8.3 Consolidations and Mergers....................................................................80
8.4 Loans and Investments.........................................................................81
8.5 Limitation on Indebtedness....................................................................82
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(continued)
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8.6 Transactions with Affiliates..................................................................83
8.7 Use of Proceeds...............................................................................83
8.8 Contingent Obligations........................................................................84
8.9 Joint Ventures................................................................................84
8.10 Lease Obligations.............................................................................84
8.11 Minimum Interest Coverage Ratio...............................................................85
8.12 Maximum Leverage Ratio........................................................................85
8.13 Minimum Fixed Charge Coverage Ratio...........................................................85
8.14 Restricted Payments...........................................................................86
8.15 ERISA.........................................................................................86
8.16 Limitations on Sale and Leaseback Transactions................................................86
8.17 Capital Expenditures..........................................................................87
8.18 Inconsistent Agreements.......................................................................87
8.19 Change in Business............................................................................87
8.20 Amendments to Certain Documents...............................................................87
8.21 Limitation on Issuance of Guaranty Obligations................................................87
8.22 Limitations on Finance Companies and Certain German Entities..................................88
ARTICLE IX EVENTS OF DEFAULT.........................................................................88
9.1 Event of Default..............................................................................88
9.2 Remedies......................................................................................90
9.3 Rights Not Exclusive..........................................................................91
ARTICLE X THE ADMINISTRATIVE AGENT..................................................................91
10.1 Appointment and Authorization.................................................................91
10.2 Delegation of Duties..........................................................................92
10.3 Liability of Administrative Agent.............................................................92
10.4 Reliance by Administrative Agent..............................................................92
10.5 Notice of Default.............................................................................93
10.6 Credit Decision...............................................................................93
10.7 Indemnification...............................................................................94
10.8 Administrative Agent in Individual Capacity...................................................94
10.9 Successor Administrative Agent................................................................94
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10.10 Withholding Tax...............................................................................95
10.11 Collateral Matters............................................................................97
10.12 Administrative Agent May File Proofs of Claim.................................................97
10.13 Other Agents..................................................................................98
ARTICLE XI MISCELLANEOUS.............................................................................98
11.1 Amendments and Waivers........................................................................98
11.2 Notices......................................................................................100
11.3 No Waiver; Cumulative Remedies...............................................................100
11.4 Costs and Expenses...........................................................................100
11.5 Company Indemnification......................................................................101
11.6 Payments Set Aside...........................................................................102
11.7 Successors and Assigns.......................................................................102
11.8 Assignments, Participations, etc.............................................................102
11.9 Confidentiality..............................................................................104
11.10 Set-off......................................................................................104
11.11 Automatic Debits of Fees.....................................................................105
11.12 Notification of Addresses, Lending Offices, etc..............................................105
11.13 Counterparts.................................................................................105
11.14 Severability.................................................................................105
11.15 No Third Parties Benefited...................................................................105
11.16 Survival of Representations and Warranties...................................................105
11.17 Interest Rate Limitation.....................................................................106
11.18 Judgment Currency............................................................................106
11.19 Governing Law and Jurisdiction...............................................................106
11.20 Waiver of Jury Trial.........................................................................107
11.21 Entire Agreement.............................................................................107
11.22 Effectiveness with respect to Subsidiary Borrower............................................107
11.23 Parallel Debt................................................................................108
ARTICLE XII GUARANTEE................................................................................108
12.1 Unconditional Guarantee......................................................................108
12.2 Guarantee Absolute...........................................................................108
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12.3 Waivers......................................................................................109
12.4 Subrogation..................................................................................109
12.5 Survival.....................................................................................110
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SCHEDULES*
Schedule 1.1 Pricing Schedule
Schedule 2.1 Commitments and Percentages
Schedule 2.9(c) Euro Term Loan A
Schedule 2.9(d) Euro Term Loan B
Schedule 2.9(e) U.S. Term Loan B
Schedule 3.1 Existing Letters of Credit
Schedule 5.1(h) Mortgaged Real Property
Schedule 6.5 Litigation
Schedule 6.11 Permitted Liabilities
Schedule 6.15 Subsidiaries and Minority Interests
Schedule 6.16 Insurance Matters
Schedule 6.18 Owned Real Property
Schedule 6.21 Environmental Matters
Schedule 8.1 Liens
Schedule 8.4 Permitted Investments
Schedule 8.8 Contingent Obligations
Schedule 11.2 Agent's Payment Offices; Addresses for Notices to the
Borrowers, the Administrative Agent, the Issuing
Lender and the Swingline Lender
EXHIBITS*
Exhibit A-1 Form of Notice of Borrowing (Dollars)
Exhibit A-2 Form of Notice of Borrowing (Euro)
Exhibit A-3 Form of Notice of Borrowing (Euro Swingline)
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D-1 Form of Promissory Note (Company)
Exhibit D-2 Form of Promissory Note (Subsidiary Borrower)
Exhibit E Form of Security Agreement
Exhibit F-1 Form of KGaA Guaranty
Exhibit F-2 Form of ROV Guaranty
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Exhibit G Form of Company Pledge Agreement
Exhibit H-1 Form of Subsidiary Pledge Agreement (U.K.)
Exhibit H-2 Form of Subsidiary Pledge Agreement (Canada)
Exhibit H-3 Form of Subsidiary Pledge Agreement (Netherlands/66%)
Exhibit H-4 Form of Subsidiary Pledge Agreement (Netherlands/34%)
Exhibit I Form of Opinion of Xxxxxxxxxx, Xxxxxx & Xxxxxxx
Exhibit J Form of Opinion of Special German Counsel to the
Borrowers
Exhibit K-1 Form of Opinion of Special New York Counsel to the
Administrative Agent
Exhibit K-2 Form of Opinion of Special German Counsel to the
Administrative Agent
Exhibit L Form of Assignment and Assumption
Exhibit M Form of Power of Attorney
Exhibit N Form of Mortgage Amendment
Exhibit O Form of Blocked Account Agreement
Exhibit P Form of Account Pledge Agreement
Exhibit Q Form of Security Assignment Agreement
Exhibit R-1 Form of German Share Pledge Agreement - Deed of Share
Pledge Agreement (ROV Holding / ROV German Holding)
Exhibit R-2 Form of German Share Pledge Agreement - Deed of Share
Pledge Agreement (ROV German Holding / ROV Limited
GmbH and ROV GP GmbH)
Exhibit R-3 Form of German Share Pledge Agreement - Deed of Share
Pledge Agreement (ROV German Holding / Subsidiary
Borrower)
Exhibit R-4 Form of German Share Pledge Agreement - General
Partnership Interest Pledge Agreement (ROV GP GmbH /
Subsidiary Borrower)
Exhibit S Form of Security Transfer Agreement
Exhibit T-1 Form of Cayman Pledge Agreement (Rayovac Latin
America)
Exhibit T-2 Form of Cayman Pledge Agreement (Cayman Finance Co.)
Exhibit U Form of U.S. Revolving Commitment Increase Request
Exhibit V Form of Euro Revolving Borrowing Base Certificate
Exhibit W Form of Security Trust Agreement
* Schedules and exhibits have been omitted pursuant to Item 601(b)(2) of
Regulation S-K. The Registrant agrees to furnish supplementally a copy of any
omitted schedule or exhibit to the Commission upon request.
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDED AND RESTATED CREDIT AGREEMENT dated as of October 1,
2002 is among RAYOVAC CORPORATION (the "COMPANY"), VARTA GERATEBATTERIE GmbH
(the "SUBSIDIARY BORROWER"), various financial institutions, LASALLE BANK
NATIONAL ASSOCIATION, as documentation agent, CITICORP NORTH AMERICA, INC., as
syndication agent, and BANK OF AMERICA, N.A., as administrative agent.
WHEREAS, pursuant to the Second Amended and Restated Credit Agreement
dated as of August 9, 1999 (the "EXISTING AGREEMENT"), the Company obtained a
$75,000,000 term loan facility and commitments for up to $250,000,000 in
revolving loans and letters of credit;
WHEREAS, the parties hereto have agreed to amend and restate the
Existing Agreement so as to, among other things, (a) establish two revolving
credit facilities, one available to the Company in Dollars for revolving loans,
swingline loans and letters of credit up to an aggregate amount of $100,000,000
(the "U.S. REVOLVING FACILITY") and one available to the Subsidiary Borrower in
Euros for revolving loans and swingline loans up to an aggregate amount of
(a)50,000,000 (the "EURO REVOLVING FACILITY"), (b) establish two term loan
facilities available to the Company in Euros, one a six-year term loan in the
amount of (a)50,000,000 ("EURO TERM LOAN A FACILITY") and one a seven-year term
loan in the amount of (a)125,000,000 ("EURO TERM LOAN B FACILITY"), (c)
establish a seven-year $300,000,000 term loan facility available to the Company
in Dollars ("U.S. TERM LOAN B FACILITY"), (d) amend the pricing, certain
covenants and various other provisions of the Existing Agreement and (e) revise
in certain respects the composition of the lender group; and
WHEREAS, the parties hereto intend that this Agreement and the
documents executed in connection herewith not effect a novation of the
obligations of the Company under the Existing Agreement, but merely a
restatement and, where applicable, an amendment of the terms governing such
obligations;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the Existing Agreement is restated in its entirety, and the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 CERTAIN DEFINED TERMS. The following terms have the following
meanings:
ACCOUNT PLEDGE AGREEMENT means an Account Pledge Agreement,
substantially in the form of EXHIBIT P, entered into by the Subsidiary Borrower
and the Lenders.
ACQUISITION means any transaction or series of related transactions for
the purpose of, or resulting directly or indirectly in, (a) the acquisition of
all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests, membership interests or equity of any Person, or
otherwise
causing any Person to become a Subsidiary or (c) a merger or consolidation or
any other combination with another Person (other than a Person that is a
Subsidiary), provided that the Company or a Subsidiary is the surviving entity.
ACQUISITION RESTRUCTURING CHARGES means the following restructuring
charges taken by the Company in connection with the VARTA Acquisition: (a) not
more than $15,000,000 of cash restructuring charges identified to the
Administrative Agent in writing prior to September 30, 2003 and taken prior to
March 31, 2004; (b) not more than $7,100,000 of non-cash restructuring charges
identified to the Administrative Agent in writing prior to September 30, 2003
and taken prior to March 31, 2004; and (c) not more than $10,000,000 of cash
restructuring charges identified to the Administrative Agent in writing prior to
September 30, 2004 and taken during the period from October 1, 2003 through
March 31, 2005.
ADJUSTED EBITDA means, for any Computation Period, the total of (i)
EBITDA for such Computation Period plus (ii) any Acquisition Restructuring
Charges taken during such Computation Period plus (iii) any Other Restructuring
Charges taken during such Computation Period plus (iv) any Kmart Charge taken
during such Computation Period minus (v) any Kmart Recoveries received during
such Computation Period. In addition, if the Company or any Subsidiary makes an
Acquisition or a material divestiture during any Computation Period, then the
historical financial results for such period of the Person or assets acquired
shall be added to Adjusted EBITDA (without taking account of cost savings or
other synergies unless approved by the Required Lenders) and/or the portion of
the financial results of the Company and its Subsidiaries for such period
attributable to the Person or assets divested shall be subtracted in calculating
Adjusted EBITDA, all as reasonably determined by the Company and certified to
the Administrative Agent and the Lenders.
ADMINISTRATIVE AGENT means Bank of America in its capacity as
administrative agent for the Lenders hereunder, and any successor administrative
agent arising under SECTION 10.9.
AFFILIATE means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of such other Person, whether
through the ownership of voting securities or membership interests, by contract,
or otherwise. Without limiting the foregoing, any Person which is an officer,
director or shareholder of the Company, or a member of the immediate family of
any such officer, director or shareholder, shall be deemed to be an Affiliate of
the Company.
AGENT-RELATED PERSONS means Bank of America and any successor
administrative agent arising under SECTION 10.9, together with its Affiliates
(including Banc of America Securities LLC), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
AGENT'S PAYMENT OFFICE means the address set forth on SCHEDULE 11.2 in
relation to the Administrative Agent for payments in the relevant currency, or
such other address as the Administrative Agent may from time to time specify.
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AGREEMENT means this Third Amended and Restated Credit Agreement.
AGREEMENT CURRENCY - see SECTION 11.18.
APPROVED FUND means any Person (other than a natural person) that (a)
is (or will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business and (b) is administered or managed by (i) a Lender, (ii) an Affiliate
of a Lender or (iii) an entity or an Affiliate of an entity that administers or
manages a Lender.
ARRANGERS means Banc of America Securities LLC and Xxxxxxx Xxxxx Xxxxxx
Inc.
ASSIGNEE - see SUBSECTION 11.8(a).
ASSIGNMENT AND ASSUMPTION - SEE SUBSECTION 11.8(a).
ATTORNEY COSTS means and includes all reasonable and documented fees
and disbursements of any law firm or other external counsel and, without
duplication of effort, the allocated cost of internal legal services and all
disbursements of internal counsel.
BANK OF AMERICA means Bank of America, N.A., a national banking
association.
BANKRUPTCY CODE means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, ET SEQ.).
BASE RATE means, for any day, the higher of: (a) 0.50% per annum above
the latest Federal Funds Rate; and (b) the rate of interest in effect for such
day as publicly announced from time to time by Bank of America in Charlotte as
its "reference rate." (The "reference rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above or below such announced
rate.) Any change in the reference rate announced by Bank of America shall take
effect at the opening of business on the day specified in the public
announcement of such change.
BASE RATE LOAN means a Loan that bears interest based on the Base Rate.
BASE RATE MARGIN means at any time the rate per annum determined
pursuant to SCHEDULE 1.1.
BLOCKED ACCOUNT BANK means a bank which has executed and delivered to
the Administrative Agent a blocked account agreement substantially in the form
of EXHIBIT O or otherwise in a form reasonably acceptable to the Administrative
Agent.
BORROWER means each of the Company and the Subsidiary Borrower.
BORROWING means a borrowing hereunder consisting of (a) U.S. Revolving
Loans, Euro Revolving Loans, Euro Term Loans A, Euro Term Loans B or U.S. Term
Loans B of the same Type made to a Borrower on the same day by the Lenders under
the applicable Facility and, in
3
the case of Eurocurrency Loans, having the same Interest Period, or (b) a
Swingline Loan made to a Borrower by the Swingline Lender, in each case pursuant
to ARTICLE II.
BORROWING BASE means the sum of (a) 85% of the gross book value of
accounts receivable (excluding any account receivable that (i) is not subject to
the Lien of the Administrative Agent, (ii) is subject to any other Lien or (iii)
is outstanding for more than 120 days) owned by the Subsidiary Borrower and (b)
50% of the gross value (at the lower of cost or market) of all inventory owned
by the Subsidiary Borrower (excluding inventory that (i) is not subject to the
Lien of the Administrative Agent or (ii) is subject to any other Lien).
BORROWING BASE CERTIFICATE means a certificate substantially in the
form of EXHIBIT V.
BORROWING DATE means any date on which a Borrowing occurs under SECTION
2.3.
BUSINESS DAY means any day other than a Saturday, Sunday or other day
on which commercial banks in New York, Chicago or Charlotte are required or
authorized by law to be, or in fact generally are, closed and (i) if the
applicable Business Day relates to any Eurocurrency Loan, means any such day on
which business is generally carried on in the London interbank eurocurrency
market and (ii) if the applicable Business Day relates to any Loan denominated
in Euro, means any such day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer system, or any successor, is open for
business.
CANADIAN SHARE PLEDGE AGREEMENT means the Share Pledge Agreement dated
as of October 1, 2002 between ROV Holding and the Administrative Agent,
substantially in the form of EXHIBIT H-2.
CAPITAL ADEQUACY REGULATION means any guideline, request or directive
of any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case regarding
capital adequacy of any bank or of any Person controlling a bank.
CAPITAL EXPENDITURES means all expenditures which, in accordance with
GAAP, would be required to be capitalized and shown on the consolidated balance
sheet of the Company, but excluding expenditures made in connection with the
replacement, substitution or restoration of assets to the extent financed (i)
from insurance proceeds (or other similar recoveries) paid on account of the
loss of or damage to the assets being replaced or restored or (ii) with awards
of compensation arising from the taking by eminent domain or condemnation of the
assets being replaced.
CASH COLLATERALIZE means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Administrative Agent, the Issuing
Lender and the Lenders, as additional collateral for the L/C Obligations, cash
or deposit account balances pursuant to documentation in form and substance
satisfactory to the Administrative Agent and the Issuing Lender (which documents
are hereby consented to by the Lenders). Derivatives of such term shall have
corresponding meanings. The Company hereby grants the Administrative Agent, for
the benefit of the Administrative Agent, the Issuing Lender and the Lenders, a
security interest in all such cash and deposit account balances. Cash collateral
shall be maintained in blocked, non-interest bearing deposit accounts at Bank of
America.
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CASH EQUIVALENT INVESTMENTS shall mean (i) securities issued or
directly and fully guaranteed or insured by the United States or guaranteed by a
government that is a member of the OECD ("OECD COUNTRY") or any agency or
instrumentality thereof (PROVIDED that the full faith and credit of the United
States or such OECD Country, as applicable, is pledged in support thereof)
having maturities of not more than three years from the date of acquisition,
(ii) marketable direct obligations issued by any State of the United States or
any local government or other political subdivision thereof rated (at the time
of acquisition of such security) at least AA by Standard & Poor's Ratings
Service, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P") or at least Aa or
the equivalent thereof by Xxxxx'x Investors Service, Inc. ("MOODY'S") having
maturities of not more than one year from the date of acquisition, (iii) time
deposits, certificates of deposit and bankers' acceptances of (x) any Lender,
(y) any commercial bank that is a member of the Federal Reserve System or an
applicable central bank of an OECD Country having capital and surplus in excess
of $250,000,000 or (z) any bank whose short-term commercial paper rating (at the
time of acquisition of such security) by S&P is at least A-1 or the equivalent
thereof (any such bank, an "APPROVED BANK"), in each case with maturities of not
more than six months from the date of acquisition, (iv) commercial paper and
variable or fixed rate notes issued by any Lender or Approved Bank or by the
parent company of any Lender or Approved Bank and commercial paper and variable
rate notes issued by, or guaranteed by, any industrial or financial company with
a short-term commercial paper rating (at the time of acquisition of such
security) of at least A-1 or the equivalent thereof by S&P or at least P-1 or
the equivalent thereof by Moody's, or guaranteed by any industrial company with
a long-term unsecured debt rating (at the time of acquisition of such security)
of at least AA or the equivalent thereof by S&P or at least Aa or the equivalent
thereof by Moody's and in each case maturing within one year after the date of
acquisition and (v) repurchase agreements with any Lender or any primary dealer
maturing within one year from the date of acquisition that are fully
collateralized by investment instruments that would otherwise be Cash Equivalent
Investments; PROVIDED that the terms of such repurchase agreements comply with
the guidelines set forth in the Federal Financial Institutions Examination
Council Supervisory Policy -- Repurchase Agreements of Depository Institutions
With Securities Dealers and Others, as adopted by the Comptroller of the
Currency on October 31, 1985.
CAYMAN FINANCE CO. means ROV International Finance Company, a Cayman
Islands exempted company and a Subsidiary.
CAYMAN PLEDGE AGREEMENT means each of (a) a Charge Over Shares in
Rayovac Latin America, Ltd., substantially in the form of EXHIBIT T-1; and (b) a
Charge Over Shares in Cayman Finance Co., substantially in the form of EXHIBIT
T-2.
CERCLA means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980.
CHANGE OF CONTROL means the occurrence of any of the following events:
(i) a majority of the Board of Directors of the Company shall not be Continuing
Directors; or (ii) any Person or group of Persons (within the meaning of Section
13 or 14 of the Exchange Act) shall acquire beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 25% or more of the
outstanding shares of Voting Stock of the Company.
5
CODE means the Internal Revenue Code of 1986.
COLLATERAL DOCUMENT means the Security Agreement, each Pledge
Agreement, each Mortgage, the Account Pledge Agreement, the Security Assignment
Agreement, the Security Transfer Agreement, the Security Trust Agreement and any
other document pursuant to which collateral securing the liabilities of the
Company, the Subsidiary Borrower or any Guarantor under any Loan Document is
granted or pledged to the Administrative Agent for the benefit of itself, the
Lenders and/or the Qualified Foreign Lenders.
COMMERCIAL LETTER OF CREDIT means any Letter of Credit which is
drawable upon presentation of a sight draft and other documents evidencing the
sale or shipment of goods purchased by the Company or a Subsidiary in the
ordinary course of business.
COMMITMENT means, as to each Lender, such Lender's U.S. Revolving
Commitment, Euro Revolving Commitment, Euro Term Loan A Commitment, Euro Term
Loan B Commitment and/or U.S. Term Loan B Commitment, as applicable.
COMMON STOCK means the common stock, par value $.01 per share, of the
Company.
COMPANY - see the PREAMBLE.
COMPANY PLEDGE AGREEMENT means a Restated Pledge Agreement,
substantially in the form of EXHIBIT G, between the Company and the
Administrative Agent.
COMPLIANCE CERTIFICATE means a certificate substantially in the form of
EXHIBIT C.
COMPUTATION PERIOD means any period of four consecutive fiscal quarters
and in any case ending on the last day of a fiscal quarter.
CONSOLIDATED NET INCOME means, with respect to the Company and its
Subsidiaries for any period, the net income (or loss) of the Company and its
Subsidiaries for such period; PROVIDED that the net income of any Subsidiary
shall be excluded from Consolidated Net Income to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
from such income is not at the time permitted by the terms of its charter or
by-laws or any judgment, decree, order, law, statute, rule, regulation,
agreement, indenture or other instrument which is binding on such Subsidiary.
CONTINGENT LIABILITIES means, at any time, the maximum estimated amount
of liabilities reasonably likely to result at such time from pending litigation,
asserted and unasserted claims and assessments, guaranties, uninsured risks and
other contingent liabilities of each of the Company and of each Guarantor after
giving effect to the transactions contemplated by this Agreement (including all
fees and expenses related thereto).
CONTINGENT OBLIGATION means, as to any Person, any direct or indirect
liability of such Person, whether or not contingent, with or without recourse:
(a) with respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligation") of another Person (the "primary obligor"),
including any obligation of such Person (i) to purchase, repurchase or otherwise
acquire such primary obligation or any security therefor, (ii) to advance
6
or provide funds for the payment or discharge of any primary obligation, or to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency or any balance sheet item, level of income
or financial condition of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
primary obligation of the ability of the primary obligor to make payment of such
primary obligation, or (iv) otherwise to assure or hold harmless the holder of
any primary obligation against loss in respect thereof (each, a "GUARANTY
OBLIGATION"); (b) with respect to any Surety Instrument (other than any Letter
of Credit) issued for the account of such Person or as to which such Person is
otherwise liable for reimbursement of drawings or payments; (c) to purchase any
materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for
such services, shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such services are ever
performed or tendered; or (d) in respect of any Swap Contract. The amount of any
Contingent Obligation shall, (1) in the case of Guaranty Obligations, be deemed
equal to the stated or determinable amount of the primary obligation in respect
of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof,
(2) in the case of Swap Contracts, be equal to the Swap Termination Value and
(3) in the case of other Contingent Obligations, be equal to the maximum
reasonably anticipated liability in respect thereof.
CONTINUING DIRECTOR means (A) any individual who was a member of the
Company's Board of Directors on the Effective Date and (B) any individual who
becomes a member of the Company's Board of Directors whose nomination for
election by the Company's shareholders was approved by a vote of at least a
majority of the Continuing Directors on the date of such nomination, EXCLUDING
any individual whose initial nomination for, or assumption of office as, a
member of the Company's Board of Directors occurs as a result of an actual or
threatened solicitation of proxies or consents for the election or removal of
one or more directors by any person or group other than a solicitation for the
election of one or more directors by or on behalf of the Company's Board of
Directors.
CONTRACTUAL OBLIGATION means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound.
CONVERSION/CONTINUATION DATE means any date on which, under SECTION
2.4, (a) the Company converts Loans of one Type to the other Type or (b) either
Borrower continues as Eurocurrency Loans, but with a new Interest Period,
Eurocurrency Loans having Interest Periods expiring on such date.
CREDIT EXTENSION means and includes (a) the making of any Loan
hereunder and (b) the Issuance of any Letter of Credit hereunder.
DOLLAR EQUIVALENT means, in relation to an amount denominated in a
currency other than Dollars, the amount of Dollars which could be purchased with
such amount at the prevailing foreign exchange spot rate of the Administrative
Agent.
7
DOLLAR and $ mean lawful money of the United States.
DOMESTIC SUBSIDIARY means any Subsidiary that is not a Foreign
Subsidiary.
DORMANT SUBSIDIARIES means, so long as either such Person does not have
assets with a fair market value in the aggregate in excess of $100,000 and
transacts no business, Minera Vidaluz, Zoe-Phos International, Rayovac Far East
Limited and Rayovac Foreign Sales Corporation; PROVIDED that no Subsidiary may
be a Dormant Subsidiary if the Company or any of its other Subsidiaries provides
any credit support thereto or is liable in any respect for the liabilities
thereof.
EBITDA means, for any Computation Period, the sum of Consolidated Net
Income for such Computation Period, excluding, to the extent reflected in
determining such Consolidated Net Income, extraordinary gains and losses for
such period, PLUS to the extent deducted in determining such Consolidated Net
Income, Interest Expense, income tax expense, depreciation and amortization.
EFFECTIVE AMOUNT means, with respect to any outstanding L/C Obligations
on any date, the amount of such L/C Obligations on such date after giving effect
to any Issuances of Letters of Credit occurring on such date and any other
changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursement of outstanding unpaid drawings under
any Letter of Credit or any reduction in the maximum amount available for
drawing under any Letter of Credit taking effect on such date.
EFFECTIVE DATE means the date on which all conditions precedent set
forth in SECTIONS 5.1 and 5.2 are satisfied or waived by all Lenders in their
sole discretion (or, in the case of SUBSECTION 5.1(e), waived by the Person
entitled to receive the applicable payment).
ELIGIBLE ASSIGNEE means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by the Administrative Agent, the Issuing Lender, the Swingline Lender
and, unless an Event of Default has occurred and is continuing, the Company
(each such approval not to be unreasonably withheld or delayed); PROVIDED that
neither the Company nor any Affiliate thereof shall be an Eligible Assignee.
ENVIRONMENTAL CLAIMS means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability under any
Environmental Law or responsibility for violation of any Environmental Law, or
for release or injury to the environment.
ENVIRONMENTAL LAWS means CERCLA, RCRA and all other federal, state or
local or foreign laws, statutes, common law duties, rules, regulations,
ordinances and codes relating to pollution or protection of public or employee
health or the environment, together with all administrative orders, consent
decrees, licenses, authorizations and permits of any Governmental Authority
implementing them.
ERISA means the Employee Retirement Income Security Act of 1974.
8
ERISA AFFILIATE means any trade or business (whether or not
incorporated) under common control with the Company within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
ERISA EVENT means: (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Company or any ERISA Affiliate from a Pension 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) or a
substantial cessation of operations which is treated as such a withdrawal; (c) a
complete or partial withdrawal by the Company or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Pension Plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which 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 Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Title IV of
ERISA, other than PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Company or any ERISA Affiliate.
EURO and E means the single currency of participating member states
of the European Union.
EUROCURRENCY LOAN means a Loan that bears interest based on the
Eurocurrency Rate.
EUROCURRENCY RATE means, for any Interest Period, with respect to
Eurocurrency Loans comprising part of the same Borrowing, the rate of interest
per annum (rounded upward, if necessary, to the next 1/100th of 1%) determined
by the Administrative Agent as follows:
Eurocurrency Rate = LIBOR
-----
1.00 - Eurocurrency Reserve Percentage
Where,
"EUROCURRENCY RESERVE PERCENTAGE" means for any day for any
Interest Period the maximum reserve percentage (expressed as a decimal,
rounded upward, if necessary, to the next 1/100th of 1%) in effect on
such day (whether or not applicable to any Lender) under regulations
issued from time to time by the FRB for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"); and
"LIBOR" means (a) the rate per annum equal to the rate
determined by the Administrative Agent to be the offered rate that
appears on the page of the Telerate screen (or any successor thereto)
that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars or Euro (as applicable) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period or (b) if the rate referenced in the preceding
CLAUSE (A) does not appear on such page or service or such
9
page or service is not available, the rate per annum equal to the rate
determined by the Administrative Agent to be the offered rate on such
other page or other service that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars or Euro
(as applicable) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period or (c) if the
rates referenced in the preceding CLAUSES (A) and (B) are not
available, the rate of interest per annum determined by the
Administrative Agent as the rate of interest at which deposits in
Dollars or Euro (as applicable), in the approximate amount of the Loan
to be made or continued as, or converted into, a Eurocurrency Loan by
Bank of America and having a maturity comparable to such Interest
Period, would be offered to major banks in the London interbank market
at their request at approximately 11:00 a.m. (New York time in the
case of Dollars and London time in the case of Euros) two Business
Days prior to the commencement of such Interest Period rounded upwards
to the next 1/100th of 1%.
The Eurocurrency Rate shall be adjusted automatically as to all
Eurocurrency Loans then outstanding as of the effective date of any change in
the Eurocurrency Reserve Percentage.
EUROCURRENCY RATE MARGIN means at any time the rate per annum
determined pursuant to SCHEDULE 1.1.
EURODOLLAR LOAN means any Eurocurrency Loan denominated in Dollars.
EURO REVOLVING COMMITMENT means, as to any Lender, the commitment of
such Lender to make Euro Revolving Loans pursuant to SUBSECTION 2.1(b). The
initial amount of each Lender's Euro Revolving Commitment is set forth across
from such Lender's name on SCHEDULE 2.1.
EURO REVOLVING COMMITMENT AMOUNT means Euros in the amount of
(a)50,000,000, as reduced from time to time in accordance with the terms hereof.
EURO REVOLVING FACILITY - see the RECITALS.
EURO REVOLVING LOAN - see SUBSECTION 2.1(b).
EURO REVOLVING OUTSTANDINGS means, at any time, the sum of the
principal amount of all outstanding Euro Revolving Loans and Euro Swingline
Loans.
EURO REVOLVING TERMINATION DATE means the earlier to occur of (a)
October 1, 2008; and (b) the date on which the Euro Revolving Commitments
terminate in accordance with the provisions of this Agreement.
EURO SWINGLINE LOAN - see SUBSECTION 2.5(b).
EURO TERM LOAN A - see SUBSECTION 2.1(c).
EURO TERM LOAN A COMMITMENT means, as to any Lender, the commitment of
such Lender to make a Euro Term Loan A pursuant to SUBSECTION 2.1(c). The amount
of each
10
Lender's Euro Term Loan A Commitment is set forth across from such Lender's name
on SCHEDULE 2.1.
EURO TERM LOAN A FACILITY - see the RECITALS.
EURO TERM LOAN B - see SUBSECTION 2.1(d).
EURO TERM LOAN B COMMITMENT means, as to any Lender, the commitment of
such Lender to make a Euro Term Loan B pursuant to SUBSECTION 2.1(d). The amount
of each Lender's Euro Term Loan B Commitment is set forth across from such
Lender's name on SCHEDULE 2.1.
EURO TERM LOAN B FACILITY - see the RECITALS.
EVENT OF DEFAULT means any of the events or circumstances specified in
SECTION 9.1.
EXCESS CASH FLOW means, for any period, the remainder of
(a) EBITDA for such period plus non-cash Acquisition Restructuring
Charges and non-cash Other Restructuring Charges,
LESS
(b) the sum, without duplication of
(i) repayments of principal of Term Loans pursuant to SECTION 2.9
(c), (d) and (e), regularly scheduled principal payments arising with
respect to any other long-term Indebtedness of the Company and its
Subsidiaries, and the portion of any regularly scheduled payments with
respect to capital leases allocable to principal, in each case made
during such period,
PLUS
(ii) voluntary prepayments of the Term Loans pursuant to SECTION
2.7 during such period (other than any such voluntary prepayments to
the extent that the same are applied in the order of maturity pursuant
to CLAUSE (X) of SUBSECTION 2.7(b) to installments of the Term Loans
which were not scheduled to be paid during such period).
PLUS
(iii) mandatory prepayments of the Term Loans pursuant to
SUBSECTIONS 2.8(a)(i), 2.8(a)(ii) and 2.8(a)(iii) made during such
period,
PLUS
(iv) cash payments made in such period with respect to capital
expenditures,
11
PLUS
(v) all federal, state, local and foreign income taxes paid by
the Company and its Subsidiaries during such period,
PLUS
(vi) cash Interest Expense of the Company and its Subsidiaries
during such period,
PLUS
(vii) cash payments made by the Company and its Subsidiaries in
respect of pension liability, workers' compensation, payments pursuant
to SECTION 8.14(c) and other post-employment benefits to the extent
such payments exceed book expenses for such items reflected in the
calculation of EBITDA, and
plus
(viii) cash payments made by the Company and its Subsidiaries
during such period in respect of fees and expenses in connection with
the VARTA Acquisition.
EXCHANGE ACT means the Securities Exchange Act of 1934.
EXCLUDED TAXES - see the definition of "Taxes."
EXISTING AGREEMENT - see the RECITALS.
EXISTING LETTERS OF CREDIT means the Letters of Credit described in
SCHEDULE 3.1.
FACILITY means one of the credit facilities under this Agreement, i.e.,
the U.S. Revolving Facility, the Euro Revolving Facility, the Euro Term Loan A
Facility, the Euro Term Loan B Facility or the U.S. Term Loan B Facility.
FACILITY PERCENTAGE means, as to any Lender with respect to any
Facility, the percentage which (a) the amount of such Lender's Commitment under
such Facility is of (b) the aggregate amount of all of the Lenders' Commitments
under such Facility (or, if the Commitments under such Facility have terminated,
which the sum of such Lender's Loans (plus (i) in the case of the U.S. Revolving
Facility, such Lender's participation interest in U.S. Swingline Loans and L/C
Obligations, and (ii) in the case of the Euro Revolving Facility, such Lender's
participation interest in Euro Swingline Loans) is of the aggregate amount of
all Loans (and, in the case of the U.S. Revolving Facility, L/C Obligations)
under such Facility). The initial Facility Percentage for each Lender in each
Facility is set forth across from such Lender's name on SCHEDULE 2.1.
FAIR VALUE means, at any time, the amount at which the assets, in their
entirety, of each of the Company and of each Guarantor would likely change hands
at such time as part of a going concern and for continued use as part of a going
concern between a willing buyer and a willing
12
seller, within a commercially reasonable period of time, each having reasonable
knowledge of the relevant facts, with neither being under any compulsion to act.
