Exhibit 10.1
FALCON BUILDING PRODUCTS, INC.
CREDIT AGREEMENT
dated as of June 17, 1997
$300,000,000
Credit Facility
CHASE SECURITIES INC.,
as Arranger,
BANKERS TRUST COMPANY,
as Documentation Agent,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
TABLE OF CONTENTS
SECTION 1. DEFINITIONS
1.1 Defined Terms
1.2 Other Definitional Provisions
SECTION 2. TERM LOANS
2.1 Term Loans
2.2 Repayment of Term Loans
2.3 Use of Proceeds
SECTION 3. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS
3.1 Revolving Credit Commitments
3.2 Commitment Fee
3.3 Proceeds of Revolving Credit Loans
3.4 Swing Line Commitment
3.5 Issuance of Letters of Credit
3.6 Participating Interests
3.7 Procedure for Opening Letters of Credit
3.8 Payments in Respect of Letters of Credit
3.9 Letter of Credit Fees
3.10 Letter of Credit Reserves
3.11 Further Assurances
3.12 Obligations Absolute
3.13 Assignments
3.14 Participations
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS
4.1 Procedure for Borrowing
4.2 Conversion and Continuation Options
4.3 Changes of Commitment Amounts
4.4 Optional and Mandatory Prepayments; Repayments of Term Loans
4.5 Interest Rates and Payment Dates
4.6 Computation of Interest and Fees
4.7 Certain Fees
4.8 Inability to Determine Interest Rate
4.9 Pro Rata Treatment and Payments
4.10 Illegality
4.11 Requirements of Law
4.12 Indemnity
4.13 Repayment of Loans; Evidence of Debt
4.14 Replacement of Lenders
SECTION 5. REPRESENTATIONS AND WARRANTIES
5.1 Financial Condition
5.2 No Change
5.3 Corporate Existence; Compliance with Law
5.4 Corporate Power; Authorization
5.5 Enforceable Obligations
5.6 No Legal Bar
5.7 No Material Litigation
5.8 Investment Company Act
5.9 Federal Regulation
5.10 No Default
5.11 Taxes
5.12 Subsidiaries
5.13 Ownership of Property; Liens
5.14 ERISA
5.15 Collateral Documents
5.16 Copyrights, Patents, Permits, Trademarks and Licenses
5.17 Environmental Matters
5.18 Accuracy and Completeness of Information
5.19 Acquisition Co.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Loans and Letters of Credit
6.2 Conditions to All Loans and Letters of Credit
SECTION 7. AFFIRMATIVE COVENANTS
7.1 Financial Statements
7.2 Certificates; Other Information
7.3 Payment of Obligations
7.4 Conduct of Business and Maintenance of Existence
7.5 Maintenance of Property; Insurance
7.6 Inspection of Property; Books and Records; Discussions
7.7 Notices
7.8 Environmental Laws
7.9 Additional Collateral
SECTION 8. NEGATIVE COVENANTS
8.1 Indebtedness
8.2 Limitation on Liens
8.3 Limitation on Contingent Obligations
8.4 Prohibition of Fundamental Changes
8.5 Prohibition on Sale of Assets
8.6 Limitation on Investments, Loans and Advances
8.7 Capital Expenditures
8.8 Interest Rate Agreements
8.9 Debt to EBITDA
8.10 Interest Coverage
8.11 Limitation on Dividends
8.12 Transactions with Affiliates
8.13 Prepayments and Amendments of Subordinated Debt
8.14 Limitation on Changes in Fiscal Year
8.15 Limitation on Lines of Business
SECTION 9. EVENTS OF DEFAULT
SECTION 10. THE ADMINISTRATIVE AGENT; THE ISSUING LENDER
10.1 Appointment
10.2 Delegation of Duties
10.3 Exculpatory Provisions
10.4 Reliance by Administrative Agent
10.5 Notice of Default
10.6 Non-Reliance on Administrative Agent and Other Lenders
10.7 Indemnification
10.8 The Administrative Agent in its Individual Capacity
10.9 Successor Administrative Agent
10.10 Issuing Lender as Issuer of Letters of Credit
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers
11.2 Notices
11.3 No Waiver; Cumulative Remedies
11.4 Survival of Representations and Warranties
11.5 Payment of Expenses and Taxes
11.6 Successors and Assigns; Participations and Assignments
11.7 Adjustments; Set-off
11.8 Counterparts
11.9 Governing Law; No Third Party Rights
11.10 Submission to Jurisdiction; Waivers
11.11 Releases
11.12 Interest
11.13 Special Indemnification
11.14 Permitted Payments and Transactions
CREDIT AGREEMENT, dated as of June 17, 1997, among
FALCON BUILDING PRODUCTS, INC., a Delaware corporation (the
"Company"), the several lenders from time to time parties
hereto (the "Lenders"), CHASE SECURITIES INC. ("CSI"), as
arranger (the "Arranger"), BANKERS TRUST COMPANY, as
documentation agent (in such capacity, the "Documentation
Agent"), and THE CHASE MANHATTAN BANK, a New York banking
corporation, as administrative agent for the Lenders (in
such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, FBP Acquisition Corp., Inc., a Delaware
corporation ("Acquisition Co"), an affiliate of Investcorp,
S.A., certain of its affiliated entities and other initial
investors (collectively, the "Investors") and the Company
have entered into an Agreement and Plan of Merger, dated as
March 20, 1997, as amended (together with any schedule
attached thereto, as amended, supplemented or otherwise
modified from time to time, the "Merger Agreement"),
pursuant to which AcquisitionCo will be merged with and into
the Company (the "Merger"), the Company being the surviving
corporation of the Merger;
WHEREAS, upon the Merger, the Investors will own
approximately 88% of the common stock of the Company and
certain existing shareholders and management (the "Existing
Shareholders") will own the remaining portion of such common
stock;
WHEREAS, the Company intends to finance the Merger
(including the refinancing of certain existing indebtedness)
and related premiums, fees and expenses from the following
sources: (a) $152,800,000 in common equity (consisting of a
cash investment of at least $134,600,000 from the Investors,
with the balance represented by common stock retained by the
Existing Shareholders); (b) $300,000,000 from the senior
secured credit facilities provided for herein comprised of a
$175,000,000 term loan facility and a $125,000,000 revolving
credit facility; and (c) at least $245,000,000 in gross cash
proceeds from an issuance by the Company of either (i)
subordinated unsecured loans or (ii) at least $145,000,000
in gross cash proceeds of senior subordinated notes and at
least $100,000,000 in gross cash proceeds of senior
subordinated discount notes or such other amounts of such
senior subordinated indebtedness aggregating approximately
$247,000,000 as may be reasonably agreed to by the
Administrative Agent, the Arranger and the Documentation
Agent; and
WHEREAS, the Company has requested the Lenders to
make loans and other extensions of credit available to the
Company to enable the Company to finance a portion of the
Merger and for the other purposes set forth herein;
NOW, THEREFORE, the Company, the Administrative
Agent, the Arranger, the Documentation Agent and the Lenders
agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this
Agreement, the terms defined in the caption hereto
shall have the meanings set forth therein, and the
following terms have the following meanings:
"AcquisitionCo": as defined in the Recitals
hereto.
"Additional Mortgage": as defined in subsection
7.9(e).
"Adjustment Date": as defined in the definition
of Applicable Margin.
"Affiliate": of any Person (a) any Person (other
than a Subsidiary) which, directly or indirectly, is in
control of, is controlled by, or is under common
control with such Person, or (b) any Person who is a
director or officer (i) of such Person, (ii) of any
Subsidiary of such Person or (iii) of any Person
described in clause (a) above. For purposes of this
definition, control of a Person shall mean the power,
direct or indirect, (x) to vote 25% or more of the
securities having ordinary voting power for the
election of directors of such Person, whether by
ownership of securities, contract, proxy or otherwise,
or (y) to direct or cause the direction of the
management and policies of such Person, whether by
ownership of securities, contract, proxy or otherwise.
"Agreement": this Credit Agreement, as amended,
supplemented or modified from time to time.
"Alternate Base Rate": for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16
of 1%) equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the Base CD Rate in effect on
such day plus 1% and (c) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. For
purposes hereof: "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time
by the Administrative Agent as its prime rate in effect
at its principal office in New York City (the Prime
Rate not being intended to be the lowest rate of
interest charged by the Administrative Agent in
connection with extensions of credit to debtors); "Base
CD Rate" shall mean the sum of (a) the product of (i)
the Three-Month Secondary CD Rate and (ii) a fraction,
the numerator of which is one and the denominator of
which is one minus the C/D Reserve Percentage and (b)
the C/D Assessment Rate; "Three-Month Secondary CD
Rate" shall mean, for any day, the secondary market
rate for three-month certificates of deposit reported
as being in effect on such day (or, if such day shall
not be a Business Day, the next preceding Business Day)
by the Board through the public information telephone
line of the Federal Reserve Bank of New York (which
rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release
H.15(519) during the week following such day), or, if
such rate shall not be so reported on such day or such
next preceding Business Day, the average of the
secondary market quotations for three-month
certificates of deposit of major money center banks in
New York City received at approximately 10:00 A.M., New
York City time, on such day (or, if such day shall not
be a Business Day, on the next preceding Business Day)
by the Administrative Agent from three New York City
negotiable certificate of deposit dealers of recognized
standing selected by it; and "Federal Funds Effective
Rate" shall mean, for any day, the weighted average of
the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by
federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any
day which is a Business Day, the average of the
quotations for the day of such transactions received by
the Administrative Agent from three federal funds
brokers of recognized standing selected by it. Any
change in the Alternate Base Rate due to a change in
the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate shall be effective as of the opening of
business on the effective day of such change in the
Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate, respectively.
"Alternate Base Rate Loans": Loans at such time
as they are made and/or being maintained at a rate of
interest based upon the Alternate Base Rate.
"Applicable Margin": for Term Loans, Revolving
Credit Loans and Swing Line Loans of the Types set
forth below, the rate per annum set forth under the
relevant column heading opposite such Loans below:
Alternate
Base Rate Eurodollar
Loans Loans
Term Loans: 2.00% 3.00%
Revolving Credit Loans: 1.50% 2.50%
Swing Line Loans: 1.50% Not applicable
; provided that the Applicable Margin with respect to
Revolving Credit Loans and Swing Line Loans will be
adjusted on each Adjustment Date (as defined below) to
the applicable rate per annum set forth in the pricing
grid attached hereto as Schedule II based on the
Leverage Ratio as determined from the relevant
financial statements delivered pursuant to subsection
7.1. Changes in the Applicable Margin resulting from
changes in the Leverage Ratio shall become effective on
the date (the "Adjustment Date") on which such
financial statements are delivered to the Lenders (but
in any event not later than the 50th day after the end
of each of the first three quarterly periods of each
fiscal year or the 95th day after the end of each
fiscal year as the case may be) and shall remain in
effect until the next change to be effected pursuant to
this definition, provided that (a) the Applicable
Margin shall be initially the rate per annum set forth
under the relevant column heading above; (b) if for any
reason the financial statements required by subsection
7.1 are not timely delivered to the Lenders, the
Leverage Ratio shall be (i) during the period from the
date upon which such financial statements were required
to be delivered until the date upon which they actually
are delivered, the Applicable Margin in effect
immediately prior to the date such financial statements
were due, and (ii) if such financial statements, when
actually delivered, would have required an increase in
the Applicable Margin over the Applicable Margin in
effect immediately prior to the date such financial
statements were due, the Company shall promptly
following the delivery of such financial statements pay
to the Lenders and the Administrative Agent any
additional amounts of interest or fees which would have
been payable on any previous Interest Payment Date had
such higher Applicable Margin been in effect from the
date such financial statements were required to be
delivered; and provided, further, that any change in
the Applicable Margin as a result of a change in the
Leverage Ratio shall apply to all Loans for each day
during the period commencing on the effective date of
such change and ending on the date immediately
preceding the effective date of the next such change in
the Applicable Margin.
"Arranger": as defined in the Preamble hereto.
"Asset Sale": any sale, sale-leaseback, or other
disposition by the Company or any Subsidiary restricted
by subsection 8.5 of any of its property or assets,
including the stock of any Subsidiary, except sales and
dispositions permitted by subsections 8.5(a), (b), (c),
(f), (g) and (h).
"Assignee": as defined in subsection 11.6(c).
"Assignment and Acceptance": an assignment and
acceptance substantially in the form of Exhibit D.
"Available Revolving Credit Commitment": as to
any Lender, at a particular time, an amount equal to
(a) the amount of such Lender's Revolving Credit
Commitment at such time less (b) the sum of (i) the
aggregate unpaid principal amount at such time of all
Revolving Credit Loans made by such Lender pursuant to
subsection 3.1, (ii) such Lender's Revolving Credit
Commitment Percentage of the aggregate unpaid principal
amount at such time of all Swing Line Loans, provided
that for purposes of calculating the Revolving Credit
Commitments pursuant to subsection 3.2 the amount
referred to in this clause (ii) shall be zero, (iii)
such Lender's L/C Participating Interest in the
aggregate amount available to be drawn at such time
under all outstanding Letters of Credit issued by the
Issuing Lender and (iv) such Lender's Revolving Credit
Commitment Percentage of the aggregate outstanding
amount of L/C Obligations; collectively, as to all the
Lenders, the "Available Revolving Credit Commitments".
"Bankruptcy Code": Title I of the Bankruptcy
Reform Act of 1978, as amended and codified at Title 11
of the United States Code.
"Board": the Board of Governors of the Federal
Reserve System, together with any successor.
"Borrowing Date": any Business Day specified in a
notice pursuant to (a) subsection 3.4 or 4.1 as a date
on which the Company requests the Swing Line Lender or
the Lenders to make Loans hereunder or (b) subsection
3.5 as a date on which the Company requests the Issuing
Lender to issue a Letter of Credit hereunder.
"Bridge Commitment Letter": the Commitment Letter
and term sheet thereto dated as of May 8, 1997 by and
between Investcorp Investment Equity Limited, on its
behalf and on behalf of certain of its affiliates and
other investors and Xxxxx Xxxxxx Holdings, Bankers
Trust New York Corporation, The Chase Manhattan Bank
and Xxxxxxx Xxxxx Capital Corporation.
"Bridge Loan Agreement": the Bridge Loan
Agreement that may be entered into pursuant to the
Bridge Commitment Letter among Xxxxx Xxxxxx Holdings
Inc., Bankers Trust New York Corporation, Chase and
Xxxxxxx Xxxxx Capital Corporation and an affiliate of
AcquisitionCo, as the same may be amended, supplemented
or otherwise modified from time to time in accordance
with its terms and the terms of this Agreement.
"Bridge Subordinated Debt": the subordinated
bridge loans or exchange notes of the Company
outstanding from time to time pursuant to the Bridge
Loan Agreement or the Indenture contemplated thereby.
"Bridge Subordinated Debt Documents": the Bridge
Loan Agreement and the notes evidencing the Bridge
Subordinated Debt.
"Business Day": a day other than a Saturday,
Sunday or other day on which commercial banks in New
York City are authorized or required by law to close.
"Capital Expenditures": for any period, all
amounts which would, in accordance with GAAP, be set
forth as capital expenditures (exclusive of any amount
attributable to capitalized interest) on the
consolidated statement of cash flows or other similar
statement of the Company and its Subsidiaries for such
period and shall in any event include expenditures in
connection with acquisitions the Company elects to be
included as Capital Expenditures pursuant to subsection
8.6(g)(iii)(B) but shall exclude (x) any expenditures
made with the proceeds of condemnation or eminent
domain proceedings affecting real property or with
insurance proceeds and (y) any expenditures made in
connection with subsection 8.5(i); provided that any
Capital Expenditures financed with the proceeds of any
Indebtedness permitted hereunder (other than
Indebtedness incurred hereunder) shall be deemed to be
a Capital Expenditure only in the period in which, and
by the amount which, any principal of such Indebtedness
is repaid.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however
designated) of capital stock of a corporation, any and
all equivalent ownership interests in a Person (other
than a corporation) and any and all warrants or options
to purchase any of the foregoing.
"Cash Equivalents": (a) securities issued or
directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof having
maturities of not more than six months from the date of
acquisition, (b) certificates of deposit and eurodollar
time deposits with maturities of one year or less from
the date of acquisition, bankers' acceptances with
maturities not exceeding one year and overnight bank
deposits, in each case with any lender or with any
domestic (in the case of any investments, acquisitions
or holdings by the Company or its Domestic
Subsidiaries) commercial bank or trust company having
capital and surplus in excess of $300,000,000, (c)
repurchase obligations with a term of not more than
seven days for underlying securities of the types
described in clauses (a) and (b) entered into with any
financial institution meeting the qualifications
specified in clause (b) above, (d) commercial paper
having the highest rating obtainable from S&P or
Xxxxx'x and in each case maturing within one year after
date of acquisition; (e) investment funds investing 95%
of their assets in securities of the type described in
clauses (a)-(d) above, (f) readily marketable direct
obligations issued by any state of the United States or
any political subdivision thereof having one of the two
highest rating categories obtainable from either S&P or
Xxxxx'x and (g) indebtedness with a rating of "A" or
higher from S&P or "A2" or higher from Xxxxx'x.
"C/D Assessment Rate": for any day the net annual
assessment rate (rounded upwards, if necessary, to the
next 1/100 of 1%) determined by the Administrative
Agent to be payable on such day to the Federal Deposit
Insurance Corporation or any successor ("FDIC") for
FDIC's insuring time deposits made in Dollars at
offices of the Administrative Agent in the United
States.
"C/D Reserve Percentage": for any day as applied
to any Base CD Rate, that percentage (expressed as a
decimal) which is in effect on such day, as prescribed
by the Board for determining maximum reserve
requirement for a Depositary Institution (as defined in
Regulation D of the Board) in respect of new
non-personal time deposits in Dollars having a maturity
of 30 days or more.
"Change in Law": with respect to any Lender, the
adoption of, or change in, any law, rule, regulation,
policy, guideline or directive (whether or not having
the force of law) or any change in the interpretation
or application thereof by any Governmental Authority
having jurisdiction over such Lender, in each case
after the Closing Date.
"Change of Control": shall be considered to have
occurred if (i) at any time prior to an IPO by the
Company, Investcorp or any of its Affiliates (provided
that for purposes of this definition only the reference
to 25% in the definition of Affiliate contained in
subsection 1.1 shall be deemed to be 51%) or
Subsidiaries, any Person that is a member of the senior
management of the Company, or any entity the majority
of the equity ownership interests of which is owned by
such senior management of the Company, shall cease to
own, directly or indirectly, in the aggregate, at least
51% of the issued and outstanding voting stock of the
Company, free and clear of all Liens or (ii) at any
time after an IPO by the Company, if any Person (other
than Investcorp, any of its Affiliates or Subsidiaries,
any Person that is a member of the senior management of
the Company, any entity the majority of the equity
ownership interests of which is owned by such senior
management of the Company or any Person acting in the
capacity of an underwriter), whether singly or in
concert with one or more Persons, shall, directly or
indirectly, have acquired, or acquire the power (x) to
vote or direct the voting of 30% or more, on a fully
diluted basis, of the outstanding common stock of the
Company or (y) to elect or designate for election a
majority of the Board of Directors of the Company by
voting power, contract or otherwise.
"Chase": The Chase Manhattan Bank, a New York
banking corporation, and its successors.
"Closing Date": the date (which shall be on or
prior to August 15, 1997) on which the Lenders make
their initial Loans or the Issuing Lender issues the
initial Letter of Credit.
"Code": the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral": all assets of the Credit Parties,
now owned or hereafter acquired, upon which a Lien is
purported to be created by any Security Document.
"Commercial L/C": a commercial documentary Letter
of Credit under which the Issuing Lender agrees to make
payments in Dollars for the account of the Company, on
behalf of the Company or a Subsidiary, in respect of
obligations of the Company or such Subsidiary in
connection with the purchase of goods or services in
the ordinary course of business.
"Commitment": as to any Lender at any time, such
Lender's Swing Line Commitment, Term Loan Commitment
and Revolving Credit Commitment; collectively, as to
all the Lenders, the "Commitments".
"Commitment Percentage": as to any Lender at any
time, its Term Loan Commitment Percentage or its
Revolving Credit Commitment Percentage, as the context
may require.
"Commonly Controlled Entity": an entity, whether
or not incorporated, which is under common control with
the Company within the meaning of Section 4001 of ERISA
or is part of a group which includes the Company and
which is treated as a single employer under Section
414(b) or (c) of the Code.
"Company": as defined in the preamble hereto.
"Company Pledge Agreement": the Pledge Agreement,
substantially in the form of Exhibit G-1, to be made by
the Company in favor of the Administrative Agent, for
the ratable benefit of the Lenders, as the same may be
amended, modified or supplemented from time to time.
"Company Security Agreement": the Company
Security Agreement, substantially in the form of
Exhibit E-1, to be made by the Company in favor of the
Administrative Agent, for the ratable benefit of the
Lenders, as the same may be amended, modified or
supplemented from time to time.
"Consolidated Current Assets": at a particular
date, all amounts which would, in conformity with GAAP,
be included under current assets on a consolidated
balance sheet of the Company and its Subsidiaries as at
such date.
"Consolidated Current Liabilities": at a
particular date, all amounts which would, in conformity
with GAAP, be included under current liabilities on a
consolidated balance sheet of the Company and its
Subsidiaries as at such date, excluding the current
portion of long-term debt and the entire outstanding
principal amount of the Revolving Credit Loans.
"Consolidated EBITDA": for any period, the
Consolidated Net Income of the Company and its
Subsidiaries for such period, plus, without duplication
and to the extent reflected as a charge in the
statement of such Consolidated Net Income for such
period, the sum of (a) total income tax expense, (b)
interest expense, amortization or writeoff of debt
discount, debt issuance, warrant and other equity
issuance costs and commissions, discounts, redemption
premium and other fees and charges associated with the
Loans, letters of credit permitted hereunder, Financing
Leases, the Subordinated Debt or the acquisition or
repayment of any debt securities of the Company
permitted hereunder, and net costs associated with
Interest Rate Agreements to which the Company is a
party in respect of the Loans (including commitment
fees and other periodic bank charges), (c) costs of
surety bonds, (d) depreciation and amortization
expense, (e) amortization of inventory write-up under
APB 16, amortization of intangibles (including, but not
limited to, goodwill and costs of interest-rate caps
and the cost of non-competition agreements) and
organization costs, (f) non-cash amortization of
Financing Leases, (g) franchise taxes, (h) management
fees paid as contemplated by subsection 11.14 and
charges related to management fees prepaid in
connection with the Merger, (i) all cash dividend
payments (and non-cash dividend expenses) on any series
of preferred stock, (j) any expenses incurred in
connection with any merger, any acquisition or joint
venture permitted herein, (k) any other write-downs,
write-offs, minority interests and other non-cash
charges or expenses, (l) any non-cash restructuring
charge or reserve, (m) expenses and charges related to
any equity offering, (n) expenses consisting of
internal software development costs that are expensed
during the period but could have been capitalized in
accordance with GAAP, (o) securitization expense, and
(p) nonrecurring litigation or claim settlement charges
or expenses; provided that (i) the cumulative effect of
a change in accounting principles (effected either
through cumulative effect adjustment or a retroactive
application) shall be excluded, (ii) the net income of
any Person acquired in a pooling of interests
transaction for any period prior to the date of such
acquisition shall be excluded, (iii) the impact of
foreign currency and hedging translations and
transactions shall be excluded, and (iv) all other
extraordinary gains and losses shall be excluded.
"Consolidated Funded Indebtedness": at a
particular date, all Indebtedness (other than
Indebtedness described in clauses (b), (c), (d) or (f)
of the definition of "Indebtedness" included in this
subsection 1.1), of the Company and its Subsidiaries
determined on a consolidated basis in accordance with
GAAP at such date.
"Consolidated Net Income": for any period, net
income of the Company and its Subsidiaries, determined
on a consolidated basis in accordance with GAAP;
provided that: (i) the net income (but not loss) of any
Person that is not a Subsidiary or that is accounted
for by the equity method of accounting shall be
included only to the extent of the amount of dividends
or distributions paid in cash to the Company or a
wholly-owned Subsidiary and (ii) net income of any
Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar
distributions by that Subsidiary of that net income is
prohibited or not permitted at the date of
determination.
"Contingent Obligation": as to any Person, any
obligation of such Person guaranteeing or in effect
guaranteeing any Indebtedness ("primary obligations")
of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including,
without limitation, any obligation of such Person,
whether or not contingent (a) to purchase any such
primary obligation or any property constituting direct
or indirect security therefor, (b) to advance or supply
funds (i) for the purchase or payment of any such
primary obligation or (ii) to maintain working capital
or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary
obligor, (c) to purchase property, securities or
services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary
obligation or (d) otherwise to assure or hold harmless
the owner of any such primary obligation against loss
in respect thereof; provided, that the term Contingent
Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary
course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the
stated or determinable amount (based on the maximum
reasonably anticipated net liability in respect thereof
as determined by the Company in good faith) of the
primary obligation or portion thereof in respect of
which such Contingent Obligation is made or, if not
stated or determinable, the maximum reasonably
anticipated net liability in respect thereof (assuming
such Person is required to perform thereunder) as
determined by the Company in good faith.
"Contractual Obligation": as to any Person, any
provision of any security issued by such Person or of
any agreement, instrument or undertaking to which such
Person is a party or by which it or any of the property
owned by it is bound.
"Credit Documents": the collective reference to
this Agreement, the Notes, the Pledge Agreements, the
Security Agreements, the Mortgages and the Guarantees.
"Credit Parties": the collective reference to the
Company and each Subsidiary which may from time to time
be party to a Credit Document.
"Default": any of the events specified in Section
9, whether or not any requirement for the giving of
notice, the lapse of time, or both, has been satisfied.
"Dollars" and "$": dollars in lawful currency of
the United States.
"Domestic Subsidiary": any Subsidiary other than
a Foreign Subsidiary.
"Environmental Laws": any and all foreign,
Federal, state, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees or
requirements of any Governmental Authority or
requirements of law (including, without limitation,
common law) regulating or imposing liability or
standards of conduct concerning environmental or public
health protection matters, including, without
limitation, Hazardous Materials, as now or may at any
time hereafter be in effect.
"Environmental Permits": any and all permits,
licenses, registrations, notifications, exemptions and
any other authorizations required under any
Environmental Law.
"ERISA": the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"Eurocurrency Reserve Requirements": for any day
as applied to a Eurodollar Loan, the aggregate (without
duplication) of the rates (expressed as a decimal
fraction) of reserve requirements in effect on such day
(including, without limitation, basic, supplemental,
marginal and emergency reserves under any regulations
of the Board or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve
requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in
Regulation D of such Board) maintained by a member bank
of such System.
"Eurodollar Base Rate": with respect to each day
during each Interest Period pertaining to a Eurodollar
Loan, the rate per annum determined by the
Administrative Agent to be the arithmetic mean (rounded
to the nearest 1/100th of 1%) of the offered rates for
deposits in Dollars with a term comparable to such
Interest Period that appears on the Telerate British
Bankers Association Interest Settlement Rates Page (as
defined below) at approximately 11:00 A.M., London
time, on the second full Business Day preceding the
first day of such Interest Period; provided that if
there shall at any time no longer exist a Telerate
British Bankers Association Interest Settlement Rates
Page, "Eurodollar Base Rate" shall mean, with respect
to each day during each Interest Period pertaining to a
Eurodollar Loan, the rate per annum equal to the rate
at which Chase is offered Dollar deposits at or about
10:00 A.M., New York City time, two Business Days prior
to the beginning of such Interest Period in the
interbank eurodollar market where the eurodollar and
foreign currency and exchange operations in respect of
its Eurodollar Loans are then being conducted for
delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount
comparable to the amount of its Eurodollar Loan to be
outstanding during such Interest Period. "Telerate
British Bankers Assoc. Interest Settlement Rates Page"
shall mean the display designated as Page 3750 on the
Telerate System Incorporated Service (or such other
page as may replace such page on such service for the
purpose of displaying the rates at which Dollar
deposits are offered by leading banks in the London
interbank deposit market).
"Eurodollar Lending Office": as to any Lender the
office of such Lender which shall be making or
maintaining Eurodollar Loans.
"Eurodollar Loans": Loans at such time as they
are made and/or being maintained at a rate of interest
based upon a Eurodollar Rate.
"Eurodollar Rate": with respect to each day
during each Interest Period pertaining to a Eurodollar
Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward
to the nearest 1/100th of 1%):
Eurodollar Base Rate
____________________________________
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified
in Section 9, provided that any requirement for the
giving of notice, the lapse of time, or both, has been
satisfied.
"Excess Cash Flow": for any fiscal year of the
Company, commencing with the fiscal year ending on
December 31, 1998, the excess of (a) Consolidated
EBITDA for such fiscal year over (b) the sum, without
duplication, of (i) the aggregate amount actually paid
by the Company and its Subsidiaries in cash during such
fiscal year on account of capital expenditures or
acquisitions (other than capital expenditures made with
the proceeds of eminent domain or condemnation
proceedings to the extent such proceeds are not
included in the determination of Consolidated EBITDA
for such fiscal year), (ii) the aggregate amount of
payments of principal in respect of any Indebtedness
during such fiscal year (other than any such payments
of principal pursuant to subsections 4.4(b)(i), (ii),
(iii) and (iv) to the extent such amounts are not
included in Consolidated EBITDA or any such payments of
principal in respect of any revolving credit facility
to the extent that there is not an equivalent reduction
in such facility), (iii) increases in working capital
(calculated as Consolidated Current Assets at the end
of such fiscal year minus Consolidated Current
Liabilities as at the end of such fiscal year) of the
Company and its Subsidiaries for such fiscal year
(excluding any increase in cash or Cash Equivalents
above an increase deemed in good faith by the Company
to be necessary or desirable for the operation of the
business of the Company and its Subsidiaries), (iv)
cash interest expense (including fees paid in
connection with letters of credit and surety bonds and
commitment fees and other periodic bank charges) of the
Company, (v) the amount of taxes actually paid in cash
by the Company and its Subsidiaries for such fiscal
year either during such fiscal year or within a normal
payment period thereof, (vi) to the extent added to
Consolidated Net Income of the Company and its
Subsidiaries in calculating Consolidated EBITDA for
such fiscal year, the net cost of Interest Rate
Agreements, franchise taxes and management fees, (vii)
the net income of any Subsidiary shall be excluded to
the extent that such amount is accounted for under the
equity method to the extent cash dividends are not paid
or the declaration or payment of dividends is not
permitted without prior governmental approval (which
has not been obtained), (viii) the amount of cash
actually paid by the Company in connection with clauses
(b) (without duplication) (g), (h), (i), (j), (m), (n),
(o), (p) and clauses (iii) and (iv) of the proviso in
the definition of Consolidated EBITDA and (ix) the
amount of any cash actually paid in connection with
reserves established in accordance with GAAP; provided
that to the extent any amount of cash is actually paid
by the Company in connection with clause (p) in the
definition of Consolidated EBITDA in any fiscal year in
which the Company does not have Excess Cash Flow, such
amount, to the extent it was not applied to reduce
Consolidated EBITDA in determining the existence of
Excess Cash Flow in the year such amount was paid, may
be carried forward to subsequent fiscal years of the
Company and applied once to reduce the amount of any
Excess Cash Flow for any such fiscal years.
"Existing Credit Agreement": the Amended and
Restated Credit Agreement dated as of June 30, 1995, as
amended to date, among the Company, the financial
institutions listed on the signature pages therein and
each other financial institution which from time to
time becomes a party thereto in accordance with the
terms thereof, Chase, as administrative agent and
Citicorp North America, Inc., as collateral agent.
"Existing Shareholders": as defined in the
Recitals hereto.
"Fee Property": as defined in subsection 5.13.
"Financing Lease": (a) any lease of property,
real or personal, the obligations under which are
capitalized on a consolidated balance sheet of the
Company and its consolidated Subsidiaries and (b) any
other such lease to the extent that the then present
value of any rental commitment thereunder should, in
accordance with GAAP, be capitalized on a balance sheet
of the lessee.
