EXHIBIT 10.2
EXECUTION COPY
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U.S. $150,000,000
CREDIT AGREEMENT
among
DURA AUTOMOTIVE SYSTEMS, INC.,
as Parent Guarantor,
DURA OPERATING CORP.,
as Borrower,
The Subsidiary Guarantors from Time to Time Parties Hereto,
as Loan Guarantors,
The Several Lenders from Time to Time Parties Hereto,
WILMINGTON TRUST COMPANY,
as Collateral Agent,
BANC OF AMERICA SECURITIES LLC,
as Syndication Agent
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
Dated as of May 3, 2005
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JPMORGAN SECURITIES INC. and BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
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SECTION 1. DEFINITIONS.................................................................... 1
1.1 Defined Terms.................................................................. 1
1.2 Other Definitional Provisions.................................................. 26
SECTION 2. AMOUNT AND TERMS OF LOANS...................................................... 26
2.1 Commitments.................................................................... 26
2.2 [Reserved]..................................................................... 26
2.3 Procedure for Loan Borrowing................................................... 26
2.4 Repayment of Loans............................................................. 27
2.5 Fees, etc...................................................................... 27
2.6 Optional Prepayments........................................................... 27
2.7 Mandatory Offers to Prepay..................................................... 27
2.8 Conversion and Continuation Options............................................ 27
2.9 Limitations on Eurodollar Tranches............................................. 28
2.10 Interest Rates and Payment Dates............................................... 28
2.11 Computation of Interest and Fees............................................... 28
2.12 Inability to Determine Interest Rate........................................... 29
2.13 Pro Rata Treatment and Payments................................................ 29
2.14 Requirements of Law; Illegality................................................ 30
2.15 Taxes.......................................................................... 32
2.16 Indemnity...................................................................... 34
2.17 Change of Lending Office....................................................... 35
2.18 Replacement of Lenders......................................................... 35
2.19 Evidence of Debt............................................................... 35
2.20 Intercreditor Agreement........................................................ 35
SECTION 3. REPRESENTATIONS AND WARRANTIES................................................. 36
3.1 Financial Condition............................................................ 36
3.2 No Change...................................................................... 36
3.3 Existence; Compliance with Law................................................. 36
3.4 Power; Authorization; Enforceable Obligations.................................. 36
3.5 No Legal Bar................................................................... 37
3.6 Litigation..................................................................... 37
3.7 No Default..................................................................... 37
3.8 Ownership of Property; Liens................................................... 37
3.9 Intellectual Property.......................................................... 37
3.10 Taxes.......................................................................... 37
3.11 ERISA.......................................................................... 37
3.12 Investment Company Act; Other Regulations...................................... 38
3.13 Subsidiaries................................................................... 38
3.14 Use of Proceeds................................................................ 38
3.15 Environmental Matters.......................................................... 38
3.16 Accuracy of Information, etc................................................... 38
3.17 No Burdensome Restrictions..................................................... 38
3.18 Insurance...................................................................... 39
3.19 Senior Debt.................................................................... 39
3.20 Solvency....................................................................... 39
3.21 Security Interest in Collateral................................................ 39
3.22 Commercial Loans............................................................... 39
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SECTION 4. CONDITIONS PRECEDENT........................................................... 40
4.1 Conditions to Closing Date..................................................... 40
SECTION 5. COVENANTS 42
5.1 Reports........................................................................ 43
5.2 Compliance Certificate......................................................... 43
5.3 Certificates; Other Information................................................ 44
5.4 Taxes.......................................................................... 45
5.5 Stay, Extension And Usury Laws................................................. 45
5.6 Restricted Payments............................................................ 45
5.7 Dividend And Other Payment Restrictions Affecting Restricted Subsidiaries...... 48
5.8 Incurrence Of Indebtedness and Issuance of Preferred Stock..................... 50
5.9 Asset Sales.................................................................... 52
5.10 Transactions With Affiliates................................................... 55
5.11 Liens.......................................................................... 57
5.12 Limitation On Foreign Indebtedness............................................. 57
5.13 Corporate Existence............................................................ 58
5.14 Offer To Repurchase Upon Change Of Control..................................... 58
5.15 Designation Of Restricted And Unrestricted Subsidiaries........................ 59
5.16 Payments For Consent........................................................... 59
5.17 Merger, Consolidation, or Sale Of Assets....................................... 59
5.18 Successor Corporation Substituted.............................................. 60
5.19 Additional Collateral; Further Assurances...................................... 60
5.20 No Credit Support.............................................................. 61
5.21 Amendments to Other Documents.................................................. 61
5.22 Insurance...................................................................... 61
5.23 Restrictive Agreements......................................................... 61
5.24 Collateral Access Agreements................................................... 62
5.25 DASI........................................................................... 62
SECTION 6. EVENTS OF DEFAULT.............................................................. 62
SECTION 7. THE AGENTS..................................................................... 64
7.1 Appointment.................................................................... 64
7.2 Collateral Matters............................................................. 64
7.3 Delegation of Duties........................................................... 64
7.4 Exculpatory Provisions......................................................... 64
7.5 Reliance by Agents............................................................. 65
7.6 Notice of Default.............................................................. 65
7.7 Non-Reliance on Agents and Other Lenders....................................... 66
7.8 Indemnification................................................................ 66
7.9 Agent in Its Individual Capacity............................................... 66
7.10 Successor Agents............................................................... 66
7.11 Syndication Agent.............................................................. 67
7.12 Appointment of Lenders......................................................... 67
7.13 Execution of Loan Documents.................................................... 67
7.14 Agents as Joint and Several Creditors.......................................... 67
SECTION 8. MISCELLANEOUS.................................................................. 68
8.1 Amendments and Waivers......................................................... 68
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8.2 Notices........................................................................ 68
8.3 No Waiver; Cumulative Remedies................................................. 69
8.4 Survival of Representations and Warranties..................................... 69
8.5 Payment of Expenses and Taxes.................................................. 69
8.6 Successors and Assigns; Participations and Assignments......................... 70
8.7 Adjustments; Set-off........................................................... 73
8.8 Counterparts................................................................... 74
8.9 Severability................................................................... 74
8.10 Integration.................................................................... 74
8.11 GOVERNING LAW.................................................................. 74
8.12 Submission To Jurisdiction; Waivers............................................ 74
8.13 Acknowledgements............................................................... 75
8.14 Releases of Guarantees and Liens............................................... 75
8.15 Confidentiality................................................................ 76
8.16 WAIVERS OF JURY TRIAL.......................................................... 76
8.17 USA Patriot Act................................................................ 77
8.18 Post-Closing Matters........................................................... 77
SECTION 9. GUARANTY....................................................................... 77
9.1 Guaranty....................................................................... 77
9.2 Guaranty of Payment............................................................ 77
9.3 No Discharge or Diminishment of Loan Guaranty.................................. 77
9.4 Defenses Waived................................................................ 78
9.5 Rights of Subrogation.......................................................... 78
9.6 Reinstatement; Stay of Acceleration............................................ 79
9.7 Information.................................................................... 79
9.8 Termination.................................................................... 79
9.9 Taxes.......................................................................... 79
9.10 Maximum Liability.............................................................. 79
9.11 Contribution................................................................... 80
9.12 Liability Cumulative........................................................... 80
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SCHEDULES:
Administrative Schedule
1.1A Commitments
3.6 Litigation
3.10 Taxes
3.13 Subsidiaries
3.15 Environmental Matters
5.23 Existing Restrictions
EXHIBITS:
A Form of Closing Certificate
B Form of Assignment and Assumption
C Form of Legal Opinion of Xxxxxxxx & Xxxxx LLP
D Form of Exemption Certificate
E Form of Joinder Agreement
F Form of Intercreditor Agreement
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CREDIT AGREEMENT (this "Agreement"), dated as of May 3, 2005, among
Dura Automotive Systems, Inc., a Delaware corporation ("DASI"), as parent
guarantor, the other Loan Guarantors from time to time party to this Agreement,
Dura Operating Corp., a Delaware corporation (the "Borrower"), the several banks
and other financial institutions or entities from time to time parties to this
Agreement (the "Lenders"), Banc of America Securities LLC, as syndication agent
(in such capacity, the "Syndication Agent"), Wilmington Trust Company, as
collateral agent (in such capacity, the "Collateral Agent"), and JPMorgan Chase
Bank, N.A., as administrative agent.
The parties hereto hereby agree as follows:
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders make term loans
in an aggregate principal amount of $150,000,000 (the "Loans") to the Borrower;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower and the Lenders hereby agree as
follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in this
Section 1.1 shall have the respective meanings set forth in this Section 1.1.
"Acquired Debt": with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such
other Person is merged with or into or became a Subsidiary of such specified
Person, whether or not such Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging with or into, or becoming a
Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired
by such specified Person.
"Administrative Agent": JPMorgan Chase Bank, N.A., together with its
affiliates, as the administrative agent for the Lenders under this Agreement and
the other Loan Documents, together with any of its successors.
"Affiliate": of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided, that beneficial ownership of 10% or more of
the Voting Stock of a Person shall be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" shall have correlative meanings.
"Affiliate Transaction": as defined in Section 5.10.
"Agents": the collective reference to the Collateral Agent and the
Administrative Agent.
"Agreement": as defined in the preamble hereto.
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"Applicable Margin": for (a) Eurodollar Loans, 3.50% per annum and
(b) Base Rate Loans, 2.50% per annum; provided that if as of the end of any
fiscal quarter occurring after the Closing Date the Senior Leverage Ratio is
greater than 2.50 to 1.0, the Applicable Margin shall be for (x) Eurodollar
Loans, 3.75% per annum and (y) Base Rate Loans, 2.75% per annum. The Applicable
Margin shall remain in effect until the Senior Leverage Ratio for the next
fiscal quarter is calculated by Borrower and delivered pursuant to Section
5.3(i) ; provided that if the Borrower fails to deliver such calculation within
the time required by Section 5.3(i) then the Applicable Margin will be deemed to
be 3.75% and 2.75%, respectively, until such calculation is delivered.
"Applicable Percentage": as defined in Section 9.11.
"Approved Fund": as defined in Section 8.6(b).
"Asset Sale":
(1) the sale, lease, conveyance or other disposition of any assets
or rights, other than sales or leases in the ordinary course of business
consistent with past practices; provided that the sale, conveyance or other
disposition of all or substantially all of the assets of the Borrower and its
Subsidiaries taken as a whole will be governed by the provisions of this
Agreement described in Section 5.14 hereof and/or the provisions described in
Section 5.18 hereof and not by the provisions of Section 5.9 hereof; and
(2) the issuance of Equity Interests by any of the Borrower's
Restricted Subsidiaries or the sale of Equity Interests in any of its
Subsidiaries.
Notwithstanding the preceding, the following items shall not be
deemed to be Asset Sales:
(1) any single transaction or series of related transactions that
involves assets having a fair market value of less than $5,000,000;
(2) a transfer of assets between or among the Borrower and its
Restricted Subsidiaries;
(3) an issuance of Equity Interests by a Restricted Subsidiary to
the Borrower or to another Restricted Subsidiary;
(4) the sale, lease or license of property, plant, equipment,
inventory, accounts receivable or other assets in the ordinary course of
business;
(5) the sale or other disposition of cash or Cash Equivalents;
(6) a Restricted Payment or Permitted Investment that is permitted
by Section 5.6 hereof;
(7) the licensing of intellectual property; and
(8) sales of receivables and related assets (including contract
rights) of the type specified in the definition of "Qualified Securitization
Transaction" to or by a Securitization Entity for the
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fair market value thereof, including consideration in the amount specified in
the proviso to the definition of Qualified Securitization Transaction.
"Asset Sale Offer": as defined in Section 5.9.
"Assignee": as defined in Section 8.6(b).
"Assignment and Assumption": an Assignment and Assumption,
substantially in the form of Exhibit B.
"Assignor": as defined in Section 8.6(c).
"Bankruptcy Law": Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Base Rate": the higher of (i) the rate of interest publicly
announced by JPMorgan Chase Bank, N.A. as its prime rate in effect at its
principal office in New York City (the "Prime Rate") and (ii) the federal funds
effective rate from time to time plus 0.5%.
"Base Rate Loans": Loans the rate of interest applicable to which is
based upon the applicable Base Rate.
"Benefitted Lender": as defined in Section 8.7(a).
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Board of Directors":
(1) with respect to a corporation, the board of directors of the
corporation;
(2) with respect to a partnership, the Board of Directors of the
general partner of the partnership; and
(3) with respect to any other Person, the board or committee of such
Person serving a similar function.
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower as a
date on which the Borrower requests the relevant Lenders to make Loans
hereunder.
"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, provided that when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which commercial banks are not open
for dealing in Dollar deposits in the London interbank market.
"Capital Lease Obligation": at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at that time be required to be capitalized on a balance sheet in accordance with
GAAP.
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"Capital Stock":
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents":
(1) United States dollars or, in the case of any Foreign Restricted
Subsidiary, such local currencies held by it from time to time;
(2) securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality thereof (provided
that the full faith and credit of the United States is pledged in support
thereof) having maturities of not more than twelve months from the date of
acquisition;
(3) certificates of deposit and eurodollar time deposits with
maturities of twelve months or less from the date of acquisition, bankers'
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case, with any lender party to the First Lien Credit Agreement
or with any domestic commercial bank having capital and surplus in excess of
$500,000,000 and a Xxxxxxxx Bank Watch Rating of "B" or better;
(4) repurchase obligations for underlying securities of the types
described in clauses (2) and (3) above entered into with any financial
institution meeting the qualifications specified in clause (3) above;
(5) commercial paper having one of the two highest rating obtainable
from Xxxxx'x Investors Service, Inc. or Standard & Poor's Rating Service and in
each case maturing within twelve months after the date of acquisition;
(6) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1) through (5) of
this definition; and
(7) Indebtedness with a rating of "A" or higher from Standard &
Poor's Rating Service or "A-2" or higher from Xxxxx'x Investors Service, Inc.
"Change of Control": the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the properties or assets
of the Borrower and its Restricted Subsidiaries taken as a whole to any "person"
(as that term is used in Section 13(d)(3) of the Exchange Act);
(2) the adoption of a plan relating to the liquidation or
dissolution of the Borrower;
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(3) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" (as defined above), other than the Principals and their Related
Parties, becomes the Beneficial Owner, directly or indirectly, of more than 50%
of the Voting Stock of the Borrower, measured by voting power rather than number
of shares;
(4) the first day on which a majority of the members of the Board of
Directors of the Borrower are not Continuing Directors;
(5) the first day on which DASI ceases to own 100% of the
outstanding Equity Interests of the Borrower; or
(6) the Borrower consolidates with, or merges with or into, any
Person, or any Person consolidates with, or merges with or into, the Borrower,
in any such event pursuant to a transaction in which any of the outstanding
Voting Stock of the Borrower or such other Person is converted into or exchanged
for cash, securities or other property, other than any such transaction where
the Voting Stock of the Borrower outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock (other than
Disqualified Stock) of the surviving or transferee Person constituting a
majority of the outstanding shares of such Voting Stock of such surviving or
transferee Person (immediately after giving effect to such issuance).
"Change of Control Offer": as defined in Section 5.14.
"Change of Control Payment": as defined in Section 5.14.
"Change of Control Payment Date": as defined in Section 5.14.
"Closing Date": the date on which the conditions precedent set forth
in Section 4.1 shall have been satisfied, which date is May 3, 2005.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": any and all property owned, leased or operated by a
Person covered by the Collateral Documents and any and all other property of any
Loan Party, now existing or hereafter acquired, that may at any time be or
become subject to a security interest or Lien in favor of the Administrative
Agent or the Collateral Agent, on behalf of the Agents and the Lenders, to
secure the Obligations.
"Collateral Access Agreement": as defined in the Security Agreement.
"Collateral Agent": Wilmington Trust Company, as the collateral
agent for the Agents and the Lenders under this Agreement and the other Loan
Documents, together with any of its successors.
"Collateral Document": collectively, the Security Agreement, the
Mortgages and any other documents granting a Lien upon the Collateral as
security for the payment of the Obligations.
"Collection Account": as defined in the Security Agreement.
"Commitment": as set forth on Schedule 1.1A.
"Commonly Controlled Entity": any trade or business, whether or not
incorporated, that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or,
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solely for purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.
"Conduit Lender": any special purpose corporation organized and
administered by any Lender for the purpose of making Loans otherwise required to
be made by such Lender and designated by such Lender in a written instrument;
provided, that the designation by any Lender of a Conduit Lender shall not
relieve the designating Lender of any of its obligations to fund a Loan under
this Agreement if, for any reason, its Conduit Lender fails to fund any such
Loan, and the designating Lender (and not the Conduit Lender) shall have the
sole right and responsibility to deliver all consents and waivers required or
requested under this Agreement with respect to its Conduit Lender, and provided,
further, that no Conduit Lender shall be entitled to receive any greater amount
pursuant to Section 2.14, 2.15, 2.16 or 8.5 than the designating Lender would
have been entitled to receive in respect of the extensions of credit made by
such Conduit Lender.
"Confidential Information Memorandum": the Confidential Information
Memorandum dated March 2005 and furnished to certain Lenders.
"Consolidated Cash Flow": with respect to any specified Person for
any period, the Consolidated Net Income of such Person for such period plus:
(1) an amount equal to any extraordinary loss plus any net loss
realized by such Person or any of its Subsidiaries in connection with an Asset
Sale, to the extent such losses were deducted in computing such Consolidated Net
Income; plus
(2) provision for taxes based on income or profits of such Person
and its Subsidiaries for such period, to the extent that such provision for
taxes was deducted in computing such Consolidated Net Income; plus
(3) consolidated interest expense of such Person and its
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including, without limitation, amortization of debt issuance costs
and original issue discount, non-cash interest payments, the interest component
of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other fees
and charges incurred in respect of letter of credit or bankers' acceptance
financings, and net of the effect of all payments made or received pursuant to
Hedging Obligations), to the extent that any such expense was deducted in
computing such Consolidated Net Income; plus
(4) depreciation, amortization (including amortization of goodwill
and other intangibles but excluding amortization of prepaid cash expenses that
were paid in a prior period) and other non-cash items (excluding any such
non-cash items to the extent that it represents an accrual of or reserve for
cash expenses in any future period or amortization of a prepaid cash expense
that was paid in a prior period) of such Person and its Subsidiaries for such
period to the extent that such depreciation, amortization and other non-cash
items were deducted in computing such Consolidated Net Income; minus
(5) non-cash items increasing such Consolidated Net Income for such
period, other than the accrual of revenue in the ordinary course of business, in
each case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on the
income or profits of, and the depreciation and amortization and other non-cash
items of, a Subsidiary of the Borrower shall be added to Consolidated Net Income
to compute Consolidated Cash Flow of the Borrower only to the
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extent that a corresponding amount would be permitted at the date of
determination to be dividended to the Borrower by such Subsidiary without prior
governmental approval (that has not been obtained), and without direct or
indirect restriction pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Subsidiary or its stockholders.
"Consolidated Net Income": with respect to any specified Person for
any period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that:
(1) the Net Income of any Person that is not a Restricted 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 specified Person or a Wholly Owned Restricted Subsidiary thereof;
(2) the Net Income of any Restricted Subsidiary shall be excluded to
the extent that the declaration or payment of dividends or similar distributions
by that Restricted Subsidiary of that Net Income is not at the date of
determination permitted without any prior governmental approval (that has not
been obtained) or, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Restricted Subsidiary or its
stockholders;
(3) the Net Income or loss of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition shall
be excluded; and
(4) the cumulative effect of a change in accounting principles shall
be excluded.
"Continuing Directors": as of any date of determination, any member
of the Board of Directors of the Borrower who:
(1) was a member of such Board of Directors on the Closing Date; or
(2) was nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were members of
such Board at the time of such nomination or election.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Facilities": one or more debt facilities (including, without
limitation, the First Lien Credit Agreement) or commercial paper facilities, in
each case with banks or other institutional lenders providing for revolving
credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from
such lenders against such receivables), letters of credit or other long-term
indebtedness, in each case, as amended, restated, modified, renewed, refunded,
replaced or refinanced in whole or in part from time to time.
"DASI": as defined in the preamble hereto and including any and all
successors thereto.
"Default": any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
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"Designated Noncash Consideration": any non-cash consideration
(other than non-cash consideration that would constitute a Restricted
Investment) received by the Borrower or one of its Restricted Subsidiaries in
connection with an Asset Disposition that is so designated as Designated Noncash
Consideration pursuant to an Officers' Certificate executed by the principal
executive officer and the principal financial officer of the Borrower or such
Restricted Subsidiary. Such Officers' Certificate shall state the basis of such
valuation, which shall be a report of a nationally recognized investment banking
firm with respect to the receipt in one or a series of related transactions of
Designated Noncash Consideration with a fair market value in excess of
$5,000,000.
"Designated Preferred Stock": preferred stock that is so designated
as Designated Preferred Stock, pursuant to an Officers' Certificate executed by
the principal executive officer and the principal financial officer of the
Borrower, on the issuance date thereof, the cash proceeds of which are excluded
from the calculation set forth in clause (a)(iv)(C)(2) of Section 5.6 hereof.
"Disposed Business": as defined in "Senior Leverage Ratio".
"Disposed Subsidiary": as defined in "Senior Leverage Ratio".
"Disposition": with respect to any property, any sale, lease, sale
and leaseback, assignment, conveyance, transfer or other disposition thereof.
The terms "Dispose" and "Disposed of" shall have correlative meanings.
"Disqualified Stock": any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 91 days after the
Maturity Date. Notwithstanding the preceding sentence, any Capital Stock that
would constitute Disqualified Stock solely because the holders thereof have the
right to require the Borrower to repurchase such Capital Stock upon the
occurrence of a change of control or an asset sale shall not constitute
Disqualified Stock if the terms of such Capital Stock provide that the Borrower
may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 5.6 hereof.
"Dollars", "$" or "U.S.$": lawful currency of the United States of
America.
"Domestic Restricted Subsidiary": any Restricted Subsidiary that is
a Domestic Subsidiary.
"Domestic Subsidiary": any Subsidiary incorporated or otherwise
formed under the laws of the United States of America, any state thereof or the
District of Columbia.
"EBITDA": for any period, the sum of
(a) Consolidated Net Income of DASI and its Subsidiaries for such
period excluding, to the extent reflected in determining such Consolidated Net
Income, extraordinary gains and losses for such period and non-cash
restructuring or other non-cash charges and gains and losses from the
disposition of a Disposed Business or Disposed Subsidiary,
plus
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(b) to the extent deducted in determining such Consolidated Net
Income, Interest Expense, income tax expense, depreciation, depletion,
amortization, any scheduled payment of interest on (without duplication) any of
the Trust Preferred Stock Debentures or the Trust Preferred Securities and any
minority interest.
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"Equity Interests": Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum determined
on the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing on
Page 3750 of the Telerate screen as of 11:00 A.M., London time, two Business
Days prior to the beginning of such Interest Period. In the event that such rate
does not appear on Page 3750 of the Telerate screen (or otherwise on such
screen), the "Eurodollar Base Rate" shall be determined by reference to such
other comparable publicly available service for displaying eurodollar rates as
may be selected by the Administrative Agent or, in the absence of such
availability, by reference to the rate at which the Administrative Agent is
offered Dollar deposits at or about 11:00 A.M., New York City time, two Business
Days prior to the beginning of such Interest Period in the interbank eurodollar
market where its eurodollar and foreign currency and exchange operations are
then being conducted for delivery on the first day of such Interest Period for
the number of days comprised therein.
"Eurodollar Loans": Loans the rate of interest applicable to which
is based upon the applicable 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 - Eurodollar Reserve Requirements
"Eurodollar Reserve Requirements": for any day as applied to any
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal) of reserve requirements in effect on such day
(including basic, supplemental, marginal and emergency reserves) under any
regulations of the Board or other Governmental Authority for the applicable
Lender dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurodollar Liabilities" in Regulation D of the Board)
maintained by a member bank of the Federal Reserve System.
"Eurodollar Tranche": the collective reference to Eurodollar Loans
the then current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall originally
have been made on the same day).
10
"Event of Default": any of the events or circumstances specified in
Section 6, provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Excess Proceeds": as defined in Section 5.9.
"Exchange Act": the Securities Exchange Act of 1934, as amended.
"Existing Indebtedness": the aggregate principal amount of
Indebtedness of the Borrower and its Subsidiaries (other than Indebtedness under
the First Lien Credit Agreement), in existence on the date of this Agreement,
until such amounts are repaid.
"Federal Funds Effective Rate": 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 that is a Business Day, the average of the
quotations for the day of such transactions received by JPMorgan Chase Bank,
N.A. from three federal funds brokers of recognized standing selected by it.
"First Lien Agent": the "Administrative Agent" under and as defined
in the First Lien Credit Agreement.
"First Lien Collateral Agent": the "Collateral Agent" under and as
defined in the First Lien Credit Agreement.
"First Lien Collateral Documents": the security agreement, the
mortgages and each of the other agreements, instruments or documents that create
or purports to create a Lien in favor of the First Lien Collateral Agent for the
benefit of the Firsts Lien Lenders, in each case as refunded, replaced or
refinanced from time to time.
"First Lien Credit Agreement": that certain Amended and Restated
Credit Agreement dated as of the date hereof, among the Borrower, the other
borrowers and guarantors named therein, the First Lien Agent, the First Lien
Collateral Agent, and the First Lien Lenders, initially providing for aggregate
borrowings of up to $175,000,000, as refunded, replaced or refinanced from time
to time.
"First Lien Lenders": the "Lenders" under and as defined in the
First Lien Credit Agreement.
"First Lien Obligations": the "Secured Obligations" of the Loan
Parties (as such term defined in the First Lien Credit Agreement).
"First Lien Permitted Principal Amount": at any date, an amount
equal to $250,000,000 less the aggregate amount of prepayments of term
Indebtedness and reduction of revolving commitments under the First Lien Credit
Agreement after the Closing Date.
"Fixed Charges": with respect to any specified Person for any
period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued, including,
without limitation, original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the interest component
of all payments associated with Capital Lease Obligations, commissions,
discounts and other fees and
11
charges incurred in respect of letter of credit or bankers' acceptance
financings, and net of the effect of all payments made or received pursuant to
Hedging Obligations; plus
(2) the consolidated interest of such Person and its Restricted
Subsidiaries that was capitalized during such period; plus
(3) any interest expense on Indebtedness of another Person that is
guaranteed by such Person or any one of its Restricted Subsidiaries or secured
by a Lien on assets of such Person or any one of its Restricted Subsidiaries,
whether or not such guaranty or Lien is called upon; plus
(4) the product of (a) all dividends, whether paid or accrued and
whether or not in cash, on any series of preferred stock of such Person or any
of its Restricted Subsidiaries, other than dividends on Equity Interests payable
solely in Equity Interests of the Borrower (other than Disqualified Stock) or to
the Borrower or a Restricted Subsidiary of the Borrower, times (b) a fraction,
the numerator of which is one and the denominator of which is one minus the then
current combined federal, state and local effective tax rate of such Person,
expressed as a decimal, in each case, on a consolidated basis and in accordance
with GAAP.
"Fixed Charge Coverage Ratio": with respect to any specified Person
and its Restricted Subsidiaries for any period, the ratio of the Consolidated
Cash Flow of such Person for such period to the Fixed Charges of such Person for
such period. In the event that the specified Person or any of its Restricted
Subsidiaries incurs, assumes, guarantees, repays, repurchases or redeems any
Indebtedness (other than ordinary working capital borrowings) or issues,
repurchases or redeems preferred stock subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated and on or
prior to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge
Coverage Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, guarantee, repayment, repurchase or redemption of Indebtedness, or
such issuance, repurchase or redemption of preferred stock, and the use of the
proceeds therefrom as if the same had occurred at the beginning of the
applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge Coverage
Ratio:
(1) acquisitions that have been made by the specified Person or
any of its Restricted Subsidiaries, including through mergers or consolidations
and including any related financing transactions, during the four-quarter
reference period or subsequent to such reference period and on or prior to the
Calculation Date shall be given pro forma effect as if they had occurred on the
first day of the four-quarter reference period and Consolidated Cash Flow for
such reference period shall be calculated on a pro forma basis in accordance
with Regulation S-X under the Securities Act (giving effect to any Pro Forma
Cost Savings), but without giving effect to clause (3) of the proviso set forth
in the definition of Consolidated Net Income;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, shall be excluded; and
(3) the Fixed Charges attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded, but only to the extent that
the obligations giving rise to such Fixed Charges will not be obligations of the
specified Person or any of its Restricted Subsidiaries following the Calculation
Date.
12
"Foreign Restricted Subsidiary": any Restricted Subsidiary that is
not a Domestic Restricted Subsidiary.
"Foreign Subsidiary": any Subsidiary that is not a Domestic
Subsidiary.
"Funding Office": the office of the Administrative Agent specified
in Section 8.2 or such other office as may be specified from time to time by the
Administrative Agent or the respective Affiliate of the Administrative Agent as
its funding office by written notice to DASI and the Lenders.
"GAAP": generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which were in effect as of the 9% Notes Original Issue Date.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).
"Group Members": the collective reference to DASI, the Borrower and
their respective Subsidiaries.
"guaranty": a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
"Hedging Obligations": with respect to any specified Person, the
obligations of such Person under:
(1) interest rate swap agreements, interest rate cap agreements
and interest rate collar agreements; and
(2) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates, currency values or commodity
prices.
"HiddenCreek": Hidden Creek Partners LLC, a Minnesota limited
liability company.
"Indebtedness": with respect to any specified Person, any
indebtedness of such Person, whether or not contingent, in respect of:
(1) borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect thereof);
(3) banker's acceptances;
(4) representing Capital Lease Obligations;
13
(5) the balance deferred and unpaid of the purchase price of any
property, except any such balance that constitutes an accrued expense or trade
payable; or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person) and, to the extent not otherwise included, the guaranty by
the specified Person of any Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value thereof, in the case of any Indebtedness
issued with original issue discount; and
(2) the principal amount thereof, together with any interest
thereon that is more than 30 days past due, in the case of any other
Indebtedness.
"Indemnitee": as defined in Section 8.5.
"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.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
registered copyrights, registered copyright licenses, patents, patent licenses,
trademarks, trademark licenses, technology, know-how and processes, and all
rights to xxx at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.
"Intercreditor Agreement": the Intercreditor Agreement, dated of May
3, 2005, by and among the First Priority Representative and the Second Priority
Representative (in each case, as defined in the Intercreditor Agreement), the
Borrower and the other Loan Parties, substantially in the form of Exhibit F.
"Interest Expense": for any period the consolidated interest expense
of DASI and its Subsidiaries for such period determined in accordance with GAAP
plus dividends relating to Trust Preferred Securities, net of any interest
income.
"Interest Payment Date": (a) as to any Base Rate Loan, the last
Business Day of each March, June, September and December to occur while such
Loan is outstanding and the final maturity date of such Loan, (b) as to any
Eurodollar Loan having an Interest Period of three months or less, the last day
of such Interest Period, (c) as to any Eurodollar Loan having an Interest Period
longer than three months, each day that is three months, or a whole multiple
thereof, after the first day of such Interest Period and the last day of such
Interest Period and (d) as to any Loan, the date of any repayment or prepayment
made in respect thereof.
14
"Interest Period": as to any Eurodollar Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; 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, as selected by the Borrower by irrevocable notice to the
Administrative Agent not later than 11:00 a.m., New York City time; provided
that, all of the foregoing provisions relating to Interest Periods are subject
to the following:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) the Borrower may not select an Interest Period that would
extend beyond the Maturity Date;
(iii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(iv) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an Interest
Period for such Loan.
"Investments": with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Affiliates) in the forms
of loans (including guaranties or other obligations), advances or capital
contributions (excluding commissions, travel and similar advances to officers
and employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If the Borrower
or any Restricted Subsidiary of the Borrower sells or otherwise disposes of any
Equity Interests of any direct or indirect Restricted Subsidiary of the Borrower
such that, after giving effect to any such sale or disposition, such Person is
no longer a Restricted Subsidiary of the Borrower, the Borrower shall be deemed
to have made an Investment on the date of any such sale or disposition equal to
the fair market value of the Equity Interests of such Restricted Subsidiary not
sold or disposed of in an amount determined as provided in the final paragraph
of Section 5.6 hereof. The acquisition by the Borrower or any Restricted
Subsidiary of the Borrower of a Person that holds an Investment in a third
Person shall be deemed to be an Investment by the Borrower or such Restricted
Subsidiary in such third Person in an amount equal to the fair market value of
the Investment held by the acquired Person in such third Person in an amount
determined as provided in the final paragraph Section 5.6 hereof.
"Joinder Agreement": as defined in Section 5.20.
"Lender Parties": the collective reference to the Agents, the
Lenders, their respective Affiliates and the Indemnitees.
"Lenders": as defined in the preamble hereto; provided, that unless
the context otherwise requires, each reference herein to the Lenders shall be
deemed to include any Conduit Lender.
"Lien": with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected
15
under applicable law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to
sell or give a security interest in and any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or equivalent statutes)
of any jurisdiction.
"Loan": as defined in Section 2.1.
"Loan Documents": this Agreement, any Notes, the Collateral
Documents, the Loan Guaranty, the Intercreditor Agreement and all other
agreements, instruments, documents and certificates identified in Section 4.1
executed and delivered to, or in favor of any Agent or any Lenders and including
all other pledges, powers of attorney, consents, assignments, contracts,
notices, letter of credit agreements and all other written matter whether
heretofore, now or hereafter executed by or on behalf of any Loan Party, or any
employee of any Loan Party, and delivered to the Agents, as applicable, or any
Lender in connection with the Agreement or the transactions contemplated
thereby. Any reference in this Agreement or any other Loan Document to a Loan
Document shall include all appendices, exhibits or schedules thereto, and all
amendments, restatements, supplements or other modifications thereto, and shall
refer to the Agreement or such Loan Document as the same may be in effect at any
and all times such reference becomes operative.
"Loan Guarantor": each Loan Party (other than the Borrower) and any
other Person who becomes a Loan Party pursuant to a Joinder Agreement and their
successors and assigns.
"Loan Guaranty": Section 9 of this Agreement, as it may be amended
or modified and in effect from time to time.
"Loan Parties": each Group Member that is a party to a Loan
Document.
"Material Adverse Effect": a material adverse effect on (a) the
business, property, operations or condition (financial or otherwise) of DASI and
its Subsidiaries taken as a whole or (b) the validity or enforceability of this
Agreement or any of the other Loan Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.
"Maturity Date": May 3, 2011, which is the sixth anniversary of the
Closing Date.
"Maximum Liability": as defined in Section 9.10.
"Minimum Tranche": in respect of Loans comprising part of the same
borrowing, or to be converted or continued under Section 2.8, a minimum amount
of U.S.$10,000,000.
