Exhibit 10.32
CREDIT AGREEMENT
Dated as of November 20, 1998
among
POLYVISION CORPORATION,
POSTERLOID CORPORATION AND GREENSTEEL, INC.,
AS BORROWERS,
THE BANKS, FINANCIAL INSTITUTIONS AND
OTHER INSTITUTIONAL LENDERS NAMED HEREIN,
AS INITIAL LENDERS,
FLEET NATIONAL BANK,
as European Letter of Credit Bank,
as Initial Issuing Bank,
as Swing Line Bank
and
AS ADMINISTRATIVE AGENT
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS. . . . . . . . . . . . . . . . . . . . 2
SECTION 1.1 Certain Defined Terms. . . . . . . . . . . . . . . . . . . 2
SECTION 1.2 Computation of Time Periods. . . . . . . . . . . . . . . . 34
SECTION 1.3 Accounting Terms; Foreign Currency . . . . . . . . . . . . 34
SECTION 1.4 Other Definitional Provisions. . . . . . . . . . . . . . . 34
ARTICLE 2
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT 35
SECTION 2.1 The Advances . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 2.2 Making the Advances. . . . . . . . . . . . . . . . . . . . 37
SECTION 2.3 Issuance of and Drawings and Reimbursement
Under Letters of Credit . . . . . . . . . . . . . . . . 40
SECTION 2.4 Repayment of Advances. . . . . . . . . . . . . . . . . . . 41
SECTION 2.5 Reduction or Termination of the Commitments. . . . . . . . 43
SECTION 2.6 Prepayments. . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 2.7 Interest . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 2.8 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 2.9 Conversion of Advances . . . . . . . . . . . . . . . . . . 50
SECTION 2.10 Increased Costs, Etc. . . . . . . . . . . . . . . . . . . 51
SECTION 2.11 Payments and Computations . . . . . . . . . . . . . . . . 53
SECTION 2.12 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 2.13 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . 56
SECTION 2.14 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . 57
SECTION 2.15 Defaulting Lenders. . . . . . . . . . . . . . . . . . . . 57
SECTION 2.16 Domicile of Loans. . . . . . . . . . . . . . . . . . . . 59
SECTION 2.17 European Letters of Credit. . . . . . . . . . . . . . . . 59
SECTION 2.18 Joint and Several Liability of Borrowers. . . . . . . . . 61
ARTICLE 3
CONDITIONS OF LENDING . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 3.1 Conditions Precedent to Initial Extension of Credit. . . . 63
SECTION 3.2 Conditions Precedent to Each Borrowing and Issuance. . . . 71
SECTION 3.3 Conditions Precedent to Issuance of European
Letters of Credit. . . . . . . . . . . . . . . . . . . . . 72
SECTION 3.4 Determinations Under Section 3.1 . . . . . . . . . . . . . 73
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS . . . . . . . . . . . . 73
SECTION 4.1 Corporate Existence. . . . . . . . . . . . . . . . . . . . 73
SECTION 4.2 Organization and Subsidiaries. . . . . . . . . . . . . . . 73
SECTION 4.3 Corporate Power, Authorization . . . . . . . . . . . . . . 74
SECTION 4.4 Governmental and Other Authorizations, Approvals . . . . . 74
SECTION 4.5 Due Execution, Validity, Enforceability. . . . . . . . . . 74
SECTION 4.6 Financial Statements . . . . . . . . . . . . . . . . . . . 75
SECTION 4.7 Pro Forma Financial Statements; Projections. . . . . . . . 75
SECTION 4.8 Accurate Information . . . . . . . . . . . . . . . . . . . 75
SECTION 4.9 Litigation . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 4.10 Regulation U . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 4.11 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 4.12 Casualty. . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 4.13 Environmental Matters. . . . . . . . . . . . . . . . . . . 76
SECTION 4.14 Burdensome Documents . . . . . . . . . . . . . . . . . . . 78
SECTION 4.15 Priority of Liens. . . . . . . . . . . . . . . . . . . . . 78
SECTION 4.16 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 4.17 Compliance with Securities Laws . . . . . . . . . . . . . 79
SECTION 4.18 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 4.19 Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 4.20 No Defaults, Compliance with Laws. . . . . . . . . . . . . 79
SECTION 4.21 Owned Real Property. . . . . . . . . . . . . . . . . . . . 80
SECTION 4.22 Leased Real Property . . . . . . . . . . . . . . . . . . . 80
SECTION 4.23 Material Contracts . . . . . . . . . . . . . . . . . . . . 80
SECTION 4.24 Investments. . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 4.25 Intellectual Property. . . . . . . . . . . . . . . . . . . 80
SECTION 4.26 AIG Acquisition Documents. . . . . . . . . . . . . . . . . 81
SECTION 4.27 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 4.28 Government Consents for Conduct of Business. . . . . . . . 81
SECTION 4.29 Mergers. . . . . . . . . . . . . . . . . . . . . . . . . . 82
ARTICLE 5
AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 5.1 Compliance with Law. . . . . . . . . . . . . . . . . . . . 82
SECTION 5.2 Payment of Taxes, Etc. . . . . . . . . . . . . . . . . . . 82
SECTION 5.3 Compliance with Environmental Laws . . . . . . . . . . . . 83
SECTION 5.4 Preparation of Environmental Reports . . . . . . . . . . . 83
SECTION 5.5 Maintenance of Insurance . . . . . . . . . . . . . . . . . 84
SECTION 5.6 Preservation of Corporate Existence, Etc. . . . . . . . . 84
SECTION 5.7 Visitation Rights. . . . . . . . . . . . . . . . . . . . 84
SECTION 5.8 Keeping of Books . . . . . . . . . . . . . . . . . . . . . 85
SECTION 5.9 Maintenance of Properties, Etc . . . . . . . . . . . . . . 85
SECTION 5.10 Compliance with Terms of Leaseholds . . . . . . . . . . . 85
SECTION 5.11 Performance of Material Contracts . . . . . . . . . . . . 85
ii
SECTION 5.12 Transactions with Affiliates . . . . . . . . . . . . . . . 85
SECTION 5.13 Agreement to Grant Additional Security. . . . . . . . . . 85
Section 5.14 Interest Rate Protection. . . . . . . . . . . . . . . . . 87
SECTION 5.15 Performance of AIG Acquisition Documents . . . . . . . . 87
SECTION 5.16 Year 2000 Compatibility . . . . . . . . . . . . . . . . . 88
SECTION 5.17 Cash Concentration or Blocked Accounts. . . . . . . . . . 88
SECTION 5.18 Intercompany Subordination Agreement . . . . . . . . . . . 88
SECTION 5.19 Capital Contributions to PolyVision France. . . . . . . . 88
SECTION 5.20 Pledge of Certain Shares. . . . . . . . . . . . . . . . . 89
SECTION 5.21 Grant of Security Interest in Foreign Debt. . . . . . . . 89
ARTICLE 6
NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 6.1 Liens, Etc.. . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 6.2 Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
SECTION 6.3 Accounts Payable. . . . . . . . . . . . . . . . . . . . . . 92
SECTION 6.4 Fundamental Changes. . . . . . . . . . . . . . . . . . . . 92
SECTION 6.5 Sales, Etc. of Assets. . . . . . . . . . . . . . . . . . . 93
SECTION 6.6 Investments in Other Persons . . . . . . . . . . . . . . . 93
SECTION 6.7 Dividends, Etc . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 6.8 Change in Nature of Business . . . . . . . . . . . . . . . 96
SECTION 6.9 Charter Amendments . . . . . . . . . . . . . . . . . . . . 96
SECTION 6.10 Accounting Changes. . . . . . . . . . . . . . . . . . . . 96
SECTION 6.11 Repayments or Prepayments, Etc. of Debt. . . . . . . . . . 96
SECTION 6.12 Amendment, Etc. of AIG Acquisition Documents . . . . . . . 96
SECTION 6.13 Amendment, Etc. of Material Contracts . . . . . . . . . . 97
SECTION 6.14 Negative Pledge . . . . . . . . . . . . . . . . . . . . . 97
SECTION 6.15 Partnerships, New Subsidiaries . . . . . . . . . . . . . . 98
SECTION 6.16 Speculative Transactions . . . . . . . . . . . . . . . . . 98
SECTION 6.17 Capital Expenditures . . . . . . . . . . . . . . . . . . . 98
SECTION 6.18 Issuance of Stock . . . . . . . . . . . . . . . . . . . . 99
SECTION 6.19 Limitations on Operating Leases . . . . . . . . . . . . . 99
SECTION 6.20 No Consignment Sales. . . . . . . . . . . . . . . . . . . 99
SECTION 6.21 Certain Inactive Subsidiaries. . . . . . . . . . . . . . . 99
SECTION 6.22 Retention of Cash . . . . . . . . . . . . . . . . . . . . 99
SECTION 6.23 Management Fees. . . . . . . . . . . . . . . . . . . . . . 100
ARTICLE 7
REPORTING REQUIREMENTS. . . . . . . . . . . . . . . . . . . . . . . . . 100
SECTION 7.1 Default Notice . . . . . . . . . . . . . . . . . . . . . . 100
SECTION 7.2 Monthly Financials . . . . . . . . . . . . . . . . . . . . 100
SECTION 7.3 Quarterly Financials . . . . . . . . . . . . . . . . . . . 100
SECTION 7.4 Annual Financials . . . . . . . . . . . . . . . . . . . . . 101
iii
SECTION 7.5 Annual Forecasts. . . . . . . . . . . . . . . . . . . . . . 101
SECTION 7.6 ERISA Events and ERISA Reports . . . . . . . . . . . . . . 101
SECTION 7.7 Plan Terminations. . . . . . . . . . . . . . . . . . . . . 102
SECTION 7.8 Actuarial Reports . . . . . . . . . . . . . . . . . . . . . 102
SECTION 7.9 Plan Annual Reports . . . . . . . . . . . . . . . . . . . . 102
SECTION 7.10 Annual Plan Summaries. . . . . . . . . . . . . . . . . . . 102
SECTION 7.11 Multiemployer Plan Notices . . . . . . . . . . . . . . . . 102
SECTION 7.12 Litigation. . . . . . . . . . . . . . . . . . . . . . . . 102
SECTION 7.13 Securities Reports . . . . . . . . . . . . . . . . . . . . 103
SECTION 7.14 Creditor Reports . . . . . . . . . . . . . . . . . . . . . 103
SECTION 7.15 Agreement Notices . . . . . . . . . . . . . . . . . . . . 103
SECTION 7.16 Revenue Agent Reports . . . . . . . . . . . . . . . . . . 103
SECTION 7.17 Environmental Conditions. . . . . . . . . . . . . . . . . 103
SECTION 7.18 Real Property. . . . . . . . . . . . . . . . . . . . . . . 103
SECTION 7.19 Insurance . . . . . . . . . . . . . . . . . . . . . . . . 104
SECTION 7.20 Borrowing Base Certificate. . . . . . . . . . . . . . . . 104
SECTION 7.21 Management Letters. . . . . . . . . . . . . . . . . . . . 104
SECTION 7.22 Permitted Acquisition Documents . . . . . . . . . . . . . 104
SECTION 7.23 Other Information . . . . . . . . . . . . . . . . . . . . 104
ARTICLE 8
FINANCIAL COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . 104
SECTION 8.1 Consolidated Debt to EBITDA Ratio. . . . . . . . . . . . . 104
SECTION 8.2 Interest Coverage Ratio . . . . . . . . . . . . . . . . . . 105
SECTION 8.3 Fixed Charge Coverage Ratio. . . . . . . . . . . . . . . . 106
ARTICLE 9
EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
SECTION 9.1 Payment. . . . . . . . . . . . . . . . . . . . . . . . . . 108
SECTION 9.2 Representations and Warranties . . . . . . . . . . . . . . 108
SECTION 9.3 Certain Covenants . . . . . . . . . . . . . . . . . . . . . 108
SECTION 9.4 Other Covenants. . . . . . . . . . . . . . . . . . . . . . 108
SECTION 9.5 Other Defaults . . . . . . . . . . . . . . . . . . . . . . 108
SECTION 9.6 Bankruptcy, Etc. . . . . . . . . . . . . . . . . . . . . . 109
SECTION 9.7 Judgments. . . . . . . . . . . . . . . . . . . . . . . . . 109
SECTION 9.8 Loan Documents. . . . . . . . . . . . . . . . . . . . . . . 109
SECTION 9.9 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . 109
SECTION 9.10 Change of Control. . . . . . . . . . . . . . . . . . . . . 109
SECTION 9.11 ERISA Events . . . . . . . . . . . . . . . . . . . . . . . 110
SECTION 9.12 Borrowing Base Deficiency . . . . . . . . . . . . . . . . 110
SECTION 9.13 Subordination Provisions. . . . . . . . . . . . . . . . . 110
SECTION 9.14 Management . . . . . . . . . . . . . . . . . . . . . . . . 110
SECTION 9.15 Business Condemnation . . . . . . . . . . . . . . . . . . 111
iv
SECTION 9.16 Uninsured Losses . . . . . . . . . . . . . . . . . . . . 111
SECTION 9.17 Criminal Forfeiture. . . . . . . . . . . . . . . . . . . 111
SECTION 9.18 Environmental Matters. . . . . . . . . . . . . . . . . . 111
SECTION 9.19 Actions in Respect of the Letters of Credit Upon Default. 112
ARTICLE 10
THE ADMINISTRATIVE AGENT. . . . . . . . . . . . . . . . . . . . . . . . 112
SECTION 10.1 Authorization and Action. . . . . . . . . . . . . . . . . 112
SECTION 10.2 Agent's Reliance, Etc. . . . . . . . . . . . . . . . . . . 113
SECTION 10.3 Fleet and Affiliates. . . . . . . . . . . . . . . . . . . 113
SECTION 10.4 Lender Party Credit Decision. . . . . . . . . . . . . . . 113
SECTION 10.5 Indemnification . . . . . . . . . . . . . . . . . . . . . 114
SECTION 10.6 Successor Administrative Agents . . . . . . . . . . . . . 115
SECTION 10.7 Events of Default . . . . . . . . . . . . . . . . . . . . 116
ARTICLE 11
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
SECTION 11.1 Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . 116
SECTION 11.2 Notices Etc . . . . . . . . . . . . . . . . . . . . . . . 117
SECTION 11.3 No Waiver; Remedies; Counterclaims. . . . . . . . . . . . 119
SECTION 11.4 Costs and Expenses. . . . . . . . . . . . . . . . . . . . 119
SECTION 11.5 Right of Set-off. . . . . . . . . . . . . . . . . . . . . 121
SECTION 11.6 Binding Effect. . . . . . . . . . . . . . . . . . . . . . 122
SECTION 11.7 Assignments and Participations. . . . . . . . . . . . . . 122
SECTION 11.8 Execution in Counterparts . . . . . . . . . . . . . . . . 125
SECTION 11.9 No Liability of the Issuing Bank. . . . . . . . . . . . . 125
SECTION 11.10 Confidentiality . . . . . . . . . . . . . . . . . . . . . 126
SECTION 11.11 Termination by Borrower . . . . . . . . . . . . . . . . . 126
SECTION 11.12 Effect of Termination.. . . . . . . . . . . . . . . . . . 126
SECTION 11.13 Further Assurances. . . . . . . . . . . . . . . . . . . . 127
SECTION 11.14 Severability. . . . . . . . . . . . . . . . . . . . . . . 127
Section 11.15 Foreign Exchange Indemnity. . . . . . . . . . . . . . . . 128
SECTION 11.16 Survival of Agreements and Representations; Construction. 128
SECTION 11.17 JURISDICTION, ETC . . . . . . . . . . . . . . . . . . . . 128
SECTION 11.18 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . 129
SECTION 11.19 WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . 129
SECTION 11.20 FINAL AGREEMENT . . . . . . . . . . . . . . . . . . . . . 129
v
EXHIBITS
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Borrowing Base Certificate
Exhibit C - Form of Revolving Credit Note
Exhibit D - Form of Term A Note
Exhibit E - Form of Term B Note
Exhibit F - Form of Notice of Borrowing
Exhibit G-1 - Form of Initial Security Agreement
Exhibit G-2 - Form of AIG Security Agreement
Exhibit H - Form of Collateral Assignment of Lease
Exhibit I - Form of Intellectual Property Security Agreement
Exhibit J - Form of KBC Guaranty
Exhibit K - Form of Subsidiary Guaranty
Exhibit L - Form of Swing Line Note
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule 4.2 - Organization and Subsidiaries
Schedule 4.4 - Required Authorizations and Approvals
Schedule 4.9 - Disclosed Litigation
Schedule 4.11 - Welfare Plans
Schedule 4.13 - Environmental Assessment Reports
Schedule 4.14 - Burdensome Documents
Schedule 4.16 - Open Tax Years
Schedule 4.19(a) - Existing Debt
Schedule 4.19(b) - Surviving Debt
Schedule 4.20 - No Defaults
Schedule 4.21 - Owned Real Estate
Schedule 4.22 - Leased Real Estate
Schedule 4.23 - Material Contracts
Schedule 4.24 - Investments
Schedule 4.25 - Intellectual Property
Schedule 5.5 - Insurance
Schedule 6.1 - Liens
Schedule 6.6(a) - Investments in Subsidiaries
Schedule 6.6(f) - Existing Investments
Schedule 6.18 - Existing Issuances, Etc. of Stock
vi
CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of November 20, 1998 by and among
POLYVISION CORPORATION., a New York corporation ("POLYVISION"), POSTERLOID
CORPORATION, a Delaware corporation ("POSTERLOID"), GREENSTEEL, INC., a Delaware
corporation (which is expected to be merged with Alliance America Corporation
and whose name will remain Greensteel, Inc.) (as it exists prior to and after
giving effect to such merger, "GREENSTEEL") (each of PolyVision, Posterloid and
Greensteel, a "BORROWER," and collectively, the "BORROWERS"); the banks,
financial institutions and other institutional lenders listed on the signature
pages hereof as the Initial Lenders (the "INITIAL LENDERS"), FLEET NATIONAL
BANK, as Initial Issuing Bank (the "INITIAL ISSUING BANK"), FLEET NATIONAL BANK,
as the Swing Line Bank (the "SWING LINE BANK"), FLEET NATIONAL BANK, as
administrative agent (together with any successor appointed pursuant to Article
10, the "ADMINISTRATIVE AGENT") for the Lender Parties (as hereinafter defined)
and FLEET NATIONAL BANK, as European Letter of Credit Bank (the "EUROPEAN LETTER
OF CREDIT BANK").
PRELIMINARY STATEMENTS:
(1) Pursuant to a Stock Purchase Agreement, dated September 1, 1998 (as
it may from time to time be amended, supplemented, restated or otherwise
modified to the extent not prohibited under this Agreement, the "AIG ACQUISITION
AGREEMENT"), by and between PolyVision, Alliance International Group, Inc.
("AIG") and the stockholders of AIG, as amended and supplemented by an Amendment
dated on or about the date hereof, PolyVision has agreed to purchase all of the
issued and outstanding common stock of AIG, PolyVision Belgium (such term and
all other undefined terms used in these Preliminary Statements having the
meanings ascribed thereto in Section 1.1) has agreed to purchase all (other than
directors' qualifying shares) of the issued and outstanding common stock of AE
and PolyVision France has agreed to purchase all (other than directors'
qualifying shares) of the issued and outstanding common stock of Aubecq (such
transactions being hereinafter called the "AIG ACQUISITION").
(2) The Borrowers have requested that the Lender Parties make loans to
the Borrowers having an aggregate principal amount at any one time outstanding
of up to Thirty Three Million Eight Hundred Sixty-Nine Thousand Three Hundred
Ninety-Two Dollars ($33,869,392) and issue the European Letters of Credit (more
fully described below) in Belgian Francs ("BEF") in an aggregate face amount at
any one time outstanding of up to approximately Twenty-Sive Million One Hundred
Thirty Thousand Six Hundred Eight ($26,130,608), to be used by the Borrowers (a)
to finance, in part, the AIG Acquisition, (b) to pay transaction fees and
expenses incurred in connection with the AIG Acquisition, (c) to refinance
certain indebtedness of the Borrowers and of AIG, (d) to provide working capital
and finance capital expenditures for the Borrowers, and (e) (with the consent of
the Required Lenders) to
finance additional acquisitions by the Borrowers, and the Lender Parties have
agreed to make such loans and issue such letters of credit all on and subject to
the terms and conditions of this Agreement;
(3) (a) PolyVision Belgium, PolyVision France, Alliance Europe N.V.
(currently a wholly-owned subsidiary of AIG and which shall on the Closing Date
become a wholly-owned subsidiary of PolyVision Belgium) with its chief executive
office at Xxxxxxxxxx 00, 0000 Xxxx Xxxxxxx ("AE") and the other European
Borrowers have requested that KBC Bank N.V. (formerly known as Kredietbank
N.V.), a limited liability company incorporated under the laws of Belgium
(hereinafter in its capacity as lender under any of the KBC Loan Agreements,
"KBC"), make available to certain of the European Borrowers a credit facility in
the aggregate principal amount of BEF640,240,846 and (b) AE, Alliance Graphics,
Aubecq and Pentagon have requested that KBC amend and restate a certain existing
credit facility made available to those European Borrowers, and (c) the European
Borrowers have requested that Fleet National Bank issue to KBC (in satisfaction
of certain conditions precedent to the availability of the aforementioned KBC
credit facilities) certain letters of credit denominated in BEF having an
aggregate face amount equal to approximately Twenty-Six Million One Hundred
Thirty Thousand Six Hundred Eight ($26,130,608) Dollars (the "EUROPEAN LETTERS
OF CREDIT"), which European Letters of Credit shall be available to be drawn by
KBC upon the occurrence of certain events as set forth in the European Letter of
Credit Agreements, and Fleet National Bank has agreed to issue such European
Letters of Credit all on and subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ACCOUNTING CHANGES" has the meaning specified in Section 1.3.
"ADDITIONAL COLLATERAL" has the meaning specified in Section 5.13(a).
"ADDITIONAL COLLATERAL DOCUMENTS" has the meaning specified in Section
5.13(e).
"ADMINISTRATIVE AGENT" has the meaning specified in the recital of parties
to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the Administrative
Agent maintained by the Administrative Agent with Fleet at its office at Fleet
National Bank relating to funds received from the Lender Parties in respect of
this Agreement or the Advances.
2
"ADVANCE" means a Term A Advance, a Term B Advance, a Revolving Credit
Advance, a Swing Line Advance, a Letter of Credit Advance, or a European Letter
of Credit Advance.
"AE" has the meaning specified in the Preliminary Statements.
"AFFILIATE" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling," "controlled
by" and "under common control with") of a Person means the possession, direct or
indirect, of the power to vote 50% or more of the Voting Stock of such Person or
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"AFTER-ACQUIRED MORTGAGED PROPERTY" means any parcel (or adjoining parcels)
of real property (including any leaseholds) acquired by any Loan Party after the
Closing Date subject to a Mortgage granted to the Administrative Agent for the
benefit of the Secured Parties pursuant to SECTION 5.13.
"AIG" has the meaning specified in the Preliminary Statements.
"AIG ACQUISITION" has the meaning specified in the Preliminary Statements.
"AIG ACQUISITION AGREEMENT" has the meaning specified in the Preliminary
Statements.
"AIG ACQUISITION DATE" means the date on which the AIG Acquisition shall
have been consummated in accordance with the AIG Acquisition Documents.
"AIG ACQUISITION DOCUMENTS" means the AIG Acquisition Agreement and each of
the other agreements, instruments, and documents executed or delivered by any of
the parties thereto or their Subsidiaries pursuant thereto or in connection
herewith, and all schedules and exhibits related to each such agreement.
"AIG SECURITY AGREEMENT" has the meaning specified in Section 3.1(a)(viii).
"ALLIANCE GRAPHICS" means Alliance Graphics N.V., a limited liability
company incorporated under the laws of Belgium, having an office at Xxxxxxxxxx
00, 0000 Xxxx, Xxxxxxx, and a wholly owned Subsidiary of AE.
"ALPINE" means The Alpine Group, Inc., a Delaware corporation.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender Party, such
Lender Party's Domestic Lending Office in the case of a Prime Rate Advance and
such Lender Party's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance.
3
"APPLICABLE MARGIN" means at any time and from time to time a percentage
per annum determined pursuant to the last paragraph of this definition by
reference to the Consolidated Debt to EBITDA Ratio at such time, as set forth
below:
Applicable Margin for Revolving Credit Advances and
Term A Advances
----------------------------- ------------------------ ---------------------
Consolidated Debt Applicable Margin for Applicable Margin for
to EBITDA Ratio Eurodollar Rate Advances Prime Rate Advances
----------------------------- ------------------------ ---------------------
Equal to or greater
than 5.0 to 1.0 3% 1.75%
----------------------------- ------------------------ ---------------------
Equal to or greater
than 4.5 to 1.0 but
less than 5.0 to 1.0 2.75% 1.50%
----------------------------- ------------------------ ---------------------
Equal to or greater than
4.0 to 1.0 but less than
4.5 to 1.0 2.50% 1.250%
----------------------------- ------------------------ ---------------------
Less than 4.0 to 1.0 2.25% 1.00%
----------------------------- ------------------------ ---------------------
APPLICABLE MARGIN FOR TERM B ADVANCES
----------------------------- ------------------------ ---------------------
Consolidated Debt
to EBITDA Ratio Eurodollar Rate Advances Prime Rate Advances
----------------------------- ------------------------ ---------------------
Equal to or greater
than 5.0 to 1.0 3.25% 2.00%
----------------------------- ------------------------ ---------------------
Equal to or greater
than 4.0 to 1.0 but less
than 5.0 to 1.0 3.00% 1.75%
----------------------------- ------------------------ ---------------------
Less than 4.0 to 1.0 2.75% 1.50%
----------------------------- ------------------------ ---------------------
The Applicable Margin for each Prime Rate Advance and each Eurodollar Rate
Advance shall be the highest applicable percentage per annum set forth above for
the period from the Closing Date until the adjustment to the Applicable Margin
made in accordance with this paragraph based on the January 31, 1999 financial
statements delivered by the Borrowers pursuant to Section 7.3 and thereafter
shall be determined by reference to the Consolidated Debt to EBITDA Ratio which
shall be determined five (5) Business Days after the date on which the
Administrative Agent receives financial statements pursuant to Section 7.3 or
7.4 and a certificate of the chief financial officer of each Borrower
demonstrating the Consolidated Debt to EBITDA Ratio. If the Borrowers have not
submitted to the Administrative Agent the information described above as and
when required under Section 7.3 or 7.4, as the case may be, the Applicable
Margin shall be as determined by the Administrative Agent in its
reasonable discretion (taking into account, among other things, the Consolidated
Debt to EBITDA Ratio theretofore in effect) for so long as such information has
not been received by the Administrative Agent. The Applicable Margin shall be
adjusted, if applicable, as of the first day of the month following the date of
determination described in the two preceding sentences. In the event that the
financial statements received pursuant to Section 7.4 indicate that the
Applicable Margin determined on the basis of financial statements theretofore
received pursuant to Section 7.3 is lower than the Applicable Margin that would
have been determined on the basis of the Section 7.4 financial statements, the
Applicable Margin shall be adjusted retroactively for the relevant period.
"APV" means APV, Inc., a Delaware corporation and a Wholly-Owned Subsidiary
of PolyVision.
"ASSET DISPOSITION" means the disposition of any or all of the fixed assets
of any Borrower or any of its Subsidiaries whether by sale, lease, transfer,
loss, damage, destruction, condemnation or otherwise; PROVIDED, HOWEVER, that
for purposes of Section 2.6(b), the term "Asset Disposition" shall not include
any sale, lease, transfer or other disposition of Inventory in the ordinary
course of business.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered into
by a Lender Party and an Eligible Assignee, and accepted by the Administrative
Agent and, so long as no Event of Default shall have occurred and be continuing,
by the Borrowers, in accordance with Section 11.7 and in substantially the form
of EXHIBIT A.
"AUBECQ" means Emailleries De Blanc Misseron A. Aubecq, a limited
liability company incorporated as a "societe anonyme" under the laws of France,
having an office at Xxx xxx Xxxxxxxx 00, 00000 Xxxxxxx Xxxxxx, and a wholly
owned Subsidiary of PolyVision France (after giving effect to the Transaction).
"AVAILABLE AMOUNT" of any Letter of Credit or European Letter of Credit
means, at any time, the maximum amount available to be drawn under such Letter
of Credit or European Letter of Credit, as the case may be, at such time
(assuming compliance at such time with all conditions to drawing).
"BANK HEDGE AGREEMENT" means any interest rate Hedge Agreement required or
permitted under Section 5.14 that is entered into by and between the Borrowers
and any Hedge Bank.
"BEF" has the meaning specified in the Preliminary Statements.
"BORROWERS" have the meanings specified in the recital of parties to this
Agreement.
"BORROWERS ACCOUNT" means the account of the Borrowers maintained by the
Borrowers with Fleet National Bank at its office at Xxx Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000.
"BORROWING" means a Term A Borrowing, a Term B Borrowing, a Revolving
Credit Borrowing, or a Swing Line Borrowing.
5
"BORROWING BASE" on any date means the sum of (a) 85% of the value of the
Eligible Receivables PLUS (b) 60% of the value of the Eligible Inventory, in
each case as set forth in the most recent Borrowing Base Certificate delivered
to the Administrative Agent pursuant to the terms of this Agreement on or prior
to such date.
"BORROWING BASE CERTIFICATE" means a certificate in substantially the form
of EXHIBIT B, duly certified by the chief financial officer or any financial
Vice President of the Borrowers.
"BORROWING BASE DEFICIENCY" means, at any time, the failure of the
Borrowing Base at such time to equal or exceed the sum of (a) the aggregate
principal amount of the Revolving Credit Advances, the Letter of Credit Advances
and the Swing Line Advances outstanding at such time PLUS (b) the aggregate
Available Amount under all Letters of Credit outstanding at such time.
"BUSINESS DAY" means a day of the year on which banks are not required or
authorized by law to close in Boston, Massachusetts and New York, New York and,
if the applicable Business Day relates to any Eurodollar Rate Advances, on which
dealings are carried on in the London interbank market.
"CAPITAL EXPENDITURES" means, for any Person for any period, the sum of all
expenditures made, directly or indirectly, by such Person or any of its
Subsidiaries during such period for Equipment, fixed assets, real property or
improvements, or for replacements or substitutions therefor or additions
thereto, that have been or should be, in accordance with GAAP, reflected as
additions to property, plant or Equipment on a Consolidated balance sheet of
such Person; PROVIDED, that Capital Expenditures shall not include capital
expenditures to the extent that such expenditures constitute a reinvestment of
Net Cash Proceeds from any Asset Disposition permitted under this Agreement in
similar fixed assets, which investment is made or committed to be made under
contract with an unaffiliated third party to be made before or within one
hundred eighty days after receipt of such Net Cash Proceeds (or three hundred
sixty (360) days after receipt of such Net Cash Proceeds in respect of real
estate or improvements thereon subject to a casualty loss or condemnation).
"CAPITALIZED LEASES" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"CASH DOMINION EVENT" has the meaning specified in Section 5.17.
"CASH EQUIVALENTS" means any of the following, to the extent owned by the
Borrowers or any of their Subsidiaries, free and clear of all Liens other than
Liens created under the Collateral Documents: (a) readily marketable direct
obligations of the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the full
faith and credit of the Government of the United States having a maturity of not
greater than 360 days from the date of issuance thereof, (b) insured
certificates of deposit of or time deposits having a maturity of not greater
than 360 days from the date of issuance thereof with any commercial bank that is
a Lender Party or a member of the Federal Reserve System that issues (or the
parent of which issues) commercial paper rated as described in clause (c) and is
organized under the laws of the United States or any State thereof
6
and has combined capital and surplus of at least $1 billion or (c) commercial
paper having a maturity of not greater than 180 days from the date of issuance
thereof in an aggregate amount of no more than $2,500,000 per issuer outstanding
at any time, issued by any corporation organized under the laws of any State of
the United States and rated at least "Prime-1" (or the then equivalent grade) by
Xxxxx'x Investors Service, Inc. or "A-1" (or the then equivalent grade) by
Standard & Poor's Ratings Group.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601 et seq., as amended from time to
time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation and
Liability Information System maintained by the U.S. Environmental Protection
Agency.
"CHANGE OF CONTROL" means any of the following events: (a) Alpine shall at
any time cease to own and control (directly or through a Wholly-Owned
Subsidiary) at least 30% of the outstanding capital stock or voting power of
PolyVision; or (b) PolyVision shall at any time cease to own directly or
indirectly one hundred (100%) percent of the outstanding capital stock or voting
power of any of its Subsidiaries (other than directors' qualifying shares); or
(c) with respect to Alpine, a change of control of Alpine or PolyVision that
would be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A, as in effect on the date hereof, promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") shall occur;
provided that, without limitation, such a Change of Control shall be deemed to
occur if: (i) any "Person" (as such term is used in Section 13(d) and Section
14(d) of the Exchange Act), (except for (with respect to the Borrowers) Alpine,
Xxxxxx Xxxxxx or any employee benefit plan of Alpine or any Borrower or any
Subsidiary or related corporation, or any entity holding voting securities of
Alpine or any Borrower for or pursuant to the terms of any such plan), shall
become the beneficial owner, directly or indirectly, of securities of Alpine
representing 30% or more of the combined voting power of Alpine's then
outstanding securities or of securities of PolyVision representing 30% or more
(excluding, in respect of ownership of PolyVision, Alpine in this clause and the
following clause (ii)) of the combined voting power of PolyVision's then
outstanding securities; (ii) there shall occur a contested proxy solicitation of
Alpine's or PolyVision's shareholders that results in the contesting party
obtaining the ability to vote securities representing 30% or more of the
combined voting power of Alpine's or PolyVision's then outstanding securities;
(iii) there shall occur: (A) a sale, lease, exchange, transfer or other
disposition in one or a series of related transactions of all or substantially
all of the assets of Alpine or PolyVision to another Person or entity or group
(as such term is defined in Section 13(d)(3) of the Securities Act as amended),
(B) a merger or consolidation in which Alpine or any Borrower is a constituent
unless the surviving entity is controlled directly or indirectly by the same
Persons (as defined in this Agreement) that controlled Alpine or such Borrower
immediately prior to such merger or consolidation or (C) the adoption of a plan
of liquidation or dissolution of Alpine other than pursuant to bankruptcy or
insolvency laws; or (iv) during any period of twelve (12) calendar months,
individuals who at the beginning of such period constituted the Board of
Directors of Alpine or PolyVision shall cease for any reason to constitute at
least a majority thereof unless the election, or the nomination for election by
Alpine's shareholders or by PolyVision's shareholders, as applicable, of each
new director shall be approved by a vote of at least two-thirds (2/3) of the
directors then still in office who were directors at the beginning of the
period. For purposes of
7
this definition "control", when used with respect to any specified Person, means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract, by
family relationship or otherwise; and the terms "controlling" and "controlled"
have the meanings correlative to the foregoing.
"CLOSING DATE" means the date on which all of the conditions precedent set
forth in Section 3.1 to the Initial Extension of Credit shall have been
satisfied or waived, and the initial Advances are made hereunder.
"COLLATERAL" means all "Collateral" referred to in the Collateral Documents
and all other property that is or is intended to be subject to any Lien in favor
of the Administrative Agent for the benefit of the Secured Parties.
"COLLATERAL ASSIGNMENT OF LEASE" has the meaning specified in Section
3.1(a)(iii).
"COLLATERAL DOCUMENTS" means the Security Agreements, the Intellectual
Property Security Agreement, the Collateral Assignments of Lease, the Mortgages,
the Pledge Agreement, and any other agreement that creates or purports to create
a Lien in favor of the Administrative Agent for the benefit of the Secured
Parties, including the Additional Collateral Documents delivered pursuant to
Section 5.13.
"COLLECTING BANKS" has the meaning specified in Section 5.17.
"COMMITMENT" means a Term A Commitment, a Term B Commitment, a Revolving
Credit Commitment, a Letter of Credit Commitment or a European Letter of Credit
Commitment.
"COMPLIANCE CERTIFICATE" with respect to the Borrowers and their
Subsidiaries, a certificate to the effect that: (a) as of the effective date of
the certificate, no Default or Event of Default under this Agreement exists or
would exist after giving effect to the action intended to be taken by any Loan
Party, as described in such certificate, including, without limitation, that the
covenants set forth in Article 8 hereof would not be breached after giving
effect to such action, together with a calculation in reasonable detail, and in
form reasonably satisfactory to the Administrative Agent, of such compliance,
and (b) the representations and warranties contained in Article 4 hereof are
true and with the same effect as though such representations and warranties were
made on the date of such certificate, unless stated to relate to a specific
earlier date in which case such specified representations and warranties shall
be true and correct as of such earlier date, and except for changes in the
ordinary course of business not prohibited by this Agreement, none of which,
either singly or in the aggregate, have had a Material Adverse Effect on the
Borrowers and their Subsidiaries taken as a whole, which certificate shall be
executed and delivered by the chief financial officer, any financial vice
president, the president or chief executive officer of each Borrower.
"CONFIDENTIAL INFORMATION" means information that any Loan Party furnishes
to the Administrative Agent or any Lender Party in a writing designated as
confidential, but does not include
8
any such information that is or becomes generally available to the public other
than as a result of a breach by the Administrative Agent or any Lender Party of
its obligations hereunder or that is or becomes available to the Administrative
Agent or such Lender Party from a source other than the Borrowers that is not,
to the best of the Administrative Agent's or such Lender Party's knowledge,
acting in violation of a confidentiality agreement with any Loan Party.
"CONSOLIDATED" refers to the consolidation of accounts, in accordance with
GAAP, of any Person and all of its Subsidiaries on a Consolidated basis and if
not specified, PolyVision and all of its Subsidiaries.
"CONSOLIDATED DEBT TO EBITDA RATIO" means, as of any date of determination,
a ratio of (a) Debt of PolyVision and its Subsidiaries as at the end of such
fiscal quarter to (b) EBITDA for the most recently completed four fiscal
quarters of PolyVision and its Subsidiaries.
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section 2.9 or
2.10.
"CURRENT ASSETS" of any Person means all assets of such Person that would,
in accordance with GAAP, be classified as current assets of a company conducting
a business the same as or similar to that of such Person, after deducting
adequate reserves in each case in which a reserve is proper in accordance with
GAAP.
"CURRENT LIABILITIES" of any Person means (a) Debt of such Person, except
Funded Debt, that by its terms is payable on demand or matures within one year
after the date of determination (excluding any Debt renewable or extendible, at
the option of such Person, to a date more than one year from such date or
arising under a revolving credit or similar agreement that obligates the lender
or lenders to extend credit during a period of more than one year from such
date), (b) all amounts of Funded Debt of such Person required to be paid or
prepaid within one year after such date and (c) all other items (including taxes
accrued as estimated) that in accordance with GAAP would be classified as
current liabilities of such Person.
"DEBT" of any Person means, without duplication,
(a) all indebtedness of such Person for borrowed money,
(b) all Obligations of such Person for the deferred purchase price
of property or services,
(c) all Obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments,
(d) all Obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and
9
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property),
(e) all Obligations of such Person as lessee under Capitalized
Leases,
(f) all Obligations, contingent or otherwise, of such Person under
bankers acceptance, letter of credit or similar facilities,
(g) all Obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of (i) any capital stock of or
other ownership or profit interest in such Person or any other Person or (ii)
any warrants, rights or options to acquire such capital stock,
(h) all Obligations of such Person in respect of Hedge Agreements,
(i) all Debt of others referred to in clauses (a) through (h) above
or clause (j) below guaranteed directly or indirectly in any manner by such
Person, or in effect guaranteed directly or indirectly by such Person through an
agreement (A) to pay or purchase such Debt or to advance or supply funds for the
payment or purchase of such Debt, (B) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Debt or to assure the holder of such
Debt against loss in respect thereof, (C) to supply funds to or in any other
manner invest in the debtor (including any agreement to pay for property or
services irrespective of whether such property is received or such services are
rendered) or (D) otherwise to assure the holder of such Debt against loss in
respect thereof, and
(j) all Debt referred to in clauses (a) through (i) above of
another Person secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts, contract rights or inventory) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Debt.
"DEBT ISSUANCE" means any issuance or sale or other incurrence by any
Borrower or any of its Subsidiaries of any Debt; PROVIDED, HOWEVER, that for
purposes of determination of Net Cash Proceeds under Section 2.6(b)(iii), the
term "Debt Issuance" shall not include the incurrence of Debt permitted under
Section 6.2 (but shall include any Subordinated Debt other than the Senior
Subordinated Notes and the Junior Subordinated Note).
"DEFAULT" means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or
both.
"DEFAULTED ADVANCE" means, with respect to any Lender Party at any time,
the portion of any Advance required to be made by such Lender Party to the
Borrowers pursuant to Section 2.1 or 2.2 at or prior to such time which has not
been made by such Lender Party or by the Administrative Agent for the account of
such Lender Party pursuant to Section 2.2(e) as of such time. In the event that
a portion of a Defaulted Advance shall be deemed made pursuant to Section
2.15(a), the remaining
10
portion of such Defaulted Advance shall be considered a Defaulted Advance
originally required to be made pursuant to Section 2.1 on the same date as the
Defaulted Advance so deemed made in part.
"DEFAULTED AMOUNT" means, with respect to any Lender Party at any time, any
amount required to be paid by such Lender Party to the Administrative Agent or
any other Lender Party hereunder or under any other Loan Document at or prior to
such time which has not been so paid as of such time, including, without
limitation, any amount required to be paid by such Lender Party to (a) the Swing
Line Bank pursuant to Section 2.2(b) to purchase a portion of a Swing Line
Advance made by the Swing Line Bank, (b) the Issuing Bank pursuant to Section
2.3(c) to purchase a portion of a Letter of Credit Advance made by the Issuing
Bank, (c) the Administrative Agent pursuant to Section 2.2(e) to reimburse the
Administrative Agent for the amount of any Advance made by the Administrative
Agent for the account of such Lender Party, (d) any other Lender Party pursuant
to Section 2.13 to purchase any participation in Advances owing to such other
Lender Party and (e) the Administrative Agent or the Issuing Bank pursuant to
Section 10.5 to reimburse the Administrative Agent or the Issuing Bank for such
Lender Party's ratable share of any amount required to be paid by the Lender
Parties to the Administrative Agent or the Issuing Bank as provided therein. In
the event that a portion of a Defaulted Amount shall be deemed paid pursuant to
Section 2.15(b), the remaining portion of such Defaulted Amount shall be
considered a Defaulted Amount originally required to be paid hereunder or under
any other Loan Document on the same date as the Defaulted Amount so deemed paid
in part.
"DEFAULTING LENDER" means, at any time, any Lender Party that, at such
time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take any
action or be the subject of any action or proceeding of a type described in
Section 9.6.
"DISCLOSED LITIGATION" has the meaning specified in Section 4.9.
"DISPOSAL" means the discharge, deposit, injection, dumping, spilling,
leaking or placing of any solid waste or hazardous waste, as those terms are
defined by any federal, state, local or foreign law, into or on any land or
water so that such solid waste or hazardous waste or any constituents thereof
may enter the environment or be emitted into the air or discharged into any
waters, including ground waters.
"DOLLAR EQUIVALENT" means, at any time with respect to any monetary amount
in any currency other than U.S. Dollars, the amount of U.S. Dollars obtained by
converting such currency into U.S. Dollars at the spot rate for such
transactions as quoted by Fleet National Bank at such time.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Domestic Lending Office" opposite
its name on SCHEDULE I or in the Assignment and Acceptance pursuant to which it
became a Lender Party, as the case may be, or such other office of such Lender
Party as such Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
"DOMESTIC SUBSIDIARY" means any Subsidiary organized under the laws of the
United States of America or any State thereof.
11
"EBITDA" means, for any period, the sum, for the Borrowers and their
Subsidiaries determined on a Consolidated basis, of (i) Net Income (or net
loss), (ii) Interest Expense, (iii) income tax expense, (iv) depreciation
expense, (v) extraordinary and nonrecurring losses (which shall not be deemed to
include direct or indirect enviromental remediation expenses, or costs of any
kind, other than routine maintenance), (vi) amortization expense and other
non-ordinary non-cash charges deducted in the calculation of Net Income or net
losses including, without limitation, amortization of fees and expenses related
to the AIG Acquisition and compensation expense not paid in cash, and (vii) to
the extent deducted in the computation of Net Income, non-recurring
restructuring charges resulting from plant closing expenses, severance
obligations and reorganization expenses relating to consummation of the AIG
Acquisition, MINUS extraordinary and nonrecurring gains (or plus extraordinary
losses) (in each case determined in accordance with GAAP), PLUS the pro forma
effect on EBITDA for such period of any Permitted Acquisition made by the
Borrowers (such pro forma effect to be determined in a manner reasonably
acceptable to the Administrative Agent).
