EXECUTION COPY
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$370,000,000
CREDIT AGREEMENT
Dated as of October 31, 1996,
as amended and restated as of March 27, 1998
among
ESSEX INTERNATIONAL INC.,
ESSEX GROUP, INC.,
THE LENDERS NAMED HEREIN
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS................................. 1
1.1 Defined Terms................................. 1
1.2 Other Definitional Provisions; Financial
Calculations.................................. 22
1.3 Certain Fronted Loan Matters.................. 23
SECTION 2. THE REVOLVING CREDIT COMMITMENTS............ 23
2.1 Revolving Credit Commitments.................. 23
2.2 Procedure for Revolving Credit Borrowing...... 23
2.3 Competitive Borrowings........................ 24
2.4 Fees.......................................... 27
2.5 Evidence of Loans; Repayment.................. 27
2.6 Termination or Reduction of Revolving Credit
Commitments................................... 27
2.7 Optional Prepayments.......................... 28
2.8 Mandatory Prepayments......................... 28
2.9 Conversion and Continuation Options........... 29
2.10 Minimum Amounts and Maximum Number of Eurodollar
Tranches...................................... 29
2.11 Interest Rates and Payment Dates.............. 29
2.12 Computation of Interest and Fees.............. 30
2.13 Inability to Determine Interest Rate.......... 30
2.14 Pro Rata Treatment and Payments............... 31
2.15 Requirements of Law........................... 32
2.16 Taxes......................................... 33
2.17 Indemnity..................................... 35
2.18 Replacement Lending Offices and Lenders....... 36
SECTION 2A. FRONTED LOANS.............................. 36
2.1A Fronted Subfacility.......................... 36
2.2A Procedure for Fronted Loan Borrowings........ 36
2.3A Fronted Loans Fees, Commissions and Other
Charges...................................... 37
2.4A Participations............................... 37
2.5A Spot Exchange Rate........................... 38
2.6A Repayment of Fronted Loans................... 38
2.7A Subsidiary Borrowers......................... 38
SECTION 3. LETTERS OF CREDIT........................... 39
3.1 L/C Commitment................................ 39
3.2 Procedure for Issuance of Letters of Credit... 39
3.3 Fees and Other Charges........................ 40
3.4 L/C Participations............................ 40
3.5 Drawing and Reimbursement..................... 40
3.6 Obligations Absolute.......................... 41
3.7 Letter of Credit Payments..................... 42
3.8 Application................................... 42
3.9 Notices and Reports........................... 42
SECTION 4. REPRESENTATIONS AND WARRANTIES.............. 42
4.1 Financial Condition........................... 43
4.2 No Change..................................... 43
4.3 Corporate Existence; Compliance with Law...... 43
Page
4.4 Corporate Power; Authorization; Enforceable
Obligations................................... 44
4.5 No Legal Bar.................................. 44
4.6 No Material Litigation........................ 44
4.7 No Default.................................... 44
4.8 Ownership of Property; Liens.................. 44
4.9 Intellectual Property......................... 45
4.10 No Burdensome Restrictions.................... 45
4.11 Taxes......................................... 45
4.12 Federal Regulations........................... 45
4.13 Labor Matters................................. 46
4.14 ERISA......................................... 46
4.15 Investment Company Act; Other Regulations..... 46
4.16 Subsidiaries.................................. 46
4.17 Purpose of Loans.............................. 46
4.18 Environmental Matters......................... 46
4.19 Accuracy of Information....................... 47
4.20 Security Documents............................ 48
4.21 Solvency...................................... 48
4.22 Insurance..................................... 48
4.23 Regulation H.................................. 49
4.24 Representations and Warranties on Amendment and
Restatement Effective Date.................... 49
SECTION 5. CONDITIONS PRECEDENT........................ 49
5.1 Intentionally Omitted......................... 49
5.2 Conditions to Each Extension of Credit........ 49
5.3 Conditions to Amendment and Restatement
Effective Date................................ 49
5.4 Conditions to Initial Extension of Credit to a
Subsidiary Borrower........................... 50
SECTION 6. AFFIRMATIVE COVENANTS....................... 51
6.1 Financial Statements.......................... 51
6.2 Certificates; Other Information............... 51
6.3 Payment of Obligations........................ 52
6.4 Conduct of Business and Maintenance of Existence 52
6.5 Maintenance of Property; Insurance............ 53
6.6 Inspection of Property; Books and Records;
Discussions................................... 53
6.7 Notices....................................... 53
6.8 Environmental Laws............................ 54
6.9 Additional Collateral......................... 55
SECTION 7. NEGATIVE COVENANTS.......................... 56
7.1 Financial Condition Covenants................. 56
7.2 Limitation on Indebtedness.................... 57
7.3 Limitation on Liens........................... 59
7.4 Limitation on Guarantee Obligations........... 60
7.5 Limitations on Fundamental Changes............ 61
7.6 Limitation on Sale of Assets.................. 62
7.7 Limitation on Capital Lease Obligations....... 63
7.8 Limitation on Dividends....................... 63
7.9 Limitation on Negative Pledge Clauses......... 64
7.10 Limitation on Capital Expenditures, Investments,
Loans and Advances............................ 64
7.11 Limitation on Optional Payments and
Modifications of Certain Agreements........... 66
7.12 Transactions with Affiliates.................. 66
7.13 Conduct of Businesses......................... 67
Page
7.14 Fiscal Year................................... 67
7.15 Limitation on Activities of Holdings.......... 67
SECTION 8. EVENTS OF DEFAULT........................... 67
SECTION 9. THE ADMINISTRATIVE AGENT.................... 70
9.1 Appointment................................... 70
9.2 Delegation of Duties.......................... 70
9.3 Exculpatory Provisions........................ 70
9.4 Reliance by Administrative Agent.............. 71
9.5 Notice of Default............................. 71
9.6 Non-Reliance on Administrative Agent and Other
Lenders....................................... 71
9.7 Indemnification............................... 72
9.8 Administrative Agent in Its Individual
Capacity...................................... 72
9.9 Successor Administrative Agent................ 72
9.10 Co-Lead Agent and Co- Agents.................. 72
SECTION 10. GUARANTEE.................................. 73
10.1 Guarantee..................................... 73
10.2 No Subrogation, Contribution, Reimbursement
or Indemnity.................................. 73
10.3 Amendments, etc. with respect to the
Obligations................................... 73
10.4 Guarantee Absolute and Unconditional.......... 74
10.5 Reinstatement................................. 74
10.6 Payments...................................... 75
SECTION 11. MISCELLANEOUS.............................. 75
11.1 Amendments and Waivers........................ 75
11.2 Notices....................................... 75
11.3 No Waiver; Cumulative Remedies................ 76
11.4 Survival of Representations and Warranties.... 77
11.5 Payment of Expenses and Taxes................. 77
11.6 Successors and Assigns; Assignments and
Participations................................ 78
11.7 Adjustments; Setoff........................... 80
11.8 Counterparts.................................. 81
11.9 Severability.................................. 81
11.10 Releases...................................... 81
11.11 GOVERNING LAW................................. 81
11.12 Submission To Jurisdiction; Waivers........... 81
11.13 Acknowledgements.............................. 82
11.14 WAIVERS OF JURY TRIAL......................... 82
11.15 Confidentiality............................... 82
11.16 New Lenders; Commitment Increases............. 82
11.17 Judgment Currency............................. 83
11.18 INTEGRATION................................... 83
SCHEDULES:
1.1A Revolving Credit Commitments
1.1B Mortgaged Properties
1.3 Certain Fronted Loan Matters
4.1(a) Liabilities, etc.
4.5 Legal Bar
4.8 Owned and Leased Properties
4.9 Patents and Trademarks
4.16 Subsidiaries
4.20(b) UCC Filing Jurisdictions
4.20(c) Mortgage Filing Jurisdictions
7.2(c) Existing Indebtedness
7.3(f) Existing Liens
7.7(a) Existing Capital Leases
EXHIBITS:
A Form of Intercompany Note
B Form of Fronting Lender Addendum
C-1 Form of Competitive Accept/Reject Letter
C-2 Form of Competitive Advance Invitation
C-3 Form of Competitive Advance Offer
C-4 Form of Competitive Advance Request
D-1 Form of Company Pledge Agreement
D-2 Form of Holdings Pledge Agreement
D-3 Form of Subsidiary Pledge Agreement
E-1 Form of Company Security Agreement
E-2 Form of Holdings Security Agreement
E-3 Form of Subsidiary Security Agreement
F Form of Subsidiary Guarantee
G-1 Form of Opinion of Cravath, Swaine & Xxxxx
G-2 Form of General Counsel Opinion
H Form of Closing Certificate
I Form of Assignment and Acceptance
J Form of Mortgage
K Form of Compliance Certificate
L Form of Confidentiality Letter
M Form of Lender Consent Letter
N-1 Form of Borrowing Subsidiary Agreement
N-2 Form of Borrowing Subsidiary Termination
CREDIT AGREEMENT, dated as of October 31, 1996, as amended and
restated as of March 27, 1998, among ESSEX INTERNATIONAL INC., a
Delaware corporation ("Essex Holdings"), ESSEX GROUP, INC., a Michigan
corporation (the "Company"), the Subsidiary Borrowers (as hereinafter
defined) from time to time parties to this Agreement, the several banks
and other financial institutions from time to time parties to this
Agreement and THE CHASE MANHATTAN BANK, a New York banking corporation,
as administrative agent for the Lenders hereunder.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, dated as of October 31,
1996, as amended and restated as of March 31, 1997 (the "Existing Credit
Agreement"), among Essex Holdings, the Company, the lenders parties
thereto and The Chase Manhattan Bank, as Administrative Agent, such
lenders have agreed to extend credit to the Company;
WHEREAS, Essex Holdings and the Company have requested that the
Existing Credit Agreement be amended and restated as hereinafter
provided;
WHEREAS, such amendment and restatement has been approved in
accordance with the Existing Credit Agreement; and
WHEREAS, it is the intent of the parties hereto that this Agreement
not constitute a novation of the obligations and liabilities existing
under the Existing Credit Agreement or evidence repayment of all or any
of such obligations and liabilities and that this Agreement amend and
restate in its entirety the Existing Credit Agreement and re-evidence
the obligations of Essex Holdings and the Company outstanding
thereunder;
NOW, THEREFORE, the parties hereto hereby agree that, on the
Amendment and Restatement Effective Date (as hereinafter defined), the
Existing Credit Agreement will be amended and restated in its entirety
as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR Loans": Revolving Credit Loans the rate of interest
applicable to which is based upon the Alternate Base Rate.
"Administrative Agent": Chase, together with its affiliates,
as the arranger of the Revolving Credit Commitments and as the
administrative agent for the Lenders under this Agreement and the
other Loan Documents, and any successor administrative agent
appointed and approved pursuant to Section 9.9. In the case of
Fronted Loans, the term "Administrative Agent" may, at the election
of Chase, include Chase Manhattan plc.
"Affiliate": as to any Person, (a) any other Person which,
directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person or (b) any Person who is a
director, officer, shareholder or partner (i) of such Person, (ii)
of any Subsidiary of such Person or (iii) of any Person described
in the preceding clause (a). For purposes of this definition,
"control" of a Person means the power, directly or indirectly,
either to (i) vote 10% or more of the securities having ordinary
voting power for the election of directors of such Person or (ii)
direct or cause the direction of the management and policies of
such Person whether by contract or otherwise. For the purposes of
Section 7.12, shareholders, members and Affiliates of BSC or BS
that would not be Affiliates of Holdings, the Company or any of its
Subsidiaries other than by reason of being shareholders, members or
Affiliates of BSC or BS, and that do not in fact participate in the
management of any of BSC, BS, BP Co., Holdings, the Company or any
of its Subsidiaries, nor are controlled by BSC, BS, BP Co.,
Holdings, the Company or any of its Subsidiaries, or any of their
respective Affiliates who in fact participate in the management of
any of BSC, BS, BP Co., Holdings, the Company or any of its
Subsidiaries, shall be deemed not to be Affiliates of Holdings, the
Company or any of its Subsidiaries.
"Aggregate Outstanding Extensions of Credit": at any time, an
amount equal to the sum of (a) the Aggregate Outstanding Revolving
Extensions of Credit at such time and (b) the aggregate principal
amount of the Competitive Loans then outstanding.
"Aggregate Outstanding Revolving Extensions of Credit": at any
time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Credit Loans then outstanding, (b) the
aggregate amount of all L/C Obligations then outstanding, (c) the
Dollar Equivalent of the aggregate principal amount of all Fronted
Loans then outstanding and (d) the aggregate principal amount of
all Specified Basket Debt then outstanding.
"Agreement": this Amended and Restated Credit Agreement, as
further amended, supplemented or otherwise modified from time to
time.
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Base
CD Rate in effect on such day plus 1% and (c) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. For purposes
hereof: "Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by Chase as its prime rate in
effect at its principal office in New York City; "Base CD Rate"
shall mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) a fraction, the numerator of which is
one and the denominator of which is one minus the C/D Reserve
Percentage and (b) the Assessment Rate; "Three-Month Secondary CD
Rate" shall mean, for any day, the secondary market rate for
three-month certificates of deposit reported as being in effect on
such day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate
will, under the current practices of the Board, be published in
Federal Reserve Statistical Release H.15(519) during the week
following such day), or, if such rate shall not be so reported on
such day or such next preceding Business Day, the average of the
secondary market quotations for three-month certificates of deposit
of major money center banks in New York City received at
approximately 10:00 A.M., New York City time, on such day (or, if
such day shall not be a Business Day, on the next preceding
Business Day) by the Administrative Agent from three New York City
negotiable certificate of deposit dealers of recognized standing
selected by it; and "Federal Funds Effective Rate" shall mean, for
any day, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it. If for
any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is
unable to ascertain the Base CD Rate or the Federal Funds Effective
Rate, or both, for any reason, including the inability or failure
of the Administrative Agent to obtain sufficient quotations in
accordance with the terms hereof, the Alternate Base Rate shall be
determined without regard to clause (b) or (c), or both, of the
first sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any
change in the Alternate Base Rate due to a change in the Prime
Rate, the Three-Month Secondary CD Rate, the C/D Reserve
Percentage, the Assessment Rate or the Federal Funds Effective Rate
shall be effective on the effective day of such change in the Prime
Rate, the Three-Month Secondary CD Rate, the C/D Reserve
Percentage, the Assessment Rate or the Federal Funds Effective
Rate, respectively.
"Amendment and Restatement Effective Date": the date on which
each of the conditions precedent specified in Section 5.3 shall
have been satisfied.
"Applicable Margin": for each Type of Revolving Credit Loan,
on any date, the rate per annum set forth below opposite the Level
then in effect:
Level Eurodollar Loans ABR Loans
[TAB SET]
row does
not print I 0.375% 0%
II 0.500% 0%
III 0.625% 0%
IV 0.750% 0%
1.125%
V 0.125%
VI 1.500% 0.500%
"Application": an application, in such form as the Issuing
Lender may specify from time to time, requesting the Issuing Lender
to open a Letter of Credit.
"Assessment Rate": for any day, as applied to any ABR Loan,
the annual assessment rate in effect on such day which is payable
by a member of the Bank Insurance Fund maintained by the Federal
Deposit Insurance Corporation or any successor (the "FDIC")
classified as well-capitalized and within supervisory subgroup "B"
(or a comparable successor assessment risk classification) within
the meaning of 12 C.F.R. ss. 327.3(d) (or any successor provision)
to the FDIC for the FDIC's insuring time deposits at offices of
such institution in the United States.
"Assignment and Acceptance": an Assignment and Acceptance
entered into by a Lender and an assignee, and consented to by the
Administrative Agent, the Issuing Lender and the Company,
substantially in the form of Exhibit I.
"Available Revolving Credit Commitment": as to any Lender at
any time, an amount equal to the excess, if any, of (a) the amount
of such Lender's Revolving Credit Commitment over (b) such Lender's
Outstanding Revolving Extensions of Credit.
"Bank of Montreal Credit Facility": the credit agreement,
dated as of May 30, 1996, between Bank of Montreal and Essex
Canada, as amended, supplemented or otherwise modified from time to
time.
"Bessemer Group": the collective reference to BSC, BH, BS,
Bessec, any Control Affiliate of any of them (collectively, the
"Bessemer Affiliates"), any partner, member, stockholder, manager,
director, officer or employee of BSC, BH, BS, Bessec, or a Bessemer
Affiliate or of any such partner, member, stockholder or manager
(collectively, "Bessemer Associates"), the heirs, executors,
administrators, testamentary trustees, legatees or beneficiaries of
any Bessemer Associate and a trust, the beneficiaries of which, or
a corporation or partnership, the stockholders, members or partners
of which, include BSC, BH, BS, Bessec, Bessemer Affiliates,
Bessemer Associates, their spouses or their lineal descendants,
provided, however, that "Bessemer Group" shall exclude any
operating company "controlled" (as defined in the definition of
"Control Affiliate") by Bessemer Holdings, L.P., Bessemer Capital
Partners, L.P. or any partnership or similar entity under common
"control" (as defined in the definition of "Control Affiliate")
with Bessemer Holdings, L.P.
"Bessec": Bessec Holdings, L.P. and any Person which is a
Subsidiary or Control Affiliate thereof.
"BH": Bessemer Holdings, L.P. (as successor in interest to
Bessemer Capital Partners, L.P.) and any Person which is a
Subsidiary or Control Affiliate thereof.
"BS": Bessemer Securities LLC and any Person which is a
Subsidiary or Control Affiliate thereof.
"Board": the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Borrowers": the collective reference to the Company and the
Subsidiary Borrowers.
"Borrowing Date": any Business Day specified in a notice
pursuant to Section 2.2, 2.2A or 2.3, as the case may be, as a date
on which the relevant Borrower requests the Lenders (or any of
them) to make Loans hereunder.
"Borrowing Subsidiary Agreement": a Borrowing Subsidiary
Agreement, substantially in the form of Exhibit N-1.
"Borrowing Subsidiary Termination": a Borrowing Subsidiary
Termination, substantially in the form of Exhibit N-2.
"BP Co.": Bessemer Partners & Co.
"BSC": Bessemer Securities Corporation.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close; provided, however, that (a) when used in
connection with a Eurodollar Loan, the term "Business Day" shall
also exclude any day on which commercial banks are not open for
dealings in Dollar deposits in the London interbank market and (b)
when used in connection with a Fronted Loan, the term "Business
Day" shall also exclude (i) any day on which commercial banks are
not open for dealings in deposits in the relevant Fronted Currency
in the relevant interbank market and (ii) any day on which
commercial banks are not open in the jurisdiction of the relevant
Fronting Lender's Payment Office.
"Calculation Date": two Business Days prior to the last
Business Day of each calendar month (or any other day selected by
the Administrative Agent when an Event of Default has occurred and
is continuing (each, an "Optional Calculation Date")); provided
that the second Business Day preceding (i) each Borrowing Date with
respect to any Fronted Loan or (ii) each date on which any Fronted
Loan is extended or rolled-over shall, in each case, also be a
"Calculation Date" with respect to the relevant Fronted Currency.
"Capital Expenditures": for any period and with respect to any
Person, the aggregate of all expenditures by such Person and its
Subsidiaries for the acquisition or leasing (pursuant to a capital
lease) of fixed or capital assets or additions to equipment
(including replacements, capitalized repairs and improvements
during such period) which should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries,
excluding (a) any such expenditure made with the proceeds of any
sale of fixed or capital assets, so long as (i) such proceeds are
so applied within twelve months of such sale and (ii) the assets
acquired pursuant to such expenditure constitute Collateral as to
which the Administrative Agent, for the benefit of the Lenders, has
a fully perfected Lien, prior and superior in right to any other
Person, other than with respect to Liens expressly permitted by
Section 7.3 (other than
Section 7.3(g)(iii)) and (b) any such expenditure made to restore,
replace or rebuild property to the condition of such property
immediately prior to any damage, loss or destruction of such
property, to the extent such expenditure is made with insurance
proceeds relating to any such damage, loss or destruction. For the
purpose of this definition, the purchase price of equipment which
is purchased simultaneously with the trade-in of existing equipment
owned by such Person or any of its Subsidiaries shall be included
in Capital Expenditures only to the extent of the gross amount of
such purchase price less the credit granted by the seller of such
equipment for such equipment being traded in at such time.
"Capital Lease Financing Facility": the collective reference
to (a) the Agreement and Lease dated as of April 12, 1995, between
the Company, as lessee, and Mellon Financial Services Corporation
#3, as lessor and (b) any other lease financing facility entered
into by the Company or any of its Subsidiaries (provided, that the
assets subject thereto, and the pricing, tenor and other terms
thereof, shall be reasonably satisfactory to the Required Lenders),
in each case as amended, supplemented or otherwise modified from
time to time in accordance with Section 7.11.
"Capital Lease Obligations": as to any Person, the obligations
of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required
to be classified and accounted for as capital leases on a balance
sheet of such Person under GAAP and, for the purposes of this
Agreement, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance
with GAAP.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"Cash Equivalents": (a) securities with maturities of one year
or less from the date of acquisition issued or fully guaranteed or
insured by the United States Government or any agency thereof; (b)
certificates of deposit, time deposits, eurodollar time deposits,
overnight bank deposits, bankers' acceptances and repurchase
agreements having maturities of one year or less from the date of
acquisition issued by any Lender or by any commercial bank
organized under the laws of the United States of America or any
state thereof having combined capital and surplus of not less than
$100,000,000; and (c) commercial paper of an issuer rated at least
A-1 by Standard & Poor's Ratings Services or P-1 by Xxxxx'x
Investors Service, Inc., or carrying an equivalent rating by a
nationally recognized rating agency, if both of the two named
rating agencies cease publishing ratings of investments, and, in
either case, maturing within six months from the date of
acquisition.
"C/D Reserve Percentage": for any day, that percentage
(expressed as a decimal) which is in effect on such day, as
prescribed by the Board, for determining the maximum reserve
requirement for a member bank of the Federal Reserve System in New
York City with deposits exceeding one billion Dollars in respect of
new non-personal time deposits in Dollars in New York City having a
maturity approximately equal to three months and in an amount of
$100,000 or more.
"Chase": The Chase Manhattan Bank, a New York banking
corporation.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": all property and interests in property and
proceeds thereof now owned or hereafter acquired by Holdings, the
Company or any of its Subsidiaries in or upon which a Lien is or
will be granted or purported to be granted under any of the
Security Documents.
"Commercial Letters of Credit": the collective reference to
Sight Letters of Credit and Usance Letters of Credit.
"Commitment Percentage": as to any Lender at any time, the
percentage of the aggregate Revolving Credit Commitments then
constituted by such Lender's Revolving Credit Commitment.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Company and which is treated as a single employer
under Section 414(b) or (c) of the Code.
"Company Pledge Agreement": the Pledge Agreement made by the
Company in favor of the Administrative Agent for the benefit of the
Lenders substantially in the form of Exhibit D-1, as the same may
be amended, supplemented or otherwise modified from time to time.
"Company Security Agreement": the Security Agreement made by
the Company in favor of the Administrative Agent for the benefit of
the Lenders substantially in the form of Exhibit E-1, as the same
may be amended, supplemented or otherwise modified from time to
time.
"Competitive Advance Accept/Reject Letter": a notification
made by the Company pursuant to Section 2.3(f), substantially in
the form of Exhibit C-1.
"Competitive Advance Invitation": an invitation made by the
Company pursuant to Section 2.3(c), substantially in the form of
Exhibit C-2.
"Competitive Advance Offer": an offer by a Lender to make a
Competitive Loan pursuant to Section 2.3(d), substantially in the
form of Exhibit C-3.
"Competitive Advance Rate": (a) in the case of a Eurodollar
Competitive Loan, the applicable Eurodollar Rate plus (or minus)
the Margin, and (b) in the case of a Fixed Rate Competitive Loan,
the fixed rate of interest offered by the relevant Lender pursuant
to the related Competitive Advance Offer.
"Competitive Advance Request": a request made pursuant to
Section 2.3(b), substantially in the form of Exhibit C-4.
"Competitive Borrowing": a borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Lender or
Lenders whose Competitive Advance Offers for such borrowing have
been accepted by the Company pursuant to Section 2.3(f).
"Competitive Loan": a Loan (which shall be a Eurodollar
Competitive Loan or a Fixed Rate Competitive Loan) made by a Lender
pursuant to Section 2.3.
"Competitive Loan Maturity Date": as to any Competitive Loan,
the date specified by the Company pursuant to Section 2.3(b)
pursuant to the relevant Competitive Advance Request.
"Competitive Loan Period": as to any Competitive Loan, the
period from the applicable Borrowing Date to the applicable
Competitive Loan Maturity Date.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer of each of Holdings and the Company in the form
of Exhibit K.
"Confidential Information": written information that Holdings,
the Company, any of their Subsidiaries or Affiliates, or any of
their authorized representatives furnishes to the Administrative
Agent or any Lender on a confidential basis, other than any such
information that becomes generally available to the public other
than as a result of a breach by the Administrative Agent or any
Lender of its obligations hereunder or that is or becomes available
to the Administrative Agent or such Lender from a source other than
Holdings, the Company, any of their Subsidiaries or Affiliates, or
any of their authorized
representatives and that is not, to the actual knowledge of the
recipient thereof, subject to obligations of confidentiality with
respect thereto.
"Consolidated Current Assets": at a particular date, with
respect to any Person, all amounts (other than cash and Cash
Equivalents) which would, in conformity with GAAP, be set forth
opposite the caption "total current assets" (or any like caption)
on a consolidated balance sheet of such Person and its Subsidiaries
at such date, plus the amount of the LIFO reserve applied to such
Person's inventory as of such date.
"Consolidated Current Liabilities": at a particular date, with
respect to any Person, all amounts which would, in conformity with
GAAP, be set forth opposite the caption "total current liabilities"
(or any like caption) on a consolidated balance sheet of such
Person and its Subsidiaries at such date, but excluding (a) the
current portion of any Funded Debt of such Person and its
Subsidiaries and (b) without duplication of clause (a) above, all
Indebtedness consisting of Loans to the extent otherwise included
therein.
"Consolidated EBITDA": for any period, with respect to any
Person, Consolidated Net Income of such Person for such period
plus, without duplication and to the extent reflected as a charge
in the statement of such Consolidated Net Income for such period,
the sum of (i) total income tax expense, (ii) interest expense,
amortization or writeoff of debt discount and debt issuance costs
and commissions, discounts and other fees and charges (including
premiums paid pursuant to the Senior Note Redemption) associated
with Indebtedness (including the Loans, L/C Obligations and
Non-Facility L/C Obligations), (iii) depreciation and amortization
expense, (iv) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (v) other non-cash
charges (including changes in inventory valuations) and (vi) any
extraordinary expenses or losses (including, whether or not
otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, losses on sales of assets
outside of the ordinary course of business) and minus, without
duplication and to the extent reflected as a credit in the
statement of such Consolidated Net Income for such period, the sum
of (a) any extraordinary income or gains (including, whether or not
otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, gains on the sales of
assets outside of the ordinary course of business) and (b) total
cash interest income of such Person and its consolidated
Subsidiaries for such period, all as determined on a consolidated
basis in accordance with GAAP.
"Consolidated Net Cash Interest Expense": for any period as to
any Person, (a) total cash interest expense (including that
attributable to Capital Lease Obligations and the Permitted
Receivables Facility) of such Person and its consolidated
Subsidiaries for such period with respect to all outstanding
Indebtedness of such Person and its consolidated Subsidiaries,
including, without limitation, (i) Fronting Participation Fees,
(ii) all commissions, discounts and other fees and charges owed
with respect to letters of credit (including Participation Fees but
excluding fronting fees payable solely to the issuer of any such
letter of credit) and bankers' acceptance financing, (iii) funding
costs and ongoing facility, program or similar fees relating to the
Permitted Receivables Facility and (iv) net costs under Interest
Rate Protection Agreements (which net costs may be allocated over
the term of any Interest Rate Protection Agreement in any manner
reasonably deemed appropriate by the Company) minus (b) total cash
interest income of such Person and its consolidated Subsidiaries
for such period, in each case determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Income": for any period as to any Person,
the consolidated net income (or loss) of such Person and its
Subsidiaries, determined on a consolidated basis in accordance with
GAAP; provided that there shall be excluded the income (or deficit)
of any other Person (other than a Subsidiary of such Person) in
which such Person or any of its Subsidiaries has an ownership
interest, except to the extent that any such income is actually
received by such Person or such Subsidiary in the form of dividends
or similar distributions.
"Consolidated Net Worth": of any Person means, at any date,
the excess of total assets of such Person and its consolidated
Subsidiaries over total liabilities of such Person and its
consolidated Subsidiaries on such date (determined without giving
effect to any reduction of such amount resulting from the payment
of premiums pursuant to the Senior Note Redemption).
"Consolidated Working Capital": the excess of Consolidated
Current Assets over Consolidated Current Liabilities.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it
or any of its property is bound.
"Control Affiliate": as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or
indirectly, to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Cost of Funds": with respect to any Fronted Currency, the
rate of interest per annum determined by the relevant Fronting
Lender as the rate at which deposits in the applicable Fronted
Currency in the approximate amount of the relevant Fronted Loan for
the relevant Interest Period (or other applicable calculation
period) would be offered by its applicable lending office to major
banks in the relevant interbank market at their request at
approximately 11:00 A.M. (local time) two Business Days prior to
the commencement of such Interest Period or other period.
"Default": any of the events specified in Section 8, whether
or not any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"Determination Date": the last Business Day of each month and
each date that is two Business Days after any Optional Calculation
Date.
"Dollar Equivalent": with respect to an amount of any Fronted
Currency on any date, the amount of Dollars that may be purchased
with such amount of such currency at the Spot Exchange Rate
(determined as of the most recent Calculation Date) with respect to
such currency on such date.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"EBITDA Basket Amount": for any fiscal year of Holdings, an
amount equal to the excess, if any, of (a) Consolidated EBITDA of
Holdings for the immediately preceding fiscal year over (b) the
product of 1.25 times Consolidated Net Cash Interest Expense of
Holdings for the immediately preceding fiscal year.
"Effective Date": October 31, 1996.
"Environmental Claim": any written notice of any Governmental
Authority alleging potential liability for damage to the
environment or by any Person alleging potential liability for
personal injury (including sickness, disease or death), in either
case, resulting from or based upon (a) the presence or Release
(including intentional and unintentional, negligent and
non-negligent, sudden or non-sudden, accidental or non-accidental
leaks or spills) of any Hazardous Material at, in or from property,
whether or not owned or leased by Holdings, the Company or any of
its Subsidiaries, or (b) any other circumstances forming the basis
of any violation, or alleged violation, of any Environmental Law.
"Environmental Laws": any and all foreign, federal, state,
local and municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental
Authority and requirements of law (including common law)
regulating, relating to or imposing liability or standards of
conduct concerning protection of human health or the environment as
now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Essex Canada": Essex Canada Inc., a Delaware corporation.
"Eurocurrency Reserve Requirements": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of the maximum reserve
requirements in effect on such day (including, without limitation,
basic, supplemental, marginal and emergency reserves under any
regulations of the Board or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve
requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the
Board) maintained by a member bank of the Federal Reserve System.
"Eurodollar Base Rate": in the case of any Eurodollar Loan,
with respect to each day during each Interest Period or Competitive
Loan Period pertaining to such Eurodollar Loan, the rate of
interest determined on the basis of the rate for deposits in
Dollars for a period equal to such Interest Period or Competitive
Loan Period commencing on the first day of such Interest Period or
Competitive Loan Period appearing on Page 3750 of the Dow Xxxxx
screen as of 11:00 A.M., London time, two Business Days prior to
the beginning of such Interest Period or Competitive Loan Period,
provided, that in the event that such rate does not appear on Page
3750 of the Dow Xxxxx screen (or otherwise on the Dow Xxxxx
Service), the "Eurodollar Base Rate" shall be determined by
reference to such other publicly available service for displaying
eurodollar rates as may be agreed upon by the Administrative Agent
and the Company. In the absence of such agreement, the "Eurodollar
Base Rate" shall instead be the rate per annum equal to the average
(rounded upward, if necessary, to the nearest 1/32nd of 1%) of the
respective rates notified to the Administrative Agent by each of
the Reference Lenders as the rate at which such Reference Lender is
offered Dollar deposits at or about 10:00 A.M., New York time, two
Business Days prior to the beginning of the relevant Interest
Period or Competitive Loan Period, in the interbank eurodollar
market where the eurodollar and foreign currency and exchange
operations in respect of its Eurodollar Loans are then being
conducted for delivery on the first day of such Interest Period or
Competitive Loan Period for the number of days comprised therein
and in an amount comparable to the amount of its Eurodollar
Revolving Credit Loan to be outstanding during such Interest Period
or the amount of the relevant Competitive Loan, as the case may be.
"Eurodollar Competitive Loan": any Competitive Loan the rate
of interest applicable to which is based upon the Eurodollar Rate.
"Eurodollar Loans": any Eurodollar Competitive Loan or
Eurodollar Revolving Credit Loan.
"Eurodollar Rate": with respect to each day during each
Interest Period or Competitive Loan Period pertaining to a
Eurodollar Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward to the
nearest 1/32nd of 1%):
Eurodollar Base Rate
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Revolving Credit Loan": any Revolving Credit Loan
the rate of interest applicable to which is based upon the
Eurodollar Rate.
"Eurodollar Tranche": the collective reference to Eurodollar
Revolving Credit Loans the Interest Periods with respect to all of
which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on the
same day).
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse
of time, or both, or any other condition, has been satisfied.
"Existing Credit Agreement": as defined in the recitals
hereto.
"Femco": Femco Magnet Wire Corporation, an Indiana
corporation.
"Fixed Rate Competitive Loan": any Competitive Loan bearing
interest at a fixed percentage rate per annum specified by the
Lender making such Loan in its Competitive Advance Offer (as
opposed to a rate comprised of the Eurodollar Rate plus or minus a
Margin).
"Foreign Subsidiary": any Subsidiary of the Company organized
under the laws of any jurisdiction outside the United States of
America.
"Fronted Currency": with respect to each Fronting Lender, the
eurocurrency or eurocurrencies specified in the applicable Fronting
Lender Addendum, which shall be deutschemarks, pounds sterling,
French francs (in each case as traded in the relevant interbank
eurocurrency market), any successor currency designated pursuant to
Section 1.3 or any other eurocurrency approved by the Required
Lenders.
"Fronted Currency Sublimit": with respect to each Fronting
Lender and any Fronted Currency, the amount specified by such
Fronting Lender, and acceptable to the Administrative Agent and the
Company, for such Fronted Currency in the applicable Fronting
Lender Addendum.
"Fronted Loan": as defined in Section 2.1A.
"Fronted Subfacility": the lending facility described in
Section 2.1A.
"Fronting Lender": with respect to a particular Fronted
Currency, each Lender (or an Affiliate thereof) which executes and
delivers a Fronting Lender Addendum with respect to such Fronted
Currency, provided that, unless the Administrative Agent and the
Company otherwise agree, Chase (or its designated Affiliate) shall
be the sole Fronting Lender for each Fronted Loan.
"Fronting Lender Addendum": a Fronting Lender Addendum,
substantially in the form of Exhibit B.
"Fronting Lender's Payment Office": with respect to any
Fronting Lender, in the case of payments in a Fronted Currency,
such address as such Fronting Lender may from time to time specify
for such purpose pursuant to the applicable Fronting Lender
Addendum.
"Fronting Participation Fee": as defined in Section 2.3A(b).
"Funded Debt": as to any Person, all Indebtedness of such
Person (including Capital Lease Obligations but excluding
Indebtedness consisting of letters of credit) that matures more
than one year from the date of its creation or matures within one
year from such date but is renewable or extendible, at the option
of the debtor, to a date more than one year from 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 from such date, including, without limitation, (a) all
amounts of Funded Debt required to be paid or prepaid within one
year from the date of its creation and (b) whether or not
constituting Indebtedness of the type described above, (i) in the
case of each Borrower, Indebtedness in respect of the Loans made to
or guaranteed by it and (ii) Indebtedness under the Permitted
Receivables Facility.
"GAAP": generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards
Board (or agencies with similar functions of comparable stature and
authority within the accounting profession), or in such other
statements by such other entity as may be in general use by
significant segments of the accounting profession, as in effect
from time to time. For the purpose of certain calculations
hereunder, GAAP shall be modified in the manner described in
Section 1.2(e).
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b)
another Person (including, without limitation, any bank under any
letter of credit) to induce the creation of which the guaranteeing
person has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing
any Indebtedness, leases, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary
obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose
of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation
or (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation
of any guaranteeing person shall be deemed to be the lower of (a)
an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made
and (b) the maximum amount for which such guaranteeing person may
be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are
not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as determined
by the Company in good faith.
"Hazardous Materials": any gasoline or petroleum (including
crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials, or wastes, defined or
regulated as such in or under any Environmental Law, including,
without limitation, asbestos, polychlorinated biphenyls, and
urea-formaldehyde insulation.
"Holdings": Essex Holdings or any successor thereto
(including, without limitation, New Holdings).
"Holdings Common Equity Offering": any primary offering or
sale (public or private) of shares of, or rights to purchase,
common stock of Holdings.
"Holdings/Company Merger": as defined in Section 7.5(c).
"Holdings Pledge Agreement": the Pledge Agreement made by
Holdings in favor of the Administrative Agent for the benefit of
the Lenders substantially in the form of Exhibit D-2, as the same
may be amended, supplemented or otherwise modified from time to
time.
"Holdings Security Agreement": the Security Agreement made by
Holdings in favor of the Administrative Agent for the benefit of
the Lenders substantially in the form of Exhibit E-2, as the same
may be amended, supplemented or otherwise modified from time to
time.