"Mortgages": any mortgage, charge/mortgage of land, deed of trust or
other agreement which conveys or evidences a Lien in favor of the Collateral
Agent, for the benefit of the Agents and the Lenders, on real property of a Loan
Party, including any amendment, modification or supplement thereto.
"Multiemployer Plan": a multiemployer plan as defined in Section
4001(a)(3) of ERISA to which the Borrower contributes or would have any
liability on account of a Commonly Controlled Entity.
"Net Income": with respect to any specified Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however:
16
(1) any gain or loss, together with any related provision for
taxes on such gain or loss, realized in connection with: (a) any Asset Sale; or
(b) the disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries; and
(2) any extraordinary gain or loss, together with any related
provision for taxes on such extraordinary gain or loss.
"Net Proceeds": the aggregate cash proceeds received by the Borrower
or any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale, including, without limitation, legal, accounting
and investment banking fees, and sales commissions, and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof, in each
case after taking into account any available tax credits or deductions and any
tax sharing arrangements and amounts required to be applied to the repayment of
Indebtedness, other than Senior Debt of the Borrower or a Guarantor, secured by
a Lien on the asset or assets that were the subject of such Asset Sale and any
reserve for adjustment in respect of the sale price of such asset or assets
established in accordance with GAAP.
"9% Notes Original Issue Date": April 22, 1999, the date of the
initial issuance of the Borrower's Series A 9% Senior Subordinated Notes due
2009.
"1999 Subordinated Indenture": as defined in Section 4.1(h).
"Non-Excluded Taxes": as defined in Section 2.15(a).
"Non-Paying Guarantor": as defined in Section 9.11.
"Non-Recourse Debt": Indebtedness:
(1) as to which neither the Borrower nor any of its Restricted
Subsidiaries (a) provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness), (b) is directly or
indirectly liable as a guarantor or otherwise, or (c) constitutes the lender;
(2) no default with respect to which (including any rights that
the holders thereof may have to take enforcement action against an Unrestricted
Subsidiary) would permit upon notice, lapse of time or both any holder of any
other Indebtedness of the Borrower or any of its Restricted Subsidiaries to
declare a default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity; and
(3) as to which the lenders have been notified in writing that
they will not have any recourse to the stock or assets of the Borrower or any of
its Restricted Subsidiaries
"Non-U.S. Lender": as defined in Section 2.15(d).
"Notes": the collective reference to any promissory note evidencing
Loans.
"Obligated Party": as defined in Section 9.4.
17
"Obligations": the unpaid principal of and interest on (including
interest accruing after the maturity of the Loans and interest accruing after
the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Loan Party, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
the Loans and all other obligations and liabilities of any Loan Party to the
Lender Parties, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with this Agreement, any other Loan Document or any other
document made, delivered or given in connection herewith or therewith, whether
on account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including all fees, charges and disbursements of counsel to the
Administrative Agent, the Collateral Agent or to any Lender that are required to
be paid by the Borrower pursuant hereto) or otherwise.
"Offer Amount": as defined in Section 5.9.
"Offer Period": as defined in Section 5.9.
"Officer": with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice-President of such Person.
"Officers' Certificate": a certificate signed on behalf of the
Borrower by two Officers of the Borrower, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Borrower.
"Other Taxes": any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement or any other Loan Document.
"Participant": as defined in Section 8.6(c).
"Paying Guarantor": as defined in the meaning assigned to such term
in Section 10.11.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Business": the business conducted by the Borrower and its
Restricted Subsidiaries on the date hereof and businesses reasonably related
thereto.
"Permitted Debt": as defined in Section 5.8.
"Permitted Investment":
(1) any Investment in the Borrower or in a Restricted Subsidiary;
(2) Investments in Cash Equivalents;
(3) any Investment by the Borrower or any Restricted Subsidiary of
the Borrower in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the
Borrower; or
18
(b) such Person is merged, consolidated or amalgamated with
or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Borrower or a Restricted Subsidiary of the Borrower;
(4) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in compliance
with Section 5.9 hereof;
(5) any acquisition of assets solely in exchange for the issuance
of Equity Interests (other than Disqualified Stock) of the Borrower or DASI;
(6) Hedging Obligations;
(7) other Investments in any Person having an aggregate fair
market value (measured on the date each such Investment was made and without
giving effect to subsequent changes in value), when taken together with all
other Investments made pursuant to this clause (7) that are at the time
outstanding, not to exceed the greater of (x) $50,000,000 and (y) 5.0% of Total
Assets;
(8) Investments existing on the Closing Date and any amendment,
modification, restatement, supplement, extension, renewal, refunding,
replacement, refinancing, in whole or in part, thereof;
(9) any Investment by the Borrower or a Subsidiary of the Borrower
in a Securitization Entity or any Investment by a Securitization Entity in any
other Person in connection with a Qualified Securitization Transaction; provided
that any Investment in a Securitization Entity is in the form of a Purchase
Money Note or any equity interest;
(10) Investments in Permitted Joint Ventures of up to $25,000,000
million outstanding at any one time;
(11) Investments in Unrestricted Subsidiaries in an amount at any
one time outstanding not to exceed $10,000,000; and
(12) Investments in securities of trade creditors or customers
received pursuant to a plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers.
"Permitted Joint Venture": an entity characterized as a joint
venture (however structured) engaged in a Permitted Business and in which the
Borrower or a Restricted Subsidiary (a) owns at least 20% of the ownership
interest or (b) has the right to receive at least 20% of the profits or
distributions; provided that such joint venture is not a Subsidiary.
"Permitted Liens":
(1) Liens of the Borrower and any Guarantor securing Indebtedness
and other Secured Obligations under the First Lien Credit Agreement that were
permitted by the terms of this Agreement to be incurred; provided that the
principal amount of Indebtedness under the First Lien Credit Agreement
(excluding Hedging Obligations) at any date shall not exceed the First Lien
Permitted Principal Amount at such date;
(2) Liens in favor of the Borrower or the Guarantors;
19
(3) Liens on property of a Person existing at the time such Person
is merged with or into or consolidated with the Borrower or any Subsidiary of
the Borrower; provided that such Liens were in existence prior to the
contemplation of such merger or consolidation and do not extend to any assets
other than those of the Person merged into or consolidated with the Borrower or
the Subsidiary;
(4) Liens on property existing at the time of acquisition thereof
by the Borrower or any Subsidiary of the Borrower, provided that such Liens were
in existence prior to the contemplation of such acquisition;
(5) Liens to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business;
(6) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (iv) of the second paragraph of the Section 5.8
hereof covering only the assets acquired with such Indebtedness;
(7) Liens existing on the Closing Date (other than Liens securing
the First Lien Credit Agreement);
(8) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded, provided
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor;
(9) Liens incurred in the ordinary course of business of the
Borrower or any Subsidiary of the Borrower with respect to obligations that do
not exceed $5,000,000 at any one time outstanding;
(10) Liens on assets of Unrestricted Subsidiaries that secure
Non-Recourse Debt of Unrestricted Subsidiaries;
(11) Liens on assets of a Restricted Subsidiary that is not a
Guarantor that secures Indebtedness (including Acquired Indebtedness) incurred
in compliance with Section 5.12 hereof;
(12) judgment Liens not giving rise to an Event of Default;
(13) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual, or warranty requirements of the
Borrower or any of its Restricted Subsidiaries, including rights of offset and
set-off;
(14) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customer duties in connection with the
importation of goods;
(15) Liens on assets transferred to a Securitization Entity or on
assets of a Securitization Entity, in either case incurred in connection with a
Qualified Securitization Transaction;
(16) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of the Borrower and its
Restricted Subsidiaries;
(17) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, including any
20
Lien securing letters of credit issued in the ordinary course of business
consistent with past practice in connection therewith, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money);
(18) Liens imposed by law, such as carriers', warehouseman's and
mechanics' Liens in each case for sums not overdue by more than 30 days or being
contested in good faith;
(19) Liens securing Indebtedness or other obligations of a
Restricted Subsidiary owing to the Borrower or any Guarantor to the extent such
Indebtedness is permitted to be incurred in accordance with Section 5.8 hereof;
(20) Liens securing Hedging Obligations as long as the related
Indebtedness is, and is permitted under this Agreement to be, secured by a Lien
on the same property securing the Hedging Obligations;
(21) Liens on specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations with respect to
bankers' acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other goods;
(22) Liens arising from Uniform Commercial Code financing statement
filings regarding operating leases entered into by the Borrower and its
Restricted Subsidiaries in the ordinary course of business;
(23) Liens securing obligations under the Loan Documents;
(24) easements, zoning and building codes, rights-of-way,
covenants, restrictions, conditions and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure
any monetary obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of business of the
Borrower or any Subsidiary;
(25) any interest or title of a lessor under any lease or sublease
entered into by the Borrower or any of its Subsidiaries in the ordinary course
of its business and covering only those assets subject to such lease or
sublease, as applicable, and any Liens granted by such lessor to secure such
lessor's Indebtedness to any lendor or creditor; and
(26) Liens securing obligations permitted by clause (x) of the
second paragraph of Section 5.8 so long as such Liens are not senior to or pari
passu with the Liens securing the Obligations under the Loan Documents and such
Liens are subordinated to the Liens arising under the Loan Documents to the same
extent as the Second Priority Lien is subordinated to the First Priority Lien
pursuant to the Intercreditor Agreement.
"Permitted Refinancing Indebtedness": any Indebtedness of the
Borrower or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Borrower or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that:
(1) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus all accrued interest thereon and
the amount of all expenses and premiums incurred in connection therewith);
21
(2) such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of, the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the Loans,
such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and is subordinated in right of payment to, the Loans on
terms at least as favorable to the Lenders as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and
(4) such Indebtedness is incurred either by the Borrower or by the
Restricted Subsidiary who is the obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded.
"Person": any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"Plan": at a particular time, any employee benefit plan (other than
a Multiemployer Plan) that is covered by Title IV of ERISA and in respect of
which the Borrower 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.
"Productive Assets": assets that are used or useful in, or Capital
Stock of any person engaged in, a Permitted Business.
"Pro Forma Cost Savings": with respect to any period, the reduction
in costs that occurred during the four-quarter period or after the end of the
four-quarter period on or prior to the Closing Date that were directly
attributable to an asset acquisition and calculated on a basis that is
consistent with Article 11 of Regulation S-X under the Securities Act as in
effect on the 9% Notes Original Issue Date.
"Purchase Date": as defined in Section 5.9.
"Qualified Securitization Transaction": any transaction or series of
transactions pursuant to which the Borrower or any of its Restricted
Subsidiaries may sell, convey or otherwise transfer to (a) a Securitization
Entity (in the case of a transfer by the Borrower or any of its Restricted
Subsidiaries) and (b) any other Person (in case of a transfer by a
Securitization Entity), or may grant a security interest in, any accounts
receivable or equipment (whether now existing or arising or acquired in the
future) of the Borrower or any of its Restricted Subsidiaries, and any assets
related thereto including, without limitation, all collateral securing such
accounts receivable and equipment and other assets (including contract rights
and all guarantees or other obligations in respect to such accounts receivable
and equipment, proceeds of such accounts receivable and equipment and other
assets (including contract rights)) which are customarily transferred or in
respect of which security interests are customarily granted in connection with
asset securitization transactions involving accounts receivable and equipment,
all of the foregoing for the purpose of providing working capital financing on
terms that are more favorable to the Borrower and its Restricted Subsidiary than
would otherwise be available at that time.
"Register": as defined in Section 8.6(b).
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"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of 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 period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg.
Section 4043.
"Required Lenders": at any time, the holders of more than 50% of the
aggregate unpaid principal amount of the Loans then outstanding.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Restricted Investment": an Investment other than a Permitted
Investment.
"Restricted Payments": as defined in Section 5.6(a)(iv).
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Rule 144A": Rule 144A promulgated under the Securities Act.
"SEC": the Securities and Exchange Commission, any successor thereto
and any analogous Governmental Authority.
"Securities Act": the Securities Act of 1933, as amended.
"Securitization Entity": a Wholly Owned Subsidiary of the Borrower
(or another Person in which the Borrower or any Subsidiary of the Borrower makes
an Investment and to which the Borrower or any Subsidiary of the Borrower
transfers accounts receivable or equipment and related assets) that engages in
no activities other than in connection with the financing of accounts receivable
or equipment and that is designated by the Board of Directors of the Borrower
(as provided below) as a Securitization Entity (a) no portion of the
Indebtedness or any other obligations (contingent or otherwise) of which (i) is
guaranteed by the Borrower or any other Restricted Subsidiary (excluding
guarantees of obligations other than the principal of, and interest on,
Indebtedness) pursuant to Standard Securitization Undertakings, (ii) is recourse
to or obligates the Borrower or any Restricted Subsidiary in any way other than
pursuant to Standard Securitization Undertakings, (b) with which neither the
Borrower nor any Restricted Subsidiary has any material contract, agreement,
arrangement or understanding other than on terms no less favorable to the
Borrower or such Restricted Subsidiary than those that might be obtained at the
time from Persons that are not Affiliates of the Borrower, other than fees
payable in the ordinary course of business in connection with servicing
receivables of such entity, and (c) to which neither the Borrower nor any
Restricted Subsidiary has any obligation to maintain or preserve such entity's
financial condition or cause such entity to achieve certain levels of operating
results. Any such designation by the Board of Directors shall be evidenced to
the Administrative Agent by filing with the Administrative Agent a certified
copy of the resolution of the Board of Directors giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions.
"Security Agreement": that certain Pledge and Security Agreement,
dated as of the date hereof, between the Loan Parties and the Collateral Agent,
for the benefit of the Agents and the Lenders,
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and any other pledge or security agreement entered into, after the date of this
Agreement by any other Loan Party or any other Person, as (as required by this
Agreement or any other Loan Document), as the same may be amended, restated or
otherwise modified from time to time.
"Senior Leverage Ratio": as of the last day of any fiscal quarter,
the ratio of
(a) the total debt of DASI and its Subsidiaries as of such day,
calculated in accordance with GAAP and as set forth in DASI's
quarterly financial statements delivered pursuant to Section 5.1(a),
(i) excluding from such total debt, to the extent, if any,
included therein, (A) the Trust Preferred Stock Debentures and the
Trust Preferred Securities, (B) all Subordinated Indebtedness, and
(C) the derivative instrument adjustment per GAAP associated with
the Senior Unsecured Notes, and
(ii) subtracting from such total debt any amount of cash and
cash equivalents held by DASI and its Subsidiaries on such day held
free of Liens (other than Permitted Liens and customary bankers'
liens),
to
(b) EBITDA for the period of four consecutive fiscal quarters
ending on such day.
If DASI or any Subsidiary makes any acquisition, the Senior Leverage Ratio shall
be calculated on a combined basis during the first 12 months following such
acquisition based on the assumption that such acquisition had been completed
(and the financial results of the acquired Person or assets had been included in
the consolidated financial results of DASI beginning) on the first day of the
relevant period of four consecutive fiscal quarters (but without adjustment for
any cost savings or other synergies attributable to such acquisition for the
period prior to the date of such acquisition).
If DASI or any Subsidiary sells or otherwise transfers any or all of its
interest in any Subsidiary (the "Disposed Subsidiary") to another Person or
Persons so that such Disposed Subsidiary is no longer a Subsidiary of DASI or if
DASI or any Subsidiary sells or otherwise transfers substantially all of its
assets in any business unit, line or plant (the "Disposed Business") to another
Person or Persons that are neither DASI nor Subsidiaries, the Senior Leverage
Ratio shall be calculated on a pro forma basis during the first 12 months
following such sale or other transfer of such Disposed Subsidiary or Disposed
Business based on the assumption that such sale or other transfer had been
completed (and the financial results of such Disposed Subsidiary or Disposed
Business had been excluded in the consolidated financial results of DASI
beginning) on the first day of the relevant period of four consecutive fiscal
quarters.
"Senior Unsecured Notes": the 8-5/8% Senior Notes due 2012 issued or
to be issued by the Borrower pursuant to the 2002 Senior Indenture.
"Significant Subsidiary": any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date of this Indenture.
"Standard Securitization Undertakings": representations, warranties,
covenants and indemnities entered into by the Borrower or any Subsidiary of the
Borrower that are reasonably customary in an accounts receivable or equipment
transactions.
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"Stated Maturity": with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subordinated Indebtedness": any unsecured Indebtedness for borrowed
money junior to and subordinate to the Obligations.
"Subsidiary": with respect to any specified Person:
(1) any corporation, association or other business entity of which
more than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries
of that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or one or more Subsidiaries
of such Person (or any combination thereof).
"Subsidiary Guarantor": any Loan Guarantor that is a Subsidiary of
the Borrower.
"Syndication Agent": as defined in the preamble hereto.
"Total Assets": the total assets of the Borrower and its Restricted
Subsidiaries on a consolidated basis determined in accordance with GAAP, as
shown on the most recently available consolidated balance sheet of the Borrower
and its Restricted Subsidiaries.
"Transferee": any Assignee or Participant.
"Trust Preferred Securities": the Convertible Trust Originated
Preferred Securities issued by the Trust Preferred Stock Trust containing
substantially the terms described in the Trust Preferred Stock Prospectus.
"Trust Preferred Stock Debentures": the 7 1/2% Convertible
Subordinated Debentures issued by DASI to the Trust Preferred Stock Trust
containing substantially the terms described in the Trust Preferred Stock
Prospectus and relating to the Trust Preferred Securities.
"Trust Preferred Stock Indenture": the Indenture dated as of March
20, 1998 of DASI to The First National Bank of Chicago, as trustee.
"Trust Preferred Stock Prospectus": the Prospectus dated March 16,
1998 for Dura Automotive Systems Capital Trust Convertible Trust Preferred
Securities issued by the Trust Preferred Stock Trust.
"Trust Preferred Stock Trust": the Dura Automotive Systems Capital
Trust, a special purpose Delaware business trust established by DASI, of which
DASI holds all the common securities, which issued the Trust Preferred
Securities, and which has lent to DASI (such loans being evidenced by the Trust
Preferred Stock Debentures) the net proceeds of issuance and sale of the Trust
Preferred Securities.
25
"2002 Senior Indenture": as defined in Section 4.1(h).
"Type": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar Loan.
"United States": the United States of America.
"Unrestricted Subsidiary": any Subsidiary of the Borrower (other
than Dura UK Limited or any successor thereto) that is designated by the Board
of Directors as an Unrestricted Subsidiary pursuant to a Board Resolution, but
only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or
understanding with the Borrower or any Restricted Subsidiary of the Borrower
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to the Borrower or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of the
Borrower;
(3) is a Person with respect to which neither the Borrower nor any
of its Restricted Subsidiaries has any direct or indirect obligation (a) to
subscribe for additional Equity Interests or (b) to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Borrower or any of its
Restricted Subsidiaries.
Any designation of a Subsidiary of the Borrower as an Unrestricted
Subsidiary shall be evidenced to the Administrative Agent by filing with the
Administrative Agent a certified copy of the Board Resolution giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the preceding conditions and was permitted by Section 5.6 hereof.
If, at any time, any Unrestricted Subsidiary would fail to meet the preceding
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Agreement and any Indebtedness of
such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Borrower as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under Section 5.8 hereof, the Borrower shall be in
default of such covenant. The Board of Directors of the Borrower may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Borrower of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (1) such
Indebtedness is permitted under Section 5.8 hereof, calculated on a pro forma
basis as if such designation had occurred at the beginning of the four-quarter
reference period; and (2) no Default would be in existence following such
designation.
"Voting Stock" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the Board
of Directors of such Person.
"Weighted Average Life to Maturity": when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount
of each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at the final maturity, in
respect thereof, by (b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment;
by
26
(2) the then outstanding principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary": of any Person, a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person.
"Wholly Owned Subsidiary": as to any Person, any other Person all of
the Capital Stock of which (other than directors' qualifying shares required by
law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.
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 other Loan Documents or any certificate or other document made or delivered
pursuant hereto or thereto.
(a) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto, (i)
accounting terms relating to any Group Member not defined in Section 1.1 and
accounting terms partly defined in Section 1.1, to the extent not defined, shall
have the respective meanings given to them under GAAP, (ii) the words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation", (iii) the word "incur" shall be construed to mean incur, create,
issue, assume, become liable in respect of or suffer to exist (and the words
"incurred" and "incurrence" shall have correlative meanings), (iv) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, Capital Stock, securities, revenues, accounts, leasehold
interests and contract rights, (v) references to agreements or other Contractual
Obligations shall, unless otherwise specified, be deemed to refer to such
agreements or Contractual Obligations as amended, supplemented, restated or
otherwise modified from time to time, (vi) "or" is not exclusive, and (vii)
provisions apply to successive events and transactions.
(b) 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,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF LOANS
2.1 Commitments.(a) Subject to the terms and conditions hereof, each
Lender severally agrees to make a term loan (a "Loan") to the Borrower on the
Closing Date in an amount not to exceed the amount of the Commitment of such
Lender. The Loans may from time to time be Eurodollar Loans or Base Rate Loans,
as determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.3 and 2.8.
2.2 [Reserved].
2.3 Procedure for Loan Borrowing. The Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 10:00 A.M., New York City time, one Business Day
prior to the anticipated Closing Date) requesting that the Lenders make the
Loans on the Closing Date and specifying the amount to be borrowed. The Loans
made on the
27
Closing Date shall initially be Base Rate Loans and, unless otherwise agreed by
the Administrative Agent in its sole discretion, no Loan may be converted into
or continued as a Eurodollar Loan having an Interest Period in excess of one
month prior to the date that is 30 days after the Closing Date. Upon receipt of
such notice the Administrative Agent shall promptly notify each Lender thereof.
Not later than 12:00 Noon, New York City time, on the Closing Date each Lender
shall make available to the Administrative Agent at the Funding Office an amount
in immediately available funds equal to the Loan to be made by such Lender. The
Administrative Agent shall credit the account of the Borrower on the books of
such office of the Administrative Agent with the aggregate of the amounts made
available to the Administrative Agent by the Lenders in immediately available
funds.
2.4 Repayment of Loans. The Loans shall mature in one installment on the
Maturity Date.
2.5 Fees, etc. DASI and the Borrower agree to pay to each Arranger, the
Administrative Agent and the Collateral Agent the fees in the amounts and on the
dates as set forth in any fee agreements with such party and to perform any
other obligations contained therein.
2.6 Optional Prepayments. (a) Subject to the requirements of the First
Lien Credit Agreement, the Borrower may at any time and from time to time prepay
the Loans, in whole or in part, without premium or penalty, upon irrevocable
notice delivered to the Administrative Agent, no later than 11:00 A.M., New York
City time, three Business Days prior thereto, in the case of Eurodollar Loans,
and no later than 11:00 A.M., New York City time, one Business Day prior
thereto, in the case of Base Rate Loans, which notice shall specify the date and
amount of prepayment and whether the prepayment is of a specific Type of Loan
and, if of a combination thereof, the amount allocable to each; provided, that
if a Eurodollar Loan is prepaid on any day other than the last day of the
Interest Period applicable thereto, the Borrower shall also pay any amounts
owing pursuant to Section 2.16. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein, together with accrued interest to such date on the
amount prepaid. Partial prepayments shall be in an aggregate principal amount of
$1,000,000 or a whole multiple thereof.
(b) Each optional prepayment of the Loans shall be accompanied by
a prepayment fee equal to (i) during the period from the Closing Date to but
excluding the first anniversary of the Closing Date, 4.0% of the aggregate
principal amount of such prepayment, (ii) during the period from the first
anniversary of the Closing Date to but excluding the second anniversary of the
Closing Date, 2.0% of the aggregate principal amount of such prepayment and
(iii) during the period from the second anniversary of the Closing Date to but
excluding the third anniversary of the Closing Date, 1.0% of the aggregate
principal amount of such prepayment.
2.7 Mandatory Offers to Prepay. The Borrower will be required to offer to
prepay the Loans to the extent required by Sections 5.9 and 5.14.
2.8 Conversion and Continuation Options. (a) The Borrower may elect from
time to time to convert Eurodollar Loans to Base Rate Loans by giving the
Administrative Agent at least three (3) Business Days' prior irrevocable notice
of such election, provided that any such conversion of Eurodollar Loans may only
be made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert Base Rate Loans to Eurodollar Loans by
giving the Administrative Agent at least three (3) Business Days' prior
irrevocable notice of such election (which notice shall specify the length of
the initial Interest Period therefor), provided that no Base Rate Loan may be
converted into a Eurodollar Loan when any Event of Default has occurred and is
continuing and the Required Lenders have determined in their sole discretion not
to permit such conversions. Upon receipt of any such notice the Administrative
Agent shall promptly notify each Lender thereof.
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(b) Any Eurodollar Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
Section 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 when any Event
of Default has occurred and is continuing and the Required Lenders have
determined in their sole discretion not to permit such continuations. If the
Borrower shall fail to give any required notice as described above in this
paragraph with respect to any Loan or if such continuation is not permitted
pursuant to the preceding proviso such Loans shall be automatically converted to
Base Rate Loans on the last day of such then expiring Interest Period. Upon
receipt of any such notice the Administrative Agent shall promptly notify each
relevant Lender thereof.
2.9 Limitations on Eurodollar Tranches. Notwithstanding anything to the
contrary in this Agreement, all borrowings, conversions and continuations of
Eurodollar Loans and all selections of Interest Periods shall be in such amounts
and be made pursuant to such elections so that, (a) after giving effect thereto,
the aggregate principal amount of the Eurodollar Loans comprising each
Eurodollar Tranche shall be equal to the Minimum Tranche and (b) no more than
ten Eurodollar Tranches shall be outstanding at any one time for all Loans.
2.10 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall bear
interest for each day during each Interest Period with respect thereto at a rate
per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any Loan
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to
the rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this Section plus 2%, and (ii) if all or a portion of any interest
payable on any Loan or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to the rate then applicable
to Base Rate Loans plus 2% (or, in the case of any such other amounts that do
not relate to the Loans, the rate then applicable to Base Rate Loans plus 2%),
in each case, with respect to clauses (i) and (ii) above, from the date of such
non-payment until such amount is paid in full (after as well after as before
judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this Section
shall be payable from time to time on demand.
2.11 Computation of Interest and Fees. (a) Interest and fees payable
pursuant hereto shall be calculated on the basis of a 360-day year for the
actual days elapsed, except that, with respect to Base Rate Loans the rate of
interest on which is calculated on the basis of the Prime Rate, the interest
thereon shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower 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 Base Rate, the Eurodollar Rate shall become effective as of the
opening of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of the effective date and the amount of each such change in interest
rate.
29
(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 Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.11(a).
2.12 Inability to Determine Interest Rate. If prior to the first day of
any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Required Lenders that the Eurodollar Rate determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost
to such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to
DASI and the relevant Lenders as soon as practicable thereafter. If such notice
is given (x) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as Base Rate Loans, (y) any Loans that were to
have been converted on the first day of such Interest Period to Eurodollar Loans
shall be continued as Base Rate Loans and (z) any outstanding Eurodollar Loans
shall be converted, on the last day of the then-current Interest Period, to Base
Rate Loans. Until such notice has been withdrawn by the Administrative Agent, no
further Eurodollar Loans shall be made or continued as such, nor shall the
Borrower have the right to convert Loans to Eurodollar Loans.
2.13 Pro Rata Treatment and Payments. (a) The borrowing by the Borrower
from the Lenders hereunder shall be made pro rata according to the respective
Commitments of the Lenders.
(b) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Loans shall be made pro rata
according to the respective outstanding principal amounts of the Loans then held
by the Lenders. The amount of each principal prepayment of the Loans made
pursuant to Sections 2.6 shall be applied to reduce the Loans pro rata based
upon the outstanding principal amount of Loans then held by the respective
Lenders. Amounts prepaid on account of the Loans may not be reborrowed.
(c) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the relevant Lenders, at the Funding Office, in
immediately available funds. All payments to be made by the Borrower hereunder
shall be in Dollars. The Administrative Agent shall distribute such payments to
the relevant Lenders promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on the Eurodollar Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day. 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 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. In
the case of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then applicable rate
during such extension.
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(d) 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 that would constitute its share 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, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower 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 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 paragraph shall be conclusive in the absence of
manifest error. If such Lender's share of such borrowing is not made available
to the Administrative Agent by such Lender within three Business Days after such
Borrowing Date, the Administrative Agent will notify DASI of such failure to
fund and the Administrative Agent shall also be entitled to recover such amount
with interest thereon at the rate per annum applicable to the Loans comprising
such borrowing, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in
writing by the Borrower prior to the date of any payment due to be made by the
Borrower hereunder that the Borrower will not make such payment to the
Administrative Agent, the Administrative Agent may assume that the Borrower is
making such payment, and the Administrative Agent may, but shall not be required
to, in reliance upon such assumption, make available to the Lenders their
respective pro rata shares of a corresponding amount. If such payment is not
made to the Administrative Agent by the Borrower within three Business Days
after such due date, the Administrative Agent shall be entitled to recover, on
demand, from each Lender to which any amount which was made available pursuant
to the preceding sentence, such amount with interest thereon at the rate per
annum equal to the daily average Federal Funds Effective Rate. Nothing herein
shall be deemed to limit the rights of the Administrative Agent or any Lender
against the Borrower. The failure of any Lender to make any Loan on the Closing
Date shall not relieve any other Lender of its obligation hereunder (if any) to
make a Loan on the Closing 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
the Closing Date.
2.14 Requirements of Law; Illegality. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof 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 made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender in respect thereof
(except for Non-Excluded Taxes covered by Section 2.15 and changes in the
rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender that is not otherwise included in the determination
of the Eurodollar Rate; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender reasonably deems to be material, of making,
converting into, continuing or maintaining Eurodollar
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Loans, or to reduce any amount receivable hereunder in respect thereof, then, in
any such case, the Borrower shall promptly pay such Lender, upon its demand, any
additional amounts necessary to compensate such Lender for such increased cost
or reduced amount receivable. If any Lender becomes entitled to claim any
additional amounts pursuant to this paragraph, it shall promptly notify the
Borrower (with a copy to the Administrative Agent) of the event by reason of
which it has become so entitled.
(b) If any Lender shall reasonably have determined that the
adoption of or any change in any Requirement of Law regarding capital adequacy
or in the interpretation or application thereof or compliance by such Lender or
any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount reasonably deemed by
such Lender to be material, then from time to time, after submission by such
Lender to the Borrower (with a copy to the Administrative Agent) of a written
request therefor, the Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender or such corporation for such
reduction.
(c) A certificate as to any additional amounts payable pursuant to
this Section submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error.
Notwithstanding anything to the contrary in this Section, the Borrower shall not
be required to compensate a Lender pursuant to this Section for any amounts
incurred more than nine months prior to the date that such Lender notifies the
Borrower of such Lender's intention to claim compensation therefor; provided
that, if the circumstances giving rise to such claim have a retroactive effect,
then such nine-month period shall be extended to include the period of such
retroactive effect. The obligations of the Borrower pursuant to this Section
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
(d) Notwithstanding any other provision herein, if the adoption of
or any change in any Requirement of Law or in the interpretation or application
thereof shall make it unlawful for any Lender to make or maintain Eurodollar
Loans as contemplated by this Agreement, (a) the commitment of such Lender
hereunder to make Eurodollar Loans, continue Eurodollar Loans as such, and
convert Base Rate Loans to Eurodollar Loans, as applicable, shall forthwith be
cancelled and (b) such Lender's Loans then outstanding as Eurodollar Loans, if
any, shall be converted automatically to Base Rate Loans on the respective last
days of the then current Interest Periods with respect to such Loans or within
such earlier period as required by law. If any such conversion of a Eurodollar
Loan occurs on a day which is not the last day of the then current Interest
Period with respect thereto, the Borrower shall pay to such Lender such amounts,
if any, as may be required pursuant to Section 2.16. If circumstances
subsequently change so that any affected Lender shall determine that it is no
longer so affected, such Lender will promptly notify the Borrower and the
Administrative Agent, and upon receipt of such notice, the obligations of such
Lender to make or continue Eurodollar Loans or to convert Base Rate Loans into
Eurodollar Loans, as applicable, shall be reinstated. Notwithstanding the
foregoing, until such notice has been withdrawn by the Lender (which the Lender
agrees to do when the circumstances that prompted the delivery of such notice no
longer exist), if a Base Rate is not available to the Borrower, any Loans or
Obligations or other amounts due hereunder not subject to an Interest Period
determined prior to such notice shall bear interest at a rate reasonably
determined from time to time by the applicable Lender to be its cost of
maintaining its share of such Loans, specified Obligations or other amounts plus
the Applicable Margin and any applicable overdue percentage pursuant to
subsection 2.9(c).
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2.15 Taxes. (a) All payments made by the Borrower under this Agreement
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, excluding net
income taxes and franchise taxes (imposed in lieu of net income taxes) imposed
on any Agent or any Lender as a result of a present or former connection between
such Agent or such Lender and the jurisdiction of the Governmental Authority
imposing such tax or any political subdivision or taxing authority thereof or
therein (other than any such connection arising solely from such Agent or such
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or any other Loan Document). If any
such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") or Other Taxes are required to be withheld
from any amounts payable to any Agent or any Lender hereunder, the amounts so
payable to such Agent or such Lender shall be increased to the extent necessary
to yield to such Agent or such Lender (after payment of all Non-Excluded Taxes
and Other Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Agreement, provided, however, that the
Borrower shall not be required to increase any such amounts payable to any
Lender with respect to any Non-Excluded Taxes (i) that are attributable to such
Lender's failure to comply with the requirements of paragraph (d) or (e) of this
Section or (ii) that are United States withholding taxes imposed on amounts
payable to such Lender at the time such Lender becomes a party to this
Agreement, except to the extent that such Lender's assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from the
Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law. Whenever any
Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly as
possible thereafter the Borrower shall send to the Administrative Agent for its
own account or for the account of the relevant Lender, as the case may be, a
certified copy of an original official receipt received by the Borrower showing
payment thereof. If the Borrower fails to pay any Non-Excluded Taxes or Other
Taxes when due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure.
(c) The Borrower shall indemnify each Agent and each Lender,
within 10 days after written demand therefor, for the full amount of any
Non-Excluded Taxes or Other Taxes paid by such Agent or such Lender as the case
may be, on or with respect to any payment by or on account of any obligation of
the Borrower hereunder (including Non-Excluded Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Non-Excluded Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender, or by an Agent on its own behalf or on behalf of a Lender,
shall be conclusive absent manifest error.
(d) Each Lender (or Transferee) that is not a "U.S. Person" as
defined in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver
to the Borrower and the Administrative Agent (or, in the case of a Participant,
to the Lender from which the related participation shall have been purchased)
two copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI,
or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a statement substantially in the form of
Exhibit D and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a
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reduced rate of, U.S. federal withholding tax on all payments by the Borrower
under this Agreement and the other Loan Documents. Such forms shall be delivered
by each Non-U.S. Lender on or before the date it becomes a party to this
Agreement (or, in the case of any Participant, on or before the date such
Participant purchases the related participation). In addition, each Non-U.S.