"Foreign Subsidiary": any Subsidiary which is not
organized under the laws of the United States or any
state thereof or the District of Columbia.
"Form S-4": the Registration Statement on Form S-
4 dated May 21, 1997 filed by the Company with the
Securities and Exchange Commission in connection with
the Merger.
"GAAP": generally accepted accounting principles
in the United States in effect from time to time.
"Governmental Authority": any nation or
government, any state or other political subdivision
thereof or any entity exercising executive,
legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantees": the collective reference to the
Subsidiary Guarantee and any guarantee which may from
time to time be executed and delivered by a Subsidiary
pursuant to subsection 7.9.
"Hazardous Materials": any hazardous materials,
hazardous wastes, hazardous pesticides or hazardous or
toxic substances, and any other material that may give
rise to liability under any Environmental Law,
including, without limitation, asbestos, petroleum, any
other petroleum products (including gasoline, crude oil
or any fraction thereof), polychlorinated biphenyls and
urea-formaldehyde insulation.
"Indebtedness": of a Person, at a particular
date, (a) all indebtedness of such Person for borrowed
money or for the deferred purchase price of property or
services, (b) the undrawn face amount of all letters of
credit issued for the account of such Person and,
without duplication, all drafts drawn thereunder and
unpaid reimbursement obligations with respect thereto,
(c) all liabilities (other than Lease Obligations and
liabilities in connection with reserves established in
accordance with GAAP) secured by any Lien on any
property owned by such Person, even though such Person
has not assumed or become liable for the payment
thereof, (d) Financing Leases, (e) indebtedness
incurred in connection with any Receivables Facility
and (f) all indebtedness of such Person arising under
acceptance facilities, but excluding (i) trade and
other accounts payable and accrued expenses payable in
the ordinary course of business which are not overdue
for a period of more than 90 days or, if overdue for
more than 90 days, as to which a dispute exists and
adequate reserves in conformity with GAAP have been
established on the books of such Person and (ii)
letters of credit supporting the purchase of goods in
the ordinary course of business and expiring no more
than six months from the date of issuance; provided
that obligations in respect of Interest Rate Agreements
shall not be included in this definition.
"Insolvency": with respect to any Multiemployer
Plan, the condition that such Plan is insolvent within
the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of
Insolvency.
"Installment Payment Date": as defined in
subsection 4.4(c).
"Interest Coverage Ratio": on the last day of any
fiscal quarter of the Company, the ratio of (a)
Consolidated EBITDA for the period of four fiscal
quarters ending on such day (or, if shorter, the period
commencing on the first day of the first fiscal quarter
commencing on or after the Closing Date and ending on
such day); provided that for purposes of calculating
the Interest Coverage Ratio interest expense in respect
of a Receivables Facility shall not be added to
Consolidated Net Income to determine Consolidated
EBITDA to (b) cash interest expense (excluding (i) fees
payable on account of letters of credit, (ii) to the
extent included in interest expense in accordance with
GAAP, net costs associated with Interest Rate
Agreements to which the Company is party in respect of
the Loans and other periodic bank charges and
amortization of debt discount (including discount of
liabilities and reserves established under APB 16) and
(iii) interest expense in respect of a Receivables
Facility, costs of debt issuance and interest expense
on customer deposits)) for such period net of interest
income, in each case, for or during such period on a
consolidated basis for the Company and its
Subsidiaries; and provided, further, that on (A) the
last day of the 1997 fourth fiscal quarter of the
Company such ratio shall measure the period of two
fiscal quarters ending on such day and (B) on the last
day of the 1998 first fiscal quarter of the Company
such ratio shall measure the period of three fiscal
quarters ending on such day.
"Interest Payment Date": (a) as to Alternate Base
Rate Loans, the last day of each March, June, September
and December, commencing on the first such day to occur
after any Alternate Base Rate Loans are made or any
Eurodollar Loans are converted to Alternate Base Rate
Loans, (b) as to any Eurodollar Loan in respect of
which the Company has selected an Interest Period of
one, two or three months, the last day of such Interest
Period and (c) as to any Eurodollar Loan in respect of
which the Company has selected a longer Interest Period
than the periods described in clause (b), the last day
of each three calendar month interval during such
Interest Period and, in addition, the last day of such
Interest Period.
"Interest Period": with respect to any Eurodollar
Loan:
(a) initially, the period commencing
on, as the case may be, the Borrowing Date or
conversion date with respect to such Eurodollar
Loan and ending one, two, three or six months
thereafter (or, if and when available to all the
relevant Lenders, nine or twelve months
thereafter) as selected by the Company in its
notice of borrowing as provided in subsection 4.1
or its notice of conversion as provided in
subsection 4.2; and
(b) thereafter, each period commencing
on the last day of the next preceding Interest
Period applicable to such Eurodollar Loan and
ending one, two, three or six months thereafter
(or, if and when available to all the relevant
Lenders, nine or twelve months thereafter) as
selected by the Company by irrevocable notice to
the Administrative Agent not less than three
Business Days prior to the last day of the then
current Interest Period with respect to such
Eurodollar Loan;
provided that the foregoing provisions relating to
Interest Periods are subject to the following:
(A) if any Interest Period would
otherwise end on a day which is not a Business
Day, that Interest Period shall be extended to the
next succeeding 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 immediately
preceding Business Day;
(B) any Interest Period that would
otherwise extend beyond (i) in the case of an
Interest Period for a Term Loan, the final
Installment Payment Date shall end on such
Installment Payment Date or, if such Installment
Payment Date shall not be a Business Day, on the
next preceding Business Day; and (ii) in the case
of any Interest Period for a Revolving Credit
Loan, the Revolving Credit Termination Date shall
end on the Revolving Credit Termination Date, or
if the Revolving Credit Termination Date shall not
be a Business Day, on the next preceding Business
Day;
(C) if the Company shall fail to give
notice as provided above in clause (b), it shall
be deemed to have selected a conversion of a
Eurodollar Loan into an Alternate Base Rate Loan
(which conversion shall occur automatically and
without need for compliance with the conditions
for conversion set forth in subsection 4.2);
(D) any Interest Period that begins on
the last day of a calendar month (or on a day for
which there is no numerically corresponding day in
the calendar month at the end of such Interest
Period) shall end on the last Business Day of a
calendar month; and
(E) the Company shall select Interest
Periods so as not to require a prepayment (to the
extent practicable) or a scheduled payment of a
Eurodollar Loan during an Interest Period for such
Eurodollar Loan.
"Interest Rate Agreement": any interest rate swap
agreement, interest rate cap agreement, interest rate
collar agreement or other similar agreement or
arrangement.
"Investcorp": Investcorp S.A., a Luxembourg
corporation.
"Investment Grade Securities": (i) securities
issued or directly and fully guaranteed or insured by
the United States government or any agency or
instrumentality thereof (other than Cash Equivalents),
(ii) debt securities or debt instruments with a rating
of BBB- or higher by S&P or Baa3 by Moody's or the
equivalent of such rating by such rating organization,
or if no rating of S&P's or Moody's then exists, the
equivalent of such rating by any other nationally
recognized securities rating agency, but excluding any
debt securities or instruments constituting loans or
advances among the Company and its Subsidiaries and
(iii) investments in any fund that invests exclusively
in investments of the type described in clauses (i) and
(ii) which fund may also hold immaterial amounts of
cash pending investment and/or distribution.
"Investors": as defined in the Recitals hereto.
"IPO": any sale by the Company through a public
offering of its common (or other voting) stock pursuant
to an effective registration statement (other than a
registration statement on Form X-0, X-0 or any
successor or similar form) filed under the Securities
Act of 1933, as amended.
"Issuing Lenders": Chase and any of its
Affiliates, including Chase Manhattan Bank Delaware, as
issuer of the Letters of Credit; with respect to any
Letter of Credit, the term "Issuing Lender" shall mean
the Issuing Lender with respect to such Letter of
Credit.
"L/C Application": as defined in subsection
3.5(a).
"L/C Obligations": the obligations of the Company
to reimburse the Issuing Lender for any payments made
by the Issuing Lender under any Letter of Credit that
have not been reimbursed by the Company pursuant to
subsection 3.8(a).
"L/C Participating Interest": an undivided
participating interest in the face amount of each
issued and outstanding Letter of Credit and the L/C
Application relating thereto.
"L/C Participation Certificate": a certificate in
substantially the form of Exhibit I.
"Lease Obligations": of the Company and its
Subsidiaries, as of the date of any determination
thereof, the rental commitments of the Company and its
Subsidiaries determined on a consolidated basis, if
any, under leases for real and/or personal property
(net of rental commitments from sub-leases thereof),
excluding however, obligations under Financing Leases.
"Leased Properties": as defined in subsection
5.13.
"Letters of Credit": the collective reference to
the Commercial L/Cs and the Standby L/Cs; individually,
a "Letter of Credit".
"Leverage Ratio": as defined in subsection 8.9;
provided that for purposes of calculating the Leverage
Ratio on any date, the unencumbered (other than Liens
permitted pursuant to subsection 8.2(f)) cash and Cash
Equivalent balances of the Company and its Subsidiaries
on such date shall be deducted from the amount of
Consolidated Funded Indebtedness on such date.
"Lien": any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien
(statutory or other), or preference, priority or other
security agreement or preferential arrangement of any
kind or nature whatsoever (including, without
limitation, any conditional sale or other title
retention agreement, any financing lease having
substantially the same economic effect as any of the
foregoing, and the filing of any financing statement
under the Uniform Commercial Code or comparable law of
any jurisdiction in respect of any of the foregoing,
except for the filing of financing statements in
connection with Lease Obligations incurred by the
Company or its Subsidiaries to the extent that such
financing statements relate to the property subject to
such Lease Obligations).
"Loans": the collective reference to the Swing
Line Loans, the Term Loans and the Revolving Credit
Loans; individually, a "Loan".
"Merger": as defined in the Recitals hereto.
"Merger Agreement": as defined in the Recitals
hereto.
"Xxxxx'x": Xxxxx'x Investors Service, Inc.
"Mortgaged Properties": (a) the Real Property
designated as "Mortgaged Property" on Schedule 5.13 and
(b) any fee Real Property covered by a Mortgage
delivered pursuant to subsection 7.9(e).
"Mortgages": as defined in subsection 7.9(d).
"Multiemployer Plan": a Plan which is a
multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
"Net Proceeds": the aggregate cash proceeds
received by the Company or any Subsidiary in respect
of:
(a)(i) any issuance or borrowing of any
debt securities or loans by the Company or
any Subsidiary other than debt or loans
permitted to be incurred or borrowed pursuant
to subsection 8.1 or (ii) any issuance of
Capital Stock (excluding any such issuance to
any Investor or any Affiliate thereof);
(b) any Asset Sale, excluding (i) any
net proceeds received upon any condemnation
or exercise of rights of eminent domain to
the extent the same shall be deemed not to
constitute Net Proceeds pursuant to the
proviso to subsection 8.5(d) and (ii) any
proceeds of insurance received upon any
casualty or loss;
(c) any cash received in respect of
substantially like-kind exchanges of property
to the extent provided in the proviso to
subsection 8.5(e); and
(d) any cash payments received in
respect of promissory notes delivered to the
Company or such Subsidiary in respect of an
Asset Sale;
in each case net of (without duplication) (A) the
amount required to repay any Indebtedness (other than
the Loans) secured by a Lien on any assets of the
Company or a Subsidiary that are collateral for any
such debt securities or loans that are sold or
otherwise disposed of in connection with such Asset
Sale, (B) the reasonable expenses (including legal fees
and brokers' and underwriters' commissions, lenders
fees or credit enhancement fees, in any case, paid to
third parties or, to the extent permitted hereby,
Affiliates) incurred in effecting such issuance or sale
and (C) any taxes reasonably attributable to such sale
and reasonably estimated by the Company or such
Subsidiary to be actually payable.
"Non-Funding Lender": as defined in subsection
4.9(c).
"Notes": the collective reference to the Swing
Line Note, the Revolving Credit Notes and the Term Loan
Notes; each of the Notes, a "Note".
"Offering Memorandum": the offering memorandum
dated June 6, 1997 with respect to the Senior Discount
Notes and Senior Subordinated Notes.
"Participants": as defined in subsection 11.6(b).
"Participating Lender": any Lender (other than
the Issuing Lender) with respect to its L/C
Participating Interest in each Letter of Credit.
"Payment Sharing Notice": a written notice from
the Company or any Lender informing the Administrative
Agent that an Event of Default has occurred and is
continuing and directing the Administrative Agent to
allocate payments thereafter received from or on behalf
of the Company in accordance with the provisions of
subsection 4.9.
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA
or any successor.
"Permanent Subordinated Debt": (i) unsecured
notes or debentures of the Company, subordinated to the
prior payment of the Loans and the other obligations
under the Credit Documents, that may be issued by the
Company on or after the Closing Date, provided that
either (x) such notes or debentures have terms which
are as favorable to the Lenders as the terms set forth
in the Offering Memorandum and the conditions contained
in clauses (i)(y)(c) and (d) of this definition are met
or (y)(a) unless otherwise agreed to by the
Supermajority Lenders, no part of the principal amount
of any such notes or debentures shall have a scheduled
maturity date earlier than June 30, 2006, (b) unless
otherwise agreed to by the Required Lenders, (I) the
subordination provisions of which are as favorable to
the Lenders as such provisions set forth in the
Offering Memorandum, (II) the terms and conditions
thereof (including, without limitation, subordination,
covenant and events of default provisions thereof but
excluding any call protection provisions) taken as a
whole shall be at least as favorable to the Company and
the Lenders as such terms and conditions set forth in
the Bridge Commitment Letter (or in the Bridge Loan
Agreement if entered into by the parties thereto), and
(III) and the non-default cash interest rate thereon
shall not exceed 15% per annum and the total non-
default interest rate shall not exceed 17% per annum,
(c) no covenant contained in this Agreement or any of
the other Credit Documents would be violated on the
proposed issuance date after giving effect to (I) the
issuance of such notes or debentures, (II) the payment
of all issuance costs, commissions, discounts,
redemption premiums and other fees and charges
associated therewith, (III) the use of proceeds thereof
and (IV) the redemption, repayment, retirement and
repurchase of all Indebtedness of the Company and its
Subsidiaries to be redeemed, repaid or repurchased in
connection therewith and (d) substantially final drafts
of the documentation governing any such notes or
debentures, showing the terms thereof, shall have been
furnished to the Administrative Agent at least 5 days
prior to the date of issuance of such notes or
debentures and (ii) unsecured notes or debentures of
the Company, subordinated to the prior payment of the
Loans and the other obligations under the Credit
Documents, that may be issued by the Company to
refinance previously issued Permanent Subordinated
Debt, provided that (a) unless otherwise agreed to by
the Required Lenders, (I) no part of the principal
amount of any such notes or debentures shall have a
scheduled amortization date earlier then June 30, 2006
and (II) the interest rate and subordination provisions
shall be at least as favorable to the Company and the
Lenders as such provisions of refinanced Permanent
Subordinated Debt and the other terms and conditions
thereof (including, without limitation, the covenant
and event of default provisions thereof) taken as a
whole shall be at least as favorable to the Company and
the Lenders as such refinanced Permanent Subordinated
Debt and (b) the conditions contained in clauses
(i)(y)(c) and (d) of this definition shall be met.
"Permitted Liens": Liens permitted to exist under
subsection 8.2.
"Person": an individual, partnership,
corporation, business trust, joint stock company,
limited liability company, trust, unincorporated
association, joint venture, Governmental Authority or
other entity of whatever nature.
"Plan": at a particular time, any employee
benefit plan which is covered by ERISA and in respect
of which the Company or a Commonly Controlled Entity is
(or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"Pledge Agreements": the collective reference to
the Company Pledge Agreement and any pledge agreement
from time to time executed and delivered by the Company
or any Subsidiary providing for the pledge of the
Capital Stock of any Subsidiary pursuant to subsection
7.9.
"Real Property": each Fee Property and Leased
Property listed on Schedule 5.13.
"Receivables Facility": one or more non-recourse
receivables facilities providing for the sale,
encumbrance or other disposition, at any time or from
time to time, of all or a portion of the accounts
receivable of the Company or any of its Subsidiaries,
whether existing on the date of this Agreement or
hereafter arising.
"Receivables Facility Assets": accounts
receivable and related ancillary rights, including,
without limitation, any security interests or
guarantees securing the payment of such receivables, of
the Company or any of its Subsidiaries, whether
existing on the date hereof or hereafter arising, that
are sold, encumbered or disposed of at any time or from
time to time in connection with a Receivables Facility.
"Receivables SPV": a special purpose company
established by the Company or any of its Subsidiaries
and so existing solely for purposes of a Receivables
Facility.
"Refunded Swing Line Loans": as defined in
subsection 3.4(b).
"Register": as defined in subsection 11.6(d).
"Related Document": any agreement, certificate,
document or instrument relating to a Letter of Credit.
"Reorganization": with respect to any
Multiemployer Plan, the condition that such Plan is in
reorganization as such term is used in Section 4241 of
ERISA.
"Reportable Event": any of the events set forth
in Section 4043(c) of ERISA, other than those events as
to which the thirty day notice is waived under subpart
B of PBGC Reg. Section 4042.
"Required Lenders": at a particular time, the
holders of at least 51% of the sum of (i) the aggregate
unpaid principal amount of the Term Loans, if any, and
(ii) the Revolving Credit Commitments or, if the
Revolving Credit Commitments are terminated, the
aggregate unpaid principal amount of the Revolving
Credit Loans, and participations in Swing Line Loans
and the aggregate amount available to be drawn at such
time under all outstanding Letters of Credit and L/C
Obligations. The Term Loans and the Revolving Credit
Commitments of any Non-Funding Lender shall be
disregarded in determining Required Lenders at any
time.
"Requirement of Law": as to any Person, the
Articles or Certificate of Incorporation and By-Laws or
other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, order,
or determination of an arbitrator or a court or other
Governmental Authority, in each case, applicable to or
binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer": with respect to any
Person, the president, chief executive officer, the
chief operating officer, the chief financial officer,
treasurer, controller or any vice president of such
Person.
"Revolving Credit Commitment": as to any Lender,
its obligations to make Revolving Credit Loans to the
Company pursuant to subsection 3.1 and to purchase its
L/C Participating Interest in any Letter of Credit, in
an aggregate amount not to exceed the amount set forth
under such Lender's name in Schedule I opposite the
caption "Revolving Credit Commitment" or in Schedule 1
to the Assignment and Acceptance by which such Lender
acquired its Revolving Credit Commitment, as the same
may be reduced from time to time pursuant to subsection
4.3 or 4.4(b) or adjusted pursuant to subsection
11.6(c); collectively, as to all the Lenders, the
"Revolving Credit Commitments".
"Revolving Credit Commitment Percentage": as to
any Lender at any time, the percentage of the aggregate
Revolving Credit Commitments then constituted by such
Lender's Revolving Credit Commitment.
"Revolving Credit Commitment Period": the period
from and including the Closing Date to but not
including the Revolving Credit Termination Date.
"Revolving Credit Lender": any Lender with a
Revolving Credit Commitment.
"Revolving Credit Loan" and "Revolving Credit
Loans": as defined in subsection 3.1(a).
"Revolving Credit Note": as defined in subsection
4.13(e).
"Revolving Credit Termination Date": the earlier
of (a) June 30, 2003 and (b) such other earlier date as
the Revolving Credit Commitments shall terminate
hereunder.
"Security Agreements": the collective reference
to the Company Security Agreement, the Subsidiary
Security Agreement and any security agreement which may
from time to time be executed and delivered by a
Subsidiary of the Company pursuant to subsection 7.9.
"Security Documents": the collective reference to
the Pledge Agreements, the Security Agreements and the
Mortgages.
"Senior Discount Notes": the senior subordinated
discount notes (or any refinancing thereof permitted
hereunder) which shall be: (a) issued under the
Indenture, dated as of even date herewith between the
Company and Xxxxxx Trust and Savings Bank, as Trustee;
(b) not mandatorily redeemable or mandatorily
purchasable (except upon the occurrence of a change of
control and assets sales (as defined therein) at a
purchase price not in excess of the principal amount
thereof plus redemption premium, if any, plus accrued
and unpaid interest plus liquidated damages, if any) or
have any amortization or maturity prior to June 30,
2006; and (c) shall have material terms and conditions
as described in the Offering Memorandum.
"Senior Subordinated Notes": the senior
subordinated notes (or any refinancing thereof
permitted hereunder) which shall be: (a) issued under
the Indenture, dated as of even date herewith between
the Company and Xxxxxx Trust and Savings Bank, as
Trustee; (b) not mandatorily redeemable or mandatorily
purchasable (except upon the occurrence of a change of
control and assets sales (as defined therein) at a
purchase price not in excess of the principal amount
thereof plus redemption premium, if any, plus accrued
and unpaid interest plus liquidated damages, if any) or
have any amortization or maturity prior to June 30,
2006; and (c) shall have material terms and conditions
as described in the Offering Memorandum.
"Single Employer Plan": any Plan which is covered
by Title IV of ERISA, but which is not a Multiemployer
Plan.
"S&P": Standard and Poor's Ratings Services, a
division of XxXxxx-Xxxx Companies, Inc.
"Standby L/C": an irrevocable letter of credit
under which the Issuing Lender agrees to make payments
in Dollars for the account of the Company, on behalf of
the Company or any Subsidiary in respect of obligations
of the Company or such Subsidiary incurred pursuant to
contracts made or performances undertaken or to be
undertaken or like matters relating to contracts to
which the Company or such Subsidiary is or proposes to
become a party in the ordinary course of the Company's
or such Subsidiary's business, including, without
limiting the foregoing, for insurance purposes or in
respect of advance payments or as bid or performance
bonds or for any other purpose for which a standby
letter of credit might customarily be issued.
"Subordinated Debt": collectively, the Bridge
Subordinated Debt and the Permanent Subordinated Debt.
"Subsection 4.11(d)(2) Certificate": as defined
in subsection 4.11(d).
"Subsidiary": as to any Person, a corporation,
partnership, limited liability company or other entity
of which shares of stock of each class or other
interests having ordinary voting power (other than
stock or other interests having such power only by
reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of
such corporation, partnership or other entity are at
the time owned, or the management of which is otherwise
controlled, by such Person or by one or more
Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person. A Subsidiary
shall be deemed wholly-owned by a Person who owns
directly or indirectly all of the voting shares of
stock or other interests of such Subsidiary having
voting power under ordinary circumstances to vote for
directors or other managers of such corporation,
partnership or other entity, except for directors'
qualifying shares. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in
this Agreement shall refer to a Subsidiary or
Subsidiaries of the Company.
"Subsidiary Guarantee": the Subsidiary Guarantee,
substantially in the form of Exhibit F, to be made by
certain Domestic Subsidiaries of the Company (other
than any Receivable SPV) in favor of the Administrative
Agent for the ratable benefit of the Lenders, as the
same may be amended, modified or supplemented from time
to time.
"Subsidiary Pledge Agreement": the Subsidiary
Pledge Agreement, substantially in the form of Exhibit
G-2, to be made by certain Domestic Subsidiaries of the
Company (other than any Receivable SPV) in favor of the
Administrative Agent for the ratable benefit of the
Lenders, as the same may be amended, modified or
supplemented from time to time.
"Subsidiary Security Agreement": the Subsidiary
Security Agreement, substantially in the form of
Exhibit E-2, to be made by certain Domestic
Subsidiaries of the Company (other than any Receivables
SPV) in favor of the Administrative Agent for the
ratable benefit of the Lenders, as the same may be
amended, modified or supplemented from time to time.
"Supermajority Lenders": at a particular time,
the holders of at least 66-2/3% of the sum of (i) the
aggregate unpaid principal amount of the Term Loans, if
any, and (ii) the Revolving Credit Commitments or, if
the Revolving Credit Commitments are terminated, the
aggregate unpaid principal amount of the Revolving
Credit Loans, and participations in Swing Line Loans
and the aggregate amount available to be drawn at such
time under all outstanding Letters of Credit and L/C
Obligations. The Term Loans and the Revolving Credit
Commitments of any Non-Funding Lender shall be
disregarded in determining Supermajority Lenders at any
time.
"Swing Line Commitment": the Swing Line Lender's
obligation to make Swing Line Loans pursuant to
subsection 3.4.
"Swing Line Lender": Chase in its capacity as
lender of the Swing Line Loans.
"Swing Line Loan Participation Certificate": a
certificate in substantially the form of Exhibit I.
"Swing Line Loans": as defined in subsection
3.4(a).
"Swing Line Note": as defined in subsection
4.13(e).
"Term Loan" and "Term Loans": as defined in
subsection 2.1.
"Term Loan Commitment": as to any Lender, its
obligation to make a Term Loan to the Company pursuant
to subsection 2.1 in an aggregate amount not to exceed
the amount set forth under such Lender's name in
Schedule I opposite the caption "Term Loan Commitment"
or in Schedule 1 to the Assignment and Acceptance
pursuant to which a Lender acquires its Term Loan
Commitment, as the same may be adjusted pursuant to
subsection 11.6(c); collectively, as to all the
Lenders, the "Term Loan Commitments".
"Term Loan Commitment Percentage": as to any
Lender at any time, the percentage of the aggregate
Term Loan Commitments then constituted by such Lender's
Term Loan Commitment.
"Term Loan Note": as defined in subsection
4.13(e).
"Transferee": as defined in subsection 11.6(f).
"Type": as to any Loan, its nature as an
Alternate Base Rate Loan or Eurodollar Loan.
"Uniform Customs": the Uniform Customs and
Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500,
and any amendments thereof.
"United States": the United States of America.
"1996 Form 10-K": the annual report on Form 10-K
of the Company filed with the Securities and Exchange
Commission on March 20, 1997.
1.2 Other Definitional Provisions. (a)
Unless otherwise specified therein, all terms defined
in this Agreement shall have the defined meanings when
used in the Notes, any other Credit Document or any
certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in the Notes, any
other Credit Document and any certificate or other
document made or delivered pursuant hereto,
accounting terms relating to the Company and its
Subsidiaries not defined in subsection 1.1 and
accounting terms partly defined in subsection 1.1
to the extent not defined, shall have the
respective meanings given to them under GAAP. To
the extent there are any changes in GAAP from the
date of this Agreement, the financial covenants
set forth herein at the option of the Company will
either (i) continue to be determined in accordance
with GAAP in effect on the Closing Date, as
applicable, or (ii) be adjusted or reset to
reflect such changes in GAAP, such adjustments or
resets to be mutually agreed to by the Company and
the Administrative Agent.
(c) The words "hereof", "herein" and
"hereunder" and words of similar import when used
in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of
this Agreement, and section, subsection, schedule
and exhibit references are to this Agreement
unless otherwise specified.
(d) The meanings given to terms defined
herein shall be equally applicable to the singular
and plural forms of such terms.
SECTION 2. TERM LOANS
2.1 Term Loans. Subject to the terms and
conditions hereof, each Lender severally agrees to make
a loan in Dollars (individually, a "Term Loan"; and
collectively, the "Term Loans") to the Company on the
Closing Date, in an aggregate principal amount equal to
such Lender's Term Loan Commitment.
2.2 Repayment of Term Loans. The Company
shall repay the Term Loans as provided in subsection
4.4(c).
2.3 Use of Proceeds. The proceeds of the
Term Loans shall be used (a) to finance a portion of
the cash consideration payable in the Merger and other
payments pursuant to the Merger Agreement and to pay
fees, expenses and financing costs in connection
therewith, and (b) to refinance certain of the existing
Indebtedness of the Company and its Subsidiaries.
SECTION 3. AMOUNT AND TERMS OF REVOLVING
CREDIT COMMITMENTS
3.1 Revolving Credit Commitments. (a)
Subject to the terms and conditions hereof, each Lender
severally agrees to the extent of its Revolving Credit
Commitment to extend credit to the Company from time to
time on any Borrowing Date during the Revolving Credit
Commitment Period (i) by purchasing an L/C
Participating Interest in each Letter of Credit issued
by the Issuing Lender and (ii) by making loans in
Dollars (individually, such a Loan is a "Revolving
Credit Loan", and collectively such Loans are the
"Revolving Credit Loans") to the Company from time to
time. Notwithstanding the above, in no event shall any
Revolving Credit Loans be made, or Letter of Credit be
issued, if the aggregate amount of the Revolving Credit
Loans to be made or Letter of Credit to be issued
would, after giving effect to the use of proceeds, if
any, thereof, exceed the aggregate Available Revolving
Credit Commitments nor shall any Letter of Credit be
issued if after giving effect thereto the sum of the
undrawn amount of all outstanding Letters of Credit and
the amount of all L/C Obligations would exceed
$25,000,000. During the Revolving Credit Commitment
Period, the Company may use the Revolving Credit
Commitments by borrowing, prepaying the Revolving
Credit Loans in whole or in part, and reborrowing, all
in accordance with the terms and conditions hereof,
and/or by having the Issuing Lender issue Letters of
Credit, having such Letters of Credit expire undrawn
upon or if drawn upon, reimbursing the Issuing Lender
for such drawing, and having the Issuing Lender issue
new Letters of Credit.
(b) Each borrowing of Revolving Credit
Loans pursuant to the Revolving Credit Commitments
shall be in an aggregate principal amount of the
lesser of (i) $1,000,000 or a whole multiple of
$100,000 in excess thereof in the case of
Alternate Base Rate Loans, and $2,000,000 or a
whole multiple of $1,000,000 in excess thereof, in
the case of Eurodollar Loans and (ii) the
Available Revolving Credit Commitments, except
that any borrowing of Revolving Credit Loans to be
used solely to pay a like amount of Swing Line
Loans may be in the aggregate principal amount of
such Swing Line Loans.
3.2 Commitment Fee. The Company agrees to
pay to the Administrative Agent for the account of each
Lender (other than any Non-Funding Lender) a commitment
fee from and including the Closing Date to and
including the Revolving Credit Termination Date
computed at the applicable rate (on each Adjustment
Date pursuant to the guidelines set forth in the
definition of Applicable Margin) per annum set forth on
Schedule II on the average daily amount of the
Available Revolving Credit Commitment of such Lender
during the period for which payment is made (whether or
not the Company shall have satisfied the applicable
conditions to borrow or for the issuance of a Letter of
Credit set forth in Section 6); provided that from the
Closing Date until the first Adjustment Date the
commitment fee shall be 0.50% per annum. Such
commitment fee shall be payable quarterly in arrears on
the last day of each March, June, September and
December and on the Revolving Credit Termination Date,
commencing on the later of (x) the first such date to
occur on or following the Closing Date (or, if earlier,
the Revolving Credit Termination Date) or (y) September
30, 1997.
3.3 Proceeds of Revolving Credit Loans. The
Company shall use the proceeds of Revolving Credit
Loans (a) as set forth in subsection 2.3, (b) for
working capital purposes of the Company and its
Subsidiaries and (c) to finance acquisitions permitted
by subsection 8.6(g).
3.4 Swing Line Commitment. (a) Subject to
the terms and conditions hereof, the Swing Line Lender
agrees, so long as the Administrative Agent has not
received notice that an Event of Default has occurred
and is continuing, to make swing line loans
(individually, a "Swing Line Loan"; collectively, the
"Swing Line Loans") to the Company from time to time
during the Revolving Credit Commitment Period in an
aggregate principal amount at any one time outstanding
not to exceed $10,000,000, provided that no Swing Line
Loan may be made if the aggregate principal amount of
the Swing Line Loans to be made would exceed the
aggregate Available Revolving Credit Commitments at
such time. Amounts borrowed by the Company under this
subsection 3.4 may be repaid and, through but excluding
the Revolving Credit Termination Date, reborrowed. All
Swing Line Loans shall be made as Alternate Base Rate
Loans and shall not be entitled to be converted into
Eurodollar Loans. The Company shall give the Swing
Line Lender irrevocable notice (which notice must be
received by the Swing Line Lender prior to 3:00 p.m.,
New York City time) on the requested Borrowing Date
specifying the amount of each requested Swing Line
Loan, which shall be in an aggregate minimum amount of
$250,000 or a whole multiple of $100,000 in excess
thereof. The proceeds of each Swing Line Loan will be
made available by the Swing Line Lender to the Company
by crediting the account of the Company at the office
of the Swing Line Lender with such proceeds. The
proceeds of Swing Line Loans may be used solely for the
purposes referred to in subsection 3.3.