"Indebtedness": of any Person at any date, 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 (other than trade payables not
overdue by more than 60 days incurred in the ordinary course of
such Person's business), (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments,
(d) all indebtedness 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 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 Capital
Lease Obligations of such Person, (f) all obligations, contingent
or otherwise, of such Person as an account party under acceptance,
letter of credit or similar facilities, (g) all obligations of such
Person to purchase, redeem, retire or otherwise acquire for value
any Capital Stock of such Person or any warrants, rights or options
to acquire such Capital Stock, except for any purchases,
redemptions, retirements or other acquisitions payable solely in
shares of common stock of Holdings, (h) all Guarantee Obligations
of such Person in respect of Indebtedness of any other Person, (i)
all Indebtedness referred to in clauses (a) through (g) above
secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien
on property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness and
(j) to the extent not otherwise included, indebtedness or similar
obligations (including, if applicable, net investment amounts)
pursuant to the Permitted Receivables Facility. Interest Rate
Protection Agreements shall not constitute "Indebtedness" for the
purposes of this Agreement.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intercompany Loans": as defined in Section 7.2(b).
"Intercompany Notes": promissory notes, substantially in the
form of Exhibit A, evidencing Intercompany Loans or Joint Venture
Loans.
"Interest Coverage Ratio": the ratio of (a) Consolidated
EBITDA of Holdings for the relevant Interest Coverage Test Period
to (b) Consolidated Net Cash Interest Expense of Holdings for such
Interest Coverage Test Period.
"Interest Coverage Test Period": as of any date of
determination, the period of four consecutive fiscal quarters of
Holdings ending on such date.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December to occur while such
Loan is outstanding, (b) as to any Eurodollar Revolving Credit
Loan, the last day of the related Interest Period or, in the case
of any Eurodollar Revolving Credit Loan having an Interest Period
longer than three months, each day which is three months, or a
whole multiple thereof, after the first day of such Interest Period
and the last day of such Interest Period, (c) as to any Competitive
Loan, the last day of the related Competitive Loan Period and, if
specified in the relevant Competitive Advance Request, in the case
of any Competitive Loan having a Competitive Loan Period longer
than three months, each day which is three months, or a whole
multiple thereof, after the first day of such Competitive Loan
Period and the last day of such Competitive Loan Period and (d) as
to any Fronted Loan, the date or dates specified in the applicable
Fronting Lender Addendum (but, in any event, the last day of any
Interest Period and any stated maturity date applicable thereto).
"Interest Period": (i) with respect to any Eurodollar
Revolving Credit Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
Eurodollar Revolving Credit Loan and ending one, two, three or six
months thereafter (or, if deposits of such duration are available
to all Lenders and all Lenders consent thereto, ending nine or
twelve months thereafter), as selected by the Company in its notice
of borrowing or notice of conversion, as the case may be, given
with respect thereto; and
(b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar
Revolving Credit Loan and ending one, two, three or six months
thereafter (or, if deposits of such duration are available to all
Lenders and all Lenders consent thereto, ending nine or twelve
months thereafter), as selected by the Company by irrevocable
notice to the Administrative Agent not less than three Business
Days prior to the last day of the then current Interest Period with
respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period would otherwise end on a day
that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(2) no Interest Period shall extend beyond the Revolving
Credit Termination Date;
(3) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of
a calendar month; and
(4) the Company shall select Interest Periods so as not
to require a payment or prepayment of any Eurodollar Revolving
Credit Loan during an Interest Period for such Loan; and
(ii) with respect to any Fronted Loan, the interest periods
(if any) contemplated in the applicable Fronting Lender Addendum
and specified in the applicable borrowing notice.
"Interest Rate Protection Agreement": any interest rate swap
agreement, interest rate cap agreement or other financial agreement
or arrangement designed to protect any Person against fluctuations
in interest rates.
"Investment Expenditures": the cost or principal amount, as
the case may be, of any capital contribution to, acquisition of a
business (whether through the purchase of Capital Stock or assets)
of, or other similar investment in, any Person; provided that if
any such investment is made by the contribution of assets to
another Person, such assets shall, for the purpose of determining
the cost of such investment, be valued at fair market value.
"Issuing Lender": Comerica Bank, in its capacity as issuer of
any Letter of Credit.
"Issuing Lender Loans": as defined in Section 3.5(a).
"Joint Venture": any Person (other than a Subsidiary
Guarantor) in which the Company or any of its Subsidiaries has an
equity interest, including, without limitation, Femco.
"Joint Venture Loans": as defined in Section 7.10(e).
"L/C Commitment": $25,000,000.
"L/C Fee Payment Date": the last day of each March, June,
September and December and the first Business Day following the
last day of the Revolving Credit Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of
drawings under Letters of Credit which have not then been
reimbursed pursuant to Section 3.5.
"L/C Participants": the collective reference to all the
Lenders other than the Issuing Lender.
"Lenders": the Persons listed on Schedule 1.1A and any other
Person that shall have become a party hereto pursuant to an
Assignment and Acceptance, other than any such Person that ceases
to be a party hereto pursuant to an Assignment and Acceptance.
Unless the context otherwise requires, the term "Lenders" includes
the Issuing Lender and each Fronting Lender.
"Letters of Credit": as defined in Section 3.1(a).
"Level": as of any date of determination, the level set forth
below then in effect, as determined in accordance with the
following provisions of this definition:
Level Leverage Ratio
[TAB SET]
row does
not print I Less than or equal to 2.00 to 1.0
II Less than or equal to 2.50 to 1.0
III Less than or equal to 3.00 to 1.0
IV Less than or equal to 3.50 to 1.0
V Less than or equal to 4.00 to 1.0
VI Greater than 4.00 to 1.0
For the purposes of this definition, the Level shall be determined
as at the end of each of the first three quarterly periods of each
fiscal year of Holdings and as at the end of each fiscal year of
Holdings, for the period (a "Level Test Period") of four
consecutive fiscal quarters ending on the last day of such
quarterly period or fiscal year, as the case may be, based on the
relevant financial statements delivered pursuant to Section 6.1;
changes in the Level shall become effective on the date on which
such financial statements are delivered to the Lenders (but in any
event not later than the 50th day after the end of each of the
first three quarterly periods of each fiscal year or the 105th day
after the end of each fiscal year, as the case may be) and shall
remain in effect until the next change to be effected pursuant to
this definition, provided, that if any financial statements
referred to above are not delivered within the time periods
specified above, then, until such financial statements are
delivered, the Level as at the end of the fiscal period that would
have been covered thereby shall be deemed to be Level VI.
"Leverage Ratio": as of the last day of any period of four
consecutive fiscal quarters of Holdings, the ratio of (a) Total
Debt on such day to (b) Consolidated EBITDA of Holdings for such
period.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien
(statutory or other), or charge of any kind or nature whatsoever,
or any preference, priority, or other security agreement or
preferential arrangement of any kind or nature whatsoever having
substantially the same effect as any of the foregoing (including,
without limitation, any conditional sale or other title retention
agreement, any capital lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing
statement under the Uniform Commercial Code or comparable law of
any jurisdiction in respect of any of the foregoing).
"Loan": any loan made by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement, the Applications, the
Subsidiary Guarantee, the Security Documents, each Fronting Lender
Addendum, each Borrowing Subsidiary Agreement, each Borrowing
Subsidiary Termination and any Interest Rate Protection Agreement
entered into with any Lender (or any Affiliate of any Lender),
together with any amendment, supplement or other modification to
any of the foregoing. Notwithstanding the foregoing, the Interest
Rate Protection Agreements referred to above shall not be deemed to
constitute "Loan Documents" for the purposes of any provision of
this Agreement or any other Loan Document other than (a) the
definition of "Obligations" contained herein or in any other Loan
Document and (b) Section 10.
"Loan Parties": the collective reference to Holdings, the
Company, the Subsidiary Borrowers and any other Subsidiary of the
Company which is a party to any Loan Document.
"Margin": as to any Eurodollar Competitive Loan, the margin to
be added to or subtracted from the Eurodollar Rate in order to
determine the interest rate applicable to such Loan, as specified
in the Competitive Advance Offer relating to such Loan.
"Material Adverse Effect": a material adverse effect on (a)
the business, assets, liabilities (actual or contingent),
operations, condition (financial or otherwise) or prospects of
Holdings, the Company and its Subsidiaries taken as a whole, (b)
the ability of the Company or any other Loan Party to perform its
obligations under this Agreement or any of the other Loan
Documents, or (c) the validity or enforceability of this Agreement
or any of the other Loan Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.
"Material Subsidiary": (a) each Subsidiary Borrower and (b)
any other Subsidiary of the Company the (i) assets or (ii) revenues
of which (including those of any Subsidiaries of such Subsidiary)
are, at the time of determination (determined, in the case of
clause (i), as at the end of the most recently concluded fiscal
quarter of the Company for which the relevant financial information
is available, and, in the case of clause (ii), in respect of the
most recent period of four consecutive fiscal quarters of the
Company for which the relevant financial information is available),
equal to or greater than five percent of the consolidated assets or
consolidated revenues, respectively, of the Company and its
Subsidiaries at such time. Upon the acquisition of a new
Subsidiary, qualification as a "Material Subsidiary" shall be
determined on a pro forma basis on the assumption that such
Subsidiary had been acquired at the beginning of the relevant
period of four consecutive fiscal quarters.
"Maximum Investment Amount": as of any date of determination,
the amount set forth below opposite the Level then in effect:
Level Amount
[TAB SET]
row does
not print I $100,000,000
II 100,000,000
III 100,000,000
IV 80,000,000
V 60,000,000
VI 40,000,000
"Mortgage": each of the mortgages and deeds of trust made by
any Loan Party in favor of, or for the benefit of, the
Administrative Agent for the benefit of the Lenders, substantially
in the form of Exhibit J (with such changes thereto as shall be
advisable under the law of the jurisdiction in which such mortgage
or deed of trust is to be recorded), as the same may be amended,
supplemented or otherwise modified from time to time.
"Mortgaged Properties": the real properties or leasehold
interests therein, listed on Schedule 1.1B, as to which the
Administrative Agent for the benefit of the Lenders shall be
granted a Lien pursuant to the Mortgages.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": in connection with any issuance or sale
by any Person of equity securities, the cash proceeds received by
such Person from such issuance, net of investment banking fees,
reasonable and documented attorneys' fees, accountants' fees,
underwriting discounts and commissions and other customary fees
actually incurred in connection therewith.
"New Holdings": as defined in Section 7.5(c).
"Non-Facility L/C Obligations": at any time, an amount equal
to the sum of (a) the aggregate then undrawn and unexpired amount
of the then outstanding letters of credit issued pursuant to
Section 7.2(d) and (b) the aggregate amount of drawings under such
letters of credit which have not then been reimbursed in accordance
with the terms thereof.
"Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the
maturity of the Loans and Reimbursement Obligations and interest
accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding,
relating to any Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans and
all other obligations and liabilities of the Borrowers to the
Administrative Agent or to any Lender (or, in the case of any
Interest Rate Protection Agreement, any Affiliate of any Lender),
whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, this Agreement, any other
Loan Document, the Letters of Credit or any other document made,
delivered or given in connection herewith or therewith, whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation, all
fees, charges and disbursements of counsel to the Administrative
Agent or to any Lender that are required to be paid by any Borrower
pursuant hereto) or otherwise.
"Optional Calculation Date": as defined in the definition of
"Calculation Date".
"Outstanding Revolving Extensions of Credit": as to any Lender
at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Revolving Credit Loans made by such Lender
then outstanding, (b) such Lender's Commitment Percentage of the
L/C Obligations then outstanding, (c) such Lender's Commitment
Percentage of the aggregate principal amount of all Specified
Basket Debt then outstanding and (d) such Lender's Commitment
Percentage of the aggregate principal amount of all Fronted Loans
then outstanding; provided, that for the purpose of determining
such Lender's Available Revolving Credit Commitment pursuant to
Section 2.4(a), the aggregate unpaid principal amount of Specified
Basket Debt then outstanding shall be deemed to be zero.
"Parent Guarantor": each of Holdings and the Company, in each
case in its capacity as a guarantor pursuant to Section 10.
"Participant": as defined in Section 11.6(f).
"Participation Fee": any participation fee payable pursuant to
Section 3.3(a) or (b).
"PBGC ": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor
thereto).
"Permitted Receivables Facility": any program for the transfer
by the Company or any of its Subsidiaries, without recourse (other
than customary limited recourse) to the Company or any of its
Subsidiaries (other than the Receivables Subsidiary), to any buyer,
purchaser or lender of interests in accounts receivable, so long as
(a) the aggregate outstanding principal amount of Indebtedness of
the Receivables Subsidiary pursuant to such program shall not
exceed $200,000,000 at any one time and (b) the initial net
proceeds thereof, together with any proceeds of the Revolving
Credit Loans borrowed for such purpose, shall be sufficient, and
shall be applied, to redeem all of the outstanding Senior Notes.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever
nature.
"Plan": any employee benefit plan which is covered by ERISA
and in respect of which the Company or a Commonly Controlled Entity
is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Pledge Agreements": collectively, the Holdings Pledge
Agreement, the Company Pledge Agreement and the Subsidiary Pledge
Agreement.
"Prime Rate": as defined in the definition of "Alternate Base
Rate".
"Receivables Subsidiary": the special purpose entity
established as a "bankruptcy remote" Subsidiary of the Company for
the purpose of acquiring accounts receivable under the Permitted
Receivables Facility, which shall engage in no operations or
activities other than those related to the Permitted Receivables
Facility.
"Reference Lenders": Chase and Bank of America National Trust
and Savings Association.
"Register": as defined in Section 11.6(d).
"Regulation U": Regulation U of the Board.
"Reimbursement Obligation": as defined in Section 3.5.
"Release": any release, spill, emission, leaking, pumping,
pouring, dumping, emptying, injection, deposit, disposal,
discharge, dispersal, leaching or migration of Hazardous Materials
into the indoor or outdoor environment or into or out of any
property owned or operated by Holdings, the Company or any of its
Subsidiaries, including the movement of Hazardous Materials through
or in the air, soil, surface water, groundwater or other media.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty
day notice period is waived under PBGC Reg. ss.2615.
"Required Lenders": at any date, the holders of 51% of the
aggregate Revolving Credit Commitments, or, if the Revolving Credit
Commitments have been terminated or for the purposes of determining
whether to accelerate the Loans pursuant to Section 8, the
aggregate unpaid principal amount of the Loans.
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation
or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its
property is subject.
"Responsible Officer": the chief executive officer, president,
chief financial officer or treasurer of Holdings or the Company, as
the case may be, but in any event, with respect to financial
matters, the chief financial officer or treasurer of Holdings or
the Company, as the case may be.
"Revolving Credit Commitment": as to any Lender, the
obligation of such Lender to make Revolving Credit Loans and
participate in Letters of Credit and Fronted Loans in an aggregate
principal and/or face amount not to exceed the amount set forth
under the heading "Revolving Credit Commitment" opposite such
Lender's name on Schedule 1.1A, as the same may be changed from
time to time pursuant to the terms hereof.
"Revolving Credit Commitment Period": the period from and
including the Effective Date to but not including the Revolving
Credit Termination Date or such earlier date on which the Revolving
Credit Commitments shall terminate as provided herein.
"Revolving Credit Loans": as defined in Section 2.1(a).
"Revolving Credit Termination Date": October 31, 2001.
"Section 7.2(n) Indebtedness": any Indebtedness incurred
pursuant to Section 7.2(n).
"Section 7.2(o) Indebtedness": any Indebtedness incurred
pursuant to Section 7.2(o).
"Section 7.2(p) Indebtedness": any Indebtedness incurred
pursuant to Section 7.2(p).
"Security Agreements": collectively, the Holdings Security
Agreement, the Company Security Agreement and the Subsidiary
Security Agreement.
"Security Documents": the collective reference to the Pledge
Agreements, the Security Agreements, the Mortgages, and any other
collateral security document from time to time executed and
delivered in connection herewith or therewith.
"Senior Note Indenture": the Indenture dated as of May 7, 1993
between the Company and NBD Bank, a Michigan banking corporation
(formerly known as NBD Bank, N.A.), as trustee, as amended,
supplemented or otherwise modified from time to time in accordance
with Section 7.11.
"Senior Note Redemption": as defined in Section 5.3(e).
"Senior Notes": the Company's 10% Senior Notes Due 2003.
"Senior Secured Leverage Ratio": as of the last day of any
period of four consecutive fiscal quarters of Holdings, the ratio
of (a) Total Senior Secured Debt on such day to (b) Consolidated
EBITDA of Holdings for such period.
"Sight Letter of Credit": as defined in Section 3.1(a).
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that,
as of any date of determination, (a) the amount of the "present
fair saleable value" of the assets of such Person will, as of such
date, exceed the amount of all "liabilities of such Person,
contingent or otherwise", as of such date, as such quoted terms are
determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the
present fair saleable value of the assets of such Person will, as
of such date, be greater than the amount that will be required to
pay the liability of such Person on its debts as such debts become
absolute and matured, (c) such Person will not have, as of such
date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as
they mature. For purposes of this definition, (i) "debt" means
liability on a "claim", and (ii) "claim" means any (x) right to
payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such
breach gives rise to a right to payment, whether or not such right
to an equitable remedy is reduced to judgment, fixed, contingent,
matured or unmatured, disputed, undisputed, secured or unsecured.
"Specified Basket Debt": (a) any Non-Excluded Section 7.2(o)
Indebtedness (as defined below) of the Company or any of its
Subsidiaries to the extent the outstanding principal amount thereof
exceeds $100,000,000 and (b) any Section 7.2(p) Indebtedness. As
used in this definition, "Non-Excluded Section 7.2(o) Indebtedness"
refers to all Section 7.2(o) Indebtedness other than, in the case
of Indebtedness which consists of term loans or term notes, that
portion (if any) of the principal amount of such Indebtedness for
which there are no scheduled repayments, prepayments or redemptions
prior to the Revolving Credit Termination Date.
"Specified Properties": the plants and real properties owned
by the Company or its Subsidiaries located in Florence, Alabama;
Glendale, Arizona; Denver, Colorado; Chicago, Illinois; Sikeston,
Missouri; New Market, New Hampshire; Portland, Oregon; Xxxxxx,
Pennsylvania; Pawtucket, Rhode Island; and Memphis, Tennessee.
"Specified Required Lenders": at any date, the holders of 51%
of the sum of (a) the aggregate Revolving Credit Commitments (or,
if the Revolving Credit Commitments have been terminated, the
aggregate unpaid principal amount of the Loans) and (b) the
aggregate outstanding principal amount of Indebtedness under the
Capital Lease Financing Facility.
"Spot Exchange Rate": with respect to any Fronted Currency, on
any day, the rate quoted by the relevant Fronting Lender as the
spot rate for the purchase by such Fronting Lender of Dollars with
such Fronted Currency at the time specified in such Fronting
Lender's Fronting Lender Addendum and on such date as of which the
foreign exchange computation is made for delivery two Business Days
later. For purposes of determining the Spot Exchange Rate in
connection with a borrowing of Fronted Loans, such spot exchange
rate shall be determined as of the Calculation Date for such
borrowing with respect to transactions in the applicable Fronted
Currency that will settle on the date of such borrowing.
"Standby Letter of Credit": as defined in Section 3.1(a).
"Subsidiary": with respect to any Person, any corporation,
partnership, joint venture, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding Voting Stock, (b)
the interest in the capital or profits of such partnership or joint
venture or (c) the beneficial interest in such trust or estate, is
at the time directly or indirectly owned or controlled by such
Person and/or by one or more of such Person's other Subsidiaries.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Company.
"Subsidiary Borrower": at any time, any Subsidiary of the
Company designated as a Subsidiary Borrower by the Company in
accordance with Section 2.7A that has not ceased to be a Subsidiary
Borrower pursuant to such Section.
"Subsidiary Guarantee": the Guarantee made by the Subsidiaries
of the Company party thereto in favor of the Administrative Agent
for the benefit of the Lenders substantially in the form of Exhibit
F, as the same may be amended, supplemented or otherwise modified
from time to time.
"Subsidiary Guarantor": each of the Subsidiaries of the
Company which is a party to the Subsidiary Guarantee.
"Subsidiary Pledge Agreement": the Pledge Agreement made by
each Subsidiary Guarantor in favor of the Administrative Agent for
the benefit of the Lenders substantially in the form of Exhibit
D-3, as the same may be amended, supplemented or otherwise modified
from time to time.
"Subsidiary Security Agreement": the Security Agreement made
by each Subsidiary Guarantor in favor of the Administrative Agent
for the benefit of the Lenders substantially in the form of Exhibit
E-3, as the same may be amended, supplemented or otherwise modified
from time to time.
"Supermajority Lenders": at any date shall mean the holders of
66-2/3% of the aggregate Revolving Credit Commitments, or, if the
Revolving Credit Commitments have been terminated, the aggregate
unpaid principal amount of the Loans.
"Tax Sharing Agreement": the tax sharing agreement dated
effective as of January 1, 1991 between Holdings and the Company,
as in effect on the Effective Date.
"Total Debt": as of any date of determination, all Funded Debt
of Holdings and its consolidated Subsidiaries at such date,
determined on a consolidated basis in conformity with GAAP.
"Total Senior Secured Debt": as of any date of determination,
the aggregate then outstanding principal amount of all secured
Funded Debt incurred by the Company or any of its Subsidiaries
pursuant to Section 7.2(a), (f), (g), (m), (n) or (q).
"Transferee": as defined in Section 11.6(g).
"Type": (a) as to any Revolving Credit Loan, its nature as an
ABR Loan or a Eurodollar Loan, and (b) as to any Competitive Loan,
its nature as a Eurodollar Competitive Loan or a Fixed Rate
Competitive Loan.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, as the same may be amended,
supplemented or otherwise modified from time to time.
"Usance Letter of Credit": as defined in Section 3.1(a).
"Voting Stock": Capital Stock issued by any 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 though the right
so to vote has been suspended by the happening of such a
contingency.
1.2 Other Definitional Provisions; Financial Calculations. (a)
Unless otherwise specified therein, all terms defined in this Agreement
shall have the defined meanings when used in the other Loan Documents or
any certificate or other document made or delivered pursuant hereto or
thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or
thereto, accounting terms relating to Holdings, the Company and its
Subsidiaries not defined in Section 1.1 and accounting terms partly
defined in Section 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and
Section, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) Notwithstanding anything to the contrary herein, calculations
in connection with the covenants contained in Section 7.1 shall utilize
accounting principles and policies (including those in respect of
accounting for income taxes) in conformity with those used to prepare
the financial statements referred to in Section 4.1(a) for the fiscal
year of Holdings or the Company, as the case may be, ended December 31,
1995.
1.3 Certain Fronted Loan Matters. Certain matters with respect to
Fronted Loans shall be determined by reference to Schedule 1.3, which
Schedule 1.3 is hereby incorporated herein by reference.
SECTION 2. THE REVOLVING CREDIT COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof (including, without limitation, the applicable
conditions specified in Section 5), each Lender severally agrees to make
revolving credit loans ("Revolving Credit Loans") to the Company from
time to time during the Revolving Credit Commitment Period. During the
Revolving Credit Commitment Period the Company may use the Revolving
Credit Commitments by borrowing, prepaying the Revolving Credit Loans in
whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as
determined by the Company and notified to the Administrative Agent in
accordance with Sections 2.2 and 2.9, provided that no Revolving Credit
Loan shall be made as a Eurodollar Loan after the day that is one month
prior to the Revolving Credit Termination Date.
2.2 Procedure for Revolving Credit Borrowing. The Company may
borrow under the Revolving Credit Commitments during the Revolving
Credit Commitment Period on any Business Day; provided that the Company
shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent prior to (a) 12:00 Noon,
New York City time, three Business Days
prior to the requested Borrowing Date, if all or any part of the
requested Revolving Credit Loans are to be initially Eurodollar
Revolving Credit Loans or (b) 11:00 A.M., New York City time, on the
requested Borrowing Date, otherwise), specifying (i) the amount to be
borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing
is to be of Eurodollar Revolving Credit Loans, ABR Loans or a
combination thereof and (iv) if the borrowing is to be entirely or
partly of Eurodollar Revolving Credit Loans, the respective amounts of
each such Loan and the respective lengths of the initial Interest
Periods therefor. Each borrowing under the Revolving Credit Commitments
shall be in an amount equal to (x) in the case of ABR Loans, $500,000 or
a whole multiple of $100,000 in excess thereof (or, if the then
Available Revolving Credit Commitments are less than $500,000, such
lesser amount) and (y) in the case of Eurodollar Revolving Credit Loans,
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon
receipt of any such notice from the Company, the Administrative Agent
shall promptly notify each Lender thereof. Each Lender will make the
amount of its pro rata share of each borrowing available to the
Administrative Agent for the account of the Company at the office of the
Administrative Agent specified in Section 11.2 prior to 11:00 A.M., New
York City time, in the case of Eurodollar Revolving Credit Loans, and
2:00 P.M., New York City time, in the case of ABR Loans, on the
Borrowing Date requested by the Company in funds immediately available
to the Administrative Agent. Such borrowing will then be made available
to the Company by the Administrative Agent crediting the account of the
Company on the books of such office with the aggregate of the amounts
made available to the Administrative Agent by the Lenders and in like
funds as received by the Administrative Agent.
2.3 Competitive Borrowings.
(a) The Competitive Advance Option. In addition to the Revolving
Credit Loans which may be made available pursuant to the foregoing
provisions of this Section 2, the Company may, as set forth in this
Section 2.3, request the Lenders to make offers to make Competitive
Loans to the Company during the Revolving Credit Commitment Period. The
Lenders may, but shall have no obligation to, make such offers, and the
Company may, but shall have no obligation to, accept any such offers in
the manner set forth in this Section 2.3.
(b) Competitive Advance Request. When the Company wishes to request
offers to make Competitive Loans under this Section 2.3, it shall
transmit to the Administrative Agent a Competitive Advance Request to be
received no later than 12:00 Noon (New York City time) on (x) the fourth
Business Day prior to the date of borrowing proposed therein, in the
case of a borrowing of Eurodollar Competitive Loans or (y) the Business
Day immediately preceding the date of borrowing proposed therein, in the
case of Fixed Rate Competitive Loans, specifying:
(i) the proposed date of the Competitive Borrowing, which
shall be a Business Day;
(ii) the aggregate principal amount of such borrowing, which
shall be $5,000,000 or a whole multiple of $1,000,000 in excess
thereof;
(iii) the Competitive Loan Maturity Date applicable to the
Competitive Loans to be made pursuant thereto, provided, that the
Competitive Loan Maturity Date for each Fixed Rate Competitive Loan
shall be not less than 7 days nor more than 360 days after the
Borrowing Date therefor and the Competitive Loan Maturity Date for
each Eurodollar Competitive Loan shall be not less than one month
nor more than twelve months after the Borrowing Date therefor, and
in any event shall be not later than the Revolving Credit
Termination Date; and
(iv) whether the Competitive Borrowing then being requested is
to be of Eurodollar Competitive Loans or Fixed Rate Competitive
Loans.
A Competitive Advance Request that does not conform substantially to the
format of Exhibit C-4 may be rejected by the Administrative Agent in its
sole discretion, and the Administrative Agent shall promptly
notify the Company of such rejection. The Company may request offers to
make Competitive Loans having any one or more Competitive Loan Maturity
Dates in a single Competitive Advance Request. No Competitive Advance
Request shall be given within three Business Days of any other
Competitive Advance Request pursuant to which the Company has borrowed a
Competitive Loan.
(c) Competitive Advance Invitation. Promptly after its receipt of a
Competitive Advance Request (but, in any event, no later than 3:00 P.M.,
New York City time, on the date of such receipt) conforming to the
requirements of paragraph (b) above, the Administrative Agent shall send
to each of the Lenders a Competitive Advance Invitation which shall
constitute an invitation by the Company to each such Lender to offer, on
the terms and conditions of this Agreement, to make Competitive Loans
pursuant to the Competitive Advance Request.
(d) Submission and Contents of Competitive Advance Offers. (i) Each
Lender may submit a Competitive Advance Offer containing an offer or
offers to make Competitive Loans in response to such Competitive Advance
Invitation. Each Competitive Advance Offer must comply with the
requirements of this paragraph (d) and must be submitted to the
Administrative Agent at its offices specified in Section 11.2 not later
than (x) 9:30 A.M. (New York City time) on the third Business Day prior
to the proposed date of borrowing, in the case of a borrowing of
Eurodollar Competitive Loans or (y) 9:30 A.M. (New York City time) on
the date of the proposed borrowing, in the case of a Fixed Rate Loan;
provided, that any Competitive Advance Offers submitted by the
Administrative Agent in the capacity of a Lender may only be submitted
if the Administrative Agent notifies the Company of the terms of the
offer or offers contained therein not later than fifteen minutes prior
to the deadline for the other Lenders. A Competitive Advance Offer
submitted by a Lender pursuant to this paragraph (d) shall be
irrevocable.
(ii) Each Competitive Advance Offer shall be in substantially
the form of Exhibit C-3 and shall specify:
(A) the date of the proposed Competitive Borrowing,
(B) the principal amount of the Competitive Loan for
which each such offer is being made, which principal amount
(w) may be greater than, equal to or less than the Revolving
Credit Commitment of the quoting Lender, (x) must be in a
minimum principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof, (y) may not exceed the principal
amount of Competitive Loans for which offers were requested
and (z) may be subject to a limitation as to the maximum
aggregate principal amount of Competitive Loans for which
offers being made by such quoting Lender may be accepted,
(C) in the case of a borrowing of Eurodollar Competitive
Loans, the Margin offered for each such Competitive Loan,
expressed as a percentage (specified in increments of
1/10,000th of 1%) to be added to or subtracted from the
Eurodollar Rate,
(D) in the case of a borrowing of Fixed Rate Competitive
Loans, the rate of interest per annum (specified in increments
of 1/10,000th of 1%) offered for each such Competitive Loan,
and
(E) the identity of the quoting Lender.
A Competitive Advance Offer may set forth up to five separate offers by
the quoting Lender with respect to each Competitive Loan requested in
the related Competitive Advance Invitation. Any Competitive Advance
Offer may be disregarded by the Administrative Agent if the
Administrative Agent determines that it: (A) is not substantially in the
form of Exhibit C-3 or does not specify all of the information required
by Section 2.3(d)(ii); (B) contains qualifying, conditional or similar
language (except for a limitation on the maximum principal amount which
may be accepted); (C) proposes terms other than or in
addition to those set forth in the applicable Competitive Advance
Invitation or (D) arrives after the time set forth in Section 2.3(d)(i).
(e) Notice to Company. The Administrative Agent shall promptly
(and, in any event, by 10:00 A.M., New York City time) notify the
Company, by telecopy, of all the Competitive Advance Offers made
(including all disregarded offers), the Competitive Advance Rate and the
principal amount of each Competitive Loan in respect of which a
Competitive Advance Offer was made and the identity of the Lender that
made each offer. The Administrative Agent shall send a copy of all
Competitive Advance Offers (including all disregarded offers) to the
Company for its records as soon as practicable after completion of the
offering process set forth in this Section 2.3.
(f) Acceptance and Notice by Company. The Company may in its sole
discretion, subject only to the provisions of this paragraph (f), accept
or reject any Competitive Advance Offer (other than any disregarded
offer) referred to in paragraph (e) above. The Company shall notify the
Administrative Agent by telephone, confirmed thereafter by telecopy in
the form of a Competitive Advance Accept/Reject Letter, whether and to
what extent it wishes to accept any or all of the offers referred to in
paragraph (e) above not later than (x) 10:30 A.M. (New York City time)
on the third Business Day prior to the proposed date of borrowing, in
the case of Eurodollar Competitive Loans or (y) 10:30 A.M. (New York
City time) on the proposed date of borrowing, in the case of Fixed Rate
Competitive Loans; provided that:
(i) the failure by the Company to give such notice shall be
deemed to be a rejection of all the offers referred to in paragraph
(e) above;
(ii) the aggregate principal amount of the Competitive Advance
Offers accepted by the Company may not exceed the lesser of (A) the
principal amount set forth in the related Competitive Advance
Request and (B) the excess, if any, of the aggregate Revolving
Credit Commitments of all Lenders then in effect over the aggregate
principal amount of the Aggregate Outstanding Extensions of Credit
immediately prior to the making of such Competitive Loans (and
after giving effect to the use of proceeds thereof),
(iii) the principal amount of each Competitive Borrowing must
be $5,000,000 or a whole multiple of $1,000,000 in excess thereof,
(iv) unless there are any limitations contained in a quoting
Lender's Competitive Advance Offer, the Company may not accept a
Competitive Advance Offer made at a particular Competitive Advance
Rate if it has decided to reject any portion of a offer made at a
lower Competitive Advance Rate for the same Type of Competitive
Loan and the same Competitive Loan Period, and
(v) the Company may not accept any Competitive Advance Offer
that is disregarded by the Administrative Agent pursuant to Section
2.3(d)(ii) or that otherwise fails to comply with the requirements
of this Agreement.
A notice given by the Company pursuant to this paragraph (f) shall be
irrevocable.
(g) Allocation by Administrative Agent. If offers are made by two
or more Lenders with the same Competitive Advance Rates for a greater
aggregate principal amount than the amount in respect of which such
offers are accepted for the related Competitive Loan Period, the
principal amount of Competitive Loans in respect of which such offers
are accepted shall be allocated by the Administrative Agent among such
Lenders as nearly as possible (in integral multiples of $1,000,000, as
the Administrative Agent may deem appropriate) in proportion to the
aggregate principal amounts of such offers.
(h) Notification of Acceptance. The Administrative Agent shall
promptly (and, in any event, by 11:00 A.M., New York City time) notify
each offering Lender whether or not its Competitive Advance Offer has
been accepted (and if so, in what amount and at what Competitive Advance
Rate), and each successful offering Lender will thereupon become bound,
subject to the other applicable conditions hereof, to make the
Competitive Loan in respect of which its offer has been accepted.
2.4 Fees. (a) The Company agrees to pay to the Administrative Agent
a commitment fee for the account of the Lenders until the Revolving
Credit Termination Date, computed at a rate equal to (i) 0.125% per
annum on any date on which Level I is in effect, (ii) 0.150% per annum
on any date on which Level II is in effect, (iii) 0.200% per annum on
any date on which Level III is in effect, (iv) 0.250% per annum on any
date on which Level IV is in effect, (v) 0.300% per annum on any date on
which Level V is in effect or (vi) 0.375% per annum on any date on which
Level VI is in effect, on the average daily amount of the Available
Revolving Credit Commitment of each Lender during the period for which
payment is made, payable quarterly in arrears on the last day of each
March, June, September and December and on the Revolving Credit
Termination Date or such earlier date as the Revolving Credit
Commitments shall terminate as provided herein.
(b) The Company agrees to pay to the Administrative Agent, for its
own account and, to the extent mutually agreed upon by the
Administrative Agent and the Lenders, for the account of the Lenders,
the fees in the amounts and on the dates previously agreed to in writing
by the Company and the Administrative Agent.
2.5 Evidence of Loans; Repayment. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of each Borrower to such Lender resulting from each Loan of
such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time under this
Agreement.
(b) The Administrative Agent shall maintain the Register pursuant
to Section 11.6(d), and a subaccount therein for each Lender, in which
shall be recorded (i) the amount of each Loan made hereunder, whether
such Loan is a Revolving Credit Loan, a Competitive Loan or a Fronted
Loan, the Type thereof and each Interest Period or Competitive Loan
Period (if any) applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the relevant
Borrower to each Lender hereunder and (iii) both the amount of any sum
received by the Administrative Agent hereunder from any Borrower and
each Lender's share (if any) thereof.
(c) The entries made in the Register and the accounts of each
Lender maintained pursuant to Section 2.5(a) shall, to the extent
permitted by applicable law, be prima facie evidence of the existence
and amounts of the obligations of the Borrowers therein recorded;
provided, however, that the failure of any Lender or the Administrative
Agent to maintain the Register or any such account, or any error
therein, shall not in any manner affect the obligation of any Borrower
to repay (with applicable interest) the Loans made to such Borrower by
such Lender in accordance with the terms of this Agreement.
(d) The Company shall repay all outstanding Revolving Credit Loans
on the Revolving Credit Termination Date or such earlier date as the
Revolving Credit Commitments shall terminate hereunder. The Company
shall repay each Competitive Loan on the Competitive Loan Maturity Date
applicable thereto.
2.6 Termination or Reduction of Revolving Credit Commitments. The
Company shall have the right, upon not less than three Business Days'
notice to the Administrative Agent, to terminate the Revolving Credit
Commitments or, from time to time, to reduce the amount of the Revolving
Credit Commitments; provided that no such termination or reduction of
Revolving Credit Commitments shall be permitted if, after giving effect
thereto and to any prepayments of the Loans made on the effective date
thereof, (a) the Aggregate Outstanding Extensions of Credit would exceed
the Revolving Credit
Commitments then in effect or (b) the Outstanding Revolving Extensions
of Credit of any Lender would exceed such Lender's Revolving Credit
Commitment then in effect. Any such reduction shall be in an amount
equal to $1,000,000 or a whole multiple thereof and shall reduce
permanently the Revolving Credit Commitments then in effect. Upon
receipt of any notice referred to above, the Administrative Agent shall
promptly notify each Lender thereof.
2.7 Optional Prepayments. The Company may on the last day of any
Interest Period with respect thereto (or on any other day if the
prepayment referred to herein is accompanied by all amounts payable by
the Company pursuant to Section 2.17), in the case of Eurodollar
Revolving Credit Loans, or at any time and from time to time, in the
case of ABR Loans, prepay the Revolving Credit Loans, in whole or in
part, without premium or penalty, provided that the Company shall give
the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to (a) 12:00 Noon, New York
City time, three Business Days prior to such prepayment, in the case of
Eurodollar Revolving Credit Loans or (b) 11:00 A.M., New York City time,
on the date of such prepayment, in the case of ABR Loans) specifying the
date and amount of prepayment and whether the prepayment is of
Eurodollar Revolving Credit Loans, ABR Loans or a combination thereof,
and, if a combination thereof, the amount allocable to each. Upon
receipt of any such notice the Administrative Agent shall promptly
notify each Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified
therein, together with (except in the case of ABR Loans) accrued
interest to such date on the amount prepaid. Partial prepayments shall
be in an aggregate principal amount of $1,000,000 or a whole multiple
thereof. Notwithstanding anything to the contrary contained herein, the
Company shall not prepay any Competitive Loan without the consent of the
holder or holders thereof (which consent may be withheld in its or their
sole discretion), except in connection with an acceleration of the
maturity thereof pursuant to Section 8.