FEDERAL FUNDS RATE means, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Bank of New York (including any such successor,
"H.15(519)") on the preceding Business Day opposite the caption "Federal Funds
(Effective)"; or, if for any relevant day such rate is not so published on any
such preceding Business Day, the rate for such day will be the arithmetic mean
as determined by the Administrative Agent of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 a.m. (New York time) on that
day by each of three leading brokers of Federal funds transactions in New York
selected by the Administrative Agent.
FEE LETTER - see SUBSECTION 2.11(a).
FIXED CHARGE COVERAGE RATIO means, as of the last day of any fiscal
quarter, the ratio of (a) Adjusted EBITDA for the Computation Period ending on
such day less Capital Expenditures made during such Computation Period to (b)
the sum of (i) Interest Expense for such Computation Period plus (ii) scheduled
repayments of Indebtedness made during such Computation Period (excluding, if
applicable, the final four installments of each of the Euro Term Loans B and the
US Term Loans B) plus (iii) dividends paid by the Company during such
Computation Period plus (iv) cash taxes paid by the Company and its Subsidiaries
during such Computation Period.
FOREIGN LENDER - see SECTION 10.10.
FOREIGN SUBSIDIARY shall mean each Subsidiary of the Company organized
under the laws of any jurisdiction other than the United States or any state
thereof.
FRB means the Board of Governors of the Federal Reserve System, and any
Governmental Authority succeeding to any of its principal functions.
FUNDED DEBT means all Indebtedness of the Company and its Subsidiaries
as determined in accordance with GAAP.
FURTHER TAXES means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar charges
(including net income taxes and franchise taxes), and all liabilities with
respect thereto, imposed by any jurisdiction on account of amounts paid or
payable pursuant to SECTION 4.1.
GAAP means generally accepted accounting principles set forth from time
to time in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date of
determination.
GERMAN ENTITIES means the Subsidiary Borrower, ROV German Holding, ROV
GP GmbH and ROV LP GmbH.
13
GERMAN FINANCE CO. means ROV German Finance GmbH.
GERMAN GAAP means generally accepted accounting principles of The
Federal Republic of Germany which are applicable to the circumstances as of the
date of determination.
GERMAN SHARE PLEDGE AGREEMENT means the following pledge agreements:
(i) a Share Pledge Agreement entered into by ROV Holding and the Lenders
regarding a portion of 66% and a portion of 34% of ROV Holding's shares in ROV
German Holding, substantially in the form of EXHIBIT R-1; (ii) a Deed of Share
Pledge Agreement entered into by ROV German Holding and the Lenders regarding
ROV German Holding's shares in ROV Limited GmbH and ROV GP GmbH, substantially
in the form of EXHIBIT R-2; (iii) a Deed of Share Pledge Agreement entered into
by ROV Limited GmbH and the Lenders regarding the pledge of ROV Limited GmbH's
future shares in the Subsidiary Borrower prior to the Transformation,
substantially in the form of EXHIBIT R-3; and (iv) a General Partnership
Interest Pledge Agreement entered into by ROV GP GmbH and the Lenders regarding
the pledge of ROV GP GmbH's future general partnership interest
(KOMMANDITANTEIL) in the Subsidiary Borrower after the Transformation,
substantially in the form of EXHIBIT R-4.
GOVERNMENTAL AUTHORITY means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
GUARANTOR means an ROV Guarantor or a KGaA Guarantor.
GUARANTY means an ROV Guaranty or a KGaA Guaranty.
GUARANTEED OBLIGATIONS - see SECTION 12.1.
GUARANTY OBLIGATION has the meaning specified in the definition of
Contingent Obligation.
HAZARDOUS MATERIAL means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by RCRA;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other
Environmental Law.
HONOR DATE - see SUBSECTION 3.3(b).
INDEBTEDNESS of any Person means, without duplication: (a) all
indebtedness of such Person for borrowed money; (b) all obligations issued,
undertaken or assumed by such Person as
14
the deferred purchase price of property or services (other than trade payables
entered into and accrued expenses arising in the ordinary course of business on
ordinary terms); (c) all non-contingent reimbursement or payment obligations
with respect to Surety Instruments; (d) all obligations of such Person evidenced
by notes, bonds, debentures or similar instruments; (e) all indebtedness of such
Person created or arising under any conditional sale or other title retention
agreement, or incurred as financing, in either case 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 obligations of such Person with respect to
capital leases; (g) all indebtedness referred to in CLAUSES (A) through (F)
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 contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Indebtedness;
and (h) all Guaranty Obligations of such Person in respect of indebtedness or
obligations of others of the kinds referred to in CLAUSES (A) through (G) above.
INDEMNIFIED LIABILITIES - see SECTION 11.5.
INDEMNIFIED PERSON - see SECTION 11.5.
INDEPENDENT AUDITOR - see SUBSECTION 7.1(a).
INSOLVENCY PROCEEDING means, with respect to any Person, (a) any case,
action or proceeding with respect to such Person before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of debtors or (b)
any general assignment for the benefit of creditors, composition, marshalling of
assets for creditors, or other, similar arrangement in respect of such Person's
creditors generally or any substantial portion of such creditors, in each case
undertaken under any U.S. Federal, State or foreign law, including the
Bankruptcy Code.
INTEREST COVERAGE RATIO means, as of the last day of any fiscal
quarter, the ratio of (a) Adjusted EBITDA for the Computation Period ending on
such day to (b) Interest Expense for such Computation Period.
INTEREST EXPENSE means for any period the consolidated interest expense
of the Company and its Subsidiaries for such period (including all imputed
interest on capital leases). If the Company or any Subsidiary makes an
Acquisition or a material divestiture during any Computation Period, then for
purposes of determining the Interest Coverage Ratio and the Leverage Ratio,
Interest Expense shall be adjusted to account for all increases or decreases in
Indebtedness directly related to such Acquisition or divestiture based on the
assumption that such increase or decrease had occurred on the first day of such
Computation Period rather than on the date of such Acquisition or divestiture,
all as reasonably determined by the Company and certified to the Administrative
Agent and the Lenders.
INTEREST PAYMENT DATE means (i) as to any Eurocurrency Loan, the last
day of each Interest Period applicable to such Loan and, in the case of any
Eurocurrency Loan with a six-month Interest Period, the three-month anniversary
of the first day of such Interest Period, and (ii) as to any Base Rate Loan, the
last Business Day of each calendar quarter.
15
INTEREST PERIOD means, as to any Eurocurrency Loan, the period
commencing on the Borrowing Date of such Loan or on the Conversion/Continuation
Date on which the Loan is converted into or continued as an Eurocurrency Loan,
and ending one, two, three or six months thereafter (or such other period, not
exceeding three months, as may be agreed among the applicable Borrower and the
Administrative Agent and specified to the Lenders under the applicable Facility
upon not less than four Business Days' notice), as selected by the applicable
Borrower in its Notice of Borrowing or Notice of Conversion/Continuation;
PROVIDED that:
(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
following Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the 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 the calendar month at
the end of such Interest Period;
(iii) no Interest Period for a Euro Term Loan A or any portion
thereof shall extend beyond any date on which a scheduled principal
payment is due in respect of the Euro Term Loans A unless the
aggregate principal amount of all Euro Term Loans A which have
Interest Periods that will expire on or before such date equals or
exceeds the amount of such principal payment;
(iv) no Interest Period for a Euro Term Loan B or any portion
thereof shall extend beyond any date on which a scheduled principal
payment is due in respect of the Euro Term Loans B unless the
aggregate principal amount of all Euro Term Loans B which have
Interest Periods that will expire on or before such date equals or
exceeds the amount of such principal payment;
(v) no Interest Period for a U.S. Term Loan B or any portion
thereof shall extend beyond any date on which a scheduled principal
payment is due in respect of the U.S. Term Loans B unless the
aggregate principal amount of all U.S. Term Loans B which are Base
Rate Loans, or have Interest Periods that will expire on or before
such date, equals or exceeds the amount of such principal payment;
(vi) no Interest Period for any U.S. Revolving Loan shall extend
beyond the scheduled U.S. Revolving Termination Date; and
(vii) no Interest Period for any Euro Revolving Loan shall extend
beyond the scheduled Euro Revolving Termination Date.
IRB DEBT means Indebtedness of the Company arising as a result of the
issuance of tax-exempt industrial revenue bonds or similar tax-exempt public
financing.
IRS means the Internal Revenue Service, and any Governmental Authority
succeeding to any of its principal functions under the Code.
16
ISSUANCE DATE - see SUBSECTION 3.1(a).
ISSUE means, with respect to any Letter of Credit, to issue or to
extend the expiry of, or to increase the amount of, such Letter of Credit; and
the terms "ISSUED," "ISSUING" and "ISSUANCE" have corresponding meanings.
ISSUING LENDER means Bank of America in its capacity as issuer of one
or more Letters of Credit hereunder, together with any replacement letter of
credit issuer arising under SUBSECTION 10.1(b) or SECTION 10.9.
JOINT VENTURE means a corporation, partnership, limited liability
company, joint venture or other similar legal arrangement (whether created by
contract or conducted through a separate legal entity) which is not a Subsidiary
of the Company or any of its Subsidiaries and which is now or hereafter formed
by the Company or any of its Subsidiaries with another Person in order to
conduct a common venture or enterprise with such Person.
JUDGMENT CURRENCY - see SECTION 11.18.
KGAA GUARANTOR means the Company, each Subsidiary having a direct or
indirect ownership interest in the Subsidiary Borrower, Cayman Finance Co. and
each other Person which from time to time executes and delivers a counterpart of
the KGaA Guaranty.
KGAA GUARANTY means each of (a) a Guaranty of the Obligations of the
Subsidiary Borrower, substantially in the form of EXHIBIT F-1, issued by any
Subsidiary having a direct or indirect ownership interest in the Subsidiary
Borrower, Cayman Finance Co. and Rayovac (UK) Ltd. and (b) any other guaranty
issued by any Person of the Obligations of the Subsidiary Borrower.
KMART CHARGE means the $16,100,000 of write-off of accounts receivable
taken by the Company in the first fiscal quarter of 2002 in connection with
actual and potential losses arising out of the filing by Kmart Corporation for
protection under Chapter 11 of the Bankruptcy Code.
KMART PRE-PETITION RECEIVABLES means accounts receivable owed by Kmart
Corporation or any Affiliate thereof to the Company or any Subsidiary arising
prior to the filing by Kmart Corporation for protection under Chapter 11 of the
Bankruptcy Code in January of 2002.
KMART RECOVERIES means any amounts (including sale proceeds) received
by the Company or any Subsidiary with respect to Kmart Pre-Petition Receivables.
L/C ADVANCE means each Lender's participation in any L/C Borrowing in
accordance with its applicable Facility Percentage.
L/C AMENDMENT APPLICATION means an application form for amendment of an
outstanding standby or commercial documentary letter of credit as shall at any
time be in use at the Issuing Lender, as the Issuing Lender shall request.
17
L/C APPLICATION means an application form for issuance of a standby or
commercial documentary letter of credit as shall at any time be in use at the
Issuing Lender, as the Issuing Lender shall request.
L/C BORROWING means an extension of credit resulting from a drawing
under any Letter of Credit which shall not have been reimbursed on the date when
made nor converted into a Borrowing of U.S. Revolving Loans under SUBSECTION
3.3(c).
L/C COMMITMENT means the commitment of the Issuing Lender to Issue, and
the commitments of the Lenders severally to participate in, Letters of Credit
(including the Existing Letters of Credit) from time to time Issued or
outstanding under ARTICLE III, in an aggregate amount not to exceed on any date
the lesser of $40,000,000 and the U.S. Revolving Commitment Amount; IT BEING
UNDERSTOOD that the L/C Commitment is a part of the U.S. Revolving Commitments,
rather than a separate, independent commitment.
L/C FEE RATE means, at any time for any Letter of Credit, the rate per
annum determined pursuant to SCHEDULE 1.1; PROVIDED that such rate shall be
increased by 2% at any time an Event of Default exists.
L/C OBLIGATIONS means at any time the sum of (a) the aggregate undrawn
amount of all Letters of Credit then outstanding, PLUS (b) the aggregate amount
of all undrawn Commercial Letters of Credit which expired less than 25 days
prior to such date, PLUS (c) the amount of all unreimbursed drawings under all
Letters of Credit, including all outstanding L/C Borrowings.
L/C-RELATED DOCUMENTS means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document relating to
any Letter of Credit, including any of the Issuing Lender's standard form
documents for letter of credit issuances.
LENDERS means the several financial institutions from time to time
party to this Agreement. References to the "Lenders" shall include Bank of
America in its capacity as the Issuing Lender and in its capacity as Swingline
Lender; for purposes of clarification only, to the extent that the Issuing
Lender or the Swingline Lender may have any rights or obligations in addition to
those of the other Lenders due to its status as Issuing Lender or Swingline
Lender, its status as such will be specifically referenced. References made to
the Lenders under any particular Facility shall only include the Lenders which
have Commitments and/or Loans and/or are participating in Letters of Credit
under such Facility.
LENDING OFFICE means, as to any Lender, the office or offices of such
Lender specified as its "Lending Office" or "Domestic Lending Office" or
"Eurocurrency Lending Office", as the case may be, in the administrative
questionnaire delivered to the Administrative Agent, or such other office or
offices as such Lender may from time to time specify to the Company and the
Administrative Agent.
LETTER OF CREDIT means the Existing Letters of Credit and any letter of
credit (whether a standby letter of credit or commercial documentary letter of
credit) Issued by the Issuing Lender pursuant to ARTICLE III.
18
LEVERAGE RATIO means, as of any date, the ratio of (i) the aggregate
outstanding principal amount of all Funded Debt as of such date TO (ii) Adjusted
EBITDA for the Computation Period most recently ended on or before such date for
which financial statements have been delivered pursuant to SECTION 7.1.
LIEN means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance, lien
(statutory or other) or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those created by, arising under
or evidenced by any conditional sale or other title retention agreement, the
interest of a lessor under a capital lease, or any financing lease having
substantially the same economic effect as any of the foregoing, but not
including the interest of a lessor under an operating lease).
LOAN means an extension of credit by a Lender to a Borrower under
ARTICLE II or ARTICLE III in the form of a U.S. Revolving Loan, Euro Revolving
Loan, Euro Term Loan A, Euro Term Loan B, U.S. Term Loan B, Swingline Loan or
L/C Advance.
LOAN DOCUMENTS means this Agreement, any Notes, any Fee Letter, the
L/C-Related Documents, an ROV Guaranty, a KGaA Guaranty, the Collateral
Documents and all other documents delivered to the Administrative Agent or any
Lender in connection herewith.
MANDATORY PREPAYMENT EVENT - see SUBSECTION 2.8(a).
MARGIN STOCK means "margin stock" as such term is defined in Regulation
T, U or X of the FRB.
MATERIAL ADVERSE EFFECT means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of the Company and its Subsidiaries taken
as a whole; (b) a material impairment of the ability of either Borrower or any
Guarantor to perform any of its obligations under any Loan Document; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against either Borrower or any Guarantor of any Loan Document.
MAXIMUM RATE - see SECTION 11.17.
MINERA VIDALUZ means Minera Vidaluz, S.A. de C.V., a corporation
organized under the laws of Mexico.
MORTGAGE means a mortgage, leasehold mortgage, deed of trust or similar
document granting a Lien on real property in appropriate form for filing or
recording in the applicable jurisdiction and otherwise reasonably satisfactory
to the Administrative Agent.
MORTGAGE AMENDMENT means an amendment to a Mortgage previously executed
by the Company or a Subsidiary, substantially in the form of EXHIBIT N.
MULTIEMPLOYER PLAN means a "multiemployer plan", within the meaning of
Section 4001(a)(3) of ERISA, with respect to which the Company or any ERISA
Affiliate may have any liability.
19
NET CASH PROCEEDS means:
(a) with respect to the sale, transfer, or other disposition by the
Company or any Subsidiary of any asset (including any stock of any Subsidiary),
the aggregate cash proceeds (including cash proceeds received by way of deferred
payment of principal pursuant to a note, installment receivable or otherwise,
but only as and when received) received by the Company or any Subsidiary
pursuant to such sale, transfer or other disposition, net of (i) the direct
costs relating to such sale, transfer or other disposition (including sales
commissions and legal, accounting and investment banking fees), (ii) taxes paid
or reasonably estimated by the Company to be payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements) and (iii) amounts required to be applied to the repayment of any
Indebtedness secured by a Lien on the asset subject to such sale, transfer or
other disposition (other than the Loans); and
(b) with respect to any issuance of equity securities or
Indebtedness, the aggregate cash proceeds received by the Company or any
Subsidiary pursuant to such issuance, net of the direct costs relating to such
issuance (including sales and underwriter's discounts and commissions and legal,
accounting and investment banking fees).
NETHERLANDS SHARE PLEDGE AGREEMENT means each of (i) the Deed of Pledge
dated as of October 1, 2002 between ROV Holding and the Administrative Agent
with respect to 66% of the shares of Rayovac Europe B.V., substantially in the
form of EXHIBIT H-3, and (ii) the Deed of Pledge dated as of October 1, 2002
between ROV Holding and the Administrative Agent with respect to 34% of the
shares of Rayovac Europe B.V., substantially in the form of EXHIBIT H-4.
NON-DOLLAR LETTER OF CREDIT - see SECTION 3.10.
NON-USE FEE RATE means at any time the rate per annum determined
pursuant to SCHEDULE 1.1.
NOTE means a promissory note executed by a Borrower in favor of a
Lender pursuant to SUBSECTION 2.2(b), in substantially the form of EXHIBIT D-1
(with respect to the Company) or EXHIBIT D-2 (with respect to the Subsidiary
Borrower), as applicable.
NOTICE OF BORROWING means a notice in substantially the form of EXHIBIT
A-1 (in the case of Loans in Dollars), EXHIBIT A-2 (in the case of Loans in
Euro) or EXHIBIT A-3 (in the case of Euro Swingline Loans).
NOTICE OF CONVERSION/CONTINUATION means a notice in substantially the
form of EXHIBIT B.
OBLIGATIONS means all advances, debts, liabilities, obligations,
covenants and duties arising under any Loan Document owing by either Borrower to
any Lender, the Administrative Agent, or any Indemnified Person, whether direct
or indirect (including those acquired by assignment), absolute or contingent,
due or to become due, or now existing or hereafter arising.
OECD means the Organization for Economic Cooperation and Development.
20
ORGANIZATION DOCUMENTS means, (a) for any domestic corporation, the
certificate or articles of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred shareholders of
such corporation, any shareholder rights agreement, and all applicable
resolutions of the board of directors (or any committee thereof) of such
corporation and (b) for any foreign corporation, the equivalent documents.
OTHER RESTRUCTURING CHARGES means the following restructuring charges
taken by the Company in connection with its previously announced U.S.
restructuring: (a) not more than $2,600,000 of non-cash restructuring charges
taken during the fiscal year ending September 30, 2002; (b) not more than
$6,400,000 of cash restructuring charges taken during the fiscal year ending
September 30, 2003; and (c) not more than $4,000,000 of non-cash restructuring
charges taken during the fiscal year ending September 30, 2003.
OTHER TAXES means any present or future stamp, court or documentary
taxes or any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to, this
Agreement or any other Loan Document.
OVERNIGHT RATE means, with respect to any Euro Swingline Loan or any
unpaid sum denominated in a currency other than Dollars, the rate of interest
per annum determined by the Administrative Agent as the rate of interest at
which deposits in the applicable currency, in the approximate amount of such
Euro Swingline Loan or such sum and having a term of one Business Day (or, in
the case of a Euro Swingline Loan, such other period not exceeding one month as
may be agreed by the Subsidiary Borrower and the Swingline Lender), would be
offered to major banks in the London interbank market at their request at
approximately 11:00 a.m. (London time) two Business Days (or such other period
of time as the Administrative Agent determines is customary for deposits in the
applicable currency and for the applicable term) prior to the first day of the
term for which such rate is being determined (or, in the case of a Euro
Swingline Loan, such other rate as may be agreed upon between the Subsidiary
Borrower and the Swingline Lender).
PARTICIPANT - see SUBSECTION 11.8(c).
PAYMENT SHARING NOTICE means a notice to the Administrative Agent from
Lenders which have Facility Percentages of 50% or more under any Facility
requesting that payments be shared in accordance with the provisions of
SUBSECTION 2.15(b).
PAYMENT SHARING PERIOD means any period (a) beginning on a date on
which (i) an Event of Default exists under SUBSECTION 9.1(a), (f) or (g) and
(ii) the Administrative Agent receives a Payment Sharing Notice and (b) ending
on the first date thereafter on which (i) no Event of Default exists under
SUBSECTION 9.1(a), (f) or (g) or (ii) all Payment Sharing Notices received by
the Administrative Agent initiating, or during, such Payment Sharing Period have
been rescinded by Lenders which have Facility Percentages of more than 50% under
each applicable Facility.
PBGC means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under ERISA.
21
PENSION PLAN means a pension plan (as defined in Section 3(2) of ERISA)
subject to Title IV of ERISA with respect to which the Company or any ERISA
Affiliate may have any liability.
PERCENTAGE means, as to any Lender, the percentage which (a) the sum of
the amount of such Lender's Commitment plus, with respect to any Facility under
which the Commitments have expired or terminated, the amount of such Lender's
Loans and participation in Swingline Loans and/or L/C Obligations, as
applicable, is of (b) the sum of the aggregate amount of all of the Lenders'
Commitments plus, with respect to any Facility under which the Commitments have
expired or terminated, the aggregate amount of all Loans and L/C Obligations.
The initial Percentage for each Lender is set forth across from such Lender's
name on SCHEDULE 2.1.
PERMITTED LIENS - see SECTION 8.1.
PERMITTED SWAP OBLIGATIONS means all obligations (contingent or
otherwise) of the Company or any Subsidiary existing or arising under Swap
Contracts, PROVIDED that each of the following criteria is satisfied: (a) such
obligations are (or were) entered into by such Person in the ordinary course of
business for the purpose of directly mitigating risks associated with
liabilities, commitments or assets held or reasonably anticipated by such
Person, or changes in the value of securities issued by such Person in
conjunction with a securities repurchase program not otherwise prohibited
hereunder, and not for purposes of speculation or taking a "market view;" and
(b) such Swap Contracts do not contain any provision ("walk-away" provision)
exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party.
PERSON means an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture or Governmental Authority.
PLAN means an employee benefit plan (as defined in Section 3(3) of
ERISA) with respect to which the Company may have any liability.
PLEDGE AGREEMENT means the Company Pledge Agreement, each Subsidiary
Pledge Agreement and the German Share Pledge Agreements.
PRESENT FAIR SALEABLE VALUE means, at any time, the amount that could
be obtained at such time by an independent willing seller from an independent
willing buyer if the assets of each of the Company and each Guarantor are sold
with reasonable promptness in an arm's-length transaction under present
conditions for the sale of comparable assets.
QUALIFIED FOREIGN CREDIT FACILITY means a credit facility provided by a
Lender or an Affiliate of a Lender to any Foreign Subsidiary which (i) is
guarantied by the Company, (ii) is permitted under SUBSECTION 8.5(d) and (iii)
the Company has specified (in a written notice to the Administrative Agent) is
entitled to the benefit of the Guaranty and the Collateral Documents.
QUALIFIED FOREIGN LENDER means any Lender or any Affiliate of a Lender
which is a party to a Qualified Foreign Credit Facility.
22
RCRA means the Resource Conservation and Recovery Act, 42 U.S.C.
Section 690, ET SEQ.
RELEASE means a "release", as such term is defined in CERCLA.
REPORTABLE EVENT means any of the events set forth in Section 4043(b)
of ERISA or the regulations thereunder, other than any such event for which the
30-day notice requirement under ERISA has been waived in regulations issued by
the PBGC or administrative pronouncements.
REQUIRED LENDERS means, at any time, Lenders having an aggregate
Percentage of 51% or more.
REQUIREMENT OF LAW means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
RESPONSIBLE OFFICER means the chief executive officer or the president
of the Company, or any other officer having substantially the same authority and
responsibility or the chief financial officer or the treasurer of the Company,
or any other officer having substantially the same authority and responsibility.
ROV GERMAN HOLDING means ROV German Holding GmbH, with a registered
seat in Eschborn, registered under file no. HRB 55482 with the Commercial
Register (HANDELSREGISTER) located with the local court (AMTSGERICHT) Frankfurt
am Main, Germany.
ROV GP GMBH means ROV German General Partner GmbH, with a registered
seat in Eschborn, registered under file no. HRB 55425 with the Commercial
Register (HANDELSREGISTER) located with the local court (AMTSGERICHT) Frankfurt
am Main, Germany.
ROV GUARANTOR means ROV Holding, Rovcal, Cayman Finance Co., each other
Domestic Subsidiary and each other Person which from time to time executes and
delivers a counterpart of an ROV Guaranty.
ROV GUARANTY means each of (a) an Amended and Restated Subsidiary
Guaranty with respect to the Obligations of the Company, substantially in the
form of EXHIBIT F-2, issued by each Domestic Subsidiary of the Company (other
than any Dormant Subsidiary) and Cayman Finance Co., and (b) any other guaranty
issued by any Person of the Obligations of the Company.
ROV HOLDING means ROV Holding, Inc., a Delaware corporation and a
Subsidiary.
ROV LP GMBH means ROV German Limited GmbH, with a registered seat in
Eschborn, registered under file no. HRB 55352 with the Commercial Register
(HANDELSREGISTER) located with the local court (AMTSGERICHT) Frankfurt am Main,
Germany.
ROVCAL means Rovcal, Inc., a direct, Wholly-Owned Subsidiary of the
Company organized under the laws of California, and having a principal place of
business in the State of
23
California, the primary business of which is the ownership of intellectual
property and the licensing of such property to the Company and its other
Subsidiaries.
SEC means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
SECURITY AGREEMENT means a Restated Security Agreement among the
Company, each Domestic Subsidiary (other than any Dormant Subsidiary), any other
Person that becomes a party thereto and the Administrative Agent, substantially
in the form of EXHIBIT E.
SECURITY ASSIGNMENT AGREEMENT means a Global Assignment Agreement on
the Global Assignment of Accounts Receivable, substantially in the form of
EXHIBIT Q, entered into by the Subsidiary Borrower and the Administrative Agent
for the benefit of the Lenders.
SECURITY TRANSFER AGREEMENT means a Security Transfer Agreement,
substantially in the form of EXHIBIT S, entered by the Subsidiary Borrower and
the Administrative Agent for the benefit of the Lenders.
SECURITY TRUST AGREEMENT means a Security Trust Agreement,
substantially in the form of EXHIBIT W, entered into among the Security Grantors
and the Original Lenders (each as defined therein) and the Administrative Agent.
STANDBY LETTER OF CREDIT means any Letter of Credit that is not a
Commercial Letter of Credit.
STATED LIABILITIES means, at any time, the recorded liabilities
(including Contingent Liabilities that would be recorded in accordance with
GAAP) of each of the Company and of each Guarantor at such time after giving
effect to the transactions contemplated under this Agreement, determined in
accordance with GAAP consistently applied, together with the amount, without
duplication, of all Loans and Contingent Liabilities.
SUBORDINATED DEBT means all unsecured Indebtedness of the Company for
money borrowed which is subject to, and is only entitled to the benefits of,
terms and provisions (including maturity, amortization, acceleration, interest
rate, sinking fund, covenant, default and subordination provisions) satisfactory
in form and substance to the Required Lenders, in each case as evidenced by
their written approval thereof (which may be granted or withheld in their sole
discretion).
SUBSIDIARY of a Person means any corporation, association, partnership,
limited liability company, joint venture or other business entity of which more
than 50% of the voting stock, membership interests or other equity interests is
owned or controlled directly or indirectly by such Person, or one or more of the
Subsidiaries of such Person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a "Subsidiary" refer to a
Subsidiary of the Company.
SUBSIDIARY BORROWER - see the PREAMBLE.
24
SUBSIDIARY PLEDGE AGREEMENT means the U.K. Charge, the Netherlands
Share Pledge Agreements, the Canadian Share Pledge Agreement, the Cayman Pledge
Agreements, the German Share Pledge Agreements and each other agreement pursuant
to which any Subsidiary pledges to the Administrative Agent shares of stock or
other equity interests owned by it or Indebtedness owing to it.
SURETY INSTRUMENTS means all letters of credit (including standby and
commercial), banker's acceptances, bank guaranties, surety bonds and similar
instruments.
SWAP CONTRACT means any agreement, whether or not in writing, relating
to any transaction that is a rate swap, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap or option, bond,
note or xxxx option, interest rate option, foreign exchange transaction, cap,
collar or floor transaction, currency swap, cross-currency rate swap, swaption,
currency option or any other, similar transaction (including any option to enter
into any of the foregoing) or any combination of the foregoing, and, unless the
context otherwise clearly requires, any master agreement relating to or
governing any or all of the foregoing.
SWAP TERMINATION VALUE means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in CLAUSE (A) the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include any Lender).
SWINGLINE LENDER means Bank of America in its capacity as lender of
Swingline Loans, together with any replacement lender of Swingline Loans arising
under SECTION 10.9.
SWINGLINE LOAN means a U.S. Swingline Loan or a Euro Swingline Loan.
SYNTHETIC LEASE means a lease by the Company or a Subsidiary which is
an operating lease for financial reporting purposes (as determined pursuant to
Statement of Financial Accounting Standards No. 13) of properties which are
reported for United States income tax purposes as owned by the Company or a
Subsidiary.
SYNTHETIC LEASE OBLIGATIONS means obligations of the lessee under a
Synthetic Lease. The amount of Synthetic Lease Obligations under any Synthetic
Lease shall be determined in accordance with GAAP as if such lease were a
capital lease.
TAXES means any and all present or future taxes, levies, assessments,
imposts, duties, deductions, charges or withholdings, fees or similar charges
and all liabilities with respect thereto, excluding, in the case of each Lender
and the Administrative Agent, such taxes (including income taxes, branch profit
taxes or franchise taxes) as are imposed on or measured by such Lender's or the
Administrative Agent's, as the case may be, net income by the jurisdiction (or
any political subdivision thereof) under the laws of which such Lender or the
25
Administrative Agent, as the case may be, is organized, maintains a lending
office or conducts business (collectively, "EXCLUDED TAXES").
TERM LOAN means a Euro Term Loan A, a Euro Term Loan B or a U.S. Term
Loan B.
TRANSFORMATION means the change of the Subsidiary Borrower's corporate
form from a GmbH into a KGaA after the Effective Date.
TYPE of Loan means the characterization of a Loan as a Base Rate Loan
or a Eurocurrency Loan.
U.K. CHARGE means a Deed of Charge and Memorandum of Deposit,
substantially in the form of EXHIBIT H-1, between ROV Holding and the
Administrative Agent.
UNFUNDED PENSION LIABILITY means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of such
Pension Plan's assets, determined in accordance with the assumptions used for
funding such Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
UNITED STATES and U.S. each means the United States of America.
UNMATURED EVENT OF DEFAULT means any event or circumstance which, with
the giving of notice, the lapse of time, or both, would (if not cured or
otherwise remedied during such time) constitute an Event of Default.
U.S. REVOLVING COMMITMENT means, as to any Lender, the commitment of
such Lender to make U.S. Revolving Loans pursuant to SUBSECTION 2.1(a). The
initial amount of each Lender's U.S. Revolving Commitment is set forth across
from such Lender's name on SCHEDULE 2.1.
U.S. REVOLVING COMMITMENT AMOUNT means $100,000,000, as changed from
time to time in accordance with the terms hereof.
U.S. REVOLVING FACILITY - see the RECITALS.
U.S. REVOLVING LOAN - see SUBSECTION 2.1(a).
U.S. REVOLVING OUTSTANDINGS means, at any time, the sum of the
principal amount of all outstanding U.S. Revolving Loans and U.S. Swingline
Loans plus the Effective Amount of all L/C Obligations.
U.S. REVOLVING TERMINATION DATE means the earlier to occur of (a)
October 1, 2008; and (b) the date on which the U.S. Revolving Commitments
terminate in accordance with the provisions of this Agreement.
U.S. SWINGLINE LOAN has the meaning specified in SUBSECTION 2.5(a).
U.S. TERM LOAN B - see SUBSECTION 2.1(e).
26
U.S. TERM LOAN B COMMITMENT means, as to any Lender, the commitment of
such Lender to make a U.S. Term Loan B pursuant to SUBSECTION 2.1(e). The amount
of each Lender's U.S. Term Loan B Commitment is set forth across from such
Lender's name on SCHEDULE 2.1.
U.S. TERM LOAN B FACILITY - see the RECITALS.
VARTA means VARTA Geratebatterie GmbH and its Subsidiaries.
VARTA ACQUISITION means the acquisition by the Company of certain
assets of VARTA (excluding VARTA's ownership interest in Microlite and certain
other assets transferred to VARTA's parent or Affiliates).
VARTA ACQUISITION AGREEMENT means the Agreement dated July 28, 2002
among VARTA AG, ROV German Limited GmbH and the Company delivered in connection
with the VARTA Acquisition.
VARTA EXCHANGE means the transfer of the stock of German Finance Co. to
VARTA AG or an affiliate thereof in exchange for the stock of the Subsidiary
Borrower owned by VARTA AG or an affiliate thereof and not more than
(a)1,000,000, all on the terms set forth in Article XI of the VARTA Acquisition
Agreement as in effect on the date hereof.
VOTING STOCK means, with respect to any corporation, the capital stock
of such corporation having general voting power under ordinary circumstances to
elect directors to the board of directors of such corporation, but shall not
include any capital stock that has or would have such voting power solely by
reason of the happening of any contingency.
WHOLLY-OWNED SUBSIDIARY means (i) any Person in which (other than
director's qualifying shares or similar shares owned by other Persons due to
native ownership requirements) 100% of the capital stock or other equity
interests of each class is owned beneficially and of record by the Company or by
one or more other Wholly-Owned Subsidiaries and (ii) the Subsidiary Borrower.
ZOE-PHOS INTERNATIONAL means Zoe-Phos International N.V., a corporation
organized under the laws of the Netherlands Antilles.
1.2 OTHER INTERPRETIVE PROVISIONS. (a) The meanings of defined terms
are equally applicable to the singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words
refer to this Agreement as a whole and not to any particular provision of this
Agreement; and SUBSECTION, SECTION, SCHEDULE and EXHIBIT references are to this
Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
27
(iii) In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including";
the words "to" and "until" each mean "to but excluding"; and the word
"through" means "to and including."
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
(f) This Agreement and the other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and shall
each be performed in accordance with their terms.
1.3 ACCOUNTING PRINCIPLES.
(a) Unless the context otherwise clearly requires, all accounting
terms not expressly defined herein shall be construed, and all financial
computations required under this Agreement shall be made, in accordance with
GAAP, consistently applied; PROVIDED that if the Company notifies the
Administrative Agent that the Company wishes to amend any covenant in ARTICLE
VIII or any corresponding definition to eliminate the effect of any change in
GAAP on the operation of such covenant (or if the Administrative Agent notifies
the Company that the Required Lenders wish to amend ARTICLE VIII or any
corresponding definition for such purpose), then the Company's compliance with
such covenant shall be determined on the basis of GAAP in effect immediately
before the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Company
and the Required Lenders.