(b) The Swing Line Lender at any time in
its sole and absolute discretion may, and on the
fifteenth day (or if such day is not a Business
Day, the next Business Day) and last Business Day
of each month shall, on behalf of the Company
(which hereby irrevocably directs the Swing Line
Lender to act on its behalf) request each
Revolving Credit Lender, including the Swing Line
Lender, to make a Revolving Credit Loan in an
amount equal to such Lender's Revolving Credit
Commitment Percentage of the amount of the Swing
Line Loans (the "Refunded Swing Line Loans")
outstanding on the date such notice is given.
Unless any of the events described in paragraph
(f) of Section 9 shall have occurred (in which
event the procedures of paragraph (c) of this
subsection 3.4 shall apply) each such Lender shall
make the proceeds of its Revolving Credit Loan
available to the Swing Line Lender for the account
of the Swing Line Lender at the office of the
Swing Line Lender specified in subsection 11.2 (or
such other location as the Swing Line Lender may
direct) prior to 12:00 noon (New York City time)
in funds immediately available on the Business Day
next succeeding the date such notice is given.
The proceeds of such Revolving Credit Loans shall
be immediately applied to repay the Refunded Swing
Line Loans.
(c) If prior to the making of a
Revolving Credit Loan pursuant to paragraph (b) of
this subsection 3.4 one of the events described in
paragraph (f) of Section 9 shall have occurred,
each Revolving Credit Lender will, on the date
such Loan was to have been made, purchase an
undivided participating interest in the Refunded
Swing Line Loan in an amount equal to its
Revolving Credit Commitment Percentage of such
Refunded Swing Line Loan. Each such Lender will
immediately transfer to the Swing Line Lender in
immediately available funds, the amount of its
participation and upon receipt thereof the Swing
Line Lender will deliver to such Lender a Swing
Line Loan Participation Certificate dated the date
of receipt of such funds and in such amount.
(d) Whenever, at any time after the
Swing Line Lender has received from any Revolving
Credit Lender such Lender's participating interest
in a Refunded Swing Line Loan, the Swing Line
Lender receives any payment on account thereof,
the Swing Line Lender will distribute to such
Lender its participating interest in such amount
(appropriately adjusted, in the case of interest
payments, to reflect the period of time during
which such Lender's participating interest was
outstanding and funded) in like funds as received;
provided that in the event that such payment
received by the Swing Line Lender is required to
be returned, such Lender will return to the Swing
Line Lender any portion thereof previously
distributed by the Swing Line Lender to it in like
funds as such payment is required to be returned
by the Swing Line Lender.
(e) The obligation of each Revolving
Credit Lender to purchase participating interests
pursuant to subsection 3.4(c) shall be absolute
and unconditional and shall not be affected by any
circumstance, including, without limitation, (i)
any set-off, counterclaim, recoupment, defense or
other right which such Lender may have against the
Swing Line Lender, the Company or any other Person
for any reason whatsoever; (ii) the occurrence or
continuance of an Event of Default; (iii) any
adverse change in the condition (financial or
otherwise) of the Company; (iv) any breach of this
Agreement by the Company or any other Lender; or
(v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the
foregoing.
3.5 Issuance of Letters of Credit. (a) The
Company may from time to time request the Issuing
Lender to issue a Standby L/C or a Commercial L/C by
delivering to the Administrative Agent at its address
specified in subsection 11.2 a letter of credit
application in the Issuing Lender's then customary form
(the "L/C Application") completed to the satisfaction
of the Issuing Lender, together with the proposed form
of such Letter of Credit (which shall comply with the
applicable requirements of paragraph (b) below) and
such other certificates, documents and other papers and
information as the Issuing Lender may reasonably
request; provided that if the Issuing Lender informs
the Company that it is for any reason unable to open
such Letter of Credit, the Company may request any
Lender to open such Letter of Credit upon the same
terms offered to the Issuing Lender and each reference
to the Issuing Lender for purposes of subsections 3.5
through 3.14, 6.1 and 6.2 shall be deemed to be a
reference to such issuing Lender. The letters of
credit identified on Schedule 3.5 shall at all times on
and after the Closing Date be deemed to be a "Letter of
Credit" or "Letters of Credit" for all purposes of this
Agreement and the other Loan Documents.
(b) Each Standby L/C and Commercial L/C
issued hereunder shall, among other things, (i) be
in such form requested by the Company as shall be
acceptable to the Issuing Lender in its sole
discretion and (ii) have an expiry date occurring
not later than 365 days after the date of issuance
of such Letter of Credit and may be automatically
renewed on its expiry date for an additional
period equal to the initial term, but in no case
shall any Letter of Credit have an expiry date
occurring later than the Revolving Credit
Termination Date. Each L/C Application and each
Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent
therewith, the laws of the State of New York.
3.6 Participating Interests. Effective in
the case of each Standby L/C and Commercial L/C (if
applicable) as of the date of the opening thereof, the
Issuing Lender agrees to allot and does allot, to
itself and each other Revolving Credit Lender, and each
such Lender severally and irrevocably agrees to take
and does take in such Letter of Credit and the related
L/C Application (if applicable), an L/C Participating
Interest in a percentage equal to such Lender's
Revolving Credit Commitment Percentage.
3.7 Procedure for Opening Letters of Credit.
The Issuing Lender will notify each Lender after the
end of each calendar month of any L/C Applications
received by the Issuing Lender from the Company during
such month. Upon receipt of any L/C Application from
the Company, the Issuing Lender will process such L/C
Application, and the other certificates, documents and
other papers delivered to the Issuing Lender in
connection therewith, in accordance with its customary
procedures and, subject to the terms and conditions
hereof, shall promptly open such Letter of Credit by
issuing the original of such Letter of Credit to the
beneficiary thereof and by furnishing a copy thereof to
the Company and, after the end of the calendar month in
which such Letter of Credit was opened, to the other
Lenders, provided that no such Letter of Credit shall
be issued if subsection 3.1 would be violated thereby.
3.8 Payments in Respect of Letters of
Credit. (a) The Company agrees forthwith upon demand
by the Issuing Lender and otherwise in accordance with
the terms of the L/C Application relating thereto, (i)
to reimburse the Issuing Lender for any payment made by
the Issuing Lender under any Letter of Credit issued
for the account of the Company and (ii) to pay interest
on any unreimbursed portion of any such payment from
the date of such payment until reimbursement in full
thereof at a rate per annum equal to (A) on or prior to
the date which is one Business Day after the day on
which the Issuing Lender demands reimbursement from the
Company for such payment, the Alternate Base Rate plus
the Applicable Margin for the Revolving Credit Loans
and (B) thereafter, the Alternate Base Rate plus the
Applicable Margin for the Revolving Credit Loans plus
2%.
(b) In the event that the Issuing Lender
makes a payment under any Letter of Credit and is
not reimbursed in full therefor forthwith upon
demand of the Issuing Lender, and otherwise in
accordance with the terms of the L/C Application
relating to such Letter of Credit, the Issuing
Lender will promptly notify each other Revolving
Credit Lender. Forthwith upon its receipt of any
such notice, each such other Lender will transfer
to the Issuing Lender, in immediately available
funds, an amount equal to such other Lender's pro
rata share (based on its Revolving Credit
Commitment) of the L/C Obligation arising from
such unreimbursed payment. Promptly, upon its
receipt from such other Lender of such amount, the
Issuing Lender will complete, execute and deliver
to such other Lender an L/C Participation
Certificate dated the date of such receipt and in
such amount.
(c) Whenever, at any time after the
Issuing Lender has made a payment under any Letter
of Credit and has received from any other
Revolving Credit Lender such other Lender's pro
rata share of the L/C Obligation arising
therefrom, the Issuing Lender receives any
reimbursement on account of such L/C Obligation or
any payment of interest on account thereof, the
Issuing Lender will promptly distribute to such
other Lender its pro rata share thereof in like
funds as received; provided that in the event that
the receipt by the Issuing Lender of such
reimbursement or such payment of interest (as the
case may be) is required to be returned, such
other Lender will return to the Issuing Lender any
portion thereof previously distributed by the
Issuing Lender to it in like funds as such
reimbursement or payment is required to be
returned by the Issuing Lender.
3.9 Letter of Credit Fees. (a) In lieu of
any letter of credit commissions and fees provided for
in any L/C Application relating to Standby or
Commercial L/Cs (other than standard issuance,
amendment and negotiation fees), the Company agrees to
pay the Administrative Agent, for the account of the
Issuing Lender and the Participating Lenders, with
respect to each Standby or Commercial L/C issued for
the account of the Company, a Standby or Commercial L/C
fee, as the case may be, equal to the Applicable Margin
for Revolving Credit Loans which are Eurodollar Loans
per annum (of which the Issuing Lender shall retain for
its own account, as the issuing bank and not on account
of its L/C Participating Interest therein, 1/4 of 1%
per annum) on the daily average amount available to be
drawn under each Standby L/C in the case of a Standby
L/C and on the maximum face amount of each Commercial
L/C in the case of a Commercial L/C, in either case,
payable, in arrears, on the last day of each fiscal
quarter of the Company. The Administrative Agent will
disburse any Standby or Commercial L/C fees received
pursuant to this subsection 3.9(a) to the respective
Lenders promptly following the receipt of any such fees
in the case of a Standby L/C and, in the case of a
Commercial L/C, following the end of the calendar month
in which such Commercial L/C fees were received.
Notwithstanding the foregoing, the Company agrees to
pay standard issuance, amendment and negotiation fees
to the Issuing Lender.
(b) For purposes of any payment of fees
required pursuant to this subsection 3.9, the
Administrative Agent agrees to provide to the
Company a statement of any such fees to be so
paid; provided that the failure by the
Administrative Agent to provide the Company with
any such invoice shall not relieve the Company of
its obligation to pay such fees.
3.10 Letter of Credit Reserves. (a) If any
Change in Law shall either (i) impose, modify, deem or
make applicable any reserve, special deposit,
assessment or similar requirement against letters of
credit issued by the Issuing Lender or (ii) impose on
the Issuing Lender any other condition regarding this
Agreement (with respect to Letters of Credit) or any
Letter of Credit, and the result of any event referred
to in clause (i) or (ii) above shall be to increase the
cost of the Issuing Lender of issuing or maintaining
any Letter of Credit (which increase in cost shall be
the result of the Issuing Lender's reasonable
allocation of the aggregate of such cost increases
resulting from such events), then, upon demand by the
Issuing Lender, the Company shall immediately pay to
the Issuing Lender, from time to time as specified by
the Issuing Lender, additional amounts which shall be
sufficient to compensate the Issuing Lender for such
increased cost, together with interest on each such
amount from the date demanded until payment in full
thereof at a rate per annum equal to the rate
applicable to Alternate Base Rate Loans pursuant to
subsection 4.5(b). The Company shall not be required
to make any payments to the Issuing Lender for any
additional amounts pursuant to this subsection 3.10(a)
unless the Issuing Lender has given written notice to
the Company of its intent to request such payments
prior to or within 60 days after the date on which the
Issuing Lender became entitled to claim such amounts.
A certificate, setting forth in reasonable detail the
calculation of the amounts involved, submitted by the
Issuing Lender to the Company concurrently with any
such demand by the Issuing Lender, shall be conclusive,
absent manifest error, as to the amount thereof.
(b) In the event that any Change in Law
with respect to the Issuing Lender shall, in the
opinion of the Issuing Lender, require that any
obligation under any Letter of Credit be treated
as an asset or otherwise be included for purposes
of calculating the appropriate amount of capital
to be maintained by the Issuing Lender or any
corporation controlling the Issuing Lender, and
such Change in Law shall have the effect of
reducing the rate of return on the Issuing
Lender's or such corporation's capital, as the
case may be, as a consequence of the Issuing
Lender's obligations under such Letter of Credit
to a level below that which the Issuing Lender or
such corporation, as the case may be, could have
achieved but for such Change in Law (taking into
account the Issuing Lender's or such corporation's
policies, as the case may be, with respect to
capital adequacy) by an amount deemed by the
Issuing Lender to be material, then from time to
time following notice by the Issuing Lender to the
Company of such Change in Law, within 15 days
after demand by the Issuing Lender, the Company
shall pay to the Issuing Lender such additional
amount or amounts as will compensate the Issuing
Lender or such corporation, as the case may be,
for such reduction. The Issuing Lender agrees
that, upon the occurrence of any event giving rise
to the operation of paragraph (a) or (b) of this
subsection 3.10 with respect to the Issuing
Lender, it will, if requested by the Company and
to the extent permitted by law or by the relevant
Governmental Authority, endeavor in good faith to
avoid or minimize the increase in costs or
reduction in payments resulting from such event;
provided that such avoidance or minimization can
be made in such a manner that the Issuing Lender,
in its sole determination, suffers no economic,
legal or regulatory disadvantage. The Company
shall not be required to make any payments to the
Issuing Lender for any additional amounts pursuant
to this subsection 3.10(b) unless the Issuing
Lender has given written notice to the Company of
its intent to request such payments prior to or
within 60 days after the date on which the Issuing
Lender became entitled to claim such amounts. A
certificate, in reasonable detail setting forth
the calculation of the amounts involved, submitted
by the Issuing Lender to the Company concurrently
with any such demand by the Issuing Lender, shall
be conclusive, absent manifest error, as to the
amount thereof.
(c) The Company and each Participating
Lender agree that the provisions of the foregoing
paragraphs (a) and (b) shall apply equally to each
Participating Lender in respect of its L/C
Participating Interest in such Letter of Credit,
as if the references in such paragraphs and
provisions referred to, where applicable, such
Participating Lender or, in the case of paragraph
(b), any corporation controlling such
Participating Lender.
3.11 Further Assurances. The Company hereby
agrees, from time to time, to do and perform any and
all acts and to execute any and all further instruments
reasonably requested by the Issuing Lender more fully
to effect the purposes of this Agreement and the
issuance of Letters of Credit hereunder.
3.12 Obligations Absolute. The payment
obligations of the Company under this Agreement with
respect to the Letters of Credit shall be unconditional
and irrevocable and shall be paid strictly in
accordance with the terms of this Agreement under all
circumstances, including, without limitation, the
following circumstances:
(i) the existence of any claim, set-off,
defense or other right which the Company or any of
its Subsidiaries may have at any time against any
beneficiary, or any transferee, of any Letter of
Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting),
the Issuing Lender, the Administrative Agent or
any Lender, or any other Person, whether in
connection with this Agreement, any Credit
Document, the transactions contemplated herein, or
any unrelated transaction;
(ii) any statement or any other document
presented under any Letter of Credit proving to be
forged, fraudulent or invalid or any statement
therein being untrue or inaccurate in any respect;
(iii) payment by the Issuing Lender
under any Letter of Credit against presentation of
a draft or certificate or other document which
does not comply with the terms of such Letter of
Credit or is insufficient in any respect, except
where such payment constitutes gross negligence or
willful misconduct on the part of the Issuing
Lender; or
(iv) any other circumstances or
happening whatsoever, whether or not similar to
any of the foregoing, except for any such
circumstances or happening constituting gross
negligence or willful misconduct on the part of
the Issuing Lender.
3.13 Assignments. No Participating Lender's
participation in any Letter of Credit or any of its
rights or duties hereunder shall be subdivided,
assigned or transferred (other than in connection with
a transfer of part or all of such Participating
Lender's Revolving Credit Commitment in accordance with
subsection 11.6(c)) without the prior written consent
of the Issuing Lender, which consent will not be
unreasonably withheld. Such consent may be given or
withheld without the consent or agreement of any other
Participating Lender. Notwithstanding the foregoing, a
Participating Lender may subparticipate its L/C
Participating Interest without obtaining the prior
written consent of the Issuing Lender.
3.14 Participations. The obligation of each
Revolving Credit Lender to purchase participating
interests pursuant to subsection 3.6 shall be absolute
and unconditional and shall not be affected by any
circumstance, including, without limitation, (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; (iii) any adverse change in the
condition (financial or otherwise) of the Company; (iv)
any breach of this Agreement by the Company or any
other Lender; or (v) any other circumstance, happening
or event whatsoever, whether or not similar to any of
the foregoing.
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS
4.1 Procedure for Borrowing. (a) The
Company may borrow under the Commitments on any
Business Day, provided that, with respect to any
borrowing, the Company shall give the Administrative
Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 12:00 noon (or,
with respect to Swing Line Loans, 3:00 p.m.), New York
City time, (i) three Business Days prior to the
requested Borrowing Date if all or any part of the
Loans are to be Eurodollar Loans and (ii) one Business
Day prior to the requested Borrowing Date (or, in the
case of Swing Line Loans and, if the Closing Date
occurs on the date this Agreement is executed and
delivered, Loans made on the Closing Date, on the
requested Borrowing Date) if the borrowing is to be
solely of Alternate Base Rate Loans) and specifying (A)
the amount of the borrowing, (B) whether such Loans are
initially to be Eurodollar Loans or Alternate Base Rate
Loans or a combination thereof, (C) if the borrowing is
to be entirely or partly Eurodollar Loans, the length
of the Interest Period for such Eurodollar Loans and
(D) whether the Loan is a Term Loan, a Swing Line Loan
or a Revolving Credit Loan. Upon receipt of such
notice the Administrative Agent shall promptly notify
each Lender. Not later than 12:00 noon, New York City
time, on the Borrowing Date specified in such notice,
each Lender shall make available to the Administrative
Agent at the office of the Administrative Agent
specified in subsection 11.2 (or at such other location
as the Administrative Agent may direct) an amount in
immediately available funds equal to the amount of the
Loan to be made by such Lender (except that proceeds of
Swing Line Loans will be made available to the Company
in accordance with subsection 3.4(a)). Loan proceeds
received by the Administrative Agent hereunder shall
promptly be made available to the Company by the
Administrative Agent's crediting the account of the
Company, at the office of the Administrative Agent
specified in subsection 11.2, with the aggregate amount
actually received by the Administrative Agent from the
Lenders and in like funds as received by the
Administrative Agent.
(b) Any borrowing of Eurodollar Loans
hereunder shall be in such amounts and be made
pursuant to such elections so that, after giving
effect thereto, (i) the aggregate principal amount
of all Eurodollar Loans having the same Interest
Period shall not be less than $2,000,000 or a
whole multiple of $1,000,000 in excess thereof and
(ii) no more than sixteen Interest Periods shall
be in effect at any one time.
4.2 Conversion and Continuation Options.
(a) Subject to subsection 4.12, the Company may elect
from time to time to convert Eurodollar Loans into
Alternate Base Rate Loans by giving the Administrative
Agent irrevocable notice of such election, to be
received by the Administrative Agent prior to 12:00
noon, New York City time, at least three Business Days
prior to the proposed conversion date. The Company may
elect from time to time to convert all or a portion of
the Alternate Base Rate Loans (other than Swing Line
Loans) then outstanding to Eurodollar Loans by giving
the Administrative Agent irrevocable notice of such
election, to be received by the Administrative Agent
prior to 12:00 noon, New York City time, at least three
Business Days prior to the proposed conversion date,
specifying the Interest Period selected therefor, and,
if no Default or Event of Default has occurred and is
continuing, such conversion shall be made on the
requested conversion date or, if such requested
conversion date is not a Business Day, on the next
succeeding Business Day. Upon receipt of any notice
pursuant to this subsection 4.2, the Administrative
Agent shall promptly notify each Lender thereof. All
or any part of the outstanding Loans (other than Swing
Line Loans) may be converted as provided herein,
provided that partial conversions of Alternate Base
Loans shall be in the aggregate principal amount of
$1,000,000 or a whole multiple of $100,000 in excess
thereof and the aggregate principal amount of the
resulting Eurodollar Loans outstanding in respect of
any one Interest Period shall be at least $2,000,000 or
a whole multiple of $1,000,000 in excess thereof.
(b) Any Eurodollar Loans may be
continued as such upon the expiration of the then
current Interest Period with respect thereto by
the Company giving notice to the Administrative
Agent, in accordance with the applicable
provisions of the term "Interest Period" set forth
in subsection 1.1, of the length of the next
Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan may be continued
as such (i) when any Event of Default has occurred
and is continuing and the Administrative Agent or
the Required Lenders have, by written notice to
the Company, determined that such a continuation
is not appropriate, (ii) if, after giving effect
thereto, subsection 4.1(b) would be contravened or
(iii) after the date that is one month prior to
the Revolving Credit Termination Date (in the case
of continuations of Revolving Credit Loans) or the
final Installment Payment Date of the Term Loans.
4.3 Changes of Commitment Amounts. (a) The
Company shall have the right, upon not less than three
Business Days' notice to the Administrative Agent, to
terminate or from time to time to permanently reduce
the Revolving Credit Commitments, subject to the
provisions of this subsection 4.3. To the extent, if
any, that the sum of the amount of the Revolving Credit
Loans, Swing Line Loans and L/C Obligations then
outstanding and the amounts available to be drawn under
outstanding Letters of Credit exceeds the amount of the
Revolving Credit Commitments as then reduced, the
Company shall be required to make a prepayment equal to
such excess amount, the proceeds of which shall be
applied, first, to payment of the Swing Line Loans then
outstanding, second, to payment of the Revolving Credit
Loans then outstanding, third, to payment of any L/C
Obligations then outstanding, and fourth, to cash
collateralize any outstanding Letters of Credit on
terms reasonably satisfactory to the Administrative
Agent. Any such termination of the Revolving Credit
Commitments shall be accompanied by prepayment in full
of the Revolving Credit Loans, Swing Line Loans and L/C
Obligations then outstanding and by cash
collateralization of any outstanding Letters of Credit
on terms reasonably satisfactory to the Administrative
Agent. Upon termination of the Revolving Credit
Commitments, any Letter of Credit then outstanding that
has been so cash collateralized shall no longer be
considered a "Letter of Credit" as defined in
subsection 1.1 and any L/C Participating Interests
heretofore granted by the Issuing Lender to the Lenders
in such Letter of Credit shall be deemed terminated
(subject to automatic reinstatement in the event that
such cash collateral is returned and the Issuing Lender
is not fully reimbursed for any such L/C Obligations)
but the Letter of Credit fees payable under subsection
3.9 shall continue to accrue to the Issuing Lender and
the Participating Lenders (or, in the event of any such
automatic reinstatement, as provided in subsection 3.9)
with respect to such Letter of Credit until the expiry
thereof (provided that in lieu of paying a Standby or
Commercial L/C fee, as the case may be, equal to the
Applicable Margin for Revolving Credit Loans which are
Eurodollar Loans per annum, the Company shall pay to
the Administrative Agent an amount equal to .25% per
annum).
(b) In the case of termination of the
Revolving Credit Commitments, interest accrued on
the amount of any prepayment relating thereto and
any unpaid commitment fee accrued hereunder shall
be paid on the date of such termination. Any such
partial reduction of the Revolving Credit
Commitments shall be in an amount of $2,000,000 or
a whole multiple of $1,000,000 in excess thereof
and shall, in each case, reduce permanently the
amount of the Revolving Credit Commitments then in
effect.
4.4 Optional and Mandatory Prepayments;
Repayments of Term Loans. (a) Subject to subsection
4.12, the Company may at any time and from time to time
prepay Loans, in whole or in part, without premium or
penalty, by irrevocable notice to the Administrative
Agent by 10:00 a.m., New York City time, on the same
Business Day (or, in the case of Swing Line Loans, by
irrevocable notice to the Administrative Agent by 12:00
noon, New York City time, on the same Business Day) in
the case of Alternate Base Rate Loans, and three
Business Days' irrevocable notice to the Administrative
Agent in the case of Eurodollar Loans, specifying the
date and amount of prepayment and whether the
prepayment is of Revolving Credit Loans or Term Loans.
Upon receipt of such notice the Administrative Agent
shall promptly notify each Lender thereof. If such
notice is given, the Company shall make such
prepayment, and the payment amount specified in such
notice shall be due and payable, on the date specified
therein. Partial prepayments (i) of Term Loans shall
be in an aggregate principal amount equal to the lesser
of (A) (I) $2,000,000, or a whole multiple of
$1,000,000 in excess thereof with respect to Eurodollar
Loans or (II) $1,000,000, or a whole multiple of
$100,000 in excess thereof with respect to Alternate
Base Rate Loans and (B) the aggregate unpaid principal
amount of the Term Loans, and (ii) of Revolving Credit
Loans shall be in an aggregate principal amount equal
to the lesser of (A) (I) $2,000,000, or a whole
multiple of $1,000,000 in excess thereof with respect
to Eurodollar Loans or (II) $1,000,000 or a whole
multiple of $100,000 in excess thereof with respect to
Alternate Base Rate Loans and (B) the aggregate unpaid
principal amount of the Revolving Credit Loans, as the
case may be. Prepayments of the Term Loans pursuant to
this subsection 4.4(a) shall be applied, first, to any
installment due to be paid within three months of such
prepayment and, second, to the remaining installments
thereof ratably according to the amounts of such
installments.
(b)(i) So long as any Term Loans are
outstanding, if, subsequent to the Closing Date,
the Company or any of its Subsidiaries shall issue
any Capital Stock, 50% of the Net Proceeds thereof
(excluding amounts provided by the Investors or
their Affiliates or by management employees of
such issuer) shall be promptly applied toward the
prepayment of the Term Loans (applied to the
remaining installments thereof ratably according
to the outstanding principal amounts thereof until
paid in full); provided that Net Proceeds of such
issuance shall be deemed to be Net Proceeds of
such issuance for purposes of this subsection
4.4(b)(i) only after deducting therefrom the
redemption of up to 35% of the Permanent
Subordinated Debt under the "equity clawback"
provisions and the payment of any premium or
penalties or accrued interest with respect
thereto.
(ii) If, subsequent to the
Closing Date, the Company or any of its
Subsidiaries shall incur or permit the
incurrence of any Indebtedness (other than
Indebtedness permitted pursuant to subsection
8.1) 100% of the Net Proceeds thereof shall
be promptly applied toward the prepayment of
the Term Loans and the reduction of the
Revolving Credit Commitments as set forth in
clause (v) of this subsection 4.4(b).
(iii) If, subsequent to the
Closing Date, the Company or any of its
Subsidiaries shall receive Net Proceeds from
any Asset Sale, such Net Proceeds shall be
promptly applied toward the prepayment of the
Term Loans and the reduction of the Revolving
Credit Commitments as set forth in clause (v)
of this subsection 4.4(b); provided that such
Net Proceeds need not be applied to the
prepayment of the Term Loans and the
reduction of the Revolving Credit Commitments
until the earlier of the date that the
aggregate amount of Net Proceeds received by
the Company or any of its Subsidiaries from
any Asset Sales exceeds $2,000,000 (and has
not yet been applied to the prepayment of the
Term Loans and the reduction of the Revolving
Credit Commitments hereunder) and the date
which is six months after the last
application of Net Proceeds pursuant to this
subsection 4.4(b)(iii).
(iv) If for any fiscal year
commencing with its fiscal year ending
December 31, 1998, there shall be Excess Cash
Flow for such fiscal year, 50% of such Excess
Cash Flow shall be applied toward prepayment
of the Term Loans and the reduction of the
Revolving Credit Commitments as set forth in
clause (v) of this subsection 4.4(b). Each
such prepayment shall be made not later than
120 days after the end of such fiscal year.
(v) Prepayments made pursuant
to subsections 4.4(b)(ii), (iii) or (iv)
shall be applied by the Company, first, to
the prepayment of the Term Loans (applied to
the remaining installments thereof ratably
according to the outstanding principal
amounts thereof until paid in full) and,
second, to reduce permanently the Revolving
Credit Commitments. Any such reduction of
the Revolving Credit Commitments shall be
accompanied by prepayment of, first, the
Swing Line Loans, second, the Revolving
Credit Loans and, third, the L/C Obligations
to the extent, if any, that the sum of the
aggregate outstanding principal amount of
Revolving Credit Loans, the aggregate
outstanding principal amount of all Swing
Line Loans, the aggregate amount available to
be drawn under all outstanding Letters of
Credit and the aggregate outstanding amount
of all L/C Obligations, in each case of all
Lenders, exceeds the amount of the aggregate
Revolving Credit Commitments as so reduced,
provided that if the aggregate principal
amount of Revolving Credit Loans, Swing Line
Loans and L/C Obligations then outstanding is
less than the amount of such excess (because
Letters of Credit constitute a portion
thereof), the Company shall, to the extent of
the balance of such excess, replace
outstanding Letters of Credit and/or deposit
an amount in cash in a cash collateral
account established for the benefit of the
Lenders.
(vi) The Company shall give
the Administrative Agent (which shall
promptly notify each Lender) at least one
Business Day's notice of each prepayment or
mandatory reduction pursuant to this
subsection 4.4(b) setting forth the date and
amount thereof. Except as otherwise may be
agreed by the Company and the Required
Lenders, and subject to Subsection 4.4(b)(v),
any prepayment of Loans pursuant to this
subsection 4.4 shall be applied, first, to
any Alternate Base Rate Loans then
outstanding and the balance of such
prepayment, if any, to the Eurodollar Loans
then outstanding; provided that prepayments
of Eurodollar Loans, if not on the last day
of the Interest Period with respect thereto,
shall, at the Company's option, be prepaid
subject to the provisions of subsection 4.12
or the amount of such prepayment (after
application to any Alternate Base Rate Loans)
shall be deposited with the Administrative
Agent as cash collateral for the Loans on
terms reasonably satisfactory to the
Administrative Agent and thereafter shall be
applied in the order of the Interest Periods
next ending most closely to the date such
prepayment is required to be made and on the
last day of each such Interest Period. After
such application, unless an Event of Default
shall have occurred and be continuing, any
remaining interest earned on such cash
collateral shall be paid to the Company.
(c) The Term Loans shall be repaid in
twenty-one installments on the dates set forth
below (each such day, an "Installment Payment
Date"), commencing on December 31, 1997 in an
aggregate amount equal to the amount specified for
each such Installment Payment Date.
Installment Payment Date Installment Amount
December 31, 1997 $ 500,000
June 30, 1998 500,000
December 31, 1998 500,000
June 30, 1999 500,000
December 31, 1999 500,000
June 30, 2000 500,000
December 31, 2000 500,000
June 30, 2001 500,000
December 31, 2001 500,000
June 30, 2002 500,000
December 31, 2002 9,500,000
March 31, 2003 9,500,000
June 30, 2003 9,500,000
September 30, 2003 9,500,000
December 31, 2003 15,000,000
March 31, 2004 15,000,000
June 30, 2004 15,000,000
September 30, 2004 15,000,000
December 31, 2004 18,000,000
March 31, 2005 18,000,000
June 30, 2005 36,000,000
Amounts repaid on account of the Term Loans pursuant to this
subsection 4.4 or otherwise may not be reborrowed. Accrued
interest on the amount of any prepayments shall be paid on
the Interest Payment Date next succeeding the date of any
partial prepayment and on the date on such prepayment in the
case of a prepayment in full of the Term Loans.
4.5 Interest Rates and Payment Dates. (a)
Eurodollar Loans shall bear interest for each day
during each Interest Period applicable thereto,
commencing on (and including) the first day of such
Interest Period to, but excluding, the last day of such
Interest Period, on the unpaid principal amount thereof
at a rate per annum equal to the Eurodollar Rate
determined for such Interest Period plus the Applicable
Margin.
(b) Alternate Base Rate Loans shall bear
interest for the period from and including the
date such Loans are made to, but excluding, the
maturity date thereof, or to, but excluding, the
conversion date if such Loans are earlier
converted into Eurodollar Loans on the unpaid
principal amount thereof at a rate per annum equal
to the Alternate Base Rate plus the Applicable
Margin.