"ELIGIBLE ASSIGNEE" means with respect to any Facility (other than the
Letter of Credit Facility and the European Letter of Credit Facility), (a) a
Lender; (b) an Affiliate of a Lender; and (c) subject to the prior approval of
the Administrative Agent and, so long as no Event of Default shall have occurred
and be continuing, the Borrowers, such approval by the Borrowers not to be
unreasonably withheld or delayed, (i) a commercial bank organized under the laws
of the United States, or any State thereof, and having total assets in excess of
$500,000,000; (ii) a savings and loan association or savings bank organized
under the laws of the United States, or any State thereof, and having total
assets in excess of $500,000,000; (iii) a commercial bank organized under the
laws of any other country that is a member of the OECD or has concluded special
lending arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow or of the Cayman Islands, or a political
subdivision of any such country, and having total assets in excess of
$500,000,000, so long as such bank is acting through a branch or agency located
in the United States; (iv) the central bank of any country that is a member of
the OECD; and (v) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership, trust or other entity)
that is engaged in making, purchasing or otherwise investing in commercial loans
in the ordinary course of its business and having total assets in excess of
$500,000,000; and, with respect to the Letter of Credit Facility and the
European Letter of Credit Facility, a Person that is an Eligible Assignee under
subclause (i) or (iii) of clause (c) of this definition and is approved by the
Administrative Agent and the Borrower, such approval by the Borrower not to be
unreasonably withheld or delayed; PROVIDED, HOWEVER, that no Loan Party or
Affiliate of a Loan Party shall qualify as an Eligible Assignee under this
definition.
"ELIGIBLE INVENTORY" means Inventory of a Borrower or any Domestic
Subsidiary located in the continental United States (minus any reserves
reasonably requested by the Administrative Agent) as to which (a) a Borrower or
any Domestic Subsidiary has acquired title, (b) the Administrative Agent has
have a first and only (other than Permitted Liens) perfected security interest
and (c) the Borrowers or any Domestic Subsidiary shall have furnished to the
Administrative Agent information adequate for purposes of identification at
times and in form and substance as may be reasonably requested by the
Administrative Agent; PROVIDED, that Inventory shall not constitute Eligible
Inventory (i) if and when a Borrower or any Domestic Subsidiary sells it,
otherwise passes title thereto or consumes it, (ii) if the
12
Lenders release their security interest therein, or (iii) to the extent that it
(A) is obsolete or not currently useable or salable in the ordinary course of
the Borrowers' businesses, (B) is produced in violation of the Fair Labor
Standards Act and subject to the so-called "hot goods" provision contained in
Title 29, Section 215(a) (1) of the United States Code, (C) is Inventory in
excess of one year's supply unless useable in the ordinary course, or (D) is
non-raw material or non-component Inventory held for consumption by the
Borrowers or a Domestic Subsidiary and not for sale in the ordinary course of
business. Any Inventory which is Eligible Inventory at any time, but which
subsequently fails to meet any of the foregoing requirements, shall forthwith
cease to be Eligible Inventory until such time as it once again meets all of the
foregoing requirements.
"ELIGIBLE RECEIVABLES" means only such Receivables of a Borrower or a
Domestic Subsidiary as the Administrative Agent, in its reasonable judgment,
shall from time to time determine to be Eligible Receivables for purposes of
this Agreement. The value of such Receivables shall be determined by the
Administrative Agent in its reasonable judgment taking into consideration, among
other factors, their book value determined in accordance with GAAP. By way of
example only, and without limiting the discretion of the Administrative Agent to
consider any Receivables not to be Eligible Receivables, the Administrative
Agent shall consider any of the following classes of Receivables not to be
Eligible Receivables:
(a) Receivables that do not arise out of sales of goods or rendering of
services in the ordinary course of any Borrower's or a Domestic Subsidiary's
business;
(b) Receivables on terms other than those normal or customary in the
Borrower's or a Domestic Subsidiary's business;
(c) Receivables owing from any Person that is an Affiliate of a
Borrower or a European Borrower;
(d) Receivables more than 120 days past original invoice date or more
than 60 days past the date due;
(e) Receivables owing from any Person from which an aggregate amount of
more than 50% of the Receivables owing is more than 90 days past due;
(f) Receivables owing from any Person that shall take or be the subject
of any action or proceeding of a type described in Section 9.6;
(g) Receivables (i) owing from any Person that is also a supplier to or
creditor of a Borrower or a Domestic Subsidiary unless such Person has waived
any right of set-off in a manner reasonably acceptable to the Administrative
Agent or (ii) representing any manufacturer's or supplier's credits, discounts,
incentive plans or similar arrangements entitling a Borrower or a Domestic
Subsidiary to discounts on future purchases therefrom;
13
(h) Receivables arising out of sales on a xxxx-and-hold, guaranteed
sale, sale-or-return, sale on approval or consignment basis or subject to any
right of return, set-off or charge-back (other than normal product or service
warranties);
(i) Receivables owing from an account debtor that is an agency,
department or instrumentality of the United States or any State thereof unless a
Borrower or Domestic Subsidiary shall have satisfied the requirements of the
Assignment of Claims Act of 1940, as amended, and any similar State legislation
and the Administrative Agent is satisfied as to the absence of set-offs,
counterclaims and other defenses on the part of such account debtor; or
receivables that are sold to account debtors in the states of Indiana, Minnesota
or New Jersey unless the applicable Borrower shall have duly filed all legally
required Notice of Business Activities Reports and comparable reports with
appropriate governmental authorities;
(j) Receivables the full and timely payment of which the Administrative
Agent in its reasonable judgment, after consultation with a Borrower, believes
to be doubtful; and
(k) Receivables in respect of which a Security Agreement, after giving
effect to the related filings of financing statements that have then been made,
if any, does not or has ceased to create a valid and perfected first and only
(other than Permitted Liens) priority lien or security interest in favor of the
Administrative Agent securing the Secured Obligations.
"ENVIRONMENTAL ACTION" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or potential
liability, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, any Environmental Permit or
Hazardous Material or arising from alleged injury or threat to public health and
safety or the environment, including, without limitation, (a) by any
governmental or regulatory authority or third party for enforcement, cleanup,
Removal, Response, Remedial or other actions or damages and (b) by any
governmental or regulatory authority or third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"ENVIRONMENTAL LAW" means any international or transnational law, federal,
state, local or foreign statute, law, ordinance, rule, regulation, code, order,
writ, judgment, injunction, decree or judicial or agency interpretation, policy
or guidance relating to pollution or protection of the environment or natural
resources, including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, threatened release, release or
discharge of Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval, identification number,
license or other authorization required under any Environmental Law.
"EQUIPMENT" has the meaning specified in Section 1(a) of the Initial
Security Agreement.
14
"EQUITY INTEREST" means, in any Person, any and all shares, interests,
participations, rights or other equivalents (however designated) of any capital
stock or other ownership of any profit interest, and any and all warrants,
rights, options, obligations or other equity securities of or in such Person,
and rights to acquire any of the foregoing, including, without limitation,
partnership interests and joint venture (whether general or limited) and 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, such
partnership or joint venture, but excluding debt for borrowed money and
excluding any debt security that is convertible into, or exchangeable for any of
the foregoing equity interests.
"EQUITY ISSUANCE" means any issuance or sale by any Borrower or any of its
Subsidiaries of its capital stock or other equity securities or any obligations
convertible into or exchangeable for, or giving any Person a right, option or
warrant to acquire such securities or such convertible or exchangeable
obligations; PROVIDED, HOWEVER, that for purposes of Section 2.6(b)(iii), the
term "Equity Issuance" shall not include any issuance or sale of (a) capital
stock or other equity securities of PolyVision or to any Person as consideration
paid in connection with a Permitted Acquisition; (b) capital stock or other
equity securities of PolyVision issued on or before the Closing Date in
connection with the AIG Acquisition; (c) common stock of PolyVision or any
Borrower issued to any director of PolyVision or such Borrower required by
applicable law in connection with such Person acting in such capacity; (d)
options and/or common stock of PolyVision to management, employees and/or
consultants thereof pursuant to any stock option plan permitted hereunder or the
exercise of options issued pursuant thereto so long as the aggregate
consideration received by PolyVision in respect of all such issuances and sales
does not exceed $500,000 in any single year or $1,500,000 in the aggregate from
and after the Closing Date; and (e) conversion of Alpine's or Kirkbi Project,
A/S' preferred stock in PolyVision into common stock.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title IV of ERISA
is a member of the controlled group of any Borrower, or under common control
with any Borrower, within the meaning of Section 414 of the Internal Revenue
Code.
"ERISA EVENT" means, if same could give rise to any liability on the part
of any Borrower or any of its Subsidiaries, (a) (i) the occurrence of a
reportable event, within the meaning of Section 4043 of ERISA, with respect to
any Plan unless the 30-day notice requirement with respect to such event has
been waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (without regard to subsection (2) of such Section) are met with
respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA,
of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of
Section 4043(c) of ERISA is reasonably expected to occur with respect to such
Plan within the following 30 days; (b) the application for a minimum funding
waiver with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan under ERISA Section 4041(c),
pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect
to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations
15
at a facility of any Loan Party or any ERISA Affiliate in the circumstances
described in Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or
any ERISA Affiliate from a Multiple Employer Plan during a plan year for which
it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f)
the conditions for imposition of a lien under Section 302(f) of ERISA shall have
been met with respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section 307 of
ERISA; or (h) the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the termination
of, or the appointment of a trustee to administer, such Plan.
"EUROCURRENCY LIABILITIES" has the meaning specified in Regulation D of the
Board of Governors of the Federal Reserve System, as in effect from time to
time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Eurodollar Lending Office"
opposite its name on SCHEDULE I or in the Assignment and Acceptance pursuant to
which it became a Lender Party (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender Party as such Lender Party
may from time to time specify to the Borrower and the Administrative Agent.
"EURODOLLAR RATE" means, for any Interest Period for all Eurodollar Rate
Advances comprising part of the same Borrowing, an interest rate per annum
(rounded upward, if necessary, to the nearest 1/32 of one percent) as determined
on the basis of the offered rates for deposits in U.S. dollars, for a period of
time comparable to such Interest Period which appears on the Telerate Page 3750
as of 11:00 a.m. (London time) two (2) Business Days before the first day of
such Interest Period in an amount substantially equal to Fleet's Eurodollar
Advance comprising part of such Borrowing; PROVIDED, HOWEVER, that if the rate
described above does not appear on the Telerate System on any applicable
interest determination date, the Eurodollar Rate shall be the rate (rounded
upward as described above, if necessary) for deposits in U.S. dollars for a
period substantially equal to the interest period on the Reuters Page "LIBO" (or
such other page as may replace the LIBO page on that service for the purpose of
displaying such rates), as of 11:00 a.m. (London time) two (2) Business Days
before the first day of such Interest Period in an amount substantially equal to
Fleet's Eurodollar Advance comprising part of such Borrowing.
If both the Telerate and Reuters system are unavailable, then the rate for
that date will be determined on the basis of the offered rates for deposits in
U.S. dollars for a period of time comparable to such Interest Period which are
offered by four major banks in the London interbank market at approximately
11:00 a.m. (London time) two (2) Business Days before the first day of such
Interest Period as selected by the Administrative Agent. The principal London
office of each of the four major London banks will be requested to provide a
quotation of its U.S. dollar deposit offered rate. If at least two such
quotations are provided, the rate for that date will be the arithmetic mean of
the quotations. If fewer than two quotations are provided as requested, the
rate for that date will be determined on the basis of the rates quoted for loans
in U.S. dollars to leading European banks for a period of time comparable to
such Interest Period offered by major banks in New York City at approximately
11:00
16
a.m. (New York time) two (2) Business Days before the first day of such Interest
Period. In the event that the Administrative Agent is unable to obtain any such
quotation as provided above, it will be deemed that the Eurodollar Rate for such
Interest Rate cannot be determined.
In the event that the Board of Governors of the Federal Reserve System
shall impose a Eurodollar Rate Reserve Percentage with respect to Eurocurrency
Liabilities, the Eurodollar Rate for an Interest Period shall be equal to the
amount determined above for such Interest Period divided by a percentage equal
to 100% minus the Eurodollar Rate Reserve Percentage for such Interest Period.
"EURODOLLAR RATE ADVANCE" means an Advance that bears interest as provided
in Section 2.7(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, the reserve
percentage applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate on
Eurodollar Rate Advances is determined) having a term equal to such Interest
Period.
"EUROPEAN BORROWING BASE CERTIFICATE" means a certificate in substantially
the form of Exhibit B, duly certified by the chief financial officer or any
financial vice president of AE, Aubecq, Pentagon and Alliance Graphics.
"EUROPEAN BORROWERS" means AE together with each of Aubecq, Pentagon,
Alliance Graphics, PolyVision Belgium and PolyVision France.
"EUROPEAN LETTER(S) OF CREDIT" means those certain standby letters of
credit issued by the European Letter of Credit Bank for the account of the
Borrowers to secure repayment of loans made by KBC to the European Borrowers
under the KBC Loan Agreements, as the same are issued pursuant to, and from time
to time extended or amended in accordance with, the terms hereof and of the
European Letter of Credit Agreements.
"EUROPEAN LETTER OF CREDIT AGREEMENT(S)" means each of the Letter of Credit
Agreements by and between the European Letter of Credit Bank and KBC of even
date herewith as amended from time to time relating to any European Letter(s) of
Credit.
"EUROPEAN LETTER OF CREDIT BANK" means Fleet as issuer of the European
Letter(s) of Credit.
"EUROPEAN LETTER OF CREDIT COMMITMENT" means, with respect to any Lender,
the amount set forth opposite such Lender's name on SCHEDULE I under the caption
"European Letter of Credit
17
Commitment" or, if such Lender has entered into one or more Assignments and
Acceptances, set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 11.7(d) as such Lender's "European
Letter of Credit Commitment," as such amount may be reduced at or prior to such
time pursuant to Section 2.5(a)(i).
"EUROPEAN LETTER OF CREDIT LENDERS SHARE" means the product of (a) the
aggregate principal amount of loans outstanding at any one time under the KBC
Loan Agreements MULTIPLIED BY (b) the "L/C Percentage" set forth in the European
Letter of Credit Agreements (as such percentage may be amended from time to
time), which L/C Percentage shall be equal to 71.298% as of the date hereof.
"EUROPEAN LETTER OF CREDIT FACILITY" means, at any time, an amount equal to
the aggregate amount of the European Letter of Credit Commitments of all the
Lenders at such time, as such amount may be reduced pursuant to Section 2.5.
"EVENTS OF DEFAULT" has the meaning specified in Article 9.
"EXCESS CASH FLOW" means for any period the sum of (a) EBITDA of PolyVision
and its Subsidiaries for such period PLUS (b) the aggregate amount of any and
all non-cash charges deducted from Consolidated Net Income for such period, but
not added back in the calculation of EBITDA PLUS (c) if there was a net increase
in Consolidated Current Liabilities of PolyVision and its Subsidiaries during
such period, the amount of such net increase other than arising out of Debt
permitted pursuant to Section 6.2 PLUS (d) if there was a net decrease in
Consolidated Current Assets (excluding cash and Cash Equivalents) of PolyVision
and its Subsidiaries during such period the amount of such net decrease MINUS
(e) the aggregate amount of mandatory and optional prepayments (other than
optional prepayments of the Swing Line Advances, Letter of Credit Advances or
Revolving Credit Advances made pursuant to clause (i) of the second sentence of
Section 2.6(a)) and repayments of principal made by PolyVision and its
Subsidiaries on any Funded Debt of PolyVision and its Subsidiaries during such
period MINUS (f) Capital Expenditures of PolyVision and its Subsidiaries during
such period MINUS (g) the aggregate amount of all federal, state, local and
foreign taxes paid by the Borrowers and its Subsidiaries during such period
MINUS (h) the aggregate amount of interest paid on any Debt of PolyVision and
its Subsidiaries during such period MINUS (i) the aggregate amount of all
non-cash credits included in arriving at such EBITDA MINUS (j) if there was a
net decrease in Consolidated Current Liabilities of PolyVision and its
Subsidiaries during such period, the amount of such net decrease MINUS (k) if
there was a net increase in Consolidated Current Assets (excluding cash and Cash
Equivalents) of PolyVision and its Subsidiaries during such period the amount of
such increase MINUS (l) dividends paid by PolyVision to the holders of its
preferred stock in respect of such period to the extent that PolyVision is
expressly permitted under Section 6.7(d) to pay such dividends under this
Agreement.
"EXCHANGE ACT" has the meaning specified in the definition "Change of
Control".
"EXISTING DEBT" means Debt of the Borrowers and their Subsidiaries
outstanding immediately before giving effect to the Transaction and described in
SCHEDULE 4.19(A).
18
"EXTRAORDINARY RECEIPT" means any cash received by or paid to or for the
account of any Person not in the ordinary course of business (other than by
sale, lease or transfer), including, without limitation, tax refunds, pension
plan reversions, proceeds of insurance (other than proceeds of business
interruption insurance to the extent such proceeds constitute compensation for
lost earnings), condemnation awards (and payments in lieu thereof) and indemnity
payments; PROVIDED, HOWEVER, that an Extraordinary Receipt shall not include
cash receipts of less than $500,000 per occurrence or $1,000,000 in the
aggregate received from proceeds of insurance, condemnation awards (and payments
in lieu thereof) or indemnity payments to the extent that such proceeds, awards
or payments (a) in respect of loss or damage to Equipment, fixed assets or real
property are applied (or in respect of which expenditures were previously
incurred) to replace or repair the Equipment, fixed assets or real property in
respect of which such proceeds, awards or payments were received in accordance
with the terms of the Loan Documents, so long as (i) such application is made
within one hundred eighty (180) days (or three hundred sixty (360) days, with
respect to real estate or improvements on real estate), after such Person's
receipt of such proceeds, awards or payments and (ii) such proceeds, awards or
payments are received by such Person within fifteen (15) months after the
occurrence of such damage or loss; or (b) are received by any Person in respect
of any third party claim against such Person and applied to pay (or to reimburse
such Person for its prior payment of) such claim and the costs and expenses of
such Person with respect thereto.
"FACILITY" means the Term A Facility, the Term B Facility, the Revolving
Credit Facility, the Letter of Credit Facility, the European Letter of Credit
Facility or the Swing Line Facility.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"FISCAL YEAR" means a fiscal year of the Borrowers and their Consolidated
Subsidiaries ending on April 30 in any calendar year.
"FIXED CHARGES" means the sum, for PolyVision and its Subsidiaries on a
Consolidated basis for any period, of (i) cash Interest Expense, PLUS (ii)
scheduled amortization of Debt payable during such period, plus (iii) income
taxes and other taxes payable in respect of such period, plus (iv) Capital
Expenditures (net of new purchase money financing in order to avoid double
counting of any such new financing committed to but not yet expended and
subsequently expended in cash) during such period to the extent permitted by
this Agreement.
"FIXED CHARGE COVERAGE RATIO" means, for the four consecutive fiscal
quarters of the Borrowers ending on the date of determination, the ratio of (a)
EBITDA of PolyVision and its Subsidiaries for such
19
four fiscal quarters (or other period specified in Section 8.3), to (b) Fixed
Charges for such four fiscal quarters (or other period specified in Section
8.3).
"FLEET" means Fleet National Bank in its capacity as a Lender or Issuing
Bank or Swing Line Bank or European Letter of Credit Bank hereunder.
"FOREIGN SUBSIDIARY" means any Subsidiary organized under the laws of any
jurisdiction other than the United States of America or any State thereof.
"FUNDED DEBT" means, with respect to the Borrowers, the Advances, and with
respect to the Borrowers and the other Loan Parties and any other Person, all
other Debt of such Person that by its terms matures more than one year after the
date of determination or matures within one year from such date but is renewable
or extendible, at the option of such Person, to a date more than one year after
such date or arises under a revolving credit or similar agreement that obligates
the lender or lenders to extend credit during a period of more than one year
after such date, including the current portion of all such Debt.
"GAAP" means generally accepted accounting principles (a) 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 that are applicable to the
circumstances as of the date of determination, and (b) as applicable to the
European Borrowers, in effect from time to time in the country of domicile of
the respective European Borrowers and their respective Subsidiaries.
"GREENSTEEL" has the meaning specified in the recital of parties to this
Agreement.
"GUARANTEED OBLIGATIONS" has the meaning specified in the Guaranties.
"GUARANTORS" means (a) each Borrower, and (b) APV and each other Person
which shall have executed and delivered or become a party to the Subsidiary
Guaranty hereunder.
"GUARANTY" means each of the Subsidiary Guaranty and the KBC Guaranty.
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental Law.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
20
"HEDGE BANK" means any Lender Party (including, without limitation, any
affiliate of Fleet) in its capacity as a party to a Bank Hedge Agreement.
"INDEMNIFIED PARTY" has the meaning specified in Section 11.4(b).
"INFORMATION MEMORANDUM" means the information memorandum, dated September
23, 1998, delivered by the Administrative Agent to the Lenders.
"INITIAL EXTENSION OF CREDIT" means the earlier to occur of the initial
Borrowing and the initial issuance of a Letter of Credit.
"INITIAL ISSUING BANK" has the meaning specified in the recital of parties
to this Agreement.
"INITIAL LENDERS" has the meaning specified in the recital of parties to
this Agreement.
"INITIAL SECURITY AGREEMENT" has the meaning specified in Section
3.1(a)(ii).
"INSUFFICIENCY" means, with respect to any Plan, the amount, if any, of its
unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" has the meaning specified in
Section 3.1(a)(v).
"INTERCOMPANY SUBORDINATION AGREEMENT" has the meaning specified in Section
5.18.
"INTEREST EXPENSE" means, with respect to any Person for any period,
interest expense on all Debt of such Person for such period whether paid or
accrued, determined on a Consolidated basis for such Person and its Subsidiaries
and in accordance with GAAP, and including, without limitation, (a) in the case
of the Borrowers, interest expense in respect of Debt resulting from Advances,
(b) the interest component of all obligations under Capitalized Leases, (c)
commissions, discounts and other fees and charges payable in connection with
letters of credit (including, without limitation, Letters of Credit), (d) the
net payment, if any, payable in connection with Hedge Agreements less the net
credit, if any, received in connection with Hedge Agreements and (e) all fees
paid by PolyVision or any of its Subsidiaries pursuant to Section 2.8(a) and the
KBC Loan Agreements.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance comprising part
of the same Borrowing, the period commencing on the date of such Eurodollar Rate
Advance or the date of the Conversion of any Prime Rate Advance into such
Eurodollar Rate Advance, and ending on the last day of the period selected by
the Borrowers pursuant to the provisions below and, thereafter, each subsequent
period commencing on the last day of the immediately preceding Interest Period
and ending on the last day of the period selected by the Borrowers pursuant to
the provisions below. The duration of each such Interest Period shall be one,
two, three or six months, as the Borrowers may, upon notice received by the
Administrative Agent not later than 12:00 noon (New York time) on the third
Business Day prior to the first day of such Interest Period, select; PROVIDED,
HOWEVER, that:
21
(a) The Borrowers may not select any Interest Period, with
respect to any Eurodollar Rate Advance under a Facility, that ends after
any principal repayment installment date for such Facility unless, after
giving effect to such selection, the aggregate principal amount of Prime
Rate Advances and of Eurodollar Rate Advances having Interest Periods that
end on or prior to such principal repayment installment date for such
Facility shall be at least equal to the aggregate principal amount of
Advances under such Facility due and payable on or prior to such date;
(b) Whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day,
PROVIDED, HOWEVER, that, if such extension would cause the last day of such
Interest Period to occur in the next following calendar month, the last day
of such Interest Period shall occur on the next preceding Business Day;
(c) Whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial calendar
month, such Interest Period shall end on the last Business Day of such
succeeding calendar month; and
(d) Until the earlier of (i) 120 days after the Closing Date or
(ii) the date on which the Administrative Agent notifies the Borrowers that
the syndication of the Facilities has been completed, only Interest Periods
with a duration of seven days, if available to all the Lenders, shall be
available to the Borrowers for Eurodollar Rate Advances, or if such
Interest Periods are not available to all the Lenders, Interest Periods of
such duration as may be selected by the Administrative Agent and are
acceptable to all the Lenders.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder.
"INVENTORY" of any person means all of such Person's now owned and
hereafter acquired inventory, goods, merchandise and other personal property,
wherever located, to be furnished under any contract of service or held for sale
or lease, all returned goods, raw materials, other materials and supplies of any
kind, nature or description which are or might be consumed in such Person's
business or used in connection with the packing, shipping, advertising, selling
or finishing of such goods, merchandise and such other personal property, and
all documents of title or other documents representing them.
"INVESTMENT" by any Person means:
(a) the amount paid or committed to be paid, or the value of
property or services contributed or committed to be contributed, by such Person
for or in connection with the acquisition by such Person of any stock, bonds,
notes, debentures, future contracts, partnership or other ownership or profit
interests, warrants, rights, options, or other securities of any other Person;
and (b) the amount
22
of any advance, loan or extension of credit by such Person to any other Person,
or guaranty or other similar obligation of such Person with respect to any
Indebtedness of such other Person, and (without duplication) any amount
committed to be advanced, loaned, or extended by such Person to any other
Person, or any amount the payment of which is committed to be assured by a
guaranty or similar obligation by such Person for the benefit of, such other
Person (including, without limitation, any arrangement pursuant to which the
investor incurs Debt of the types referred to in clause (i) or (j) of the
definition of "Debt" in respect of such Person);
PROVIDED that: (i) the value of property contributed shall be the lower of fair
market value at the time of contribution, determined in good faith by a
Borrower's Board of Directors, or the book value of such property at the time of
contribution on the books of the Person making such contribution; and (ii) the
amount of any Investment shall be the original cost of such Investment plus the
cost of all additional Investments by the Borrowers or any of their Subsidiaries
without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment reduced by the fair
market value of all interest, dividends and other distributions (in whatever
form and however designated) made by such Person since the date of its creation
to the applicable holders of such Investments (and their Affiliates), PROVIDED
that in no event shall the aggregate amount of interest, dividends and other
distributions made to any holder of an Investment in a Person (or its
Affiliates) operate to reduce the Investment of such Person by more than the
total contributions to such Person (per clauses (a) and (b) above) (and its
Affiliates).
"ISSUING BANK" means the Initial Issuing Bank and each Eligible Assignee to
which a Letter of Credit Commitment hereunder has been assigned pursuant to
Section 11.7.
"JUNIOR SUBORDINATED NOTE" means the Subordinated Promissory Note issued or
to be issued by PolyVision to Wind Point Partners III, L.P., as agent for the
sellers under the AIG Acquisition Agreement, in the amount of $8,000,000.
"KBC" has the meaning specified in the Preliminary Statements.
"KBC GUARANTY" has the meaning specified in Section 3.1(a)(vi).
"KBC LOAN AGREEMENT(S)" means individually or collectively as the context
may require (a) the Credit Facility Agreement of even date herewith by and among
KBC, AE, Alliance Graphics, Aubecq and Pentagon amending and restating that
certain Credit Facility Agreement dated as of October 2, 1997, as it was amended
on January 27, 1998, and (b) the Credit Facility Agreement by and among KBC,
PolyVision Belgium and PolyVision France of even date herewith, in respect of
each of the foregoing, as amended from time to time with the consent of the
European Letter of Credit Bank.
"KBC LOAN DOCUMENTS" means the KBC Loan Agreements and any and all other
agreements, instruments and documents heretofore, now or hereafter executed by
any European Borrower, any Guarantor, or any other third party and delivered to
KBC in respect of the transactions contemplated
23
by any of the KBC Loan Agreements, including, without limitation, each security
agreement, pledge, mortgage and other similar collateral documents executed or
delivered pursuant thereto.
"KBC REVOLVING CREDIT FACILITY" means the revolving credit portion of the
KBC Loan Agreement referred to in clause (a) of the definition "KBC Loan
Agreement(s)."
"KBC SHARE" means the principal amount of loans outstanding at any one time
under the KBC Loan Agreements, MINUS the European Letter of Credit Lenders
Share.
"L/C CASH COLLATERAL ACCOUNT" has the meaning specified in the Initial
Security Agreement.
"L/C RELATED DOCUMENTS" has the meaning specified in Section 2.4(f)(ii)(A).
"LENDER PARTY" means any Lender, the Issuing Bank, the Swing Line Bank or
the European Letter of Credit Bank.
"LENDERS" means the Initial Lenders and each Person that shall become a
Lender hereunder pursuant to Section 11.7.
"LETTER OF CREDIT" means any Letter of Credit, other than a European Letter
of Credit, issued hereunder (as specified in Section 2.3(a)).
"LETTER OF CREDIT ADVANCE" means an advance made by the Issuing Bank or any
Revolving Credit Lender pursuant to Section 2.3(c).
"LETTER OF CREDIT AGREEMENT" has the meaning specified in Section 2.3(a).
"LETTER OF CREDIT COMMITMENT" means, with respect to the Issuing Bank, the
amount set forth opposite the Issuing Bank's name on SCHEDULE I under the
caption "Letter of Credit Commitment" which is a sublimit of the Revolving
Credit Commitment or, if the Issuing Bank has entered into one or more
Assignments and Acceptances, set forth for the Issuing Bank in the Register
maintained by the Administrative Agent pursuant to Section 11.7(d) as the
Issuing Bank's "Letter of Credit Commitment", as such amount may be reduced at
or prior to such time pursuant to Section 2.5.
"LETTER OF CREDIT FACILITY" means, at any time, an amount equal to the
amount of the Issuing Bank's Letter of Credit Commitment (which is a sublimit of
the Revolving Credit Facility) at such time, as such amount may be reduced
pursuant to Section 2.5.
"LIEN" means any lien, security interest or other charge or encumbrance of
any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor and any
easement, right of way or other encumbrance on title to real property.
24
"LOAN DOCUMENTS" means (a) this Agreement, (b) the Notes, (c) each
Guaranty, (d) the Collateral Documents, (e) each Letter of Credit Agreement, (f)
the KBC Loan Documents, (g) the European Letter of Credit Agreements, (h) each
Bank Hedge Agreement, (i) each Additional Collateral Document, (j) the
Intercompany Subordination Agreement, and all other agreements, instruments and
documents executed in connection therewith, in each case as the same may at any
time be amended, supplemented, restated or otherwise modified and in effect.
"LOAN PARTIES" means the Borrowers, each Guarantor, each Subsidiary of each
Borrower whose stock shall have been pledged to the Administrative Agent, each
of the European Borrowers and each other Person (other than a Lender Party, a
landlord under a landlord waiver or a Collateral Assignment of Lease, a holder
of Subordinated Debt, legal counsel and accounting firms) who shall, at any
time, have outstanding a Loan Document.
"MANAGEMENT FEES" for any period, all fees, emoluments or similar
compensation paid to or incurred with respect to any Person (other than any such
fees, emoluments or similar compensation paid to or incurred and payable to any
Loan Party) in respect of services rendered in connection with the management or
supervision of the management of any Loan Party, other than (a) salaries,
bonuses and other compensation paid to any full-time executive employee in
respect of such full-time employment and (b) fees paid in the ordinary course
of business by any Loan Party to any Person who is not an Affiliate thereof.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL ADVERSE EFFECT" means after giving effect to the consummation of
the AIG Acquisition on the Closing Date (a) a material adverse effect on the
business, condition (financial or otherwise), results of operations,
performance, prospects or properties of the Borrowers and their Subsidiaries
(taken as a whole), (b) unless such event is not material, an adverse effect on
the ability of any Loan Party to perform its obligations under the Loan
Documents to which it is a party, or (c) an adverse effect on the rights and
remedies of the Administrative Agent and the Lender Parties under any of the
Loan Documents. In determining whether any individual event would result in a
Material Adverse Effect, notwithstanding that such event does not of itself have
such effect, a Material Adverse Effect shall be deemed to have occurred if the
cumulative effect of such event and all other existing events would result in a
Material Adverse Effect.
"MATERIAL CONTRACT" means, with respect to the Borrowers, each contract
listed on SCHEDULE 4.23, each contract which is a replacement or a substitute
for any contract listed on such Schedule and with respect to the Borrower and
any other Person who is a party which is material to the business, condition
(financial or otherwise), operations, performance, properties or prospects of
such Person.
"MERGER(S)" means each of (a) the merger to occur on the Closing Date of
Greensteel and Alliance America Corporation, with Greensteel to be the surviving
entity, and (b) the merger to occur on the Closing Date of Alliance
International Group, Inc. with and into PolyVision, with PolyVision to be the
surviving entity.
25
"MERGER AGREEMENTS" has the meaning assigned to that term in Section 4.29.
"MERGER DOCUMENTS" has the meaning assigned to that term in Section 4.29.
"MORTGAGE" means each mortgage, deed of trust, leasehold mortgage,
leasehold deed of trust or other similar real estate security document executed
and delivered by the appropriate Loan Party, in form and substance acceptable to
the Administrative Agent and the Lenders in order (a) to provide that such Loan
Party is the mortgagor or grantor, as the case may be, (b) to comply with and/or
provide for specific laws of the jurisdictions in which the real property or
leasehold property to be encumbered is located, and (c) to assure that the
Administrative Agent for the benefit of the Secured Parties has a perfected Lien
on such real property or leasehold property.
"MORTGAGE POLICIES" has the meaning assigned to that term in Section
3.1(a)(iv)(B).
"MORTGAGED PROPERTY" means each owned real property or leasehold property
specified on SCHEDULE 4.21 or 4.22, respectively, that is subject to a Mortgage
and shall include After-Acquired Mortgaged Property.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Borrower or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Borrower or any ERISA Affiliate and at least one Person other than the Borrower
or any ERISA Affiliate or (b) was so maintained and in respect of which any
Borrower or any ERISA Affiliate could have liability under Section 4064 or 4069
of ERISA in the event such plan has been or were to be terminated.
"NET CASH PROCEEDS" means, with respect to any sale, lease, transfer or
other disposition of any asset or any Debt Issuance or Equity Issuance by any
Person, or any Extraordinary Receipt received by or paid to or for the account
of any Person, the aggregate amount of cash received from time to time (whether
as initial consideration or through payment or disposition of deferred
consideration) by or on behalf of such Person in connection with such
transaction after deducting therefrom only (without duplication) (a) reasonable
and customary brokerage commissions, underwriting fees and discounts, legal and
accounting fees, finder's fees, printing costs and other similar out-of-pocket
costs, (b) the amount of taxes payable in connection with or as a result of such
transaction and (c) with respect to any asset, the amount of any Debt secured by
a Lien on such asset that, by the terms of such transaction or the terms of such
Debt, is required to be repaid upon such disposition, in each case to the
extent, but only to the extent, that the amounts so deducted are, at the time of
receipt of such cash, actually paid or due and payable or set aside for payment
(because due and payable) within ten (10) Business Days after receipt by the
applicable Loan Party to a Person that is not an Affiliate of such Person or any
Loan
26
Party or any Affiliate of any Loan Party and are properly attributable to such
transaction or to the asset that is the subject thereof.
"NET INCOME" means, with respect to any Person, the net income (loss) of
such Person, after provision for or benefit from income and franchise taxes
determined in accordance with GAAP and before any reduction in respect of
preferred stock dividends, excluding, however, (a) any gain (but not loss),
together with any related provision for taxes on such gain (but not loss),
realized in connection with (i) any Asset Disposition (including, without
limitation, dispositions pursuant to sale and leaseback transactions), or (ii)
the disposition of any securities or the extinguishment of any Debt of such
Person or any of its Subsidiaries, and (b) any extraordinary gain (but not
loss), together with any related provision for taxes on such extraordinary gain
(but not loss).
"NOTE" means a Term A Note, a Term B Note, a Revolving Credit Note, or the
Swing Line Note.
"NOTICE OF BORROWING" has the meaning specified in Section 2.2(a).
"NOTICE OF ISSUANCE" has the meaning specified in Section 2.3(a).
"NOTICE OF RENEWAL" has the meaning specified in Section 2.1(f).
"NOTICE OF SWING LINE BORROWING" has the meaning specified in Section
2.2(b).
"NOTICE OF TERMINATION" has the meaning specified in Section 2.1(f).
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means, with respect to any Person, any payment, performance or
other obligation of such Person of any kind, including, without limitation, any
liability of such Person on any claim, whether or not the right of any creditor
to payment in respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, disputed, undisputed, legal,
equitable, secured or unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any proceeding referred to in Section 9.6.
Without limiting the generality of the foregoing, the Obligations of the Loan
Parties under the Loan Documents include (a) the obligation to pay principal,
interest, Letter of Credit and European Letter of Credit reimbursements, Letter
of Credit and European Letter of Credit commissions, charges, expenses, fees,
attorneys' fees and disbursements, indemnities and other amounts payable by any
Loan Party under any Loan Document, (b) the obligation of any Loan Party to
reimburse any amount in respect of any of the foregoing that any Lender Party
may, after the occurrence and during the continuance of an Event of Default,
elect to pay or advance on behalf of such Loan Party, and (c) any other
obligations arising out of or under, based upon or relating to the Loan
Documents.
"OECD" means the Organization for Economic Cooperation and Development.
"OPEN YEAR" has the meaning specified in Section 4.16.
27
"OTHER TAXES" has the meaning specified in Section 2.12(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor).
"PENTAGON" means Alliance Pentagon A/S, a limited liability corporation
incorporated under the laws of Denmark having an office at Xxxxxxxxxxx 0, 0000
Xxxxxx NO, Denmark, and a Wholly-Owned Subsidiary of AE.
"PERMITTED ACQUISITIONS" means any acquisition by the Borrowers or any
Domestic Subsidiaries of all or substantially all of the assets or all of the
capital stock (whether by direct purchase or merger) of any Person which has
been consented to in writing by the Administrative Agent and the Required
Lenders at any time during which a Default or an Event of Default shall not
exist and be continuing or would not exist after giving effect to such
acquisition.
"PERMITTED ACQUISITION DOCUMENTS" means, in respect of a Permitted
Acquisition, the final executed copy of the asset or stock purchase agreement
or the merger agreement, as the case may be, and all other material agreements,
documents or instruments executed and/or delivered by any Loan Party in
connection with such Permitted Acquisition.
"PERMITTED LIENS" means any of the following: (a) Liens for taxes,
assessments and governmental charges or levies (i) not yet due and payable or
(ii) that are due and payable and that are being contested in good faith and by
appropriate proceedings diligently conducted, PROVIDED that in the case of Liens
under this clause (ii), reserves or other appropriate provisions shall have been
established therefor in accordance with GAAP; (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens and other
similar Liens arising in the ordinary course of business securing obligations
that are not overdue for a period of more than sixty (60) days or which are
being contested in good faith and by appropriate proceedings diligently
conducted, PROVIDED that reserves or other appropriate provisions shall have
been established therefor in accordance with GAAP; (c) pledges or deposits to
secure obligations under workers' compensation laws, social security,
unemployment insurance or similar legislation or to secure public or statutory
obligations or deposits of cash or U.S. Government Bonds to secure bids,
tenders, contracts (other than for payment of money), performance or other
similar bonds to which such person is a party; customary deposits of security
for import duties or for the payment of rent in each of the foregoing cases,
arising in the ordinary course of business; (d) Permitted Real Property
Encumbrances; (e) judgment Liens that have been stayed or bonded; and (f)
purchase money security interests and other Liens to the extent permitted
pursuant to Section 6.1.
"PERMITTED REAL PROPERTY ENCUMBRANCES" means, with respect to any
particular real property, easements, zoning restrictions or other restrictions,
rights-of-way, minor encroachments, covenants or encumbrances on real property
imposed by law or arising in the ordinary course of business that do not arise
out of the incurrence of any Debt and that do not and could not materially
detract from the value of the affected property or interfere with the ordinary
conduct of business of the Borrowers or any of their Subsidiaries or materially
impair the use thereof to the Borrowers or any Subsidiary.
28
"PERSON" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"PLEDGE AGREEMENT" means that portion of the Security Agreements providing
for a pledge of capital stock as security for Obligations under Loan Documents.
"POLYVISION" has the meaning specified in the recital of parties to this
Agreement.
"POLYVISION BELGIUM" means PolyVision Belgium N.V., a Belgian corporation
(a limited liability company).
"POLYVISION FRANCE" means PolyVision France EURL, a French EURL
"POSTERLOID" has the meaning specified in the recital of parties to this
Agreement.
"PRE-COMMITMENT INFORMATION" has the meaning specified in Section 3.1(i).
"PRIME RATE" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by Fleet in Boston,
Massachusetts, from time to time, as Fleet's prime rate, which is not
necessarily the lowest rate made available by Fleet; or
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"PRIME RATE ADVANCE" means an Advance that bears interest as provided in
Section 2.7(a)(i).
"PRO FORMA FINANCIALS" means the pro forma financial statements relating to
the Borrowers and their Subsidiaries delivered to the Administrative Agent on
the Closing Date after giving effect to the AIG Acquisition and the Initial
Extension of Credit.
"PRO RATA SHARE" of any amount means, with respect to any Lender at any
time, the product of such amount times a fraction the numerator of which is the
amount of such Lender's Term B Commitment at such time and the denominator of
which is the Term B Facility at such time or, if the Term B Commitments are no
longer outstanding, the numerator of which is the aggregate outstanding
principal amount of such Lender's Advances and the denominator of which is the
aggregate outstanding principal amount of all Advances. For purposes of this
definition, the aggregate principal amount of Swing Line Advances owing to the
Swing Line Bank, Letter of Credit Advances owing to the Issuing
29
Bank and the Available Amount of each Letter of Credit shall be considered to be
owed to the Revolving Credit Lenders ratably in accordance with their respective
Revolving Credit Commitments.
"RECEIVABLES" means all Receivables referred to in Section 1(c) of the
Security Agreements.
"REDUCTION AMOUNT" has the meaning specified in Section 2.6(b)(v).
"REGISTER" has the meaning specified in Section 11.7(d).
"REGULATION T" means Regulation T of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"REGULATION U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"REGULATION X" means Regulation X of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"REGULATORY AGENCY" means any federal, state, local or other United States
of America or foreign governmental authority, bureau or agency.
"RELEASE" means any release, spill, emission, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping or
disposing into the environment (including the abandonment or discarding of
barrels, containers and other closed receptacles containing any Hazardous
Materials) or into or from any property, including, without limitation, the
movement of any Hazardous Materials through the air, soil, surface waters or
ground water.
"REMEDIAL" shall have the meaning as set forth in CERCLA at 42 U.S.C.
Section 9601(24) and/or any other applicable Environmental Laws.
"REMOVAL" shall have the meaning as set forth in CERCLA at 42 U.S.C.
Section 9601(23) and/or any other applicable Environmental Laws.
"REQUIRED LENDERS" means at any time Lenders owed or holding greater than
50% of the sum of (a) the aggregate principal amount of the Advances outstanding
at such time and (b) the aggregate Available Amount of all Letters of Credit and
European Letters of Credit outstanding at such time (or 662/3% of such sum at
any time when Fleet is owed or holds more than 49% of such sum), or, if no such
principal amount and no Letters of Credit or European Letters of Credit are
outstanding at such time, Lenders holding greater than 50% of the aggregate
amount of the Term A Commitments, Term B Commitments, and Revolving Credit
Commitments (or 662/3% of such aggregate amount at any time when Fleet holds
more than 49% of such aggregate amount); PROVIDED, HOWEVER, that if any Lender
shall be a Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (i) the aggregate principal
amount of the Advances owing to such Lender (in its
30
capacity as a Lender) and outstanding at such time, and (ii) the aggregate Term
A Commitment, Term B Commitment, and Revolving Credit Commitment of such Lender
at such time. For purposes of this definition, the aggregate principal amount
of Swing Line Advances owing to the Swing Line Bank, Letter of Credit Advances
owing to the Issuing Bank and the Available Amount of each Letter of Credit
shall be considered to be owed to the Revolving Credit Lenders ratably in
accordance with their respective Revolving Credit Commitments.
"RESPONSE" shall have the meaning as set forth in CERCLA at 42 U.S.C.
Section 9601(25) and/or any other applicable Environmental Laws.
"RESPONSIBLE OFFICER" means, with respect to any Loan Party, the chief
executive officer, the president, the chief financial officer, any vice
president, the controller or the treasurer of such Loan Party.
"REVOLVING CREDIT ADVANCE" has the meaning specified in Section 2.1(c).
"REVOLVING CREDIT AVAILABILITY" means, at any time, the lesser of (a) the
Revolving Credit Facility and (b) the Borrowing Base.
"REVOLVING CREDIT BORROWING" means a borrowing consisting of simultaneous
Revolving Credit Advances of the same Type made by the Revolving Credit Lenders.