(b) References herein to "fiscal year" and "fiscal quarter" refer
to such fiscal periods of the Company.
1.4 REALLOCATION OF LOANS AND COMMITMENTS.
(a) The Company and each Lender agree that, effective on the
Effective Date, this Agreement amends and restates in its entirety the Existing
Agreement. On the Effective Date, the Commitments of the Lenders shall be
reallocated in accordance with the terms hereof.
(b) To facilitate the reallocation described in SUBSECTION (a), on
the Effective Date, (i) all loans under the Existing Agreement shall be deemed
to be Loans hereunder, (ii) each Lender which is a party to the Existing
Agreement shall transfer to the Administrative Agent an amount equal to the
excess, if any, of such Lender's Percentage of all outstanding Loans in Dollars
to the Company hereunder (including any Loans in Dollars requested by the
Company on
28
the Effective Date) over the amount of all of such Lender's loans under the
Existing Agreement, (iii) each Lender which is not a party to the Existing
Agreement shall transfer to the Administrative Agent an amount equal to such
Lender's Percentage of all outstanding Loans in Dollars to the Company hereunder
(including any Loans in Dollars requested by the Company on the Effective Date),
(iv) the Administrative Agent shall apply the funds received from the Lenders
pursuant to CLAUSES (II) and (III), FIRST, on behalf of the Lenders (pro rata
according to the amount of the loans each is required to purchase to achieve the
reallocation described in SUBSECTION (a)), to purchase from each Existing Lender
which is not a party hereto the loans of such Existing Lender under the Existing
Agreement (and, if applicable to purchase from any Existing Lender which is a
party hereto but which has loans under the Existing Agreement in excess of such
Lender's Percentage of all then-outstanding Loans in Dollars hereunder
(including any Loans in Dollars requested by the Company on the Effective Date),
a portion of such loans equal to such excess), SECOND, to pay to each Existing
Lender all interest, fees and other amounts (including amounts payable pursuant
to Section 4.4 of the Existing Agreement, assuming for such purpose that the
loans under the Existing Agreement were prepaid rather than reallocated on the
Effective Date) owed to such Existing Lender under the Existing Agreement
(whether or not otherwise then due) and, THIRD, as the Company shall direct and
(v) the Company shall select new Interest Periods to apply to all Loans in
Dollars hereunder (or, to the extent the Company fails to do so with respect to
any Eurodollar Loans, such Loans shall be Base Rate Loans).
ARTICLE II
THE CREDITS
2.1 AMOUNTS AND TERMS OF COMMITMENTS.
(a) THE U.S. REVOLVING FACILITY. Each Lender severally agrees, on
the terms and conditions set forth herein, to make loans to the Company (each
such loan, a "U.S. REVOLVING LOAN") from time to time on any Business Day during
the period from the Effective Date to the U.S. Revolving Termination Date, in an
aggregate amount not to exceed at any time outstanding such Lender's Facility
Percentage of the U.S. Revolving Commitment Amount; PROVIDED that, after giving
effect to any Borrowing of U.S. Revolving Loans, the U.S. Revolving Outstandings
shall not exceed the U.S. Revolving Commitment Amount. Within the foregoing
limits, and subject to the other terms and conditions hereof, the Company may
borrow under this SUBSECTION 2.1(a), prepay under SECTION 2.7 or 2.8 and
reborrow under this SUBSECTION 2.1(a).
(b) THE EURO REVOLVING FACILITY. Each Lender severally agrees, on
the terms and conditions set forth herein, to make loans to the Subsidiary
Borrower (each such loan, a "EURO REVOLVING LOAN") from time to time on any
Business Day during the period from the Effective Date to the Euro Revolving
Termination Date, in an aggregate amount not to exceed at any time outstanding
such Lender's Facility Percentage of the Euro Revolving Commitment Amount;
PROVIDED that, after giving effect to any Borrowing of Euro Revolving Loans, the
Euro Revolving Outstandings shall not exceed the lesser of (i) the Euro
Revolving Commitment Amount and (ii) the Borrowing Base. Within the foregoing
limits, and subject to the other terms and conditions hereof, the Subsidiary
Borrower may borrow under this SUBSECTION 2.1(b), prepay under SECTION 2.7 or
2.8 and reborrow under this SUBSECTION 2.1(b).
29
(c) THE EURO TERM LOAN A FACILITY. Each Lender severally agrees,
on the terms and conditions set forth herein, to make a single loan to the
Company (each such loan, a "EURO TERM LOAN A") on the Effective Date in the
amount of such Lender's Euro Term Loan A Commitment. Amounts borrowed as Euro
Term Loans A which are repaid or prepaid by the Company may not be reborrowed.
The Euro Term Loan A Commitments shall expire concurrently with the making of
the Euro Term Loans A on the Effective Date.
(d) THE EURO TERM LOAN B FACILITY. Each Lender severally agrees,
on the terms and conditions set forth herein, to make a single loan to the
Company (each such loan, a "EURO TERM LOAN B") on the Effective Date in the
amount of such Lender's Euro Term Loan B Commitment. Amounts borrowed as Euro
Term Loans B which are repaid or prepaid by the Company may not be reborrowed.
The Euro Term Loan B Commitments shall expire concurrently with the making of
the Euro Term Loans B on the Effective Date.
(e) THE U.S. TERM LOAN B FACILITY. Each Lender severally agrees,
on the terms and conditions set forth herein, to make a single loan to the
Company (each such loan, a "U.S. TERM LOAN B") on the Effective Date in the
amount of such Lender's U.S. Term Loan B Commitment. Amounts borrowed as U.S.
Term Loans B which are repaid or prepaid by the Company may not be reborrowed.
The U.S. Term Loan B Commitments shall expire concurrently with the making of
the U.S. Term Loans B on the Effective Date.
2.2 LOAN ACCOUNTS. (a) The Loans made by each Lender and the Letters of
Credit Issued by the Issuing Lender shall be evidenced by one or more accounts
or records maintained by the Administrative Agent and such Lender or the Issuing
Lender, as the case may be, in the ordinary course of business. The accounts or
records maintained by the Administrative Agent and each Lender or the Issuing
Lender, as the case may be, shall be conclusive (absent manifest error) as to
the amount of the Loans made by the Lenders to each Borrower and the Letters of
Credit Issued for the account of the Company, and the interest and payments
thereon. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Any failure to record or
any error in doing so shall not, however, limit or otherwise affect the
obligation of either Borrower to pay any amount owing by such Borrower with
respect to any Loan or any Letter of Credit.
(b) Upon the request of any Lender made through the Administrative
Agent, the Loans made by such Lender to a Borrower may be evidenced by a Note
issued by such Borrower in addition to a loan account. Each such Lender shall
endorse on the schedules annexed to the applicable Note the date, amount and
maturity of each Loan made by the applicable Borrower and the amount of each
payment of principal made by such Borrower with respect thereto. Each such
Lender is irrevocably authorized by the applicable Borrower to endorse the Note
issued by such Borrower to such Lender and each Lender's record shall be
conclusive absent manifest error; PROVIDED that the failure of a Lender to make,
or an error in making, a notation thereon with respect to any Loan shall not
limit or otherwise affect the obligations of the applicable Borrower hereunder
or under the Note issued by such Borrower to such Lender.
30
2.3 PROCEDURE FOR BORROWING. (a) Each Borrowing shall be made upon
the applicable Borrower's irrevocable written notice delivered to the relevant
Agent's Payment Office in the form of a Notice of Borrowing (which notice must
be received by the Administrative Agent (i) prior to 12:00 noon (Chicago time)
three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, (ii) prior to 12:00 noon (Chicago time) one Business Day prior
to the requested Borrowing Date, in the case of Base Rate Loans) and (iii) prior
to 12:00 noon (London time) three Business Days prior to the requested Borrowing
Date, in the case of Loans in Euros), specifying:
(A) the amount of the Borrowing, which shall be in an
amount of (x) $5,000,000 or a higher integral multiple of
$1,000,000, in the case of Loans in Dollars, or (y)
(a)1,000,000 or a higher integral multiple of (a)500,000, in
the case of Loans in Euros;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) in the case of Loans in Dollars, the Type of Loans
comprising the Borrowing; and
(D) in the case of Eurocurrency Loans, the duration of
the Interest Period applicable to such Borrowing.
(b) The Administrative Agent will promptly notify each applicable
Lender of its receipt of any Notice of Borrowing and of the amount of such
Lender's share of the related Borrowing.
(c) Each Lender will make the amount of its share of each
Borrowing available to the Administrative Agent for the account of the
applicable Borrower at the relevant Agent's Payment Office by 1:00 p.m. (local
time of the Agent's Payment Office) on the Borrowing Date requested by the
Company and in funds immediately available to the Administrative Agent. The
proceeds of all Loans will then be made available to the applicable Borrower by
the Administrative Agent at such office by crediting the account of such
Borrower on the books of Bank of America with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent (or, in the case of the Subsidiary
Borrower, transferring such funds to an account of the Subsidiary Borrower in
the United Kingdom or the Federal Republic of Germany designated by the
Subsidiary Borrower).
(d) After giving effect to any Borrowing, there may not be more
than five different Interest Periods in effect under the Euro Revolving Facility
or more than 11 different Interest Periods in effect under all other Facilities
collectively.
2.4 CONVERSION AND CONTINUATION ELECTIONS. (a) Each Borrower may, upon
irrevocable written notice delivered to the relevant Agent's Payment Office in
accordance with SUBSECTION 2.4(b):
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(i) in the case of the Company, elect to convert, on any Business Day,
any Base Rate Loans (in an aggregate amount of $5,000,000 or a higher
integral multiple of $1,000,000) into Eurodollar Loans;
(ii) in the case of the Company, elect to convert, on the last day of
the applicable Interest Period, any Borrowing of Eurodollar Loans (or any
part thereof in an aggregate amount of $5,000,000 or a higher integral
multiple of $1,000,000) into Base Rate Loans; or
(iii) elect to continue, as of the last day of the applicable Interest
Period, any Eurocurrency Loans to such Borrower having Interest Periods
expiring on such day (or any part thereof in an aggregate amount of (x)
$5,000,000 or a higher integral multiple of $1,000,000, in the case of
Loans in Dollars, or (y) (a)1,000,000 or a higher integral multiple of
(a)500,000, in the case of Loans in Euros);
PROVIDED that if at any time the aggregate amount of Eurodollar Loans in respect
of any Borrowing shall have been reduced, by payment, prepayment or conversion
of part thereof, to be less than $5,000,000, such Eurodollar Loans shall
automatically convert into Base Rate Loans.
(b) The applicable Borrower shall deliver a Notice of
Conversion/Continuation to be received at the relevant Agent's Payment Office
not later than (i) 12:00 noon (Chicago time) at least three Business Days in
advance of the Conversion/Continuation Date, if the Loans are to be converted
into or continued as Eurodollar Loans, (ii) not later than 12:00 noon (Chicago
time) one Business Day prior to the Conversion/Continuation Date, if the Loans
are to be converted into Base Rate Loans and (iii) 12:00 noon (London time) at
least three Business Days in advance of the Conversion/Continuation Date, if the
Loans are to be continued as Eurocurrency Loans denominated in Euros,
specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate principal amount of Loans to be
converted or continued;
(C) in the case of the Company, the Type of Loans
resulting from the proposed conversion or continuation; and
(D) in the case of conversions into or continuations of
Eurocurrency Loans, the duration of the requested Interest
Period.
(c) If upon the expiration of any Interest Period applicable to
Eurodollar Loans, the Company has failed to select timely a new Interest Period
to be applicable to such Eurodollar Loans, the Company shall be deemed to have
elected to convert such Eurodollar Loans into Base Rate Loans effective as of
the expiration of such Interest Period. If upon the expiration of any Interest
Period applicable to Eurocurrency Loans in Euros, the applicable Borrower has
failed to select timely a new Interest Period to be applicable to such
Eurocurrency Loans (and has not given a notice of prepayment with respect to
such Loans), such Borrower
32
shall be deemed to have elected to continue such Eurocurrency Loans in Euros for
a new Interest Period of one month effective as of the expiration date of such
expiring Interest Period.
(d) The Administrative Agent will promptly notify each Lender of
its receipt of a Notice of Conversion/Continuation or, if no timely notice is
provided by the applicable Borrower, the Administrative Agent will promptly
notify each Lender of the details of any automatic conversion or continuation.
All conversions and continuations shall be made ratably according to the
applicable Facility Percentages of the Lenders.
(e) Unless the Required Lenders otherwise agree, during the
existence of an Event of Default or Unmatured Event of Default, the Company may
not elect to have a Loan in Dollars converted into or continued as a Eurodollar
Loan.
(f) After giving effect to any conversion or continuation of
Loans, there may not be more than five different Interest Periods in effect
under the Euro Revolving Facility or more than 11 different Interest Periods in
effect under all other Facilities collectively.
2.5 SWINGLINE LOANS.
(a) U.S. SWINGLINE LOANS.
(i) Subject to the terms and conditions hereof, the Swingline
Lender may, in its sole discretion (subject to SUBSECTION 2.5(a)(ii)),
make a portion of the U.S. Revolving Facility available to the Company
by making swingline loans (each such loan, a "U.S. SWINGLINE LOAN") to
the Company on any Business Day during the period from the Effective
Date to the U.S. Revolving Termination Date in accordance with the
procedures set forth in this SECTION 2.5 in an aggregate principal
amount at any one time outstanding not to exceed the lesser of (x) the
U.S. Revolving Commitment Amount and (y) $10,000,000, notwithstanding
the fact that such U.S. Swingline Loans, when aggregated with the
Swingline Lender's outstanding U.S. Revolving Loans and direct or
participation interest in Letters of Credit, may exceed the Swingline
Lender's applicable Facility Percentage of the U.S. Revolving
Commitment Amount; PROVIDED that at no time shall U.S. Revolving
Outstandings exceed the U.S. Revolving Commitment Amount. Subject to
the other terms and conditions hereof, the Company may borrow under
this SUBSECTION 2.5(a)(i), prepay pursuant to SUBSECTION 2.5(a)(iv)
and reborrow pursuant to this SUBSECTION 2.5(a)(i) from time to time;
PROVIDED that the Swingline Lender shall not be obligated to make any
U.S. Swingline Loan.
(ii) The Company shall provide the Administrative Agent and the
Swingline Lender irrevocable written notice (or notice by a telephone
call confirmed promptly by facsimile) of any U.S. Swingline Loan
requested hereunder (which notice must be received by the Swingline
Lender and the Administrative Agent prior to 12:00 noon (Chicago time)
on the requested Borrowing Date) specifying (A) the amount to be
borrowed, and (B) the requested Borrowing Date, which must be a
Business Day. Upon receipt of such notice, the Swingline Lender will
promptly confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such
notice from the Company and, if not, the Swingline Lender will
33
provide the Administrative Agent with a copy thereof. If and only if
the Administrative Agent notifies the Swingline Lender on the proposed
Borrowing Date that it may make available to the Company the amount of
the requested U.S. Swingline Loan, THEN, subject to the terms and
conditions hereof, the Swingline Lender may make the amount of the
requested U.S. Swingline Loan available to the Company by crediting
the account of the Company on the books of Bank of America with the
amount of such U.S. Swingline Loan. The Administrative Agent will not
so notify the Swingline Lender if the Administrative Agent has
knowledge that (A) the limitations set forth in the PROVISO set forth
in the first sentence of SUBSECTION 2.5(a)(i) are being violated or
would be violated by such U.S. Swingline Loan or (B) one or more
conditions specified in ARTICLE V is not then satisfied. Each U.S.
Swingline Loan shall be in a principal amount equal to $100,000 or an
integral multiple thereof. The Swingline Lender will promptly notify
the Administrative Agent of the amount of each U.S. Swingline Loan.
(iii) Principal of and accrued interest on each U.S. Swingline
Loan shall be due and payable (i) on demand made by the Swingline
Lender at any time upon one Business Day's prior notice to the Company
furnished at or before 11:45 a.m. (Chicago time), and (ii) in any
event on the U.S. Revolving Termination Date. In addition, interest on
each U.S. Swingline Loan shall be due and payable on each Interest
Payment Date. Interest on U.S. Swingline Loans shall be for the sole
account of the Swingline Lender (except to the extent that the other
Lenders have funded the purchase of participations therein pursuant to
SUBSECTION 2.5(a)(v)).
(iv) The Company may, from time to time on any Business Day, make
a voluntary prepayment, in whole or in part, of the outstanding
principal amount of any U.S. Swingline Loan, without incurring any
premium or penalty; PROVIDED that
(A) each such voluntary prepayment shall require prior
written notice given to the Administrative Agent and the
Swingline Lender no later than 1:00 p.m. (Chicago time) on
the day on which the Company intends to make a voluntary
prepayment, and
(B) each such voluntary prepayment shall be in an
amount equal to $100,000 or an integral multiple thereof.
Voluntary prepayments of U.S. Swingline Loans shall be made by
the Company to the Swingline Lender at such office as the Swingline
Lender may designate by notice to the Company from time to time. All
such payments shall be made in Dollars and in immediately available
funds no later than 4:00 p.m. (Chicago time) on the date specified by
the Company pursuant to CLAUSE (A) above (and any payment received
later than such time shall be deemed to have been received on the next
Business Day). The Swingline Lender will promptly notify the
Administrative Agent of the amount of each prepayment of U.S.
Swingline Loans.
(v) If (A) any U.S. Swingline Loan shall remain outstanding at
12:00 noon (Chicago time) on the Business Day immediately prior to a
Business Day on which U.S. Swingline Loans are due and payable
pursuant to SUBSECTION 2.5(a)(iii) and by such
34
time on such Business Day the Administrative Agent shall have received
neither (1) a Notice of Borrowing delivered pursuant to SECTION 2.3
requesting that U.S. Revolving Loans be made pursuant to SUBSECTION
2.1(a) on such following Business Day in an amount at least equal to
the aggregate principal amount of such U.S. Swingline Loans, nor (2)
any other notice indicating the Company's intent to repay such U.S.
Swingline Loans with funds obtained from other sources, or (B) any
Swingline Loans shall remain outstanding during the existence of an
Unmatured Event of Default or Event of Default and the Swingline
Lender shall in its sole discretion notify the Administrative Agent
that the Swingline Lender desires that such U.S. Swingline Loans be
converted into U.S. Revolving Loans, THEN the Administrative Agent
shall be deemed to have received a Notice of Borrowing from the
Company pursuant to SECTION 2.3 requesting that Base Rate Loans be
made pursuant to SUBSECTION 2.1(a) on the following Business Day in an
amount equal to the aggregate amount of such U.S. Swingline Loans, and
the procedures set forth in SUBSECTIONS 2.3(b) and 2.3(c) shall be
followed in making such Base Rate Loans; PROVIDED that such Base Rate
Loans shall be made notwithstanding the Company's failure to comply
with SECTION 5.2; and PROVIDED, FURTHER, that if a Borrowing of U.S.
Revolving Loans becomes legally impractical and if so required by the
Swingline Lender at the time such U.S. Revolving Loans are required to
be made by the Lenders in accordance with this SUBSECTION 2.5(a)(v),
each Lender agrees that in lieu of making U.S. Revolving Loans as
described in this SUBSECTION 2.5(a)(v), such Lender shall purchase a
participation from the Swingline Lender in the applicable U.S.
Swingline Loans in an amount equal to such Lender's applicable
Facility Percentage of such U.S. Swingline Loans, and the procedures
set forth in SUBSECTIONS 2.3(b) and 2.3(c) shall be followed in
connection with the purchases of such participations. The proceeds of
such Base Rate Loans (or participations purchased) shall be delivered
by the Administrative Agent to the Swingline Lender to repay such U.S.
Swingline Loans (or as payment for such participations). A copy of
each notice given by the Administrative Agent to the Lenders pursuant
to this SUBSECTION 2.5(a)(v) with respect to the making of Loans, or
the purchases of participations, shall be promptly delivered by the
Administrative Agent to the Company. Each Lender's obligation in
accordance with this Agreement to make U.S. Revolving Loans, or
purchase the participations, as contemplated by this SUBSECTION
2.5(a)(v), shall be absolute and unconditional and shall not be
affected by any circumstance, including (1) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against
the Swingline Lender, the Company or any other Person for any reason
whatsoever; (2) the occurrence or continuance of an Unmatured Event of
Default, an Event of Default or a Material Adverse Effect; or (3) any
other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
(b) EURO SWINGLINE LOANS.
(i) Subject to the terms and conditions hereof, the Swingline
Lender may, in its sole discretion (subject to SUBSECTION 2.5(b)(ii)),
make a portion of the Euro Revolving Facility available to the
Subsidiary Borrower by making Euro Swingline Loans (each such loan, a
"EURO SWINGLINE LOAN") to the Subsidiary Borrower on any Business Day
during the period from the Effective Date to the Euro Revolving
Termination Date in accordance with the procedures set forth in this
SECTION 2.5 in an
35
aggregate principal amount at any one time outstanding not to exceed
the lesser of (x) the Euro Revolving Commitment Amount and
(y)(a)5,000,000, notwithstanding the fact that such Euro Swingline
Loans, when aggregated with the Swingline Lender's outstanding Euro
Revolving Loans, may exceed the Swingline Lender's applicable Facility
Percentage of the Euro Revolving Commitment Amount; PROVIDED that at
no time shall Euro Revolving Outstandings exceed the lesser of (1) the
Euro Revolving Commitment Amount and (2) the Borrowing Base. Subject
to the other terms and conditions hereof, the Subsidiary Borrower may
borrow under this SUBSECTION 2.5(b)(i), prepay pursuant to SUBSECTION
2.5(b)(iv) and reborrow pursuant to this SUBSECTION 2.5(b)(i) from
time to time; PROVIDED that the Swingline Lender shall not be
obligated to make any Euro Swingline Loan.
(ii) The Subsidiary Borrower shall provide the Administrative
Agent and the Swingline Lender irrevocable written notice (or notice
by a telephone call confirmed promptly by facsimile) of any Euro
Swingline Loan requested hereunder (which notice must be received by
the Swingline Lender and the Administrative Agent prior to 10:00 a.m.
(London time) on the requested Borrowing Date) specifying (i) the
amount to be borrowed, and (ii) the requested Borrowing Date, which
must be a Business Day. Upon receipt of such notice, the Swingline
Lender will promptly confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received a
copy of such notice from the Subsidiary Borrower and, if not, the
Swingline Lender will provide the Administrative Agent with a copy
thereof. If and only if the Administrative Agent notifies the
Swingline Lender on the proposed Borrowing Date that it may make
available to the Subsidiary Borrower the amount of the requested Euro
Swingline Loan, THEN, subject to the terms and conditions hereof, the
Swingline Lender may make the amount of the requested Euro Swingline
Loan available to the Subsidiary Borrower by crediting the account of
the Subsidiary Borrower on the books of the London Branch of Bank of
America with the amount of such Euro Swingline Loan (or transferring
such amount to an account of the Subsidiary Borrower in the United
Kingdom or the Federal Republic of Germany designated by the
Subsidiary Borrower). The Administrative Agent will not so notify the
Swingline Lender if the Administrative Agent has knowledge that (A)
the limitations set forth in the PROVISO set forth in the first
sentence of SUBSECTION 2.5(b)(i) are being violated or would be
violated by such Euro Swingline Loan or (B) one or more conditions
specified in ARTICLE V is not then satisfied. Each Euro Swingline Loan
shall be in a principal amount equal to(a)500,000 or higher integral
multiple of(a)100,000. The Swingline Lender will promptly notify the
Administrative Agent of the amount of each Euro Swingline Loan.
(iii) Principal of and accrued interest on each Euro Swingline
Loan shall be due and payable (A) on demand made by the Swingline
Lender at any time upon three Business Days' prior notice to the
Subsidiary Borrower furnished at or before 11:45 a.m. (London time)
and (B) in any event on the Euro Revolving Termination Date. In
addition, interest on each Euro Swingline Loan shall be due and
payable (x) if the Overnight Rate for such Euro Swingline Loan is
based on a period of two or more Business Days agreed to by the
Subsidiary Borrower and the Swingline Lender, the last day of such
period; (y) in any other case, on the last Business Day of each month;
and (z) in any event, upon any prepayment of such Swingline Loan.
Interest on Euro Swingline
36
Loans shall be for the sole account of the Swingline Lender (except to
the extent that the other Lenders have funded the purchase of
participations therein pursuant to SUBSECTION 2.5(b)(v)).
(iv) The Subsidiary Borrower may, from time to time on any
Business Day, make a voluntary prepayment, in whole or in part, of the
outstanding principal amount of any Euro Swingline Loan, without
incurring any premium or penalty; PROVIDED that
(A) each such voluntary prepayment shall require prior
written notice given to the Administrative Agent and the
Swingline Lender no later than 12:00 noon (London time) on
the day on which the Subsidiary Borrower intends to make a
voluntary prepayment, and
(B) each such voluntary prepayment shall be in an
amount equal to (a)500,000 or a higher integral multiple
(a)100,000.
Voluntary prepayments of Euro Swingline Loans shall be made by
the Subsidiary Borrower to the Swingline Lender at such office as the
Swingline Lender may designate by notice to the Subsidiary Borrower
from time to time. All such payments shall be made in Euros and in
immediately available funds no later than 1:00 p.m. (London time) on
the date specified by the Subsidiary Borrower pursuant to CLAUSE (A)
above (and any payment received later than such time shall be deemed
to have been received on the next Business Day). The Swingline Lender
will promptly notify the Administrative Agent of the amount of each
prepayment of Euro Swingline Loans.
(v) If (A) any Euro Swingline Loan shall remain outstanding at
12:00 noon (London time) three Business Days prior to a Business Day
on which Euro Swingline Loans are due and payable pursuant to
SUBSECTION 2.5(b)(iii) and by such time on such Business Day the
Administrative Agent shall have received neither (1) a Notice of
Borrowing delivered pursuant to SECTION 2.3 requesting that Euro
Revolving Loans be made pursuant to SUBSECTION 2.1(b) on such third
following Business Day in an amount at least equal to the aggregate
principal amount of such Euro Swingline Loans, nor (2) any other
notice indicating the Subsidiary Borrower's intent to repay such Euro
Swingline Loans with funds obtained from other sources, or (B) any
Euro Swingline Loans shall remain outstanding during the existence of
an Unmatured Event of Default or Event of Default and the Swingline
Lender shall in its sole discretion notify the Administrative Agent
that the Swingline Lender desires that such Euro Swingline Loans be
converted into Euro Revolving Loans, THEN the Administrative Agent
shall be deemed to have received a Notice of Borrowing from the
Subsidiary Borrower pursuant to SECTION 2.3 requesting that Euro
Revolving Loans with an initial Interest Period of one month be made
pursuant to SUBSECTION 2.1(b) on the third following Business Day in
an amount equal to the aggregate amount of such Euro Swingline Loans,
and the procedures set forth in SUBSECTIONS 2.3(b) and 2.3(c) shall be
followed in making such Euro Revolving Loans; PROVIDED that such Euro
Revolving Loans shall be made notwithstanding the Subsidiary
Borrower's failure to comply with SECTION 5.2; and PROVIDED, FURTHER,
that if a Borrowing of Euro Revolving Loans becomes legally
impractical and if so required by
37
the Swingline Lender at the time such Euro Revolving Loans are
required to be made by the Lenders in accordance with this SUBSECTION
2.5(b)(v), each Lender agrees that in lieu of making Euro Revolving
Loans as described in this SUBSECTION 2.5(b)(v), such Lender shall
purchase a participation from the Swingline Lender in the applicable
Euro Swingline Loans in an amount equal to such Lender's applicable
Facility Percentage of such Euro Swingline Loans, and the procedures
set forth in SUBSECTIONS 2.3(b) and 2.3(c) shall be followed in
connection with the purchases of such participations. The proceeds of
such Euro Revolving Loans (or participations purchased) shall be
delivered by the Administrative Agent to the Swingline Lender to repay
such Euro Swingline Loans (or as payment for such participations). A
copy of each notice given by the Administrative Agent to the Lenders
pursuant to this SUBSECTION 2.5(b)(v) with respect to the making of
Loans, or the purchases of participations, shall be promptly delivered
by the Administrative Agent to the Subsidiary Borrower. Each Lender's
obligation in accordance with this Agreement to make Euro Revolving
Loans, or purchase the participations, as contemplated by this
SUBSECTION 2.5(b)(v), shall be absolute and unconditional and shall
not be affected by any circumstance, including (1) any set-off,
counterclaim, recoupment, defense or other right which such Lender may
have against the Swingline Lender, the Subsidiary Borrower or any
other Person for any reason whatsoever; (2) the occurrence or
continuance of an Unmatured Event of Default, an Event of Default or a
Material Adverse Effect; or (3) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
2.6 CHANGES IN REVOLVING COMMITMENTS.
(a) MANDATORY REDUCTION OF REVOLVING COMMITMENTS. If the Term
Loans have been (or as a result of the application of the proceeds from any
applicable Mandatory Prepayment Event will be) paid in full, then upon the
occurrence of a Mandatory Prepayment Event, the U.S. Revolving Commitments and
the Euro Revolving Commitments shall be reduced by the amount, if any, of any
Net Cash Proceeds which would have been required (and are not applied) to prepay
the Term Loans pursuant to such subsections if the Term Loans had not been (or
were not concurrently) paid in full, with each such reduction effective at the
time such prepayment would have been required pursuant to SUBSECTION 2.8(a). Any
such reduction shall be applied first to reduce the U.S. Revolving Commitments
and then to reduce the Euro Revolving Commitments.
(b) VOLUNTARY REDUCTION OR TERMINATION OF U.S. REVOLVING
COMMITMENTS. The Company may, upon not less than three Business Days' prior
written notice to the Administrative Agent, permanently reduce the U.S.
Revolving Commitment Amount to an amount which is not less than the U.S.
Revolving Outstandings. Any such reduction shall be in an aggregate amount of
$5,000,000 or a higher integral multiple of $1,000,000. The Company may at any
time on like notice terminate the U.S. Revolving Commitments upon payment in
full of all U.S. Revolving Loans and U.S. Swingline Loans, Cash
Collateralization in full of all L/C Obligations and payment in full of all
other obligations of the Company arising under the U.S. Revolving Facility.
(c) VOLUNTARY REDUCTION OR TERMINATION OF EURO REVOLVING
COMMITMENTS. The Subsidiary Borrower may, upon not less than three Business
Days' prior written notice to
38
the Administrative Agent, permanently reduce the Euro Revolving Commitment
Amount to an amount which is not less than the Euro Revolving Outstandings. Any
such reduction shall be in an aggregate amount of (a)2,000,000 or a higher
integral multiple of (a)1,000,000. The Subsidiary Borrower may at any time on
like notice terminate the Euro Revolving Commitments upon payment in full of all
Euro Revolving Loans and Euro Swingline Loans and all other obligations of the
Subsidiary Borrower arising under the Euro Revolving Facility.
(d) EACH REDUCTION OR TERMINATION OF REVOLVING COMMITMENTS. Once
reduced in accordance with this Section, the U.S. Revolving Commitment Amount or
the Euro Revolving Commitment Amount, as the case may be, may not be increased
without the consent of all Lenders participating in the applicable Facility
(except as set forth in SECTION 2.6(e)). Any reduction of the U.S. Revolving
Commitments shall be applied to the U.S. Revolving Commitment of each Lender
according to its related Facility Percentage. Any reduction of the Euro
Revolving Commitments shall be applied to the Euro Revolving Commitment of each
Lender according to its related Facility Percentage. All accrued non-use fees on
the U.S. Revolving Commitments to, but not including, the effective date of any
reduction or termination of the U.S. Revolving Commitments shall be paid on the
effective date of such reduction or termination. All accrued non-use fees on the
Euro Revolving Commitments to, but not including, the effective date of any
reduction or termination of the Euro Revolving Commitments shall be paid on the
effective date of such reduction or termination.
(e) INCREASE IN U.S. REVOLVING COMMITMENT AMOUNT.
(i) The Company may, from time to time, by means of a letter
delivered to the Administrative Agent substantially in the form of
EXHIBIT U, request that the U.S. Revolving Commitment Amount be
increased to up to $150,000,000; PROVIDED that (x) any such increase
in the U.S. Revolving Commitment Amount shall be in the amount of
$5,000,000 or a higher integral multiple thereof and (y) the aggregate
amount of all such increases shall not exceed $50,000,000.
(ii) Any increase in the U.S. Revolving Commitment Amount may be
effected by (x) increasing the U.S. Revolving Commitment of one or
more Lenders which have agreed to such increase and/or (y) subject to
CLAUSE (III), adding one or more commercial banks or other Persons as
a party hereto (each an "ADDITIONAL LENDER") with a U.S. Revolving
Commitment in an amount agreed to by any such Additional Lender. Any
increase in the U.S. Revolving Commitment Amount pursuant to this
SECTION 2.6(e) shall be effective three Business Days (or such other
period agreed to by the Administrative Agent, the Company and, as
applicable, each Lender that has agreed to increase its Commitment and
each Additional Lender) after the date on which the Administrative
Agent has received and accepted the applicable increase letter in the
form of ANNEX 1 to EXHIBIT U.
(iii) No Additional Lender shall be added as a party hereto
without the written consent of the Administrative Agent, the Issuing
Lender and the Swingline Lender (which consents shall not be
unreasonably withheld), and no increase in the U.S. Revolving
Commitment Amount may be effected above if an Event of Default or
Unmatured Event of Default exists.
39
(iv) The Administrative Agent shall promptly notify the Company
and the Lenders of any increase in the amount of the U.S. Revolving
Commitment Amount pursuant to this SECTION 2.6(e) and of the U.S.
Revolving Commitment and Facility Percentage of each Lender after
giving effect thereto. The Company acknowledges that, in order to
maintain U.S. Revolving Loans in accordance with each Lender's
Facility Percentage, a reallocation of the U.S. Revolving Commitments
as a result of a non-pro-rata increase in the U.S. Revolving
Commitment Amount may require prepayment or conversion of all or
portions of certain U.S. Revolving Loans on the date of such increase
(and any such prepayment or conversion shall be subject to the
provisions of SECTION 4.4).
2.7 OPTIONAL PREPAYMENTS. (a) Subject to SECTION 4.4, either Borrower
may, from time to time, upon irrevocable written notice to relevant Agent's
Payment Office (which notice must be received by 12:00 noon (Chicago time) one
Business Day prior to the requested day of prepayment in the case of Base Rate
Loans, 12:00 noon (Chicago time) three Business Days prior to the date of
prepayment in the case of Eurodollar Loans and 12:00 noon (London time) three
Business Days prior to the requested day of prepayment in the case of Loans in
Euros), prepay any Borrowing of Loans in whole or in part, without premium or
penalty, in an aggregate amount of (x) $5,000,000 or a higher integral multiple
of $1,000,000, in the case of Loans in Dollars, or (y) (a)1,000,000 or a higher
integral multiple of (a)500,000, in the case of Loans in Euros.