2.8 Mandatory Prepayments. (a) If on any Determination Date, the
Aggregate Outstanding Extensions of Credit exceed 100% of the Revolving
Credit Commitments then in effect, the Company shall, without notice or
demand, within three Business Days after such Determination Date, repay
(or cause the relevant Subsidiary Borrower to repay) such of the
outstanding Loans in an aggregate principal amount such that, after
giving effect thereto, the Aggregate Outstanding Extensions of Credit do
not exceed the Revolving Credit Commitments then in effect.
(b) The application of any prepayment pursuant to this Section 2.8
shall be made first to ABR Loans and second to Eurodollar Revolving
Credit Loans and/or Fronted Loans; provided, that if on the date on
which such prepayment is required to be made the aggregate outstanding
amount of ABR Loans and Eurodollar Revolving Credit Loans and Fronted
Loans having an Interest Period expiring on such date is less than the
amount required to be prepaid, then, on such date, the Company may, at
its option, (i) prepay or cause to be prepaid other Eurodollar Revolving
Credit Loans or Fronted Loans selected by the Company in an amount up to
the remaining amount required to be prepaid and/or (ii) if no Default or
Event of Default shall have occurred and be continuing, place any
amounts which would otherwise be required to be used to prepay such
other Eurodollar Revolving Credit Loans or Fronted Loans in an
interest-bearing cash collateral account established with the
Administrative Agent for the benefit of the Lenders until the expiration
of the Interest Periods applicable thereto, at which time such amounts
shall be applied to prepay such Eurodollar Revolving Credit Loans or
Fronted Loans. Each prepayment of the Loans under this Section 2.8
(other than ABR Loans) shall be accompanied by accrued interest to the
date of such prepayment on the amount prepaid.
2.9 Conversion and Continuation Options. (a) The Company may elect
from time to time to convert Eurodollar Revolving Credit Loans to ABR
Loans, by giving the Administrative Agent at least three Business Days'
prior irrevocable notice of such election; provided that any such
conversion of Eurodollar Loans may only be made on the last day of an
Interest Period with respect thereto (or on any other day if on the date
of such conversion the Company pays to the Administrative Agent for the
account of the Lenders accrued interest on such Eurodollar Loans to the
date of such conversion together with all
amounts payable pursuant to Section 2.17). The Company may elect from
time to time to convert ABR Loans to Eurodollar Revolving Credit Loans
by giving the Administrative Agent at least three Business Days' prior
irrevocable notice of such election. Any such notice of conversion to
Eurodollar Revolving Credit Loans shall specify the length of the
initial Interest Period or Interest Periods therefor. Upon receipt of
any such notice the Administrative Agent shall promptly notify each
Lender thereof. All or any part of outstanding Eurodollar Revolving
Credit Loans or ABR Loans may be converted as provided herein; provided
that (i) no Loan may be converted into a Eurodollar Revolving Credit
Loan when any Default or Event of Default has occurred and is continuing
and the Administrative Agent or the Required Lenders have determined
that such a conversion is not appropriate, (ii) any such conversion may
only be made if, after giving effect thereto, Section 2.10 shall not
have been contravened and (iii) no Loan may be converted into a
Eurodollar Revolving Credit Loan after the date that is one month prior
to the Revolving Credit Termination Date.
(b) Any Eurodollar Revolving Credit Loans may be continued as such
upon the expiration of the then current Interest Period with respect
thereto by the Company giving notice to the Administrative Agent, in
accordance with the applicable provisions of the term "Interest Period"
set forth in Section 1.1, of the length of the next Interest Period to
be applicable to such Loans; provided that no Eurodollar Revolving
Credit Loan may be continued as such (i) when any Default or Event of
Default has occurred and is continuing and the Administrative Agent or
the Required Lenders have determined that such a continuation is not
appropriate, (ii) if, after giving effect thereto, Section 2.10 would be
contravened or (iii) after the date that is one month prior to the
Revolving Credit Termination Date and provided, further, that if the
Company shall fail to give any required notice as described above in
this paragraph or if such continuation is not permitted pursuant to the
preceding proviso such Loans shall be automatically converted to ABR
Loans on the last day of such then expiring Interest Period. Upon
receipt of any notice referred to above, the Administrative Agent shall
promptly notify the Lenders thereof.
2.10 Minimum Amounts and Maximum Number of Eurodollar Tranches. All
borrowings, conversions and continuations of Eurodollar Revolving Credit
Loans hereunder and all selections of Interest Periods hereunder shall
be in such amounts and be made pursuant to such elections so that, after
giving effect thereto, (a) the aggregate principal amount of the
Eurodollar Revolving Credit Loans comprising each Eurodollar Tranche
shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess
thereof and (b) there shall be no more than ten Eurodollar Tranches.
2.11 Interest Rates and Payment Dates. (a) Each Eurodollar
Revolving Credit Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the
Eurodollar Rate determined for such day plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to
the Alternate Base Rate plus the Applicable Margin.
(c) (i) Each Eurodollar Competitive Loan shall bear interest for
each day during the Competitive Loan Period with respect thereto at a
rate per annum equal to the Eurodollar Rate determined for such day plus
(or minus, as the case may be) the Margin offered by the Lender making
such Loan and accepted by the Company pursuant to Section 2.3, (ii) each
Fixed Rate Competitive Loan shall bear interest at a rate per annum
equal to the fixed rate of interest offered by the Lender making such
Loan and accepted by the Company pursuant to Section 2.3 and (iii) each
Fronted Loan shall bear interest for each day during each Interest
Period with respect thereto (or, if there is no Interest Period with
respect thereto, for each day such Loan is outstanding) at a rate per
annum equal to the applicable Cost of Funds determined for such day.
(d) During the continuation of any Event of Default pursuant to
Section 8(a), the relevant Borrower shall pay, on demand, interest
(after as well as before judgment to the extent permitted by law) on (i)
the principal amount of all outstanding Loans at a rate per annum equal
to the rate of interest
otherwise applicable in respect of such Loans pursuant to Section
2.11(a), (b), or (c) as the case may be, plus 2% and (ii) to the extent
permitted by applicable law, all interest and other amounts due and
unpaid hereunder, at a rate per annum equal to the Alternate Base Rate
plus the Applicable Margin plus 2%; provided, however, that, on and
after the expiration of the Interest Period or the maturity date
applicable to any Eurodollar Revolving Credit Loan, Competitive Loan or
Fronted Loan outstanding on the date of occurrence of such Event of
Default, the principal amount of such Loan shall, during the
continuation of such Event of Default, bear interest at a rate per annum
equal to the Alternate Base Rate plus the Applicable Margin plus 2%.
(e) Interest shall be payable in arrears on each Interest Payment
Date; provided that interest accruing pursuant to paragraph (d) of this
Section 2.11 shall be payable on demand.
2.12 Computation of Interest and Fees. (a) Interest on the Loans,
commitment fees, Participation Fees, Fronting Participation Fees and
fronting fees shall be calculated on the basis of the actual number of
days elapsed over a year of 360 days or, on any date when the Alternate
Base Rate is determined by reference to the Prime Rate, a year of 365 or
366 days, as appropriate. Any change in the interest rate on a Loan
resulting from a change in the Alternate Base Rate or the Eurocurrency
Reserve Requirements shall become effective as of the opening of
business on the day on which such change in the Alternate Base Rate is
announced or such change in the Eurocurrency Reserve Requirements
becomes effective, as the case may be.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive
and binding on the Company and the Lenders in the absence of manifest
error.
(c) If any Reference Lender's Revolving Credit Commitment shall
terminate or all its Loans shall be assigned for any reason whatsoever,
such Reference Lender shall thereupon cease to be a Reference Lender,
and the Administrative Agent (after consultation with the Company and
the Lenders) shall, by notice to the Company and the Lenders, designate
another Lender as a Reference Lender so that there shall at all times be
at least two Reference Lenders.
(d) Each Reference Lender shall use its best efforts to furnish
quotations of rates to the Administrative Agent as contemplated hereby.
If any of the Reference Lenders shall be unable or shall otherwise fail
to supply such rates to the Administrative Agent upon its request, the
rate of interest shall, subject to the provisions of Section 2.13, be
determined on the basis of the quotations of the remaining Reference
Lender.
2.13 Inability to Determine Interest Rate. In the event that prior
to the first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Company)
that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Required Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Eurodollar
Revolving Credit Loans during such Interest Period,
the Administrative Agent shall give telex, telecopy or telephonic notice
thereof to the Company and the Lenders as soon as practicable
thereafter. If such notice is given (x) any Eurodollar Revolving Credit
Loans requested to be made on the first day of such Interest Period
shall be made as ABR Loans, (y) any
Loans that were to have been converted on the first day of such Interest
Period to Eurodollar Revolving Credit Loans shall be continued as ABR
Loans and (z) any outstanding Eurodollar Revolving Credit Loans shall be
converted, on the first day of such Interest Period, to ABR Loans. Until
such notice has been withdrawn by the Administrative Agent, no further
Eurodollar Revolving Credit Loans shall be made or continued as such,
nor shall the Company have the right to convert Loans to Eurodollar
Revolving Credit Loans.
2.14 Pro Rata Treatment and Payments. (a) Except as otherwise
expressly provided herein, each borrowing by the Company from the
Lenders hereunder, each payment by the Company on account of any
commitment fee hereunder and any reduction of the Revolving Credit
Commitments of the Lenders shall be made pro rata according to the
respective Commitment Percentages of the Lenders. Except as otherwise
expressly provided herein, each payment (including each prepayment) by
the Company on account of principal of and interest on the Revolving
Credit Loans shall be made pro rata according to the respective
outstanding principal amounts of the Revolving Credit Loans then held by
the Lenders. All payments (including prepayments) to be made by the
Company hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be
made prior to 1:30 P.M., New York City time, on the due date thereof to
the Administrative Agent, for the account of the Lenders, at the
Administrative Agent's office specified in Section 11.2, in Dollars and
in immediately available funds. The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like
funds as received. If any payment hereunder (other than payments on the
Eurodollar Loans) becomes due and payable on a day other than a Business
Day, such payment shall be extended to the next succeeding Business Day,
and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension. If any
payment on a Eurodollar Loan becomes due and payable on a day other than
a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day (in which case interest thereon shall be payable
at the then applicable rate during such extension) unless the result of
such extension would be to extend such payment into another calendar
month, in which event such payment shall be made on the immediately
preceding Business Day. Fundings and repayments of Fronted Loans shall
be made as specified in the relevant Fronting Lender Addendum.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a Borrowing Date that such Lender will
not make the amount that would constitute its share of the borrowing on
such date available to the Administrative Agent, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent on such Borrowing Date, and the Administrative
Agent may, in reliance upon such assumption, make available to the
Company a corresponding amount. If such amount is made available to the
Administrative Agent on a date after such Borrowing Date, such Lender
shall pay to the Administrative Agent on demand an amount equal to the
product of (i) the daily average federal funds rate during such period
as quoted by the Administrative Agent, times (ii) the amount of such
Lender's share of such borrowing, times (iii) a fraction the numerator
of which is the number of days that elapse from and including such
Borrowing Date to the date on which such Lender's share of such
borrowing shall have become immediately available to the Administrative
Agent and the denominator of which is 360. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts
owing under this Section 2.14 shall be conclusive in the absence of
manifest error. If such Lender's share of such borrowing is not in fact
made available to the Administrative Agent by such Lender within three
Business Days of such Borrowing Date, the Administrative Agent shall be
entitled to recover such amount with interest thereon at the rate per
annum applicable to ABR Loans hereunder, on demand, from the Company.
2.15 Requirements of Law. (a) In the event that any change after
the Effective Date in any Requirement of Law or in the interpretation or
application thereof or compliance by any Lender with any request or
directive (whether or not having the force of law) from any central bank
or other Governmental Authority:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any
Application or any Eurodollar Loan or Fronted Loan made or
participated in by it, or change the basis of taxation of payments
to such Lender in respect thereof (except for taxes covered by
Section 2.16 and changes in the rate of tax on the net income or
earnings of such Lender (including, without limitation, changes in
the U.S. branch profits tax));
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against
assets held by, deposits or other liabilities in or for the account
of, advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii)shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such
Lender, by an amount which such Lender deems to be material, of making,
converting into, continuing or maintaining Eurodollar Loans, making or
participating in Fronted Loans or issuing or participating in Letters of
Credit, or to reduce any amount receivable hereunder in respect thereof,
then, in any such case, the Company shall promptly pay such Lender,
within 15 days after its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount
receivable. If any Lender has demanded compensation under this Section
2.15(a) with respect to any Eurodollar Revolving Credit Loan, the
Company shall have the option to convert immediately such Eurodollar
Revolving Credit Loan into an ABR Loan until the circumstances giving
rise to such demand for compensation no longer apply; provided, that (i)
no such conversion shall affect the Company's obligation to pay
compensation as provided herein which is due with respect to the period
prior to such conversion and (ii) on the date of such conversion the
Company shall pay to the Administrative Agent for the benefit of the
relevant Lender accrued interest on such Eurodollar Revolving Credit
Loan to the date of conversion, together with any amounts payable
pursuant to Section 2.17.
(b) In the event that any Lender shall have determined that any
change after the Effective Date in any Requirement of Law regarding
capital adequacy or in the interpretation or application thereof or
compliance by such Lender or any corporation controlling such Lender
with any request or directive regarding capital adequacy (whether or not
having the force of law) from any Governmental Authority made subsequent
to the Effective Date does or shall have the effect of reducing the rate
of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any
Letter of Credit to a level below that which such Lender or such
corporation could have achieved but for such change or compliance
(taking into consideration such Lender's or such corporation's policies
with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, after submission by such Lender to
the Company (with a copy to the Administrative Agent) of a written
request therefor, the Company shall pay to such Lender or such
corporation, within 15 days after its demand, such additional amount or
amounts as will compensate such Lender for such reduction.
(c) Prior to making any demand for payment pursuant to this Section
2.15 with respect to Eurodollar Loans, any Lender making a demand for
payment shall designate a different lending office with respect to
Eurodollar Loans if such designation will avoid the need for making such
demand and will not, in the sole judgment of such Lender, be illegal or
otherwise disadvantageous to such Lender.
(d) A certificate as to any additional amounts payable pursuant to
this Section 2.15 submitted by any Lender, through the Administrative
Agent, to the Company shall be conclusive in the absence of manifest
error. The covenants contained in this Section 2.15 shall survive the
termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
2.16 Taxes. (a) All payments made by the Company under this
Agreement to the Administrative Agent or any Lender shall be made free
and clear of, and without deduction or withholding for or on account of,
any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding taxes imposed on or with respect to or measured by
the net income of the Administrative Agent or any Lender and franchise
taxes imposed on the Administrative Agent or any Lender, as the case may
be, if the Administrative Agent or such Lender is subject to such net
income or franchise tax by reason of a present or former connection
between the jurisdiction of the government or taxing authority imposing
such tax and the Administrative Agent or such Lender (excluding a
connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement) or any political subdivision
or taxing authority thereof or therein (all such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions and withholdings
being hereinafter called "Taxes"). If any Taxes are required to be
withheld from any amounts payable to the Administrative Agent or any
Lender hereunder, the amounts so payable to the Administrative Agent or
such Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender after making all required deductions
(including deductions applicable to additional sums payable under this
Section 2.16) interest or any such other amounts payable hereunder at
the rates or in the amounts specified in this Agreement. Whenever any
Taxes are payable by the Company, as promptly as practicable thereafter
the Company shall send to the Administrative Agent for its own account
or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Company showing payment
thereof if such a receipt is issued by the relevant taxing authority
and, if not, other documentation reasonably satisfactory to the
Administrative Agent or such Lender, as the case may be, evidencing such
payment. If the Company fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative
Agent such required receipts or other documentary evidence, the Company
shall indemnify the Administrative Agent and the Lenders for any
incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. The
agreements in this Section shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable
hereunder.
(b) Each Lender (or Transferee) that is not a United States person
within the meaning of Section 7701(a)(30) of the Code (a "Non-U.S.
Lender") shall deliver to the Company and the Administrative Agent (i)
two copies of either U.S. Internal Revenue Service Form 1001 or Form
4224, or, in the case of a Non-U.S. Lender claiming exemption from U.S.
federal withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of "portfolio interest", a Form W-8, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S.
Lender delivers a Form W-8 pursuant to this clause (i) in lieu of a Form
1001 or Form 4224, an annual certificate representing that such Non-U.S.
Lender is not a "bank" for purposes of Section 881(c) of the Code, is
not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B)
of the Code) of the Company and is not a controlled foreign corporation
related to the Company (within the meaning of Section 864(d)(4) of the
Code)), properly completed and duly executed by such Non-U.S. Lender
claiming complete exemption from U.S. federal withholding tax on all
payments by the Company under this Agreement and the other Loan
Documents, (ii) an Internal Revenue Service Form W-8 or W-9 or successor
applicable forms and (iii) any other documentation as may be required
under applicable U.S. tax law and regulations to evidence complete
exemption from U.S. federal withholding tax on all payments by the
Company under this Agreement and the other Loan Documents. Such forms
and other documentation shall be delivered by each Non-U.S. Lender on or
before the date it becomes a party to this Agreement (or, in the case of
any Participant, on or before the date such Participant purchases the
related participation). Each such Lender shall certify, in the case of a
Form W-8 or W-9, that it is entitled to an exemption from United States
backup withholding tax. In addition, each Non-U.S. Lender shall deliver
such forms promptly upon the obsolescence or invalidity of any form or
other documentation previously delivered by it, and shall deliver such
additional forms and documentation as may subsequently be required under
applicable U.S. tax law and regulations to evidence complete exemption
from U.S. federal withholding tax on all payments by the Company under
this Agreement and the other Loan Documents unless in any such case any
Tax Law Change (as defined
below) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms and other
documentation previously delivered by it inapplicable or which would
prevent such Lender from duly completing and delivering any such form or
other documentation previously delivered by it with respect to it and
such Lender so advises the Company and the Administrative Agent. Unless
the Administrative Agent or the relevant Lender shall have delivered to
the Company the forms and other documentation referred to above, the
Company or the Administrative Agent shall withhold taxes from payments
to such Lender hereunder at the applicable statutory rate and the
Company shall not be required to pay any additional amounts to such
Lender pursuant to Section 2.16(a); provided that this sentence shall
not apply, and the Company shall be required to pay additional amounts
to such Lender pursuant to Section 2.16(a), if the Administrative Agent
or such Lender is unable to deliver such forms and other documentation
as a result of a Tax Law Change. For purposes of this Section 2.16(b),
"Tax Law Change" means, with respect to any Lender, a change in or
amendment to the Code or any tax treaty to which the United States is a
party that occurs after the date such Lender became a Lender hereunder
(or after the date such Lender designated a new lending office) the
effect of which is to cause any payment to such Lender to be subject to
U.S. federal withholding tax. Where, because of a Tax Law Change, the
Administrative Agent or any Lender is no longer entitled to a complete
exemption from U.S. federal withholding tax on payments by the Company
to it but is entitled to a reduced rate of taxation with respect to such
payments, the Administrative Agent or such Lender shall deliver to the
Company such documentation (including, without limitation, a Form 1001,
if applicable) as may be required under applicable U.S. tax law and
regulations to evidence such reduced rate of taxation, and, if the
Administrative Agent or such Lender fails to do so, the Company shall
not be required to pay additional amounts to the Administrative Agent or
such Lender pursuant to this Section 2.16(b) in an amount in excess of
the additional amounts it would have been required to so pay if the
Administrative Agent or such Lender had provided such documentation.
(c) If any Lender (or Transferee) shall have determined that it is
entitled to claim a refund from a Governmental Authority in respect of
Taxes with respect to which the Company has paid additional amounts
pursuant to Section 2.16(a), it shall promptly notify the Company of the
availability of such refund claim and shall, within 30 days after
receipt of a request by the Company, make a claim to such Governmental
Authority for such refund at the Company's expense. If any Lender (or
Transferee) receives a refund (including pursuant to a claim for refund
made pursuant to the preceding sentence) in respect of any Taxes with
respect to which the Company has paid additional amounts pursuant to
Section 2.16(a), it shall within 30 days from the date of such receipt
pay over such refund to the Company (but only to the extent of
additional amounts paid by the Company under Section 2.16(a) with
respect to the Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Lender (or Transferee) and without
interest (other than interest paid by the relevant Governmental
Authority with respect to such refund); provided, however, that the
Company, upon the request of the Lender (or Transferee), agrees to repay
the amount paid over to the Company (plus penalties, interest or other
charges) to the Lender (or Transferee) in the event the Lender (or
Transferee) is required to repay such refund to such Governmental
Authority.
(d) Notwithstanding anything to the contrary in this Section 2.16,
if the Internal Revenue Service determines that a Lender (or Transferee)
is a conduit entity knowingly participating in a conduit financing
arrangement as defined in Section 7701(1) of the Code and the
regulations thereunder and unless the Company expressly consented to
such arrangement with full knowledge of the relevant facts of such
arrangement at the time it was entered into (a "Conduit Financing
Arrangement"), then the Company shall have no obligation to pay
additional amounts to the Lender (or Transferee) for any Taxes with
respect to any payments hereunder to the extent the amount of such Taxes
exceeds the amount that would have otherwise been withheld or deducted
had the Internal Revenue Service not made such a determination. Each
Lender (or Transferee) represents and agrees that, at all times during
the term of this Agreement, it is not and will not be a conduit entity
participating in a conduit financing arrangement (as defined in Section
7701(1) of the Code and the regulations thereunder) with respect to any
borrowings hereunder.
The agreement in this Section 2.16(d) shall survive the termination of
this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.17 Indemnity. The Company agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense (including, but not
limited to, any such loss or expense arising from interest or fees
payable by such Lender to lenders of funds obtained by it in order to
maintain its Eurodollar Revolving Credit Loans, Competitive Loans or
Fronted Loans, but excluding loss of the Applicable Margin or any
positive Margin applicable to Eurodollar Loans), which such Lender may
sustain or incur as a consequence of (a) default by the Company in
payment when due of the principal amount of or interest on any
Eurodollar Revolving Credit Loan, Competitive Loan or Fronted Loan, (b)
default by the Company in making a borrowing of, conversion into or
continuation of Eurodollar Revolving Credit Loans, Competitive Loans or
Fronted Loans after the Company has given a notice requesting (or, in
the case of Competitive Loans, accepting) the same in accordance with
the provisions of this Agreement, (c) default by the Company in making
any prepayment after the Company has given a notice thereof in
accordance with the provisions of this Agreement or (d) the making of a
prepayment or conversion of Eurodollar Revolving Credit Loans,
Competitive Loans or Fronted Loans on a day which is not the last day of
an Interest Period, the last day of a Competitive Loan Period or any
applicable stated maturity date, as the case may be, with respect
thereto, including, without limitation, in each case, any such loss or
expense arising from the reemployment of funds obtained by it or from
fees payable to terminate the deposits from which such funds were
obtained. Calculation of all amounts payable to a Lender under this
Section 2.17 with respect to Eurodollar Loans shall be made as though
such Lender had actually funded its relevant Eurodollar Loan through the
purchase of a deposit bearing interest at the Eurodollar Rate in an
amount equal to the amount of such Eurodollar Loan and having a maturity
comparable to the relevant Interest Period or Competitive Loan Period;
provided, however, that each Lender may fund each of its Eurodollar
Loans in any manner it sees fit, and the foregoing assumption shall be
utilized only for the calculation of amounts payable under this Section
2.17. The Company shall endeavor to arrange the borrowings and
repayments pursuant to this Agreement so as to minimize any amounts
which would become payable pursuant to this Section 2.17. A certificate
as to any amounts payable pursuant to this Section 2.17 submitted by any
Lender, through the Administrative Agent, shall be conclusive in the
absence of manifest error. The agreements in this Section 2.17 shall
survive the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder.
2.18 Replacement Lending Offices and Lenders. Each Lender agrees to
designate a different lending office if such designation will eliminate
or reduce amounts payable pursuant to Section 2.15 or 2.16, as the case
may be, and will not, in the sole judgment of such Lender, be illegal or
otherwise disadvantageous to such Lender. In the event that the Company
becomes obligated to pay additional amounts to any Lender pursuant to
Section 2.15 or 2.16 (other than solely with respect to Competitive
Loans), then, unless such Lender has theretofore removed or cured the
conditions which resulted in the obligation to pay such additional
amounts, the Company may, on ten Business Days' prior written notice to
the Administrative Agent and such Lender, cause such Lender to (and such
Lender shall) assign pursuant to Section 11.6 all of its rights and
obligations under this Agreement to another Person which is willing to
become a Lender and is acceptable (which acceptance shall not be
unreasonably withheld) to the Administrative Agent, for a purchase price
equal to the outstanding principal amount of the Loans payable to such
Lender plus any accrued but unpaid interest on such Loans, any accrued
but unpaid commitment fees in respect of such Lender's Revolving Credit
Commitment and any other amounts payable to such Lender under this
Agreement, provided that any expenses or other amounts owing to such
Lender pursuant to any indemnification provision hereof (including, if
applicable, Section 2.17) shall be for the account of the Company.
SECTION 2A. FRONTED LOANS
2.1A Fronted Subfacility. Subject to the terms and conditions
hereof, each Fronting Lender severally agrees to make revolving credit
loans (each, a "Fronted Loan") to the relevant Borrower in any
Fronted Currency offered by such Fronting Lender to such Borrower from
time to time during the Revolving Credit Commitment Period, provided,
that (a) the Dollar Equivalent of the aggregate outstanding principal
amount of all Fronted Loans shall not, on any date on which Fronted
Loans are borrowed, extended or rolled over, exceed $75,000,000 (after
giving effect to such borrowing, extension or rollover) and (b) the
Dollar Equivalent of the aggregate outstanding principal amount of all
Fronted Loans in a particular Fronted Currency shall not, on any date on
which Fronted Loans in such Fronted Currency are borrowed, extended or
rolled over, exceed the Fronted Currency Sublimit, if any, applicable
thereto (after giving effect to such borrowing, extension or rollover).
During the Revolving Credit Commitment Period, each Borrower may use the
Fronted Subfacility by borrowing, prepaying Fronted Loans in whole or in
part, and reborrowing, all in accordance with the terms and conditions
hereof.
2.2A Procedure for Fronted Loan Borrowings. The Borrowers may
borrow under the Fronted Subfacility during the Revolving Credit
Commitment Period on any Business Day, provided that the relevant
Borrower shall give the relevant Fronting Lender and the Administrative
Agent irrevocable written notice (which notice must be received by the
Fronting Lender and the Administrative Agent prior to the applicable
time specified therefor in such Fronting Lender's Fronting Lender
Addendum) specifying (a) the amount to be borrowed and the Fronted
Currency with respect thereto, (b) the date of such borrowing, which
shall be a Business Day and (c) the initial Interest Periods (if any)
with respect thereto, upon receipt of which such Fronting Lender shall
make the relevant Fronted Loan in accordance with the terms of the
applicable Fronting Lender Addendum or as soon thereafter as
practicable. Each borrowing under the Fronted Subfacility from a
Fronting Lender shall be in such minimum amounts as shall be specified
in the applicable Fronting Lender's Fronting Lender Addendum. The
proceeds of each Fronted Loan will be made available by the Fronting
Lender in respect thereof to the relevant Borrower at such Lender's
Fronting Lender's Payment Office at such time on the Borrowing Date and
in such funds as are specified in such Fronting Lender's Fronting Lender
Addendum.
2.3A Fronted Loans Fees, Commissions and Other Charges. (a) The
Company shall pay to the relevant Fronting Lender with respect to each
Fronted Loan made to it by such Fronting Lender, for the account of such
Fronting Lender, a fronting fee with respect to the period from and
including the date of such Fronted Loan to but excluding the date of
repayment thereof computed at the per annum rate set forth in the
relevant Fronting Lender Addendum on the average daily principal amount
of such Fronted Loan outstanding during the period for which such fee is
calculated. Such fronting fee shall be payable in the relevant Fronted
Currency in arrears on the last day of each March, June, September and
December to occur after the making of the relevant Fronted Loan and on
the date such Fronted Loan is paid in full and shall be nonrefundable.
(b) The Company shall pay to the Administrative Agent, for the
account of the Lenders, in Dollars, a participation fee (a "Fronting
Participation Fee") with respect to each Fronted Loan, for the period
from and including the date of such Loan to but excluding the date of
repayment thereof, computed at a rate per annum equal to the Applicable
Margin in respect of Eurodollar Loans from time to time in effect on the
Dollar Equivalent of the average daily principal amount of such Fronted
Loan outstanding during the period for which such fee is calculated.
Each Fronting Participation Fee shall be shared ratably among the
Lenders in accordance with their respective Commitment Percentages. Each
Fronting Participation Fee shall be payable in arrears on the last day
of each March, June, September and December to occur after the making of
the relevant Fronted Loan and on the date such Fronted Loan is paid in
full and shall be nonrefundable.
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the relevant Lenders all fees received by the
Administrative Agent for their respective accounts pursuant to Section
2.3A(b).
2.4A Participations. (a) Each Fronting Lender irrevocably agrees to
grant and hereby grants to each Lender, and, to induce such Fronting
Lender to make Fronted Loans hereunder, each such Lender
irrevocably agrees to accept and purchase and hereby accepts and
purchases from such Fronting Lender, on the terms and conditions
hereinafter stated, for such Lender's own account and risk an undivided
interest equal to such Lender's Commitment Percentage in such Fronting
Lender's obligations and rights in respect of each Fronted Loan made by
such Fronting Lender hereunder. Each such Lender unconditionally and
irrevocably agrees with each Fronting Lender that, if any amount in
respect of the principal, interest or fees owing to such Fronting Lender
in respect of a Fronted Loan is not paid when due in accordance with the
terms of this Agreement (collectively "Fronted Overdue Amounts"), such
Lender shall pay to the Fronting Lender (through the Administrative
Agent) upon demand (the "Demand Date") an amount in Dollars equal to
such Lender's Commitment Percentage of the Dollar Equivalent of such
Fronted Overdue Amounts, determined on the basis of the Spot Exchange
Rate in effect on the Demand Date; provided, that, in the case of
interest and fees, the Demand Date shall not occur prior to the date
that is four days after such amounts became overdue. The purchase of
participations in any Fronted Overdue Amount pursuant to this clause
shall not relieve any Borrower of any default in the payment thereof,
and the relevant Borrower's repayment obligation in respect of any
Fronted Overdue Amount shall automatically be converted into Dollars
based on the Spot Exchange Rate in effect on the Demand Date. The
relevant Borrower shall be obligated to pay interest in respect of all
Fronted Overdue Amounts, at the rate specified in Section 2.11(d), which
interest (i) until the Demand Date, shall be paid to the relevant
Fronting Lender, and (ii) from and after the Demand Date, shall be paid
to the Administrative Agent (at the office of the Administrative Agent
specified in Section 11.2) for the benefit of the relevant Fronting
Lender and the other Lenders that have purchased participations as
provided above.
(b) Each Lender's obligation to make the payment referred to in
Section 2.4A(a) shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (i) any
set- off, counterclaim, recoupment, defense or other right which any
Lender or any Borrower may have against any Fronting Lender, any
Borrower or any other Person for any reason whatsoever, (ii) the
occurrence or continuance of a Default or an Event of Default, (iii) any
adverse change in the condition (financial or otherwise) of the Company
or any of its Subsidiaries, (iv) any breach of this Agreement or any
other Loan Document by any Loan Party or any other Lender or (v) any
other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
(c) If any amount required to be paid by any Lender to any Fronting
Lender pursuant to Section 2.4A(a) is not paid to such Fronting Lender
when due, such Lender shall pay interest on such amount to such Fronting
Lender on demand computed at a rate per annum equal to the Federal Funds
Effective Rate then in effect, calculated on a 360-day basis. A
certificate of any Fronting Lender submitted to any Lender with respect
to any amounts owing under this Section shall be conclusive in the
absence of manifest error.
(d) Whenever, at any time after any Fronting Lender has received
from any Lender the full amount owing by such Lender pursuant to and in
accordance with Section 2.4A(a) in respect of any Fronted Loan, such
Fronting Lender receives any payment related to such Fronted Loan
(whether directly from the relevant Borrower or otherwise, including
proceeds of collateral applied thereto by such Fronting Lender), or any
payment of interest on account thereof, such Fronting Lender will
promptly distribute to such Lender its pro rata share thereof.
(e) If any payment received by any Fronting Lender pursuant to
Section 2.4A(d) with respect to any Fronted Loan made by it shall be
required to be returned by such Fronting Lender, each Lender shall pay
to such Fronting Lender its pro rata share thereof.
2.5A Spot Exchange Rate. (a) No later than the time specified in
the applicable Fronting Lender Addendum, on each Calculation Date with
respect to a Fronted Currency, the relevant Fronting Lender shall
determine the Spot Exchange Rate as of such Calculation Date with
respect to such Fronted Currency and shall promptly notify the
Administrative Agent thereof. The Spot Exchange Rates so determined
shall
become effective on the relevant Calculation Date and shall remain
effective until the next succeeding Calculation Date.
(b) The Administrative Agent shall promptly notify the Company of
each determination of a Spot Exchange Rate hereunder.
2.6A Repayment of Fronted Loans. Each Borrower hereby
unconditionally promises to pay to the relevant Fronting Lender the then
unpaid principal amount of each Fronted Loan made by such Fronting
Lender to such Borrower, in each case on the Revolving Credit
Termination Date (or such earlier date on which the Fronted Loans become
due and payable pursuant to Section 8 or as may be specified in the
Fronting Lender Addendum of such Fronting Lender).
2.7A Subsidiary Borrowers. Subject to the prior written consent of
the Required Lenders, the Company may designate any Subsidiary of the
Company as a Subsidiary Borrower by delivery to the Administrative Agent
of a Borrowing Subsidiary Agreement executed by such Subsidiary and the
Company and upon such delivery such Subsidiary shall for all purposes of
this Agreement be a Subsidiary Borrower and a party to this Agreement
until the Company shall have executed and delivered to the
Administrative Agent a Borrowing Subsidiary Termination with respect to
such Subsidiary, whereupon such Subsidiary shall cease to be a
Subsidiary Borrower and a party to this Agreement. Notwithstanding the
preceding sentence, no Borrowing Subsidiary Termination will become
effective as to any Subsidiary Borrower at a time when any principal of
or interest on any Loan to such Subsidiary Borrower shall be outstanding
hereunder, provided that such Borrowing Subsidiary Termination shall be
effective to terminate such Subsidiary Borrower's right to make further
borrowings under this Agreement.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions hereof
(including, without limitation, the applicable conditions specified in
Section 5), the Issuing Lender, in reliance on the agreements of the
other Lenders set forth in Section 3.4, agrees to issue letters of
credit ("Letters of Credit") for the account of the Company on any
Business Day during the Revolving Credit Commitment Period in such form
as may be approved from time to time by the Issuing Lender; provided
that the Issuing Lender shall have no obligation to issue any Letter of
Credit if, after giving effect to such issuance, (i) the L/C Obligations
would exceed the L/C Commitment or (ii) the aggregate amount of L/C
Obligations and Non-Facility L/C Obligations would exceed $25,000,000.
Each Letter of Credit shall (i) be denominated in Dollars and shall be
either (x) a standby letter of credit issued (1) for the benefit of
insurance companies to guarantee insurance claims and premiums, (2) to
provide bid and performance guarantees or (3) to guarantee contested
appeals (a "Standby Letter of Credit"), or (y) a documentary sight
letter of credit (a "Sight Letter of Credit") or documentary time letter
of credit (a "Usance Letter of Credit") in respect of the purchase of
goods or services by the Company and its Subsidiaries in the ordinary
course of business and (ii) expire no later than the Revolving Credit
Termination Date.
(b) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of
New York.
(c) The Issuing Lender shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any L/C Participant to exceed any limits
imposed by, any applicable Requirement of Law.
(d) The terms of the Letters of Credit and the Company's
relationship with the Issuing Lender under this Agreement may be set
forth in a separate agreement among the Company, the Issuing Lender and
the Administrative Agent, provided that the provisions of such agreement
are not inconsistent with the provisions of this Agreement.
3.2 Procedure for Issuance of Letters of Credit. The Company may
from time to time request that the Issuing Lender issue a Letter of
Credit by delivering to the Issuing Lender at its address for notices
specified herein an Application therefor, completed to the satisfaction
of the Issuing Lender, and such other certificates, documents and other
papers and information as the Issuing Lender may request. Upon receipt
of any Application, the Issuing Lender will process such Application and
the certificates, documents and other papers and information delivered
to it in connection therewith in accordance with its customary
procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Lender be required to issue
any Letter of Credit unless it has received the Application therefor and
all such other certificates, documents and other papers and information
relating thereto by 12:00 Noon, New York City time, on the Business Day
immediately preceding the day on which such Letter of Credit is to be
issued) by issuing the original of such Letter of Credit to the
beneficiary thereof or as otherwise may be agreed by the Issuing Lender
and the Company. The Issuing Lender shall furnish a copy of such Letter
of Credit to the Administrative Agent and the Company promptly following
the issuance thereof.
3.3 Fees and Other Charges. (a) The Company shall pay to the
Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, a participation fee with respect to the Commercial Letters
of Credit (other than Usance Letters of Credit in respect of which a
banker's acceptance has been issued or a deferred payment has been
created) at a per annum rate equal to the Applicable Margin from time to
time in effect with respect to Eurodollar Revolving Credit Loans minus
0.25% on the average daily aggregate amount available to be drawn under
such Commercial Letters of Credit during the period for which payment is
made. Such participation fee shall be payable to the Lenders to be
shared ratably among them in accordance with their respective Commitment
Percentages. Such participation fee shall be payable quarterly in
arrears on each L/C Fee Payment Date and shall be nonrefundable.