"REVOLVING CREDIT COMMITMENT" means, with respect to any Revolving Credit
Lender at any time, the amount set forth opposite such Lender's name on SCHEDULE
I under the caption "Revolving Credit Commitment" or, if such Lender has entered
into one or more Assignments and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section 11.7(d) as
such Lender's "Revolving Credit Commitment," as such amount may be reduced at or
prior to such time pursuant to Section 2.5.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate amount of the
Revolving Credit Lenders' Revolving Credit Commitments at such time.
"REVOLVING CREDIT LENDER" means any Lender that has a Revolving Credit
Commitment.
"REVOLVING CREDIT NOTE" means a promissory note of the Borrowers payable to
the order of any Revolving Credit Lender, in substantially the form of EXHIBIT
C, evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Revolving Credit Advances made by such Lender.
"REVOLVING CREDIT TERMINATION DATE" means the earlier of (a) the sixth
anniversary of the Closing Date, and (b) the Termination Date.
"SECURED OBLIGATIONS" has the meaning specified in the Security Agreements.
31
"SECURED PARTIES" means the Administrative Agent, the Lender Parties, KBC
in its capacity as "Lender" under each KBC Loan Agreement and the Hedge Banks
and the other Persons the Obligations owing to which are or are purported to be
secured by the Collateral under the terms of the Collateral Documents.
"SECURITY AGREEMENTS" means the Initial Security Agreement, the AIG
Security Agreement and each other security agreement delivered pursuant to
Section 5.13.
"SENIOR SUBORDINATED NOTE AGREEMENT" means, collectively, the Senior
Subordinated Loan Agreement dated the date hereof between PolyVision and the
lenders thereunder, relating to the issuance of $25,000,000 in senior
subordinated notes, together with all exhibits, annexes and schedules thereto
and all agreements, instruments and documents executed or delivered pursuant
thereto, all as in effect on the Closing Date with such amendments,
modifications and supplements thereto or replacements thereof, as are permitted
to be made in accordance with the terms of this Agreement.
"SENIOR SUBORDINATED NOTES" means the senior subordinated notes issued or
to be issued by PolyVision in the aggregate principal amount of $25,000,000
pursuant to the Senior Subordinated Note Agreement.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of any Borrower or
any ERISA Affiliate and no Person other than the Borrower or any ERISA Affiliate
or (b) was so maintained and in respect of which any Borrower or any ERISA
Affiliate could have liability under Section 4069 of ERISA in the event such
plan has been or were to be terminated.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on a particular
date, that on such date (a) the fair value of the assets of such Person is
greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (b) the present fair saleable value of
the assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured, (c) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay such debts
and liabilities as they mature and (d) such Person is not engaged in business or
a transaction, and is not about to engage in business or a transaction, for
which such Person's assets would constitute an unreasonably small capital. The
amount of contingent liabilities at any time shall be computed as the amount
that, in the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
"STANDBY LETTER OF CREDIT" means any Letter of Credit or European Letter of
Credit other than a Trade Letter of Credit.
"SUBORDINATED DEBT" means any Debt of the Borrowers that is subordinated to
the Obligations of the Borrowers under the Loan Documents on, and that otherwise
contains, terms and conditions
32
satisfactory to the Administrative Agent and Required Lenders including, without
limitation, the Senior Subordinated Notes and the Junior Subordinated Note.
"SUBORDINATED DEBT DOCUMENTS" means, collectively, the Senior Subordinated
Note Agreement and the documents evidencing any other Subordinated Debt incurred
in accordance with the terms of this Agreement.
"SUBSIDIARY" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits or distributions or
general or limited partnership interests of such partnership, joint venture or
limited liability company or (c) the beneficial interest in such trust or
estate, is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one or
more of such Person's other Subsidiaries. Unless otherwise specified herein,
the term Subsidiary used herein shall mean a Subsidiary of the Borrower.
"SUBSIDIARY GUARANTY" has the meaning specified Section 3.1(a)(vii).
"SURVIVING DEBT" shall have the meaning specified in Section 3.1(e).
"SWING LINE ADVANCE" means an advance made by (a) the Swing Line Bank
pursuant to Section 2.1(d) or (b) any Revolving Credit Lender pursuant to
Section 2.2(b).
"SWING LINE BANK" has the meaning specified in the recital of parties to
this Agreement.
"SWING LINE BORROWING" means a borrowing consisting of a Swing Line Advance
made by the Swing Line Bank.
"SWING LINE FACILITY" has the meaning specified in Section 2.1(d).
"SWING LINE NOTE" means a promissory note of the Borrowers payable to the
order of the Swing Line Bank, in substantially the form of EXHIBIT L, evidencing
the indebtedness of the Borrowers to such Swing Line Bank resulting from the
Swing Line Advances made by such Swing Line Bank.
"TAXES" has the meaning specified in Section 2.12(a).
"TERM A ADVANCE" has the meaning specified in Section 2.1(a).
"TERM A BORROWING" means a borrowing consisting of simultaneous Term A
Advances of the same Type made by the Term A Lenders.
33
"TERM A COMMITMENT" means, with respect to any Term A Lender at any time,
the amount set forth opposite such Lender's name on SCHEDULE I under the caption
"Term A Commitment" or, if such Lender has entered into one or more Assignments
and Acceptances, set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 11.7(d) as such Lender's "Term A
Commitment," as such amount may be reduced at or prior to such time pursuant to
Section 2.5.
"TERM A FACILITY" means, at any time, the aggregate Four Million Three
Hundred Twenty-Seven Thousand Four Hundred Thirty ($4,327,430.00) Dollars
principal amount of the Term A Lenders' Term A Commitments at such time.
"TERM A LENDER" means any Lender that has a Term A Commitment.
"TERM A NOTE" means a promissory note of the Borrower payable to the order
of any Term A Lender, in substantially the form of EXHIBIT D, evidencing the
indebtedness of the Borrower to such Lender resulting from the Term A Advance
made by such Lender.
"TERM B ADVANCE" has the meaning specified in Section 2.1(b).
"TERM B BORROWING" means a borrowing consisting of simultaneous Term B
Advances of the same Type made by the Term B Lenders.
"TERM B COMMITMENT" means, with respect to any Term B Lender at any time,
the amount set forth opposite such Lender's name on SCHEDULE I under the caption
"Term B Commitment" or, if such Lender has entered into one or more Assignments
and Acceptances, set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 11.7 as such Lender's "Term B
Commitment", as such amount may be reduced at or prior to such time pursuant to
Section 2.5.
"TERM B FACILITY" means, at any time, the aggregate Twenty Million
($20,000,000) Dollars principal amount of the Term B Lenders' Term B Commitments
at such time.
"TERM B LENDER" means any Lender that has a Term B Commitment.
"TERM B NOTE" means a promissory note of the Borrower payable to the order
of any Term B Lender, in substantially the form of EXHIBIT E, evidencing the
indebtedness of the Borrower to such Lender resulting from the Term B Advance
made by such Lender.
"TERM FACILITIES" means the Term A Facility and the Term B Facility.
"TERMINATION DATE" means the date of termination in whole of the
Commitments pursuant to Section 2.5 or Article 9.
"TRADE LETTER OF CREDIT" means any Letter of Credit that is issued for the
benefit of a supplier of Inventory to the Borrowers or any of their Subsidiaries
to effect payment for such Inventory, the
34
conditions to drawing under which include the presentation to the Issuing Bank
of negotiable bills of lading, invoices and related documents sufficient, in the
judgment of the Issuing Bank, to create a valid and perfected lien on or
security interest in such Inventory, bills of lading, invoices and related
documents in favor of the Issuing Bank.
"TRANSACTION" means the transactions contemplated by the AIG Acquisition
Documents and the Loan Documents.
"TYPE" refers to the distinction between Advances bearing interest at the
Prime Rate and Advances bearing interest at the Eurodollar Rate.
"UNUSED REVOLVING CREDIT COMMITMENT" means, with respect to any Revolving
Credit Lender, at any time, (a) such Lender's Revolving Credit Commitment at
such time MINUS (b) the sum of (i) the aggregate principal amount of all
Revolving Credit Advances and Letter of Credit Advances made by such Lender (in
its capacity as a Lender) and outstanding at such time, PLUS (ii) such Lender's
Pro Rata Share of (A) the aggregate Available Amount of all Letters of Credit
outstanding at such time and (B) the aggregate principal amount of all Letter of
Credit Advances made by the Issuing Bank pursuant to Section 2.3(c) and
outstanding at such time.
"VOTING STOCK" means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the right so to
vote has been suspended by the happening of such a contingency.
"WELFARE PLAN" means a welfare plan, as defined in Section 3(1) of ERISA,
that is maintained for employees of any Loan Party or in respect of which any
Borrower or any of its Subsidiaries could have liability.
"WHOLLY-OWNED SUBSIDIARY" of any Person means a Subsidiary of such Person
all of the outstanding Equity Interests of which shall at the time be owned by
such Person or by one or more Wholly-Owned Subsidiaries of that Person or a
combination thereof.
"WITHDRAWAL LIABILITIES" has the meaning specified in Part I of Subtitle E
of Title IV of ERISA.
SECTION 1.2 COMPUTATION OF TIME PERIODS. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding."
SECTION 1.3 ACCOUNTING TERMS; FOREIGN CURRENCY.
(a) ACCOUNTING CHANGES. For purposes of this Agreement, all accounting
terms not otherwise defined herein shall have the meanings assigned to such
terms in conformity with GAAP. Financial statements and other information
furnished to Lender pursuant to Sections 7.3 and 7.4 shall be prepared
35
in accordance with GAAP (as in effect at the time of such preparation) on a
consistent basis. In the event any "Accounting Changes" (as defined below)
shall occur and such changes affect financial covenants, standards or terms in
this Agreement, then the Borrowers and the Lender Parties agree to enter into
good faith negotiations in order to amend such provisions of this Agreement so
as to equitably reflect such Accounting Changes with the desired result that the
criteria for evaluating the financial condition of the Borrowers shall be the
same after such Accounting Changes as if such Accounting Changes had not been
made, and until such time as such an amendment shall have been executed and
delivered by the Borrowers and the Lender Parties, (a) all financial covenants,
standards and terms in this Agreement shall be calculated and/or construed as if
such Accounting Changes had not been made, and (b) the Borrowers shall prepare
footnotes to each Compliance Certificate and the financial statements required
to be delivered hereunder that show the differences between the financial
statements delivered (which reflect such Accounting Changes) and the basis for
calculating financial covenant compliance (without reflecting such Accounting
Changes). "Accounting Changes" means: (a) changes in accounting principles
required by GAAP and implemented by the Borrowers; (b) changes in accounting
principles recommended by Borrowers' certified public accountants; and (c)
changes in carrying value of the Borrowers' or any of their Subsidiaries'
assets, liabilities or equity accounts resulting from adjustments that, in each
case, were applicable to, but not included in, the Pro Forma Financials.
(b) FOREIGN CURRENCY. Calculation for purposes of determining compliance
with the covenant and Default limitations expressed in U.S. Dollars in this
Agreement shall be made by aggregating the applicable items denominated in U.S.
Dollars with the Dollar Equivalent of all such items denominated in foreign
currencies.
SECTION 1.4 OTHER DEFINITIONAL PROVISIONS. References to "Sections",
"subsections", "Exhibits" and "Schedules" shall be to Sections, subsections,
Exhibits and Schedules, respectively, of this Agreement unless otherwise
specifically provided. Any of the terms defined in Section 1.1 may, unless the
context otherwise requires, be used in the singular or the plural depending on
the reference. In this Agreement, words importing any gender include the other
genders; the words "including," "includes" and "include" shall be deemed to be
followed by the words "without limitation"; references to agreements and other
contractual instruments shall be deemed to include subsequent amendments,
assignments, and other modifications thereto, but only to the extent such
amendments, assignments and other modifications are not prohibited by the terms
of this Agreement or any other Loan Document; references to Persons include
their respective permitted successors and assigns or, in the case of
governmental Persons, Persons succeeding to the relevant functions of such
Persons; and all references to statutes and related regulations shall include
any amendments of same and any successor statutes and regulations.
36
ARTICLE 2
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.1 THE ADVANCES.
(a) THE TERM A ADVANCES. Each Term A Lender severally agrees, on the
terms and conditions hereinafter set forth, to make a single advance (a "TERM A
ADVANCE") to the Borrowers on the Closing Date in an amount not to exceed such
Lender's Term A Commitment at such time. The Term A Borrowing shall consist of
Term A Advances made simultaneously by the Term A Lenders ratably according to
their Term A Commitments. Amounts borrowed under this Section 2.1(a) and repaid
or prepaid may not be reborrowed.
(b) THE TERM B ADVANCES. Each Term B Lender severally agrees, on the
terms and conditions hereinafter set forth, to make a single advance (a "TERM B
ADVANCE") to the Borrowers on the Closing Date in an amount not to exceed such
Lender's Term B Commitment at such time. The Term B Borrowing shall consist of
Term B Advances made simultaneously by the Term B Lenders ratably according to
their Term B Commitments. Amounts borrowed under this Section 2.1(b) and repaid
or prepaid may not be reborrowed.
(c) THE REVOLVING CREDIT ADVANCES. Each Revolving Credit Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "REVOLVING CREDIT ADVANCE") to the Borrowers from time to time
on any Business Day during the period from the date hereof until the Revolving
Credit Termination Date in an amount for each such Advance not to exceed such
Lender's Unused Revolving Credit Commitment at such time; PROVIDED, HOWEVER,
that no Revolving Credit Lender shall have any obligation to make a Revolving
Credit Advance under this Section 2.1(c) to the extent such Revolving Credit
Advance would (after giving effect to any immediate application of the proceeds
thereof) exceed the lesser of (i) the Revolving Credit Availability or (ii) an
amount equal to (x) the aggregate of the Unused Revolving Credit Commitments of
the Revolving Credit Lenders at such time MINUS (y) the aggregate Swing Line
Advances outstanding at such time. Each Revolving Credit Borrowing shall be in
an aggregate amount of $500,000 or an integral multiple of $500,000 in excess
thereof (other than, in each case, a Borrowing the proceeds of which shall be
used solely to repay or prepay in full outstanding Swing Line Advances or
outstanding Letter of Credit Advances) and shall consist of Revolving Credit
Advances made simultaneously by the Revolving Credit Lenders ratably according
to their Revolving Credit Commitments; PROVIDED, that the failure of any
Revolving Credit Lender to timely fund any Revolving Credit Advances shall not
excuse any other Revolving Credit Lender from timely funding its share of the
subject Revolving Credit Advances. Within the limits of each Revolving Credit
Lender's Unused Revolving Credit Commitment in effect from time to time, the
Borrowers may borrow, repay and reborrow Revolving Credit Advances.
(d) THE SWING LINE ADVANCES. The Borrowers may request the Swing Line
Bank to make, and the Swing Line Bank may, if in its discretion it elects to do
so, make, on the terms and conditions hereinafter set forth, Swing Line Advances
to the Borrowers from time to time on any Business Day
37
during the period from the date hereof until the Revolving Credit Termination
Date (i) in an aggregate principal amount not to exceed at any time outstanding
$3,000,000 (the "SWING LINE FACILITY") and (ii) in an amount for each such Swing
Line Borrowing not to exceed the lesser of (A) the Revolving Credit Availability
and (B) an amount equal to (x) the aggregate of the Unused Revolving Credit
Commitments of the Revolving Credit Lenders at such time MINUS (y) the aggregate
Swing Line Advances outstanding at such time. No Swing Line Advance shall be
used for the purpose of funding the payment of principal of any other Swing Line
Advance. Each Swing Line Borrowing shall be made as a Prime Rate Advance.
Within the limits of the Swing Line Facility and within the limits referred to
in clause (ii) above, so long as the Swing Line Bank, in its discretion, elects
to make Swing Line Advances, the Borrowers may borrow and reborrow under this
Section 2.1(e) and may repay or prepay the Swing Line Advances at such times
prior to the Termination Date, and in such integral multiples, as the Borrowers
may elect.
(e) LETTERS OF CREDIT. The Letters of Credit issued pursuant to this
subsection (e) constitute usage of a sublimit of the Revolving Credit
Commitments of the Lender Parties. The Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue letters of credit for the account of
the Borrowers from time to time on any Business Day during the period from the
Closing Date until sixty (60) days before the Revolving Credit Termination Date
(i) in an aggregate Available Amount for all Letters of Credit not to exceed at
any time the Issuing Bank's Letter of Credit Commitment at such time and (ii) in
an Available Amount for each such Letter of Credit not to exceed the lesser of
(A) the Revolving Credit Availability and (B) an amount equal to (x) the Unused
Revolving Credit Commitments of the Revolving Credit Lenders at such time MINUS
(y) the aggregate Swing Line Advances outstanding at such time. No Letter of
Credit shall have an expiration date (including all rights of the Borrowers or
the beneficiary to require renewal) later than the earlier of (A) sixty (60)
days before the Revolving Credit Termination Date, (B) in the case of a Standby
Letter of Credit, 365 days after the date of issuance thereof and (C) in the
case of a Trade Letter of Credit, 180 days after the date of issuance thereof.
The foregoing notwithstanding, any Standby Letter of Credit may, by its terms,
be renewable annually upon notice (a "NOTICE OF RENEWAL") given to the Issuing
Bank and the Administrative Agent on or prior to any date for notice of renewal
set forth in such Letter of Credit (but in any event at least five (5) Business
Days prior to the date of the proposed renewal of such Standby Letter of Credit)
and upon fulfillment of the applicable conditions set forth in Article 3 unless
such Issuing Bank shall have notified the Borrowers (with a copy to the
Administrative Agent) on or prior to the date for notice of termination set
forth in such Standby Letter of Credit (but in any event at least thirty (30)
Business Days prior to the date of automatic renewal) of its election not to
renew such Standby Letter of Credit (a "NOTICE OF TERMINATION"); PROVIDED that
the terms of each Standby Letter of Credit that is automatically renewable
annually shall not permit the expiration date (after giving effect to any
renewal) of such Standby Letter of Credit in any event to be extended to a date
later than sixty (60) days before the Revolving Credit Termination Date. If
either a Notice of Renewal is not given by the Borrowers or a Notice of
Termination is given by the Issuing Bank pursuant to the immediately preceding
sentence, such Standby Letter of Credit shall expire on the date on which it
otherwise would have been automatically renewed; PROVIDED, HOWEVER, that even in
the absence of receipt of a Notice of Renewal, the Issuing Bank may, in its
discretion unless instructed to the contrary by the Administrative Agent or the
Borrowers, deem that a Notice of Renewal had been timely
38
delivered and, in such case, a Notice of Renewal shall be deemed to have been so
delivered for all purposes under this Agreement. Within the limits of the
Letter of Credit Facility, and subject to the limits referred to above, the
Borrowers may request the issuance of Letters of Credit under this Section
2.1(f), repay any Letter of Credit Advances resulting from drawings under
Letters of Credit pursuant to Section 2.3(c), and request the issuance of
additional Letters of Credit under this Section 2.1(f).
(f) EUROPEAN LETTERS OF CREDIT. The issuance of the European Letters
of Credit shall be governed by the terms of Section 2.17, not Section 2.1(e) or
Section 2.3, and such European Letters of Credit do not constitute usage of the
Revolving Credit Commitments.
(g) JOINT AND SEVERAL LIABILITY. The Borrowers shall be jointly and
severally liable for any and all indebtedness, liabilities and obligations
hereunder, whether or not a reference to joint and several liability is made.
(h) KBC ADVANCES. PolyVision and each of the other Borrowers shall be
jointly and severally liable with the European Borrowers for and shall guarantee
payment of all Obligations under the KBC Loan Agreements and the performance of
all of the terms and conditions of the KBC Loan Agreements.
SECTION 2.2 MAKING THE ADVANCES. (a) Except as otherwise provided in
Section 2.3 or, with respect to Swing Line Advances, in Section 2.2(b), each
Borrowing shall be made on notice, given not later than 1:00 P.M. (New York
time) on the third Business Day prior to the date of the proposed Borrowing in
the case of Eurodollar Rate Advances and on the first Business Day prior to the
date of the proposed Borrowing in the case of Prime Rate Advances, by the
Borrowers to the Administrative Agent, which shall give to each appropriate
Lender prompt notice thereof by telex or telecopier. Each such notice of a
Borrowing (a "NOTICE OF BORROWING") may be by telephone, confirmed immediately
in writing, or telex or telecopier in substantially the form of EXHIBIT F,
specifying therein the requested (i) date of such Borrowing, (ii) Facility under
which such Borrowing is to be made, (iii) Type of Advances comprising such
Borrowing, (iv) aggregate amount of such Borrowing and (v) in the case of a
Borrowing consisting of Eurodollar Rate Advances, initial Interest Period for
each such Advance. Each appropriate Lender shall, before 11:00 A.M. (New York
time) on the date of such Borrowing, make available for the account of its
Applicable Lending Office to the Administrative Agent at the Administrative
Agent's Account, in same day funds, such Lender's ratable portion of such
Borrowing in accordance with the respective Commitments under the applicable
Facility of such Lender and the other appropriate Lenders. Upon and to the
extent of the Administrative Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article 3, the Administrative Agent
will, notwithstanding the failure of any Lender to fund its portion of the
subject Advance, make such received funds available to the Borrowers by
crediting the Borrowers' Account; PROVIDED, HOWEVER, that in the case of any
Revolving Credit Borrowing, the Administrative Agent shall first make a portion
of such funds equal to the aggregate principal amount of any Swing Line Advances
and Letter of Credit Advances made by the Swing Line Bank, the Issuing Bank and
by any other Revolving Credit Lender and outstanding on the date of such
Revolving Credit Borrowing, PLUS interest accrued and unpaid
39
thereon to and as of such date, available to the Swing Line Bank, the Issuing
Bank and such other Revolving Credit Lenders for repayment of such Swing Line
Advances and Letter of Credit Advances.
(b) Each Swing Line Borrowing shall be made either (x) on notice, given
not later than 1:00 P.M. (New York time) on the date of the proposed Swing Line
Borrowing, by the Borrowers to the Swing Line Bank and the Administrative Agent
or (y) pursuant to other arrangements, including, by way of example and not of
limitation, arrangements for daily repayments and borrowings on each Business
Day, which are satisfactory in form and substance to the Swing Line Bank, the
Administrative Agent and the Borrowers. Each notice of a Swing Line Borrowing
pursuant to clause (x) in the immediately preceding sentence (a "NOTICE OF SWING
LINE BORROWING") shall be by telephone, confirmed immediately in writing, or
telex or telecopier, specifying therein the requested (i) date of such
Borrowing, (ii) amount of such Borrowing and (iii) maturity of such Borrowing
(which maturity shall be no later than the seventh day after the requested date
of such Borrowing). If, in its discretion, the Swing Line Bank elects to make a
requested Swing Line Advance, the Swing Line Bank will make the amount thereof
available to the Administrative Agent at the Administrative Agent's Account, in
same day funds. After the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article 3, the
Administrative Agent will make such funds available to the Borrowers by
crediting the Borrowers' Account. Upon written demand by the Swing Line Bank,
with a copy of such demand to the Administrative Agent, each other Revolving
Credit Lender shall purchase from the Swing Line Bank, and the Swing Line Bank
shall sell and assign to each such other Revolving Credit Lender, such other
Lender's Pro Rata Share of all outstanding Swing Line Advances as of the date of
such demand, by deposit to the Administrative Agent's Account, in same day
funds, an amount equal to the portion of the outstanding principal amount of
Swing Line Advances to be purchased by such Lender. The Borrowers hereby agree
to each such sale and assignment. Each Revolving Credit Lender agrees to
purchase its Pro Rata Share of outstanding Swing Line Advances on (i) the
Business Day on which demand therefor is made by the Swing Line Bank; PROVIDED
that notice of such demand is given not later than 3:00 P.M. (New York time) on
such Business Day, or (ii) the first Business Day next succeeding such demand if
notice of such demand is given after such time. Upon any such assignment by the
Swing Line Bank to any other Revolving Credit Lender of a portion of a Swing
Line Advance, the Swing Line Bank represents and warrants to such other Lender
that the Swing Line Bank is the legal and beneficial owner of such interest
being assigned by it, but makes no other representation or warranty and assumes
no responsibility with respect to such Swing Line Advance, the Loan Documents or
any Loan Party. If and to the extent that any Revolving Credit Lender shall not
have so made the amount of such Swing Line Advance available to the
Administrative Agent, such Revolving Credit Lender agrees to pay to the
Administrative Agent, for the account of the Swing Line Bank, forthwith on
demand such amount together with interest thereon, for each day from the date of
demand by the Swing Line Bank until the date such amount is paid to the
Administrative Agent, at the Federal Funds Rate. If such Lender shall pay to
the Administrative Agent such amount for the account of the Swing Line Bank on
any Business Day, such amount so paid in respect of principal shall constitute a
Swing Line Advance made by such Lender on such Business Day for purposes of this
Agreement, and the outstanding principal amount of the Swing Line Advance made
by the Swing Line Bank shall be reduced by such amount on such Business Day.
40
(c) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrowers may not select Eurodollar Rate Advances if the obligation of
the appropriate Lenders to make Eurodollar Rate Advances shall then be suspended
pursuant to Section 2.9 or Section 2.10, and (ii) the Eurodollar Rate Advances
made on any date may not be outstanding as part of more than ten (10) separate
Borrowings.
(d) Each Notice of Borrowing and Notice of Swing Line Borrowing shall
be irrevocable and binding on the Borrowers. In the case of any Borrowing that
the related Notice of Borrowing specifies is to be comprised of or to include
Eurodollar Rate Advances, the Borrowers shall jointly and severally indemnify
each appropriate Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing for such Borrowing the applicable conditions set forth
in Article 3, including, without limitation, any loss (including loss of
anticipated profits as reasonably determined by such Lender), cost or expense
incurred by reason of the liquidation or redeployment of deposits or other funds
acquired by such Lender to fund the Eurodollar Rate Advance to be made by such
Lender as part of such Borrowing when such Eurodollar Rate Advance, as a result
of such failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice from an
appropriate Lender prior to the date of any Borrowing under a Facility under
which such Lender has a Commitment that such Lender will not make available to
the Administrative Agent such Lender's ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) or (b) of this Section 2.2 and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrowers on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Administrative Agent, such Lender and
the Borrowers severally agree to repay or pay to the Administrative Agent
forthwith on demand such corresponding amount and to pay interest thereon, for
each day from the date such amount is made available to the Borrowers until the
date such amount is repaid or paid to the Administrative Agent, at (i) in the
case of the Borrowers, the interest rate applicable at such time under Section
2.7 to Advances comprising such Borrowing and (ii) in the case of such Lender,
the Federal Funds Rate. If such Lender shall pay to the Administrative Agent
such corresponding amount, such amount so paid shall constitute such Lender's
Advance as part of such Borrowing for all purposes.
(f) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, or relieve the
Administrative Agent of its obligation to deliver all funded amounts of Advances
to the Borrowers in accordance herewith; but no Lender shall be responsible for
the failure of any other Lender to make the Advance to be made by such other
Lender on the date of any Borrowing.
41
SECTION 2.3 ISSUANCE OF AND DRAWINGS AND REIMBURSEMENT UNDER LETTERS OF
CREDIT.
(a) REQUEST FOR ISSUANCE. Each Letter of Credit shall be issued upon
notice, given not later than 1:00 P.M. (New York time) on the fifth Business Day
prior to the date of the proposed issuance of such Letter of Credit, by the
Borrowers to the Issuing Bank, which shall give to the Administrative Agent and
each Revolving Credit Lender prompt notice thereof by telex or telecopier. Each
such notice of issuance of a Letter of Credit (a "NOTICE OF ISSUANCE") shall be
by telephone, confirmed immediately in writing, or telex or telecopier,
specifying therein the requested (i) date of such issuance (which shall be a
Business Day), (ii) Available Amount of such Letter of Credit, (iii) expiration
date of such Letter of Credit, (iv) name and address of the beneficiary of such
Letter of Credit and (v) form of such Letter of Credit, and shall be accompanied
by such application and agreement for letter of credit as the Issuing Bank may
specify to the Borrower for use in connection with such requested Letter of
Credit (a "LETTER OF CREDIT AGREEMENT"). If the requested form of such Letter
of Credit is acceptable to the Issuing Bank, in its sole discretion, the Issuing
Bank will, upon fulfillment of the applicable conditions set forth in Article 3,
make such Letter of Credit available to the Borrowers at their office referred
to in Section 11.2 or as otherwise agreed with the Borrowers in connection with
such issuance. In the event and to the extent that the provisions of any such
Letter of Credit Agreement shall conflict with this Agreement, the provisions of
this Agreement shall govern.
(b) LETTER OF CREDIT REPORTS. The Issuing Bank shall furnish (i) to
the Administrative Agent on the first Business Day of each week a written report
summarizing issuance and expiration dates of Letters of Credit issued during the
previous week and drawings during such week under all Letters of Credit, (ii) to
the Administrative Agent, the Borrowers and each Revolving Credit Lender on the
first Business Day of each month a written report summarizing issuance and
expiration dates of Letters of Credit issued during the preceding month and
drawings during such month under all Letters of Credit and (iii) to the
Administrative Agent, the Borrowers and each Revolving Credit Lender on the
first Business Day of each calendar quarter a written report setting forth the
average daily aggregate Available Amount during the preceding calendar quarter
of all Letters of Credit.
(c) DRAWING AND REIMBURSEMENT. The payment by the Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by the Issuing Bank of a Letter of Credit Advance which
shall be a Prime Rate Advance in the amount of such draft. Each of the
Borrowers, the Administrative Agent and each Revolving Credit Lender hereby
acknowledges and agrees that Letter of Credit Advances may be made, or deemed
made, by the Issuing Bank in respect of any Letter of Credit, and each Revolving
Credit Lender shall participate in all Letter of Credit Advances made hereunder
as provided herein. Upon written demand by the Issuing Bank, with a copy of
such demand to the Administrative Agent, each Revolving Credit Lender shall
purchase from the Issuing Bank, and the Issuing Bank shall sell and assign to
each such Revolving Credit Lender, such Lender's Pro Rata Share of such
outstanding Letter of Credit Advance as of the date of such purchase, by making
available (for the account of its Applicable Lending Office) to the
Administrative Agent (for the account of the Issuing Bank), by deposit to the
Administrative Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Letter of Credit Advance to
be purchased by such Lender. Promptly after receipt thereof, the Administrative
Agent shall transfer
42
such funds to the Issuing Bank. The Borrowers hereby agree to each such sale
and assignment. Each Revolving Credit Lender agrees to purchase its Pro Rata
Share of an outstanding Letter of Credit Advance on (i) the Business Day on
which demand therefor is made by the Issuing Bank; PROVIDED that notice of such
demand is given not later than 11:00 A.M. (New York time) on such Business Day
or (ii) the first Business Day next succeeding such demand if notice of such
demand is given after such time. Upon any such assignment by the Issuing Bank
to any other Revolving Credit Lender of a portion of a Letter of Credit Advance,
the Issuing Bank represents and warrants to such other Lender that the Issuing
Bank is the legal and beneficial owner of such interest being assigned by it,
free and clear of any liens, but makes no other representation or warranty and
assumes no responsibility with respect to such Letter of Credit Advance, the
Loan Documents or any Loan Party. If and to the extent that any Revolving
Credit Lender shall not have so made its Pro Rata Share of such Letter of Credit
Advance available to the Administrative Agent, such Revolving Credit Lender
agrees to pay to the Administrative Agent forthwith on demand such amount
together with interest thereon, for each day from the date of demand by the
Issuing Bank until the date such amount is paid to the Administrative Agent, at
the Federal Funds Rate for its account or the account of the Issuing Bank, as
applicable. If such Lender shall pay to the Administrative Agent such amount
for the account of the Issuing Bank on any Business Day, such amount so paid in
respect of principal shall constitute a Letter of Credit Advance made by such
Lender on such Business Day for purposes of this Agreement, and the outstanding
principal amount of the Letter of Credit Advance made by the Issuing Bank shall
be reduced by such amount on such Business Day.
(d) FAILURE TO MAKE LETTER OF CREDIT ADVANCES. The failure of any
Lender to make any Letter of Credit Advance to be made by it on the date
specified in Section 2.3(c) shall not relieve any other Lender of its obligation
hereunder to make its Letter of Credit Advance on such date, but no Lender shall
be responsible for the failure of any other Lender to make the Letter of Credit
Advance to be made by such other Lender on such date.
SECTION 2.4 REPAYMENT OF ADVANCES.
(a) TERM A ADVANCES. The Borrowers shall repay to the Administrative
Agent for the ratable account of the Term A Lenders principal of the Term A
Advances on the following dates in the amounts indicated (which amounts shall be
reduced as a result of the application of prepayments in accordance with the
order of priority set forth in Section 2.6):
---------------------------------- --------------------------
Date Amount
---------------------------------- --------------------------
Each of January 31, April 30,
July 31 and October 31, 1999 $ 6,491.00
---------------------------------- --------------------------
Each of January 31, April 30,
July 31 and October 31, 2000 86,549.00
---------------------------------- --------------------------
43
---------------------------------- --------------------------
Each of January 31, April 30,
July 31 and October 31, 2001 209,880.00
---------------------------------- --------------------------
Each of January 31, April 30,
July 31 and October 31, 2002 238,009.00
---------------------------------- --------------------------
Each of January 31, April 30,
July 31 and October 31, 2003 259,646.00
---------------------------------- --------------------------
Each of January 31, April 30,
July 31 and October 31, 2004 281,282.50
---------------------------------- --------------------------
; PROVIDED, HOWEVER, that the final principal installment shall be in an amount
equal to the aggregate principal amount of the Term A Advances outstanding on
the due date of such final installment.
(b) TERM B ADVANCES. The Borrowers shall repay to the Administrative
Agent for the ratable account of the Term B Lenders principal of the Term B
Advances on the following dates in the amounts indicated (which amounts shall be
reduced as a result of the application of prepayments in accordance with the
order of priority set forth in Section 2.6):
---------------------------------- --------------------------
Date Amount
---------------------------------- --------------------------
Each of January 31, April 30,
July 31 and October 31, 1999 $ 37,500.00
---------------------------------- --------------------------
Each of January 31, April 30,
July 31 and October 31, 2000
thereafter continuing until
(and including) October 31, 2003 50,000.00
---------------------------------- --------------------------
Each of January 31, April 30,
July 31 and October 31, 2004 1,037,500.00
---------------------------------- --------------------------
Each of January 31, April 30,
July 31 and October 31, 2005 3,725,000.00
---------------------------------- --------------------------
PROVIDED, HOWEVER, that the final principal installment shall be equal to the
aggregate principal amount of the Term B Advances outstanding on the due date of
such final installment.
(c) REVOLVING CREDIT ADVANCES. The Borrowers shall repay to the
Administrative Agent for the ratable account of the Revolving Credit Lenders on
the Revolving Credit Termination Date the aggregate principal amount of the
Revolving Credit Advances then outstanding.
44
(d) SWING LINE ADVANCES. The Borrowers shall repay to the
Administrative Agent for the account of the Swing Line Bank and each other
Revolving Credit Lender that has made a Swing Line Advance the outstanding
principal amount of each Swing Line Advance made by each of them on the earlier
of the maturity date for such Swing Line Advance (which maturity date shall be
no later than the seventh day after the requested date of such Swing Line
Advance) and the Revolving Credit Termination Date.
(e) LETTER OF CREDIT ADVANCES. (i) The Borrowers shall repay to the
Administrative Agent for the account of the Issuing Bank and each other
Revolving Credit Lender that has made a Letter of Credit Advance on the earlier
of demand and the Revolving Credit Termination Date the outstanding principal
amount of each Letter of Credit Advance made by each of them.
(ii) The Obligations of the Borrowers under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument relating to any
Letter of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument (except as set forth in clause
(D) below) including, without limitation, under the following circumstances:
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or any other
agreement or instrument relating to any of the foregoing (all of the
foregoing being, collectively, the "L/C RELATED DOCUMENTS");
(B) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations of the Borrowers in
respect of any L/C Related Document or any other amendment or waiver of or
any consent to departure from all or any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other right
that the Borrowers may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank, or any
other Person, whether in connection with the transactions contemplated by
the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect
(unless payment thereagainst by the Issuing Bank is determined to
constitute gross negligence or willful misconduct by the Issuing Bank based
on failure by the Issuing Bank, due to insufficiency of documents presented
or statements made, to observe the terms of the subject Letter of Credit
itself); or
(E) any exchange, release or non-perfection of any Collateral or
other collateral, or any release or amendment or waiver of or consent to
departure from any Guaranty
45
or any other guarantee, for all or any of the Obligations of the Borrowers
in respect of the L/C Related Documents.
(f) EUROPEAN BORROWERS; EUROPEAN LETTER OF CREDIT. Principal payable on
account of loans made to the European Borrowers shall be payable to KBC as and
when provided in the applicable KBC Loan Agreements. Certain provisions
relating to the obligations of the Borrowers to reimburse the Lender Parties in
respect of draws under the European Letters of Credit are set forth in
Section 2.17.
SECTION 2.5 REDUCTION OR TERMINATION OF THE COMMITMENTS.
(a) (i) OPTIONAL REDUCTION. The Borrowers jointly may, upon at least
three Business Days' written notice to the Administrative Agent delivered not
more than once in any calendar year, permanently reduce the Revolving Credit
Facility; PROVIDED, HOWEVER, that each partial reduction of such Facility (i)
shall be in an aggregate amount of $1,000,000 or an integral multiple of
$1,000,000 in excess thereof, and (ii) shall be made ratably among the
appropriate Lenders in accordance with their Commitments with respect to such
Facility; PROVIDED, HOWEVER, that (A) the Revolving Credit Advances shall be
repaid as and when necessary to cause the aggregate outstanding principal amount
of all Revolving Credit Advances PLUS Letter Credit Advances PLUS Swingline
Advances PLUS the Available Amount of all Letters of Credit not to exceed the
Revolving Credit Facility as so reduced. In the event of any reduction in the
KBC Revolving Credit Facility, each of the European Letter of Credit Lender
Share and the KBC Share shall be reduced on a pro rata basis.
(ii) OPTIONAL TERMINATION. The Borrowers jointly may, upon at least
ten Business Days' written notice to the Administrative Agent, terminate this
Agreement; PROVIDED, HOWEVER, that no such termination shall be effective unless
(i) both KBC Loan Agreements shall terminate concurrently, (ii) the Borrowers
shall have paid in full all of the Obligations under the Loan Documents
(including all "Obligations" under and as defined in each KBC Loan Agreement
which shall not have been paid by the European Borrowers) in immediately
available funds, and (iii) all European Letters of Credit and Letters of Credit
shall have either expired or have been cash collateralized to the Administrative
Agent's satisfaction. Any notice of termination given by the Borrowers shall be
irrevocable unless all Lenders otherwise agree in writing, and no Lender shall
have any obligation to make any Advances or issue any Letters of Credit or
European Letters of Credit on or after the termination date stated in such
notice. Except with respect to those Sections of this Agreement and of the KBC
Loan Agreements which specifically provide that they are to survive termination,
this Agreement and the KBC Loan Agreements may be terminated in their entirety
only, and neither this Agreement nor either KBC Loan Agreement nor any section
of any such Agreement nor any type of Loan or other extension of credit
available hereunder or thereunder may be terminated singly.
(b) MANDATORY. (i) On the date of the Term A Borrowing, after giving
effect to such Term A Borrowing, and from time to time thereafter upon each
repayment or prepayment of the Term A Advances, the aggregate Term A Commitments
of the Term A Lenders shall be automatically and permanently reduced, on a
ratable basis as among such Term A Lenders in proportion to their respective
Term A Commitments by an amount equal to the amount by which the aggregate Term
A Commitments
46
immediately prior to such reduction exceed the aggregate unpaid principal amount
of the Term A Advances then outstanding; PROVIDED, HOWEVER, that the Term A
Commitments shall terminate, and all Advances made thereunder shall be repaid in
full, no later than October 31, 2004.
(ii) On the date of the Term B Borrowing, after giving effect to such
Term B Borrowing, and from time to time thereafter upon each repayment or
prepayment of the Term B Advances, the aggregate Term B Commitments of the Term
B Lenders shall be automatically and permanently reduced, on a ratable basis as
among such Term B Lenders in proportion to their respective Term B Commitments,
by an amount equal to the amount by which the aggregate Term B Commitments
immediately prior to such reduction exceed the aggregate unpaid principal amount
of the Term B Advances then outstanding; PROVIDED, HOWEVER, that the Term B
Commitments shall terminate, and all Advances made thereunder shall be repaid in
full, no later than October 31, 2005.
(iii) The Letter of Credit Facility shall be permanently reduced
from time to time on the date of each reduction in the Revolving Credit Facility
by the amount, if any, by which the amount of the Letter of Credit Facility
exceeds the Revolving Credit Facility after giving effect to such reduction of
the Revolving Credit Facility.
(iv) In the event the Closing Date shall not have occurred by December
15, 1998, then all of the Commitments shall be automatically terminated and this
Agreement shall be of no further force or effect.
(c) EUROPEAN BORROWERS. The European Borrowers may reduce, and shall
reduce, any and all commitments in effect under the terms of the KBC Loan
Agreements as provided therein with respect to optional and mandatory reductions
of commitments. Any permanent reduction of such commitments will cause a
concurrent proportionate reduction in the European Letter of Credit Commitment.
SECTION 2.6 PREPAYMENTS.
(a) OPTIONAL. The Borrowers may, without premium or penalty, upon at
least one (1) Business Day's notice in the case of Prime Rate Advances and three
(3) Business Days' notice in the case of Eurodollar Rate Advances, in each case
to the Administrative Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given, the Borrowers shall,
prepay the outstanding aggregate principal amount of the Advances, in whole or
ratably in part, together with accrued interest to the date of such prepayment
on the aggregate principal amount prepaid; PROVIDED, HOWEVER, that (i) each
partial prepayment shall be in an aggregate principal amount of at least
$1,000,000, or an integral multiple of $1,000,000 in excess thereof and (ii) no
such prepayment of a Eurodollar Rate Advance shall be made other than on the
last day of an Interest Period therefor without payment by the Borrowers of the
amounts provided for in Section 11.4(c). Each prepayment made pursuant to this
Section 2.6(a) shall, at the Borrowers' joint option be applied to either (i)
repay the Facilities in the following manner: FIRST, to prepay Letter of Credit
Advances then outstanding until such Advances are paid in full; SECOND, to
prepay Swing Line Advances then outstanding until such Advances are paid in
full; and THIRD, to prepay Revolving Credit Advances then outstanding until such
47
Revolving Credit Advances are paid in full; or (ii) repay the Facilities in the
following manner: FIRST, ratably to the Term A Facility and the Term B Facility,
and ratably to each unpaid installment of principal of each of the Term
Facilities until such installments are paid in full; SECOND, to prepay Letter of
Credit Advances then outstanding until such Advances are paid in full; THIRD, to
prepay Swing Line Advances then outstanding until such Advances are paid in
full; FOURTH, to prepay Revolving Credit Advances then outstanding until such
Revolving Credit Advances are paid in full; and FIFTH, deposited in the L/C Cash
Collateral Account to cash collateralize 100% of the Available Amount of the
Letters of Credit then outstanding. Upon the drawing under any Letter of Credit
for which funds are on deposit in the L/C Cash Collateral Account, such funds
shall be applied to reimburse the Issuing Bank or the Revolving Credit Lenders,
as applicable.
(b) MANDATORY. (i) Within ninety (90) days following the end of each
Fiscal Year, the Borrowers shall execute and deliver to the Administrative Agent
a certificate of each Borrower's chief executive officer or chief financial
officer demonstrating the Borrowers' calculation of Excess Cash Flow for such
Fiscal Year along with a prepayment of the then outstanding Advances equal to
seventy-five percent (75%) of the Borrowers' PRO RATA share (calculated as set
forth below) of Excess Cash Flow for such Fiscal Year; PROVIDED, HOWEVER, that
(A) if the Consolidated Debt to EBITDA Ratio, measured at the end of such Fiscal
Year of the Borrowers, for such Fiscal Year of the Borrowers, is less than or
equal to 4.0 to 1.0, then the required prepayment of the then outstanding
Advances shall be in the amount of fifty percent (50%) of the Borrowers' PRO
RATA share of the Excess Cash Flow for such Fiscal Year rather than
seventy-five percent (75%) of the Borrowers' PRO RATA share of such Excess Cash
Flow; (B) in respect of payments required to be made hereunder based on Excess
Cash Flow for the Fiscal Year ended April 30, 1999, such Excess Cash Flow shall
be computed for the two fiscal quarters ending on April 30, 1999 (in lieu of the
full Fiscal Year then ended); and (C) the Borrowers may retain from Excess Cash
Flow otherwise required to be used to prepay the outstanding Advances not later
than July 31, 1999 (and assuming no Default or Event of Default then exists) the
amount of One Million Five Hundred Thousand ($1,500,000) Dollars (reflecting the
expected net decrease in accounts receivable (as a component in changes in
Consolidated Current Assets)). For purposes of this subsection 2.6(b)(i), (1)
the Borrowers' PRO RATA share of Excess Cash Flow will be determined by
calculating the percentage that the outstanding principal balance of the Term
Loans are of the total of (A) all Term Loans outstanding to the Borrowers plus
(B) all term loans outstanding to the European Borrowers under the KBC Loan
Agreements and (2) in any event, Excess Cash Flow for the Foreign Subsidiaries
shall be computed for the periods comprising the fiscal quarters or fiscal year
of PolyVision, without regard to the existence during any relevant period of a
different fiscal year end of any Foreign Subsidiary.