(c) If all or a portion of (i) the
principal amount of any of the Loans or (ii) any
interest payable thereon shall not be paid when
due (whether at the stated maturity, by
acceleration or otherwise) such Loan, if a
Eurodollar Loan, shall be converted into an
Alternate Base Rate Loan at the end of the
then-current Interest Period for said Eurodollar
Loan (which conversion shall occur automatically
and without need for compliance with the
conditions for conversion set forth in subsection
4.2), and any such overdue amount shall, without
limiting the rights of the Lenders under Section
9, bear interest (which shall be payable on
demand) at a rate per annum which is 2% plus the
Alternate Base Rate plus the Applicable Margin
(or, in the case of a Eurodollar Loan, the
Eurodollar Rate for the Interest Period plus the
Applicable Margin plus 2%, if higher) from the
date of such non-payment until paid in full (as
well after as before judgment).
(d) Except as otherwise expressly
provided for in this subsection 4.5, interest
shall be payable in arrears on each Interest
Payment Date.
4.6 Computation of Interest and Fees. (a)
Interest in respect of Alternate Base Rate Loans, at
any time that the Alternate Base Rate is determined by
reference to the Prime Rate, and all fees hereunder
shall be calculated on the basis of a 365 (or 366 as
the case may be) day year for the actual days elapsed.
Interest in respect of Eurodollar Loans and in respect
of Alternate Base Rate Loans at any time that the
Alternate Base Rate is determined by reference to the
Base CD Rate or the Federal Funds Effective Rate shall
be calculated on the basis of a 360 day year for the
actual days elapsed. The Administrative Agent shall as
soon as practicable notify the Company and the Lenders
of each determination of a Eurodollar Rate. Any change
in the interest rate on a Loan resulting from a change
in the Alternate Base Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening
of business on the day on which such change in the
Alternate Base Rate is announced or such change in the
Eurocurrency Reserve Requirements becomes effective, as
the case may be. The Administrative Agent shall as
soon as practicable notify the Company and the Lenders
of the effective date and the amount of each such
change.
(b) Each determination of an interest
rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive
and binding on the Company and the Lenders in the
absence of manifest error. The Administrative
Agent shall, at the request of the Company or any
Lender, deliver to the Company or such Lender a
statement showing the quotations used by the
Administrative Agent in determining the Eurodollar
Rate.
4.7 Certain Fees. The Company agrees to pay
to the Administrative Agent, for its own account, a
non-refundable agent's fee in an amount previously
agreed to with the Administrative Agent, payable in
advance on the Closing Date and on the first day of
each fiscal year of the Company thereafter.
4.8 Inability to Determine Interest Rate.
In the event that the Administrative Agent shall have
determined (which determination shall be conclusive and
binding upon the Company) that (a) by reason of
circumstances affecting the interbank eurodollar
market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for any Interest
Period with respect to (i) proposed Loans that the
Company has requested be made as Eurodollar Loans, (ii)
any Eurodollar Loans that will result from the
requested conversion of all or part of the Alternate
Base Rate Loans into Eurodollar Loans or (iii) the
continuation of any Eurodollar Loan as such for an
additional Interest Period, or (b) dollar deposits in
the relevant amount and for the relevant period with
respect to any such Eurodollar Loan are not generally
available to the Lenders in their respective Eurodollar
Lending Offices' interbank eurodollar markets, the
Administrative Agent shall forthwith give telecopy
notice of such determination, confirmed in writing, to
the Company and the Lenders at least one day prior to,
as the case may be, the requested Borrowing Date, the
conversion date or the last day of such Interest
Period. If such notice is given (i) any requested
Eurodollar Loans shall be made as Alternate Base Rate
Loans, (ii) any Alternate Base Rate Loans that were to
have been converted to Eurodollar Loans shall be
continued as Alternate Base Rate Loans, and (iii) any
outstanding Eurodollar Loans shall be converted on the
last day of the then current Interest Period applicable
thereto into Alternate Base Rate Loans. Until such
notice has been withdrawn by the Administrative Agent,
no further Eurodollar Loans shall be made and no
Alternate Base Rate Loans shall be converted to
Eurodollar Loans.
4.9 Pro Rata Treatment and Payments. (a)
Except to the extent otherwise provided herein, each
borrowing of Loans by the Company from the Lenders and
any reduction of the Commitments of the Lenders
hereunder shall be made pro rata according to the
relevant Commitment Percentages of the Lenders with
respect to the Loans borrowed or the Commitments to be
reduced.
(b) Whenever any payment received by the
Administrative Agent under this Agreement or any
Note or any other Credit Document is insufficient
to pay in full all amounts then due and payable to
the Administrative Agent and the Lenders under
this Agreement:
(i) If the Administrative Agent has not
received a Payment Sharing Notice (or, if the
Administrative Agent has received a Payment
Sharing Notice but the Event of Default specified
in such Payment Sharing Notice has been cured or
waived in accordance with the provisions of this
Agreement), such payment shall be distributed by
the Administrative Agent and applied by the
Administrative Agent and the Lenders in the
following order: first, to the payment of fees
and expenses due and payable to the Administrative
Agent under and in connection with this Agreement
and the other Credit Documents; second, to the
payment of all expenses due and payable under
subsection 11.5, ratably among the Lenders in
accordance with the aggregate amount of such
payments owed to each such Lender; third, to the
payment of fees due and payable under subsections
3.2 and 3.9, ratably among the Lenders in
accordance with the Commitment Percentage of each
Lender of the Commitment for which such payment is
owed and, in the case of the Issuing Lender, the
amount retained by the Issuing Lender for its own
account pursuant to subsection 3.9; fourth, to the
payment of interest then due and payable on the
Loans and the L/C Obligations ratably in
accordance with the aggregate amount of interest
owed to each such Lender; and fifth, to the
payment of the principal amount of the Loans and
the L/C Obligations which is then due and payable
ratably among the Lenders in accordance with the
aggregate principal amount owed to each such
Lender; or
(ii) If the Administrative Agent has
received a Payment Sharing Notice which remains in
effect, all payments received by the
Administrative Agent under this Agreement or any
Note shall be distributed by the Administrative
Agent and applied by the Administrative Agent and
the Lenders in the following order: first, to the
payment of all amounts described in clauses
"first" through "third" of the foregoing clause
(i) in the order set forth therein; second, to the
payment of the interest accrued on all Loans and
L/C Obligations, regardless of whether any such
amount is then due and payable, ratably among the
Lenders in accordance with the aggregate accrued
interest plus the aggregate principal amount of
all Loans and L/C Obligations then due and payable
and owed to such Lender; and third, to the payment
of the principal amount of all Loans and L/C
Obligations, regardless of whether any such amount
is then due and payable, ratably among the Lenders
in accordance with the aggregate principal amount
owed to such Lender.
(c) If any Lender (a "Non-Funding
Lender") has (x) failed to make a Revolving Credit
Loan required to be made by it hereunder, and the
Administrative Agent has determined that such
Lender is not likely to make such Revolving Credit
Loan or (y) given notice to the Company or the
Administrative Agent that it will not make, or
that it has disaffirmed or repudiated any
obligation to make, any Revolving Credit Loan, in
each case by reason of the provisions of the
Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as amended, or otherwise,
(i) any payment made on account of the principal
of the Revolving Credit Loans outstanding shall be
made as follows:
(A) in the case of any such payment made on any
date when and to the extent that in the determination
of the Administrative Agent the Company would be able
under the terms and conditions hereof to reborrow the
amount of such payment under the Commitments and to
satisfy any applicable conditions precedent set forth
in Section 6 to such reborrowing, such payment shall be
made on account of the outstanding Revolving Credit
Loans held by the Lenders other than the Non-Funding
Lender pro rata according to the respective outstanding
principal amounts of the Revolving Credit Loans of such
Lenders; and
(B) otherwise, such payment shall be made on
account of the outstanding Revolving Credit Loans held
by the Lenders pro rata according to the respective
outstanding principal amounts of such Revolving Credit
Loans; and
(ii) any payment made on account of interest on the
Revolving Credit Loans shall be made pro rata according to
the respective amounts of accrued and unpaid interest due
and payable on the Revolving Credit Loans with respect to
which such payment is being made. The Company agrees to
give the Administrative Agent such assistance in making any
determination pursuant to subparagraph (i)(A) of this
paragraph as the Administrative Agent may reasonably
request. Any such determination by the Administrative Agent
shall be conclusive and binding on the Lenders.
(d) All payments (including prepayments)
to be made by the Company on account of principal,
interest and fees shall be made without set-off or
counterclaim and shall be made to the
Administrative Agent, for the account of the
Lenders at the Administrative Agent's office
located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, in lawful money of the United States and in
immediately available funds. The Administrative
Agent shall promptly distribute such payments in
accordance with the provisions of subsection
4.9(b) upon receipt in like funds as received. If
any payment hereunder (other than payments on
Eurodollar Loans) would become due and payable on
a day other than a Business Day, such payment
shall become due and payable on the next
succeeding Business Day and, with respect to
payments of principal, interest thereon shall be
payable at the then applicable rate during such
extension. If any payment on a Eurodollar Loan
becomes due and payable on a day other than a
Business Day, the maturity thereof shall be
extended to the next succeeding Business Day (and
with respect to payments of principal, interest
thereon shall be payable at the then applicable
rate during such extension), unless the result of
such extension would be to extend such payment
into another calendar month in which event such
payment shall be made on the immediately preceding
Business Day.
(e) Unless the Administrative Agent
shall have been notified in writing by any Lender
prior to a borrowing that such Lender will not
make the amount which would constitute its
Commitment Percentage of such borrowing available
to the Administrative Agent, the Administrative
Agent may assume that such Lender is making such
amount available to the Administrative Agent in
accordance with subsection 4.1 and the
Administrative Agent may, in reliance upon such
assumption, make available to the Company a
corresponding amount. If such amount is not made
available to the Administrative Agent by the
required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on
demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds
Effective Rate for the period until such Lender
makes such amount immediately available to the
Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with
respect to any amounts owing under this subsection
4.9(e) shall be conclusive absent manifest error.
If such Lender's Commitment Percentage of such
borrowing is not in fact made available to the
Administrative Agent by such Lender within three
Business Days of such Borrowing Date, the
Administrative Agent shall also be entitled to
recover such amount with interest thereon at the
rate per annum applicable to Alternate Base Rate
Loans hereunder (in lieu of any otherwise
applicable interest), on demand, from the Company,
without prejudice to any rights which the Company
or the Administrative Agent may have against such
Lender hereunder. Nothing contained in this
subsection 4.9 shall relieve any Lender which has
failed to make available its ratable portion of
any borrowing hereunder from its obligation to do
so in accordance with the terms hereof.
(f) The failure of any Lender to make
the Loan to be made by it on any Borrowing Date
shall not relieve any other Lender of its
obligation, if any, hereunder to make its 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
such Borrowing Date.
(g) All payments and optional
prepayments (other than prepayments as set forth
in subsection 4.11 with respect to increased
costs) of Eurodollar Loans hereunder shall be in
such amounts and be made pursuant to such
elections so that, after giving effect thereto,
the aggregate principal amount of all Eurodollar
Loans with the same Interest Period shall not be
less than $2,000,000 or a whole multiple of
$1,000,000 in excess thereof.
4.10 Illegality. Notwithstanding any other
provision herein, if any Change in Law occurring after
the date that any lender becomes a Lender party to this
Agreement, shall make it unlawful for such Lender to
make or maintain Eurodollar Loans as contemplated by
this Agreement, the commitment of such Lender hereunder
to make Eurodollar Loans or to convert all or a portion
of Alternate Base Rate Loans into Eurodollar Loans
shall forthwith be suspended until such time, if any,
as such illegality shall no longer exist and such
Lender's Loans then outstanding as Eurodollar Loans, if
any, shall be converted automatically to Alternate Base
Rate Loans for the duration of the respective Interest
Periods (or, if permitted by applicable law, at the end
of such Interest Periods) and all payments of principal
which would otherwise be applied to such Eurodollar
Loans shall be applied instead to such Lender's
Alternate Base Rate Loans. The Company hereby agrees
to pay any Lender, promptly upon its demand, any
amounts payable pursuant to subsection 4.12 in
connection with any conversion in accordance with this
subsection 4.10 (such Lender's notice of such costs, as
certified in reasonable detail as to such amounts to
the Company through the Administrative Agent, to be
conclusive absent manifest error).
4.11 Requirements of Law. (a) In the event
that any Change in Law or compliance by any Lender with
any request or directive (whether or not having the
force of law) from any central bank or other
Governmental Authority occurring after the date that
any lender becomes a Lender party to this Agreement:
(i) does or shall subject any such
Lender or its Eurodollar Lending Office to any tax
of any kind whatsoever with respect to this
Agreement, any Note or any Eurodollar Loans made
by it, or change the basis of taxation of payments
to such Lender or its Eurodollar Lending Office of
principal, the commitment fee, interest or any
other amount payable hereunder (except for (x) net
income and franchise taxes imposed on the net
income of such Lender or its Eurodollar Lending
Office by the jurisdiction under the laws of which
such Lender is organized or any political
subdivision or taxing authority thereof or
therein, or by any jurisdiction in which such
Lender's Eurodollar Lending Office is located or
any political subdivision or taxing authority
thereof or therein, including changes in the rate
of tax on the overall net income of such Lender or
such Eurodollar Lending Office, and (y) taxes
resulting from the substitution of any such system
by another system of taxation, provided that the
taxes payable by Lenders subject to such other
system of taxation are not generally charged to
borrowers from such Lenders having loans or
advances bearing interest at a rate similar to the
Eurodollar Rate);
(ii) does or shall impose, modify or
hold applicable any reserve, special deposit,
compulsory loan or similar requirement against
assets held by, or deposits or other liabilities
in or for the account of, advances or loans by, or
other credit extended by, or any other acquisition
of funds by, any office of such Lender which are
not otherwise included in the determination of the
Eurodollar Rate; or
(iii) does or shall impose on such
Lender any other condition;
and the result of any of the foregoing is to increase the
cost to such Lender or its Eurodollar Lending Office of
making, converting, renewing or maintaining advances or
extensions of credit or to reduce any amount receivable
hereunder, in each case, in respect of its Eurodollar Loans,
then, in any such case, the Company shall promptly pay such
Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such additional cost or reduced
amount receivable which such Lender deems to be material as
determined by such Lender with respect to such Eurodollar
Loans, together with interest on each such amount from the
date demanded until payment in full thereof at a rate per
annum equal to the Alternate Base Rate plus 1%.
(b) In the event that any Change in Law
occurring after the date that any lender becomes a
Lender party to this Agreement with respect to any
such Lender shall, in the opinion of such Lender,
require that any Commitment of such Lender be
treated as an asset or otherwise be included for
purposes of calculating the appropriate amount of
capital to be maintained by such Lender or any
corporation controlling such Lender, and such
Change in Law shall have the effect of reducing
the rate of return on such Lender's or such
corporation's capital, as the case may be, as a
consequence of such Lender's obligations hereunder
to a level below that which such Lender or such
corporation, as the case may be, could have
achieved but for such Change in Law (taking into
account such Lender's or such corporation's
policies, as the case may be, with respect to
capital adequacy) by an amount deemed by such
Lender to be material, then from time to time
following notice by such Lender to the Company of
such Change in Law as provided in paragraph (c) of
this subsection 4.11, within 15 days after demand
by such Lender, the Company shall pay to such
Lender such additional amount or amounts as will
compensate such Lender or such corporation on an
after-tax basis, as the case may be, for such
reduction.
(c) The Company shall not be required to
make any payments to any Lender for any additional
amounts pursuant to this subsection 4.11 unless
such Lender has given written notice to the
Company, through the Administrative Agent, of its
intent to request such payments prior to or within
60 days after the date on which such Lender became
entitled to claim such amounts. If any Lender has
notified the Company through the Administrative
Agent of any increased costs pursuant to paragraph
(a) of this subsection 4.11, the Company at any
time thereafter may, upon at least three Business
Days' notice to the Administrative Agent (which
shall promptly notify the Lenders thereof), and
subject to subsection 4.12, prepay (or convert
into Alternate Base Rate Loans) all (but not a
part) of the Eurodollar Loans then outstanding.
Each Lender agrees that, upon the occurrence of
any event giving rise to the operation of
paragraph (a) of this subsection 4.11 with respect
to such Lender, it will, if requested by the
Company and to the extent permitted by law or by
the relevant Governmental Authority, endeavor in
good faith to avoid or minimize the increase in
costs or reduction in payments resulting from such
event (including, without limitation, endeavoring
to change its Eurodollar Lending Office);
provided, that such avoidance or minimization can
be made in such a manner that such Lender, in its
sole determination, suffers no economic, legal or
regulatory disadvantage. If any Lender requests
compensation from the Company under this
subsection 4.11, the Company may, by notice to
such Lender (with a copy to the Administrative
Agent), suspend the obligation of such Lender
thereafter to make or continue Loans of the Type
with respect to which such compensation is
requested, or to convert Loans of any other Type
into Loans of such Type, until the Requirement of
Law giving rise to such request ceases to be in
effect, provided that such suspension shall not
affect the right of such Lender to receive the
compensation so requested.
(d) Each Lender (and in case of an
Assignee on the date it becomes a Lender) that is
not a United States Person (as defined in Section
7701(a)(30) of the Code) for federal income tax
purposes either (1) in the case of a Lender that
is a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (i) represents to the
Company (for the benefit of the Company and the
Administrative Agent) that under applicable law
and treaties no taxes are required to be withheld
by the Company or the Administrative Agent with
respect to any payments to be made to such Lender
in respect of the Loans or the L/C Participating
Interests, (ii) agrees to furnish to the Company,
with a copy to the Administrative Agent, either
U.S. Internal Revenue Service Form 4224 or U.S.
Internal Revenue Service Form 1001 (wherein such
Lender claims entitlement to complete exemption
from U.S. federal withholding tax on all interest
payments hereunder) and (iii) agrees (for the
benefit of the Company and the Administrative
Agent), to the extent it may lawfully do so at
such times, to provide the Company, with a copy to
the Administrative Agent, a new Form 4224 or Form
1001 upon the expiration or obsolescence of any
previously delivered form and comparable
statements in accordance with applicable U.S. laws
and regulations and amendments duly executed and
completed by such Lender, and to comply from time
to time with all applicable U.S. laws and
regulations with regard to such withholding tax
exemption or (2) in the case of a Lender that is
not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (i) represents to the
Company (for the benefit of the Company and the
Administrative Agent) that it is not a bank within
the meaning of Section 881(c)(3)(A) of the Code,
(ii) agrees to furnish to the Company, with a copy
to the Administrative Agent, (A) a certificate
substantially in the form of Exhibit J hereto (any
such certificate, a "Subsection 4.11(d)(2)
Certificate") and (B) two accurate and complete
original signed copies of Internal Revenue Service
Form W-8, certifying to such Lender's legal
entitlement at the Closing Date to an exemption
from U.S. withholding tax under the provisions of
Section 881(c) of the Code with respect to all
payments to be made under this Agreement, and
(iii) agrees, to the extent legally entitled to do
so, upon reasonable request by the Company, to
provide to the Company (for the benefit of the
Company and the Administrative Agent) such other
forms as may be required in order to establish the
legal entitlement of such Lender to an exemption
from withholding with respect to payments under
this Agreement. Notwithstanding any provision of
this subsection 4.11 or 4.9(d) to the contrary,
the Company shall have no obligation to pay any
amount to or for the account of any Lender (or the
Eurodollar Lending Office of any Lender) on
account of any taxes pursuant to this subsection
4.11, to the extent that such amount results from
(i) the failure of any Lender to comply with its
obligations pursuant to this subsection 4.11, (ii)
any representation or warranty made or deemed to
be made by any Lender pursuant to this subsection
4.11(d) proving to have been incorrect, false or
misleading in any material respect when so made or
deemed to be made or (iii) any Change in Law or
compliance by any Lender with any request or
directive (whether or not having the force of law)
from any central bank or other Governmental
Authority, the effect of which would be to subject
to any taxes any payment made pursuant to this
Agreement to any Lender making the representation
and covenants set forth in subsection 4.11(d)(2),
which payment would not be subject to such taxes
were such Lender eligible to make and comply with,
and actually made and complied with, the
representation and covenants set forth in
subsection 4.11(d)(1) hereinabove.
(e) A certificate in reasonable detail
as to any amounts submitted by such Lender,
through the Administrative Agent, to the Company,
shall be conclusive in the absence of manifest
error. The covenants contained in this subsection
4.11 shall survive the termination of this
Agreement and repayment of the Loans.
4.12 Indemnity. The Company agrees to
indemnify each Lender and to hold such Lender harmless
from any loss or expense (but without duplication of
any amounts payable as default interest) which such
Lender may sustain or incur as a consequence of (a)
default by the Company in payment of the principal
amount of or interest on any Eurodollar Loans of such
Lender, including, but not limited to, any such loss or
expense arising from interest or fees payable by such
Lender to lenders of funds obtained by it in order to
make or maintain its Eurodollar Loans hereunder, (b)
default by the Company in making a borrowing after the
Company has given a notice in accordance with
subsection 4.1 or in making a conversion of Alternate
Base Rate Loans to Eurodollar Loans or in continuing
Eurodollar Loans as such, in either case, after the
Company has given notice in accordance with subsection
4.2, (c) default by the Company in making any
prepayment after the Company has given a notice in
accordance with subsection 4.4 or (d) a payment or
prepayment of a Eurodollar Loan or conversion
(including without limitation, as a result of
subsection 4.4 and/or a conversion pursuant to
subsection 4.10) of any Eurodollar Loan into an
Alternate Base Rate Loan, in either case on a day which
is not the last day of an Interest Period with respect
thereto, including, but not limited to, any such loss
or expense arising from interest or fees payable by
such Lender to lenders of funds obtained by it in order
to maintain its Eurodollar Loans hereunder (but
excluding loss of profit). This covenant shall survive
termination of this Agreement and repayment of the
Loans.
4.13 Repayment of Loans; Evidence of Debt.
(a) The Company hereby unconditionally promises to pay
to the Administrative Agent for the account of each
Lender (i) the then unpaid principal amount of each
Revolving Credit Loan of such Lender on the Revolving
Credit Termination Date, (ii) the principal amount of
the Term Loan of such Lender, in twenty-one consecutive
installments, payable on each Installment Payment Date
(or the then unpaid principal amount of such Term Loan
on the date that the Term Loans become due and payable
pursuant to Section 9), and (iii) the then unpaid
principal amount of the Swing Line Loans of the Swing
Line Lender on the Revolving Credit Termination Date.
The Company hereby further agrees to pay interest on
the unpaid principal amount of the Loans from time to
time outstanding from the date hereof until payment in
full thereof at the rates per annum and on the dates
set forth in subsection 4.5.
(b) Each Lender shall maintain in
accordance with its usual practice an account or
accounts evidencing indebtedness of the Company to
such Lender resulting from each Loan of such
Lender from time to time, including the amounts of
principal and interest payable and paid to such
Lender from time to time under this Agreement.
(c) The Administrative Agent shall
maintain the Register pursuant to subsection
11.6(d), and a subaccount therein for each Lender,
in which shall be recorded (i) the amount of each
Revolving Credit Loan and Term Loan made
hereunder, the Type thereof and each Interest
Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become
due and payable from the Company to each Lender
hereunder and (iii) both the amount of any sum
received by the Administrative Agent hereunder
from the Company and each Lender's share thereof.
(d) The entries made in the Register and
the accounts of each Lender maintained pursuant to
subsection 4.13(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the
existence and amounts of the obligations of the
Company therein recorded; provided that the
failure of any Lender or the Administrative Agent
to maintain the Register or any such account, or
any error therein, shall not in any manner affect
the obligation of the Company to repay (with
applicable interest) the Loans made to such
Company by such Lender or to repay any other
obligations in accordance with the terms of this
Agreement.
(e) The Company agrees that, upon the
request to the Administrative Agent by any Lender,
the Company will execute and deliver to such
Lender (i) a promissory note of the Company
evidencing the Revolving Credit Loans of such
Lender, substantially in the form of Exhibit A
with appropriate insertions as to date and
principal amount (a "Revolving Credit Note"),
and/or (ii) a promissory note of the Company
evidencing the Term Loan of such Lender,
substantially in the form of Exhibit B with
appropriate insertions as to date and principal
amount (a "Term Loan Note"), and/or (iii) in the
case of the Swing Line Lender, a promissory note
of the Company evidencing the Swing Line Loans of
the Swing Line Lender, substantially in the form
of Exhibit C with appropriate insertions as to
date and principal amount (the "Swing Line Note").
4.14 Replacement of Lenders. In the event
any Lender or the Issuing Lender is a Non-Funding
Lender, exercises its rights pursuant to subsection
4.10 or requests payments pursuant to subsections 3.10
or 4.11, the Company may require, at the Company's
expense (including payment of any processing fees under
subsection 11.6(e)) and subject to subsection 4.12,
such Lender or the Issuing Lender to assign, at par
plus accrued interest and fees, without recourse (in
accordance with subsection 11.6) all of its interests,
rights and obligations hereunder (including all of its
Commitments and the Loans and other amounts at the time
owing to it hereunder and its Notes and its interest in
the Letters of Credit) to a bank, financial institution
or other entity specified by the Company, provided that
(i) such assignment shall not conflict with or violate
any law, rule or regulation or order of any court or
other Governmental Authority, (ii) the Company shall
have received the written consent of the Administrative
Agent, which consent shall not unreasonably be
withheld, to such assignment, (iii) the Company shall
have paid to the assigning Lender or the Issuing Lender
all monies other than principal, interest and fees
accrued and owing hereunder to it (including pursuant
to subsections 3.10, 4.10, 4.11 and 4.12) and (iv) in
the case of a required assignment by the Issuing
Lender, the Letters of Credit shall be canceled and
returned to the Issuing Lender.
SECTION 5. REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this
Agreement and to make the Loans and to induce the Issuing
Lender to issue, and the Participating Lenders to
participate in, the Letters of Credit, the Company hereby
represents and warrants to each Lender and the
Administrative Agent as of the Closing Date and as of the
making of any extension of credit hereunder:
5.1 Financial Condition. (a) The
consolidated audited balance sheets of the Company and
its consolidated Subsidiaries as at December 31, 1995
and December 31, 1996 and the related consolidated
statements of operations and of cash flows for the
fiscal years ended on each such dates, audited by
Xxxxxx Xxxxxxxx LLP, copies of which have heretofore
been furnished to each Lender, present fairly in
accordance with GAAP the consolidated financial
condition of the Company and its consolidated
Subsidiaries as at such dates, and the consolidated
results of their operations and their consolidated cash
flows for the fiscal year then ended. All such
financial statements have been prepared in accordance
with GAAP applied consistently throughout the periods
involved (except as approved by such accountants and as
disclosed therein). Neither the Company nor any of its
consolidated Subsidiaries had, at the date of each
balance sheet referred to above, any material
Contingent Obligation, contingent liability or
liability for taxes, or any long-term lease or unusual
forward or long-term commitment, including, without
limitation, any material interest rate or foreign
currency swap or exchange transaction, which is not
reflected in the foregoing statements or in the notes
thereto or expressly permitted to be incurred
hereunder.
(b) The unaudited consolidated balance sheet of
the Company and its consolidated Subsidiaries as at April
30, 1997 and the related consolidated statements of
operations and of cash flows for the four-month period then
ended, certified by a Responsible Officer of the Company,
copies of which have heretofore been furnished to each
Lender, present fairly in accordance with GAAP the financial
position of the Company and its consolidated Subsidiaries as
at such date and the consolidated results of their
operations and their consolidated cash flows for the four-
month period then ended (subject to normal year-end
adjustments). Such financial statements, including the
related schedules and notes thereto, have been prepared in
accordance with GAAP (except as approved by such Responsible
Officer and disclosed therein). The Company and its
consolidated Subsidiaries did not have at the date of such
balance sheet, any material Contingent Obligation,
contingent liability or liability for taxes, or any
long-term lease or unusual forward or long-term commitment,
including, without limitation, any interest rate or foreign
currency exchange transaction, which is not reflected in
such balance sheet or in the notes thereto or in the notes
to the Company's audited financial statements. During the
period from December 31, 1996 to the Closing Date, no
dividends or other distributions have been declared, paid or
made upon the Capital Stock of the Company or any of its
consolidated Subsidiaries nor has any of the Capital Stock
of the Company or any of its consolidated Subsidiaries been
redeemed, retired, purchased or otherwise acquired for value
by the Company or any of its consolidated Subsidiaries,
respectively, except as disclosed in the Form S-4.
(c) The unaudited consolidated pro forma balance
sheet of the Company and its consolidated Subsidiaries, as
of April 30, 1997, certified by a Responsible Officer of the
Company (the "Pro Forma Balance Sheet"), copies of which
have been furnished to each Lender, is the unaudited balance
sheet of the Company and its consolidated Subsidiaries
adjusted to give effect (as if such events had occurred on
the date set forth therein) to (i) the Merger and each of
the transactions contemplated by the Merger Agreement, (ii)
the incurrence of the Loans and the issuance of the Letters
of Credit to be incurred or issued, as the case may be, on
the Closing Date and (iii) the incurrence of the Bridge
Subordinated Debt or the Permanent Subordinated Debt and all
other Indebtedness that the Company and its consolidated
Subsidiaries expect to incur, and the payment of all amounts
the Company and its consolidated Subsidiaries expect to pay,
in connection with the Merger. The Pro Forma Balance Sheet,
together with the notes thereto, were prepared based on good
faith assumptions in accordance with GAAP and is based on
the best information available to the Company as of the date
of delivery thereof and reflects on a pro forma basis the
financial position of the Company and its consolidated
Subsidiaries as of April 30, 1997, as adjusted, as described
above, assuming that the events specified in the preceding
sentence had actually occurred as of April 30, 1997.
5.2 No Change. Other than as disclosed in
the Form S-4 or 1996 Form 10-K, since December 31,
1996, (a) there has been no change, and (as of the
Closing Date only) no development or event which has
had or could reasonably be expected to have a material
adverse effect on (i) the business, assets, condition
(financial or otherwise) or results of operations of
the Company and its Subsidiaries taken as a whole, (ii)
the ability of the Company and its Subsidiaries to
perform their obligations under the Credit Documents
and with respect to the other financings contemplated
hereby or (iii) the rights and remedies of the Lenders
under the Credit Documents and (b) no dividends or
other distributions have been declared, paid or made
upon the Capital Stock of the Company nor has any of
the Capital Stock of the Company been redeemed,
retired, repurchased or otherwise acquired for value by
the Company or any of its Subsidiaries, except as
permitted by subsection 8.11.
5.3 Corporate Existence; Compliance with
Law. Each of the Company and its Subsidiaries (a) is a
corporation duly organized and validly existing under
the laws of the jurisdiction of its incorporation, (b)
has full corporate power and authority and possesses
all governmental franchises, licenses, permits,
authorizations and approvals necessary to enable it to
use its corporate name and to own, lease or otherwise
hold its properties and assets and to carry on its
business as presently conducted other than such
franchises, licenses, permits, authorizations and
approvals the lack of which, individually or in the
aggregate, would not have a material adverse effect on
the business, assets, condition (financial or
otherwise) or results of operations of the Company and
its Subsidiaries, taken as a whole, (c) is duly
qualified and in good standing to do business in each
jurisdiction in which the nature of its business or the
ownership, leasing or holding of its properties makes
such qualification necessary, except such jurisdictions
where the failure so to qualify would not have a
material adverse effect on the business, assets,
condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries, taken
as a whole, and (d) is in compliance with all
applicable statutes, laws, ordinances, rules, orders,
permits and regulations of any governmental authority
or instrumentality, domestic or foreign (including,
without limitation, those related to Hazardous
Materials and substances), except where noncompliance
would not have a material adverse effect on the
business, assets, condition (financial or otherwise) or
results of operations of the Company and its
Subsidiaries, taken as a whole. Neither the Company
nor any of its Subsidiaries has received any written
communication from a Governmental Authority that
alleges that the Company or any of its Subsidiaries is
not in compliance, in all material respects, with all
material federal, state, local or foreign laws,
ordinances, rules and regulations.
5.4 Corporate Power; Authorization. Each of
the Company and its Subsidiaries has the corporate
power and authority to make, deliver and perform each
of the Credit Documents to which it is a party, and the
Company has the corporate power and authority and legal
right to borrow hereunder and to have Letters of Credit
issued for its account hereunder. Each of the Company
and its Subsidiaries has taken all necessary corporate
action to authorize the execution, delivery and
performance of each of the Credit Documents to which it
is or will be a party and the Company has taken all
necessary corporate action to authorize the borrowings
hereunder and the issuance of Letters of Credit for its
account hereunder. No consent or authorization of, or
filing with, any Person (including, without limitation,
any Governmental Authority) is required in connection
with the execution, delivery or performance by the
Company or any of its Subsidiaries, or for the validity
or enforceability against the Company or any of its
Subsidiaries, of any Credit Document except for
consents, authorizations and filings which have been
obtained or made and are in full force and effect and
except (i) such consents, authorizations and filings,
the failure to obtain or perform (x) which would not
have a material adverse effect on the business, assets,
condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries taken as
a whole and (y) which would not adversely affect the
validity or enforceability of any of the Credit
Documents or the rights or remedies of the
Administrative Agent or the Lenders thereunder, and
(ii) such filings as are necessary to perfect the Liens
of the Lenders created pursuant to this Agreement and
the Security Documents.
5.5 Enforceable Obligations. This Agreement
and the Merger Agreement have been, and each of the
other Credit Documents and any other agreement to be
entered into by any Credit Party pursuant to the Merger
Agreement will be duly executed and delivered on behalf
of such Credit Party that is party thereto. The Merger
Agreement has been duly executed and delivered on
behalf of the Company and AcquisitionCo. This
Agreement and the Merger Agreement each constitutes,
and each of the other Credit Documents and any other
agreement to be entered into by any Credit Party
pursuant to the Merger Agreement will constitute upon
execution and delivery, the legal, valid and binding
obligation of such Credit Party, and is enforceable
against such Credit Party in accordance with its terms,
except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws
affecting creditors' rights generally and by general
principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law). The
Merger Agreement constitutes the legal, valid and
binding obligation of (a) the Company enforceable
against the Company in accordance with its terms and
(b) AcquisitionCo enforceable against AcquisitionCo in
accordance with its terms, except, in each case, as may
be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting
creditors' rights generally and by general principles
of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law).
5.6 No Legal Bar. The execution, delivery
and performance of each Credit Document, the incurrence
or issuance of and use of the proceeds of the Loans,
the Subordinated Debt and of drawings under the Letters
of Credit and the transactions contemplated by the
Merger Agreement, the Credit Documents and the
documentation for the Subordinated Debt, (a) will not
violate any Requirement of Law or any Contractual
Obligation applicable to or binding upon each of
AcquisitionCo, the Company or any Subsidiary or any of
their respective properties or assets, in any manner
which, individually or in the aggregate, (i) would have
a material adverse effect on the ability of
AcquisitionCo, the Company or any such Subsidiary to
perform its obligations under the Credit Documents, the
Merger Agreement, and any other agreement to be entered
into pursuant to the Merger Agreement or in connection
with the Subordinated Debt, to which it is a party,
(ii) would give rise to any liability on the part of
the Administrative Agent or any Lender, or (iii) would
have a material adverse effect on the business, assets,
condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries taken as
a whole, and (b) will not result in the creation or
imposition of any Lien on any of its properties or
assets pursuant to any Requirement of Law applicable to
it, as the case may be, or any of its Contractual
Obligations, except for the Liens arising under the
Security Documents.
5.7 No Material Litigation. No litigation
by, investigation known to the Company by, or
proceeding of, any Governmental Authority is pending
against the Company or any of its Subsidiaries
(including after giving effect to the Merger) with
respect to the validity, binding effect or
enforceability of the Merger Agreement, any Credit
Document, the Loans made hereunder, the use of proceeds
thereof, of the Subordinated Debt or of any drawings
under a Letter of Credit and the other transactions
contemplated hereby or by the Merger Agreement. Other
than as disclosed in the Form S-4 or the 1996 Form 10-
K, no lawsuits, claims, proceedings or investigations
are pending or, to the best knowledge of the Company,
threatened as of the Closing Date against or affecting
the Company or a Subsidiary or any of their respective
properties, assets, operations or businesses (including
after giving effect to the Merger), in which there is a
probability of an adverse determination, and is
reasonably likely, if adversely decided, to have a
material adverse effect on the business, assets,
condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries, taken
as a whole.
5.8 Investment Company Act. Neither the
Company nor any Subsidiary is an "investment company"
or a company "controlled" by an "investment company"
(as each of the quoted terms is defined or used in the
Investment Company Act of 1940, as amended).
5.9 Federal Regulation. No part of the
proceeds of any of the Loans or Subordinated Debt or
any drawing under a Letter of Credit will be used for
any purpose which violates the provisions of Regulation
G, T, U or X of the Board. Neither the Company nor any
of its Subsidiaries is engaged or will engage,
principally or as one of its important activities, in
the business of extending credit for the purpose of
"purchasing" or "carrying" any "margin stock" within
the respective meanings of each of the quoted terms
under said Regulation U.
5.10 No Default. The Company and each of
its Subsidiaries have performed all material
obligations required to be performed by them under
their respective Contractual Obligations (including
after giving effect to the Merger) and they are not
(with or without the lapse of time or the giving of
notice, or both) in breach or default in any respect
thereunder, except to the extent that such breach or
default would not have a material adverse effect on the
business, assets, condition (financial or otherwise) or
results of operations of the Company and its
Subsidiaries taken as a whole. Neither the Company nor
any of its Subsidiaries (including after giving effect
to the Merger) is in default under any material
judgment, order or decree of any Governmental
Authority, domestic or foreign, applicable to it or any
of its respective properties, assets, operations or
business, except to the extent that any such defaults
would not, in the aggregate, have a material adverse
effect on the business, assets, condition (financial or
otherwise) or results of operations of the Company and
its Subsidiaries, taken as a whole.
5.11 Taxes. Except as set forth on Schedule
5.11, each of the Company and its Subsidiaries
(including after giving effect to the Merger) has filed
or caused to be filed all material tax returns which,
to the knowledge of the Company, are required to be
filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made
against it or any of its property and all other taxes,
fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any
the amount of which is currently being contested in
good faith by appropriate proceedings and with respect
to which reserves (or other sufficient provisions) in
conformity with GAAP have been provided on the books of
the Company or its Subsidiaries (including after giving
effect to the Merger), as the case may be); and no tax
Lien has been filed, and, to the knowledge of the
Company, no written claim is being asserted, with
respect to any such tax, fee or other charges.
5.12 Subsidiaries. After giving effect to
the consummation of the Merger, the Subsidiaries and
their jurisdiction of incorporation shall be as set
forth on Schedule 5.12.
5.13 Ownership of Property; Liens. As of
the Closing Date and as of the making of any extension
of credit hereunder (subject to transfers and
dispositions of property permitted under subsection
8.5), each of the Company and its Subsidiaries has good
and valid title to all of its material assets (other
than real property or interests in real property) in
each case free and clear of all mortgages, liens,
security interests or encumbrances of any nature
whatsoever except Permitted Liens. With respect to
real property or interests in real property, as of the
Closing Date, each of the Company and its Subsidiaries
has (i) fee title to all of the real property listed on
Schedule 5.13 under the heading "Fee Properties" (each,
a "Fee Property"), and (ii) good and valid title to the
leasehold estates in all of the real property leased by
it and listed on Schedule 5.13 under the heading
"Leased Properties" (each, a "Leased Property"), in
each case, free and clear of all mortgages, liens,
security interests, easements, covenants, rights-of-way
and other similar restrictions of any nature
whatsoever, except (A) Permitted Liens and (B) as to
Leased Property, the terms and provisions of the
respective lease therefor, including, without
limitation, the matters set forth on Schedule 5.13, and
any matters affecting the fee title and any estate
superior to the leasehold estate related thereto. The
Fee Properties and the Leased Properties constitute, as
of the Closing Date, all of the real property owned in
fee or leased by the Company and its Subsidiaries.
5.14 ERISA. Neither a Reportable Event nor
an "accumulated funding deficiency" (within the meaning
of Section 412 of the Code or Section 302 of ERISA) has
occurred during the five-year period prior to the date
on which this representation is made or deemed made
with respect to any Plan that would result in a
material liability to the Company, and each Plan has
complied in all material respects with the applicable
provisions of ERISA and the Code. Neither the Company
nor any Commonly Controlled Entity has: been involved
in any transaction that would cause the Company to be
subject to material liability with respect to a Plan to
which the Company or any Commonly Controlled Entity
contributed or was obligated to contribute during the
six-year period ending on the date this representation
is made or deemed made; or incurred any material
liability under Title IV of ERISA which would become or
remain a material liability of the Company after the
Closing Date. No termination of a Single Employer Plan
has occurred, and no Lien in favor of the PBGC or a
Plan has arisen, during such five-year period that
would result in a material liability to the Company.
The present value of all accrued benefits under each
Single Employer Plan (based on those assumptions used
to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this
representation is made or deemed made, exceed the value
of the assets of such Plan allocable to such accrued
benefits that would result in a material liability to
the Company. Neither the Company nor any Commonly
Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan, and neither the
Company nor any Commonly Controlled Entity would become
subject to any liability under ERISA if the Company or
any such Commonly Controlled Entity were to withdraw
completely from all Multiemployer Plans as of the
valuation date most closely preceding the date on which
this representation is made or deemed made, in either
case that would result in a material liability to the
Company. To the knowledge of the Company, no such
Multiemployer Plan is in Reorganization or Insolvent.
The present value (determined using actuarial and other
assumptions which are reasonable in respect of the
benefits provided and the employees participating) of
the liability of the Company and each Commonly
Controlled Entity for post retirement benefits to be
provided to their current and former employees under
Plans which are welfare benefit plans (as defined in
Section 3(1) of ERISA) does not, in the aggregate,
exceed the assets under all such Plans allocable to
such benefits by an amount that would result in a
material liability to the Company, except as disclosed
in the Company's audited financial statement provided
to the Lenders prior to the Closing Date. For purposes
of this subsection 5.14, a material liability shall
exceed $10,000,000.
5.15 Collateral Documents. (a) Upon
execution and delivery thereof by the parties thereto,
each of the Pledge Agreements will be effective to
create in favor of the Administrative Agent, for the
ratable benefit of the Lenders, a legal, valid and
enforceable security interest in the pledged stock
described therein and, when stock certificates
representing or constituting the pledged stock
described in each of the Pledge Agreements are
delivered to the Administrative Agent, such security
interest shall constitute a perfected first lien on,
and security interest in, all right, title and interest
of the pledgor party thereto in the pledged stock
described therein.
(b) Upon execution and delivery thereof
by the parties thereto, each of the Security
Agreements will be effective to create in favor of
the Administrative Agent, for the ratable benefit
of the Lenders, a legal, valid and enforceable
security interest in the collateral described
therein, and Uniform Commercial Code financing
statements have been filed in each of the
jurisdictions listed on Schedule 5.15(b), or
arrangements have been made for such filing in
such jurisdictions, and upon such filing, and upon
the taking of possession by the Administrative
Agent of any such collateral the security
interests in which may be perfected only by
possession, such security interests will, subject
to the existence of Permitted Liens, constitute
perfected first priority liens on, and security
interests in, all right, title and interest of the
debtor party thereto in the collateral described
therein, except to the extent that a security
interest cannot be perfected therein by the filing
of a financing statement or the taking of
possession under the Uniform Commercial Code of
the relevant jurisdiction.
(c) Upon execution and delivery thereof
by the Company, each Mortgage will be effective to
create in favor of the Administrative Agent, for
the ratable benefit of the Lenders, a legal, valid
and enforceable security interest in the
collateral described therein, and upon recording
the Mortgages in the jurisdictions listed on
Schedule 5.13 (or, in the case of a Mortgage
delivered pursuant to subsection 7.9, the
jurisdiction in which the property covered by such
Mortgage is located), such security interests
will, subject to the existence of Permitted Liens,
constitute first liens on, and perfected security
interests in, all rights, title and interest of
the debtor party thereto in the collateral
described therein.
5.16 Copyrights, Patents, Permits,
Trademarks and Licenses. Schedule 5.16 sets forth a
true and complete list as of the Closing Date of all
material trademarks (registered or unregistered), trade
names, service marks, patents, pending patent
applications and copyrights and applications therefor
owned, used or filed by or licensed to the Company and
its Subsidiaries (after giving effect to the Merger)
and, with respect to registered trademarks (if any),
contains a list of all jurisdictions in which such
trademarks are registered or applied for and all
registration and application numbers. Except as set
forth on Schedule 5.16, the Company or a Subsidiary
(after giving effect to the Merger) owns or has the
right to use, trademarks (registered or unregistered),
trade names, service marks, patents, pending patent
applications and copyrights and applications therefor
referred to in such Schedule. Except as set forth on
Schedule 5.16, to the best knowledge of the Company, no
claims are pending by any Person with respect to the
ownership, validity, enforceability or the Company's or
any Subsidiary's use of any such trademarks (registered
or unregistered), trade names, service marks, patents,
pending patent applications and copyrights, or
applications therefor, challenging or questioning the
validity or effectiveness of any of the foregoing, in
any jurisdiction, domestic or foreign, except to the
extent such claims could not reasonably be expected to
have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
5.17 Environmental Matters. Except insofar
as any exceptions to the following, individually or in
the aggregate, could not reasonably be expected to
result in a material adverse effect on the business,
assets, conditions (financial or otherwise) or
operations of the Company and its Subsidiaries taken as
a whole:
(a) to the best knowledge of the Company, the
properties owned, leased, or otherwise operated by
the Company or any of its Subsidiaries do not
contain, and have not previously contained, in, on
or under, including, without limitation, the soil
and groundwater thereunder, any Hazardous
Materials in amounts or concentrations that
constitute or constituted a violation of, or could
reasonably give rise to liability under,
Environmental Laws;
(b) to the best knowledge of the Company, the
properties owned or leased, or otherwise operated
by the Company or any of its Subsidiaries and all
operations and facilities at such properties are
in compliance with all Environmental Laws, and
there is no contamination or violation of any
Environmental Law which could interfere with the
continued operation of, or impair the fair
saleable value of, such property;
(c) neither the Company nor any of its
Subsidiaries has received or is aware of any
written complaint, notice of violation, alleged
violation, or notice of investigation or of
potential liability under Environmental Laws with
regard to the Company or its Subsidiaries, nor
does the Company or any of its Subsidiaries have
knowledge that any such action is being
contemplated, considered or threatened;
(d) to the best knowledge of the Company,
Hazardous Materials have not been generated,
treated, stored or disposed of at, on or under any
properties presently or formerly owned, leased, or
otherwise operated by the Company or any of its
Subsidiaries, nor have any Hazardous Materials
been transported from any such property, or come
to be located at any other property, in violation
of or in a manner that could reasonably give rise
to liability under any Environmental Laws; and
(e) there are no governmental administrative
actions or judicial proceedings pending or, to the
best knowledge of the Company and its
Subsidiaries, threatened under any Environmental
Law to which the Company or any of its
Subsidiaries is a party, nor are there any consent
decrees or other decrees, consent orders,
administrative orders or other orders, or other
administrative or judicial requirements, other
than permits authorizing operations by the Company
or any of its Subsidiaries, outstanding under any
Environmental Law.
5.18 Accuracy and Completeness of
Information. The factual statements contained in the
financial statements referred to in subsection 5.1, the
Form S-4, the 1996 Form 10-K, the Credit Documents
(including the schedules thereto), the Merger Agreement
and any other certificates or documents furnished or to
be furnished to the Administrative Agent or the Lenders
from time to time in connection with this Agreement,
taken as a whole, do not and will not, to the best
knowledge of the Company, as of the date when made,
contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements contained therein not misleading in light of
the circumstances in which the same were made, all
except as otherwise qualified herein or therein, such
knowledge qualification being given only with respect
to factual statements made by Persons other than the
Company or any of its Subsidiaries.
5.19 AcquisitionCo. To the best knowledge
of the Company, AcquisitionCo is a Delaware corporation
organized on behalf of the Investors to effect the
Merger and has not carried on any activities, incurred
any liabilities, assumed any obligations or acquired
any assets prior to the Closing Date other than those
incident to its formation and the transactions
contemplated by the Merger Agreement or by the Credit
Documents.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Loans and Letters
of Credit. The obligation of each Lender to make its
Loans, and the obligation of the Issuing Lender to
issue any Letter of Credit, on the Closing Date are
subject to the satisfaction, or waiver by such Lender,
immediately prior to or concurrently with the making of
such Loans or the issuance of such Letters of Credit,
as the case may be, of the following conditions:
(a) Agreement; Notes; Merger Agreement. The
Administrative Agent shall have received (i) a
counterpart of this Agreement for each Lender duly
executed and delivered by a duly authorized
officer of the Company, (ii) for the account of
each Revolving Credit Lender requesting the same
pursuant to subsection 4.13, a Revolving Credit
Note of the Company conforming to the requirements
hereof and executed by a duly authorized officer
of the Company, (iii) for the account of each Term
Loan Lender requesting the same pursuant to
subsection 4.13, a Term Loan Note, conforming to
the requirements hereof and executed by a duly
authorized officer of the Company, and (iv) for
the account of Chase, a Swing Line Note,
conforming to the requirements hereof and executed
by a duly authorized officer of the Company. The
Administrative Agent shall have received a copy of
the Merger Agreement.
(b) Merger. (i) The Merger shall be
consummated simultaneously pursuant to the Merger
Agreement with all fees, costs and expenses
incurred in connection therewith not to exceed
approximately $60,000,000, all of the conditions
precedent set forth in Article VI of the Merger
Agreement shall have been satisfied or waived by
the Company and no material provision of the
Merger Agreement shall have been amended,
supplemented, waived or otherwise modified by the
Company without the prior written consent of the
Administrative Agent, which consent shall not be
unreasonably withheld.
(ii) No more than $585,000,000 exclusive of fees
and expenses (which amount includes (i) the value
attributable to common stock of the Company retained by
the Existing Shareholders and (ii) the maintenance of a
Receivables Facility) shall be expended to repurchase
shares of the Company's common stock from existing
holders thereof and to refinance existing Indebtedness.
(c) Capitalization; Capital Structure (i)
(y) The Company shall have been capitalized by
the Investors (directly or indirectly through
AcquisitionCo) with at least $134,600,000 in cash
from the issuance of its common stock as described
in the Form S-4 (or otherwise having material
terms satisfactory to the Arranger and
representing at least 85% of the voting Capital
Stock of the Company) and (z) the value of the
common stock of the Company held by Existing
Shareholders (valued at a price per share equal to
the price at which the Investors purchased their
common stock), when added to the amount referred
to in clause (y) above, shall equal at least
$152,800,000.
(ii) The Company shall have received at
least $245,000,000 in gross cash proceeds from the
issuance by the Company of either (y) Bridge
Subordinated Debt pursuant to a Bridge Loan
Agreement executed and delivered by the parties
thereto in form and substance satisfactory to the
Lenders, which Bridge Loan Agreement shall be in
full force and effect and none of the provisions
thereof shall have been amended, waived,
supplemented or otherwise modified without the
prior written consent of the Administrative Agent;
or (z) Permanent Subordinated Debt.
(iii) An amendment to the Company's
existing Receivables Facility, increasing such
facility to an aggregate amount of approximately
$100,000,000 on terms and conditions reasonably
satisfactory to the Administrative Agent shall be
in effect.
(iv) The terms, conditions and
documentation of all equity securities of the
Company or any of its Subsidiaries to be
outstanding at or after the Closing Date, the
certificate of incorporation, by-laws, other
governing documents and the corporate and capital
structure of the Company and its Subsidiaries
(excluding the identity and amount of equity
contribution of any Investor), in each case after
giving effect to the consummation of the Merger,
shall be in form and substance satisfactory to the
Administrative Agent. All of the existing
Indebtedness of the Company and its Subsidiaries
(except for (i) a Receivables Facility, and (ii)
certain industrial revenue bonds and Financing
Leases in an amount not to exceed $4,000,000)
shall have been repaid on terms reasonably
satisfactory to the Administrative Agent.
The execution and delivery of this Agreement by the
Lenders and the Administrative Agent shall be deemed to
evidence the satisfaction of the Lenders and the
Administrative Agent with such of the matters
referenced and in clauses (i) through (iv) of this
paragraph (c) as shall have been disclosed and made
available to the Administrative Agent prior to the date
hereof.
(d) Financial Statements. (i) The Lenders
shall have received audited consolidated financial
statements of the Company for its two most
recently completed fiscal years, which financial
statements shall have been prepared in accordance
with GAAP; (ii) the Lenders shall have received
unaudited interim consolidated financial
statements of the Company for the quarterly period
ended as of March 31, 1997 and the monthly period
ended as of April 30, 1997 and such financial
statements shall not reflect any material adverse
change in the consolidated financial condition of
the Company as reflected in the financial
statements or projections previously delivered to
the Lenders, other than as disclosed in the Form S-
4 and 1996 Form 10-K; and (iii) the Lenders shall
have received a satisfactory pro forma balance
sheet on a consolidated basis of the Company and
its Subsidiaries as of April 30, 1997 reflecting
and giving effect to the Merger and the other
transactions contemplated hereby.
(e) Fees. The Administrative Agent, the
Arranger and the Lenders shall have received all
fees, expenses and other consideration presented
for payment required to be paid or delivered on or
before the Closing Date.
(f) Lien Searches; Lien Perfection. (i) The
Administrative Agent shall have received the
results of a search of Uniform Commercial Code,
tax and judgment filings made with respect to each
of the Company and its Subsidiaries in the
jurisdictions set forth on Schedule 5.15(b),
together with copies of financing statements
disclosed by such searches and such searches shall
disclose no Liens on any assets encumbered by any
Security Document, except for Liens permitted
hereunder or, if unpermitted Liens are disclosed,
the Administrative Agent shall have received
satisfactory evidence of the release of such Liens
and (ii) the Administrative Agent shall have
received duly executed financing statements on
Form UCC-1, necessary or, in the opinion of the
Administrative Agent, desirable to perfect the
Liens created by the Security Documents.
(g) Environmental. The Lenders shall be
reasonably satisfied, based upon the results of
the environmental diligence conducted by the
Administrative Agent and its advisors in
cooperation with the Company, with respect to
environmental hazards, conditions or liabilities
to which the Company or any of its Subsidiaries
may be subject (the execution and delivery of this
Agreement by the Lenders and the Administrative
Agent being deemed to evidence the satisfaction of
the Administrative Agent with such due diligence
as shall have been disclosed and made available to
the Administrative Agent prior to the date hereof)
along with letters from the firms preparing any
reports in connection therewith in the case of
Phase I environmental assessment reports
concerning facilities of the Company or its
Subsidiaries in Walnut, California, Holland,
Michigan and Perrysville, Ohio prepared in
anticipation of the Closing Date entitling the
Administrative Agent and each Lender to rely on
such reports as if prepared for and addressed to
each of them.
(h) Pledge Agreements. The Administrative
Agent shall have received the Company Pledge
Agreement and the Subsidiary Pledge Agreement
executed and delivered by a duly authorized
officer of the parties thereto, together with
stock certificates representing 100% of all issued
and outstanding shares of Capital Stock of each of
the Domestic Subsidiaries of the Company except
for any Receivables SPV, and undated stock powers
for each certificate, executed in blank and
delivered by a duly authorized officer of the
applicable pledgor and the acknowledgment and
consent of the issuer thereunder in the form
annexed thereto.
(i) Company Security Agreement. The
Administrative Agent shall have received the
Company Security Agreement, executed and delivered
by a duly authorized officer of the Company.
(j) Subsidiary Guarantee. The Administrative
Agent shall have received a Subsidiary Guarantee,
executed and delivered by a duly authorized
officer of each of the Domestic Subsidiaries of
the Company except for any Receivables SPV.
(k) Subsidiary Security Agreement. The
Administrative Agent shall have received a
Security Agreement, executed and delivered by a
duly authorized officer of each of the Domestic
Subsidiaries of the Company except for any
Receivables SPV.
(l) Legal Opinion. The Administrative Agent
shall have received, dated the Closing Date and
addressed to the Administrative Agent and the
Lenders, an opinion of (i) Xxxxxx, Xxxx & Xxxxxxxx
LLP, counsel to the Credit Parties, in
substantially the form of Exhibit K-1, with such
changes thereto as may be approved by the
Administrative Agent and its counsel and (ii) the
general counsel to the Company, in substantially
the form of Exhibit K-2, with such changes thereto
as may be approved by the Administrative Agent and
its counsel.
(m) Closing Certificate. The Administrative
Agent shall have received a Closing Certificate of
each Credit Party dated the Closing Date, in
substantially the form of Exhibits L-1 and L-2,
respectively, with appropriate insertions and
attachments, in form and substance satisfactory to
the Administrative Agent and its counsel, executed
by the President or any Vice President and the
Secretary or any Assistant Secretary of the
Company and its Subsidiaries, respectively.
(n) Solvency Opinion. The Administrative
Agent shall have received an opinion or opinions
of Xxxxxx, Xxxxxx & Co. in form and substance
satisfactory to it which shall document the
solvency of the Company and its Subsidiaries after
giving effect to the consummation of the Merger
and the other transactions and related financings
contemplated hereby.
(o) Insurance. The Administrative Agent
shall have received (i) a schedule describing all
insurance maintained by the Company and its
Subsidiaries pursuant to subsection 7.5, and (ii)
binders (or other customary evidence as to the
obtaining and maintenance by the Company of such
insurance) for each policy set forth on such
schedule insuring against casualty and other usual
and customary risks.
(p) Existing Credit Agreement. (i) On the
Closing Date, the commitments under the Existing
Credit Agreement shall have been terminated, all
loans thereunder shall have been repaid in full,
together with interest thereon, all letters of
credit issued thereunder shall have been
terminated or incorporated hereunder as, or
supported hereunder by, Letters of Credit, and all
other amounts owing pursuant to the Existing
Credit Agreement shall have been repaid in full,
and the Administrative Agent shall have received
evidence in form, scope and substance reasonably
satisfactory to it that the matters set forth in
this subsection have been satisfied at such time.
(ii) On the Closing Date, the creditors under
the Existing Credit Agreement shall have
terminated and released all Liens on the capital
stock of and assets owned by the Company and its
Subsidiaries, and the Administrative Agent shall
have received all such releases as may have been
requested by the Administrative Agent, which
releases shall be in form and substance reasonably
satisfactory to the Administrative Agent.
(q) Other Agreements. The Administrative
Agent shall have received each additional document
or instrument reasonably requested by the Required
Lenders.
(r) Litigation. On the Closing Date, other
than as disclosed in the Form S-4 or the 1996 Form
10-K, there shall be no actions, suits,
injunctions, restraining orders or proceedings
pending or threatened against any Credit Party (a)
with respect to this Agreement or any other Credit
Document or the transactions contemplated hereby
or thereby (including the Merger) which would be
reasonably expected to have a material adverse
effect on the rights or remedies of the Lenders
under the Credit Documents or on the ability of
any Credit Party to perform its respective
obligations to the Lenders hereunder or under any
other Credit Document or (b) which the
Administrative Agent or the Required Lenders shall
determine could reasonably be expected to have a
material adverse effect on the rights or remedies
of the Lenders hereunder or under any other Credit
Document or on the ability of any Credit Party to
perform its respective obligations to the Lenders
hereunder or under any other Credit Document.
(s) Consents, Approvals and Filings. Except
for the financing statements contemplated by the
Security Agreements and the Mortgages, on the
Closing Date, all necessary governmental and other
third party authorizations, consents, approvals or
waivers required in connection with the execution,
delivery and performance by the Credit Parties,
and the validity and enforceability against the
Credit Parties, of the Credit Documents to which
any of them is a party, or otherwise in connection
with the transactions contemplated by the Credit
Documents and the Merger Agreement, shall have
been obtained or made and remain in full force and
effect (except where the failure to do so would
not reasonably be expected to have a material
adverse effect on (x) the business, operations,
property, condition (financial or otherwise) of
the Company and its Subsidiaries, taken as a
whole, or (y) (I) the validity or enforceability
of this Agreement, any of the Notes or the other
Credit Documents or (II) the rights or remedies of
the Administrative Agent or the Lenders hereunder
or thereunder), and all applicable waiting periods
shall have expired without any action being taken
by any competent authority which restrains or
prevents such transactions or imposes materially
adverse conditions upon the consummation of such
transactions.
(t) Contractual Restrictions. The Company
and its Subsidiaries shall not be subject to any
material contractual or other restrictions that
would be violated by the Merger or the other
transactions hereby, including the granting of
security interests and guarantees and the payment
of dividends by Subsidiaries.
6.2 Conditions to All Loans and Letters of
Credit. The obligation of each Lender to make any Loan
(other than any Revolving Credit Loan the proceeds of
which are to be used to repay Refunded Swing Line
Loans) 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:
(a) Representations and Warranties. Each of
the representations and warranties made in or
pursuant to Section 5 or which are contained in
any other Credit Document shall be true and
correct in all material respects on and as of the
date of such Loan or of the issuance of such
Letter of Credit as if made on and as of such date
(unless stated to relate to a specific earlier
date, in which case, such representations and
warranties shall be true and correct in all
material respects as of such earlier date).
(b) No Default or Event of Default. No
Default or Event of Default shall have occurred
and be continuing on such Borrowing Date or after
giving effect to such Loan to be made or such
Letter of Credit to be issued on such Borrowing
Date.
Each borrowing by the Company hereunder and the issuance of
each Letter of Credit by the Issuing Lender hereunder shall
constitute a representation and warranty by the Company as
of the date of such borrowing or issuance that the
conditions in clauses (a) and (b) and of this subsection 6.2
have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the
Commitments remain in effect, any Loan, Note or L/C
Obligation remains outstanding and unpaid, any amount
(unless cash in an amount equal to such amount has been
deposited to a cash collateral account established by the
Administrative Agent) remains available to be drawn under
any Letter of Credit or any other amount is owing to any
Lender or the Administrative Agent hereunder or under any of
the other Credit Documents, it shall, and, in the case of
the agreements contained in subsections 7.3 through 7.6, and
7.8 through 7.9, the Company shall cause each of its
Subsidiaries to:
7.1 Financial Statements. Furnish to the
Administrative Agent (with sufficient copies for each
Lender which the Administrative Agent shall promptly
furnish to each Lender):
(a) as soon as available, but in any event
within 95 days after the end of each fiscal year
of the Company, a copy of the consolidated balance
sheet of the Company and its consolidated
Subsidiaries as at the end of such fiscal year and
the related consolidated statements of
stockholders' equity and cash flows and the
consolidated statements of income of the Company
and its Subsidiaries for such fiscal year, setting
forth in each case in comparative form the figures
for the previous year and, in the case of the
consolidated balance sheet referred to above,
reported on, without a "going concern" or like
qualification or exception, or qualification
arising out of the scope of the audit, or
qualification which would affect the computation
of financial covenants, by independent certified
public accountants of nationally recognized
standing;
(b) as soon as available, but in any event
not later than 50 days after the end of each of
the first three quarterly periods of each fiscal
year of the Company, the unaudited consolidated
balance sheet of the Company and its Subsidiaries
as at the end of each such quarter and the related
unaudited consolidated statements of income and
cash flows of the Company and its Subsidiaries for
such quarterly period and the portion of the
fiscal year of the Company through such date,
setting forth in each case in comparative form the
figures for the corresponding quarter in, and year
to date portion of, the previous year, and the
figures for such periods in the budget prepared by
the Company and furnished to the Administrative
Agent, certified by the chief financial officer,
controller or treasurer of the Company as being
fairly stated in all material respects;
(c) as soon as available, but in any event
not later than 45 days after the beginning of each
fiscal year of the Company to which such budget
relates, a preliminary consolidated operating
budget for the Company and its Subsidiaries taken
as a whole; and as soon as available, any material
revision to or any final revision of any such
preliminary annual operating budget or any such
consolidated operating budget; and
(d) concurrently with the delivery of
financial statements pursuant to subsection 7.1(a)
or (b), a certificate of the chief financial
officer or treasurer of the Company setting forth,
in reasonable detail, the computations of Capital
Expenditures as of the last day of the fiscal
period covered by such financial statements, the
ratio of Consolidated Funded Indebtedness to
Consolidated EBITDA as of such last day, and the
Interest Coverage Ratio as of such last day;
all such financial statements to be complete and correct in
all material respects (subject, in the case of interim
statements, to normal year-end audit adjustments) and to be
prepared in reasonable detail and (except in the case of the
statements referred to in paragraphs (c) and (d) of this
subsection 7.1) in accordance with GAAP.