(b) The Company shall pay to the Administrative Agent, for the
account of the Issuing Lender and the L/C Participants, a participation
fee with respect to the Standby Letters of Credit and the Usance Letters
of Credit in respect of which a banker's acceptance has been issued or a
deferred payment has been created, at a per annum rate equal to the
Applicable Margin from time to time in effect with respect to Eurodollar
Revolving Credit Loans on the average daily aggregate amount available
to be drawn under such Letters of Credit during the period for which
payment is made. Such participation fee shall be payable to the Lenders
to be shared ratably among them in accordance with their respective
Commitment Percentages. Such participation fee shall be payable
quarterly in arrears on each L/C Fee Payment Date and shall be
nonrefundable.
(c) In addition to the foregoing fees, (i) the Company shall pay to
the Issuing Lender, for its own account, a fronting fee in respect of
each Letter of Credit equal to a per annum rate agreed upon between the
Company and the Issuing Lender on the average daily aggregate amount
available to be drawn under such Letter of Credit during the period for
which payment is made; such fronting fee shall be payable quarterly in
arrears on each L/C Fee Payment Date and shall be nonrefundable; and
(ii) the Company shall pay or reimburse the Issuing Lender for such
normal and customary costs and expenses as are incurred or charged by
the Issuing Lender in issuing, effecting payment under, amending or
otherwise administering any Letter of Credit.
(d) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Issuing Lender and the L/C Participants all
fees received by the Administrative Agent for their respective accounts
pursuant to this Section.
3.4 L/C Participations. The Issuing Lender irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit hereunder, each L/C
Participant irrevocably agrees to accept and purchase and hereby accepts
and purchases from the Issuing Lender, on the terms and conditions
hereinafter stated, for such L/C Participant's own account and risk an
undivided interest equal to such L/C Participant's Commitment Percentage
of the Issuing Lender's obligations and rights under or in respect of
each Letter of Credit issued hereunder and the amount of each draft paid
by the Issuing Lender thereunder.
3.5 Drawing and Reimbursement. (a) The payment by the Issuing
Lender of a draft drawn under any Letter of Credit shall constitute for
all purposes of this Agreement the making by the Issuing Lender on the
date of such payment of a Revolving Credit Loan ("Issuing Lender
Loans"), which shall be an ABR Loan, in the amount of such draft (but
without any requirement for compliance with the provisions of Sections
2.1 and 2.2 or the conditions set forth in Section 5). It is understood
that, notwithstanding anything to the contrary in this Section 3.5,
interest on any unreimbursed Issuing Lender Loan shall be payable by the
Company from the date on which such Loan is deemed to be made, at the
interest rate then applicable to ABR Loans. In the event that a drawing
under any Letter of Credit is not reimbursed by the Company by 12:00
Noon, New York City time, on the first Business Day after such drawing,
the Issuing Lender shall promptly notify the Administrative Agent and,
upon receipt of such notice, the Administrative Agent will in turn
notify each L/C Participant. Each L/C Participant shall, on the first
Business Day following such notification, make a Revolving Credit Loan,
which shall be an ABR Loan, in an amount equal to its Commitment
Percentage of such drawing for application to reimburse the Issuing
Lender (but without any requirement for compliance with the provisions
of Sections 2.1 and 2.2 or the conditions set forth in Section 5) and
shall make available to the Administrative Agent for the account of the
Issuing Lender, by deposit to the Administrative Agent's account, in
same day funds, the amount of such Loan. If and to the extent that any
Lender shall not have so made the amount of such Loan available to the
Administrative Agent, such L/C Participant and the Company severally
agree 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 Lender until the date such amount is paid to the
Administrative Agent (such obligation on the part of the Company,
together with any comparable obligation with respect to participating
interests pursuant to Section 3.5(b), being referred to herein as a
"Reimbursement Obligation"), at (a) in the case of the Company, the
interest rate then applicable to ABR Loans and (b) in the case of such
L/C Participant, the daily average federal funds rate during the
relevant period as quoted by the Administrative Agent, calculated on the
basis of the actual number of days elapsed during such period over a
year of 360 days. If such L/C Participant shall pay to the
Administrative Agent such amount, such amount so paid shall constitute
such L/C Participant's Revolving Credit Loan for purposes of this
Agreement.
(b) If, for any reason (including as a result of the occurrence of
an Event of Default with respect to the Company pursuant to Section
8(f)), ABR Loans may not be made pursuant to Section 3.5(a) by the L/C
Participants to repay Issuing Lender Loans, then, effective on the date
such ABR Loans would otherwise have been made, each L/C Participant
severally agrees that it shall unconditionally and irrevocably, without
regard to the occurrence of any Default or Event of Default, to the
extent of such L/C Participant's Commitment Percentage, purchase a
participating interest in such Issuing Lender Loans. Each L/C
Participant will immediately transfer to the Administrative Agent, in
same day funds, the amount of its participation, and the proceeds of
such participation shall be distributed by the Administrative Agent to
the Issuing Lender. Each L/C Participant shall share on a pro rata basis
(calculated by reference to its participating interest in such Issuing
Lender Loans) in any interest which accrues thereon and in all
repayments thereof. If and to the extent that any Lender shall not have
so made the amount of such participating interest available to the
Administrative Agent, such L/C Participant and the Company severally
agree 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 Lender until the date such amount is paid to the
Administrative Agent, at (a) in the case of the Company, the interest
rate then applicable to ABR Loans and (b) in the case of such L/C
Participant, the daily average federal funds rate during the relevant
period as quoted by the Administrative Agent, calculated on the basis of
the actual number of days elapsed during such period over a year of 360
days. If such L/C Participant shall pay to the Administrative Agent such
amount, such amount so paid shall constitute such L/C Participant's
participating interest in the relevant Issuing Lender Loans for purposes
of this Agreement.
3.6 Obligations Absolute. The Company's obligations under this
Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Company may have or have had against the Issuing
Lender, any L/C Participant or any beneficiary of a Letter of Credit.
The Company also agrees with the Issuing Lender and the L/C Participants
that the Issuing Lender and the L/C Participants shall not be
responsible for, and the Company's obligations under Section 3.5 shall
not be affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even though such documents
shall in fact prove to be invalid, fraudulent or forged, or any dispute
between or among the Company and any beneficiary of any Letter of Credit
or any other party to which such Letter of Credit may be transferred or
any claims whatsoever of the Company against any beneficiary of such
Letter of Credit or any such transferee. The Issuing Lender and the L/C
Participants shall not be liable for any error, omission, interruption
or delay in transmission, dispatch or delivery of any message or advice,
however transmitted, in connection with any Letter of Credit, except, in
the case of the Issuing Lender, for errors or omissions caused by the
Issuing Lender's gross negligence or willful misconduct. The Company
agrees that any action taken or omitted by the Issuing Lender under or
in connection with any Letter of Credit or the related drafts or
documents, if done in the absence of gross negligence of willful
misconduct and in accordance with the standards of care specified in the
Uniform Commercial Code of the State of New York, shall be binding on
the Company and shall not result in any liability of the Issuing Lender
or any L/C Participant to the Company.
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Lender shall promptly
notify the Company of the date and amount thereof. The responsibility of
the Issuing Lender to the Company in connection with any draft presented
for payment under any Letter of Credit shall, in addition to any payment
obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under
such Letter of Credit in connection with such presentment are in
conformity with such Letter of Credit.
3.8 Application. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the
provisions of this Section 3, the provisions of this Section 3 shall
apply.
3.9 Notices and Reports. The Issuing Lender shall furnish (a) to
the Administrative Agent notice of any failure to issue, any extension
or expiration of, or any drawing under any Letter of Credit prior to
11:00 A.M. (New York City time) on the day of such extension, expiration
or drawing or, in the case of a failure to issue, on the day on which
the Issuing Lender determines not to issue a Letter of Credit and (b) to
the Administrative Agent on the last Business Day (or such other day as
is agreed between the Administrative Agent and the Issuing Lender) of
each month a written report setting forth the average daily aggregate
maximum amount available to be drawn (assuming compliance with all
conditions to drawing) during such month under all Letters of Credit and
summarizing issuance and expiration dates of Letters of Credit issued
during such month and drawings during such month under all Letters of
Credit. Upon receipt of any report referred to in clause (b) above, the
Administrative Agent shall deliver a copy thereof to each L/C
Participant, together with a calculation of each L/C Participant's
participation in each Letter of Credit referred to in such report.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make or
maintain the Loans and issue or participate in the Letters of Credit,
Holdings, the Company and each Subsidiary Borrower (to the extent
applicable to such Subsidiary Borrower) hereby jointly and severally
represent and warrant to the Administrative Agent and each Lender that:
4.1 Financial Condition. (a) The consolidated balance sheets of
Holdings and its consolidated Subsidiaries and of the Company and its
consolidated Subsidiaries as at December 31, 1995, December 31, 1996 and
December 31, 1997 and the related consolidated statements of income and
stockholders' equity and cash flows for the fiscal years ended on such
dates, reported on by Ernst & Young, copies of which
have heretofore been furnished to each Lender, present fairly the
consolidated financial condition of Holdings and its consolidated
Subsidiaries or the Company and its consolidated Subsidiaries, as the
case may be, as at such dates, and the consolidated results of their
operations and cash flows for the fiscal years then ended. All such
financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by such accountants
and as disclosed therein). Neither Holdings, the Company, nor any of
their respective consolidated Subsidiaries had, at the date of the most
recent balance sheet referred to above, any material Guarantee
Obligation, contingent liability or liability for taxes, or any
long-term lease or unusual forward or long-term commitment, including,
without limitation, any interest rate or foreign currency swap or
exchange transaction, which is not reflected in the foregoing statements
or in the notes thereto other than such obligations which are not
required to be disclosed under GAAP (which obligations are described on
Schedule 4.1(a)). During the period from December 31, 1997 to and
including the Amendment and Restatement Effective Date there has been no
sale, transfer or other disposition by Holdings, the Company, or any of
their respective consolidated Subsidiaries of any material part of its
business or property and no purchase or other acquisition of any
business or property (including any Capital Stock of any other Person)
material in relation to the consolidated financial condition of Holdings
and its consolidated Subsidiaries or the Company and its consolidated
Subsidiaries, as the case may be, at December 31, 1997.
(b) The 1998 budget delivered to the Lenders on December 22, 1997
was prepared based on good faith assumptions and the best information
available to Holdings and the Company on the date thereof, and all
assumptions and estimates set forth therein, on such date, were believed
by management of Holdings and the Company to be reasonable in light of
then current conditions and reflected Holdings' and the Company's
reasonable estimate of the results of operations and other information
projected therein, it being recognized by the Lenders that such
projections as they relate to future events are not to be viewed as fact
and that actual results during the period or periods covered by such
projections may differ from the projected results set forth therein.
4.2 No Change. Since December 31, 1997 (a) there has been no
development or event, which has had or could reasonably be expected to
have a Material Adverse Effect and (b) no dividends or other
distributions have been declared, paid or made upon the Capital Stock of
Holdings or the Company nor has any of the Capital Stock of the Company
been redeemed, retired, purchased or otherwise acquired for value by
Holdings, the Company or any of its Subsidiaries, except as expressly
permitted by Section 7.8.
4.3 Corporate Existence; Compliance with Law. Each of Holdings, the
Company and its Subsidiaries (a) is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization,
(b) has the corporate or other power and authority, and the legal right,
to own, pledge, mortgage and operate its property, to lease the property
it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign corporation or
partnership and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of
its business requires such qualification except where the failure to be
so qualified and/or in good standing, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect and (d) is in
compliance with all Requirements of Law except to the extent that the
failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations. (a)
Each Loan Party has the corporate or other power and authority, and the
legal right, to make, deliver and perform each Loan Document to which it
is a party and, in the case of the Borrowers, to borrow hereunder and to
request the issuance of Letters of Credit for its account, and has taken
all necessary corporate action to authorize the execution, delivery and
performance of each such Loan Document and, in the case of the
Borrowers, to authorize the borrowings and the issuance of Letters of
Credit for its account on the terms and conditions of this Agreement.
(b) No consent or authorization of, filing with or other act by or
in respect of any Governmental Authority or any other Person is required
in connection with the borrowings hereunder or the issuance of Letters
of Credit or with the execution, delivery, performance, validity or
enforceability of this Agreement or any other Loan Document, other than
filings necessary to perfect the Administrative Agent's security
interest in the Collateral for the benefit of the Lenders (which
consents, authorizations and filings have been obtained or made and are
in full force and effect).
(c) This Agreement and the other Loan Documents have been duly
executed and delivered on behalf of each Loan Party party thereto. This
Agreement and the other Loan Documents constitute a legal, valid and
binding obligation of each Loan Party party thereto, enforceable against
each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. Except as set forth in Schedule 4.5, the
execution, delivery and performance of this Agreement and the other Loan
Documents, the issuance of Letters of Credit, the borrowings hereunder
and the use of the proceeds thereof, will not violate any Requirement of
Law or material Contractual Obligation of Holdings, the Company or of
any of its Subsidiaries and will not result in, or require, the creation
or imposition of any Lien on any of their respective properties or
revenues pursuant to any such Requirement of Law or Contractual
Obligation (other than the Liens created by the Security Documents).
4.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is
pending or, to the knowledge of Holdings or the Company, threatened by
or against Holdings, the Company or any of its Subsidiaries or against
any of their respective properties or revenues (a) with respect to this
Agreement or any other Loan Document, the Loans or the use of the
proceeds thereof, any Letter of Credit, or any Lien contemplated by the
Loan Documents or (b) which has a reasonable possibility of an adverse
determination and, if adversely determined, (i) would affect the
legality, validity or enforceability of any Loan Document or (ii) would
have a Material Adverse Effect.
4.7 No Default. Neither Holdings, the Company nor any of its
Subsidiaries is in default or has received any notice of default under
or with respect to any of its Contractual Obligations in any respect
which could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Set forth on Schedule 4.8 is a
complete and accurate list of all real property owned by any Loan Party
or any of its Subsidiaries as of the Amendment and Restatement Effective
Date, showing as of the Amendment and Restatement Effective Date the
street address, county or other jurisdiction and state thereof. Also set
forth on Schedule 4.8 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 Amendment and Restatement Effective Date
the street address, county or other relevant jurisdiction, state,
lessor, lessee and expiration date. Each such lease is the legal, valid
and binding obligation of the lessor thereof, enforceable in accordance
with its terms, except as could not reasonably be expected to have a
Material Adverse Effect. Each of Holdings, the Company and each of its
Subsidiaries has good record and marketable (subject to Liens expressly
permitted by Section 7.3) title in fee simple to, or a valid leasehold
interest in, all its real property, and good title to all its other
property, and none of such property is subject to any Lien except as
expressly permitted by Section 7.3.
4.9 Intellectual Property. Set forth on Schedule 4.9 is a complete
and accurate list of all patents, trademarks, trade names, service marks
and copyrights, and all applications therefor and licenses thereof, of
any Loan Party or any of its Subsidiaries as of the Amendment and
Restatement Effective Date, showing as of the Amendment and Restatement
Effective Date the jurisdiction in which registered, the
registration number, the date of registration and the expiration date.
Each of Holdings, the Company and each of its Subsidiaries owns, or is
licensed to use, all trademarks, trade names, service marks, copyrights,
technology, know-how and processes necessary for the conduct of its
business as currently conducted (the "Intellectual Property") except for
those the failure to own or license which could not reasonably be
expected to have a Material Adverse Effect. No claim has been asserted
and is pending by any Person challenging or questioning the use of any
such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does Holdings or the Company know of any
valid basis for any such claim, the use of such Intellectual Property by
Holdings, the Company and its Subsidiaries does not infringe on the
rights of any Person, and, to the knowledge of Holdings and the Company,
no Intellectual Property has been infringed, misappropriated or diluted
by any other Person, except for such claims, infringements,
misappropriations and dilutions that, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
4.10 No Burdensome Restrictions. No Requirement of Law or
Contractual Obligation applicable to Holdings, the Company or any of its
Subsidiaries could reasonably be expected to have a Material Adverse
Effect.
4.11 Taxes. Each of Holdings, the Company and its Subsidiaries has
filed or caused to be filed all tax returns which are required to be
filed and has paid all taxes shown to be due and payable on said returns
or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property
by any Governmental Authority (other than any the amount or validity of
which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP
have been provided on the books of Holdings, the Company or its
Subsidiaries, as the case may be, and the non-payment of which does not
have a reasonable likelihood of having a Material Adverse Effect); no
tax Lien has been filed with respect to any material tax liability on
the part of Holdings, the Company or any of its Subsidiaries; and, to
the knowledge of Holdings or the Company, no proposed material tax
assessment is pending against Holdings, the Company or any of its
Subsidiaries and all potential tax liabilities are adequately provided
for on the books of Holdings, the Company or its Subsidiaries, as the
case may be.
4.12 Federal Regulations. No part of the proceeds of any Loans or
Letters of Credit will be used for "purchasing" or "carrying" any
"margin stock" within the respective meanings of each of the quoted
terms under Regulation G, T, U or X of the Board as now and from time to
time hereafter in effect or for any purpose which violates the
provisions of the Regulations of the Board. If requested by any Lender
or the Administrative Agent, the Company will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect
in conformity with the requirements of the appropriate FR Form referred
to in said Regulation G, T, U or X.
4.13 Labor Matters. There are no strikes or other labor disputes
against Holdings, the Company or any of its Subsidiaries pending or, to
the knowledge of Holdings or the Company, threatened that (individually
or in the aggregate) could reasonably be expected to have a Material
Adverse Effect. Hours worked by and payment made to employees of
Holdings, the Company and its Subsidiaries have not been in violation of
the Fair Labor Standards Act or any other applicable Requirement of Law
dealing with such matters that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. All payments
due from Holdings, the Company or any of its Subsidiaries on account of
employee health and welfare insurance that (individually or in the
aggregate) could reasonably be expected to have a Material Adverse
Effect if not paid have been paid or accrued as a liability on the books
of Holdings, the Company or such Subsidiary.
4.14 ERISA. No Reportable Event has occurred since October 9, 1992
with respect to any Plan which, if then terminated, has had or could
reasonably be expected to have a Material Adverse Effect, and each Plan
has complied in all respects with the applicable provisions of ERISA and
the Code except where such failure to comply could not reasonably be
expected to have a Material Adverse Effect. The actuarial
present value of all accrued benefits under each Single Employer Plan
maintained by the Company or any Commonly Controlled Entity (based on
those assumptions used to fund the Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or
deemed made, exceed the value of the assets of such Plan. Neither the
Company nor any Commonly Controlled Entity has had or could reasonably
be expected to have a complete or partial withdrawal from any
Multiemployer Plan, and neither the Company nor any Commonly Controlled
Entity would become subject to any liability under ERISA if the Company
or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding
the date on which this representation is made or deemed made where such
withdrawal or liability could reasonably be expected to have a Material
Adverse Effect. No such Multiemployer Plan is in a Reorganization or an
Insolvency where the effect of such Reorganization or Insolvency could
reasonably be expected to have a Material Adverse Effect.
4.15 Investment Company Act; Other Regulations. No Loan Party is an
"investment company", or a company "controlled" by an "investment
company" (other than one which is exempt from the provisions of the
Investment Company Act of 1940, as amended), within the meaning of the
Investment Company Act of 1940, as amended. No Loan Party is subject to
regulation under any federal or state statute or regulation which limits
its ability to incur Indebtedness.
4.16 Subsidiaries. The Subsidiaries of Holdings listed on Schedule
4.16 constitute all the Subsidiaries of Holdings on the Amendment and
Restatement Effective Date.
4.17 Purpose of Loans. The proceeds of the Loans will be used for
general corporate purposes of the Borrowers and their respective
Subsidiaries.
4.18 Environmental Matters. (a) The Mortgaged Properties do not
contain any Hazardous Materials in amounts or concentrations which (i)
constitute or constituted a violation of, or (ii) could reasonably be
expected to give rise to liability under, Environmental Laws, except to
the extent that such violations and liabilities, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
(b) The Mortgaged Properties and all operations at the Mortgaged
Properties are in compliance in all respects and in the last three years
have been in compliance in all respects with all Environmental Laws,
except to the extent that any such instances of non-compliance, in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(c) Neither Holdings, the Company nor any of its Subsidiaries has
received any written notice of violation, alleged violation,
non-compliance, liability or potential liability regarding environmental
matters or compliance with Environmental Laws with regard to the
Mortgaged Properties or the business of Holdings, the Company or any of
its Subsidiaries or with regard to any Person or entity whose
liabilities for environmental matters Holdings, the Company or any of
its Subsidiaries has retained or assumed, in whole or in part,
contractually, by operation of law or otherwise, which, in the
aggregate, could reasonably be expected to have a Material Adverse
Effect, nor does Holdings or the Company have knowledge or reason to
believe that any such notice will be received or is being threatened.
(d) Hazardous Materials have not been transported or disposed of
from the Mortgaged Properties, nor have Hazardous Materials been
generated, treated, stored or disposed of at, on or under any of the
Mortgaged Properties in violation of any Environmental Law or in a
manner that could reasonably give rise to liability under any
Environmental Law, nor do Holdings, the Company or any of its
Subsidiaries reasonably believe that they have retained or assumed any
liability, contractually, by operation of law or otherwise, with respect
to the generation, treatment, storage or disposal of Hazardous
Materials, except to the extent that the foregoing, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
(e) (i) No material judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of Holdings or
the Company, threatened, under any Environmental Law to which Holdings,
the Company or any of its Subsidiaries is or will be named a party with
respect to (x) the Mortgaged Properties, (y) the business of Holdings,
the Company or any of its Subsidiaries or (z) any liabilities pursuant
to Environmental Laws reasonably believed by Holdings, the Company or
any of its Subsidiaries to be retained or assumed by Holdings, the
Company or any of its Subsidiaries, contractually, by operation of law
or otherwise, and (ii) there are no material consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any
Environmental Law with respect to (x) the Mortgaged Properties, (y) the
business of Holdings, the Company or any of its Subsidiaries or (z) any
liabilities pursuant to Environmental Laws reasonably believed by
Holdings, the Company or any of its Subsidiaries to be retained or
assumed by Holdings, the Company or any of its Subsidiaries,
contractually, by operation of law or otherwise.
(f) There has been no Release or threat of Release of Hazardous
Materials at or from the Mortgaged Properties, or arising from or in
connection with the Mortgaged Properties or otherwise in connection with
the business of Holdings, the Company or its Subsidiaries in violation
of any Environmental Law in a manner that, in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(g) Each of the representations and warranties set forth in
paragraphs (a) through (f) above is true and correct with respect to
each parcel of real property owned or operated by Holdings, the Company
or any of its Subsidiaries (other than the Mortgaged Properties).
4.19 Accuracy of Information. No factual statement or information
contained in this Agreement, any other Loan Document or any other
document, certificate or written statement furnished to the
Administrative Agent or the Lenders or any of them, by or on behalf of
any Loan Party for use in connection with the transactions contemplated
by this Agreement or the other Loan Documents (including, without
limitation, any financial information furnished pursuant to Section 6.1)
contained as of the date such statement, information, document or
certificate was so furnished any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements contained herein or therein not misleading. The projections
and pro forma financial information contained in the materials
referenced above are based upon good faith estimates and assumptions
believed by management of the Company to be reasonable at the time made,
it being recognized by the Lenders that such financial information as it
relates to future events is not to be viewed as fact and that actual
results during the period or periods covered by such financial
information may differ from the projected results set forth therein.
There is no fact known to any Loan Party that could reasonably be
expected to have a Material Adverse Effect that has not been expressly
disclosed herein, in the other Loan Documents or in such other
documents, certificates and statements furnished to the Administrative
Agent and the Lenders for use in connection with the transactions
contemplated hereby and by the other Loan Documents.
4.20 Security Documents. (a) Each of the Pledge Agreements is
effective to create in favor of the Administrative Agent, for the
benefit of the Lenders, a legal, valid and enforceable security interest
in the Pledged Securities described therein and proceeds thereof and,
when the Pledged Notes described therein and stock certificates
representing the Pledged Stock described therein are delivered to the
Administrative Agent, each such Pledge Agreement shall constitute a
fully perfected first priority Lien on, and security interest in, all
right, title and interest of the relevant Loan Party in such Pledged
Securities and the proceeds thereof, in each case (except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights
generally) prior and superior in right to any other Person.
(b) Each of the Security Agreements is effective to create in favor
of the Administrative Agent, for the benefit of the Lenders, a legal,
valid and enforceable security interest in the Collateral described
therein and proceeds thereof; when financing statements in appropriate
form are filed in the offices
specified on Schedule 4.20(b), each such Security Agreement constitutes
a fully perfected Lien on, and security interest in, all right, title
and interest of the Loan Parties in such Collateral and, to the extent
provided therein, the proceeds thereof, in each case (except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights
generally) prior and superior in right to any other Person, other than
with respect to Liens expressly permitted by Section 7.3.
(c) Each of the Mortgages is effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and, to
the extent provided therein, the proceeds thereof; when recorded in the
offices specified on Schedule 4.20(c), each such Mortgage shall
constitute a fully perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties in the Mortgaged
Properties and, to the extent provided therein, the proceeds thereof, in
each case (except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally) prior and superior in right
to any other Person, other than with respect to Liens expressly
permitted by Section 7.3.
4.21 Solvency. Each Loan Party is, and after giving effect to the
incurrence or assumption of all Indebtedness and obligations being
incurred or assumed in connection herewith will be and will continue to
be, Solvent.
4.22 Insurance. Holdings, the Company and each of its Subsidiaries
maintain with financially sound and reputable insurance companies
insurance on all its properties in at least such amounts and against at
least such risks (but, including in any event, public liability, product
liability and business interruption) as are usually insured against in
the same general area by companies engaged in the same or a similar
business.
4.23 Regulation H. No Mortgage encumbers improved real property
which is located in an area that has been identified by the Secretary of
Housing and Urban Development as an area having special flood hazards
and in which flood insurance has been made available under the National
Flood Insurance Act of 1968, except for the real property located in
Jonesboro, Indiana, on which the Company maintains flood insurance.
4.24 Representations and Warranties on Amendment and Restatement
Effective Date. Each of the representations and warranties made by
Holdings or the Company in Sections 4.1 through 4.23 is true and correct
on and as of the Amendment and Restatement Effective Date, as if made on
and as of the Amendment and Restatement Effective Date.
SECTION 5. CONDITIONS PRECEDENT
5.1 Intentionally Omitted. THIS SECTION INTENTIONALLY OMITTED.
5.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any Loan or to issue any Letter of Credit requested to be
made or issued by it on any date is subject to the satisfaction of the
following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Company and the other
Loan Parties in or pursuant to the Loan Documents shall be true and
correct on and as of such date as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to
the extension of credit requested to be made on such date.
(c) Credit Limitations. After giving effect to such extension
of credit, (i) the Aggregate Outstanding Extensions of Credit shall
not exceed the aggregate Revolving Credit Commitments in effect on
such date, (ii) the Outstanding Revolving Extensions of Credit of
each Lender shall not exceed such Lender's Revolving Credit
Commitment in effect on such date and (iii) no prepayment shall be
required to be made pursuant to Section 2.8.
Each borrowing by and issuance of a Letter of Credit on behalf of the
Company hereunder shall constitute a representation and warranty by the
Company and, in the case of each extension of credit to a Subsidiary
Borrower, by such Subsidiary Borrower, as of the date of such extension
of credit, that the conditions contained in this Section 5.2 have been
satisfied.
5.3 Conditions to Amendment and Restatement Effective Date. The
Amendment and Restatement Effective Date shall be the date of
satisfaction of the following conditions precedent:
(a) Agreement. The Administrative Agent shall have received
(a) counterparts hereof, executed by all of the parties listed on
the signature pages hereof and (b) Lender Consent Letters,
substantially in the form of Exhibit M, executed by the
Supermajority Lenders.
(b) Closing Certificate. The Administrative Agent shall have
received a fully executed certificate of each of the Company and
Holdings dated the Amendment and Restatement Effective Date,
substantially in the form of Exhibit H, with appropriate insertions
and attachments.
(c) Legal Opinions. The Administrative Agent shall have
received the executed legal opinions of Xxxxxxx Xxxxxx & Xxxxx,
counsel to the Company, and the general counsel to the Company,
substantially in the forms of Exhibits G-1 and G-2, respectively.
(d) Expenses. The Administrative Agent shall have received all
fees and other amounts due and payable on or prior to the Amendment
and Restatement Effective Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to
be reimbursed or paid by the Company hereunder.
(e) Senior Notes. The Company shall have submitted an
irrevocable notice of redemption in accordance with the Senior Note
Indenture to redeem, on May 1, 1998, all outstanding Senior Notes
(the "Senior Note Redemption").
(f) Bank of Montreal Credit Facility. The Administrative Agent
shall have received satisfactory evidence that the negative
covenants and events of default contained in the Bank of Montreal
Credit Facility have been, or shall promptly after the Amendment
and Restatement
Effective Date be, conformed to the negative covenants and Events
of Default contained in this Agreement.
(g) Loan Document Reaffirmation. Each Subsidiary of the
Company shall have executed a reaffirmation of its obligations
under the Loan Documents to which it is a party.
5.4 Conditions to Initial Extension of Credit to a Subsidiary
Borrower. The agreement of the relevant Fronting Lender to make the
initial extension of credit requested to be made by it to any Subsidiary
Borrower on any date is subject to the satisfaction of the following
conditions precedent:
(a) Borrowing Subsidiary Agreement. The Administrative Agent
shall have received the Borrowing Subsidiary Agreement for such
Subsidiary Borrower executed and delivered by the Company and such
Subsidiary Borrower.
(b) Opinions. The Administrative Agent shall have received a
satisfactory written opinion of counsel for such Subsidiary
Borrower covering such matters relating to such Subsidiary Borrower
or its Borrowing Subsidiary Agreement as the Administrative Agent
shall reasonably request.
(c) Amendments to other Loan Documents. In the case of the
initial extension of credit to the first Subsidiary Borrower
designated hereunder, the other Loan Documents and, to the extent
necessary, the filings made in connection therewith, shall have
been amended or supplemented (and, if necessary, such amendments or
supplements shall have been recorded) as specified by the
Administrative Agent, in each case for the purpose of ensuring that
the Obligations of the Subsidiary Borrowers are guaranteed, and the
guarantees thereof are secured, as applicable, by such other Loan
Documents.
(d) Other Documents. The Administrative Agent shall have
received such documents and certificates as the Administrative
Agent may reasonably request relating to the organization,
existence and good standing of such Subsidiary Borrower, the
authorization of the transactions contemplated hereby relating to
such Subsidiary Borrower, appointment of an agent for service of
process and any other legal matters relating to such Subsidiary
Borrower, its Borrowing Subsidiary Agreement or such transactions,
all in form and substance satisfactory to the Administrative Agent.
SECTION 6. AFFIRMATIVE COVENANTS
Holdings and the Company hereby jointly and severally agree that,
so long as the Revolving Credit Commitments remain in effect, any Loan
or Letter of Credit remains outstanding and unpaid or any other amount
is owing to any Lender or the Administrative Agent hereunder, Holdings
and the Company shall, and shall cause each of their respective
Subsidiaries to, unless the Required Lenders shall otherwise consent in
writing:
6.1 Financial Statements. In the case of Holdings and the
Company, furnish to each Lender:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of Holdings or the Company, as
the case may be, a copy of the consolidated balance sheet of
Holdings and its consolidated Subsidiaries and of the Company and
its consolidated Subsidiaries as at the end of such year and the
related consolidated statements of income and stockholders' equity
and cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on by
Ernst & Young or other independent certified public accountants
acceptable to the Required Lenders (which report shall not be
qualified in any material respect); and
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of
each fiscal year of Holdings or the Company, as the case may be,
the unaudited consolidated balance sheet of Holdings and its
consolidated Subsidiaries and of the Company and its consolidated
Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and stockholders'
equity and cash flows for such quarter and the portion of the
fiscal year through the end of such quarter, setting forth in each
case in comparative form the figures for the previous year,
certified by a Responsible Officer of Holdings or the Company, as
applicable, as fairly presenting the financial condition and
results of operations of Holdings or the Company, as the case may
be, on a consolidated basis in accordance with GAAP (subject to
normal year-end audit adjustments);
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with
GAAP applied consistently throughout the periods reflected therein and
with prior periods (except as approved by such accountants or officer,
as the case may be, and disclosed therein). It is understood that the
obligation to deliver any items described above which are contained in
Holdings' Form 10-K, as filed with the Securities and Exchange
Commission (in the case of Section 6.1(a)) or Holdings' Form 10-Q, as
filed with the Securities and Exchange Commission (in the case of
Section 6.1(b)), may be satisfied by delivery of such Form 10-K or Form
10-Q, as the case may be.
6.2 Certificates; Other Information. In the case of the Company,
or, if applicable, Holdings, furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), (i) a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no
knowledge was obtained of any Default or Event of Default, except
as specified in such certificate and (ii) copies of any management
letters when delivered to Holdings or the Company in connection
with such examination;
(b) concurrently with the delivery of the financial statements
referred to in Sections 6.1(a) and 6.1(b), (i) a certificate of a
Responsible Officer of each of Holdings and the Company stating
that, to the best of each such Responsible Officer's knowledge,
each Loan Party during such period has observed or performed all of
its covenants and other agreements, and satisfied every condition,
contained in this Agreement and in the other Loan Documents to be
observed, performed or satisfied by it, and that such Responsible
Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate, (ii) a Compliance
Certificate containing all information necessary for determining
compliance by Holdings, the Company and its Subsidiaries with the
provisions of this Agreement referred to therein as of the last day
of the fiscal quarter or fiscal year of Holdings or the Company, as
the case may be and (iii) a certificate listing each existing
Subsidiary of the Company as of the last day of the applicable
fiscal quarter or fiscal year of the Company and, in the event that
any such Subsidiary is not a Material Subsidiary, a calculation in
reasonable detail demonstrating such circumstance with respect to
each such Subsidiary;
(c) by December 31 of each year, a copy of the projections by
Holdings and the Company of the operating budget and cash flow
budget and revenues of Holdings, the Company and its Subsidiaries
for the next succeeding fiscal year in form and substance
reasonably satisfactory to the Administrative Agent, setting forth
in reasonable detail the basis for all projections contained
therein, such projections to be accompanied by a certificate of a
Responsible
Officer of each of Holdings and the Company to the effect that such
projections have been prepared in good faith using assumptions
believed by management to be reasonable and that such Responsible
Officer has no reason to believe they are misleading in any
material respect;
(d) within five days after the same are sent, copies of all
financial statements and reports which Holdings or the Company
sends to holders of any issue of its equity securities or debt
securities generally, and within five days after the same are
filed, copies of all financial statements and reports which
Holdings or the Company may make to, or file with, the Securities
and Exchange Commission or any successor or analogous Governmental
Authority or any national securities exchange; and
(e) promptly, such additional financial and other information
as any Lender may from time to time reasonably request through the
Administrative Agent.
6.3 Payment of Obligations. (a) Pay, discharge, perform, comply
with or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all its obligations of whatever nature,
except where the amount or validity thereof is currently being contested
in good faith by appropriate proceedings and reserves in conformity with
GAAP with respect thereto have been provided on the books of Holdings,
the Company or its Subsidiaries, as the case may be; (b) comply in all
material respects with all applicable Requirements of Law, except where
such Requirement of Law is being contested in good faith, a bona fide
dispute exists with respect thereto and the failure to comply therewith
has no reasonable likelihood of having a Material Adverse Effect; and
(c) comply with all applicable Contractual Obligations, except where the
failure to comply therewith has no reasonable likelihood of having a
Material Adverse Effect.
6.4 Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as now conducted by it and
preserve, renew and keep in full force and effect its corporate
existence and take all reasonable action to maintain all rights,
privileges, licenses and franchises necessary or desirable in the normal
conduct of its business except as otherwise expressly permitted pursuant
to Section 7.5.
6.5 Maintenance of Property; Insurance. Keep all property useful
and necessary in its business in good working order and condition;
preserve all of its registered trademarks, trade names and service
marks, the non-preservation of which has a reasonable likelihood of
having a Material Adverse Effect; maintain with financially sound and
reputable insurance companies insurance on all its property in at least
such amounts and against at least such risks (but including in any event
public liability, product liability and business interruption) as are
usually insured against in the same general area by companies engaged in
the same or a similar business; and furnish to each Lender, upon written
request, full information as to the insurance carried.
6.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of record and account in which complete and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities;
and permit representatives of the Administrative Agent (and, if an Event
of Default shall have occurred and be continuing, any Lender) to visit
and inspect any of its properties and examine and make copies of or
abstracts from any of its books and records at any reasonable time and
as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of Holdings,
the Company and its Subsidiaries with officers and employees of
Holdings, the Company and its Subsidiaries and with the independent
certified public accountants of Holdings or the Company.
6.7 Notices. In the case of the Company or, if applicable,
Holdings, promptly give notice to the Administrative Agent and each
Lender of:
(a) an officer of Holdings or the Company becoming aware of
the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of Holdings, the Company or any of its Subsidiaries,
(ii) dispute between Holdings, the Company or any of its
Subsidiaries and any Governmental Authority or (iii) litigation,
investigation or proceeding which may exist at any time between
Holdings, the Company or any of its Subsidiaries and any
Governmental Authority, which in each case, if not cured or
resolved or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding (and any material development
in respect thereof) affecting Holdings, the Company or any of its
Subsidiaries in which (i) the amount involved is $5,000,000 or more
(or its equivalent in another currency or currencies) and not
covered by insurance as to which the relevant insurance company has
not disputed coverage or (ii) injunctive or similar relief is
sought;
(d) the following events, as soon as possible and in any event
within 30 days after Holdings or the Company knows or has reason to
know thereof: (i) the occurrence or expected occurrence of any
Reportable Event with respect to any Single Employer Plan, or any
withdrawal from, or the termination, Reorganization or Insolvency
of any Multiemployer Plan or (ii) the institution of proceedings or
the taking of any other action by the PBGC or the Company or any
Commonly Controlled Entity or any Multiemployer Plan with respect
to the withdrawal from, or the termination, Reorganization or
Insolvency of, any Plan; provided that notice under this Section
6.7(d) will only be required if, individually or in the aggregate,
the amount of the liability of the Loan Parties which could
reasonably be expected would equal or exceed $5,000,000; and
(e) a development or event which has had or could reasonably
be expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action Holdings or the Company, as
the case may be, proposes to take with respect thereto.