(ii) Within fifteen (15) days after receipt by any Borrower or any of
its Domestic Subsidiaries of Net Cash Proceeds from Asset Dispositions (other
than Extraordinary Receipts the disposition of which shall be governed by the
terms of subsection 2.6(b)(iv) below), the Borrowers shall prepay the then
outstanding Advances in an amount equal to one-hundred percent (100%) of such
Net Cash Proceeds in excess of $500,000 in any Fiscal Year (such $500,000
computed on a Consolidated basis with respect to PolyVision and all of its
Subsidiaries), PROVIDED that no such prepayment need be made (A) unless the Net
Cash Proceeds from any single Asset Disposition or series of related Asset
Dispositions exceed $500,000 (in which case a prepayment shall be made in the
amount of the entire
48
Asset Disposition) or until the cumulative Net Cash Proceeds from all Asset
Dispositions by the Borrowers in any particular Fiscal Year exceed $500,000 (in
which case a prepayment shall be made in the amount of the Net Cash Proceeds
from the specific Asset Disposition (or portion thereof) causing the limit to be
exceeded), except that the terms of this subsection (A) shall not be applicable
in respect of Net Cash Proceeds reinvested in accordance with the terms of the
following subsection (B); and (B) with respect to Asset Dispositions by the
Borrowers or any Domestic Subsidiary, if the Net Cash Proceeds therefrom are
used to reinvest in fixed assets (for use in its business or the business of the
Domestic Subsidiaries) within 180 days (or 360 days with respect to real estate
and improvements on real estate) of such Asset Disposition, PROVIDED that any
such Net Cash Proceeds not so reinvested shall be used to prepay the Advances on
the 181st day (or 361st day with respect to real estate and improvements on real
estate).
(iii) Within fifteen (15) days after receipt by any Borrower or any
of its Domestic Subsidiaries of Net Cash Proceeds from any Debt Issuance or
Equity Issuance, the Borrowers shall prepay the then outstanding Advances in an
amount equal to, with respect to any (A) Debt Issuance, one hundred percent
(100%) and (B) Equity Issuance, seventy-five percent (75%), of such Net Cash
Proceeds; PROVIDED, HOWEVER, that a Borrower may retain one hundred percent
(100%) of the proceeds of any Equity Issuance (1) used as part of the
consideration for a Permitted Acquisition consummated within one-hundred eighty
(180) days after receipt of such Net Cash Proceeds or (2) reinvested in fixed
assets (for use in its business or the business of any Borrower's Domestic
Subsidiaries) within one-hundred eighty (180) days after receipt of such Net
Cash Proceeds.
(iv) Within fifteen (15) days after receipt of Net Cash Proceeds by
any Borrower or any of its Domestic Subsidiaries from any Extraordinary Receipt
received by or paid to or for the account of any Borrower or any of its Domestic
Subsidiaries and not otherwise included in clause (i), (ii) or (iii) above, the
Borrowers shall prepay the then outstanding Advances in an amount equal to one
hundred percent (100%) of such Net Cash Proceeds in excess of $500,000 in the
aggregate.
(v) Each prepayment made pursuant to clause (i), (ii), (iii) or (iv)
shall be subject to the provisions of Section 11.4(c) and shall be applied to
prepay the Facilities in the following manner: FIRST, ratably to the Term A
Facility and the Term B Facility and ratably to each unpaid installment of
principal of each of the Term Facilities until such installments are paid in
full; SECOND, to prepay Letter of Credit Advances then outstanding until such
Advances are paid in full; THIRD, to prepay Swing Line Advances then outstanding
until such Advances are paid in full; FOURTH, to prepay Revolving Credit
Advances then outstanding until such Advances are paid in full; and FIFTH,
deposited in the L/C Cash Collateral Account to cash collateralize 100% of the
Available Amount of the Letters of Credit then outstanding. Upon the drawing
under any Letter of Credit for which funds are on deposit in the L/C Cash
Collateral Account, such funds shall be applied to reimburse the Issuing Bank or
the Revolving Credit Lenders, as applicable. The amount remaining (if any)
after the required prepayment of the Advances then outstanding and the 100% cash
collateralization of the aggregate Available Amount of Letters of Credit then
outstanding (the sum of such prepayment amounts, cash collateralization amounts
and remaining amount being referred to herein as the "REDUCTION AMOUNT") may be
retained by the Borrowers. Upon the termination of all of the Commitments and
the payment in full of all Obligations
49
under the Loan Documents, including, without limitation, termination or
expiration of all Letters of Credit and the indefeasible payment in full of all
Obligations in respect of all Letters of Credit, then all amounts remaining on
deposit in the L/C Cash Collateral Account shall be returned to the Borrowers.
(vi) The Borrowers shall, within fifteen (15) days following the end
of each month in each Fiscal Year, pay to the Administrative Agent for deposit
in the L/C Cash Collateral Account an amount sufficient to cause the aggregate
amount on deposit in such Account to equal the amount (if any) by which the
aggregate Available Amount of all Letters of Credit then outstanding exceeds the
Letter of Credit Facility on such Business Day.
(vii) At any time that the aggregate principal amount of the
Revolving Credit Advances, the Letter of Credit Advances and the Swing Line
Advances PLUS the aggregate Available Amount of all outstanding Letters of
Credit exceeds the Revolving Credit Availability, the Borrowers shall
immediately repay Revolving Credit Advances to the extent necessary to eliminate
such excess.
(viii) The foregoing notwithstanding, the provisions of this
Section 2.6(b) shall not be construed to permit any Equity Issuance, Debt
Issuance or Asset Disposition otherwise prohibited under the terms of this
Agreement.
(c) APPLICATION OF PREPAYMENTS TO THE TERM A FACILITY AND THE TERM B
FACILITY. Upon receipt of any amounts to be applied to the prepayment in
respect of the Term A Facility and the Term B Facility, the Administrative Agent
shall apply such amounts to the prepayment of the Term A Advances and Term B
Advances ratably based on the proportions that the Term A Advances and Term B
Advances respectively represent of the aggregate of all such Advances, and such
prepayments within such separate Facilities shall be applied ratably to each
unpaid installment of principal thereof.
(d) EUROPEAN BORROWERS. Mandatory and optional prepayments by the
European Borrowers shall be made as provided in the applicable KBC Loan
Agreements.
SECTION 2.7 INTEREST.
(a) SCHEDULED INTEREST. The Borrowers shall pay to the Administrative
Agent, for the benefit of the Lenders, interest on the unpaid principal amount
of each Advance owing to each Lender from the date of such Advance until such
principal amount shall be paid in full, at the following rates per annum:
(i) PRIME RATE ADVANCES. During such periods as such Advance is a
Prime Rate Advance, a rate per annum equal at all times to the sum of (x) the
Prime Rate in effect from time to time PLUS (y) the Applicable Margin for such
Advance in effect from time to time, payable in arrears quarterly on the last
day of each fiscal quarter of PolyVision during such periods and on the date
such Prime Rate Advance shall be Converted or paid in full.
50
(ii) EURODOLLAR RATE ADVANCES. During such periods as such Advance is
a Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (x) the Eurodollar Rate for such
Interest Period for such Advance PLUS (y) the Applicable Margin for such Advance
in effect on the first day of such Interest Period, payable in arrears on the
last day of such Interest Period and, if such Interest Period has a duration of
more than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on the date
such Eurodollar Rate Advance shall be Converted or paid in full.
(b) DEFAULT INTEREST. Upon the occurrence and during the continuance of
any Event of Default, the Borrowers shall pay interest on (i) the unpaid
principal amount of each Advance owing to each Lender payable, in arrears on the
dates referred to in clause (a)(i) or (a)(ii) above and from time to time on
demand, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Advance pursuant to clause (a)(i) or
(a)(ii) above and (ii) the amount of any interest, fee or other amount payable
hereunder not paid when due (whether at the stated maturity, by acceleration or
otherwise) the Borrowers shall pay interest on such amount to the fullest extent
permitted by law from the date such amount shall be due until such amount shall
be paid in full, in arrears on the dates when such amounts are due and from time
to time on demand, at a rate per annum equal at all times to 2% per annum above
the rate per annum required to be paid, in the case of interest, on the Type of
Advance on which such interest has accrued pursuant to clause (a)(i) or (a)(ii)
above (but in no event less than the interest rate in effect on the due date)
and, in all other cases, on Prime Rate Advances pursuant to clause (a)(i) above
(but in no event less than the interest rate in effect on the due date).
(c) NOTICE OF INTEREST RATE. Promptly after receipt of a Notice of
Borrowing pursuant to Section 2.2(a), the Administrative Agent shall give notice
to the Borrowers and each appropriate Lender of the applicable interest rate
determined by the Administrative Agent for purposes of clause (a)(i) or (a)(ii)
above.
(d) LIMITATION ON INTEREST. All agreements between and among the
Borrowers, any Guarantors, any other Loan Party and the Lender Party and/or the
Administrative Agent are hereby expressly limited so that in no contingency or
event whatsoever, whether by reason of acceleration of maturity of the
Indebtedness evidenced hereby or otherwise, shall the amount paid or agreed to
be paid to any Lender Party for the use or the forbearance of the Indebtedness
incurred hereunder exceed the maximum permissible under applicable law. As used
herein the term "applicable law" shall mean the law in effect as of the date
hereof; PROVIDED, HOWEVER, that in the event there is a change in the law which
results in a higher permissible rate of interest, then this Agreement and the
Notes issued hereunder shall be governed by such new law as of its effective
date. In this regard it is expressly agreed that it is the intent of the
Borrowers, the Lender Parties and the Administrative Agent in execution,
delivery and acceptance of this Agreement to contract in strict compliance with
the laws of the State of New York from time to time in effect. If under any
circumstances whatsoever, fulfillment of any provision hereof or of any of the
Loan Documents at the time performance of such provision shall be due shall
involve transcending the limits of such validity prescribed by applicable law,
then the obligation to be fulfilled shall automatically be reduced to the limits
of such validity, and if under or
51
from any circumstance whatsoever the Administrative Agent or any Lender Party
should ever receive as interest any amount which would exceed the highest lawful
rate, such amount which would be excessive interest shall be applied to the
reduction of the principal balance of the Revolving Credit Notes and then the
principal amounts evidenced by the other Notes issued hereunder and not to the
payment of interest. This provision shall control every other provision of all
agreements between and among the Borrowers, any Guarantors, any other Loan
Party, the Administrative Agent and the Lender Parties.
(e) EUROPEAN BORROWERS. Interest, including default interest, shall
accrue on the principal amount of all loans made to the European Borrowers under
the KBC Loan Agreements as provided therein. Interest payments made by the
European Borrowers to KBC pursuant to the terms of the applicable KBC Loan
Agreements and passed through to the Administrative Agent under the terms of the
European Letter of Credit Agreements shall be paid by the Administrative Agent
to the Lenders on a pro rata basis in accordance with each Lender's respective
European Letter of Credit Commitment as a percentage of the aggregate European
Letter of Credit Commitments.
SECTION 2.8 FEES.
(a) COMMITMENT FEES. The Borrowers shall pay to the Administrative Agent,
for the account of the Lenders, a commitment fee, from the Closing Date in the
case of each Initial Lender and from the effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender in the case of
each other Lender, until the Revolving Credit Termination Date, payable in
arrears quarterly on the last Business Day of each January, April, July and
October, commencing on the first such day to occur after the date hereof and on
the Revolving Credit Termination Date at a rate per annum equal to one-half of
one percent (1/2 of 1%) per annum on the average daily Unused Revolving Credit
Commitment of each such Lender; PROVIDED, HOWEVER, that the commitment fee shall
be decreased to three-eighths of one percent (3/8 of 1%) per annum for any
periods (and only during such periods) when the Consolidated Debt to EBITDA
Ratio is less than 4.0 to 1 determined in the same manner and with the same
method for adjustments as is the Applicable Margin. For purposes of this
subsection (a), Swing Line Advances shall not constitute utilization of the
Revolving Credit Commitments of the Revolving Credit Lenders.
(b) LETTER OF CREDIT FEES AND EUROPEAN LETTER OF CREDIT FEES. (i) The
Borrowers shall pay to the Administrative Agent for the account of each
Revolving Credit Lender a commission, payable in arrears quarterly on the last
Business Day of each January, April, July and October, commencing on the first
such date to occur after the Closing Date and on the earliest to occur of the
full drawing, expiration, termination or cancellation of any such Letter of
Credit and on the Revolving Credit Termination Date, on such Lender's Pro Rata
Share of the average daily aggregate Available Amount during such quarter of all
Letters of Credit outstanding from time to time at the rate per annum equal to
the Applicable Margin then in effect for Eurodollar Advances under the Revolving
Credit Facility.
(ii) In addition to the foregoing fees described in subsection (i)
above, the Borrowers shall pay to the Issuing Bank, for its own account, (A) on
the Available Amount of each Letter of Credit
52
and each European Letter of Credit, a fronting fee, for the period from the date
of issuance of such Letter of Credit and each European Letter of Credit to and
including the termination thereof, computed at the rate of one quarter of one
percent (1/4%) per annum, payable in arrears quarterly on the last Business Day
of each January, April, July and October of each year and on the date of
termination thereof and (B) transfer fees and other customary fees and charges
in connection with the issuance or administration of each Letter of Credit and
each European Letter of Credit as the Borrower and the Issuing Bank shall agree.
(c) ADMINISTRATIVE AGENT'S FEES. The Borrowers shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed between the Borrowers and the Administrative Agent.
(d) EUROPEAN BORROWERS. The European Borrowers will pay fees, including
commitment fees, to KBC in accordance with the applicable KBC Loan Agreements.
SECTION 2.9 CONVERSION OF ADVANCES.
(a) OPTIONAL. The Borrowers may on any Business Day, upon notice given to
the Administrative Agent not later than 1:00 P.M. (New York time) on the third
Business Day prior to the date of the proposed Conversion and subject to the
provisions of Sections 2.7 and 2.10, Convert all or any portion of the Advances
of one Type comprising the same Borrowing into Advances of the other Type;
PROVIDED, HOWEVER, that (i) any Conversion of Eurodollar Rate Advances into
Prime Rate Advances shall be effective only on the last day of an Interest
Period for such Eurodollar Rate Advances unless the Borrowers pay the amounts,
if any, provided for in Section 11.4(c), (ii) any Conversion of Prime Rate
Advances into Eurodollar Rate Advances shall be in an amount not less than the
minimum amount specified in Section 2.1(c), (iii) no Conversion of any Advances
shall result in more separate Borrowings than permitted under Section 2.2(c) and
(iv) each Conversion of Advances comprising part of the same Borrowing under any
Facility shall be made ratably among the appropriate Lenders in accordance with
their Commitments under such Facility. Each such notice of Conversion shall,
within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the Advances to be Converted and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the initial Interest Period for
such Advances. Each notice of Conversion shall be irrevocable and binding on
the Borrowers.
(b) MANDATORY. (i) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $250,000, such Advances shall
automatically Convert into Prime Rate Advances.
(ii) If the Borrowers shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.1, the
Administrative Agent will forthwith so notify the Borrowers and the appropriate
Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Prime
Rate Advance.
53
(iii) Upon the occurrence and during the continuance of any Event
of Default and the acceleration of the Notes, interest thereon and other amounts
payable by the Borrowers under this Agreement and the other Loan Documents
pursuant to Article 9, (A) each Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert into a Prime
Rate Advance and (B) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended.
SECTION 2.10 INCREASED COSTS, ETC.
(a) If, after the date hereof, due to (i) the introduction or
effectiveness of any change in reserve requirements included in the Eurodollar
Rate Reserve Percentage, or any change in the interpretation of or any change in
any law or regulation, or (ii) the compliance with any new guideline or request
from any central bank or other governmental authority (whether or not having the
force of law), there shall be any increase in the cost to any Lender Party of
agreeing to make or of making, funding or maintaining Eurodollar Rate or Prime
Rate Advances or of agreeing to issue or of issuing or maintaining Letters of
Credit or of agreeing to make or of making or maintaining Letter of Credit
Advances (excluding for purposes of this Section 2.10 any such increased costs
resulting from (A) Taxes or Other Taxes (as to which Section 2.12 shall govern)
and (B) changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under the
laws of which such Lender Party is organized or has its Applicable Lending
Office or any political subdivision thereof), then the Borrowers shall from time
to time, upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender Party additional amounts sufficient to compensate such Lender Party for
such increased cost; PROVIDED, HOWEVER, that a Lender Party claiming additional
amounts under this Section 2.10(a) agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a
different Applicable Lending Office if the making of such a designation would
avoid the need for, or reduce the amount of, such increased cost that may
thereafter accrue and would not, in the reasonable judgment of such Lender
Party, be otherwise disadvantageous to such Lender Party. A certificate as to
the amount of such increased cost, submitted to the Borrowers by such Lender
Party, shall be conclusive and binding for all purposes, absent manifest error.
(b) If, after the date hereof, due to (i) the introduction or
effectiveness of, any change in, or any change in the interpretation of any law
or regulation, or (ii) the compliance with any new guideline or request from any
central bank or other governmental authority (whether or not having the force of
law), there shall be any increase in the amount of capital required or
reasonably expected to be maintained by any Lender Party or any corporation
controlling such Lender Party as a result of or based upon the existence of such
Lender Party's commitment to lend or to issue Letters of Credit or the European
Letters of Credit hereunder and other commitments of such type or the issuance
or maintenance of the Letters of Credit or the European Letters of Credit (or
similar contingent obligations), then, upon demand by such Lender Party (with a
copy of such demand to the Administrative Agent), the Borrowers shall pay to the
Administrative Agent for the account of such Lender Party, from time to time as
specified by such Lender Party, additional amounts sufficient to compensate such
Lender Party in respect of such circumstances, to the extent that such Lender
Party
54
reasonably determines such increase in capital to be allocable to the existence
of such Lender Party's commitment to lend or to issue Letters of Credit or the
European Letters of Credit hereunder or to the issuance or maintenance of any
Letters of Credit or the European Letters of Credit. A certificate as to such
amounts submitted to the Borrowers by such Lender Party shall be conclusive and
binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances under any Facility,
Lenders who are owed greater than 50% of the then aggregate unpaid principal
amount thereof notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Lenders of making, funding or maintaining their Eurodollar Rate Advances for
such Interest Period, the Administrative Agent shall forthwith so notify the
Borrowers and the appropriate Lenders, whereupon (i) each such Eurodollar Rate
Advance under any Facility will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Prime Rate Advance and (ii)
the obligation of the appropriate Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrowers that such Lenders have determined that the circumstances
causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if hereafter
the introduction or effectiveness of, any change in the interpretation of, or
any change in any law or regulation shall make it unlawful, or any central bank
or other governmental authority shall assert that it is unlawful, for any Lender
or its Eurodollar Lending Office to perform its obligations hereunder to make
Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate
Advances hereunder, then, on notice thereof and demand therefor by such Lender
to the Borrowers through the Administrative Agent, (i) each Eurodollar Rate
Advance affected by the foregoing under each Facility under which such Lender
has a Commitment will automatically, upon such demand, Convert into a Prime Rate
Advance and (ii) the obligation of the appropriate Lenders to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrowers that such Lender has determined
that the circumstances causing such suspension no longer exist; PROVIDED,
HOWEVER, that before making any such demand, such Lender agrees to use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Eurodollar Lending Office if the making
of such a designation would allow such Lender or its Eurodollar Lending Office
to continue to perform its obligations to make Eurodollar Rate Advances or to
continue to fund or maintain Eurodollar Rate Advances and would not, in the
judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 2.11 PAYMENTS AND COMPUTATIONS.
(a) The Borrowers shall make each payment hereunder and under the Notes,
irrespective of any right of counterclaim or set-off (except as otherwise
provided in Section 2.15), not later than 11:00 A.M. (New York time) on the day
when due in U.S. dollars to the Administrative Agent at the Administrative
Agent's Account in same day funds. The Administrative Agent will promptly
thereafter cause like funds to be distributed (i) if such payment by the
Borrowers is in respect of principal, interest, commitment fees or any other
Obligation then payable hereunder and under the Notes to more than one
55
Lender Party, to such Lender Parties for the account of their respective
Applicable Lending Offices ratably in accordance with the amounts of such
respective Obligations then payable to such Lender Parties and (ii) if such
payment by the Borrowers is in respect of any Obligation then payable hereunder
to one Lender Party, to such Lender Party for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 11.7(d),
from and after the effective date of such Assignment and Acceptance, the
Administrative Agent shall make all payments hereunder and under the Notes in
respect of the interest assigned thereby to the Lender Party assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) If the Administrative Agent receives funds for application to the
Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify or the Borrowers have not specified the Advances or the
Facility to which, or the manner in which, such funds are to be applied, the
Administrative Agent shall distribute such funds to each Lender Party ratably in
accordance with such Lender Party's proportionate share of the principal amount
of all outstanding Advances and the Available Amount of all Letters of Credit
then outstanding in repayment or prepayment of such of the outstanding Advances
or other Obligations hereunder owed to such Lender Party, and for application to
such principal installments, as the Administrative Agent shall direct.
(c) The Borrowers hereby authorize each Lender Party, if and to the extent
payment owed to such Lender Party is not made when due hereunder or, in the case
of a Lender, under the Note held by such Lender, to charge from time to time
against any or all of the Borrowers' accounts with such Lender Party any amount
so due.
(d) All computations of interest, fees and Letter of Credit commissions
shall be made by the Administrative Agent on the basis of a year of 360 days, in
each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest, fees or
commissions are payable. Each determination by the Administrative Agent of an
interest rate, fee or commission hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(e) Whenever any payment hereunder or under the Notes shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; PROVIDED, HOWEVER, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(f) Unless the Administrative Agent shall have received notice from the
Borrowers prior to the date on which any payment is due to any Lender Party
hereunder that the Borrowers will not make such payment in full, the
Administrative Agent may assume that the Borrowers have made such payment in
full to the Administrative Agent on such date and the Administrative Agent may,
in reliance
56
upon such assumption, cause to be distributed to each such Lender Party on such
due date an amount equal to the amount then due such Lender Party. If and to
the extent the Borrowers shall not have so made such payment in full to the
Administrative Agent, each such Lender Party shall repay to the Administrative
Agent forthwith on demand such amount distributed to such Lender Party together
with interest thereon, for each day from the date such amount is distributed to
such Lender Party until the date such Lender Party repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 2.12 TAXES.
(a) Any and all payments by the Borrowers hereunder or under the Notes
shall be made, in accordance with Section 2.11, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding (i)
in the case of each Lender Party and the Administrative Agent, net income taxes
that are imposed by the United States and net income taxes (or franchise taxes
imposed in lieu thereof) that are imposed on such Lender Party or the
Administrative Agent by the state or foreign jurisdiction under the laws of
which such Lender Party or the Administrative Agent (as the case may be) is
organized or any political subdivision thereof, (ii) in the case of each Lender
Party, net income taxes (or franchise taxes imposed in lieu thereof) that are
imposed on such Lender Party by the state or foreign jurisdiction of such Lender
Party's Applicable Lending Office or any political subdivision thereof, and
(iii) in the case of any Lender Party that becomes a Lender Party after the
Closing Date pursuant to Section 11.7, any taxes imposed by the United States
solely by reason of the organization or incorporation of such Lender Party
outside the United States (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "TAXES"). If the
Borrowers shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note to any Lender Party or the
Administrative Agent, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.12) such Lender Party or the
Administrative Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrowers shall
make such deductions and (iii) the Borrowers shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Borrowers shall pay any present or future stamp,
documentary, excise, property or similar taxes, charges or levies that arise
from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, performing under, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "OTHER TAXES").
(c) The Borrowers shall indemnify each Lender Party and the Administrative
Agent for the full amount of Taxes and Other Taxes, and for the full amount of
taxes imposed by any jurisdiction on amounts payable under this Section 2.12,
imposed on or paid by such Lender Party or the Administrative Agent (as the case
may be) and any liability (including penalties, additions to tax, interest and
expenses) arising therefrom or with respect thereto, except with respect to any
Lender Party or the Administrative Agent, as the case may be, for such a
liability arising from such Lender Party's
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or the Administrative Agent's, as the case may be, willful misconduct or gross
negligence. This indemnification shall be made within thirty (30) days from the
date such Lender Party or the Administrative Agent, as the case may be, makes
written demand specifying in reasonable detail the basis therefor.
(d) Within thirty (30) days after the date of any payment of Taxes, the
Borrowers shall furnish to the Administrative Agent, at its address referred to
in Section 11.2, the original receipt of payment thereof or a certified copy of
such receipt. In the case of any payment hereunder or under the Notes by or on
behalf of the Borrowers through an account or branch outside the United States
or by or on behalf of the Borrowers by a payor that is not a United States
person, if the Borrowers determine that no Taxes are payable in respect thereof,
the Borrowers shall furnish, or shall cause such payor to furnish, to the
Administrative Agent, at such address, an opinion of counsel reasonably
acceptable to the Administrative Agent stating that such payment is exempt from
Taxes. For purposes of this subsection (d) and subsection (e), the terms
"UNITED STATES" and "UNITED STATES PERSON" shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction outside
the United States shall, on or prior to the date of its execution and delivery
of this Agreement in the case of each Initial Lender or Initial Issuing Bank, as
the case may be, and on the date of the Assignment and Acceptance pursuant to
which it became a Lender Party in the case of each other Lender Party, and from
time to time thereafter as reasonably requested in writing by the Borrowers or
the Administrative Agent (but only so long thereafter as such Lender Party
remains lawfully able to do so), provide each of the Administrative Agent and
the Borrowers with two (2) original Internal Revenue Service forms 1001 or 4224,
as appropriate, or any successor or other form prescribed by the Internal
Revenue Service, certifying that such Lender is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes. If the forms provided by a Lender Party at the time
such Lender Party first becomes a party to this Agreement indicates a United
States interest withholding tax rate in excess of zero, withholding tax at such
rate shall be considered excluded from Taxes unless and until such Lender Party
provides the appropriate form certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form; PROVIDED, HOWEVER, that, if at the date of
the Assignment and Acceptance pursuant to which a Lender Party becomes a party
to this Agreement, the Lender Party assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender Party assignee on such date. If any form
or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001 or
4224, that the Lender Party reasonably considers to be confidential, the Lender
Party shall give notice thereof to the Borrowers and shall not be obligated to
include in such form or document such confidential information.
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(f) For any period with respect to which a Lender Party has failed to
provide the Borrowers with the appropriate form described in subsection (e)
(other than if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such form otherwise
is not required under subsection (e)), such Lender Party shall not be entitled
to indemnification under subsection (a) or (c) with respect to Taxes imposed by
the United States by reason of such failure; PROVIDED, HOWEVER, that should a
Lender Party become subject to Taxes because of its failure to deliver a form
required hereunder, the Borrowers shall take such steps as such Lender Party
shall reasonably request to assist such Lender Party to recover such Taxes.
(g) Any Lender Party claiming any additional amounts payable pursuant to
this Section 2.12 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurodollar Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender Party, be
otherwise disadvantageous to such Lender Party.
SECTION 2.13 SHARING OF PAYMENTS, ETC. If any Lender Party shall obtain
at any time any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) (i) on account of Obligations due and
payable to such Lender Party hereunder or under the Notes at such time in excess
of its ratable share (according to the proportion of (x) the amount of such
Obligations hereunder due and payable to such Lender Party at such time to (y)
the aggregate amount of the Obligations due and payable to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations due and payable to all Lender Parties hereunder or under the Notes
at such time obtained by all the Lender Parties at such time or (ii) on account
of Obligations owing (but not due and payable) to such Lender Party hereunder
and under the Notes at such time in excess of its ratable share (according to
the proportion of (x) the amount of such Obligations hereunder owing to such
Lender Party at such time to (y) the aggregate amount of the Obligations owing
(but not due and payable) to all Lender Parties hereunder and under the Notes at
such time) of payments on account of the Obligations owing (but not due and
payable) to all Lender Parties hereunder and under the Notes at such time
obtained by all of the Lender Parties at such time, such Lender Party shall
forthwith purchase from the other Lender Parties such participations in the
Obligations due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; PROVIDED, HOWEVER, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender Party, such
purchase from each other Lender Party shall be rescinded and each such other
Lender Party shall repay to the purchasing Lender Party the purchase price to
the extent of such Lender Party's ratable share (according to the proportion of
(x) the purchase price paid to such Lender Party to (y) the aggregate purchase
price paid to all Lender Parties) of such recovery together with an amount equal
to such Lender Party's ratable share (according to the proportion of (x) the
amount of such other Lender Party's required repayment to (y) the total amount
of all such required repayments to the purchasing Lender Party) of any interest
or other amount paid or payable by the purchasing Lender Party in respect of the
total amount so recovered.
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The Borrowers agree that any Lender Party so purchasing a participation from
another Lender Party pursuant to this Section 2.13 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender Party
were the direct creditor of the Borrowers in the amount of such participation.
SECTION 2.14 USE OF PROCEEDS. The proceeds of the Advances and issuances
of Letters of Credit shall be available, and the Borrowers shall use such
proceeds and Letters of Credit solely (a) to finance in part the AIG
Acquisition, (b) to pay fees and expenses incurred in connection with the AIG
Acquisition and the Transaction, and (c) to finance working capital and capital
expenditures of the Borrowers.
SECTION 2.15 DEFAULTING LENDERS. (a) In the event that, at any one time,
(i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting Lender
shall owe a Defaulted Advance to the Borrowers and (iii) the Borrowers shall be
required to make any payment hereunder or under any other Loan Document to or
for the account of such Defaulting Lender, then the Borrowers may, so long as no
Default shall occur or be continuing at such time and to the fullest extent
permitted by applicable law, set off and otherwise apply the obligation of the
Borrowers to make such payment to or for the account of such Defaulting Lender
against the obligation of such Defaulting Lender to make such Defaulted Advance.
In the event that, on any date, the Borrowers shall so set off and otherwise
apply its obligation to make any such payment against the obligation of such
Defaulting Lender to make any such Defaulted Advance on or prior to such date,
the amount so set off and otherwise applied by the Borrowers shall constitute
for all purposes of this Agreement and the other Loan Documents an Advance by
such Defaulting Lender made on the date under the Facility pursuant to which
such Defaulted Advance was originally required to have been made pursuant to
Section 2.1. Such Advance shall be a Prime Rate Advance and shall be considered,
for all purposes of this Agreement, to comprise part of the Borrowing in
connection with which such Defaulted Advance was originally required to have
been made pursuant to Section 2.1, even if the other Advances comprising such
Borrowing shall be Eurodollar Rate Advances on the date such Advance is deemed
to be made pursuant to this subsection (a). The Borrowers shall notify the
Administrative Agent at any time the Borrowers exercise their right of set-off
pursuant to this subsection (a) and shall set forth in such notice (A) the name
of the Defaulting Lender and the Defaulted Advance required to be made by such
Defaulting Lender and (B) the amount set off and otherwise applied in respect of
such Defaulted Advance pursuant to this subsection (a). Any portion of such
payment otherwise required to be made by the Borrowers to or for the account of
such Defaulting Lender which is paid by the Borrowers, after giving effect to
the amount set off and otherwise applied by the Borrowers pursuant to this
subsection (a), shall be applied by the Administrative Agent as specified in
subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
the Administrative Agent or any of the other Lender Parties and (iii) the
Borrowers shall make any payment hereunder or under any other Loan Document to
the Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Lender
Parties and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrowers to or for the
60
account of such Defaulting Lender to the payment of each such Defaulted Amount
to the extent required to pay such Defaulted Amount. In the event that the
Administrative Agent shall so apply any such amount to the payment of any such
Defaulted Amount on any date, the amount so applied by the Administrative Agent
shall constitute for all purposes of this Agreement and the other Loan
Documents, payment, to such extent, of such Defaulted Amount on such date. Any
such amount so applied by the Administrative Agent shall be retained by the
Administrative Agent or distributed by the Administrative Agent to such other
Lender Parties, ratably in accordance with the respective portions of such
Defaulted Amounts payable at such time to the Administrative Agent and such
other Lender Parties and, if the amount of such payment made by the Borrowers
shall at such time be insufficient to pay all Defaulted Amounts owing at such
time to the Administrative Agent and the other Lender Parties, in the following
order of priority:
(i) FIRST, to the Administrative Agent for any Defaulted Amount then
owing to the Administrative Agent; and
(ii) SECOND, to the Lender Parties for any Defaulted Amounts then
owing to such Lender Parties, ratably in accordance with such respective
Defaulted Amounts then owing to such Lender Parties.
Any portion of such amount paid by the Borrowers for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted Advance
or a Defaulted Amount and (iii) the Borrowers, the Administrative Agent or any
other Lender Party shall be required to pay or distribute any amount hereunder
or under any other Loan Document to or for the account of such Defaulting
Lender, then the Borrowers or such other Lender Party shall pay such amount to
the Administrative Agent to be held by the Administrative Agent, to the fullest
extent permitted by applicable law, in escrow or the Administrative Agent shall,
to the fullest extent permitted by applicable law, hold in escrow such amount
otherwise held by it. Any funds held by the Administrative Agent in escrow
under this subsection (c) shall be deposited by the Administrative Agent in an
account with Fleet, in the name and under the control of the Administrative
Agent, but subject to the provisions of this subsection (c). The terms
applicable to such account, including the rate of interest payable with respect
to the credit balance of such account from time to time, shall be Fleet's
standard terms applicable to escrow accounts maintained with it. Any interest
credited to such account from time to time shall be held by the Administrative
Agent in escrow under, and applied by the Administrative Agent from time to time
in accordance with the provisions of, this subsection (c). The Administrative
Agent shall, to the fullest extent permitted by applicable law, apply all funds
so held in escrow from time to time to the extent necessary to make any Advances
required to be made by such Defaulting Lender and to pay any amount payable by
such Defaulting Lender hereunder and under the other Loan Documents to the
Administrative Agent or any other Lender Party, as and when such Advances or
amounts are required
61
to be made or paid and, if the amount so held in escrow shall at any time be
insufficient to make and pay all such Advances and amounts required to be made
or paid at such time, in the following order of priority:
(i) FIRST, to the Administrative Agent for any amount then due and
payable by such Defaulting Lender to the Administrative Agent hereunder;
(ii) SECOND, to the Lender Parties for any amount then due and payable
by such Defaulting Lender to such Lender Parties hereunder, ratably in
accordance with such respective amounts then due and payable to such Lender
Parties; and
(iii) THIRD, to the Borrowers for any Advance then required to be made
by such Defaulting Lender pursuant to a Commitment of such Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations then or theretofore due and payable to such
Lender Party at such time under this Agreement and the other Loan Documents in
such manner as the Administrative Agent shall reasonably direct (or, if no such
Obligations are then due and payable to such Lender Party, or, if no such
Obligations are otherwise then due and payable to any Lender Party or the
Administrative Agent hereunder or under any of the other Loan Documents or the
amounts distributable to such Lender Party exceed such Obligations, the excess
amounts shall be paid over to the Borrowers).
(d) The rights and remedies against a Defaulting Lender under this Section
2.15 are in addition to other rights and remedies that the Borrowers may have
against such Defaulting Lender with respect to any Defaulted Advance and that
the Administrative Agent or any Lender Party may have against such Defaulting
Lender with respect to any Defaulted Amount.
SECTION 2.16 DOMICILE OF LOANS.
Each Lender may transfer and carry its Loans at, to or for the account of
any office, subsidiary or affiliate of such Lender. Notwithstanding anything to
the contrary contained herein, to the extent that a transfer of Loans pursuant
to this Section 2.16 would, at the time of such transfer, result in increased
costs under Section 2.10 or 2.12 hereof from those being charged by the
respective Lender prior to such transfer, then the Borrowers shall not be
obligated to pay such increased costs (although the Borrowers shall be obligated
to pay any other reasonable increased costs of the type described above
resulting from changes after the date of the respective transfer).
SECTION 2.17 EUROPEAN LETTERS OF CREDIT.
(a) ISSUANCE OF EUROPEAN LETTERS OF CREDIT; PARTICIPATION BY LENDERS.
Provided each of the conditions precedent set forth in Article 3 hereof shall
have been fulfilled to the satisfaction of the
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European Letter of Credit Bank, the European Letters of Credit shall be issued
on the Closing Date. Each notice of reduction with respect to, a European
Letter of Credit shall specify therein the requested date of such reduction
(which shall be a Business Day). The European Letter of Credit Bank shall have
no obligation to issue the European Letters of Credit in the event the Lenders
shall, for any reason, have no obligation to participate therein as hereinafter
provided. All European Letters of Credit shall comply with the terms and
conditions of the European Letter of Credit Agreements.
(b) PARTICIPATION IN EUROPEAN LETTERS OF CREDIT. Immediately upon the
issuance of the European Letters of Credit, each Lender that has a European
Letter of Credit Commitment shall be deemed to, and hereby severally agrees to,
have irrevocably purchased from the European Letter of Credit Bank a
participation in each European Letter of Credit and drawings thereunder in an
amount equal to such Lender's pro rata share (based upon the proportion that its
European Letter of Credit Commitment bears to the aggregate European Letter of
Credit Commitments of all of the Lenders) of the maximum amount which is or at
any time may become available to be drawn under such European Letters of Credit.
(c) REIMBURSEMENT OBLIGATION. The European Letter of Credit Bank shall
immediately notify the Borrowers and the Administrative Agent of its
determination to honor a request for drawing under any European Letter of
Credit, and the Borrowers shall reimburse the European Letter of Credit Bank on
the date on which such drawing is honored (such date, the "DISBURSEMENT DATE")
in same day funds equal to the amount of such drawing, together with interest
thereon, if reimbursement is not made on such date, at a rate per annum equal to
2% per annum above the rate per annum from time to time in effect for Prime Rate
Revolving Credit Advances from the Disbursement Date to the date of
reimbursement.
(d) LENDERS' FUNDING OBLIGATIONS.
(i) In the event that the Borrowers shall fail for any reason to
reimburse the European Letter of Credit Bank as provided in paragraph (c) above,
the Administrative Agent shall promptly notify each Lender that has a European
Letter of Credit Commitment of the unreimbursed amount of such drawing and of
such Lender's respective participation therein based on such Lender's European
Letter of Credit Commitment, and each such Lender shall make available to the
Administrative Agent an amount equal to its respective participation in same day
funds, at the office of the Administrative Agent specified in such notice, not
later than 11:00 a.m. (New York time) on the first Business Day after the date
notified by the Administrative Agent. In the event that any such Lender shall
fail to make available to the Administrative Agent on such Business Day the
amount of such Lender's participation in the European Letters of Credit, as
provided in this paragraph (d), the Administrative Agent shall be entitled to
recover such amount on demand from such Lender together with interest thereon at
the rate per annum equal to the Prime Rate for and determined as of each day
during such period. Nothing in this paragraph (d) shall be deemed to relieve the
Borrowers from their obligation to reimburse the Administrative Agent as
provided in the foregoing paragraph (c).
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(ii) In the event that the Administrative Agent shall have been
reimbursed by the Lenders that have European Letter of Credit Commitments for
all or any portion of any drawing honored by the European Letter of Credit Bank
under any European Letter of Credit, the Administrative Agent shall distribute
to each Lender which has paid all amounts payable by it hereunder with respect
to such drawing such Lender's pro rata share (based upon the proportion that its
European Letter of Credit Commitment bears to the aggregate European Letter of
Credit Commitments of all of the Lenders) of all payments subsequently received
by the Administrative Agent from the Borrowers in reimbursement of such drawing
when such payments are received. Promptly upon receipt by the Administrative
Agent of any payment of interest in respect of the Borrowers' reimbursement
obligation with respect to a drawing, in the event the Administrative Agent
shall have been reimbursed by any Lender that has a European Letter of Credit
Commitment for all or any portion of such drawing, the Administrative Agent
shall distribute to such Lender which has paid all amounts payable by it
hereunder with respect to such drawing such Lender's pro rata share (based upon
the proportion that its European Letter of Credit Commitment bears to the
aggregate European Letter of Credit Commitments of all of the Lenders) of any
interest received by the Administrative Agent in respect of that portion of such
drawing so reimbursed by such Lender.
(e) FEES. Certain matters relating to fees payable in respect of the
European Letters of Credit are referred to in Section 2.8.
SECTION 2.18 JOINT AND SEVERAL LIABILITY OF BORROWERS
(a) Notwithstanding any other provision or implication in this Agreement,
or any failure to designate whether liability is joint or several, each Borrower
hereby agrees that such Borrower is jointly and severally liable for the full
and prompt payment (whether at stated maturity, by acceleration or otherwise)
and performance of all Obligations under the Loan Documents owed or hereafter
owing to the Secured Parties by each other Borrower. Each Borrower agrees that
its liability for such Obligations is absolute and unconditional, irrespective
of, and unaffected by,
(i) the genuineness, validity, regularity, enforceability or any
future amendment of, or change in, this Agreement, any other Loan Document or
any other agreement, document or instrument to which any Borrower is or may
become a party;
(ii) the absence of any action to enforce this Agreement (including
this Section 2.18) or any other Loan Document or any waiver or consent by the
Lender Parties with respect to any of the provisions thereof;
(iii) the existence, value or condition of, or failure to perfect
its Lien against, any security for such Obligations or any action, or the
absence of any action, by the Administrative Agent or the Lender Parties in
respect thereof (including, without limitation, the release of any such
security);
(iv) the insolvency of any Loan Party; or
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(v) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being agreed by each Borrower that its Obligations under this Agreement and
the other Loan Documents shall not be discharged until the payment and
performance, in full, of such Obligations has occurred, and any allocations of
any payments or prepayments made hereunder shall not affect the Borrowers' joint
and several liability for such Obligations. Each Borrower shall be regarded as
principal debtor with respect to such Obligations. Each Borrower expressly
waives all rights it may have now or in the future under any statute, or at
common law, or at law or in equity, or otherwise to compel the Administrative
Agent or the Secured Parties to marshal assets or to proceed in respect of the
Obligations against any other Loan Party, any other party or against any
security for the payment and performance of the Obligations before proceeding
against, or as a condition to proceeding against, such Borrower. It is agreed
among the Borrowers, the Administrative Agent and the Secured Parties that the
foregoing waivers are of the essence of the transaction contemplated by this
Agreement and the other Loan Documents and that, but for the provisions of this
Section 2.18 and such waivers, the Administrative Agent and the Lender Parties
would decline to enter into this Agreement.
(b) Notwithstanding anything to the contrary in this Agreement or in any
other Loan Document, each Borrower hereby expressly and irrevocably subordinates
to payment of the Obligations under the Loan Documents any and all rights at law
or in equity to subrogation, reimbursement, exoneration, contribution,
indemnification or set off and any and all defense available to a surety,
guarantor or accommodation co-obligor until such Obligations are indefeasibly
paid in full in cash. Each Borrower acknowledges and agrees that this waiver is
intended to benefit the Administrative Agent and the Secured Parties and shall
not limit or otherwise affect such Borrower's liability hereunder or the
enforceability of this Section 2.18 and that the Administrative Agent, the
Lender Parties and their respective successors and assigns are intended third
party beneficiaries of the waivers and agreements set forth in this Section
2.18.