7.2 Certificates; Other Information.
Furnish to the Administrative Agent (with sufficient
copies for each Lender which the Administrative Agent
shall promptly deliver to each Lender):
(a) concurrently with the delivery of the
consolidated financial statements referred to in
subsection 7.1(a), a letter from the independent
certified public accountants reporting on such
financial statements stating that in making the
examination necessary to express their opinion on
such financial statements no knowledge was
obtained of any Default or Event of Default under
subsections 4.4(b), 8.1, 8.3, and 8.5 through
8.11, except as specified in such letter;
(b) within 15 days of the delivery of the
financial statements referred to in subsections
7.1(a) and (b) (except that the certificate
referred to in clause (iii) below shall be
delivered concurrently with such financial
statements), a certificate of the chief financial
officer or treasurer of the Company stating that,
to the best of such officer's knowledge, during
such period (i) no Subsidiary has been formed or
acquired (or, if any such Subsidiary has been
formed or acquired, the Company has complied with
the requirements of subsection 7.9 with respect
thereto), (ii) neither the Company nor any of its
Subsidiaries has changed its name, its principal
place of business, its chief executive office or
the location of any material item of tangible
Collateral without complying with the requirements
of this Agreement and the Security Documents with
respect thereto, (iii) each of the Company and its
Subsidiaries has observed or performed all of its
respective covenants and other agreements, and
satisfied every material condition, contained in
this Agreement, the Notes and the other Credit
Documents to be observed, performed or satisfied
by it, and that such officer has obtained no
knowledge of any Default or Event of Default
except as specified in such certificate, (iv)
showing in detail as of the end of the related
fiscal period the figures and calculations
supporting such statement in respect of clause (e)
of subsection 8.1, clauses (b) and (e) of
subsection 8.3 and subsections 8.6 through 8.11
and any other calculations reasonably requested by
the Administrative Agent with respect to the
quantitative aspects of the other covenants
contained herein, (v) if not specified in the
financial statements delivered pursuant to
subsection 7.1, specifying the aggregate amount of
interest paid or accrued by the Company and its
Subsidiaries, and the aggregate amount of
depreciation, depletion and amortization charged
on the books of the Company and its Subsidiaries,
during such accounting period, and (vi) identify
any owned Real Property of the Company or a
Domestic Subsidiary acquired during such
accounting period that, together with any
improvements thereon, has a value of at least
$5,000,000;
(c) promptly upon receipt thereof, copies of
all final reports submitted to the Company or to
any of its Subsidiaries by independent certified
public accountants in connection with each annual,
interim or special audit of the books of the
Company or any of its Subsidiaries made by such
accountants, and, upon the request of any Lender
(through the Administrative Agent), any final
comment letter submitted by such accountants to
management in connection with their annual audit;
(d) promptly upon their becoming available,
copies of all financial statements, reports,
notices and proxy statements sent or made
available to the public generally by the Company
or any of its Subsidiaries, if any, and all
regular and periodic reports and all final
registration statements and final prospectuses, if
any, filed by the Company or any of its
Subsidiaries with any securities exchange or with
the Securities and Exchange Commission or any
Governmental Authority succeeding to any of its
functions;
(e) concurrently with the delivery of the
financial statements referred to in subsections
7.1(a) and (b), a management summary describing
and analyzing the performance of the Company and
its Subsidiaries during the periods covered by
such financial statements;
(f) within 50 days after the end of each
fiscal quarter, a summary of all Asset Sales
during such fiscal quarter including the amount of
all Net Proceeds from such Asset Sales not
previously applied to prepayments of the Loans and
reductions of the Commitments pursuant to the
proviso to subsection 4.4(b)(iii); and
(g) promptly, such additional financial and
other information as any Lender may from time to
time reasonably request (through the
Administrative Agent).
7.3 Payment of Obligations. Pay, discharge
or otherwise satisfy at or before maturity or before
they become delinquent, as the case may be, all its
obligations and liabilities of whatever nature, except
(a) when the amount or validity thereof is currently
being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with
respect thereto have been provided on the books of the
Company or any of its Subsidiaries, as the case may be,
(b) for delinquent obligations which do not have a
material adverse effect on the business, assets,
condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries taken as
a whole and (c) for trade and other accounts payable in
the ordinary course of business which are not overdue
for a period of more than 90 days or, if overdue for
more than 90 days, as to which a dispute exists and
adequate reserves in conformity with GAAP have been
established on the books of the Company or any of its
Subsidiaries, as the case may be.
7.4 Conduct of Business and Maintenance of
Existence. Continue to engage in businesses of the
same general type as now conducted by it (after giving
effect to the Merger), and preserve, renew and keep in
full force and effect its corporate existence and take
all reasonable action to maintain all material rights,
material privileges, franchises, copyrights, patents,
trademarks and trade names necessary or desirable in
the normal conduct of its business except for rights,
privileges, franchises, copyrights, patents, trademarks
and tradenames the loss of which would not in the
aggregate have a material adverse effect on the
business, assets, condition (financial or otherwise) or
results of operations of the Company and its
Subsidiaries taken as a whole, and except as otherwise
permitted by subsections 8.4 and 8.5; and comply with
all applicable Requirements of Law except to the extent
that the failure to comply therewith would not, in the
aggregate, have a material adverse effect on the
business, assets, condition (financial or otherwise) or
results of operations of the Company and its
Subsidiaries taken as a whole.
7.5 Maintenance of Property; Insurance. (a)
Keep all property useful and necessary in its business
in good working order and condition (ordinary wear and
tear excepted); and
(b) Maintain with financially sound and
reputable insurance companies insurance on all its
property in at least such amounts and with only
such deductibles as are usually maintained by, and
against at least such risks (but including, in any
event, public liability insurance) as are usually
insured against in the same general area by,
companies engaged in the same or a similar
business, and furnish to each Lender, (i)
annually, a schedule disclosing (in a manner
substantially similar to that used in the schedule
provided pursuant to subsection 6.1(o)) all
insurance against products liability risk
maintained by the Company and its Subsidiaries
pursuant to this subsection 7.5(b) or otherwise
and (ii) upon written request of any Lender, full
information as to the insurance carried; provided
that the Company may implement programs of self
insurance in the ordinary course of business and
in accordance with industry standards for a
company of similar size so long as reserves are
maintained in accordance with GAAP for the
liabilities associated therewith.
7.6 Inspection of Property; Books and
Records; Discussions. Keep proper books of record and
account in which full, true and correct entries are
made of all dealings and transactions in relation to
its business and activities which permit financial
statements to be prepared in conformity with GAAP and
all Requirements of Law; and permit representatives of
any Lender upon reasonable notice (made through the
Administration Agent and no more frequently than
quarterly unless a Default or Event of Default shall
have occurred and be continuing) to visit and inspect
any of its properties and examine and make abstracts
from any of its books and records at any reasonable
time and as often as may reasonably be requested upon
reasonable notice, and to discuss the business,
operations, assets and financial and other condition of
the Company and its Subsidiaries with officers and
employees thereof and with their independent certified
public accountants with prior reasonable notice to, and
coordination with, the chief financial officer or the
treasurer of the Company.
7.7 Notices. Promptly give notice to the
Administrative Agent (to be distributed by the
Administrative Agent to the Lenders):
(a) of the occurrence of any Default or Event
of Default;
(b) of any (i) default or event of default
under any instrument or other agreement, guarantee
or collateral document of the Company or any of
its Subsidiaries which default or event of default
has not been waived and would have a material
adverse effect on the business, assets, condition
(financial or otherwise) or results of operations
of the Company and its Subsidiaries taken as a
whole, or any other default or event of default
under any such instrument, agreement, guarantee or
other collateral document which, but for the
proviso to clause (e) of Section 9, would have
constituted a Default or Event of Default under
this Agreement, or (ii) litigation, investigation
or proceeding which may exist at any time between
the Company or any of its Subsidiaries and any
Governmental Authority, or receipt of any notice
of any environmental claim or assessment against
the Company or any of its Subsidiaries by any
Governmental Authority, which in any such case
would have a material adverse effect on the
business, assets, condition (financial or
otherwise) or results of operations of the Company
and its Subsidiaries taken as a whole;
(c) of any litigation or proceeding against
the Company or any of its Subsidiaries (other than
with respect to Ultravent to the extent previously
disclosed to the Lenders; provided that the
Company shall promptly give notice to the
Administrative Agent of material adverse
developments (in the nature of court decisions) in
any such previously disclosed Ultravent litigation
or proceeding or of any new material litigation or
proceeding) (i) in which more than $5,000,000 of
the amount claimed is not covered by insurance or
(ii) in which injunctive or similar relief is
sought which if obtained would have a material
adverse effect on the business, assets, condition
(financial or otherwise) or results of operations
of the Company and its Subsidiaries taken as a
whole;
(d) of the following events, as soon as
practicable after, and in any event within 30 days
after, the Company knows or has reason to know
thereof: (i) the occurrence of any Reportable
Event with respect to any Plan which Reportable
Event could reasonably result in material
liability to the Company and its Subsidiaries
taken as a whole, or (ii) the institution of
proceedings or the taking of any other action by
PBGC, the Company or any Commonly Controlled
Entity to terminate, withdraw or partially
withdraw from any Plan and, with respect to a
Multiemployer Plan, the Reorganization or
Insolvency of such Plan, in each of the foregoing
cases which could reasonably result in material
liability to the Company and its Subsidiaries
taken as a whole, and in addition to such notice,
deliver to the Administrative Agent and each
Lender whichever of the following may be
applicable: (A) a certificate of a Responsible
Officer of the Company setting forth details as to
such Reportable Event and the action that the
Company or such Commonly Controlled Entity
proposes to take with respect thereto, together
with a copy of any notice of such Reportable Event
that may be required to be filed with PBGC, or (B)
any notice delivered by PBGC evidencing its intent
to institute such proceedings or any notice to
PBGC that such Plan is to be terminated, as the
case may be;
(e) concurrently with the delivery of the
information delivered pursuant to subsection
7.2(f) and each prepayment required pursuant to
subsection 4.4(b)(iii), of any Asset Sale or
substantially like-kind exchange of real property
by the Company or any of its Subsidiaries; and
(f) of a material adverse change known to the
Company or its Subsidiaries in the business,
assets, condition (financial or otherwise) or
results of operations of the Company and its
Subsidiaries taken as a whole.
Each notice pursuant to this subsection 7.7 shall be
accompanied by a statement of a Responsible Officer of the
Company setting forth details of the occurrence referred to
therein and (in the cases of clauses (a) through (d))
stating what action the Company proposes to take with
respect thereto.
7.8 Environmental Laws. (a) (i) Comply with
all Environmental Laws applicable to it, and obtain,
comply with and maintain any and all Environmental
Permits necessary for its operations as conducted and
as planned; and (ii) take reasonable efforts to ensure
that all of its tenants, subtenants, contractors,
subcontractors, and invitees comply with all
Environmental Laws, and obtain, comply with and
maintain any and all Environmental Permits, applicable
to any of them insofar as any failure to so comply,
obtain or maintain could result in a material adverse
effect on the Company and its Subsidiaries taken as a
whole. Noncompliance by the Company or any of its
Subsidiaries with any applicable Environmental Law or
Environmental Permit shall be deemed not to constitute
a breach of this 7.8(a); provided that, upon learning
of any such noncompliance, the Company and its
Subsidiaries shall promptly undertake reasonable
efforts to achieve compliance or to contest by
appropriate proceedings any alleged noncompliance and,
provided, further, that, in any case, such
noncompliance, and any other noncompliance with
Environmental Law and any contesting of allegations of
noncompliance with Environmental Laws, individually or
in the aggregate, could not reasonably be expected to
give rise to a material adverse effect on the Company
and its Subsidiaries taken as a whole.
(b) Comply in a timely manner with all orders and
lawful directives regarding Environmental Laws issued to the
Company or any of its Subsidiaries by any Governmental
Authority, other than such orders and lawful directives as
to which an appeal or other challenge has been timely and
properly taken in good faith and the pendency of any and all
such appeals and other challenges could not reasonably be
expected to give rise to a material adverse effect on the
Company and its Subsidiaries taken as a whole.
(c) Maintain, update as appropriate, and implement
in all material respects an environmental program reasonably
designed to (i) ensure that the Company, its Subsidiaries,
any of their respective operations (including, without
limitation, disposal), and any properties owned, leased or
operated by any of them, attain and remain in substantial
compliance with all applicable Environmental Laws; (ii)
reasonably and prudently manage any liabilities or potential
liabilities that the Company, any of the other Credit
Parties, any of their respective operations (including,
without limitation, disposal), and any properties owned or
leased by any of them, may have under all applicable
Environmental Laws; and (iii) ensure that the Company and
its Subsidiaries undertake reasonable efforts to identify,
and reasonably evaluate, issues of compliance with and
liability under Environmental Laws prior to acquiring,
directly or indirectly, any ownership or leasehold interest
in real property, or other interest in any real property
that could give rise to Company or any of its Subsidiaries
being subjected to liability under any Environmental Law as
a result of such acquisition.
7.9 Additional Collateral. (a) Subject to
subsection 7.9(e), with respect to any assets acquired
after the Closing Date by the Company or any of its
Domestic Subsidiaries that are intended to be subject
to the Lien created by any of the Security Documents
but which are not so subject (but, in any event,
excluding (x) any assets described in paragraph (b) or
(c) of this subsection, (y) immaterial assets and (z)
Receivables Facility Assets), promptly (and in any
event within 30 days after the acquisition thereof):
(i) execute and deliver to the Administrative Agent
such amendments or supplements to the relevant Security
Documents or such other documents as the Administrative
Agent shall deem necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a
Lien on such assets, and (ii) take all actions
necessary or advisable to cause such Lien to be duly
perfected to the extent required by such Security
Document in accordance with all applicable Requirements
of Law, including, without limitation, the filing of
financing statements in such jurisdictions as may be
reasonably requested by the Administrative Agent.
(b) With respect to any Person that is
or becomes a Subsidiary (other than (y) any
Foreign Subsidiary or (z) any Receivables SPV)
that has material assets, promptly upon the
request of the Administrative Agent: (i) execute
and deliver to the Administrative Agent, for the
benefit of the Lenders, a new pledge agreement or
such amendments to the relevant Pledge Agreement
as the Administrative Agent reasonably shall deem
necessary or advisable to grant to the
Administrative Agent, for the benefit of the
Lenders, a Lien on the Capital Stock of such
Subsidiary which is owned by the Company or any of
its Subsidiaries, (ii) deliver to the
Administrative Agent the certificates representing
such Capital Stock, together with undated stock
powers executed and delivered in blank by a duly
authorized officer of the Company or such
Subsidiary, as the case may be, and (iii) cause
such new Subsidiary (A) to become a party to the
Subsidiary Guarantee and the Subsidiary Security
Agreement or such comparable documentation which
is in form and substance reasonably satisfactory
to the Administrative Agent, and (B) to take all
actions necessary or advisable to cause the Lien
created by the Subsidiary Security Agreement to be
duly perfected to the extent required by such
agreement in accordance with all applicable
Requirements of Law, including, without
limitation, the filing of financing statements in
such jurisdictions as may be reasonably requested
by the Administrative Agent.
(c) With respect to any Person that is
or becomes a Foreign Subsidiary and that has
material assets, promptly upon the request of the
Administrative Agent: (i) execute and deliver to
the Administrative Agent a new pledge agreement or
such amendments to the relevant Pledge Agreement
as the Administrative Agent reasonably shall deem
necessary or advisable to grant to the
Administrative Agent, for the benefit of the
Lenders, a Lien on the Capital Stock of such
Subsidiary which is owned by the Company or any of
its Subsidiaries (provided that in no event shall
more than 65% of the Capital Stock of any such
Foreign Subsidiary be required to be so pledged),
(ii) deliver to the Administrative Agent any
certificates representing such Capital Stock,
together with undated stock powers executed and
delivered in blank by a duly authorized officer of
the Company or such Subsidiary, as the case may
be, and take or cause to be taken all such other
actions under the law of the jurisdiction of
organization of such Foreign Subsidiary as may be
necessary or advisable to perfect such Lien on
such Capital Stock, and if requested by the
Administrative Agent, deliver to the
Administrative Agent legal opinions relating to
the matters described in clauses (i) and (ii)
immediately preceding, which opinions shall be in
form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
(d) Within 10 days of the Closing Date,
the Administrative Agent shall have received (i)
fully executed counterparts of deeds of trust,
leasehold deeds of trust, mortgages, leasehold
mortgages and similar documents in each case in
form and substance reasonably satisfactory to the
Administrative Agent and substantially in the form
of Exhibit M (each a "Mortgage" and collectively,
the "Mortgages") covering all the Mortgaged
Properties, and arrangements reasonably
satisfactory to the Administrative Agent shall be
in place to provide that counterparts of such
Mortgages shall be promptly recorded upon
execution in all places to the extent necessary or
desirable, in the reasonable judgment of the
Administrative Agent, effectively to create a
valid and enforceable first priority Lien, subject
only to Permitted Liens, on each Mortgaged
Property in favor of the Administrative Agent (or
such other trustee as may be required or desired
under local law) for the benefit of the Lenders,
(ii) a lender's title insurance policy, paid for
by the Company, issued by a nationally recognized
title insurance company, together with such
endorsements, coinsurance and reinsurance as may
be reasonably requested by the Administrative
Agent, in form and substance reasonably acceptable
to the Administrative Agent, insuring each
Mortgage as a first lien on the relevant Mortgaged
Property and subject only to Liens expressly
agreed to by the Administrative Agent and (iii)
such other documents (including without
limitation, current ALTA/ASCM surveys of any
parcel of Real Property made in accordance with
ALTA/ASCM standards, including Table A, Items Nos.
1-4 and 6-13) as are reasonably required by the
Administrative Agent.
(e) Upon the request of the
Administrative Agent, the Company will, and will
cause its Domestic Subsidiaries to, promptly grant
to the Administrative Agent, within 60 days of
such request, security interests and mortgages (an
"Additional Mortgage") in such owned Real Property
of the Company and its Domestic Subsidiaries as
are acquired after the Closing Date by the Company
or such Subsidiary and that, together with any
improvements thereon, individually have a value of
at least $5,000,000, as additional security for
the obligations of the Credit Parties under any
Credit Document (unless the subject property is
already mortgaged to a third party to the extent
permitted by subsection 8.2). Such Mortgages
shall be granted pursuant to documentation
reasonably satisfactory in form and substance to
the Administrative Agent and shall constitute
valid and enforceable perfected Liens subject only
to Permitted Liens and such other Liens reasonably
acceptable to the Administrative Agent. The
Additional Mortgages or instruments related
thereto shall be duly recorded or filed in such
manner and in such places as are required by law
to establish, perfect, preserve and protect the
Liens in favor of the Administrative Agent
required to be granted pursuant to the Additional
Mortgages and all taxes, fees and other charges
payable in connection therewith shall be paid in
full. If requested by the Administrative Agent or
the Required Lenders, the Company shall provide a
lender's title policy with respect to each such
Additional Mortgage conforming to the requirements
of subsection 7.9(d).
SECTION 8. NEGATIVE COVENANTS
The Company hereby agrees that it shall not, and
the Company shall not permit any of its Subsidiaries to,
directly or indirectly so long as the Commitments remain in
effect or any Loan, Note or L/C Obligation remains
outstanding and unpaid, any amount (unless cash in an amount
equal to such amount has been deposited to a cash collateral
account established by the Administrative Agent) remains
available to be drawn under any Letter of Credit or any
other amount is owing to any Lender or the Administrative
Agent hereunder or under any other Credit Document (it being
understood that each of the permitted exceptions to each of
the covenants in this Section 8 is in addition to, and not
overlapping with, any other of such permitted exceptions
except to the extent expressly provided):
8.1 Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a) the Indebtedness outstanding on the
Closing Date and reflected on Schedule 8.1(a),
including the refinancing of any such Indebtedness
on terms and conditions taken as a whole no less
favorable to the Company and its Subsidiaries or
the Lenders;
(b) Indebtedness consisting of the Loans
and in connection with the Letters of Credit and
this Agreement;
(c) Indebtedness (i) of the Company to
any Subsidiary, (ii) of any Domestic Subsidiary to
the Company or any other Subsidiary; provided that
such Indebtedness referred to in this clause (c),
if to the Company or any Domestic Subsidiary, is
evidenced by a promissory note or promissory notes
which has or have been pledged to the
Administrative Agent on terms and conditions
satisfactory to the Administrative Agent and (iii)
of any Foreign Subsidiary to the Company or any
other Subsidiary in an aggregate principal amount
at any time outstanding not to exceed $25,000,000
plus the sum of any amounts dividended or
distributed to the Company or any Domestic
Subsidiary by any Foreign Subsidiary, less the sum
of (A) the amount of any guarantees of obligations
of Foreign Subsidiaries pursuant to subsection
8.3(c)(ii) and (B) the amount of any investments
made in a Foreign Subsidiary pursuant to
subsection 8.6(b)(iii);
(d) Indebtedness of the Company in
respect of:
(i)(y) up to $247,000,000 principal
amount of Bridge Subordinated Debt issued on
the Closing Date, and additional principal
amount of Bridge Subordinated Debt issued in
lieu of cash interest on the outstanding
Bridge Subordinated Debt and otherwise as
contemplated by the Bridge Loan Agreement
upon exchange of Bridge Subordinated Debt
into exchange notes or (z) up to $145,000,000
principal amount of Senior Subordinated Notes
and up to $170,000,000 principal amount of
Senior Discount Notes, in each case, issued
on the Closing Date; and
(ii) Permanent Subordinated Debt in
an aggregate principal amount not to exceed
the sum of (A) $145,000,000 in aggregate
principal amount of Senior Subordinated Notes
(or any refinancing thereof permitted
hereunder) and 6% of such amount plus (B) the
accreted value of such Senior Discount Notes
(or any refinancing thereof permitted
hereunder) at the time of such refinancing
and 6% of such value, the proceeds (net of
any fees and expenses in connection
therewith) of which shall be applied to
prepay, redeem, retire or repurchase either
(I) the outstanding principal amount of the
Bridge Subordinated Debt or (II) Permanent
Subordinated Debt.
(e) Indebtedness of the Company and its
Subsidiaries for industrial revenue bonds or other
similar governmental and municipal bonds, for the
deferred purchase price of newly acquired property
and to finance equipment of the Company and its
Subsidiaries (pursuant to purchase money mortgages
or otherwise and whether owed to the seller or a
third party) used in the ordinary course of
business (provided such financing is entered into
within 180 days of the acquisition of such
property) of the Company and its Subsidiaries in
an amount (based on the remaining balance of the
obligations therefor on the books of the Company
and its Subsidiaries) which shall not exceed
$25,000,000 in the aggregate at any one time
outstanding and Indebtedness of the Company and
its Subsidiaries in respect of Financing Leases to
the extent subsections 8.7 and 8.10 would not be
contravened;
(f) Indebtedness of the Company and its
Domestic Subsidiaries in an aggregate principal
amount at any one time outstanding not in excess
of $25,000,000;
(g) Indebtedness of the Company or any
of its Subsidiaries pursuant to one or more
Receivables Facilities;
(h) Indebtedness in respect of letters
of credit (other than Letters of Credit issued
hereunder) in an aggregate principal amount equal
to $25,000,000 at any one time outstanding;
(i)(i) Indebtedness assumed in
connection with acquisitions permitted by
subsection 8.6(g) (so long as such Indebtedness
was not incurred in anticipation of such
acquisitions), (ii) Indebtedness of newly acquired
Subsidiaries acquired in such acquisitions (so
long as such Indebtedness was not incurred in
anticipation of such acquisition) and (iii)
Indebtedness owed to the seller in any acquisition
permitted by subsection 8.6(g) constituting part
of the purchase price thereof, all of which
Indebtedness permitted by this subsection 8.1(i)
shall not exceed in the aggregate at any one time
$25,000,000 outstanding;
(j) Indebtedness in connection with
workmen's compensation obligations and general
liability exposure of the Company and its
Subsidiaries;
(k) Additional unsecured subordinated
indebtedness of the Company and its Subsidiaries
provided that (i) such Indebtedness shall not
exceed $10,000,000 in aggregate principal amount
at any time outstanding plus any additional
principal amount of such Indebtedness issued in
lieu of cash interest on such outstanding
Indebtedness or any refinancing thereof, (ii) no
part of the principal amount of such Indebtedness
shall have a maturity date earlier than the
one-year anniversary of the final Installment
Payment Date and (iii) the non-default interest
rate thereon shall not exceed 12% per annum; and
(l) Indebtedness of Foreign Subsidiaries
in an aggregate principal amount at any time
outstanding not in excess of the equivalent at the
date of each incurrence thereof of $25,000,000.
8.2 Limitation on Liens. Create, incur,
assume or suffer to exist any Lien upon any of its
property, assets, income or profits, whether now owned
or hereafter acquired, except:
(a) Liens for taxes, assessments or
other governmental charges not yet delinquent or
which are being contested in good faith and by
appropriate proceedings if adequate reserves with
respect thereto are maintained on the books of the
Company or such Subsidiary, as the case may be, in
accordance with GAAP;
(b) carriers', warehousemen's,
mechanics', landlords', materialmen's, repairmen's
or other like Liens arising in the ordinary course
of business in respect of obligations which are
not yet due or which are bonded or which are being
contested in good faith and by appropriate
proceedings if adequate reserves with respect
thereto are maintained on the books of the Company
or such Subsidiary, as the case may be, in
accordance with GAAP;
(c) pledges or deposits in connection
with workmen's compensation, unemployment
insurance and other social security legislation;
(d) deposits to secure the performance
of bids, tenders, trade or government contracts
(other than for borrowed money), leases, licenses,
statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like
nature incurred in the ordinary course of
business;
(e) easements (including, without
limitation, reciprocal easement agreements),
rights-of-way, building, zoning and similar
restrictions, utility agreements, covenants,
reservations, restrictions, encroachments,
changes, and other similar encumbrances or title
defects incurred, or leases or subleases granted
to others, in the ordinary course of business,
which do not in the aggregate materially detract
from the aggregate value of the properties of the
Company and its Subsidiaries, taken as a whole, or
in the aggregate materially interfere with or
adversely affect in any material respect the
ordinary conduct of the business of the Company
and its Subsidiaries on the properties subject
thereto, taken as a whole;
(f) Liens in favor of the Administrative
Agent and the Lenders pursuant to the Credit
Documents, including Liens pursuant to the Credit
Documents in respect of Interest Rate Agreements,
and bankers' liens arising by operation of law;
(g) Liens on property of the Company or
any of its Subsidiaries created solely for the
purpose of securing Indebtedness permitted by
subsection 8.1(e) representing or incurred to
finance, refinance or refund the purchase price of
property, 8.1(i) (so long as in the case of
clauses (i) and (ii) thereof such Lien was not
incurred in anticipation of the related
acquisition), or 8.1(l) provided that no such Lien
incurred in connection with Indebtedness pursuant
to subsection 8.1(e) and 8.1(i) shall extend to or
cover other property of the Company or such
Subsidiary other than the respective property so
acquired, and the principal amount of Indebtedness
secured by any such Lien shall at no time exceed
the original purchase price of such property;
(h) Liens existing on the Closing Date
after giving effect to the consummation of the
Merger and described in subsection 5.13 or
Schedule 8.2(h) (including the extension of any
Liens listed on such Schedule relating to any
Indebtedness permitted under subsection 8.1(a) in
connection with any refinancing of such
Indebtedness permitted by such subsection and any
Liens securing Indebtedness to be repaid on the
Closing Date to the extent the Company has made
arrangements to terminate such Liens in a manner
satisfactory to the Administrative Agent),
provided that no such Lien shall extend to or
cover other property of the Company or the
respective Subsidiary other than the respective
property so encumbered and the principal amount of
Indebtedness secured by any such Lien shall at no
time exceed the original principal amount of the
Indebtedness so secured;
(i) Liens on documents of title and the
property covered thereby securing Indebtedness in
respect of the Commercial L/Cs;
(j)(i) mortgages, liens, security
interests, restrictions, encumbrances or any other
matter of record that have been placed by any
developer, landlord or other third party on
property over which the Company or any Subsidiary
of the Company has easement rights or on any
Leased Property and subordination or similar
agreements relating thereto and (ii) any
condemnation or eminent domain proceedings
affecting any real property;
(k) Liens in connection with workmen's
compensation obligations and general liability
exposure of the Company and its Subsidiaries;
(l) Liens on goods (and proceeds
thereof) securing reimbursement obligations in
respect of commercial letters of credit issued in
accordance with the terms of this Agreement; and
(m) Liens on any Receivables Facility
Assets to secure the repayment of any Indebtedness
incurred under any Receivables Facility permitted
by subsection 8.1(g).
8.3 Limitation on Contingent Obligations.
Create, incur, assume or suffer to exist any Contingent
Obligation except:
(a) the Guarantees;
(b) other guarantees by the Company
incurred in the ordinary course of business for an
aggregate amount not to exceed $5,000,000 at any
one time;
(c) guarantees by the Company or any
Domestic Subsidiary (i) of obligations of Domestic
Subsidiaries of the Company or the Company and
(ii) of obligations of Foreign Subsidiaries of the
Company in an aggregate principal amount not to
exceed $25,000,000 plus the sum of any amounts
dividended or distributed to the Company or any
Domestic Subsidiary by such Foreign Subsidiaries,
less any amounts outstanding in accordance with
subsections 8.1(c)(iii) and 8.6(b)(iii).
(d) Contingent Obligations existing on
the Closing Date and described in Schedule 8.3(d)
and Contingent Obligations relating to any
Indebtedness permitted under subsection 8.1(a);
(e) guarantees of obligations to third
parties in connection with relocation of employees
of the Company or any of its Subsidiaries, in an
amount which, together with all loans and advances
made pursuant to subsection 8.6(f), shall not
exceed $5,000,000 at any time outstanding;
(f) Contingent Obligations in connection
with workmen's compensation obligations and
general liability exposure of the Company and its
Subsidiaries; and
(g) subordinated guarantees in respect
of the Subordinated Debt issued by Subsidiaries of
the Company which have also issued Guarantees,
provided that such subordinated guarantees are
subordinated to the Guarantees on substantially
the same basis as the Subordinated Debt is
subordinated to the Loans.
8.4 Prohibition of Fundamental Changes.
Enter into any merger or consolidation or amalgamation,
or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or engage in any type of
business other than of the same general type now
conducted by it, except (a) for the transactions
otherwise permitted pursuant to clause (b) of
subsection 8.5, (b) any Subsidiary of the Company may
be merged with and into the Company or a wholly-owned
Domestic Subsidiary of the Company, (c) Subsidiaries
with a net book value not greater than $100,000 may be
dissolved and (d) any Subsidiary may otherwise be
dissolved; provided that upon dissolution, the assets
of such Subsidiary are transferred to the Company or a
wholly-owned Domestic Subsidiary of the Company on the
terms and subject to the conditions set forth in
subsection 8.5(b).