6.8 Environmental Laws.
(a) Comply with, and use its best efforts to insure compliance
by all tenants and subtenants, if any, with, all Environmental Laws
and obtain and comply in all material respects with and maintain,
and use its best efforts to insure that all tenants and subtenants
obtain and comply with and maintain, any and all licenses,
approvals, registrations or permits required by Environmental Laws,
except to the extent that failure to do so would not have any
reasonable likelihood of having a Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required
under Environmental Laws and promptly comply in all material
respects with all lawful orders and directives of all Governmental
Authorities respecting Environmental Laws, except to the extent
that the same are being contested in good faith by appropriate
proceedings and the pendency of such proceedings would not have any
reasonable likelihood of having a Material Adverse Effect;
(c) Without limiting the generality of the provisions of
Section 6.7, notify the Administrative Agent and each Lender of any
of the following which is reasonably likely to have a Material
Adverse Effect:
(i) any Environmental Claim which Holdings, the Company
or any of its Subsidiaries receives, including one to take or
pay for any remedial, removal, response or clean-up or other
action with respect to any Hazardous Materials contained on
any property presently or formerly owned or leased by
Holdings, the Company or any of its Subsidiaries;
(ii) any notice of any alleged violation of or knowledge
by Holdings, the Company or any of its Subsidiaries of a
condition which might reasonably result in a violation of any
Environmental Law; and
(iii) any commencement or threatened commencement of any
judicial or administrative proceeding or investigation
alleging a violation or potential violation of any requirement
of Environmental Law; and
(d) Defend, indemnify and hold harmless the Administrative
Agent and the Lenders, and their respective parents, subsidiaries,
affiliates, employees, agents, officers and directors, from and
against any and all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature
known or unknown, contingent or otherwise, arising out of, or in
any way relating to, the violation of, noncompliance with or
liability under any Environmental Laws applicable to the operations
of Holdings, the Company or any of its Subsidiaries or to the
Mortgaged Properties, or any orders, requirements or demands of
Governmental Authorities related thereto, including, without
limitation, attorney's and consultant's fees, investigation and
laboratory fees, response costs, court costs and litigation
expenses, except to the extent that any of the foregoing are found
by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful
misconduct of the party seeking indemnification therefor.
Notwithstanding anything to the contrary in this Agreement, this
indemnity shall continue in full force and effect regardless of the
termination of this Agreement.
6.9 Additional Collateral. (a) With respect to any assets acquired
after the Effective Date by any Loan Party (other than any assets
described in paragraph (b) or (c) below) as to which the Administrative
Agent, for the benefit of the Lenders, does not have a perfected Lien
(i) execute and deliver to the Administrative Agent such amendments to
this Agreement or the relevant Security Agreement or such other
documents as the Administrative Agent or the Required Lenders deem
necessary or advisable in order to grant to the Administrative Agent,
for the benefit of the Lenders, a security interest in such assets, and
(ii) take all actions necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first
priority (subject to Liens expressly permitted by Section 7.3) security
interest in such assets, including without limitation, the filing of
Uniform Commercial Code financing statements in such jurisdictions as
may be required by the appropriate Security Agreement or by law or as
may be requested by the Administrative Agent.
(b) At any time when the aggregate value of any fee or leasehold
interest in any real estate (including improvements thereof) acquired
after the Effective Date by the Company or any of its Subsidiaries
(excluding individual parcels having a value of less than $1,000,000)
and not already subject to a mortgage or deed of trust exceeds
$5,000,000, (i) execute a first priority mortgage or deed of trust, as
the case may be (subordinate only to such mortgages or deeds of trust as
are necessary to permit the Company or such Subsidiary to purchase such
real estate and any other Liens expressly permitted by Section 7.3), in
favor of the Administrative Agent, for the benefit of the Lenders,
covering such real estate, in form and substance reasonably satisfactory
to the Administrative Agent, (ii) provide the Lenders with title and
extended coverage insurance covering such real estate in an amount equal
to the purchase price of such real estate as well as a current ALTA
survey thereof, together with a surveyor's certificate in form and
substance reasonably satisfactory to the Administrative Agent and (iii)
if requested by the Administrative Agent, deliver to the Administrative
Agent legal opinions relating to the matters described
in the preceding clauses (i) and (ii), which opinions shall be in form
and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(c) With respect to any new Subsidiary (other than a Foreign
Subsidiary or the Receivables Subsidiary) created or acquired after the
Effective Date by Holdings, the Company or any of its Subsidiaries, (i)
execute and deliver to the Administrative Agent such amendments to the
relevant Pledge Agreement as the Administrative Agent or the Required
Lenders deem necessary or advisable in order to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first
priority security interest in the Capital Stock of such new Subsidiary
which is owned by Holdings, the Company or any of its Subsidiaries, (ii)
deliver to the Administrative Agent the certificates representing such
Capital Stock, together with undated stock powers, in blank, executed
and delivered by a duly authorized officer of the Company or such
Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to
become a party to the Subsidiary Guarantee, the Subsidiary Pledge
Agreement and the Subsidiary Security Agreement, (B) to take such
actions necessary or advisable to grant to the Administrative Agent for
the benefit of the Lenders a perfected first priority (subject to Liens
expressly permitted by Section 7.3) security interest in the Collateral
described in the Subsidiary Security Agreement with respect to such new
Subsidiary, including, without limitation, the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be
required by the Subsidiary Security Agreement or by law or as may be
requested by the Administrative Agent, and (C) to issue Intercompany
Notes to each Loan Party (which in turn shall be endorsed in blank and
pledged by the relevant Loan Party to the Administrative Agent for the
benefit of the Lenders pursuant to the relevant Pledge Agreement), (iv)
in the case of the Company and each existing Subsidiary, issue
Intercompany Notes to such new Subsidiary (which in turn shall be
endorsed in blank and pledged by such new Subsidiary to the
Administrative Agent for the benefit of the Lenders pursuant to the
Subsidiary Pledge Agreement), and (v) if requested by the Administrative
Agent, deliver to the Administrative Agent legal opinions relating to
the matters described in the preceding clauses (i), (ii), (iii) and
(iv), which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.
(d) With respect to any Foreign Subsidiary created or acquired
after the Effective Date by Holdings, the Company or any of its
Subsidiaries, (i) execute and deliver to the Administrative Agent such
amendments to the relevant Pledge Agreement as the Administrative Agent
or the Required Lenders deem necessary or advisable in order to grant to
the Administrative Agent, for the benefit of the Lenders, a perfected
first priority security interest in the Capital Stock of such new
Subsidiary which is owned by Holdings, the Company or any of its
Subsidiaries (provided that in no event shall Capital Stock representing
more than 65% of the voting power of the Capital Stock of any such new
Subsidiary be required to be so pledged) and (ii) deliver to the
Administrative Agent the certificates representing such Capital Stock,
together with undated stock powers, in blank, executed and delivered by
a duly authorized officer of Holdings, the Company or such Subsidiary,
as the case may be.
(e) The provisions of this Section 6.9 shall not apply to any
assets subject to any Lien permitted by Section 7.3 which secures
Indebtedness permitted by Section 7.2, to the extent compliance with
such provisions is prohibited by the terms of the documentation
governing such Lien or Indebtedness, but, in each case, only so long as
any such prohibition remains in effect.
(f) Notwithstanding anything to the contrary in this Agreement, no
dormant Subsidiary or non-wholly owned Subsidiary designated as such on
Schedule 4.16 shall be required to become a party to the Subsidiary
Guaranty, the Subsidiary Security Agreement or the Subsidiary Pledge
Agreement unless and until, (i) in the case of any such dormant
Subsidiary, such Subsidiary holds assets having an aggregate value in
excess of $500,000 and (ii) in the case of any such non-wholly owned
Subsidiary, such Subsidiary becomes a wholly owned direct or indirect
Subsidiary of the Company. If at any time the applicable conditions
specified in clause (i) or (ii) of the preceding sentence apply to any
such Subsidiary, the Company shall take or cause to be taken all of the
applicable actions specified in Section 6.9(c) with respect to such
Subsidiary.
SECTION 7. NEGATIVE COVENANTS
Holdings and the Company hereby jointly and severally agree that,
so long as the Revolving Credit Commitments remain in effect, any Loan
or Letter of Credit remains outstanding and unpaid or any other amount
is owing to any Lender or the Administrative Agent hereunder, Holdings
and the Company shall not, and shall not permit any of their respective
Subsidiaries to, directly or indirectly, unless the Required Lenders
shall otherwise agree in writing:
7.1 Financial Condition Covenants.
(a) Consolidated Net Worth. Permit the Consolidated Net Worth
of Holdings at any time to be less than the sum, without
duplication, of (i) $80,000,000, (ii) 50% of the Consolidated Net
Income of Holdings for each fiscal quarter of Holdings (beginning
with the fiscal quarter ending March 31, 1995) for which such
Consolidated Net Income is positive, (iii) 100% of the Net Cash
Proceeds of any Holdings Common Equity Offering consummated after
the Effective Date and (iv) 100% of any capital contribution made
to Holdings or the Company after the Effective Date by any holder
of its Capital Stock; provided, that for the purposes of clauses
(iii) and (iv) above, the amount of any Net Cash Proceeds and
capital contributions referred to in said clauses shall be reduced
to the extent (x) such proceeds or contributions are concurrently
applied to repurchase equity in accordance with this Agreement and
(y) Consolidated Net Worth (without giving effect to such proceeds
or contributions) would be reduced as a result of such repurchase.
(b) Interest Coverage. Permit the Interest Coverage Ratio as
at the end of any Interest Coverage Test Period to be less than 2.0
to 1.0.
(c) Leverage Ratio. Permit the Leverage Ratio on the last day
of any period of four consecutive fiscal quarters of Holdings
ending during any period set forth below to be greater than the
corresponding ratio set forth below:
Period Ending Ratio
After the Effective Date and $00,000,000
prior to March 31, 1998............ 5.00 to 1.0
On or after March 31, 1998 and
prior to March 31, 1999............ 4.50 to 1.0
On or after March 31, 1999 and
prior to March 31, 2000............ 4.25 to 1.0
March 31, 2000 and thereafter........ 4.00 to 1.0
(d) Senior Secured Leverage Ratio. Permit the Senior Secured
Leverage Ratio on the last day of any period of four consecutive fiscal
quarters of Holdings ending during any period set forth below to be
greater than the corresponding ratio set forth below:
Period Ending Ratio
After the Effective Date and $00,000,000
prior to March 31, 1998........... 3.00 to 1.0
On or after March 31, 1998 and
prior to March 31, 1999........... 2.75 to 1.0
On or after March 31, 1999 and
prior to March 31, 2000........... 2.50 to 1.0
March 31, 2000 and thereafter....... 2.25 to 1.0
7.2 Limitation on Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness in respect of the Loans, the Letters of
Credit and the other obligations of the Loan Parties under the Loan
Documents;
(b) (i) Indebtedness of the Company to Holdings or any
Subsidiary Guarantor or any Subsidiary Guarantor to the Company or
any Subsidiary Guarantor and (ii) Indebtedness of Holdings to the
Company in connection with the loan made by the Company to Holdings
with a portion of the proceeds of the loans under the Existing
Credit Agreement (collectively, "Intercompany Loans"); provided
that (x) all such Indebtedness shall be evidenced by an
Intercompany Note and (y) each such Intercompany Note shall be
pledged to the Administrative Agent for the benefit of the Lenders
pursuant to the relevant Pledge Agreement;
(c) (i) Indebtedness of the Company in respect of the Senior
Notes, and (ii) other Indebtedness of the Company or any of its
Subsidiaries outstanding on the Amendment and Restatement Effective
Date and listed on Schedule 7.2(c) and, in the case of this clause
(ii), any replacement, extension or renewal (without increase in
the outstanding principal amount) thereof;
(d) Indebtedness of the Company in connection with the
issuance of letters of credit: (i) for the benefit of insurance
companies to guarantee insurance claims and premiums; (ii) to
provide bid and performance guarantees; (iii) to guarantee
contested appeals; (iv) constituting commercial letters of credit
in the ordinary course of business and (v) for any other purpose of
a similar nature acceptable to the Required Lenders; provided that
(x) no Liens shall be incurred in respect of any letter of credit
described in clause (i), (ii), (iii) or (v) above and (y) the
aggregate amount of L/C Obligations and Non-Facility L/C
Obligations shall not exceed $25,000,000 at any time outstanding;
(e) Indebtedness of the Company resulting from the delivery of
a promissory note in the maximum amount of $10,000,000 to support
Indebtedness of the Company, in connection with the requirements of
the Company's insurance carriers to recognize casualty insurance
premiums; provided, however, that if Indebtedness pursuant to any
such promissory note is also supported by a letter of credit
permitted under Section 7.2(d), the principal amount of such
promissory note (to the extent supported by such letter of credit)
shall not be included in the computation of Total Debt for the
purposes of Section 7.1(c);
(f) (i) Indebtedness which is secured by Liens expressly
permitted by Section 7.3(g)(i) and (ii) Indebtedness which is (x)
secured by Liens expressly permitted by clause (iii) of Section
7.3(g) and (y) assumed in connection with the acquisition of the
assets (or the acquisition of a Subsidiary holding the assets)
subject to such Liens;
(g) Capital Lease Obligations expressly permitted by Section
7.7(a), (b) or (c);
(h) preferred stock of Holdings having no scheduled or
mandatory redemption requirements prior to November 1, 2002;
(i) Indebtedness of Holdings, the Company or any of its
Subsidiaries consisting of Guarantee Obligations expressly
permitted by Section 7.4;
(j) any obligation of Holdings to repurchase common stock of
Holdings or options with respect thereto from the officer or
employee of Holdings, the Company or any of its Subsidiaries party
thereto;
(k) THIS PARAGRAPH INTENTIONALLY OMITTED;
(l) THIS PARAGRAPH INTENTIONALLY OMITTED;
(m) Indebtedness of the Company or any of its Subsidiaries
pursuant to the Capital Lease Financing Facility in an aggregate
principal amount of up to $25,000,000;
(n) additional Indebtedness not otherwise permitted by this
Section 7.2, which is (i) unsecured, (ii) incurred or assumed (x)
in connection with the acquisition of assets and secured only by
such assets or (y) in connection with the acquisition of a new
Subsidiary and secured only by specified assets of such Subsidiary
in existence at the time of such acquisition or (iii) secured by
assets acceptable to the Required Lenders, aggregating not more
than $20,000,000 at any one time outstanding;
(o) additional unsecured Indebtedness not otherwise permitted
by this Section 7.2 aggregating not more than $150,000,000 at any
one time outstanding (so long as, in the case of Specified Basket
Debt, after giving effect to the incurrence thereof, no prepayment
shall be required to be made pursuant to Section 2.8);
(p) additional Indebtedness of Essex Canada not otherwise
permitted by this Section 7.2 aggregating not more than $25,000,000
(or the Dollar equivalent thereof in any other currency) at any one
time outstanding (so long as, after giving effect to the incurrence
thereof, no prepayment shall be required to be made pursuant to
Section 2.8), provided, that any such Indebtedness shall be either
(i) unsecured or (ii) secured only by assets owned by Essex Canada
which are either located in Canada or which constitute accounts
receivable generated in respect of assets located in Canada; and
(q) Indebtedness of the Receivables Subsidiary pursuant to the
Permitted Receivables Facility.
7.3 Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings; provided that adequate
reserves with respect thereto are maintained on the books of
Holdings, the Company or its Subsidiaries, as the case may be, in
conformity with GAAP;
(b) statutory landlords' Liens and carriers', warehousemen's,
mechanics', materialmen's, repairmen's or other like Liens arising
in the ordinary course of business for sums which are not overdue
for a period of more than 60 days or which are being contested in
good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions, minor defects or
minor irregularities in title and other similar encumbrances
incurred in the ordinary course of business which do not in any
case materially interfere with the ordinary conduct of the business
of Holdings, the Company or any of its Subsidiaries or materially
impair the value of the property subject thereto for the purposes
of such business;
(f) Liens in existence on the Amendment and Restatement
Effective Date listed on Schedule 7.3(f) and any replacement,
extension or renewal thereof; provided that (i) no such Lien is
spread to cover any additional property after the Amendment and
Restatement Effective Date and (ii) the amount of Indebtedness
secured thereby is not increased (except, in the case of clauses
(i) and (ii) above, to the extent expressly provided or required by
any agreement governing the terms of any such Lien as such
agreement is in effect on the Amendment and Restatement Effective
Date);
(g) (i) Liens securing Indebtedness (other than Capital Lease
Obligations) of the Company or any of its Subsidiaries incurred to
finance the acquisition, construction or improvement of any asset,
provided that (x) such Liens shall be created substantially
simultaneously with the acquisition, construction or improvement of
such asset, (y) such Liens do not at any time encumber any asset
other than the asset acquired, constructed or improved with the
proceeds of such Indebtedness and (z) the amount of Indebtedness
secured thereby shall not exceed the purchase price of such asset
or the amount expended solely to construct or improve such asset,
as the case may be; (ii) any Lien on any asset securing
Indebtedness permitted to be incurred in connection with
sale-leaseback transactions expressly permitted by Section 7.7(b),
provided that (x) the proceeds of such Indebtedness shall be at
least equal to 80% of the fair market value of such asset and (y)
at the time of incurrence of such Indebtedness, no Default or Event
of Default shall have occurred and be continuing or would result
therefrom; and (iii) any Lien on (x) any asset acquired by the
Company or any of its Subsidiaries after the Effective Date or (y)
specified assets of any new Subsidiary acquired by the Company or
any of its Subsidiaries after the Effective Date, which, in each
case, is in effect at the time of the acquisition of such asset or
such Subsidiary, as the case may be, and is not incurred in
contemplation of such acquisition; provided that the aggregate
outstanding amount of Indebtedness secured by Liens incurred
pursuant to this Section 7.3(g), when added to the aggregate
outstanding amount of Capital Lease Obligations incurred pursuant
to Section 7.7(c), shall not at any time exceed the sum of
$25,000,000 and an amount equal to 10% of the Consolidated Net
Worth of Holdings at such time;
(h) Liens on equipment acquired in connection with the
incurrence of Capital Lease Obligations expressly permitted by
Section 7.7(c), provided that (x) such Liens shall be created
substantially simultaneously with the acquisition of such
equipment, (y) such Liens do not at any time encumber any asset
other than the equipment financed by such Indebtedness and (z) the
amount of Indebtedness secured thereby is not increased subsequent
to the date of incurrence thereof;
(i) Liens created by the Security Documents in favor of the
Administrative Agent for the benefit of the Lenders;
(j) judgment Liens created by or resulting from any judgment
not constituting an Event of Default under Section 8(h);
(k) any interest or title of a lessor under any lease listed
in Schedule 4.8 or expressly permitted by Section 7.7(a) or (b), as
well as any Lien affecting the fee interest of such lessor or any
underlying lessor;
(l) Liens securing Indebtedness of the Company or any of its
Subsidiaries pursuant to the Capital Lease Financing Facility;
(m) Liens securing Indebtedness incurred pursuant to Section
7.2(n) which is permitted to be secured by said Section;
(n) leases or subleases granted by the Company or any of its
Subsidiaries in the ordinary course of business and not interfering
in any material respect with the conduct of the business of the
Company or such Subsidiary;
(o) Liens securing Section 7.2(p) Indebtedness which is
permitted to be secured by said Section; and
(p) any Lien that may be deemed to arise from the Permitted
Receivables Facility.
7.4 Limitation on Guarantee Obligations. Create, incur, assume or
suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations of Holdings and the Company pursuant
to Section 10 or of any Subsidiary Guarantor pursuant to the
Subsidiary Guarantee or of the Company in respect of the Letters of
Credit;
(b) guarantees made in the ordinary course of its business by
the Company of obligations of any Subsidiary Guarantor, which
obligations are otherwise permitted under this Agreement;
(c) guarantees by the Company or any of its Subsidiaries of
the obligations of Joint Ventures, not exceeding, when added to the
aggregate principal amount of Joint Venture Loans, $35,000,000 in
aggregate amount at any time outstanding;
(d) surety, indemnity, performance, release and appeal bonds
and guarantees thereof issued by the Company or any of its
Subsidiaries, to the extent required in the ordinary course of
business or in connection with the enforcement of rights or claims
of the Company or its Subsidiaries or in connection with judgments
that do not result in an Event of Default, not exceeding
$10,000,000 in aggregate amount at any time outstanding;
(e) reimbursement obligations of the Company pursuant to
letters of credit expressly permitted by Section 7.2(d);
(f) unsecured guarantee obligations of Holdings and any
Subsidiary of the Company in respect of (i) the Capital Lease
Financing Facility or (ii) Section 7.2(o) Indebtedness;
(g) unsecured guarantee obligations of the Company in respect
of Section 7.2(p) Indebtedness;
(h) guarantees made by the Company of obligations (other than
Indebtedness) of any "shell" acquisition Subsidiary which becomes a
Subsidiary Guarantor (or whose successor is or becomes a Subsidiary
Guarantor) upon consummation of the acquisition with respect to
which such acquisition Subsidiary was created; and
(i) guarantees made by the Company of obligations of any
Foreign Subsidiary, to the extent expressly permitted by Section
7.10(g).
7.5 Limitations on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or convey, sell, lease,
assign, transfer or otherwise dispose of all or substantially all of its
property, business or assets, except:
(a) (i) any Subsidiary of the Company may be merged or
consolidated with or into the Company (provided that the Company
shall be the continuing or surviving corporation) or with or into
any one or more Subsidiary Guarantors (or Persons that become
Subsidiary Guarantors concurrently with the consummation of such
transaction), provided that the Subsidiary Guarantor or Subsidiary
Guarantors shall be the continuing or surviving corporation, (ii)
any Foreign Subsidiary of the Company may be merged or consolidated
with or into any other Foreign Subsidiary of the Company, provided
that, (x) if one or both of the parties to such merger or
consolidation is a Subsidiary Borrower, a Subsidiary Borrower shall
be the continuing or surviving corporation and (y) if both of the
parties to such merger or consolidation is a
Subsidiary Borrower, each Fronting Lender that has agreed to lend
Fronted Loans to the non-surviving Subsidiary Borrower shall have
approved such transaction and (iii) any acquisition of a Person
permitted by Section 7.10 may be structured as a merger or
consolidation so long as, if the acquiring Person is a Loan Party,
such Loan Party shall be the continuing or surviving corporation;
(b) any Subsidiary may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Company or any Subsidiary Guarantor;
(c) Essex Holdings may be merged with and into the Company
(the "Holdings/Company Merger"), provided that (i) the Company
shall be the surviving corporation, (ii) no violation of or default
under any material Requirement of Law or material Contractual
Obligation applicable to Holdings, the Company or any of its
Subsidiaries shall occur as a result thereof, and (iii) within
three Business Days after the consummation of the Holdings/Company
Merger, the Administrative Agent shall have received (with, where
applicable, sufficient copies for each Lender) (A) the Holdings
Security Agreement and the Holdings Pledge Agreement (together with
an appropriate undated stock power), in each case executed and
delivered by a duly authorized officer of a holding company parent
("New Holdings") of the Company created simultaneously with the
consummation of the Holdings/Company Merger, (B) an assumption
agreement in form and substance satisfactory to the Administrative
Agent pursuant to which New Holdings shall become a party to this
Agreement, (C) from New Holdings, all certificates and documents of
the type delivered by Holdings on the Effective Date and described
in Section 5.1 of the Existing Credit Agreement and (D) the
unqualified executed legal opinion of Cravath, Swaine & Xxxxx
relating to the matters described in the preceding clauses (A) and
(B), which opinion shall be in form and substance satisfactory to
the Administrative Agent; and
(d) pursuant to any sale of assets expressly permitted by
Section 7.6.
7.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired, except:
(a) the sale or other disposition of any assets which have
become obsolete, outdated or surplus to the business of the Company
or any of its Subsidiaries, or have no remaining useful life, in
each case as reasonably determined in good faith by the Board of
Directors or the senior management of the Company or such
Subsidiary, as the case may be, in an aggregate amount not to
exceed $5,000,000 in any fiscal year of the Company;
(b) the sale of assets in connection with sale-leaseback
transactions expressly permitted by Section 7.7(b);
(c) the sale of inventory in the ordinary course of business;
(d) as expressly permitted by Section 7.5(b);
(e) in connection with the Capital Lease Financing Facility or
the Permitted Receivables Facility; and
(f) other sales or dispositions of assets by the Company or
any of its Subsidiaries; provided that (i) at the time of such sale
or disposition, no Default or Event of Default shall have occurred
and be continuing or would result therefrom, (ii) each such asset
is sold or disposed of at fair market value and (iii) the aggregate
fair market value of all assets so sold or disposed of by the
Company and its Subsidiaries (excluding assets constituting all or
any portion of any Specified Property) shall not exceed $40,000,000
in any fiscal year of the Company and shall not exceed $80,000,000
during the term of this Agreement after the Amendment and
Restatement Effective Date.
7.7 Limitation on Capital Lease Obligations. Create or suffer to
exist any Capital Lease Obligations, except:
(a) Capital Lease Obligations of the Company and its
Subsidiaries in existence on the Amendment and Restatement
Effective Date and listed on Schedule 7.7(a) and any renewal,
extension or refinancing thereof;
(b) subject to Section 7.3(g)(ii), Capital Lease Obligations
incurred by the Company or any of its Subsidiaries in connection
with sale-leaseback transactions; provided that
(i) immediately prior to giving effect to such lease, the
property or asset subject to such lease was sold by the
Company or any Subsidiary to the lessor under such lease for
at least its fair market value; and
(ii) no Default or Event of Default would occur as a
result of such sale and subsequent lease;
(c) Capital Lease Obligations other than those expressly
permitted by paragraph (a) or (b) above, incurred by the Company or
any of its Subsidiaries to finance the acquisition of equipment;
provided that the aggregate outstanding amount of all Capital Lease
Obligations which would appear on a consolidated balance sheet of
the Company and its consolidated Subsidiaries in accordance with
GAAP, when added to the aggregate outstanding principal amount of
Indebtedness incurred pursuant to Section 7.2(f), shall not at any
time exceed the sum of $25,000,000 and an amount equal to 10% of
the Consolidated Net Worth of Holdings at such time; and
(d) in connection with the Capital Lease Financing Facility.
7.8 Limitation on Dividends. Declare or pay any dividend (other
than dividends payable solely in Capital Stock of Holdings) on, or make
any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or
other acquisition of, any shares of any class of Capital Stock of
Holdings or the Company or any warrants or options to purchase any such
Capital Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether
in cash or property or in obligations of Holdings, the Company or any
Subsidiary, except that:
(a) the Company may pay cash dividends to Holdings to pay any
taxes or expenses required to be paid by Holdings in the ordinary
course of business;
(b) so long as no Default or Event of Default shall have
occurred and be continuing or would result therefrom, the Company
may pay cash dividends to Holdings (i) to the extent necessary to
enable Holdings to repurchase shares of its Capital Stock or
options to purchase such Capital Stock, or to pay dividends on its
Capital Stock, in each case in accordance with Section 7.8(f); (ii)
to the extent necessary to enable Holdings to pay any annual
management fee expressly permitted by Section 7.12; or (iii)
constituting payments required to be made by the Company to
Holdings pursuant to the Tax Sharing Agreement; provided that
Holdings shall pay each obligation in respect of which a dividend
is made pursuant to this clause (b) no later than five Business
Days after the date on which such dividend is made;
(c) THIS PARAGRAPH INTENTIONALLY OMITTED;
(d) so long as no Default or Event of Default shall have
occurred and be continuing or would result therefrom, Holdings may
repurchase common stock of Holdings owned by former or existing
employees of the Company, provided that, such repurchases are
funded entirely with the proceeds of sales of newly issued common
stock of Holdings to employees;
(e) THIS PARAGRAPH INTENTIONALLY OMITTED; and
(f) so long as no Default or Event of Default shall have
occurred and be continuing or would result therefrom, Holdings may
repurchase shares of its Capital Stock or options to purchase such
Capital Stock, and may declare and pay cash dividends on its
Capital Stock, provided, that the aggregate amount expended by
Holdings in connection therewith shall not exceed, during the term
of this Agreement after the Amendment and Restatement Effective
Date, the sum of $100,000,000 plus 50% of cumulative Consolidated
Net Income of Holdings (determined for the period from March 31,
1998 through the end of the most recent fiscal quarter of Holdings
for which the relevant financial information is available).
7.9 Limitation on Negative Pledge Clauses. Enter into any
agreement, other than (a) in connection with purchase money Liens, the
Capital Lease Financing Facility, the Permitted Receivables Facility or
Capital Lease Obligations expressly permitted by this Agreement (in
which cases, any restriction referred to below shall only be effective
against the assets financed thereby), (b) in connection with secured
Section 7.2(n) Indebtedness or secured Section 7.2(p) Indebtedness (in
which case, any restriction referred to below shall only be effective
against the assets securing such Indebtedness), (c) the Senior Note
Indenture, and (d) any Section 7.2(o) Indebtedness (in which case, the
terms of such restrictions shall be no less favorable to the interests
of the Administrative Agent and the Lenders than those contained in the
Senior Note Indenture), with any Person other than the Lenders pursuant
hereto which in any way limits or imposes any condition on the ability
of Holdings, the Company or any of its Subsidiaries to create, incur,
assume or suffer to exist a perfected, first priority security interest
upon any of its property, assets or revenues, whether now owned or
hereafter acquired, securing the Obligations, any guarantee of the
Obligations or any other obligations of any Loan Party under any Loan
Document or any Indebtedness refinancing any of the foregoing.
7.10 Limitation on Capital Expenditures, Investments, Loans and
Advances. Make or commit to make (by way of the acquisition of
securities of a Person or otherwise) any Capital Expenditures or make or
commit to make any advance, loan, extension of credit (by way of
guaranty or otherwise) or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make or commit to make any other
investment in, any Person, except:
(a) extensions of trade credit by the Company or any of its
Subsidiaries in the ordinary course of business;
(b) investments by the Company or any of its Subsidiaries in
Cash Equivalents;
(c) loans and advances to employees of the Company or its
Subsidiaries for travel, entertainment and relocation expenses in
the ordinary course of business consistent with the historical
practices of the Company and its Subsidiaries as of the Amendment
and Restatement Effective Date, in an aggregate amount for the
Company and its Subsidiaries not to exceed $2,000,000 at any one
time outstanding;
(d) investments by the Company in any Subsidiary Guarantor and
investments by Holdings or any Subsidiary of the Company in the
Company or in any Subsidiary Guarantor;
(e) (i) loans made by the Company to any Joint Venture ("Joint
Venture Loans"), provided that (x) the aggregate principal amount
thereof shall not exceed $25,000,000 at any one time outstanding,
(y) all Indebtedness of Joint Venture resulting therefrom shall be
evidenced by an Intercompany Note, and (z) such Intercompany Note
shall be pledged to the Administrative Agent for the benefit of the
Lenders pursuant to the Company Pledge Agreement and (ii)
guarantees expressly permitted by Section 7.4(c); provided that the
aggregate principal amount of Joint Venture Loans, when added to
the aggregate amount of guarantees referred to in clause (ii)
above, shall not exceed $35,000,000 at any time outstanding;
(f) promissory notes issued to the Company or any of its
Subsidiaries by the purchasers of assets sold in accordance with
Section 7.6(f);
(g) (i) Capital Expenditures of the Company and its
Subsidiaries made in the ordinary course of business and (ii)
Investment Expenditures of the Company and its Subsidiaries not
otherwise permitted by this Section 7.10; provided that (w) the
aggregate amount of such Capital Expenditures made during any
fiscal year of Holdings shall not exceed the sum of (I) $65,000,000
(the "Basket Expenditure Amount") and (II) the aggregate amount of
all unutilized Basket Expenditure Amounts in respect of each
preceding fiscal year (including, without limitation, the
unutilized Basket Expenditure Amount under the Existing Credit
Agreement in respect of fiscal year 1997, which amount is equal to
$33,275,000), (x) notwithstanding anything to the contrary in
clause (w) above, the aggregate amount of such Capital Expenditures
made during any fiscal year of Holdings shall not exceed the EBITDA
Basket Amount for such fiscal year (provided that this clause (x)
shall not be applicable in any fiscal year for which the aggregate
amount of such Capital Expenditures is less than $30,000,000), (y)
after giving effect to any such Investment Expenditure, the
aggregate amount of Investment Expenditures during the period from
the first day of the fiscal year in which such Investment
Expenditure is made to and including the date such Investment
Expenditure is made (the "Investment Date") shall not exceed the
Maximum Investment Amount in effect on the Investment Date, and (z)
in no event shall the aggregate amount of such Capital Expenditures
and Investment Expenditures (excluding up to $5,000,000 of
Investment Expenditures constituting capital contributions to any
Joint Venture) which either (1) constitute capital contributions or
other investments in any Person which is not a Subsidiary Guarantor
(including, in any event, the amount of any Guarantee Obligation
incurred pursuant to Section 7.4(i)) or (2) are otherwise made to
acquire assets which do not constitute Collateral exceed
$25,000,000 in any fiscal year and $40,000,000 during the term of
this Agreement after the Amendment and Restatement Effective Date;
and
(h) (i) Capital Expenditures of the Company and its
Subsidiaries made in the ordinary course of business and (ii)
Investment Expenditures of the Company and its Subsidiaries not
otherwise permitted by this Section 7.10, in each case made with
the proceeds of any Holdings Common Equity Offering; provided, that
(x) the aggregate amount of such Capital Expenditures and
Investment Expenditures shall not exceed $100,000,000 during the
term of this Agreement after the Amendment and Restatement
Effective Date, (y) in no event shall the aggregate amount of such
Capital Expenditures and Investment Expenditures which either (1)
constitute capital contributions or other investments in any Person
which is not a Subsidiary Guarantor or (2) are otherwise made to
acquire assets which do not constitute Collateral exceed
$50,000,000 during the term of this Agreement after the Amendment
and Restatement Effective Date and (z) on the date on which any
Investment Expenditure is made pursuant to this Section 7.10(h),
the Company shall deliver to the Administrative Agent a certificate
of a Responsible Officer of each of Holdings and the Company
demonstrating that, on a pro forma basis determined as if such
expenditure had been made on the date occurring twelve months prior
to the last day of the most recently ended fiscal quarter, Holdings
and its consolidated Subsidiaries would have been in compliance
with Section 7.1 as of the last day of such fiscal quarter.
Notwithstanding anything to the contrary contained herein, in no event
shall the aggregate amount of any advance, loan, extension of credit (by
way of guaranty or otherwise) or capital contribution to, or any other
investment in, SX Mauritius Holding, Inc. or any of its Subsidiaries
exceed $10,000,000.
7.11 Limitation on Optional Payments and Modifications of Certain
Agreements. (a) Optionally prepay, retire, redeem, purchase, defease or
exchange, or make any optional deposit or segregation of funds in
respect of, any principal of or interest or dividends on or other
amounts payable in respect of the Senior Notes, any Section 7.2(n)
Indebtedness or any Section 7.2(o) Indebtedness (other than (i) the
refinancing, in whole or in part, of the Senior Notes with all the
proceeds of the Permitted Receivables Facility and with proceeds of
Revolving Credit Loans; (ii) the prepayment of Section 7.2(n)
Indebtedness or Section 7.2(o) Indebtedness pursuant to scheduled
amortization payments; or (iii) the prepayment, refinancing or
redemption, in whole or in part, of Section 7.2(o) Indebtedness with the
proceeds of a Holdings Common Equity Offering), or
(b) amend, modify or change, or consent or agree to any amendment,
modification or change to, any of the terms of the Senior Notes, the
Capital Lease Financing Facility or the Permitted Receivables Facility
(other than any such amendment, modification or change which (i) would
extend the maturity date thereof or reduce the amount of any principal
payments in respect thereof, (ii) would reduce the rate or extend the
date for payment of interest thereon or (iii) is of a technical or
clarifying nature and does not affect the interests of the
Administrative Agent or any Lender under any Loan Document.
7.12 Transactions with Affiliates. Enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of
property or the rendering of any service, with any Affiliate other than
any such transaction (a) between a Subsidiary Guarantor and the Company
or any other Subsidiary Guarantor which is otherwise permitted by this
Agreement or (b) entered into by Holdings, the Company or any of its
Subsidiaries which is (i) otherwise permitted under this Agreement, (ii)
in the ordinary course of Holdings', the Company's or such Subsidiary's
business, and (iii) upon fair and reasonable terms no less favorable to
Holdings, the Company or such Subsidiary, as the case may be, than it
would obtain in a comparable arm's length transaction with a Person not
an Affiliate; provided, that, (x) transactions between the Receivables
Subsidiary and the Company and its other Subsidiaries pursuant to the
Permitted Receivables Facility shall be permitted, (y) each of Holdings,
the Company and its Subsidiaries may enter into employment arrangements
with its officers in the ordinary course of business consistent with its
historical practices as of the Effective Date and (z) so long as no
Default or Event of Default shall have occurred and be continuing, (1)
Holdings and the Company may pay to BP Co. or any of its Affiliates an
annual management and advisory fee with respect to any fiscal year not
to exceed $1,000,000 in the aggregate and may reimburse BP Co. or any of
its Affiliates for any reasonable out of pocket expenses (with respect
to services associated with or incurred on behalf of the Company), (2)
the Company may make payments to Holdings required to be made pursuant
to the Tax Sharing Agreement, (3) Holdings may repurchase shares of its
common stock or options to purchase such common stock, (4) Holdings may
sell shares of, or rights to purchase shares of, its common stock to any
of its Affiliates, provided, that any such sale to an operating company
"controlled" (as defined in the definition of "Control Affiliate") by
Bessemer Holdings, L.P., Bessemer Capital Partners, L.P. or any
partnership or similar entity under common "control" (as defined in the
definition of "Control Affiliate") with Bessemer Holdings, L.P. shall be
on an arm's-length basis and (5) Holdings may exchange, in whole or in
part, any Preferred Stock held by an Affiliate of Holdings for preferred
stock of Holdings having terms no more onerous than those governing the
Preferred Stock and may execute and deliver, and perform its obligations
under, any and all agreements, instruments and documents relating to the
secondary offering of the Preferred Stock or such exchange, including
the registration of the Preferred Stock and any such preferred stock
issued in any such exchange under the Securities Act of 1933.