(c) If the Administrative Agent on behalf of the Secured Parties may,
under applicable law, proceed to realize its benefits under any of the Loan
Documents giving the Administrative Agent a Lien, for the ratable benefit of the
Secured Parties upon any Collateral, whether owned by any Borrower or by any
other Person, either by judicial foreclosure or by non-judicial sale or
enforcement, the Administrative Agent may, at its sole option, determine which
of its remedies or rights it may pursue without affecting any of its rights and
remedies under this Section 2.18 or otherwise. If, in the exercise of any of
its rights and remedies, the Administrative Agent shall forfeit any of its
rights or remedies, including its right to enter a deficiency judgment against
any Borrower or any other Person, whether because of any applicable laws
pertaining to "election of remedies" or the like, each Borrower hereby consents
to such action by the Administrative Agent and waives any claim based upon such
action, even if such action by the Administrative Agent shall result in a full
or partial loss of any rights of subrogation which each Borrower might otherwise
have had but for such action by the Administrative Agent. Any election of
remedies which result in the denial or impairment of the right of the
Administrative Agent to seek a deficiency judgment against any Borrower shall
not impair any other Borrower's obligation to pay the full amount of the
Obligations under the Loan Documents. In the
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event the Administrative Agent shall bid at any foreclosure or trustee's sale or
at any private sale permitted by law or the Loan Documents, the Administrative
Agent may bid all or less than the amount of the Obligations under the Loan
Documents and the amount of such bid need not be paid by the Administrative
Agent but shall be credited against such Obligations. The amount of the
successful bid at any such sale which is conducted in a commercially reasonable
manner (to the extent so required by applicable law) and in accordance with
applicable law, whether the Administrative Agent or any other party is the
successful bidder, shall be conclusively deemed to be the fair market value of
the Collateral and the difference between such bid amount and the remaining
balance of the Obligations under the Loan Documents shall be conclusively deemed
to be the amount of such Obligations guaranteed under this Section 2.18,
notwithstanding that any present or future law or court decision or ruling may
have the effect of reducing the amount of any deficiency claim to which the
Administrative Agent or Secured Parties might otherwise be entitled but for such
bidding at any such sale.
(d) FRAUDULENT CONVEYANCES. Notwithstanding Sections 2.18(a), (b) and (c)
above, it is the intent of the parties hereto that the liability incurred by a
Borrower in respect of the Obligations hereunder of the other Borrowers (and any
Lien granted by a Borrower to secure such Obligations), not constitute a
Fraudulent Conveyance. Consequently, each Borrower, the Administrative Agent and
each Lender Party hereby agrees that if a court of competent jurisdiction
determines that the incurrence of liability by a Borrower in respect of the
Obligations hereunder of any other Borrower (or any Liens granted by a Borrower
to secure such Obligations) would, but for the application of this sentence,
constitute a Fraudulent Conveyance, such liability (and such Liens) shall be
valid and enforceable only to the maximum extent that would not cause the same
to constitute a Fraudulent Conveyance and this Agreement and the other Loan
Documents shall automatically be deemed to have been amended accordingly. For
purposes of this Section, "Fraudulent Conveyance" shall mean a fraudulent
conveyance under Section 548 of the United States Bankruptcy Code or a
fraudulent conveyance or fraudulent transfer under the provisions of any
applicable fraudulent conveyance or fraudulent transfer law or similar law of
any state, province, nation or other governmental unit, as in effect from time
to time.
ARTICLE 3
CONDITIONS OF LENDING
SECTION 3.1 CONDITIONS PRECEDENT TO INITIAL EXTENSION OF CREDIT. The
obligation of each Lender to make an Advance or of the Issuing Bank to issue a
Letter of Credit on the occasion of the Initial Extension of Credit hereunder is
subject to the satisfaction of each of the following conditions precedent before
or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day of
the Initial Extension of Credit the following, each dated such day (unless
otherwise specified), in form and substance satisfactory to the Administrative
Agent and the Lenders, and in sufficient copies (except for the Notes), for the
Administrative Agent and each Initial Lender:
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(i) The Notes payable to the order of the Initial Lenders duly
executed by the Borrowers.
(ii) A security agreement in substantially the form of EXHIBIT G-1
granting to the Administrative Agent, for the ratable benefit of the Secured
Parties, a first and only (subject to Permitted Liens) priority security
interest in all of the personal property and assets of each Borrower and each
Domestic Subsidiary (as hereafter amended, supplemented or otherwise modified
from time to time in accordance with its terms, the "INITIAL SECURITY
AGREEMENT"), duly executed by each Borrower and each Domestic Subsidiary,
together with:
(A) proper, duly executed financing statements under the
Uniform Commercial Code of all jurisdictions that the Administrative Agent
may deem necessary or desirable in order to perfect and protect the first
and only (subject to Permitted Liens) priority Liens and security interests
created under the Initial Security Agreement, covering the Collateral
described in the Initial Security Agreement;
(B) completed requests for information, dated on or before
the date of the Initial Extension of Credit, listing all effective
financing statements filed that name any Borrower or any Domestic
Subsidiary as debtor, together with copies of such financing statements;
(C) evidence of the completion of all other recordings and
filings of or with respect to the Initial Security Agreement that the
Administrative Agent may deem necessary or desirable in order to perfect
and protect the Liens created thereby;
(D) evidence of the insurance required by the terms of the
Initial Security Agreement;
(E) copies of the Assigned Agreements, if any, referred to
in the Initial Security Agreement, together with a consent to such
assignments, if any, in substantially the form of Exhibit B to the Initial
Security Agreement, duly executed by each party to such Assigned Agreements
other than the Borrowers or Subsidiaries;
(F) certificates representing the Pledged Shares referred
to in the Initial Security Agreement, accompanied by undated stock powers
executed in blank and irrevocable proxies (exercisable only during the
continuance of an Event of Default);
(G) in the case of each of any Borrower's Foreign
Subsidiaries, all action necessary to allow the Administrative Agent to
obtain a valid and enforceable, first priority, perfected security interest
in 65% (or up to 100% if not prohibited by applicable law or resulting in
materially adverse tax consequences to any Borrower or any Subsidiary) of
the stock of such Foreign Subsidiary and opinions in form and substance
satisfactory to (and addressed to) the Lenders and the Administrative Agent
from appropriate local and foreign counsel; and
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(H) evidence that all other action that the Administrative
Agent may deem necessary or desirable in order to perfect and protect the
first and only (subject to Permitted Liens) priority liens and security
interests created under the Initial Security Agreement has been taken by
the applicable Loan Party, INCLUDING, without limitation payment of all
necessary or appropriate filing and recording fees and taxes.
(iii) A collateral assignment of lease in substantially the form of
EXHIBIT H assigning to the Administrative Agent, for the ratable benefit of the
Secured Parties, by Posterloid, the leasehold interest in the lease of
Posterloid's facility located in Long Island City, New York, and by Greensteel,
the leasehold interest in the lease of Greensteel's facility located in
Riverside, California (each, as hereafter amended, supplemented or otherwise
modified from time to time in accordance with its terms, a "COLLATERAL
ASSIGNMENT OF LEASE"), duly executed by the applicable Loan Party, together with
a recognition agreement duly executed by the property owner pursuant to which
the property owner shall (A) consent to such collateral assignment, (B)
acknowledge the interest of the Administrative Agent, for the ratable benefit of
the Secured Parties and (C) permit the Administrative Agent to become the
successor in interest to the applicable Loan Party under the lease.
(iv) (A) Fully executed counterparts of Mortgages duly executed
by the applicable Loan Party, together with evidence that counterparts of the
Mortgages have been delivered to a title insurance company (reasonably
acceptable to the Administrative Agent) insuring the Lien of the Mortgages for
recording in all places to the extent necessary or desirable, in the reasonable
judgment of the Lenders, to create a valid and enforceable first priority lien
on each Mortgaged Property listed on SCHEDULE 4.21 (subject only to Permitted
Real Property Encumbrances) in favor of the Administrative Agent (or a trustee
acting on behalf of the Administrative Agent required or desired under local
law) for the benefit of the Secured Parties;
(B) If required by the Administrative Agent, mortgagee
title insurance policies (or binding commitments to issue such title
insurance policies) which shall (1) be issued to the Administrative Agent
for the benefit of the Secured Parties by title insurance companies
reasonably satisfactory to the Administrative Agent (the "MORTGAGE
POLICIES") in amounts reasonably satisfactory to the Administrative Agent
insuring that the Mortgages are valid and enforceable first priority
mortgage liens on the respective Mortgaged Properties, free and clear of
all defects, encumbrances and other Liens except Permitted Real Property
Encumbrances, (2) be in form and substance reasonably satisfactory to the
Administrative Agent, (3) include, as appropriate, an endorsement for
future advances under this Agreement, the Notes and the Mortgages and such
other endorsements that the Administrative Agent in its discretion may
reasonably request, (4) not include an exception for mechanics' liens, and
(5) provide for affirmative insurance and such reinsurance (including
direct access agreements) as the Administrative Agent in its discretion may
reasonably request; and
(C) If required by the Administrative Agent, surveys,
in form and substance satisfactory to the Administrative Agent, of each
Mortgaged Property listed on SCHEDULE 4.21, dated a recent date reasonably
acceptable to the Administrative Agent, certified by a licensed
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professional surveyor in a manner satisfactory to the Administrative Agent
for the benefit of the Lenders.
(v) An intellectual property security agreement in substantially
the form of EXHIBIT I granting to the Administrative Agent for the ratable
benefit of the Secured Parties a first and only priority security interest in
all of each Borrower's and each Domestic Subsidiary's intellectual property
(together with each other intellectual property security agreement delivered
pursuant to Section 5.13, in each case as amended, supplemented or otherwise
modified from time to time in accordance with its terms, each an "INTELLECTUAL
PROPERTY SECURITY AGREEMENT"), duly executed by each Borrower and each Domestic
Subsidiary, together with evidence that all action that the Administrative Agent
may deem necessary or desirable in order to perfect and protect the first and
only priority Liens and security interests created under the Intellectual
Property Security Agreement has been taken.
(vi) A guaranty in substantially the form of EXHIBIT J guarantying
the prompt payment, when and as due, of all obligations of the European
Borrowers under the KBC Loan Documents (as hereafter amended, supplemented or
otherwise modified from time to time in accordance with its terms, the "KBC
GUARANTY"), duly executed by each Borrower.
(vii) A guaranty in substantially the form of EXHIBIT K guarantying
the prompt payment, when and as due, of all Obligations of the Loan Parties
under the Loan Documents, including all obligations under any Hedge Agreements
or other hedging agreements (as hereafter amended, supplemented or otherwise
modified from time to time in accordance with its terms (the "SUBSIDIARY
GUARANTY"), duly executed by APV.
(viii) A security agreement in substantially the form of Exhibit G-2
granting to the Administrative Agent, for the ratable benefit of the Secured
Parties, a first and only (subject to Permitted Liens) priority security
interest in all of the personal property and assets of AIG (as hereafter
amended, supplemented or otherwise modified from time to time in accordance with
its terms, the "AIG Security Agreement"), duly executed by AIG, together with:
(A) certificates representing all of the issued and
outstanding capital stock of Alliance America Corporation, accompanied by
undated stock powers executed in blank; and
(B) evidence that all other action that the Administrative
Agent may deem necessary or desirable in order to perfect and protect the
first and only (subject to Permitted Liens) priority liens and security
interests created under the AIG Security Agreement has been taken by AIG,
INCLUDING, without limitation payment of all necessary or appropriate
filing and recording fees and taxes.
(b) The Administrative Agent shall have received on or before the day of
the Initial Extension of Credit the following, each dated such day (unless
otherwise specified), in form and substance satisfactory to the Administrative
Agent and the Lenders, and in sufficient copies (except for the Notes), for the
Administrative Agent and each Initial Lender:
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(i) Certified copies of the resolutions of the Board of Directors
of each Loan Party approving the AIG Acquisition, this Agreement, the Notes, and
each other Loan Document and AIG Acquisition Document to which it is or is to be
a party and each of the Merger Documents to which it is to be a party, and of
all documents evidencing other necessary corporate action and governmental and
other third party approvals and consents, if any, with respect to the AIG
Acquisition, this Agreement, the Notes, and each other Loan Document and AIG
Acquisition Document and certified copies of each of the Merger Documents.
(ii) A copy of the charter of each Loan Party and each amendment
thereto, certified (as of a date reasonably near the date of the Initial
Extension of Credit) by the Secretary of State of the jurisdiction of its
incorporation as being a true and correct copy thereof.
(iii) A copy of a certificate of the Secretary of State of the
jurisdiction of its incorporation, dated within ten (10) Business Days prior to
the date of the Initial Extension of Credit, listing the charter of each Loan
Party and each amendment thereto on file in its office and certifying that (A)
such amendments are the only amendments to such Loan Party's charter on file in
its office, (B) such Loan Party has paid all franchise taxes to the date of such
certificate and (C) such Loan Party is duly incorporated and in good standing
under the laws of the State of the jurisdiction of its incorporation.
(iv) A copy of a certificate of the Secretary of State of each
State listed on SCHEDULE 4.2, dated reasonably near the date of the Initial
Extension of Credit, stating that each Loan Party specified for such State on
SCHEDULE 4.2 is duly qualified and in good standing as a foreign corporation in
such State and has filed all annual reports required to be filed to the date of
such certificate.
(v) A certificate of each Loan Party signed on behalf of such Loan
Party by a Responsible Officer and the Secretary or an Assistant Secretary of
such Loan Party, dated the date of the Initial Extension of Credit (and the
statements made in such certificate shall be true on and as of the date of the
Initial Extension of Credit), certifying as to (A) the absence of any amendments
to the charter of such Loan Party since the date of the Secretary of State's
certificate referred to in Section 3.1(a), (B) a true and correct copy of the
bylaws of such Loan Party as in effect on the date of the Initial Extension of
Credit, (C) the due incorporation and good standing of such Loan Party as a
corporation organized under the laws of the jurisdiction of its incorporation,
and the absence of any proceeding for the dissolution or liquidation of such
Loan Party, (D) the truth of the representations and warranties made by such
Loan Party in the Information Memorandum, any Pre-Commitment Information, the
Loan Documents and the AIG Acquisition Documents as though made on and as of the
date of the Initial Extension of Credit and (E) the absence of any event
occurring and continuing, or resulting from the Initial Extension of Credit,
that constitutes a Default or an Event of Default.
(vi) A certificate of the Secretary or an Assistant Secretary of
each Loan Party certifying the names and true signatures of the officers of such
Loan Party authorized to sign this Agreement, the Notes, each other Loan
Document to which they are or are to be parties and the other documents to be
delivered hereunder and thereunder.
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(vii) Such financial, business and other information regarding each
Loan Party and each such Person's Subsidiaries as any of the Lenders shall have
reasonably requested, including, without limitation, information as to possible
contingent liabilities, tax matters, Environmental Actions, Environmental
Permits, obligations under Plans, Multiemployer Plans and Welfare Plans,
collective bargaining agreements and other arrangements with employees, audited
annual financial statements dated April 30, 1998 for PolyVision and its
Subsidiaries and December 31, 1997 for AIG and its Subsidiaries, interim
financial statements dated the end of the most recent fiscal quarter for which
financial statements are available (or, in the event the Initial Lenders' due
diligence review reveals material changes since such financial statements, as of
a later date within thirty (30) days of the day of the Initial Extension of
Credit), pro forma financial statements as to each of the Borrowers and
forecasts prepared by management of the Borrowers, all in form and substance
reasonably satisfactory to the Lenders.
(viii) A Notice of Borrowing pursuant to which the Borrowers shall
request an Initial Extension of Credit in such amounts so that the aggregate
principal amount of the Senior Subordinated Notes and indebtedness outstanding
under the Facilities, including the face amount of all European Letters of
Credit, on the Closing Date shall not exceed Seventy-Four Million Dollars
($74,000,000).
(ix) A Borrowing Base Certificate.
(c) (i) The conversion of Alpine's and Kirkbi Project A/S' preferred
stock and accrued dividends in PolyVision into common stock and/or preferred
stock of PolyVision shall have occurred all upon terms and conditions
satisfactory to the Administrative Agent.
(ii) Alpine shall have contributed not less than Five Million
($5,000,000) Dollars cash as a capital contribution to PolyVision in
consideration for the issuance by PolyVision to Alpine of shares of PolyVision
Preferred Stock on terms and conditions satisfactory to the Administrative
Agent.
(iii) The Junior Subordinated Note shall have been issued on terms
and conditions satisfactory to the Administrative Agent.
(iv) PolyVision shall have issued and received the full gross
proceeds of not less than Twenty-Five Million ($25,000,000) Dollars (less
customary transaction costs) of the Senior Subordinated Notes with a current pay
cash coupon of not greater than thirteen percent (13%) per annum and maturity
and amortization of at least eight (8) years following the Closing Date, all
upon terms and conditions satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received copies of all
agreements, instruments and documents evidencing or relating to the foregoing
described in this subsection (c), all of which shall be satisfactory in form and
substance to the Administrative Agent, and certified as true and complete by a
Responsible Officer.
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(d) The Initial Lenders shall be satisfied with the corporate, tax and
legal structure and capitalization of PolyVision and each of its Subsidiaries on
a pro forma basis after giving effect to the AIG Acquisition, including, without
limitation, the terms and conditions of the charter, by-laws and each class of
capital stock of PolyVision and each such Subsidiary and of each agreement or
instrument relating to such structure or capitalization.
(e) The Initial Lenders shall be satisfied that all Existing Debt, other
than the Debt identified on SCHEDULE 4.19(B) which shall remain outstanding from
and after the Closing Date (the "SURVIVING DEBT"), has been (or upon
consummation of the AIG Acquisition will be) prepaid, redeemed or defeased in
full or otherwise satisfied and extinguished and that all Surviving Debt shall
be on terms and conditions satisfactory to the Initial Lenders.
(f) There shall have occurred no change (i) since April 30, 1998 with
respect to the Borrowers and their Subsidiaries (excluding AIG and its
Subsidiaries) and (ii) since December 31, 1997, with respect to AIG and its
Subsidiaries, that could reasonably be expected to result in a Material Adverse
Effect.
(g) There shall exist no action, suit, investigation, litigation or
proceeding pending or threatened in any court or before any arbitrator or
governmental or regulatory agency or authority that could reasonably be expected
to have a Material Adverse Effect, nor shall there have been any change in the
status or financial effect on Alpine, the Borrower or any of its respective
Subsidiaries of the Disclosed Litigation from that described on SCHEDULE 4.9
which change could reasonably be expected to have a Material Adverse Effect.
(h) All governmental and third party consents and approvals necessary in
connection with each aspect of the AIG Acquisition, the Mergers and the
Facilities shall have been obtained (without the imposition of any conditions
that are not acceptable to the Initial Lenders) and shall remain in effect; all
applicable waiting periods shall have expired without any adverse action being
taken by any governmental authority; and no law or regulation shall be
applicable in the reasonable judgment of the Initial Lenders that restrains,
prevents or imposes materially adverse conditions upon any aspect of the AIG
Acquisition, the Mergers or the Facilities.
(i) The Initial Lenders shall have completed a due diligence investigation
of the Borrowers, the other Loan Parties and their respective Subsidiaries in
scope, and with results, satisfactory to the Initial Lenders; the Borrowers and
each of the other Loan Parties shall have given the Administrative Agent such
access to their respective books and records as the Administrative Agent may
have requested upon reasonable notice in order to carry out its investigations,
appraisals and analyses, including, but not limited to, calculation of the value
of Eligible Receivables and Eligible Inventory, and the Administrative Agent
shall have received all additional financial, business and other information
regarding the Borrowers and their Subsidiaries and properties as they shall have
reasonably requested. All of the information, taken as a whole, provided by or
on behalf of the Borrowers or any of their Subsidiaries to the Administrative
Agent and the Initial Lenders prior to their commitment in respect of the
Facilities (the "PRE-COMMITMENT INFORMATION") shall be true and correct in all
material
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respects, and no development or change shall have occurred, and no additional
information shall have come to the attention of the Administrative Agent or the
Initial Lenders, that (i) has resulted in or could reasonably be expected to
result in a material change in, or material deviation from, the Pre-Commitment
Information, taken as a whole, or (ii) has had or could reasonably be expected
to have a Material Adverse Effect. The Administrative Agent shall be reasonably
satisfied with the results, taken as a whole, of interviews conducted and other
investigations made with respect to the Borrower's relationships with its
customers.
(j) The Borrowers and each Guarantor (other than APV) shall have delivered
a certificate, in form and substance reasonably satisfactory to the
Administrative Agent, attesting to the Solvency of the Borrowers or such
Guarantor, as applicable, immediately before and immediately after giving effect
to the Transaction, from its respective chief financial officer or any financial
vice president.
(k) The Borrowers shall have demonstrated to the Administrative Agent's
reasonable satisfaction that: (i) the operations of the Borrowers and their
Subsidiaries comply in all material respects with applicable Environmental Laws
and health and safety statutes and regulations, including, without limitation,
regulations promulgated under the Federal Resource Conservation and Recovery
Act; (ii) except as set forth in SCHEDULE 3.1(K), such operations are not the
subject of any federal, state or local investigation evaluating the need for
remedial action involving an expenditure exceeding $100,000 individually or
$250,000 in the aggregate to respond to such Environmental Actions;
(iii) neither PolyVision nor any Borrower nor any of its Subsidiaries has or
could reasonably be expected to have any material contingent liability in
connection with any Environmental Action; (iv) Borrowers have completed such
environmental audits and investigations (including "Phase I" and "Phase II"
environmental audits), as the Administrative Agent may reasonably request with
respect to the operations of the Borrowers and their Subsidiaries and such
audits and investigations have not uncovered any condition or conditions not
disclosed in the Pre-Commitment Information which could be reasonably expected
to have a Material Adverse Effect on the Borrowers and their Subsidiaries.
(l) The Lenders shall be satisfied that (i) the Borrowers and their
Subsidiaries will be able to meet their respective obligations under all
employee and retiree welfare plans, (ii) the employee benefit plans of the
Borrowers and their Subsidiaries are, in all material respects, funded in
accordance with the minimum statutory requirements, (iii) no ERISA Event has
occurred (but excluding events for which reporting has been waived) as to any
such employee benefit plan, (iv) no termination of, or withdrawal from, any such
employee benefit plan has occurred or is contemplated that could reasonably be
expected to result in a material liability and (v) no withdrawal liability has
occurred in connection with any Multiemployer Plan contributed to by a Borrower
or an ERISA Affiliate. The Borrowers shall have delivered to the Administrative
Agent certified copies of each employment agreement and other compensation
arrangement with each executive officer (including, without limitation, Xxxxxxx
Xxxx) of such Borrower.
(m) The Administrative Agent shall be satisfied with the amount, types and
terms and conditions of all insurance maintained by the Borrowers and their
Subsidiaries, and the Administrative Agent shall have received endorsements
naming the Administrative Agent, on behalf of the Lenders,
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as loss payee or an additional insured, as applicable, under all insurance
policies to be maintained with respect to the properties of the Borrowers and
their Subsidiaries forming any part of the Lenders' Collateral under the Initial
Security Agreement and the other Loan Documents and Collateral Documents.
(n) The Administrative Agent shall have received satisfactory opinions of
counsel for Alpine, the Borrowers and the other Loan Parties and local, foreign
and special counsel thereto, to the extent requested by the Administrative
Agent, as to the Transaction.
(o) There shall exist no Default or Event of Default under any of the Loan
Documents, and all legal matters incident to the Initial Extension of Credit
shall be reasonably satisfactory to counsel for the Administrative Agent.
(p) All accrued reasonable fees and expenses of the Administrative Agent
(including the reasonable fees and expenses of counsel for the Administrative
Agent and local counsel for the Administrative Agent) shall have been paid at
Closing.
(q) The AIG Acquisition shall have been consummated (prior to or
simultaneously with the Initial Extension of Credit) pursuant to the terms and
conditions of the AIG Acquisition Agreement (and none of the material terms or
conditions of the AIG Acquisition Agreement shall have been waived or modified
except with the consent of the Administrative Agent and the Required Lenders,
not unreasonably withheld or delayed) and in compliance with all applicable laws
and with all necessary consents and approvals (except immaterial consents the
absence of which shall have been consented to by the Administrative Agent, not
unreasonably withheld or delayed). The final terms and conditions of the AIG
Acquisition Documents and the resulting corporate structure of the Borrowers and
their Subsidiaries following the AIG Acquisition shall be satisfactory in all
respects to the Administrative Agent and the Lenders, and the Administrative
Agent shall have received certified copies of each of the AIG Acquisition
Documents, each of which shall be satisfactory to the Lenders and in full force
and effect.
(r) The Mergers shall have been consummated (prior to or simultaneously
with the Initial Extension of Credit) pursuant to the terms and conditions of
the Merger Documents (and none of the material terms or conditions of any of the
Merger Documents shall have been waived or modified except with the consent of
the Administrative Agent and the Required Lenders, not unreasonably withheld or
delayed) and in compliance with all applicable laws and with all necessary
consents and approvals (except immaterial consents the absence of which shall
have been consented to by the Administrative Agent, not unreasonably withheld or
delayed). The final terms and conditions of the Merger Documents and the
resulting corporate structure of the Borrowers and their Subsidiaries following
the Mergers shall be satisfactory in all respects to the Administrative Agent
and the Lenders, and the Administrative Agent shall have received certified
copies of each of the Merger Documents, each of which shall be satisfactory to
the Lenders and in full force and effect.
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(s) The Administrative Agent shall be satisfied that there are no state
takeover laws and no supermajority charter provisions applicable to the AIG
Acquisition, or that any conditions to avoiding such restrictions have been
satisfied.
(t) All Advances made under this Agreement shall be in full compliance
with all applicable requirements of law, including, without limitation, Federal
Reserve Regulations T, U, and X.
(u) The Administrative Agent shall have received a duly executed and
delivered counterpart of landlord waivers from all landlords and bailee letters
from all warehousemen and bailees with respect to any Inventory located at a
location that is not owned by the Borrowers or their Subsidiaries, as deemed
necessary or desirable in the Administrative Agent's sole discretion, to
preserve or otherwise in respect of the Administrative Agent's rights in
Collateral except in respect of immaterial amounts as described by the Borrowers
to the Administrative Agent in writing prior to the Closing Date. The
Administrative Agent shall also have received such bank consent agreements,
third party consents, intercreditor agreements or other agreements, as deemed
necessary or desirable in the Administrative Agent's sole discretion, to
preserve or otherwise in respect of the Administrative Agent's rights in the
Collateral, subject to Permitted Liens.
(v) The Administrative Agent shall have received such other approvals,
opinions or documents as any Initial Lender through the Administrative Agent may
reasonably request, and all legal matters incident to such Borrowing shall be
satisfactory to counsel for the Administrative Agent.
SECTION 3.2 CONDITIONS PRECEDENT TO EACH BORROWING AND ISSUANCE. The
obligation of each appropriate Lender to make an Advance (other than a Letter of
Credit Advance made by the Issuing Bank or a Revolving Credit Lender pursuant to
Section 2.3(c) and a Swing Line Advance made by a Revolving Credit Lender
pursuant to Section 2.2(b)), and the obligation of the Issuing Bank to issue a
Letter of Credit (including the initial issuance thereof) or renew a Letter of
Credit and the right of the Borrowers to request the issuance or renewal of a
Letter of Credit, shall each be subject to the further conditions precedent that
on the date of each such Borrowing or issuance or renewal:
(a) Each of the conditions precedent listed in Section 3.1 shall
have been satisfied or waived in accordance with this Agreement.
(b) The following statements shall be true and the Administrative
Agent shall have received a certificate signed on behalf of the Borrowers by a
duly authorized Responsible Officer of each Borrower, dated the date of such
Borrowing or issuance or renewal, stating that (and each of the giving of the
applicable Notice of Borrowing, Notice of Swing Line Borrowing, or Notice of
Issuance or Notice of Renewal and the acceptance by the Borrowers of the
proceeds of a Borrowing or of a Letter of Credit or the renewal of a Letter of
Credit shall constitute a representation and warranty by the Borrowers that both
on the date of such notice and on the date of such Borrowing or issuance or
renewal such statements are true):
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(i) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of such date (subject to
changes not prohibited by this Agreement which have occurred in the ordinary
course of business, and do not individually or in the aggregate have a Material
Adverse Effect) before and after giving effect to such Borrowing or issuance or
renewal and to the application of the proceeds therefrom, as though made on and
as of such date;
(ii) no event has occurred and is continuing, or would result from
such Borrowing or issuance or renewal or from the application of the proceeds
therefrom, that constitutes a Default or an Event of Default; and
(iii) for each Revolving Credit Advance, Swing Line Advance made by
the Swing Line Bank or issuance or renewal of any Letter of Credit, the
Borrowing Base equals or exceeds the aggregate principal amount of the Revolving
Credit Advances PLUS Swing Line Advances PLUS Letter of Credit Advances PLUS the
aggregate Available Amount of all Letters of Credit then outstanding after
giving effect to such Advances or issuance or renewal, respectively.
(c) The Administrative Agent shall have received such other documents as
the Administrative Agent may reasonably request, and all legal matters incident
to such Borrowing or issuance of such Letter of Credit shall be reasonably
satisfactory to counsel for the Administrative Agent.
SECTION 3.3 CONDITIONS PRECEDENT TO ISSUANCE OF EUROPEAN LETTERS OF
CREDIT. The obligation of the European Letter of Credit Bank to issue the
European Letters of Credit shall be subject to the further conditions precedent
that on the date of such issuance:
(a) Each of the conditions precedent listed in Section 3.1 shall have been
satisfied or waived in accordance with this Agreement.
(b) The European Borrowers and KBC shall have entered into each of the KBC
Loan Agreements, a copy of which (together with all related KBC Loan Documents)
shall have been delivered to the Administrative Agent and shall be satisfactory
in all respects to the European Letter of Credit Bank, and KBC shall have made
the initial extensions of credit to be made thereunder.
(c) The European Letter of Credit Bank and KBC shall have entered into the
European Letter of Credit Agreements.
(d) The Administrative Agent shall have received such other approvals,
opinions or documents as the European Letter of Credit Bank may reasonably
request, and all legal matters incident to such issuance of such European
Letters of Credit shall be satisfactory to counsel for the Administrative Agent.
SECTION 3.4 DETERMINATIONS UNDER SECTION 3.1. For purposes of determining
compliance with the conditions specified in Section 3.1, each Initial Lender
shall be deemed to have consented to,
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approved or accepted or to be satisfied with each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to the Initial Lenders unless (a) an officer of the Administrative
Agent responsible for the transactions contemplated by the Loan Documents shall
have received written notice from such Initial Lender prior to the Initial
Extension of Credit specifying its objection thereto and (b) if the Initial
Extension of Credit consists of a Borrowing, such Initial Lender shall not have
made available to the Administrative Agent such Initial Lender's ratable portion
of such Borrowing.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS
The Borrowers jointly and severally represent and warrant to the Lender
Parties and the Administrative Agent as follows:
SECTION 4.1 CORPORATE EXISTENCE. Each Loan Party (a) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (b) is duly qualified and in good standing as
a foreign corporation in each other jurisdiction in which it owns or leases
property or in which the conduct of its business requires it to so qualify
except where the failure to so qualify could not reasonably be expected to have
a Material Adverse Effect and (c) has all requisite corporate power and
authority (including, without limitation, all governmental licenses, permits and
other approvals) to own or lease and operate its properties and to carry on its
business as now conducted and as currently proposed to be conducted.
SECTION 4.2 ORGANIZATION AND SUBSIDIARIES. Set forth on SCHEDULE 4.2 is a
complete and accurate list of the Borrowers and all Subsidiaries, showing as of
the date hereof (and updated on a quarterly basis to reflect changes permitted
under this Agreement) (i) the jurisdiction of its incorporation or formation,
(ii) the jurisdictions in which such Loan Party is duly qualified and in good
standing as a foreign corporation or Person, (iii) the number of shares of each
class of capital stock or other equity interests authorized, and the number
outstanding, as to each of them, and the owners (other than shares of the
Borrowers publicly held other than by Affiliates) of such equity interests
(including the identity of any partner thereof as a general or limited partner),
in each case after giving effect to the AIG Acquisition and any Permitted
Acquisitions and the percentage of the outstanding shares or other interests of
each such class owned (directly or indirectly) by a Loan Party and the number of
shares or other interests covered by all outstanding options, warrants, rights
of conversion or purchase and similar rights after giving effect to the AIG
Acquisition. All of the outstanding capital stock or other interests of all of
the Borrowers and each of such Subsidiaries has been validly issued, is fully
paid and non-assessable and, except for shares of PolyVision and directors'
qualifying shares of Foreign Subsidiaries, is owned by a Loan Party or one or
more of its Subsidiaries free and clear of all Liens, except those created under
the Collateral Documents.
SECTION 4.3 CORPORATE POWER, AUTHORIZATION. The execution, delivery and
performance by each Loan Party of this Agreement, the Notes, each other Loan
Document and each AIG Acquisition
77
Document to which it is or is to be a party, and consummation of the
Transaction, are within such Loan Party's corporate powers, have been duly
authorized by all necessary corporate action, and do not (a) contravene such
Loan Party's charter or bylaws, (b) violate any law (including, without
limitation, the Securities Act of 1933, as amended, the Securities Exchange Act
of 1934, as amended, and the Racketeer Influenced and Corrupt Organizations
Chapter of the Organized Crime Control Act of 1970), rule, regulation
(including, without limitation, Regulation T, U or X of the Board of Governors
of the Federal Reserve System), order, writ, judgment, injunction, decree,
determination or award, (c) conflict with or result in the breach of, or
constitute a default under, any loan agreement, indenture, mortgage, deed of
trust, lease or other material contract, instrument or agreement binding on or
affecting any Loan Party, any of its Subsidiaries or any of their respective
properties or (d) except for the Liens created under the Collateral Documents,
result in or require the creation or imposition of any Lien upon or with respect
to any of the properties of any Loan Party or any of its Subsidiaries.
SECTION 4.4 GOVERNMENTAL AND OTHER AUTHORIZATIONS, APPROVALS. No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or any other third party is or
will be required for (a) the due execution, delivery, recordation, filing or
performance by any Loan Party of this Agreement, the Notes, any other Loan
Document or any AIG Acquisition Document to which it is or is to be a party, or
for the consummation of the Transaction, (b) the grant by any Loan Party of the
Liens granted by it pursuant to the Collateral Documents, (c) the perfection or
maintenance of the Liens created by the Collateral Documents (including the
first and only priority nature thereof, subject to Permitted Liens) or (d) the
exercise by the Administrative Agent or any Lender Party of its rights under the
Loan Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents, except for the authorizations, approvals, actions, notices
and filings listed on SCHEDULE 4.4, all of which have been duly obtained, taken,
given or made and are in full force and effect. All applicable waiting periods
in connection with the Transaction have expired without any action having been
taken by any competent authority restraining, preventing or imposing materially
adverse conditions upon the Transaction or the rights of the Loan Parties or
their Subsidiaries freely to transfer or otherwise dispose of, or to create any
Lien on, any properties now owned or hereafter acquired by any of them.
SECTION 4.5 DUE EXECUTION, VALIDITY, ENFORCEABILITY. This Agreement and
each AIG Acquisition Document has been, and each of the Notes and each other
Loan Document has been or when delivered hereunder will have been, duly executed
and delivered by each Loan Party party thereto. This Agreement and each AIG
Acquisition Document is, and each of the Notes and each other Loan Document has
been or when delivered hereunder will be, the legal, valid and binding
obligation of each Loan Party thereto, enforceable against such Loan Party in
accordance with its terms.
SECTION 4.6 FINANCIAL STATEMENTS. The consolidated and consolidating
balance sheets of the Borrowers and their Subsidiaries as at April 30, 1998 for
PolyVision and December 31, 1997 for AIG and the related consolidated and
consolidating statements of income and consolidated and consolidating statements
of cash flows of the Borrowers and their Subsidiaries or AIG and its
Subsidiaries as applicable for the Fiscal Year then ended, accompanied by (in
the case of such Consolidated financial statements) an opinion of Xxxxxx
Xxxxxxxx with respect to PolyVision and Ernst & Young with respect
78
to AIG, independent public accountants, and the Consolidated balance sheet of
the Borrowers and their Subsidiaries or AIG and its Subsidiaries as applicable
as at July 31, 1998 and (to the extent in existence) October 31, 1998 and the
related Consolidated statement of income and Consolidated statement of cash
flows of the Borrowers and their Subsidiaries for the three months (for
PolyVision) or seven months (for AIG) then ended, duly certified by the chief
financial officer of each Borrower, copies of which have been furnished to each
Initial Lender, fairly present, subject, in the case of said interim balance
sheet, statements of income and cash flows, to normal year-end audit
adjustments, the Consolidated (and, with respect to the balance sheets dated
July 31, 1998, consolidating) financial condition of the Borrowers and their
Subsidiaries and AIG and its Subsidiaries as at such dates and the Consolidated
(and, with respect to the statements of income dated July 31, 1998
consolidating) results of the operations of the Borrowers and their Subsidiaries
and AIG and its Subsidiaries for the period ended on such date, all in
accordance with GAAP applied on a consistent basis, and, since July 31, 1998
there has been no change which could reasonably be expected to result in a
Material Adverse Effect.
SECTION 4.7 PRO FORMA FINANCIAL STATEMENTS; PROJECTIONS. (a) The
Consolidated pro forma balance sheet of the Borrowers and their Subsidiaries as
at July 31, 1998 and (to the extent in existence) October 31, 1998 and the
related Consolidated pro forma statement of income and cash flows of the
Borrowers and their Subsidiaries for the period then ended, certified by the
chief executive officer or chief financial officer of each Borrower, copies of
which have been furnished to each Initial Lender, fairly present the
Consolidated pro forma financial condition of the Borrowers and their
Subsidiaries as at such date and the Consolidated pro forma results of
operations of the Borrowers and their Subsidiaries for the period ended on such
date, in each case after giving effect to the Transaction, all in accordance
with GAAP (to the extent that pro forma information can comply with GAAP).
(b) The projections and the budget delivered on the Closing Date (and
after the date of this Agreement, the budgets and projections delivered to the
Lenders pursuant to Section 7.5 hereof) have been prepared on the basis of the
assumptions accompanying them and reflect as of the date thereof the Borrowers'
good faith projections, after reasonable analysis, of the matters set forth
therein, based on such assumptions (it being understood that projected financial
information is not to be viewed as facts and that the actual results during the
period or periods covered thereby may differ from the projected results and that
the differences may be material).
SECTION 4.8 ACCURATE INFORMATION. None of the Information Memorandum, any
Pre-Commitment Information or any information, exhibit or report furnished by
any Loan Party or any of the European Borrowers to the Administrative Agent or
any Lender Party in connection with the Loan Documents or pursuant to the terms
of the Loan Documents contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements made therein
not misleading.
SECTION 4.9 LITIGATION. Other than the litigation disclosed on SCHEDULE
4.9 (the "DISCLOSED LITIGATION"), there is no action, suit, investigation,
litigation or proceeding affecting any Borrower, any other Loan Party or any of
their respective Subsidiaries (excluding, from the scope of this Section 4.9,
any Subsidiary of Alpine which is not a Loan Party), including, without
limitation, any Regulatory
79
Agency or Environmental Action, pending or, to the Borrowers' knowledge,
threatened before any court, governmental bureau, authority or agency or
arbitrator that could reasonably be expected to have a Material Adverse Effect,
and there has been no change in the status, or financial effect on any Loan
Party or any of its Subsidiaries, of the Disclosed Litigation from that
described on SCHEDULE 4.9 that could reasonably be expected to have a Material
Adverse Effect.
SECTION 4.10 REGULATION U. Neither the Borrowers nor any other Loan Party
nor any of their respective Subsidiaries is engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock.
SECTION 4.11 ERISA.
(a) Except as set forth on SCHEDULE 4.11, no Borrower nor any of its ERISA
Affiliates maintains or has maintained any Plans or Multiemployer Plans. Set
forth on SCHEDULE 4.11 is a complete and accurate list of all Welfare Plans and
all defined contribution plans in respect of which any Loan Party could have
liability.
(b) Except as set forth in the financial statements referred to in Section
4.6 and in Article 7, neither Borrower nor any of the other Loan Parties nor any
of their respective Subsidiaries (excluding, from the scope of this Section
4.11(b), any Subsidiaries of Alpine which are not Loan Parties) has any material
liability with respect to "expected post retirement benefit obligations" within
the meaning of Statement of Financial Accounting Standards No. 106.
SECTION 4.12 CASUALTY. On the date hereof, neither the business nor the
properties of any Borrower or any of its Subsidiaries are affected by any fire,
explosion, accident, strike, lockout or other labor dispute, drought, storm,
hail, earthquake, embargo, act of God or of the public enemy or other casualty
(whether or not covered by insurance) that could reasonably be expected to have
a Material Adverse Effect.
SECTION 4.13 ENVIRONMENTAL MATTERS. Anything elsewhere contained in this
Section 4.13 to the contrary notwithstanding, no representation or warranty is
made in this Section 4.13 with respect to any Subsidiary of Alpine which is not
a Loan Party.
(a) Except as disclosed in the environmental assessment reports listed on
SCHEDULE 4.13, the operations and properties of each Loan Party and each of its
Subsidiaries comply in all known material respects with all applicable
Environmental Laws and Environmental Permits, all known past non-compliance with
such Environmental Laws and Environmental Permits has been resolved without
ongoing obligations or costs, and no circumstances exist that could reasonably
be expected to (i) form the basis of an Environmental Action against any Loan
Party or any of its Subsidiaries or any of their properties, or (ii) cause any
such property to be subject to any material restrictions on ownership,
occupancy, use or transferability under any Environmental Law. The only matters
referred to in this Section that could reasonably be expected to have a Material
Adverse Effect are the Port Carbon and Xxxxxxx matters referred to in Section
4.13(d) below.
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(b) Except as disclosed in the environmental assessment reports listed on
SCHEDULE 4.13, (i) none of the properties currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries is listed or proposed for
listing on the NPL or on the CERCLIS or any analogous foreign, state or local
list or is, to the Borrowers' knowledge, adjacent to any such property; (ii)
there are no and, to the best of its knowledge, never have been any underground
or aboveground storage tanks or any surface impoundments, septic tanks, pits,
sumps or lagoons in which Hazardous Materials are being or, to the best of its
knowledge, have been treated, stored or disposed on any real property currently
owned or operated by any Loan Party or any of its Subsidiaries or on any
property formerly owned or operated by any Loan Party or any of its
Subsidiaries; (iii) there is no friable asbestos or asbestos-containing material
on any property currently owned or operated by any Loan Party or any of its
Subsidiaries; and (iv) except in compliance in all material respects with
applicable laws, Hazardous Materials have not been released, discharged or
disposed of on any real property currently owned or operated by any Loan Party
or any of its Subsidiaries, or any property formerly owned or operated (but, if
such Loan Party's potential responsibility or liability therefor is limited to
its period of ownership or operation, solely during the period of such ownership
or operation) by any Loan Party or any of its Subsidiaries. The only matters
referred to in this Section that could reasonably be expected to have a Material
Adverse Effect are the Port Carbon and Xxxxxxx matters referred to in Section
4.13(d) below.
(c) Except as disclosed in the environmental assessment reports listed on
Schedule 4.13, no Loan Party nor any of its Subsidiaries is undertaking or has
not completed, either individually or together with other potentially
responsible parties, any investigation or assessment or Remedial, Response or
Removal action relating to any actual or threatened release, discharge or
disposal of Hazardous Materials at any site, location or operation, either
voluntarily or pursuant to the order of any governmental or regulatory authority
or the requirements of any Environmental Law, and all Hazardous Materials
generated, used, treated, handled or stored at, or transported to or from, any
real property currently owned or operated by any Loan Party or any of its
Subsidiaries or any property formerly owned or operated (but, if such Loan
Party's potential responsibility or liability therefor is limited to its period
of ownership or operation, solely during the period of such ownership or
operation) by any Loan Party or any of its Subsidiaries have been disposed of in
a manner not reasonably expected to result in material liability to any Loan
Party or any of its Subsidiaries. The only matters referred to in this Section
that could reasonably be expected to have a Material Adverse Effect are the Port
Carbon and Xxxxxxx matters referred to in Section 4.13(d) below.
(d) Notwithstanding any of the provisions contained in Section 4.13,
except for environmental Remediation matters related to the facility formerly
owned by Alliance American Corporation located in Port Carbon, Pennsylvania and
the facility of Aubecq located in Crespin, France, none of the matters disclosed
in the environmental assessment reports listed on Schedule 4.13 could reasonably
be expected or have a Material Adverse Effect.
SECTION 4.14 BURDENSOME DOCUMENTS. Except as set forth on SCHEDULE 4.14,
no Loan Party nor any of its Subsidiaries (excluding, from the scope of this
Section 4.14, any Subsidiary of Alpine which is not a Loan Party) is a party to
any indenture, loan or credit agreement or any lease or other
81
agreement or instrument or subject to any charter or corporate restriction that
could reasonably be expected to have a Material Adverse Effect.
SECTION 4.15 PRIORITY OF LIENS. The Collateral Documents create in favor
of the Administrative Agent, for the ratable benefit of the Lenders, a valid and
perfected first priority security interest (subject to Permitted Liens) in the
Collateral (which Collateral includes all of the assets and real and personal
property, whether now owned or hereafter acquired and all of the products and
proceeds of any of the foregoing, of each Borrower, and all of the outstanding
capital stock of the Borrowers' Domestic Subsidiaries and 65% of the capital
stock of each of the Borrowers' Foreign Subsidiaries), securing the payment of
the Secured Obligations; and all filings and other actions necessary or
reasonably desirable to perfect and protect such security interest have been
duly taken. The subject Loan Parties are the legal and beneficial owners of the
Collateral free and clear of any Lien, except for the liens and security
interests created or expressly permitted under the Loan Documents.