(b) Each notice of prepayment shall specify the date and amount of
such prepayment and the Loans to be prepaid. The Administrative Agent will
promptly notify each Lender of its receipt of any such notice and of such
Lender's share of such prepayment. If any such notice is given by a Borrower,
such Borrower shall make such prepayment and the payment amount specified in
such notice shall be due and payable on the date specified therein, together
with (i) if any Loan is paid in full, accrued interest to such date on such
Loan, and (ii) any amounts required pursuant to SECTION 4.4. All prepayments of
Term Loans shall be applied, at the Company's election (expressed in writing to
the Administrative Agent no later than one Business Day prior to such
prepayment), (x) against one or both of the next two unpaid principal
installments of the Term Loans, (y) PRO rata to the unpaid installments of the
Term Loans or (z) in such combination of the alternatives expressed in CLAUSES
(X) and (Y) as the Company shall specify in writing to the Administrative Agent
(it being understood that if the Company fails to give any notice as to
application of such prepayment, such prepayment will be applied as set forth in
CLAUSE (Y)).
2.8 MANDATORY PREPAYMENTS OF LOANS. (a) The Company shall make a
prepayment of the Term Loans upon the occurrence of any of the following (each a
"MANDATORY PREPAYMENT EVENT") at the following times and in the following
amounts (and any such prepayment shall be subject to the provisions of SECTION
4.4):
(i) Within 120 days after any sale, transfer or other disposition
by the Company or any Subsidiary of any asset (other than (A) sales of
inventory and dispositions of obsolete, unused, surplus or unnecessary
equipment, in each case in the ordinary course of business, (B) sales
of assets described in CLAUSE (II) below and (C) the VARTA Exchange)
to a Person other than the Company or a Subsidiary, in an amount equal
to 100% of the Net Cash Proceeds of such sale, transfer or other
disposition;
40
PROVIDED that the foregoing shall not apply (x) to sales, transfers or
other dispositions of assets the proceeds of which are used or
committed to be used by the Company or a Subsidiary for capital
expenditures permitted under SECTION 8.17 within 120 days after any
such sale, or (y) to the extent that the Net Cash Proceeds of all such
sales, transfers or other dispositions in any fiscal year is less than
$5,000,000.
(ii) Within 30 days after any sale, transfer or other disposition
(including by way of merger or consolidation) by the Company or any
Subsidiary of any of the capital stock of any Subsidiary to a Person
other than the Company or a Subsidiary (excluding the VARTA Exchange),
in an amount equal to 100% of the Net Cash Proceeds of such sale.
(iii) Concurrently with the receipt of any Net Cash Proceeds from
any issuance of equity securities of the Company or any Subsidiary
(excluding any issuance of shares of Common Stock pursuant to any
employee or director stock option program, benefit plan or
compensation program), in an amount equal to 50% of such Net Cash
Proceeds.
(iv) Concurrently with the receipt of any Net Cash Proceeds from
any issuance of Indebtedness of the Company or any Subsidiary
(excluding Indebtedness permitted under SUBSECTIONS (a) and (c)
through (k) of SECTION 8.5), in an amount equal to 100% of such Net
Cash Proceeds.
(v) Within 90 days after the end of each fiscal year, beginning
with the fiscal year ending September 30, 2003, in an amount equal to
50% (or, if the Leverage Ratio as of the end of such fiscal year is
less than 2.5:1.00, 25%) of Excess Cash Flow for such fiscal year.
All prepayments of Term Loans pursuant to this SUBSECTION 2.8(a) shall
be applied to the Term Loans (on a PRO RATA basis across all Term Loan
Facilities) and to the remaining installments of the Term Loans on a PRO RATA
basis (using the then Dollar Equivalent of each Euro installment to determine
the PRO RATA application).
(b) If on any date on which the U.S. Revolving Commitment Amount
is reduced pursuant to SUBSECTION 2.6(a), the U.S. Revolving Outstandings exceed
the U.S. Revolving Commitment Amount (after giving effect to the reduction of
the U.S. Revolving Commitment Amount on such date), the Company shall
immediately prepay an outstanding principal amount of the U.S. Revolving Loans,
U.S. Swingline Loans and/or L/C Advances in an amount equal to such excess (and
any such prepayment shall be subject to the provisions of SECTION 4.4).
(c) If on any date on which the Euro Revolving Commitment Amount
is reduced pursuant to SUBSECTION 2.6(a), the Euro Revolving Outstandings exceed
the Euro Revolving Commitment Amount (after giving effect to the reduction of
the Euro Revolving Commitment Amount on such date), the Subsidiary Borrower
shall immediately prepay an outstanding principal amount of the Euro Revolving
Loans and/or Euro Swingline Loans in an
41
amount equal to such excess (and any such prepayment shall be subject to the
provisions of SECTION 4.4).
(d) If on any date the Euro Revolving Outstandings exceed the
Borrowing Base, the Subsidiary Borrower shall immediately prepay Euro Revolving
Loans and/or Euro Swingline Loans in an amount sufficient to eliminate such
excess (rounded upward, if necessary, to the applicable amount otherwise
required in accordance with the provisions hereof).
2.9 REPAYMENT.
(a) THE U.S. REVOLVING FACILITY. The Company shall pay to the
Administrative Agent, for the account of the Lenders, on the U.S. Revolving
Termination Date the aggregate principal amount of all U.S. Revolving Loans
outstanding on such date.
(b) THE EURO REVOLVING FACILITY. The Subsidiary Borrower shall pay
to the Administrative Agent, for the account of the Lenders, on the Euro
Revolving Termination Date the aggregate principal amount of all Euro Revolving
Loans outstanding on such date.
(c) THE EURO TERM LOAN A FACILITY. On each date set forth on
SCHEDULE 2.9(c), the Company shall repay Euro Term Loans A in an aggregate
amount equal to the amount set forth opposite such date on such Schedule.
(d) THE EURO TERM LOAN B FACILITY. On each date set forth on
SCHEDULE 2.9(d), the Company shall repay Euro Term Loans B in an aggregate
amount equal to the amount set forth opposite such date on such Schedule.
(e) THE U.S. TERM LOAN B FACILITY. On each date set forth on
SCHEDULE 2.9(e), the Company shall repay U.S. Term Loans B in an aggregate
amount equal to the amount set forth opposite such date on such Schedule.
(f) ALL REPAYMENTS. All repayments shall be applied to the
applicable Loans of the Lenders according to their respective Facility
Percentages of the Facility being repaid.
2.10 INTEREST. (a) Each U.S. Revolving Loan shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date at a
rate per annum equal to the Base Rate PLUS the Base Rate Margin or the
Eurocurrency Rate PLUS the Eurocurrency Rate Margin, as the case may be (and
subject to the Company's right to convert to the other Type of Loans under
SECTION 2.4). Each U.S. Swingline Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to the Base Rate PLUS the Base Rate Margin.
(b) Each Euro Revolving Loan shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date at a
rate per annum equal to the Eurocurrency Rate PLUS the Eurocurrency Rate Margin.
Each Euro Swingline Loan shall bear interest on the outstanding principal amount
thereof from the applicable Borrowing Date at a rate per annum equal to the
Overnight Rate PLUS the Eurocurrency Rate Margin.
42
(c) Each Euro Term Loan A shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to the Eurocurrency Rate PLUS the Eurocurrency Rate Margin.
(d) Each Euro Term Loan B shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to the Eurocurrency Rate PLUS 3.750%.
(e) Each U.S. Term Loan B shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to the Base Rate PLUS 2.750% or the Eurocurrency Rate PLUS 3.750%, as the
case may be (and subject to the Company's right to convert to the other Type of
Loans under SECTION 2.4). (f) Interest on each Loan shall be paid in arrears on
each Interest Payment Date therefor. Interest shall also be paid on the date of
any prepayment of Eurocurrency Loans under SECTION 2.7 or 2.8 for the portion of
the Loans so prepaid and upon payment (including prepayment) in full thereof.
(g) Notwithstanding SUBSECTIONS (a) through (e) of this Section,
during the existence of any Event of Default, the Borrowers shall pay interest
(after as well as before entry of judgment thereon to the extent permitted by
law) on the principal amount of all outstanding Loans and, to the extent
permitted by applicable law, on any other amount payable hereunder or under any
other Loan Document, at a rate per annum equal to the rate otherwise applicable
thereto pursuant to the terms hereof or such other Loan Document (or, if no such
rate is specified, the Base Rate PLUS the Base Rate Margin) plus 2%. All such
interest shall be payable on demand.
(h) Anything herein to the contrary notwithstanding, the
obligations of each Borrower to any Lender hereunder shall be subject to the
limitation that payments of interest shall not be required for any period for
which interest is computed hereunder to the extent (but only to the extent) that
contracting for or receiving such payment by such Lender would be contrary to
the provisions of any law applicable to such Lender limiting the highest rate of
interest that may be lawfully contracted for, charged or received by such
Lender, and in such event such Borrower shall pay such Lender interest at the
highest rate permitted by applicable law.
2.11 FEES. In addition to certain fees described in SECTION 3.8:
(a) ARRANGER AND AGENCY FEES. The Company shall pay arrangement
fees to each Arranger for such Arranger's own account and agency fees to the
Administrative Agent for the Administrative Agent's own account, in each case as
required by any fee letter among the Company and any of such parties (each a
"FEE LETTER").
(b) NON-USE FEES - U.S. REVOLVING FACILITY. The Company shall pay
to the Administrative Agent for the account of each applicable Lender a non-use
fee at the Non-Use Fee Rate on the daily unused portion of such Lender's
Facility Percentage of the U.S. Revolving Commitment Amount. For purposes of the
foregoing, the U.S. Revolving Commitment Amount shall be deemed used to the
extent of the outstanding principal amount of the U.S. Revolving Loans
43
(but not U.S. Swingline Loans) PLUS the Effective Amount of all outstanding L/C
Obligations.
(c) NON-USE FEES - EURO REVOLVING FACILITY. The Subsidiary
Borrower shall pay to the Administrative Agent for the account of each
applicable Lender a non-use fee at the Non-Use Fee Rate on the daily unused
portion of such Lender's Facility Percentage of the Euro Revolving Commitment
Amount. For purposes of the foregoing, the Euro Revolving Commitment Amount
shall be deemed used to the extent of the outstanding principal amount of the
Euro Revolving Loans (but not Euro Swingline Loans).
(d) ALL NON-USE FEES. The non-use fees described in SUBSECTIONS
(b) and (c) above shall accrue from the Effective Date to the U.S. Revolving
Termination Date or the Euro Revolving Termination Date, as applicable, and
shall be due and payable quarterly in arrears on the last Business Day of each
calendar quarter and on the U.S. Revolving Termination Date and the Euro
Revolving Termination Date, as applicable. Such non-use fees shall accrue at all
times after the Effective Date, including at any time during which one or more
conditions in ARTICLE V are not met.
2.12 COMPUTATION OF FEES AND INTEREST. (a) All computations of interest
for Base Rate Loans when the Base Rate is determined by Bank of America's
"reference rate" shall be made on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed. All other computations of interest and
fees shall be made on the basis of a 360-day year and actual days elapsed.
Interest and fees shall accrue during each period during which interest or such
fees are computed from the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the Administrative
Agent shall be conclusive and binding on the Borrowers and the Lenders in the
absence of manifest error. The Administrative Agent will, at the request of
either Borrower or any Lender, deliver to such Borrower or such Lender, as the
case may be, a statement showing the quotations used by the Administrative Agent
in determining any interest rate and the resulting interest rate.
2.13 PAYMENTS BY THE BORROWERS. (a) All payments to be made by either
Borrower shall be made without set-off, recoupment or counterclaim. Except as
otherwise expressly provided herein, all payments by either Borrower shall be
made to the Administrative Agent for the account of the Lenders at the Agent's
Payment Office, in immediately available funds, no later than 1:00 p.m. (local
time of the Agent's Payment Office) on the date specified herein. All payments
with respect to the Euro Revolving Facility, the Euro Term Loans A and the Euro
Term Loans B shall be made in Euros, and all other payments shall be made in
Dollars. Except as expressly otherwise provided herein, the Administrative Agent
will promptly distribute, in like funds as received, to each Lender its
applicable Facility Percentage (or other applicable portion) of such payment.
Any payment received by the Administrative Agent later than 1:00 p.m. (local
time of the Agent's Payment Office) shall be deemed to have been received on the
following Business Day and any applicable interest or fee shall continue to
accrue.
(b) Whenever any payment is due on a day other than a Business
Day, such payment shall be made on the following Business Day (unless, in the
case of an Eurocurrency Loan, such following Business Day is in another calendar
month, in which case such payment
44
shall be made on the preceding Business Day), and such extension of time shall
in such case be included in the computation of interest or fees, as the case may
be.
(c) Unless the Administrative Agent receives notice from a
Borrower prior to the date on which any payment is due to the Lenders that such
Borrower will not make such payment in full as and when required, the
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date in immediately available funds and the
Administrative Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent a Borrower has not made such
payment in full to the Administrative Agent, each Lender shall repay to the
Administrative Agent on demand such amount distributed to such Lender, together
with interest thereon at the Federal Funds Rate (in the case of payments in
Dollars) or the Overnight Rate (in the case of payments in any other currency)
for each day from the date such amount is distributed to such Lender until the
date repaid.
2.14 PAYMENTS BY THE LENDERS TO THE ADMINISTRATIVE AGENT. (a) Unless the
Administrative Agent receives notice from a Lender on or prior to the Effective
Date, or, with respect to any Borrowing after the Effective Date, at least one
Business Day prior to the date of such Borrowing, that such Lender will not make
available as and when required hereunder to the Administrative Agent for the
account of the applicable Borrower the amount of such Lender's applicable
Facility Percentage of such Borrowing, the Administrative Agent may assume that
each Lender has made such amount available to the Administrative Agent in
immediately available funds on the Borrowing Date and the Administrative Agent
may (but shall not be required to), in reliance upon such assumption, make
available to such Borrower on such date a corresponding amount. If and to the
extent any Lender shall not have made its full amount available to the
Administrative Agent in immediately available funds and the Administrative Agent
in such circumstances has made available to such Borrower such amount, such
Lender shall on the Business Day following such Borrowing Date make such amount
available to the Administrative Agent, together with interest at the Federal
Funds Rate (in the case of payments in Dollars) or the Overnight Rate (in the
case of payments in any other currency) for each day during such period. A
notice of the Administrative Agent submitted to any Lender with respect to
amounts owing under this SUBSECTION (a) shall be conclusive, absent manifest
error. If such amount is so made available, such payment to the Administrative
Agent shall constitute such Lender's Loan on the date of Borrowing for all
purposes of this Agreement. If such amount is not made available to the
Administrative Agent on the Business Day following the Borrowing Date, the
Administrative Agent will notify the applicable Borrower of such failure to fund
and, upon demand by the Administrative Agent, such Borrower shall pay such
amount to the Administrative Agent for the Administrative Agent's account,
together with interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate applicable at the time
to the Loans comprising such Borrowing.
(b) The failure of any Lender to make any Loan on any Borrowing
Date shall not relieve any other Lender of any obligation hereunder to make a
Loan on such Borrowing Date, but no Lender shall be responsible for the failure
of any other Lender to make the Loan to be made by such other Lender on any
Borrowing Date.
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2.15 SHARING OF PAYMENTS, ETC. (a) If, other than as expressly provided
elsewhere herein, any Lender under any Facility shall receive on account of the
Obligations owed to it under such Facility any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its ratable share of all payments received by the Lenders under such
Facility, such Lender shall immediately (i) notify the Administrative Agent of
such fact and (ii) purchase from the other Lenders in such Facility such
participations in the Obligations owed to them as shall be necessary to cause
such purchasing Lender to share the excess payment pro rata with each other
Lender in such Facility; PROVIDED that if all or any portion of such excess
payment is thereafter recovered from the purchasing Lender, such purchase shall
to that extent be rescinded and each other Lender under such Facility shall
repay to the purchasing Lender the purchase price paid therefor, together with
an amount equal to such paying Lender's ratable share (according to the
proportion of (x) the amount of such paying Lender's required repayment to (y)
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. Each Borrower agrees that any Lender so purchasing a
participation from another Lender in a Loan of such Borrower may, to the fullest
extent permitted by law, exercise all of 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 such Borrower in the amount of such participation.
(b) If, during any Payment Sharing Period, the Lenders under any
Facility as a group shall receive aggregate payments (whether voluntary,
involuntary, by application of offset or otherwise) on account of the
Obligations owed under such Facility in a greater percentage than the Lenders
under any other Facility receive on account of the Obligations owed under such
other Facility, THEN the Lenders under the Facility receiving such higher
percentage of payments (the "BENEFITED LENDERS") shall immediately (i) notify
the Administrative Agent of such fact and (ii) purchase from the Lenders under
the other Facilities such participations in the Obligations owed to them as
shall be necessary to cause the Lenders under each Facility to have received the
same percentage of payments on account of the Obligations owed to them during
such Payment Sharing Period; PROVIDED that (A) if all or any part of the excess
payment or other recovery is thereafter recovered from the Benefited Lenders,
then such purchases shall to that extent be rescinded and each other Lender
shall repay to the members of the Benefited Group the purchase price paid
therefor, together with an amount equal to such paying Lender's ratable share
(according to the proportion of (x) the amount of such paying Lender's required
repayment to (y) the total amount so recovered from the Benefited Group) of any
interest or other amount paid or payable by the Benefited Group in respect of
the total amount so recovered; and (B) if such Payment Sharing Period ends, then
all such purchases shall be rescinded and each other Lender shall repay to the
members of the Benefited Group the purchase price paid therefor. The obligation
of each Lender under a Facility to make its share of any payment required under
this SUBSECTION (b) shall be several, and not joint or joint and several, and
after giving effect to any such payment the Lenders under each Facility shall
make such other adjustments as shall be necessary under SUBSECTION 2.15(a).
(c) The provisions of this SECTION 2.15 are solely for the benefit
of the Lenders and are not for the benefit of (and may not be enforced by) any
other Person. The Lenders may, without the consent of either Borrower or any
other Person, make arrangements among themselves to amend or otherwise modify
this SECTION 2.15 and to establish different sharing arrangements with
46
respect to payments by the Borrowers; PROVIDED that any such amendment,
modification or sharing arrangement shall be consented to by all Lenders.
(d) The Administrative Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Lenders following
any such purchases or repayments.
ARTICLE III
THE LETTERS OF CREDIT
3.1 THE LETTER OF CREDIT SUBFACILITY; EXISTING LETTERS OF CREDIT. (a)
On the terms and conditions set forth herein: (i) the Issuing Lender agrees, (A)
from time to time on any Business Day during the period from the Effective Date
to the U.S. Revolving Termination Date to issue Letters of Credit for the
account of the Company (or jointly for the account of the Company and any
Subsidiary), and to amend or renew Letters of Credit previously issued by it, in
accordance with SUBSECTIONS 3.2(c) and 3.2(d), and (b) to honor drafts under the
Letters of Credit issued by it; and (ii) the Lenders severally agree to
participate in Letters of Credit Issued for the account of the Company; PROVIDED
that the Issuing Lender shall not be obligated to Issue, and no Lender shall be
obligated to participate in, any Letter of Credit if as of the date of Issuance
of such Letter of Credit (the "ISSUANCE DATE") (1) the U.S. Revolving
Outstandings exceed the U.S. Revolving Commitment Amount, (2) the Effective
Amount of all L/C Obligations exceeds the amount of the L/C Commitment or (3)
the sum of the participation of any Lender in the Effective Amount of all L/C
Obligations and U.S. Swingline Loans PLUS the outstanding principal amount of
the U.S. Revolving Loans of such Lender exceed such Lender's U.S. Revolving
Commitment. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Company's ability to obtain Letters of Credit shall be
fully revolving, and, accordingly, the Company may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit which have expired or
which have been drawn upon and reimbursed.
(b) The Issuing Lender shall not be under any obligation to Issue
any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the
Issuing Lender from Issuing such Letter of Credit, or any Requirement
of Law applicable to the Issuing Lender or any request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over the Issuing Lender shall prohibit, or
request that the Issuing Lender refrain from, the Issuance of letters
of credit generally or such Letter of Credit in particular or shall
impose upon the Issuing Lender with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which the Issuing
Lender is not otherwise compensated hereunder) not in effect on the
Effective Date, or shall impose upon the Issuing Lender any
unreimbursed loss, cost or expense which was not applicable on the
Effective Date and which the Issuing Lender in good xxxxx xxxxx
material to it;
(ii) the Issuing Lender has received written notice from any
Lender, the Administrative Agent or the Company, on or prior to the
47
Business Day prior to the requested date of Issuance of such Letter of
Credit, that one or more of the applicable conditions contained in
ARTICLE V is not then satisfied;
(iii) the expiry date of such Letter of Credit is less than (A)
in the case of a standby Letter of Credit, 35 days prior to the
scheduled U.S. Revolving Termination Date, or (B) in the case of a
Commercial Letter of Credit, 25 days prior to the scheduled U.S.
Revolving Termination Date, unless, in each case, all of the Lenders
have approved such expiry date in writing;
(iv) such Letter of Credit does not provide for drafts, or is not
otherwise in form and substance acceptable to the Issuing Lender, or
the Issuance of such Letter of Credit shall violate any applicable
policies of the Issuing Lender; or
(v) except as provided in SECTION 3.10, such Letter of Credit is
denominated in a currency other than Dollars.
(c) On and after the Effective Date, the Existing Letters of
Credit shall be deemed for all purposes to be Letters of Credit outstanding
under this Agreement. Each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Lender on the Effective
Date a participation in each Existing Letter of Credit and each drawing
thereunder in an amount equal to the product of (i) such Lender's applicable
Facility Percentage times (ii) the maximum amount available to be drawn under
such Letter of Credit and the amount of such drawing, respectively.
3.2 ISSUANCE, AMENDMENT AND RENEWAL OF LETTERS OF CREDIT. (a) Each
Letter of Credit shall be issued upon the irrevocable written request of the
Company received by the Issuing Lender and the Administrative Agent at least
four Business Days (or such shorter time as the Issuing Lender and the
Administrative Agent may agree in a particular instance in their sole
discretion) prior to the proposed date of issuance. Each such request for
issuance of a Letter of Credit shall be by facsimile, confirmed immediately in
an original writing, in the form of an L/C Application, and shall specify in
form and detail satisfactory to the Issuing Lender: (i) the face amount of the
Letter of Credit; (ii) the expiry date of the Letter of Credit; (iii) the name
and address of the beneficiary thereof; (iv) the documents to be presented by
the beneficiary of the Letter of Credit in case of any drawing thereunder; (v)
the full text of any certificate to be presented by the beneficiary in case of
any drawing thereunder; and (vi) such other matters as the Issuing Lender may
require.
(b) At least two Business Days prior to the Issuance of any Letter
of Credit, the Issuing Lender will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received a copy of
the L/C Application or L/C Amendment Application from the Company and, if not,
the Issuing Lender will provide the Administrative Agent with a copy thereof. If
and only if the Administrative Agent notifies the Issuing Lender on or before
the Business Day immediately preceding the proposed date of Issuance of a Letter
of Credit that the Issuing Lender may Issue such Letter of Credit, then, subject
to the terms and conditions hereof, the Issuing Lender shall, on the requested
date, Issue such Letter of Credit for the account of the Company in accordance
with the Issuing Lender's usual and customary business practices. The
Administrative Agent shall not give such notice if the Administrative
48
Agent has knowledge that (A) such Issuance is not then permitted under
SUBSECTION 3.1(a) as a result of the limitations set forth in CLAUSE (1) or (2)
thereof or (B) the Issuing Lender has received a notice described in SUBSECTION
3.1(b)(ii). The Administrative Agent will promptly notify the Lenders of any
Letter of Credit Issuance hereunder.
(c) From time to time while a Letter of Credit is outstanding and
prior to the U.S. Revolving Termination Date, the Issuing Lender will, upon the
written request of the Company received by the Issuing Lender (with a copy sent
by the Company to the Administrative Agent) at least four Business Days (or such
shorter time as the Issuing Lender and the Administrative Agent may agree in a
particular instance in their sole discretion) prior to the proposed date of
amendment, amend any Letter of Credit issued by it. Each such request for
amendment of a Letter of Credit shall be made by facsimile, confirmed
immediately in an original writing, made in the form of an L/C Amendment
Application and shall specify in form and detail satisfactory to the Issuing
Lender: (i) the Letter of Credit to be amended; (ii) the proposed date of
amendment of such Letter of Credit (which shall be a Business Day); (iii) the
nature of the proposed amendment; and (iv) such other matters as the Issuing
Lender may require. The Issuing Lender shall not have any obligation to amend
any Letter of Credit if: (A) the Issuing Lender would have no obligation at such
time to Issue such Letter of Credit in its amended form under the terms of this
Agreement; or (B) the beneficiary of such Letter of Credit does not accept the
proposed amendment to such Letter of Credit.
(d) The Issuing Lender and the Lenders agree that, while a Letter
of Credit is outstanding and prior to the U.S. Revolving Termination Date, at
the option of the Company and upon the written request of the Company received
by the Issuing Lender (with a copy sent by the Company to the Administrative
Agent) at least four Business Days (or such shorter time as the Issuing Lender
and the Administrative Agent may agree in a particular instance in their sole
discretion) prior to the proposed date of notification of renewal, the Issuing
Lender shall be entitled, with the approval of the Administrative Agent, to
authorize the automatic renewal of any Letter of Credit issued by it. Each such
request for renewal of a Letter of Credit shall be made by facsimile, confirmed
immediately in an original writing, in the form of an L/C Amendment Application,
and shall specify in form and detail satisfactory to the Issuing Lender: (i) the
Letter of Credit to be renewed; (ii) the proposed date of notification of
renewal of such Letter of Credit (which shall be a Business Day); (iii) the
revised expiry date of such Letter of Credit (which, unless all Lenders
otherwise consent in writing, shall be prior to the U.S. Revolving Termination
Date); and (iv) such other matters as the Issuing Lender may require. The
Issuing Lender shall not be under any obligation to renew any Letter of Credit
if: (A) the Issuing Lender would have no obligation at such time to issue or
amend such Letter of Credit in its renewed form under the terms of this
Agreement; or (B) the beneficiary of such Letter of Credit does not accept the
proposed renewal of such Letter of Credit. If any outstanding Letter of Credit
shall provide that it shall be automatically renewed unless the beneficiary
thereof receives notice from the Issuing Lender that such Letter of Credit shall
not be renewed, and if at the time of renewal the Issuing Lender would be
entitled to authorize the automatic renewal of such Letter of Credit in
accordance with this SUBSECTION 3.2(d) upon the request of the Company but the
Issuing Lender shall not have received any L/C Amendment Application from the
Company with respect to such renewal or other written direction by the Company
with respect thereto, the Issuing Lender shall nonetheless be permitted to allow
such Letter of Credit to renew, subject to the approval of the Administrative
Agent, and the Company and the Lenders
49
hereby authorize such renewal, and, accordingly, the Issuing Lender shall be
deemed to have received an L/C Amendment Application from the Company requesting
such renewal.
(e) The Issuing Lender may, at its election (or as required by the
Administrative Agent at the direction of the Required Lenders), deliver any
notices of termination or other communications to any Letter of Credit
beneficiary or transferee, and take any other action as necessary or
appropriate, at any time and from time to time, in order to cause the expiry
date of such Letter of Credit to be a date not later than the U.S. Revolving
Termination Date.
(f) This Agreement shall control in the event of any conflict with
any L/C Application.
(g) The Issuing Lender will deliver to the Administrative Agent,
concurrently or promptly following its delivery of a Letter of Credit, or
amendment to or renewal of a Letter of Credit, to an advising bank or a
beneficiary, a true and complete copy of each such Letter of Credit or amendment
to or renewal of a Letter of Credit.
3.3 RISK PARTICIPATIONS, DRAWINGS AND REIMBURSEMENTS. (a) Immediately
upon the Issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Issuing
Lender a participation in such Letter of Credit and each drawing thereunder in
an amount equal to the product of (i) such Lender's applicable Facility
Percentage times (ii) the maximum amount available to be drawn under such Letter
of Credit and the amount of such drawing, respectively.
(b) In the event of any request for a drawing under a Letter of
Credit by the beneficiary or transferee thereof, the Issuing Lender will
promptly notify the Company and the Administrative Agent. The Company shall
reimburse the Issuing Lender prior to 10:30 a.m. (Chicago time), on each date
that any amount is paid by the Issuing Lender under any Letter of Credit (each
such date, an "HONOR DATE") in an amount equal to the amount so paid by the
Issuing Lender; PROVIDED that, to the extent that the Issuing Lender accepts a
drawing under a Letter of Credit after 10:30 a.m. (Chicago time), the Company
will not be obligated to reimburse the Issuing Lender until the next Business
Day and the "Honor Date" for such Letter of Credit shall be such next Business
Day. If the Company fails to reimburse the Issuing Lender for the full amount of
any drawing under any Letter of Credit by 10:30 a.m. (Chicago time) on the Honor
Date, the Issuing Lender will promptly notify the Administrative Agent and the
Administrative Agent will promptly notify each Lender thereof, and the Company
shall be deemed to have requested that Base Rate Loans be made by the Lenders to
be disbursed on the Honor Date under such Letter of Credit, subject to the
amount of the unutilized portion of the U.S. Revolving Commitment Amount and
subject to the conditions set forth in SECTION 5.2 other than SECTION 5.2(a).
Any notice given by the Issuing Lender or the Administrative Agent pursuant to
this SUBSECTION 3.3(b) may be oral if immediately confirmed in writing
(including by facsimile); PROVIDED that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such
notice.
(c) Each Lender shall upon any notice pursuant to SUBSECTION
3.3(b) make available to the Administrative Agent for the account of the Issuing
Lender an amount in Dollars
50
and in immediately available funds equal to its applicable Facility Percentage
of the amount of the drawing, whereupon the participating Lenders shall (subject
to SUBSECTION 3.3(d)) each be deemed to have made a U.S. Revolving Loan
consisting of a Base Rate Loan to the Company in such amount. If any Lender so
notified fails to make available to the Administrative Agent for the account of
the Issuing Lender the amount of such Lender's applicable Facility Percentage of
the amount of such drawing by no later than 1:00 p.m. (Chicago time) on the
Honor Date, then interest shall accrue on such Lender's obligation to make such
payment, from the Honor Date to the date such Lender makes such payment, at a
rate per annum equal to the Federal Funds Rate in effect from time to time
during such period. The Administrative Agent will promptly give notice of the
occurrence of the Honor Date, but failure of the Administrative Agent to give
any such notice on the Honor Date or in sufficient time to enable any Lender to
effect such payment on such date shall not relieve such Lender from its
obligations under this SECTION 3.3.
(d) With respect to any unreimbursed drawing that is not converted
into U.S. Revolving Loans consisting of Base Rate Loans in whole or in part,
because of the Company's failure to satisfy the conditions set forth in SECTION
5.2 (other than SECTION 5.2(a), which need not be satisfied) or for any other
reason, the Company shall be deemed to have incurred from the Issuing Lender an
L/C Borrowing in the amount of such drawing, which L/C Borrowing shall be due
and payable on demand (together with interest) and shall bear interest at a rate
per annum equal to the sum of the Base Rate PLUS the Base Rate Margin PLUS 2%,
and each Lender's payment to the Issuing Lender pursuant to SUBSECTION 3.3(c)
shall be deemed payment in respect of its participation in such L/C Borrowing
and shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this SECTION 3.3.
(e) Each Lender's obligation in accordance with this Agreement to
make U.S. Revolving Loans or L/C Advances, as contemplated by this SECTION 3.3,
as a result of a drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to the Issuing Lender and shall not be
affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the
Issuing Lender, the Company or any other Person for any reason whatsoever, (ii)
the occurrence or continuance of an Event of Default, an Unmatured Event of
Default or a Material Adverse Effect or (iii) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing; PROVIDED
that each Lender's obligation to make U.S. Revolving Loans under this SECTION
3.3 is subject to the conditions set forth in SECTION 5.2.
3.4 REPAYMENT OF PARTICIPATIONS. (a) Upon (and only upon) receipt by the
Administrative Agent for the account of the Issuing Lender of immediately
available funds from the Company (i) in reimbursement of any payment made by the
Issuing Lender under a Letter of Credit with respect to which any Lender has
paid the Administrative Agent for the account of the Issuing Lender for such
Lender's participation in such Letter of Credit pursuant to SECTION 3.3 or (ii)
in payment of interest thereon, the Administrative Agent will pay to each
Lender, in like funds as those received by the Administrative Agent for the
account of the Issuing Lender, the amount of such Lender's applicable Facility
Percentage of such funds, and the Issuing Lender shall receive the amount of the
applicable Facility Percentage of such funds of any Lender that did not so pay
the Administrative Agent for the account of the Issuing Lender.
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(b) If the Administrative Agent or the Issuing Lender is required
at any time to return to the Company, or to a trustee, receiver, liquidator or
custodian, or to any official in any Insolvency Proceeding, any portion of any
payment made by the Company to the Administrative Agent for the account of the
Issuing Lender pursuant to SUBSECTION 3.4(a) in reimbursement of a payment made
under a Letter of Credit or interest or fee thereon, each Lender shall, on
demand of the Administrative Agent, forthwith return to the Administrative Agent
or the Issuing Lender the amount of its applicable Facility Percentage of any
amount so returned by the Administrative Agent or the Issuing Lender PLUS
interest thereon from the date such demand is made to the date such amount is
returned by such Lender to the Administrative Agent or the Issuing Lender, at a
rate per annum equal to the Federal Funds Rate in effect from time to time.
3.5 ROLE OF THE ISSUING LENDER. (a) Each Lender and the Company agree
that, in paying any drawing under a Letter of Credit, the Issuing Lender shall
not have any responsibility to obtain any document (other than any sight draft
and certificate expressly required by such Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document.