7.13 Conduct of Businesses. Engage to any material extent in any
business other than businesses of the type conducted by the Company and
its Subsidiaries on the Amendment and Restatement Effective Date and
businesses reasonably related thereto.
7.14 Fiscal Year. Permit the fiscal year of Holdings or the Company
to end on a day other than December 31.
7.15 Limitation on Activities of Holdings. In the case of Holdings,
(a) conduct, transact or otherwise engage in, or commit to conduct,
transact or otherwise engage in, any business or operations other than
(i) those incidental to its ownership of the Capital Stock of the
Company and (ii) those incidental to any exchange, refinancing or
redemption of its Indebtedness or Preferred Stock expressly permitted by
this Agreement or any Holdings Common Equity Offering; (b) incur,
create, assume or suffer to exist any Indebtedness, Guarantee
Obligations or other liabilities or financial obligations, except (i)
nonconsensual obligations imposed by operation of law, (ii) pursuant to
the Loan Documents to which it is a party, (iii) obligations with
respect to its Capital Stock, (iv) the obligation to pay any management
or advisory fee expressly permitted by Section 7.12, (v) in connection
with Intercompany Loans made by the Company to Holdings in accordance
with Section 7.2(b), (vi) in connection with the matters described in
clause (a)(ii) above and (vii) pursuant to any guarantee entered into
pursuant to Section 7.4(f); or (c) own, lease, manage or otherwise
operate any properties or assets (including cash and cash
equivalents) other than the ownership of (i) shares of Capital Stock of
the Company and (ii) additional assets having an aggregate value not to
exceed $1,000,000.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Loan
or any Reimbursement Obligation when due in accordance with the
terms hereof; or any Borrower shall fail to pay any interest on any
Loan, or any other amount payable hereunder, within three days
after any such interest or other amount becomes due in accordance
with the terms hereof; or
(b) Any representation or warranty made or deemed made by the
Company or any other Loan Party herein or in any other Loan
Document or which is contained in any certificate, document or
financial or other statement furnished at any time under or in
connection with this Agreement or any other Loan Document shall
prove to have been incorrect in any material respect on or as of
the date made or deemed made; or
(c) (i) Any Loan Party shall default in the observance or
performance of any agreement contained in Section 6.7(a) or 7 of
this Agreement, Section 5(f), 5(g), 5(h), 5(i) or 5(n) of the
Holdings Security Agreement, Section 5(f), 5(g), 5(h), 5(i) or 5(n)
of the Company Security Agreement, Section 5(f), 5(g), 5(h), 5(i)
or 5(n) of the Subsidiary Security Agreement, Paragraph 5(a) or
5(b) of the Holdings Pledge Agreement, Paragraph 5(a) or 5(b) of
the Company Pledge Agreement, Paragraph 5(a) or 5(b) of the
Subsidiary Pledge Agreement or Paragraph 11 of the Subsidiary
Guarantee (to the extent such Paragraph 11 incorporates by
reference the covenants contained in Section 6.7(a) or 7 of this
Agreement) or (ii) an Event of Default (as defined in any Mortgage)
shall have occurred; or
(d) The Company or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of 30 days after the earlier of
(i) the date on which a senior officer of Holdings or the Company
first knew of such default or (ii) the date on which written notice
thereof shall have been given to the Company by the Administrative
Agent or the Required Lenders; or
(e) (i) Holdings, the Company or any of its Subsidiaries shall
(x) default in any payment when due of principal of or interest on
any Indebtedness (including, without limitation, any Indebtedness
constituting a Guarantee Obligation, but excluding the Loans); or
(y) default in the observance or performance of any other agreement
or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto,
or any other event shall occur or condition exist, the effect of
which default or other event or condition is to cause, or to permit
one or more holders or beneficiaries of such Indebtedness (or a
trustee or agent on its or their behalf) to cause, such
Indebtedness to become due prior to its stated maturity or (in the
case of any such Indebtedness constituting a Guarantee Obligation)
to become payable; provided, however, that a default, event or
condition described in subclause (x) or (y) of this clause (i)
shall not constitute an Event of Default under this Agreement
unless, at the time of such default, defaults, events or conditions
of the type described in subclauses (x) and (y) of this clause (i)
shall have occurred and be continuing with respect to Indebtedness
the outstanding principal amount of which exceeds in the aggregate
$5,000,000; or (ii) any event shall occur or condition exist that
either (x) permits a notice of termination, a notice of winddown or
any comparable notice to be given under the Permitted Receivables
Facility or (y) results in an automatic termination, winddown or
comparable event with respect to the Permitted Receivables
Facility; or
(f) (i) Holdings, the Company or any Material Subsidiary shall
commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign,
relating to
bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian
or other similar official for it or for all or any substantial part
of its assets, or Holdings, the Company or any Material Subsidiary
shall make a general assignment for the benefit of its creditors;
or (ii) there shall be commenced against Holdings, the Company or
any Material Subsidiary any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the
entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded
for a period of 60 days; or (iii) there shall be commenced against
Holdings, the Company or any Material Subsidiary any case,
proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or
any substantial part of its assets which results in the entry of an
order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from
the entry thereof; or (iv) Holdings, the Company or any Material
Subsidiary shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts
set forth in clause (i), (ii), or (iii) above; or (v) Holdings, the
Company or any Material Subsidiary shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (ii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan, (iii) a Reportable
Event shall occur with respect to, or proceedings shall commence to
have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders,
likely to result in the termination of such Plan for purposes of
Title IV of ERISA, (iv) any Single Employer Plan shall terminate
for purposes of Title IV of ERISA, (v) the Company or any Commonly
Controlled Entity shall, or in the reasonable opinion of the
Required Lenders is likely to, incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur
or exist with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all
other such events or conditions, if any, could, in the judgment of
the Required Lenders, have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
Holdings, the Company or any of its Subsidiaries involving in the
aggregate a liability (not paid or fully covered by insurance as to
which the relevant insurance company has not disputed coverage) of
$5,000,000 or more and (i) all such judgments or decrees shall not
have been vacated, discharged, stayed or bonded pending appeal
within 30 days from the entry thereof or (ii) enforcement
proceedings shall have been commenced by any creditor upon such
judgment or order; or
(i) Any Security Document shall, at any time, cease to be in
full force and effect or shall be declared null and void, or the
validity or enforceability thereof shall be contested by any Loan
Party, or any of the Liens intended to be created by any Security
Document shall cease to be or shall not be a valid and perfected
Lien having the priority contemplated thereby, or the Subsidiary
Guarantee or the guarantee contained in Section 10 shall cease for
any reason to be in full force and effect or any Loan Party shall
so assert in writing; or
(j) (i) any Person or group (within the meaning of Rule 13d-5
of the Securities and Exchange Commission), other than any Person
or group consisting solely of one or more members of the Bessemer
Group and directors, officers or employees (or former directors,
officers or employees) of Holdings or any of its Subsidiaries,
shall, directly or indirectly, have the power to vote or direct the
voting of securities representing more than 35% of the ordinary
voting power for the election of directors of Holdings; (ii) any
Person or group, other than any Person or group consisting solely
of members of the Bessemer Group and directors, officers or
employees (or former directors, officers or employees) of Holdings
or any of its
Subsidiaries, shall have acquired, by contract or otherwise, the
power to exercise directly or indirectly a controlling influence
over the management or policies of Holdings; (iii) Holdings shall
cease to own and control, of record and beneficially, directly,
100% of each class of outstanding Capital Stock of the Company free
and clear of all Liens (except Liens created by the Holdings Pledge
Agreement); (iv) the Company shall issue any Capital Stock (or any
security convertible into any of its Capital Stock) that is not
pledged to the Administrative Agent for the benefit of the Lenders;
or (v) at any time that any Senior Notes are outstanding, a "Change
of Control" (as defined in the Senior Note Indenture) shall occur;
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above with respect to
the Company, automatically the Revolving Credit Commitments shall
immediately terminate and the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement (including,
without limitation, all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) shall immediately become
due and payable, (B) if such event is an Event of Default specified in
clause (i) or (ii) of paragraph (f) above with respect to any Subsidiary
Borrower, automatically the Fronted Loans made to such Subsidiary
Borrower (with accrued interest thereon) and all other amounts owing
under this Agreement by such Subsidiary Borrower shall immediately
become due and payable and (C) if such event is an Event of Default not
described in clause (A) above, either or both of the following actions
may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders,
the Administrative Agent shall, by notice to the Company declare the
Revolving Credit Commitments to be terminated forthwith, whereupon the
Revolving Credit Commitments shall immediately terminate; and (ii) with
the consent of the Required Lenders, the Administrative Agent may, or
upon the request of the Required Lenders, the Administrative Agent
shall, by notice of default to the Company, declare the Loans hereunder
(with accrued interest thereon) and all other amounts owing under this
Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding
Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable.
With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an
acceleration pursuant to the preceding paragraph, the Company shall at
such time deposit in a cash collateral account opened by the
Administrative Agent an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the
payment of drafts drawn under such Letters of Credit, and the unused
portion thereof after all such Letters of Credit shall have expired or
been fully drawn upon, if any, shall be applied to repay other
Obligations of the Company. After all such Letters of Credit shall have
expired or been fully drawn upon, all Reimbursement Obligations shall
have been satisfied and all other Obligations of the Company shall have
been paid in full, the balance, if any, in such cash collateral account
shall be returned to the Company.
Except as expressly provided above in this Section 8, presentment,
demand, protest and all other notices of any kind are hereby expressly
waived.
SECTION 9. THE ADMINISTRATIVE AGENT
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such
action on its behalf under the provisions of this Agreement and the
other Loan Documents and to exercise such powers and perform such duties
as are expressly delegated to the Administrative Agent by the terms of
this Agreement and the other Loan Documents, together with such other
powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or
any other Loan Document or otherwise exist against the Administrative
Agent.
9.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
9.3 Exculpatory Provisions. Neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted
to be taken by it or such Person under or in connection with this
Agreement or any other Loan Document (except for its or such Person's
own gross negligence or willful misconduct) or (ii) responsible in any
manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Company or any other Loan
Party or any officer thereof contained in this Agreement or any other
Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Agreement or any other Loan Document
or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document or for any
failure of the Company or any other Loan Party to perform its
obligations hereunder or thereunder. The Administrative Agent shall not
be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of the Company or any other Loan Party.
9.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon
any writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Company), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to
take any action under this Agreement or any other Loan Document unless
it shall first receive such advice or concurrence of the Required
Lenders (except as otherwise expressly provided in Section 11.1) as it
deems appropriate or it shall first be indemnified to its satisfaction
by the Lenders against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement and the
other Loan Documents in accordance with a request of the Required
Lenders (except as otherwise expressly provided in Section 11.1), and
such request and any action taken or failure to act pursuant thereto
shall be binding upon all the Lenders and all future holders of the
Loans.
9.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default unless the Administrative Agent has received notice from a
Lender or the Company referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give notice thereof to the
Lenders. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the
Required Lenders (except as otherwise expressly provided in Section
11.1); provided that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
9.6 Non-Reliance on Administrative Agent and Other Lenders. Each
Lender expressly acknowledges that neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no
act by the Administrative Agent hereafter taken, including any review of
the affairs of the Company or any other Loan Party, shall be deemed to
constitute any representation or warranty by the Administrative Agent to
any Lender. Each Lender represents to the Administrative Agent that it
has, independently and without reliance upon the Administrative Agent or
any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the
Company and the other Loan Parties and made its own decision to make its
Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not
taking action under this Agreement and the other Loan Documents, and to
make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Company and the other Loan Parties. Except for
notices, reports and other documents expressly required to be furnished
to the Lenders by the Administrative Agent hereunder, the Administrative
Agent shall not have any duty or responsibility to provide any Lender
with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of the Company or any other Loan Party which may come
into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
9.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not
reimbursed by the Company and without limiting the obligation of the
Company to do so), ratably according to the respective amounts of their
Revolving Credit Commitments or, if the Revolving Credit Commitments
have terminated, ratably according to the respective amounts of their
Loans, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including,
without limitation, at any time following the payment of the Loans) be
imposed on, incurred by or asserted against the Administrative Agent in
any way relating to or arising out of this Agreement, any of the other
Loan Documents or any documents contemplated hereby or thereby or
referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Administrative Agent under
or in connection with any of the foregoing; provided that no Lender
shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the
Administrative Agent's gross negligence or willful misconduct. The
agreements in this Section shall survive the payment of the Loans and
all other amounts payable hereunder.
9.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the
Company as though the Administrative Agent were not the Administrative
Agent hereunder and under the other Loan Documents. With respect to its
Loans made or renewed by it and any Letter of Credit issued or
participated in by it, the Administrative Agent shall have the same
rights and powers under this Agreement and the other Loan Documents as
any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include
the Administrative Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Lenders. If
the Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall be approved by the Company (which approval shall
not be unreasonably withheld), whereupon such successor agent shall
succeed to the rights, powers and duties of the Administrative Agent,
and the term "Administrative Agent" shall mean such successor agent
effective upon its appointment, and the former Administrative Agent's
rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this Section
shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement and
the other Loan Documents.
9.10 Co-Lead Agent and Co-Agents. Neither the Co-Lead Agent nor any
Co-Agent in its capacity as such shall have any rights, duties or
responsibilities hereunder, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or
otherwise exist against the Co-Lead Agent or any Co-Agent in its
capacity as such.
SECTION 10. GUARANTEE
10.1 Guarantee. In order to induce the Administrative Agent and the
Lenders to execute and deliver this Agreement and to make or maintain
the Loans hereunder, and in consideration thereof, each Parent
Guarantor, jointly and severally, hereby unconditionally and irrevocably
guarantees to the Administrative Agent, for the ratable benefit of the
Lenders, the prompt and complete payment and performance by the
Borrowers when due (whether at stated maturity, by acceleration or
otherwise) of the Obligations, and each Parent Guarantor further agrees
to pay any and all expenses (including, without limitation, all
reasonable fees, charges and disbursements of counsel) which may be paid
or incurred by the Administrative Agent or by the Lenders in enforcing,
or obtaining advice of counsel in respect of, any of their rights under
the guarantee contained in this Section 10. The guarantee contained in
this Section 10, subject to Section 10.5, shall remain in full force and
effect until the Obligations are paid in full, the Revolving Credit
Commitments are terminated and no Letters of Credit are outstanding,
notwithstanding that from time to time prior thereto any Borrower may be
free from any Obligations.
Each Parent Guarantor agrees that whenever, at any time, or from
time to time, it shall make any payment to the Administrative Agent or
any Lender on account of its liability under this Section 10, it will
notify the Administrative Agent and such Lender in writing that such
payment is made under the guarantee contained in this Section 10 for
such purpose. No payment or payments made by any Borrower or any other
Person or received or collected by the Administrative Agent or any
Lender from any Borrower or any other Person by virtue of any action or
proceeding or any setoff or appropriation or application, at any time or
from time to time, in reduction of or in payment of the Obligations
shall be deemed to modify, reduce, release or otherwise affect the
liability of either Parent Guarantor under this Section 10 which,
notwithstanding any such payment or payments, shall remain liable for
the Obligations until, subject to Section 10.5, the Obligations are paid
in full, the Revolving Credit Commitments are terminated and no Letters
of Credit are outstanding.
10.2 No Subrogation, Contribution, Reimbursement or Indemnity.
Notwithstanding anything to the contrary in this Section 10, each Parent
Guarantor hereby irrevocably waives all rights which may have arisen in
connection with the guarantee contained in this Section 10 to be
subrogated to any of the rights (whether contractual, under the
Bankruptcy Code, including Section 509 thereof, under common law or
otherwise) of the Administrative Agent or any Lender against any
Borrower or against the Administrative Agent or any Lender for the
payment of the Obligations, until the Obligations have been paid in full
and the Revolving Credit Commitments have been terminated. Each Parent
Guarantor hereby further irrevocably waives all contractual, common law,
statutory and other rights of reimbursement, contribution, exoneration
or indemnity (or any similar right) from or against any Borrower or any
other Person which may have arisen in connection with the guarantee
contained in this Section 10, until the Obligations have been paid in
full and the Revolving Credit Commitments have been terminated. So long
as the Obligations remain outstanding, if any amount shall be paid by or
on behalf of any Borrower to either Parent Guarantor on account of any
of the rights waived in this Section 10.2, such amount shall be held by
such Parent Guarantor in trust, segregated from other funds of such
Parent Guarantor, and shall, forthwith upon receipt by such Parent
Guarantor, be turned over to the Administrative Agent in the exact form
received by such Parent Guarantor (duly indorsed by such Parent
Guarantor to the Administrative Agent, if required), to be applied
against the Obligations, whether matured or unmatured, in such order as
the Administrative Agent may determine. The provisions of this Section
10.2 shall survive the term of the guarantee contained in this Section
10 and the payment in full of the Obligations and the termination of the
Revolving Credit Commitments.
10.3 Amendments, etc. with respect to the Obligations. Each Parent
Guarantor shall remain obligated under this Section 10 notwithstanding
that, without any reservation of rights against either Parent Guarantor,
and without notice to or further assent by either Parent Guarantor, any
demand for payment of or reduction in the principal amount of any of the
Obligations made by the Administrative Agent or any Lender may be
rescinded by the Administrative Agent or such Lender, and any of the
Obligations continued, and the Obligations, or the liability of any
other party upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from
time to time, in whole or in part, be renewed, extended, amended,
modified, accelerated, compromised, waived, surrendered or released by
the Administrative Agent or any Lender, and this
Agreement, any other Loan Document, and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented
or terminated, in whole or in part, as the Lenders (or the Required
Lenders, as the case may be) may deem advisable from time to time, and
any collateral security, guarantee or right of offset at any time held
by the Administrative Agent or any Lender for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released.
Neither the Administrative Agent nor any Lender shall have any
obligation to protect, secure, perfect or insure any Lien at any time
held by it as security for the Obligations or for the guarantee
contained in this Section 10 or any property subject thereto.
10.4 Guarantee Absolute and Unconditional. Each Parent Guarantor
waives any and all notice of the creation, renewal, extension or accrual
of any of the Obligations and notice of or proof of reliance by the
Administrative Agent or any Lender upon the guarantee contained in this
Section 10 or acceptance of the guarantee contained in this Section 10;
the Obligations, and any of them, shall conclusively be deemed to have
been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon the guarantee contained in this Section 10; and
all dealings between the Borrowers or the Parent Guarantors, on the one
hand, and the Administrative Agent and the Lenders, on the other, shall
likewise be conclusively presumed to have been had or consummated in
reliance upon the guarantee contained in this Section 10. Each Parent
Guarantor waives diligence, presentment, protest, demand for payment and
notice of default or nonpayment to or upon any Borrower or either Parent
Guarantor with respect to the Obligations. The guarantee contained in
this Section 10 shall be construed as a continuing, absolute,
irrevocable and unconditional guarantee of payment without regard to (a)
the validity or enforceability of this Agreement or any other Loan
Document, any of the Obligations or any collateral security therefor or
guarantee or right of offset with respect thereto at any time or from
time to time held by the Administrative Agent or any Lender, (b) any
defense, setoff or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by any
Borrower against the Administrative Agent or any Lender, or (c) any
other circumstance whatsoever (with or without notice to or knowledge of
any Borrower or either Parent Guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of any Borrower
for the Obligations, or of either Parent Guarantor under the guarantee
contained in this Section 10, in bankruptcy or in any other instance.
When the Administrative Agent or any Lender is pursuing its rights and
remedies under this Section 10 against either Parent Guarantor, the
Administrative Agent or any Lender may, but shall be under no obligation
to, pursue such rights and remedies as it may have against any Borrower
or any other Person or against any collateral security or guarantee for
the Obligations or any right of offset with respect thereto, and any
failure by the Administrative Agent or any Lender to pursue such other
rights or remedies or to collect any payments from any Borrower or any
such other Person or to realize upon any such collateral security or
guarantee or to exercise any such right of offset, or any release of any
Borrower or any such other Person or of any such collateral security,
guarantee or right of offset, shall not relieve either Parent Guarantor
of any liability under this Section 10, and shall not impair or affect
the rights and remedies, whether express, implied or available as a
matter of law, of the Administrative Agent and the Lenders against
either Parent Guarantor.
10.5 Reinstatement. The guarantee contained in this Section 10
shall continue to be effective, or be reinstated, as the case may be, if
at any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the
Administrative Agent or any Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of any Borrower or upon or as
a result of the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for, any Borrower or any substantial part
of its property, or otherwise, all as though such payments had not been
made.
10.6 Payments. Each Parent Guarantor hereby agrees that any
payments in respect of the Obligations pursuant to this Section 10 will
be paid to the Administrative Agent without setoff or counterclaim in
Dollars at the office of the Administrative Agent specified in Section
11.2.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented
or modified except in accordance with the provisions of this Section.
With the written consent of the Required Lenders, the Administrative
Agent and each Loan Party party to the relevant Loan Document may, from
time to time, enter into written amendments, supplements or
modifications hereto and to the other Loan Documents for the purpose of
adding any provisions to this Agreement or the other Loan Documents or
changing in any manner the rights of the Lenders or of the Company or
the other Loan Parties hereunder or thereunder or waiving, on such terms
and conditions as the Administrative Agent may specify in such
instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences;
provided, that no such waiver and no such amendment, supplement or
modification shall directly (a) (i) release all or substantially all of
the Collateral or release all or substantially all of the Subsidiary
Guarantors from their obligations under the Subsidiary Guarantee
(except, in each case, in connection with any sale or other disposition
of assets expressly permitted by Section 7.6) or (ii) amend, modify or
waive any provision of Section 8(j) without the written consent of the
Supermajority Lenders; (b) forgive the principal amount or extend the
final stated maturity of any Loan, or reduce the stated rate of interest
on any Loan or extend the scheduled time of payment of interest thereon,
or reduce any fee or letter of credit commission payable to any Lender
hereunder, or release any Borrower from its obligation to repay any of
the amounts described in this clause (b), or increase the amount of any
Lender's Revolving Credit Commitment, in each case without the written
consent of each Lender directly affected thereby; (c) so long as the
covenants contained in Section 7.1(a) or 7.1(b) are incorporated by
reference in the Capital Lease Financing Facility, amend, modify or
waive any provision of Section 7.1(a) or 7.1(b), as the case may be,
without the written consent of the Specified Required Lenders; (d)
amend, modify or waive any provision of this Section 11.1 or reduce the
percentage specified in the definition of Required Lenders, Specified
Required Lenders or Supermajority Lenders, or consent to the assignment
or transfer by Holdings or the Company of any of its rights and
obligations under this Agreement and the other Loan Documents (except,
in the case of Holdings, as expressly contemplated by Section 7.5(c)),
in each case without the written consent of all the Lenders; (e) amend,
modify or waive any provision of Section 3 without the written consent
of the Issuing Lender; (f) amend, modify or waive any provision of
Section 9 without the written consent of the then Administrative Agent;
or (g) amend, modify or waive any provision of Section 2A or any other
provision of this Agreement relating to Fronted Loans without the
written consent of each Fronting Lender directly affected thereby. Any
such waiver and any such amendment, supplement or modification shall
apply equally to each of the Lenders and shall be binding upon the
Company, the other Loan Parties, the Lenders, the Administrative Agent
and all future holders of the Loans. In the case of any waiver, the
Company, the other Loan Parties, the Lenders and the Administrative
Agent shall be restored to their former position and rights hereunder
and under the other Loan Documents, and any Default or Event of Default
waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.
11.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including
by telecopy, telegraph or telex), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when
delivered by hand, or three days after being deposited in the mail,
postage prepaid, or, in the case of telecopy notice, when received, or,
in the case of telegraphic notice, when delivered to the telegraph
company, or, in the case of telex notice, when sent, answerback
received, addressed as follows in the case of Holdings, the Company and
the Administrative Agent, as set forth in the relevant Fronting Lender
Addendum in the case of Fronting Lenders, as set forth in the relevant
Borrowing Subsidiary Agreement in the case of Subsidiary Borrowers, and
as set forth in the administrative questionnaire delivered to the
Administrative Agent on or prior to the Effective Date in the case of
the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto and any future holders of the
Loans:
Holdings: Essex International Inc.
0000 Xxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telecopy: 000-000-0000
with copies to: Essex Group, Inc. (at the address set forth below)
and Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx, Esq.
Telecopy: 212-474-3700
The Company: Essex Group, Inc.
0000 Xxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telecopy: 000-000-0000
with copies to: Essex International Inc. (at
the address set forth above)
and Cravath, Swaine & Xxxxx (at
the address set forth above)
The Administrative
Agent: The Chase Manhattan Bank
c/o Chase Securities Inc.
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Telecopy: 000-000-0000
with copies to: The Chase Manhattan Bank
c/o Loan and Agency Services Group
One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopy: 000-000-0000
provided that any notice, request or demand to or upon the
Administrative Agent or the Lenders pursuant to Section 2.2, 2.2A, 2.3,
2.6, 2.7, 2.9, 2.11 or 3.2 shall not be effective until received.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
11.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, under the other Loan
Documents and in any document, certificate or statement delivered
pursuant hereto or thereto
or in connection herewith or therewith shall survive the execution and
delivery of this Agreement and the other Loan Documents.
11.5 Payment of Expenses and Taxes. The Company agrees (a) to pay
or reimburse the Administrative Agent for all its out-of-pocket costs
and expenses and internally allocated charges and reasonable fees
incurred in connection with the development, preparation and execution
of this Agreement and the other Loan Documents and any other documents
prepared in connection herewith or therewith, the consummation and
administration of the transactions contemplated hereby and thereby and
the syndication of the credit facilities contained herein, including,
without limitation, the reasonable fees, charges and disbursements of
counsel (including any local or special counsel) to the Administrative
Agent and of any professionals or consultants acting on behalf of the
Administrative Agent in connection with any audit or other review of the
business, assets or financial condition of the Loan Parties (including
any examination of Collateral), (b) to pay or reimburse the
Administrative Agent for all its reasonable costs and expenses incurred
in connection with any amendment, supplement or other modification to
this Agreement, any other Loan Documents or any other documents prepared
in connection herewith or therewith, including, without limitation,
reasonable fees, charges and disbursements of counsel to the
Administrative Agent, (c) to pay or reimburse each Lender and the
Administrative Agent for all its reasonable costs and expenses incurred
in connection with the enforcement or preservation of any rights under
this Agreement, the other Loan Documents, the Letters of Credit, and any
other documents prepared in connection herewith or therewith, including,
without limitation, reasonable fees, charges and disbursements of
counsel to the Administrative Agent and to each Lender (including the
reasonable allocated costs of in-house counsel for any Lender), (d) to
pay, indemnify each Lender and the Administrative Agent against, and
hold each Lender and the Administrative Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to,
or resulting from any delay in paying, stamp, excise and other taxes, if
any, which may be payable or determined to be payable in connection with
the execution and delivery of, or consummation or administration of any
of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement, the other Loan Documents and any other documents prepared in
connection herewith or therewith, and (e) to pay, and indemnify and hold
harmless each Lender and the Administrative Agent and their respective
officers, directors, employees, affiliates, agents and controlling
persons (each, an "indemnitee") from and against, any and all other
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses, charges and disbursements of any kind
or nature whatsoever (including, without limitation, reasonable fees,
charges and disbursements of counsel to such indemnitee) with respect to
the execution, delivery, enforcement, performance and administration of
this Agreement, the other Loan Documents and any such other documents,
or the use of the proceeds of the Loans or the loans made pursuant to
the Existing Credit Agreement, or any claim, litigation, investigation
or proceeding relating to any of the foregoing, regardless of whether
any indemnitee is a party thereto or whether any such claim, litigation,
investigation or proceeding is brought by the Company or by any other
Person, and to reimburse each indemnitee upon demand for any legal or
other reasonable expenses incurred in connection with investigating or
defending any of the foregoing (all the foregoing, collectively, the
"indemnified liabilities"); provided that the Company shall have no
obligation hereunder to any indemnitee with respect to indemnified
liabilities to the extent such indemnified liabilities are found by a
final and nonappealable decision of a court of competent jurisdiction to
have resulted primarily from the gross negligence or willful misconduct
of such indemnitee. The agreements in this Section shall survive
repayment of the Loans and all other amounts payable hereunder.
11.6 Successors and Assigns; Assignments and Participations. (a)
This Agreement shall be binding upon and inure to the benefit of
Holdings, the Company, the Subsidiary Borrowers, the Lenders, the
Administrative Agent, all future holders of the Loans, and their
respective successors and assigns, except that neither Holdings nor the
Company may assign or transfer any of its rights or obligations under
this Agreement (except, in the case of Holdings, as expressly
contemplated by Section 7.5(c)) without the prior written consent of
each Lender.
(b) Each Lender may, with the prior consent of the Company, the
Issuing Lender and the Administrative Agent (such consent not to be
unreasonably withheld but in the case of the Company it shall be deemed
reasonable for the Company to withhold its consent if as a result of any
assignment (x) the total number of Lenders would be
greater than 20 or (y) the Company would be required to pay any
additional amounts pursuant to Section 2.15 or 2.16), assign to one or
more banks or other entities all or a portion of its rights and
obligations under this Agreement and the other Loan Documents
(including, without limitation, all or a portion of its Revolving Credit
Commitment and the Loans owing to it); provided, however, that (i) in
the case of each assignment of a Revolving Credit Commitment, except in
the case of an assignment of all of a Lender's Revolving Credit
Commitment, (x) the amount of the Revolving Credit 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 or such
lesser amount as the Company may consent to and (y) after giving effect
to each such assignment, the amount of the Revolving Credit Commitment
of the assigning Lender shall in no event be less than $5,000,000, 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 and pay to the Administrative
Agent a processing and recordation fee of $4,000. Upon such execution,
delivery, acceptance and recording, from and after the effective date
specified in such Assignment and Acceptance, (x) 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 hereunder and
(y) the Lender 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 rights and obligations under this Agreement, such Lender shall
cease to be a party hereto). Upon the effectiveness of any Assignment
and Acceptance, Schedule 1.1A shall be deemed amended to reflect the
identities and Revolving Credit Commitments of the Lenders after giving
effect thereto.
(c) By executing and delivering an Assignment and Acceptance, the
Lender 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 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, the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto, or the
execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto; (ii) such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company or
any other Loan Party or the performance or observance by the Company or
any other Loan Party of any of its obligations under this Agreement, the
other Loan Documents or any other instrument or document furnished
pursuant hereto or 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 4.1 and such other documents and
information as it has deemed appropriate 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 or any other Lender and
based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not
taking action under this Agreement, the other Loan Documents or any
other instrument or document furnished pursuant hereto or thereto; (v)
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, the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative Agent by the terms hereof or thereof,
together with such powers and discretion as are reasonably incidental
thereto; and (vi) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of
this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, on behalf of the Company, shall
maintain at the address of the Administrative Agent referred to in
Section 11.2 a copy of each Assignment and Acceptance delivered to it
and a register (the "Register") for the recordation of the names and
addresses of the Lenders and the Revolving Credit Commitment of, and
principal amount of the Loans owing to, each Lender from time to time.
The entries in the Register shall be conclusive, in the absence of
manifest error, and the Company, the Administrative Agent and the
Lenders shall treat each Person whose name is recorded in the Register
as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Loan Documents,
notwithstanding
any notice to the contrary. Any assignment of any Loan or other
obligation hereunder shall be effective only upon appropriate entries
with respect thereto being made in the Register. The Register shall be
available for inspection by the Company or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance accepted by an
assigning Lender and an assignee, the Administrative Agent shall, if
such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit I, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Company.
(f) Each Lender may sell participations to one or more banks or
other entities (each, a "Participant") in all or a portion of its rights
and obligations under this Agreement (including, without limitation, all
or a portion of its Revolving Credit Commitment and the Loans owing to
it); provided, however, that (i) such Lender's obligations under this
Agreement (including, without limitation, its Revolving Credit
Commitment to the Company hereunder) shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) for purposes of Section 2.16,
such Lender shall continue to be treated as if it had not sold any such
participation, such that no Participant shall have any right to any
indemnity or additional payment under such Section, and such Lender
shall be entitled to receive additional payments pursuant to such
Section calculated on the assumption that it had not sold any such
participation, (iv) the Borrowers, the Administrative Agent and the
other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under
this Agreement and (v) no Participant under any such participation shall
have any right to approve any amendment or waiver of any provision of
any Loan Document, or any consent to any departure by any Loan Party
therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Loans or any fees
payable hereunder, in each case to the extent subject to such
participation, or postpone the date of the final maturity of, or any
date fixed for any payment of interest on, the Loans, in each case to
the extent subject to such participation.
(g) Each Borrower authorizes each Lender to disclose to any
Participant or assignee (each, a "Transferee") and any prospective
Transferee any and all financial information in such Lender's possession
concerning the Company and its Affiliates which has been delivered to
such Lender by or on behalf of any Borrower pursuant to this Agreement
or which has been delivered to such Lender by or on behalf of any
Borrower in connection with such Lender's credit evaluation of the
Company and its Affiliates prior to becoming a party to this Agreement;
provided, that, unless the Administrative Agent and the Company shall
otherwise agree, prior to any such disclosure such Transferee shall have
executed a Confidentiality Letter in the form of Exhibit L.
(h) Nothing herein shall prohibit any Lender from pledging or
assigning all or any portion of its Loans to any Federal Reserve Bank in
accordance with applicable law. In order to facilitate such pledge or
assignment, the Company hereby agrees that, upon request of any Lender
at any time and from time to time, the Company shall provide to such
Lender, at the Company's own expense, a promissory note, in form and
substance reasonably satisfactory to the Company, evidencing the Loans
so pledged or assigned Lender.
(i) If, after the date that any Lender becomes a Lender, the
long-term certificate of deposit rating of such Lender shall be
downgraded by both Standard & Poor's Ratings Services ("S&P") and
Xxxxx'x Investors Service, Inc. ("Moody's") (or, in the case of any
Lender which is not so rated by both S&P and Moody's on the date on
which it becomes a Lender, by Xxxxxxxx'x BankWatch and, if applicable,
S&P or Moody's), and as a result of such downgrade such Lender shall be
rated below BBB- by S&P and below Baa3 by Moody's, or the equivalent
(or, in the case of any Lender which is not so rated by both S&P and
Moody's on the date on which it becomes a Lender, below C by Xxxxxxxx'x
BankWatch and, if applicable, below BBB- by S&P or below Baa3 by
Moody's, or the equivalent), then the Issuing Lender shall have the
right, but not the obligation, at its own expense, upon notice to such
Lender and the Administrative Agent, to replace (or to request that the
Company use its reasonable efforts to replace) such Lender with an
assignee (in accordance with and subject to the restrictions contained
in Section 11.6(b)), and such Lender hereby agrees to transfer and
assign without recourse (in accordance with and subject to the
restrictions contained in Section 11.6(b)) all its interests, rights and
obligations hereunder to such assignee; provided, that (i) no such
assignment shall conflict with any Requirement of Law of any
Governmental
Authority and (ii) the Issuing Lender or such assignee, as the case may
be, shall pay to such Lender in immediately available funds on the date
of such assignment the principal of and interest accrued to the date of
payment of the Loans made by such Lender hereunder and all other amounts
accrued for such Lender's account or owed to it hereunder.
11.7 Adjustments; Setoff.
(a) Except to the extent that this Agreement provides for payments
to be allocated to Revolving Credit Loans, Competitive Loans or Fronted
Loans, as the case may be, if any Lender (a "benefitted Lender") shall
at any time receive any payment of all or part of any category of its
Loans, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by setoff, pursuant to events or
proceedings of the nature referred to in Section 8(f), or otherwise), in
a greater proportion than any such payment to or collateral received by
any other Lender, if any, in respect of such other Lender's Loans, or
interest thereon, such benefitted Lender shall purchase for cash from
the other Lenders such portion of each such other Lender's Loans, or
shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such benefitted Lender, such purchase shall
be rescinded, and the purchase price and benefits returned, to the
extent of such recovery, but without interest. Each Borrower agrees that
each Lender so purchasing a portion of another Lender's Loans may
exercise all rights of payment (including, without limitation, rights of
setoff) with respect to such portion as fully as if such Lender were the
direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided
by law, upon the occurrence and during the continuance of an Event of
Default, each Lender shall have the right, without prior notice to
Holdings or any Borrower, any such notice being expressly waived by
Holdings and each Borrower to the extent permitted by applicable law,
upon any amount becoming due and payable by Holdings or any Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise)
to set off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in
any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such
Lender or any branch or agency thereof to or for the credit or the
account of Holdings or any Borrower. Each Lender agrees promptly to
notify Holdings, the Company and the Administrative Agent after any such
setoff and application made by such Lender; provided that the failure to
give such notice shall not affect the validity of such setoff and
application.
11.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Company and
the Administrative Agent.
11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
11.10 Releases. Each Lender hereby authorizes the Administrative
Agent to execute such releases and termination statements as may be
reasonably requested by the Company in connection with the incurrence of
any Lien expressly permitted by Section 7.3 (as said Section may be
amended from time to time in accordance with Section 11.1), including,
without limitation, releases of accounts receivable sold by the Company
or any of its Subsidiaries pursuant to the Permitted Receivables
Facility.
11.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
11.12 Submission To Jurisdiction; Waivers. Each of Holdings and
each Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents
to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of
the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected (i) in the case of Holdings and the
Company, by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to
Holdings or the Company, as the case may be, at its address set
forth in Section 11.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto or
(ii) in the case of each Subsidiary Borrower, by mailing a copy
thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to either (x) its address
referred to in Section 11.2 or (y) an agent for service of process
acceptable to the Administrative Agent and appointed at the
Company's expense concurrently with such Subsidiary becoming a
Subsidiary Borrower;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or
proceeding referred to in this Section 11.12 any special,
exemplary, punitive or consequential damages.