Lender shall deliver such forms promptly upon the obsolescence or invalidity of
any form previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender
shall promptly notify the Borrower at any time it determines that it is no
longer in a position to provide any previously delivered certificate to the
Borrower (or any other form of certification adopted by the U.S. taxing
authorities for such purpose). Notwithstanding any other provision of this
paragraph, a Non-U.S. Lender shall not be required to deliver any form pursuant
to this paragraph that such Non-U.S. Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which the Borrower
is located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate, provided that such Lender is
legally entitled to complete, execute and deliver such documentation and in such
Lender's judgment such completion, execution or submission would not materially
prejudice the legal position of such Lender.
(f) Notwithstanding any other provision of this Section 2.15, no
Lender shall be required to deliver any form pursuant to this Section 2.15 if
such Lender informs the Administrative Agent and DASI that it is not legally
permitted to deliver such form as a result of a change in any Requirement of Law
after the date of this Agreement.
(g) (i) The Borrower will not be required to pay any additional
amount in respect of United States Federal tax pursuant to this Section 2.15 to
any Lender or to the Administrative Agent with respect to any Lender:
(A) if the obligation to pay such additional amount would
not have arisen but for a failure by such Lender to comply with its
obligations under Section 2.15(d); or
(B) if such Lender shall have delivered to DASI a Form
W-8BEN or W-8ECI in respect of its applicable Lending Office
pursuant to Section 2.15(d), and such Lender shall not at any time
be entitled to exemption from deduction or withholding of United
States Federal income tax in respect of payments by the Borrower
hereunder for the account of such Lending Office for any reason
other than a change in United States law or regulations or in the
official interpretation of such law or regulations by any
Governmental Authority charged with the interpretation or
administration thereof (whether or not having the force of law)
after the date of delivery of such Form W-8BEN or W-8ECI.
(h) If any Agent or any Lender determines, in its sole discretion,
that it has received a refund of any Non-Excluded Taxes or Other Taxes as to
which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 2.15, it shall pay
over such refund to the Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower under this Section 2.15 with
respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of such Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided, that the Borrower, upon the request of
such Agent or such Lender, agrees to repay the
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amount paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to such Agent or such Lender in
the event Administrative Agent or such Lender is required to repay such refund
to such Governmental Authority. This paragraph shall not be construed to require
any Agent or any Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Borrower
or any other Person.
(i) If any Lender claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing Form W-8BEN
pursuant to Section 2.15(d) and such Lender grants a participation in all or
part of the Obligations of the Borrower to such Lender, such Lender agrees to
notify the Administrative Agent of the percentage amount in which it is no
longer the beneficial owner of Obligations of the Borrower to such Lender. To
the extent of such percentage amount, the Administrative Agent will treat such
Lender's Form W-8BEN as no longer valid, and such Lender agrees to undertake
sole responsibility for complying with the withholding tax requirements imposed
by Sections 1441 and 1442 of the Code.
(j) If any Lender claiming exemption from United States
withholding tax by filing Form W-8ECI with the Administrative Agent pursuant to
Section 2.15(d) grants a participation in all or part of the Obligations of the
Borrower to such Lender, such Lender agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.
(k) If any Lender is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest payment
to such Lender an amount equivalent to the applicable withholding tax after
taking into account such reduction. If the forms or other documentation required
by Section 2.15(d) are not delivered to the Administrative Agent, then the
Administrative Agent may withhold from any interest payment to such Lender not
providing such forms or other documentation an amount equivalent to the
applicable withholding tax.
(l) The agreements in this Section shall survive the termination
of this Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.16 Indemnity. The Borrower agrees to indemnify each Lender for, and to
hold each Lender harmless from, any loss or expense that such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment of or conversion
from Eurodollar Loans after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making of a
prepayment of Eurodollar Loans on a day that is not the last day of an Interest
Period with respect thereto. Such indemnification may include an amount equal to
the excess, if any, of (i) the amount of interest that would have accrued on the
amount so prepaid, or not so borrowed, converted or continued, for the period
from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of such Interest Period (or, in the case of a failure
to borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for
such Loans provided for herein (excluding, however, the Applicable Margin
included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) that would have accrued to such Lender on such amount
by placing such amount on deposit for a comparable period with leading banks in
the interbank Eurodollar market. A certificate as to any amounts payable
pursuant to this Section submitted to the Borrower by any Lender shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
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2.17 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.14 or 2.15(a)
with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of the Borrower or the rights of any Lender
pursuant to Section 2.14 or 2.15(a).
2.18 Replacement of Lenders. The Borrower shall be permitted to replace
any Lender that (a) requests reimbursement for amounts owing pursuant to Section
2.14 or 2.15(a) or (b) defaults in its obligation to make Loans hereunder, with
a replacement financial institution; provided that (i) such replacement does not
conflict with any Requirement of Law, (ii) no Event of Default shall have
occurred and be continuing at the time of such replacement, (iii) prior to any
such replacement, such Lender shall have taken no action under Section 2.17 so
as to eliminate the continued need for payment of amounts owing pursuant to
Section 2.14(a) or (b) or 2.15(a), (iv) the replacement financial institution
shall purchase, at par, including all accrued interest and fees, all Loans and
other amounts owing to such replaced Lender on or prior to the date of
replacement, (v) the Borrower shall be liable to such replaced Lender under
Section 2.16 if any Eurodollar Loan owing to such replaced Lender shall be
purchased other than on the last day of the Interest Period relating thereto,
(vi) the replacement financial institution, if not already a Lender, shall be
reasonably satisfactory to the Administrative Agent, (vii) the replaced Lender
shall be obligated to make such replacement in accordance with the provisions of
Section 8.6 (provided that the Borrower shall be obligated to pay the
registration and processing fee referred to therein), (viii) until such time as
such replacement shall be consummated, the Borrower shall pay all additional
amounts (if any) required pursuant to Section 2.14(a) or (b) or 2.15(a), as the
case may be, and (ix) any such replacement shall not be deemed to be a waiver of
any rights that the Borrower, the Administrative Agent or any other Lender shall
have against the replaced Lender.
2.19 Evidence of Debt. The Borrower agree that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a Note of the Borrower evidencing any Loans by such Lender to the
Borrower, with appropriate insertions as to date and principal amount, in form
and substance reasonably acceptable to the Borrower and the Administrative
Agent.
2.20 Intercreditor Agreement. Each Lender (including each Person which
becomes a Lender after the date hereof) (a) acknowledges that it has received
and reviewed the Intercreditor Agreement and agrees to be bound by the terms
thereof, (b) acknowledges and agrees to the terms of the Intercreditor
Agreement, (c) authorizes the Administrative Agent and the Collateral Agent to
perform the Intercreditor Agreement on their behalf and to take any action
thereunder as determined by them to be necessary or advisable to protect the
interest of the holders of Second Priority Claims (as defined in the
Intercreditor Agreement) and to give effect to the Intercreditor Agreement,
including the subordination of the Second Priority Lien to the First Priority
Lien as described therein, (d) acknowledges that the Collateral will be subject
to the senior priority of the Liens securing First Priority Obligations(as
defined in the Intercreditor Agreement), subject to the terms of the
Intercreditor Agreement, (e) acknowledges that the amount of the First Priority
Obligations may be increased and (f) acknowledges that the Intercreditor
Agreement imposes substantial restrictions on the ability of the Lenders to
exercise remedies against the Loan Parties and the Collateral including during
bankruptcy proceedings involving a Loan Party. Each Lender (including each
Person that becomes a Lender of the date hereof) hereby (i) acknowledges that
JPMorgan Chase Bank, N.A. and an affiliate of Bank of America Securities LLC are
acting under the Intercreditor Agreement in multiple capacities as the
Administrative Agent (as applicable), as Collateral Agent (as applicable), as
First Lien Representative (as applicable), the First Lien Agent and the
collateral agent under the First Lien Credit Agreement (as applicable) and First
Lien Collateral Documents (as applicable)
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and (ii) waives any conflict of interest, now contemplated or arising hereafter,
in connection therewith and agrees not to assert against JPMorgan Chase Bank,
N.A. or Bank of America Securities LLC or any affiliate thereof any claims,
causes of action, damages or liabilities of whatever kind or nature relating
thereto. Each Lender (including each Person that becomes a Lender after the date
hereof) hereby authorizes and directs JPMorgan Chase Bank, N.A. and Wilmington
Trust Company to enter into the Intercreditor Agreement on behalf of such Lender
and agrees that each of JPMorgan Chase Bank, N.A. and Wilmington Trust Company,
in their various capacities thereunder, may take such actions on its behalf as
is contemplated by the terms of the Intercreditor Agreement
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement
and the Lenders to make the Loans, DASI and the Borrower hereby jointly and
severally represent and warrant to the Agents and each Lender that:
3.1 Financial Condition. The audited consolidated balance sheet of DASI
and its Subsidiaries as at December 31, 2004, and the related consolidated
statements of income and of cash flows for the fiscal year ended on such date
present fairly in all material respects the consolidated financial condition of
DASI and its Subsidiaries as at such date, and the consolidated results of its
operations and its consolidated cash flows for the fiscal year then ended. All
such financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as otherwise expressly noted therein).
3.2 No Change. Since December 31, 2004, there has been no development or
event that has had a Material Adverse Effect.
3.3 Existence; Compliance with Law. Each Loan Party and each of its
Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has the power and
authority, and all governmental licenses, authorizations, consents and approvals
to own and operate its property, to lease the property it operates as lessee and
to conduct the business in which it is currently engaged, (c) is duly qualified
as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification and (d) is in compliance with all
Requirements of Law except, in each case referred to in clauses (b), (c) and
(d), to the extent that the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
3.4 Power; Authorization; Enforceable Obligations. Each Loan Party has the
power and authority, and the legal right, to make, deliver and perform the Loan
Documents to which it is a party and, in the case of the Borrower, to obtain
extensions of credit hereunder. Each Loan Party has taken all necessary
organizational action to authorize the execution, delivery and performance of
the Loan Documents to which it is a party and, in the case of the Borrower, to
authorize the extensions of credit on the terms and conditions of this
Agreement. No material consent or authorization of, filing with, notice to or
other act by or in respect of, any Governmental Authority is required in
connection with the extensions of credit hereunder or with the execution,
delivery, performance, validity or enforceability of this Agreement or any of
the Loan Documents. Each Loan Document has been duly executed and delivered on
behalf of each Loan Party party thereto. This Agreement constitutes, and each
other Loan Document upon execution will constitute, a legal, valid and binding
obligation of each Loan Party party thereto, enforceable against each such Loan
Party in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
37
3.5 No Legal Bar. The execution, delivery and performance of this
Agreement and the other Loan Documents and the borrowings hereunder will not
violate (i) any organizational or governing documents of any Loan Party, (ii)
any material Requirement of Law or (iii) any material Contractual Obligation of
any Group Member and will not result in, or require, the creation or imposition
of any Lien on any of their respective properties or revenues pursuant to any
material Requirement of Law or any such material Contractual Obligation (other
than the Liens created by the Collateral Documents).
3.6 Litigation. Except as may exist with respect to matters specifically
disclosed in Schedule 3.6, no litigation, dispute or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the Loan
Parties, threatened or contemplated by or against any Group Member or against
any of their respective properties (a) with respect to any of the Loan Documents
or any of the transactions contemplated hereby or thereby, or (b) as to which
there exists a reasonable likelihood of an adverse determination, which
determination would reasonably be expected to have a Material Adverse Effect.
3.7 No Default. No Group Member is in default under or with respect to any
of its Contractual Obligations in any respect that, individually or together
with all other such defaults, could reasonably be expected to have a Material
Adverse Effect, or that would, if such default had occurred after the Closing
Date, create an Event of Default under Section 8(g) or (h). No Event of Default
or Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each Group Member has title in fee
simple to, or a valid leasehold interest in, all its real property, and good
title to, or a valid leasehold interest in, all its other property necessary or
used in the ordinary conduct of its respective businesses, except for such
defects in title as could not, individually or in the aggregate, have a Material
Adverse Effect. As of the Closing Date, none of such property is subject to any
Lien except as permitted by Section 5.11.
3.9 Intellectual Property. Each Group Member owns, or is licensed to use,
all Intellectual Property reasonably necessary for the conduct of its business
as currently conducted except for those the failure to own or license which
individually or in the aggregate, could not reasonably be expect to result in a
Material Adverse Effect. To the best knowledge of DASI and or the Borrower, no
material claim has been asserted and is pending by any Person challenging or
questioning the use of any Intellectual Property or the validity or
effectiveness of any Intellectual Property, except which infringement could,
individually or in the aggregate with all other such conflicts, not reasonably
be excepted to have a Material Adverse Effect. The use of Intellectual Property
by each Group Member does not infringe on the rights of any Person in any
material respect, except which infringement could, individually or in the
aggregate with all other such conflicts, not reasonably be excepted to have a
Material Adverse Effect.
3.10 Taxes. Except as set forth on Schedule 3.10, each Group Member has
filed or caused to be filed all Federal, state and other material tax returns
that are required to be filed and has paid all material 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 material taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than any amount which
is being contested in good faith by appropriate proceedings and with respect to
which reserves in conformity with GAAP have been provided on the books of the
relevant Group Member). There is no proposed tax assessment against any Group
Member that would, if made, have a Material Adverse Effect.
3.11 ERISA. No Reportable Event has occurred or is reasonably expected to
occur that, when taken together with all other such Reportable Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of
38
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market
value of the assets of such Plan by a material amount. Each Plan has complied in
all material respects with the applicable provisions of ERISA and the Code. No
termination of a Plan has occurred, and no Lien in favor of the PBGC or a Plan
has arisen, during such five-year period. Neither the Borrower nor any Commonly
Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan that has resulted or could reasonably be expected to result
in a material liability to the Borrower or any other Loan Party under ERISA, and
neither the Borrower nor any Commonly Controlled Entity would become subject to
any material liability under ERISA if the Borrower 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. No such Multiemployer Plan is in Reorganization or
Insolvent.
3.12 Investment Company Act; Other Regulations. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness.
3.13 Subsidiaries. As of the Closing Date, (a) Schedule 3.13 sets forth
the name and jurisdiction of incorporation of each Subsidiary and, as to each
such Subsidiary, the percentage of each class of Capital Stock owned by any Loan
Party and (b) there are no outstanding subscriptions, options, warrants, calls,
rights or other agreements or commitments (other than stock options granted to
employees or directors and directors' qualifying shares) of any nature relating
to any Capital Stock of the Borrower or any Subsidiary, except as created by the
Loan Documents.
3.14 Use of Proceeds. The proceeds of the Loans shall be used to refinance
existing indebtedness and pay related fees and expenses and to provide working
capital for DASI and its Subsidiaries and for general corporate purposes not in
contravention of any Requirement of Law or of any Loan Documents.
3.15 Environmental Matters. Except as disclosed in Schedule 3.15, each
Loan Party and all of its respective properties and facilities have complied
with all applicable Environmental Laws except in any such case where the failure
to so comply would not, individually or in the aggregate, reasonably be expected
to have Material Adverse Effect.
3.16 Accuracy of Information, etc. To the best knowledge of each Loan
Party, all factual information heretofore or contemporaneously furnished by or
on behalf of a Loan Party in writing to the Administrative Agent or any Lender
for purposes of or in connection with this Agreement or any transaction
contemplated hereby (including the Schedules hereto) is, and all other such
factual information hereafter furnished in connection with this Agreement or any
other Loan Document by or on behalf of any Loan Party to the Agent or any Lender
will be, true and accurate in all material respects on the date as of which such
information is dated or certified and as of the date of execution and delivery
of this Agreement by the Administrative Agent and each Lender, and such
information, to the best knowledge of each Loan Party, is not, or shall not be,
as the case may be, incomplete by omitting to state any material fact necessary
to make such information not misleading. All projections prepared by or on
behalf of any Loan Party contained in any documents or materials furnished to
the Administrative Agent or any Lender have been prepared in good faith and
represent such Loan Party's best estimates as of the date of preparation of
reasonably expected future performance, but actual results may differ and such
differences may be material.
3.17 No Burdensome Restrictions. No Group Member is subject to any
restrictions in any Requirement of Law which could reasonably be expected to
have a Material Adverse Effect.
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3.18 Insurance. The properties of each Group Member are insured or
reinsured with financially sound and reputable insurance companies, which are
not Affiliates of DASI, in such amounts, with such deductibles and covering such
risks as are customarily carried by companies engaged in similar businesses and
owning similar properties in localities where such Group Member operates.
3.19 Senior Debt. The Obligations of each Loan Party constitute Senior
Debt of such Loan Party under the 1999 Subordinated Indenture to the extent such
Loan Party is the issuer or a guarantor under the 1999 Subordinated Indenture.
3.20 Solvency. (a) Immediately after the consummation of the transactions
to occur on the date hereof and immediately following the making of the Loans,
and after giving effect to the application of the proceeds of the Loans, (i) the
fair value of the assets of the Loan Parties and their Subsidiaries taken as a
whole (on a going concern basis), at a fair valuation, will exceed the debts and
liabilities, subordinated, contingent or otherwise, of the Loan Parties and
their Subsidiaries taken as a whole; (ii) the present fair saleable value (on a
going concern basis) of the property of the Loan Parties and their Subsidiaries
taken as a whole will be greater than the amount that will be required to pay
the probable liability of the Loan Parties and their Subsidiaries taken as a
whole on their debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured;
(iii) each Loan Party will be able to pay its debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (iv) each Loan Party will not have unreasonably small
capital with which to conduct the businesses in which it is engaged as such
businesses are now conducted and are proposed to be conducted after the date
hereof.
(b) No Loan Party intends to, or will permit any of its
Subsidiaries to, and believes that it or any of its Subsidiaries will, incur
debts beyond its ability to pay such debts as they mature, taking into account
the timing of and amounts of cash to be received by it or any such Subsidiary
and the timing of the amounts of cash to be payable on or in respect of its
Indebtedness or the Indebtedness of any such Subsidiary.
3.21 Security Interest in Collateral. The provisions of this Agreement and
the other Loan Documents create legal and valid Liens on all the Collateral in
favor of the Collateral Agent, for the benefit of the Agents and the Lenders,
and such Liens constitute perfected and continuing Liens on the Collateral,
securing the Obligations, enforceable (except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is brought by proceedings in equity or
at law)) against the applicable Loan Party and all third parties, and having
priority over all other Liens on the Collateral except in the case of (a)
Permitted Liens, (b) Liens perfected by possession, control or filing (including
possession of any certificate of title) to the extent the Collateral Agent has
not obtained or does not maintain possession of such Collateral (including
constructive possession), other than as a result of any breach by a Loan Party
of any of its covenants or representations under the Loan Documents, (c) Liens
perfected only by filing to the extent the Collateral Agent has not made such
filing and (d) First Priority Liens. Unless an Event of Default has occurred and
is continuing, the Collateral Agent shall not require the filing of intellectual
property Lien filings in jurisdictions outside of the United States.
3.22 Commercial Loans. Neither the Loans or Notes nor any participation
therein constitutes a "security" for the purposes of the U.S. federal securities
laws and state securities or "blue sky" laws and no consent, approval,
authorization or order of, or filing, qualification or registration with, any
court or governmental agency or body is required under the U.S. federal
securities laws and state securities or "blue sky" laws in connection with the
making of the Loans, the issuance of the Notes or any
40
transfer of an interest therein by way of participation, assignment or
otherwise. The Loans, the Notes and other obligations hereunder are commercial
loans and not securities.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Closing Date. This Agreement shall become effective on
the initial date on which the following conditions precedent are satisfied:
(a) Credit Agreement and Loan Documents. The Administrative Agent
(or its counsel) shall have received from each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii) written
evidence reasonably satisfactory to the Administrative Agent (which may include
facsimile or electronic transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) First Lien Credit Agreement. All conditions precedent to the
closing of the First Lien Credit Agreement shall have been satisfied or waived
prior to or simultaneously with the closing hereunder and the terms and
conditions of the First Lien Credit Agreement shall be reasonably satisfactory
to the Administrative Agent.
(c) Financial Information. The Lenders shall have received copies
of the financial statements described in Section 3.1, and such financial
statements shall not, in the reasonable judgment of the Lenders, reflect any
material adverse change in the consolidated financial condition of DASI and its
Subsidiaries, as reflected in the financial statements or projections contained
in the Confidential Information Memorandum.
(d) Approvals. All governmental and third party approvals
necessary in connection with the transactions contemplated hereby shall have
been obtained and be in full force and effect on reasonably satisfactory terms..
(e) Collateral Documents. The Administrative Agent and the
Collateral Agent shall have received executed copies of each Collateral Document
and any additional evidence, in form and substance reasonably satisfactory to
the Administrative Agent (including through the delivery of legal opinions
described below) to provide the Agents and Lenders with a perfected second
priority security interest in the Collateral. All action (including the making
of required filings) shall have been taken to create and perfect the Liens
purported to be created under the Collateral Documents.
(f) Fees. The Lenders, the Administrative Agent and the Collateral
Agent shall have received all fees invoiced and required to be paid, and all
reasonable out-of-pocket expenses required to be paid for which invoices have
been presented without limitation of the foregoing (including the reasonable
fees and expenses of legal counsel), on or before the Closing Date. All such
payments will be paid with cash on hand or proceed of Loans on the Closing Date
and will be reflected in the funding instructions given by the Borrower to the
Administrative Agent on or before the Closing Date.
(g) Closing Certificate; Certified Certificate of Incorporation;
Good Standing Certificates. The Administrative Agent shall have received (i) a
certificate of each Loan Party, dated the Closing Date, substantially in the
form of Exhibit A, with appropriate insertions and attachments, including the
certificate of incorporation of each Loan Party that is a corporation certified
by the relevant authority of the jurisdiction of organization of such Loan Party
and (ii) a long form good standing certificate for each Loan Party from its
jurisdiction of organization.
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(h) Closing Compliance Certificate. The Administrative agent shall
have received a certificate of the Borrower demonstrating that (i) this
Agreement, the other Loan Documents and the Obligations are permitted under the
Indenture dated as of April 18, 2002 (the "2002 Senior Indenture"), under which
the Senior Unsecured Notes are issued and the Indenture dated as of April 22,
1999 (the "1999 Subordinated Indenture") under which the Borrower's 9% Senior
Subordinated Notes due 2009 are issued and (ii) the Obligations constitute
"Senior Debt" under the 1999 Subordinated Indenture.
(i) Legal Opinions. The Agents shall have received the following
executed legal opinions:
(i) the legal opinion of Xxxxxxxx & Xxxxx LLP, counsel to DASI,
the Borrower and their Subsidiaries, substantially in the form of Exhibit
C; and
(ii) if reasonably requested by the Administrative Agent, the legal
opinion of local counsel (to the Borrower or the Administrative Agent, as
custom dictates) as may be required by the Administrative Agent.
(j) Representations and Warranties. Each of the representations
and warranties made by any Loan Party in or pursuant to the Loan Documents shall
be true and correct in all material respects.
(k) No Default. No Event of Default or Default shall have occurred
and be continuing on the Closing Date or after giving effect to the extensions
of credit requested to be made on the Closing Date.
(l) Lien Searches. The Administrative Agent shall have received
the results of a recent lien search in each of the jurisdictions where assets of
the Borrower and each other Loan Party are located, and such search shall reveal
no liens on any of the assets of the Borrower and each other Loan Party except
for liens permitted by Section 5.11 or discharged on or prior to the Closing
Date pursuant to a pay-off letter or other documentation reasonably satisfactory
to the Administrative Agent.
(m) Insurance. The Agents shall have received evidence of
insurance coverage in compliance with the terms of Section 5.09 and Section 4.12
of the Security Agreement.
(n) Control Agreements. The Agents (or the First Lien Agent on
behalf of the Agents and the Lenders) shall have received Deposit Account
Control Agreements (which shall, among other things, provide for a springing
blocked account to the extent provided in the First Lien Collateral Documents);
provided that no such Deposit Account Control Agreements shall be required for
trust and payroll accounts and xxxxx cash accounts containing xxxxx cash in an
aggregate amount for all such xxxxx cash accounts not to exceed $125,000 at any
time outstanding.
(o) Solvency. The Administrative Agent shall have received a
solvency certificate from the chief financial officer of the Borrower.
(p) Pledged Stock; Stock Powers; Pledged Notes. The Collateral
Agent (or the First Lien Agent on behalf of the Agents and the Lenders) shall
have received (i) the certificates representing the shares of Capital Stock
pledged pursuant to the Security Agreement, together with an undated stock power
for each such certificate executed in blank by a duly authorized officer of the
pledgor thereof and (ii) each promissory note (if any) pledged to the Collateral
Agent pursuant to the Security Agreement endorsed (without recourse) in blank
(or accompanied by an executed transfer form in blank) by the pledgor thereof.
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(q) Filings, Registrations and Recordings. Each document
(including any Uniform Commercial Code financing statement) required by the
Collateral Documents to be filed, registered or recorded in order to create or
continue, as applicable, in favor of the Collateral Agent, for the benefit of
the Agents and the Lenders, a perfected Lien on the Collateral described
therein, prior and superior in right to any other Person (other than with
respect to Liens expressly permitted by Section 5.11), shall be in proper form
for filing, registration or recordation.
(r) Mortgages, etc. The Agents shall have received, with respect
to each parcel of real property which is required to be subject to a Lien in
favor of the Collateral Agent, each of the following, in form and substance
reasonably satisfactory to the Administrative Agent:
(i) a Mortgage (including, without limitation, reaffirmations and
amendments thereto) on such property;
(ii) ALTA or other mortgagee's title policy or endorsement thereto
insuring such mortgage is a valid and enforceable continuing second
priority Lien in favor of the Collateral Agent for the benefit of itself
and the Lenders;
(iii) an ALTA survey prepared and certified to the Administrative
Agent by a surveyor reasonably acceptable to the Administrative Agent (or
survey certificate sufficient to obtain a survey endorsement on the title
policies); and
(iv) an opinion of counsel in the state or province in which such
parcel of real property is located in form and substance and from counsel
reasonably satisfactory to the Administrative Agent.
(s) Environmental Reports. The Administrative Agent shall have
received the environmental reports with respect to the real properties of the
Borrower and its Subsidiaries delivered pursuant to Section 4.01(s) of the First
Lien Credit Agreement.
(t) Financial Statements and Projections. The Lenders shall have
received (i) DASI's annual reports on Form 10-K for fiscal years ending December
31, 2003 and December 31, 2004 and (ii) projections of the Borrower's most
recent income statement, balance sheet and cash flows for the five fiscal years
ending December 31, 2009 (including quarterly projections for the fiscal year
ending December 31, 2005); provided that the parties agree that the Projections
for fiscal years ending December 31, 2008 and December 31, 2009 may be delivered
in a summary basis.
(u) Intercreditor Agreement. All conditions precedent to the
closing of the Intercreditor Agreement shall have been satisfied or waived prior
to or simultaneously with the closing hereunder, and the terms and conditions of
the Intercreditor Agreement shall be reasonably satisfactory to the
Administrative Agent and the Borrower.
(v) Other Documents. The Agents shall have received such other
documents as the Agents, the Issuing Bank, any Lender or their respective
counsel may have reasonably requested.
SECTION 5. COVENANTS
DASI (where applicable) and the Borrower hereby agree that, so long
as the Loans remain in effect or any other amount is owing to any Lender or any
Agent hereunder, each of DASI and the Borrower shall and shall cause each of its
Subsidiaries to:
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5.1 Reports.
Whether or not required by the SEC and whether or not the Loan
Parties are subject to SEC filing requirements, so long as any Loans are
outstanding, the Borrower shall furnish to the Lenders, within five days of
filing such reports with the SEC (but no later than the dates such reports are
required to be filed with the SEC):
(a) all quarterly and annual financial information that would be
required to be contained in a filing with the SEC on Forms 10-Q and 10-K
if the Borrower was required to file such Forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
and, with respect to the annual information only, report on the annual
financial statements by the Borrower's certified independent accountants;
and
(b) all current reports that would be required to be filed with
the SEC on Form 8-K if the Borrower were required to file such reports.
If the Borrower has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by the preceding paragraph shall include a reasonably detailed
presentation, either on the face of the financial statements or in the footnotes
thereto and in Management's Discussion and Analysis of Financial Condition and
Results of Operations, of the financial condition and results of operations of
the Borrower and its Restricted Subsidiaries separate from the financial
condition and results of operations of the Unrestricted Subsidiaries of the
Borrower.
Reports and other filings made by DASI that include all of the
information referred to in clauses (a) and (b) above with respect to DASI and
its consolidated subsidiaries shall be deemed to satisfy the obligations of the
Borrower set forth above as long as such reports and filings include the
information required by Rule 3-10 of S-X provided that DASI does not have
business operations other than those conducted through the Borrower.
5.2 Compliance Certificate.
(a) The Borrower shall deliver to the Administrative Agent, within
90 days after the end of each fiscal year, an Officers' Certificate stating that
a review of the activities of the Borrower and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
officers with a view to determining whether the Borrower and the Guarantors have
kept, observed, performed and fulfilled their obligations under this Agreement
and the other Loan Documents, and further stating, as to each such officer
signing such certificate, that to the best of his or her knowledge the Borrower
and the Guarantors have kept, observed, performed and fulfilled each and every
covenant contained in this Agreement and the other Loan Documents and are not in
default in the performance or observance of any of the terms, provisions and
conditions of this Agreement and the other Loan Documents (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Borrower is
taking or proposes to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Loans is
prohibited or if such event has occurred, a description of the event and what
action the Borrower is taking or proposes to take with respect thereto. For
purposes of this paragraph, such compliance shall be determined without regard
to any period of grace or requirement of notice under this Agreement.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section
44
5.1(a) above shall be accompanied by a written statement of the Borrower's
independent public accountants (who shall be a firm of established national
reputation) that in making the examination necessary for certification of such
financial statements, nothing has come to their attention that would lead them
to believe that the Borrower has violated any provisions of Section 5 hereof or,
if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be liable
directly or indirectly to any Person for any failure to obtain knowledge of any
such violation.
(c) The Borrower shall, so long as any of the Loans are outstanding,
deliver to the Administrative Agent and the Collateral Agent, forthwith upon any
Officer becoming aware of any Default or Event of Default, an Officers'
Certificate specifying such Default or Event of Default and what action the
Borrower is taking or proposes to take with respect thereto.
5.3 Certificates; Other Information. The Borrower shall furnish to the
Administrative Agent and each Lender (or, in the case of clause (c), to the
relevant Lender):
(a) promptly when available and in any event within ninety (90)
Business Days after the last day of each fiscal year of DASI, a budget for the
next succeeding fiscal year, which budget shall be prepared on a fiscal quarter
by fiscal quarter basis for the next succeeding fiscal year in a manner and form
permitting easy comparison to financial statements delivered pursuant to Section
5.1(a), and shall contain a projected, consolidated balance sheet and statement
of consolidated cash flow and consolidated and consolidating (by division)
statements of earnings of DASI and its consolidated Subsidiaries for such
succeeding fiscal year, prepared in reasonable detail by an Officer of DASI;
(b) promptly, copies of all financial statements and reports that
DASI sends to its shareholders and copies of all financial statements and
reports that DASI or the Borrower may make to, or file with, the SEC;
(c) promptly, such additional financial and other information
regarding the business, financial or corporate affairs of DASI or any Subsidiary
as any Lender may from time to time reasonably request;
(d) any Lien (other than Permitted Liens) placed on or asserted
against any of the Collateral;
(e) the opening of any new deposit account (other than a payroll or
trust account or xxxxx cash accounts to the extent the aggregate of deposits in
all xxxxx cash accounts do not exceed $125,000) by any Loan Party with any bank
or other financial institution;
(f) any loss, damage, or destruction to the Collateral in the amount
of $20,000,000 or more, whether or not covered by insurance; and
(g) as and when known by a Financial Officer or other senior officer
of a Loan Party, any and all default notices received under or with respect to
any leased location or public warehouse where material Collateral is located
(which shall be delivered within two (2) Business Days after knowledge thereof);
(h) as and when provided to the First Lien Agent, copies of the
information delivered under Section 5.01(g) of the First Lien Credit Agreement;
and
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(i) within 45 days of the end of any fiscal quarter, the Senior
Leverage Ratio and supporting calculations as at the end of such fiscal quarter,
certified by a Financial Officer.
5.4 Taxes.
The Borrower shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse in any material
respect to the Lenders.
5.5 Stay, Extension And Usury Laws.
The Borrower and each of the Guarantors covenants (to the extent
that it may lawfully do so) that it shall not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Agreement; and the
Borrower and each of the Guarantors (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it shall not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Administrative Agent, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
5.6 Restricted Payments.
(a) The Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any other payment or
distribution on account of the Borrower's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any payment
in connection with any merger or consolidation involving the Borrower or
any of its Restricted Subsidiaries) or to the direct or indirect holders
of the Borrower's or any of its Restricted Subsidiaries' Equity Interests
in their capacity as such (other than dividends or distributions payable
in Equity Interests (other than Disqualified Stock) of the Borrower or to
the Borrower or a Restricted Subsidiary of the Borrower);
(ii) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving the Borrower) any Equity Interests of the Borrower
or any direct or indirect parent of the Borrower;
(iii) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is
subordinated to the Loans or the Guaranties, except a payment of interest
or principal at the Stated Maturity thereof; or
(iv) make any Restricted Investment (all such payments and other
actions set forth in clauses (i) through (iii) above being collectively
referred to as "Restricted Payments"), unless, at the time of and after
giving effect to such Restricted Payment:
(A) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(B) the Borrower would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted
Payment had been made at
46
the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the
first paragraph of Section 5.8 hereof; and
(C) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Borrower and its
Restricted Subsidiaries after the 9% Notes Original Issue Date
(excluding Restricted Payments permitted by clauses (b)(ii),
(b)(iii) and (b)(iv) below), is less than the sum, without
duplication, of:
(1) 50% of the Consolidated Net Income of the Borrower
for the period (taken as one accounting period) from March 31, 1999
to the end of the Borrower's most recently ended fiscal quarter for
which internal financial statements are available at the time of
such Restricted Payment (or, if such Consolidated Net Income for
such period is a deficit, less 100% of such deficit), plus
(2) 100% of the aggregate net proceeds or fair market
value of Productive Assets received by the Borrower since the 9%
Notes Original Issue Date as a contribution to its common equity
capital or from the issue or sale of Equity Interests of the
Borrower (other than Disqualified Stock) or from the issue or sale
of convertible or exchangeable Disqualified Stock or convertible or
exchangeable debt securities of the Borrower that have been
converted into or exchanged for such Equity Interests (other than
Equity Interests (or Disqualified Stock or debt securities) sold to
a Subsidiary of the Borrower), plus
(3) to the extent that any Restricted Investment that
was made after April 18, 2002 is sold for cash or otherwise
liquidated or repaid for cash, the lesser of (i) the cash return of
capital with respect to such Restricted Investment (less the cost of
disposition, if any) and (ii) the initial amount of such Restricted
Investment, plus
(4) without duplication of any amounts included in
clause (2) above, 100% of the aggregate Net Proceeds or the fair
market value of Productive Assets received by the Borrower as common
equity contributions by a holder of the Equity Interests of the
Borrower (excluding any net proceeds from an equity contribution
which has been financed, directly or indirectly using funds (x)
borrowed from the Borrower or any of its Subsidiaries, unless and
until and to the extent such borrowing is repaid or (y) contributed,
extended, guaranteed or advanced by the Borrower or by any of its
Subsidiaries); plus
(5) any dividends paid in cash or Productive Assets
received by the Borrower or a Restricted Subsidiary of the Borrower
after the 9% Notes Original Issue Date from any Unrestricted
Subsidiary to the extent that such dividends were not otherwise
included in Consolidated Net Income; plus
(6) to the extent that any Unrestricted Subsidiary is
redesignated as a Restricted Subsidiary after April 18, 2002, the
fair market value of the Borrower's Investment in such Subsidiary
(which consists of cash or Productive Assets) as of the date of such
redesignation.