SECTION 4.16 TAXES. Anything elsewhere contained in this Section 4.16 to
the contrary notwithstanding, no representation or warranty is made in this
Section 4.16 with respect to any Subsidiary of Alpine which is not a Loan
Party.
(a) Each Loan Party and each of its Subsidiaries has filed, has caused to
be filed or has been included in all tax returns (Federal, state, local and
foreign) required to be filed by it or on its behalf, and has paid all taxes
shown thereon to be due, together with any applicable interest and penalties.
(b) Set forth on SCHEDULE 4.16 is a complete and accurate list of each
taxable year of each Loan Party and each of its Subsidiaries for which Federal
income tax returns have been filed and for which the expiration of the
applicable statute of limitations for assessment or collection has not occurred
by reason of extension or otherwise (an "OPEN YEAR").
(c) Except as set forth in SCHEDULE 4.16, there is no unpaid amount of
adjustments to the Federal income tax liability of any Loan Party or any of its
Subsidiaries proposed by the Internal Revenue Service with respect to Open
Years, and no issues have been raised by the Internal Revenue Service in respect
of Open Years that, in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(d) Except as set forth in SCHEDULE 4.16, there is no unpaid amount of
adjustments to the state, local and foreign tax liability of each Loan Party and
each of its Subsidiaries proposed by any state, local or foreign taxing
authorities (other than amounts arising from adjustments to Federal income tax
returns), and no issues have been raised by such taxing authorities that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(e) Except as set forth in SCHEDULE 4.16, no "ownership change" as defined
in Section 382(g) of the Internal Revenue Code, and no event that would result
in the application of the "separate return limitation year" or "consolidated
return change of ownership" limitations under the Federal income tax
82
consolidated return regulations, has occurred with respect to PolyVision or any
of its Subsidiaries prior to the Closing Date.
SECTION 4.17 COMPLIANCE WITH SECURITIES LAWS. No Borrower and none of any
Borrower's Subsidiaries is an "investment company," or an "affiliated person"
of, or "promoter" or "principal underwriter" for, an "investment company," as
such terms are defined in the Investment Company Act of 1940, as amended.
Neither the making of any Advances, nor the issuance of any Letters of Credit,
nor the application of the proceeds or repayment thereof by the Borrowers, nor
the consummation of the Transaction, will violate any provision of such Act or
any rule, regulation or order of the Securities and Exchange Commission
thereunder or any takeover, disclosure or other federal, state or foreign
securities law or Regulations T, U or X of the Federal Reserve Board. The
Borrowers are not subject to regulation under any federal, state or foreign
statute or regulation which limits its ability to incur Debt.
SECTION 4.18 SOLVENCY. Each Loan Party is, individually and together with
its Subsidiaries, Solvent.
SECTION 4.19 DEBT.
(a) Set forth on SCHEDULE 4.19(A) is a complete and accurate list of all
Existing Debt the principal amount of which is greater than $250,000, showing as
of a recent date the principal amount outstanding thereunder, the maturity date
thereof and, as to Surviving Debt, the amortization schedule therefor.
(b) Set forth on SCHEDULE 4.19(B) is a complete and accurate list of all
Surviving Debt the principal amount of which is greater than $100,000, showing
as of the date hereof the principal amount outstanding thereunder, the maturity
date thereof and the amortization schedule therefor.
SECTION 4.20 NO DEFAULTS, COMPLIANCE WITH LAWS.
(a) Except as set forth on SCHEDULE 4.20, no Loan Party is in default
under any agreement, ordinance, resolution, decree, determination, award, bond,
note, indenture, mortgage, deed of trust, lease, writ, order or judgment to
which it is a party or by which it is bound, or any other agreement or other
instrument by which any of the properties or assets owned by it or used in the
conduct of its business is affected, which default could have a Material Adverse
Effect.
(b) Each Loan Party has complied and is in compliance in all respects with
all applicable laws, ordinances, rules, regulations, resolutions, decrees and
other similar documents and instruments of all courts and governmental
authorities, bureaus and agencies, domestic and foreign, including, without
limitation, any Regulatory Agency and all applicable provisions of the American
Disabilities Act (42 U.S.C. Section 12101-12213) and the regulations issued
thereunder and all applicable Environmental Laws and Regulations, except where
non-compliance could not reasonably be expected to have a Material Adverse
Effect.
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SECTION 4.21 OWNED REAL PROPERTY. Set forth on SCHEDULE 4.21 is a complete
and accurate list of all real property owned by any Loan Party or any of its
Subsidiaries or in which any Loan Party has an interest as a contract vendee
showing as of the date hereof the street address, county or other relevant
jurisdiction, state, record owner and book and estimated fair value thereof.
Such Loan Party or such Subsidiary has good, marketable and insurable fee simple
title to such real property, free and clear of all Liens, other than Permitted
Real Property Encumbrances. Each Mortgage creates, as security for the
obligations purported to be secured thereby, a valid and enforceable perfected
security interest in and Lien on all of the Mortgaged Property (and will create
a valid and enforceable perfected security interest in and Lien on all fixtures
and improvements related to such Mortgaged Property and affixed or added thereto
on or after the Closing Date) in favor of the Administrative Agent (or such
other trustees that may be named therein) for the benefit of the Secured
Parties, superior to and prior to the rights of all third Persons (except that
the security interest created in the Mortgaged Property may be subject to the
Permitted Real Property Encumbrances related thereto) and subject to no other
Liens (other than Permitted Real Property Encumbrances).
SECTION 4.22 LEASED REAL PROPERTY. Set forth on SCHEDULE 4.22 is a
complete and accurate list of all leases of real property under which any Loan
Party or any of its Subsidiaries is the lessee, showing as of the date hereof
the street address, county or other relevant jurisdiction, state, lessor,
lessee, expiration date and annual rental cost thereof. To the best knowledge
of each Borrower, each such lease is the legal, valid and binding obligation of
the lessor thereof, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization and
other laws relating to creditors' rights generally, and by general limitations
on the availability of equitable remedies.
SECTION 4.23 MATERIAL CONTRACTS. Set forth on SCHEDULE 4.23 is a complete
and accurate list of all Material Contracts of each Loan Party and its
Subsidiaries, showing as of the date hereof the parties, subject matter and term
thereof. Except as could not reasonably be expected to have a Material Adverse
Effect, each such Material Contract has been duly authorized, executed and
delivered by all parties thereto, has not been amended or otherwise modified, is
in full force and effect and is binding upon and enforceable against all parties
thereto in accordance with its terms. There exists no material default under
any Material Contract by the Borrowers or any of their Subsidiaries party
thereto and, to the best knowledge of each Borrower, there exists no material
default under any Material Contract by any other party thereto.
SECTION 4.24 INVESTMENTS. Set forth on SCHEDULE 4.24 is a complete and
accurate list of all Investments in excess of $250,000 held by any Loan Party or
any of its Subsidiaries, showing as of the date hereof the amount, obligor or
issuer and maturity, if any, thereof.
SECTION 4.25 INTELLECTUAL PROPERTY. Set forth on SCHEDULE 4.25 is a
complete and accurate list of all patents, trademarks, trade names, service
marks and copyrights, and all applications therefor and licenses thereof, of
each Loan Party or any of its Subsidiaries, showing as of the date hereof the
jurisdiction in which registered, the registration number, the date of
registration and the expiration date. Each such Loan Party and each of their
respective Subsidiaries owns or has rights to use all patents,
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trademarks, trade names, service marks, copyrights and other intellectual
property necessary to conduct its business as now or heretofore conducted by it
or proposed to be conducted by it. Each such Loan Party and each of their
respective Subsidiaries conducts its business and affairs without infringement
of or interference with any patent, trademark, trade name, service xxxx,
copyright or other intellectual property of any other Person. The Intellectual
Property Security Agreement creates, as security for the obligations purported
to be secured thereby, a valid and enforceable perfected security interest in
and Lien on all of the Collateral purported to be covered thereby in favor of
the Administrative Agent for the benefit of the Secured Parties, superior to and
prior to the rights of all third Persons.
SECTION 4.26 AIG ACQUISITION DOCUMENTS. Each AIG Acquisition Document to
which any Loan Party or any of its respective Subsidiaries is a party has been
duly executed and delivered by such Loan Party or such Subsidiary, as the case
may be, and, to the best knowledge of the Borrowers, each AIG Acquisition
Document has been duly executed and delivered by the parties thereto other than
the Borrowers and their Subsidiaries, and is in full force and effect. The
representations and warranties of any Loan Party and each of its respective
Subsidiaries contained in each AIG Acquisition Document to which such Loan Party
or such Subsidiary, as the case may be, is a party are true and correct in all
material respects on the date hereof and will be true and correct in all
material respects on the Closing Date and the AIG Acquisition Date, as if made
on each of such dates, and the Administrative Agent and each Lender Party shall
be entitled to rely upon such representations and warranties with the same force
and effect as if they were incorporated in this Agreement and made to the
Administrative Agent and each Lender Party directly as of the date hereof, the
Closing Date, and the AIG Acquisition Date.
SECTION 4.27 FEES. Except for a $750,000 fee payable to Alpine in common
stock and preferred stock of PolyVision, and certain warrants in PolyVision
issuable as described on SCHEDULE 4.2, no broker's or finder's fees or
commissions or any similar fees or commissions will be payable by any Loan Party
or any of its Subsidiaries with respect to the incurrence and maintenance of the
Obligations hereunder, any other transaction contemplated by the Loan Documents
or any services rendered in connection with any such transactions. The
Borrowers hereby covenant and agree to indemnify the Administrative Agent and
each Lender Party against and hold the Administrative Agent and each Lender
Party harmless from any claim, demand or liability for broker's or finder's fees
or similar fees or commissions relating to the Transaction.
SECTION 4.28 GOVERNMENT CONSENTS FOR CONDUCT OF BUSINESS.
(a) Except as set forth on SCHEDULE 4.4, each Loan Party has, and
is in good standing with respect to, all approvals, permits, licenses, consents,
authorizations, franchises, certificates, and inspections of all Regulatory
Agencies that are necessary for such Loan Party to continue to conduct its
business and own, use, operate, and maintain its property and assets as
heretofore conducted, owned, used, operated, and maintained which, if not
obtained (whether directly or by lawful and effective assignment) or not
maintained in good standing, would have a Material Adverse Effect. No such
approval, permit, license, consent, authorization, franchise, or certificate is
conditioned or limited any more so than as is generally the case with respect to
Persons engaged in the same or similar lines of business. Each such approval,
permit, license, consent, authorization, franchise, or certificate was duly
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and validly granted or issued, is in full force and effect, and neither has
been, nor has been threatened to be, amended, modified, suspended, rescinded,
revoked, forfeited, or assigned. Further, no condition(s) exist(s) or event(s)
has (have) occurred that, with the giving of notice or lapse of time or both,
could result in the amendment, modification, suspension, rescission, revocation,
forfeiture, or non-renewal of any such approval, permit, license, consent,
authorization, franchise, or certificate, excluding in any instance any such
condition or event the effect of which is immaterial.
SECTION 4.29 MERGERS.
(a) The copies of the merger plans and agreements between PolyVision and
AIG and between Greensteel and Alliance America Corporation dated the date
hereof (collectively, the "MERGER AGREEMENTS") and all agreements, instruments,
and documents executed and delivered in connection therewith, and all exhibits,
annexes and schedules annexed thereto, and all amendments and modifications to
any of the foregoing (collectively, all of the foregoing, including the Merger
Agreement, are referred to as the "MERGER DOCUMENTS") heretofore delivered by
the Borrowers to the Administrative Agent are true, complete and accurate copies
thereof. None of the parties to the Merger Documents waived compliance by any
of the other parties thereto with any term, covenant or condition thereof, and
no party thereto has breached any covenant set forth therein or failed to
perform any of its obligations thereunder.
(b) Simultaneously with the execution and delivery of this Agreement and
the making of the initial Loans, the Mergers shall have been consummated
pursuant to the Merger Documents and applicable law. Upon such consummation all
of the assets and properties of Alliance America Corporation shall have been
vested in Greensteel, subject to the liabilities of Alliance American
Corporation, and all of the assets of AIG shall have been vested in PolyVision
subject to the liabilities of AIG. Neither the execution and delivery of the
Merger Documents, nor the performance by any party thereto or the Borrowers of
any obligations thereunder, or of any obligations of any party thereto incurred
by any Borrower by virtue of the Mergers, violate any provision of law or will
conflict with or result in a breach of or create (with or without the giving of
notice or lapse of time, or both) a default under any agreement to which any
party to a Merger is a party or by which it is bound or any of its properties is
affected.
ARTICLE 5
AFFIRMATIVE COVENANTS
While any of the Commitments is outstanding and, in the event any Advance
remains outstanding, so long as the Borrowers or any other Loan Party are
indebted to any of the Lender Parties or the Administrative Agent under any of
the Loan Documents, any Letter of Credit or European Letter of Credit is
outstanding and until payment in full of the Notes and full and complete
performance of all of their other obligations arising hereunder, each Borrower
shall:
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SECTION 5.1 COMPLIANCE WITH LAW. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without limitation,
compliance with ERISA.
SECTION 5.2 PAYMENT OF TAXES, ETC. Timely pay and discharge, and cause
each of their Subsidiaries to timely pay and discharge, (a) all taxes,
assessments and governmental charges or levies imposed upon it or upon its
property and (b) all lawful claims that, if unpaid, might by law become a Lien
upon its property; PROVIDED, HOWEVER, that the Borrowers and their Subsidiaries
shall not be required to pay or discharge any such tax, assessment, charge or
claim that is being contested in good faith and by proper proceedings and as to
which appropriate reserves are being maintained, unless and until any Lien
resulting therefrom attaches to its property and becomes enforceable against the
Borrowers or any of their Subsidiaries.
SECTION 5.3 COMPLIANCE WITH ENVIRONMENTAL LAWS. Comply, and cause each of
their Subsidiaries and all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew and cause each of
their Subsidiaries to obtain and renew all Environmental Permits reasonably
necessary for its operations and properties; and conduct, and cause each of
their Subsidiaries to conduct, any investigation, study, sampling and testing,
and undertake any Removal, Remedial or other Response action necessary to remove
and clean up all Hazardous Materials from any of its properties, in accordance
with the requirements of all applicable Environmental Laws; PROVIDED, HOWEVER,
that the Borrowers and their Subsidiaries shall not be required to undertake any
such cleanup, Removal, Remedial or Response action to the extent that its
obligation to do so is being contested in good faith and by proper proceedings
and adequate reserves as determined by the Administrative Agent are being
maintained with respect to such circumstances.
SECTION 5.4 PREPARATION OF ENVIRONMENTAL REPORTS. The Borrowers agree
that the Administrative Agent may, upon reasonable prior notice, from time to
time in its reasonable discretion, retain, at the Borrowers' expense, an
independent professional consultant to prepare environmental site assessment
reports for the Borrowers or any of their Subsidiaries and/or to review any
report relating to Hazardous Materials prepared by or for the Borrowers and,
upon a reasonable belief that the Borrowers or any of their Subsidiaries have
breached any covenant or representation with respect to environmental matters or
that there has been a material violation of Environmental Laws by the Borrowers
or one of their Subsidiaries, the Administrative Agent may conduct its own
investigation of such matter at any facility or property currently owned,
leased, operated or used by the Borrowers or one of their Subsidiaries and the
Borrower agrees to use reasonable efforts (but without requirement of any
material expense) to obtain permission for the Administrative Agent's
professional consultant to conduct its own investigation of any such matter at
any facility or property previously owned, leased, operated or used by the
Borrowers or one of their Subsidiaries. The Borrowers and their Subsidiaries
hereby grant to the Administrative Agent, its employees, consultants and
contractors, the right to enter into or onto the facilities or properties
currently owned, leased, operated or used by the Borrowers or their Subsidiaries
upon reasonable notice to the Borrowers to perform such assessments on such
property as are necessary to conduct such a review and/or investigation. Any
such investigation of any
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such facility or property shall be conducted, unless otherwise agreed to by the
Borrowers and the Administrative Agent, during normal business hours and, to the
extent reasonably practicable, shall be conducted so as not to interfere with
the ongoing operations at any facility or property or to cause any damage or
loss to any facility or property. The Borrowers and the Administrative Agent
hereby acknowledge and agree that any report of any investigation conducted at
the request of the Administrative Agent will be obtained and shall be used by
the Administrative Agent and Lender Parties for the purpose of internal credit
decisions to monitor and police the Advances and/or protect the Administrative
Agent's and Lender Parties' security interests in the Collateral. The
Administrative Agent agrees promptly to deliver a copy of any such report to
the Borrowers with the understanding that the Borrowers acknowledge and agree
that (i) the Borrowers will indemnify and hold harmless the Administrative Agent
and each Lender Party from any costs, losses or liabilities relating to the
Borrowers' use of or reliance on such report and (ii) neither the Administrative
Agent nor any Lender Party makes any representation or warranty with respect to
such report.
SECTION 5.5 MAINTENANCE OF INSURANCE. (a) Maintain, and cause each of
their Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks as
is usually carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which such Borrower or such Subsidiary
operates including, without limitation, the policies described on SCHEDULE 5.5
(or other policies comparable thereto); (b) file with the Administrative Agent,
within 10 days after written request therefor, a detailed list of the insurance
then in effect, stating the names of the insurance companies, the amounts and
rates of the insurance, the dates of the expiration thereof and the properties
and risks covered thereby; and (c) deliver to the Administrative Agent, in form
and substance reasonably satisfactory to the Administrative Agent, endorsements
to (A) all "all-risk" and casualty and (if any) business interruption insurance
naming the Administrative Agent, on behalf of itself and the Lenders, as loss
payee if permitted thereunder (or assignee, in the case of business interruption
insurance, if any) insuring in the case of "all-risk" against loss or damage by
fire, lightning, windstorm, explosion, hail, tornado, and if to the extent in a
flood hazard area, a flood insurance policy, and (B) all general liability and
other liability policies naming the Administrative Agent, on behalf of itself
and the Lenders, as additional insured if permitted thereunder, and providing,
in any event, that such insurance policies shall not be canceled without thirty
(30) days' prior written notice thereof by the respective insurer to the
Administrative Agent and shall contain standard non-contributory mortgagee
clause endorsement in favor of the Administrative Agent with respect to hazard
insurance coverage.
SECTION 5.6 PRESERVATION OF CORPORATE EXISTENCE, ETC. Preserve and
maintain, and cause each of their Subsidiaries to preserve and maintain, its
existence, legal structure, legal name, rights (charter and statutory), permits,
licenses, approvals, privileges and franchises required for the normal operation
of its business.
SECTION 5.7 VISITATION RIGHTS.
(a) At any reasonable time and from time to time, upon reasonable
notice and during normal business hours, permit the Administrative Agent and the
Lender Parties or any agents or
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representatives thereof, to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of the Borrowers and
their Subsidiaries, and to discuss the affairs, finances and accounts of the
Borrowers and any such Subsidiaries with any of their officers or directors.
(b) Permit the Administrative Agent and the Lender Parties or any
agents or representatives thereof to conduct commercial finance examinations
and/or Collateral audits of the Borrowers and their Subsidiaries during each
calendar year, at the expense of the Borrowers once per year and in any event at
the Borrowers' expense following the occurrence and during the continuance of
any Default, as the Administrative Agent may reasonably request.
SECTION 5.8 KEEPING OF BOOKS. Keep, and cause each of their Subsidiaries
to keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of the
Borrower and each Subsidiary in accordance with GAAP.
SECTION 5.9 MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve, and
cause each of their Subsidiaries to maintain and preserve, all of its properties
that are reasonably necessary in the conduct of its business in normal working
order and condition, ordinary wear and tear excepted.
SECTION 5.10 COMPLIANCE WITH TERMS OF LEASEHOLDS. Make all payments and
otherwise perform all obligations in respect of all leases of real property to
which the Borrowers or any of their Subsidiaries is a party, keep such leases in
full force and effect and not allow such leases to lapse or be terminated or any
rights to renew such leases to be forfeited or canceled (except in the exercise
of reasonable business judgment), notify the Administrative Agent upon obtaining
actual knowledge of any default by any party with respect to such leases and
cooperate with the Administrative Agent in all respects to cure any such
default, and cause each of their Subsidiaries to do so except, in any case,
where the failure to do so, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
SECTION 5.11 PERFORMANCE OF MATERIAL CONTRACTS. Perform and observe, and
cause each of their Subsidiaries to perform and observe, all of the terms and
provisions of each Material Contract to be performed or observed by it,
maintain, and cause each of their Subsidiaries to maintain, each such Material
Contract in full force and effect, and, subject to the exercise of reasonable
business judgment, enforce, and cause each of their Subsidiaries to enforce,
each such Material Contract in accordance with its terms.
SECTION 5.12 TRANSACTIONS WITH AFFILIATES. Conduct, and cause each of
their Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of their Affiliates on terms that are fair and
reasonable and no less favorable to such Borrower or such Subsidiary than it
would obtain in a comparable arms-length transaction with a Person not an
Affiliate.
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SECTION 5.13 AGREEMENT TO GRANT ADDITIONAL SECURITY.
(a) Promptly, and in any event not later than ten (10) days prior to the
acquisition of assets of the type that would have constituted Collateral at the
date hereof and investments of the type that would have constituted Collateral
on the date hereof (other than assets with a fair market value of less than
$50,000), including the capital stock of any direct or indirect Subsidiary of a
Borrower, notify the Administrative Agent of the proposed acquisition of such
assets or investments (if permitted hereunder) and, to the extent not already
Collateral in which the Administrative Agent has a perfected security interest
pursuant to the Collateral Documents, such assets and investments will become
additional Collateral hereunder to the extent the Administrative Agent deems the
pledge of such assets practicable (the "ADDITIONAL COLLATERAL"), and the
Borrowers will, and will cause each of its direct and indirect Subsidiaries to,
take all necessary action, including the filing of appropriate financing
statements under the provisions of the UCC, applicable foreign, domestic or
local laws, rules or regulations in each of the offices where such filing is
necessary or appropriate to grant Administrative Agent a perfected Lien in such
Collateral (or comparable interest under foreign law in the case of foreign
Collateral) pursuant to and to the full extent required by the Collateral
Documents and this Agreement.
(b) Promptly, and in any event no later than the date on which an entity
becomes a direct or indirect Domestic Subsidiary of a Borrower (or if acceptable
to the Administrative Agent in the exercise of its sole discretion, not later
than thirty (30) days after a request with respect thereto), cause each of the
Borrowers' direct and indirect Domestic Subsidiaries as the Administrative Agent
shall request to become party to the Subsidiary Guaranty (pursuant to the
execution and delivery of a supplement thereto in the form of Exhibit A
thereto).
(c) Promptly, and in any event no later than the date on which an entity
becomes a direct or indirect Domestic Subsidiary of a Borrower (or if acceptable
to the Administrative Agent in the exercise of its sole discretion, not later
than thirty (30) days after a request with respect thereto), cause each
Guarantor created or established after the date hereof to grant to the
Administrative Agent, for the ratable benefit of the Lenders, a first priority
Lien (subject to Permitted Liens) on all property (tangible and intangible) of
such Guarantor, including, without limitation, all of the outstanding capital
stock of any of its Domestic Subsidiaries and 65% of the outstanding stock of
any of its Foreign Subsidiaries and each Borrower and Domestic Subsidiary shall
grant such lien on the outstanding capital stock of any Foreign Subsidiary owned
by such Borrower or Domestic Subsidiary (in the same percentages as set forth
above) in each case, upon terms similar to those set forth in the Collateral
Documents and otherwise reasonably satisfactory in form and substance to
Administrative Agent. The Borrowers shall cause each Guarantor, at its own
expense, to become a party to the Initial Security Agreement (pursuant to the
execution and delivery of a supplement thereto in the form of Exhibit C
thereto), an Intellectual Property Security Agreement, a Mortgage and any other
Collateral Document (to the extent applicable to such Guarantor and its assets)
and to execute, acknowledge and deliver, or cause the execution, acknowledgment
and delivery of, and thereafter register, file or record in any appropriate
governmental office, any document or instrument reasonably deemed by
Administrative Agent to be necessary or desirable for the creation and
perfection of the foregoing Liens (including UCC, tax and judgment lien
searches, legal opinions, title insurance, consents, corporate documents and any
additional or substitute
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security agreements or mortgages or deeds of trust), provided that no Mortgage
will be required in respect of any leasehold for a location at which a Borrower
or any Subsidiary maintains and continues to maintain less than $500,000 of
Collateral or is not otherwise significant to such entity's continued
operations. The Borrowers will cause each such Loan Party to take all actions
requested by Administrative Agent (including, without limitation, the filing of
UCC-1's) in connection with the granting of such security interests.
(d) Promptly, and in any event not later than thirty (30) days after a
request with respect thereto, (i) deliver to the Administrative Agent the
original of all instruments, documents and chattel paper, and all other
Collateral of which the Administrative Agent determines it should have physical
possession in order to perfect and protect its security interest therein, duly
pledged, endorsed or assigned to the Administrative Agent without restriction;
(ii) obtain landlord waivers, in form and substance satisfactory to the
Administrative Agent, with respect to any Inventory or other Collateral located
at a location that is not owned by a Borrower or a Subsidiary and at which a
Borrower or any Subsidiary maintains and continues to maintain Collateral having
a book value in excess of $250,000; (iii) deliver to the Administrative Agent
warehouse receipts covering any portion of the Inventory or other Collateral
located in warehouses and for which warehouse receipts are issued; (iv) when an
Event of Default exists, transfer Inventory to locations designated by the
Administrative Agent; (v) if any Collateral (except immaterial amounts if the
specific exclusion thereof from the terms of this clause shall have been
consented to in writing by the Administrative Agent) is at any time in the
possession or control of any warehousemen, bailee or any Borrower's agents or
processors, notify the Administrative Agent thereof and notify such person of
the Administrative Agent's security interest in such Collateral and obtain a
landlord waiver or bailee letter, in form and substance reasonably satisfactory
to the Administrative Agent, from such person and instruct such person to hold
all such Collateral for the Administrative Agent's account subject to the
Administrative Agent's instructions; (vi) if at any time any Inventory or other
Collateral is located on any real property owned by a Borrower which is subject
to a mortgage or other Lien (other than in favor of the Administrative Agent for
the ratable benefit of the Lender Parties), obtain a mortgagee waiver, in form
and substance satisfactory to the Administrative Agent, from the holder of each
mortgage or other Lien on such real property; and (vii) take all such other
actions and obtain all such other agreements as the Administrative Agent may
reasonably deem necessary or desirable in respect of any Collateral.
(e) The security interests required to be granted pursuant to this Section
shall be granted pursuant to the Collateral Documents or, in the Administrative
Agent's discretion, such other security documentation (which shall be
substantially similar to the Collateral Documents already executed and delivered
by the Borrowers and the Guarantors) as is satisfactory in form and substance to
Administrative Agent (the "ADDITIONAL COLLATERAL DOCUMENTS") and shall
constitute valid and enforceable perfected security interests prior to the
rights of all third Persons and subject to no other Liens except Liens permitted
under Section 6.1. The Additional Collateral Documents and other instruments
related thereto shall be duly recorded or filed in such manner and in such
places and at such times as are required by law to establish, perfect, preserve
and protect the Liens, in favor of Administrative Agent for the ratable benefit
of the Lender Parties, granted pursuant to the Additional Collateral Documents,
and all taxes, fees and other charges payable in connection therewith shall be
paid in full by the
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Borrowers. At the time of the execution and delivery of Additional Collateral
Documents, the Borrowers shall cause to be delivered to Administrative Agent
such agreements, opinions of counsel, and other related documents (including,
without limitation, certified copies of certificates of incorporation, by-laws,
corporate resolutions, incumbency certificates, good standing certificates, lien
searches, and loss-payee endorsements) as may be reasonably requested by the
Administrative Agent or the Required Lenders to assure themselves that this
Section has been complied with.
SECTION 5.14 INTEREST RATE PROTECTION. Within ninety (90) days after the
Closing Date, the Borrowers shall obtain and thereafter keep in effect one or
more interest rate Bank Hedge Agreements (the terms and other provisions of all
such Bank Hedge Agreements to be subject to the prior written consent of the
Administrative Agent) covering at least fifty percent (50%) of the combined Term
A and Term B Advances outstanding on the Closing Date for an aggregate period of
not less than three (3) years commencing on the Closing Date.
SECTION 5.15 PERFORMANCE OF AIG ACQUISITION DOCUMENTS. Perform and
observe (except for immaterial non-performance or non-observance based on the
exercise of reasonable business judgment) or, cause the relevant Subsidiary to
perform and observe all of the terms and provisions of each AIG Acquisition
Document to be performed or observed by it or such Subsidiary, maintain each
such AIG Acquisition Document in full force and effect, enforce (subject to the
exercise of reasonable business judgment) each such AIG Acquisition Document in
accordance with its terms and take all such action to such end as may be from
time to time requested by the Administrative Agent; and, upon request of the
Administrative Agent, make such demands and requests for action or for
information and reports as PolyVision, a Borrower or any Subsidiary is entitled
to make under any AIG Acquisition Document.
SECTION 5.16 YEAR 2000 COMPATIBILITY. Take all action necessary to assure
that its computer-based systems, hardware and software are able to operate and
effectively receive, transmit, process, store, retrieve or retransmit data
including dates on and after January 1, 2000, and, at the request of the
Administrative Agent, the Borrowers shall provide evidence to the satisfaction
of the Required Lenders of such year 2000 compatibility.
SECTION 5.17 CASH CONCENTRATION OR BLOCKED ACCOUNTS. After written
request by the Administrative Agent if delivered from and after the date of
occurrence and during the continuance of an Event of Default hereunder, each
Borrower will, and will cause each of its Subsidiaries, if any, to, either (i)
maintain its main cash concentration accounts with the Administrative Agent or
(ii) establish blocked accounts (collectively, the "BLOCKED ACCOUNTS") with such
banks (collectively the "COLLECTING BANKS") as are acceptable to the
Administrative Agent (subject to irrevocable instructions acceptable to the
Administrative Agent as hereinafter set forth) to which all account debtors
shall directly remit all payments on Receivables and in which the Borrowers will
immediately deposit all payments received for Inventory or other payments
constituting proceeds of Collateral in the identical form in which such payment
was received, whether by cash or check. The Borrowers shall thereupon promptly
and irrevocably instruct each Collecting Bank that, upon the occurrence and
during the continuance of an Event of Default, the Administrative Agent may
instruct such Collecting Bank to send by wire
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transfer all amounts deposited in the applicable Blocked Account(s) to the
Administrative Agent's Account or as the Administrative Agent shall direct and
that, upon receipt of any such instructions from the Administrative Agent, such
Collecting Bank shall promptly comply with all such instructions. The (a)
occurrence and continuance of an Event of Default and (b) Administrative Agent
so instructing any Collecting Bank as provided in the immediately preceding
sentence is hereinafter referred to as a "CASH DOMINION EVENT." Prior to the
occurrence of a Cash Dominion Event, the Collecting Banks shall make all
available funds in the applicable Blocked Account(s) available to the Borrower.
SECTION 5.18 INTERCOMPANY SUBORDINATION AGREEMENT. At the request of the
Administrative Agent, the Borrowers will cause to be delivered to the
Administrative Agent an intercompany subordination agreement in form and
substance reasonably satisfactory to the Administrative Agent (as amended,
supplemented or otherwise modified from time to time in accordance with its
terms, the "Intercompany Subordination Agreement").
SECTION 5.19 CAPITAL CONTRIBUTIONS TO POLYVISION FRANCE. PolyVision will
make subordinated loans or capital contributions to PolyVision France to the
extent required to enable PolyVision France to make payments due and owing by it
under the KBC Loan Documents, unless otherwise instructed by the Administrative
Agent.
SECTION 5.20 PLEDGE OF CERTAIN SHARES. PolyVision hereby approves and
agrees to confirm at any time or from time to time upon the request of the
Administrative Agent that PolyVision approves the identity of the purchaser of
any shares transferred (by any method directly or indirectly) to such purchaser
by Fleet or by any other purchaser of shares, in each case of the stock of
PolyVision France upon and following enforcement of the pledge of such shares
and agrees to approve each and every shareholders' resolution required in
connection therewith and to vote in favor of each such transfer and any such
purchaser.
Section 5.21 GRANT OF SECURITY INTEREST IN FOREIGN DEBT. Within ninety
(90) days after the Closing Date, PolyVision shall cause each Foreign Subsidiary
to which PolyVision and/or any Domestic Subsidiary owes Debt (collectively, the
"FOREIGN DEBT") to grant the Administrative Agent, for the ratable benefit of
the Lenders, a perfected security interest in all Foreign Debt, and PolyVision
will, and will cause each of its Subsidiaries to, take all necessary action,
including the filing of appropriate financing statements under the provisions of
the Uniform Commercial Code, applicable foreign, domestic or local laws, rules
or regulations in each of the offices where such filing is necessary or
appropriate to grant the Administrative Agent a perfected Lien on such
collateral (or comparable interest under foreign law) pursuant to this
Agreement. The security interests required to be granted pursuant to this
Section 5.21 shall be granted pursuant to the collateral documents reasonably
satisfactory to the Administrative Agent in form and substance, and shall
constitute valid and enforceable perfected security interests prior to the
rights of all third Persons and subject to no other Liens, except Liens
permitted under Section 6.1. The collateral documents and other instruments
related thereto shall be duly recorded or filed in such manner and in such
places and at such times as are required by law to establish, perfect, preserve
and protect the Liens, in favor of the Administrative
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Agent, granted pursuant to such collateral documents, and all taxes, fees and
other charges payable in connection therewith shall be paid in full by
PolyVision.
ARTICLE 6
NEGATIVE COVENANTS
While any of the Commitments is outstanding and, in the event any Advance
remains outstanding, so long as any Borrower or any other Loan Party is indebted
to any of the Lender Parties or the Administrative Agent under any of the Loan
Documents, any Letter of Credit is outstanding and until payment in full of the
Notes and full and complete performance of all of its other obligations arising
hereunder, each of the Borrowers covenants that it shall not and shall not
permit any Subsidiary to do, agree to do or permit to be done, any of the
following:
SECTION 6.1 LIENS, ETC. Create, incur, assume or suffer to exist, or
permit any of their Subsidiaries to create, incur, assume or suffer to exist,
any Lien on or with respect to any of its properties of any character
(including, without limitation, accounts, Inventory and other Collateral)
whether now owned or hereafter acquired, or sign or file or suffer to exist, or
permit any of its Subsidiaries to sign or file or suffer to exist, under the
Uniform Commercial Code or any other statute of any domestic or foreign
jurisdiction, a financing statement or comparable instruments that names any
Borrower or any of its Subsidiaries as debtor, or sign or suffer to exist, or
permit any of its Subsidiaries to sign or suffer to exist, any security
agreement or comparable instruments authorizing any secured party thereunder to
file any such financing statement or comparable instruments, or assign, or
permit any of its Subsidiaries to assign, any accounts or other right to receive
income, EXCLUDING, HOWEVER, from the operation of the foregoing restrictions the
following:
(a) Liens created under the Loan Documents or the KBC Loan Documents;
(b) Permitted Liens;
(c) Liens existing on the date hereof and described on SCHEDULE 6.1;
(d) Purchase money Liens securing Debt permitted under Section 6.2(c)(i)
upon real property or Equipment acquired or held by the Borrowers or any of
their Subsidiaries in the ordinary course of business to secure the purchase
price of such real property or Equipment or to secure Debt incurred solely for
the purpose of financing the acquisition, construction or improvement of any
such real property or Equipment to be subject to such Liens, or Liens existing
on any such real property or Equipment at the time of acquisition (other than
any such Liens created in contemplation of such acquisition that do not secure
the purchase price), or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount; PROVIDED, HOWEVER, that no such Lien
shall extend to or cover any property other than the real property or Equipment
being acquired, constructed or improved, and no such extension, renewal or
replacement shall extend to or cover any property not theretofore subject to the
Lien being extended, renewed or replaced;
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(e) Liens arising in connection with Capitalized Leases permitted under
Section 6.2(c)(i); PROVIDED, that no such Lien shall extend to or cover any
Collateral or any assets other than the assets subject to such Capitalized
Leases; and
(f) The Lien required to be granted to the holders of the Senior
Subordinated Notes (or their agent) pursuant to Section 4.14(a) of the Senior
Subordinated Note Agreement.
(g) The replacement, extension or renewal of any Lien permitted by clauses
(c) through (f) above upon or in the same property theretofore subject thereto
in connection with the replacement, extension or renewal (without increase over
the original amount or any change in any direct or contingent obligor) of the
Debt secured thereby.
SECTION 6.2 DEBT. Create, incur, assume or suffer to exist, or permit any
of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other
than:
(a) Debt incurred pursuant to the Loan Documents;
(b) In the case of any of the Subsidiaries of the Borrowers, Debt owed by
a Subsidiary of any of the Borrowers to a Borrower or to a Wholly-Owned
Subsidiary of a Borrower; PROVIDED, that such Debt shall be evidenced by a
promissory note, such promissory note shall be pledged to the Administrative
Agent pursuant to the terms of a Security Agreement and there shall be no
restrictions whatsoever on the ability of such Subsidiary to repay such Debt
(other than pursuant to any subordination agreement required by the
Administrative Agent or any Lenders); and PROVIDED, FURTHER, that Debt owed by a
Foreign Subsidiary to a Borrower or to a Domestic Subsidiary shall be subject to
the terms and conditions of Section 6.6(a); and
(c) In the case of the Borrowers and any of their Subsidiaries:
(i) (A) Debt secured by Liens permitted by Section 6.1(d)
and (B) Debt in respect of Capitalized Leases, collectively not to exceed in the
aggregate $750,000.00 at any time outstanding;
(ii) the Surviving Debt; and any Debt extending the maturity
of, or refunding or refinancing, in whole or in part, such Surviving Debt;
PROVIDED, that the terms of any such extending, refunding or refinancing Debt,
and of any agreement entered into and of any instrument issued in connection
therewith, are consented to in writing by the Administrative Agent, with the
approval of the Required Lenders (which approval shall be promptly given if the
terms of the extension, refunding or refinancing are substantially similar to
that of the Debt being extended, refunded or refinanced), and otherwise
permitted by this Agreement and the other Loan Documents; and, PROVIDED,
FURTHER, that the principal amount of such Surviving Debt shall not be increased
above the principal amount thereof permitted to be outstanding after the Initial
Extension of Credit, and the direct and contingent obligors therefor shall not
be changed, as a result of or in connection with such extension, refunding or
refinancing;
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(iii) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(iv) Subordinated Debt (including refinancing of the Senior
Subordinated Notes, approval of which shall be promptly given if the terms
applicable to such refinancing are no less favorable (except in immaterial
respects) to the issuer thereof and to the Lender Parties than the terms and
conditions in effect with respect to the Subordinated Debt being refinanced and
if no Default or Event of Default then exists or would exist after giving effect
to the consummation of any such refinancing), PROVIDED that principal and
interest thereof shall be payable or paid by the Borrower only in accordance
with the terms and conditions of the applicable Subordinated Debt Documents; the
guarantees of the Senior Subordinated Notes as set forth in the Senior
Subordinated Note Agreement; and guarantees of other Subordinated Debt (other
than the Junior Subordinated Note) but only on the condition that such
guarantees are subordinated on terms and conditions no less favorable to the
Lender Parties than the subordination terms of the underlying Subordinated Debt
and otherwise are reasonably acceptable to the Required Lenders; and
(v) Indebtedness in respect of interest rate swap, cap, or
collar agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contractors or similar agreements designed
to hedge against fluctuations in interest rates incurred in the ordinary course
of business and consistent with prudent business practice;
(d) Debt incurred under or as permitted by the KBC Loan Documents;
(e) Guarantees by Borrowers of obligations of the other
Borrowers and their Subsidiaries, guarantees by the Borrowers of obligations of
Wholly-Owned Subsidiaries, and guarantees by Wholly-Owned Subsidiaries of
obligations of Borrowers or Wholly-Owned Subsidiaries, subject in the case of
guarantees of Subordinated Debt to the provisions of Section 6.2(c)(iv) above;
(f) (i) The unsecured Debt owed by PolyVision to AE in the
outstanding principal amount of approximately $13,000,000 existing on the date
hereof, and (ii) other unsecured Debt owed by Borrowers to Foreign Subsidiaries
which in the aggregate, when taken together with the existing Debt described in
the preceding clause (i), shall in principal amount not be reduced so as to be
less than $12,000,000 or increased so as to be in excess of $14,000,000 at any
one time outstanding, subject, however, to the terms of the Intercompany
Subordination Agreement; and
(g) Unsecured Debt not included in the preceding paragraphs of
this Section 6.2 which does not exceed at any time the principal sum of
$250,000, in the aggregate for the Borrowers and their Subsidiaries (including,
without limitation, the Foreign Subsidiaries, but excluding unsecured Debt owed
by any Foreign Subsidiary to any other Foreign Subsidiary) including the Dollar
Equivalent amount denominated in non-U.S. currencies.
Section 6.3 ACCOUNTS PAYABLE. (a) Have accounts payable of the Borrowers
or any of their Subsidiaries arising from the purchase of property or services,
including, without limitation, Inventory
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acquired for resale outstanding for longer than 120 days from the date of
incurrence, except (i) accounts payable which by their terms become payable
after 120 days from incurrence or (ii) accounts payable that are subject to good
faith dispute by the Borrowers; or (b) have outstanding taxes, assessments or
governmental charges or accrued liabilities for longer than 120 days past due
from the original due date thereof or have any non-interest bearing deferred
liabilities (E.G., deferred compensation and deferred taxes) (excluding for
purposes of this clause liabilities for borrowed money) except in each case
incurred and continuing in the ordinary course of business and except if
contesting taxes, assessments or charges as and to the extent not constituting a
Default or Event of Default hereunder.
SECTION 6.4 FUNDAMENTAL CHANGES.
(a) Merge with and into or consolidate with any Person or permit any
Person to merge with and into it, or permit any of their Subsidiaries to do so,
except that, so long as no Default or Event of Default shall have occurred and
be continuing and so long as no Default or Event of Default would result
therefrom, (i) the Borrowers and Wholly-Owned Subsidiaries may make Permitted
Acquisitions and (ii) any Subsidiary of a Borrower may merge with and into or
consolidate with any Borrower (provided that a Borrower is the surviving entity)
or any other Subsidiary of a Borrower (provided that a Wholly-Owned Subsidiary
of a Borrower is the surviving entity); PROVIDED, HOWEVER, that Foreign
Subsidiaries may only effectuate the foregoing transactions if the
Administrative Agent has received fifteen (15) days' prior written notice
thereof and such documents (including, without limitation, opinions of counsel)
as it may request to confirm that any such transaction shall not have an adverse
effect on the rights and remedies of the Administrative Agent and the Lenders
under the Loan Documents.
(b) Liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), convey, sell, assign, lease, transfer or otherwise dispose of (or
agree to do any of the foregoing at any future time) all or substantially all of
its property, business or assets, or permit any of their Subsidiaries to do any
of the foregoing; and
(c) Acquire or permit any Subsidiary to acquire all or substantially all
of the assets or the capital stock of any other Person, except that (i)
PolyVision may consummate the AIG Acquisition in accordance with the terms and
conditions of the AIG Acquisition Documents and (ii) the Borrowers and
Wholly-Owned Subsidiaries may make Permitted Acquisitions.
SECTION 6.5 SALES, ETC. OF ASSETS. Sell, lease, transfer or otherwise
dispose of, or permit any of their Subsidiaries to sell, lease, transfer or
otherwise dispose of, any assets or grant any option or other right to purchase,
lease or otherwise acquire any assets, except:
(a) Sales of Inventory in the ordinary course of business;
(b) Sales of obsolete Equipment in the ordinary course of business; and
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(c) The sale of any assets that are fixed assets (and not in any event
securities pledged as Collateral by the Borrowers or any of their Subsidiaries
and other than an asset included in Section 6.5(b)) so long as (i) the purchase
price paid to the Borrower or such Subsidiary for such asset shall be no less
than the fair market value of such asset at the time of such sale, (ii) the
purchase price for such asset shall be paid to such Borrower or such Subsidiary
solely in cash and (iii) the aggregate purchase price paid to the Borrowers and
all of their Subsidiaries for such asset and all other assets sold by the
Borrowers and their Subsidiaries (other than an asset included in Section 6.5(a)
or 6.5(b)) from and after the Closing Date pursuant to this clause (c) shall not
exceed $1,000,000; and no sale of any fixed asset shall be made if such sale
would materially impair the value or composition of the Collateral;
PROVIDED that in the case of sales of assets pursuant to Section 6.5(c), the
Borrowers shall, on the date of receipt thereof, apply the entire Net Cash
Proceeds from such sale in accordance with Section 2.6(b)(ii).