8.5 Prohibition on Sale of Assets. Convey,
sell, lease (other than a sublease of real property),
assign, transfer or otherwise dispose of (including
through a transaction of merger or consolidation of any
Subsidiary of the Company) any of its property,
business or assets (including, without limitation,
other payments and receivables but excluding leasehold
interests), whether now owned or hereafter acquired,
except:
(a) for sales or other dispositions of
inventory in the ordinary course of business;
(b) that the Company or any Subsidiary
of the Company may sell, lease, transfer or
otherwise dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to, and
any Subsidiary of the Company may merge with and
into, the Company or a wholly-owned Domestic
Subsidiary of the Company, and the Company or any
Subsidiary of the Company may sell or otherwise
dispose of, or part with control of any or all of,
the Capital Stock of any Subsidiary to a
wholly-owned Domestic Subsidiary of the Company or
the Company, provided that no such transaction may
be effected if it would result in the transfer of
any assets of, or any Capital Stock of, the
Company or a Subsidiary to, or the merger with and
into, another Subsidiary all of the Capital Stock
of which owned by the Company or any Subsidiary
has not been pledged to the Administrative Agent
and which has not guaranteed the obligations of
the Company, for the benefit of the Lenders, under
the Notes and this Agreement, and granted liens or
security interests in favor of the Administrative
Agent, for the benefit of the Lenders, on
substantially all of its assets to secure such
guarantee, pursuant to a guarantee, security
agreement and other documentation reasonably
satisfactory to the Administrative Agent;
(c) leases of Fee Properties and other
real property owned in fee;
(d) any condemnation or eminent domain
proceedings affecting any real property, provided
that the parties hereto agree that the net
proceeds received in connection with such
proceeding shall be deemed not to constitute "Net
Proceeds" if such net proceeds are reinvested in
new or existing properties within eighteen months;
(e) substantially like-kind exchanges of
real property; provided that only any cash
received by the Company or any Subsidiary of the
Company in connection with such an exchange (net
of all costs and expenses incurred in connection
with such transaction or with the commencement of
operation of real property received in such
exchange) shall be deemed to be Net Proceeds and
shall be applied as provided for in subsection
4.4(b)(iii);
(f) for the sale or other disposition of
any property that, in the reasonable judgment of
the Company has become uneconomic, obsolete or
worn out, and which is sold or disposed of in the
ordinary course of business;
(g) for the sale or other disposition of
any property the aggregate amount of the net
proceeds received in respect of which shall not
exceed $7,500,000 during the term of this
Agreement;
(h) the sale, encumbrance or other
disposition at any time or from time to time of
Receivables Facility Assets; and
(i) any sale or disposition of any
interest in real property; provided that (i) the
net proceeds of any such sale shall constitute Net
Proceeds only to the extent such net proceeds are
not reinvested in real property within twelve
months from the date of such sale, (ii) if the
real property so sold constituted Collateral under
the Security Documents then any real property
purchased with the net proceeds thereof shall be
mortgaged for the benefit of the Lenders if
required by subsection 7.9(e) and in accordance
therewith and (iii) the aggregate outstanding
amount of net proceeds held by the Company at any
time for reinvestment in respect of any real
property sold pursuant to this paragraph shall not
exceed $15,000,000.
8.6 Limitation on Investments, Loans and
Advances. Make any advance, loan, extension of credit
or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of, or
make any other investment in (including, without
limitation, any acquisition of all or any substantial
portion of the assets, and any acquisition of a
business or a product line, of other companies, other
than the acquisition of inventory in the ordinary
course of business), any Person (except to the extent
permitted by Section 8.7), except:
(a) the Company may make loans or
advances to any Domestic Subsidiary, and any
Subsidiary may make loans or advances to the
Company or any Domestic Subsidiary, to the extent
in each case the Indebtedness created thereby is
permitted by subsection 8.1(c);
(b)(i) any Subsidiary may make
investments in the Company (by way of capital
contribution or otherwise), (ii) the Company and
any Subsidiary may make investments in, or create,
any wholly-owned Domestic Subsidiary (by way of
capital contribution or otherwise) or make
investments permitted by subsection 8.5(b),
provided that, in any such case, the requirements
of subsection 7.9 are satisfied and (iii) the
Company and any Subsidiary may make investments
in, or create, any wholly-owned Foreign Subsidiary
(by way of capital contribution or otherwise),
provided that (x) the requirements of subsection
7.9 are satisfied and (y) the aggregate amount of
all investments in such Foreign Subsidiaries shall
not exceed (I) $25,000,000 (plus the sum of any
amount dividended or distributed by such Foreign
Subsidiaries to the Company or any Domestic
Subsidiary), minus (II) the amount of any
Indebtedness of any Foreign Subsidiary at any such
time outstanding in accordance with subsection
8.1(c)(iii) or 8.3 (c)(ii);
(c) the Company and its Subsidiaries may
invest in, acquire and hold Cash Equivalents and
Investment Grade Securities;
(d) the Company or any of its
Subsidiaries may make payroll advances in the
ordinary course of business;
(e) the Company or any of its
Subsidiaries may acquire and hold receivables
owing to it, if created or acquired in the
ordinary course of business and payable or
dischargeable in accordance with customary trade
terms (provided that nothing in this clause (e)
shall prevent the Company or any Subsidiary from
offering such concessionary trade terms, or from
receiving such investments, in connection with the
bankruptcy or reorganization of their respective
suppliers or customers or the settlement of
disputes with such customers or suppliers arising
in the ordinary course of business, as management
deems reasonable in the circumstances);
(f) the Company or any of its
Subsidiaries may make travel and entertainment
advances and relocation and other loans to
officers and employees of the Company or any such
Subsidiary, provided that the aggregate principal
amount of all such loans and advances outstanding
at any one time, together with the guarantees of
such loans and advances made pursuant to
subsection 8.3(e), shall not exceed $5,000,000 at
any one time outstanding;
(g) the Company and its Subsidiaries may
make expenditures to acquire all or a portion of
the Capital Stock or assets of any Person engaged
primarily in one or more businesses in which the
Company and its Subsidiaries are engaged or
directly related thereto or in the building
products industry generally, provided that, after
giving pro forma effect to any such acquisition
and the financing thereof, (i) the amount of the
expenditures in connection with such acquisition
does not exceed $35,000,000 without the prior
written consent of the Required Lenders, (ii) the
provisions of subsection 7.9 are satisfied, (iii)
either (A) the ratio of Consolidated Funded
Indebtedness (excluding Indebtedness in respect of
the Senior Discount Notes permitted hereunder) as
of the day of such acquisition to Consolidated
EBITDA for the period of four fiscal quarters
ending as at the last day of the most recently
ended fiscal quarter is less than 5.00 to 1.00;
provided that the last four fiscal quarters of
Consolidated EBITDA (as may be adjusted for
identified post acquisition cost savings
reasonably agreed to by the Company and the
Administrative Agent) of each acquired company,
business or group of assets during the testing
period shall be added for purposes of calculating
such ratio or (B) the amount of expenditures in
connection with such acquisition does not exceed
$7,500,000 and the Company elects (by prior
written notice to the Administrative Agent) to
treat such expenditures as "Capital Expenditures"
for purposes of this Agreement, including but not
limited to subsection 8.7, and (iv) no Default or
Event of Default has occurred and is continuing or
would result therefrom; and
(h) the Company or any of its
Subsidiaries may make investments in, or loans or
investments to, joint ventures or other Persons
engaged primarily in one or more businesses in
which the Company and its Subsidiaries are engaged
or directly related thereto or in the building
products industry generally, in an aggregate
principal amount not to exceed $15,000,000 (plus
the sum of any amounts dividended or distributed
to the Company or any Domestic Subsidiary of the
Company by such joint venture or other Person);
provided that at the time of and after giving
effect thereto no Default or Event of Default
shall have occurred and be continuing or would
result therefrom.
For the purposes of this subsection 8.6, the payment by
the Company of expenses and operating costs of any Domestic
Subsidiary incurred in the ordinary course of its business
shall not be considered to be a loan, advance or other
investment of the Company in such Domestic Subsidiary and
shall be permitted under this Agreement.
8.7 Capital Expenditures. Make or commit to
make any Capital Expenditures, except that the Company
and its Subsidiaries may make or commit to make Capital
Expenditures not exceeding the amount set forth below
(the "Base Amount") for each of the fiscal years or
periods of the Company (or other period) set forth
below:
Fiscal Year
or
Period Base Amount
Closing Date-1998 $55,000,000
1999 $32,000,000
2000 $34,000,000
2001 $36,000,000
2002 $38,000,000
2003 $40,000,000
2004 $42,000,000
January 1, 2005 to
June 30, 2005 $22,000,000
provided that (i) for any period set forth above, the Base
Amount set forth above may be increased by a maximum of 50%
of the Base Amount for any such period by carrying over to
any such period any portion of the Base Amount (as
increased) not spent in the immediately preceding period and
(ii) for each period of the Company, the Base Amount set
forth above shall be increased in the event any Person or
assets of such Person (an "Acquired Person") is acquired as
permitted herein by an amount equal to 110% of the amount of
capital expenditures (determined in accordance with GAAP) of
such Acquired Person for the twelve months prior to the date
it was acquired ("Acquired Capital Expenditures"); provided
that, with respect to the fiscal year in which such Person
becomes an Acquired Person, the Base Amount shall be
increased by the product of (A) the Acquired Capital
Expenditures of such Acquired Person times (B) a fraction,
the numerator of which is the number of days remaining in
the fiscal year of the Company in which such Acquired Person
was acquired and the denominator of which is 365; and
provided, further, that, notwithstanding anything to the
contrary herein, additional Capital Expenditures may be made
with net proceeds received in property sales or dispositions
under subsection 8.5(g).
8.8 Interest Rate Agreements. Enter into,
create, incur, assume or suffer to exist any Interest
Rate Agreements or obligations in respect thereof
except in the ordinary course of business for non-
speculative purposes.
8.9 Debt to EBITDA. At the last day of any
fiscal quarter set forth below, permit the ratio (the
"Leverage Ratio") of Consolidated Funded Indebtedness
as of such day to Consolidated EBITDA for the period of
four fiscal quarters ending on such day to be greater
than the ratio set forth below for such fiscal quarter;
provided that, with respect to any acquisition
permitted by subsection 8.6(g), the last four fiscal
quarters of Consolidated EBITDA (as may be adjusted for
post acquisition cost savings reasonably agreed to by
the Company and the Administrative Agent) of the
acquired company shall be added for the purposes of
calculating this ratio:
Fiscal Year Fiscal Quarter Ratio
1997 Third 6.75 to 1.00
Fourth 6.75 to 1.00
1998 First 6.75 to 1.00
Second 6.75 to 1.00
Third 6.75 to 1.00
Fourth 6.50 to 1.00
1999 First 6.50 to 1.00
Second 6.50 to 1.00
Third 6.50 to 1.00
Fourth 6.00 to 1.00
2000 First 6.00 to 1.00
Second 6.00 to 1.00
Third 6.00 to 1.00
Fourth 5.75 to 1.00
2001 First 5.75 to 1.00
Second 5.75 to 1.00
Third 5.75 to 1.00
Fourth 5.50 to 1.00
2002 First 5.50 to 1.00
Second 5.50 to 1.00
Third 5.50 to 1.00
Fourth 5.25 to 1.00
2003 First 5.25 to 1.00
Second 5.25 to 1.00
Third 5.25 to 1.00
Fourth 5.00 to 1.00
2004 First 5.00 to 1.00
Second 5.00 to 1.00
Third 5.00 to 1.00
Fourth 5.00 to 1.00
2005 First 5.00 to 1.00
Second 5.00 to 1.00
8.10 Interest Coverage. At the last day of
any fiscal quarter set forth below, permit the Interest
Coverage Ratio to be less than the ratio set forth
below for such fiscal quarter:
Fiscal Year Fiscal Quarter Interest Coverage Ratio
1997 Fourth 2.00 to 1.00
1998 First 2.00 to 1.00
Second 2.00 to 1.00
Third 2.00 to 1.00
Fourth 2.00 to 1.00
1999 First 2.00 to 1.00
Second 2.00 to 1.00
Third 2.25 to 1.00
Fourth 2.25 to 1.00
2000 First 2.25 to 1.00
Second 2.25 to 1.00
Third 2.25 to 1.00
Fourth 2.25 to 1.00
2001 First 2.25 to 1.00
Second 2.25 to 1.00
Third 2.25 to 1.00
Fourth 2.25 to 1.00
2002 First 2.25 to 1.00
Second 2.25 to 1.00
Third 2.25 to 1.00
Fourth 2.25 to 1.00
2003 First 2.25 to 1.00
Second 2.25 to 1.00
Third 2.25 to 1.00
2004 First 2.25 to 1.00
Second 2.25 to 1.00
Third 2.25 to 1.00
Fourth 2.25 to 1.00
2005 First 2.25 to 1.00
Second 2.25 to 1.00
8.11 Limitation on Dividends. Declare any
dividends on any shares of any class of Capital Stock,
or make any payment on account of, or set apart assets
for a sinking or other analogous fund for, the
purchase, redemption, retirement or other acquisition
of any shares of any class of Capital Stock, or any
warrants or options to purchase such Capital Stock,
whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or
indirectly, whether in cash or property or in
obligations of the Company or any of its Subsidiaries;
except that:
(a) Subsidiaries may pay dividends to
the Company or to Domestic Subsidiaries which are
directly or indirectly wholly-owned by the
Company;
(b) the Company may pay or make
dividends or distributions to any holder of its
Capital Stock in the form of additional shares of
Capital Stock of the same class and type; and
(c) the Company may repurchase Capital Stock
of the Company owned by former, present or future employees
of the Company or its Subsidiaries or their assigns, estates
and heirs, provided that the aggregate amount expended by
the Company pursuant to this clause (c) shall not in the
aggregate exceed (i) $2,500,000 in any fiscal year or (ii)
$7,500,000 during the term of this Agreement, plus any
amounts contributed to the Company as a result of resales of
such repurchased shares of Capital Stock.
8.12 Transactions with Affiliates. Enter
into any transaction, including, without limitation,
any purchase, sale, lease or exchange of property or
the rendering of any service, with any Affiliate except
for transactions which are otherwise permitted under
this Agreement and which are in the ordinary course of
the Company's or a Subsidiary's business and which are
upon fair and reasonable terms no less favorable to the
Company or such Subsidiary than it would obtain in a
hypothetical comparable arm's length transaction with a
Person not an Affiliate, provided that nothing in this
subsection 8.12 shall prohibit the Company or its
Subsidiaries from engaging in the following
transactions: (x) the performance of the Company's or
any Subsidiary's obligations under any employment
contract, collective bargaining agreement, employee
benefit plan, related trust agreement or any other
similar arrangement heretofore or hereafter entered
into in the ordinary course of business, (y) the
payment of compensation to employees, officers,
directors or consultants in the ordinary course of
business, or (z) the maintenance of benefit programs or
arrangements for employees, officers or directors,
including, without limitation, vacation plans, health
and life insurance plans, deferred compensation plans,
and retirement or savings plans and similar plans, in
each case, in the ordinary course of business.
8.13 Prepayments and Amendments of
Subordinated Debt. (a) Optionally prepay, retire,
redeem, purchase, defease or exchange, or make any
mandatory prepayment, retirement, redemption, purchase
or defeasance of any Subordinated Debt (other than (x)
any redemption of the Bridge Subordinated Debt, the
Senior Subordinated Notes or the Senior Discount Notes
with proceeds of Permanent Subordinated Debt as
permitted by subsection 8.1(d), (y) any refinancing of
the Permanent Subordinated Debt contemplated in the
definition thereof or (z) any redemption of
Subordinated Debt with the proceeds of the issuance of
Capital Stock to the extent permitted by subsection
4.4(b)(i)) or pay any interest on Subordinated Debt in
cash if such interest may be paid by the issuance of
additional Subordinated Debt or (b) waive, amend,
supplement, modify, terminate or release the provisions
of any Subordinated Debt, to the extent that any such
waiver, amendment, supplement, modification,
termination or release would be materially adverse to
the Lenders.
8.14 Limitation on Changes in Fiscal Year.
Permit the fiscal year of the Company to end on a day
other than December 31 in any calendar year.
8.15 Limitation on Lines of Business. Enter
into any business, either directly or through any
Subsidiary, except for those businesses in which the
Company or any Subsidiary is engaged on the date of
this Agreement (or which are directly related thereto
or those related generally to the building products
industry).
SECTION 9. EVENTS OF DEFAULT
Upon the occurrence and during the continuance of
any of the following events:
(a) The Company shall fail to (i) pay
any principal of any Loan or Note when due in
accordance with the terms hereof or thereof or to
reimburse the Issuing Lender in accordance with
subsection 3.8 or (ii) pay any interest on any
Loan or Note or any other amount payable hereunder
within five days after any such interest or other
amount becomes due in accordance with the terms
thereof or hereof; or
(b) Any representation or warranty made
or deemed made by any Credit Party in any Credit
Document shall prove to have been incorrect in any
material respect on or as of the date made or
deemed made; or
(c) The Company shall default in the
observance or performance of any agreement
contained in subsection 7.7(a) or 7.9 or Section 8
of this Agreement or the Company shall default in
the observance or performance of any agreement
contained in subsections 5(a), (h) through (k) and
(o) of the Company Security Agreement or
subsections 5(a), (b) and (c) of the Company
Pledge Agreement or any Subsidiary shall default
in the observance or performance of any agreement
contained in subsections (a),(h) through (k) and
(o) of the Subsidiary Security Agreement,
subsection 10 of the Subsidiary Guarantee or
subsections 5(a), (b) and (c) of the Subsidiary
Pledge Agreement or Section 5, 6 or 7 of any
Mortgage; or
(d) Any Credit Party shall default in
the observance or performance of any other
agreement contained in any Credit Document and
such default shall continue unremedied for a
period of 30 days; or
(e) The Company or any of its
Subsidiaries (other than a Receivables SPV) shall
(i) default in any payment of principal of or
interest on or other amounts in respect of any
Indebtedness (other than the Loans, the L/C
Obligations and any inter-company debt) or
Interest Rate Agreement or in the payment of any
Contingent Obligation, beyond the period of grace,
if any, provided in the instrument or agreement
under which such Indebtedness, Interest Rate
Agreement or Contingent Obligation was created; or
(ii) default in the observance or performance of
any other agreement or condition relating to any
such Indebtedness, Interest Rate Agreement or
Contingent Obligation or contained in any
instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur
or condition exist, the effect of which default or
other event or condition is to cause, or to permit
the holder or holders of such Indebtedness or
beneficiary or beneficiaries of such Contingent
Obligation (or a trustee or agent on behalf of
such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice
if required, such Indebtedness to become due prior
to its stated maturity, any applicable grace
period having expired, or such Contingent
Obligation to become payable, any applicable grace
period having expired; in each case, provided that
the aggregate principal amount of all such
Indebtedness, Interest Rate Agreements and
Contingent Obligations under which a default
exists or which would then become due or payable
equals or exceeds $10,000,000; or
(f)(i) The Company or any of its
Subsidiaries shall commence any case, proceeding
or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization
or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to
adjudicate it as bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee,
custodian or other similar official for it or for
all or any substantial part of its assets, or the
Company or any of its Subsidiaries shall make a
general assignment for the benefit of its
creditors; or (ii) there shall be commenced
against the Company or any of its Subsidiaries any
case, proceeding or other action of a nature
referred to in clause (i) above which (A) results
in the entry of an order for relief or any such
adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period
of 60 days; or (iii) there shall be commenced
against the Company or any of its Subsidiaries any
case, proceeding or other action seeking issuance
of a warrant of attachment, execution, distraint
or similar process against all or any substantial
part of its assets which results in the entry of
an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry
thereof; or (iv) the Company or any of its
Subsidiaries shall take any action in furtherance
of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or (v) the
Company or any of its Subsidiaries shall generally
not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they
become due; or
(g)(i) Any Person shall engage in any
"prohibited transaction" (as defined in Section
406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to
any Plan or any Lien in favor of the PBGC or a
Plan shall arise on the assets of the Company or
any Commonly Controlled Entity, (iii) a Reportable
Event shall occur with respect to, or proceedings
shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable
opinion of the Required Lenders, likely to result
in the termination of such Plan for purposes of
Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA,
(v) the Company or any Commonly Controlled Entity
shall, or in the reasonable opinion of the
Required Lenders is likely to, incur any liability
in connection with a withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall
occur or exist with respect to a Plan, and such
event or condition, together with all other such
events or conditions, relating to a Plan, if any,
would be reasonably likely to subject the Company
or any of its Subsidiaries to any tax, penalty or
other liabilities in the aggregate resulting in a
material adverse effect to the Company and its
Subsidiaries taken as a whole; or
(h) One or more judgments or decrees
shall be entered against the Company or any of its
Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance)
of $10,000,000 or more and all such judgments or
decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within the time
required by the terms of such judgment; or
(i) Any Credit Document shall cease, for
any reason, to be in full force and effect or any
Credit Party or any of its Subsidiaries shall so
assert in writing, or any Security Document shall
cease to be effective to grant a perfected Lien on
the collateral described therein with the priority
purported to be created thereby (other than as a
result of any action or inaction on the part of
the Administrative Agent or the Lenders), subject
to such exceptions as may be permitted therein or
herein, and in the case of any Security Agreement,
such condition shall continue unremedied for 30
days after notice thereof to the Company by the
Administrative Agent or any Lender; or
(j) There shall have occurred a Change
of Control; or
(k) The subordination provisions of any
document governing any Subordinated Debt shall
cease, for any reason, to be valid or any Credit
Party or any of its Subsidiaries shall so assert
in writing;
then, and in any such event, (a) if such event is an Event
of Default specified in clause (i) or (ii) of paragraph (f)
above with respect to the Company, automatically (i) the
Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the Notes shall
immediately become due and payable, and (ii) all obligations
of the Company in respect of the Letters of Credit, although
contingent and unmatured, shall become immediately due and
payable and the Issuing Lender's obligations to issue the
Letters of Credit shall immediately terminate and (b) if
such event is any other Event of Default, so long as any
such Event of Default shall be continuing, either or both of
the following actions may be taken: (i) with the consent of
the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative
Agent shall, by notice to the Company, declare the
Commitments and the Issuing Lender's obligations to issue
the Letters of Credit to be terminated forthwith, whereupon
the Commitments and such obligations shall immediately
terminate; and (ii) with the consent of the Required
Lenders, the Administrative Agent may, or upon the request
of the Required Lenders, the Administrative Agent shall, by
notice of default to the Company, (A) declare all or a
portion of the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement
and the Notes to be due and payable forthwith, whereupon the
same shall immediately become due and payable, and (B)
declare all or a portion of the obligations of the Company
in respect of the Letters of Credit, although contingent and
unmatured, to be due and payable forthwith, whereupon the
same shall immediately become due and payable and/or demand
that the Company discharge any or all of the obligations
supported by the Letters of Credit by paying or prepaying
any amount due or to become due in respect of such
obligations. All payments under this Section 9 on account
of undrawn Letters of Credit shall be made by the Company
directly to a cash collateral account established by the
Administrative Agent for such purpose for application to the
Company's reimbursement obligations under subsection 3.8 as
drafts are presented under the Letters of Credit, with the
balance, if any, to be applied to the Company's obligations
under this Agreement and the Notes as the Administrative
Agent shall determine with the approval of the Required
Lenders. Except as expressly provided above in this Section
9, presentment, demand, protest and all other notices of any
kind are hereby expressly waived.
SECTION 10. THE ADMINISTRATIVE AGENT; THE ISSUING LENDER
10.1 Appointment. Each Lender hereby
irrevocably designates and appoints Chase as the
Administrative Agent and Bankers Trust Company as the
Documentation Agent under this Agreement and
irrevocably authorizes Chase as Administrative Agent
and Bankers Trust Company as Documentation Agent for
such Lender to take such action on its behalf under the
provisions of the Credit Documents and to exercise such
powers and perform such duties as are expressly
delegated to the Administrative Agent or the
Documentation Agent by the terms of the Credit
Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement,
the Administrative Agent and the Documentation Agent
shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or
liabilities shall be read into the Credit Documents or
otherwise exist against the Administrative Agent or the
Documentation Agent.
10.2 Delegation of Duties. The
Administrative Agent may execute any of its duties
under this Agreement and each of the other Credit
Documents by or through agents 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 agents or attorneys-in-fact selected
by it with reasonable care, except as otherwise
provided in subsection 10.3.
10.3 Exculpatory Provisions. Neither the
Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under
or in connection with the Credit Documents (except for
its or such Person's own gross negligence or willful
misconduct), or (ii) responsible in any manner to any
of the Lenders for any recitals, statements,
representations or warranties made by any Credit Party
or any officer thereof contained in the Credit
Documents 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, the Credit Documents or for the value,
validity, effectiveness, genuineness, enforceability or
sufficiency of the Credit Documents or for any failure
of any Credit Party to perform its obligations
thereunder. The Administrative Agent shall not 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, any
Credit Document, or to inspect the properties, books or
records of any Credit Party.
10.4 Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note,
entries maintained in the Register, writing,
resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order 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, without limitation, counsel
to the Company), independent accountants and other
experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer
thereof shall have been filed with the Administrative
Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action
under any Credit Document unless it shall first receive
such advice or concurrence of the Required Lenders (or,
where a higher percentage of the Lenders is expressly
required hereunder, such Lenders) as it deems
appropriate or 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 any Credit Document in accordance with a request
of the Required Lenders (unless a higher percentage of
Lenders is expressly required), and such request and
any action taken or failure to act pursuant thereto
shall be binding upon all the Lenders and all future
holders of the Notes.
10.5 Notice of Default. The Administrative
Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received
written notice from a Lender or the Company or any
other Credit Party referring to this Agreement,
describing such Default or Event of Default and stating
that such notice is a "notice of default". In the
event that the Administrative Agent receives such a
notice, the Administrative Agent shall promptly give
notice thereof to the Lenders. The Administrative
Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably
directed by the Required Lenders; provided that unless
and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain
from taking such action, with respect to such Default
or Event of Default as it shall deem advisable in the
best interests of the Lenders.
10.6 Non-Reliance on Administrative Agent
and Other Lenders. Each Lender expressly acknowledges
that neither the Administrative Agent nor any of its
officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by
the Administrative Agent hereafter taken, including any
review of the affairs of the Credit Parties, shall be
deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender
represents to the Administrative Agent that it has,
independently and without reliance upon the
Administrative Agent or any other Lender, and based on
such documents and information as it has deemed
appropriate, made its own appraisal of and
investigation into the business, operations, property,
financial and other condition and creditworthiness of
AcquisitionCo and the Company and its Subsidiaries and
made its own decision to make its Loans hereunder and
enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon
the Administrative Agent or any other Lender, and based
on such documents and information as it shall deem
appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or
not taking action under the Credit Documents, and to
make such investigation as it deems necessary to inform
itself as to the business, operations, property,
financial and other condition and creditworthiness of
AcquisitionCo and the Company and its Subsidiaries.
Except for notices, reports and other documents
expressly required to be furnished to the Lenders by
the Administrative Agent hereunder, the Administrative
Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information
concerning the business, operations, property,
financial and other condition or creditworthiness of
the Credit Parties which may come into the possession
of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or
Affiliates.
10.7 Indemnification. The Lenders agree to
indemnify the Administrative Agent in its capacity as
such (to the extent not reimbursed by the Credit
Parties and without limiting the obligation of the
Credit Parties to do so), ratably according to the
respective amounts of their respective Commitments (or,
to the extent such Commitments have been terminated,
according to the respective outstanding principal
amounts of the Loans and the L/C Obligations and the
respective obligations, whether as Issuing Lender or a
Participating Lender, under the Letter of Credit), from
and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever
which may at any time (including without limitation at
any time following the payment of the Loans) be imposed
on, incurred by or asserted against the Administrative
Agent in any way relating to or arising out of the
Credit Documents or any documents contemplated by or
referred to herein or the transactions contemplated
hereby or any action taken or omitted by the
Administrative Agent under or in connection with any of
the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements
resulting solely from the Administrative Agent's gross
negligence or willful misconduct. The agreements in
this subsection 10.7 shall survive the repayment of the
Loans and all other amounts payable hereunder.
10.8 The Administrative Agent in its
Individual Capacity. The Administrative Agent and its
Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the
Company and its Subsidiaries as though the
Administrative Agent were not the Administrative Agent
hereunder. With respect to its Loans made or renewed
by it and any Note issued to it, the Administrative
Agent shall have the same rights and powers, duties and
liabilities under the Credit Documents as any Lender
and may exercise the same as though it were not the
Administrative Agent and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its
individual capacity.
10.9 Successor Administrative Agent. The
Administrative Agent may resign as Administrative Agent
upon 30 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative
Agent under the Credit Documents, then the Required
Lenders shall appoint from among the Lenders a
successor agent for the Lenders which successor agent
shall, so long as no Event of Default has occurred and
is continuing, be approved by the Company, which shall
not unreasonably withhold its approval, whereupon such
successor agent shall succeed to the rights, powers and
duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent
effective upon such appointment and approval, and the
former Administrative Agent's rights, powers and duties
as Administrative Agent shall be terminated, without
any other or further act or deed on the part of such
former Administrative Agent or any of the parties to
this Agreement or any holders of the Notes. After any
retiring Administrative Agent's resignation hereunder
as Administrative Agent, the provisions of this Section
10 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was the
Administrative Agent under the Credit Documents.
10.10 Issuing Lender as Issuer of Letters of
Credit. Each Lender which is a holder of a Revolving
Credit Commitment (collectively "Revolving Credit
Lenders") hereby acknowledges that the provisions of
this Section 10 shall apply to the Issuing Lender, in
its capacity as issuer of the Letters of Credit, in the
same manner as such provisions are expressly stated to
apply to the Administrative Agent, except that
obligations to indemnify the Issuing Lender shall be
ratable among the Revolving Credit Lenders in
accordance with their respective Revolving Credit
Commitments (or, if the Revolving Credit Commitments
have been terminated, the outstanding principal amount
of their respective Revolving Credit Loans and L/C
Obligations and their respective participating
interests in the outstanding Letters of Credit).
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Except as
otherwise expressly set forth in this Agreement, no
Credit Document nor any terms thereof may be amended,
supplemented, waived or modified except in accordance
with the provisions of this subsection 11.1. With the
written consent of the Required Lenders, the
Administrative Agent and the respective Credit Parties
or their Subsidiaries may, from time to time, enter
into written amendments, supplements or modifications
hereto for the purpose of adding any provisions to any
Credit Document to which they are parties or changing
in any manner the rights of the Lenders or of any such
Credit Party or its Subsidiaries thereunder or waiving,
on such terms and conditions as the Administrative
Agent may specify in such instrument, any of the
requirements of any such Credit Document or any Default
or Event of Default and its consequences; provided
that:
(a) no such waiver and no such
amendment, supplement or modification shall
release collateral not required or permitted by
any Credit Document to be released and which, in
the aggregate with all other collateral released
pursuant to this clause (a) (other than collateral
released pursuant to the proviso to this clause
(a)) during the calendar year in which such
proposed release would be effected and the
immediately preceding calendar year, has fair
market value on the proposed date of release in
excess of 20% of the fair market value of all
collateral (including any Guarantee) on such date
without the written consent of the Supermajority
Lenders; provided that, notwithstanding the
foregoing, this clause (a) shall not be applicable
to and no consent shall be required for (i)
releases of collateral in connection with any
Asset Sales permitted by subsection 8.5, (ii)
releases of collateral in accordance with
subsection 11.11 or (iii) upon the reincorporation
of the Company or any Subsidiary in a new
jurisdiction or the creation of a new Subsidiary
of the Company, any release of collateral in
connection with the transfer of such released
collateral to such reincorporated entity or new
Subsidiary in compliance with subsection 8.4,
provided that the Administrative Agent, in its
sole discretion, determines that such release and
transfer, together with any grant and perfection
of a new Lien therein in favor of the
Administrative Agent, will cause no material
impairment of the value of the collateral taken as
a whole, after giving effect to such release and
transfer;
(b) no such waiver and no such
amendment, supplement or modification shall extend
the final maturity date of any Note or the
scheduled payment date of any installment of any
Loan, or reduce the rate or extend the time of
payment of interest thereon, or change the method
of calculating interest thereon, or reduce or
extend the time of payment of any fee payable to
the Lenders hereunder, or reduce the principal
amount thereof, or change the amount of any
Lender's Commitment or Commitment Percentage, or
amend, modify or waive any provision of subsection
4.9(b) or this subsection 11.1 or reduce the
percentage specified in the definition of Required
Lenders or reduce the percentage specified in the
definition of Supermajority Lenders or consent to
the assignment or transfer by any Credit Party of
any of its rights and obligations under any Credit
Document, in each case, without the prior written
consent of each Lender directly affected thereby;
(c) no such waiver and no such
amendment, supplement or modification affecting
the then Administrative Agent or Issuing Lender
shall amend, modify or waive any provision of
Section 10 without the written consent of such
Administrative Agent and Issuing Lender;
(d) without the consent of each of the
Lenders which are Revolving Credit Lenders only,
each of the Lenders which are holders of the Term
Loan Notes may amend this Agreement and the Term
Loan Notes to extend the maturities of the
installments of the Term Loans, and without the
consent of each of the Lenders which are holders
of the Term Loans only, the Revolving Credit
Lenders may amend this Agreement and the Revolving
Credit Notes to extend the Revolving Credit
Termination Date; and
(e) no such waiver, and no such
amendment, supplement or modification shall amend,
modify or waive the prepayment requirements
specified in subsection 4.4(b)(i), (ii) and (iii)
or the order of application of prepayments
specified in subsection 4.4(a) or 4.4(b)(v)
without the written consent of the holders of at
least 51% of each of (i) the aggregate unpaid
principal amount of the Term Loans, if any, and
(ii) the Revolving Credit Commitments or, if the
Revolving Credit Commitments are terminated, the
aggregate unpaid principal amount of the Revolving
Credit Loans (the Term Loans and the Revolving
Credit Commitments of any Non-Funding Lender to be
disregarded in determining such percentage at any
time);
any such waiver and any such amendment, supplement or
modification described in this subsection 11.1 shall apply
equally to each of the Lenders and shall be binding upon
each Credit Party and its Subsidiaries, the Lenders, the
Administrative Agent and the Issuing Lender and all future
holders of the Notes and the Loans. Any extension of a
Letter of Credit by the Issuing Lender shall be treated
hereunder as a new Letter of Credit. In the case of any
waiver, the Credit Parties, the Lenders, the Administrative
Agent and Issuing Lender shall be restored to their former
position and rights hereunder and under the outstanding
Notes, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver
shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.