(b) So long as no Default has occurred and is continuing or would be
caused thereby, the preceding provisions shall not prohibit:
47
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would
have complied with the provisions of this Agreement;
(ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness of DASI, the Borrower or any
Guarantor or of any Equity Interests of DASI, the Borrower or any
Restricted Subsidiary in exchange for, or out of the net proceeds of the
substantially concurrent sale (other than to a Subsidiary of the Borrower)
of, Equity Interests of the Borrower (other than Disqualified Stock) or
capital contribution from DASI; provided that the amount of any such net
proceeds that are utilized for any such redemption, repurchase,
retirement, defeasance or other acquisition shall be excluded from clause
(a)(iv)(C)(2) above;
(iii) the defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness of the Borrower or any Guarantor with the net
proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the payment of any dividend by a Restricted Subsidiary of the
Borrower to the holders of its Equity Interests on a pro rata basis;
(v) the repurchase, redemption or other acquisition or retirement
for value of any Equity Interests of DASI, the Borrower or any Restricted
Subsidiary of the Borrower held by any employee, officer or director (in
each case either current or former) of the Borrower (or any of its
Restricted Subsidiaries) pursuant to any management equity subscription
agreement or stock plan; provided that the aggregate price paid for all
such repurchased, redeemed, acquired or retired Equity Interests shall not
exceed $5,000,000 in any twelve-month period;
(vi) cash dividends or loans from the Borrower to DASI for the
purpose of permitting DASI to pay its ordinary operating expenses
(including, without limitation, directors' fees, indemnification
obligations, professional fees, and expenses, etc.) in an aggregate amount
not to exceed $5,000,000 in any twelve-month period;
(vii) payments to DASI not to exceed $100,000 in any fiscal year,
solely to enable DASI to make payments to holders of its Capital Stock in
lieu of issuance of fractional shares of its Capital Stock;
(viii) repurchases of Capital Stock deemed to occur upon the
exercise of stock options if such Capital Stock represents a portion of
the exercise price thereof;
(ix) the declaration and payment of dividends to holders of any
class or series of Designated Preferred Stock (other than Disqualified
Stock) issued after the 9% Notes Original Issue Date; provided that, at
the time of such issuance, the Borrower, after giving effect to such
issuance on a pro forma basis, would have had a Fixed Charge Coverage
Ratio of at least 2.0 to 1.0;
(x) other Restricted Payments in an aggregate amount not to exceed
$10,000,000 since the 9% Notes Original Issue Date;
(xi) the distribution, as a dividend or otherwise, of shares of
Capital Stock of any Unrestricted Subsidiary of the Borrower;
48
(xii) cash dividends or loans from the Borrower to DASI in amounts
equal to amounts required for DASI to pay franchise taxes and Federal,
state and local taxes to the extent such income taxes are attributable to
the income of the Borrower and its Restricted Subsidiaries;
(xiii) dividends from the Borrower to DASI in an amount sufficient
to pay dividends on DASI's 7-1/2% Convertible Trust Preferred Securities
due 2028, that are outstanding on the Closing Date;
(xiv) the defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness from Net Proceeds to the extent not prohibited
under Section 5.9 of this Agreement; and
(xv) the defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness of the Borrower following a Change of Control
after the Borrower shall have complied with the provisions of Section
5.14, including payment of the applicable Change of Control Payment.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Borrower or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any assets or securities that are required to be valued
by this Section 5.6 shall be determined by the Board of Directors whose
resolution with respect thereto shall be delivered to the Administrative Agent.
The Board of Directors' determination must be based upon an opinion or appraisal
issued by an accounting, appraisal or investment banking firm of national
standing if the fair market value exceeds $10,000,000. Not later than the date
of making any Restricted Payment, the Borrower shall deliver to the
Administrative Agent an Officers' Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which the calculations
required by this Section 5.6 were computed, together with a copy of any fairness
opinion or appraisal required by this Agreement.
5.7 Dividend And Other Payment Restrictions Affecting Restricted
Subsidiaries.
The Borrower shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(i) pay dividends or make any other distributions on its Capital
Stock to the Borrower or any of the Borrower's Restricted Subsidiaries, or with
respect to any other interest or participation in, or measured by, its profits,
or pay any indebtedness owed to the Borrower or any of the Borrower's Restricted
Subsidiaries;
(ii) make loans or advances to the Borrower or any of the Borrower's
Restricted Subsidiaries; or
(iii) transfer any of its properties or assets to the Borrower or
any of the Borrower's Restricted Subsidiaries.
However, the preceding restrictions will not apply to encumbrances
or restrictions existing under or by reason of:
(i) Existing Indebtedness as in effect on the date of this
Agreement;
49
(ii) this Agreement, the Loans, the Guaranties and the First Lien
Credit Agreement;
(iii) indebtedness incurred by a Foreign Restricted Subsidiary that
is not a Guarantor in compliance with Section 5.12;
(iv) applicable law, regulation or order;
(v) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Borrower or any of its Restricted Subsidiaries as
in effect at the time of such acquisition (except to the extent such
Indebtedness was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired, provided that, in
the case of Indebtedness, such Indebtedness was permitted by the terms of
this Agreement to be incurred;
(vi) customary non-assignment provisions in leases entered into in
the ordinary course of business and consistent with past practices;
(vii) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions on the property so
acquired of the nature described in clause (iii) of the preceding
paragraph;
(viii) any agreement for the sale or other disposition of a
Restricted Subsidiary that restricts distributions by that Restricted
Subsidiary pending its sale or other disposition;
(ix) Liens securing Indebtedness that limit the right of the debtor
to dispose of the assets subject to such Lien;
(x) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements, asset sale agreements,
stock sale agreements and other similar agreements entered into in the
ordinary course of business;
(xi) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
(xii) customary provisions in agreements with respect to Permitted
Joint Ventures;
(xiii) Indebtedness incurred after the date of this Agreement in
accordance with the terms of this Agreement; provided; that the
restrictions contained in the agreements governing such new Indebtedness
are, in the good faith judgment of the Board of Directors of the Borrower,
not materially less favorable, taken as a whole, to the holders of the
Loans than those contained in the agreements governing Indebtedness
outstanding on the date of this Agreement;
(xiv) any encumbrance or restriction of a Securitization Entity
effected in connection with a Qualified Securitization Transaction; and
(xv) any encumbrances or restrictions imposed by any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments or obligations
referred to in clauses (i) through (xiv) above; provided that such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are, in the good faith judgment
of the Board of Directors of the
50
Borrower, no more restrictive with respect to such dividend and other
payment restrictions prior to such amendment, modification, restatement,
renewal, increase, supplement, refunding, replacement or refinancing.
5.8 Incurrence Of Indebtedness and Issuance of Preferred Stock.
The Borrower shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt), and the Borrower shall not issue any Disqualified Stock and shall not
permit any of its Restricted Subsidiaries to issue any shares of preferred
stock; provided, however, that the Borrower may incur Indebtedness (including
Acquired Debt) or issue Disqualified Stock, and the Guarantors may incur
Indebtedness (including Acquired Debt) or issue preferred stock, if in each case
the Fixed Charge Coverage Ratio for the Borrower's most recently ended four full
fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is incurred
or such Disqualified Stock or preferred stock is issued would have been at least
2.0 to 1.0, determined on a pro forma basis (including a pro forma application
of the net proceeds therefrom), as if the additional Indebtedness had been
incurred, or the preferred stock or Disqualified Stock had been issued, as the
case may be, at the beginning of such four-quarter period.
The first paragraph of this Section 5.8 shall not prohibit the
incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(i) the incurrence by the Borrower and any Restricted Subsidiary of
Indebtedness and letters of credit under Credit Facilities in an aggregate
principal amount at any one time outstanding under this clause (i) (with
letters of credit being deemed to have a principal amount equal to the
maximum potential liability of the Borrower and its Restricted
Subsidiaries thereunder) not to exceed $400,000,000 less the aggregate
amount of all Net Proceeds of Asset Sales applied by the company or any of
its Restricted Subsidiaries to repay any Indebtedness under the Credit
Facilities and to effect a corresponding commitment reduction thereunder
pursuant to Section 5.9 of this Agreement;
(ii) the incurrence by the Borrower and its Restricted Subsidiaries
of the Existing Indebtedness;
(iii) Indebtedness under this Agreement and the other Loan
Documents;
(iv) the incurrence by the Borrower or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease obligations,
mortgage financings or purchase money obligations, in each case, incurred
for the purpose of financing all or any part of the purchase price or cost
of construction or improvement of property, plant or equipment used in the
business of the Borrower or such Restricted Subsidiary, in an aggregate
principal amount, including all Permitted Refinancing Indebtedness
incurred to refund, refinance or replace any Indebtedness incurred
pursuant to this clause (iv), not to exceed 5% of Total Assets at any time
outstanding;
(v) the incurrence by the Borrower or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to refund, refinance or replace,
Indebtedness (other than intercompany Indebtedness) that was permitted by
this Agreement to be incurred under the first paragraph of this Section
5.8 or clauses (ii), (iii), (iv), (v) or (x) of this paragraph;
51
(vi) the incurrence by the Borrower or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Borrower
and any of its Restricted Subsidiaries; provided, however, that:
(A) if the Borrower or any Guarantor is the obligor on such
Indebtedness, such Indebtedness must be expressly subordinated to
the prior payment in full in cash of all Obligations with respect to
the Loans, in the case of the Borrower, or the Guaranty of such
Guarantor, in the case of a Guarantor; and
(B) (1) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a
Person other than the Borrower or a Restricted Subsidiary thereof
and (2) any sale or other transfer of any such Indebtedness to a
Person that is not either the Borrower or a Restricted Subsidiary
thereof shall be deemed, in each case, to constitute an incurrence
of such Indebtedness by the Borrower or such Restricted Subsidiary,
as the case may be, that was not permitted by this clause (vi);
(vii) the incurrence by the Borrower or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose of
fixing, hedging or managing interest rates with respect to Indebtedness
that is permitted by the terms of this Agreement to be outstanding or to
hedge exposure to foreign currency fluctuations or commodity price risk
with respect to any commodity purchases;
(viii) (A) the guarantee by the Borrower or any of the Guarantors of
Indebtedness of the Borrower or a Guarantor that was permitted to be
incurred by another provision of this Section 5.8; and
(B) the guarantee by any Restricted Subsidiary of the Borrower
that is not a Guarantor of Indebtedness of another Restricted
Subsidiary of the Borrower that is not a Guarantor that was
permitted to be incurred by another provision of this Section 5.8;
(ix) the accrual of interest, accretion or amortization of original
issue discount, the payment of interest on any Indebtedness in the form of
additional Indebtedness with the same terms, and the payment of dividends
on Disqualified Stock in the form of additional shares of the same class
of Disqualified Stock; provided, in each such case, that the amount
thereof is included in Fixed Charges of the Borrower as accrued;
(x) the incurrence by the Borrower or any of its Restricted
Subsidiaries of additional Indebtedness or Disqualified Stock in an
aggregate principal amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness incurred to
refund, refinance or replace any Indebtedness incurred pursuant to this
clause (x), not to exceed $50,000,000;
(xi) the incurrence by the Borrower's Unrestricted Subsidiaries of
Non-Recourse Debt, provided, however, that if any such Indebtedness ceases
to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be
deemed to constitute an incurrence of Indebtedness by a Restricted
Subsidiary of the Borrower that was not permitted by this clause (xi);
(xii) the incurrence of Indebtedness (including letters of credit)
in respect of workers' compensation claims, self-insurance obligations,
performance, surety, bid or similar bonds and completion guaranties
provided by the Borrower or one of its Restricted Subsidiaries in the
ordinary course of business and consistent with past practices;
52
(xiii) Indebtedness arising from agreements of the Borrower or a
Restricted Subsidiary providing for indemnification, adjustment of
purchase price, earn out or other similar obligations, in each case,
incurred or assumed in connection with the disposition of any business,
assets or a Restricted Subsidiary, other than guarantees of Indebtedness
incurred by any Person acquiring all or any portion of such business,
assets or Restricted Subsidiary for the purpose of financing such
acquisition; provided that the maximum assumable liability in respect of
all such Indebtedness shall at no time exceed the gross proceeds actually
received by the Borrower and its Restricted Subsidiaries in connection
with such disposition;
(xiv) the incurrence by a Securitization Entity of Indebtedness in a
Qualified Securitization Transaction that is Non-Recourse Debt (except for
Standard Securitization Undertakings) with respect to the Borrower and its
other Restricted Subsidiaries;
(xv) Indebtedness of the Borrower evidenced by promissory notes
subordinated to the Loans issued to employees of the Borrower and its
Subsidiaries in lieu of cash payment at any time for Equity Interests of
DASI being repurchased from such employees; provided; that the aggregate
amount of such Indebtedness does not exceed $5,000,000 at any one time
outstanding;
(xvi) guaranties of Indebtedness of any other person incurred by the
Borrower or a Restricted subsidiary in the ordinary course of business in
an aggregate principal amount not to exceed $5,000,000 at any one time
outstanding;
(xvii) Indebtedness consisting of take-or-pay obligations contained
in supply agreements entered into by the Borrower or its Subsidiaries in
the ordinary course; and
(xviii) Indebtedness of Foreign Restricted Subsidiaries that are not
Guarantors permitted by Section 5.12 hereof.
The Borrower will not incur any Indebtedness (including Permitted
Debt) that is contractually subordinated in right of payment to any other
Indebtedness of the Borrower unless such Indebtedness is also contractually
subordinated in right of payment to the Loans on substantially identical terms,
provided that no Indebtedness of the Borrower will be deemed to be contractually
subordinated in right of payment to any other Indebtedness of the Borrower
solely by virtue of being unsecured or having a junior Lien.
For purposes of determining compliance with this Section 5.8, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xvii) above, or
is entitled to be incurred pursuant to the first paragraph of this Section 5.8,
the Borrower shall, in its sole discretion, classify such item of Indebtedness
in any manner that complies with this Section 5.8. All borrowings outstanding on
the date of this Agreement under the Credit Facilities will be deemed to have
been borrowed pursuant to clause (i) of the definition of Permitted Debt.
5.9 Asset Sales.
The Borrower shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(i) the Borrower (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of such Asset Sale at least equal to
the fair market value of the assets or Equity Interests issued or sold or
otherwise disposed of (as determined in good faith by the Borrower);
53
(ii) such fair market value is determined by the Borrower's Board of
Directors and evidenced by a resolution of the Board of Directors set
forth in an Officers' Certificate delivered to the Administrative Agent;
and
(iii) at least 75% of the consideration therefor received by the
Borrower or such Restricted Subsidiary is in the form of cash or Cash
Equivalents. For purposes of this provision, each of the following shall
be deemed to be cash:
(A) any liabilities (as shown on the Borrower's or such
Restricted Subsidiary's most recent balance sheet) of the Borrower or any
Restricted Subsidiary (other than contingent liabilities and liabilities
that are by their terms subordinated to the Loans or any related
Subsidiary Guaranty) that are expressly assumed by the transferee of any
such assets;
(B) any securities, notes or other obligations received by the
Borrower or any such Restricted Subsidiary from such transferee that are
converted by the Borrower or such Restricted Subsidiary into cash within
180 days after the consummation of such Asset Sale (to the extent of the
cash received in that conversion); and
(C) any Designated Noncash Consideration received by the
Borrower or any of its Restricted Subsidiaries in such Asset Sale;
provided that the aggregate fair market value (as determined above) of
such Designated Noncash Consideration, taken together with the fair market
value at the time of receipt of all other Designated Noncash Consideration
received pursuant to this clause (C) less the amount of Net Proceeds
previously realized in cash from prior Designated Noncash Consideration,
is less than 5.0% of Total Assets at the time of the receipt of such
Designated Noncash Consideration (with the fair market value of each item
of Designated Noncash Consideration being measured at the time received
and without giving effect to subsequent changes in value).
Within 365 days after the receipt of any Net Proceeds from an Asset
Sale, the Borrower may apply such Net Proceeds at its option:
(i) to repay the Borrower's secured Indebtedness (other than
subordinated Indebtedness) under the Credit Facilities and, if such
Indebtedness repaid is revolving credit Indebtedness, to correspondingly
reduce commitments with respect thereto;
(ii) to acquire all or substantially all of the assets of, or a
majority of the Voting Stock of, another Permitted Business;
(iii) to make a capital expenditure;
(iv) to acquire other long-term assets that are used or useful in a
Permitted Business;
(v) any combination of the foregoing; and/or
(vi) subject to the requirements of the First Lien Credit Agreement,
to prepay the Loans with the Net Proceeds of such Asset Sale.
Pending the final application of any such Net Proceeds, the Borrower
may invest such Net Proceeds in any manner that is not prohibited by this
Agreement.
54
Any Net Proceeds from Asset Sales that are not applied or invested
as provided in the preceding paragraph will constitute "Excess Proceeds." When
the aggregate amount of Excess Proceeds exceeds $20,000,000, the Borrower will,
subject to the requirements of the First Lien Credit Agreement, make an offer
(each, an "Asset Sale Offer") to all Lenders and all holders of other
Indebtedness that is pari passu with the Loans containing provisions similar to
those set forth in this Agreement with respect to offers to purchase or redeem
with the proceeds of sales of assets to prepay the maximum principal amount of
Loans and prepay, purchase or redeem such other pari passu Indebtedness that may
be purchased out of the Excess Proceeds pursuant to Section 2.7. The offer price
in any Asset Sale Offer will be equal to 100% of the principal amount plus
accrued and unpaid interest and liquidated damages, if any, to the date of
purchase, and will be payable in cash. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Borrower may use such Excess Proceeds
for any purpose not otherwise prohibited by this Agreement. If the aggregate
principal amount of Loans and such other pari passu Indebtedness tendered into
such Asset Sale Offer exceeds the amount of Excess Proceeds, the Administrative
Agent shall select the Loans and such other pari passu Indebtedness to be
purchased on a pro rata basis based on the principal amount of Loans and such
other pari passu Indebtedness tendered. Upon completion of each Asset Sale
Offer, the amount of Excess Proceeds shall be reset at zero.
To the extent that the provisions of any securities laws or
regulations conflict with the Asset Sales provisions of this Agreement with
respect to prepayment, purchase or redemption of other pari passu Indebtedness,
the Borrower will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under the Asset Sales
provisions of this Agreement by virtue of such conflicts.
In the event that, pursuant to this Section 5.9, the Borrower shall
be required to commence an Asset Sale Offer, it shall follow the procedures
specified below.
The Asset Sale Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Offer Period"). No later than
five Business Days after the termination of the Offer Period (the "Purchase
Date"), the Borrower shall prepay the principal amount of Loans required to be
prepaid pursuant to this Section 5.9 (the "Offer Amount") or, if less than the
Offer Amount has been tendered, all Loans tendered in response to the Asset Sale
Offer.
Upon the commencement of an Asset Sale Offer, the Borrower shall
send, by first class mail, a notice to the Administrative Agent and each of the
Lenders, with a copy to the Administrative Agent. The notice shall contain all
instructions and materials necessary to enable the Lenders to tender Loans
pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all
Lenders. The notice, which shall govern the terms of the Asset Sale Offer, shall
state:
(a) that the Asset Sale Offer is being made pursuant to this Section
5.9 and the length of time the Asset Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Loan not tendered or accepted for payment shall
continue to accrue interest;
(d) that unless the Borrower defaults in making such prepayment, any
Loan accepted for prepayment pursuant to the Asset Sale Offer shall cease to
accrue interest after the Purchase Date;
55
(e) that Lenders electing to have Loans prepaid pursuant to an Asset
Sale Offer may only elect to have all of such Loans prepaid and may not elect to
have only a portion of such Loans prepaid;
(f) that Lenders shall be entitled to withdraw their election if the
Borrower receives, not later than the expiration of the Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Lender, the principal amount of Loans tendered for prepayment and a statement
that such Lender is withdrawing its election to have such Loan prepaid;
(g) that, if the aggregate principal amount of Loans tendered by the
Lenders exceeds the Offer Amount, the Borrower shall prepay the Loans to be
prepaid on a pro rata basis; and
(h) that Lenders whose Loans were prepaid only in part shall, if
required, be issued new Notes equal in principal amount to the remaining
outstanding principal amount of their Loans.
On or before the Purchase Date, the Borrower shall to the extent
lawful, prepay, on a pro rata basis to the extent necessary, the Offer Amount of
Loans tendered pursuant to the Asset Sale Offer, or if less than the Offer
Amount has been tendered, all Loans tendered, and shall deliver to the
Administrative Agent an Officers' Certificate stating that such Loans were
accepted for prepayment by the Borrower in accordance with the terms of this
Section 5.9. The Borrower, if requested, shall promptly issue a new Note to each
Lender, in a principal amount equal to the remaining outstanding principal
amount of such Lender's Loans. The Borrower shall publicly announce the results
of the Asset Sale Offer on the Purchase Date.
5.10 Transactions With Affiliates.
The Borrower shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each, an "Affiliate Transaction"), unless:
(i) such Affiliate Transaction is on terms that are no less
favorable to the Borrower or the relevant Restricted Subsidiary than those that
would have been obtained in a comparable transaction by the Borrower or such
Restricted Subsidiary with an unrelated Person; and
(ii) the Borrower delivers to the Administrative Agent:
(A) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in excess
of $5,000,000, a resolution of the Board of Directors set forth in an
Officers' Certificate certifying that such Affiliate Transaction complies
with this covenant and that such Affiliate Transaction has been approved
by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in excess
of $15,000,000, an opinion as to the fairness to the Borrower or the
relevant Restricted Subsidiary of such Affiliate Transaction from a
financial point of view issued by an accounting, appraisal or investment
banking firm of national standing.
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The following items shall not be deemed to be Affiliate Transactions
and, therefore, will not be subject to the provisions of the prior paragraph:
(i) any employment agreement entered into by the Borrower or any of
its Restricted Subsidiaries in the ordinary course of business and consistent
with the past practice of the Borrower or such Restricted Subsidiary;
(ii) transactions between or among the Borrower and/or its
Restricted Subsidiaries;
(iii) payment of reasonable directors fees to Persons who are not
otherwise Affiliates of the Borrower;
(iv) sales of Equity Interests (other than Disqualified Stock) to
Affiliates of the Borrower;
(v) Restricted Payments that are permitted by the provisions of this
Agreement described in Section 5.6 hereof;
(vi) providing indemnity to officers, directors, or employees of the
Borrower or any of its Subsidiaries as determined in good faith by the Board of
Directors of the Borrower;
(vii) the payment of customary management, consulting and advisory
fees and related expenses to Hidden Creek or its affiliates consistent with past
practices, including, without limitation, in connection with acquisitions,
divestitures or financings by DASI, the Borrower or any of the Borrower's
Restricted Subsidiaries;
(viii) the existence of, or the performance by the Borrower or any
of its Restricted Subsidiaries of its obligations under the terms of, any
agreement to which it is a party as of the date of this Agreement, and any
similar agreements which it may enter into thereafter; provided, however, that
the existence of, or the performance by the company or any of its Restricted
Subsidiaries of obligations under, any future amendment to any such existing
agreement or under any similar agreement entered into after the date of this
Agreement shall only be permitted by this clause to the extent that the terms of
any such amendment or similar agreement are not disadvantageous to the Lenders
in any material respect;
(ix) transactions effected as part of a Qualified Securitization
Transaction;
(x) transactions with customers, joint venture partners, clients and
suppliers, in each case in the ordinary course of business and otherwise in
compliance with the terms of this Agreement which are fair to the Borrower or
its Restricted Subsidiaries, in the reasonable determination of the Board of
Directors of the Borrower;
(xi) the grant of stock options, restricted stock or similar rights
to the Borrower's employees, directors and consultants pursuant to plans
approved by the Board of Directors of the Borrower; and
(xii) loans or advances to employees or consultants in the ordinary
course of business and consistent with past practices, which are approved by a
majority of the Board of Directors of the Borrower in good faith.
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5.11 Liens.
The Borrower shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien of any kind on any asset now owned or hereafter acquired, except
Permitted Liens, without making, or causing such Subsidiary to make, effective
provisions for securing the Loans or, in respect of Liens on any Guarantor's
property or assets, any Guarantee of such Guarantor, (x) equally and ratably
with such Indebtedness as to such property or assets for so long as such
Indebtedness will be so secured or (y) in the event such Indebtedness is
subordinated Indebtedness, prior to such Indebtedness as to such property or
assets for so long as such Indebtedness will be so secured. Notwithstanding the
foregoing, none of the Liens permitted pursuant to this Section 5.11 (except
clause (1) of the definition of "Permitted Liens") may at any time attach to any
Loan Party's (1) Accounts, other than those permitted under clause (8), (12),
(23) and (26) of the definition of Permitted Liens and (2) Inventory, other than
those permitted under clauses (8), (12), (18), (23) and (26) of the definition
of Permitted Liens.
5.12 Limitation On Foreign Indebtedness.
The Borrower shall not permit any Foreign Restricted Subsidiary of
the Borrower that is not a Guarantor to, directly or indirectly, incur any
Indebtedness (including Acquired Debt) (other than intercompany Indebtedness
permitted under clause (vi) of the second paragraph of Section 5.8), unless:
(i) after giving effect to the incurrence of such Indebtedness and
the receipt of the application of the proceeds thereof:
(A) if, as a result of the incurrence of such Indebtedness
such Foreign Restricted Subsidiary will become subject to any
restriction or limitation on the payment of dividends or the making
of other distributions,
(1) the Fixed Charge Coverage Ratio of Foreign
Restricted Subsidiaries that are not Guarantors (determined on a pro
forma basis for the last four fiscal quarters for which internal
financial statements are available at the date of determination) is
greater than 2.5 to 1; and
(2) the Borrower's Fixed Charge Coverage Ratio
(determined on a pro forma basis for the last four fiscal quarters
of the Borrower for which internal financial statements are
available at the date of determination) is greater than 2.0 to 1;
and
(B) in any other case, the Borrower's Fixed Charge Coverage
Ratio (determined on a pro forma basis for the last four fiscal
quarters of the Borrower for which internal financial statements are
available at the date of determination) is greater than 2.0 to 1;
and
(ii) no Default or Event of Default shall have occurred and be
continuing at the time or as a consequence of the incurrence of such
Indebtedness.
In the event that any Indebtedness incurred pursuant to clause
(i)(B) of the foregoing paragraph is proposed to be amended, modified or
otherwise supplemented such that the payment of dividends or the making of other
distributions becomes subject in any manner to any restriction or limitation,
the Borrower will not permit the Restricted Subsidiary to so amend, modify or
supplement such Indebtedness unless such Indebtedness could be incurred pursuant
to the terms of clause (i)(A) of the foregoing paragraph.
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All calculations required under the prior two paragraphs hereof
shall be made in a manner consistent with the calculations required under
Section 5.8.
5.13 Corporate Existence.
Subject to Section 5.18 hereof, the Borrower shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of the Borrower or any such
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Borrower and its Subsidiaries; provided, however, that the Borrower shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Subsidiaries, if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Lenders.
5.14 Offer To Repurchase Upon Change Of Control.
If a Change of Control occurs, each Lender will have the right to
require the Borrower to prepay all or any part of that Lender's Loans and other
Obligations owed to such Lender pursuant to the offer described below (the
"Change of Control Offer"). In the Change of Control Offer, the Borrower shall
offer a Change of Control Payment in cash equal to 101% of the aggregate
principal amount of Loans prepaid plus accrued and unpaid interest thereon to
the date of purchase plus any other Obligations and to such Lender (the "Change
of Control Payment"). Within 30 days following any Change of Control, unless the
Borrower has exercised its right to prepay the Loans pursuant to Section 2.6,
the Borrower shall mail a notice to the Administrative Agent and each Lender
describing the transaction or transactions that constitute the Change of Control
and offering to prepay the Loans on the prepayment date specified in such notice
(which must be no earlier than 30 days nor later than 60 days from the date such
notice is mailed, other than as required by law (the "Change of Control Payment
Date")), pursuant to the procedures required by this Agreement and described in
such notice.
On the Change of Control Payment Date, the Borrower shall, to the
extent lawful:
(i) prepay all Loans or portions thereof properly tendered pursuant
to the Change of Control Offer; and
(ii) deliver or cause to be delivered to the Administrative Agent an
Officers' Certificate stating the aggregate principal amount of Loans or
portions thereof being prepaid by the Borrower.
The Borrower shall promptly issue (upon the request of any Lender) a
new Note equal in principal amount to the portion of the Loans that remains
outstanding, if any.
Prior to complying with any of the provisions of this Section 5.14,
but in any event within 90 days following a Change of Control, the Borrower will
either repay all secured indebtedness outstanding under the First Lien Credit
Agreement or obtain the requisite consents, if any, under the First Lien Credit
Agreement to permit the repayment of Loans required by this covenant. If the
Borrower does not obtain such consents or repay such borrowings, the Borrower
will be prohibited from prepaying the Loans. The Borrower will publicly announce
the results of the Change of Control Offer on or as soon as practicable after
the Change of Control Payment Date.
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The Borrower shall not be required to make a Change of Control offer
upon a Change of Control if a third party makes the Change of Control offer in
the manner, at the times and otherwise in compliance with the requirements set
forth in this Section 5.14 and prepays or purchases all Loans outstanding under
such Change of Control Offer.
5.15 Designation Of Restricted And Unrestricted Subsidiaries.
The Board of Directors may designate any Restricted Subsidiary to be
an Unrestricted Subsidiary if that designation would not cause a Default. If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate
fair market value of all outstanding Investments owned by the Borrower and its
Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be an
Investment made as of the time of such designation and shall either reduce the
amount available for Restricted Payments under clause (a)(iv)(C)(ii) of Section
5.6 hereof or reduce the amount available for future Investments, as the
Borrower shall determine. That designation shall only be permitted if such
Investment would be permitted at the time and if such Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary. The Board of
Directors may redesignate any Unrestricted Subsidiary to be a Restricted
Subsidiary if the redesignation would not cause a Default.
5.16 Payments For Consent.
The Borrower and DASI will not, and will not permit any of their
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Lender for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Agreement
unless such consideration is offered to be paid and is paid to all Lenders that
consent, waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.
5.17 Merger, Consolidation, or Sale Of Assets.
The Borrower shall not, directly or indirectly: (1) consolidate or
merge with or into another Person (whether or not the Borrower is the surviving
corporation); or (2) sell, assign, transfer, convey or otherwise dispose of all
or substantially all of the properties or assets of the Borrower and its
Restricted Subsidiaries taken as a whole, in one or more related transactions,
to another Person; unless:
(i) either: (a) the Borrower is the surviving corporation; or (b)
the Person formed by or surviving any such consolidation or merger (if
other than the Borrower) or to which such sale, assignment, transfer,
conveyance or other disposition shall have been made is a corporation,
partnership, limited liability company or trust organized or existing
under the laws of the United States, any state thereof or the District of
Columbia;
(ii) the Person formed by or surviving any such consolidation or
merger (if other than the Borrower) or the Person to which such sale,
assignment, transfer, conveyance or other disposition shall have been made
assumes all the obligations of the Borrower under this Agreement pursuant
to agreements reasonably satisfactory to the Administrative Agent;
(iii) immediately after such transaction no Default or Event of
Default exists; and
(iv) the Borrower or the Person formed by or surviving any such
consolidation or merger (if other than the Borrower) or to which such
sale, assignment, transfer, conveyance or other disposition shall have
been made shall, on the date of such transaction after giving pro forma
effect thereto and any related financing transactions as if the same had
occurred at the
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beginning of the applicable four-quarter period, be permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of Section 5.8
hereof.
In addition, the Borrower shall not, directly or indirectly, lease
all or substantially all of its properties or assets, in one or more related
transactions, to any other Person. The provisions of this section 5.18 shall not
apply to a sale, assignment, transfer, conveyance or other disposition of assets
between or among the Borrower and any Guarantor.
5.18 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
conveyance or other disposition of all or substantially all of the assets of the
Borrower in accordance with Section 5.17 hereof, the successor corporation
formed by such consolidation or into or with which the Borrower is merged or to
which such sale, assignment, transfer, conveyance or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, conveyance or other disposition, the
provisions of this Agreement referring to the "Borrower" shall refer instead to
the successor corporation and not to the Borrower), and may exercise every right
and power of the Borrower under this Agreement with the same effect as if such
successor Person had been named as the Borrower herein; provided, however, that
the predecessor Borrower shall not be relieved from the obligation to pay the
principal of and interest on the Loans except in the case of a sale of all of
the Borrower's assets that meets the requirements of Section 5.18 or other
obligations hereof.
5.19 Additional Collateral; Further Assurances. (a) Subject to applicable
law, each Loan Party shall, unless the Required Lenders otherwise consent, cause
each of its Domestic Subsidiaries formed or acquired after the date of this
Agreement in accordance with the terms of this Agreement to become a Loan Party
by executing the Joinder Agreement set forth as Exhibit E hereto (the "Joinder
Agreement"). Upon execution and delivery thereof, each such Person (i) shall
automatically become a Loan Guarantor hereunder and thereupon shall have all of
the rights, benefits, duties, and obligations in such capacity under the Loan
Documents and (ii) will grant Liens to the Collateral Agent, for the benefit of
the Agents and the Lenders, in any property of such Loan Party which constitutes
Collateral, including any parcel of real property valued in excess of $1,000,000
which is located in the U.S. owned by any Loan Party.