(b) None of any Agent-Related Person, the Issuing Lender or any of
their respective correspondents, participants or assignees shall be liable to
any Lender for: (i) any action taken or omitted in connection herewith at the
request or with the approval of the Lenders (including the Required Lenders, as
applicable); (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
(c) The Company hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; PROVIDED that this assumption is not intended to, and shall not,
preclude the Company's pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under this Agreement or any other
agreement. None of any Agent-Related Person, the Issuing Lender or any of their
respective correspondents, participants or assignees shall be liable or
responsible for any of the matters described in CLAUSES (I) through (VII) of
SECTION 3.6; PROVIDED that, anything in such clauses to the contrary
notwithstanding, the Company may have a claim against the Issuing Lender, and
the Issuing Lender may be liable to the Company, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Company which the Company proves were caused by the Issuing
Lender's willful misconduct or gross negligence or the Issuing Lender's willful
or grossly negligent failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of such Letter of Credit. In
furtherance and not in limitation of the foregoing: (i) the Issuing Lender 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 (ii) the Issuing Lender shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
52
3.6 OBLIGATIONS ABSOLUTE. The obligations of the Company under this
Agreement and any L/C-Related Document to reimburse the Issuing Lender for a
drawing under a Letter of Credit, and to repay any L/C Borrowing and any drawing
under a Letter of Credit converted into U.S. Revolving Loans, shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement and each such other L/C-Related Document under all
circumstances, including the following:
(i) any lack of validity or enforceability of this Agreement
or any L/C-Related Document;
(ii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the obligations of the
Company in respect of any Letter of Credit or any other amendment
or waiver of or any consent to departure from all or any of the
L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or other
right that the Company may have at any time against any
beneficiary or any transferee of any Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may
be acting), the Issuing Lender or any other Person, whether in
connection with this Agreement, the transactions contemplated
hereby or by the L/C-Related Documents or any unrelated
transaction;
(iv) any draft, demand, certificate or other document
presented under any 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 or
any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of
Credit;
(v) any payment by the Issuing Lender under any Letter of
Credit against presentation of a draft or certificate that does
not strictly comply with the terms of such Letter of Credit; or
any payment made by the Issuing Lender under any Letter of Credit
to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to
any beneficiary or any transferee of any Letter of Credit,
including any arising in connection with any Insolvency
Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent
to departure from any guarantee, for all or any of the
obligations of the Company in respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any
other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Company or a guarantor.
3.7 CASH COLLATERAL PLEDGE. If any Letter of Credit remains outstanding
and partially or wholly undrawn as of the U.S. Revolving Termination Date, then
the Company shall immediately Cash Collateralize the L/C Obligations in an
amount equal to the maximum amount then available to be drawn under all Letters
of Credit.
53
3.8 LETTER OF CREDIT FEES. (a) The Company shall pay to the
Administrative Agent for the account of each Lender a letter of credit fee with
respect to each Letter of Credit at a rate per annum equal to the L/C Fee Rate
on the maximum amount available to be drawn on such Letter of Credit (whether or
not such maximum amount is then in effect under such Letter of Credit), computed
on a quarterly basis in arrears on the last Business Day of each calendar
quarter.
(b) The Company shall pay to the Issuing Lender a letter of credit
fronting fee (i) for each standby Letter of Credit equal to 0.25% per annum of
the maximum amount available to be drawn on such Letter of Credit (whether or
not such maximum amount is then in effect under such Letter of Credit), computed
on the last Business Day of each calendar quarter and on the U.S. Revolving
Termination Date (or such later date on which such Letter of Credit shall expire
or be fully drawn), and (ii) for each commercial Letter of Credit, 0.25% of the
maximum amount available to be drawn under such Letter of Credit on the date of
Issuance.
(c) The letter of credit fees payable under SUBSECTION 3.8(a) and
the fronting fee payable under SUBSECTION 3.8(b)(i) shall be due and payable
quarterly in arrears on the first Business Day of each calendar quarter during
which Letters of Credit are outstanding, commencing on the first such quarterly
date to occur after the Effective Date, through the U.S. Revolving Termination
Date (or such later date upon which all outstanding Letters of Credit shall
expire or be fully drawn), with the final payment to be made on the U.S.
Revolving Termination Date (or such later date). The fronting fee payable under
SUBSECTION 3.8(b)(ii) shall be payable on the date of Issuance of the applicable
commercial Letter of Credit. For purposes of calculating the fees payable under
SUBSECTION 3.8(a), any undrawn Commercial Letter of Credit shall be considered
outstanding and available to be drawn upon for 25 days after its expiry date.
(d) The Company shall pay to the Issuing Lender from time to time
on demand the normal issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the Issuing Lender relating to
letters of credit as from time to time in effect.
3.9 APPLICABILITY OF ISP98 AND UCP. Unless otherwise expressly agreed
by the Issuing Lender and the Company when a Letter of Credit is issued
(including any such agreement applicable to any Existing Letter of Credit), (i)
the rules of the "International Standby Practices 1998" published by the
Institute of International Banking Law & Practice (or such later version thereof
as may be in effect at the time of issuance) shall apply to each standby Letter
of Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International Chamber of
Commerce (the "ICC") at the time of issuance (including the ICC decision
published by the Commission on Banking Technique and Practice on April 6, 1998
regarding the European single currency) shall apply to each commercial Letter of
Credit.
3.10 NON-DOLLAR LETTERS OF CREDIT. (a) The Company, the Administrative
Agent, the Issuing Lender and the Lenders (i) agree that the Issuing Lender may
(in its sole discretion) issue Letters of Credit ("NON-DOLLAR LETTERS OF
CREDIT") in currencies other than Dollars and (ii) further agree as follows with
respect to such Non-Dollar Letters of Credit:
54
(b) The Company agrees that its reimbursement obligation under
SUBSECTION 3.3(b) and any resulting L/C Borrowing, in each case in respect of a
drawing under any Non-Dollar Letter of Credit, (i) shall be payable in Dollars
at the Dollar Equivalent of such obligation in the currency in which such
Non-Dollar Letter of Credit was issued (determined on the date of payment) and
(ii) shall bear interest at a rate per annum equal to the sum of the Federal
Funds Rate PLUS the Eurocurrency Rate Margin PLUS 3% for each day from and
including the Honor Date to but excluding the date such obligation is paid in
full (IT BEING UNDERSTOOD that any payment received after 10:30 a.m., Chicago
time, on any day shall be deemed received on the following Business Day).
(c) Each Lender agrees that its obligation to make U.S. Revolving
Loans under SUBSECTION 3.3(b) and to make L/C Advances for any unpaid
reimbursement obligation or L/C Borrowing in respect of a drawing under any
Non-Dollar Letter of Credit shall be payable in Dollars at the Dollar Equivalent
of such obligation in the currency in which such Non-Dollar Letter of Credit was
issued (calculated on the date of payment) (and any such amount which is not
paid when due shall bear interest at a rate per annum equal to the Overnight
Rate PLUS, beginning on the third Business Day after such amount was due, the
Eurocurrency Rate Margin).
(d) For purposes of determining whether there is availability for
the Company to request, continue or convert any Loan, or request, extend or
increase the face amount of any Letter of Credit, the Dollar Equivalent of the
Effective Amount of each Non-Dollar Letter of Credit shall be calculated on the
date such Letter of Credit is to be issued, extended or increased and on the
last day of each calendar month.
(e) For purposes of determining (i) the amount of the unused
portion of the U.S. Revolving Commitment Amount under SUBSECTION 2.11(b), (ii)
the letter of credit fee under SUBSECTION 3.8(a) and (iii) the letter of credit
fronting fee under SUBSECTION 3.8(b), the Dollar Equivalent of the Effective
Amount of any Non-Dollar Letter of Credit shall be determined on each of (1) the
date of an issuance, extension or change in the face amount of such Non-Dollar
Letter of Credit, (2) the date of any payment by the Issuing Lender in respect
of a drawing under such Non-Dollar Letter of Credit, (3) the last day of each
calendar month and (4) each day on which the U.S. Revolving Commitment Amount is
reduced.
(f) If, on the last day of any calendar month or any day on which
the U.S. Revolving Commitment Amount is reduced, the sum of the principal amount
of all Revolving Loans and U.S. Swingline Loans plus the Effective Amount of all
Letters of Credit (valuing the Effective Amount of, and all reimbursement
obligations and L/C Borrowings of the Company in respect of, any Non-Dollar
Letter of Credit at the Dollar Equivalent thereof as of such day) would exceed
the U.S. Revolving Commitment Amount, then the Company will immediately
eliminate such excess by prepaying U.S. Revolving Loans and/or U.S. Swingline
Loans and/or causing one or more Letters of Credit to be reduced or terminated.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
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4.1 TAXES. (a) Any and all payments by either Borrower to a Lender or
the Administrative Agent under this Agreement and any other Loan Document shall
be made free and clear of, and without deduction or withholding for, any Taxes.
In addition, the Borrowers shall pay all Other Taxes.
(b) The Borrowers agree to indemnify and hold harmless each Lender
and the Administrative Agent for the full amount of Taxes, Other Taxes and
Further Taxes paid by such Lender in the amount necessary to preserve the
after-tax yield such Lender would have received if such Taxes, Other Taxes or
Further Taxes had not been imposed, and any liability (including penalties,
interest, additions to tax and reasonable out-of-pocket expenses) arising
therefrom or with respect thereto, whether or not such Taxes, Other Taxes or
Further Taxes were correctly or legally asserted; PROVIDED, HOWEVER, that no
participant of any Lender shall be entitled to receive any greater payment under
this SUBSECTION 4.1(b) than such Lender would have been entitled to receive with
respect to the rights participated; and PROVIDED FURTHER that the Borrowers
shall not indemnify any Lender (or participant thereof) or the Administrative
Agent for Taxes, Other Taxes, Further Taxes, penalties, additions to tax,
interest and expenses arising as a result of any of their own willful misconduct
or gross negligence. Payment under this SUBSECTION 4.1(b) shall be made within
30 days from the date such Lender or the Administrative Agent (as the case may
be) makes written demand therefor, including with such demand an identification
of the Taxes, Other Taxes or Further Taxes (together with the amounts thereof)
with respect to which such demand for indemnification is being made.
(c) If either Borrower shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect of any sum
payable hereunder to any Lender or the Administrative Agent, then:
(i) the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable
under this Section), such Lender or the Administrative Agent, as
the case may be, receives and retains an amount equal to the sum
it would have received and retained had no such deductions or
withholdings been made;
(ii) such Borrower shall make such deductions and
withholdings; and
(iii) such Borrower shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in
accordance with applicable law.
(d) Within 10 days after the date either Borrower receives any
receipt for the payment of any Taxes, Other Taxes or Further Taxes deducted or
withheld pursuant to CLAUSE (C) above, such Borrower shall furnish to each
Lender and the Administrative Agent the original or a certified copy of such
receipt evidencing payment thereof, or other evidence of payment satisfactory to
such Lender or the Administrative Agent.
(e) If either Borrower is required to pay additional amounts to
any Lender or the Administrative Agent pursuant to SUBSECTION (b) of this
Section or SECTION 4.3, then such Lender shall use reasonable efforts
(consistent with legal and regulatory restrictions) to change
56
the jurisdiction of its Lending Office so as to reduce or eliminate any such
additional payment by such Borrower which may thereafter accrue, if such change
in the sole judgment of such Lender is not otherwise disadvantageous to such
Lender.
(f) If a Lender (or participant thereof) or the Administrative
Agent shall become aware that it is entitled to receive a refund (including
interest and penalties, if any) in respect of Taxes, Other Taxes or Further
Taxes as to which it has been indemnified by either Borrower pursuant to this
SECTION 4.1, it shall promptly notify such Borrower in writing of the
availability of such refund (including interest and penalties, if any) and
shall, within 30 days after receipt of a request by such Borrower, apply for
such refund. If any Lender (or participant thereof) or the Administrative Agent
receives a refund (including interest and penalties, if any) in respect of any
Taxes, Other Taxes or Further Taxes as to which it has been indemnified by
either Borrower pursuant to this SECTION 4.1, it shall promptly notify such
Borrower of the receipt of such refund and shall, within 15 days of receipt,
repay such refund (to the extent of amounts that have been paid by such Borrower
under this SECTION 4.1 with respect to such refund and not previously
reimbursed) to such Borrower, net of all reasonable out-of-pocket expenses of
such Lender or the Administrative Agent and without any interest (other than the
interest, if any, included in such refund).
4.2 ILLEGALITY. (a) After the date hereof, if any Lender determines
that the introduction of any Requirement of Law, or any change in any
Requirement of Law, or in the interpretation or administration of any
Requirement of Law, has made it unlawful, or that any central bank or other
Governmental Authority has asserted that it is unlawful, for such Lender or its
applicable Lending Office to make Eurocurrency Loans in Dollars or Euros, then,
on notice thereof by the Lender to the Company through the Administrative Agent,
any obligation of such Lender to make Eurocurrency Loans in the applicable
currency shall be suspended until such Lender notifies the Administrative Agent
and the Company that the circumstances giving rise to such determination no
longer exist.
(b) After the date hereof, if a Lender determines that it is
unlawful to maintain any Eurocurrency Loan, the Borrowers shall, upon its
receipt of notice of such fact and demand from such Lender (with a copy to the
Administrative Agent), prepay in full such Eurocurrency Loan, together with
interest accrued thereon and any amount required under SECTION 4.4, either on
the last day of the Interest Period thereof or on such earlier date on which
such Lender may no longer lawfully continue to maintain such Eurocurrency Loan
(as determined by such Lender). If a Borrower is required to so prepay any
Eurodollar Loan, then concurrently with such prepayment, such Borrower shall
borrow from the affected Lender, in the amount of such repayment, a Base Rate
Loan. If a Borrower is required to so prepay any other Eurocurrency Loan, then
concurrently with such prepayment, such Borrower shall borrow from the affected
Lender, in the amount of such repayment, a Loan bearing interest at the
Overnight Rate (or, if such Lender notifies such Borrower and the Administrative
Agent that the Overnight Rate will not cover the cost to such Lender of
obtaining funds to maintain such Loan, at such other rate as may be agreed to by
such Borrower and such Lender) plus the Eurocurrency Margin.
(c) If the obligation of any Lender to make or maintain
Eurocurrency Loans has been terminated or suspended pursuant to SUBSECTION (a)
or (b) above, all Loans which would otherwise be made by such Lender as
Eurocurrency Loans shall instead (i) in the case of Loans
57
denominated in Dollars, be made as Base Rate Loans, and (ii) in the case of
Loans denominated in Euros, bear interest at the Overnight Rate (or, if such
Lender notifies the applicable Borrower and the Administrative Agent that the
Overnight Rate will not cover the cost to such Lender of obtaining funds to
maintain such Loan, at such other rate as may be agreed to by such Borrower and
such Lender) plus the Eurocurrency Margin.
(d) Before giving any notice to the Administrative Agent or demand
upon the Borrowers under this Section, the affected Lender shall designate a
different Lending Office with respect to its Eurocurrency Loans if such
designation will avoid the need for giving such notice or making such demand and
will not, in the judgment of such Lender, be illegal or otherwise
disadvantageous to such Lender.
4.3 INCREASED COSTS AND REDUCTION OF RETURN. (a) After the date hereof,
if any Lender determines that, due to either (i) the introduction of or any
change (other than any change by way of imposition of or increase in reserve
requirements included in the calculation of the Eurocurrency Rate) in or in the
interpretation of any law or regulation or (ii) compliance by such Lender with
any guideline or request 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
Eurocurrency Loan or participating in Letters of Credit or, in the case of the
Issuing Lender, any increase in the cost to the Issuing Lender of agreeing to
issue, issuing or maintaining any Letter of Credit or of agreeing to make or
making, funding or maintaining any unpaid drawing under any Letter of Credit,
then the applicable Borrower shall be liable for, and shall from time to time,
upon demand (with a copy of such demand to be sent to the Administrative Agent),
pay to the Administrative Agent, for the account of such Lender, additional
amounts as are sufficient to compensate such Lender for such increased costs.
(b) After the date hereof, if any Lender shall have determined
that (i) the introduction of any Capital Adequacy Regulation, (ii) any change in
any Capital Adequacy Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or administration
thereof, or (iv) compliance by such Lender (or its Lending Office) or any
corporation controlling such Lender with any Capital Adequacy Regulation,
affects or would affect the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and (taking
into consideration such Lender's or such corporation's policies with respect to
capital adequacy and such Lender's desired return on capital) determines that
the amount of such capital is increased as a consequence of any of its
Commitments, Loans or obligations under this Agreement, then, upon demand of
such Lender to the Company through the Administrative Agent, the applicable
Borrower shall pay to such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender for such
increase.
(c) This SECTION 4.3 shall not require either Borrower to
reimburse the Administrative Agent or any Lender for any Taxes which are
otherwise covered by the indemnity set forth in SECTION 4.1 or any Excluded
Taxes.
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4.4 FUNDING LOSSES. Each Borrower shall reimburse each Lender and
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of:
(a) the failure of such Borrower to make on a timely basis any
payment of principal of any Eurocurrency Loan;
(b) the failure of such Borrower to borrow, continue or convert a
Loan after such Borrower has given (or is deemed to have given) a Notice of
Borrowing, a Notice of Conversion/ Continuation or a notice of a Euro Swingline
Loan pursuant to SECTION 2.5(b)(ii);
(c) the failure of such Borrower to make any prepayment in
accordance with any notice delivered under SECTION 2.5(b)(iv) or SECTION 2.7;
(d) the prepayment (including pursuant to SECTION 2.8) or other
payment (including after acceleration thereof) of a Eurocurrency Loan on a day
that is not the last day of the relevant Interest Period (or, in the case of a
Euro Swingline Loan with respect to which the Subsidiary Borrower and the
Swingline Lender have agreed to a period of two or more days for determining the
Overnight Rate, on a day that is not the last day of such period); or
(e) the automatic conversion under SUBSECTION 2.4(a) of any
Eurodollar Loan to a Base Rate Loan on a day that is not the last day of the
relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Eurocurrency Loans (or, in the case of
the Swingline Lender, Euro Swingline Loans) or from fees payable to terminate
the deposits from which such funds were obtained. For purposes of calculating
amounts payable by the Borrowers to the Lenders under this Section and under
SUBSECTION 4.3(a), each Eurocurrency Loan made by a Lender (and each related
reserve, special deposit or similar requirement) shall be conclusively deemed to
have been funded at the LIBOR used in determining the Eurocurrency Rate for such
Eurocurrency Loan by a matching deposit or other borrowing in the interbank
eurocurrency market for a comparable amount and for a comparable period, whether
or not such Eurocurrency Loan is in fact so funded.
4.5 INABILITY TO DETERMINE RATES. If the Administrative Agent
determines that for any reason adequate and reasonable means do not exist for
determining the Eurocurrency Rate for any requested Interest Period with respect
to a proposed Eurocurrency Loan, or Lenders having a Facility Percentage of 50%
or more under a Facility determine (and notify the Administrative Agent) that
the Eurocurrency Rate applicable pursuant to SUBSECTION 2.10(a) for any
requested Interest Period with respect to a proposed Eurocurrency Loan under
such Facility does not adequately and fairly reflect the cost to such Lenders of
funding such Loan, the Administrative Agent will promptly so notify the
Borrowers and each Lender under such Facility. Thereafter, the obligation of the
Lenders to make or maintain Eurocurrency Loans under such Facility shall be
suspended until the Administrative Agent, with the consent of Lenders having a
Facility Percentage of 50% or more under such Facility, revokes such notice in
writing. Upon receipt of such notice, the applicable Borrower may revoke any
Notice of Borrowing or Notice of Conversion/Continuation then submitted by it
under such Facility. If such Borrower does not
59
revoke such Notice, the Lenders under such Facility shall make, convert or
continue the Loans, as proposed by such Borrower, in the amount specified in the
applicable notice submitted by such Borrower, but (a) in the case of Loans
denominated in Dollars, such Loans shall be made, converted or continued as Base
Rate Loans instead of Eurocurrency Loans; and (b) in the case of Loans
denominated in Euros, such Loans shall bear interest at the Overnight Rate (or,
if any Lender notifies such Borrower and the Administrative Agent that the
Overnight Rate will not cover the cost to such Lender of obtaining funds to
maintain the applicable Loan, at such other rate as may be agreed to by such
Borrower and such Lender) plus the Eurocurrency Margin.
4.6 CERTIFICATES OF LENDERS. Any Lender claiming reimbursement or
compensation under this ARTICLE IV shall deliver to the Company (with a copy to
the Administrative Agent) a certificate setting forth in reasonable detail the
basis for such claim and a calculation of the amount payable to such Lender and
such certificate shall be conclusive and binding on the Borrowers in the absence
of manifest error.
4.7 SUBSTITUTION OF LENDERS. In the event a Borrower becomes
obligated to pay additional amounts to any Lender pursuant to SECTION 4.1(b) or
(c) or SECTION 4.3, or if it becomes illegal for any Lender to continue to fund
or to make Eurocurrency Loans pursuant to SECTION 4.2, as a result of any
condition described in any such Section, then, unless such Lender has
theretofore taken steps to remove or cure, and has removed or cured, the
conditions creating the cause for such obligation to pay such additional amounts
or for such illegality, such Borrower may, upon notice to such Lender and the
Administrative Agent, replace such Lender by causing such Lender to assign its
Commitment (with the assignment fee to be paid by the Company in such instance)
pursuant to SECTION 11.8(a) to one or more other Lenders or Eligible Assignees
procured by the Company; PROVIDED that if the Company elects to exercise such
right with respect to any Lender, it shall be obligated to replace all Lenders
that have made similar requests for compensation. The Borrowers shall (x) pay in
full all principal, interest, fees and other amounts owing to such Lender
through the date of replacement (including any amounts payable pursuant to
SECTION 4.4), (y) provide appropriate assurances and indemnities (which may
include letters of credit) to the Issuing Lender and the Swingline Lender as
each may reasonably require with respect to any continuing obligation to fund
participation interests in any L/C Obligations or any Swingline Loans then
outstanding, and (z) release such Lender from its obligations under this
Agreement. Any Lender being replaced shall execute and deliver an Assignment and
Assumption with respect to such Lender's Commitment and outstanding Loans and
participations in L/C Obligations and Swingline Loans, to the extent applicable.
4.8 SURVIVAL. The agreements and obligations of the Borrowers in this
ARTICLE IV shall survive the payment of all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.1 CONDITIONS OF EFFECTIVENESS. This Agreement shall become
effective (and the Existing Agreement shall be deemed to have been amended and
restated hereby) on the date that the Administrative Agent shall have received:
(i) evidence (satisfactory to the Administrative Agent) that the Company has
completed (or will concurrently complete) the VARTA
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Acquisition; and (ii) all of the following, in form and substance satisfactory
to the Administrative Agent and each Lender, and (except for any Notes) in
sufficient copies for each Lender:
(a) CREDIT AGREEMENT AND NOTES. This Agreement and the Notes (if
any), executed by each party hereto and thereto.
(b) RESOLUTIONS AND INCUMBENCY.
(i) Copies of resolutions of the board of directors (or other
governing body) of each Borrower and each Guarantor authorizing the
transactions contemplated hereby, certified as of the Effective Date
by the Secretary or an Assistant Secretary of such Person, PROVIDED
that no German Entity shall be required to deliver copies of
resolutions unless resolutions are necessary pursuant to its
Organization Documents; and
(ii) A certificate of the Secretary or an Assistant Secretary or
director of each Borrower and each Guarantor certifying the names and
true signatures of the officers of such Person authorized to execute,
deliver and perform the Loan Documents to be delivered by it
hereunder, PROVIDED that, in lieu of the foregoing, each German Entity
shall deliver a certified copy of its current excerpt of the
commercial register file (HANDELSREGISTERAUSZUG) and a certified copy
of the specimen signature (UNTERSCHRIFTENPROBE) currently filed with
the commercial register of the representative of such Person who will
execute, deliver and perform the Loan Documents to be delivered by it
hereunder.
(c) ORGANIZATION DOCUMENTS; GOOD STANDING. Each of the following
documents:
(i) for each Borrower and each Guarantor, the articles or
certificate of incorporation and the bylaws of such Person, as the
case may be, as in effect on the Effective Date, certified by the
Secretary or Treasurer of such Person, as of the Effective Date,
PROVIDED that, in lieu of the foregoing, each German Entity shall
deliver certified copies of its shareholders agreement
(GESELLSCHAFTSVERTRAG); and
(ii) in the case of the Company, Rovcal and ROV Holding, a good
standing certificate, if applicable, for each Borrower and each
Guarantor from the Secretary of State (or similar applicable
Governmental Authority) of the jurisdiction of its organization.
(d) LEGAL OPINIONS.
(i) An opinion of Xxxxxxxxxx, Xxxxxx & Xxxxxxx, substantially in
the form of EXHIBIT I,
(ii) an opinion of Xxxxxxxx Chance Punder, special German counsel
to the Borrowers, substantially in the form of EXHIBIT J,
(iii) an opinion of Mayer, Brown, Xxxx & Maw, special New York
counsel to the Administrative Agent, substantially in the form of
EXHIBIT K-1; and
61
(iv) an opinion of Mayer, Brown, Xxxx & Maw Gaedertz, special
German counsel to the Administrative Agent, substantially in the form
of EXHIBIT K-2.
(e) PAYMENT OF FEES. Evidence of payment by the Borrowers of all
accrued and unpaid fees, costs and expenses to the extent then due and payable
on the Effective Date, together with Attorney Costs of the Administrative Agent
and the Arrangers to the extent invoiced prior to or on the Effective Date, PLUS
such additional amounts of Attorney Costs as shall constitute the Administrative
Agent's reasonable estimate of Attorney Costs incurred or to be incurred by it
through the closing proceedings (IT BEING UNDERSTOOD that such estimate shall
not thereafter preclude final settling of accounts between the Company and the
Administrative Agent), including any such costs, fees and expenses arising under
or referenced in SECTION 2.11 or 11.4.
(f) CERTIFICATE. A certificate signed by a Responsible Officer,
dated as of the Effective Date, stating that:
(i) the representations and warranties contained in ARTICLE VI
are true and correct in all material respects on and as of such date,
as though made on and as of such date (and assuming that the
transactions contemplated by the VARTA Acquisition Agreement had been
completed and that VARTA already was a Subsidiary of the Company);
(ii) no Event of Default or Unmatured Event of Default exists or
will result from the effectiveness hereof; and
(iii) no event or circumstance has occurred since September 30,
2001 that has resulted, or would reasonably be expected to result, in
a Material Adverse Effect.
(g) GUARANTIES. (a) An ROV Guaranty executed by ROV Holding,
Rovcal and Cayman Finance Co.; and (b) a KGaA Guaranty executed by (i) each
Subsidiary having a direct or indirect ownership interest in the Subsidiary
Borrower, (ii) Cayman Finance Co. and (iii) Rayovac (UK) Ltd.
(h) REAL PROPERTY. With respect to each parcel of real property
owned or leased by the Borrower or any Subsidiary and listed on SCHEDULE 5.1(H),
a duly executed Mortgage Amendment providing for a fully perfected Lien, in
favor of the Administrative Agent for the benefit of the Administrative Agent
and the Lenders, in all right, title and interest of the Company and each
Subsidiary to the real property subject to such Mortgage, superior in right to
any Lien (other than Permitted Liens), existing or future, which the Company or
any Subsidiary or any creditors thereof or purchasers therefrom, or any other
Person, may have against such real property, together with a certificate of
insurance confirming that the insurance required to be maintained with respect
to such real property by this Agreement, any Mortgage, any Mortgage Amendment or
any other Loan Document is in full force and effect.
(i) COLLATERAL DOCUMENTS. Fully-executed originals of each of the
following: (i) the Security Agreement; (ii) the Company Pledge Agreement; (iii)
the U.K. Charge; (iv) the Netherlands Share Pledge Agreements; (v) the Canadian
Share Pledge Agreement; (vi) the Cayman Pledge Agreements; (vii) the German
Share Pledge Agreements; (viii) the Account
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Pledge Agreement; (ix) the Security Assignment Agreement; (x) the Security
Transfer Agreement; and (xi) the Security Trust Agreement; together with, in
each case, evidence that all necessary deliveries, registrations and filings
have been (or substantially concurrently will be) made to perfect the Liens
granted thereunder.
(j) OTHER DOCUMENTS. Such other approvals, opinions, documents or
materials as the Administrative Agent or any Lender may reasonably request.
5.2 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender
to make any Loan to be made by it and the obligation of the Issuing Lender to
Issue any Letter of Credit is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date or Issuance Date:
(a) NOTICE, APPLICATION. In the case of any Loan, the
Administrative Agent shall have received a Notice of Borrowing, and in the case
of any Issuance of any Letter of Credit, the Issuing Lender and the
Administrative Agent shall have received an L/C Application or L/C Amendment
Application, as required under SECTION 3.2.
(b) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties in ARTICLE VI shall be true and correct in all
material respects on and as of the date of such Credit Extension with the same
effect as if made on and as of such date (except to the extent such
representations and warranties expressly refer to an earlier date, in which case
they shall be true and correct as of such earlier date).
(c) NO EXISTING DEFAULT. No Event of Default or Unmatured Event of
Default shall exist or shall result from such Credit Extension.
Each Notice of Borrowing and L/C Application or L/C Amendment Application
submitted by a Borrower hereunder shall constitute a representation and warranty
by such Borrower hereunder, as of the date of such notice and as of the
applicable Borrowing Date or Issuance Date, that the conditions in this SECTION
5.2 are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Administrative Agent and
each Lender (and the Subsidiary Borrower represents and warrants to the
Administrative Agent and each Lender as to itself) that:
6.1 CORPORATE EXISTENCE AND POWER. Each Borrower and each of its
Subsidiaries (other than any Dormant Subsidiary):
(a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization;
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(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals (i) to own its assets and to carry on its
business and (ii) to execute, deliver and perform its obligations under the Loan
Documents to which it is a party;
(c) is duly qualified as a foreign corporation and is licensed and
in good standing under the laws of each jurisdiction where its ownership, lease
or operation of property or the conduct of its business requires such
qualification or license; and
(d) is in compliance with all Requirements of Law;
except, in each case referred to in CLAUSE (B)(I), (C) or (D), to the extent
that the failure to do so would not reasonably be expected to have a Material
Adverse Effect.
6.2 CORPORATE AUTHORIZATION; NO CONTRAVENTION. The execution and
delivery by each Borrower of this Agreement and each other Loan Document to
which it is a party, the Borrowings hereunder, the execution and delivery by
each Guarantor of each Loan Document to which it is a party and the performance
by each Borrower and each Guarantor of its obligations under each Loan Document
to which it is a party (i) are within the corporate powers of each Borrower and
each Guarantor, as applicable, (ii) have been duly authorized by all necessary
corporate action on the part of each Borrower and each Guarantor (including any
necessary shareholder action) and (iii) do not and will not:
(a) contravene the terms of any of the Organization Documents of
either Borrower or any Guarantor;
(b) conflict with or result in a breach or contravention of, or
the creation of any Lien under, any document evidencing any Contractual
Obligation to which either Borrower or any Guarantor is a party or any order,
injunction, writ or decree of any Governmental Authority to which either
Borrower, any Guarantor or any of their properties is subject; or
(c) violate any Requirement of Law.
6.3 GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, either Borrower
of this Agreement or any other Loan Document to which it is a party or any
Guarantor of any Loan Document to which it is a party, except, in each case, for
filings required to perfect Liens in favor of the Administrative Agent granted
under the Loan Documents.
6.4 BINDING EFFECT. This Agreement and each other Loan Document to
which either Borrower is a party constitutes the legal, valid and binding
obligation of such Borrower, enforceable against such Borrower in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability; and with
respect to each Guarantor, each Loan Document to which such Guarantor is a party
constitutes the legal, valid and binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
64
insolvency, or similar laws affecting the enforcement of creditors' rights
generally and by equitable principles relating to enforceability.
6.5 LITIGATION. Except as specifically disclosed in SCHEDULE 6.5,
there are no actions, suits, proceedings, claims or disputes pending or, to the
best knowledge of the Borrowers, threatened or contemplated, at law, in equity,
in arbitration or before any Governmental Authority, against either Borrower or
any Subsidiary or any of their respective properties which: purport to affect or
pertain to this Agreement or any other Loan Document, or any of the transactions
contemplated hereby or thereby; or would reasonably be expected to have a
Material Adverse Effect. No injunction, writ, temporary restraining order or
other order of any nature has been issued by any court or other Governmental
Authority purporting to enjoin or restrain the execution, delivery or
performance of this Agreement or any other Loan Document, or directing that the
transactions provided for herein or therein not be consummated as herein or
therein provided.
6.6 NO DEFAULT. No Event of Default or Unmatured Event of Default
exists or would result from the incurring of any Obligations by either Borrower.
As of the Effective Date, neither Borrower nor any Subsidiary is in default
under or with respect to any Contractual Obligation in any respect which,
individually or together with all such defaults, would reasonably be expected to
have a Material Adverse Effect, or that would, if such default had occurred
after the Effective Date, create an Event of Default under SUBSECTION 9.1(e).
6.7 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law. Each
Plan which is intended to qualify under Section 401(a) of the Code has received
a favorable determination letter from the IRS and, to the best knowledge of the
Borrowers, nothing has occurred which would cause the loss of such
qualification. Each Borrower and each ERISA Affiliate has made all required
contributions to any Plan subject to Section 412 of the Code, and no application
for a funding waiver or an extension of any amortization period pursuant to
Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the
Borrowers, threatened claims, actions or lawsuits, or actions by any
Governmental Authority, with respect to any Plan which has resulted or would
reasonably be expected to result in a Material Adverse Effect. There has been no
prohibited transaction or violation of the fiduciary responsibility rules with
respect to any Plan which has resulted or would reasonably be expected to result
in a Material Adverse Effect.
(c) No ERISA Event has occurred or is reasonably expected to occur
that would reasonably be expected to have a Material Adverse Effect; no
contribution failure has occurred with respect to a Pension Plan sufficient to
give rise to a Lien under Section 302(f) of ERISA; neither Borrower nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability to
the PBGC under Title IV of ERISA with respect to any Pension Plan; neither
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would
65
result in such liability) under Section 4201 or 4243 of ERISA with respect to
any Multiemployer Plan that would reasonably be expected to have a Material
Adverse Effect; and neither Borrower nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.
6.8 USE OF PROCEEDS; MARGIN REGULATIONS. The proceeds of the Loans are
to be used solely for the purposes set forth in and permitted by SECTION 7.12
and not in contravention of Section 8.7. Neither Borrower nor any Subsidiary is
generally engaged in the business of purchasing or selling Margin Stock or
extending credit for the purpose of purchasing or carrying Margin Stock.
6.9 TITLE TO PROPERTIES. Each Borrower and each Subsidiary has good
record and marketable title in fee simple to, or a valid leasehold interest in,
all real property necessary or used in the ordinary conduct of its businesses,
except for such defects in title as would not, individually or in the aggregate,
have a Material Adverse Effect. Each Borrower and each Subsidiary has good title
to all their other respective material properties and assets (except for those
assets disposed of not in violation of this Agreement and the other Loan
Documents). As of the Effective Date, the property of the Company and its
Subsidiaries is subject to no Liens, other than Permitted Liens.