11.13 Acknowledgements. Each of Holdings and each Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan
Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship to Holdings or any Borrower, and the
relationship between Administrative Agent and Lenders, on one hand,
and Holdings and the Borrowers, on the other hand, is solely that
of creditor and debtor; and
(c) no joint venture exists among the Lenders or among
Holdings, the Borrowers and the Lenders.
11.14 WAIVERS OF JURY TRIAL. HOLDINGS, EACH BORROWER, THE
ADMINISTRATIVE AGENT AND EACH OF THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
11.15 Confidentiality. Neither the Administrative Agent nor any
Lender shall disclose any Confidential Information to any Person without
the prior consent of the Company, other than (a) to the Administrative
Agent's or such Lender's affiliates and their officers, directors,
employees, agents and advisors, (b) to actual or prospective assignees
and participants, and then only on a confidential basis as contemplated
in Section 11.6(g) and
upon the prior delivery of the confidentiality letter contemplated
therein, (c) as required by any law, rule or regulation or judicial
process and (d) as requested or required by any state, federal or
foreign authority or examiner regulating or having jurisdiction over the
Administrative Agent or any Lender.
11.16 New Lenders; Commitment Increases. (a) With the consent of
the Company and the Administrative Agent (which, in the case of the
Administrative Agent, shall not be unreasonably withheld), (i) one or
more additional banks or other financial institutions may become a party
to this Agreement by executing a supplement hereto, in form and
substance satisfactory to such bank or other financial institution, the
Company and the Administrative Agent, whereupon such bank or other
financial institution (herein called a "New Lender") shall become a
Lender for all purposes hereof and to the same extent as if originally a
party hereto and shall be bound by and entitled to the benefits of this
Agreement, and Schedule 1.1A hereto shall be deemed to be amended to add
the name, address and Revolving Credit Commitment of such New Lender and
(ii) any Lender may increase the amount of its Revolving Credit
Commitment by executing a supplement hereto, in form and substance
satisfactory to such Lender, the Company and the Administrative Agent,
whereupon such Lender shall be bound by and entitled to the benefits of
this Agreement with respect to the full amount of its Revolving Credit
Commitment as so increased, and Schedule 1.1A hereto shall be deemed to
be amended to reflect such increase in the Revolving Credit Commitment
of such Lender. In no event may the aggregate Revolving Credit
Commitments be increased above $400,000,000 pursuant to any supplement
described in this Section 11.16(a).
(b) If on the date upon which a bank or other financial institution
becomes a New Lender or upon which a Lender's Revolving Credit
Commitment is changed pursuant to Section 11.16(a), any Revolving Credit
Loans are then outstanding, the Company shall borrow Revolving Credit
Loans from such Lender in an amount such that, after giving effect
thereto, the quotient of (x) the Revolving Credit Loans of such Lender
of each Type (and, in the case of Eurodollar Revolving Credit Loans, of
each Eurodollar Tranche) and (y) such Lender's Revolving Credit
Commitment is equal to the comparable quotient of each other Lender. Any
Eurodollar Revolving Credit Loans borrowed pursuant to the preceding
sentence shall bear interest at a rate equal to the respective interest
rates then applicable to the Eurodollar Revolving Credit Loans of the
other Lenders in the same Eurodollar Tranche or such other rate as may
be agreed upon by the Company and such Lender.
11.17 Judgment Currency. (a) The obligations of each Borrower
hereunder and under the other Loan Documents to make payments in a
specified currency (the "Obligation Currency") shall not be discharged
or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation
Currency, except to the extent that such tender or recovery results in
the effective receipt by the Administrative Agent or a Lender of the
full amount of the Obligation Currency expressed to be payable to the
Administrative Agent or such Lender under this Agreement or the other
Loan Documents. If, for the purpose of obtaining or enforcing judgment
against any Loan Party in any court or in any jurisdiction, it becomes
necessary to convert into or from any currency other than the Obligation
Currency (such other currency being hereinafter referred to as the
"Judgment Currency") an amount due in the Obligation Currency, the
conversion shall be made, at the rate of exchange (as quoted by the
Administrative Agent or if the Administrative Agent does not quote a
rate of exchange on such currency, by a known dealer in such currency
designated by the Administrative Agent) determined, in each case, as of
the Business Day immediately preceding the date on which the judgment is
given (such Business Day being hereinafter referred to as the "Judgment
Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between
the Judgment Currency Conversion Date and the date of actual payment of
the amount due, each relevant Borrower agrees to pay, or cause to be
paid, such additional amounts, if any (but in any event not a lesser
amount), as may be necessary to ensure that the amount paid in the
Judgment Currency, when converted at the rate of exchange prevailing on
the date of payment, will produce the amount of the Obligation Currency
which could have been purchased with the amount of Judgment Currency
stipulated in the judgment or judicial award at the rate of exchange
prevailing on the Judgment Currency Conversion Date.
(c) For purposes of determining any rate of exchange or currency
equivalent for this Section, such amounts shall include any premium and
costs payable in connection with the purchase of the Obligation
Currency.
11.18 INTEGRATION. THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT
OF HOLDINGS, THE BORROWERS, THE ADMINISTRATIVE AGENT AND THE LENDERS
WITH RESPECT TO THE SUBJECT MATTER HEREOF, WHICH AGREEMENT MAY NOT BE
CONTRADICTED BY EVIDENCE OF ANY PRIOR OR CONTEMPORANEOUS ORAL AGREEMENT
BETWEEN OR AMONG ANY OF THE PARTIES HERETO, AND THERE ARE NO PROMISES,
UNDERTAKINGS, REPRESENTATIONS OR WARRANTIES BY THE ADMINISTRATIVE AGENT
OR ANY LENDER RELATIVE TO THE SUBJECT MATTER HEREOF NOT EXPRESSLY SET
FORTH OR REFERRED TO HEREIN OR IN THE OTHER LOAN DOCUMENTS.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered in New York, New York by their proper
and duly authorized officers as of the day and year first above written.
ESSEX INTERNATIONAL INC.
By: /s/ Xxxxx X. Xxxx
-----------------------
Name: Xxxxx X. Xxxx
Title: Executive Vice President,
Treasurer & CFO
ESSEX GROUP, INC.
By: /s/ Xxxxx X. Xxxx
------------------------
Name: Xxxxx X. Xxxx
Title: Executive Vice President & CFO
THE CHASE MANHATTAN BANK, as
Administrative Agent
By: /s/ Xxxxxxxx Xxxxxxx, Xx.
--------------------------
Name: Xxxxxxxx Xxxxxxx, Xx.
Title: Vice President
Schedule 1.1A
Lender Revolving Credit
Commitment
Bank of America National Trust and
Savings Association 30,000,000
Bank of Montreal 10,000,000
Credit Agricole 10,000,000
Comerica Bank 30,000,000
First Chicago NBD Bank 30,000,000
Fort Xxxxx National Bank 16,500,000
Key Bank 10,000,000
Mellon Bank, N.A. 22,000,000
National City Bank 16,500,000
NationsBank, N.A. 30,000,000
Norwest Bank Indiana, National Association 12,000,000
SunTrust Bank 16,500,000
The Bank of New York 30,000,000
The Bank of Nova Scotia 30,000,000
The Chase Manhattan Bank 30,000,000
The Long-Term Credit Bank of
Japan, Limited, New York Branch 30,000,000
US Bank, N.A. 16,500,000
Schedule 1.1B
Mortgaged Properties
Valuation Research
Appraised Value (1992)
0000 Xxxx Xxxxxx $ 10,930,000
Fort Xxxxx, IN
Xxxxx County
U.S. Highway 30 W. $ 10,510,000
Columbia City, IN
Xxxxxxx Xxxxxx
Xxxx Xxxxx Xxxxxx $ 1,130,000
Jonesboro, IN
Grant County
Xxxxxx Road $ 3,500,000
Vincennes, IN
Xxxx County
Franklin, IN $ 4,500,000
Xxxxxxx County
000 X. Xxxxxxxx Xx. $ 1,780,000
Kendallville, IN
Noble County
0000 X. Xxxx Xx. $ 2,580,000
Rockford, IL
Winnebago County
000 X. 00xx Xx. $ 810,000
Marion, IN
Xxxxx Xxxxxx
Xx. 00 xxx Xxxx Xxxxx Xx. $ 2,250,000
Pana, IL
Christian County
E. Union & US 52 $ 2,700,000
Lafayette, IN
Tippecanoe County
000 X. Xxxx Xx. $ 3,130,000
Orleans, IN
Xxxxxx County
000 Xxxx Xxxx $ 3,850,000
Chester, SC
Xxxxxxx County
Rt. 4 North $ 5,460,000
Xxxxxxxxxx, KS
Xxxxxx County
University & East St. $ 6,020,000
Xxxxxxx, KS
Shawnee County
1074 and 0000 Xxxx Xxxxxx $ 4,790,000
Anaheim, CA
Orange County
108 Elm $ 4,110,000
Tiffin, OH
Seneca County
0000 Xxxxxx Xx. $ 3,000,000
Lithonia, GA
DeKalb County
Schedule 1.3
European Economic and Monetary Union. (a) Definitions. In this
Schedule 1.3 and in each other provision of this Agreement in which any
term listed below is used, the terms listed below have the meanings set
forth below. Each reference to "this Agreement" in this Schedule 1.3
refers to the Credit Agreement to which this Schedule 1.3 is attached
(including this Schedule 1.3 as incorporated therein by reference) and,
to the extent applicable, each Fronting Lender Addendum.
"commencement of the third stage of EMU" means the date of
commencement of the third stage of EMU (at the date of this
Agreement expected to be January 1, 1999) or the date on which
circumstances arise which (in the opinion of the Administrative
Agent) have substantially the same effect and result in
substantially the same consequences as commencement of the third
stage of EMU as contemplated by the Treaty on European Union.
"EMU" means economic and monetary union as contemplated in the
Treaty on European Union.
"EMU legislation" means legislative measures of the European
Council for the introduction of, changeover to or operation of a
single or unified European currency (whether known as the euro or
otherwise), being in part the implementation of the third stage of
EMU.
"euro" means the single currency of participating member
states of the European Union.
"euro unit" means the currency unit of the euro.
"national currency unit" means the unit of currency (other
than a euro unit) of a participating member state.
"participating member state" means each state so described in
any EMU legislation.
"Treaty on European Union" means the Treaty of Rome of March
25, 1957, as amended by the Single Xxxxxxxx Xxx 0000 and the
Maastricht Treaty (which was signed at Maastricht on February 7,
1992, and came into force on November 1, 1993), as amended from
time to time.
(b) Effectiveness of Provisions. The provisions of paragraphs
(c) to (j) below (inclusive) shall be effective at and from the
commencement of the third stage of EMU, provided, that if and to the
extent that any such provision relates to any state (or the currency of
such state) that is not a participating member state on the commencement
of the third stage of EMU, such provision shall become effective in
relation to such state (and the currency of such state) at and from the
date on which such state becomes a participating member state.
(c) Redenomination and Alternative Currencies. Each obligation
under this Agreement of a party to this Agreement which has been
denominated in the national currency unit of a participating member
state shall be redenominated into the euro unit in accordance with EMU
legislation, provided, that if and to the extent that any EMU
legislation provides that following the commencement of the third stage
of EMU an amount denominated either in the euro or in the national
currency unit of a participating member state and payable within the
participating member state by crediting an account of the creditor can
be paid by the debtor either in the euro unit or in that national
currency unit, each relevant party to this Agreement shall be entitled
to pay or repay any such amount either in the euro unit or in such
national currency unit.
(d) Fronted Loans. Any Fronted Loan in the currency of a
participating member state shall be made in the euro unit.
(e) Business Days. With respect to any amount denominated or
to be denominated in the euro or a national currency unit, any reference
to a "Business Day" shall be construed as a reference to a day (other
than a Saturday or Sunday) on which banks are generally open for
business in London, New York City and such principal financial center or
centers in such participating member state or states as the relevant
Fronting Lender may from time to time nominate for this purpose.
(f) Payments to Fronting Lenders. In relation to the payment
of any amount of euro units or national currency units, such amount
shall be made available to the relevant Fronting Lender in immediately
available, freely transferable, cleared funds to such account with such
bank in such principal financial center in such participating member
state as such Fronting Lender may from time to time nominate for this
purpose.
(g) Payments by the Fronting Lenders Generally. With respect
to the payment of any amount denominated in the euro or in a national
currency unit, no Fronting Lender shall be liable to any Borrower in any
way whatsoever for any delay, or the consequences of any delay, in the
crediting to any account of any amount required by this Agreement to be
paid by such Fronting Lender if such Fronting Lender shall have taken
all relevant steps to achieve, on the date required by the Agreement,
the payment of such amount in immediately available, freely
transferable, cleared funds (in the euro unit or, as the case may be, in
a national currency unit) to the account with the bank in the principal
financial center in the participating member state which the relevant
Borrower shall have specified for such purpose. In this paragraph (g),
"all relevant steps" means all such steps as may be prescribed from time
to time by the regulations or operating procedures of such clearing or
settlement system as the relevant Fronting Lender may from time to time
determine for the purpose of clearing or settling payments of the euro.
(h) Basis of Accrual. If the basis of accrual of interest
expressed in this Agreement with respect to the currency of any state
that becomes a participating state shall be inconsistent with any
convention or practice in the relevant interbank market for the basis of
accrual of interest or fees in respect of the euro, such convention or
practice shall replace such expressed basis effective as of and from the
date on which such state becomes a participating member state; provided,
that if any Fronted Loan in the currency of such state is outstanding
immediately prior to such date, such replacement shall take effect, with
respect to such Fronted Loan, at the end of the then current Interest
Period.
(i) Rounding and Other Consequential Changes. Without
prejudice and in addition to any method of conversion or rounding
prescribed by any EMU legislation and without prejudice to the
respective liabilities for indebtedness of the Borrowers to the Fronting
Lenders and the Fronting Lenders to the Borrowers under or pursuant to
this Agreement:
(i) each reference in this Agreement to a minimum amount (or
an integral multiple thereof) in a national currency unit to be
paid to or by any Fronting Lender shall be replaced by a reference
to such reasonably comparable and convenient amount (or an integral
multiple thereof) in the euro unit such Fronting Lender may from
time to time specify; and
(ii) except as expressly provided in this Schedule 1.3, each
provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may from time
to time specify to be necessary or appropriate to reflect the
introduction of or changeover to the euro in participating member
states.
(j) Increased Costs. Each relevant Borrower shall from time to
time, at the request of the relevant Fronting Lender, pay to such
Fronting Lender the amount of any cost or increased cost incurred by, or
of any reduction in any amount payable to or in the effective return on
its capital to, or of interest or other return foregone by, such
Fronting Lender or any holding company of such Fronting Lender as a
result
of the introduction of, changeover to or operation of the euro in any
participating member state, other than any such cost or reduction or
amount foregone reflected in the relevant Cost of Funds or the other
provisions of this Agreement.
Schedule 4.1(b)
LIABILITIES, ETC.
None
Schedule 4.5
LEGAL BAR
None
Schedule 4.8
OWNED AND LEASED PROPERTIES
ESSEX GROUP INC.
REAL ESTATE INVENTORY
Location EGI Owned
0000 Xxxx Xxxxxx Yes
Fort Xxxxx, IN
Xxxxx County
U.S. Highway 30 W. Yes
Columbia City, IN
Xxxxxxx County
000 Xxxx Xxxxx Xxxxxx Yes
Jonesboro, IN
Grant County
Xxxxxx Road Yes
Vincennes, IN
Xxxx County
Young Lane Yes
Newmarket, NH
Rockingham County
Main St./Bay Rd. Yes
Newmarket, NH
Rockingham County
0000 Xxxxxxxxx Xxxxx Yes
Franklin, IN
Xxxxxxx County
Southeast Parkway Dr. No. Long-term
Franklin, TN lease from Sycar
Xxxxxxxxxx County Assoc. at
$1,077,000/yr.
(ave.)
Exp. 12/31/08
000 X. Xxxxxxxx Xx. Yes
Kendallville, IN
Noble County
0000 X. Xxxx Xx. Xxx
Xxxxxxxx, XX
Xxxxxxxxx Xxxxxx
Location EGI Owned
Windcrest Rd. Yes
Rutland, VT
Rutland County
0000 Xxxxxxxxx Xx. No. Leased from
Xxxxx Xxxxxx, XX 00000 Xxxxx X. Xxxxxxx
Plaquemines Parish Investments at
$2,500/mo.
Exp. 7/31/99
1417 Xxxxxx No. Leased from
N. Kansas City, MO 64116 Northtown Devco at
Clay County $1,175/mo.
Exp. 4/30/00
00000 Xxxx Xxxxx No. Leased from
Xxxxxxxx, XX 00000 Xxxx Xxxxx for
$4,400/mo. (ave.)
Exp. 7/31/99
0000 Xxxxxxx Xxx. No. Leased from
#100 California Public
Xxxxxxxx Xxxx, XX 00000 Emp. Ret. System.
Oklahoma County $1,551.75/mo.
Exp. 6/30/01
0 Xxxxxxxx Xxx No. Leased from
Xxxxxxxxx, XX 00000 Tewksbury Assoc. at
Middlesex County $3,937.50/mo.
Exp. 6/30/98
Old Xxxx--Filthy Lucre Lode Yes
Black Hills
Xxxxxx County, SD
24-Spur Drive No. Leased from
El Paso, TX Lincoln National
El Paso County Life at
$16,104.27/mo.
Exp. 7/31/01
Xx. 000 xxx Xxxx Xxxxx Xx. Xxx
Xxxx, XX
Christian County
E. Union & US 52 Yes
Lafayette, IN
Tippecanoe County
000 X. Xxxx Xx. Xxx
Xxxxxxx, XX
Xxxxxx Xxxxxx
Location EGI Owned
Attala Industrial Park No. Tract One:
Xxxxxxxxx, XX 00000 Leased from Attala
County at $3K/yr,
year to year,
w/nominal purchase
option. Tract Two:
Interstate
Industries, Inc.,
formerly TAM, Inc.
Xxx Xxxx Xxxx Xxx
Xxxxxxx, XX
Xxxxxxx County
Xx. 0 Xxxx Xxx
Xxxxxxxxxx, XX
Xxxxxx County
University & East St. Yes
Xxxxxxx, KS
Shawnee County
0000 X. Xxxx Xxxxxx Xxx
Xxxxxxx, XX
Xxxxxx Xxxxxx
000 Xxx Xxx
Xxxxxx, XX
Seneca County
0000 Xxxxxx Xx. Yes
Lithonia, GA
De Xxxx County
000 X. 00xx Xx. Xxx
Xxxxxxx, XX
Xxxx County
0 Xxx Xxxx. Yes
Devault, PA
0000 Xxxxxxxxx Xxxxx Xxx
Xxxxxxx, XX
Xxxxxx Xxxxxx
0000 Xxxxx Xx. Xxx
Xxxxxx, XX
Xxxxxxxx Xxxxxx
Location EGI Owned
00000 Xxxxx Xxxx. No. Leased from
Xxxxxxx, XX 00000 Lincoln Hayward
VIII, Ltd.
Partnership at
$12,623/mo.
Exp. 9/30/99
0000 Xxxxxxxx Xx. No. Leased from
Columbus, OH National Life Ins.
Franklin County Co. at $9,955/mo.
Exp. 5/31/98
0000 Xxxxxxxxxx Xxxxx No. Leased from
Xxxxxxx Xxxxxxx, XX 00000 the 0000 Xxxxxxxxx
Xxxxx Partnership
at $9,558/mo.
Exp. 7/31/98
0000 XX 000xx Xx. Xxx
Xxxxxxxx, XX
Multnomah County
0000 00xx Xx. Xxx
Xxxxx, XX
Hillsborough County
0000 Xxxxxxxx Xxxx No. Subleased from
Bensalem Twp., PA (Trevose) Metro Ind'l Park.
Bucks County Expires 5/31/99
0000 - 0xx Xxx. So. No. Leased from
Birmingham, AL Jeffco
Jefferson County Finance & Discount
Co. at $2,400/mo.
Expires 2/28/99
0000 Xxxxxxxx Xxxx. No. Subleased from
Xxxxxxxxx, XX 00000 The Lincoln Nat'l
Mecklenburg County Life Ins Co at
$10,150/mo. Expires
1/31/2001
0000 Xxxxxxxxxx Xxxxx No. Leased from AMB
Forest Park, GA Ind'l Income Fund
Xxxxxxx County LP. Expires 2/28/99
0000 X. 00xx Xx No. Leased from
McAllen, TX Xxxxxx Partnership
Xxxxxxx County at $9,500/mo.
Expires:
Location EGI Owned
0000 XX 00xx Xx No. Leased from
Miami, FL Xxxxxx X. Xxxxx at
Xxxx County $5,430.76/mo.
Expires 9/29/98
0 Xxxxxx Xxxx Xxxx X No. Leased from A.
Mississauga, Ontario Xxxxxxxx & Xxxx
Xxxxxx X0X 0X0 Ltd. Expires
Not Available 3/31/2001
000 Xxxxx Xxxxxx Xxxx Dr. No. Subleased from
Nashville, TN Brick Church Bus.
Davidson County Park at
$9,633.33/mo.
Expires 1/30/98
000 Xxxx Xxxxxx No. Leased from
Tiffin, OH Tiffin Wall Street
Seneca Properties Ltd. at
$1,350/mo.; mo-to-
mo basis
000 X. 00xx Xx. Yes. Via Process
Xxxxxx, XX 00000 Materials, Inc.
Grant County Dissolution 4/10/63
0000 Xxxxxx Xxxxx No. Leased from NY
Memphis, TN Life Ins. Co. at
Shelby County $9,375/mo. Expires
8/31/02
0000 X. Xxxxxx Xx., Xxxxx 000 No. Leased from
Tempe, AZ Security Capital
Ind'l Trust at
$6,825/mo. Expires
12/31/00
0000 Xxxxxxxxx Xx. No. Leased from
Elk Grove Village, IL Control Sales, Inc.
at $1,000/mo.
Expires 4/30/98
000 X. 00xx Xx. No. Leased from
Houston, TX Xxxx Xxxx Ltd.
Partnership.
Subleased to Xxx
Xxxxxxx Mfg. Co.
Xxxxx 0, Xxx 000X No. Leased from
Bluefield, VA Xxxxxxx-Xxxx Eqpt.
Tazewell County Co. at $1,866.67/mo
Location EGI Owned
0000 Xxxxxx Xxxx Xx. No. Leased from
Brooklyn Hts, OH Xxxx Centax Co. at
Cuyahoga County $7,070/mo.
00 Xxxxxxxxx Xxx. No. Leased from
Edison, NJ Xxxxx Xxxxxx at
$17,569.93/mo.
0000 Xxxxxxxxx Xx. No. Leased from
Louisville, KY Riverport Commerce
Ctr. at $27,087/mo.
Expires 9/31/02
0000 Xxxxxxxx Xxx. No. Leased from
Lubbock, TX Xxxxxxxx Xxxxxx
Mfg. Co. at
$1,450/mo (avg).
Expires 4/30/98
0000 XX Xxxxxxxxx Xxxx No. Subleased from
Portland, OR Xxxxx & Co. at
$30,847/mo. Term:
indefinitely
000 X. 0000 Xx. No. Subleased from
Salt Lake City, UT J&R Investment Co.
at $1,750/mo.
Expires 6/31/97
0000 Xxxxxxxxxxx Xx. Xx
Xxxxxxxx, XX
Xxxxxxxxxx Xxxxxx
000 Xxxxxxx Xx. Xx
Xxxxxxxx, XX
Xxxxx County
Xxx XXX Xxx Xx
Xxxxxxxxxx, XX
Xxxxxxxxxx Xxxxxx
0000 X. Xxxxxx Xxx. Xx
Xxxxxxx, XX
Xxxxxxxx Xxxxxx
000 Xxx Xxxxxx Xx
Xx Xxxxxxx, Xxxxxx
Not available
00 Xxxxx Xxx. Yes
Pawtucket, RI
Providence County
Location EGI Owned
0000 X. Xxxxxx Xxx. Yes
Sikeston, MO
Xxxxx County
0000 Xxxxxx Xx. Xxx
Xxxxxxxx, XX
Xxxxxxxxxx Xxxxxx
0000 Xx. 00xx Xxx. Xxx
Xxxxxxxx, XX
Maricopa County
0000 X. Xxxxxxxxxx Xx. Xx
Xxxxxx, XX
Schedule 4.9
PATENTS AND TRADEMARKS
Patent Docket
Patent
Country Number Title Issue Date
US 4290929 Aqueous Solutions of 9/22/81
Polyesterimides and Methods
of Making the Same
CAN 1116903 Fiber Option Ribbon and Cable 1/26/82
Made Therefrom
US 4196032 Splice for Optical Ribbon 4/1/80
Having Elongated Strain
Relief Elements in the Ribbon
and Method of Splicing the
Same
CAN 1104395 Splice for Optical Ribbon 7/7/81
Having Elongated Strain
Relief Elements in the Ribbon
and Method of Splicing the
Same
US 4286010 Insulated Mica Paper and 8/25/81
Tapes Thereof
CAN 1157323 Insulated Mica Paper and 11/22/83
Tapes Thereof
US 4358202 Apparatus and Method for 11/9/82
Monitoring the Surface
Character
US 4389510 Water Soluble Polymide 6/21/83
Prepared from 1,2,3,4 Butane
Tetracarboxylic Acid and
Method of Preparation
CAN 1175598 Water Soluble Polymide 10/2/84
Prepared from 1,2,3,4 Butane
Tetracarboxylic Acid and
Method of Preparation
US 4447472 Magnet Wire Coating Method 5/8/84
and Article
US 4374221 High Solids Polyamide-Imide 2/15/83
Magnet Wire Enamel
Patent
Country Number Title Issue Date
CAN 1193044 High Solids Polyamide-Imide 9/3/85
Magnet Wire Enamel
US 4396145 Self-Locking Carton 8/2/83
US 4374892 Moisture Resistant Insulating 2/22/83
Mica Tape Comprising a
Monoalkoxy Titanate
CAN 1171349 Moisture Resistant Insulating 7/24/84
Mica Tape Comprising a
Monoalkoxy Titanate
US 4350738 Power Insertable 9/21/82
Polyamide-Imide Coated Magnet
Wire
CAN 1192797 Power Insertable 9/3/85
Polyamide-Imide Coated Magnet
Wire
US 4348460 Power Insertable 9/7/82
Polyamide-Imide Coated Magnet
Wire
CAN 1179216 Power Insertable 12/11/84
Polyamide-Imide Coated Magnet
Wire
US 4385437 Method of Power Inserting 5/31/83
Polyamide-Imide Coated Magnet
Wire
US 4389587 Unitary Sleeving Insulation 6/21/83
US 4350737 Power Insertable Nylon Coated 9/21/82
Magnet Wire
US 4385436 Method of Power Inserting 5/31/83
Nylon Coated Magnet Wire
CAN 1209765 Dielectric Films from Water 8/19/86
Soluble Polyimides
US 4471161 Conductor Strand Formed of 9/11/84
Solid Wires and Method for
Making the Conductor Strand
US 4471920 Tapered Flange Wire Spool 9/18/84
US 4493462 Spool with Lifting Handles 1/15/85
Patent
Country Number Title Issue Date
US 4563095 Method and Apparatus for 1/7/86
Monitoring the Surface of
Elongated Objects
US 4576207 Texturized Heat Shrinkable 3/18/86
Tubing Having Radial and
Longitudinal Shrinkage Memory
US 4661314 Method of Making Texturized 4/28/87
Heat Shrinkable Tubing
US 4485978 Method and Apparatus for 12/4/84
Winding Strand upon Spools
Having Tapered End Flanges
US 4521363 Extrusion of a Plastic 6/4/85
Coating about a Strand
US 4476279 High Solids Theic Polyester 10/9/84
Enamels
US 4571450 Moisture Impervious Power 2/18/86
Cable and Condui-System
US 4704335 Highly Flexible Silicone 11/3/87
Rubber Coated Inorganic Yarn
US 4693936 Low Coefficient of Friction 9/15/87
Magnet Wire Enamels
US 4705657 Ethylene-Propylene Diene 11/10/87
Terpolymer Texturized Heat
Shrinkable Tubing
US 4551398 Tetraalkyl Titanate Modified 11/5/85
Nylon Magnet Wire Insulation
Coating
US 4599387 Tetraalkyl Titanate Modified 7/8/86
Nylon Magnet Wire Insulation
Coating
US 4707209 Method of Making High Density 11/17/87
Moisture Resistant Mica Sheet
US 4601952 Method of Making High Density 7/22/86
Moisture Resistant Mica Sheet
US 4601931 High Density, Moisture 7/22/86
Resistant Mica Cylinders
US 4575016 Continuous Ribbon Feed Method 3/11/86
and System
Patent
Country Number Title Issue Date
US 4588344 Roll Transfer Robot 5/13/86
US 4555070 Method and Apparatus for 11/26/85
Unwinding and Splicing
Successive Rolls
US 4564151 Core Latch Xxxxx Assembly 1/14/86
US 4586415 Assembly for Effecting 5/6/86
Vertical and Rotational
Motion
US 4575017 Xxxxxx Rab and Method of Use 3/11/86
US 4591084 Method and Apparatus for 5/27/86
Feeding and Accumulating
Ribbon Material
US 4545323 Felt Applicator 10/8/85
US 4622241 Method and Apparatus for 11/11/86
Accurately Dispensing a
Solution
US 4574604 Process and Apparatus for 3/11/86
High Speed Fabrication of
Copper
US 4615195 Process and Apparatus for 10/7/86
High Speed Fabrication of
Copper
US 4568607 Aromatic Titanate Modified 2/4/86
Nylon Magnet Wire Insulation
US 4588784 Aromatic Titanate Modified 5/13/86
Nylon Magnet Wire Insulation
US 4614670 Method for Insulating a 9/30/86
Magnet Wire with an Aromatic
Titanate Modified Nylon
US 4550055 Titanium Chelate Modified 10/29/85
Nylon Magnet Wire Insulation
Coating
US 4563369 Titanium Chelate Modified 1/7/86
Nylon Magnet Wire Insulation
Coating
US 4637852 Neoalkoxy Titanate in High 1/20/87
Density Mica Laminates
Patent
Country Number Title Issue Date
US 4603088 Neoalkoxy Titanate in High 7/29/86
Density Mica Laminates
US 4582198 Wire Shipping and Dispensing 4/15/86
Package
US 4704322 Resin Rich Mica Tape 11/3/87
US 4839444 High Solids Enamel 6/13/89
US 0291172 Container Insert 8/4/87
US 4988980 Low Cost Verbal Annunciator 1/29/91
US 4599905 Method and Apparatus for 7/15/86
Determining the Elongation
Property of Copper Wire
US 4624718 Polyester-Polyamide Tape 11/25/86
Insulated Magnet Wire and
Method of Making the Same
US 4629145 Control of Traversing Guide 12/16/86
in Strand Winding Apparatus
US 4926928 Protective Device for 5/22/90
Restraining Rod Produced in a
Continuous Casting and
Rolling Process
US 4775726 Method for Equilibrating 10/4/88
Polyamide Magnet Wire
Coatings and Enamel
Compositions
US 4808436 A Method for Equilibrating 2/28/89
Polyamide Magnet Wire
Coatings and Enamel
Compositions
US 4913963 Magnet Wire with 4/3/90
Equilibrating Polyamide
Insulation Coatings and
Enamel Compositions
US 4635046 Wire Tangle Sensor 1/6/87
US 4695830 Wire Runtogether Sensor 9/22/87
US 4740756 Continuity Test Method and 4/26/88
Apparatus
US 4700171 Ignition Wire 10/13/87
Patent
Country Number Title Issue Date
US 4775566 High Temperature Flexible 10/4/88
Unitary Sleeving Insulation
US 5032199 Method of Making a High 7/16/91
Temperature Flexible Unitary
Sleeving Insulation
US 4683162 Mica Product 7/28/87
US 4783365 Mica Product 11/8/88
US 4752217 Wire Coating Oven Including 6/21/88
Wire Cooling Apparatus
US 4725010 Control Apparatus and Method 2/16/88
US RE33240 Control Apparatus and Method 4/19/88
US 4725458 Urethane Modified Nylon 2/16/88
Magnet Wire Enamel
US 4808477 Urethane Modified Nylon 2/28/89
Magnet Wire Enamel
US 4689601 Multi-Layer Ignition Wire 8/25/87
US 4704596 Extrusion Coated Ignition 11/03/87
Wire
US 4876316 High Temperature Magnet Wire 10/24/89
Bond Coat Polyamide/Aldehyde/
Aromatic Alcohol Reaction
Product
US 4891243 Die Bar Carrier 1/2/90
US 4826544 Hydrogen Cleaning of Hot 5/2/89
Copper Rod
US 4836872 Method of Manufacturing a 6/6/89
Fiber Reinforced Heat
Shrinkable Tubing Article
US 4915139 Heat Shrinkable Tubing 4/10/90
Article
US 4869199 Manifold for Distributing 9/26/89
Wire Coating Enamel
US 4839205 Heated Supply Sheaves for 6/13/89
Wire Coating Apparatus
Patent
Country Number Title Issue Date
US 4844283 Closure Mechanism for Wire 7/4/89
Coating Oven
US 4821880 Palletized Structure 4/18/89
Containing Spools
US 5045136 Method of Manufacturing a 9/3/91
Heat Shrinkable Article
US 5106686 Multilayer Wrapped Insulated 4/21/92
Magnet Wire
US 4966932 Ultra-High Solids Theic 10/30/90
Polyester Enamels
US 4830689 Bonded Metallic Cable 5/16/89
Sheathing with Edge Forming
US 5048572 Vibration Damping Heat 9/17/91
Shrinkable Tubing
US 4705957 Wire Surface Monitor 11/10/87
US 4861288 Electrical Cordset 8/29/89
US 4611747 Method for Producing 9/16/86
Continuous Length High Solids
Enamel Coated Magnet Wire
US 5023558 Ignition Wire Core Conductive 6/11/91
Irregularity Detector
US 4938428 Wire Winding System with 7/3/90
Mobile Transfer Cart
US 4964363 System of Assembly and 10/23/90
Filling Large Cables in a
Single Pass at a Single
Station
US 4923133 Dancer Assembly 5/8/90
US 5304740 Fusible Link Wire 4/19/94
US 5704479 Wire storing and dispensing 1/6/98
package
Duration
US--17 Years (subject to maintenance fees)
CAN--17 Years
US--Application filed prior to June 8, 1995; 17 Years from issue
date or 20 years from filing date, whichever is longer
US--Application filed after June 8, 1995; 20 years from fling
dated (subject to maintenance fees)
TRADEMARKS AND TRADE NAMES
Trademark and/or
Country Trade Name Registration Expiration
US ACRYFLEX 1,092,803 06/06/98
US ALLEX 717,483 06/27/01
US ALPIC 861,614 12/10/08
US ASTRA 1,083,505 01/24/98
Renewal
filed
US ASTRAMELT 1,266,308 02/07/04
US ASTRATITE 1,057,610 02/01/07
US A-Z 2,023,734 12/17/06
US BIPIC 1,218,947 12/07/02
US BONDEX 687,491 11/03/99
US XXXXXXXX ELECTRO 1,781,418 07/13/03
INC. & Design
US CASPIC 1,189,207 02/09/02
US CL & Design 1,197,158 06/08/02
US Contractor Power 1,746,311 01/12/03
US Crown Design 1,965,739 04/02/06
US CUPIC 861,615 12/10/08
Canada DIAMOND 192,723 07/13/03
US DIAMOND 676,255 03/31/99
US DIAMOND FIGURE Des 613,831 10/11/05
US Double Crown Design 1,965,738 04/02/06
Argentina ESSEX 1,617,577 10/07/05
Brazil ESSEX 692,303 04/25/99
Canada ESSEX 193,620 08/31/03
China ESSEX 504,592 11/20/99
France ESSEX 1,331,108 11/15/05
Italy ESSEX 448,366 10/24/05
Italy ESSEX 356,324 03/23/98
Spain ESSEX 1,127,541 04/03/09
US ESSEX 961,503 06/19/03
US ESSEX 959,657 05/29/03
US ESSEX 954,253 03/06/03
US ESSEX 954,283 03/06/03
US ESSEX 1,411,176 09/30/06
US ESSEX 1,644,159 05/14/01
Mexico ESSEX 496,193 03/22/05
US ESSEX 618,128 12/27/05
US ESSEX 965,834 08/14/03
US ESSEX 536,430 01/16/01
US ESSEX 966,421 08/21/03
US ESSEX GROUP 1,313,285 01/08/05
US ESSEX GROUP 1,178,844 11/24/01
India ESSEX Application
Trademark and/or
Country Trade Name Registration Expiration
Mexico ESSEX 496,194 03/22/05
US ESSEX QTY MASTERS 1,205,233 08/17/02
China ESSEX (Chinese) 504,591 11/20/99
US ExCel & xl Des 780,919 12/01/04
US ExCelene 1,032,113 02/03/06
US E-Z-C 1,305,793 11/20/04
US EZC Extra 1,480,522 03/15/08
US E-Z Do 1,594,939 05/08/00
US FEMCO 1,584,450 02/27/00
US FLEXICONE 1,330,873 04/16/05
US GOPIC 969,536 10/02/03
US HANDIWIRE 1,342,096 06/18/05
US IF IT'S P IT'S RIGHT 533,826 11/21/00
US ISOMICA 575,202 06/02/03
US IWI 635,106 10/02/06
US XXXXXX XXXXXXX 1,827,220 03/22/04
US LF Logo 1,830,155 04/12/04
US MACALLEN & Design 833,230 08/08/07
US MAGNA-PAK 628,592 06/12/06
US XXXXXXX 861,613 12/10/08
US MICANITE and Drawing 22,623 03/07/03
US MR-200 1,234,416 04/12/03
US NYTHERM 702,858 08/16/00
US N-900 683,175 08/11/99
US PARAFLEX 586,117 02/23/04
US PARANITE 1,548,127 07/18/09
US PARANITE & Design 537,580 02/13/01
US PARANITE & Design 535,200 12/26/00
US PARASYN 529,926 08/29/00
US PAR-U-FLEX 674,901 03/03/99
US POLYBONDEX 1,172,079 10/06/01
CAN Powerflex 454,023 02/09/11
CAN Powerflex 90 478,181 06/25/12
US Powerflex 90 1,865,737 04/02/06
US Quad-Rated 908,468 02/23/01
US Quadruple Crown Design 1,965,734 04/02/06
US Quadruple Crown Design 1,965,736 04/02/06
US REEL PAK 1,144,845 12/30/00
US RELI-A-BAND 1,286,015 07/17/04
CAN Royal 480,297 08/13/02
US Royal 839,470 10/24/07
US Royal and Design 1,931,948 10/31/05
US Royal Electric and 1,824,265 03/01/04
Design
US SAMICA 558,013 04/22/02
US SAMICAPOR 1,095,179 07/04/98
US SAMICATHERM 995,614 03/20/03
US SDN 1,038,746 05/04/06
US SDT 1,195,561 05/18/02
US SEALPIC 993,738 09/24/04
US SILVERFLEX 1,111,787 01/23/99
US SODERBOND 672,165 01/06/99
US SODEREX 672,138 01/06/99
Trademark and/or
Country Trade Name Registration Expiration
US SODERON 672,164 01/06/99
US SOLIDEX 1,036,145 03/23/06
US SOLIDON 1,038,144 04/20/06
US SUFLEX 960,771 06/12/03
US SUFLEX Logo 1,308,019 12/04/04
Canada SX N.S. 2026 08/30/08
US SX 612,102 09/13/05
US SX 1,523,072 02/07/09
US SX & Design 1,525,063 02/21/09
US TF 1,286,937 07/24/04
US THERMALEX 672,137 01/06/99
US THERMALEX 200 1,185,606 01/12/02
US TERHMALEX F 672,750 01/20/99
US THERMETEX GP200 844,472 02/20/08
US Triangle and Design 1,484,145 04/12/08
US Triex 2,023,933 12/17/06
US Triple Crown Design 1,965,735 04/02/06
US Ultima 1,865,679 12/06/04
US UTREX 1,326,775 03/26/05
US VINYLGLAS 965,445 08/07/03
Mexico SX 496,192 03/22/05
Mexico SX 496,195 03/22/05
India SX Application
US ULTRASHIELD Application
US VANGUARD 1,827,219 03/22/04
TECHNOLOGY LICENSING AGREEMENTS
Parties Description
ESSEX GROUP, INC. Patent license for technology
American Telephone and relating to coaxial cables and land
Telegraph Co. lines
ESSEX GROUP, INC. Cross license for intellectual
Aismalibar S.A. property rights.