(b) Each Loan Party will cause (i) 100% of the issued and
outstanding Equity Interests of each of its Domestic Subsidiaries, and (ii) 65%
of the issued and outstanding Capital Stock of each Foreign Subsidiary directly
owned by the Borrower or any other Loan Party to be subject at all times to a
first priority, perfected Lien (subject only to the Lien securing the First
Priority Obligations and Permitted Liens) in favor of the Collateral Agent
pursuant to the terms and conditions of the Loan Documents or other security
documents as the Administrative Agent shall reasonably request.
(c) Without limiting the foregoing, each Loan Party will, and will
cause each of the Subsidiaries which is required to become a Loan Party pursuant
to the terms of this Agreement to, execute and deliver, or cause to be executed
and delivered, to the Agents, as applicable, such documents and agreements, and
will take or cause to be taken such actions as the Agents may, from time to
time, reasonably request to carry out the terms and conditions of this Agreement
and the other Loan Documents, including but not limited to all items of the type
required by Section 4.1 (as applicable).
(d) To the extent permitted hereunder, if any Loan Party proposes to
acquire a fee ownership interest in real property valued in excess of $1,000,000
and located in the United States after the date of this Agreement, it shall
contemporaneously with such acquisition provide to the Agents a
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mortgage or deed of trust granting the Collateral Agent a second priority Lien
on such real property (subject to Permitted Liens), together with mortgage title
insurance commitment, real property survey, local counsel opinion(s), and, if
required by the Administrative Agent, flood insurance, and such other documents,
instruments or agreements reasonably requested by the Administrative Agent, in
each case, in form and substance reasonably satisfactory to the Administrative
Agent.
(e) DASI will not permit any Domestic Subsidiary to become an
obligor with respect to any First Priority Obligations or to pledge any
property, whether now existing or hereafter acquired, to secure any First
Priority Obligations unless such Subsidiary is a Loan Party under the Loan
Documents and pledges such property to secure the Obligations.
5.20 No Credit Support. No Group Member will guarantee or otherwise become
liable for payment of Subordinated Indebtedness or the Senior Unsecured Notes
unless such Group Member shall have executed and delivered a Loan Guaranty and
applicable Collateral Documents in favor of the Lenders.
5.21 Amendments to Other Documents. DASI and the Borrower shall not permit
any material amendment, waiver, consent, supplement or other modification
materially adverse to the Lenders with respect to the Senior Unsecured Notes or
the Subordinated Indebtedness without the prior written consent of the Required
Lenders.
5.22 Insurance. Each Loan Party will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable independent
insurance carriers having a financial strength rating of at least A+ by A.M.
Best Company insurance against: (i) loss or damage by fire and loss in transit;
(ii) theft, burglary, pilferage, larceny, embezzlement, and other criminal
activities; (iii) business interruption; (iv) general liability; and (v) and
such other hazards, each as is customary for companies of a similar size engaged
in similar business under similar circumstances as such Person. All such
insurance shall be in amounts, cover such assets and be under policies
reasonably acceptable to the Administrative Agent in its reasonable discretion.
No Loan Party will use or permit any property to be used in any manner that
would render inapplicable any material insurance coverage. Subject to the
requirements of the First Lien Credit Agreement and the First Lien Collateral
Documents, any insurance or condemnation net cash proceeds received from a
casualty or condemnation (or related casualties or condemnations) by the Loan
Parties, less any amount expended or committed to be expended prior to the
earlier of (x) the date occurring one year after receipt of such proceeds and
(y) the date on which the Borrower shall have determined not to, or shall have
otherwise ceased to, acquire or repair assets useful in the Borrower's business
with all or any portion of such proceeds, shall be immediately forwarded to the
Administrative Agent and applied as if such proceeds were Net Proceeds of an
Asset Sale.
5.23 Restrictive Agreements. No Loan Party will, nor will it permit any of
its Subsidiaries to, directly or indirectly, enter into, incur or permit to
exist any agreement or other arrangement that prohibits, restricts or imposes
any condition upon the ability of such Loan Party or any of its Subsidiaries to
create, incur or permit to exist any Lien upon any of its property or assets;
provided that (i) the foregoing shall not apply to restrictions and conditions
imposed by law or by this Agreement, (ii) the foregoing shall not apply to
restrictions and conditions existing on the date hereof identified on Schedule
5.23 (but shall apply to any extension or renewal of, or any amendment or
modification expanding the scope of, any such restriction or condition), (iii)
the foregoing shall not apply to customary restrictions and conditions contained
in agreements relating to the sale of a Subsidiary pending such sale, provided
such restrictions and conditions apply only to the Subsidiary that is to be sold
and such sale is permitted hereunder, (iv) the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness, (v) the
foregoing shall not apply to customary
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provisions in leases restricting the assignment thereof; (vi) the foregoing
shall not apply to restrictions in the 2002 Senior Indenture similar to those in
effect on the Closing Date; (vii) the foregoing shall not apply to restrictions
in the First Lien Credit Agreement and the First Lien Collateral Documents
similar to those in effect on the Closing Date and (viii) the foregoing shall
not apply to agreements evidencing Indebtedness permitted pursuant to Section
5.12 to the extent such restrictions relate solely to Foreign Subsidiaries and
their assets.
5.24 Collateral Access Agreements. Within forty-five (45) days following
the Closing Date, each Loan Party shall use commercially reasonable efforts to
deliver to the Agents each Collateral Access Agreement required to be provided
pursuant to Section 4.13 of the Security Agreement.
5.25 DASI. DASI shall not engage in any trade or business, or own any
assets (other than the Capital Stock of its Subsidiaries) or incur any
Indebtedness (other than the Obligations, First Lien Obligations, the other
guarantees of DASI to the extent otherwise permitted hereunder and pledges of
its assets pursuant to the terms of the Collateral Documents and the First Lien
Collateral Documents (and subject to the Intercreditor Agreement)).
SECTION 6. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) default for 30 days in the payment when due of interest on the
Loans or other amounts owed under the Loan Documents (other than as described in
clause (b));
(b) default in payment when due of the principal on the Loans;
(c) failure by the Borrower or any of its Restricted Subsidiaries or
DASI to comply with any of the provisions of Section 5.18 hereof;
(d) failure by the Borrower or any of its Restricted Subsidiaries or
DASI for 60 days after specified notice to comply with any of the other
agreements in this Agreement and the other Loan Documents;
(e) default under any mortgage, indenture or instrument under which
there is issued and outstanding any Indebtedness for money borrowed by the
Borrower or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Borrower or any of its Restricted Subsidiaries) whether such
Indebtedness or guarantee now exists, or is created after the date hereof, if
that default:
(i) is caused by a failure to pay principal of, or interest or
premium, if any, on such Indebtedness prior to the expiration of the grace
period provided in such Indebtedness on the date of such default (a
"Payment Default"); or
(ii) results in the acceleration of such Indebtedness prior to its
express maturity, and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $20,000,000 or more;
(f) failure by the Borrower or any of its Restricted Subsidiaries or
DASI to pay final judgments aggregating in excess of $20,000,000, which
judgments are not paid, vacated, discharged or stayed or non-appealable for a
period of 60 days and in the event such judgment is covered by insurance,
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an enforcement proceeding has been commenced by any creditor upon such judgment
or decree which is not properly stayed;
(g) DASI, the Borrower or any of its Significant Subsidiaries or any
group of Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an
involuntary case;
(iii) consents to the appointment of a custodian of it or for all or
substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) generally is not paying its debts as they become due; or
(h) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against DASI or the Borrower or any of its
Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary in an involuntary case;
(ii) appoints a custodian of DASI or the Borrower or any of its
Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary or for all or
substantially all of the property of the Borrower or any of its
Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary; or
(iii) orders the liquidation of the Borrower or any of its
Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days; or
(i) except as permitted by this Agreement, any Guaranty is held in
any judicial proceeding to be unenforceable or invalid or shall cease for any
reason to be in full force and effect or any Guarantor, or any Person acting on
behalf of any Guarantor, shall deny or disaffirm its obligations under such
Guarantor's Loan Guaranty;
(j) any Collateral Document shall for any reason fail to create a
valid and perfected first priority security interest (subject to the First
Priority Lien pursuant to the Intercreditor Agreement) in any Collateral
purported to be covered thereby, except as permitted by the terms of any
Collateral Document, or any Collateral Document shall fail to remain in full
force or effect or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of any Collateral Document;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (g) or (h) above the Loans (with accrued interest thereon) and all
other amounts owing under this Agreement and the other Loan Documents shall
immediately become due and payable, and (B) if such event is any other Event of
Default, either or both of the following actions may be taken: with the consent
of the Required Lenders,
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the Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Loans (with
accrued interest thereon) and all other amounts owing under this Agreement and
the other Loan Documents to be due and payable forthwith, whereupon the same
shall immediately become due and payable. Except as expressly provided above in
this Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived by the Borrowers.
SECTION 7. THE AGENTS
7.1 Appointment. (a) Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
(including directing the Collateral Agent to take action with respect to the
Collateral) and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative 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 this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
(b) Each Lender hereby irrevocably designates and appoints the
Collateral Agent as the agent of such Lender under this Agreement and the other
Loan Documents, and each such Lender irrevocably authorizes the Collateral
Agent, in such capacity, to take such action on its behalf under the provisions
of this Agreement and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to the Collateral Agent by the
terms of this Agreement and the other Loan Documents, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere in this Agreement, the Collateral 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 this
Agreement or any other Loan Document or otherwise exist against the Collateral
Agent. The Collateral Agent shall have all of the benefits and immunities (i)
provided to the Administrative Agent in this Section 7 with respect to any acts
taken or omissions suffered by the Collateral Agent in connection with its
acting as Collateral Agent as fully as if the term "Administrative Agent", as
used in this Section 7, included the Collateral Agent with respect to such acts
or omissions and (ii) as additionally provided in this Agreement with respect to
the Collateral Agent.
7.2 Collateral Matters Each Agent is authorized on behalf of all the
Lenders, without the necessity of any notice to or further consent from the
Lenders, from time to time to take any action with respect to any Collateral or
the Collateral Documents which may be necessary to perfect and maintain a
perfected security interest in and Liens upon the Collateral granted pursuant to
the Loan Documents.
7.3 Delegation of Duties. Each Agent may execute any of its duties under
this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. Neither Agent shall be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
7.4 Exculpatory Provisions. Neither any Agent nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates
(collectively, the "Related Parties") shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with this
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Agreement or any other Loan Document (except to the extent that any of the
foregoing are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from 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 Loan Party or any officer thereof contained in this Agreement or any other
Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agents or any of its Related
Parties under or in connection with, this Agreement or any other Loan Document
or for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document or for any failure of
any Loan Party a party thereto to perform its obligations hereunder or
thereunder. The Agents 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, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
7.5 Reliance by Agents. Each Agent and its Related Parties shall be
entitled to rely, and shall be fully protected in relying, upon any instrument,
writing, resolution, notice, consent, certificate, affidavit, letter, 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 counsel to DASI or the Borrower), independent accountants and other
experts selected by such Agent. Each 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. Each Agent and its Related Parties shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action. Each Agent and its
Related Parties shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders (or, if so specified by this
Agreement, all Lenders), 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 Loans. The Loan Parties and the Administrative Agent will furnish such
information about the Collateral, the Borrower, the Loan Guarantors and any
other information reasonably available to them that the Collateral Agent deems
necessary to exercise any of the rights or powers vested in it by the Loan
documents as the Collateral Agent may reasonably request from time to time.
Except for the safe custody of any Collateral in its possession and the
accounting for moneys actually received by it hereunder or under any of the
other Loan Documents, the Collateral Agent shall have no duty as to any
Collateral, as to ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Collateral, whether or not the Collateral Agent is deemed to have knowledge of
such matters, or as to taking of any necessary steps to preserve rights against
any parties or any other wrights pertaining to any Collateral (including the
filing of UCC Continuation Statements). The Collateral Agent shall be deemed to
have exercised appropriate and due care in the custody and preservation of any
Collateral in its possession if such collateral is accorded treatment
substantially equal to that which other collateral agents accord similar
property.
7.6 Notice of Default. No Agent shall be deemed to have knowledge or
notice of the occurrence of any Default unless such Agent has received notice
from a Lender, DASI or the Borrower referring to this Agreement, describing such
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
give notice thereof to the Lenders and the Collateral Agent. The Agents shall
take such action with respect to such Default as shall be reasonably directed in
writing by the Required Lenders (or, if so specified by this Agreement, all
Lenders); provided, that unless and until the Agents shall have received such
directions,
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the Agents may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable in
the best interests of the Lenders.
7.7 Non-Reliance on Agents and Other Lenders. Each Lender expressly
acknowledges that neither the Agents nor any of their Related Parties have made
any representations or warranties to it and that no act by any Agent hereafter
taken, including any review of the affairs of DASI and its Subsidiaries, shall
be deemed to constitute any representation or warranty by any Agent to any
Lender. Each Lender represents to the Agents that it has, independently and
without reliance upon any 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 DASI 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 any 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 this Agreement and
the other Loan 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 the Loan Parties and their affiliates. Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, no Agent shall have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of
a Loan Party that may come into the possession of such Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates.
7.8 Indemnification. The Lenders agree to indemnify each Agent in its
capacity as such and any of its Related Parties as applicable (collectively, the
"Lender Indemnitees") (to the extent not reimbursed by DASI or the Borrower and
without limiting the obligation of DASI or the Borrower to do so), ratably
according to the principal amount of their respective outstanding Loans on the
date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Loans shall have been
paid in full, ratably in accordance with the principal amount of such
outstanding Loans immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including reasonable attorneys fees and expenses) or
disbursements of any kind whatsoever that may at any time (whether before or
after the payment of the Loans) be imposed on, incurred by or asserted against
such Lender Indemnitee in any way relating to or arising out of this Agreement,
any of the other Loan Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by such Lender Indemnitee 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 to the extent found
by a final and nonappealable decisions of a court of competent jurisdiction to
have resulted from such Lender Indemnitee's gross negligence or willful
misconduct. The agreements in this Section shall survive the payment of the
Loans and all other amounts payable hereunder.
7.9 Agent in Its Individual Capacity. Each Agent and its affiliates may
make loans to, accept deposits from and generally engage in any kind of business
with any Loan Party as though such Agent were not an Agent. With respect to any
Loans made by it, if any, each Agent shall have the same rights and powers under
this Agreement and the other Loan Documents as any Lender and may exercise the
same as though it were not an Agent, and the terms "Lender" and "Lenders" shall
include each Agent in its individual capacity.
7.10 Successor Agents. Each Agent may resign as an Agent upon 30 days'
notice to the Lenders and the Borrower. If an Agent shall resign as an Agent
under this Agreement and the other Loan
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Documents, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders, which successor agent shall (unless an Event of
Default under paragraph (a) or (b) or, with respect to the Borrower, (g) or (h)
of Section 6 shall have occurred and be continuing) be subject to approval by
the Borrower (which approval shall not be unreasonably withheld or delayed),
whereupon such successor agent shall succeed to the rights, powers and duties of
each Agent, and the term "Administrative Agent" or "Collateral Agent" shall mean
such successor agent effective upon such appointment and approval, and the
former, Administrative Agent's or Collateral Agent's rights, powers and duties
as Agent shall be terminated, without any other or further act or deed on the
part of such former Agent or any of the parties to this Agreement or any holders
of the Loans. If no successor agent has accepted appointment as an Agent by the
date that is 30 days following a retiring Agent's notice of resignation, the
retiring Agent's resignation shall nevertheless thereupon become effective, and
the Lenders shall assume and perform all of the duties of such Agent hereunder
until such time, if any, as the Required Lenders appoint a successor agent as
provided for above. After any retiring Agent's resignation as Agent, the
provisions of this Section 7 shall continue in effect for its benefit as to any
actions taken or omitted to be taken by it while it was an Agent under this
Agreement and the other Loan Documents.
7.11 Syndication Agent. The Syndication Agent shall have no duties or
responsibilities hereunder in its capacity as such.
7.12 Appointment of Lenders. Each Lender hereby appoints each other Lender
as its agent for the purpose of perfecting Liens, for the benefit of the Agents
and the Lenders, in assets which, in accordance with Article 9 of the UCC or any
other applicable law can be perfected only by possession. Should any Lender
(other than the Collateral Agent) obtain possession of any such Collateral, such
Lender shall notify the Agents thereof, and, promptly upon the Administrative
Agent's request therefor and to the extent permitted by the Intercreditor
Agreement shall deliver such Collateral to the Collateral Agent or otherwise
deal with such Collateral in accordance with the Administrative Agent's
instructions.
7.13 Execution of Loan Documents. The Lenders hereby empower and authorize
the Agents, on behalf of the Lenders, to execute and deliver to the Loan Parties
the other Loan Documents and all related agreements, certificates, documents, or
instruments as shall be necessary or appropriate to effect the purposes of the
Loan Documents. Each Lender agrees that any action taken by the Agents or the
Required Lenders in accordance with the terms of this Agreement or the other
Loan Documents, and the exercise by the Agents or the Required Lenders of their
respective powers set forth therein or herein, together with such other powers
that are reasonably incidental thereto, shall be binding upon all of the
Lenders. The rights and responsibilities of the Collateral Agent acting in its
capacity as "Second Priority Representative" under the Intercreditor Agreement
with respect to any action taken, or determination or request made, by the
Collateral Agent or the exercise or non-exercise by the Collateral Agent of any
power, right or remedy provided for or resulting or arising out of the
Intercreditor Agreement in favor of the "Second Priority Representative"
thereunder shall be subject to and governed by this Section 7.
7.14 Agents as Joint and Several Creditors.
(a) Each of the Loan Parties and the Lenders agree that the Agents
shall be a joint and several creditor (Gesamtglaubiger) (together with the
relevant Lenders) of each and every Obligation of the Loan Parties towards each
of the Lenders under the Loan Documents, and that accordingly the Agents will
have their own independent right to demand performance by the Loan Parties of
those Obligations. However, any discharge of any such Obligation towards one of
the joint creditors (i.e. either one of the Agents or the respective Lender)
shall, to the same extent, discharge the corresponding obligation towards the
other joint creditors. Nothing in this Section 7.14 shall affect, postpone or
terminate any of the obligations of the Lenders or the rights of the Agents
pursuant to Section 7.8 hereof.
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(b) Without limiting or affecting the Agents' rights against the
Loan Parties (whether under this Section 7.14 or under any other provision of
the Loan Documents), each Agent agrees with each Lender (on a several and
divided basis) that, subject as set out in the next sentence, it will not
exercise its rights as a joint and several creditor with a Lender except with
the consent of the relevant Lender. However, for the avoidance of doubt, nothing
in the previous sentence shall in any way limit either Agent's right to act in
the protection or preservation of rights under or to enforce any Loan Document
as contemplated by this Agreement and/or the Security Agreement (or to do any
act reasonably incidental to any of the foregoing).
SECTION 8. MISCELLANEOUS
8.1 Amendments and Waivers. Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 8.1. The
Required Lenders and each Loan Party to the relevant Loan Document may, or, with
the written consent of the Required Lenders, the Administrative Agent and each
Loan Party to the relevant Loan Document may, from time to time (a) enter into
written amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights of the Lenders or of
the Loan Parties hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement or
the other Loan Documents or any Default and its consequences; provided, however,
that no such waiver and no such amendment, supplement or modification shall (i)
forgive the principal amount or extend the final scheduled date of maturity of
any Loan, reduce the stated rate of any interest or fee payable hereunder
(except in connection with the waiver of applicability of any post-default
increase in interest rate) or extend the scheduled date of any payment thereof,
in each case without the written consent of each Lender directly affected
thereby; (ii) eliminate or reduce the voting rights of any Lender under this
Section 8.1 without the written consent of such Lender; (iii) reduce any
percentage specified in the definition of Required Lenders, consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement and the other Loan Documents (except in a transaction
permitted by Section 5.18), release all or substantially all of the Collateral
or release all or substantially all of the Guarantors from their obligations
under the Loan Documents, in each case without the written consent of all
Lenders; (iv) amend, modify or waive any provision of Section 7 without the
written consent of each Agent affected thereby; or (v) amend, modify or waive
any provision applicable to the Collateral Agent without the written consent of
the Collateral Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Loan Parties, the Lenders, the Agents and all future holders of the
Loans. In the case of any waiver, the Loan Parties, the Lenders and the Agents
shall be restored to their former position and rights hereunder and under the
other Loan Documents, and any Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default,
or impair any right consequent thereon.
8.2 Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by telecopy), and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered, postage prepaid, or, in the case of telecopy
notice, when received, addressed as follows in the case of DASI, the Borrower
and the Administrative Agent, and as set forth in an administrative
questionnaire delivered to the Administrative Agent in the case of the Lenders,
or to such other address as may be hereafter notified by the respective parties
hereto:
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DASI: Dura Automotive Systems, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Dura: Dura Operating Corp.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Administrative Agent: JPMorgan Chase Bank, N.A.
0000 Xxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Collateral Agent: Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Section 2 unless otherwise agreed by the
Administrative Agent. Any Agent or the Borrower may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of
such procedures may be limited to particular notices or communications.
8.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of any Agent or any Lender, any right, remedy, power or
privilege hereunder or under the other Loan Documents 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.
8.4 Survival of Representations and Warranties. All representations and
warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans and other extensions of credit hereunder.
8.5 Payment of Expenses and Taxes. DASI and the Borrower jointly and
severally agree (a) to pay or reimburse each Agent for all its reasonable
out-of-pocket costs and expenses incurred in
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connection with the development, preparation and execution of, and any
amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including the reasonable fees, disbursements and other charges of
counsel to each Agent and filing and recording fees and expenses, with
statements with respect to the foregoing to be submitted to DASI prior to the
Closing Date (in the case of amounts to be paid on the Closing Date) and from
time to time thereafter on a quarterly basis or such other periodic basis as the
Administrative Agent shall deem appropriate, (b) to pay or reimburse each Lender
and each Agent for all its costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the other Loan
Documents and any such other documents, including the fees, disbursements and
other charges of counsel (including the allocated fees and expenses of in-house
counsel) to each Lender and of counsel to each Agent, (c) to pay, indemnify, and
hold each Lender and each Agent 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 taxes, if any, that may be payable or determined
to be payable in connection with the execution and delivery of, or consummation
or administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify, and hold each Lender and each Agent and their respective
officers, directors, employees, affiliates, agents and controlling persons
(each, an "Indemnitee") 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 with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including any
of the foregoing relating to the use of proceeds of the Loans or the violation
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of any Group Member or any of the facilities and properties
owned, leased or operated by any Group Member and the reasonable fees and
expenses of legal counsel in connection with claims, actions or proceedings by
any Indemnitee against any Loan Party under any Loan Document (all the foregoing
in this clause (d), collectively, the "Indemnified Liabilities"), provided, that
neither DASI nor the Borrower shall have any obligation hereunder to any
Indemnitee with respect to Indemnified Liabilities to the extent such
Indemnified Liabilities to have resulted from the gross negligence or willful
misconduct of such Indemnitee. Without limiting the foregoing, and to the extent
permitted by applicable law, DASI and the Borrower agree not to assert and to
cause their Subsidiaries not to assert, and hereby waive and agree to cause
their Subsidiaries to waive, all rights for contribution or any other rights of
recovery with respect to all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, under or
related to Environmental Laws, that any of them might have by statute or
otherwise against any Indemnitee (except as a result of gross negligence or
willful misconduct). All amounts due under this Section 8.5 shall be payable not
later than 10 days after written demand therefor. Statements payable by DASI
pursuant to this Section 8.5 shall be submitted to Xxxxx Xxxx (Telephone No.
(000) 000-0000) (Telecopy No. (000) 000-0000), at the address of the Borrower
set forth in Section 8.2, or to such other Person or address as may be hereafter
designated by the Borrower in a written notice to the Administrative Agent. The
agreements in this Section 8.5 shall survive repayment of the Loans and all
other amounts payable hereunder.
8.6 Successors and Assigns; Participations and Assignments. (a) The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby
(including any affiliate of the Issuing Lender that issues any Letter of
Credit), except that (i) the Borrower may not assign or otherwise transfer any
of its rights or obligations hereunder (except in a transaction permitted by
Section 5.18) without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section.
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(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees (each, an "Assignee") all
or a portion of its rights and obligations under this Agreement with the prior
written consent (such consent not to be unreasonably withheld or delayed) of:
(A) DASI, provided that no consent of DASI shall be required
(x) for an assignment to a Lender, an affiliate of a Lender or an
Approved Fund (as defined below) or (y) if an Event of Default has
occurred and is continuing; and
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of all or
any portion of a Loan to a Lender, an Affiliate of a Lender or an
Approved Fund.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an
affiliate of a Lender or an Approved Fund or an assignment of the
entire remaining amount of the assigning Lender's Loans, the amount
of the Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent)
shall not be less than $1,000,000 unless each of DASI and the
Administrative Agent otherwise consent, provided that (1) no such
consent of DASI shall be required if an Event of Default has
occurred and is continuing and (2) such amounts shall be aggregated
in respect of each Lender and its affiliates or Approved Funds, if
any;
(B) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500; provided, that only
one such $3,500 fee shall be paid in respect of all assignments to a
Lender or its Affiliates on any single day by a single Approved Fund
and its Affiliates; and
(C) the Assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an administrative questionnaire.
For the purposes of this Section 8.6, the term "Approved Fund" has
the following meaning:
"Approved Fund" means any Person (other than a natural person) that
is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and
that is administered or managed by (a) a Lender, (b) an Affiliate of a
Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) below, from and after the effective date specified in
each Assignment and Assumption the Assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but
shall continue to be entitled to
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the benefits of Sections 2.14, 2.15, 2.16 and 8.5). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that
does not comply with this Section 8.6 shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders and principal amount
of the Loans owing to each Lender pursuant to the terms hereof from time
to time (the "Register"). The entries in the Register shall be conclusive,
and the Borrower, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an Assignee, the Assignee's completed
administrative questionnaire (unless the Assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in
paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall
accept such Assignment and Assumption and record the information contained
therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in
this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower, DASI or
the Administrative Agent, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and
obligations under this Agreement; provided that (A) such Lender's obligations
under this Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement pursuant to
which a Lender sells such a participation shall provide that such Lender shall
retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver that (1) requires
the consent of each Lender directly affected thereby pursuant to the proviso to
the second sentence of Section 8.1 and (2) directly affects such Participant.
Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 8.7(b)
as though it were a Lender, provided such Participant shall be subject to
Section 8.7(a) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.15 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is
made with the DASI's prior written consent. Any Participant that is a
Non-U.S. Lender shall not be entitled to the benefits of Section 2.15
unless such Participant complies with Section 2.15(d).
(d) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such
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pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or Assignee for such Lender
as a party hereto.
(e) The Borrower, upon receipt of written notice from the relevant
Lender, agrees to issue Notes to any Lender requiring Notes to facilitate
transactions of the type described in paragraph (d) above.
(f) Notwithstanding the foregoing, any Conduit Lender may assign any
or all of the Loans it may have funded hereunder to its designating Lender
without the consent of the Borrower, DASI or the Administrative Agent and
without regard to the limitations set forth in Section 8.6(b). Each of DASI, the
Borrower, each Lender and the Administrative Agent hereby confirms that it will
not institute against a Conduit Lender or join any other Person in instituting
against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceeding under any state bankruptcy or similar law, for one
year and one day after the payment in full of the latest maturing commercial
paper note issued by such Conduit Lender; provided, however, that each Lender
designating any Conduit Lender hereby agrees to indemnify, save and hold
harmless each other party hereto for any loss, cost, damage or expense arising
out of its inability to institute such a proceeding against such Conduit Lender
during such period of forbearance.
(g) Each Lender (including each Person which becomes a Lender after
the date hereof) hereby represents and warrants (i) that it has experience and
expertise in the making of loans such as the Loans; and (ii) that it will make
its Loan for its own account in the ordinary course of its business and without
a view to distribution of such Loan within the meaning of the Securities Act or
the Exchange Act or other federal securities laws (it being understood that,
subject to the provisions of this Section 8.6, the disposition of such Loan or
any interests therein shall at all times remain within its exclusive control).
Each Lender hereby acknowledges that the Notes, Loans and other obligations
hereunder are commercial loans and not securities.
8.7 Adjustments; Set-off. (a) Except to the extent that this Agreement
expressly provides for payments or collateral to be allocated to a particular
Lender or to the Lenders under a particular Facility, if any Lender (a
"Benefitted Lender") shall, at any time after the Loans and other amounts
payable hereunder shall immediately become due and payable pursuant to Section
6, receive any payment of all or part of the Obligations owing to it, 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
paragraph (g) or (h) of Section 6, or otherwise), in a greater proportion than
any such payment to or collateral received by any other Lender, if any, in
respect of the Obligations owing to such other Lender, such Benefitted Lender
shall purchase for cash from the other Lenders a participating interest in such
portion of the Obligations owing to each such other Lender, or shall provide
such other Lenders with the benefits of any such collateral, as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral ratably with each of the Lenders; provided, however,
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.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to DASI or the
Borrower, any such notice being expressly waived by DASI and the Borrower to the
extent permitted by applicable law, upon any amount becoming due and payable by
DASI or the Borrower hereunder (whether at the stated maturity, by acceleration
or otherwise), to set off and appropriate and apply against such amount any and
all deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits,
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indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or the
account of DASI or the Borrower, as the case may be. Each Lender agrees promptly
to notify DASI and the Administrative Agent after any such setoff and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such setoff and application.
8.8 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. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with Dura and the Administrative Agent.
8.9 Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
8.10 Integration. This Agreement and the other Loan Documents represent
the entire agreement of DASI, the Borrower, the Agents and the Lenders with
respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by any Agent or any Lender relative
to the subject matter hereof not expressly set forth or referred to herein or in
the other Loan Documents.
8.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
8.12 Submission To Jurisdiction; Waivers. Each of DASI and the Borrower
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, 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;
(b) 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;
(c) 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 DASI or the
Borrower, as the case may be at its address set forth in Section 8.2 or at such
other address of which the Administrative Agent shall have been notified
pursuant thereto;
(d) 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; and
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(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred to in
this Section any special, exemplary, punitive or consequential damages.
8.13 Acknowledgements. Each of DASI and the Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither any Agent nor any Lender has any fiduciary relationship
with or duty to DASI or the Borrower arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship between the
Agents and Lenders, on one hand, and DASI and the Borrower, on the other hand,
in connection herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among DASI, the Borrower and the Lenders.
8.14 Releases of Guarantees and Liens. (a) The Lenders hereby irrevocably
authorize the Administrative Agent, at its option and in its sole discretion, to
direct the Collateral Agent in writing to release any Liens granted to the
Collateral Agent by the Loan Parties on any Collateral (i) upon the payment and
satisfaction in full in cash of all Obligations (other than unmatured contingent
obligations), and the cash collateralization of all unmatured contingent
obligations in a manner reasonably satisfactory to the Administrative Agent,
(ii) constituting property being sold or disposed of if the Loan Party disposing
of such property certifies to the Administrative Agent that the sale or
disposition is made in compliance with the terms of this Agreement (and the
Agents may rely conclusively on any such certificate, without further inquiry),
(iii) constituting property in which no Loan Party has at any time during the
term of this Agreement owned any interest, (iv) constituting property leased to
a Loan Party under a lease which has expired or been terminated in a transaction
permitted under this Agreement, (v) owned by or leased to any Loan Party which
is subject to a purchase money security interest or which is a Capital Lease
Obligation, in either case, entered into by such Loan Party pursuant to Section
5.8, (vi) as required to effect any sale or other disposition of such Collateral
in connection with any exercise of remedies of the Agents and the Lenders
pursuant to Section 6 or (vii) as required by Section 4.2 of the Intercreditor
Agreement. Upon request by the Administrative Agent at any time, the Lenders
will confirm in writing the Collateral Agent's authority to release any Liens
upon particular types or items of Collateral pursuant to this Section 8.14.
Except as otherwise provided in this Section 8.14(a), the Collateral Agent will
not authorize the release of any Liens on Collateral without the prior written
authorization of the Required Lenders; provided that, the Administrative Agent
may in its discretion, otherwise direct the Collateral Agent in writing to
release its Liens on immaterial Collateral without the prior written
authorization of the Required Lenders.
(b) The Lenders hereby irrevocably authorize the Administrative
Agent, at its option and in its sole discretion, to direct the Collateral Agent
in writing to release any Subsidiary Guarantor from its Obligations (including
guarantee obligations) under the Loan Documents:
(i) in connection with any sale or other disposition of all or
substantially all of the assets of that Subsidiary Guarantor (including by
way of merger or consolidation) to a Person that is not (either before or
after giving effect such transaction) a Subsidiary of DASI, if the
Guarantor applies the Net Proceeds of that sale or other disposition in
accordance with the applicable provisions of this Agreement, including
without limitation Section 5.9 hereof;
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(ii) in connection with any sale of all of the Capital Stock of a
Guarantor to a Person that is not (either before or after giving effect to
such transaction) a Subsidiary of DASI, if the Borrower applies the Net
Proceeds of that sale in accordance with the applicable provisions of this
Agreement, including without limitation Section 5.9 hereof; or
(iii) if that Subsidiary Guarantor ceases to guarantee, pledge any
of its assets or otherwise provide direct or indirect credit support for
any Indebtedness or other obligations of DASI, the Borrower or any
Subsidiary of the Borrower.
Any such release of a Subsidiary Guarantor shall not affect the Obligations of
the remaining Loan Parties under the Loan Documents.
(c) Upon receipt by the Collateral Agent of any authorization
required pursuant to clause (a) or (b) of this Section 8.14 from the Required
Lenders or the Administrative Agent, as the case may be, of the Collateral
Agent's authority to release any Liens upon particular types or items of
Collateral or release any Subsidiary Guarantor from its Obligations under the
Loan Documents, and upon at least five Business Days prior written request by
the Loan Parties, the Collateral Agent shall (and is hereby irrevocably
authorized by the Lenders to) execute such documents as may be necessary to
evidence the release of its Liens upon such Collateral or a Subsidiary Guarantor
from its Obligations under the Loan Documents; provided that, (i) the Collateral
Agent shall not be required to execute any such document on terms which, in the
Collateral Agent's opinion, would expose the Collateral Agent to liability or
create any obligation or entail any consequence other than the release of such
Liens or Obligations without recourse or warranty and (ii) such release shall
not in any manner discharge, affect, or impair the Obligations or any Liens
(other than those expressly being released) upon (or obligations of the Loan
Parties in respect of) all interests retained by the Loan Parties, including the
proceeds of any sale, all of which shall continue to constitute part of the
Collateral.
(d) Each Lender agrees with and in favor of each other (which
agreement shall not be for the benefit of the Borrower or any other Loan Party)
that the Borrower's obligation to such Lender under this Agreement and the other
Loan Documents is not and shall not be secured by any real property collateral
now or hereafter acquired by the Borrower or any of its Subsidiaries other than
the real property described in the Mortgages.