6.10 TAXES. The Company and its Subsidiaries have filed all Federal and
State income tax returns (or, in the case of any Foreign Subsidiary, all income
tax returns required in the jurisdiction of its organization and in the
jurisdiction where it has its principal place of business) and all other
material tax returns and reports required to be filed, and have paid all Federal
and State income taxes (or, in the case of any Foreign Subsidiary, all income
taxes in the jurisdictions described in the preceding parenthetical clause) and
all other material taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets otherwise due
and payable, except those which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been provided in accordance
with GAAP. There is no written, and, to the best of the Company's knowledge,
there is no oral, proposed tax assessment against the Company or any Subsidiary
that would, if made, have a Material Adverse Effect.
6.11 FINANCIAL CONDITION. (a) The audited consolidated financial
statements of the Company dated September 30, 2001, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for the
fiscal year then ended:
(i) were prepared in accordance with GAAP;
(ii) present fairly the financial condition of the Company and
its Subsidiaries as of the date thereof and the results of operations
for the period covered thereby; and
(iii) except as specifically disclosed in SCHEDULE 6.11, show all
material indebtedness and other liabilities, direct or contingent, of
the Company and its Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Contingent
Obligations.
66
(b) Since September 30, 2001 there has been no Material Adverse
Effect.
6.12 REGULATED ENTITIES. Neither Borrower nor any Subsidiary is an
"investment company" within the meaning of the Investment Company Act of 1940.
Neither Borrower nor any Subsidiary is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the Interstate
Commerce Act, any state public utilities code, or any other Federal or state or
applicable foreign statute or regulation limiting its ability to incur
Indebtedness.
6.13 NO BURDENSOME RESTRICTIONS. Neither Borrower nor any Subsidiary is
a party to or bound by any Contractual Obligation or subject to any restriction
in any Organization Document or any Requirement of Law which would reasonably be
expected to have a Material Adverse Effect.
6.14 COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC. The Company and
its Subsidiaries own or are licensed or otherwise have the right to use all of
the patents, trademarks, service marks, trade names, copyrights and other
similar rights that are reasonably necessary for the operation of their
respective businesses, without conflict with the rights of any other Person. To
the best knowledge of the Company, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or now
contemplated to be employed, by the Company or any Subsidiary infringes upon any
valid rights held by any other Person. Except as specifically disclosed in
SCHEDULE 6.5, no claim or litigation regarding any of the foregoing is pending
or threatened against the Company or any Subsidiary, and no patent, invention,
device, application, principle or any statute, law, rule, regulation, standard
or code, relating in each case to intellectual property, is, to the knowledge of
the Company, pending or proposed, which, in either case, would reasonably be
expected to have a Material Adverse Effect.
6.15 SUBSIDIARIES. As of the Effective Date, the Company has no
Subsidiaries other than those specifically disclosed in PART (A) of SCHEDULE
6.15 hereto and has no equity investments in any other corporation or entity
other than those specifically disclosed in PART (B) of SCHEDULE 6.15. As of the
Effective Date, none of Minera Vidaluz, Zoe-Phos International, Rayovac Far East
Limited and ROV International Finance Company has assets with a fair market
value in excess of $100,000 or conducts any business. As of the Effective Date,
none of the Company or any of its Subsidiaries provides any credit support to,
or is liable in any manner for any liabilities of, Minera Vidaluz, Zoe-Phos
International, Rayovac Far East Limited or ROV International Finance Company.
6.16 INSURANCE. Except as specifically disclosed in SCHEDULE 6.16, the
properties of the Company and its Subsidiaries are insured with financially
sound and reputable insurance companies (which may be Affiliates of the
Company), in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Company or such Subsidiary operates.
6.17 SOLVENCY, ETC. On the Effective Date (or, in the case of any
Person that becomes a Guarantor after the Effective Date, on the date such
Person becomes a Guarantor), and immediately prior to and after giving effect to
each Credit Extension and the use of the proceeds thereof, each Borrower and
each Guarantor will not have an unreasonably small capital (meaning
67
that for the period from the date of determination through the scheduled U.S.
Revolving Termination Date, each Borrower and each Guarantor, after consummation
of the transactions contemplated by this Agreement, is a going concern and has
sufficient capital to ensure that it will be able to pay its debts and
liabilities as they mature and continue to be a going concern in the business in
which such entities are engaged and proposed to be engaged for such period),
each Borrower's and each Guarantor's assets will exceed its liabilities, each
Borrower and each Guarantor will be solvent, will be able to pay its Stated
Liabilities as they mature (meaning that such Borrower or such Guarantor, as the
case may be, will have sufficient assets and cash flow to pay their respective
Stated Liabilities as those liabilities mature or otherwise become payable in
the normal course of business) and both the Fair Value and Present Fair Saleable
Value of the assets of each Borrower and each Guarantor exceeds the Stated
Liabilities, respectively, of each Borrower and each Guarantor.
6.18 REAL PROPERTY. Set forth on SCHEDULE 6.18 is a complete and
accurate list, as of the date of this Agreement, of the address and legal
description of any real property located in the United States owned by the
Company or any Subsidiary.
6.19 SWAP OBLIGATIONS. Neither the Company nor any of its Subsidiaries
has incurred any outstanding obligations under any Swap Contracts, other than
Permitted Swap Obligations. The Company has undertaken its own independent
assessment of its consolidated assets, liabilities and commitments and has
considered appropriate means of mitigating and managing risks associated with
such matters and has not relied on any swap counterparty or any Affiliate of any
swap counterparty in determining whether to enter into any Swap Contract.
6.20 FULL DISCLOSURE. None of the representations or warranties made by
the Company or any Subsidiary in the Loan Documents as of the date such
representations and warranties are made or deemed made and none of the written
statements contained in any exhibit, report, statement or certificate furnished
by or on behalf of the Company or any Subsidiary in connection with the Loan
Documents, considering each of the foregoing taken as a whole and in the context
in which it was made and together with all other representations, warranties and
written statements taken as a whole theretofore furnished by the Company and its
Subsidiaries to the Administrative Agent and the Lenders in connection with the
Loan Documents, contains any untrue statement of a material fact or omits any
material fact required to be stated therein or necessary to make such
representation, warranty or written statement, in light of the circumstances
under which it is made, not misleading as of the time when made or delivered;
PROVIDED that the Company's representation and warranty as to any forecast,
projection or other statement regarding future performance, future financial
results or other future development is limited to the fact that such forecast,
projection or statement was prepared in good faith on the basis of information
and assumptions that the Company believed to be reasonable as of the date such
material was provided (IT BEING UNDERSTOOD that projections are subject to
significant uncertainties and contingencies, many of which are beyond the
Company's control, and that no assurance can be given that the projections will
be realized).
6.21 ENVIRONMENTAL WARRANTIES. Except as set forth in SCHEDULE 6.21:
(a) all facilities and property (including underlying groundwater)
owned or leased by the Company or any of its Subsidiaries are in compliance with
all Environmental
68
Laws, except for such non-compliance as would not reasonably be expected to
result in a Material Adverse Effect;
(b) there are no pending or threatened Environmental Claims,
except for such Environmental Claims that are not reasonably likely, either
singly or in the aggregate, to result in a Material Adverse Effect;
(c) there have been no Releases of Hazardous Materials at, on or
under any property now or, to the best of the Company's knowledge, previously
owned or leased by the Company or any of its Subsidiaries that, singly or in the
aggregate, have, or may reasonably be expected to have, a Material Adverse
Effect;
(d) the Company and its Subsidiaries have been issued and are in
compliance with all permits, certificates, approvals, licenses and other
authorizations relating to environmental matters and necessary or desirable for
their businesses, except to the extent that the failure to have or comply with
such permits, certificates, approvals, licenses and other authorizations
relating to environmental matters would not be reasonably likely to have a
Material Adverse Effect;
(e) no property now or, to the best of the Company's knowledge,
previously owned or leased by the Company or any of its Subsidiaries is listed
or proposed for listing (with respect to owned property only) on the National
Priorities List pursuant to CERCLA, or, to the best of the Company's knowledge,
is on the Comprehensive Environmental Response Compensation Liability
Information List or on any similar state list of sites requiring investigation
or clean-up, except, in each case, for any such listing that, singly or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect;
and
(f) to the best of the Company's knowledge, neither the Company
nor any Subsidiary of the Company has directly transported or directly arranged
for the transportation of any Hazardous Material to any location which is listed
or proposed for listing on the National Priorities List pursuant to CERCLA, or
which is the subject of federal, state or local enforcement actions or other
investigations which may lead to Environmental Claims against the Company or
such Subsidiary except, in each case, to the extent that the foregoing would not
reasonably be expected to have a Material Adverse Effect.
6.22 VARTA FINANCIAL STATEMENTS. The audited financial statements of
VARTA dated December 31, 2001 utilized to satisfy the requirements of Item 17
of SEC Form 20-F and the unaudited financial statements of VARTA dated June 30,
2002 (and the related consolidated statements of income or operations,
shareholders' equity and cash flows for the periods then ended), in each case
prepared under German GAAP and converted to U.S. GAAP:
(i) present fairly the financial conditions of VARTA as of the
date thereof and the results of operations for the period covered
thereby; and
(ii) show all material indebtedness and other liabilities, direct
or contingent, of VARTA as of the date thereof, including liabilities
for taxes, material commitment and Contingent Obligations, except that
the unaudited financial statements do not reflect the effect of normal
year end adjustments.
69
6.23 VARTA ACQUISITION.
(a) Concurrently with the initial Credit Extension, the VARTA
Acquisition shall be consummated in accordance with the terms of the VARTA
Acquisition Agreement, without waiver of any of the conditions thereof. The
VARTA Acquisition Agreement is in full force and effect and no termination has
taken place under Article 11 or 12 thereof.
(b) The VARTA Acquisition complies with all Requirements of Law,
and all necessary governmental, regulatory, shareholder and other consents and
approvals required for the consummation of the VARTA Acquisition Agreement have
been (or prior to the consummation thereof, will be) duly obtained and are (or
will be) in full force and effect. All applicable waiting periods with respect
to the VARTA Acquisition have expired without any action being taken by any
competent Governmental Authority which restrains, prevents or imposes material
adverse conditions upon the consummation of any such transaction.
(c) The execution and delivery of the VARTA Acquisition Agreement
and the consummation of the VARTA Acquisition did not violate any Requirement of
Law, or result in a breach of, or constitute a default under, any Contractual
Obligation affecting the Company or any of its Subsidiaries.
(d) There does not exist any judgment, order or injunction
prohibiting or imposing material adverse conditions upon the consummation of the
VARTA Acquisition.
(e) All of the representations and warranties of the Company and
ROV LP GmbH and, to the best of the Company's knowledge, the other parties to
the VARTA Acquisition Agreement which are contained in the VARTA Acquisition
Agreement are true and correct in all material respects as of the date of this
Agreement and as of the date of the initial Credit Extension.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
7.1 FINANCIAL STATEMENTS. The Company shall deliver to the
Administrative Agent (which shall promptly deliver to the Lenders), in form and
detail satisfactory to the Required Lenders:
(a) as soon as available, but not later than 91 days after the end
of each fiscal year, a copy of the audited consolidated balance sheet of the
Company and its Subsidiaries as at the end of such year and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such year, setting forth in each case in comparative form the figures
for the previous fiscal year, and accompanied by the opinion of a
nationally-recognized independent public accounting firm (the "INDEPENDENT
AUDITOR"), which report (x) shall state that such consolidated financial
statements present fairly the consolidated
70
financial position of the Company and its Subsidiaries for the periods indicated
in conformity with GAAP applied on a basis consistent with prior years and (y)
shall not have a "going concern" qualification or be qualified or limited
because of a restricted or limited examination by the Independent Auditor of any
material portion of the Company's or any Subsidiary's (other than a Dormant
Subsidiary's) records;
(b) promptly when available, and in any event within 46 days after
the end of each fiscal quarter (other than the last fiscal quarter of each
fiscal year), a copy of the unaudited consolidated balance sheet of the Company
and its Subsidiaries as of the end of such quarter, and the related consolidated
statements of income, shareholders' equity and cash flows for such quarter and
for the period beginning with the first day of the applicable fiscal year and
ending on the last day of such quarter, including a comparison with the
corresponding quarter and period of the previous fiscal year and a comparison
with the budget for such quarter and for such period of the current fiscal year;
(c) not later than 91 days after the end of each fiscal year
(beginning with the fiscal year ended September 30, 2002), a copy of the
projections of the Company of the consolidated operating budget and cash flow
budget of the Company and its Subsidiaries for the succeeding fiscal year, such
projections to be accompanied by a certificate of the chief financial officer of
the Company to the effect that (i) such projections were prepared by the Company
in good faith, (ii) the Company has a reasonable basis for the assumptions
contained in such projections and (iii) such projections have been prepared
according to such assumptions; and
(d) not later than 90 days after the Effective Date, a copy of the
audited consolidated financial statements of VARTA for the period from January
1, 2002 through September 30, 2002, and the related consolidated statements of
income or operations, shareholders' equity and cash flows for the period then
ended prepared in accordance with GAAP.
7.2 CERTIFICATES; OTHER INFORMATION. The Company shall furnish to
the Administrative Agent, which shall promptly deliver to the Lenders (or, in
the case of CLAUSE (E), the Subsidiary Borrower shall deliver to the
Administrative Agent, which shall promptly deliver to the Lenders under the Euro
Revolving Facility):
(a) concurrently with the delivery of the financial statements
referred to in SUBSECTION 7.1(a), a certificate of the Independent Auditor
stating that in making the examination necessary therefor no knowledge was
obtained of any Event of Default or Unmatured Event of Default, except as
specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in SUBSECTION 7.1(a) and each set of quarterly statements referred
to in SUBSECTION 7.1(b), a Compliance Certificate executed by a Responsible
Officer;
(c) promptly, copies of all financial statements and reports that
the Company sends to its shareholders, and copies of all financial statements
and regular, periodic or special reports (including Forms 10K, 10Q and 8K) that
the Company or any Subsidiary may make to, or file with, the SEC;
71
(d) promptly from time to time, any notices (including notices of
default or acceleration thereunder) received from any holder or trustee of,
under or with respect to any Subordinated Debt;
(e) within 30 days after the end of each month (or more frequently
at the request of the Administrative Agent), a Borrowing Base Certificate; and
(f) promptly, such additional information regarding the business,
financial or corporate affairs of the Company or any Subsidiary as the
Administrative Agent, at the request of any Lender, may from time to time
reasonably request.
7.3 NOTICES. Promptly upon a Responsible Officer obtaining
knowledge thereof, the Company shall notify the Administrative Agent (and the
Administrative Agent will promptly distribute such notice to the Lenders) of:
(a) the occurrence of any Event of Default or Unmatured Event of
Default;
(b) any matter that has resulted or would reasonably be expected
to result in a Material Adverse Effect, including, if applicable, any breach or
non-performance of, or any default under, a Contractual Obligation of the
Company or any Subsidiary, any dispute, litigation, investigation, proceeding or
suspension between the Company or any Subsidiary and any Governmental Authority
or the commencement of, or any material development in, any litigation or
proceeding affecting the Company or any Subsidiary;
(c) the occurrence of any of the following events affecting the
Company or any ERISA Affiliate (but in no event more than ten days after such
event, PROVIDED that the Company shall notify the Administrative Agent (which
shall promptly inform each Lender thereof) not less than ten days before the
occurrence of any event described in CLAUSE (II) below), and deliver to the
Administrative Agent (which shall promptly deliver to each Lender a copy
thereof) a copy of any notice with respect to such event that is filed with a
Governmental Authority and any notice delivered by a Governmental Authority to
the Company or any ERISA Affiliate with respect to such event:
(i) an ERISA Event;
(ii) a contribution failure with respect to a Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA;
(iii) a material increase in Unfunded Pension Liabilities;
(iv) the adoption of, or the commencement of contributions to,
any Plan subject to Section 412 of the Code by the Company or any
ERISA Affiliate; or
(v) the adoption of any amendment to a Plan subject to Section
412 of the Code, if such amendment results in a material increase in
contributions or Unfunded Pension Liabilities;
72
(d) any material change in accounting policies or financial
reporting practices by the Company or any of its consolidated Subsidiaries;
(e) any proposed payment of or on Subordinated Debt prior to the
making thereof (other than scheduled payments of interest); and
(f) upon the request from time to time of the Administrative
Agent, the Swap Termination Values, together with a description of the method by
which such values were determined, relating to any then-outstanding Swap
Contracts to which the Company or any of its Subsidiaries is party.
Each notice under CLAUSE (a), (b) or (c) of this Section shall be
accompanied by a written statement by a Responsible Officer setting forth
details of the occurrence referred to therein and stating what action the
Company or any affected Subsidiary proposes to take with respect thereto and at
what time. Each notice under SUBSECTION 7.3(a) shall describe with particularity
any and all clauses or provisions of this Agreement or any other Loan Document
that have been breached or violated.
7.4 PRESERVATION OF CORPORATE EXISTENCE, ETC. The Company shall,
and shall cause each Subsidiary (other than a Dormant Subsidiary) to:
(a) preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its state or jurisdiction of
incorporation except a Subsidiary (other than the Subsidiary Borrower) need not
be in compliance with the foregoing to the extent such Subsidiary is sold
pursuant to SECTION 8.2 or merged or consolidated unto another Person pursuant
to SECTION 8.3;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises, in each case which are material and which are necessary or desirable
in the normal conduct of its business, except in connection with transactions
permitted by SECTION 8.3 and dispositions of assets permitted by SECTION 8.2;
and
(c) preserve or renew all of its registered patents, copyrights,
trademarks, trade names and service marks, the non-preservation of which would
reasonably be expected to have a Material Adverse Effect.
7.5 MAINTENANCE OF PROPERTY. The Company shall, and shall cause
each Subsidiary (other than a Dormant Subsidiary) to, maintain and preserve all
property material to the normal conduct of its business in good working order
and condition, ordinary wear and tear excepted, other than obsolete, worn out or
surplus equipment; provided, HOWEVER, that nothing in this SECTION 7.5 shall
prevent the Company or any of its Subsidiaries from discontinuing the operation
and the maintenance of any of its properties or any Dormant Subsidiary if such
discontinuance is, in the opinion of the Board of Directors or senior management
of the Company, desirable in the conduct of its business and not disadvantageous
in any material respect to the Lenders.
7.6 INSURANCE. The Company shall, and shall cause each Subsidiary
(other than a Dormant Subsidiary) to, maintain with financially sound and
reputable insurers (which may be
73
Affiliates of the Company), insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar business, of such types and in such
amounts as are customarily carried under similar circumstances by such other
Persons.
7.7 PAYMENT OF OBLIGATIONS. The Company shall, and shall cause
each Subsidiary to, pay and discharge as the same shall become due and payable
all of its material obligations and liabilities, including:
(a) all material tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets unless the same are being
contested in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by the Company or such Subsidiary; and
(b) all lawful claims which, if unpaid, would by law become a Lien
upon its property.
7.8 COMPLIANCE WITH LAWS. The Company shall, and shall cause each
Subsidiary to, comply in all material respects with all material Requirements of
Law of any Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act), except such as may be
contested in good faith or as to which a bona fide dispute may exist.
7.9 COMPLIANCE WITH ERISA. The Company shall, and shall cause each of
its ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law; (b) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required contributions to
any Plan subject to Section 412 of the Code.
7.10 INSPECTION OF PROPERTY AND BOOKS AND RECORDS. The Company shall,
and shall cause each Subsidiary to, maintain proper books of record and account,
in which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Company and such Subsidiary. The Company shall
permit, and shall cause each Subsidiary to permit, representatives and
independent contractors of the Administrative Agent or any Lender to visit and
inspect any of their respective properties, to examine their respective
corporate, financial and operating records, and to make copies thereof or
abstracts therefrom, and to discuss their respective affairs, finances and
accounts with their respective directors, officers, and independent public
accountants and to inspect any of their inventory and equipment, to perform
appraisals of any of their equipment, and to inspect, audit, check and make
copies and/or extracts from the books, records, computer data and records,
computer programs, journals, orders, receipts, correspondence and other data
relating to inventory, accounts receivable, contract rights, general
intangibles, equipment and any other collateral, or relating to any other
transactions between the parties hereto; at such reasonable times during normal
business hours and as often as may be reasonably desired, upon reasonable
advance notice to the Company; PROVIDED, HOWEVER, that when an Event of Default
exists, the Administrative Agent or any Lender may do any of the foregoing
without advance notice. After the occurrence and during the continuance of any
Event of Default, any such inspection shall be at the Company's expense.
74
7.11 ENVIRONMENTAL COVENANT. The Company will, and will cause each of
its Subsidiaries to,
(a) use and operate all of its facilities and properties in
material compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in material compliance therewith, and
handle all Hazardous Materials in material compliance with all applicable
Environmental Laws;
(b) promptly notify the Administrative Agent and provide copies of
all written Environmental Claims, and shall act in a diligent and prudent
fashion to address such Environmental Claims, including Environmental Claims
that allege that the Company or any of its Subsidiaries is not in compliance
with Environmental Laws; and
(c) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to evidence
compliance with this SECTION 7.12.
7.12 USE OF PROCEEDS. The Company shall use the proceeds of the Loans
(i) to consummate the VARTA Acquisition, (ii) for fees and expenses incurred in
connection with the VARTA Acquisition, (iii) to make an investment in Cayman
Finance Co., (iv) to refinance existing Indebtedness and (v) for working capital
and other general corporate purposes not in contravention of any Requirement of
Law or of any Loan Document.
7.13 FURTHER ASSURANCES. (a) The Company shall, and shall cause each
Subsidiary to, take such actions, and execute, acknowledge, deliver, record,
file and register any and all such security agreements, mortgages, assignments,
estoppel certificates, financing statements and continuations thereof, notices
of assignment, landlord waivers and other documents and instruments, as the
Administrative Agent or the Required Lenders may reasonably request from time to
time in order:
(i) to ensure that:
(w) the obligations of the Company hereunder and under the other Loan
Documents are guaranteed by all Domestic Subsidiaries (other than
Dormant Subsidiaries) and by Cayman Finance Co.;
(x) the obligations of the Company hereunder and under the other Loan
Documents, and the obligations of each ROV Guarantor under the
applicable ROV Guaranty, are secured by substantially all of the
assets of such Person; PROVIDED that, unless otherwise reasonably
required by the Required Lenders, (I) any pledge of the capital stock
(or other equity interests) of a Foreign Subsidiary (other than Cayman
Finance Co.) shall be limited to 66% of the outstanding capital stock
(or other equity interests) of such Foreign Subsidiary, (II) so long
as ROV Holding owns no substantial business assets other than stock of
Foreign Subsidiaries, the pledge of the stock of ROV Holding shall be
limited to 66% of the outstanding capital stock of ROV Holding, and
(III) no Person shall be required to pledge the capital stock of any
Dormant Subsidiary;
75
(y) the obligations of the Subsidiary Borrower hereunder and under the
other Loan Documents are secured by 100% of the capital stock (or
other equity interests) of each Subsidiary organized under the laws of
the Federal Republic of Germany (other than German Finance Co.) and
security assignments, security transfers or pledges, as the case may
be, of trade receivables, equipment and bank accounts of the
Subsidiary Borrower and each Subsidiary thereof (other than German
Finance Co.), and
(z) the obligations of each KGaA Guarantor under the KGaA Guaranty are
secured by substantially all of the assets of such KGaA Guarantor
other than stock of Dormant Subsidiaries; and
(ii) to perfect and maintain the validity, effectiveness and
priority of any of the Collateral Documents and the Liens intended to
be created thereby; and
(iii) to better assure, convey, grant, assign, transfer,
preserve, protect and confirm to the Administrative Agent and the
Lenders the rights granted or now or hereafter intended to be granted
to the Administrative Agent and the Lenders under any Loan Document or
under any other document executed in connection therewith.
Contemporaneously with the execution and delivery of any document referred to
above, the Company shall, and shall cause each Subsidiary to, deliver all
resolutions, opinions and corporate documents as the Administrative Agent or the
Required Lenders may reasonably request to confirm the enforceability of such
document and the perfection of the security interest created thereby, if
applicable. Notwithstanding the foregoing provisions of this SUBSECTION (a),
unless the Required Lenders otherwise request in writing (in which case the
Company will, or will cause the applicable Subsidiary to, promptly comply with
such request), neither the Company nor any Subsidiary shall have any obligation
to (i) perfect the Lien of the Administrative Agent on (x) any motor vehicle
which is subject to a certificate of title statute or (y) any note, shares of
stock or other security taken in settlement of claim so long as the aggregate
value of all such notes, shares and other securities not pledged to (or
otherwise subject to a perfected Lien in favor of) the Administrative Agent does
not exceed $250,000; or (ii) xxxxx x Xxxx to the Administrative Agent on its
real property located at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx, or 0000
Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx.
(b) Without limiting the foregoing provisions of this SECTION
7.13, if any Subsidiary that on the date hereof is a Dormant Subsidiary ceases
to be a Dormant Subsidiary, the Company shall promptly pledge or cause to be
pledged, pursuant to documentation in form and substance satisfactory to the
Administrative Agent, (i) 66% (or, if such Subsidiary is not a Foreign
Subsidiary, 100%) of the stock of such Subsidiary to the Administrative Agent
(so long as such Subsidiary is not owned by a Foreign Subsidiary), (ii) in
connection with such pledge, deliver or cause to be delivered to the
Administrative Agent such certificates and opinions of counsel as may be
requested by the Administrative Agent, and (iii) deliver or cause to be
delivered to the Administrative Agent the stock certificates (if any) to be
pledged thereunder, together with undated stock powers duly executed in blank.
(c) Without limiting the foregoing provisions of this SECTION 7.13
or any other provision of this Agreement, the Company will cause the Subsidiary
Borrower to (i) permit the
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Administrative Agent (or a Person designated by the Administrative Agent) to
conduct field examinations of the collateral granted by the Subsidiary Borrower
under the Collateral Documents from time to time and (ii) pay the reasonable
costs and expenses of such field examinations; PROVIDED that, so long as no
Event of Default or Unmatured Event of Default exists, not more than one such
field examination shall be conducted in any calendar year and the Subsidiary
Borrower shall not be obligated to pay more than $20,000 for such field
examination. The Administrative Agent shall provide reasonable prior notice to
the Company of any such field examination and shall use reasonable efforts to
schedule and conduct any such field examination without undue interference with
the Subsidiary Borrower's operations.
7.14 SWAP CONTRACTS. Within 45 days after the Effective Date, the
Company shall enter into one or more Swap Contracts with terms and
counterparties reasonably satisfactory to the Administrative Agent covering at
least $150,000,000 of Indebtedness of the Company for a period of not less than
three years.
7.15 SUBSIDIARY BORROWER FINANCIAL CONDITION. The Company shall:
(a) provide at all times sufficient financial means to the
Subsidiary Borrower and, if necessary, increase the capital of the Subsidiary
Borrower, to ensure that none of the following situations occurs in which ROV GP
GmbH would be obligated or entitled to file an application for the opening of
insolvency proceedings against the Subsidiary Borrower under the German
Insolvency Act (INSOLVENZORDNUNG) pursuant to Section 283 No. 14 in connection
with Section 92 German Stock Corporation Act (AKTIENGESETZ):
(i) the Subsidiary Borrower is not able to pay its obligations
when they become due (ZAHLUNGSUNFAHIG) in the sense of Section 17(2)
of the German Insolvency Act;
(ii) the Subsidiary Borrower is overindebted (UBERSCHULDET) in
the sense of Section 19(2) of the German Insolvency Act; or
(iii) there is the threat that, in the immediate future, the
Subsidiary Borrower is not able to pay obligations when they become
due (DROHENDE ZAHLUNGSUNFAHIGKEIT) in the sense of Section 18(2) of
the German Insolvency Act;
(b) ensure that there are reporting procedures in place so that
the Company is timely informed of the overall financial situation of the
Subsidiary Borrower and, in particular the ability of the Subsidiary Borrower to
pay its obligations when due and the status of its indebtedness; and
(c) notify the Administrative Agent not less than two Business
Days prior to making any investment in order to comply with its obligation under
SUBSECTION (a) above.
7.16 REAL ESTATE DOCUMENTS. Within 30 days after the Effective Date,
the Company will deliver to the Administrative Agent, for each parcel of real
property subject to a Mortgage, (a) an ALTA (or other form acceptable to the
Administrative Agent) date down endorsement of the mortgagee policy of title
insurance or a binder issued by a title insurance company satisfactory to the
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Administrative Agent insuring (or undertaking to insure, in the case of a
binder) that the Mortgage and Mortgage Amendment create and constitute a valid
first mortgage Lien against such real property in favor of the Administrative
Agent, subject only to exceptions acceptable to the Administrative Agent, with
such endorsements and affirmative insurance as the Administrative Agent may
reasonably request; and (b) copies of all documents of record concerning such
parcel as shown on the endorsement or binder referred to above.
7.17 OPINIONS. Within 60 days after the Effective Date, the Company
will deliver to the Administrative Agent, in each case in form and substance
reasonably satisfactory to the Administrative Agent, (a) an opinion of special
German counsel to the Company as to (i) the validity and enforceability of the
Credit Agreement, each German Share Pledge Agreement, each other Collateral
Document governed by German law and such other documents executed by the German
Entities as the Administrative Agent may reasonably request and (ii) such other
matters as the Administrative Agent may reasonably request; (b) an opinion of
special Canadian counsel to the Company as to the Canadian Share Pledge
Agreement; and (c) an opinion of special Cayman Islands counsel to the Company
as to the Cayman Pledge Agreements and any documents executed by Cayman Finance
Co. pursuant hereto.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
8.1 LIMITATION ON LIENS. The Company shall not, and shall not permit
any Subsidiary to, directly or indirectly, make, create, incur, assume or suffer
to exist any Lien upon or with respect to any part of its property, whether now
owned or hereafter acquired, other than the following ("PERMITTED LIENS"):
(a) any Lien existing on property of the Company or any Subsidiary
on the Effective Date and set forth on SCHEDULE 8.1 securing Indebtedness
outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or to the
extent that non-payment thereof is permitted by SECTION 7.7, PROVIDED that no
notice of lien has been filed or recorded under the Code;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the ordinary course
of business which are not delinquent or which are being contested in good faith
and by appropriate proceedings, which proceedings have the effect of preventing
the forfeiture or sale of the property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting of
pledges or deposits required in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation;
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(f) Liens on property of the Company or any Subsidiary securing
the non-delinquent performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, surety bonds (excluding appeal bonds and
other bonds posted in connection with court proceedings or judgments) and other
non-delinquent obligations of a like nature, in each case, incurred in the
ordinary course of business; PROVIDED that all such Liens in the aggregate would
not (even if enforced) cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment Liens and
Liens securing contingent obligations on appeal bonds and other bonds posted in
connection with court proceedings or judgments, provided that the enforcement of
such Liens is effectively stayed and all such Liens in the aggregate at any time
outstanding for the Company and its Subsidiaries do not exceed $5,000,000;
(h) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the businesses of the Company and its Subsidiaries
taken as a whole;
(i) purchase money security interests on any property acquired by
the Company or any Subsidiary in the ordinary course of business, securing
Indebtedness incurred or assumed for the purpose of financing all or any part of
the cost of acquiring such property, PROVIDED that any such Lien attaches to
such property concurrently with or within 90 days after the acquisition thereof,
such Lien attaches solely to the property so acquired in such transaction, the
principal amount of the Indebtedness secured thereby does not exceed 100% of the
cost of such property and the principal amount of the Indebtedness secured by
all such purchase money security interests shall not at any time exceed
$8,000,000;
(j) Liens securing obligations in respect of capital leases and
Synthetic Leases attaching only to the property subject to such leases; PROVIDED
that such leases are otherwise permitted hereunder;
(k) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution, PROVIDED that such deposit account is not a dedicated
cash collateral account and is not subject to restrictions against access by the
Company in excess of those set forth by regulations promulgated by the FRB and
such deposit account is not intended by the Company or any Subsidiary to provide
collateral to the depository institution;
(l) extensions, renewals and replacements of Liens referred to in
CLAUSES (A) through (K) above; PROVIDED that any such extension, renewal or
replacement Lien is limited to the property or assets covered by the Lien
extended, renewed or replaced and does not secure any Indebtedness in addition
to that secured immediately prior to such extension, renewal or replacement;
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(m) Liens relating to IRB Debt permitted by SUBSECTION 8.5(j)
covering only those capital improvements financed by such IRB Debt;
(n) Liens on property of any Subsidiary in favor of the Company or
any other Subsidiary, PROVIDED that any such Lien shall be subordinated to any
Lien of the Administrative Agent on the applicable property pursuant to
documentation in form and substance reasonably acceptable to the Administrative
Agent; and
(o) Liens securing other Indebtedness of the Company and its
Subsidiaries not expressly permitted by CLAUSES (A) through (N) above; PROVIDED
that the aggregate amount of the Indebtedness secured by Liens permitted
pursuant to this CLAUSE (O) does not exceed $7,000,000 in the aggregate.
8.2 DISPOSITION OF ASSETS. The Company shall not, and shall not permit
any Subsidiary to, directly or indirectly, sell, assign, lease, convey, transfer
or otherwise dispose of (whether in one or a series of transactions) any
property (including accounts and notes receivable, with or without recourse) or
enter into any agreement to do any of the foregoing, except:
(a) dispositions of inventory, or used, worn-out or surplus
equipment, all in the ordinary course of business;
(b) the sale of equipment to the extent that such equipment is
exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are reasonably promptly applied to the
purchase price of such replacement equipment;
(c) dispositions not otherwise permitted hereunder (including the
disposition of all of the capital stock of any operating Subsidiary and
including a disposition pursuant to a sale and lease-back transaction) which are
made for fair market value if the fair market value of all assets so disposed of
by the Company and its Subsidiaries under this CLAUSE (C) does not exceed in the
aggregate $10,000,000; PROVIDED that (i) at the time of any disposition, no
Event of Default or Unmatured Event of Default shall exist or will result from
such disposition, (ii) at least 75% of the consideration received by the Company
or such Subsidiary from such disposition is in cash or Cash Equivalent
Investments and (iii) the proceeds thereof are applied as provided in
SUBSECTIONS 2.8(a) and 2.8(b);
(d) mergers expressly permitted by SECTION 8.3 or transfers by any
Wholly-Owned Subsidiary of the Company of its assets upon its liquidation to the
Company or any of its Wholly-Owned Subsidiaries (subject, in the case of any
such transfer to a foreign Subsidiary, to the limitations of SECTION 8.4);
(e) the sale of patents, trademarks and other intellectual
property to Rovcal pursuant to documentation reasonably acceptable to the
Required Lenders;
(f) the VARTA Exchange;
(g) the sale of Kmart Pre-Petition Receivables; and
80
(h) in addition to any other disposition permitted by this SECTION
8.2, the sale or disposition of any assets (including the disposition of all of
the capital stock of any operating Subsidiary and including a disposition
pursuant to a sale and lease-back transaction) if the fair market value of all
assets so disposed of by the Company and its Subsidiaries under this CLAUSE (H)
does not exceed $5,000,000 in the aggregate; PROVIDED that (i) at the time of
any disposition, no Event of Default or Unmatured Event of Default shall exist
or will result from such disposition and (ii) the proceeds thereof are applied
as provided in SUBSECTIONS 2.8(a) and 2.8(b).