SECTION 6.6 INVESTMENTS IN OTHER PERSONS. Make or hold, or permit any of
their Subsidiaries to make or hold, any Investment in any Person other than:
(a) Investments by the Borrowers and their Subsidiaries in their
Subsidiaries outstanding on the date hereof and described on SCHEDULE 6.6(A),
and additional investments in Wholly-Owned Subsidiaries of the Borrowers;
PROVIDED, HOWEVER, that:
(i) with respect to Investments in any newly acquired or created
Domestic Subsidiary, any such Subsidiary shall (to the extent required by the
terms of Section 5.13) become a Guarantor and an additional grantor pursuant to
the terms of a Security Agreement and Intellectual Property Security Agreement,
and the applicable Loan Parties shall have executed and delivered any other
documents and delivered additional Collateral in accordance with and pursuant to
Section 5.13; and
(ii) Investments in Foreign Subsidiaries shall be subject to each
of the following conditions:
(A) the aggregate amount of Investments made subsequent to
the date hereof by the Borrowers and their Domestic Subsidiaries in Foreign
Subsidiaries (including equity Investments not returned) outstanding at any one
time (after giving effect to cash repayments (at no discount) of the portion of
such Investments constituting Debt of such Foreign Subsidiaries) shall not
exceed the lesser of (1) $3,000,000 (including the Dollar Equivalent of any such
Debt denominated in non-U.S. currencies) and (2) the excess of (I) the Borrowing
Base (as shown on the most recently delivered Borrowing Base Certificate) as it
relates exclusively to the Borrowers and their Domestic Subsidiaries over (II)
the sum of the then outstanding aggregate principal amount of all Revolving
Credit Advances, Swingline Advances and Letter of Credit Advances plus the
Available Amount of all Letters of Credit outstanding at such time; and
(B) all such Investments constituting Debt shall satisfy
the terms and conditions of Section 6.2(b);
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(b) Loans and advances to officers and other employees in the ordinary
course of the business of the Borrowers and their Subsidiaries in an aggregate
principal amount not to exceed $250,000 at any time outstanding;
(c) Investments by the Borrowers and their Subsidiaries in Cash
Equivalents;
(d) Investments by the Borrowers and their Subsidiaries in Bank Hedge
Agreements permitted under Section 5.14;
(e) Investments consisting of intercompany Debt permitted under Sections
6.2(b) and (e);
(f) Investments existing on the date hereof and described on SCHEDULE
6.6(F);
(g) Investments by the Borrowers and their Subsidiaries in deposit
accounts opened in the ordinary course of business;
(h) Investments consisting of accounts receivable in the ordinary course
of business; and
(i) Investments in the form of Permitted Acquisitions, PROVIDED that any
newly acquired or created Domestic Subsidiary shall (to the extent required by
the terms of Section 5.13) become a Guarantor pursuant to the terms of the
guaranty executed pursuant to Section 5.13(b) and an additional grantor pursuant
to the terms of the Security Agreement and Intellectual Property Security
Agreement, and the applicable Loan Parties (including Foreign Subsidiaries)
shall have executed and delivered any other documents and delivered additional
Collateral in accordance with and pursuant to Section 5.13.
Following the Closing Date, Fleet will endeavor, with the approval of
the Lenders, and subject to the capital markets and the performance of
PolyVision and its Subsidiaries, to finance acquisitions by the Borrowers
under, and subject to the terms and provisions of, this Agreement in amounts to
be negotiated.
SECTION 6.7 DIVIDENDS, ETC. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its capital stock
or any warrants, rights or options to acquire such capital stock, now or
hereafter outstanding, return any capital to its stockholders as such, make any
distribution of assets, capital stock, warrants, rights, options, obligations or
securities to its stockholders as such or issue or sell any capital stock or any
warrants, rights or options to acquire such capital stock, or permit any of
their Subsidiaries to do any of the foregoing or permit any of their
Subsidiaries to purchase, redeem, retire, defease or otherwise acquire for value
any capital stock of PolyVision or the Borrowers or any warrants, rights or
options to acquire such capital stock or to issue or sell any such capital stock
or any warrants, rights or options to acquire such capital stock, except:
(a) PolyVision and any Borrower may declare and pay dividends and
distributions payable solely in common stock of PolyVision or such Borrower; and
the Borrowers and Subsidiaries may, subject to the applicable subordination
provisions of the Senior Subordinated Note Agreement, pay
99
dividends and distributions to PolyVision in an amount equal to interest
payments (but no sooner than two (2) days prior to the due date of such interest
payments) payable from time to time in respect of the Senior Subordinated Notes,
and PolyVision may, at any time and from time to time, for such consideration as
the Board of Directors of PolyVision may approve, issue shares of its capital
stock (but if preferred stock, only on terms and conditions satisfactory to the
Required Lenders) and warrants, options, convertible securities and other rights
to purchase capital stock of PolyVision (including the stock contemplated by
Section 3.1(c)(i) above); PROVIDED that no material expense in connection
therewith shall be incurred after the date hereof if, before or after giving
effect to the incurrence thereof, any Default or Event of Default then exists or
would exist;
(b) A Subsidiary of a Borrower may declare and pay dividends and
distributions to any Borrower;
(c) The Borrowers (other than PolyVision) and their Subsidiaries may pay
dividends and distributions to PolyVision;
(d) PolyVision may declare and pay dividends in cash with respect to its
preferred stock subject to the satisfaction of each of the following conditions
on the date of such dividend payment and after giving effect thereto:
(i) no Default or Event of Default shall have occurred and be
continuing or would exist after giving effect thereto;
(ii) the ratio of Consolidated Debt to EBITDA for PolyVision and its
Subsidiaries for the preceding four fiscal quarters as at the last day of the
fiscal quarter most recently ended prior to the date of such dividend payments
shall not exceed 4.75:1;
(iii) such dividends shall not exceed $500,000 in the aggregate in
any Fiscal Year; PROVIDED, HOWEVER, that if the ratio referred to in
subparagraph (ii) above does not exceed 4:1, such dividends may exceed $500,000
but may in no event exceed $1,000,000 in the aggregate in any Fiscal Year;
(iv) no such dividend shall be declared or paid except quarterly
within thirty (30) days after delivery of required quarterly financial
statements; and
(v) PolyVision shall have delivered to the Administrative Agent, at
least five (5) Business Days prior to the date of the proposed dividend payment,
a certificate of a senior financial officer setting forth computations in
reasonable detail demonstrating satisfaction of the foregoing conditions as at
the date of such certificate; and
(e) For issuances of stock expressly permitted by Section 6.18.
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SECTION 6.8 CHANGE IN NATURE OF BUSINESS. Make, or permit any of their
Subsidiaries to make, any material change in the nature of its business as
carried on at the date hereof.
SECTION 6.9 CHARTER AMENDMENTS. Amend, or permit any of their
Subsidiaries to amend, its certificate or articles of incorporation or bylaws if
such amendment could impair the interests or rights of the Administrative Agent
or any Lender Party.
SECTION 6.10 ACCOUNTING CHANGES. Make or permit, or permit any of their
Subsidiaries to make or permit, any change in (a) accounting policies or
reporting practices, except as mandated by GAAP, or (b) its Fiscal Year except
that from and after the Closing Date the fiscal year of each of the Foreign
Subsidiaries shall be deemed changed to become the same as that of PolyVision.
SECTION 6.11 REPAYMENTS OR PREPAYMENTS, ETC. OF DEBT. (a) Make any payment
of principal of, or interest on, the Junior Subordinated Note, (b) prepay,
redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner, or make any payment in violation of any subordination
terms of, any Debt, other than (i) the prepayment of the Advances in accordance
with the terms of this Agreement, (ii) regularly scheduled or required
repayments or redemptions of Surviving Debt, (iii) prepayments of Debt to the
extent that such Debt is simultaneously refinanced in compliance with this
Agreement, and (iv) prepayments and redemptions (other than in respect of the
Subordinated Debt) not exceeding Two Hundred Fifty Thousand ($250,000) Dollars
in the aggregate from and after the Closing Date, to be made only as of dates
when no Default or Event of Default then exists or would exist after giving
effect thereto; (c) amend, modify or change in any manner any term or condition
of any Surviving Debt except as permitted under Section 6.2, (d) permit any of
their Subsidiaries to do any of the foregoing other than to repay any Debt
payable to the Borrowers, or (e) exercise any right of set-off permitted under
the Junior Subordinated Note.
SECTION 6.12 AMENDMENT, ETC. OF AIG ACQUISITION DOCUMENTS. Cancel or
terminate any AIG Acquisition Document or consent to or accept any cancellation
or termination thereof, amend, modify or change in any manner any term or
condition of any AIG Acquisition Document or give any consent, waiver or
approval thereunder, waive any default under or any breach of any term or
condition of any AIG Acquisition Document or take any other action in connection
with any AIG Acquisition Document that would, in any such case, impair the value
of the interests or rights of the Borrowers thereunder (except for immaterial
changes, waivers or consents), or would impair the interests or rights of the
Administrative Agent or any Lender Party, or permit any of their Subsidiaries to
do any of the foregoing.
SECTION 6.13 AMENDMENT, ETC. OF MATERIAL CONTRACTS.
(a) Except in the exercise of reasonable business judgment,
cancel or terminate any Material Contract or consent to or accept any
cancellation or termination thereof, amend or otherwise modify any Material
Contract or give any consent, waiver or approval thereunder, waive any default
under or breach of any Material Contract or take any other action in connection
with any Material Contract that would materially impair the value of the
interests or rights of the Borrowers thereunder
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or that could impair the interests or rights of the Administrative Agent or any
Lender Party, or permit any of their Subsidiaries to do any of the foregoing.
(b) Modify, amend or supplement:
(i) any documentation entered into in connection with
any Subordinated Debt (excluding for purposes of this clause (i) the Senior
Subordinated Note Agreement); or
(ii) the Senior Subordinated Note Agreement if the
effect of such amendment, supplement or modification is to: (i) increase the
interest rate on the Senior Subordinated Note by more than one percent (1%)
(that is, not to exceed in any event 13%) per annum (provided that nothing
contained herein shall preclude imposition of any default rate of interest in
the amount provided in the Senior Subordinated Note Agreement), (ii) accelerate
or shorten the dates upon which payments of principal or interest are due on the
Senior Subordinated Note; (iii) change the redemption or prepayment provisions
of the Senior Subordinated Note (other than any such change which would reduce
the amount of any scheduled redemption or prepayment or of any premium or
interest payable in connection therewith or that would defer the date on which
any such redemption or prepayment is otherwise scheduled to be made); (iv) make
more restrictive any of the covenants contained in the Senior Subordinated Note
Agreement, or add any events of default, or modify any events of default so as
to be triggered sooner in each case in comparison with any such covenants or
events of default contained in the Senior Subordinated Note Agreement as in
effect prior to such proposed amendment, (v) change any provisions of Article 7
or 11 or Section 12.5 (or comparable provisions) of the Senior Subordinated Note
Agreement or modify any of the defined terms used in such Article 7 or 11 (or
comparable provisions), or (vi) provide for any security in respect of the
obligations under the Senior Subordinated Note Agreement, in each case, without
the prior written consent of the Required Lenders.
(c) Modify, amend, supplement or terminate any agreements,
instruments or documents relating to the incurrence (if consented to by the
Administrative Agent) of any Debt or other obligations, contingent or otherwise,
of the Borrowers or any Subsidiary permitted under Section 6.2 owing under any
Permitted Acquisition Documents or arising in connection with any Permitted
Acquisition other than modifications, amendments and/or supplements which are
immaterial.
SECTION 6.14 NEGATIVE PLEDGE. Enter into or suffer to exist, or permit
any of the Subsidiaries of the Borrowers to enter into or suffer to exist, any
agreement prohibiting or conditioning the creation or assumption of any Lien
upon any of its properties or assets, other than as provided in the Loan
Documents, and in the Senior Subordinated Note Agreement, and (with respect to
the specific assets so financed) pursuant to any purchase money financing and/or
Capitalized Leases permitted pursuant to Sections 6.1 and 6.2 (so long as such
provisions do not prohibit or restrict the ability to grant Liens to the
Administrative Agent for the ratable benefit of the Lenders).
SECTION 6.15 PARTNERSHIPS, NEW SUBSIDIARIES.
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(a) Become a general partner in any general or limited partnership or
joint venture or permit any of their Subsidiaries to do so, or
(b) Create any new Subsidiary (Domestic or Foreign), unless such newly
created Domestic Subsidiary shall become a Guarantor and an additional grantor
pursuant to the terms of a Security Agreement and Intellectual Property Security
Agreement and all of the capital stock of such Domestic Subsidiary or the
requisite percentage of the outstanding capital stock of such Foreign Subsidiary
are pledged to the Administrative Agent pursuant to a Security Agreement or
other appropriate security document, except that no Foreign Subsidiary shall be
created without the prior written consent of the Required Lenders if the
Administrative Agent shall not have obtained a Lien upon substantially all of
the assets of and capital stock issued by such Foreign Subsidiary and then only
upon the Administrative Agent's and its counsel's prior satisfaction with all
legal and accounting matters relating thereto including the delivery of such
opinions of counsel as the Administrative Agent may request
SECTION 6.16 SPECULATIVE TRANSACTIONS. Engage, or permit any of their
Subsidiaries to engage, in any transaction involving commodity options or
futures contracts or derivatives or any similar speculative transactions, except
for Bank Hedge Agreements expressly permitted under Section 5.14 and except for
foreign exchange contracts entered into for the benefit of the Borrowers and
their Subsidiaries in the ordinary course of business and not as a speculation.
SECTION 6.17 CAPITAL EXPENDITURES. Make, or permit any of their
Subsidiaries to make, any Capital Expenditures that would cause the aggregate of
all such Capital Expenditures made by the Borrowers and their Subsidiaries in
any period set forth below to exceed the amount set forth below for such period.
PERIOD AMOUNT
------ ------
Closing Date through and including April 30, 1999 $1,300,000
May 1, 1999 through and including April 30, 2000 $2,000,000
Each fiscal year thereafter $3,000,000
PROVIDED, HOWEVER, (a) that amounts permitted to be expended in a Fiscal Year
that are not expended in such Fiscal Year, but not in excess of fifty (50%)
percent of such prior year's unused amount (not including any amount permitted
to be carried forward from a prior year) shall be permitted to be expended in
(but only in) the subsequent Fiscal Year; (b) amounts comprising Excess Cash
Flow after giving effect to the prepayments required under Section 2.6 shall be
permitted to be expended for Capital Expenditures (over and above the amounts
set forth above) in the twelve months following the date of required prepayment
in any year; and (c) Permitted Acquisitions and amounts representing Capital
Expenditures paid or incurred with respect to an acquisition permitted under
Section 6.4 in the ordinary course of its business prior to consummation of a
Permitted Acquisition shall not be deemed included in the calculation of the
aggregate amount of Capital Expenditures for purposes of determining
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the maximum annual Capital Expenditures permitted to be made hereunder, so long
as such amounts representing Capital Expenditures paid prior to a Permitted
Acquisition were incurred prior to the date of consummation of such Permitted
Acquisition and were not incurred in anticipation of such Permitted Acquisition,
and otherwise conform with the terms and conditions of Section 6.2.
SECTION 6.18 ISSUANCE OF STOCK. The Borrowers will not, and will not
permit any of their Subsidiaries to, directly or indirectly, issue, sell,
assign, pledge or otherwise encumber or dispose of any shares of capital stock
of any Borrower or any Subsidiary of any Borrower, except (a) to the Borrower
subject to the continuing Lien thereon in favor of the Administrative Agent
(except to the extent not required under Section 5.13), (b) to qualify directors
if required by applicable law, (c) as set forth in SCHEDULE 6.18, (d) pursuant
to the AIG Acquisition in accordance with the AIG Acquisition Documents, and (e)
the pledge thereof pursuant to the Loan Documents.
SECTION 6.19 LIMITATIONS ON OPERATING LEASES. Become a lessee under any
operating lease (other than a lease which any Borrower or any of its
Subsidiaries, as the case may be, is lessor) of Property, including, without
limitation, real estate operating leases, if the aggregate Rentals (estimated in
good faith by the Borrowers with respect to amounts payable pursuant to
escalation clauses) payable during any current or future period of 12
consecutive months under the lease in question and all other leases under which
any Borrower or any of its other Subsidiaries, as the case may be, is then
lessee would exceed One Million ($1,000,000.00) Dollars, including the Dollar
Equivalent of amounts denominated in non-U.S. currencies (the term "Rentals"
meaning, as of the date of determination, all payments which the lessee is
required to make by the terms of any lease; the term "Property" meaning any
interest in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible).
SECTION 6.20 NO CONSIGNMENT SALES. Make a sale to any customer on a
xxxx-and-hold, guaranteed sale, sale and return, sale on approval or consignment
basis, or any sale on a repurchase or return basis, except for consignment sales
made by the Borrowers and/or Pentagon, as the case may be, in Australia
involving Inventory not to exceed $250,000 in book value in any single fiscal
year.
SECTION 6.21 CERTAIN INACTIVE SUBSIDIARIES. Permit or suffer any Domestic
Subsidiary that has not become a party to a Subsidiary Guaranty and Security
Agreement to engage in any business activities or to acquire any assets (other
than immaterial assets not exceeding $250,000 in the aggregate in market value)
or have any Investments or incur any Indebtedness or liabilities except in order
to maintain corporate existence and except as otherwise in existence on the date
of this Agreement as set forth on Schedule 6.6(a).
SECTION 6.22 RETENTION OF CASH. Retain cash at PolyVision or in any
accounts of PolyVision except for such amounts as are reasonably expected to be
used for the payment of amounts contemplated hereunder and are due within a
reasonably short period of time (not in any event to exceed thirty (30) days),
PROVIDED that all cash (to the extent in excess of $100,000) that is not so
needed within such period of time shall be contributed to the other Borrowers.
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SECTION 6.23 MANAGEMENT FEES. Notwithstanding any other provision
contained in this Agreement or any of the other Loan Documents, pay, or be or
become obligated to pay, any Management Fees to any Person or any interest on
any deferred obligation therefor, including, without limitation, to any
shareholder, director, officer or employee of any Borrower, or any Loan Party.
ARTICLE 7
REPORTING REQUIREMENTS
While any of the Commitments is outstanding and, in the event any
Advance remains outstanding, so long as any Borrower or any other Loan Party is
indebted to any of the Lender Parties or the Administrative Agent under any of
the Loan Documents, any Letter of Credit is outstanding and until payment in
full of the Notes and full and complete performance of all of its other
obligations arising hereunder, the Borrowers shall furnish to the Administrative
Agent and Lenders:
SECTION 7.1 DEFAULT NOTICE. As soon as possible and in any event within
two (2) Business Days after a Responsible Officer of a Borrower obtains actual
knowledge of the occurrence of any continuing Default, or any event, development
or occurrence reasonably likely to have a Material Adverse Effect, a statement
signed on behalf of the Borrowers by a Responsible Officer thereof of the chief
financial officer of the Borrower setting forth details of such Default and the
action that the Borrower has taken, is taking and/or proposes to take with
respect thereto.
SECTION 7.2 MONTHLY FINANCIALS. As soon as available and in any event
within thirty (30) days after the end of each month which is not a fiscal
quarter end, (a) Consolidated and consolidating balance sheets of the Borrowers
and their Subsidiaries as of the end of such month, (b) Consolidated and
consolidating statements of income and a Consolidated statement of cash flows of
the Borrowers and their Subsidiaries for the period commencing at the end of the
previous month and ending with the end of such month, and (c) Consolidated and
consolidating statements of income and a Consolidated statement of cash flows of
the Borrowers and their Subsidiaries for the period commencing at the end of the
previous Fiscal Year and ending with the end of such month, setting forth in
each case in comparative form the corresponding figures for the corresponding
period of the prior Fiscal Year, all in reasonable detail and duly certified by
the chief financial officer or a financial vice president of each Borrower.
SECTION 7.3 QUARTERLY FINANCIALS. As soon as available and in any event
within forty-five (45) days after the end of each fiscal quarter of each Fiscal
Year, (a) Consolidated and consolidating balance sheets of the Borrowers and
their Subsidiaries as of the end of such quarter, (b) Consolidated and
consolidating statements of income and Consolidated and consolidating statements
of cash flows of the Borrowers and their Subsidiaries, for the period commencing
at the end of the previous fiscal quarter and ending with the end of such fiscal
quarter, and (c) Consolidated and consolidating statements of income and
Consolidated and consolidating statements of cash flows of the Borrowers
105
and their Subsidiaries for the period commencing at the end of the previous
Fiscal Year and ending with the end of such fiscal quarter, setting forth in
each case in comparative form the corresponding figures for the corresponding
period of the preceding Fiscal Year and the corresponding figures from the
budgets for such period and for the Fiscal Year which includes such period, all
in reasonable detail and duly certified by the chief financial officer or a
financial vice president each Borrower as having been prepared in accordance
with GAAP (subject to normal year-end audit adjustments), together with (i) a
certificate of said officer stating that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a statement as to
the nature thereof and the action that such Borrower has taken, is taking and/or
proposes to take with respect thereto, and (ii) a schedule in form reasonably
satisfactory to the Administrative Agent of the computations used by the
Borrowers in determining compliance with the financial covenants contained in
Article 8, PROVIDED, that in the event of any change in GAAP used in the
preparation of such financial statements, the Borrowers shall also provide, if
necessary for the determination of compliance with Article 8, a statement of
reconciliation conforming such financial statements to GAAP.
SECTION 7.4 ANNUAL FINANCIALS. As soon as available and in any event
within ninety (90) days after the end of each Fiscal Year, a copy of the annual
audit report for such year for the Borrowers and their Subsidiaries, including
therein (a) Consolidated and consolidating balance sheets of the Borrowers and
their Subsidiaries as of the end of such Fiscal Year, and (b) Consolidated and
consolidating statements of income and Consolidated and consolidating statements
of cash flows of the Borrowers and their Subsidiaries, for such Fiscal Year, in
each case setting forth in comparative form the corresponding figures for the
prior Fiscal Year and the corresponding figures from the budget for such Fiscal
Year and in each case accompanied (in the case of such Consolidated financial
statements) by an opinion acceptable to the Administrative Agent of any "Big
Five" accounting firm, together with (a) a letter of such accounting firm to the
Administrative Agent and Lender Parties stating that in the course of the
regular audit of the business of the Borrowers and their Subsidiaries, which
audit was conducted by such accounting firm in accordance with generally
accepted auditing standards, such accounting firm has obtained no knowledge that
a Default has occurred and is continuing, or if, in the opinion of such
accounting firm, a Default has occurred and is continuing, a statement as to the
nature thereof, (b) a schedule in form satisfactory to the Administrative Agent
of the computations used by such accountants in determining, as of the end of
such Fiscal Year, compliance with the covenants contained in Article 8,
PROVIDED, that in the event of any change in GAAP used in the preparation of
such financial statements, the Borrowers shall also provide, if necessary for
the determination of compliance with Article 8, a statement of reconciliation
conforming such financial statements to GAAP and (c) a certificate signed on
behalf of each Borrower by its chief financial officer of each Borrower stating
that no Default has occurred and is continuing or, if a Default has occurred and
is continuing, a statement as to the nature thereof and the action that such
Borrower has taken, is taking and/or proposes to take with respect thereto.
SECTION 7.5 ANNUAL FORECASTS. As soon as available and in any event no
later than sixty (60) days after the end of each Fiscal Year, (i) an annual
operating budget prepared by management of the Borrowers, including projected
consolidated and consolidating balance sheets, income statements and
106
cash flow statements on a quarterly basis, and (ii) a business plan, in each
case for the Fiscal Year following such Fiscal Year then ended and in form
reasonably satisfactory to the Administrative Agent.
SECTION 7.6 ERISA EVENTS AND ERISA REPORTS. (i) Promptly and in any event
within twenty (20) days after any Borrower or any ERISA Affiliate knows or has
reason to know that any ERISA Event has occurred, a statement of the Chief
Financial Officer or a financial vice president of each Borrower describing such
ERISA Event and the action, if any, that such Borrower or such ERISA Affiliate
has taken, is taking and/or proposes to take with respect thereto and (ii) on
the date any records, documents or other information must be furnished to the
PBGC with respect to any Plan pursuant to Section 4010 of ERISA, a copy of such
records, documents and information.
SECTION 7.7 PLAN TERMINATIONS. Promptly and in any event within five (5)
Business Days after receipt thereof by any Borrower or any ERISA Affiliate,
copies of each notice from the PBGC stating its intention to terminate any Plan
or to have a trustee appointed to administer any Plan or correspondence from the
PBGC indicating it is considering termination of any Plan.
SECTION 7.8 ACTUARIAL REPORTS. Promptly upon receipt thereof by any
Borrower or any ERISA Affiliate, a copy of the annual actuarial valuation report
for each Plan the funded current liability percentage (as defined in Section
302(d)(8)(B) of ERISA) of which is shown in such report to be less than 90% or
the unfunded current liability (as defined in Section 302(d)(8)(A) of ERISA) of
which is shown in such report to exceed $500,000.
SECTION 7.9 PLAN ANNUAL REPORTS. Upon the request, from time to time, of
the Administrative Agent, promptly and in any event within thirty (30) days
after the filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the most recently filed annual report
(Form 5500 Series) with respect to each Plan.
SECTION 7.10 ANNUAL PLAN SUMMARIES. As soon as available and in any event
within ninety (90) days after the end of each Fiscal Year, an annual summary of
actuarial valuation and other information with respect to each Plan in form,
substance and detail reasonably satisfactory to the Administrative Agent.
SECTION 7.11 MULTIEMPLOYER PLAN NOTICES. Promptly and in any event within
five (5) Business Days after receipt thereof by any Borrower or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, copies of each notice
concerning, or other correspondence with respect to, (i) the imposition of
Withdrawal Liability by any such Multiemployer Plan, (ii) the reorganization or
termination, within the meaning of Title IV of ERISA, of any such Multiemployer
Plan or (iii) the amount of liability incurred, or that may be incurred, by such
Borrower or any ERISA Affiliate in connection with any event described in clause
(i) or (ii).
SECTION 7.12 LITIGATION. Promptly after the commencement thereof, notice
of all material actions, suits, investigations, litigation and proceedings
before any court or governmental department, commission, board, bureau, agency
or instrumentality, Federal, state, local or foreign, affecting any
107
Loan Party or any of its Subsidiaries (exclusive of Subsidiaries of Alpine which
are not Loan Parties) and, promptly after the occurrence thereof, notice of any
change in the status or the financial effect on any Loan Party or any of its
Subsidiaries (exclusive of Subsidiaries of Alpine which are not Loan Parties) of
the Disclosed Litigation from that described on SCHEDULE 4.9 that could
reasonably be expected to have a Material Adverse Effect.
SECTION 7.13 SECURITIES REPORTS. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and reports that
any Loan Party or any of its Subsidiaries (exclusive of Subsidiaries of Alpine
which are not Loan Parties) sends to its stockholders, and copies of all
regular, periodic and special reports, and all registration statements, that any
Loan Party or any of its Subsidiaries (exclusive of Subsidiaries of Alpine which
are not Loan Parties) files with the Securities and Exchange Commission or any
other governmental authority or with any national securities exchange.
SECTION 7.14 CREDITOR REPORTS. Promptly after the furnishing thereof,
copies of any statement or report furnished to any other holder of the
securities of any Borrower or of any of its Subsidiaries pursuant to the terms
of any indenture, loan or credit agreement or similar agreement or instrument
and not otherwise required to be furnished to the Lender Parties pursuant to any
other clause of this Article 7.
SECTION 7.15 AGREEMENT NOTICES. Promptly upon receipt thereof, copies of
all notices, requests and other documents received by any Loan Party or any of
its Subsidiaries (exclusive of Subsidiaries of Alpine which are not Loan
Parties) under or pursuant to any Material Contract or indenture, loan or credit
agreement or similar agreement or instrument regarding or related to any
material breach or default by any party thereto or any event that could
materially impair the value of the interests or the rights of any Loan Party or
any of its Subsidiaries (exclusive of Subsidiaries of Alpine which are not Loan
Parties) or otherwise have a Material Adverse Effect and copies of any material
amendment, modification or waiver of any provision of any Material Contract or
indenture, loan or credit agreement or similar agreement and, from time to time
upon request by the Administrative Agent, such information and reports regarding
the foregoing as the Administrative Agent may reasonably request.
SECTION 7.16 REVENUE AGENT REPORTS. Within ten (10) days after receipt,
copies of all Revenue Agent Reports (Internal Revenue Service Form 886), or
other written proposals of the Internal Revenue Service, that propose, determine
or otherwise set forth any adjustments to the Federal income tax liability of
the affiliated group (within the meaning of Section 1504(a)(1) of the Internal
Revenue Code) of which each Borrower is a member aggregating $250,000 or more.
SECTION 7.17 ENVIRONMENTAL CONDITIONS. Promptly after the assertion or
occurrence (to the Borrowers' knowledge) thereof, notice of any Environmental
Action against or of any noncompliance by any Loan Party or any of its
Subsidiaries (exclusive of Subsidiaries of Alpine which are not Loan Parties)
with any Environmental Law or Environmental Permit that could reasonably be
expected to have a Material Adverse Effect.
108
SECTION 7.18 REAL PROPERTY. Upon the request, from time to time, of the
Administrative Agent, promptly and in any event within thirty (30) days after
any such request, a report supplementing SCHEDULES 4.21 and 4.22, including an
identification of all real and leased property disposed of by the Borrowers or
any of their Subsidiaries during such Fiscal Year, a list and description
(including the street address, county or other relevant jurisdiction, state,
record owner and, in the case of leases of property, lessor, lessee, expiration
date and annual rental cost thereof) of all real property acquired or leased
during such Fiscal Year and a description of such other changes in the
information included in such Schedules as may be necessary for such Schedules to
remain accurate and complete in all respects.
SECTION 7.19 INSURANCE. Upon the request, from time to time, of the
Administrative Agent, promptly and in any event within thirty (30) days after
any such request, a report summarizing the insurance coverage (specifying type,
amount and carrier) in effect for each Borrower and its Subsidiaries and
containing such additional information as the Administrative Agent may
reasonably request.
SECTION 7.20 BORROWING BASE CERTIFICATE. As soon as available and in any
event by the 15th day of each calendar month, a Borrowing Base Certificate which
shall include a European Borrowing Base Certificate, as at the end of the
previous month, certified by the chief financial officer or a financial vice
president of a Borrower.
SECTION 7.21 MANAGEMENT LETTERS. As soon as available and in any event
within five (5) Business Days after the receipt thereof, copies of any
"management letter" or similar letter received by any Borrower or its Board of
Directors (or any Committee thereof) from its independent public accountants.
SECTION 7.22 PERMITTED ACQUISITION DOCUMENTS. Within thirty (30) days
following the consummation of each Permitted Acquisition, complete copies of the
related Permitted Acquisition Documents, certified as true and correct by a
Responsible Officer of the Borrower.
SECTION 7.23 OTHER INFORMATION. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries (exclusive
of Subsidiaries of Alpine which are not Loan Parties) or the Collateral as the
Administrative Agent or any Lender Party (through the Administrative Agent) may
from time to time reasonably request, subject to such confidentiality agreements
as may reasonably be required by the Person providing such information.
ARTICLE 8
FINANCIAL COVENANTS
While any of the Commitments is outstanding and, in the event any Advance
remains outstanding, so long as any Borrower or any other Loan Party is indebted
to any of the Lender Parties or the Administrative Agent under any of the Loan
Documents, any Letter of Credit is outstanding and
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until payment in full of the Notes and full and complete performance of all of
its other obligations arising hereunder, the Borrowers shall:
SECTION 8.1 CONSOLIDATED DEBT TO EBITDA RATIO. Maintain as of the end of
each fiscal quarter of the Borrowers a Consolidated Debt to EBITDA Ratio of not
more than the ratio set forth below:
------------------------------ ---------------------
Date of Determination: Maximum Ratio
------------------------------ ---------------------
January 31, 1999 6.00 to 1.0
------------------------------ ---------------------
April 30, 1999 6.00 to 1.0
------------------------------ ---------------------
July 31, 1999 5.75 to 1.0
------------------------------ ---------------------
October 31, 1999 5.50 to 1.0
------------------------------ ---------------------
January 31, 2000 5.25 to 1.0
------------------------------ ---------------------
April 30, 2000 5.25 to 1.0
------------------------------ ---------------------
July 31, 2000 5.25 to 1.0
------------------------------ ---------------------
October 31, 2000 5.00 to 1.0
------------------------------ ---------------------
January 31, 2001 5.00 to 1.0
------------------------------ ---------------------
April 30, 2001 4.50 to 1.0
------------------------------ ---------------------
July 31, 2001 4.50 to 1.0
------------------------------ ---------------------
October 31, 2001 4.50 to 1.0
------------------------------ ---------------------
January 31, 2002 4.50 to 1.0
------------------------------ ---------------------
April 30, 2002 through (and
including) October 31, 2005 4.00 to 1.0
------------------------------ ---------------------
PROVIDED, HOWEVER, that for purposes of calculating EBITDA for the most recently
completed four fiscal quarters of the Borrowers ending on each of the following
dates, there shall be added to such EBITDA the amounts set forth next to such
dates (representing in each case estimated cost savings resulting from the AIG
Acquisition):
110
------------------------------ ---------------------
Date Amount
------------------------------ ---------------------
January 31, 1999 $2,000,000
------------------------------ ---------------------
April 30, 1999 $1,750,000
------------------------------ ---------------------
July 31, 1999 $1,250,000
------------------------------ ---------------------
October 31, 1999 $ 500,000
------------------------------ ---------------------
SECTION 8.2 INTEREST COVERAGE RATIO. Maintain as of each date set forth
below, a ratio of (i) EBITDA for the most recently completed four fiscal
quarters of the Borrowers to (ii) Consolidated Interest Expense (to the extent
paid in cash during such period) for such period of not less than the ratio set
forth below for such period:
------------------------------ ---------------------
Date of Determination: Minimum Ratio
------------------------------ ---------------------
January 31, 1999 1.70 to 1.0
------------------------------ ---------------------
April 30, 1999 1.70 to 1.0
------------------------------ ---------------------
July 31, 1999 1.75 to 1.0
------------------------------ ---------------------
October 31, 1999 1.85 to 1.0
------------------------------ ---------------------
January 31, 2000 1.85 to 1.0
------------------------------ ---------------------
April 30, 2000 2.00 to 1.0
------------------------------ ---------------------
July 31, 2000 2.00 to 1.0
------------------------------ ---------------------
October 31, 2000 2.00 to 1.0
------------------------------ ---------------------
January 31, 2001 2.00 to 1.0
------------------------------ ---------------------
April 30, 2001 2.25 to 1.0
------------------------------ ---------------------
July 31, 2001 2.25 to 1.0
------------------------------ ---------------------
October 31, 2001 2.25 to 1.0
------------------------------ ---------------------
January 31, 2002 2.25 to 1.0
------------------------------ ---------------------
April 30, 2002 through (and
including) October 31, 2005 2.50 to 1.0
------------------------------ ---------------------
PROVIDED, HOWEVER, that for purposes of calculating EBITDA for the most recently
completed four fiscal quarters of the Borrowers ending on each of the following
dates, there shall be added to such EBITDA
112
the amounts set forth next to such dates (representing in each case estimated
cost savings resulting from the AIG Acquisition):
------------------------------ ---------------------
Date Amount
------------------------------ ---------------------
January 31, 1999 $2,000,000
------------------------------ ---------------------
April 30, 1999 $1,750,000
------------------------------ ---------------------
July 31, 1999 $1,250,000
------------------------------ ---------------------
October 31, 1999 $ 500,000
------------------------------ ---------------------
SECTION 8.3 FIXED CHARGE COVERAGE RATIO. Maintain as of the end of each
fiscal quarter of the Borrowers a Fixed Charge Coverage Ratio for the most
recently completed four fiscal quarters of the Borrowers of not less than the
following ratios for the requisite periods set forth below (except that in
respect of the first three testing periods referred to below, EBITDA and Fixed
Charges shall be computed only for the one, two and three fiscal quarterly
periods respectively described below, provided that Capital Expenditures shall
be computed within fixed charges in an amount equal to the greater of
one-quarter of the Capital Expenditures permitted during the twelve month period
during which a testing period ends and actual Capital Expenditures made during
the testing period specified below):
------------------------------ ---------------------
Four Fiscal Quarters ending on:
------------------------------ ---------------------
Each October 31, January 31, 1.10 to 1.0
April 30 and July 31 after the
Closing Date and continuing
through (and including)
October 31, 2005
------------------------------ ---------------------
PROVIDED, HOWEVER, that for purposes of calculating EBITDA for the most recently
completed four fiscal quarters of the Borrowers ending on each of the following
dates, there shall be added to such EBITDA the amounts set forth next to such
dates (representing in each case estimated cost savings resulting from the AIG
Acquisition):
112
------------------------------ ---------------------
Date Amount
------------------------------ ---------------------
January 31, 1999 $2,000,000
------------------------------ ---------------------
April 30, 1999 $1,750,000
------------------------------ ---------------------
July 31, 1999 $1,250,000
------------------------------ ---------------------
October 31, 1999 $ 500,000
------------------------------ ---------------------
ARTICLE 9
EVENTS OF DEFAULT
If any of the following ("EVENTS OF DEFAULT") shall occur and be
continuing, then, and in any such event, the Administrative Agent (i) shall at
the request, or may with the consent, of the Required Lenders, by notice to the
Borrowers, declare the Commitments of each appropriate Lender (other than the
Commitment in respect of Letter of Credit Advances by the Issuing Bank, European
Letter of Credit Advances by the European Letter of Credit Bank, or a Revolving
Credit Lender pursuant to Section 2.3(c) and Swing Line Advances by a Revolving
Credit Lender pursuant to Section 2.2(b)) and of the Issuing Bank to issue
Letters of Credit and of the European Letter of Credit Bank to issue European
Letter of Credit to be terminated, whereupon the same shall forthwith terminate,
and (ii) shall at the request, or may with the consent, of the Required Lenders,
(A) by notice to the Borrowers, declare the Notes, all interest thereon and all
other amounts payable under this Agreement and the other Loan Documents to be
forthwith due and payable, whereupon the Notes, all such interest and all such
other amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrowers and (B) by notice to each party
required under the terms of any agreement in support of which a Letter of Credit
is issued, request that all Obligations under such agreement be declared to be
due and payable; PROVIDED, HOWEVER, that in the event of an actual or deemed
entry of an order for relief with respect to any Loan Party or Alpine under the
Federal Bankruptcy Code, (x) the obligation of each Lender to make Advances
(other than Letter of Credit Advances by the Issuing Bank or a Revolving Credit
Lender pursuant to Section 2.3(c) and Swing Line Advances by a Revolving Credit
Lender pursuant to Section 2.2(b)) and of the Issuing Bank to issue Letters of
Credit shall automatically be terminated and (y) the Notes, all such interest
and all such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower. Anything elsewhere contained in this
Agreement to the contrary notwithstanding, no Lender shall have the right (x)
absent automatic acceleration is hereinabove provided, to accelerate any of its
Notes or any other Obligations under the Loan Documents, or take any action
against any Loan Party, without the request or consent of the Required Lenders
as hereinabove provided, and/or (y) to take any action against any of the
Collateral except through or at the direction of the Administrative Agent.
113
SECTION 9.1 PAYMENT. (a) The Borrowers shall fail to pay any principal of
any Advance when the same shall become due and payable or (b) the Borrowers
shall fail to pay any interest on any Advance, or any Loan Party shall fail to
make any other payment under any Loan Document, in each case under this clause
(b) within two (2) Business Days after the same becomes due and payable; or
SECTION 9.2 REPRESENTATIONS AND WARRANTIES. Any representation or
warranty made by (a) any Loan Party (or any of its officers) under or in
connection with any Loan Document or (b) by any European Borrowers in any of the
KBC Loan Documents, shall prove to have been incorrect in any material respect
when made or confirmed; or
SECTION 9.3 CERTAIN COVENANTS. The Borrowers shall fail to perform or
observe any term, covenant, agreement, obligation or undertaking contained in
Section 2.14, 5.5, 5.6 , 5.7, 5.13, 5.14, 5.15 or 5.17, Article 6 or Article 8.
SECTION 9.4 OTHER COVENANTS. Any Loan Party shall fail to perform any
other term, covenant or agreement contained in any Loan Document on its part to
be performed or observed if such failure shall remain unremedied for thirty (30)
days after the earlier of the date on which (a) a Responsible Officer of any
Loan Party becomes aware of such failure or (b) written notice thereof shall
have been given to the Borrowers by the Administrative Agent or any Lender
Party; or
SECTION 9.5 OTHER DEFAULTS. Any Loan Party or any of its Subsidiaries
(exclusive of Subsidiaries of Alpine which are not Loan Parties) shall fail to
pay any principal of, premium or interest on or any other amount payable in
respect of any Debt that is outstanding and for which it is liable in a
principal or notional amount of at least $500,000 either individually or in the
aggregate but excluding Debt outstanding hereunder) of such Loan Party or such
Subsidiary (as the case may be), when the same becomes due and payable (whether
by scheduled maturity, required prepayment, acceleration, demand or otherwise);
or any other event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt, in each case if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the maturity of
such Debt or otherwise to cause, or to permit the holder thereof to cause, such
Debt to mature; or any such Debt shall be declared to be due and payable or
required to be prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each case prior
to the stated maturity thereof; or any Event of Default shall occur and shall
not have been cured or waived under any KBC Loan Agreement; or
SECTION 9.6 BANKRUPTCY, ETC.. Any Loan Party or any of its Subsidiaries
or Alpine shall generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any Loan Party or any of its Subsidiaries or Alpine
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee or other similar official for
it or for any substantial part of its property and, in the case
114
of any such proceeding instituted against it (but not instituted by it) that is
being diligently contested by it in good faith, either such proceeding shall
remain undismissed or unstayed for a period of sixty (60) days or any of the
actions sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or any substantial part of its
property) shall occur, or any Loan Party or any of its Subsidiaries or Alpine
shall take any corporate action to authorize any of the actions set forth above
in this Section 9.6; or
SECTION 9.7 JUDGMENTS. (a) Any judgment or order for the payment of
money in excess of $500,000 (other than such a judgment or order which is fully
covered by insurance (subject to ordinary deductibles) for which the appropriate
insurer has acknowledged responsibility in writing) shall be rendered against
any Loan Party or any of its Subsidiaries, including the European Borrowers and
either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be a period of seven (7)
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(b) Any non-monetary judgment or order shall be rendered against any Loan
Party or any of its Subsidiaries, including the European Borrowers that is
reasonably likely to have a Material Adverse Effect; or
SECTION 9.8 LOAN DOCUMENTS. Any material provision of any Loan Document
after delivery thereof shall for any reason cease to be valid and binding on or
enforceable against any Loan Party which is party to it, or any such Loan Party
shall so state in writing; or any Guarantor shall revoke or attempt to revoke
the Guaranty signed by such Guarantor, or shall repudiate such Guarantor's
liability thereunder or shall be in default under the terms thereof; or
SECTION 9.9 LIENS. On of after the Closing Date, there shall for any
reason cease to exist a valid and perfected first and only priority lien on and
security interest in the Collateral in favor of the Administrative Agent subject
only to Permitted Liens; or
SECTION 9.10 CHANGE OF CONTROL. Any Change of Control shall occur; or
SECTION 9.11 ERISA EVENTS.