8.15 Confidentiality. Each of the Administrative Agent and each Lender
agrees to keep confidential all non-public information provided to it by any
Loan Party, the Administrative Agent or any Lender pursuant to or in connection
with this Agreement that is designated by the provider thereof as confidential;
provided that nothing herein shall prevent the Administrative Agent or any
Lender from disclosing any such information (a) to the Administrative Agent, any
other Lender or any affiliate thereof, (b) subject to an agreement to comply
with the provisions of this Section, to any actual or prospective Transferee,
(c) to its employees, directors, agents, attorneys, accountants and other
professional advisors or those of any of its affiliates, (d) upon the request or
demand of any Governmental Authority, (e) in response to any order of any court
or other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if requested or required to do so in connection with any
litigation or similar proceeding, (g) that has been publicly disclosed, (h) to
the National Association of Insurance Commissioners or any similar organization
or any nationally recognized rating agency that requires access to information
about a Lender's investment portfolio in connection with ratings issued with
respect to such Lender, or (i) in connection with the exercise of any remedy
hereunder or under any other Loan Document.
8.16 WAIVERS OF JURY TRIAL. DASI, THE BORROWER, THE AGENTS AND THE LENDERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
77
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
8.17 USA Patriot Act. Each Lender hereby notifies DASI and the Borrower
that pursuant to the requirements of the USA Patriot Act (Title II of Pub. L.
107-56 (signed into law October 26, 2001)) (the "Act"), it may be required to
obtain, verify and record information that identifies DASI and the Borrower,
which information includes the name and address of DASI and the Borrower and
other information that will allow such Lender to identify DASI and the Borrower
in accordance with the Act.
8.18 Post-Closing Matters. Notwithstanding the provisions of Sections 4.1
and 5.19, the Loan Parties need not complete the actions or deliver the
documents described in Sections 4.1(e) (other than the Security Agreement),
4.1(l), (n) (p), (q) and (r) until the date which is sixty (60) days following
the Closing Date, and the Closing Date will occur upon satisfaction of the other
conditions in Section 4.1.
SECTION 9. GUARANTY
9.1 Guaranty. Each Loan Guarantor hereby agrees that it is jointly and
severally liable for, and, as primary obligor and not merely as surety,
absolutely and unconditionally guarantees to the Agents and Lenders the prompt
payment when due, whether at stated maturity, upon acceleration or otherwise,
and at all times thereafter, of the Obligations and all costs and expenses
including, without limitation, all court costs and reasonable attorneys' and
paralegals' fees (including allocated costs of in-house counsel and paralegals)
and expenses paid or incurred by the Agents and the Lenders in endeavoring to
collect all or any part of the Obligations from, or in prosecuting any action
against, the Borrower, any Loan Guarantor or any other guarantor of all or any
part of the Obligations (such costs and expenses, together with the Obligations,
collectively the "Guaranteed Obligations"). Each Loan Guarantor further agrees
that the Guaranteed Obligations may be extended or renewed in whole or in part
without notice to or further assent from it, and that it remains bound upon its
guarantee notwithstanding any such extension or renewal. All terms of this Loan
Guaranty apply to and may be enforced by or on behalf of any domestic or foreign
branch or Affiliate of any Lender that extended any portion of the Guaranteed
Obligations.
9.2 Guaranty of Payment. This Loan Guaranty is a guaranty of payment and
not of collection. To the extent not prohibited by applicable law, each Loan
Guarantor waives any right to require any Agent or any Lender to xxx the
Borrower, any Loan Guarantor, any other guarantor, or any other person obligated
for all or any part of the Guaranteed Obligations (each, an "Obligated Party"),
or otherwise to enforce its payment against any collateral securing all or any
part of the Guaranteed Obligations.
9.3 No Discharge or Diminishment of Loan Guaranty. (a) Except as otherwise
provided for herein, the obligations of each Loan Guarantor hereunder are
unconditional and absolute and not subject to any reduction, limitation,
impairment or termination for any reason (other than the payment in full in cash
of the Guaranteed Obligations (other than contingent indemnification Obligations
to the extent no claims giving rise thereto have been asserted)), including: (i)
any claim of waiver, release, extension, renewal, settlement, surrender,
alteration, or compromise of any of the Guaranteed Obligations, by operation of
law or otherwise; (ii) any change in the corporate existence, structure or
ownership of the Borrower or any other guarantor of or other person liable for
any of the Guaranteed Obligations; (iii) any insolvency, bankruptcy,
reorganization or other similar proceeding affecting any Obligated Party, or
their assets or any resulting release or discharge of any obligation of any
Obligated Party; or (iv) the existence of any claim, setoff or other rights
which any Loan Guarantor may have at any time against any Obligated Party, any
Agent, any Lender, or any other person, whether in connection herewith or in any
unrelated transactions.
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(b) To the extent not prohibited by applicable law, the obligations
of each Loan Guarantor hereunder are not subject to any defense or setoff,
counterclaim, recoupment, or termination whatsoever by reason of the invalidity,
illegality, or unenforceability of any of the Guaranteed Obligations or
otherwise, or any provision of applicable law or regulation purporting to
prohibit payment by any Obligated Party, of the Guaranteed Obligations or any
part thereof.
(c) Further, to the extent not prohibited by applicable law, the
obligations of any Loan Guarantor hereunder are not discharged or impaired or
otherwise affected by: (i) the failure of any Agent or any Lender to assert any
claim or demand or to enforce any remedy with respect to all or any part of the
Guaranteed Obligations; (ii) any waiver or modification of or supplement to any
provision of any agreement relating to the Guaranteed Obligations; (iii) any
release, non-perfection, or invalidity of any indirect or direct security for
the obligations of the Borrower for all or any part of the Guaranteed
Obligations or any obligations of any other guarantor of or other person liable
for any of the Guaranteed Obligations; (iv) any action or failure to act by any
Agent or any Lender with respect to any collateral securing any part of the
Guaranteed Obligations; or (v) any default, failure or delay, willful or
otherwise, in the payment or performance of any of the Guaranteed Obligations,
or any other circumstance, act, omission or delay that might in any manner or to
any extent vary the risk of such Loan Guarantor or that would otherwise operate
as a discharge of any Loan Guarantor as a matter of law or equity (other than
the payment in full in cash of the Guaranteed Obligations (other than contingent
indemnification Obligations to the extent no claims giving rise thereto have
been asserted)).
9.4 Defenses Waived. To the fullest extent permitted by applicable law,
each Loan Guarantor hereby waives any defense based on or arising out of any
defense of the Borrower or any Loan Guarantor or the unenforceability of all or
any part of the Guaranteed Obligations from any cause, or the cessation from any
cause of the liability of the Borrower or any Loan Guarantor, other than the
indefeasible payment in full in cash of the Guaranteed Obligations (other than
contingent indemnification Obligations to the extent no claims giving rise
thereto have been asserted). Without limiting the generality of the foregoing,
each Loan Guarantor irrevocably waives acceptance hereof, presentment, demand,
protest and, to the fullest extent permitted by law, any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
person against any Obligated Party, or any other person. The Administrative
Agent may, at its election, foreclose on any Collateral held by it by one or
more judicial or nonjudicial sales, accept an assignment of any such Collateral
in lieu of foreclosure or otherwise act or fail to act with respect to any
Collateral securing all or a part of the Guaranteed Obligations, compromise or
adjust any part of the Guaranteed Obligations, make any other accommodation with
any Obligated Party or exercise any other right or remedy available to it
against any Obligated Party, without affecting or impairing in any way the
liability of such Loan Guarantor under this Loan Guaranty except to the extent
the Guaranteed Obligations have been fully paid in cash (other than contingent
indemnification Obligations to the extent no claims giving rise thereto have
been asserted). To the fullest extent permitted by applicable law, each Loan
Guarantor waives any defense arising out of any such election even though that
election may operate, pursuant to applicable law, to impair or extinguish any
right of reimbursement or subrogation or other right or remedy of any Loan
Guarantor against any Obligated Party or any security. This Loan Guaranty is a
guaranty of payment and not of collection. Each Loan Guarantor waives any right
to require any Agent or any Lender to xxx the Borrower, any Loan Guarantor, any
other guarantor, or any other person obligated for all or any part of the
Guaranteed Obligations (each, an "Obligated Party"), or otherwise to enforce its
payment against any collateral securing all or any part of the Guaranteed
Obligations.
9.5 Rights of Subrogation. No Loan Guarantor will assert any right, claim
or cause of action, including, without limitation, a claim of subrogation,
contribution or indemnification that it has against any Obligated Party, or any
Collateral, until the Loan Parties and the Loan Guarantors have fully performed
all their payment and performance obligations (including the Obligations) to the
Agents and
79
the Lenders. Upon payment in full of the Obligations (other than contingent
indemnification Obligations to the extent no claims giving rise thereto have
been asserted), the Loan Guarantors shall be subrogated to the Lenders to the
extent of any payments under this Section 9.
9.6 Reinstatement; Stay of Acceleration. If at any time any payment of any
portion of the Guaranteed Obligations is rescinded or must otherwise be restored
or returned upon the insolvency, bankruptcy, or reorganization of the Borrower
or otherwise, each Loan Guarantor's obligations under this Loan Guaranty with
respect to that payment shall be reinstated at such time as though the payment
had not been made and whether or not the Agents and the Lenders are in
possession of this Loan Guaranty. If acceleration of the time for payment of any
of the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of any agreement relating to the Guaranteed
Obligations shall nonetheless be payable by the Loan Guarantors forthwith on
demand by the Lenders.
9.7 Information. Each Loan Guarantor assumes all responsibility for being
and keeping itself informed of the Borrower's financial condition and assets,
and of all other circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations and the nature, scope and extent of the risks that each
Loan Guarantor assumes and incurs under this Loan Guaranty, and agrees that
neither any Agent nor any Lender shall have any duty to advise any Loan
Guarantor of information known to it regarding those circumstances or risks.
9.8 Termination. The Lenders may continue to make loans or extend credit
to the Borrower based on this Loan Guaranty until five days after they receive
written notice of termination from any Loan Guarantor. Notwithstanding receipt
of any such notice, each Loan Guarantor will continue to be liable to the
Lenders for any Guaranteed Obligations created, assumed or committed to prior to
the fifth day after receipt of the notice, and all subsequent accruals,
renewals, extensions, modifications and amendments with respect to, or
substitutions for, all or any part of that Guaranteed Obligations.
9.9 Taxes. All payments of the Guaranteed Obligations will be made by each
Loan Guarantor free and clear of and without deduction for any Non-Excluded
Taxes or Other Taxes; provided that if any Loan Guarantor shall be required to
deduct any Non-Excluded Taxes or Other Taxes from such payments, then (i) the
sum payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) any Agent or Lender (as the case may be) receives an amount equal
to the sum it would have received had no such deductions been made, (ii) such
Loan Guarantor shall make such deductions and (iii) such Loan Guarantor shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
9.10 Maximum Liability. The provisions of this Loan Guaranty are
severable, and in any action or proceeding involving any state corporate law, or
any state, federal or foreign bankruptcy, insolvency, reorganization or other
law affecting the rights of creditors generally, if the obligations of any Loan
Guarantor under this Loan Guaranty would otherwise be held or determined to be
avoidable, invalid or unenforceable on account of the amount of such Loan
Guarantor's liability under this Loan Guaranty, then, notwithstanding any other
provision of this Loan Guaranty to the contrary, the amount of such liability
shall, without any further action by the Loan Guarantors or the Lenders, be
automatically limited and reduced to the highest amount that is valid and
enforceable as determined in such action or proceeding (such highest amount
determined hereunder being the relevant Loan Guarantor's "Maximum Liability").
This Section with respect to the Maximum Liability of each Loan Guarantor is
intended solely to preserve the rights of the Lenders to the maximum extent not
subject to avoidance under applicable law, and no Loan Guarantor nor any other
person or entity shall have any right or claim under this Section with respect
to such Maximum Liability, except to the extent necessary so that the
obligations
80
of any Loan Guarantor hereunder shall not be rendered voidable under applicable
law. Each Loan Guarantor agrees that the Guaranteed Obligations may at any time
and from time to time exceed the Maximum Liability of each Loan Guarantor
without impairing this Loan Guaranty or affecting the rights and remedies of the
Lenders hereunder, provided that, nothing in this sentence shall be construed to
increase any Loan Guarantor's obligations hereunder beyond its Maximum
Liability.
9.11 Contribution. In the event any Loan Guarantor (a "Paying Guarantor")
shall make any payment or payments under this Loan Guaranty or shall suffer any
loss as a result of any realization upon any collateral granted by it to secure
its obligations under this Loan Guaranty, each other Loan Guarantor (each a
"Non-Paying Guarantor") shall contribute to such Paying Guarantor an amount
equal to such Non-Paying Guarantor's "Applicable Percentage" of such payment or
payments made, or losses suffered, by such Paying Guarantor. For purposes of
this Section 9, each Non-Paying Guarantor's "Applicable Percentage" with respect
to any such payment or loss by a Paying Guarantor shall be determined as of the
date on which such payment or loss was made by reference to the ratio of (i)
such Non-Paying Guarantor's Maximum Liability as of such date (without giving
effect to any right to receive, or obligation to make, any contribution
hereunder) or, if such Non-Paying Guarantor's Maximum Liability has not been
determined, the aggregate amount of all monies received by such Non-Paying
Guarantor from the Borrower after the date hereof (whether by loan, capital
infusion or by other means) to (ii) the aggregate Maximum Liability of all Loan
Guarantors hereunder (including such Paying Guarantor) as of such date (without
giving effect to any right to receive, or obligation to make, any contribution
hereunder), or to the extent that a Maximum Liability has not been determined
for any Loan Guarantor, the aggregate amount of all monies received by such Loan
Guarantors from the Borrower after the date hereof (whether by loan, capital
infusion or by other means). Nothing in this provision shall affect any Loan
Guarantor's several liability for the entire amount of the Guaranteed
Obligations (up to such Loan Guarantor's Maximum Liability). Each of the Loan
Guarantors covenants and agrees that its right to receive any contribution under
this Loan Guaranty from a Non-Paying Guarantor shall be subordinate and junior
in right of payment to the payment in full in cash of the Guaranteed
Obligations. This provision is for the benefit of the Agents, the Lenders and
the Loan Guarantors and may be enforced by any one, or more, or all of them in
accordance with the terms hereof.
9.12 Liability Cumulative. The liability of each Loan Party as a Loan
Guarantor under this Section 9 is in addition to and shall be cumulative with
all liabilities of each Loan Party to the Agents and the Lenders under this
Agreement and the other Loan Documents to which such Loan Party is a party or in
respect of any obligations or liabilities of the other Loan Parties, without any
limitation as to amount, unless the instrument or agreement evidencing or
creating such other liability specifically provides to the contrary.
[Signature Page to Credit Agreement]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
DURA AUTOMOTIVE SYSTEMS, INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
82
DURA OPERATING CORP.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
83
AUTOMOTIVE AVIATION PARTNERS, LLC
BY: DURA AIRCRAFT OPERATING
COMPANY, LLC, ITS MANAGING
MEMBER
BY: DURA OPERATING CORP., ITS SOLE
MEMBER
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
84
ADWEST ELECTRONICS INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
85
XXXXXX AUTOMOTIVE, INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
86
DURA CABLES NORTH LLC
BY: XXXXXX AUTOMOTIVE, INC., ITS
SOLE MEMBER
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
87
DURA CABLES SOUTH LLC
BY: XXXXXX AUTOMOTIVE, INC., ITS
SOLE MEMBER
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
88
DURA G.P.
BY: DURA OPERATING CORP., ITS
MANAGING GENERAL PARTNER
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
89
DURA SPICEBRIGHT, INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
90
XXXX I MOLDED PLASTICS OF
TENNESSEE, INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
91
DURA GLOBAL TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
92
DURA AUTOMOTIVE SYSTEMS OF
INDIANA, INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
93
DURA AIRCRAFT OPERATING COMPANY,
LLC
BY: DURA OPERATING CORP., ITS SOLE
MEMBER
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
94
DURA BRAKE SYSTEMS, L.L.C.
BY: DURA OPERATING CORP., ITS SOLE
MEMBER
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
95
DURA SHIFTER L.L.C.
BY: DURA OPERATING CORP., ITS SOLE
MEMBER
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
96
DURA SERVICES L.L.C.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title: Manager
[Signature Page to Second Lien Credit Agreement]
97
DURA MANCELONA L.L.C.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title: Manager
[Signature Page to Second Lien Credit Agreement]
98
DURA FREMONT L.L.C.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title: Manager
[Signature Page to Second Lien Credit Agreement]
99
DURA GLADWIN L.L.C.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title: Manager
[Signature Page to Second Lien Credit Agreement]
100
DURA AUTOMOTIVE SYSTEMS CABLE
OPERATIONS, INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
101
UNIVERSAL TOOL & STAMPING
COMPANY, INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
102
TRIDENT AUTOMOTIVE, L.P.
BY: TRIDENT AUTOMOTIVE LTD., ITS
GENERAL PARTNER
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
103
TRIDENT AUTOMOTIVE, L.L.C.
BY: TRIDENT AUTOMOTIVE CANADA
CO., ITS MANAGING MEMBER
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
104
XXXXXX MOBILE PRODUCTS, INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
105
CREATION GROUP HOLDINGS, INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
106
XXXXXXXX, INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
107
CREATION GROUP, INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
108
CREATION GROUP TRANSPORTATION,
INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
109
XXXXXXXX, LLC
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
110
SPEC-TEMP, INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
111
CREATION WINDOWS, INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
112
CREATION WINDOWS, LLC
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------
Name:
Title:
[Signature Page to Second Lien Credit Agreement]
7
JPMORGAN CHASE BANK, N.A., as Administrative
Agent and as a Lender
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: XXXXX X. XXXXX
Title: VICE PRESIDENT
BANC OF AMERICA SECURITIES, LLC, as
Syndication Agent
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
WILMINGTON TRUST COMPANY, Collateral Agent
By: /s/ Xxxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Assistant Vice President
[Signature Page to Credit Agreement]
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (as it may be amended or modified from
time to time, the "Security Agreement") is entered into as of May 3, 2005 by and
among Dura Automotive Systems, Inc., a Delaware corporation, Dura Operating
Corp., a Delaware corporation, each of the U.S. Subsidiary Guarantors party
hereto (each of the foregoing, together with each other Person which may from
time to time become a party hereto as a Grantor, individually a "Grantor" and
collectively, "Grantors") and Wilmington Trust Company, in its capacity as
collateral agent (the "Collateral Agent") for the Secured Parties (as defined
below).
PRELIMINARY STATEMENT
The Grantors, the other Loan Parties, JPMorgan Chase Bank, N.A., as
Administrative Agent, the Collateral Agent and the Lenders are entering into a
Credit Agreement dated as of May 3, 2005 (as it may be amended or modified from
time to time, the "Credit Agreement").
The Grantors are entering into this Security Agreement in order to xxxxx x
Xxxx on the Collateral in order to secure the Obligations that they have agreed
are owing by the Grantors (whether as a Borrower or as a Guarantor) and to
induce the Lenders to extend credit to the Borrower under the Credit Agreement.
ACCORDINGLY, the Grantors and the Collateral Agent, on behalf of the
Secured Parties, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Terms Defined in Credit Agreement. All capitalized terms used herein
and not otherwise defined shall have the meanings assigned to such terms in the
Credit Agreement.
1.2 Terms Defined in UCC. Terms defined in the UCC which are not otherwise
defined in this Security Agreement are used herein as defined in the UCC.
1.3 Definitions of Certain Terms Used Herein. As used in this Security
Agreement, in addition to the terms defined in the Preliminary Statement, the
following terms shall have the following meanings:
"Accounts" shall have the meaning set forth in Article 9 of the UCC.
"Article" means a numbered article of this Security Agreement, unless
another document is specifically referenced.
"Bankruptcy Code" means title 11, United States Code, as amended from time
to time, and any successor statute thereto.
"Borrowing Base Certificate" means the U.S. Borrowing Base Certificate
delivered to the First Lien Administrative Agent pursuant to the First Lien
Credit Agreement and, upon request, to the Administrative Agent.
"Chattel Paper" shall have the meaning set forth in Article 9 of the UCC.
"Closing Date" means the date of the Credit Agreement.
"Collateral" shall have the meaning set forth in Article II.
"Collateral Access Agreement" means any landlord waiver or other
agreement, in form and substance reasonably satisfactory to the Agents, between
the Collateral Agent and any third party (including any bailee, consignee,
customs broker, or other similar Person) in possession of any Collateral or any
landlord of any Loan Party for any real property where any Collateral is
located, as such landlord waiver or other agreement may be amended, restated, or
otherwise modified from time to time.
"Collateral Deposit Account" shall have the meaning set forth in Section
7.1(a).
"Collection Account" shall have the meaning set forth in Section 7.1(b).
"Commercial Tort Claims" means all "commercial tort claims" as defined in
Article 9 of the UCC, including without limitation all commercial tort claims
listed on Exhibit K hereto (as such schedule may be amended and supplemented
from time to time).
"Common Collateral" shall have the meaning set forth in Section 1.1 of the
Intercreditor Agreement.
"Control" shall have the meaning set forth in Article 8 or, if applicable,
in Section 9-104, 9-105, 9-106 or 9-107 of Article 9 of the UCC.
"Copyrights" means, with respect to any Person, all of such Person's
right, title, and interest in and to the following: (a) all U.S. copyrights,
rights and interests in copyrights, works protectable by copyright, copyright
registrations, and copyright applications; (b) all renewals of any of the
foregoing; (c) all income, royalties, damages, and payments now or hereafter due
and/or payable under any of the foregoing, including, without limitation,
damages or payments for past or future infringements for any of the foregoing;
(d) the right to xxx for past, present, and future infringements of any of the
foregoing and (e) all rights corresponding to any of the foregoing throughout
the world.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Deposit Account Control Agreement" means an agreement, in form and
substance reasonably satisfactory to the Administrative Agent, among any
Grantor, a banking institution holding such Grantor's funds, and the Collateral
Agent with respect to collection and control of all deposits and balances held
in a deposit account maintained by any Grantor with such banking institution.
"Deposit Accounts" shall have the meaning set forth in Article 9 of the
UCC.
"Documents" shall have the meaning set forth in Article 9 of the UCC.
"Equipment" shall have the meaning set forth in Article 9 of the UCC.
"Event of Default" means an event described in Section 5.1.
"Excluded Property" shall mean Special Property other than the following:
(a) the right to receive any payment of money (including, without
limitation, Accounts, General Intangibles and Payment Intangibles) or any other
rights referred to in Sections 9-406(f), 9-407(a) or 9-408(a) of the UCC; and
(b) any Proceeds, substitutions or replacements of any Special
Property (unless such Proceeds, substitutions or replacements would constitute
Special Property).
2
"Exhibit" refers to a specific exhibit to this Security Agreement, unless
another document is specifically referenced.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Fixtures" shall have the meaning set forth in Article 9 of the UCC.
"General Intangibles" shall have the meaning set forth in Article 9 of the
UCC.
"Goods" shall have the meaning set forth in Article 9 of the UCC.
"Instruments" shall have the meaning set forth in Article 9 of the UCC.
"Inventory" shall have the meaning set forth in Article 9 of the UCC.
"Investment Property" shall have the meaning set forth in Article 9 of the
UCC.
"Lenders" means the lenders party to the Credit Agreement and their
successors and assigns.
"Letter-of-Credit Rights" shall have the meaning set forth in Article 9 of
the UCC.
"Licenses" means, with respect to any Person, all of such Person's right,
title, and interest in and to (a) any and all licensing agreements or similar
arrangements in and to its Patents, Copyrights, or Trademarks, (b) all income,
royalties, damages, claims, and payments now or hereafter due or payable under
and with respect thereto, including, without limitation, damages and payments
for past and future breaches thereof, and (c) all rights to xxx for past,
present, and future breaches thereof.
"Lock Boxes" shall have the meaning set forth in Section 7.1(a).
"Lock Box Agreements" shall have the meaning set forth in Section 7.1(a).
"Non-Pledged Foreign Interest" shall have the meaning ascribed to such
term in Article II.
"Patents" means, with respect to any Person, all of such Person's right,
title, and interest in and to: (a) any and all U.S. patents and patent
applications; (b) all inventions and improvements described and claimed therein;
(c) all reissues, divisions, continuations, renewals, extensions, and
continuations-in-part thereof; (d) all income, royalties, damages, claims, and
payments now or hereafter due or payable under and with respect thereto,
including, without limitation, damages and payments for past and future
infringements thereof; and (e) all rights to xxx for past, present, and future
infringements thereof.
"Pledged Collateral" means all Instruments, Securities and other
Investment Property of the Grantors (other than Excluded Property and
Non-Pledged Foreign Interest), whether or not physically delivered to the
Collateral Agent pursuant to this Security Agreement.
"Receivables" means the Accounts, Chattel Paper, Documents, Investment
Property, Instruments and any other rights or claims to receive money which are
General Intangibles or which are otherwise included as Collateral.
"Section" means a numbered section of this Security Agreement, unless
another document is specifically referenced.
3
"Secured Parties" means the Agents, the Lenders, their respective
Affiliates, and each of their permitted successors and assigns.
"Security" has the meaning set forth in Article 8 of the UCC.
"Special Property" shall mean:
(a) any permit, lease or license, or the assets (owned by a Person
other than a Loan Party) relating thereto or covered thereby, held by any
Grantor that validly prohibits the creation by such Grantor of a security
interest therein or thereon;
(b) any permit, lease or license, or the assets (owned by a Person
other than a Loan Party) relating thereto or covered thereby, held by any
Grantor to the extent that any Requirement of Law applicable thereto
prohibits the creation of a security interest therein or thereon;
(c) Equipment owned by any Grantor on the date hereof or hereafter
acquired that is subject to a Lien securing purchase money Indebtedness
incurred in connection with the purchase of any Equipment or Capital Lease
Obligation permitted to be incurred pursuant to the provisions of the
Credit Agreement if the contract or other agreement in which such Lien is
granted (or the documentation providing for such purchase money
Indebtedness incurred in connection with the purchase of any Equipment or
Capital Lease Obligation) validly prohibits the creation of any other Lien
on such Equipment;
(d) Any intellectual property Collateral, including without
limitation, intent-to-use trademark applications, for which the creation
by a Grantor of a security interest therein is prohibited without the
consent of third party, by Requirement of Law, or would otherwise result
in the loss by any Loan Party of any material rights therein;
(e) Equity Interests in Dura Automotive Systems Capital Trust which,
pursuant to either Requirements of Law, the organizational documents
governing such trust or any other agreement binding upon such trust, do
not permit the assignment of any interest in such trust; and
(f) Equity Interests held by any Grantor in Shanghai Xxxxxx Electric
Co., Ltd. which, pursuant to either Requirements of Law or the
organizational documents governing such joint venture, do not permit the
assignment of such Grantor's interests.
provided, however, that in each case described in clauses (a), (b), (c),
(d), (e) and (f) of this definition, such property shall constitute "Special
Property" only to the extent and for so long as such permit, lease, license,
contract or other agreement or Requirement of Law applicable thereto, validly
prohibits the creation of a Lien on such property in favor of the Collateral
Agent and, upon the termination of such prohibition (howsoever occurring), such
property shall cease to constitute "Special Property."
"Stock Rights" means all dividends, cash, instruments or other
distributions and any other right or property including any proceeds thereof
which the Grantors shall receive or shall become entitled to receive for any
reason whatsoever with respect to, in substitution for or in exchange for any
Equity Interest constituting Collateral, any right to receive an Equity Interest
and any right to receive earnings, in which the Grantors now have or hereafter
acquire any right, issued by an issuer of such Equity Interest.
"Supporting Obligations" shall have the meaning set forth in Article 9 of
the UCC.
"Trademarks" means, with respect to any Person, all of such Person's
right, title, and interest in and to the following: (a) all U.S. trademarks
(including service marks), trade names, trade dress, and trade styles and
4
the registrations and applications for registration thereof and the goodwill of
the business symbolized by the foregoing; (b) all licenses of the foregoing,
whether as licensee or licensor; (c) all renewals of the foregoing; (d) all
income, royalties, damages, and payments now or hereafter due or payable with
respect thereto, including, without limitation, damages, claims, and payments
for past and future infringements thereof; (e) all rights to xxx for past,
present, and future infringements of the foregoing, including the right to
settle suits involving claims and demands for royalties owing; and (f) all
rights corresponding to any of the foregoing throughout the world.
"UCC" means the Uniform Commercial Code, as in effect from time to time,
of the State of New York or of any other state the laws of which are required as
a result thereof to be applied in connection with the attachment, perfection or
priority of, or remedies with respect to, Collateral Agent's or any Secured
Party's Lien on any Collateral.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
ARTICLE II
GRANT OF SECURITY INTEREST
Each Grantor hereby pledges, assigns and grants to the Collateral Agent,
on behalf of and for the benefit of the Secured Parties, a security interest in
all of its right, title and interest in, to and under all personal property and
other assets, whether now owned by or owing to, or hereafter acquired by or
arising in favor of such Grantor (including under any trade name or derivations
thereof), and whether owned or consigned by or to, or leased from or to, such
Grantor, and regardless of where located (all of which will be collectively
referred to as the "Collateral"), including:
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Documents;
(iv) all Equipment;
(v) all Fixtures;
(vi) all General Intangibles, Patents, Trademarks and Copyrights
and all Licenses;
(vii) all Goods;
(viii) all Instruments;
(ix) all Equity Interests and other Securities;
(x) all Inventory;
(xi) all Investment Property;
(xii) all cash or cash equivalents;
(xiii) all letters of credit, Letter-of-Credit Rights and Supporting
Obligations;
(xiv) all Deposit Accounts with any bank or other financial
institution;
5
(xv) all Commercial Tort Claims listed on EXHIBIT J hereto;
(xvi) and all accessions to, substitutions for and replacements,
proceeds (including Stock Rights), insurance proceeds and
products of the foregoing, together with all books and
records, customer lists, credit files, computer files,
programs, printouts and other computer materials and records
related thereto and any General Intangibles at any time
evidencing or relating to any of the foregoing;
to secure the prompt and complete payment and performance of the Obligations
(specifically including, without limitation, each Grantor's obligations arising
under Section 9 of the Credit Agreement). Notwithstanding the foregoing, with
respect to each Grantor's pledge of the outstanding securities held by it of any
first-tier Foreign Subsidiary, such pledge to the Collateral Agent will be
limited to 65% of the outstanding voting securities of such Foreign Subsidiary
(the remaining 35% of such voting securities is referred to herein as the
"Non-Pledged Foreign Interest").
Notwithstanding anything to the contrary contained in clauses (i) through
(xvi) above, the security interest created by this Agreement shall not extend
to, and the terms "Pledged Collateral" and "Collateral" shall not include, any
Excluded Property and any Non-Pledged Foreign Interest and (i) the Grantors
shall from time to time at the reasonable request of the Collateral Agent give
written notice to the Collateral Agent identifying in reasonable detail the
Special Property (and stating in such notice that such Special Property
constitutes "Excluded Property") and shall provide to the Collateral Agent such
other information regarding the Special Property as the Collateral Agent may
reasonably request and (ii) from and after the date hereof, no Grantor shall
permit to become effective in any document creating, governing or providing for
any permit, lease or license, a provision that would prohibit the creation of a
Lien on such permit, lease or license in favor of the Collateral Agent unless
such Grantor believes, in its reasonable judgment, that such prohibition is
usual and customary in transactions of such type.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Grantor represents and warrants that:
3.1 Title, Perfection and Priority. Each Grantor has good and valid rights
in or the power to pledge, collaterally assign, deliver, deposit, and transfer
the Collateral and title to the Collateral with respect to which it has
purported to grant a security interest hereunder, free and clear of all Liens
except for Permitted Liens, and has full power and authority to grant to the
Collateral Agent the security interest in such Collateral pursuant hereto. When
financing statements have been filed in the appropriate offices against the
applicable Grantors in the locations listed on EXHIBIT H, the Collateral Agent
will have a fully perfected first priority security interest (subject to the
Intercreditor Agreement) in that Collateral in which a security interest may be
perfected by filing, subject only to Permitted Liens.
3.2 Type and Jurisdiction of Organization, Organizational and
Identification Numbers. As of the date hereof, each Grantor's type of entity,
its state of organization, the organizational number issued to it by its state
of organization and its federal employer identification number are set forth on
EXHIBIT A (such Exhibit shall be displayed on a Grantor by Grantor basis).
3.3 Principal Location. As of the date hereof, each Grantor's mailing
address and the location of its place of business (if it has only one) or its
chief executive office (if it has more than one place of business) is disclosed
in EXHIBIT A, as applicable; the Grantors have no other places of business
except those set forth in EXHIBIT A.
6
3.4 Collateral Locations. As of the date hereof, all of Grantors'
locations where Collateral is located are listed on EXHIBIT A. All of said
locations are owned by the Grantors except for locations (i) which are leased by
the Grantors as lessee and designated in Part VII(b) of EXHIBIT A and (ii) at
which Inventory is held in a public warehouse or is otherwise held by a bailee
or on consignment as designated in Part VII(c) of EXHIBIT A.
3.5 Deposit Accounts. As of the date hereof, all of the Deposit Accounts
of each Grantor are listed on EXHIBIT B.
3.6 Exact Names. Each Grantor's name in which it has executed this
Security Agreement is the exact name as it appears in such Grantor's
organizational documents, as amended, as filed with such Grantor's jurisdiction
of organization. The Grantors have not, during the past year, been known by or
used any other corporate or fictitious name, or been a party to any merger or
consolidation, or been a party to any acquisition, other than as listed on
EXHIBIT A.
3.7 Letter-of-Credit Rights and Chattel Paper. As of the date hereof,
EXHIBIT C lists all Letter-of-Credit Rights and Chattel Paper of each of the
Grantors having and individual fair market value in an amount in excess of
$250,000. All action by each Grantor reasonably necessary to protect and perfect
the Collateral Agent's Lien on each item listed on EXHIBIT C (including the
delivery of all originals and the placement of a legend on all Chattel Paper as
required hereunder) has been duly taken. The Collateral Agent will have a fully
perfected first priority security interest (subject to the Intercreditor
Agreement) in the Collateral listed on EXHIBIT C, subject only to Permitted
Liens.
3.8 Accounts and Chattel Paper.
(a) The names of the obligors, amounts owing, due dates and other
information with respect to the Accounts and Chattel Paper are and will be
correctly stated in all material respects in all records of each Grantor
relating thereto and in all invoices and Borrowing Base Certificate as of the
date of such Borrowing Base Certificate with respect thereto furnished to the
Collateral Agent by each Grantor in accordance with the terms of the Loan
Documents. As of the time when each Account or each item of Chattel Paper, in
each case constituting Collateral, arises, each Grantor shall be deemed to have
represented and warranted that such Account or Chattel Paper, as the case may
be, and all records of such Grantor relating thereto, are genuine and in all
material respects what they purport to be.