8.3 CONSOLIDATIONS AND MERGERS. The Company shall not, and shall not
permit any Subsidiary to, merge or consolidate with or into any other Person,
except that (a) any Subsidiary may merge with the Company (PROVIDED that the
Company shall be the continuing or surviving corporation) or with any one or
more Wholly-Owned Subsidiaries (PROVIDED that the continuing or surviving
corporation shall be a Wholly-Owned Subsidiary and, except in the case of a
transaction involving only Foreign Subsidiaries, shall not be a Foreign
Subsidiary); and (b) the Company or any Subsidiary may merge or consolidate in
connection with any Acquisition permitted by SUBSECTION 8.4(i) or (j).
8.4 LOANS AND INVESTMENTS. The Company shall not, and shall not permit
any Subsidiary to, purchase or acquire, or make any commitment to purchase or
acquire, any capital stock, equity interest or other obligations or securities
of, or any interest in, any other Person, or make or commit to make any
Acquisition, or make or commit to make any advance, loan, extension of credit or
capital contribution to or any other investment in, any other Person, except
for:
(a) investments in Cash Equivalent Investments;
(b) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or services in the
ordinary course of business;
(c) investments by the Company in its Wholly-Owned Subsidiaries or
by any Subsidiary in any Wholly-Owned Subsidiary, in the form of contributions
to capital or loans or advances; provided that, immediately before and after
giving effect to such investment, no Event of Default or Unmatured Event of
Default shall have occurred and be continuing and the aggregate amount invested
by the Company and its Subsidiaries (other than Foreign Subsidiaries) in Foreign
Subsidiaries after the Effective Date (excluding investments in Cayman Finance
Co. which constitute Guaranty Obligations) shall not exceed $30,000,000;
(d) loans or advances made by any Subsidiary to the Company;
(e) loans and advances to employees in the ordinary course of
business (such as travel advances) in an aggregate amount not at any time
exceeding $10,000,000;
(f) investments by the Company and its Subsidiaries in Joint
Ventures in the form of contributions of capital, loans, advances or Contingent
Obligations; PROVIDED that, immediately before and after giving effect to such
investment, (x) no Event of Default or Unmatured Event of Default shall have
occurred and be continuing, including pursuant to SECTION 8.9, and (y) the
aggregate amount of all investments pursuant to this CLAUSE (F) shall not
81
exceed $5,000,000 in the aggregate (with all such investments valued at the time
of investment at the cash amount thereof, if in cash, the fair market value
thereof as determined by the board of directors of the Company, if in property,
and at the maximum amount thereof if in Contingent Obligations);
(g) investments constituting Permitted Swap Obligations or
payments or advances under Swap Contracts relating to Permitted Swap
Obligations;
(h) investments existing on the Effective Date and set forth on
SCHEDULE 8.4;
(i) investments incurred in order to consummate the VARTA
Acquisition;
(j) investments incurred in order to consummate Acquisitions (in
addition to the VARTA Acquisition), provided that (i) no Unmatured Event of
Default or Event of Default exists or will result therefrom, (ii) the acquired
Person is engaged in, or the acquired assets will be used in, a line of business
engaged in by the Company and its Subsidiaries on the date of this Agreement or
a business or activity that is substantially similar, related or incidental
thereto or which constitutes a reasonable extension of product lines of the
Company in existence on the date of this Agreement, (iii) after giving effect to
such Acquisition, the Company would have been in compliance on a PRO FORMA
basis, after giving effect to such Acquisition (as if such Acquisition had
occurred, and any related Indebtedness had been assumed or incurred, on the
first day of the most recently-ended Computation Period, but without adjustment
for expected cost savings and other synergies) with SECTIONS 8.11, 8.12 and 8.13
as of such most recently-ended Computation Period, (iv) the board of directors
of any entity proposed to be acquired has not announced that it will oppose such
Acquisition and has not commenced any litigation which alleges that such
Acquisition violates, or will violate, any Requirement of Law or any Contractual
Obligation of such entity, (v) the Company shall have delivered to the
Administrative Agent projections prepared by the Company demonstrating that at
all times during the 12 months following such Acquisition (and after giving
effect to increased working capital and other financing needs resulting
therefrom) the Company will have unused availability hereunder in an amount not
less than $10,000,000, (vi) if the total consideration to be paid in connection
with such proposed Acquisition exceeds $3,000,000, the Company shall have
delivered to the Agent a certificate setting forth calculations demonstrating
compliance with the requirements set forth in CLAUSE (III) above, (vii) if the
total aggregate consideration paid by the Company and its Subsidiaries in
connection with all Acquisitions by the Company or any of its Subsidiaries
completed after the Effective Date exceeds (or after such Acquisition would
exceed) $75,000,000, such proposed Acquisition shall be approved in writing by
the Required Lenders, and (viii) if the Company is involved in any merger or
consolidation in connection with such Acquisition, the Company is the surviving
or continuing Person of such merger or consolidation;
(k) bank deposits in the ordinary course of business; PROVIDED
that the aggregate amount of all such deposits (excluding (x) amounts in payroll
accounts or for accounts payable, in each case to the extent that checks have
been issued to third parties, and (y) amounts maintained (in the ordinary course
of business consistent with past practice) in accounts of any Person which is
acquired by the Company or a Subsidiary in accordance with the terms hereof
during the 45 days following the date of such acquisition) which are maintained
by the Company and the Subsidiaries (other than Foreign Subsidiaries) with any
bank other than a Lender or a
82
Blocked Account Bank shall not at any time exceed $1,000,000 for three
consecutive Business Days; and
(l) other investments in an aggregate amount not exceeding
$10,000,000 during the term of this Agreement (with all such investments valued
at the time of investment at the cash amount thereof, if in cash, the fair
market value thereof as determined by the board of directors of the Company, if
in property, and at the maximum amount thereof if in Contingent Obligations).
8.5 LIMITATION ON INDEBTEDNESS. The Company shall not, and shall not
permit any Subsidiary to, create, incur, assume, suffer to exist, or otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement, any ROV
Guaranty and any KGaA Guaranty;
(b) Subordinated Debt;
(c) Indebtedness consisting of Contingent Obligations permitted
pursuant to SECTION 8.8;
(d) Indebtedness of Foreign Subsidiaries to Persons other than the
Company and its Subsidiaries in an aggregate amount not at any time exceeding
$30,000,000 (PROVIDED the aggregate amount of Indebtedness of the Subsidiary
Borrower, other than Indebtedness hereunder or permitted by SUBSECTION (e)
below, shall not exceed $5,000,000);
(e) Indebtedness of Subsidiaries to the Company or Wholly-Owned
Subsidiaries;
(f) Indebtedness secured by Liens permitted by SUBSECTION 8.1(i);
(g) Indebtedness incurred in connection with leases permitted
pursuant to SECTION 8.10;
(h) Indebtedness of the Company or any Subsidiary of the Company
in connection with guaranties resulting from endorsement of negotiable
instruments in the ordinary course of business;
(i) surety bonds and appeal bonds required in the ordinary course
of business or in connection with the enforcement of rights or claims of the
Company or in connection with judgments that do not result in an Unmatured Event
of Default or an Event of Default;
(j) IRB Debt in a principal amount not to exceed $10,000,000 at
any one time outstanding; and
(k) other unsecured Indebtedness (excluding Indebtedness of
Foreign Subsidiaries) in an aggregate amount not at any time exceeding
$10,000,000.
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Notwithstanding the foregoing, Rovcal shall not incur any Indebtedness
other than Indebtedness to the Company.
8.6 TRANSACTIONS WITH AFFILIATES. The Company shall not, and shall not
permit any Subsidiary to, enter into any transaction with any Affiliate of the
Company (other than a Subsidiary), except upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would be obtainable in a
comparable arm's-length transaction with a Person not an Affiliate of the
Company.
8.7 USE OF PROCEEDS. The Company shall not, and shall not permit any
Subsidiary to, use any portion of the proceeds of any Loan or any Letter of
Credit, directly or indirectly, to purchase or carry Margin Stock, to repay or
otherwise refinance indebtedness of the Company or others incurred to purchase
or carry Margin Stock, to extend credit for the purpose of purchasing or
carrying any Margin Stock or acquire any security in any transaction that is
subject to Section 13 or 14 of the Exchange Act; PROVIDED that the Company may
use the proceeds of any Loan to repurchase Common Stock so long as (i) such
repurchase is permitted by SECTION 8.14 and (ii) any such repurchased Common
Stock is immediately cancelled and retired.
8.8 CONTINGENT OBLIGATIONS. The Company shall not, and shall not permit
any Subsidiary to, create, incur, assume or suffer to exist any Contingent
Obligation except:
(a) endorsements for collection or deposit in the ordinary course
of business;
(b) Permitted Swap Obligations;
(c) Contingent Obligations of the Company and its Subsidiaries
existing as of the Effective Date and listed in SCHEDULE 8.8;
(d) Guaranty Obligations by the Company relating to Indebtedness
of Wholly-Owned Subsidiaries which is permitted hereunder;
(e) Contingent Obligations arising under the Loan Documents; and
(f) Contingent Obligations with respect to Joint Ventures to the
extent permitted by SECTION 8.9.
8.9 JOINT VENTURES. The Company shall not, and shall not permit any
Subsidiary to, enter into any Joint Venture, except that the Company or any
Subsidiary may enter into any Joint Venture so long as the aggregate amount
invested by the Company and its Subsidiaries in all Joint Ventures in any form
(including by capital contribution, incurrence of Indebtedness by any such Joint
Venture to the Company or any Subsidiary or the incurrence of Contingent
Obligations by the Company or any Subsidiary with respect to any such Joint
Venture), during the term of this Agreement does not exceed $5,000,000;
PROVIDED, HOWEVER, that for purposes of determining the aggregate amount
invested in Joint Ventures hereunder (x) any return of principal or equity
received in cash on any amount invested hereunder and (y) the fair market value
of any other property received in exchange for any amount invested hereunder
shall be deducted.
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8.10 LEASE OBLIGATIONS. The Company shall not, and shall not permit any
Subsidiary to, create or suffer to exist any obligations for the payment of rent
for any property under lease or agreement to lease, except for:
(a) leases of the Company and its Subsidiaries in existence on the
Effective Date and any renewal, extension or refinancing thereof;
(b) operating leases entered into by the Company or any Subsidiary
after the Effective Date in the ordinary course of business;
(c) capital leases entered into by the Company to finance the
acquisition of equipment; PROVIDED that no Event of Default or Unmatured Event
of Default has occurred and is continuing or will result from the incurrence of
the obligations of the Company contemplated thereby; and
(d) Synthetic Leases; provided that the aggregate amount of all
Synthetic Lease Obligations shall not at any time exceed $20,000,000.
8.11 MINIMUM INTEREST COVERAGE RATIO. The Company shall not permit the
Interest Coverage Ratio for any Computation Period to be less than the ratio set
forth below opposite the period in which such Computation Period ends:
PERIOD ENDING RATIO
------------- -----
12/31/02 - 12/31/03 3.25 : 1.0
3/31/04 - 6/30/04 3.50 : 1.0
9/30/04 - 6/30/05 3.75 : 1.0
9/30/05 - 6/30/06 4.00 : 1.0
9/30/06 - 6/30/07 4.25 : 1.0
Thereafter 4.75 : 1.0
8.12 MAXIMUM LEVERAGE RATIO. The Company will not permit the Leverage
Ratio for any Computation Period to exceed the ratio set forth below opposite
the period in which such Computation Period ends:
PERIOD ENDING RATIO
------------- -----
12/31/02 - 6/30/03 3.90 : 1.0
9/30/03 - 12/31/03 3.75 : 1.0
3/31/04 - 6/30/04 3.50 : 1.0
9/30/04 - 6/30/05 3.25 : 1.0
9/30/05 - 6/30/06 2.75 : 1.0
Thereafter 2.50 : 1.0
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8.13 MINIMUM FIXED CHARGE COVERAGE RATIO. The Company shall not permit
the Fixed Charge Coverage Ratio for any Computation Period to be less than the
ratio set forth below opposite the period in which such Computation Period ends:
PERIOD ENDING RATIO
12/31/02 - 6/30/03 1.25 : 1.0
Thereafter 1.30 : 1.0
8.14 RESTRICTED PAYMENTS. The Company shall not, and shall not permit
any Subsidiary to, (i) declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities on
account of any shares of any class of its capital stock, or purchase, redeem or
otherwise acquire for value any shares of its capital stock or any warrants,
rights or options to acquire such shares, now or hereafter outstanding, or (ii)
make any redemption, prepayment, defeasance, purchase or repurchase of any
Subordinated Debt (any of the foregoing, a "DISTRIBUTION") except that:
(a) any Subsidiary may declare and pay dividends to the Company or
a Wholly-Owned Subsidiary;
(b) the Company may declare and make dividend payments or other
distributions payable solely in Common Stock;
(c) the Company or any of its Subsidiaries may purchase Common
Stock or options with respect to Common Stock held by employees or management of
the Company or any of its Subsidiaries in connection with the termination of
employment of any such employees or management, PROVIDED that all such payments
do not exceed $5,000,000 in the aggregate and the price paid for any such Common
Stock or options does not exceed the market value of such Common Stock or
options at the time paid;
(d) so long as no Event of Default or Unmatured Event of Default
has occurred and is continuing or would result therefrom, the Company may
repurchase Common Stock (PROVIDED that (x) the price paid does not exceed the
fair market value of such Common Stock at the time paid and (y) any Common Stock
repurchased by the Company shall be immediately cancelled and retired) and may
make other Distributions (determined at the time of such Distribution) in an
aggregate amount, for all such repurchases and other Distributions, not
exceeding $25,000,000 during the term of this Agreement; and
(e) VARTA S.A., a Columbian entity, may pay the dividend declared
on September 30, 2002 to VARTA AG so long as the amount thereof does not exceed
a Dollar Equivalent amount of $5,000,000.
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8.15 ERISA. The Company shall not, and shall not permit any of its
ERISA Affiliates to: engage in a prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan which has resulted or
would reasonably be expected to result in liability of the Company in an
aggregate amount in excess of $1,000,000 at any time; or engage in a transaction
that could be subject to Section 4069 or 4212(c) of ERISA.
8.16 LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS. The Company shall
not, and shall not permit any Subsidiary to, enter into any arrangement with any
Person providing for the leasing by the Company or any Subsidiary of any real or
personal property, which property is or has been sold or transferred by the
Company or any Subsidiary to such Person in contemplation of taking back a lease
thereof in an aggregate amount in excess of $10,000,000.
8.17 CAPITAL EXPENDITURES. The Company shall not permit the aggregate
amount of all Capital Expenditures made by the Company and its Subsidiaries in
any fiscal year to exceed $35,000,000 plus, beginning in the fiscal year ending
September 30, 2004, an amount equal to $35,000,000 minus the actual amount of
Capital Expenditures in the immediately preceding fiscal year.
8.18 INCONSISTENT AGREEMENTS. The Company shall not, and shall not
permit any Subsidiary to, enter into any agreement containing any provision
which would be violated or breached by any borrowing by the Company hereunder or
by the performance by the Company or any Subsidiary of their respective
obligations hereunder or under any other Loan Document.
8.19 CHANGE IN BUSINESS. The Company shall not, and shall not permit
any Subsidiary to, engage in any business other than those lines of business
carried on by the Company and its Subsidiaries on the date hereof, any business
or activities that are substantially similar, related or incidental thereto and
reasonable extensions of product lines of the Company in existence on the date
hereof.
8.20 AMENDMENTS TO CERTAIN DOCUMENTS. The Company shall not make or
agree to any amendment to or modification of, or waive any of its rights under,
(i) any of the terms of the VARTA Acquisition Agreement, unless such amendment
is not adverse in any respect to the Lenders; or (ii) any document evidencing or
relating to Subordinated Debt, unless such amendment is not adverse in any
material respect to the Lenders.
8.21 LIMITATION ON ISSUANCE OF GUARANTY OBLIGATIONS. The Company shall
not permit any Subsidiary to create, incur, assume, suffer to exist, or
otherwise become or remain directly or indirectly liable with respect to any
Guaranty Obligation relating to any Indebtedness of the Company unless
(i) such Subsidiary, if it is not already a party to the
Guaranty, simultaneously executes and delivers to the Administrative
Agent a counterpart of the Guaranty, together with such supporting
documentation as the Administrative Agent may reasonably request,
(ii) if such Indebtedness is by its terms subordinated to the
Obligations, any such assumption, guaranty or other liability of such
Subsidiary with respect to such Indebtedness shall be subordinated, in
form and substance satisfactory to
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the Administrative Agent, to such Subsidiary's Guaranty Obligation
with respect to the Obligations to the same extent as such
Indebtedness is subordinated to the Obligations (PROVIDED that such
Subsidiary's Guaranty Obligation of such Indebtedness of the Company
shall be subordinated to the full amount of such Subsidiary's Guaranty
Obligation under the Guaranty without giving effect to any reduction
thereto necessary to render the Guaranty Obligation of such Subsidiary
thereunder not voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer), and
(iii) such Subsidiary waives and will not in any manner
whatsoever claim or take the benefit or advantage of, any right of
reimbursement, indemnity or subrogation or any other rights against
the Company or any other Subsidiary as a result of any payment by such
Subsidiary under such Guaranty Obligation.
8.22 LIMITATIONS ON FINANCE COMPANIES AND CERTAIN GERMAN ENTITIES. The
Company shall not permit (i) Cayman Finance Co. and German Finance Co. to engage
in any business other than lending funds to ROV German Holding and VARTA AG,
respectively, (ii) ROV German Holding to engage in any business other than
holding stock of, and lending money to, its Subsidiaries, (iii) ROV GP GmbH to
engage in any business other than acting as general partner of the Subsidiary
Borrower and lending money to VARTA AG pursuant to the terms of the VARTA
Acquisition Agreement and (iv) ROV LP GmbH to engage in any business other than
acting as shareholder (prior to the Transformation) and as limited partner
(after the Transformation) of the Subsidiary Borrower. Notwithstanding the
foregoing, ROV German Holding, ROV GP GmbH and/or ROV LP GmbH may own and
license, as licensor, intellectual property.
ARTICLE IX
EVENTS OF DEFAULT
9.1 EVENT OF DEFAULT. Any of the following shall constitute an "EVENT
OF DEFAULT":
(a) NON-PAYMENT. Either Borrower fails to pay, when and as
required to be paid herein, any amount of principal of any Loan or of any L/C
Obligation, or, within three Business Days after the same becomes due, any
amount of interest or any fees or other amounts payable hereunder or under any
other Loan Document.
(b) REPRESENTATION OR WARRANTY. Any representation or warranty by
the Company, the Subsidiary Borrower or any other Subsidiary made or deemed made
herein or in any other Loan Document, or which is contained in any certificate,
document or financial or other statement by the Company, the Subsidiary
Borrower, any other Subsidiary or any Responsible Officer furnished at any time
under this Agreement or any other Loan Document, is incorrect in any material
respect on or as of the date made or deemed made.
(c) SPECIFIC DEFAULTS. Either Borrower fails to perform or observe
any term, covenant or agreement contained in any of SECTION 7.3(a) or ARTICLE
VIII.
(d) OTHER DEFAULTS. Either Borrower or any Guarantor party thereto
fails to perform or observe any other term or covenant contained in this
Agreement or any other Loan
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Document, and such default shall continue unremedied for a period of 30 days
after the earlier of the date upon which a Responsible Officer knew or
reasonably should have known of such failure or the date upon which written
notice thereof is given to the Company by the Administrative Agent or any
Lender.
(e) CROSS-DEFAULT. Either Borrower or any Guarantor fails to make
any payment in respect of any Indebtedness or Contingent Obligation (other than
in respect of Swap Contracts) having an aggregate principal amount (including
undrawn committed or available amounts and including amounts owing to all
creditors under any combined or syndicated credit arrangement) of more than
$3,000,000 when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise but subject to any applicable grace period)
or fails to perform or observe any other condition or covenant, or any other
event shall occur or condition shall exist, under any agreement or instrument
relating to any such Indebtedness or Contingent Obligation, if the effect of
such failure, event or condition is to cause, or to permit the holder or holders
of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, such Indebtedness to be declared to be due and payable
prior to its stated maturity, or such Contingent Obligation to become payable,
or cash collateral in respect thereof to be demanded or there occurs under any
Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from any event of default under such Swap Contract as to which either
Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap
Contract) or any Termination Event (as so defined) as to which either Borrower
or any Subsidiary is an Affected Party (as so defined), and, in either event,
the Swap Termination Value owed by such Borrower or such Subsidiary as a result
thereof is greater than $3,000,000.
(f) INSOLVENCY; VOLUNTARY PROCEEDINGS. Either Borrower or any
Subsidiary (other than a Dormant Subsidiary): ceases or fails to be solvent, or
generally fails to pay, or admits in writing its inability to pay, its debts as
they become due; voluntarily ceases to conduct its business in the ordinary
course; commences any Insolvency Proceeding with respect to itself; or takes any
action to effectuate or authorize any of the foregoing.
(g) INVOLUNTARY PROCEEDINGS. Any involuntary Insolvency Proceeding
is commenced or filed against either Borrower or any Subsidiary (other than a
Dormant Subsidiary), or any writ, judgment, warrant of attachment, warrant of
execution or similar process is issued or levied against a substantial part of
either Borrower's or any Subsidiary's properties, and such proceeding or
petition shall not be dismissed, or such writ, judgment, warrant of attachment,
warrant of execution or similar process shall not be released, vacated or fully
bonded within 60 days after commencement, filing or levy; either Borrower or any
Subsidiary (other than a Dormant Subsidiary) admits the material allegations of
a petition against it in any Insolvency Proceeding, or an order for relief (or
similar order under non-U.S. law) is ordered in any Insolvency Proceeding; or
either Borrower or any Subsidiary (other than a Dormant Subsidiary) acquiesces
in the appointment of a receiver, trustee, custodian, conservator, liquidator,
mortgagee in possession (or agent therefor) or other similar Person for itself
or a substantial portion of its property or business.
(h) ERISA. One or more ERISA Events shall occur with respect to a
Pension Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in
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liability of the Company under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of $3,000,000; a
contribution failure shall have occurred with respect to a Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA; the aggregate
amount of Unfunded Pension Liability among all Pension Plans at any time exceeds
$3,000,000; or the Company or any ERISA Affiliate shall fail to pay when due,
after the expiration of any applicable grace period, one or more installment
payments with respect to its withdrawal liability under Section 4201 of ERISA
under a Multiemployer Plan which results in an aggregate withdrawal liability in
excess of $3,000,000.
(i) MONETARY JUDGMENTS. One or more judgments, orders, decrees or
arbitration awards is entered against either Borrower or any Subsidiary
involving in the aggregate a liability (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), as to
any single or related series of transactions, incidents or conditions, of
$3,000,000 or more, and the same shall remain undischarged, unvacated and
unstayed pending appeal for a period of 30 days after the entry thereof, or
either Borrower or any Subsidiary shall enter into any agreement to settle or
compromise any pending or threatened litigation (to the extent not covered by
independent third party insurance as to which the insurer does not dispute
coverage), as to any single or related series of claims, involving payment by
either Borrower or any Subsidiary of $3,000,000 or more.
(j) NON-MONETARY JUDGMENTS. Any non-monetary judgment, order or
decree is entered against either Borrower or any Subsidiary which has or would
reasonably be expected to have a Material Adverse Effect, and there shall be any
period of 30 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.
(k) CHANGE OF CONTROL; OWNERSHIP OF CERTAIN ENTITIES. Any Change
of Control shall occur; the Company shall fail to own, directly or indirectly at
least 51% (or, after the consummation of the VARTA Exchange, 100%) of the
ownership interests in the Subsidiary Borrower; the Transformation shall fail to
occur within 90 days after the Effective Date; at any time after the
Transformation, a Wholly-Owned Subsidiary of the Company shall fail to be the
sole general partner of the Subsidiary Borrower; or at any time prior to the
VARTA Exchange, the Subsidiary Borrower shall fail to own 100% of the ownership
interests in German Finance Co.
(l) GUARANTOR DEFAULTS. Any ROV Guaranty or KGaA Guaranty shall
cease to be in full force and effect with respect to any Guarantor (other than
as expressly permitted hereunder), any Guarantor shall fail to comply with or to
perform any provision of any applicable Guaranty, or any Guarantor (or any
Person acting by, through or on behalf of such Guarantor) shall contest in any
manner the validity, binding nature or enforceability of the any Guaranty to
which such Guarantor is a party.
(m) COLLATERAL DOCUMENTS, ETC. Any Collateral Document shall cease
to be in full force and effect with respect to either Borrower or any Guarantor
(other than as expressly permitted hereunder), either Borrower or any Guarantor
shall fail to comply with or to perform any applicable provision of any
Collateral Document, or either Borrower or any Guarantor (or
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any Person acting by, through or on behalf of either Borrower or any Guarantor)
shall contest in any manner the validity, binding nature or enforceability of
any Collateral Document.
9.2 REMEDIES. If any Event of Default occurs, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Lenders do
any or all of the following:
(a) declare the commitment of each Lender to make Loans and any
obligation of the Issuing Lender to Issue Letters of Credit to be terminated,
whereupon such commitments and obligations shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Company;
(c) require that the Company Cash Collateralize all L/C
Obligations (in an amount equal to Effective Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
law;
PROVIDED, HOWEVER, that upon the occurrence of any Event of Default specified in
SUBSECTION 9.1(f) or (g), the obligation of each Lender to make Loans and the
obligation of the Issuing Lender to Issue Letters of Credit shall automatically
terminate and the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically become due and
payable, and the Company shall become immediately obligated to Cash
Collateralize all L/C Obligations (in an amount equal to the Effective Amount
thereof), all without further act of the Administrative Agent, the Issuing
Lender or any other Lender.
9.3 RIGHTS NOT EXCLUSIVE. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1 APPOINTMENT AND AUTHORIZATION.
(a) Each Lender hereby irrevocably (subject to SECTION 10.9)
appoints, designates and authorizes the Administrative Agent to take such action
on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to
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have any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" in this Agreement and in the other Loan Documents
with reference to the Administrative Agent is not intended to connote any
fiduciary or other implied (or express) obligation arising under agency doctrine
of any applicable law. Instead, such term is used merely as a matter of market
custom, and is intended to create or reflect only an administrative relationship
between independent contracting parties.
(b) The Issuing Lender shall act on behalf of the Lenders with
respect to any Letters of Credit Issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent may
agree at the request of the Required Lenders to act for the Issuing Lender with
respect thereto; PROVIDED, however, that the Issuing Lender shall have all of
the benefits and immunities provided to the Administrative Agent in this ARTICLE
X with respect to any acts taken or omissions suffered by the Issuing Lender in
connection with Letters of Credit Issued by it or proposed to be Issued by it
and the applications and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Administrative Agent", as used in
this ARTICLE X, included the Issuing Lender with respect to such acts or
omissions and as additionally provided in this Agreement with respect to the
Issuing Lender.
(c) The Swingline Lender shall act on behalf of the Lenders with
respect to any Swingline Loan until such time and except for so long as the
Administrative Agent may agree at the request of the Required Lenders to act for
the Swingline Lender with respect thereto; PROVIDED, HOWEVER, that the Swingline
Lender shall have all of the benefits and immunities provided to the
Administrative Agent in this ARTICLE X with respect to any acts taken or
omissions suffered by the Issuing Lender in connection with Swingline Loans made
or proposed to be made by it as fully as if the term "Administrative Agent", as
used in this ARTICLE X, included the Swingline Lender with respect to such acts
or omissions and as additionally provided in this Agreement with respect to the
Swingline Lender.
10.2 DELEGATION OF DUTIES. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
10.3 LIABILITY OF ADMINISTRATIVE AGENT. None of the Agent-Related
Persons shall be liable for any action taken or omitted to be taken by any of
them under or in connection with this Agreement or any other Loan Document or
the transactions contemplated hereby (except for its own gross negligence or
willful misconduct) or be responsible in any manner to any of the Lenders for
any recital, statement, representation or warranty made by the Company or any
Subsidiary or Affiliate of the Company, or any officer thereof, contained in
this Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or the existence,
creation, validity, attachment, perfection, enforceability, value or sufficiency
of any collateral
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security for the Obligations or for any failure of the Company or any other
party to any Loan Document to perform its obligations hereunder or thereunder.
No Agent-Related Person shall be under any obligation to any Lender to ascertain
or to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Company or any of the Company's
Subsidiaries or Affiliates.
10.4 RELIANCE BY ADMINISTRATIVE AGENT. (a) The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to the Company), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders and such request and any action taken or failure
to act pursuant thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in SECTIONS 5.1, each Lender that has executed this Agreement shall be
deemed to have consented to, approved or accepted, or to be satisfied with, each
document or other matter either sent by the Administrative Agent to such Lender
for consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to such Lender.
10.5 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Event of Default or Unmatured
Event of Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Administrative Agent for the
account of the Lenders, unless the Administrative Agent shall have received
written notice from a Lender or the Company referring to this Agreement,
describing such Event of Default or Unmatured Event of Default and stating that
such notice is a "notice of default". The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to such Event of Default or Unmatured Event of Default
as may be requested by the Required Lenders in accordance with ARTICLE IX;
PROVIDED, HOWEVER, that unless and until the Administrative Agent has received
any such request, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such Event
of Default or Unmatured Event of Default as it shall deem advisable or in the
best interest of the Lenders.
10.6 CREDIT DECISION. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Administrative Agent hereafter taken, including any review of the
affairs of the Company and its Subsidiaries,
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shall be deemed to constitute any representation or warranty by any
Agent-Related Person to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Company and its Subsidiaries, and all applicable bank regulatory laws relating
to the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Company hereunder. Each Lender also
represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Company. Except for notices,
reports and other documents expressly herein required to be furnished to the
Lenders by the Administrative Agent, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of the Company which may come into the
possession of any of the Agent-Related Persons.
10.7 INDEMNIFICATION. Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand the
Administrative Agent and the Agent-Related Persons (to the extent not reimbursed
by or on behalf of the Company and without limiting the obligation of the
Company to do so), pro rata, from and against any and all Indemnified
Liabilities; PROVIDED, HOWEVER, that no Lender shall be liable for the payment
to the Administrative Agent or any Agent-Related Person of any portion of the
Indemnified Liabilities resulting solely from such Person's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender shall
reimburse the Administrative Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs) 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
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Company. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of the Administrative
Agent.
10.8 ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY. Bank of America and
its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
the Company and its Subsidiaries and Affiliates as though Bank of America were
not the Administrative Agent hereunder and without notice to or consent of the
Lenders. The Lenders acknowledge that, pursuant to such activities, Bank of
America or its Affiliates may receive information regarding the Company or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of the Company or such Affiliates) and acknowledge that the
Administrative Agent shall be under no obligation to provide such information to
them. With respect to its Loans, Bank of America and any Affiliate
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thereof shall have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though Bank of America were not the
Administrative Agent.
10.9 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may, and
at the request of the Required Lenders shall, resign as Administrative Agent
upon 30 days' notice to the Lenders and the Company. If the Administrative Agent
resigns under this Agreement, the Required Lenders shall have the right, with
the consent of the Company so long as no Event of Default or Unmatured Event of
Default has occurred and is continuing (which consent shall not be unreasonably
withheld or delayed), to appoint from among the Lenders a successor agent for
the Lenders. If no successor agent is appointed prior to the effective date of
the resignation of the Administrative Agent, the Administrative Agent may
appoint, after consulting with the Lenders and the Company, a successor agent
from among the Lenders. Upon the acceptance of its appointment as successor
agent hereunder, such successor agent shall succeed to all the rights, powers
and duties of the retiring Administrative Agent and the term "Administrative
Agent" shall mean such successor agent and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this ARTICLE X and SECTIONS 11.4 and
11.5 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
agent has accepted appointment as Administrative Agent by the date which is 30
days following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above. Notwithstanding the foregoing, however,
Bank of America may not be removed as the Administrative Agent at the request of
the Required Lenders unless Bank of America and any Affiliate thereof acting as
the Issuing Lender or Swingline Lender hereunder shall also simultaneously be
replaced as the Issuing Lender and Swingline Lender pursuant to documentation in
form and substance reasonably satisfactory to Bank of America (and, if
applicable, such Affiliate).
10.10 WITHHOLDING TAX. (a)(i) Each Lender that is not a "United States
person" within the meaning of Section 7701(a)(30) of the Code (a "FOREIGN
LENDER") shall deliver to the Administrative Agent, prior to receipt of any
payment subject to withholding under the Code (or upon accepting an assignment
of an interest herein), two duly signed completed copies of either IRS Form
W-8BEN or any successor thereto (relating to such Foreign Lender and entitling
it to an exemption from, or reduction of, withholding tax on all payments to be
made to such Foreign Lender by the Company pursuant to this Agreement) or IRS
Form W-8ECI or any successor thereto (relating to all payments to be made to
such Foreign Lender by the Company pursuant to this Agreement) or such other
evidence satisfactory to the Company and the Administrative Agent that such
Foreign Lender is entitled to an exemption from, or reduction of, U.S.
withholding tax, including any exemption pursuant to Section 881(c) of the Code.
Thereafter and from time to time, such Foreign Lender shall (A) promptly submit
to the Administrative Agent such additional duly completed and signed copies of
one of such forms (or such successor forms as shall be adopted from time to time
by the relevant United States taxing authorities) as may then be available under
then current United States laws and regulations to avoid, or such evidence as is
satisfactory to the Company and the Administrative Agent of any available
exemption from or reduction of, United States withholding taxes in respect of
all payments to be
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made to such Foreign Lender by the Company pursuant to this Agreement, (B)
promptly notify the Administrative Agent of any change in circumstances which
would modify or render invalid any claimed exemption or reduction and (C) take
such steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any applicable Requirement of Law
that the Company make any deduction or withholding for taxes from amounts
payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or ceases to
act for its own account with respect to any portion of any sums paid or payable
to such Lender by the Company under any of the Loan Documents (for example, in
the case of a typical participation by such Lender), shall deliver to the
Administrative Agent on the date when such Foreign Lender ceases to act for its
own account with respect to any portion of any such sums paid or payable, and at
such other times as may be necessary in the determination of the Administrative
Agent (in the reasonable exercise of its discretion), (A) two duly signed
completed copies of the forms or statements required to be provided by such
Lender as set forth above, to establish the portion of any such sums paid or
payable with respect to which such Lender acts for its own account that is not
subject to U.S. withholding tax, and (B) two duly signed completed copies of IRS
Form W-8IMY (or any successor thereto), together with any information such
Lender chooses to transmit with such form, and any other certificate or
statement of exemption required under the Code, to establish that such Lender is
not acting for its own account with respect to a portion of any such sums
payable to such Lender.