(a) Any ERISA Event shall have occurred with respect to a Plan and the sum
(determined as of the date of occurrence of the last such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other Plans with
respect to which an ERISA Event shall have occurred and then exist (or the
liability of the Loan Parties and the ERISA Affiliates related to such ERISA
Events) exceeds $500,000; or
(b) Any Borrower or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that such Borrower or ERISA Affiliate has
incurred Withdrawal Liability to such Multiemployer Plan in an amount that, when
aggregated with all other amounts required to be paid to
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Multiemployer Plans by the Borrowers and their ERISA Affiliates as Withdrawal
Liability (determined as of the date of such notification), exceeds $500,000 or
requires payments exceeding $200,000 per annum; or
(c) Any Borrower or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
and as a result of such reorganization or termination the aggregate annual
contributions of the Borrowers and the ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the plan
years of such Multiemployer Plans immediately preceding the plan year in which
such reorganization or termination occurs by an amount exceeding $200,000; or
SECTION 9.12 BORROWING BASE DEFICIENCY. Any Borrowing Base Deficiency
shall occur and be continuing which is not eliminated by the Borrowers'
prepayment within seven (7) Business Days of then outstanding Swing Line
Advances and Revolving Credit Advances in an amount sufficient to eliminate such
Borrowing Base Deficiency; or
SECTION 9.13 SUBORDINATION PROVISIONS. The subordination provisions
contained in any instrument pursuant to which any Subordinated Debt permitted
under Section 6.2(c) was created or in any instrument evidencing such
Subordinated Debt shall cease, for any reason, to be in full force and effect or
enforceable in accordance with their terms (other than as the result of payment
or prepayment in accordance with the terms hereof); or
SECTION 9.14 MANAGEMENT. Xxxxxx Xxxxxx, Xxxxxx Xxxxxxx (whose name shall
be deemed excluded from this Section 9.14 following his retirement) or Xxxxxxx
Xxxx shall cease for any reason whatsoever, including, without limitation, death
or disability (as such disability shall be determined in the sole and absolute
judgment of the Administrative Agent), to be and continuously perform the duties
of senior executives in their current respective capacities or, if such
cessation shall occur as a result of the death or such disability, no successor
satisfactory to the Administrative Agent, in its sole discretion, shall have
become and shall have commenced to perform the duties of the affected
individual(s) within ninety (90) days (but one hundred twenty (120) days in
respect of Xxxxxx Xxxxxx if the cessation shall have been due to death or
disability, not for any other cause and fifteen (15) days if due to another
cause) days after such cessation; PROVIDED, HOWEVER, that if any satisfactory
successor shall have been so elected and shall have commenced performance of
such duties within such period, the name of such successor shall be deemed to
have been inserted in place of Xxxxxx Xxxxxx, Xxxxxx Xxxxxxx or Xxxxxxx Xxxx, as
the case may be, in this Section 9.14; or
SECTION 9.15 BUSINESS CONDEMNATION. There shall occur a cessation of a
substantial part of the business of any Borrower, any Subsidiary of any Borrower
or any Guarantor for a period which significantly affects Borrower's or such
Guarantor's capacity to continue its business, on a profitable basis; or any
Borrower, any Subsidiary of any Borrower or any Guarantor shall suffer the loss
or revocation for a period in excess of 30 consecutive days of any material
license or permit now held or hereafter acquired by any Borrower or such
Subsidiary or Guarantor which is necessary to the continued
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or lawful operation of any material portion of its business; or Borrower or any
Guarantor shall be enjoined, restrained or in any way prevented by court,
governmental or administrative order from conducting all or any material part of
its business affairs for a period in excess of 30 consecutive days; or any
material lease or agreement pursuant to which any Borrower or any Guarantor
leases, uses or occupies any Property shall be canceled or terminated (other
than by reason of casualty) prior to the expiration of its stated term, and
adequate or comparable alternate premises are not secured within 90 days; or any
material portion of the Collateral shall be taken through condemnation or the
value of such Property shall be impaired through condemnation, unless
replacement Collateral of comparable value is obtained within 30 days after the
taking of the condemned Collateral; or
SECTION 9.16 UNINSURED LOSSES. Any material loss, theft, damage or
destruction of any portion of the Collateral having a fair market value of
$250,000 or more in the aggregate for the Borrowers and the European Borrowers,
including the Dollar Equivalent of amounts denominated in non-U.S. currencies,
if not fully covered (subject to ordinary deductibles) as Administrative Agent
shall have permitted) by insurance; or
SECTION 9.17 CRIMINAL FORFEITURE. Any Borrower, any Subsidiary of any
Borrower or any Guarantor shall be criminally indicted or convicted under any
law that could lead to a forfeiture of any Property (having a fair market value
of $100,000 or more individually or in the aggregate) of any Borrower, any
Subsidiary of any Borrower or any Guarantor; or
SECTION 9.18 ENVIRONMENTAL MATTERS. If the Borrowers or their
Subsidiaries shall make aggregate net cash expenditures (net of amounts
collected as reimbursement, indemnification, contribution or otherwise from
unaffiliated third parties) that exceed $2,600,000 between the date hereof and
April 29, 2001 in respect of environmental remediation of (a) the real property
and improvements formerly owned by Alliance America in Port Carbon,
Pennsylvania, and/or (b) the real property and improvements now owned by Aubecq
in Crespin, France; PROVIDED, HOWEVER, that notwithstanding the foregoing, if
such aggregate net cash expenditures during such period at any time or from time
to time exceed $2,600,000 but are less than $4,000,000, then , if and so long as
the Borrowers and their Subsidiaries promptly commence and thereafter continue
to make diligent efforts to collect from unaffiliated third parties amounts
sufficient to reduce such aggregate net cash expenditures to an amount equal to
or less than $2,600,000, no Event of Default shall be deemed to have occurred
unless and until such excess expenditure condition shall have continued for nine
(9) months after such condition arose.
SECTION 9.19 ACTIONS IN RESPECT OF THE LETTERS OF CREDIT UPON DEFAULT. If
any Event of Default shall have occurred and be continuing, the Administrative
Agent may, or shall at the request of the Required Lenders, irrespective of
whether it is taking any of the actions described in Article 9 or otherwise,
make demand upon the Borrowers to, and forthwith upon such demand the Borrowers
will, pay to the Administrative Agent on behalf of the Lender Parties in same
day funds at the Administrative Agent's office designated in such demand, for
deposit in the L/C Cash Collateral
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Account, an amount equal to the aggregate Available Amount of all Letters of
Credit then outstanding. If at any time the Administrative Agent determines
that any funds held in the L/C Cash Collateral Account are subject to any right
or claim of any Person other than the Administrative Agent and the Lender
Parties or that the total amount of such funds is less than the aggregate
Available Amount of all Letters of Credit, the Borrowers will, forthwith upon
demand by the Administrative Agent, pay to the Administrative Agent, as
additional funds to be deposited and held in the L/C Cash Collateral Account, an
amount equal to the excess of (a) such aggregate Available Amount over (b) the
total amount of funds, if any, then held in the L/C Cash Collateral Account that
the Administrative Agent determines to be free and clear of any such right and
claim.
ARTICLE 10
THE ADMINISTRATIVE AGENT
SECTION 10.1 AUTHORIZATION AND ACTION. (a) Each Lender Party (in its
capacity as a Lender, the Issuing Bank, the European Letter of Credit Bank, the
Swing Line Bank and/or any Hedge Bank) hereby appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement and the other Loan Documents as
are delegated to the Administrative Agent by the terms hereof and thereof,
together with such powers and discretion as are reasonably incidental thereto.
The Administrative Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement and the other Loan Documents and shall not
be a trustee for any Lender Party or Hedge Bank.
(b) As to any matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection of the Notes), the
Administrative Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lender
Parties and all holders of Notes; and any action taken or failure to act
pursuant there shall be binding on all of the Lender Parties; PROVIDED, HOWEVER,
that the Administrative Agent shall not be required to take any action that
exposes the Administrative Agent to personal liability or that is contrary to
this Agreement, any other Loan Document or applicable law and except for action
expressly required of the Administrative Agent hereunder or under the Loan
Documents, the Administrative Agent shall in all cases be fully justified in
failing or refusing to act hereunder or thereunder unless it shall be
indemnified to its satisfaction by the Lender Parties and Hedge Banks against
any and all liability and expense that may be incurred by it by reason of taking
or continuing to take any such action.
SECTION 10.2 AGENT'S RELIANCE, ETC. Neither the Administrative Agent nor
any of its directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the
Administrative Agent: (a) may treat the payee of any Note as the holder thereof
until the Administrative Agent receives and accepts
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an Assignment and Acceptance entered into by the Lender that is the payee of
such Note, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 11.7; (b) may consult with legal counsel (including counsel for any Loan
Party), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (c)
makes no warranty or representation to any Lender Party and shall not be
responsible to any Lender Party for any recitals, statements, warranties or
representations (whether written or oral) made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any
Loan Document or the KBC Loan Documents on the part of any Loan Party or to
inspect the property (including the books and records) of any Loan Party or of
any European Borrowers; (e) shall not be responsible to any Lender Party for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created
or purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto; (f) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
telecopy or telex) believed by it to be genuine and signed or sent by or on
behalf of the proper party or parties; and (g) may employ agents or
attorneys-in-fact and shall not be answerable for the negligence or misconduct
of any such agent or attorneys-in-fact selected by it with reasonable care.
SECTION 10.3 FLEET AND AFFILIATES. With respect to its Commitments, the
Advances made by it and the Notes issued to it, Fleet shall have the same rights
and powers under the Loan Documents as any other Lender Party and may exercise
the same as though it were not the Administrative Agent; and the term "Lender
Party" or "Lender Parties" shall, unless otherwise expressly indicated, include
Fleet in its individual capacity. Fleet and its affiliates may accept deposits
from, lend money to, act as trustee under indentures of, accept investment
banking engagements from and generally engage in any kind of business with, any
Loan Party including without limitation, the European Borrowers, any of its
Subsidiaries and any Person who may do business with or own securities of any
Loan Party, including without limitation, the European Borrowers, or any such
Subsidiary and may accept fees and other consideration from the Borrowers or
their Affiliates, for services in connection with this Agreement, the other Loan
Documents or otherwise, all as if Fleet were not the Administrative Agent and
without any duty to account therefor to the Lender Parties.
SECTION 10.4 LENDER PARTY CREDIT DECISION. Each Lender Party acknowledges
that it has, independently and without reliance upon the Administrative Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.6 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement, including, without limitation, as it relates to the European
Borrowers. Each Lender Party also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender Party and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement.
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The Administrative Agent shall not have any duty or responsibility,
either initially or on an ongoing basis, to provide any Lender with any credit
or other information regarding the Borrower, any other Loan Party or any
European Borrowers.
SECTION 10.5 INDEMNIFICATION.
(a) Each Lender Party severally agrees to indemnify the Administrative
Agent (to the extent not promptly reimbursed by the Borrower) from and against
such Lender Party's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Administrative Agent (in its
capacity as such) in any way relating to or arising out of any of the Loan
Documents or any transaction contemplated hereby and thereby or any action taken
or omitted by the Administrative Agent under any of the Loan Documents;
PROVIDED, HOWEVER, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements to the extent resulting from the Administrative
Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender Party agrees to reimburse the Administrative Agent
promptly upon demand for its ratable share of any costs and expenses (including,
without limitation, fees and expenses of counsel) payable by the Borrowers under
Section 11.4, to the extent that the Administrative Agent is not promptly
reimbursed for such costs and expenses by the Borrowers.
(b) Each Lender Party severally agrees to indemnify the Issuing Bank (to
the extent not promptly reimbursed by the Borrowers) from and against such
Lender Party's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Issuing Bank (in its capacity
as such) in any way relating to or arising out of any of the Loan Documents, the
KBC Loan Documents or any action taken or omitted by the Issuing Bank under any
of the Loan Documents; PROVIDED, HOWEVER, that no Lender Party shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Issuing Bank's gross negligence or willful misconduct. Without limitation of
the foregoing, each Lender Party agrees to reimburse the Issuing Bank promptly
upon demand for its ratable share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by the Borrowers under Section
11.4, to the extent that the Issuing Bank is not promptly reimbursed for such
costs and expenses by the Borrower.
(c) For purposes of Sections 10.5(a) and 10.5(b), the Lender Parties'
respective ratable shares of any amount shall be determined, at any time,
according to the sum of (i) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Lender Parties, (ii) their
respective Pro Rata Shares of the aggregate Available Amount of all Letters of
Credit outstanding at such time, (iii) their respective pro rata shares (based
upon the proportion that their respective European Letter of Credit Commitments
bear to the aggregate European Letter of Credit Commitments of all of the Lender
Parties) of the aggregate Available Amount of all European Letters
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of Credit outstanding at such time, (iv) the aggregate unused portions of their
respective Term A Commitments and Term B Commitments at such time and (v) their
respective Unused Revolving Credit Commitments at such time; PROVIDED, that the
aggregate principal amount of Swing Line Advances owing to the Swing Line Bank
and Letter of Credit Advances owing to the Issuing Bank shall be considered to
be owed to the Revolving Credit Lenders ratably in accordance with their
respective Revolving Credit Commitments. In the event that any Defaulted
Advance shall be owing by any Defaulting Lender at any time, such Lender Party's
Commitment with respect to the Facility under which such Defaulted Advance was
required to have been made shall be considered to be unused for purposes of this
Section 10.5 to the extent of the amount of such Defaulted Advance. The failure
of any Lender Party to reimburse the Administrative Agent or the Issuing Bank,
as the case may be, promptly upon demand for its ratable share of any amount
required to be paid by the Lender Parties to the Administrative Agent or the
Issuing Bank, as the case may be, as provided herein shall not relieve any other
Lender Party of its obligation hereunder to reimburse the Administrative Agent
or the Issuing Bank, as the case may be, for its ratable share of such amount,
but no Lender Party shall be responsible for the failure of any other Lender
Party to reimburse the Administrative Agent or the Issuing Bank, as the case may
be, for such other Lender Party's ratable share of such amount. Without
prejudice to the survival of any other agreements of any Lender Party hereunder,
the agreement and obligations of each Lender Party contained in this Section
10.5 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under the other Loan Documents.
SECTION 10.6 SUCCESSOR ADMINISTRATIVE AGENTS. The Administrative Agent
may resign as to any or all of the Facilities at any time by giving written
notice thereof to the Lender Parties and the Borrowers and may be removed as to
all of the Facilities at any time with or without cause by the Required Lenders.
Upon any such resignation or removal, the Required Lenders shall have the right
to appoint a successor Administrative Agent as to such of the Facilities as to
which the Administrative Agent has resigned or been removed. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within thirty (30) days after the retiring
Administrative Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Lender Parties, appoint a successor Administrative
Agent, which shall be a Lender which is a commercial bank organized under the
laws of the United States or of any State thereof and having a combined capital
and surplus of at least $250,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent as to all of
the Facilities and upon the execution and filing or recording of such financing
statements, or amendments thereto, and such other instruments or notices, as may
be necessary or desirable, or as the Required Lenders may request, in order to
continue the perfection of the Liens granted or purported to be granted by the
Collateral Documents, such successor Administrative Agent shall succeed to and
become vested with all the rights, powers, discretion, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from all of its duties and obligations under this Agreement and
the other Loan Documents. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent as to less
than all of the Facilities and upon the execution and filing or recording of
such financing statements, or amendments thereto, and such other
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instruments or notices, as may be necessary or desirable, or as the Required
Lenders may request, in order to continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents, such successor
Administrative Agent shall succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring Administrative Agent
as to such Facilities, other than with respect to funds transfers and other
similar aspects of the administration of Borrowings under such Facilities,
issuances of Letters of Credit (notwithstanding any resignation as
Administrative Agent with respect to the Letter of Credit Facility) and payments
by the Borrowers in respect of such Facilities, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement
as to such Facilities, other than as aforesaid. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative Agent
as to all of the Facilities, the provisions of this Article 10 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent as to any Facilities under this Agreement.
SECTION 10.7 EVENTS OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge of the occurrence of a Default (other than the
non-payment of principal of or interest on Loans) unless the Administrative
Agent has received notice from a Lender or a Borrower specifying such Default
and stating that such notice is a "Notice of Default". In the event that the
Administrative Agent receives such a notice of the occurrence of a Default, the
Administrative Agent shall give notice thereof to the Lenders (and shall give
each Lender notice of each such non-payment). The Administrative Agent shall
(subject to Section 10.1(b) hereof) take such action with respect to such
Default as shall be directed by the Required Lenders.
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement or the Notes or any other Loan Document, nor consent to any
departure by the Borrowers therefrom, shall in any event be effective unless the
same shall be in writing and signed (or, in the case of the Collateral
Documents, consented to) by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; PROVIDED, HOWEVER, that (a) no amendment, waiver or
consent shall, unless in writing and signed by all of the Lenders (other than
any Lender Party that is, at such time, a Defaulting Lender), do any of the
following at any time: (i) change the percentage of (A) the Commitments, (B) the
aggregate unpaid principal amount of the Advances or (C) the aggregate Available
Amount of outstanding Letters of Credit that, in each case, shall be required
for the Lenders or any of them to take any action hereunder; (ii) release all or
substantially all of the Collateral in any transaction or series of related
transactions or permit the creation, incurrence, assumption or existence of any
Lien (other than a Permitted Lien) on any material portion of the Collateral in
any transaction or series of related transactions to secure any liabilities or
obligations other than Obligations owing to the Secured Parties under the Loan
Documents; (iii) release any of the Guarantors from their Guaranty; (iv) amend
this Section 11.1 or the definition of Required Lenders; or (v) limit the
liability of any Loan Party under any of the Loan Documents and (b) no
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amendment, waiver or consent shall, unless in writing and signed by the Required
Lenders and each Lender that has a Commitment under the Term A Facility, Term B
Facility, Revolving Credit Facility or European Letter of Credit Facility if
affected by such amendment, waiver or consent, (i) increase the Commitments of
such Lender or subject such Lender to any additional obligations, (ii) reduce
the principal of, or interest on, the Notes held by such Lender or any fees or
other amounts payable hereunder to such Lender (PROVIDED that any waiver of
post-default interest shall not be deemed to constitute a reduction of
interest), (iii) change any date fixed for any payment of principal of, or
interest on, the Notes held by such Lender or any fees or other amounts payable
hereunder to such Lender, (iv) change the order of application of any prepayment
set forth in Section 2.6 in any manner that materially affects such Lender or
(v) change the European Letter of Credit Lenders Share and the KBC Share;
PROVIDED, FURTHER, that no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Bank or the Issuing Bank, as the case may be, in
addition to the Lenders required above to take such action, affect the rights or
obligations of the Swing Line Bank or the Issuing Bank, as the case may be,
under this Agreement or any other Loan Document; and PROVIDED, FURTHER, that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any other Loan Document.
SECTION 11.2 NOTICES ETC. All notices and other communications provided
for hereunder shall (unless telephonic communication thereof is expressly
permitted hereunder) be in writing (including telegraphic, telecopy or telex
communication) and mailed, telegraphed, telecopied, telexed or delivered by
overnight courier service or personally served,
(a) if to any Borrower:
PolyVision Corporation
00-00 00xx Xxxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxxxx Traurig
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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(b) if to the Administrative Agent:
Fleet National Bank
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy in the case of any Borrowing requests, to:
Fleet National Bank
Agency Services
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx-Xxxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(c) if to any Initial Lender or the Initial Issuing Bank, at its Domestic
Lending Office specified opposite its name on SCHEDULE I.
(d) if to any other Lender Party, at its Domestic Lending Office specified
in the Assignment and Acceptance pursuant to which it became a Lender Party;
or, as to the Borrowers or the Administrative Agent, at such other address as
shall be designated by such party in a written notice to the other parties and,
as to each other party, at such other address as shall be designated by such
party in a written notice to the Borrowers and the Administrative Agent. All
such notices and communications shall, (i) when mailed by certified mail, return
receipt requested, be effective three (3) Business Days after mailing, (ii) when
telegraphed, telecopied or telexed, be effective upon delivery to the telegraph
company, upon transmission by telecopier or upon confirmation by telex
answerback, (iii) when delivered in person, be effective when delivered and
(iv) when delivered by overnight courier, be effective two (2) Business Days
after delivery to the courier properly addressed, except that notices and
communications to the Administrative Agent pursuant to Article 2, 3 or 10 shall
not be effective until received by the Administrative Agent. Delivery by
telecopier of an executed
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counterpart of this Agreement, the Notes or any other Loan Document or of any
Exhibit hereto or thereto or of any amendment or waiver of any provision thereof
shall be as effective as delivery of a manually executed counterpart thereof.
Notwithstanding any other provision contained in this Agreement or any of the
other Loan Documents, the Lenders and the Administrative Agent shall be entitled
to rely on any instruction or authorization contained in any notice given,
executed and delivered by any one of the Borrowers pursuant to this Agreement,
and any such notice shall be and be deemed to be given on behalf of and binding
on each of the Borrowers. Each of the Borrowers hereby appoints each of the
other Borrowers as its agent for delivering and receiving notices pursuant to
this Agreement.
SECTION 11.3 NO WAIVER; REMEDIES; COUNTERCLAIMS. No failure on the part
of any Lender Party or the Administrative Agent to exercise, and no delay in
exercising, any right hereunder or under any Note or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law or in equity. The due payment and
performance of the Obligations shall be without regard to any counterclaim,
right of offset or any other claim whatsoever that the Borrowers or other Loan
Party may have against any Lender Party, Hedge Bank or the Administrative Agent
and without regard to any other obligation of any nature whatsoever that any
Lender Party, Hedge Bank or the Administrative Agent may have to the Borrowers
or Loan Party, and no such counterclaim or offset shall be asserted by any
Borrower (unless such counterclaim or offset would, under applicable law, be
permanently and irrevocably lost if not brought in such action) in any action,
suit or proceeding instituted by any Lender Party, Hedge Bank or the
Administrative Agent for payment or performance of the Obligations under the
Loan Documents.
SECTION 11.4 COSTS AND EXPENSES.
(a) The Borrowers jointly and severally agree to pay on demand (i) all
reasonable costs and expenses of the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
the Loan Documents (including, without limitation, (A) all due diligence,
collateral review, syndication (including printing, distribution and bank
meetings), transportation, computer, duplication, appraisal, audit, insurance,
consultant, search, filing and recording fees and expenses, and (B) the
reasonable fees and expenses of counsel for the Administrative Agent with
respect thereto, including advising the Administrative Agent as to its rights
and responsibilities, or the perfection, protection or preservation of rights or
interests under the Loan Documents, negotiating with any Loan Party or with
other creditors of any Loan Party, including, without limitation, any European
Borrowers or any of its Subsidiaries arising out of any Default or any events or
circumstances that may foreseeably give rise to a Default, and presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto) and (ii) all costs and expenses of the
Administrative Agent and the Lender Parties in connection with the enforcement
of the Loan Documents, whether in any action, suit or litigation or any
bankruptcy, insolvency or other similar proceeding affecting creditors' rights
generally or otherwise (including, without limitation, the reasonable fees and
expenses
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of counsel for the Administrative Agent and each Lender Party with respect
thereto, which shall be a single counsel unless a Lender Party is permitted to
act separately in accordance with this Agreement).
(b) The Borrowers agree to indemnify and hold harmless the Administrative
Agent, each Lender Party and each of their respective Affiliates and their
respective officers, directors, employees, agents and advisors (each, an
"INDEMNIFIED PARTY") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any commenced
or threatened investigation, litigation or proceeding arising out of, related to
or in connection with (and whether under any federal securities law or any other
statutes of any jurisdiction or any regulation or at common law or otherwise
against any Indemnified Parties) (i) any of the Transactions or any related
Transaction of the Borrowers or any of their Subsidiaries or other Affiliates
and any of the other transactions contemplated by the Loan Documents, including
with respect to the European Letters of Credit and the European Borrowers, (ii)
any Permitted Acquisition and any other acquisition or proposed acquisition or
similar business combination or proposed business combination by any Borrower or
any of their Subsidiaries of all or any portion of the shares of capital stock
or substantially all of the property and assets of any other Person or any acts,
practices or omissions of any Borrower or any of its Subsidiaries or any of the
Loan Parties or any of its agents related thereto or any withdrawal, termination
or cancellation of any such proposed transaction for any reason, (iii) the
Facilities, the actual or proposed use of the proceeds of the Advances or the
Letters of Credit by any Borrower or any of its Subsidiaries or other Affiliates
and any of the other transactions contemplated by the Loan Documents, including
with respect to the European Letters of Credit and the European Borrowers, or
(iv) the actual or alleged presence of Hazardous Materials on any property of
any Borrower or any of its Subsidiaries or any Environmental Action relating in
any way to any Borrower or any of its Subsidiaries, in each case whether or not
such investigation, litigation or proceeding is brought by any Loan Party, its
directors, officers, employees, stockholders or creditors or an Indemnified
Party or any Indemnified Party is otherwise a party thereto and whether or not
the Transaction or any other transaction contemplated hereby is consummated,
except in each instance to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from an Indemnified Party's gross negligence or
willful misconduct. The Borrowers also agree not to assert any claim against
the Administrative Agent, any Lender Party or any of their respective
Affiliates, or any of their respective officers, directors, employees, attorneys
and agents, on any theory of liability, for special, indirect, consequential or
punitive damages arising out of or otherwise relating to the AIG Acquisition,
the Facilities, the KBC Loan Documents and the transaction contemplated thereby,
the actual or proposed use of the proceeds of the Advances or the Letters of
Credit, or the European Letters of Credit, the Loan Documents, any of the
Transaction or other transaction contemplated thereby, other than claims for
direct, as opposed to consequential, damages, which shall have been determined
in a final non-appealable judgment by a court of competent jurisdiction to have
resulted from such Person's gross negligence or wilful misconduct.
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(c) If any payment of principal of, or Conversion of, any Eurodollar Rate
Advance is made by the Borrowers to or for the account of a Lender Party other
than on the last day of the Interest Period for such Advance, as a result of a
payment or Conversion pursuant to Section 2.9(b)(i) or 2.10(d) or a prepayment
pursuant to Section 2.6(a) or (b), acceleration of the maturity of the Notes
pursuant to Article 9 or for any other reason, or by an Eligible Assignee to a
Lender Party other than on the last day of the Interest Period for such Advance
upon an assignment of rights and obligations under this Agreement pursuant to
Section 11.7, the Borrowers shall, upon demand by such Lender Party (with a copy
of such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender Party any amounts required to compensate such Lender
Party for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment, including, without limitation, any loss (including
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or re-employment of deposits or other funds required by any Lender
Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or other
amounts payable by it under any Loan Document, including, without limitation,
fees and expenses of counsel and indemnities, such amount may be paid on behalf
of such Loan Party by the Administrative Agent, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any Loan
Party hereunder or under any other Loan Document, the agreements and obligations
of the Borrowers contained in Sections 2.10 and 2.12 and this Section 11.4 shall
survive the payment in full of principal, interest and all other amounts payable
hereunder and under any of the other Loan Documents.
SECTION 11.5 RIGHT OF SET-OFF. The Borrowers and each Guarantor hereby
grant to each Lender a lien, security interest and right of set-off as security
for all liabilities and obligations of the Borrowers and such Guarantor under
the Loan Documents and the KBC Loan Agreements, whether now existing or
hereafter arising, upon and against all deposits, credit, collateral and
property of such Persons (other than funds or property expressly designated as
trust funds), now or hereafter in the possession, custody, safekeeping or
control of any Lender and any entity under the control of Fleet Financial Group,
Inc. or in transit to any of them. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Article 9 to authorize the Administrative
Agent to declare the Notes due and payable pursuant to the provisions of Article
9, each Lender Party and each of its respective Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and otherwise apply any and all deposits (general or special, time or
demand, provisional or final, other than trust funds) at any time held and other
indebtedness at any time owing by such Lender Party or such Affiliate to or for
the credit or the account of the Borrowers or any of their Subsidiaries against
any and all of the Obligations of the Borrowers now or hereafter existing under
this Agreement and the Note or Notes (if any) held by such Lender Party,
irrespective of whether such Lender Party shall have made any demand under this
Agreement or such Note or Notes and although such Obligations may be unmatured.
Each Lender Party shall promptly notify the Borrowers and the Administrative
Agent after any such set-off
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and application; PROVIDED, HOWEVER, that the failure to give such notice shall
not affect the validity of such set-off and application. The rights of each
Lender Party and its respective Affiliates under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) that such Lender Party and its respective Affiliates may have at law,
in equity or otherwise. ANY AND ALL RIGHTS TO REQUIRE THE ADMINISTRATIVE AGENT
OR ANY LENDER TO EXERCISE ANY RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER
COLLATERAL WHICH SECURES THE ADVANCES PRIOR TO EXERCISING ANY RIGHT OF SET-OFF
WITH RESPECT TO ANY DEPOSITS, CREDITS OR OTHER PROPERTY OF ANY BORROWER OR ANY
GUARANTOR ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
SECTION 11.6 BINDING EFFECT This Agreement shall become effective when it
shall have been executed by the Borrowers and the Administrative Agent and when
the Administrative Agent shall have been notified by each Initial Lender and the
Initial Issuing Bank and the European Letter of Credit Bank that each such
Initial Lender and the Initial Issuing Bank and the European Letter of Credit
Bank has executed it and thereafter shall be binding upon and inure to the
benefit of the Borrowers, the Administrative Agent and each Lender Party and
their respective successors and assigns, except that no Borrower shall have the
right to assign any of its rights hereunder or any interest herein without the
prior written consent of the Lender Parties.
SECTION 11.7 ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment or Commitments, the Advances
owing to it and the Note or Notes held by it); PROVIDED, HOWEVER, that (i) each
such assignment shall be of a uniform, and not a varying, percentage of all
rights and obligations under and in respect of each of the Facilities with
respect to which such Lender has a Commitment on a pro rata basis with respect
to each such Facility, and no Facility may be assigned in full or in part
without a contemporaneous assignment to the same assignee of each of the other
Facilities with respect to which such Lender has a Commitment, (ii) except in
the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $5,000,000, (iii) no such assignments shall be permitted
without the prior consent of the Administrative Agent (which may be withheld for
any reason) until the Administrative Agent shall have notified the Lender
Parties that syndication of the Commitments hereunder has been completed, but in
any event not later than ninety (90) days following the Closing Date, (iv) no
such assignment shall be permitted if, immediately after giving effect thereto,
the Borrowers would be required to make payments to or on behalf of the assignee
Lender Party pursuant to Section 2.10(a) or (b) and the assignor Lender Party
was not, at the time of such assignment, entitled to receive any payment
pursuant to Section 2.10(a) or (b), and (v) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
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recording in the Register, an Assignment and Acceptance, together with any Note
or Notes subject to such assignment and other documents, instruments or
agreements as may be necessary in connection therewith and a processing and
recordation fee of $3,500. Any Note issued to an assignee Lender Party
hereunder shall be issued in replacement of, but not in discharge of, the
promissory note held by the assigning Lender Party prior to such assignment and
shall reflect the amount of the respective Commitments and Advances held by such
assignee Lender Party and assignor Lender Party after giving effect to such
assignment.
(b) Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in such Assignment and Acceptance, (i) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the
case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's or Issuing Bank's rights and obligations under this Agreement, such
Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender
Party assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, this Agreement or any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto; (ii) such
assigning Lender Party makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Borrower or any
other Loan Party or the performance or observance by any Loan Party of any of
its obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.6 and such other documents and information as it has
deemed appropriate in order to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent, such assigning
Lender Party or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement and the
other Loan Documents as are delegated to the Administrative Agent by the terms
hereof and thereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their
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terms all of the Obligations which by the terms of this Agreement are required
to be performed by it as a Lender or Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address referred to in
Section 11.2 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lender Parties and the Commitment under each Facility of, and principal amount
of the Advances owing under each Facility to, each Lender Party from time to
time (the "REGISTER"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrowers, the
Administrative Agent and the Lender Parties may treat each Person whose name is
recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrowers or
any Lender Party at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment and the required processing and recordation fee, the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of EXHIBIT A, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt written notice thereof to the Borrowers. In the case of any
assignment by a Lender, within five (5) Business Days after its receipt of such
notice, the Borrowers, at their own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Note or Notes a new Note to
the order of such Eligible Assignee in an amount equal to the Commitment assumed
by it under a Facility pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment hereunder under such Facility, a new
Note to the order of the assigning Lender in an amount equal to the Commitment
retained by it hereunder. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of EXHIBIT C, D or
E, as the case may be .
(f) The Issuing Bank may assign to an Eligible Assignee all of its rights
and obligations under the undrawn portion of its Letter of Credit Commitment at
any time; PROVIDED, HOWEVER, that (i) each such assignment shall be to an
Eligible Assignee and (ii) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with a processing and
recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates, or any Person engaged in a
business similar or comparable to that of the Borrowers or any Subsidiaries) in
or to all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitments, the
Advances owing to it and the Note, or Notes, if any, held by it) at any time and
from time to time and without the consent or notice to the Borrowers or any
other Loan Parties; PROVIDED, HOWEVER, that (i) such Lender Party's obligations
under this Agreement (including, without limitation, its Commitments) shall
remain
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unchanged, (ii) such Lender Party shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender Party
shall remain the holder of any such Note for all purposes of this Agreement,
(iv) the Borrowers, the Administrative Agent and the other Lender Parties shall
continue to deal solely and directly with such Lender Party in connection with
such Lender Party's rights and obligations under this Agreement and (v) no
participant under any such participation shall have any right to approve any
amendment, waiver or other modification of any provision of this Agreement or
any other Loan Document, or any consent to any departure by any Loan Party
therefrom, except to the extent that such amendment, waiver, modification or
consent would reduce the principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation, postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or release all or
substantially all of the Collateral.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
11.7, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrowers furnished to such Lender
Party by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement, any
Lender Party may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note or Notes held by it) in favor of any of the twelve
Federal Reserve Banks organized under Section 4 of the Federal Reserve Act 12
U.S.C. Section 341 in accordance with Regulation A of the Board of Governors of
the Federal Reserve System. No such pledge or enforcement thereof shall release
any Lender Party from its obligations under any of the Loan Documents.
(j) Fleet may syndicate the Facilities to other lenders. Any such
syndication will be managed by Fleet. The Borrowers shall assist Fleet in
forming such syndication and shall provide Fleet and any potential lender,
assignee or participant, promptly upon request, with all information deemed
reasonably necessary by them to complete successfully such syndication,
including, without limitation, all information and projections prepared by the
Borrowers or their officers or advisers relating to the transactions
contemplated herein. The Borrowers shall make appropriate officers and
representatives of the Borrowers and their Subsidiaries available to participate
in information meetings for potential syndicate members and participants at such
times and places as Fleet may reasonably request. In connection with such
syndication, Fleet may, in its sole discretion, allocate to other Lenders
portions of any fees payable to Fleet in connection with the Facilities.
SECTION 11.8 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same
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agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be as effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 11.9 NO LIABILITY OF THE ISSUING BANK. The Borrowers assume all
risks of the acts or omissions of any beneficiary or transferee of any Letter of
Credit with respect to its use of such Letter of Credit (or European Letter of
Credit). Neither the Issuing Bank or the European Letter of Credit Bank nor any
of their respective officers, directors, employees or agents shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit (or
European Letter of Credit) or any acts or omissions of any beneficiary or
transferee in connection therewith; (b) the validity, sufficiency or genuineness
of documents, or of any endorsement thereon, even if such documents should prove
to be in any or all respects invalid, insufficient, fraudulent or forged; (c)
payment by the Issuing Bank against presentation of documents that do not comply
with the terms of a Letter of Credit (or European Letter of Credit), including
failure of any documents to bear any reference or adequate reference to the
Letter of Credit (or European Letter of Credit); or (d) any other circumstances
whatsoever in making or failing to make payment under any Letter of Credit (or
European Letter of Credit); except that the Borrowers shall have a claim against
the Issuing Bank, and such Bank shall be liable to the Borrowers, to the extent
of any direct, but not consequential, damages suffered by the Borrowers that the
Borrowers prove were caused by (i) such Bank's willful misconduct or gross
negligence in determining whether documents presented under any Letter of Credit
(or European Letter of Credit) are genuine and/or comply with the terms of the
Letter of Credit (or European Letter of Credit) or (ii) the Issuing Bank's
willful failure to make lawful payment under a Letter of Credit (or European
Letter of Credit) after the presentation to it of a draft and certificates
strictly complying with the terms and conditions of the Letter of Credit (or
European Letter of Credit). In furtherance and not in limitation of the
foregoing, the Issuing Bank and the European Letter of Credit Bank may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary.
SECTION 11.10 CONFIDENTIALITY. Neither the Administrative Agent nor any
Lender Party shall disclose any Confidential Information to any Person without
the prior written consent of the Borrowers, other than (a) to the Administrative
Agent or to the Administrative Agent's or such Lender Party's Affiliates and
their officers, directors, employees, agents and advisors and to actual or
prospective Eligible Assignees and participants, and then only on a confidential
basis, (b) as required by any law, rule or regulation or judicial process and
(c) as requested or required by any state, federal or foreign authority or
examiner regulating banks or banking.
SECTION 11.11 TERMINATION BY BORROWER. As provided in Section 2.5(a), upon
at least 10 days prior written notice to the Administrative Agent, the Borrowers
may, at their option, terminate this Agreement; provided, however, no such
termination shall be effective unless the European Borrowers have also
terminated the KBC Loan Agreements on the same day as this Agreement is
terminated, and until the Borrower has paid all of the Obligations under the
Loan Documents (including all "Obligations" under and as defined in the KBC Loan
Agreements not paid by the European Borrowers) in immediately available funds
and all European Letters of Credit, and all Letters of Credit have expired
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or have been cash collateralized to the Administrative Agent's satisfaction.
This Agreement and each of the KBC Loan Agreements may be terminated in their
entirety only. Neither this Agreement nor either of the KBC Loan Agreements nor
any section of this Agreement or either of the KBC Loan Agreements nor any type
of Loan available hereunder or thereunder may be terminated singly.
SECTION 11.12 EFFECT OF TERMINATION. All of the Obligations under the Loan
Documents (including all "Obligations" under and as defined in the KBC Loan
Agreements) shall be immediately due and payable upon the termination date
stated in any notice of termination of this Agreement. All undertakings,
agreements, covenants, warranties and representations of the Borrowers contained
in the Loan Documents shall survive any such termination, the Administrative
Agent shall retain its Liens in the Collateral and the Administrative Agent and
each Lender shall retain all of its rights and remedies under the Loan Documents
notwithstanding such termination until the Borrowers and each European Borrower
has paid the Obligations under the Loan Documents to the Administrative Agent,
in full, in immediately available funds, together with the applicable
termination charge, if any. Notwithstanding the payment in full of the
Obligations, the Administrative Agent shall not be required to terminate
security interests in the Collateral unless, with respect to any loss or damage
the Administrative Agent may incur as a result of dishonored checks or other
items of payment received by the Administrative Agent or any Secured Party from
the Borrowers or any Account Debtor and applied to the Obligations, the
Administrative Agent shall, at its option, (i) have received a written
agreement, executed by the Borrowers and by any Person whose Loans or other
advances to the Borrowers are used in whole or in part to satisfy the
Obligations, indemnifying the Administrative Agent and each Secured Party from
any such loss or damage for up to sixty (60) days after termination; or (ii)
have retained such monetary reserves for such period of time (not to exceed 60
days) as the Administrative Agent, in its reasonable discretion, may deem
necessary to protect the Administrative Agent and each Secured Party from any
such loss or damage.
SECTION 11.13 FURTHER ASSURANCES.
(a) At any time and from time to time, upon the request of the
Administrative Agent, the Borrowers and each other Loan Party shall execute,
deliver and acknowledge or cause to be executed, delivered and acknowledged,
such further documents and instruments and do such other acts and things as the
Administrative Agent may reasonably request in order to fully effect the
purposes of this Agreement, the other Loan Documents and any other agreements,
instruments and documents delivered pursuant hereto or in connection with the
Advances, including, without limitation, to the extent required pursuant to this
Agreement, the execution and delivery to the Administrative Agent of mortgages
in form and substance satisfactory to the Administrative Agent covering all real
property or interests therein acquired by the Borrower or any Subsidiary, and
all leases of real property entered into by the Borrower or any Subsidiary as
tenant or lessee, after the date of this Agreement, promptly after such
acquisition or the entering into of any such lease.
(b) Upon receipt of an affidavit of an officer of the Administrative Agent
or any Lender as to the loss, theft, destruction or mutilation of any Note or
Collateral Document which is not of public
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record, and, in the case of any such mutilation, upon the surrender and
cancellation of such Note or Collateral Document, the Borrowers will issue, in
lieu thereof, a replacement Note or other Collateral Document in the same
principal amount thereof (in the case of any Note) and otherwise of like tenor.
SECTION 11.14 SEVERABILITY.
The provisions of this Agreement are severable, and if any clause or
provision hereof shall be held invalid or unenforceable in whole or in part in
any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction and shall not in
any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision in this Agreement in any jurisdiction. Each of the
covenants, agreements and conditions contained in this Agreement is independent
and compliance by the Borrowers with any of them shall not excuse non-compliance
by the Borrowers with any other. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or be otherwise within the limitations of, another covenant shall not avoid
the occurrence of a Default or an Event of Default if such action is taken or
condition exists.
Section 11.15 FOREIGN EXCHANGE INDEMNITY. If any sum due from any
Borrower or any Subsidiary under this Agreement or any other Loan Document or
any order or judgment given or made in relation hereto or thereto has to be
converted from the currency (the "first currency") in which the same is payable
hereunder or under such order or judgment into another currency (the "second
currency") for the purpose of (i) making or filing a claim or proof against any
Borrower or any Subsidiary with any Regulatory Agency or in any court or
tribunal or (ii) enforcing any order or judgment given or made in relation
hereto, any Borrower shall indemnify and hold harmless each of the Persons to
whom such sum is due from and against any loss actually suffered as a result of
any discrepancy between (a) the rate of exchange used to convert the amount in
question from the first currency into the second currency and (b) the rate or
rates of exchange at which such Person, acting in good faith in a commercially
reasonable manner, purchased the first currency with the second currency after
receipt of a sum paid to it in the second currency in satisfaction, in whole or
in part, of any such order, judgment, claim or proof. The foregoing indemnity
shall constitute a separate obligation of each Borrower distinct from its other
obligations hereunder and shall survive the giving or making of any judgment or
order in relation to all or any of such other obligations.
SECTION 11.16 SURVIVAL OF AGREEMENTS AND REPRESENTATIONS; CONSTRUCTION.
All agreements, representations and warranties made herein shall survive the
delivery of this Agreement and the Notes. The headings used in this Agreement
and the table of contents are for convenience only and shall not be deemed to
constitute a part hereof.
SECTION 11.17 JURISDICTION, ETC.
134
(A) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY
NEW YORK STATE COURT IN THE COUNTY OF NEW YORK, NEW YORK OR UNITED STATES
DISTRICT COURT IN THE SOUTHERN DISTRICT OF NEW YORK, NEW YORK AND ANY APPELLATE
COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY, OR
FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH NEW YORK STATE
COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT
SHALL AFFECT ANY RIGHT THAT ANY PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS IN THE
COURTS OF ANY JURISDICTION.
(B) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS TO WHICH IT IS A PARTY IN ANY NEW YORK STATE OR FEDERAL COURT. EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.
SECTION 11.18 GOVERNING LAW. THIS AGREEMENT, THE NOTES AND THE OTHER LOAN
DOCUMENTS (OTHER THAN THE MORTGAGES WHICH SHALL BE GOVERNED BY THE LAW OF THE
JURISDICTION WHERE THE PROPERTY COVERED THEREBY IS LOCATED) SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO ITS RULES PERTAINING TO CONFLICTS OF LAWS OTHER THAN
GENERAL OBLIGATIONS LAW SECTION 5-1401.
SECTION 11.19 WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, THE LOAN
PARTIES, THE ADMINISTRATIVE AGENT AND THE LENDER PARTIES VOLUNTARILY,
INTENTIONALLY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE
135
OTHER LOAN DOCUMENTS, THE ADVANCES OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR
ANY LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT
THEREOF. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE LENDER PARTIES
AND ADMINISTRATIVE AGENT TO ENTER INTO THIS AGREEMENT AND TO MAKE ADVANCES
HEREUNDER.
SECTION 11.20 FINAL AGREEMENT. THIS WRITTEN AGREEMENT, THE NOTES AND THE
OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES. THE PARTIES HERETO ACKNOWLEDGE AND AFFIRM THE STATEMENT MADE IN THE
PRECEDING SENTENCE.
[Signature pages follow]
136
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
POLYVISION CORPORATION
By: /s/ XXXXXX X. XXXXXXX
_________________________________
Name: Xxxxxx X. Xxxxxxx
________________________________
Title: President and CEO
________________________________
POSTERLOID CORPORATION
By: /s/ XXXXXX X. XXXXXXX
_________________________________
Name: Xxxxxx X. Xxxxxxx
________________________________
Title: President
________________________________
GREENSTEEL, INC.
By: /s/ XXXXXX X. XXXXXXX
_________________________________
Name: Xxxxxx X. Xxxxxxx
________________________________
Title: President
________________________________
FLEET NATIONAL BANK,
AS ADMINISTRATIVE AGENT, AS EUROPEAN
LETTER OF CREDIT BANK,
AS INITIAL ISSUING BANK,
AS SWING LINE BANK
By: /s/ Xxxx Xxxx
---------------
Name: Xxxx Xxxx
---------------
Title: Director
---------------
INITIAL LENDERS
FLEET NATIONAL BANK
By: /s/ Xxxx Xxxx
---------------------
Name: Xxxx Xxxx
--------------------
Title: Director
--------------------
KBC BANK N.V.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------
Title: Vice President
---------------------
By: /s/ Xxxxxx Xxxxxxxx
------------------------
Name: Xxxxxx Xxxxxxxx
-----------------------
Title: First Vice President
----------------------