(b) With respect to Accounts scheduled or listed on the most recent
Borrowing Base Certificate as of the date of such Borrowing Base Certificate,
(i) all Accounts represent bona fide sales of Inventory or rendering of services
to Account Debtors in the ordinary course of each Grantor's business and are not
evidenced by a judgment, Instrument or Chattel Paper; (ii) there are no setoffs,
claims or disputes existing or asserted with respect thereto and the Grantors
have not made any agreement with any Account Debtor for any extension of time
for the payment thereof, any compromise or settlement for less than the full
amount thereof, any release of any Account Debtor from liability therefor, or
any deduction therefrom except a discount or allowance allowed by a Grantor in
the ordinary course of its business; (iii) to the knowledge of any Financial
Officer or other senior officer of any Grantor, there are no facts, events or
occurrences which in any way impair the validity or enforceability thereof or
could reasonably be expected to reduce the amount payable thereunder as shown on
each Grantor's books and records and any invoices, statements and Borrowing Base
Certificate with respect thereto; (iv) the Grantors have not received any notice
of proceedings or actions which are threatened or pending against any Account
Debtor which could reasonably be expected to result in any material adverse
change in such Account Debtor's financial condition; and (v) the Grantors have
no knowledge that any Account Debtor is unable generally to pay its debts as
they become due.
3.9 Inventory. With respect to any Inventory scheduled or listed on the
most recent Borrowing Base Certificate as of the date of such Borrowing Base
Certificate, (a) such Inventory (other than Inventory in
7
transit or out for repairs) is located at one of the Grantor's locations set
forth on EXHIBIT A, as applicable, (b) no Inventory (other than Inventory in
transit) is now, or shall at any time or times hereafter be stored at any other
location except as permitted by Section 4.1(g), (c) the Grantors have good title
to such Inventory and such Inventory is not subject to any Lien or security
interest or document whatsoever except for the Lien granted to the Collateral
Agent, for the benefit of the Collateral Agent and Secured Parties, and except
for Permitted Liens, (d) except as specifically disclosed in the most recent
Borrowing Base Certificate, such Inventory is Eligible Inventory of good and
merchantable quality, free from any defects, (e) such Inventory is not subject
to any licensing, patent, royalty, trademark, trade name or copyright agreements
with any third parties which would require any consent of any third party upon
sale or disposition of that Inventory or, except royalties incurred pursuant to
the sale of such Inventory under the current license agreement, the payment of
any monies to any third party upon such sale or other disposition, (f) such
Inventory has been produced in accordance with the Federal Fair Labor Standards
Act of 1938, as amended, and all rules, regulations and orders thereunder and
(g) the completion of manufacture in accordance with the applicable purchase
order specifications, sale or other disposition of such Inventory by the
Collateral Agent following an Event of Default shall not require the consent of
any Person and shall not constitute a breach or default under any contract or
agreement to which any Grantor is a party or to which such property is subject.
3.10 Intellectual Property. As of the date hereof, the Grantors do not
have any interest in, or title to, any Patent, Trademark or Copyright materially
necessary for operation of the business, except as set forth in EXHIBIT D. This
Security Agreement is effective to create a valid and continuing Lien and, upon
filing of appropriate financing statements in the offices listed on EXHIBIT H
and this Security Agreement with the United States Copyright Office and the
United States Patent and Trademark Office, fully perfected first priority
security interests (subject to the Intercreditor Agreement) in favor of the
Collateral Agent on each Grantor's Patents, Trademarks and Copyrights, except as
set forth on EXHIBIT D, subject to Section 4.7(c). Such perfected security
interests are enforceable as such as against any and all creditors of and
purchasers from the Grantors; and all action necessary to protect and perfect
the Collateral Agent's Lien on each Grantor's Patents, Trademarks or Copyrights
shall have been duly taken.
3.11 Filing Requirements. As of the date hereof, none of the Equipment is
covered by any certificate of title, except for vehicles having an aggregate
fair market value greater than $500,000, described in Part I of EXHIBIT E. As of
the date hereof, none of the Collateral is of a type for which security
interests or liens may be perfected by filing under any federal statute except
for (a) the vehicles or aircrafts described in Part II of EXHIBIT E and (b)
Patents, Trademarks and Copyrights held by the Grantors and described in EXHIBIT
D. The legal description, county and street address of each property on which
any Fixtures are located is set forth in EXHIBIT F together with the name and
address of the record owner of each such property.
3.12 No Financing Statements, Security Agreements. No financing statement
or security agreement describing all or any portion of the Collateral which has
not lapsed or been terminated naming any of the Grantors as debtor has been
filed or is of record in any jurisdiction except (a) for financing statements or
security agreements naming the Collateral Agent on behalf of the Secured Parties
as the secured party and (b) as permitted in connection with Permitted Liens.
3.13 Pledged Collateral.
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(a) As of the date hereof, EXHIBIT G sets forth a complete and
accurate list of all of the Pledged Collateral. Each Grantor is the direct, sole
beneficial owner and sole holder of record of the Pledged Collateral listed on
EXHIBIT G as being owned by it, free and clear of any Liens, except for
Permitted Liens. Each Grantor further represents and warrants that (i) all
Pledged Collateral constituting an Equity Interest has been (to the extent such
concepts are relevant with respect to such Pledged Collateral) duly authorized,
validly issued, are fully paid and non-assessable, (ii) with respect to any
certificates delivered to the Collateral Agent representing an Equity Interest,
either such certificates are Securities as defined in Article 8 of the UCC as a
result of actions by the issuer or otherwise, or, if such certificates are not
Securities, the Grantors have so informed the Agents so that the Collateral
Agent may take steps to perfect its security interest therein as a General
Intangible, (iii) all Pledged Collateral held by a securities intermediary is or
will be, pursuant to the terms of the Credit Agreement, covered by a control
agreement among the applicable Grantor, the securities intermediary and the
Collateral Agent pursuant to which the Collateral Agent has Control and (iv) all
Pledged Collateral which represents Indebtedness having an individual fair
market value in excess of $1,000,000 owed to any Grantor has been duly
authorized, authenticated or issued and delivered by the issuer of such
Indebtedness, is the legal, valid and binding obligation of such issuer and, to
such Grantor's knowledge as of the date hereof, such issuer is not in default
thereunder.
(b) In addition, (i) none of the Pledged Collateral (constituting
Equity Interests of Parent's Subsidiaries) has been issued or transferred in
violation of the securities registration, securities disclosure or similar laws
of any jurisdiction to which such issuance or transfer may be subject, (ii)
there are existing no options, warrants, calls or commitments of any character
whatsoever relating to the Pledged Collateral (constituting Equity Interests of
Parent's Subsidiaries) or which obligate the issuer (that is a Subsidiary of
Parent) of any Equity Interest included in the Pledged Collateral to issue
additional Equity Interests, and (iii) no consent, approval, authorization, or
other action by, and no giving of notice or filing with, any governmental
authority or any other Person is required for the pledge by any Grantor of the
Pledged Collateral pursuant to this Security Agreement or for the execution,
delivery and performance of this Security Agreement by any Grantor, or for the
exercise by the Collateral Agent of the voting or other rights provided for in
this Security Agreement or for the remedies in respect of the Pledged Collateral
pursuant to this Security Agreement, except as (i) may be required in connection
with such disposition by laws affecting the offering and sale of securities
generally or (ii) consents, approvals, authorizations or other actions already
taken.
(c) Except as set forth in EXHIBIT G, the Grantors own 100% of the
issued and outstanding Equity Interests which constitute Pledged Collateral as
of the date hereof.
ARTICLE IV
COVENANTS
From the date of this Security Agreement, and thereafter until this
Security Agreement is terminated pursuant to Section 8.14 hereof, each Grantor
agrees that:
4.1 General.
(a) Collateral Records. Each Grantor will maintain books and records
with respect to the Collateral which are complete and accurate in all material
respects, and furnish to the Agents, with sufficient copies for each of the
Lenders, such reports relating to the Collateral as either Agent shall from time
to time reasonably request.
(b) Authorization to File Financing Statements; Ratification. Each
Grantor hereby authorizes either Agent to file, and if requested will deliver to
the Collateral Agent, all financing statements and other documents and take such
other actions as may from time to time be requested by the Collateral Agent in
order to maintain a first perfected security interest (subject to the
Intercreditor Agreement) in and, if applicable, Control of, the Collateral,
except as otherwise provided hereunder. Any financing statement filed by the
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Collateral Agent may be filed in any filing office in any applicable UCC
jurisdiction and may (i) indicate the Collateral (1) as all assets of the
Grantor or words of similar effect, regardless of whether any particular asset
comprised in the Collateral falls within the scope of Article 9 of the UCC or
such jurisdiction, or (2) by any other description which reasonably approximates
the description contained in this Security Agreement, and (ii) contain any other
information required by part 5 of Article 9 of the UCC for the sufficiency or
filing office acceptance of any financing statement or amendment, including (A)
whether any Grantor is an organization, the type of organization and any
organization identification number issued to any Grantor, and (B) in the case of
a financing statement filed as a fixture filing or indicating Collateral as
as-extracted collateral or timber to be cut, a sufficient description of real
property to which the Collateral relates. Each Grantor also agrees to furnish
any such information to Agents promptly upon request. Each Grantor also ratifies
its authorization for the Collateral Agent to have filed in any UCC jurisdiction
any initial financing statements or amendments thereto if filed prior to the
date hereof.
(c) Further Assurances. Each Grantor will, if so reasonably
requested by an Agent, furnish to the Agents, as often as an Agent reasonably
requests, statements and schedules further identifying and describing the
Collateral and such other reports and information in connection with the
Collateral as such Agent may reasonably request, all in such reasonable detail
as such Agent may specify. Each Grantor also agrees to take any and all
commercially reasonable actions necessary to defend title to the Collateral
against all persons and to defend the security interest of the Collateral Agent
in the Collateral and the priority thereof against any Lien not expressly
permitted hereunder.
(d) Other Financing Statements. No Grantor will authorize the filing
of any financing statement naming it as debtor covering all or any portion of
the Collateral, except as permitted pursuant to the Credit Agreement. Each
Grantor acknowledges that it is not authorized to file any financing statement
or amendment or termination statement with respect to any financing statement
without the prior written consent of the Collateral Agent, subject to each
Grantor's rights under Section 9-509(d)(2) of the UCC.
(e) Locations. Subject to the following sentence, no Grantor will
(i) maintain any Collateral (other than Collateral in transit or out for
repairs) that has an aggregate fair market value in excess of $5,000,000 at any
location other than those locations listed on EXHIBIT A, (ii) otherwise change,
or add to, such locations, or (iii) change its principal place of business or
chief executive office from the location identified on EXHIBIT A. Such Grantor
will give the Agents at least (A) thirty (30) days prior written notice of any
change in such Grantor's chief place of business and (B) ten (10) Business Days
prior written notice of any new location of business or any new location for any
of its Collateral except for locations where the Collateral stored or warehoused
at all such new locations has an aggregate fair market value not exceeding
$5,000,000. With respect to any new location (i) where the Collateral stored or
warehoused at such location has an aggregate fair market value in excess of
$5,000,000 and (ii) which is located within the continental United States or
Canada, such Grantor will execute such documents and take such actions as the
Agents deem necessary to perfect and protect the Liens granted under the
Collateral Documents and will use commercially reasonable efforts to obtain a
Collateral Access Agreements for each such location.
4.2 Receivables.
(a) Certain Agreements on Receivables. Except as otherwise permitted
in the Credit Agreement, no Grantor will make or agree to make any discount,
credit, rebate or other reduction in the original amount owing on a Receivable
or accept in satisfaction of a Receivable less than the original amount thereof,
except that, prior to the occurrence and during the continuation of an Event of
Default, the Grantors may reduce the amount of Accounts arising from the sale of
Inventory in the ordinary course of business.
(b) Collection of Receivables. Except as otherwise permitted in this
Security Agreement, each Grantor will use commercially reasonable efforts to
collect and enforce, at such Grantor's sole expense, all amounts due or
hereafter due to any Grantor under the Receivables.
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(c) Delivery of Invoices. Each Grantor will deliver to the
Collateral Agent promptly upon its request after the occurrence and during the
continuation of an Event of Default duplicate invoices with respect to each
Account bearing such language of assignment as the Agents shall specify.
(d) Disclosure of Counterclaims on Receivables. If (i) any discount,
credit or agreement to make a rebate or to otherwise reduce the amount owing on
a Receivable exists or (ii) if, to the knowledge of any Financial Officer or any
other senior office of any Grantor, any dispute, setoff, claim, counterclaim or
defense exists or has been asserted or threatened with respect to a Receivable,
such Grantor will disclose such fact to the Agents in the next Borrowing Base
Certificate delivered to the Agents.
(e) Electronic Chattel Paper. Each Grantor shall take all steps
necessary to grant the Collateral Agent Control of all electronic chattel paper
having an individual fair market value in an amount in excess of $500,000, in
accordance with the UCC and all "transferable records" as defined in each of the
Uniform Electronic Transactions Act and the Electronic Signatures in Global and
National Commerce Act.
4.3 Inventory and Equipment.
(a) Maintenance of Goods. Except as otherwise set forth in the
Credit Agreement, each Grantor will do all things necessary to maintain,
preserve, protect and keep the Inventory and the Equipment in good repair and
working and saleable condition, except for damaged or defective goods arising in
the ordinary course of any Grantor's business and except for ordinary wear and
tear, casualty and condemnation in respect of the Equipment.
(b) Inventory Count; Perpetual Inventory System. Subject to the
terms of the First Lien Credit Agreement, each Grantor will conduct a physical
count or a periodic cycle count of the Inventory at least once per Fiscal Year,
and after and during the continuation of an Event of Default, at such other
times as the Collateral Agent requests. The Grantors, at their own expense,
shall deliver to the Agents the results of each physical verification, which the
Grantors have made, or has caused any other Person to make on their behalf, of
all or any portion of their Inventory. The Grantors will maintain a perpetual
inventory reporting system at all times.
(c) Equipment. The Grantors shall not permit any Equipment to become
a fixture with respect to real property or to become an accession with respect
to other personal property with respect to which real or personal property the
Collateral Agent does not have a Lien.
(d) Titled Vehicles. Except with respect to vehicles having an
aggregate fair market value less than $500,000, the Grantors will deliver to the
Collateral Agent, upon reasonable request, the original of any vehicle title
certificate and provide and/or file all other documents or instruments necessary
to have the Lien of the Collateral Agent noted on any such certificate or with
the appropriate state office.
4.4 Delivery of Instruments, Securities, Chattel Paper and Documents. Each
Grantor will (a) deliver to the Collateral Agent promptly upon execution of this
Security Agreement the originals of all Chattel Paper having an individual fair
market value in excess of $250,000, Securities and Instruments constituting
Collateral (if any then exist), (b) hold in trust for the Collateral Agent upon
receipt and promptly thereafter deliver to the Collateral Agent any Chattel
Paper having an individual fair market value in excess of $250,000, Securities
and Instruments constituting Collateral from time to time acquired by any
Grantor, (c) upon either Agent's reasonable request, deliver to the Collateral
Agent (and thereafter hold in trust for the Collateral Agent upon receipt and
immediately deliver to the Collateral Agent) any negotiable Document evidencing
or constituting Collateral and (d) upon either Agent's reasonable request,
deliver to the Collateral Agent a duly executed amendment to this Security
Agreement, in the form of Exhibit I hereto (the "Amendment"), pursuant to which
such Grantor will pledge such additional Collateral. All Pledged Shares shall be
accompanied by duly executed instruments of transfer or assignment in blank, all
in form and substance reasonably satisfactory to
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Collateral Agent. The Grantors hereby authorize the Collateral Agent to attach
each Amendment to this Security Agreement and agree that all additional
Collateral set forth in such Amendments shall be considered to be part of the
Collateral.
4.5 Uncertificated Pledged Collateral. (a) Each Grantor will permit the
Collateral Agent from time to time to cause the appropriate issuers (and, if
held with a securities intermediary, such securities intermediary) of
uncertificated securities or other types of Pledged Collateral not represented
by certificates to xxxx their books and records with the numbers and face
amounts of all such uncertificated securities or other types of Pledged
Collateral not represented by certificates and all rollovers and replacements
therefor to reflect the Lien of the Collateral Agent granted pursuant to this
Security Agreement. Each Grantor will take any actions reasonably necessary to
cause (a) the issuers of uncertificated securities which are Pledged Collateral
and (b) any securities intermediary which is the holder of any Pledged
Collateral, to cause the Collateral Agent to have and retain Control over such
Pledged Collateral. Without limiting the foregoing, each Grantor will, with
respect to Pledged Collateral held with a securities intermediary, cause such
securities intermediary to enter into a control agreement with the Collateral
Agent, in form and substance reasonably satisfactory to the Agents, giving the
Collateral Agent Control.
(b) Each Grantor hereby represents and warrants that the Equity
Interests in a partnership and/or limited liability company (i) are not dealt in
or traded on securities exchanges or in securities markets, (ii) are not
"investment company securities" (as defined in Section 8-103(b) of the Uniform
Commercial Code) and (iii) do not provide, in the related membership or
partnership agreement, certificates, if any, representing such pledged interests
in a partnership and/or limited liability company or otherwise, that they are
securities governed by the Uniform Commercial Code of any jurisdiction.
(c) Each Grantor hereby covenants and agrees that, without the prior
express written consent of the Collateral Agent, it will not agree to any
election by any partnership or limited liability company to treat the Equity
Interests in a partnership and/or limited liability company as securities
governed by the Uniform Commercial Code of any jurisdiction and in any event
will promptly notify the Collateral Agent in writing if the representation set
forth in Section 4.5(b) hereof becomes untrue for any reason and, in such event,
take such action as the Collateral Agent may request in order to establish the
Collateral Agent's "control" (within the meaning of Section 8-106 of the Uniform
Commercial Code) over such Equity Interests in a partnership and/or limited
liability company.
4.6 Pledged Collateral.
(a) Changes in Capital Structure of Issuers. Except as permitted
under the Credit Agreement, no Grantor will (i) permit or suffer any issuer
(that is a Subsidiary of Parent) of an Equity Interest constituting Pledged
Collateral to dissolve, merge, liquidate, retire any of its Equity Interests or
other Instruments or Securities evidencing ownership, reduce its capital, sell
or encumber all or substantially all of its assets (except for Permitted Liens
and sales of assets permitted pursuant to Section 5.9 of the Credit Agreement)
or merge or consolidate with any other entity, or (ii) vote any Pledged
Collateral in favor of any of the foregoing. Each Grantor shall cause the issuer
(that is a Subsidiary of Parent) of any Equity Interests to make all necessary
amendments and modifications to such issuer's organizational documentation in
order to permit the Collateral Agent to exercise its remedies hereunder and
under the Credit Agreement (including, without limitation, in order to allow
such Collateral Agent and its permitted successors and assigns to become members
or partners, as applicable, of such issuer with the same voting and other rights
and benefits as the Grantor had with respect to such Grantor's Equity Interests
in such issuer).
(b) Issuance of Additional Securities. Except as permitted under the
Credit Agreement, no Grantor will permit or suffer the issuer of an Equity
Interest constituting Pledged Collateral to issue additional Equity Interests,
any right to receive the same or any right to receive earnings, except to the
Grantor. Any such
12
issuances permitted under the Credit Agreement shall promptly be pledged in
accordance with the terms of this Security Agreement.
(c) Registration of Pledged Collateral. Upon the occurrence and
during the continuation of an Event of Default, the Grantors will permit any
registerable Pledged Collateral to be registered in the name of the Collateral
Agent or its nominee.
(d) Exercise of Rights in Pledged Collateral.
(i) Without in any way limiting the foregoing and subject to
clause (ii) below, the Grantors shall have the right to exercise all
voting rights or other rights relating to the Pledged Collateral for all
purposes not inconsistent with this Security Agreement, the Credit
Agreement or any other Loan Document; provided however, that no vote or
other right shall be exercised or action taken which would have the effect
of impairing the rights of the Collateral Agent in respect of the Pledged
Collateral.
(ii) Each Grantor will permit the Collateral Agent or its
nominee at any time after the occurrence and during the continuation of an
Event of Default, without notice, to exercise all voting rights or other
rights relating to Pledged Collateral, including, without limitation,
exchange, subscription or any other rights, privileges, or options
pertaining to any Equity Interest or Investment Property constituting
Pledged Collateral as if it were the absolute owner thereof.
(iii) Each Grantor shall be entitled to collect and receive
for its own use all cash dividends and interest paid in respect of the
Pledged Collateral to the extent not in violation of the Credit Agreement
and except as otherwise provided under the Credit Agreement and the other
Loan Documents.
4.7 Intellectual Property.
(a) The Grantors will use their commercially reasonable efforts to
secure all consents and approvals necessary or appropriate for the assignment to
or benefit of the Collateral Agent of any License held by any Grantor and to
enforce the security interests granted hereunder.
(b) Each Grantor shall notify the Agents immediately if it knows or
has reason to know that any application or registration relating to any material
Patent, Trademark or Copyright (now or hereafter existing) may become abandoned
or dedicated (except to the extent not prohibited pursuant to the Credit
Agreement), or of any material adverse determination or development (including
the institution of, or any such determination or development in, any proceeding
in the United States Patent and Trademark Office, the United States Copyright
Office or any court) regarding the Grantor's ownership of any material Patent,
Trademark or Copyright, its right to register the same, or to keep and maintain
the same.
(c) Each Grantor shall notify the Agents within ten Business Days of
the beginning of each fiscal quarter commencing with the fiscal quarter
beginning on or about July 1, 2005, if such Grantor, either directly or through
any agent, employee, licensee or designee, has filed an application for the
registration of any Patent, Trademark or Copyright with the United States Patent
and Trademark Office, the United States Copyright Office or any similar office
or agency during the preceding fiscal quarter, and, upon request of either
Agent, each Grantor shall execute and deliver any and all security agreements as
either Agent may request to evidence the Collateral Agent's first priority
security interest (subject to the Intercreditor Agreement) on such Patent,
Trademark or Copyright, and the General Intangibles of each Grantor relating
thereto or represented thereby.
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(d) Each Grantor, in its commercially reasonable business judgment,
shall take all actions reasonably necessary to maintain and pursue each
application, to obtain the relevant registration and to maintain the
registration of each of the Patents, Trademarks and Copyrights (now or hereafter
existing), including the filing of applications for renewal, affidavits of use,
affidavits of noncontestability and opposition and interference and cancellation
proceedings unless the applicable Grantor shall determine, in its commercially
reasonable business judgment, that such Patent, Trademark or Copyright is not
material to the conduct of such Grantor's business.
(e) Each Grantor shall, unless it shall reasonably determine that
such Patent, Trademark or Copyright is not material to the conduct of its
business or operations, promptly xxx for infringement, misappropriation or
dilution and to recover any and all damages for such infringement,
misappropriation or dilution, and that such Grantor shall take such other
actions as the Agents shall deem reasonably appropriate under the circumstances
to protect such Patent, Trademark or Copyright. In the event that any Grantor
institutes suit because any of the Patents, Trademarks or Copyrights
constituting Collateral is infringed upon, or misappropriated or diluted by a
third party, the Grantor shall comply with Section 4.8.
4.8 Commercial Tort Claims. Each Grantor shall promptly, and in any event
within five (5) Business Days after a Financial Officer or other senior officer
becomes aware that the same is acquired by it, notify the Agents of any
commercial tort claim (as defined in the UCC) having an individual fair market
value in an amount in excess of $1,000,000, acquired by it and, unless the
Collateral Agent otherwise consents, the applicable Grantor shall enter into an
amendment to this Security Agreement, in the form of Exhibit I hereto, granting
to Collateral Agent a first priority security interest in such commercial tort
claim subject to Permitted Liens.
4.9 Letter-of-Credit Rights. If any Grantor is or becomes the beneficiary
of a letter of credit having an individual fair market value in an amount in
excess of $250,000, the applicable Grantor shall promptly, and in any event
within five (5) Business Days after becoming a beneficiary, notify the Agents
thereof and use commercially reasonable efforts to cause the issuer and/or
confirmation bank to (i) consent to the assignment of any Letter-of-Credit
Rights to the Collateral Agent and (ii) agree to direct all payments thereunder
to a Deposit Account at the Collateral Agent or subject to a Deposit Account
Control Agreement for application to the Obligations, when required, all in form
and substance reasonably satisfactory to the Agents.
4.10 Federal, State or Municipal Claims. Each Grantor will promptly notify
the Agents of any Collateral which constitutes a claim against the United States
government or any state or local government or any instrumentality or agency
thereof having an individual fair market value in excess of $2,000,000, the
assignment of which claim is restricted by federal, state or municipal law.
4.11 No Interference. Each Grantor agrees that it will not interfere with
any right, power and remedy of the Collateral Agent provided for in this
Security Agreement or now or hereafter existing at law or in equity or by
statute or otherwise, or the exercise or beginning of the exercise by the
Collateral Agent of any one or more of such rights, powers or remedies, in each
case to the extent such rights, powers, or remedies are exercised in accordance
with the Loan Documents.
4.12 Insurance. All insurance policies required under Section 5.22 of the
Credit Agreement shall name the Collateral Agent (for the benefit of the
Collateral Agent and the Secured Parties) as an additional insured or as loss
payee, as applicable, and shall contain loss payable clauses or mortgagee
clauses, through endorsements in form and substance reasonably satisfactory to
the Agents, which provide that: (i) subject to the terms of the Credit
Agreement, all proceeds thereunder with respect to any Collateral shall be
payable to the Collateral Agent (or to the First Lien Collateral Agent, on
behalf of the Collateral Agent, to the extent required by the First Lien Credit
Agreement); (ii) no such insurance shall be affected by any act or neglect of
the insured or owner of the property described in such policy; and (iii) such
policy and loss payable or mortgagee clauses
14
may be canceled, amended, or terminated only upon at least thirty days prior
written notice given to the Collateral Agent.
4.13 Collateral Access Agreements. Each Grantor shall use commercially
reasonable efforts to obtain a Collateral Access Agreement, from the lessor of
each leased property, mortgagee of owned property or bailee or consignee with
respect to any warehouse, processor or converter facility or other location
where the aggregate value of the Collateral stored or located exceeds
$5,000,000, which agreement or letter shall provide access rights, contain a
waiver or subordination of all Liens or claims that the landlord, mortgagee,
bailee or consignee may assert against the Collateral at that location, and
shall otherwise be reasonably satisfactory in form and substance to the Agents.
After the Closing Date, the Grantor shall use commercially reasonable efforts to
obtain (i) a Collateral Access Agreement for any real property or warehouse
space leased by any Grantor or (ii) another agreement acceptable to the
Administrative Agent with respect to Inventory shipped to a processor or
converter under arrangements established after the Closing Date.
4.14 [Reserved]
4.15 Change of Name or Location; Change of Fiscal Year. Each Grantor
agrees that it shall not (a) change its name as it appears in official filings
in the state of its incorporation or organization, (b) change its chief
executive office, principal place of business, mailing address, corporate
offices or warehouses or locations at which Collateral is held or stored (other
than Collateral in transit or out for repairs), except as permitted under
Section 4.1(e), or the location of its records concerning the Collateral as set
forth in the Security Agreement, (c) change the type of entity that it is, (d)
change its organization identification number, if any, issued by its state of
incorporation or other organization, or (e) change its state of incorporation or
organization, in each case, unless the Agents shall have received at least
thirty (30) days prior written notice of such change and either (1) the
Administrative Agent shall have acknowledged in writing that such change will
not adversely affect the validity, perfection or priority of the Collateral
Agent's security interest in the Collateral, or (2) any reasonable action
requested by the Agents in connection therewith has been completed or taken or
shall be completed contemporaneously with such action (including any action to
continue the perfection of any Liens in favor of the Collateral Agent, on behalf
of Secured Parties, in any Collateral).
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
5.1 Events of Default. The occurrence of any "Event of Default" as defined
in the Credit Agreement shall constitute an Event of Default hereunder.
5.2 Remedies.
(a) Subject to the terms of the Intercreditor Agreement, upon the
occurrence and during the continuation of an Event of Default, the Collateral
Agent may exercise any or all of the following rights and remedies:
(i) those rights and remedies provided in this Security
Agreement, the Credit Agreement, or any other Loan Document; PROVIDED
THAT, this Section 5.2(a) shall not be understood to limit any rights
available to the Agents prior to an Event of Default;
(ii) those rights and remedies available to a secured party
under the UCC (whether or not the UCC applies to the affected Collateral)
or under any other applicable law (including, without limitation, any law
governing the exercise of a bank's right of setoff (except with respect to
trust assets held in a trust account) or bankers' lien) when a debtor is
in default under a security agreement;
15
(iii) give notice of sole control or any other instruction
under any Deposit Account Control Agreement or any other control agreement
with any securities intermediary and take any action therein with respect
to such Collateral, provided, however, that in the event and at such time
such Events of Default are waived, the Collateral Agent agrees to promptly
inform any relevant third party and withdraw such notice of sole control;
(iv) without notice (except as specifically provided in
Section 8.1 or elsewhere herein), demand or advertisement of any kind to
any Grantor or any other Person, enter the premises of any Grantor where
any Collateral is located (through self-help and without judicial process)
to collect, receive, assemble, process, appropriate, sell, lease, assign,
grant an option or options to purchase or otherwise dispose of, deliver,
or realize upon, the Collateral or any part thereof in one or more parcels
at public or private sale or sales (which sales may be adjourned or
continued from time to time with or without notice and may take place at
the applicable Grantor's premises or elsewhere), for cash, on credit or
for future delivery without assumption of any credit risk, and upon such
other terms as the Collateral Agent may deem commercially reasonable; and
(v) concurrently with written notice to any Grantor, transfer
and register in its name or in the name of its nominee the whole or any
part of the Pledged Collateral, to exchange certificates or instruments
representing or evidencing Pledged Collateral for certificates or
instruments of smaller or larger denominations, to exercise the voting and
all other rights as a holder with respect thereto, to collect and receive
all cash dividends, interest, principal and other distributions made
thereon and to otherwise act with respect to the Pledged Collateral as
though the Collateral Agent was the outright owner thereof.
(b) The Collateral Agent, on behalf of the Secured Parties, may
comply with any applicable state or federal law requirements in connection with
a disposition of the Collateral and compliance will not be considered to
adversely affect the commercial reasonableness of any sale of the Collateral.
(c) Subject to the terms of the Intercreditor Agreement, the
Collateral Agent shall have the right upon any such public sale or sales and, to
the extent permitted by law, upon any such private sale or sales, to purchase
for the benefit of the Collateral Agent and the Secured Parties, the whole or
any part of the Collateral so sold, free of any right of equity redemption,
which equity redemption the Grantors hereby expressly release.
(d) Subject to the terms of the Intercreditor Agreement, until the
Collateral Agent is able to effect a sale, lease, or other disposition of
Collateral, the Collateral Agent shall have the right to hold or use Collateral,
or any part thereof, to the extent that it deems appropriate for the purpose of
preserving Collateral or its value, while using commercially reasonable care, or
for any other purpose deemed appropriate by the Collateral Agent. The Collateral
Agent may, if it so elects, seek the appointment of a receiver or keeper to take
possession of Collateral and to enforce any of the Collateral Agent's remedies
(for the benefit of the Collateral Agent and Secured Parties), with respect to
such appointment without prior notice or hearing as to such appointment.
(e) [Reserved]
(f) Notwithstanding the foregoing, neither the Collateral Agent nor
the Secured Parties shall be required to (i) make any demand upon, or pursue or
exhaust any of their rights or remedies against, any Grantor, any other obligor,
guarantor, pledgor or any other Person with respect to the payment of the
Obligations or to pursue or exhaust any of their rights or remedies with respect
to any Collateral therefor or any direct or indirect guarantee thereof, (ii)
marshal the Collateral or any guarantee of the Obligations or to resort to the
Collateral or any such guarantee in any particular order, or (iii) effect a
public sale of any Collateral.
16
(g) The Grantors recognize that the Collateral Agent may be unable
to effect a public sale of any or all the Pledged Collateral and may be
compelled to resort to one or more private sales thereof in accordance with
clause (a) above. The Grantors also acknowledge that any private sale may result
in prices and other terms less favorable to the seller than if such sale were a
public sale and, notwithstanding such circumstances, agree that any such private
sale shall not be deemed to have been made in a commercially unreasonable manner
solely by virtue of such sale being private. The Collateral Agent shall be under
no obligation to delay a sale of any of the Pledged Collateral for the period of
time necessary to permit any Grantor or the issuer of the Pledged Collateral to
register such securities for public sale under the Securities Act of 1933 (the
"Act"), as amended, or under applicable state securities laws, even if the
Grantor and the issuer would agree to do so. Subject to the terms of the
Intercreditor Agreement, without limiting the generality of the foregoing the
Collateral Agent, in its discretion, (x) may, in accordance with applicable
securities laws, proceed to make such private sale notwithstanding that a
registration statement for the purpose of registering such Pledged Collateral or
part thereof could be or shall have been filed under the Act (or similar
statute), (y) may approach and negotiate with a single purchaser to effect such
sale, and (z) may restrict such sale to a purchaser who is an accredited
investor under the Act and who will represent and agree that such purchaser is
purchasing for its own account, for investment and not with a view to the
distribution or sale of such Pledged Collateral or any part thereof. Subject to
the terms of the Intercreditor Agreement, in addition to a private sale as
provided above in this Section 5.2(g), if any of the Pledged Collateral shall
not be freely distributable to the public without registration under the Act (or
similar statute) at the time of any proposed sale pursuant to this Section
5.2(g), then the Collateral Agent shall not be required to effect such
registration or cause the same to be effected but, in Collateral Agent's
discretion (subject only to applicable requirements of law), may require that
any sale hereunder (including a sale at auction) be conducted subject to
restrictions:
(i) as to the financial sophistication and ability of any Person
permitted to bid or purchase at any such sale;
(ii) as to the content of legends to be placed upon any
certificates representing the Pledged Collateral sold in such sale,
including restrictions on future transfer thereof;
(iii) as to the representations required to be made by each
Person bidding or purchasing at such sale relating to that Person's access
to financial information about the entities comprising such Pledged
Collateral and such Person's intentions as to the holding of the Pledged
Collateral so sold for investment for its own account and not with a view
to the distribution thereof; and
(iv) as to such other matters as the Collateral Agent may, in
its discretion, deem necessary or appropriate in order that such sale
(notwithstanding any failure so to register) may be effected in compliance
with the Bankruptcy Code and other laws affecting the enforcement of
creditors' rights and the Act and all applicable state securities laws.
5.3 Grantors' Obligations Upon Default. Subject to the terms of the
Intercreditor Agreement, upon the request of the Collateral Agent after the
occurrence and during the continuation of an Event of Default, each Grantor
will:
(a) assemble and make available to the Collateral Agent the
Collateral and all books and records relating thereto at any place or places
specified by the Collateral Agent, whether at each Grantor's premises or
elsewhere;
(b) permit the Collateral Agent, by the Collateral Agent's
representatives and agents, to enter, occupy and use any premises (during normal
business hours) where all or any part of the Collateral, or the books and
records relating thereto, or both, are located, to take possession of all or any
part of the Collateral or the books and records relating thereto, or both, to
remove all or any part of the Collateral or the books and
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records relating thereto, or both, and to conduct sales of the Collateral,
without any obligation to pay any Grantor for such use and occupancy;
(c) take, or cause an issuer (that is a Subsidiary of Parent) of
Pledged Collateral to take, any and all actions necessary to register or qualify
the Pledged Collateral to enable the Collateral Agent to consummate a public
sale or other disposition of the Pledged Collateral; and
(d) at its own expense, cause the independent certified public
accountants then engaged by any Grantor or any other party reasonably acceptable
to Administrative Agent to prepare and deliver to the Collateral Agent and each
Secured Party, at any time, and from time to time, promptly upon the Collateral
Agent's request, the following reports with respect to any Grantor: (i) a
reconciliation of all Accounts; (ii) an aging of all Accounts; (iii) trial
balances; and (iv) a test verification of such Accounts.
5.4 Grant of Intellectual Property License. Subject to the terms of the
Intercreditor Agreement, for the sole purpose of enabling the Collateral Agent
to exercise the rights and remedies under this Article V and only at such time
as the Collateral Agent shall be lawfully entitled to exercise such rights and
remedies (subject to the terms of the Intercreditor Agreement), each Grantor
hereby (a) grants to the Collateral Agent, for the benefit of the Collateral
Agent and the Secured Parties, an irrevocable, nonexclusive license (exercisable
without payment of royalty or other compensation to any of the Grantors) to use,
license or sublicense any intellectual property rights now owned or hereafter
acquired by any of the Grantors, and wherever the same may be located, and
including in such license access to all media in which any of the licensed items
may be recorded or stored and to all computer software and programs used for the
compilation or printout thereof and (b) irrevocably agrees that the Collateral
Agent may sell any of the Inventory of any Grantor directly to any person,
including without limitation persons who have previously purchased the Grantors'
Inventory from the Grantors and in connection with any such sale or other
enforcement of the Collateral Agent's rights under this Security Agreement, may
sell Inventory which bears any Trademark owned by or licensed to any of the
Grantors and any Inventory that is covered by any Copyright owned by or licensed
to any of the Grantors and the Collateral Agent may finish any work in process
and affix any Trademark owned by or licensed to any of the Grantors and sell
such Inventory as provided herein.
ARTICLE VI
ACCOUNT VERIFICATION; ATTORNEY IN FACT; PROXY
6.1 Account Verification. Subject to the terms of the Intercreditor
Agreement, upon the occurrence and during the continuation of an Event of
Default, either Agent may at any time, in such Agent's own name, in the name of
a nominee of such Agent, or in the name of any Grantor communicate (by mail,
telephone, facsimile or otherwise) with the Account Debtors of the Grantors,
parties to contracts with the Grantors and obligors in respect of Instruments of
the Grantors to verify with such Persons, to such Agent's reasonable
satisfaction, the existence, amount, terms of, and any other matter relating to,
Accounts, Instruments, Chattel Paper, payment intangibles and/or other
Receivables.
6.2 Authorization for Secured Party to Take Certain Action.
(a) Subject to the terms of the Intercreditor Agreement, each
Grantor irrevocably authorizes the Collateral Agent at any time and from time to
time in the sole discretion of the Collateral Agent and appoints the Collateral
Agent as its attorney in fact (i) to execute on behalf of the Grantor as debtor
and to file financing statements necessary in the Collateral Agent's sole
discretion to perfect and to maintain the perfection and priority of the
Collateral Agent's security interest in the Collateral, (ii) following the
occurrence and during the continuation of an Event of Default, to endorse and
collect any cash proceeds of the Collateral, (iii) to file a carbon,
photographic or other reproduction of this Security Agreement or any financing
statement with respect to the Collateral as a financing statement and to file
any other financing statement or amendment of a financing statement (which does
not add new collateral or add a debtor) in such offices as the Collateral Agent
in its sole
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discretion deems necessary to perfect and to maintain the perfection and
priority of the Collateral Agent's security interest in the Collateral, (iv) to
contact and enter into one or more agreements with the issuers of uncertificated
securities which are Pledged Collateral or with securities intermediaries
holding Pledged Collateral as may be necessary to give the Collateral Agent
Control over such Pledged Collateral (other than Excluded Property); provided
that Collateral Agent agrees to consult with the applicable Grantor prior to
contacting such issuer if (a) no Event of Default has occurred and is continuing
and (b) such issuer is not a Subsidiary of Parent, (v) to apply the proceeds of
any Collateral received by the Collateral Agent to the Obligations as provided
in Section 7.3, (vi) following the occurrence and during the continuation of an
Event of Default and as otherwise permitted under the Credit Agreement, to
discharge past due taxes, assessments, charges, fees or Liens on the Collateral
(except for such Liens as are specifically permitted hereunder), (vii) following
the occurrence and during the continuation of an Event of Default, to contact
Account Debtors for any reason, (viii) following the occurrence and during the
continuation of an Event of Default, to demand payment or enforce payment of the
Receivables in the name of the Collateral Agent or the Grantor, (ix) to endorse
any and all checks, drafts, and other instruments for the payment of money
relating to the Receivables, (x) following the occurrence and during the
continuation of an Event of Default, to sign the Grantor's name on any invoice
or xxxx of lading relating to the Receivables, drafts against any Account Debtor
of the Grantor, assignments and verifications of Receivables, (xi) following the
occurrence and during the continuation of an Event of Default, to exercise all
of the Grantor's rights and remedies with respect to the collection of the
Receivables and any other Collateral, (xii) following the occurrence and during
the continuation of an Event of Default, to settle, adjust, compromise, extend
or renew the Receivables, (xiii) following the occurrence and during the
continuation of an Event of Default, to settle, adjust or compromise any legal
proceedings brought to collect Receivables, (xiv) following the occurrence and
during the continuation of an Event of Default, to prepare, file and sign the
Grantor's name on a proof of claim in bankruptcy or similar document against any
Account Debtor of the Grantor, (xv) following the occurrence and during the
continuation of an Event of Default, to prepare, file and sign the Grantor's
name on any notice of Lien, assignment or satisfaction of Lien or similar
document in connection with the Receivables, (xvi) following the occurrence and
during the continuation of an Event of Default, to change the address for
delivery of mail addressed to the Grantor to such address as the Collateral
Agent may designate and to receive, open and dispose of all mail addressed to
the Grantor, and (xvii) after the occurrence and during the continuation of an
Event of Default in the Collateral Agent's discretion, to do all other acts and
execute any instruments consistent with or necessary to carry out this Security
Agreement or any other Loan Document; and the Grantor agrees to reimburse the
Collateral Agent within ten (10) Business Days on demand for any reasonable
payment made or any expense incurred by the Collateral Agent in connection with
any of the foregoing; provided that, this authorization shall not relieve any
Grantor of any of its obligations under this Security Agreement or under the
Credit Agreement.
(b) All acts of said attorney or designee in accordance with the
terms hereof are hereby ratified and approved. The powers conferred on the
Collateral Agent, for the benefit of the Collateral Agent and Secured Parties,
under this Section 6.2 are solely to protect the Collateral Agent's interests in
the Collateral and shall not impose any duty upon the Collateral Agent or any
Secured Party to exercise any such powers.
6.3 PROXY. THE GRANTORS HEREBY IRREVOCABLY CONSTITUTE AND APPOINT THE
COLLATERAL AGENT AS THE PROXY AND ATTORNEY-IN-FACT (AS SET FORTH IN SECTION 6.2
ABOVE) OF THE GRANTORS WITH RESPECT TO THE PLEDGED COLLATERAL (IMMEDIATELY
EFFECTIVE FOLLOWING THE OCCURRENCE OF AN EVENT OF DEFAULT), INCLUDING THE RIGHT
TO VOTE SUCH PLEDGED COLLATERAL, WITH FULL POWER OF SUBSTITUTION TO DO SO. IN
ADDITION TO THE RIGHT TO VOTE ANY SUCH PLEDGED COLLATERAL, THE APPOINTMENT OF
THE COLLATERAL AGENT AS PROXY AND ATTORNEY-IN-FACT SHALL INCLUDE THE RIGHT TO
EXERCISE ALL OTHER RIGHTS, POWERS, PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF
SUCH PLEDGED COLLATERAL WOULD BE ENTITLED (INCLUDING GIVING OR WITHHOLDING
WRITTEN CONSENTS OF SHAREHOLDERS, CALLING SPECIAL MEETINGS OF SHAREHOLDERS AND
VOTING AT SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND
WITHOUT THE NECESSITY OF ANY ACTION
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(INCLUDING ANY TRANSFER OF ANY SUCH PLEDGED COLLATERAL ON THE RECORD BOOKS OF
THE ISSUER THEREOF) BY ANY PERSON (INCLUDING THE ISSUER OF SUCH PLEDGED
COLLATERAL OR ANY OFFICER OR THE COLLATERAL AGENT THEREOF), UPON THE OCCURRENCE
AND DURING THE CONTINUATION OF AN EVENT OF DEFAULT.
6.4 NATURE OF APPOINTMENT; LIMITATION OF DUTY. THE APPOINTMENT OF THE
COLLATERAL AGENT AS PROXY AND ATTORNEY-IN-FACT IN THIS ARTICLE VI IS COUPLED
WITH AN INTEREST AND SHALL BE IRREVOCABLE UNTIL THE DATE ON WHICH THIS SECURITY
AGREEMENT IS TERMINATED IN ACCORDANCE WITH SECTION 8.14. NOTWITHSTANDING
ANYTHING CONTAINED HEREIN, NEITHER THE COLLATERAL AGENT, NOR ANY SECURED PARTY,
NOR ANY OF THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS
OR REPRESENTATIVES SHALL HAVE ANY DUTY TO EXERCISE ANY RIGHT OR POWER GRANTED
HEREUNDER OR OTHERWISE OR TO PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY
FAILURE TO DO SO OR FOR ANY DELAY IN DOING SO, EXCEPT IN RESPECT OF DAMAGES
ATTRIBUTABLE TO THEIR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; PROVIDED THAT,
IN NO EVENT SHALL THEY BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, INDIRECT OR
CONSEQUENTIAL DAMAGES.
ARTICLE VII
COLLECTION AND APPLICATION OF COLLATERAL PROCEEDS;
DEPOSIT ACCOUNTS
7.1 Collection of Receivables.
(a) On or before the Closing Date, each Grantor shall (a) execute
and deliver to the Collateral Agent Deposit Account Control Agreements for each
Deposit Account maintained by the Grantors into which all cash, checks or other
similar payments relating to or constituting payments made in respect of
Receivables will be deposited (a "Collateral Deposit Account"), which Collateral
Deposit Accounts are identified as such on Exhibit B, and (b) establish lock box
service (the "Lock Boxes") with the bank(s) set forth in Exhibit B, which lock
boxes shall be subject to irrevocable lockbox agreements in the form provided by
or otherwise reasonably acceptable to the Agents and shall be accompanied by an
acknowledgment by the bank where the Lock Box is located of the Lien of the
Collateral Agent granted hereunder and of irrevocable instructions to wire all
amounts collected therein to the Collection Account (a "Lock Box Agreement").
After the Closing Date, the Grantors will comply with the terms of Section 7.2.
(b) Each Grantor shall direct all of its Account Debtors to forward
payments directly to Lock Boxes subject to Lock Box Agreements. The Lock Box
Agreement shall require all deposits to be swept daily to a Collateral Deposit
Account and shall require Collateral Agent's consent to any modification to such
Lock Box Agreements. Subject to the terms of the Intercreditor Agreement,
following the occurrence and during the continuation of an Event of Default,
Collateral Agent shall be permitted to deliver a notice to the depository bank
directing them to take all future instructions from Collateral Agent and not the
applicable Grantor; provided that, following the waiver of such Event of
Default, Collateral Agent shall promptly provide notice to such depository bank
that it can resume following instructions from the applicable Grantor. If
notwithstanding the foregoing instructions, any Grantor receives any proceeds of
any Receivables, the Grantor shall receive such payments as the Collateral
Agent's trustee, and shall immediately deposit all cash, checks or other similar
payments related to or constituting payments made in respect of Receivables
received by it to a Collateral Deposit Account. The Collateral Agent shall hold
and apply funds received following the occurrence and during the continuation of
an Event of Default from a Collateral Deposit Account as provided by the terms
of Section 7.3.
7.2 Covenant Regarding New Deposit Accounts; Lock Boxes. Before opening or
replacing any Collateral Deposit Account, other Deposit Account (other than
trust accounts containing trust assets, payroll
20
accounts or xxxxx cash accounts to the extent the aggregate of deposits in all
xxxxx cash accounts do not exceed $125,000), or establishing a new Lock Box, the
Grantors shall (a) provide notice to the Agents and (b) cause each bank or
financial institution in which it seeks to open (i) such Deposit Account, to
enter into a Deposit Account Control Agreement with the Collateral Agent in
order to give the Collateral Agent Control of such Deposit Account, or (ii) a
Lock Box, to enter into a Lock Box Agreement with the Collateral Agent in order
to give the Collateral Agent Control of the Lock Box. In the case of Deposit
Accounts or Lock Boxes maintained with Secured Parties, the terms of such letter
shall be subject to the provisions of the Credit Agreement regarding setoffs.
7.3 Application of Proceeds. Subject to the terms of the Intercreditor
Agreement, at such intervals as may be agreed upon by the Grantor and
Administrative Agent, or, if an Event of Default shall have occurred and be
continuing, at any time at Administrative Agent's election, the Administrative
Agent may apply all or any part of Proceeds constituting Collateral, whether or
not held in any Collateral Deposit Account, and any proceeds of the guarantee
set forth in Section 9 of the Credit Agreement, in payment of the Obligations in
the following order:
First, to pay incurred and unpaid fees and expenses of the Agents
under the Loan Documents;
Second, to the Administrative Agent, for application by it towards
payment of amounts then due and owing and remaining unpaid in respect of
the Obligations (other than the principal of the Loans), pro rata among
the Lenders according to the amounts of the Obligations then due and owing
and remaining unpaid to the Lenders;
Third, to the Administrative Agent, for application by it towards
payment of amounts then due and owing and remaining unpaid in respect of
the Obligations (only with respect to the principal of the Loans), pro
rata among the Lenders according to the amounts of the Obligations then
due and owing and remaining unpaid to the Lenders;
Fourth, to the Administrative Agent, for application by it towards
prepayment of the Obligations, pro rata among the Lenders according to the
amounts of the Obligations then held by the Lenders; and
Fifth, any balance remaining after the Obligations shall have been
paid in full (other than Unliquidated Obligations), and shall be paid over
to the Grantors or to whomsoever may be lawfully entitled to receive the
same.
The Grantors shall remain liable for any deficiency if the proceeds of any sale
or disposition of the Collateral are insufficient to pay all Obligations,
including any reasonable attorneys' fees and other out-of-pocket expenses
incurred by Collateral Agent or any Secured Party to collect such deficiency.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Waivers. To the extent permitted by applicable law, the Grantors
hereby waive notice of the time and place of any public sale or the time after
which any private sale or other disposition of all or any part of the Collateral
may be made. To the extent such notice may not be waived under applicable law,
any notice made shall be deemed reasonable if sent to the applicable Grantor,
addressed as set forth in Article IX, at least ten days prior to (i) the date of
any such public sale or (ii) the time after which any such private sale or other
disposition may be made. To the maximum extent permitted by applicable law, the
Grantors waive all claims, damages, and demands against the Collateral Agent or
any Secured Party arising out of the repossession, retention or sale of the
Collateral, except such as arise solely out of the gross negligence or willful
misconduct of the Collateral Agent or such Secured Party. To the extent it may
lawfully do so, each Grantor absolutely and
21
irrevocably waives and relinquishes the benefit and advantage of, and covenants
not to assert against the Collateral Agent or any Secured Party, any valuation,
stay, appraisal, extension, moratorium, redemption or similar laws and any and
all rights or defenses it may have as a surety now or hereafter existing which,
but for this provision, might be applicable to the sale of any Collateral made
under the judgment, order or decree of any court, or privately under the power
of sale conferred by this Security Agreement, or otherwise. Except as otherwise
specifically provided herein, the Grantors hereby waive presentment, demand,
protest or any notice (to the maximum extent permitted by applicable law) of any
kind in connection with this Security Agreement or any Collateral.
8.2 Limitation on Collateral Agent's and Secured Parties' Duty with
Respect to the Collateral. Except as required by applicable law, the Collateral
Agent shall have no obligation to clean-up or otherwise prepare the Collateral
for sale. The Collateral Agent and each Secured Party shall use reasonable care
with respect to the Collateral in its possession or under its control. Neither
the Collateral Agent nor any Secured Party shall have any other duty as to any
Collateral in its possession or control or in the possession or control of any
agent or nominee of the Collateral Agent or such Secured Party or any income
thereon or as to the preservation of rights against prior parties or any other
rights pertaining thereto. To the extent that applicable law imposes duties on
the Collateral Agent to exercise remedies in a commercially reasonable manner,
the Grantors acknowledge and agree that it is commercially reasonable for the
Collateral Agent (i) to fail to incur expenses deemed significant by the
Collateral Agent to prepare Collateral for disposition or otherwise to transform
raw material or work in process into finished goods or other finished products
for disposition, (ii) to fail to obtain third party consents for access to
Collateral to be disposed of, or to obtain or, if not required by other law, to
fail to obtain governmental or third party consents for the collection or
disposition of Collateral to be collected or disposed of, (iii) to fail to
exercise collection remedies against Account Debtors or other Persons obligated
on Collateral or to remove Liens on or any adverse claims against Collateral,
(iv) to exercise collection remedies against Account Debtors and other Persons
obligated on Collateral directly or through the use of collection agencies and
other collection specialists, (v) to advertise dispositions of Collateral
through publications or media of general circulation, whether or not the
Collateral is of a specialized nature, (vi) to contact other Persons, whether or
not in the same business as any of the Grantors, for expressions of interest in
acquiring all or any portion of such Collateral, (vii) to hire one or more
professional auctioneers to assist in the disposition of Collateral, whether or
not the Collateral is of a specialized nature, (viii) to dispose of Collateral
by utilizing internet sites that provide for the auction of assets of the types
included in the Collateral or that have the reasonable capacity of doing so, or
that match buyers and sellers of assets, (ix) to dispose of assets in wholesale
rather than retail markets, (x) to disclaim disposition warranties, such as
title, possession or quiet enjoyment, (xi) to purchase insurance or credit
enhancements to insure the Collateral Agent against risks of loss, collection or
disposition of Collateral or to provide to the Collateral Agent a guaranteed
return from the collection or disposition of Collateral, or (xii) to the extent
deemed appropriate by the Collateral Agent, to obtain the services of other
brokers, investment bankers, consultants and other professionals to assist the
Collateral Agent in the collection or disposition of any of the Collateral. The
Grantors acknowledge that the purpose of this Section 8.2 is to provide
non-exhaustive indications of what actions or omissions by the Collateral Agent
would be commercially reasonable in the Collateral Agent's exercise of remedies
against the Collateral and that other actions or omissions by the Collateral
Agent shall not be deemed commercially unreasonable solely on account of not
being indicated in this Section 8.2. Without limitation upon the foregoing,
nothing contained in this Section 8.2 shall be construed to grant any rights to
the Grantors or to impose any duties on the Collateral Agent that would not have
been granted or imposed by this Security Agreement or by applicable law in the
absence of this Section 8.2.
8.3 Compromises and Collection of Collateral. The Grantors and the
Collateral Agent recognize that setoffs, counterclaims, defenses and other
claims may be asserted by obligors with respect to certain of the Receivables,
that certain of the Receivables may be or become uncollectible in whole or in
part and that the expense and probability of success in litigating a disputed
Receivable may exceed the amount that reasonably may be expected to be recovered
with respect to a Receivable. In view of the foregoing, the Grantors agree that
the Collateral Agent may at any time and from time to time, subject to the terms
of the Intercreditor Agreement,
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if an Event of Default has occurred and is continuing, compromise with the
obligor on any Receivable, accept in full payment of any Receivable such amount
as the Collateral Agent in its sole discretion shall determine or abandon any
Receivable, and any such action by the Collateral Agent shall be commercially
reasonable so long as the Collateral Agent acts in good faith based on
information known to it at the time it takes any such action.
8.4 Secured Party Performance of Debtor Obligations. Without having any
obligation to do so, either Agent may perform or pay any obligation which any
Grantor agreed to perform or pay in this Security Agreement to the extent
Grantors fail to do so and the Grantors shall reimburse such Agent for any
amounts paid by such Agent pursuant to this Section 8.4. The Grantors'
obligation to reimburse the Collateral Agent pursuant to the preceding sentence
shall be an Obligation payable promptly and in any event within ten (10) days
after written demand therefor.
8.5 Specific Performance of Certain Covenants. Each Grantor acknowledges
and agrees that a breach of any of the covenants contained in Sections 4.4, 4.5,
4.6, 4.7, 4.8, 4.9, 4.10, 4.12, 4.13, 4.14, 4.15, 4.16, 5.3, or 8.7 or in
Article VII will cause irreparable injury to the Collateral Agent and the
Secured Parties, that the Collateral Agent and Secured Parties have no adequate
remedy at law in respect of such breaches and therefore agrees, without limiting
the right of the Collateral Agent or the Secured Parties to seek and obtain
specific performance of other obligations of the Grantors contained in this
Security Agreement, that the covenants of the Grantors contained in the Sections
referred to in this Section 8.5 shall be specifically enforceable against the
Grantors.
8.6 Dispositions Not Authorized. No Grantor is authorized to sell or
otherwise dispose of the Collateral except as set forth in Section 5.9 of the
Credit Agreement and notwithstanding any course of dealing between any Grantor
and the Collateral Agent or other conduct of the Collateral Agent, no
authorization to sell or otherwise dispose of the Collateral (except as set
forth in Section 5.9 of the Credit Agreement) shall be binding upon the
Collateral Agent or the Secured Parties unless such authorization is in writing
signed by the Collateral Agent with the consent or at the direction of the
Required Secured Parties.
8.7 No Waiver; Amendments; Cumulative Remedies. No delay or omission of
the Collateral Agent or any Secured Party to exercise any right or remedy
granted under this Security Agreement shall impair such right or remedy or be
construed to be a waiver of any Default or an acquiescence therein, and any
single or partial exercise of any such right or remedy shall not preclude any
other or further exercise thereof or the exercise of any other right or remedy.
No waiver, amendment or other variation of the terms, conditions or provisions
of this Security Agreement whatsoever shall be valid unless in writing signed by
the Collateral Agent with the concurrence or at the direction of the Secured
Parties required under Section 8.2 of the Credit Agreement and then only to the
extent in such writing specifically set forth. All rights and remedies contained
in this Security Agreement or by law afforded shall be cumulative and all shall
be available to the Collateral Agent and the Secured Parties until the
Obligations have been paid in full.
8.8 Limitation by Law; Severability of Provisions. All rights, remedies
and powers provided in this Security Agreement may be exercised only to the
extent that the exercise thereof does not violate any applicable provision of
law, and all the provisions of this Security Agreement are intended to be
subject to all applicable mandatory provisions of law that may be controlling
and to be limited to the extent necessary so that they shall not render this
Security Agreement invalid, unenforceable or not entitled to be recorded or
registered, in whole or in part. Any provision in any this Security Agreement
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of this Security Agreement are
declared to be severable.
8.9 Reinstatement. This Security Agreement shall remain in full force and
effect and continue to be effective should any petition be filed by or against
any Grantor for liquidation or reorganization, should any Grantor become
insolvent or make an assignment for the benefit of any creditor or creditors or
should a receiver
23
or trustee be appointed for all or any significant part of any Grantor's assets,
and shall continue to be effective or be reinstated, as the case may be, if at
any time payment and performance of the Obligations, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee of the Obligations, whether as a "voidable
preference," "fraudulent conveyance," or otherwise, all as though such payment
or performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Obligations shall be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
8.10 Benefit of Agreement. The terms and provisions of this Security
Agreement shall be binding upon and inure to the benefit of the Grantors, the
Collateral Agent and the Secured Parties and their respective successors and
permitted assigns (including all persons who become bound as a debtor to this
Security Agreement), except that the Grantors shall not have the right to assign
their rights or delegate their obligations under this Security Agreement or any
interest herein, without the prior written consent of the Collateral Agent. No
sales of participations, assignments, transfers, or other dispositions of any
agreement governing the Obligations or any portion thereof or interest therein
shall in any manner impair the Lien granted to the Collateral Agent, for the
benefit of the Collateral Agent and the Secured Parties, hereunder.
8.11 Survival of Representations. All representations and warranties of
the Grantors contained in this Security Agreement shall survive the execution
and delivery of this Security Agreement.
8.12 Taxes and Expenses. Subject to the terms of the Credit Agreement, any
taxes (including income taxes) payable or ruled payable by Federal or State
authority in respect of this Security Agreement shall be paid by the Grantors,
together with interest and penalties, if any. Subject to Section 8.5 of the
Credit Agreement, the Grantors shall reimburse the Collateral Agent for any and
all reasonable out-of-pocket expenses and charges (including reasonable
attorneys', auditors' and accountants' fees) paid or incurred by the Collateral
Agent in connection with the preparation, execution, delivery, administration,
collection and enforcement of this Security Agreement and in the audit,
analysis, administration, collection, preservation or sale of the Collateral
(including the expenses and charges associated with any periodic or special
audit of the Collateral undertaken in accordance with the terms of the Loan
Documents). Subject to Section 8.5 of the Credit Agreement, any and all costs
and expenses incurred by the Grantors in the performance of actions required
pursuant to the terms hereof shall be borne solely by the Grantors.
8.13 Headings. The title of and section headings in this Security
Agreement are for convenience of reference only, and shall not govern the
interpretation of any of the terms and provisions of this Security Agreement.
8.14 Termination and Release.
(a) This Security Agreement shall continue in effect
(notwithstanding the fact that from time to time there may be no Obligations
outstanding) until (i) the Credit Agreement has terminated pursuant to its
express terms and (ii) all of the Obligations other than Unliquidated
Obligations (as defined in the First Lien Credit Agreement) for which a claim
has not yet been asserted, have been paid and performed in full.
(b) The Pledged Collateral shall be released from the Lien of this
Agreement if such Pledged Collateral is disposed of in a disposition permitted
pursuant to the Credit Agreement. Upon termination hereof or any release of
Pledged Collateral in accordance with the provisions of the Credit Agreement,
the Collateral Agent shall, upon the request and at the sole cost and expense of
the Grantors, assign, transfer and deliver to Grantor, against receipt and
without recourse to or warranty by the Collateral Agent except as to the fact
that the Collateral Agent has not encumbered the released assets, such of the
Pledged Collateral to be released (in the case of a release) as may be in
possession of the Collateral Agent and as shall not have been sold or otherwise
applied pursuant to the terms hereof, and, with respect to any other Pledged
Collateral, proper
24
documents and instruments (including UCC-3 termination statements or releases)
acknowledging the termination hereof or the release of such Pledged Collateral,
as the case may be.
8.15 Entire Agreement. This Security Agreement and the other Loan
Documents embody the entire agreement and understanding between the Grantors and
the Collateral Agent relating to the Collateral and supersedes all prior
agreements and understandings between any Grantor and the Collateral Agent
relating to the Collateral. In the event of any conflict between the provisions
set forth in this Security Agreement and those set forth in the Credit
Agreement, the provisions of the Credit Agreement shall supersede and control
the terms and provisions of this Security Agreement.
8.16 CHOICE OF LAW. THIS SECURITY AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS)
OF THE STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS.
8.17 CONSENT TO JURISDICTION. THE GRANTORS HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY U.S. FEDERAL OR NEW YORK STATE COURT
SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS SECURITY AGREEMENT OR ANY OTHER LOAN DOCUMENT AND EACH PARTY
HERETO HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES
ANY OBJECTION THEY MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE COLLATERAL AGENT
OR ANY SECURED PARTY TO BRING PROCEEDINGS AGAINST ANY GRANTOR IN THE COURTS OF
ANY OTHER JURISDICTION.
8.18 WAIVER OF JURY TRIAL. THE GRANTORS, THE COLLATERAL AGENT AND EACH
SECURED PARTY HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS
SECURITY AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.
8.19 Indemnity. The Grantors hereby agree to indemnify the Collateral
Agent and the Secured Parties, and their respective successors, permitted
assigns, agents and employees, from and against any and all liabilities,
damages, penalties, suits, costs, and expenses of any kind and nature
(including, without limitation, all reasonable expenses of litigation or
preparation therefor whether or not the Collateral Agent or any Secured Party is
a party thereto) imposed on, incurred by or asserted against the Collateral
Agent or the Secured Parties, or their respective successors, assigns, agents
and employees, in any way relating to or arising out of this Security Agreement,
or the manufacture, purchase, acceptance, rejection, ownership, delivery, lease,
possession, use, operation, condition, sale, return or other disposition of any
Collateral (including, without limitation, latent and other defects, whether or
not discoverable by the Collateral Agent or the Secured Parties or any Grantor,
and any claim for Patent, Trademark or Copyright infringement); provided that
the Grantors shall not be obligated to indemnify the Collateral Agent or the
Secured Parties, or their respective successors, assigns, agents and employees
to the extent that such liabilities, damages, penalties, suits, costs, and
expenses of any kind and nature resulted from the gross negligence or willful
misconduct of the Collateral Agent or the Secured Parties, or their respective
successors, assigns, agents and employees.
8.20 Counterparts. This Security Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Security
25
Agreement by signing any such counterpart. Delivery of an executed counterpart
of a signature page of this Security Agreement by facsimile shall be effective
as delivery of a manually executed counterpart of this Security Agreement.
ARTICLE IX
NOTICES
9.1 Sending Notices. Any notice required or permitted to be given under
this Security Agreement shall be sent by United States mail, telecopier,
personal delivery or nationally established overnight courier service, and shall
be deemed received (a) when received, if sent by hand or overnight courier
service, or mailed by certified or registered mail notices or (b) when sent, if
sent by telecopier (except that, if not given during normal business hours for
the recipient, shall be deemed to have been given at the opening of business on
the next Business Day for the recipient), in each case addressed to the Grantors
at the applicable address set forth on Exhibit A as their principal place of
business, and to the Collateral Agent and the Secured Parties at the addresses
set forth in accordance with Section 9.01 of the Credit Agreement.
9.2 Change in Address for Notices. Each of the Grantors, the Collateral
Agent and the Secured Parties may change the address for service of notice upon
it by a notice in writing to the other parties.
ARTICLE X
THE COLLATERAL AGENT
Wilmington Trust Company has been appointed Collateral Agent for the
Secured Parties hereunder pursuant to Section 7 of the Credit Agreement. It is
expressly understood and agreed by the parties to this Security Agreement that
any authority conferred upon the Collateral Agent hereunder is subject to the
terms of the delegation of authority made by the Lenders to the Collateral Agent
pursuant to the Credit Agreement, and that the Collateral Agent has agreed to
act (and any successor Collateral Agent shall act) as such hereunder only on the
express conditions contained in such Section 7. Any successor Collateral Agent
appointed in accordance with Section 7 of the Credit Agreement shall be entitled
to all the rights, interests and benefits of the Collateral Agent hereunder.
ARTICLE XI
INTERCREDITOR AGREEMENT
Notwithstanding anything herein to the contrary, the lien and security
interest granted to the Secured Parties pursuant to this Agreement and the
exercise of any right or remedy by either Agent or any Secured Party hereunder
are expressly subject to the provisions of the Intercreditor Agreement.
ARTICLE XII
POST CLOSING MATTERS
Notwithstanding anything herein to the contrary, the obligations of the
Grantors set forth in this Security Agreement shall be subject to Section 8.18
of the Credit Agreement.
[Signature Page Follows]
26
IN WITNESS WHEREOF, each Grantor and the Collateral Agent have executed
this Security Agreement as of the date first above written.
DURA AUTOMOTIVE SYSTEMS, INC.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
DURA OPERATING CORP.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
AUTOMOTIVE AVIATION PARTNERS, LLC
BY: DURA AIRCRAFT OPERATING COMPANY,
LLC, ITS MANAGING MEMBER
BY: DURA OPERATING CORP., ITS SOLE
MEMBER
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
ADWEST ELECTRONICS INC.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
XXXXXX AUTOMOTIVE, INC.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
DURA CABLES NORTH LLC
BY: XXXXXX AUTOMOTIVE, INC., ITS SOLE
MEMBER
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
DURA CABLES SOUTH LLC
BY: XXXXXX AUTOMOTIVE, INC., ITS SOLE
MEMBER
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
DURA G.P.
BY: DURA OPERATING CORP., ITS MANAGING
GENERAL PARTNER
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
DURA SPICEBRIGHT, INC.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
XXXX I MOLDED PLASTICS OF TENNESSEE,
INC.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
DURA GLOBAL TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
DURA AUTOMOTIVE SYSTEMS OF INDIANA,
INC.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
DURA AIRCRAFT OPERATING COMPANY, LLC
BY: DURA OPERATING CORP., ITS SOLE
MEMBER
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
DURA BRAKE SYSTEMS, L.L.C.
BY: DURA OPERATING CORP., ITS SOLE
MEMBER
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
DURA SHIFTER L.L.C.
BY: DURA OPERATING CORP., ITS SOLE
MEMBER
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
DURA SERVICES L.L.C.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title: Manager
[Signature Page to 2nd Priority Pledge and Security Agreement]
DURA MANCELONA L.L.C.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title: Manager
DURA FREMONT L.L.C.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title: Manager
DURA GLADWIN L.L.C.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title: Manager
[Signature Page to 2nd Priority Pledge and Security Agreement]
DURA AUTOMOTIVE SYSTEMS CABLE
OPERATIONS, INC.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
UNIVERSAL TOOL & STAMPING COMPANY,
INC.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
TRIDENT AUTOMOTIVE, L.P.
BY: TRIDENT AUTOMOTIVE LTD., ITS
GENERAL PARTNER
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
TRIDENT AUTOMOTIVE, L.L.C.
BY: TRIDENT AUTOMOTIVE CANADA CO., ITS
MANAGING MEMBER
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
XXXXXX MOBILE PRODUCTS, INC.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
CREATION GROUP HOLDINGS, INC.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
XXXXXXXX, INC.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
CREATION GROUP, INC.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
CREATION GROUP TRANSPORTATION, INC.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
XXXXXXXX, LLC
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name:
Title:
[Signature Page to 2nd Priority Pledge and Security Agreement]