11.2 Notices. All notices, requests and
demands to or upon the respective parties hereto to be
effective shall be in writing (including by telecopy or
telex, if one is listed), and, unless otherwise
expressly provided herein, shall be deemed to have been
duly given or made when delivered by hand, or three
Business Days after being deposited in the mail,
postage prepaid, or, in the case of telecopy notice,
when sent, confirmation of receipt received, or, in the
case of telex notice, when sent, answerback received,
addressed as follows in the case of the Company, the
Administrative Agent, and as set forth in Schedule I in
the case of any Lender, or to such other address as may
be hereafter notified by the respective parties hereto
and any future holders of the Notes:
The Company: Falcon Building Products, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxxx and
Xxxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Telecopy: (000) 000-0000
The Administrative Agent and Swing
Line Lender: The Chase Manhattan Bank
Agent Bank Services
0 Xxxxx Xxxxxxxxx Xxxxx,
0xx floor
New York, New York 10081
Attention: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
With a copy to: Chase Securities Inc.
00 Xxxxx XxXxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxxxx
Telecopy: (000) 000-0000
provided that any notice, request or demand to or upon the
Administrative Agent or the Lenders pursuant to subsections
3.4, 3.5, 4.1, 4.2, 4.3 and 4.4 shall not be effective until
received and, provided, further, that the failure to provide
the copies of notices to the Company provided for in this
subsection 11.2 shall not result in any liability to the
Administrative Agent.
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. The rights, remedies,
powers and privileges herein provided are cumulative
and not exclusive of any rights, remedies, powers and
privileges provided by law.
11.4 Survival of Representations and
Warranties. All representations and warranties made
hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this
Agreement, the Letters of Credit and the Notes.
11.5 Payment of Expenses and Taxes. The
Company agrees (a) to pay or reimburse the
Administrative Agent, the Documentation Agent and the
Arranger for all their reasonable out-of-pocket costs
and expenses incurred in connection with the
development, negotiation, preparation and execution of
the Credit Documents and any other documents prepared
in connection herewith, and the consummation of the
transactions contemplated hereby and thereby,
including, without limitation, the reasonable fees and
disbursements of one counsel to the Administrative
Agent, the Documentation Agent and the Arranger (b) to
pay or reimburse all of the reasonable expenses,
including without limitation, reasonable fees and
expenses of counsel, incurred by the Administrative
Agent in connection with the administration of the
facilities provided for herein or in connection with
any amendments, waivers, work-outs or restructurings in
respect thereof, (c) to pay or reimburse the
Administrative Agent, the Documentation Agent, the
Arranger, the Issuing Lender and each Lender for all
their costs and expenses incurred in connection with,
and to pay, indemnify, and hold the Administrative
Agent, the Documentation Agent, the Arranger, the
Issuing Bank and each Lender harmless from and against
any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature
whatsoever arising out of or in connection with, the
enforcement or preservation of any rights under any
Credit Document and any such other documents,
including, without limitation, reasonable fees and
disbursements of counsel to the Administrative Agent,
the Arranger and each Lender incurred in connection
with the foregoing and in connection with advising the
Administrative Agent with respect to its rights and
responsibilities under this Agreement and the
documentation relating thereto, (d) to pay, indemnify,
and to hold the Administrative Agent, the Documentation
Agent, the Arranger and each Lender harmless from any
and all recording and filing fees and any and all
liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other similar taxes
(other than withholding taxes), if any, which may be
payable or determined to be payable in connection with
the execution and delivery of, or consummation of any
of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent
under or in respect of, any Credit Document and any
such other documents, and (e) to pay, indemnify, and
hold the Administrative Agent, the Documentation Agent,
the Arranger, the Issuing Bank and each Lender and
their respective Affiliates, officers, directors and
trustees harmless from and against any and all other
liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever
(including, without limitation, reasonable fees and
disbursements of counsel) which may be incurred by or
asserted against the Administrative Agent, the
Documentation Agent, the Arranger, the Issuing Bank or
the Lenders or such Affiliates, officers, directors or
trustees (x) arising out of or in connection with any
investigation, litigation or proceeding related to this
Agreement, the other Credit Documents, the proceeds of
the Loans or the Subordinated Debt and the transactions
contemplated by or in respect of such use of proceeds,
or any of the other transactions contemplated hereby,
whether or not the Administrative Agent, the
Documentation Agent, the Arranger, the Issuing Bank or
any of the Lenders or such Affiliates, officers,
directors or trustees is a party thereto, including,
without limitation, any of the foregoing relating to
the violation of, noncompliance with or liability
under, any Environmental Law applicable to the Company,
any of its Subsidiaries or any of the facilities and
properties owned, leased or operated by the Company or
any of its Subsidiaries, or (y) without limiting the
generality of the foregoing, by reason of or in
connection with the execution and delivery or transfer
of, or payment or failure to make payments under,
Letters of Credit (it being agreed that nothing in this
subsection 11.5(d)(y) is intended to limit the
Company's obligations pursuant to subsection 3.8) (all
the foregoing, collectively, the "indemnified
liabilities"), provided that the Company shall have no
obligation hereunder with respect to indemnified
liabilities of the Administrative Agent, the
Documentation Agent, the Arranger, the Issuing Bank or
any Lender or any of their respective Affiliates,
officers, directors and trustees arising from (i) the
gross negligence or willful misconduct of the person
seeking indemnification or (ii) legal proceedings
commenced against the Administrative Agent, the
Documentation Agent, the Arranger, the Issuing Bank or
Lender by any security holder or creditor thereof
arising out of and based upon rights afforded any such
security holder or creditor solely in its capacity as
such or (iii) legal proceedings commenced against the
Administrative Agent, the Documentation Agent, the
Arranger, the Issuing Bank or any such Lender by any
Transferee (as defined in subsection 11.6). Without
limiting the foregoing, and to the extent permitted by
applicable law, the Company agrees not to assert, and
hereby waives (and shall cause the Subsidiaries not to
assert and to waive) all rights for contribution or any
other rights of recovery with respect to all
liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever, under
or related to Environmental Laws, that any of them
might have by statute or otherwise against the
Administrative Agent, the Documentation Agent, the
Arranger, the Issuing Lender or any Lender. The
agreements in this subsection 11.5 shall survive
repayment of the Loans and all other amounts payable
hereunder.
11.6 Successors and Assigns; Participations
and Assignments. (a) This Agreement shall be binding
upon and inure to the benefit of the Company, the
Lenders, the Administrative Agent, the Documentation
Agent, the Arranger, all future holders of the Notes
and the Loans, and their respective successors and
assigns, except that the Company may not assign or
transfer any of its rights or obligations under this
Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary
course of its commercial banking or lending
business and in accordance with applicable law, at
any time sell to one or more banks or other
entities ("Participants") participating interests
in any Loan owing to such Lender, any
participating interest in the Letters of Credit of
such Lender, any Note held by such Lender, any
Commitment of such Lender or any other interest of
such Lender hereunder. In the event of any such
sale by a Lender of participating interests to a
Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof,
such Lender shall remain the holder of any such
Note for all purposes under this Agreement and the
Company and the Administrative Agent shall
continue to deal solely and directly with such
Lender in connection with such Lender's rights and
obligations under this Agreement and the other
Credit Documents. The Company agrees that if
amounts outstanding under this Agreement and the
Notes are due and unpaid, or shall have been
declared or shall have become due and payable upon
the occurrence of an Event of Default, each
Participant shall be deemed to have the right of
setoff in respect of its participating interest in
amounts owing under this Agreement and any Note to
the same extent as if the amount of its
participating interest were owing directly to it
as a Lender under this Agreement or any Note;
provided that such right of setoff shall be
subject to the obligation of such Participant to
share with the Lenders, and the Lenders agree to
share with such Participant, as provided in
subsection 11.7. The Company also agrees that
each Participant shall be entitled to the benefits
of subsections 3.10, 4.11 and 4.12 with respect to
its participation in the Letters of Credit and in
the Commitments and the Loans outstanding from
time to time as if it were a Lender; provided that
no Participant shall be entitled to receive any
greater amount pursuant to any such subsection
than the transferor Lender would have been
entitled to receive in respect of the amount of
the participation transferred by such transferor
Lender to such Participant had no such transfer
occurred. Each Lender agrees that the
participation agreement pursuant to which any
Participant acquires its participating interest
(or any other document) may afford voting rights
to such Participant, or any right to instruct such
Lender with respect to voting hereunder, only with
respect to matters requiring the consent of either
all of the Lenders hereunder or all of the Lenders
holding the relevant Term Loans or Revolving
Credit Commitments subject to such participation.
(c) Subject to paragraph (g) of this
subsection 11.6, any Lender may, in the ordinary
course of its commercial banking, lending or
investment business and in accordance with
applicable law, (i) at any time and from time to
time assign all or any part of its rights and
obligations under this Agreement and the Notes to
any Lender or any Affiliate thereof, provided
that, in the event of a sale of less than all of
such rights and obligations, such assigning Lender
after any such sale to any other Lender or any
Affiliate of such Lender shall retain Commitments
and/or Loans and/or L/C Participating Interests
aggregating at least $5,000,000 (or such lesser
amount as the Administrative Agent may determine)
and (ii) with the consent of the Company and the
Administrative Agent (which in each case shall not
be unreasonably withheld or delayed) at any time
and from time to time assign to one or more
additional banks, mutual funds or financial
institutions or entities (each, an "Assignee"),
all or any part of its rights and obligations
under this Agreement and the Notes, pursuant to an
Assignment and Acceptance, executed by such
Assignee, such transferor Lender (and, in the case
of an Assignee that is not then a Lender or an
Affiliate thereof, by the Company and the
Administrative Agent), and delivered to the
Administrative Agent for its acceptance and
recording in the Register (as defined below);
provided that (A) each such sale pursuant to
clause (ii) of this subsection 11.6(c) shall be in
a principal amount of $5,000,000 or more unless
the Assigning Lender is transferring all of its
rights and obligations and (B) in the event of a
sale of less than all of such rights and
obligations, such Lender after any such sale shall
retain Commitments and/or Loans and/or L/C
Participating Interests aggregating at least
$5,000,000 (or such lesser amount as the
Administrative Agent and the Company may
determine). Upon such execution, delivery,
acceptance and recording, from and after the
effective date determined pursuant to such
Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein,
and (y) the assigning Lender thereunder shall, to
the extent of the interest transferred, as
reflected in such Assignment and Acceptance, be
released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance
covering all or the remaining portion of a
transferor Lender's rights and obligations under
this Agreement, such transferor Lender shall cease
to be a party hereto but shall continue to be
entitled to the benefits of the indemnification
provisions set forth in subsection 11.5).
(d) The Administrative Agent, which for
purposes of this subsection 11.6(d) only shall be
deemed to be the agent of the Company, shall
maintain at the address of the Administrative
Agent referred to in subsection 11.2 a copy of
each Assignment and Acceptance delivered to it and
a register (the "Register") for the recordation of
the names and addresses of the Lenders and the
Commitments of, and principal amounts of the Loans
owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in
the absence of manifest error, and the Company,
the Administrative Agent and the Lenders shall
treat each Person whose name is recorded in the
Register as the owner of a Loan or other
obligation hereunder as the owner thereof for all
purposes of this Agreement and the other Credit
Documents, notwithstanding any notice to the
contrary. Any assignment of any Loan or other
obligation hereunder shall be effective only upon
appropriate entries with respect thereto being
made in the Register. The Register shall be
available for inspection by the Company or any
Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of an Assignment
and Acceptance executed by an assigning Lender and
an Assignee (and, in the case of an Assignee that
is not then a Lender or an Affiliate thereof, by
the Company and the Administrative Agent),
together with payment to the Administrative Agent
of a registration and processing fee of $4,000 if
the Assignee is not a Lender prior to the
execution of such supplement and $1,000 otherwise,
the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record
the information contained therein in the Register
and give notice of such acceptance and recordation
to the Lenders and the Company. On or prior to
such effective date, the Company at its own
expense, shall execute and deliver to the
Administrative Agent (in exchange for any or all
of the Term Loan Notes or Revolving Credit Notes
of the assigning Lender, if any) new Term Loan
Notes or Revolving Credit Notes, as the case may
be, to the order of such Assignee (if requested)
in an amount equal to the Revolving Credit
Commitment or the Term Loans, as the case may be,
assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has
retained a Commitment or any Term Loans hereunder,
new Term Loan Notes or Revolving Credit Notes, as
the case may be, to the order of the assigning
Lender in an amount equal to the Commitment or
such Term Loans, as the case may be, retained by
it hereunder (if requested). Such new Notes shall
be dated the Closing Date and shall otherwise be
in the form of the Notes replaced thereby.
(f) The Administrative Agent, the
Documentation Agent, the Arranger and the Lenders
agree that they will use reasonable efforts to
protect the confidentiality of any confidential
information concerning the Company and its
Subsidiaries and Affiliates. Notwithstanding the
foregoing, the Company authorizes each Lender to
disclose to any Participant or Assignee (each, a
"Transferee") and any prospective Transferee any
and all information in such Lender's possession
concerning the Company and its Subsidiaries which
has been delivered to such Lender by or on behalf
of the Company pursuant to this Agreement or which
has been delivered to such Lender by or on behalf
of the Company in connection with such Lender's
credit evaluation of the Company and its
Subsidiaries prior to becoming a party to this
Agreement; provided that each Lender shall cause
its respective prospective Transferees to agree in
writing to protect the confidentiality of any
confidential information concerning the Company
and its Subsidiaries and Affiliates.
(g) If, pursuant to this subsection
11.6, any interest in this Agreement or any Note
is transferred to any Transferee which is
organized under the laws of any jurisdiction other
than the United States or any State thereof, the
transferor Lender shall cause such Transferee,
concurrently with the effectiveness of such
transfer either (1) in the case of a Transferee
that is a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (i) to represent to the
transferor Lender (for the benefit of the
transferor Lender, the Administrative Agent and
the Company) that under applicable law and
treaties no taxes will be required to be withheld
by the Administrative Agent, the Company or the
transferor Lender with respect to any payments to
be made to such Transferee in respect of the Loans
or L/C Participating Interests, (ii) to furnish to
the transferor Lender (and, in the case of any
Transferee registered in the Register, the
Administrative Agent and the Company) either U.S.
Internal Revenue Service Form 4224 or U.S.
Internal Revenue Service Form 1001 (wherein such
Transferee claims entitlement to complete
exemption from U.S. federal withholding tax on all
interest payments hereunder) and (iii) to agree
(for the benefit of the transferor Lender, the
Administrative Agent and the Company) to the
extent permitted by then-current law to provide
the transferor Lender (and, in the case of any
Transferee registered in the Register, the
Administrative Agent and the Company) a new Form
4224 or Form 1001 upon the expiration or
obsolescence of any previously delivered form and
comparable statements in accordance with
applicable U.S. laws and regulations and
amendments duly executed and completed by such
Transferee, and to comply from time to time with
all applicable U.S. laws and regulations with
regard to such withholding tax exemption or (2) in
the case of any Transferee that is not a "bank"
within the meaning of Section 881(c)(3)(A) of the
Code, (i) to represent to the transferor Lender
(for the benefit of the transferor Lender, the
Administrative Agent and the Company) that it is
not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (ii) to furnish to the
transferor Lender (and, in the case of any
Transferee registered in the Register, to the
Company), with a copy to the Administrative Agent,
(A) a Subsection 4.11(d)(2) Certificate and (B)
two (2) accurate and complete original signed
copies of Internal Revenue Service Form W-8,
certifying to such Transferee's legal entitlement
on the date of the effectiveness of such transfer
to an exemption from U.S. withholding tax under
the provisions of Section 881(c) of the Code with
respect to all payments to be made under this
Agreement, and (iii) to agree (for the benefit of
the transferor Lender, the Administrative Agent
and the Company), to the extent legally entitled
to do so, upon reasonable request by the
transferor Lender (or, in the case of any
Transferee registered in the Register, the
Administrative Agent or the Company), to provide
to the transferor Lender, the Administrative Agent
and the Company such other forms as may be
required to establish the legal entitlement of
such Transferee to an exemption from withholding
tax with respect to payments under this Agreement.
(h) For avoidance of doubt, the parties
to this Agreement acknowledge that the provisions
of this subsection concerning assignments of Loans
and Notes relate only to absolute assignments and
that such provisions do not prohibit assignments
creating security interests, including, without
limitation, any pledge or assignment by a Lender
of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.
11.7 Adjustments; Set-off. (a) If any
Lender (a "benefitted Lender") shall at any time
receive any payment of all or part of any of its Loans
or L/C Participating Interests, as the case may be, or
interest thereon, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the
nature referred to in clause (f) of Section 9, or
otherwise) in a greater proportion than any such
payment to and collateral received by any other Lender,
if any, in respect of such other Lender's Loans or L/C
Participating Interests, as the case may be, or
interest thereon, such benefitted Lender shall purchase
for cash from the other Lenders such portion of each
such other Lender's Loans or L/C Participating
Interests, as the case may be, or shall provide such
other Lenders with the benefits of any such collateral,
or the proceeds thereof, as shall be necessary to cause
such benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with
each of the Lenders; provided that if all or any
portion of such excess payment or benefits is
thereafter recovered from such benefitted Lender, such
purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but
without interest. The Company agrees that each Lender
so purchasing a portion of another Lender's Loans
and/or L/C Participating Interests may exercise all
rights of payment (including, without limitation,
rights of set-off) with respect to such portion as
fully as if such Lender were the direct holder of such
portion. The Administrative Agent shall promptly give
the Company notice of any set-off, provided that the
failure to give such notice shall not affect the
validity of such set-off.
(b) In addition to any rights and
remedies of the Lenders provided by law, each
Lender shall have the right, without prior notice
to the Company, any such notice being expressly
waived by the Company to the extent permitted by
applicable law, upon the filing of a petition
under any of the provisions of the federal
bankruptcy code or amendments thereto, by or
against; the making of an assignment for the
benefit of creditors by; the application for the
appointment, or the appointment, of any receiver
of, or of any substantial portion of the property
of; the issuance of any execution against any
substantial portion of the property of; the
issuance of a subpoena or order, in supplementary
proceedings, against or with respect to any
substantial portion of the property of; or the
issuance of a warrant of attachment against any
substantial portion of the property of; the
Company to set off and apply against any
indebtedness, whether matured or unmatured, of the
Company to such Lender, any amount owing from such
Lender to the Company, at or at any time after,
the happening of any of the above mentioned
events, and as security for such indebtedness, the
Company hereby grants to each Lender a continuing
security interest in any and all deposits,
accounts or moneys of the Company then or
thereafter maintained with such Lender, subject in
each case to subsection 11.7(a) of this Agreement.
The aforesaid right of set-off may be exercised by
such Lender against the Company or against any
trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, receiver or
execution, judgment or attachment creditor of the
Company, or against anyone else claiming through
or against the Company or such trustee in
bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver, or execution,
judgment or attachment creditor, notwithstanding
the fact that such right of set-off shall not have
been exercised by such Lender prior to the making,
filing or issuance, or service upon such Lender
of, or of notice of, any such petition; assignment
for the benefit of creditors; appointment or
application for the appointment of a receiver; or
issuance of execution, subpoena, order or warrant.
Each Lender agrees promptly to notify the Company
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.
11.8 Counterparts. This Agreement may be
executed by one or more of the parties to this
Agreement on any number of separate counterparts and
all of said counterparts taken together shall be deemed
to constitute one and the same instrument. A set of
the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Administrative
Agent. This Agreement shall become effective with
respect to the Company, the Administrative Agent, the
Documentation Agent and the Lenders when the
Administrative Agent shall have received copies of this
Agreement executed by the Company, the Administrative
Agent, the Documentation Agent and the Lenders, or, in
the case of any Lender, shall have received telephonic
confirmation from such Lender stating that such Lender
has executed counterparts of this Agreement or the
signature pages hereto and sent the same to the
Administrative Agent.
11.9 Governing Law; No Third Party Rights.
This Agreement and the Notes and the rights and
obligations of the parties under this Agreement and the
Notes shall be governed by, and construed and
interpreted in accordance with, the law of the State of
New York. This Agreement is solely for the benefit of
the parties hereto and their respective successors and
assigns, and, except as set forth in subsection 11.6,
no other Persons shall have any right, benefit,
priority or interest under, or because of the existence
of, this Agreement.
11.10 Submission to Jurisdiction; Waivers.
(a) Each party to this Agreement hereby irrevocably
and unconditionally:
(i) submits for itself and its property
in any legal action or proceeding relating to this
Agreement or any of the other Credit Documents, or
for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New
York, the courts of the United States for the
Southern District of New York, and appellate
courts from any thereof;
(ii) consents that any such action or
proceeding may be brought in such courts, and
waives any objection that it may now or hereafter
have to the venue of any such action or proceeding
in any such court or that such action or
proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;
(iii) agrees that service of process in
any such action or proceeding may be effected by
mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail),
postage prepaid, to such party at its address set
forth in subsection 11.2 or at such other address
of which the Administrative Agent shall have been
notified pursuant thereto; and
(iv) agrees that nothing herein shall
affect the right to effect service of process in
any other manner permitted by law or shall limit
the right to xxx in any other jurisdiction.
(b) Each party hereto unconditionally
waives trial by jury in any legal action or
proceeding referred to in paragraph (a) above and
any counterclaim therein.
11.11 Releases. The Administrative Agent
and Lenders agree to cooperate with the Company and its
Subsidiaries with respect to any sale or other
disposition permitted by subsection 8.5 and promptly
take such action and execute and deliver such
instruments and documents necessary to release the
liens and security interests created by the Security
Documents relating to any of the assets or property
affected by any such sale permitted by subsection 8.5.
including, without limitation, any Uniform Commercial
Code amendment, release or termination or partial
release or termination statements.
11.12 Interest. Each provision in this
Agreement and each other Credit Document is expressly
limited so that in no event whatsoever shall the amount
paid, or otherwise agreed to be paid, by the Company
for the use, forbearance or detention of the money to
be loaned under this Agreement or any other Credit
Document or otherwise (including any sums paid as
required by any covenant or obligation contained herein
or in any other Credit Document which is for the use,
forbearance or detention of such money), exceed that
amount of money which would cause the effective rate of
interest to exceed the highest lawful rate permitted by
applicable law (the "Highest Lawful Rate"), and all
amounts owed under this Agreement and each other Credit
Document shall be held to be subject to reduction to
the effect that such amounts so paid or agreed to be
paid which are for the use, forbearance or detention of
money under this Agreement or such other Credit
Document shall in no event exceed that amount of money
which would cause the effective rate of interest to
exceed the Highest Lawful Rate. Notwithstanding any
provision in this Agreement or any other Credit
Document to the contrary, if the maturity of the Loans
or the obligations in respect of the other Credit
Documents are accelerated for any reason, or in the
event of any prepayment of all or any portion of the
Loans or the obligations in respect of the other Credit
Documents by the Company or in any other event, earned
interest on the Loans and such other obligations of the
Company may never exceed the Highest Lawful Rate, and
any unearned interest otherwise payable on the Loans or
the obligations in respect of the other Credit
Documents that is in excess of the Highest Lawful Rate
shall be cancelled automatically as of the date of such
acceleration or prepayment or other such event and (if
theretofore paid) shall, at the option of the holder of
the Loans or such other obligations, be either refunded
to the Company or credited on the principal of the
Loans. In determining whether or not the interest paid
or payable, under any specific contingency, exceeds the
Highest Lawful Rate, the Company and the Lenders shall,
to the maximum extent permitted by applicable law,
amortize, prorate, allocate and spread, in equal parts
during the period of the actual term of this Agreement,
all interest at any time contracted for, charged,
received or reserved in connection with this Agreement.
11.13 Special Indemnification.
Notwithstanding any provision in this Agreement to the
contrary, (A) each Lender, or Transferee of any Lender
pursuant to subsection 11.6(g) of this Agreement, shall
indemnify the Company and the Administrative Agent, and
hold each of them harmless against any and all
payments, expenses or taxes which the Company or the
Administrative Agent may become subject to or obligated
to pay if and to the extent that, (i) on the Closing
Date or the effective date of transfer, as the case may
be, such Lender, or such Transferee of a Lender
pursuant to subsection 11.6(g) of this Agreement, (a)
makes the representation and covenants set forth in
subsection 4.11(d)(2) of this Agreement, or, in the
case of a Transferee, pursuant to subsection 11.6(g)(2)
of this Agreement and the Assignment and Acceptance,
and (b) is not in fact also qualified to make the
representation and covenants set forth in subsection
4.11(d)(1) of this Agreement or, in the case of a
Transferee, pursuant to subsection 11.6(g)(2) of this
Agreement and the Assignment and Acceptance, and (ii)
as a result of any Change in Law or compliance by such
Lender, or Transferee, with any request or directive
(whether or not having the force of law) from any
central bank or other Governmental Authority the
Company or the Administrative Agent is required to make
any additional payments on account of U.S. withholding
taxes and amounts related thereto with respect to any
payments under this Agreement, any Note, or a
Eurodollar Loan, made prior to such Change in Law or
request or directive, none of which payments would have
been required if such Lender, or Transferee, was
qualified on the Closing Date or the date of the
transfer, as the case may be, to make the
representation and covenants set forth in subsection
4.11(d)(1) of this Agreement or pursuant to subsection
11.6(g)(1) of this Agreement and the Assignment and
Acceptance, as the case may be, and (B) each Lender, or
Transferee, agrees that to the extent any amount
payable by such Lender or Transferee pursuant to this
subsection 11.13 remains unpaid on any Interest Payment
Date or the date on which any prepayment is made, the
Company shall have the right to set-off against any
payment due to such Lender or Transferee on such date
any amounts owing to the Company pursuant to this
subsection 11.13.
11.14 Permitted Payments and Transactions.
Notwithstanding any provision to the contrary contained in
this Agreement, the Company and its Subsidiaries shall be
permitted to pay fees and expenses pursuant to or in respect
of, the following agreements, and, in the case of clauses
(a) and (d) below, to engage in the following transactions:
(a)(i) the Agreement for Management and Advisory Services,
between Investcorp International, Inc. ("III") and
AcquisitionCo dated as of June 17, 1997, (ii) the Loan
Financing Advisory Agreement between III and AcquisitionCo
dated as of Xxxxx 00, 0000, (xxx) the Equity Placement Fee
Letter between Investcorp and AcquisitionCo dated June 17,
1997, (iv) the Standby Commitment Agreement between
AcquisitionCo and Invifin S.A. dated as of June 17, 1997
and (v) the Merger Agreement; (b) agreements with any Person
or Persons providing for the payment of customary fees in
connection with serving as a director of the Company or any
Subsidiary of the Company; (c) agreements providing for the
payment of commercially reasonable fees in connection with
any permitted financing, refinancing, sale, transfer, sale
and leaseback or other permitted disposition of any assets
of the Company or its Subsidiaries; (d) the borrowing of any
Indebtedness to the extent, and upon the terms and
conditions, the same is expressly permitted under subsection
8.1; and (e) agreements providing for commercially
reasonable fees in connection with any permitted purchase or
acquisition of stock or assets by the Company or any of its
Subsidiaries.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered in New
York, New York by their proper and duly authorized officers
as of the day and year first above written.
FALCON BUILDING PRODUCTS, INC.
By: /s/ Xxx X. Xxxxx
-----------------
Title: Senior Vice President
and General Counsel
THE CHASE MANHATTAN BANK, as
Administrative Agent, Issuing
Lender and a Lender
By: /s/ Xxxxxxx Xxxxx
-----------------
Title: Vice President
BANKERS TRUST COMPANY, as
Documentation Agent and as a
Lender
By: /s/ Xxxxxxxx Xxxxx
------------------
Title: Vice President
BANKBOSTON, N.A.
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Title: Division Executive
CITICORP USA, INC.
By: /s/ Xxxxxx Xxxxx
----------------
Title: Managing Director attorney in fact
FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Title: Managing Director
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxxx
------------------
Title: Assistant Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ Xxxxx Xxxxx, F.V.P.
-----------------------
Title: Head of Corporate Banking Chicago
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ Xxxx X. Xxxxxxx
-------------------
Title: Vice President
XXXXXX TRUST & SAVINGS BANK
By: /s/ Xxxx X. Xxxxxx
------------------
Title: Vice President
NATIONAL WESTMINSTER BANK PLC
By: /s/ Xxxxxx X. Xxxx
------------------
Title: Vice President
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxx X. Xxxx
-----------------
Title: Senior Vice President
THE LONG TERM CREDIT BANK OF
JAPAN, LTD., CHICAGO BRANCH
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------
Title: Vice President & Deputy General Manager
NATIONSBANK, N.A.
By: /s/ Xxxxxxx Xxxxxx, Xx.
-----------------------
Title: Vice President
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.
By: /s/ Xxxxxx Xxxxxxxx
-------------------
Title: Authorized Signatory
DEBT STRATEGIES FUND, INC.
By: /s/ Xxxxxx Xxxxxxxx
-------------------
Title: Authorized Signatory
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Title: Senior Vice President & Director
DEEPROCK & COMPANY
By: Xxxxx Xxxxx Management, as
Investment Advisor
By: /s/ Xxxxxx Xxxxxxxxx
--------------------
Title: Vice President
PILGRIM AMERICA PRIME RATE TRUST
By: /s/ Xxxxxxx X.Xxxxxxxx
----------------------
Title: Vice President
PRIME INCOME TRUST
By: /s/ Xxxxxx Xxxxxxx
------------------
Title: Vice President
CRESCENT/MACH I PARTNERS, L.P.
By: TCW ASSET MANAGEMENT
COMPANY, AS INVESTMENTS MANAGER
By: /s/ Xxxx X. Gold
----------------
Title: Managing Director
KZH HOLDING CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
-------------------
Title: Authorized Agent
KZH HOLDING CORPORATION II
By: /s/ Xxxxxxxx Xxxxxx
-------------------
Title: Authorized Agent
NORTHERN LIFE INSURANCE COMPANY
BY: ING CAPITAL ADVISORS, INC.,
AS INVESTMENT ADVISOR
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Title: Vice President &
Portfolio Manager
RELIASTAR UNITED SERVICES LIFE
INSURANCE COMPANY
BY: ING CAPITAL ADVISORS, INC.,
AS INVESTMENT ADVISOR
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Title: Vice President &
Portfolio Manager