(iii) The Company shall not be required to pay any additional amount to
any Foreign Lender under SECTION 4.1 (A) with respect to any Taxes required to
be deducted or withheld on the basis of the information, certificates or
statements of exemption such Lender transmits with an IRS Form W-8IMY pursuant
to this SECTION 10.10(a) or (b) if such Lender shall have failed to satisfy the
foregoing provisions of this SECTION 10.10(a); PROVIDED that if such Lender
shall have satisfied the requirement of this SECTION 10.10(a) on the date such
Lender became a Lender or ceased to act for its own account with respect to any
payment by the Company under any of the Loan Documents, nothing in this SECTION
10.10(a) shall relieve the Company of its obligation to pay any amounts pursuant
to SECTION 4.1 in the event that, as a result of any change in any applicable
law, treaty or governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof, such Lender is no longer
properly entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender or other Person for the
account of which such Lender receives any sums payable by the Company under any
of the Loan Documents is not subject to withholding or is subject to withholding
at a reduced rate.
(iv) The Administrative Agent may, without reduction, withhold any
Taxes required to be deducted and withheld from any payment under any of the
Loan Documents with respect to which the Company is not required to pay
additional amounts under this SECTION 10.10(a).
(b) Upon the request of the Administrative Agent, each Lender that
is a "United States person" within the meaning of Section 7701(a)(30) of the
Code shall deliver to the Administrative Agent two duly signed completed copies
of IRS Form W-9. If any applicable Lender fails to deliver such forms, then the
Administrative Agent may withhold from any
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interest payment to such Lender an amount equivalent to the applicable back-up
withholding tax imposed by the Code, without reduction.
(c) If any Governmental Authority asserts that the Administrative
Agent or the Company did not properly withhold or backup withhold, as the case
may be, any tax or other amount from payments made to or for the account of any
Lender (because the appropriate exemption form was not delivered or was not
properly completed or executed, because such Lender failed to inform the
Administrative Agent or the Company of a change in circumstances or as a result
of any other action or inaction by such Lender), such Lender shall indemnify the
Administrative Agent and the Company, as the case may be, therefor, including
all penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent or the Company, as the case may be, under
this Section, and costs and expenses (including Attorney Costs) of the
Administrative Agent. The obligation of the Lenders under this Section shall
survive termination of the Commitments, repayment of all other Obligations
hereunder and the resignation of the Administrative Agent.
10.11 COLLATERAL MATTERS.
(a) The Administrative Agent is authorized on behalf of all the
Lenders, without the necessity of any notice to or further consent from the
Lenders, from time to time to take any action with respect to any collateral or
the Collateral Documents which may be necessary to perfect and maintain
perfected the security interest in and Liens upon the collateral granted
pursuant to the Collateral Documents.
(b) The Administrative Agent's power of attorney to enter into
Collateral Documents relating to collateral located in the Federal Republic of
Germany shall be governed by laws of the Federal Republic of Germany. For the
purpose of entering into the German Share Pledge Agreements, each Lender shall
provide a power of attorney substantially in the form of EXHIBIT M hereto.
(c) The Lenders irrevocably authorize the Administrative Agent, at
its option and in its discretion, (i) to release any Lien granted to or held by
the Administrative Agent upon any collateral: (a) upon termination of the
Commitments and payment in full of all Loans and all other obligations known to
the Administrative Agent and payable under this Agreement or any other Loan
Document; (b) constituting property sold or to be sold or disposed of as part of
or in connection with any disposition permitted hereunder; (c) constituting
property in which the Company or any Subsidiary owned no interest at the time
the Lien was granted or at any time thereafter; (d) constituting property leased
to the Company or any Subsidiary under a lease which has expired or been
terminated in a transaction permitted under this Agreement or is about to expire
and which has not been, and is not intended by the Company or such Subsidiary to
be, renewed or extended; (e) consisting of an instrument evidencing Indebtedness
or other debt instrument, if the indebtedness thereby has been paid in full; or
(f) if approved, authorized or ratified in writing by the Required Lenders or,
if required by SECTION 11.1(f), all the Lenders; and (ii) to subordinate its
interest in any collateral to the holder of any Lien permitted by CLAUSE (i) or
(j) of SECTION 8.1. Upon request by the Administrative Agent at any time, the
Lenders will confirm in writing the Administrative Agent's authority to release
or subordinate its interest in particular types or items of collateral pursuant
to this SUBSECTION 10.11(c).
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(d) Each Lender agrees with and in favor of each other (which
agreement shall not be for the benefit of the Company or any Subsidiary) that
any security interest in real property collateral received by a Lender in
connection with the extension of any loan or financial commitment between such
Lender and the Company or any of its Affiliates and not related to the
transactions contemplated hereby shall not constitute collateral for the
Company's obligations under this Agreement or any other Loan Document.
10.12 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to either Borrower or any Guarantor, the Administrative
Agent (irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the applicable Borrower) shall be entitled and empowered, by intervention in
such proceeding or otherwise
(a) to file and prove a claim for all (or the portion thereof
attributable to the relevant Borrower) of the principal and interest owing and
unpaid in respect of the Loans and L/C Obligations and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary
or advisable in order to have the claims of the Lenders and the Administrative
Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders and the
Administrative Agent under SECTIONS 2.11, 3.8 and 11.4) allowed in such judicial
proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under SECTIONS 2.11 and 11.4.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
10.13 OTHER AGENTS. No Lender identified herein as the Documentation
Agent or the Syndication Agent shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Lenders as such. Without limiting the foregoing, no Lender so
identified as the "Documentation Agent" or the "Syndication Agent" shall have or
be deemed to have any fiduciary relationship with any Lender. Each Lender
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acknowledges that it has not relied, and will not rely, on any Lender so
identified in deciding to enter into this Agreement or in taking or not taking
any action hereunder.
ARTICLE XI
MISCELLANEOUS
11.1 AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent with respect to any
departure by either Borrower therefrom, shall be effective unless the same shall
be in writing and signed by the Required Lenders and the Company and
acknowledged by the Administrative Agent, and then any such amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; PROVIDED that no such amendment, waiver or consent:
(a) shall increase or extend any Commitment of any Lender (or
reinstate any Commitment terminated pursuant to SECTION 9.2) without the written
consent of such Lender;
(b) shall postpone or delay any date fixed by this Agreement or
any other Loan Document for any payment of principal of or interest on any Loan
without the written consent of the Lender holding (or which is required to make)
such Loan;
(c) shall reduce the principal of, or the rate of interest
specified herein on, any Loan without the written consent of the Lender holding
(or which is required to make) such Loan;
(d) shall reduce any fees payable hereunder or under any other
Loan Document, or postpone or delay any date fixed by this Agreement or any
other Loan Document for the payment of fees or any other amounts due to any
Lender hereunder or under any other Loan Document, without the written consent
of the Person to whom such fee or other amount is to be paid;
(e) shall change the Percentage of the Lenders which is required
for any waiver, amendment or consent hereunder, or amend the definition of
"Required Lenders", without the written consent of all Lenders;
(f) shall release the Company from its obligations under ARTICLE
XII, release any substantial portion of the Guarantors or release all or any
substantial part of the collateral securing the Obligations without the written
consent of all Lenders;
(g) shall amend or waive any provision of this Section or SECTION
2.15, or any other provision herein providing for consent or other action by all
Lenders, without the written consent of all Lenders;
(h) shall, unless in writing and signed by the Issuing Lender in
addition to the Required Lenders or all Lenders, as the case may be, affect the
rights or duties of the Issuing Lender under this Agreement or any L/C-Related
Document;
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(i) shall, unless in writing and signed by the Swingline Lender in
addition to the Required Lenders or all Lenders, as the case may be, affect the
rights and duties of the Swingline Lender under this Agreement;
(j) shall, unless in writing and signed by the Administrative
Agent in addition to the Required Lenders or all Lenders, as the case may be,
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document;
(k) shall amend the permitted amount of Indebtedness of Foreign
Subsidiaries to Persons other than the Company and its Subsidiaries specified in
SECTION 8.5(d) without the written consent of Lenders with aggregate Percentages
of 66-2/3% or more;
(l) shall change the last sentence of SECTION 2.8(a) without the
written consent of each Lender affected thereby; or
(m) shall change the requirements of SECTION 11.8(a) for the
making of an assignment under any Facility without the consent of Lenders having
Facility Percentages under such Facility of more than 50%.
11.2 NOTICES. (a) All notices, requests and other communications
hereunder shall be in writing (including, unless the context expressly otherwise
provides, by facsimile transmission, provided that any matter transmitted by the
Company by facsimile (i) shall be immediately confirmed by a telephone call to
the recipient, and (ii) shall be followed promptly by delivery of a hard copy
original thereof) and mailed, faxed or delivered to the address or facsimile
number specified for notices (x) in the case of the Company or the
Administrative Agent, on SCHEDULE 11.2, or to such other address or facsimile
number as shall be designated by such party in a written notice to the other
parties and (y) in the case of any Lender, on such Lender's administrative
questionnaire delivered to the Arrangers or the Administrative Agent or to such
other address or facsimile number as shall be designated by such party in a
written notice to the Company and the Administrative Agent. The Administrative
Agent will, upon the request of the Company from time to time, promptly deliver
to the Company a list of the addresses and fax numbers that the Administrative
Agent has for the Lenders.
(b) All such notices, requests and communications shall, if
transmitted by overnight delivery, or faxed, be effective when delivered, or
transmitted in legible form by facsimile machine, respectively, or if mailed, on
the third Business Day after the date deposited into the U.S. mail; except that
notices to the Administrative Agent pursuant to ARTICLE II, III or X shall not
be effective until actually received by the Administrative Agent, and notices
pursuant to ARTICLE III to the Issuing Lender shall not be effective until
actually received by the Issuing Lender.
(c) Any agreement of the Administrative Agent and the Lenders
herein to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Company. The Administrative Agent and the
Lenders shall be entitled to rely on the authority of any Person purporting to
be a Person authorized by the Company to give such notice and the Administrative
Agent and the Lenders shall not have any liability to the Company or any other
Person on account of any action taken or not taken by the Administrative Agent
or the
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Lenders in reliance upon such telephonic or facsimile notice. The obligation of
the Company to repay the Loans and L/C Obligations shall not be affected in any
way or to any extent by any failure of the Administrative Agent and the Lenders
to receive written confirmation of any telephonic or facsimile notice or the
receipt by the Administrative Agent and the Lenders of a confirmation which is
at variance with the terms understood by the Administrative Agent and the
Lenders to be contained in the telephonic or facsimile notice.
11.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
11.4 COSTS AND EXPENSES. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse the Administrative Agent and its Affiliates
(including the Arranger) within five Business Days after demand (subject to
SUBSECTION 5.1(e)) for all reasonable and documented costs and expenses incurred
by the Administrative Agent and its Affiliates in connection with the
preparation, delivery, administration and execution of, and any amendment,
supplement, waiver or modification to (in each case, whether or not
consummated), this Agreement, any other Loan Document and any other document
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including Attorney Costs incurred
by the Administrative Agent and the Arranger with respect thereto; and
(b) pay or reimburse the Administrative Agent and each Lender
within five Business Days after demand (subject to SUBSECTION 5.1(e)) for all
costs and expenses (including Attorney Costs) incurred by them in connection
with the enforcement, attempted enforcement or preservation of any right or
remedy under this Agreement or any other Loan Document during the existence of
an Event of Default or after acceleration of the Loans (including in connection
with any "workout" or restructuring regarding the Loans and including in any
Insolvency Proceeding or appellate proceeding).
11.5 COMPANY INDEMNIFICATION. Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify and hold the
Agent-Related Persons and each Lender and each of their respective officers,
trustees, advisors, directors, employees, counsel, agents and attorneys-in-fact
(each an "INDEMNIFIED PERSON") harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, charges, expenses and disbursements (including Attorney Costs) of any
kind or nature whatsoever which may at any time (including at any time following
repayment of the Loans, the termination of the Letters of Credit and the
termination, resignation or replacement of the Administrative Agent or
replacement of any Lender) be imposed on, incurred by or asserted against any
such Person in any way relating to or arising out of this Agreement or any
document contemplated by or referred to herein, or the transactions contemplated
hereby or thereby, or any action taken or omitted by any such Person under or in
connection with any of the foregoing, including with respect to any
investigation, litigation or proceeding (including any Insolvency Proceeding or
appellate proceeding or any investigation, litigation or proceeding related to
any environmental
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cleanup, audit, compliance or other matter relating to the protection of the
environment or the Release by the Company or any of its Subsidiaries of any
Hazardous Material) related to or arising out of this Agreement or the Loans or
Letters of Credit or the use of the proceeds thereof, whether or not any
Indemnified Person is a party thereto (all the foregoing, collectively, the
"INDEMNIFIED LIABILITIES"); PROVIDED that the Company shall have no obligation
hereunder to any Indemnified Person with respect to Indemnified Liabilities
resulting solely from the gross negligence or willful misconduct of such
Indemnified Person. The agreements in this Section shall survive payment of all
other Obligations. Each Agent-Related Person and each Lender agrees that if any
investigation, litigation or proceeding is asserted or threatened in writing or
instituted against it or any other Indemnified Person, or any remedial, removal
or response action is requested of it or any other Indemnified Party, for which
such Agent-Related Person or such Lender may desire indemnity or defense
hereunder, such Agent-Related Person or such Lender shall notify the Company in
writing of such event; PROVIDED that failure to so notify the Company shall not
affect the right of any Agent-Related Person or Lender to seek indemnification
under this Section.
11.6 PAYMENTS SET ASIDE. To the extent that either Borrower makes a
payment to the Administrative Agent or any Lender, or the Administrative Agent
or any Lender exercises its right of set-off, and such payment or the proceeds
of such set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee or receiver, or any other party, in
connection with any Insolvency Proceeding or otherwise, then (a) to the extent
of such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its pro rata
share of any amount so recovered from or repaid by the Administrative Agent.
11.7 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that neither Borrower may assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Administrative Agent and each Lender.
11.8 ASSIGNMENTS, PARTICIPATIONS, ETC. (a) Any Lender may at any time
assign and delegate to one or more Eligible Assignees (each, an "ASSIGNEE") all,
or a ratable part of all, of the Loans, the Commitments, the L/C Obligations and
the other rights and obligations of such Lender hereunder, in a minimum amount
of $5,000,000, in the case of the U.S. Revolving Facility, (a)5,000,000, in the
case of the Euro Revolving Facility and the Euro Term Loan A Facility,
(a)1,000,000, in the case of the Euro Term Loan B Facility, and $1,000,000 in
the case of the U.S. Term Loan B Facility, or, in each case, all of such
Lender's remaining rights and obligations under the applicable Facility or such
lesser amount as may be agreed to by the Company and the Administrative Agent;
PROVIDED that (A) the Borrowers, the Administrative Agent, the Issuing Lender
and the Swingline Lender may continue to deal solely and directly with such
Lender in connection with the interest so assigned to an Assignee until (i)
written notice of such assignment, together with payment instructions, addresses
and related information with respect to the Assignee shall have been given to
the Company and the Administrative Agent by such Lender and the Assignee, (ii)
such Lender and the Assignee shall have delivered to the
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Company and the Administrative Agent an Assignment and Assumption in the form of
EXHIBIT L (an "ASSIGNMENT AND ASSUMPTION") together with any Note or Notes
subject to such assignment and (iii) the assignor Lender or the Assignee shall
have paid to the Administrative Agent a processing fee in the amount of $3,500
(provided that no such fee shall be required in the case of an assignment by a
Lender to an Affiliate or Approved Fund of such Lender) and (B) the Company
shall not, as a result of any assignment by any Lender to any of such Lender's
Affiliates, incur any increased liability for Taxes, Other Taxes or Further
Taxes pursuant to SECTION 4.1. The Company designates the Administrative Agent
as its agent for maintaining a book entry record of ownership identifying the
Lenders and the amount of the respective Loans and Notes which they own (the
"REGISTER"). No assignment shall be effective unless recorded by the
Administrative Agent in the Register. The foregoing provisions are intended to
comply with the registration requirements in Treasury Regulation Section
5f.103-1 so that the Loans and Notes are considered to be in "registered form"
pursuant to such regulation.
(b) From and after the date that the Administrative Agent notifies
the assignor Lender that it has provided its consent (if applicable), and
received the consents (to the extent applicable) of the Swingline Lender, the
Issuing Lender and the Company, with respect to an executed Assignment and
Assumption and payment of the above-referenced processing fee, (i) the Assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Assumption, shall have the rights and obligations of a Lender under the Loan
Documents, and (ii) the assignor Lender shall, to the extent that rights and
obligations hereunder and under the other Loan Documents have been assigned by
it pursuant to such Assignment and Assumption, relinquish its rights (except
such rights as survive the termination hereof or the replacement of a Lender
hereunder, including the indemnities pursuant to SECTION 11.5 hereof) and be
released from its obligations under the Loan Documents.
(c) Any Lender may, without notice to or consent of the Company or
the Administrative Agent, at any time sell to one or more commercial banks or
other Persons not Affiliates of the Company (a "PARTICIPANT") participating
interests in any Loan, the Commitments of such Lender and the other interests of
such Lender (the "ORIGINATING LENDER") hereunder and under the other Loan
Documents; PROVIDED, HOWEVER, that (i) the originating Lender's obligations
under this Agreement shall remain unchanged, (ii) the originating Lender shall
remain solely responsible for the performance of such obligations, (iii) the
Borrowers, the Swingline Lender, the Issuing Lender and the Administrative Agent
shall continue to deal solely and directly with the originating Lender in
connection with the originating Lender's rights and obligations under this
Agreement and the other Loan Documents and (iv) except in the case of a transfer
or grant of a participating interest by a Lender to an Affiliate of such Lender,
no Lender shall transfer or grant any participating interest under which the
Participant has rights to approve any amendment to, or any consent or waiver
with respect to, this Agreement or any other Loan Document, except to the extent
such amendment, consent or waiver would require unanimous consent of the Lenders
or the consent of a particular Lender, in each case as described in the PROVISO
to SECTION 11.1. In the case of any such participation, the Participant shall be
entitled to the benefit of SECTIONS 4.1, 4.3 and 11.5 as though it were also a
Lender hereunder (PROVIDED, with respect to SECTIONS 4.1 and 4.3, the Company
shall not be required to pay any amount which it would not have been required to
pay if no participating interest had been sold), and if amounts outstanding
under this Agreement are due and unpaid, or shall have been declared or shall
have become due
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and payable upon the occurrence of an Event of Default, the Participant shall be
deemed to have the right of set-off in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement. Each Lender may furnish any information concerning the Company and
its Subsidiaries in the possession of such Lender from time to time to
participants and prospective participants and may furnish information in
response to credit inquiries consistent with general banking or investment
practice. Each Lender which sells a participation will maintain a book entry
record of ownership identifying the Participant(s) and the amount of such
participation(s) owned by such Participant(s). Such book entry record of
ownership shall be maintained by the Lender as agent for the Company and the
Administrative Agent. This provision is intended to comply with the registration
requirements in Treasury Regulation Section 5f.103-1 so that the Loans and Notes
are considered to be in "registered form" pursuant to such regulation.
(d) Notwithstanding any other provision of this Agreement, any
Lender may at any time create a security interest in, or pledge all or any
portion of, its rights under and interest in this Agreement and any Note held by
it in favor of any Federal Reserve Bank in accordance with Regulation A of the
FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve
Bank may enforce such pledge or security interest in any manner permitted under
applicable law.
(e) In the case of any Lender that is an Approved Fund, such
Lender may, without the consent of the Company or the Administrative Agent,
assign or pledge all or any portion of its rights under this Agreement,
including its Loans and its Notes and any other instrument evidencing its rights
as a Lender under this Agreement, to any holder of, trustee for or other
representative of holders of obligations owned, or securities issued, by such
fund, as security for such obligations or securities; PROVIDED that any
foreclosure or similar action by such trustee or representative shall be subject
to the provisions of SECTION 11.8(a) concerning assignments.
11.9 CONFIDENTIALITY. Each Lender agrees to take, and to cause its
Affiliates to take, normal and reasonable precautions and exercise due care to
maintain the confidentiality of all non-public information provided to it by the
Company or any Subsidiary, or by the Administrative Agent on the Company's or
any Subsidiary's behalf, under this Agreement or any other Loan Document, and
neither such Lender nor any of its Affiliates shall use any such information
other than in connection with or in enforcement of this Agreement and the other
Loan Documents or in connection with other business now or hereafter existing or
contemplated with the Company or any Subsidiary, except to the extent such
information (i) was or becomes generally available to the public other than as a
result of disclosure by such Lender or (ii) was or becomes available on a
non-confidential basis from a source other than the Company (PROVIDED that such
source is not bound by a confidentiality agreement with the Company or any
Subsidiary known to such Lender); PROVIDED, HOWEVER, that any Lender may
disclose such information (A) at the request or pursuant to any requirement of
any Governmental Authority to which such Lender is subject or in connection with
an examination of such Lender by any such authority, (B) pursuant to subpoena or
other court process, (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law, (D) to the extent reasonably
required in connection with any litigation or proceeding to which the
Administrative
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Agent or any Lender or any of their respective Affiliates may be party, (E) to
the extent reasonably required in connection with the exercise of any remedy
hereunder or under any other Loan Document, (F) to such Lender's independent
auditors and other professional advisors, (G) to any Participant or Assignee,
actual or potential, provided that such Person agrees in writing to keep such
information confidential to the same extent required of the Lenders hereunder,
(H) as to any Lender or its Affiliate, as expressly permitted under the terms of
any other document or agreement regarding confidentiality to which the Company
or any Subsidiary is party or is deemed party with such Lender or such
Affiliate, (I) to its Affiliates or (J) to any direct or indirect contractual
counterparty in any swap, hedge or similar agreement (or to any such contractual
counterparty's professional advisor), so long as such contractual counterparty
(or such professional advisor) agrees to be bound by the provisions of this
SECTION 11.9.
11.10 SET-OFF. In addition to any right or remedy of the Lenders
provided by law, if an Event of Default exists, or the Loans have been
accelerated, each Lender is authorized at any time and from time to time,
without prior notice to the Borrowers, any such notice being waived by the
Borrowers 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 by, and other indebtedness at any time owing by, such Lender to or for
the credit or the account of either Borrower against any and all Obligations
owing to such Lender, now or hereafter existing, irrespective of whether or not
the Administrative Agent or such Lender shall have made demand under this
Agreement or any other Loan Document and although such Obligations may be
contingent or unmatured. Each Lender agrees promptly to notify the applicable
Borrower and the Administrative Agent after any such set-off and application
made by such Lender; PROVIDED that the failure to give such notice shall not
affect the validity of such set-off and application.
11.11 AUTOMATIC DEBITS OF FEES. With respect to any non-use fee,
arrangement fee, agency fee, letter of credit fee or other fee, or any other
cost or expense (including Attorney Costs) due and payable to the Administrative
Agent, the Swingline Lender or the Issuing Lender under the Loan Documents, each
Borrower hereby irrevocably authorizes Bank of America to debit any deposit
account of such Borrower with Bank of America in an amount such that the
aggregate amount debited from all such deposit accounts does not exceed such fee
or other cost or expense. If there are insufficient funds in such deposit
accounts to cover the amount of the fee or other cost or expense then due, such
debits will be reversed (in whole or in part, in Bank of America's sole
discretion) and such amount not debited shall be deemed to be unpaid. No such
debit under this Section shall be deemed a set-off.
11.12 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC. Each Lender
shall notify the Administrative Agent in writing of any change in the address to
which notices to such Lender should be directed, of addresses of any Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Administrative
Agent shall reasonably request.
11.13 COUNTERPARTS. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of which taken together shall constitute but one and the same
instrument.
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11.14 SEVERABILITY. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or such instrument or agreement.
11.15 NO THIRD PARTIES BENEFITED. This Agreement is made and entered
into for the sole protection and legal benefit of the Borrowers, the Lenders,
the Administrative Agent and the Agent-Related Persons, and their permitted
successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any other Loan Document.
11.16 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Unmatured Event of Default at the time of any Credit Extension, and shall
continue in full force and effect as long as any Loan or any other Obligation
shall remain unpaid or unsatisfied or any Letter of Credit shall remain
outstanding.
11.17 INTEREST RATE LIMITATION. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Requirements of Law (the "MAXIMUM RATE"). If
the Administrative Agent or any Lender shall receive interest in an amount that
exceeds the Maximum Rate, the excess interest shall be applied to the principal
of the Loans of the applicable Borrower or, if it exceeds such unpaid principal,
refunded to such Borrower. In determining whether the interest contracted for,
charged or received by the Administrative Agent or a Lender exceeds the Maximum
Rate, such Person may, to the extent permitted by applicable Requirements of
Law, (a) characterize any payment that is not principal as an expense, fee or
premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations.
11.18 JUDGMENT CURRENCY. If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due in respect of any Obligation in
one currency into another currency, the rate of exchange used shall be that at
which in accordance with normal banking procedures the Administrative Agent
could purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of the
applicable Borrower in respect of any such sum due from it to the Administrative
Agent or any Lender hereunder shall, notwithstanding any judgment in a currency
(the "JUDGMENT CURRENCY") other than that in which such sum is denominated in
accordance with the applicable provisions hereof (the "AGREEMENT CURRENCY"), be
discharged only to the extent that on the Business Day following receipt by the
Administrative Agent or such Lender of any sum adjudged to be so due in the
Judgment Currency, the Administrative Agent or such Lender may in accordance
with normal banking procedures purchase the Agreement Currency with the Judgment
Currency. If the amount of the Agreement Currency so purchased is less than the
sum originally due to the Administrative Agent or such Lender in the Agreement
Currency, the applicable Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or such
Lender, as applicable, against such loss. If
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the amount of the Agreement Currency so purchased is greater than the sum
originally due to the Administrative Agent or such Lender in such currency, the
Administrative Agent and each Lender agrees to return the amount of any excess
to the applicable Borrower (or to any other Person who may be entitled thereto
under applicable law).
11.19 GOVERNING LAW AND JURISDICTION. (a) WITH THE EXCEPTION OF THE
POWER OF ATTORNEY GRANTED IN SECTION 10.11(b) ABOVE, THIS AGREEMENT AND ANY
NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAW
OF THE STATE OF NEW YORK; PROVIDED THAT THE ADMINISTRATIVE AGENT AND THE LENDERS
SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWERS, THE ADMINISTRATIVE AGENT
AND THE LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF SUCH COURTS. EACH OF THE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. THE BORROWERS, THE ADMINISTRATIVE AGENT AND THE LENDERS EACH
WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE
MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
11.20 WAIVER OF JURY TRIAL. THE BORROWERS, THE LENDERS AND THE
ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON,
PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR
OTHERWISE. THE BORROWERS, THE LENDERS AND THE ADMINISTRATIVE AGENT EACH AGREE
THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO
ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH
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SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENT, RENEWAL, SUPPLEMENT OR
MODIFICATION TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
11.21 ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Borrowers,
the Lenders and the Administrative Agent, and supersedes all prior or
contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof.
11.22 EFFECTIVENESS WITH RESPECT TO SUBSIDIARY BORROWER. For the
avoidance of doubt, the parties hereto agree that this Agreement and all other
Loan Documents signed by the Subsidiary Borrower shall become effective with
respect to the Subsidiary Borrower concurrently with (and not before) the
consummation of the VARTA Acquisition.
11.23 PARALLEL DEBT. Without prejudice to the provisions of any other
Loan Document and for the purpose of ensuring and preserving the validity and
continuity of the security rights granted and to be granted by the Pledgors (as
defined in the Netherlands Share Pledge Agreements) under or pursuant to the
Netherlands Share Pledge Agreements, each Lender, on behalf of itself and its
Affiliates, and the other parties hereto acknowledge and consent to the
Pledgors' undertaking to pay to Bank of America, in its own capacity, amounts
(i) equal to the amounts due from time to time by the Pledgors to the Lenders
and their Affiliates in respect of all moneys owed by the Pledgors to the
Lenders and their Affiliates under the Guaranties and (ii) due and payable at
the same time as the corresponding amounts of such moneys under the Guaranties
are or shall be due and payable (such payment undertaking and the obligations
and liabilities resulting therefrom, the "Parallel Debt"). Each Lender, on
behalf of itself and its Affiliates, and the other parties hereto agree that the
Parallel Debt is a claim of Bank of America which is independent and separate
from, and without prejudice to, the claims of the Lenders and their Affiliates,
if applicable, in respect of the moneys owed by the Pledgors under the
Guaranties, and is not a claim which is held jointly with the Lenders and their
Affiliates provided that to the extent any amounts are paid to Bank of America
under the Parallel Debt or that Bank of America otherwise receives moneys in
payment of the Parallel Debt, the total amount due and payable in respect of the
moneys owed by the Pledgors under the Guaranties shall be decreased as if said
amounts were received directly in payment of the outstanding moneys under the
Guaranties. Bank of America, acting in its own capacity, hereby agrees to
transfer to such account as may be specified by the Administrative Agent, for
the benefit of the Lenders and their Affiliates all proceeds that it receives in
connection with any enforcement action taken under or pursuant to the
Netherlands Share Pledge Agreements.
ARTICLE XII
GUARANTEE
12.1 UNCONDITIONAL GUARANTEE. For valuable consideration, receipt
whereof is hereby acknowledged, and to induce each Lender to make Loans to the
Subsidiary Borrower, the
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Company hereby unconditionally and irrevocably guarantees to each Lender and the
Administrative Agent the punctual payment when due, whether at stated maturity,
by acceleration or otherwise, of all Obligations of the Subsidiary Borrower,
whether for principal, interest, fees, expenses or otherwise, whether direct or
indirect, absolute or contingent or now existing or hereafter arising (such
Obligations being the "GUARANTEED OBLIGATIONS"). Without limiting the generality
of the foregoing, the Company's liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by the
Subsidiary Borrower to the Administrative Agent or any other Lender under this
Agreement but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
the Subsidiary Borrower. This is a guarantee set forth in this ARTICLE 12 is a
guarantee of payment and not merely of collection.
12.2 GUARANTEE ABSOLUTE. The Company guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of this
Agreement, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any Lender or
the Administrative Agent with respect thereto. The Obligations of the Company
under this ARTICLE XII are independent of the Guaranteed Obligations, and a
separate action or actions may be brought and prosecuted against the Company to
enforce this ARTICLE XII, irrespective of whether any action is brought against
the Subsidiary Borrower or whether the Subsidiary Borrower is joined in any such
action or actions. The liability of the Company under this guarantee shall be
irrevocable, absolute and unconditional irrespective of, and the Company hereby
irrevocably waives any defense it may now or hereafter have in any way relating
to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement or
any other agreement or instrument relating hereto;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations, or any other
amendment or waiver of or any consent to departure from this Agreement;
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed Obligations;
(d) any change, restructuring or termination of the corporate
structure or existence of the Subsidiary Borrower; or
(e) any other circumstance (including any statute of limitations
to the fullest extent permitted by applicable Requirements of Law) which might
otherwise constitute a defense available to, or a discharge of, the Company, the
Subsidiary Borrower or a guarantor.
This guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by any Lender or the Administrative
Agent upon the insolvency, bankruptcy or reorganization of the Subsidiary
Borrower or otherwise, all as though such payment had not been made.
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12.3 WAIVERS. The Company hereby expressly waives promptness,
diligence, notice of acceptance, presentment, demand for payment, protest, any
requirement that any right or power be exhausted or any action be taken against
the Subsidiary Borrower or against any other guarantor of all or any portion of
the Guaranteed Obligations, and all other notices and demands whatsoever.
(a) The Company hereby waives any right to revoke this guaranty,
and acknowledges that this guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future and regardless of
whether the Guaranteed Obligations are reduced to zero at any time or from time
to time.
(b) The Company acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated herein
and that the waivers set forth in this ARTICLE XII are knowingly made in
contemplation of such benefits.
12.4 SUBROGATION. The Company will not exercise any right that it may
now or hereafter acquire against the Subsidiary Borrower or any other insider
guarantor that arises from the existence, payment, performance or enforcement of
the Guaranteed Obligations, including any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of the Administrative Agent or any other Lender against the
Subsidiary Borrower or any other insider guarantor or any collateral, whether or
not such right arises in equity or under contract, statute or common law,
including the right to take or receive from the Subsidiary Borrower or any other
insider guarantor, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such claim,
remedy or right, unless and until all of the Guaranteed Obligations shall have
been paid in full in cash and the Commitments under the Euro Revolving Facility
shall have terminated. If any amount shall be paid to the Company in violation
of the preceding sentence, such amount shall be held in trust for the benefit of
the Administrative Agent and the Lenders and shall forthwith be paid to the
Administrative Agent to be credited and applied to the Guaranteed Obligations,
whether matured or unmatured, in accordance with the terms of this Agreement, or
to be held as collateral for any Guaranteed Obligations. The Company
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Agreement and that the waiver set
forth in this Section is knowingly made in contemplation on such benefits.
12.5 SURVIVAL. This guarantee is a continuing guarantee and shall (a)
remain in full force and effect until payment in full in cash of the Guaranteed
Obligations and the termination of the Commitments under the Euro Revolving
Facility, (b) be binding upon the Company and its successors and assigns and (c)
inure to the benefit of and be enforceable by the Administrative Agent on behalf
of the Lenders and their respective successors, transferees and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
RAYOVAC CORPORATION
By: /S/ XXXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Financial
Officer
VARTA GERATEBATTERIE GmbH
By: /S/ XXXX X. XXXXXX
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
By: /S/ ANDREAS ROUVE
------------------------
Name: Andreas Rouve
Title: Chief Financial Officer
2
BANK OF AMERICA, N.A., as Issuing Lender,
Swingline Lender and a Lender
By: /S/ XXXXXXXX XXXXX
--------------------------------
Title: Managing Director
3
BANK OF AMERICA, N.A., as Administrative Agent
By: /S/ XXXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
4
CITICORP NORTH AMERICA, INC., as Syndication Agent and a
Lender
By: /S/ XXXXXX X. XXXXXXXX, XX.
-----------------------------------------
Title: Vice President
5
LASALLE BANK NATIONAL ASSOCIATION, as a Lender
By: /S/ XXXXX X. XXXXX
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
6
METROPOLITAN LIFE INSURANCE COMPANY, as a Lender
By: /S/ XXXXX X. XXXXXXX
--------------------------------
Title: Director
7
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By: /S/ XXXXX X. XXXXXX
--------------------------------
Title: Vice President
8