ESSEX GROUP, INC. Agreement concerning intellectual
Cablec Corporation property concerning transmission,
distribution, power and control
cable.
ESSEX GROUP, INC. Agreement concerning intellectual
Chrysler Corporation property relating to products used
in the manufacture of or in motor
vehicles.
ESSEX GROUP, INC. Agreement for technology relating to
Femco Magnet Wire magnet wire.
Corporation
ESSEX GROUP, INC. Agreement concerning intellectual
Ford Motor Company property relating to products used
in the manufacture of or in motor
vehicles.
ESSEX GROUP, INC. Patent license for technology
Groggins Plastic, Inc. relating to spools and lifting
handles.
ESSEX GROUP, INC. Cross license for intellectual
Insulation Systems and property rights.
Machines, Ltd.
ESSEX GROUP, INC. Cross license for intellectual
Isola Essex A.G. property rights.
ESSEX GROUP, INC. Agreement for technology concerning
Windings, Inc. fabricating of packages and/or
Reelex Machines.
ESSEX GROUP, INC. Cross licenses for patents relating
Southwire Company to shaft furnaces for melting copper
and to apparatus for converting
copper into copper bar and rod.
Parties Description
ESSEX GROUP, INC. Agreement concerning intellectual
DuPont Dow Elastimers property relating to products used
L.L.C. in the manufacture of electrical
cordsets.
PENDING APPLICATIONS
Country Serial No. Filing Date
US 08/557513 11/14/95
US 08/967,633 11/10/97
US 08/880,987 06/23/97
US 08/733,828 10/18/96
US 09/021,160
Schedule 4.16
SUBSIDIARIES
Direct Subsidiaries of Essex International Inc.
Essex Group, Inc., a Michigan corporation (the "Company)
Direct Subsidiaries of the Company
Diamond Wire & Cable Co.
Essex Group Export Inc. (foreign)
Essex Canada Inc.
Interstate Industries Holdings Inc.
Interstate Industries, Inc.
SX Mauritius Holding, Inc. (foreign)
Dormant Subsidiaries (each a direct subsidiary of the Company):
Essex Group, Inc., a Delaware corporation
Essex Group Mexico Inc.
Essex Group Mexico, S.A. de C.V.
Essex Wire Corporation
Schedule 4.20(b)
UCC Filings Jurisdictions
List of Debtors and Jurisdictions
for UCC-1 Financing Statements
Essex International Inc.
Indiana, Secretary of State
Essex Group, Inc. (Michigan corporation)
United States
Alabama, Secretary of State
Arizona, Secretary of State
Arkansas, Secretary of State
Arkansas, Clay County
Arkansas, Cleburne County
Arkansas, Xxxxxxxxx County
California, Secretary of State
Colorado, Secretary of State
Connecticut, Secretary of State
Florida, Secretary of State
Georgia, Xxxxxxx County
Georgia, Xxxxxxx County
Georgia, DeKalb County
Georgia, Xxxxxx County
Georgia, Gwinett County
Illinois, Secretary of State
Indiana, Secretary of State
Indiana, Xxxxx County
Indiana, Grant County
Indiana, Xxxxxxx County
Indiana, Xxxx County
Indiana, Marion County
Indiana, Noble County
Indiana, Orange County
Indiana, Tippecanoe County
Indiana, Xxxxxxx County
Kansas, Secretary of State
Kentucky, Secretary of State
Louisiana, Xxxxxxxxx Xxxxxx
Louisiana, Plaquemines Parish
Maine, Secretary of State
Massachusetts, Secretary of the Commonwealth
Massachusetts, Town of Braintree
Massachusetts, Town of Tweksbury
Michigan, Secretary of State
Minnesota, Secretary of State
Missouri, Secretary of State
Missouri, Clay County
Missouri, City of St. Louis (City Register)
Missouri, Xxxxxxx County
Missouri, Xxxxxx County
Missouri, Laclede County
Missouri, Xxxxx County
Missouri, St. Xxxxxxx County
New Hampshire, Secretary of State
New Hampshire, Rockingham County
New Jersey, Secretary of State
New York, Secretary of State
New York, Chenango County
New York, Erie County
New York, Madison County
New York, Oneida County
New York, Onondaga County
North Carolina, Secretary of State
North Carolina, Guilford County
North Carolina, Mecklenberg County
North Carolina, Pasquotank County
North Carolina, Wake County
North Dakota, Secretary of State
Ohio, Secretary of State
Ohio, Cuyahoga County
Ohio, Franklin County
Ohio, Xxxxxxxx County
Ohio, Seneca County
Ohio, Xxxxx County
Ohio, Washington County
Oklahoma, Oklahoma County
Oregon, Secretary of State
Pennsylvania, Secretary of State
Pennsylvania, Allegheny County
Pennsylvania, Bucks County
Pennsylvania, Xxxxxx County
Pennsylvania, Cambria County
Pennsylvania, Chester County
Pennsylvania, Delaware County
Pennsylvania, Erie County
Pennsylvania, Luzerne County
Pennsylvania, Philadelphia County
Rhode Island, Secretary of State
South Carolina, Secretary of State
South Dakota, Secretary of State
South Dakota, Xxxxxx County
Tennessee, Secretary of State
Texas, Secretary of State
Utah, Secretary of State
Vermont, Secretary of State
Vermont, Rutland County
Virginia, Secretary of State
Virginia, Independence City - Seat of Henrico
County
Virginia, Norfolk City County
Virginia, Rappahannock County
Virginia, Tazewell County
Virginia, Washington County
Washington, Secretary of State
West Virginia, Secretary of State
Wisconsin, Secretary of State
Essex Group, Inc. (Michigan corporation)
Canada
British Columbia, Delta
Manitoba, Winnipeg
Ontario, Mississauga
Quebec, Saint Laurent
Diamond Wire & Cable Co.
Indiana, Secretary of State
Indiana, Xxxxx County
Essex Group Export Inc.
Indiana, Xxxxxxxxx xx Xxxxx
Xxxxxxx, Xxxxx Xxxxxx
Xxxxx Xxxxxx Inc.
United States
Indiana, Secretary of State
Indiana, Xxxxx County
Canada
Ontario, Mississauga
Interstate Industries Holdings Inc.
Mississippi, Secretary of State
Mississippi, Attala County
Interstate Industries Inc.
Mississippi, Secretary of State
Mississippi, Attala County
Schedule 4.20(c)
List of Mortgage Filing Jurisdictions
o Columbia City, Indiana
o Fort Xxxxx, Indiana
o Jonesboro, Indiana
o Vincennes, Indiana
o Franklin, Indiana
o Kendallville, Indiana
o Marion, Indiana
o Lafayette, Indiana
o Orleans, Indiana
o Pana, Illinois
o Rockford, Illinois
o Anaheim, California
o Lithonia, Georgia
o Tiffin, Ohio
x Xxxxxxxxxx, Kansas
o Xxxxxxx, Kansas
o Chester, South Carolina
Schedule 7.2(c)
EXISTING INDEBTEDNESS
None
Schedule 7.3(f)
EXISTING LIENS
STATE AND NAME OF DEBTOR NAME OF SECURED DESCRIPTION OF
JURISDICTION PARTY COLLATERAL COVERED
Indiana, Secretary Essex Group, Inc. Storage Technology Specified Electronic Data
of State Corporation Processing Equipment
Indiana, SOS Essex Group, Inc. Storage Technology Specified Equipment
Corporation
Indiana, SOS Essex Group, Inc. Farmstead Telephone Specified Telephone system
Group, Inc. d/b/a
Farmstead Leasing
Indiana, SOS Essex Group, Inc. Farmstead Telephone Specified Telephone system
Group, Inc. d/b/a
Farmstead Leasing
Indiana, SOS Essex Group, Inc. Fleet Credit Specified Farm Machinery
Corporation
Indiana, SOS Essex Group, Inc. XX Xxxxxxxx Company Specified Consigned Goods
(Geon Resins)
Indiana, SOS Essex Group, Inc. AT&T Credit Specified
Corporation Telecommunications
Equipment
Indiana, SOS Essex Group, Inc. AT&T Credit Specified System
Corporation Equipment and Wiring
Indiana, SOS Essex Group, Inc. AT&T Credit Specified System
Corporation Equipment and Wiring
Indiana, SOS Essex Group, Inc. AT&T Credit Specified
Corporation Telecommunications
Equipment
Indiana, SOS Essex Group, Inc. Indiana Corporate Various Assets
Federal Credit Union
Indiana, SOS Essex Group, Inc. First Fleet Corporation Specified Vehicles
Indiana, SOS Essex Group, Inc. General Electric Stocks of Copper
Company
Indiana, SOS Essex Group, Inc. AT&T Credit Specified
Corporation Telecommunications
Equipment
Indiana, SOS Essex Group, Inc. First Fleet Corporation Specified Vehicles
Indiana, SOS Essex Group, Inc. AT&T Credit Specified
Corporation Telecommunications
Equipment
Indiana, SOS Essex Group, Inc. Fleet Credit Various Assets
Corporation
Indiana, SOS Essex Group, Inc. Pitney Xxxxx Credit Specified Farm Equipment
Corporation
STATE AND NAME OF DEBTOR NAME OF SECURED DESCRIPTION OF
JURISDICTION PARTY COLLATERAL COVERED
Indiana, SOS Essex Group, Inc. Pitney Xxxxx Credit Specified Telephone/Radio
Corporation System
Indiana, SOS Essex Group, Inc. Meridian Leasing Specified Computer
Corporation Equipment
Indiana, SOS Essex Group, Inc. Meridian Leasing Specified Computer
Corporation Equipment
Indiana, SOS Essex Group, Inc. Meridian Leasing Specified Computer
Corporation Equipment
Indiana, SOS Essex Group, Inc. Pitney Xxxxx Credit Not Listed
Corporation
Indiana, SOS Essex Group, Inc. Pitney Xxxxx Credit Specified Paging Equipment
Corporation
Tennessee, Secretary Essex Group, Inc. Canon Financial Specific Photocopying
of State Services, Inc. Equipment
Texas, SOS Essex Group, Inc. Farmstead Telephone Specified Telephone System
Group, Inc. d/b/a
Farmstead Leasing
Texas, SOS Essex Group, Inc. Farmstead Telephone Collateral of above assigned
Group, Inc. d/b/a to Chancellor Asset
Farmstead Leasing Corporation
Texas, SOS Essex Group, Inc. El Paso Ford New Not Listed
Holland
Illinois, SOS Essex Group, Inc. IBM Credit Corporation Specified Office Equipment
Illinois, SOS Essex Group, Inc. Lexington Capital Specified Office Equipment
Corporation
Illinois, SOS Essex Group, Inc. AT&T Credit Specified
Corporation Telecommunications
Equipment
California, SOS Essex Group, Inc. XX Xxxxxxxx Specified Consigned Goods
Company-Geon Vinyl (Geon Resin)
Division
California, SOS Essex Group, Inc. Farmstead Telephone Specified Telephone System
Group, Inc. d/b/a
Farmstead Leasing
California, SOS Essex Group, Inc. Farmstead Telephone above collateral assigned to
Group, Inc. d/b/a Chancellor Asset
Farmstead Leasing Corporation
Indiana, Xxxxx Xxxxx Group, Inc. Meridian Leasing Specified Computer
County Corporation Equipment
Indiana, Xxxxx Xxxxx Group, Inc. Meridian Leasing Specified Computer
County Corporation Equipment
Indiana, Xxxxx Xxxxx Group, Inc. Meridian Leasing Specified Computer
County Corporation Equipment
STATE AND NAME OF DEBTOR NAME OF SECURED DESCRIPTION OF
JURISDICTION PARTY COLLATERAL COVERED
Indiana, Xxxxx Xxxxx Group, Inc. Fleet Credit Various Assets
County Corporation
Indiana, Xxxxx Xxxxx Group, Inc. First Fleet Corporation Specified Farm Vehicles
County
Indiana, Xxxxx Xxxxx Group, Inc. AT&T Credit Specific
County Corporation Telecommunications
Equipment
Indiana, Xxxxx Xxxxx Group, Inc. AT&T Credit Specified Systems
County Corporation Equipment and Wiring
Indiana, Xxxxx Xxxxx Group, Inc. AT&T Credit Specified
County Corporation Telecommunications
Equipment
Indiana, Xxxxx Xxxxx Group, Inc. Farmstead Telephone Assignment of collateral to
County Group, Inc. d/b/a Chancellor Asset
Farmstead Leasing Corporation
Indiana, Xxxxx Xxxxx Group, Inc. Farmstead Telephone Specified Telephone System
County Group, Inc. d/b/a
Farmstead Leasing
Indiana, Xxxxx Xxxxx Group, Inc. Farmstead Telephone Specified Telephone System
County Group, Inc. d/b/a
Farmstead Leasing
Indiana, Xxxxx Xxxxx Group, Inc. Farmstead Telephone Specified Telephone System
County Group, Inc. d/b/a
Farmstead Leasing
Massachusetts, Essex Group, Inc. Danvers Savings Bank Various Assets
Secretary of the
Commonwealth
Massachusetts, Essex Group, Inc. Danvers Savings Bank Various Assets
Secretary of the
Commonwealth
New Hampshire, Essex Group, Inc. AT&T Credit Specified
Secretary of State Corporation Telecommunications
Equipment
Kansas, Secretary of Essex Group, Inc. Pitney Xxxxx Credit Specified Paging System
State Corporation
Indiana, Secretary of Essex Wire StarBank, National Various Assets
State Association
Rhode Island, SOS Triangle Wire & M & G Materials Specified Vehicles
616540 Cable Handling Co.
Rhode Island, SOS Triangle Wire & IBM Credit Corporation Specified Equipment
624197 Cable
Rhode Island, SOS Triangle Wire & IBM Credit Corporation Specified Equipment
646744 Cable
STATE AND NAME OF DEBTOR NAME OF SECURED DESCRIPTION OF
JURISDICTION PARTY COLLATERAL COVERED
Rhode Island, SOS Triangle Wire & XXX Xxxxxxxxxxx Specified Equipment
625837 Cable (assigned to Romax
Finance Corporation)
Rhode Island, SOS Triangle Wire & XXX Xxxxxxxxxxx Specified Equipment
635232 Cable (assigned to Romax
Finance Corporation)
Rhode Island, SOS Triangle Wire & XXX Xxxxxxxxxxx Specified Equipment
650415 Cable (assigned to Metlife
Capital Finance
Corporation)
Arizona, SOS Triangle Wire & Sanwa Leasing Corp. Specified Computer
709802 Cable Equipment
Arizona, SOS Triangle PWC Pitney Xxxxx Credit Specified Equipment
927946 Incorporated Corp.
Missouri, SOS Triangle Wire & Pitney Xxxxx Credit Specified Equipment
2270047 Cable Corp.
Schedule 7.7(a)
Capital Leases
None
Schedule 7.11
TERMS OF PREFERRED STOCK
None
EXHIBIT B TO
CREDIT AGREEMENT
[FORM OF]
FRONTING LENDER ADDENDUM
The undersigned hereby (i) agrees to become a Fronting Lender
under the Credit Agreement, dated as of October 31, 1996, as amended and
restated as of March __, 1998 (as further amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among
Essex International Inc., Essex Group, Inc. (the "Company"), the
Subsidiary Borrowers from time to time parties thereto, the several
banks and other financial institutions from time to time parties thereto
and The Chase Manhattan Bank, as Administrative Agent, with respect to
the Subsidiary Borrowers and Fronted Currencies, and subject to the
other terms and conditions, set forth on Schedule 1 hereto, (ii) hereby
agrees to be bound by the provisions of the Credit Agreement applicable
to Fronting Lenders and (iii) shall be entitled to the benefits of the
provisions of the Credit Agreement and the other Loan Documents insofar
as such provisions relate to Fronting Lenders and Fronted Loans,
including, without limitation, Section 2A of the Credit Agreement.
To the extent the undersigned is not a Lender under the Credit
Agreement, the undersigned confirms that it has received a copy of the
Credit Agreement and the other Loan Documents and appoints and
authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under the Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as
are incidental thereto.
The provisions of Sections 11.12, 11.14 and 11.17 of the
Credit Agreement are by this reference incorporated herein mutatis
mutandis.
This Addendum shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
Unless otherwise defined herein, terms which are defined in
the Credit Agreement and used herein are so used as so defined.
[NAME OF FRONTING LENDER]
By:--------------------------------
Title:
[Date]
Schedule 1
to Fronting Lender Addendum
TERMS OF FRONTING LENDER COMMITMENT
I. The Fronted [Currencies] [Currency] shall be -------------------.
II. The Subsidiary Borrower with respect to the Fronted Loans made in
each Fronted Currency specified in Section 1 above shall be as follows:
Fronted Currency Subsidiary Borrower
III. The Fronting Lender's Payment Office with respect to each Fronted
Currency specified in Section 1 above shall be as follows (or such other
office as the Fronting Lender may from time to time specify for such
purpose in accordance with Section 11.2 of the Credit Agreement):
Fronted Currency Fronting Lender's Payment Office
IV. The fronting fee with respect to Fronted Loans in each Fronted
Currency specified in Section 1 above shall be as follows [specify
amount and timing of payments]:
Fronted Currency Fronting Fee
V. The Interest Payment Dates with respect to Fronted Loans in each
Fronted Currency specified in Section 1 above shall be as follows:
Fronted Currency Interest Payment Dates
VI. The Interest Periods with respect to Fronted Loans in each Fronted
Currency specified in Section 1 above shall be as follows:
Fronted Currency Interest Periods
VII. Notices of borrowing pursuant to Section 2.2A of the Credit
Agreement shall be given by _____________ [specify timing of notices of
borrowing].
VIII. Each borrowing of Fronted Loans in each Fronted Currency specified
in Section 1 above shall be in the following minimum amounts:
Fronted Currency Minimum Borrowing Amount
IX. The Fronted Loans in each Fronted Currency specified in Section 1
above shall be made available in [specify funds in which Fronted Loans
will be made available].
X. Each prepayment of Fronted Loans in each Fronted Currency specified
in Section 1 above shall be in the minimum amounts specified below:
Fronted Currency Minimum Prepayment Amount
XI. Notices of any prepayment pursuant to Section 9 above shall be given
as follows:
Fronted Currency Requirement for Notices
XII. The Fronting Lender's commitment to make Fronted Loans in each
Fronted Currency specified in Section 1 above shall terminate on the
dates specified below:
Fronted Currency Commitment Termination Date
XIII. The Fronting Lender may terminate its commitment to make Fronted
Loans to any Subsidiary Borrower in a Fronted Currency upon ______ days'
prior written notice to such Subsidiary Borrower.
XIV. No later than _______ [a.m./p.m.] on each Calculation Date and on
each other date on which such calculation is required under the Credit
Agreement with respect to the Fronted Currency specified in Section 1
above, the Fronting Lender shall determine the Spot Exchange Rate with
respect to such Fronted Currency.
EXHIBIT K
[FORM OF COMPLIANCE CERTIFICATE]
[For the Fiscal Quarter ending _____]
[For the Fiscal Year ending _____]
Pursuant to Section 6.2(b) of the Credit Agreement, dated as
of October 31, 1996, as amended and restated as of March 27, 1998 (as
further amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"; terms defined therein being used herein as
therein defined unless otherwise defined), among Essex Group, Inc. (the
"Company"), Essex International Inc. ("Holdings"), the financial
institutions from time to time parties thereto (the "Lenders"), and The
Chase Manhattan Bank, as administrative agent for the Lenders (in such
capacity, the "Administrative Agent"), the undersigned, duly elected,
qualified and acting Responsible Officers of the Company and Holdings,
respectively, hereby certify that:
I. To the best of such Responsible Officer's knowledge, the
Company and each other Loan Party has, during the period or periods
referred to above, observed or performed in all material respects all of
its covenants and other agreements, and satisfied every condition,
contained in the Credit Agreement and the other Loan Documents to which
it is a party to be observed, performed or satisfied by it, and as of
the date hereof such Responsible Officer has obtained no knowledge of
any Default or Event of Default except as follows: ____________________.
II. The financial statements referred to in Section 6.1(a) of
the Credit Agreement which are delivered concurrently with the delivery
of this Compliance Certificate are complete and correct in all material
respects and have been prepared in reasonable detail and in accordance
with GAAP applied consistently throughout the periods reflected therein
and with prior periods (except as approved by the accountants or such
Responsible Officer, as the case may be, and disclosed therein).
The financial statements referred to in Section 6.1(b) of the
Credit Agreement which are delivered concurrently with the delivery of
this Compliance Certificate are complete and correct in all material
respects and fairly present the financial condition and results of
operations of Holdings or the Company, as the case may be (subject to
normal year-end audit adjustments) and have been prepared in reasonable
detail and in accordance with GAAP applied consistently throughout the
periods reflected therein and with prior periods (except as approved by
the accountants or such Responsible Officer, as the case may be, and
disclosed therein).
(c) The covenants as listed and calculated below are based on
the Company's [unaudited] [audited] balance sheets and statements of
operations, shareholders' equity and cash flows for the fiscal [quarter]
[year] ended ________ __, 199_, a copy of which is attached hereto.
A. Consolidated Net Worth (Section 7.1(a))
without duplication:
a. 50% of Consolidated Net Income of Holdings $---------
and its consolidated Subsidiaries for each
fiscal quarter of Holdings (beginning with
the fiscal quarter ending March 31, 1995) for
which Consolidated Net Income is positive
b. 100% of Net Cash Proceeds of Holdings Common $----------
Equity Offering consummated after the
Effective Date
c. 100% of any capital contribution made to $----------
Holdings or the Company after the Effective
Date by any holder of its Capital Stock
d. Sum of (i), (ii) and (iii) and $80,000,000 $----------
e. Consolidated Net Worth of Holdings and its $----------
consolidated Subsidiaries (must be equal to
or greater than (iv) above)
f. Clauses (ii) and (iii) shall be reduced to $----------
the extent (a) such proceeds or contributions
are applied to repurchase of equity in
accordance with the Credit Agreement and (b)
Consolidated Net Worth would be reduced as a
result of repurchase
B. Interest Coverage (Section 7.1(b))
The ratio of
a. Consolidated EBITDA of Holdings and its $----------
consolidated Subsidiaries for the relevant
Interest Coverage Test Period
to
b. Consolidated Net Cash Interest Expense of $----------
Holdings and its consolidated Subsidiaries
for such Interest Coverage Test Period
Ratio: (must be greater 2.0 to 1.0) ------------
C. Leverage Ratio (Section 7.1(c))
The ratio of
a. Total Debt of Holdings and its consolidated $ ----------
Subsidiaries (as of last day of any period of
four consecutive fiscal quarters of Holdings)
to
b. Consolidated EBITDA of Holdings and its
consolidated Subsidiaries for such period $----------
Ratio: (after the Effective Date and prior to ------------
March 31, 1998, must be less 5.00 to 1.0; on or
after March 31, 1998 and prior to March 31, 1999,
must be less than 4.50 to 1.0; on or after March
31, 1999 and prior to March 31, 2000, must be less
than 4.25 to 1.00; and March 31, 2000 and
thereafter, must be less than 4.0 to 1.0)
D. Senior Secured Leverage Ratio (Section 7.1(d))
The ratio of
a. Total Senior Secured Debt of Company and its $----------
Subsidiaries (as of the last day of any
period of four consecutive fiscal quarters of
Holdings)
to
b. Consolidated EBITDA for such period $----------
Ratio: (after the Effective Date and prior to ------------
March 31, 1998, must be less 3.00 to 1.0; On or
after March 31, 1998 and prior to March 31, 1999,
must be less 2.75 to 1.0; On or after March 31,
1999 and prior to March 31, 2000, must be less
2.50 to 1.0; March 31, 2000 and thereafter, must
be less than 2.25 to 1.0)
E. Limitation on Indebtedness (Section 7.2)
a.(A) Aggregate amount of Non-Facility L/C $----------
obligations
(B) Aggregate amount of L/C Obligations (the $----------
sum of (A) and (B) may not exceed
$25,000,000, at any time)
b. Indebtedness of the Company resulting from $----------
the delivery of a promissory note to support
Indebtedness of the Company, in connection
with the requirements of the Company's
insurance carriers to recognize casualty
insurance premiums (may not exceed
$10,000,000 at any time)
c. Additional unsecured indebtedness not $----------
otherwise permitted by Section 7.2 which is
(a) unsecured, (b) incurred in connection
with the acquisition of assets or a
Subsidiary and secured only by specified
assets or (c) secured by assets acceptable to
the Required Lenders (may not exceed
$20,000,000 at any time)
d. Additional unsecured indebtedness not $----------
otherwise permitted by Section 7.2 (may not
exceed $150,000,000 at any time)
Portion thereof constituting Specified Basket $----------
Debt
e. Additional indebtedness of Essex Canada not $----------
otherwise permitted by Section 7.2 (may not
exceed $25,000,000 at any time)
F. Limitation on Liens (Section 7.3(g))
a. Aggregate amount of Indebtedness secured by $----------
Liens incurred as described in Section 7.3(g)
(may not exceed, when added to 9(i) below,
the sum of $25,000,000 and 10% of
Consolidated Net Worth of Holdings)
G. Limitation on Guarantee Obligations (Section 7.4)
a. Aggregate amount of guarantees by the Company $----------
or any of its Subsidiaries of the obligations
of Joint Ventures in which the Company or any
of its Subsidiaries is a party, as described
in Section 7.4(c) (may not, when added to any
Joint Venture Loans, exceed $35,000,000)
b. Aggregate amount of surety, indemnity, $----------
performance, release and appeal bonds and
guarantees thereof issued by the Company or
any of its Subsidiaries, as described in
Section 7.4(d) (may not exceed $10,000,000 at
any time)
H. Limitation on Sale of Assets (7.6)
a. Aggregate amount of the sale or other $----------
disposition of obsolete, outdated or surplus
assets as described in Section 7.6(a) (may
not exceed $5,000,000 in fiscal year)
b. Aggregate amount of fair market value of all $----------
assets sold by the Company and its
Subsidiaries as described in Section 7.6(f)
during the fiscal [quarter] [year] of the
Company ending _______, 19__ (may not exceed
$40,000,000 in fiscal year or $80,000,000
after Amendment and Restatement Effective
Date)
I. Limitation on Capital Lease Obligations (Section
7.7)
a. Aggregate outstanding amount of Capital Lease $----------
Obligations as described in Section 7.7(c)
during the fiscal [quarter] [year] ending
_______, 19__ (may not exceed, when added to
6(i) above, the sum of $25,000,000 and an
amount equal to 10% of Consolidated Net Worth
of Holdings)
J. Limitation on Dividends (Section 7.8)
a. Aggregate amount of dividends and stock $----------
repurchases as described in Section 7.8(f)
since Amendment and Restatement Effective
Date (may not exceed the sum of $100,000,000
plus 50% of cumulative Consolidated Net
Income of Holdings, determined for the period
from March 31, 1998 through the end of the
most recent fiscal quarter of Holdings)
K. Limitation on Capital Expenditures, Investments,
Loans and Advances (Section 7.10)
a. Aggregate amount of loans and advances of the $----------
Company and its Subsidiaries as described in
Section 7.10(c) (may not exceed $2,000,000 at
any time)
b. Aggregate amount outstanding of Loans by the $----------
Company to any Joint Venture as described in
Section 7.10(e)(i) (may not exceed
$25,000,000 at any time)
c. Aggregate amount the sum of (i) outstanding $----------
of Loans by the Company to any Joint Venture
as described in Section 7.10(e)(i) and (ii)
the aggregate amount of guarantees described
in Section 7.10(e)(ii) (may not exceed
$35,000,000 at any time)
d. (A)(1) Aggregate amount of Capital
Expenditures of the Company and its
Subsidiaries since the beginning of the
19__ fiscal year
(2) Basket Expenditure Amount for 19__ $----------
fiscal year (as set forth in
Section 7.10(g))
(3) Unused Basket Expenditure Amounts carried $----------
over from each preceding fiscal year
(including $33,275,000 for fiscal year
1997)
(4) Amount of A(1) may not exceed the sum of $----------
A(2) and A(3) (provided that, unless A(1)
is less than $30,000,000, A(1) shall not
exceed the EBITDA Basket Amount)
(B)(1) Maximum Investment Amount in effect $----------
(2) Investment Expenditures since beginning $----------
of fiscal year (may not exceed Maximum
Investment Amount)
(C)(1) Capital Expenditures and Investment $----------
Expenditures (excluding up to $5,000,000
of Investment Expenditures constituting
capital contributions to any Joint
Venture) which (a) constitute capital
contributions or other investments in any
Person that is not a Subsidiary Guarantor
or (b) are made to acquire assets which
do not constitute Collateral since the
beginning of the 19__ fiscal year (may
not exceed $25,000,000 in any fiscal year
and $40,000,000 after Amendment and
Restatement Effective Date)
(2) Investment Expenditures constituting $----------
capital contributions to any Joint
Venture made since the Effective Date and
excluded pursuant to (C)(1)
e. (A) Capital Expenditures and Investment $----------
Expenditures of Company and Subsidiaries
as described in 7.10(h)(x) made with
proceeds from Holdings Common Equity
Offering since the Effective Date (may
not exceed $100,000,000)
(B) Capital Expenditures and Investment $----------
Expenditures of Company and Subsidiaries
as described in 7.10(h)(y) made with
proceeds from Holdings Common Equity
Offering since the Effective Date which
(a) constitute capital contributions or
other investments in any Person that is
not a Subsidiary Guarantor or (b) are
made to acquire assets which do not
constitute Collateral since Effective
Date (may not exceed $50,000,000)
IN WITNESS WHEREOF, we have hereto set our names.
Dated:
By:___________________________
Name:
Title: [Responsible Officer
of the Company]
By:___________________________
Name:
Title: [Responsible Officer
of the Holdings]
EXHIBIT M TO
CREDIT AGREEMENT [FORM OF]
LENDER CONSENT LETTER
To: The Chase Manhattan Bank, as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of October
31, 1996, as amended and restated as of March 31, 1997 (the "Existing
Credit Agreement"), among Essex International Inc., Essex Group, Inc.
(the "Company"), the Lenders parties thereto and The Chase Manhattan
Bank, as Administrative Agent. Capitalized terms defined in the Existing
Credit Agreement shall have their respective defined meanings herein.
The Company has requested certain changes to the Existing
Credit Agreement, to be effected pursuant an amendment and restatement
thereof (the "Amendment/Restatement") in the form distributed to the
Lenders prior to the date hereof.
Pursuant to Section 11.1 of the Existing Credit Agreement, the
undersigned Lender hereby consents to the execution and delivery by the
Administrative Agent of the Amendment/Restatement.
Very truly yours,
-----------------------------------------------------
(NAME OF LENDER)
By___________________________________________________
Name:
Title:
Dated as of March 27, 1998
EXHIBIT N-1 TO
CREDIT AGREEMENT
[FORM OF BORROWING SUBSIDIARY AGREEMENT]
BORROWING SUBSIDIARY AGREEMENT, dated as of _____________ __,
19__ (this "Agreement"), among [NAME OF SUBSIDIARY BORROWER], a
________________ (the "Subsidiary"), ESSEX INTERNATIONAL INC.
("Holdings"), ESSEX GROUP, INC. (the "Company"), and THE CHASE MANHATTAN
BANK, as administrative agent (in such capacity, the "Administrative
Agent") for the several banks and other financial institutions (the
"Lenders") from time to time parties to the Credit Agreement, dated as
of October 31, 1996, as amended and restated as of March __, 1998 (as
further amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among Holdings, the Company, the Subsidiary
Borrowers from time to time parties thereto, the Lenders and the
Administrative Agent.
The parties hereto hereby agree as follows:
1. Capitalized terms used herein but not otherwise defined
herein shall have the meanings assigned to such terms in the Credit
Agreement.
2. Pursuant to Section 2.7A of the Credit Agreement, the
Company hereby designates the Subsidiary as a Subsidiary Borrower under
the Credit Agreement.
3. The Company and the Subsidiary, jointly and severally,
represent and warrant that the representations and warranties contained
in the Credit Agreement are true and correct on and as of the date
hereof to the extent such representations and warranties relate to the
Subsidiary and this Agreement.
4. Each of Holdings and the Company agrees that the guarantee
contained in Section 10 of the Credit Agreement will apply to the
obligations of the Subsidiary as a Subsidiary Borrower.
5. Upon execution of this Agreement by Holdings, the Company,
the Subsidiary and the Administrative Agent, the Subsidiary shall be a
party to the Credit Agreement and shall be a Subsidiary Borrower and a
Borrower for all purposes thereof, and the Subsidiary hereby agrees to
be bound by all provisions of the Credit Agreement.
6. This Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
7. This Agreement may be executed in any number of
counterparts (including by facsimile transmission), each of which shall
be an original, and all of which, when taken together, shall constitute
one agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their authorized officers as of the
date first appearing above.
[SUBSIDIARY]
By:____________________________________
Title:
ESSEX INTERNATIONAL INC.
By:____________________________________
Title:
ESSEX GROUP, INC.
By:____________________________________
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By:____________________________________
Title:
EXHIBIT N-2 TO
CREDIT AGREEMENT
[FORM OF BORROWING SUBSIDIARY TERMINATION]
BORROWING SUBSIDIARY TERMINATION
The Chase Manhattan Bank, as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Date]
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of October
31, 1996, as amended and restated as of March __, 1998 (as further
amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Essex International Inc., Essex Group, Inc.
(the "Company"), the Subsidiary Borrowers from time to time parties
thereto, the several banks and other financial institutions from time to
time parties thereto (the "Lenders") and The Chase Manhattan Bank, as
Administrative Agent. Capitalized terms used and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit
Agreement.
The Company hereby terminates the status and rights of
_______________ (the "Terminated Subsidiary Borrower") as a Subsidiary
Borrower under the Credit Agreement. [The Company represents and
warrants that no Loans made to the Terminated Subsidiary Borrower are
outstanding as of the date hereof and that all amounts payable by the
Terminated Subsidiary Borrower in respect of interest and/or fees (and,
to the extent notified by the Administrative Agent or any Lender, any
other amounts payable under the Credit Agreement) pursuant to the Credit
Agreement have been paid in full on or prior to the date hereof.] [The
Company acknowledges that the Terminated Subsidiary Borrower shall
continue to be a Subsidiary Borrower until such time as all Loans made
to the Terminated Subsidiary Borrower shall have been prepaid and all
amounts payable by the Terminated Subsidiary Borrower in respect of
interest and/or fees (and, to the extent notified by the Administrative
Agent or any Lender, any other amounts payable under the Credit
Agreement) pursuant to the Credit Agreement shall have been paid in
full, provided that the Terminated Subsidiary Borrower shall not have
the right to make further borrowings as a Subsidiary Borrower under the
Credit Agreement.]
This Borrowing Subsidiary Termination shall be governed by,
and construed and interpreted in accordance with, the laws of the State
of New York. This Borrowing Subsidiary Termination may be executed in
any number of counterparts, each of which shall be an original, and all
of which, when taken together, shall constitute one agreement. Delivery
of an executed signature page of this Borrowing Subsidiary Termination
by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof.
Very truly yours,
ESSEX GROUP, INC.
By:___________________________________
Title:
Acknowledged and Agreed:
[Subsidiary]
By:___________________________________
Title:
