AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Exhibit
10.1
[CONFORMED COPY]
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT is made on April 26, 2006, by and among
COLTEC INDUSTRIES INC, a Pennsylvania corporation (individually and, in its capacity as the
representative of the other Borrowers pursuant to Section 4.4, “Coltec”), COLTEC INDUSTRIAL
PRODUCTS LLC, a Delaware limited liability company (“CIP”), XXXXXXX SEALING TECHNOLOGIES LLC, a
Delaware limited liability company (“Xxxxxxx Sealing”), GGB, LLC (formerly Glacier Xxxxxxx Bearings
LLC), a Delaware limited liability company (“Xxxxxxx Bearing”), CORROSION CONTROL CORPORATION, a
Colorado corporation (“CCC”), and STEMCO LP, a Texas limited partnership (“Stemco LP (TX)”; Coltec,
CIP, Xxxxxxx Sealing, Garlock Bearing, CCC and Stemco LP (TX), each individually referred to herein
as a “Borrower” and collectively as “Borrowers”); ENPRO INDUSTRIES, INC., a North Carolina
corporation (“Parent”); QFM SALES AND SERVICES, INC., a Delaware corporation (“QFM”), COLTEC
INTERNATIONAL SERVICES CO., a Delaware corporation (“Coltec International”), XXXXXXXX LITIGATION
MANAGEMENT GROUP, LTD., a Delaware corporation (“Xxxxxxxx”), GGB, INC., a Delaware corporation
(“GGB”), XXXXXXX INTERNATIONAL INC., a Delaware corporation (“Garlock International”), STEMCO
DELAWARE LP, a Delaware limited partnership (“Stemco LP (DE)”), STEMCO HOLDINGS, INC., a Delaware
corporation (“Stemco Holdings”), STEMCO HOLDINGS DELAWARE, INC., a Delaware corporation (“Stemco
Holdings Delaware”), and GARLOCK OVERSEAS CORPORATION, a Delaware corporation (“Garlock Overseas”;
QFM, Coltec International, Xxxxxxxx, GGB, Garlock International, Stemco LP (DE), Stemco Holdings,
Stemco Holdings Delaware and Garlock Overseas each individually referred to herein as a “Subsidiary
Guarantor” and collectively as “Subsidiary Guarantors”); the various financial institutions listed
on the signature pages hereof (together with their respective successors and permitted assigns, the
“Lenders”); BANK OF AMERICA, N.A., a national bank, in its capacity as a Lender, collateral and
administrative agent for the Lenders pursuant to Section 13 (together with its successors in such
capacity, “Agent”) and Issuing Bank; and BANC OF AMERICA SECURITIES LLC, as sole lead arranger and
sole book manager (“Arranger”). Capitalized terms used in this Agreement have the meanings
assigned to them in Section 1.
R e c i t a l s:
Borrowers, certain financial institutions (“Original Lenders”) and Agent are parties to a
certain Credit Agreement dated as of May 16, 2002 (as at any time amended, modified, supplemented
or restated, the “Original Loan Agreement”), pursuant to which Original Lenders made certain
revolving credit loans, letters of credit and other financial accommodations available to
Borrowers.
In connection with the Original Loan Agreement, Borrowers, Parent and Subsidiary Guarantors
executed and delivered that certain Security Agreement dated as of May 16, 2002 in favor of Agent
(as at any time amended, modified, supplemented or restated, the “Original Security Agreement”),
pursuant to which Borrowers, Parent and Subsidiary Guarantors granted Agent a security interest in
all of the collateral described therein as security for all of the “Obligations” (as defined
therein).
Borrowers have requested that the Original Loan Agreement and the Original Security Agreement
be amended and restated in their entirety to become effective and binding on Borrowers, Parent and
Subsidiary Guarantors pursuant to the terms hereof, and Lenders (including the Original Lenders
that are parties hereto) have agreed, subject to the terms of this Agreement, to amend and restate
the Original Loan Agreement and the Original Security Agreement in their entirety to read as set
forth herein, and it has been agreed by the parties hereto that (a) the commitments which the
Original Lenders that are parties hereto extended to Borrowers under the Original Loan Agreement
and the commitments of new Lenders
that become parties hereto shall be extended or advanced upon the amended and restated terms
and conditions contained in this Agreement, (b) the loans and other obligations outstanding under
the Original Loan Agreement shall be governed by and deemed to be outstanding under the amended and
restated terms and conditions contained herein, and (c) all security interests previously granted
by Borrowers, Parent and Subsidiary Guarantors pursuant to the Original Security Agreement that
remain as security for the Obligations (as defined hereunder) are hereby renewed and continued, and
all such security interests shall remain in full force and effect as security for the Obligations
(as defined herein).
Borrowers believe that the consolidation of all revolving credit loans and other credit
accommodations under this Agreement will enhance the aggregate borrowing powers of each Borrower
and ease the administration of their revolving credit loan relationship with Lenders, all to the
mutual advantage of Borrowers. As such, each Borrower has agreed to be jointly and severally
liable for loans and all other obligations under this Agreement and to guarantee the obligations of
each of the other Borrowers under this Agreement and each of the other Loan Documents.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable consideration, the
parties hereto, intending to be bound hereby, agree as follows:
SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION
1.1. Definitions.
As used in this Agreement, the following terms shall have the following meanings ascribed to
them (terms used in the singular to have the same meaning when used in the plural, and vice versa):
Accommodation Payment — as defined in Section 5.10.4.
Account — shall have the meaning given to the term “account” in the UCC and shall
include any right of an Obligor to payment for goods sold or leased or for services rendered that
is not evidenced by an Instrument or Chattel Paper, whether or not earned by performance.
Account Debtor — a Person who is or becomes obligated under or on account of an
Account, Chattel Paper or General Intangible.
Adjusted LIBOR Rate — for any Interest Period, with respect to LIBOR Loans, the rate
of interest per annum (rounded upward to the next 1/16th of 1%) determined pursuant to the
following formula:
| Adjusted LIBOR Rate = | Offshore Base Rate | |||||
Where,
“Offshore Base Rate” means the rate per annum appearing on Telerate
Page 3750 (or any successor page) as the London interbank offered rate for deposits
in Dollars at approximately 11:00 a.m. (London time) 2 Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period. If
for any reason such rate is not available, the Offshore Base Rate shall be, for any
Interest Period, the rate per annum appearing on Reuters Screen LIBO Page as the
London interbank offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) 2 Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the
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applicable rate shall be the arithmetic mean of all such rates. If for any
reason none of the foregoing rates is available, the Offshore Base Rate shall be,
for any Interest Period, the rate per annum determined by Agent as the rate of
interest at which Dollar deposits in the approximate amount of the applicable LIBOR
Loan would be offered by BofA’s London Branch to major banks in the offshore Dollar
market at their request at or about 11:00 a.m. (London time) 2 Business Days prior
to the first day of such Interest Period for a term comparable to such Interest
Period.
“Eurodollar Reserve Percentage” means for any day during any Interest
Period, the reserve percentage (expressed as a decimal, rounded upward to the next
1/100th of 1%) in effect on such day applicable to member banks under regulations
issued from time to time by the Board of Governors for determining the maximum
reserve requirement (including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred to as
“Eurocurrency Liabilities”). The Offshore Base Rate for each outstanding LIBOR Loan
shall be adjusted automatically as of the effective date of any change in the
Eurodollar Reserve Percentage.
Adjusted Net Earnings — with respect to Parent and its consolidated Subsidiaries for
any fiscal period, net income after provision for income taxes for such fiscal period, as
determined in accordance with GAAP and reported on the financial statements delivered in accordance
with Section 10.1.3 for such period, excluding any and all of the following included in such net
income: (a) gain or loss arising from the sale of any capital assets; (b) gain or non-cash loss
arising from any write-up or write down in the book value of any asset; (c) earnings or losses of
any Person, substantially all the assets of which have been acquired by Parent or any consolidated
Subsidiary in any manner, to the extent realized by such other Person prior to the date of
acquisition; (d) earnings of any Person (other than a consolidated Subsidiary) in which Parent or
any consolidated Subsidiary has an ownership interest unless (and only to the extent) such earnings
shall actually have been received by Parent or any consolidated Subsidiary in the form of cash
distributions; (e) earnings or losses of any Person to which assets of Parent or any consolidated
Subsidiary shall have been sold, transferred or disposed of, or into which Parent or any Subsidiary
shall have been merged, or which has been a party with Parent or any Subsidiary to any
consolidation or other form of reorganization, prior to the date of such transaction; (f) non-cash
gain or non-cash loss arising from the acquisition of debt or equity securities of Parent or any of
its Subsidiaries or from cancellation or forgiveness of Debt; (g) non-cash gain or non-cash loss
arising from extraordinary items, as determined in accordance with GAAP, or from any other
non-recurring transaction; (h) non-cash gain or non-cash loss arising from or relating to Hedging
Agreements; and (i) non-cash gains and non-cash losses related to asbestos exposure attributable to
the calculation for Parent and its Subsidiaries of (i) the estimated liability for pending, settled
and unasserted asbestos claims exposure, (ii) solvent insurance available for asbestos claims and
(iii) asbestos insurance policy receivables (net of reserves for asbestos liabilities not covered
by insurance), in each case as determined by Parent in accordance with GAAP.
Affiliate — a Person (i) who directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, another Person; (ii) who
beneficially owns or holds 10% or more of any class of the Equity Interests of another Person;
(iii) 10% or more of the Equity Interests with power to vote of which is beneficially owned or held
by another Person or a Subsidiary of another Person; or (iv) who is an officer, director, partner
or managing member who controls another Person. For purposes hereof, “control” means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of any Equity Interest, by contract or
otherwise.
Agent — as defined in the preamble to this Agreement.
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Agent Indemnitees — Agent, Arranger and their respective Affiliates, and all of their
respective present and future officers, directors, employees, agents and attorneys.
Agent Professionals — attorneys, accountants, appraisers, business valuation experts,
environmental engineers or consultants, turnaround consultants and other professionals or experts
retained by Agent.
Aggregate Availability — at any time with respect to Borrowers, an amount equal to (i)
the lesser of (a) the Revolver Commitments and (b) the sum of (I) the Xxxxxxx Sealing Accounts and
Inventory Borrowing Base, plus (II) the Excess Collateral Providers Borrowing Base, minus
(ii) the Aggregate Revolver Outstandings with respect to all Borrowers, minus (iii) without
duplication, Availability Reserves allocated by Agent to any Borrower.
Aggregate Revolver Outstandings — at any date of determination, without duplication:
(i) with respect to all Borrowers, the sum of (a) the unpaid balance of Revolver Loans,
(b) the aggregate amount of Pending Revolver Loans, (c) one hundred percent (100%) of the
aggregate undrawn face amount of all outstanding Letters of Credit, and (d) the aggregate
amount of any unpaid reimbursement obligations in respect of Letters of Credit;
(ii) with respect to Xxxxxxx Sealing, the sum of (a) the unpaid balance of Revolver
Loans allocated to Xxxxxxx Sealing, (b) the aggregate amount of Pending Revolver Loans to be
allocated to Xxxxxxx Sealing, (c) one hundred percent (100%) of the aggregate undrawn face
amount of all outstanding Letters of Credit issued for the account of Xxxxxxx Sealing, and
(d) the aggregate amount of any unpaid reimbursement obligations in respect of Letters of
Credit issued for the account of Xxxxxxx Sealing; and
(iii) with respect to the Excess Collateral Providers, the sum of (a) the unpaid
balance of Revolver Loans allocated to the Excess Collateral Providers, (b) the aggregate
amount of Pending Revolver Loans to be allocated to the Excess Collateral Providers, (c) one
hundred percent (100%) of the aggregate undrawn face amount of all outstanding Letters of
Credit issued for the account of any Excess Collateral Provider, and (d) the aggregate
amount of any unpaid reimbursement obligations in respect of Letters of Credit issued for
the account of any Excess Collateral Provider.
Agreement — this Amended and Restated Loan and Security Agreement and all Exhibits and
Schedules thereto.
Allocable Percentage — as defined in Section 5.10.4.
Anti-Terrorism Laws — any laws relating to terrorism or money laundering, including
Executive Order No. 13224 and the USA Patriot Act.
Applicable Law — all laws, rules and regulations applicable to the Person, conduct,
transaction, covenant, Loan Document or Material Contract in question; all provisions of all
applicable state, federal and foreign constitutions, statutes, rules, regulations and orders of
Governmental Authorities; and all orders, judgments and decrees of all courts and arbitrators.
Applicable Margin — a percentage on a per annum basis equal to 0.0% with respect to
Revolver Loans that are Base Rate Loans and 1.25% with respect to Revolver Loans that are LIBOR
Loans, provided, that, following Agent’s receipt of the financial statements and Compliance
Certificate required
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pursuant to Section 10.1.3 for each Fiscal Quarter ending on or after March 31, 2006, the
Applicable Margin shall be increased or (if no Default or Event of Default exists) decreased
(provided, that upon any waiver or cure of an applicable Event of Default, the decrease to the
Applicable Margin shall be implemented on the Business Day next succeeding the date of such waiver
or cure), based upon Average Availability, as follows:
| Level | Average Availability | LIBOR Loans | Base Rate Loans | |||||||
I
|
<$15 million | 1.75 | % | 0.25 | % | |||||
II
|
³ $15 million — <$30 million | 1.50 | % | 0.00 | % | |||||
III
|
³ $30MM — <$50 million | 1.25 | % | 0.00 | % | |||||
IV
|
³ $50 million (also requires Fixed Charge Coverage Ratio of greater than 2.25 to 1.0) |
1.00 | % | 0.00 | % | |||||
The Applicable Margin shall be subject to reduction or increase, as applicable and as set
forth in the table above, on a quarterly basis according to Average Availability for the Fiscal
Quarter period ending on the last day of each Fiscal Quarter; provided, that, if Average
Availability for any Fiscal Quarter is greater than $50 million but the Fixed Charge Coverage Ratio
as of the last day of such Fiscal Quarter is not greater than 2.25 to 1.0, then the Applicable
Margin would be based on Level III in the above table. Except as set forth in the last sentence
hereof (or in the parenthetical set forth above) , any such increase or reduction in the Applicable
Margin provided for herein shall be effective 3 Business Days after receipt by Agent of the
financial statements and corresponding Compliance Certificate for each Fiscal Quarter. If the
financial statements and the Compliance Certificate are not received by Agent by the date required
pursuant to Section 10.1.3 (after giving effect to the applicable cure period set forth in Section
12.1.3), at the election of the Required Lenders the Applicable Margin shall be determined based on
Level I in the above table until such time as such financial statements and Compliance Certificate
are received and any Event of Default resulting from a failure timely to deliver such financial
statements or Compliance Certificate is waived in writing by Agent and Lenders; provided,
however, that Agent and Lenders shall be entitled to accrue and receive interest at the
Default Rate to the extent authorized by Section 3.1.5; provided, further, that no
change shall be made in the levels set forth above solely due to any termination of the Commitments
and, in such event, the levels shall be determined as of the date of such termination and shall no
longer be subject to reduction or increase.
Approved Credit Enhancement — in Agent’s discretion and at its option, either (i) an
irrevocable letter of credit that is in form and substance acceptable to Agent, issued or confirmed
by a bank acceptable to Agent, and payable in Dollars at a place of payment within the United
States that is acceptable to Agent, which letter of credit is assigned to Agent for the benefit of
Secured Parties (with such assignment acknowledged by the issuing or confirming bank) or, if so
requested by Agent, duly transferred to Agent for the benefit of Secured Parties (together with
sufficient documentation to permit direct draws under any such letter of credit by Agent for the
benefit of Secured Parties) or (ii) credit insurance that is issued by a credit insurance company
acceptable to Agent and is in form and substance acceptable to Agent (which credit insurance shall
be payable to Agent, for the benefit of Secured Parties, in Dollars).
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Approved Short-Term Investments — short term investments made in conformity with the
investment policies attached as Schedule 10.2.11, provided that (i) such direct or indirect
obligations of the United States of America or of the listed European governments mature within one
year from the date of acquisition thereof and (ii) each other investment must mature not more than
one year from the date of creation thereof (or in the case of money market and other funds, have an
average maturity of not more than one year) and be capable of being liquidated and converted into
readily available cash within ten Business Days at any time without penalty in excess of the lesser
of $500,000 or 2% of the amount of such investment).
Arranger — as defined in the preamble to this Agreement.
Asbestos Insurance Policies — the insurance policies maintained by any of the
Borrowers or any of their respective Domestic Subsidiaries with respect to which any such Borrower
or Subsidiary is entitled to (or claims entitlement to) insurance coverage in connection with
claims made against any such Borrower or such Subsidiary (or any of their predecessors) for
asbestos related injury or alleged injury.
Asset Disposition — a sale, lease, license, consignment or other transfer or
disposition of Property of an Obligor, including a disposition of Property in connection with a
sale-leaseback transaction or synthetic lease.
Assignment and Acceptance — an assignment and acceptance entered into by a Lender and
an Eligible Assignee and accepted by Agent, in the form of Exhibit C.
Availability — on any date:
(i) with respect to Xxxxxxx Sealing, (a) the lesser of (I) the Revolver Commitments or
(II) the Xxxxxxx Sealing Borrowing Base, minus (b) the Aggregate Revolver
Outstandings of Xxxxxxx Sealing, minus (c) Availability Reserves allocated by Agent
to Xxxxxxx Sealing (other than Availability Reserves deducted in the calculation of the
Xxxxxxx Sealing Borrowing Base); and
(ii) with respect to any Excess Collateral Provider, (a) the lesser of (I) the Revolver
Commitments or (II) the Excess Collateral Providers Borrowing Base, minus (b) the
Aggregate Revolver Outstandings of the Excess Collateral Providers, minus (c)
Availability Reserves allocated by Agent to the Excess Collateral Providers (other than
Availability Reserves deducted in the calculation of the Excess Collateral Providers
Borrowing Base).
Availability Reserve — on any date of determination thereof, an amount equal to the
sum of the following (without duplication): (i) the Inventory Reserve; (ii) the Rent Reserve;
(iii) any amounts which any Obligor is obligated to pay to Agent, Lenders or other Persons pursuant
to the provisions of any of the Loan Documents that Agent or any Lender elects to pay for the
account of such Obligor in accordance with authority contained in any of the Loan Documents, except
to the extent Agent or such Lender has been reimbursed for such amount; (iv) the aggregate amount
of reserves established by Agent from time to time in its Credit Judgment in respect of Banking
Relationship Debt; (v) the aggregate amount of all liabilities and obligations that are secured by
Liens upon any of the Collateral that are senior in priority to Agent’s Liens if such Liens are not
Permitted Liens (provided that the imposition of a reserve hereunder on account of such Liens shall
not be deemed a waiver of the Event of Default that arises from the existence of such Liens); and
(vi) such additional reserves, in such amounts and with respect to such matters, as Agent in its
Credit Judgment may elect to impose from time to time, provided that Agent will notify Borrower
Representative promptly following the implementation of any such additional reserve.
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Average Availability — for any period, an amount equal to the sum of the amount of
Aggregate Availability on each day during such period, as determined by Agent, divided by the
number of days in such period.
Average Revolver Loan Balance — for any period, the amount obtained by adding the
unpaid balance of Revolver Loans plus one hundred percent (100%) of the aggregate undrawn
face amount of all outstanding Letters of Credit at the end of each day for the period in question
and by dividing such sum by the number of days in such period.
Bank Products — any one or more of the following types of products, services or
facilities extended to any Bank Products Obligor by any Lender or any Affiliate of any Lender: (i)
commercial credit cards; (ii) merchant card services; (iii) products or services under Cash
Management Agreements; (iv) products under Hedging Agreements; (v) equipment leasing facilities;
(vi) bank guarantees and other indemnity agreements, trade letters of credit, documentary
collections and other similar services (excluding, however, Letters of Credit); (vii) lines of
credit and other financial accommodations to Foreign Subsidiaries; and (viii) such other banking
products or services provided by any Lender or any Affiliate of any Lender as may be requested by
any Bank Products Obligor, but only to the extent Borrowers (or Borrower Representative) shall
acknowledge in writing that such product or service is to constitute a “Bank Product”.
Bank Products Obligor — any Obligor or any Affiliate of any Obligor.
Banking Relationship Debt — Debt or other obligations of a Bank Products Obligor to
any Lender (or any Affiliate of any Lender) arising out of or relating to Bank Products.
Bankruptcy Code — title 11 of the United States Code.
Base Rate — on any date, the higher of (i) the variable annual rate of interest so
designated from time to time by BofA in Charlotte, North Carolina as its “prime rate,” such rate
being a reference rate and not necessarily representing the lowest or best rate being charged to
any customer, and (ii) one-half of one percent (0.5%) above the Federal Funds Rate. Changes in the
Base Rate resulting from any changes in BofA’s “prime rate” shall take place immediately without
notice or demand of any kind commencing on the opening of business on the day specified in the
public announcement of such change by BofA.
Base Rate Loan — a Loan, or portion thereof, during any period in which it bears
interest at a rate based upon the Base Rate.
Blocked Person — as defined in Section 9.1.27(ii).
Board of Governors — the Board of Governors of the Federal Reserve System.
BofA — Bank of America, N.A., a national bank, and its successors and permitted
assigns.
BofA Indemnitees — BofA and its Affiliates, and all of their respective present and
future officers, directors, employees, agents and attorneys.
Borrower and Borrowers — as defined in the preamble to this Agreement.
Borrower Representative — as defined in Section 4.4.
Borrowing — a borrowing consisting of Loans of one Type made on the same day by
Lenders (or
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by BofA in the case of a Borrowing funded by Swingline Loans) or a conversion of a Loan or
Loans of one Type from Lenders on the same day.
Borrowing Base — on any date of determination thereof, (i) with respect to Xxxxxxx
Sealing, the Xxxxxxx Sealing Borrowing Base and (ii) with respect to an Excess Collateral Provider,
the Excess Collateral Providers Borrowing Base.
Borrowing Base Certificate — a certificate, in the form reasonably requested by Agent,
by which Borrowers shall certify to Agent and Lenders, with such frequency as required herein, the
calculation of the Xxxxxxx Sealing Borrowing Base and the Excess Collateral Providers Borrowing
Base, including a calculation of each component thereof, all in such detail as shall be reasonably
satisfactory to Agent.
Business Day — any day excluding Saturday, Sunday and any other day that is a legal
holiday under the laws of the State of Georgia or North Carolina or is a day on which banking
institutions located in either such state are closed; provided, however, that when
used with reference to a LIBOR Loan (including the making, continuing, prepaying or repaying of any
LIBOR Loan), the term “Business Day” shall also exclude any day on which banks are not open for
dealings in Dollar deposits on the London interbank market.
Capital Adequacy Regulation — any guideline, request or directive of any central bank
or other Governmental Authority, or any other law, rule or regulation, whether or not having the
force of law, in each case regarding capital adequacy of any bank or of any corporation controlling
a bank.
Capital Expenditures — expenditures made or liabilities incurred for the acquisition
of any Fixed Assets or improvements, replacements, substitutions or additions thereto which have a
useful life of more than one year, including the total principal portion of Capitalized Lease
Obligations; provided, however, that (a) the portion of the purchase price for any
Permitted Acquisition that is allocable to Fixed Assets purchased pursuant to such Permitted
Acquisition shall not constitute a “Capital Expenditure”, and (b) the amount of Capital
Expenditures by any Borrower (or, in the case of any Borrower that consists of more than one
division, by any division of such Borrower) during any fiscal period shall be reduced by the amount
of sales proceeds (net of taxes, commissions, fees and other transaction costs and expenses)
received by such Borrower (or division) during such period from its sale of Fixed Assets to the
extent permitted under this Agreement, but in no event shall such amount be less than zero.
Capitalized Lease Obligation — any Debt represented by obligations under a lease that
is required to be capitalized for financial reporting purposes in accordance with GAAP.
Cash Collateral — cash, and any interest or other income earned thereon, that is
deposited with Agent in accordance with this Agreement in order to Cash Collateralize any LC
Obligations or other Obligations.
Cash Collateral Account — a demand deposit, money market or other account established
by Agent at BofA or such other financial institution as Agent may select in its discretion, which
account shall be in Agent’s name and subject to Agent’s Liens.
Cash Collateralize — with respect to LC Obligations arising from Letters of Credit
outstanding on any date or Obligations arising under Hedging Agreements on such date, the deposit
with Agent of either (i) immediately available funds into the Cash Collateral Account in an amount
equal to 105% of the sum of the aggregate Undrawn Amounts of such Letters of Credit and other
existing LC Obligations, all Obligations existing under such Hedging Agreements, and all related
fees and other amounts due in connection with such LC Obligations and Hedging Agreements, as
applicable, or (ii) an irrevocable letter
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of credit in form and substance satisfactory to Agent, issued by an issuer satisfactory to
Agent in an amount equal to 105% of the sum of the aggregate Undrawn Amounts of such Letters of
Credit and other existing LC Obligations, all Obligations existing under such Hedging Agreements,
and all related fees and other amounts due in connection with such LC Obligations and Hedging
Agreements, as applicable.
Cash Equivalents — (i) marketable direct obligations issued or unconditionally
guaranteed by the United States government and backed by the full faith and credit of the United
States government having maturities of not more than 12 months from the date of acquisition; (ii)
domestic certificates of deposit and time deposits having maturities of not more than 12 months
from the date of acquisition, bankers’ acceptances having maturities of not more than 12 months
from the date of acquisition and overnight bank deposits, in each case issued by any commercial
bank organized under the laws of the United States, any state thereof or the District of Columbia,
which at the time of acquisition are rated A-1 (or better) by S&P or P-1 (or better) by Xxxxx’x,
and (unless issued by a Lender) not subject to offset rights in favor of such bank arising from any
banking relationship with such bank; (iii) repurchase obligations with a term of not more than 30
days for underlying securities of the types described in clauses (i) and (ii)
entered into with any financial institution meeting the qualifications specified in clause
(ii) above; (iv) commercial paper having at the time of investment therein or a contractual
commitment to invest therein a rating of A-1 (or better) by S&P or P-1 (or better) by Xxxxx’x, and
having a maturity within 9 months after the date of acquisition thereof; and (v) shares of any
money market fund that (a) has substantially all of its assets invested continuously in the types
of investments referred to in clauses (i) — (iv), (b) has net assets not less than
$500,000,000 and (c) has the highest rating obtainable from either Xxxxx’x or S&P.
Cash Management Agreement — any agreement entered into from time to time between any
Borrower or any other Bank Products Obligor, on the one hand, and any Lender or any of its
Affiliates, on the other, in connection with domestic or foreign cash management services for
operating, collections, payroll and trust accounts of such Borrower or other Bank Products Obligor
provided by such banking or financial institution, including automatic clearinghouse services,
controlled disbursement services, electronic funds transfer services, information reporting
services, lockbox services, stop payment services, cash-pooling and netting services, daylight and
other overdraft services, and wire transfer services.
CCC — as defined in the preamble to this Agreement
CERCLA — the Comprehensive Environmental Response Compensation and Liability Act (42
U.S.C. § 9601 et seq.)
Change of Control — the occurrence of any of the following: (i) less than a majority
of the members of Parent’s Board of Directors shall be persons who either (a) were serving as
directors on the Closing Date or (b) were nominated as directors and approved by the vote of the
majority of the directors who are either directors referred to in clause (a) above or
directors nominated and approved pursuant to this clause (b); or (ii) the stockholders of
Parent shall approve any plan or proposal for the liquidation or dissolution of Parent or the
stockholders of any Borrower shall approve any plan for the liquidation or dissolution of such
Borrower; or (iii) a Person or group of Persons acting in concert shall, as a result of a tender or
exchange offer, open market purchases, privately negotiated purchases or otherwise, have become the
direct or indirect beneficial owner (within the meaning of Rule 13d-3 under the Securities Exchange
Act of 1934, as amended from time to time) of Equity Interests of Parent representing more than
twenty five per cent (25%) of the combined voting power of the outstanding voting Equity Interests
or other ownership interests for the election of directors or shall have the right to elect a
majority of the Board of Directors of Parent; or (iv) any Borrower ceases to be a Wholly Owned
Subsidiary of Parent, except as otherwise permitted pursuant to this Agreement; or (v) a “Change of
Control” or similar event occurs under the terms of any document or agreement evidencing Debt of
Parent, any Borrower or any of
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their respective Subsidiaries (other than the Obligations) having an outstanding principal
balance of $5,000,000 or greater.
Chattel Paper — shall have the meaning given to the term “chattel paper” in the UCC,
but shall exclude chattel paper related exclusively to Fixed Assets.
CIP — as defined in the preamble to this Agreement.
CIP/GGB Pledge Agreement — the Pledge Agreement, dated March 11, 2005, executed by
Coltec in favor of Xxxxxxx Sealing, pursuant to which Coltec grants Xxxxxxx Sealing a Lien in the
Membership Interests.
CIP/GGB Purchase Agreement — the Purchase and Sale Agreement, dated March 11, 2005,
between Coltec and Xxxxxxx Sealing, with respect to the sale by Xxxxxxx Sealing to Coltec of the
Membership Interests.
Claims — all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, awards, and all reasonable out-of-pocket costs (including reasonable out-of-pocket remedial
response costs), charges, expenses and disbursements, of any kind or nature (including reasonable
out-of-pocket attorneys’, accountants’, consultants’, or paralegals’ fees and expenses) which may
at any time (including at any time following Full Payment of the Obligations, termination of the
Commitments, resignation or replacement of Agent or replacement of any Lender) be imposed on,
incurred by, or asserted against any Indemnitee in any way relating to or arising out of (i) the
administration or enforcement of or performance under any of the Loan Documents or consummation of
any of the transactions described herein, (ii) any action taken or omitted to be taken by any
Indemnitee under or in connection with any of the Loan Documents, (iii) the existence, perfection
or realization upon Agent’s Liens upon any Collateral, (iv) the exercise by Agent or any Lender of
any of its rights or remedies under or in connection with any of the Loan Documents, or (v) the
failure of any Obligor to observe, perform or discharge any of such Obligor’s covenants or duties
under any of the Loan Documents or the inaccuracy or incompleteness of any representation or
warranty of any Borrower in any of the Loan Documents, in each case including any reasonable
out-of-pocket costs or expenses incurred by any Indemnitee in connection with any investigation,
litigation, arbitration or other judicial or non-judicial proceeding (including any Insolvency
Proceeding or appellate proceedings) whether or not such Indemnitee is a party thereto; provided,
that Claims shall not include any of the foregoing to the extent arising from the gross negligence
or willful misconduct of Agent, any Lender or any other Indemnitee.
Closing Date — the date on which all of the conditions precedent in Section 11 are
satisfied or waived and the initial Loans are made under this Agreement.
Collateral — all of the Property and interests in Property in which a security
interest or Lien is granted in Section 7 as security for the payment or performance of any of the
Obligations; and all Property in which a security interest or Lien is granted in any of the
Security Documents as security for the payment or performance of any of the Obligations.
Coltec — as defined in the preamble to this Agreement.
Coltec/Stemco Subordinated Guaranty — the Guaranty Agreement, dated March 11, 2005,
pursuant to which Coltec guaranties the obligations under the Stemco Subordinated Note.
Coltec Subordinated Note — the subordinated promissory note, dated March 11, 2005,
made by Coltec and payable to the order of Xxxxxxx Sealing in the original principal amount of
$73,381,000.
-10-
Commercial Tort Claim — shall have the meaning given to the term “commercial tort
claim” in the UCC.
Commitment — at any date for any Lender, the amount of such Lender’s Revolver
Commitment on such date, and “Commitments” means the aggregate amount of all Revolver
Commitments on such date.
Commitment Termination Date — the date that is the soonest to occur of (i) the last
day of the Term; (ii) the date on which either Borrowers or Agent terminates the Revolver
Commitments pursuant to Section 6.2; or (iii) the date on which the Revolver Commitments are
automatically terminated pursuant to Section 12.2.
Compliance Certificate — a Compliance Certificate to be provided by Parent to Agent in
accordance with, and in the form annexed as Exhibit A to, this Agreement and the supporting
schedules to be annexed thereto.
Consolidated — the consolidation in accordance with GAAP of the accounts or other
items as to which such term applies.
Consolidated Total Assets — as of any date of determination, the Consolidated Total
Assets of Parent and its consolidated Subsidiaries, as determined on a Consolidated basis in
accordance with GAAP.
Contingent Obligation — with respect to any Person, any obligation of such Person
arising from any guaranty, indemnity or other assurance of payment or performance of any Debt,
lease, dividend or other obligation (“primary obligations”) of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, including (i) the direct or indirect
guaranty, endorsement (other than for collection or deposit in the Ordinary Course of Business),
co-making, discounting with recourse or sale with recourse by such Person of the obligation of a
primary obligor, (ii) the obligation to make take-or-pay or similar payments, if required,
regardless of nonperformance by any other party or parties to an agreement, and (iii) any
obligation of such Person, whether or not contingent, (A) to purchase any such primary obligation
or any Property constituting direct or indirect security therefor, (B) to advance or supply funds
(1) for the purchase or payment of any such primary obligations 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, (C) to purchase Property or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor to make payment of such
primary obligation or (D) otherwise to assure or hold harmless the holder of such primary
obligation against loss in respect thereof. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable amount of the primary obligation with
respect to which such Contingent Obligation is made (or, if less, the maximum amount of such
primary obligation for which such Person may be liable pursuant to the terms of the instrument
evidencing such Contingent Obligation) or, if not stated or determinable, the amount of the
liability for such Contingent Obligation required to be recorded in accordance with GAAP.
Contributing Borrower — as defined in Section 5.10.4.
Controlled Disbursement Account — a demand deposit account maintained by Borrowers at
BofA (or an Affiliate of BofA) and to which proceeds of Loans may be wired from time to time.
Convertible Debentures — the Convertible Senior Debentures Due 2015, bearing interest
at a per annum rate of 3.9375%, issued by Parent in the original principal amount of up to
$172,500,000 in accordance with the terms of the Convertible Debentures Indenture.
-11-
Convertible Debentures Indenture — the Indenture, dated as of October 26, 2005,
executed by Parent in favor of Wachovia Bank, National Association, as trustee, in connection with
the issuance of the Convertible Debentures.
Copyright Security Agreement — each Amended and Restated Copyright Security Agreement
to be executed by Borrowers in favor of Agent on or before the Closing Date and by which Borrowers
shall grant to Agent, for the benefit of Secured Parties, as security for the Obligations, a
security interest in all of Borrowers’ right, title and interest in and to the copyrights described
therein.
Credit Judgment — Agent’s reasonable judgment exercised in a manner consistent with
its customary practices or otherwise in good faith, based upon its consideration of any factor that
it believes (i) will or would reasonably be expected to affect adversely the quantity, quality, mix
or value of any Collateral, the enforceability or priority of Agent’s Liens thereon or the amount
that Agent and Lenders would be likely to receive (after taking into account delays in the payment
and estimated costs of enforcement) in the collection of the Accounts or liquidation of any of the
Collateral; (ii) causes any collateral report or financial information delivered to Agent by any
Person on behalf of any Obligor to be incomplete, inaccurate or misleading in any material respect;
(iii) materially increases the likelihood of any Insolvency Proceeding involving any Obligor; or
(iv) creates or reasonably would be expected to create or result in a Default or Event of Default.
In exercising such judgment, Agent may consider such factors already included in or tested by the
definitions of Eligible Accounts or Eligible Inventory, as well as any of the following: (a) the
financial and business climate of Borrowers’ industry, to the extent such climate would reasonably
be expected to have an effect on Borrowers; (b) changes in collection history and dilution with
respect to the Accounts; (c) changes in demand for, and pricing of, any Inventory; (d) material
changes in any concentration risks with respect to Accounts or Inventory; and (e) any of the
factors that would reasonably be expected to materially increase the credit risk of lending to any
of Borrowers on the security of the Collateral.
CWA — the Clean Water Act (33 U.S.C. §§ 1251 et seq.).
Debt — as applied to a Person means, without duplication, all liabilities, obligations
and indebtedness of such Person to any other Person, of any kind or nature, now or hereafter owing,
arising, due or payable, howsoever evidenced, created, incurred, acquired or owing, whether
primary, secondary, direct, contingent, fixed or otherwise, consisting of indebtedness for Money
Borrowed or the deferred purchase price of property, excluding trade payables, but including (i)
Capitalized Lease Obligations and all obligations or liabilities created or arising under any
conditional sale or other title retention agreement with respect to property used or acquired by
such Person, even if the rights and remedies of the lessor, seller or lender thereunder are limited
to repossession of such property; provided, however, that all such obligations and
liabilities which are limited in recourse to such property shall be included in Debt only to the
extent of the book value of such property as would be shown on a balance sheet of the applicable
Person prepared in accordance with GAAP; (ii) all obligations and liabilities of any Person secured
by any Lien on such Person’s Property, even though such Person shall not have assumed or become
liable for the payment thereof; provided, however, that all such obligations and
liabilities which are limited in recourse to such Property shall be included in Debt only to the
extent of the book value of such Property as would be shown on a balance sheet of such Person
prepared in accordance with GAAP; (iii) all Contingent Obligations of such Person; (iv) all
reimbursement obligations in connection with letters of credit or letter of credit guaranties
issued for the account of such Person; and (v) in the case of an Obligor (without duplication), the
Obligations. The Debt of a Person shall include any recourse Debt of any partnership or joint
venture in which such Person is a general partner or joint venturer.
Default — an event or condition the occurrence of which would, with the lapse of time
or the giving of notice, or both, become an Event of Default.
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Default Rate — on any date, a rate per annum that is equal to (i) in the case of each
Revolver Loan outstanding on such date, 2% in excess of the rate otherwise applicable to such Loans
on such date, and (ii) in the case of any of the other Obligations outstanding on such date, 2% in
excess of the Base Rate in effect on such date plus the Applicable Margin otherwise
applicable to Base Rate Loans on such date.
Deposit Account — shall have the meaning given to the term “deposit account” in the
UCC.
Distribution — in respect of any entity, (i) any payment of any dividends or other
distributions on Equity Interests of the entity (except distributions in such Equity Interests) and
(ii) any purchase, redemption or other acquisition or retirement for value of any Equity Interests
of the entity unless made contemporaneously from the net proceeds of the sale of Equity Interests.
Document — shall have the meaning given to the term “document” in the UCC, but shall
exclude documents related exclusively to Fixed Assets.
Dollars and the sign $ — lawful money of the United States of America.
Domestic Subsidiary — a Subsidiary of Parent that is incorporated under the laws of a
state of the United States or the District of Columbia.
Dominion Account — a special account of a Borrower or Agent established by such
Borrower at BofA or another bank selected by Borrowers, but reasonably acceptable to Agent, and
over which Agent shall have exclusive access and control for withdrawal purposes.
Dormant Subsidiary — each of the following direct or indirect Subsidiaries of Coltec:
(i) The Anchor Packing Company, a Delaware corporation, and (ii) HTCI, a Michigan corporation.
EBITDA
—with respect to any fiscal period of Obligors, Adjusted Net Earnings,
plus, to the extent deducted in the determination of Adjusted Net Earnings for that fiscal
period, interest expenses, federal, state, local and foreign income taxes, and depreciation and
amortization.
EIFA — that certain Excess Insurance Funding Agreement dated on or about June 16, 1995
by and among Coltec and various insurance companies party thereto, as amended, supplemented or
modified from time to time.
Electronic Chattel Paper — shall have the meaning given to the term “electronic
chattel paper” in the UCC.
Eligible Account — an Account that arises in the Ordinary Course of Business of a
Borrower from the sale of Inventory or rendition of services, is payable in Dollars, is subject to
Agent’s duly perfected Lien, and is deemed by Agent, in its Credit Judgment, to be an Eligible
Account. Without limiting the generality of the foregoing, no Account shall be an Eligible Account
if (i) it arises out of a sale made by a Borrower to an Affiliate of a Borrower, a Person
controlled by an Affiliate of a Borrower or a Blocked Person; (ii) it is unpaid for more than 60
days after the original due date shown on the invoice; (iii) it is due or unpaid more than 90 days
after the original invoice date; (iv) 50% or more of the Accounts from the Account Debtor are not
deemed Eligible Accounts under clauses (ii) or (iii) above; (v) the total unpaid
Accounts of the Account Debtor exceed 20% of the aggregate amount of all Accounts, to the extent of
such excess; (vi) any covenant, representation or warranty contained in this Agreement with respect
to such Account has been breached; (vii) the Account Debtor is also such Borrower’s creditor or
supplier, or has disputed liability with respect to such Account or has made any claim with respect
to any other Account due from such Account Debtor to such Borrower, or the Account otherwise is
subject to any
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right of setoff (unless waived pursuant to an agreement acceptable to Agent), counterclaim,
recoupment, reserve, defense or chargeback, provided that the Accounts of such Account Debtor shall
be ineligible only to the extent of the amount owing to such creditor or supplier or the amount of
such dispute or right of offset, counterclaim, recoupment, reserve, defense or chargeback; (viii)
an Insolvency Proceeding has been commenced by or against the Account Debtor, unless otherwise
approved by Agent, or the Account Debtor has failed, suspended or ceased doing business; (ix) to
Borrowers’ knowledge, the Account Debtor is not Solvent; (x) the invoice relating thereto is sent
to a location outside the United States or Canada or, to Borrowers’ knowledge, such Account arises
from a sale to an Account Debtor that is organized under the laws of any jurisdiction outside of
the United States or Canada or that has its principal office, assets or place of business outside
of the United States or Canada, except, in any such case, to the extent that the sale is supported
or secured by an Approved Credit Enhancement; (xi) it arises from a sale to the Account Debtor on a
xxxx-and-hold, guaranteed sale, sale-or-return, sale-on-approval, consignment or any other
repurchase or return basis; (xii) the Account Debtor is the United States or any department, agency
or instrumentality thereof, unless the applicable Borrower is not prohibited from assigning the
Account and does assign its right to payment of such Account to Agent, in a manner satisfactory to
Agent, so as to comply with the Assignment of Claims Act of 1940 (31 X.X.X. §0000 and 41 U.S.C.
§15), or is a state, county or municipality, or a political subdivision or agency thereof and
Applicable Law disallows or restricts an assignment of Accounts on which it is the Account Debtor;
provided, that, unless Agent otherwise notifies Borrowers, Accounts not satisfying this clause
(xii) in the aggregate amount not exceeding $1,000,000 shall be Eligible Accounts if all other
requirements of this definition are met; (xiii) the Account Debtor is located in any jurisdiction
which requires the filing of a Notice of Business Activities Report or similar report in order to
permit the applicable Borrower to seek judicial enforcement in such jurisdiction of payment of such
Account unless the applicable Borrower has either qualified to transact business in such
jurisdiction or filed a Notice of Business Activities Report or other required report with the
appropriate officials in those jurisdictions for the then current year; (xiv) the Account Debtor is
located in a jurisdiction in which such Borrower is deemed to be doing business under the laws of
such jurisdiction and which denies creditors access to its courts in the absence of qualification
to transact business in such jurisdiction or of the filing of any reports with such jurisdiction,
unless such Borrower has qualified to transact business in such jurisdiction or has filed all
required reports; (xv) the Account is subject to a Lien other than a Permitted Lien; (xvi) the
goods giving rise to such Account have not been delivered to and accepted by the Account Debtor,
the services giving rise to such Account have not been performed by such Borrower and accepted by
the Account Debtor, or the Account otherwise does not represent a final sale; (xvii) the Account is
evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to judgment; (xviii)
the Account represents a progress billing or a retainage or arises from a sale on a
cash-on-delivery basis; (xix) such Borrower has made any agreement with the Account Debtor for any
deduction therefrom, except for discounts or allowances for prompt payment or otherwise made in the
Ordinary Course of Business and which discounts or allowances (other than discounts for prompt
payment in the Ordinary Course of Business) are reflected in the calculation of the face value of
each invoice related to such Account; (xx) such Borrower has made an agreement with the Account
Debtor to extend the time of payment thereof; (xxi) the Account represents, in whole or in part, a
billing for interest, fees or late charges, provided that such Account shall be ineligible only to
the extent of the amount of such billing; (xxii) it arises from the sale of Inventory that is not
Eligible Inventory pursuant to clause (ii) of the definition of “Eligible Inventory”; or
(xxiii) it arises from a retail sale of Inventory to a Person who is purchasing the same primarily
for personal, family or household purposes.
Eligible Assignee — a Person that is a Lender, a U.S. based Affiliate of a Lender or
an Approved Fund (as defined below); a commercial bank, finance company, or other financial
institution, in each case that is organized under the laws of the United States or any state, has
total assets in excess of $5 billion, extends asset-based lending facilities of the type
contemplated herein in the Ordinary Course of Business and whose becoming an assignee would not
constitute a prohibited transaction under Section 4975 of ERISA or any other Applicable Law, is
acceptable to Agent and, unless a Default or an Event of Default
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exists, Borrowers (such approval by Borrowers, when required, not to be unreasonably withheld
or delayed); and, at any time that an Event of Default exists, any other Person acceptable to Agent
in its discretion. The term “Approved Fund” means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit
in the Ordinary Course of Business of such Person and that is administered or managed by (i) a
Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that
administers or manages a Lender.
Eligible Inventory — Inventory which is owned by a Borrower (other than packaging or
shipping materials, labels, samples, display items, bags, and replacement parts and manufacturing
supplies used in a Borrower’s business) and which Agent, in its Credit Judgment, deems to be
Eligible Inventory. Without limiting the generality of the foregoing, no Inventory shall be
Eligible Inventory unless: (i) it is raw materials, finished goods or, if the Value of Eligible
Inventory is being determined pursuant to an Orderly Liquidation Value Appraisal, work-in-process;
(ii) it is owned by a Borrower and it is not held by such Borrower on consignment from or subject
to any guaranteed sale, sale-or-return, sale-on-approval or repurchase agreement with any supplier;
(iii) it is in good and saleable condition and is not damaged, defective, shopworn or otherwise
unfit for sale; (iv) it is not slow-moving, obsolete or unmerchantable and is not goods returned to
such Borrower by or repossessed from an Account Debtor; (v) it meets all standards imposed by any
Governmental Authority and does not constitute hazardous materials under any Environmental Law to
the extent such goods can be transported or sold only with licenses or permits that are not readily
available; (vi) it conforms in all respects to the warranties and representations set forth in this
Agreement and is fully insured in the manner required by this Agreement; (vii) it is at all times
subject to Agent’s duly perfected, first priority security interest and no other Lien except, in
each case, a Permitted Lien; (viii) if it is located in a public warehouse or in possession of a
bailee or in a facility leased by a Borrower, the applicable warehouseman, bailee or lessor has
delivered to Agent a Lien Waiver or, if required by Agent, a Rent Reserve has been established for
such location; (ix) it is not in transit or outside the continental United States and is not
consigned or leased to any Person; (x) it is not the subject of a negotiable warehouse receipt or
other negotiable Document; (xi) it has not been sold or leased and such Borrower has not received
any deposit or down payment in respect thereof in anticipation of a sale; (xii) it does not contain
or bear any Intellectual Property licensed to a Borrower by any Person, unless Agent is satisfied
that it may sell or otherwise dispose of such Inventory in accordance with the terms of Section 12
without infringing the rights of such Person or violating any contract with such Person (and
without payment of any royalties other than any royalties due with respect to the sale or
disposition of such Inventory pursuant to the existing license agreement) and, if requested by
Agent, as to which such Borrower has delivered to Agent a consent or sublicense agreement from such
licensor in form and substance acceptable to Agent; and (xiii) it is not the subject of an
Intellectual Property Claim.
Enforcement Action — action taken or to be taken by Agent, during any period that an
Event of Default exists, to enforce collection of the Obligations or to realize upon the Collateral
(whether by judicial action, under power of sale, by self-help repossession, by notification to
Account Debtors, or by exercise of rights of setoff or recoupment).
Environmental Laws — all federal, state, local and foreign laws, rules, regulations,
codes, ordinances, orders and consent decrees (together with all permits and guidance documents
promulgated by regulatory agencies, to the extent having the force of law), now or hereafter in
effect, that relate to public health (but excluding occupational safety and health, to the extent
regulated by OSHA) or the protection or pollution of the environment, whether now or hereafter in
effect, including CERCLA, RCRA and CWA.
Environmental Release — a release as defined in CERCLA or under any other applicable
Environmental Laws.
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Equipment — shall have the meaning given to the term “equipment” in the UCC and shall
include, without limitation, with respect to any Person, all of such Person’s now owned or
hereafter acquired machinery, equipment, furniture, furnishings, fixtures, and other tangible
personal property (except Inventory), including embedded software, motor vehicles with respect to
which a certificate of title has been issued, aircraft, dies, tools, jigs, molds and office
equipment, as well as all of such types of property leased by such Person and all of such Person’s
rights and interests with respect thereto under such leases (including, without limitation, options
to purchase); together with all present and future additions and accessions thereto, replacements
therefor, component and auxiliary parts and supplies used or to be used in connection therewith,
and all substitutes for any of the foregoing, and all manuals, drawings, instructions, warranties
and rights with respect thereto; wherever any of the foregoing is located.
Equity Interest — (i) with respect to any Person that is a corporation, any and all
shares, interests or equivalents in capital stock (whether voting or nonvoting, and whether common
or preferred) of such corporation, and (ii) with respect to any Person that is not a corporation,
any and all partnership, membership, limited liability company or other equity interests of such
Person; and in each case, any and all warrants, rights or options to purchase any of the foregoing.
ERISA — the Employee Retirement Income Security Act of 1974.
Eurocurrency Liabilities — as defined in the definition of Adjusted LIBOR Rate.
Event of Default — as defined in Section 12.
Excess — as defined in Section 3.11.
Excess Collateral Amount — on any date of determination thereof, an amount equal to
the difference between (a) the aggregate Excess Collateral Providers Borrowing Base (without giving
effect to any reduction thereto as a result of the proviso set forth in such definition) minus (b)
the Aggregate Revolver Outstandings of the Excess Collateral Providers at such time.
Excess Collateral Providers — Coltec, CIP, Xxxxxxx Bearings, CCC and Stemco LP (TX).
Excess Collateral Providers Accounts and Inventory Borrowing Base — on any date of
determination thereof, an amount equal to (i) the sum of (a) 85% of the Net Amount of Eligible
Accounts of the Excess Collateral Providers on such date plus (b) the Excess Collateral
Providers Inventory Formula Amount minus (ii) the portion of the Availability Reserve
applicable to the Excess Collateral Providers on such date.
Excess Collateral Providers Borrowing Base — on any date of determination thereof, an
amount equal to the Excess Collateral Providers Accounts and Inventory Borrowing Base;
provided that there shall be subtracted from the Excess Collateral Providers Borrowing Base
an amount equal to the excess of (i) the sum (without duplication) of (a) the unpaid balance of
Revolver Loans allocated to Xxxxxxx Sealing, (b) the aggregate amount of Pending Revolver Loans to
be allocated to Xxxxxxx Sealing, (c) one hundred percent (100%) of the aggregate undrawn face
amount of all outstanding Letters of Credit issued for the account of Xxxxxxx Sealing, and (d) the
aggregate amount of any unpaid reimbursement obligations in respect of Letters of Credit issued for
the account of Xxxxxxx Sealing over (ii) the Xxxxxxx Sealing Accounts and Inventory Borrowing Base.
Excess Collateral Providers Inventory Formula Amount — on any date of determination
(i) prior to the delivery to Agent of the first Orderly Liquidation Value Appraisal and Agent’s
approval thereof, an amount equal to 50% of the Value of Eligible Inventory of the Excess
Collateral Providers on such date,
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and (ii) on or after the delivery to Agent of the first Orderly Liquidation Value Appraisal
and Agent’s approval thereof, an amount equal to the lesser of (a) 65% of the Value of Eligible
Inventory of the Excess Collateral Providers on such date or (b) 85% of the product obtained by
multiplying the Value of Eligible Inventory of the Excess Collateral Providers on such date by the
Net Orderly Liquidation Value Percentage.
Excluded Taxes — with respect to Agent, any Lender, the Issuing Bank or any other
recipient of any payment to be made by or on account of any obligation of the Borrowers hereunder,
(a) income or franchise taxes imposed on (or measured by) its net income by the United States, or
by the jurisdiction under the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable lending office is located,
(b) any branch profits taxes imposed by the United States or any similar tax imposed by any other
jurisdiction in which its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, and (c) in the case of a Foreign Lender, any withholding tax
that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a
party to this Agreement (or designates a new lending office) or is attributable to such Foreign
Lender’s failure to comply with Section 5.9, except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending office (or assignment),
to receive additional amounts from the Borrowers with respect to such withholding tax pursuant to
Section 5.8.
Executive Order No. 13224 — Executive Order No. 13224 on Terrorist Financing,
effective September 24, 2001.
Exempted Debt — as defined in the Senior Notes Indenture.
Extraordinary Expenses — all costs, expenses, fees (including reasonable out-of-pocket
fees incurred to Agent Professionals) or advances that Agent or any Lender may suffer or incur
during any period that a Default or Event of Default exists, or during the pendency of an
Insolvency Proceeding of an Obligor, on account of or in connection with (i) the audit, inspection,
repossession, storage, repair, appraisal, insuring, completion of the manufacture of, preparing for
sale, advertising for sale, selling, collecting or otherwise preserving or realizing upon any
Collateral; (ii) any action, suit, litigation, arbitration, contest or other judicial or
non-judicial proceeding (whether instituted by or against Agent, any Lender, any Obligor, any
representative of creditors of any Obligor or any other Person) in any way arising out of or
relating to any of the Collateral (or the validity, perfection, priority or avoidability of Agent’s
Liens with respect to any of the Collateral), any of the Loan Documents or the validity, allowance
or amount of any of the Obligations, including any lender liability or other Claims asserted
against Agent or any Lender; (iii) the exercise, protection or enforcement of any rights or
remedies of Agent in, or the monitoring of, any Insolvency Proceeding; (iv) the settlement or
satisfaction of any Liens upon any Collateral (whether or not such Liens are Permitted Liens); (v)
the collection or enforcement of any of the Obligations, whether by Enforcement Action or
otherwise; (vi) the negotiation, documentation, and closing of any amendment, waiver, restructuring
or forbearance agreement with respect to the Loan Documents or Obligations; (vi) amounts advanced
by Agent pursuant to Sections 8.1.3 or 15.10; or (viii) the enforcement of any of the provisions of
any of the Loan Documents. Such costs, expenses and advances may include transfer fees, taxes,
storage fees, insurance costs, permit fees, utility reservation and standby fees, legal fees,
appraisal fees, brokers’ fees and commissions, auctioneers’ fees and commissions, accountants’
fees, environmental study fees, wages and salaries paid to employees of any Obligor or independent
contractors in liquidating any Collateral, travel expenses, all other fees and expenses payable or
reimbursable by Borrowers or any other Obligor under any of the Loan Documents, and all other fees
and expenses associated with the enforcement of rights or remedies under any of the Loan Documents,
but excluding overhead of Agent or any Lender or compensation paid to employees (including inside
legal counsel who are employees) of Agent or any Lender.
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Federal Funds Rate — for any period, a fluctuating interest rate per annum equal for
each date during such period to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business Day)
in Atlanta, Georgia by the Federal Reserve Bank of Atlanta, or if such rate is not so published for
any day which is a Business Day, the average of the quotations for such day on such transactions
received by Agent from 3 federal funds brokers of recognized standing selected by Agent.
Fee Letter — the fee letter agreement between Agent and Coltec on behalf of each
Borrower.
FEIN — with respect to any Person, the Federal Employer Identification Number of such
Person.
Fiscal Quarter — a period of 3 consecutive months that end on the last day of March,
June, September or December.
Fiscal Year — the fiscal year of Parent and its Subsidiaries for accounting and tax
purposes, which ends on December 31 of each year.
Fixed Assets — with respect to Parent and its Subsidiaries, all Real Property and
Equipment of Parent and its Subsidiaries.
Fixed Asset Lien — a Lien upon Fixed Assets which secures Debt, but only if such Lien
shall at all times be confined solely to Fixed Assets (and Chattel Paper, Documents and General
Intangibles solely related thereto and proceeds, including insurance proceeds, thereof) and, in the
case of any such Lien on Real Property, Borrowers shall have delivered to Agent a duly executed
mortgagee waiver and access agreement from the applicable mortgagee, in form and substance
reasonably acceptable to Agent, whereby such mortgagee acknowledges that it does not have a Lien on
any of the Collateral and agrees to allow Agent access to the mortgaged Real Property.
Fixed Charge Coverage Ratio — as of any date of determination, the ratio of (i) EBITDA
plus administrative expenses and defense costs relating to asbestos claims to the extent
such costs and expenses are not reimbursed by insurance (or by reimbursement from any trust
established from the proceeds received from insurers with respect to the settlement of asbestos
insurance obligations) and are expensed through the profit and loss statements of Obligors during
such fiscal period to (ii) Fixed Charges, in each case as determined for Parent and its
consolidated Subsidiaries on a Consolidated basis for the twelve fiscal month period ending on such
date of determination.
Fixed Charges — with respect to any fiscal period of Parent and its consolidated
Subsidiaries on a Consolidated basis, without duplication, (i) interest expense, plus (ii)
Capital Expenditures (excluding Capital Expenditures funded with Debt other than Revolver Loans,
but including, without duplication, principal payments with respect to such Debt), plus
(iii) scheduled principal payments of Debt, plus (iv) federal, state, local and foreign
income taxes (excluding deferred taxes), plus (v) payments, administrative expenses and
defense costs (net of insurance reimbursements received and reimbursements received from any trust
established from the proceeds received from insurers with respect to the settlement of asbestos
insurance obligations) relating to asbestos claims and litigation against any Obligor or its
Subsidiaries, plus (vi) all Distributions made by Parent during such fiscal period.
FLSA — the Fair Labor Standards Act of 1938.
Foreign Lender — any Lender that is organized under the laws of a jurisdiction other
than the laws of the United States, any state thereof or the District of Columbia.
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Foreign Subsidiary — a Subsidiary that is not a Domestic Subsidiary.
Full Payment — with respect to any of the Obligations, the full, final and
indefeasible payment in full, in cash and in Dollars (or, if requested by Agent or the Issuing Bank
with respect to any reimbursement obligations owing with respect to any Letter of Credit issued in
a foreign currency, in such foreign currency), of such Obligations, including all interest, fees
and other charges payable in connection therewith under any of the Loan Documents, whether such
interest, fees or other charges accrue or are incurred prior to or during the pendency of an
Insolvency Proceeding and whether or not any of the same are allowed or recoverable in any
Bankruptcy Case pursuant to Section 506 of the Bankruptcy Code or otherwise; with respect to any LC
Obligations represented by undrawn Letters of Credit and Banking Relationship Debt (including Debt
arising under Hedging Agreements), the depositing of cash with Agent, as security for the payment
of such Obligations, not to exceed 105% of the aggregate undrawn amount of such Letters of Credit
and 105% of Agent’s good faith estimate of the amount of Banking Relationship Debt due and to
become due after termination of such Bank Products. None of the Loans shall be deemed to have been
paid in full until all Commitments related to such Loans have expired or been terminated.
Funded Debt — with respect to Obligors and their Subsidiaries, (i) Debt of Obligors
and their Subsidiaries consisting of or relating to (a) the borrowing of money or the obtaining of
credit (other than trade payables incurred in the Ordinary Course of Business), including the
Obligations and the Convertible Debentures, (b) the deferred purchase price of assets (other than
trade payables incurred in the Ordinary Course of Business), or (c) Capitalized Lease Obligations,
and (ii) Debt of the type referred to in clause (i) of another Person guaranteed by an
Obligor or Subsidiary.
GAAP — generally accepted accounting principles in the United States in effect from
time to time.
Garlock Bearing — as defined in the preamble to this Agreement.
Xxxxxxx International — as defined in the preamble to this Agreement.
Xxxxxxx Overseas — as defined in the preamble to this Agreement.
Xxxxxxx Sealing — as defined in the preamble to this Agreement.
Xxxxxxx Sealing Accounts and Inventory Borrowing Base — on any date of determination
thereof, an amount equal to (i) the sum of (a) 85% of the Net Amount of Eligible Accounts of
Xxxxxxx Sealing on such date plus (b) the Xxxxxxx Sealing Inventory Formula Amount
minus (ii) the portion of the Availability Reserve applicable to Xxxxxxx Sealing on such
date.
Xxxxxxx Sealing Borrowing Base — on any date of determination thereof, an amount equal
to (i) the sum of (a) the Xxxxxxx Sealing Accounts and Inventory Borrowing Base at such time
plus (b) the Excess Collateral Amount at such time minus (ii) the outstanding
principal balance of the Permitted Excess Collateral Provider Loans at such time.
Xxxxxxx Sealing Inventory Formula Amount — on any date of determination (i) prior to
the delivery to Agent of the first Orderly Liquidation Value Appraisal and Agent’s approval
thereof, an amount equal to 50% of the Value of Eligible Inventory of Xxxxxxx Sealing on such date,
and (ii) on or after the delivery to Agent of the first Orderly Liquidation Value Appraisal and
Agent’s approval thereof, an amount equal to the lesser of (a) 65% of the Value of Eligible
Inventory of Xxxxxxx Sealing on such date or (b) 85% of the product obtained by multiplying the
Value of Eligible Inventory of Xxxxxxx Sealing on such date by the Net Orderly Liquidation Value
Percentage.
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Xxxxxxx Xxxxxxx Subordination Agreement — the Amended and Restated Subordination
Agreement between Xxxxxxx Sealing and Agent, subordinating the Debt evidenced by the Coltec
Subordinated Note to the Obligations and the Lien granted to Xxxxxxx Sealing pursuant to the
CIP/GGB Pledge Agreement to Agent’s Liens.
Xxxxxxxx — as defined in the preamble to this Agreement.
General Intangible — shall have the meaning given to the term “general intangible” in
the UCC, but shall exclude general intangibles related exclusively to Fixed Assets. The term
“general intangibles” shall include, except to the extent related exclusively to Fixed Assets, each
Obligor’s choses in action, causes of action, company or other business records, inventions,
blueprints, designs, patents, patent applications, trademarks, trademark applications, trade names,
trade secrets, service marks, goodwill, brand names, copyrights, registrations, licenses,
franchises, customer lists, permits, tax refund claims, computer software, operational manuals,
internet addresses and domain names, insurance refunds and premium rebates, all rights to
indemnification and all other intangible property of such Obligor of every kind and nature (other
than Accounts).
GGB — as defined in the preamble to this Agreement.
Goods — shall have the meaning given to the term “goods” in the UCC.
Governmental Approvals — all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and reports to, all Governmental Authorities.
Governmental Authority — any federal, state, municipal, national, foreign or other
governmental department, commission, board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each
case whether associated with a state of the United States, the District of Columbia or a foreign
entity or government.
Guarantors — Parent, each Subsidiary Guarantor, and each other Person who guarantees
payment or performance of the whole or any part of the Obligations.
Guaranty — each guaranty agreement now or hereafter executed by a Guarantor in favor
of Agent with respect to any of the Obligations.
Hedging Agreement — any interest rate protection agreement, foreign currency exchange
agreement, forward contract, currency swap agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
Impermissible Qualification — any qualification or exception to the opinion or
certification of any independent public accountant as to any financial statement of Borrowers which
(i) is of a “going concern” or similar nature, (ii) relates to the limited scope of examination of
matters relevant to such financial statements, or (iii) relates to the treatment or classification
of any item in such financial statement that, if removed, would require an adjustment to such item
the effect of which would be to cause a violation of Section 10.3.
Increase Effective Date — as defined in Section 2.2.2.
Indemnified Taxes — Taxes other than Excluded Taxes.
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Indemnitees — the Agent Indemnitees, the Lender Indemnitees, Issuing Bank Indemnitees
and the BofA Indemnitees.
Initial Lenders — BofA, Citicorp USA, Inc. and Wachovia Bank, National Association
each in its capacity as a “Lender” under this Agreement on the Closing Date.
Insolvency Proceeding — any action, case or proceeding commenced by or against a
Person under any state, federal or foreign law, or any agreement of such Person, for (i) the entry
of an order for relief under any chapter of the Bankruptcy Code or other insolvency or debt
adjustment law (whether state, federal or foreign), (ii) the appointment of a receiver (or
administrative receiver), trustee, liquidator, administrator, conservator or other custodian for
such Person or any part of its Property, (iii) an assignment or trust mortgage for the benefit of
creditors of such Person, or (iv) the liquidation, dissolution or winding up of the affairs of such
Person.
Instrument — shall have the meaning given to the term “instrument” in the UCC.
Insurance Receivables Rights — all rights and interests, now owned or hereafter
acquired, in and to the insurance accounts receivable with respect to the Asbestos Insurance
Policies, and any supplementary or other contracts issued in connection with such Asbestos
Insurance Policies (including, if the applicable insurer is a party thereto, the EIFA), any
additional insurance proceeds of such insurance policies which are or may hereafter become payable,
and all claims, options, privileges, rights and interests in and under such policies to collect and
receive such accounts receivable and insurance proceeds, subject to all of the terms and conditions
of such policies.
Intellectual Property — all intellectual and similar Property of a Person of every
kind and description, including inventions, designs, patents, patent applications, copyrights,
trademarks, service marks, trade names, mask works, trade secrets, confidential or proprietary
information, know-how, software and databases and all embodiments or fixations thereof and related
documentation, registrations and franchises, all books and records describing or used in connection
with the foregoing and all licenses, or other rights to use any of the foregoing.
Intellectual Property Claim — the assertion by any Person of a claim (whether asserted
in writing, by action, suit or proceeding or otherwise) that any Borrower’s ownership, use,
marketing, sale or distribution of any Inventory, Equipment, Intellectual Property or other
Property is violative of any ownership or right to use any Intellectual Property of such Person.
Intercompany Subordination Agreement — the Subordination Agreement dated on or about
the Closing Date by and among Parent, Borrowers and certain of their respective Subsidiaries
subordinating certain intercompany Debt and other liabilities to the Obligations and such Persons’
obligations under the Loan Documents.
Interest — as defined in Section 3.11.
Interest Period — as defined in Section 3.1.3.
Inventory — shall have the meaning given to the term “inventory” in the UCC and shall
include all goods intended for sale or lease by an Obligor, or for display or demonstration; all
work in process, all raw materials and other materials and supplies of every nature and description
used or which might be used in connection with the manufacture, printing, packing, shipping,
advertising, selling, leasing or furnishing of such goods or otherwise used or consumed in an
Obligor’s business (but excluding Equipment).
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Xxxxxxxxx Xxxxxxx — such reserves as may be established from time to time by Agent in
its Credit Judgment to reflect changes in the salability of any Eligible Inventory in the Ordinary
Course of Business or such other factors as may negatively impact the Value of any Eligible
Inventory. Without limiting the generality of the foregoing, such reserves may include reserves
based on obsolescence, seasonality, theft or other shrinkage, imbalance, change in composition or
mix, markdowns, and vendor chargebacks.
Investment Property — shall have the meaning given to the term “investment property”
in the UCC and shall include all securities (whether certificated or uncertificated), security
entitlements, securities accounts, commodity contracts and commodity accounts.
Issuing Bank — BofA or an Affiliate of BofA.
Issuing Bank Indemnitees — Issuing Bank and its Affiliates, and all of their
respective present and future officers, directors, employees, agents and attorneys.
LC Application — an application by any or all Borrowers to Issuing Bank (which may be
joined in by any other Obligor or any Subsidiary of a Borrower), pursuant to a form approved by
Issuing Bank, for the issuance of a Letter of Credit, that is submitted to Issuing Bank at least 3
Business Days prior to the requested issuance of such Letter of Credit.
LC Conditions — the following conditions, the satisfaction of each of which is
required before Issuing Bank shall be obligated issue a Letter of Credit: (i) each of the
conditions set forth in Section 11 has been and continues to be satisfied, including the absence of
any Default or Event of Default; (ii) after giving effect to the issuance of the requested Letter
of Credit and all other unissued Letters of Credit for which an LC Application has been signed by a
Borrower and approved by Agent and Issuing Bank, the LC Obligations would not exceed $30,000,000
and no Out-of-Formula Condition would exist, and, if no Revolver Loans are outstanding, the LC
Obligations do not, and would not upon the issuance of the requested Letter of Credit, exceed
Availability of Xxxxxxx Sealing or the Excess Collateral Providers, as the case may be, or
Aggregate Availability; (iii) such Letter of Credit has an expiration date that is no more than 365
days from the date of issuance in the case of standby Letters of Credit and no more than 180 days
from the date of issuance in the case of documentary Letters of Credit and, in either event, such
expiration date is at least 30 days prior to the last Business Day of the Term unless otherwise
agreed by Agent in its discretion; (iv) the currency in which payment is to be made under the
Letter of Credit is Dollars or, with Issuing Bank’s consent, another currency in which Issuing Bank
issues letters of credit; and (v) the form of the proposed Letter of Credit is reasonably
satisfactory to Agent and Issuing Bank, provides for sight drafts only and does not contain any
language that automatically increases the amount available to be drawn under the Letter of Credit.
LC Documents — any and all agreements, instruments and documents (including an LC
Application) required by Issuing Bank to be executed by Borrowers or any other Person and delivered
to Issuing Bank for the issuance, amendment or renewal of a Letter of Credit.
LC Facility — the subfacility for Letters of Credit established as part of the
Revolver Commitments pursuant to Section 2.3.
LC Obligations — on any date, an amount (in Dollars) equal to the sum of (without
duplication) (i) all amounts then due and payable by any Obligor on such date by reason of any
payment that is made by Issuing Bank under a Letter of Credit and that has not been repaid to
Issuing Bank, plus (ii) the aggregate undrawn amount of all Letters of Credit which are
then outstanding or for which an LC Application has been delivered to and accepted by Issuing Bank,
plus (iii) all fees and other amounts due in respect of Letters of Credit outstanding on
such date.
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LC Request — a request for issuance of a Letter of Credit, to be provided by a
Borrower to Issuing Bank, in form satisfactory to Agent and Issuing Bank.
Lender Indemnitees — Lenders and their respective Affiliates, and all of their
respective present and future officers, directors, employees, agents and attorneys.
Lenders — shall have the meaning given to it in the preamble to this Agreement and
shall include BofA (whether in its capacity as a provider of Loans under Section 2 or as the
provider of Swingline Loans under Section 4.1.3) and any other Person who may from time to time
become a “Lender” under this Agreement.
Letter of Credit — any standby or documentary letter of credit issued by Issuing Bank
for the account of any Borrower (whether individually or as co-applicant with another Obligor or
Subsidiary of an Obligor).
Letter-of-Credit Right — shall have the meaning given to the term
“letter-of-credit-right” in the UCC.
LIBOR Lending Office — with respect to a Lender, the office designated by such Lender
as its LIBOR Lending Office or, in the absence of such designation, the office of such Lender at
the address shown for such Lender on the signature page hereof (or on any Assignment and
Acceptance, in the case of an assignee) or such other office of such Lender or any of its
Affiliates that is hereafter designated by written notice to Agent.
LIBOR Loan — a Loan, or portion thereof, during any period in which it bears interest
at a rate based upon the applicable Adjusted LIBOR Rate.
Lien — any interest in Property securing an obligation owed to, or a claim by, a
Person other than the owner of the Property, whether such interest is based on common law, statute
or contract. The term “Lien” shall also include reservations, exceptions, encroachments,
easements, rights-of-way, covenants, conditions, restrictions, leases (as lessor) and other title
exceptions and encumbrances affecting Property. For the purpose of this Agreement, an Obligor
shall be deemed to be the owner of any Property which it has acquired or holds subject to a
conditional sale agreement or other arrangement pursuant to which title to the Property has been
retained by or vested in some other Person for security purposes.
Lien Waiver — an agreement duly executed in favor of Agent, in form and content
reasonably acceptable to Agent, by which (i) for locations leased by an Obligor, an owner or
mortgagee of premises upon which any Property of an Obligor is located agrees to waive or
subordinate any Lien it may have with respect to such Property in favor of Agent’s Lien therein and
to permit Agent to enter upon such premises and remove such Property or to use such premises to
store or dispose of such Property, or (ii) for locations at which any Obligor places Inventory with
a warehouseman or a processor, such warehouseman or processor agrees to waive or subordinate any
Lien it may have with respect to such Property in favor of Agent’s Lien therein and to permit Agent
to enter upon such premises and remove such Property or to use such premises to store or dispose of
such Property; provided, that the Lien waiver agreements executed in connection with the Original
Loan Agreement are deemed reasonably acceptable Lien Waivers hereunder.
Loan — a Revolver Loan (and each Base Rate Loan and LIBOR Loan comprising such Loan).
Loan Account — the loan account established by each Lender on its books pursuant to
Section 5.7.
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Loan Documents — this Agreement, the Other Agreements and the Security Documents.
Loan Year — a period commencing each calendar year on the same month and day as the
date of this Agreement and ending on the same month and day in the immediately succeeding calendar
year, with the first such period (i.e. the first Loan Year) to commence on the date of this
Agreement.
Margin Stock — shall have the meaning ascribed to it in Regulation U and of the Board
of Governors.
Material Adverse Effect — the effect of any event, condition, action, omission or
circumstance, which, alone or when taken together with other events, conditions, actions, omissions
or circumstances occurring or existing concurrently therewith, (i) has a material adverse effect
upon the business, operations, Properties or condition (financial or otherwise) of Obligors, taken
as a whole; (ii) has or would be reasonably expected to have any material adverse effect whatsoever
upon the validity or enforceability of this Agreement or any of the other Loan Documents against
Parent, any Borrower or any other Obligor with assets having a book value of $2,000,000 or more;
(iii) has a material adverse effect upon the value of the Collateral, taken as a whole, the Liens
of Agent with respect to the Collateral, taken as a whole, or the priority of such Liens, taken as
a whole; (iv) impairs in any material respect the ability of Parent, any Borrower or any other
Obligor with assets having a book value of $2,000,000 or more to perform its obligations under this
Agreement or any of the other Loan Documents, including repayment of any of the Obligations when
due; or (v) impairs in any material respect the ability of Agent or any Lender to enforce or
collect the Obligations or realize upon any material portion of the Collateral in accordance with
the Loan Documents and Applicable Law.
Material Contract — an agreement to which an Obligor is a party (other than the Loan
Documents) (i) which is deemed to be a material contract as provided in Regulation S-K promulgated
by the SEC under the Securities Act of 1933 (excluding material contracts described under paragraph
(b)(10)(iii) of Item 601 of Regulation S-K) or (ii) for which breach, termination, cancellation,
nonperformance or failure to renew would reasonably be expected to have a Material Adverse Effect.
Maximum Rate — the maximum non-usurious rate of interest permitted by Applicable Law
that at any time, or from time to time, may be contracted for, taken, reserved, charged or received
on the Debt in question or, to the extent that at any time Applicable Law may thereafter permit a
higher maximum non-usurious rate of interest, then such higher rate. Notwithstanding any other
provision hereof, the Maximum Rate shall be calculated on a daily basis (computed on the actual
number of days elapsed over a year of 365 or 366 days, as the case may be).
Membership Interests — the membership interests of CIP and Garlock Bearing previously
owned by Xxxxxxx Sealing and sold to Coltec pursuant to the CIP/GGB Purchase Agreement.
Mercantile Account — as defined in Section 8.2.5.
Money Borrowed — as applied to any Person, without duplication, (i) Debt arising from
the lending of money by any other Person to such Person; (ii) Debt, whether or not in any such case
arising from the lending of money by another Person to such Person, (A) which is represented by
notes payable or drafts accepted that evidence extensions of credit, (B) which constitutes
obligations evidenced by bonds, debentures, notes or similar instruments, or (C) upon which
interest charges are customarily paid (other than accounts payable) or that was issued or assumed
as full or partial payment for Property (other than accounts payable); (iii) Debt that constitutes
a Capitalized Lease Obligation; (iv) reimbursement obligations with respect to letters of credit or
guaranties of letters of credit; and (v) Debt of such Person under any guaranty of obligations that
would constitute Debt for Money Borrowed under clauses (i)
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through (iii) hereof, if owed directly by such Person.
Xxxxx’x — Xxxxx’x Investors Services, Inc.
Multiemployer Plan — has the meaning set forth in Section 4001(a)(3) of ERISA.
Net Amount — on any date of determination thereof, the face amount of Accounts of
Xxxxxxx Sealing or the Excess Collateral Providers, as applicable, on such date less any and all
returns, rebates, discounts (which may, at Agent’s option, be calculated on shortest terms),
credits, allowances or sales, excise or other similar Taxes) at any time issued, owing, claimed by
Account Debtors, granted, outstanding or payable in connection with, or any interest accrued on the
amount of, such Accounts at such date.
Net Orderly Liquidation Value Percentage — at any date and with respect to any
Inventory, the percentage of the Value of such Inventory expected to be realized at an orderly,
negotiated sale of such Inventory that is held within a reasonable period of time, as such
percentage is reasonably determined by Agent from the most recent Orderly Liquidation Value
Appraisal received by Agent on or before such date.
Non-Consenting Lender — as defined in Section 13.17.
Notice of Borrowing — as defined in Section 4.1.1(i).
Notice of Conversion/Continuation — as defined in Section 3.1.2(ii).
Obligations — in each case, whether now in existence or hereafter incurred or arising,
(i) the principal of, and interest and premium, if any, on the Loans, (ii) all LC Obligations and
all other obligations of any Obligor to Agent or Issuing Bank arising in connection with the
issuance of any Letter of Credit, (iii) all liabilities and obligations of Borrowers under any
indemnity for Claims, (iv) all Extraordinary Expenses, and (v) all other Debts, covenants, duties
and obligations (including Contingent Obligations) now or at any time or times hereafter owing by
any Obligor to Agent or any Lender under or pursuant to this Agreement or any of the other Loan
Documents (including any Guaranty), or owing by any Bank Products Obligor to Agent or any Lender
(or any Affiliate of any Lender) with respect to Banking Relationship Debt, in each case, whether
evidenced by any note or other writing, whether arising from any extension of credit, opening of a
letter of credit, acceptance, loan, guaranty, indemnification or otherwise and whether direct or
indirect, absolute or contingent, due or to become due, primary or secondary, or joint or several,
including all interest, charges, expenses, fees or other sums chargeable to any or all Obligors
under any of the Loan Documents.
Obligor — each Borrower and each Guarantor.
Orderly Liquidation Value Appraisal — an appraisal of the orderly liquidation value of
Inventory of Borrowers performed by an appraiser reasonably satisfactory to Agent, which appraisal
shall include, without limitation, as a factor in the determination of orderly liquidation value,
all costs and expenses projected to be incurred in the conduct of any liquidation of all or any
portion of the Inventory.
Ordinary Course of Business — with respect to any transaction involving any Person,
the ordinary course of such Person’s business, as undertaken by such Person in good faith and not
for the purpose of evading any covenant or restriction in any Loan Document.
Organic Documents — with respect to any Person, its charter, certificate or articles of
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incorporation, bylaws, articles of organization, limited liability agreement, operating
agreement, members agreement, shareholders agreement, partnership agreement, certificate of
partnership, certificate of formation, voting trust, or similar agreement or instrument governing
the formation or operation of such Person.
Original Lender — as defined in the preamble to this Agreement.
Original Loan Agreement — as defined in the preamble to this Agreement.
Original Loan Document — as defined in Section 15.18.
Original Security Agreement — as defined in the preamble to this Agreement.
OSHA — the Occupational Safety and Hazard Act of 1970.
Other Agreements — the Fee Letter, the LC Documents, the Subordination Agreements,
each Lien Waiver, and any and all other agreements, instruments and documents (other than this
Agreement and the Security Documents), heretofore, now or hereafter executed by any Borrower or any
other Obligor and delivered to Agent or any Lender, in each case in respect of the transactions
contemplated by this Agreement or other Loan Documents.
Out-of-Formula Condition — as defined in Section 2.1.2.
Out-of-Formula Loan — a Revolver Loan made or outstanding when an Out-of-Formula
Condition exists or the amount of any Revolver Loan which, when funded, results in an
Out-of-Formula Condition.
Parent — as defined in the preamble to this Agreement.
Participant — as defined in Section 14.2.1.
Participating Lender — as defined in Section 2.3.2(i).
Patent Security Agreement — each Amended and Restated Patent Security Agreement to be
executed by Borrowers in favor of Agent on or before the Closing Date and by which Borrowers shall
grant to Agent, for the benefit of Secured Parties, as security for the Obligations, a security
interest in all of Borrowers’ right, title and interest in and to the patents described therein.
Paying Borrower — as defined in Section 5.10.4.
Payment Account — an account maintained by Agent to which all monies from time to time
deposited to a Dominion Account shall be transferred and all other payments shall be sent in
immediately available federal funds; provided, that, within the Payment Account, Agent shall
separately account for all monies received from each Dominion Account of Xxxxxxx Sealing and from
each Dominion Account of the Excess Collateral Providers.
Payment Intangible — shall have the meaning given to the term “payment intangible” in
the UCC.
Payment Item — each check, draft, or other item of payment payable to a Borrower
evidencing or constituting proceeds of any of the Collateral.
Pending Revolver Loans — at any date, the aggregate principal amount of all Revolver
Loans which have been requested in any Notice of Borrowing received by Agent but which have not
theretofore
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been advanced by Agent or Lenders.
Permitted Acquisitions — an acquisition by Parent, a Borrower or any of their
Subsidiaries (other than a Dormant Subsidiary) of (i) all or substantially all of the assets of any
other Person (or a division of any other Person) in a line of business permitted to be engaged in
by Borrowers and their Subsidiaries pursuant to Section 10.2.19, or (ii) all of the capital stock
or other equity interests of any other Person in a line of business permitted to be engaged in by
Borrowers and their Subsidiaries pursuant to Section 10.2.19, and, in either case, with respect to
which: (a) either (I) Aggregate Availability is at least $20,000,000 after giving effect thereto
(including any Revolver Loans made in connection therewith) or (II) if Aggregate Availability is
less than $20,000,000 after giving effect thereto (including any Revolver Loans made in connection
therewith), the aggregate purchase price of such acquisition and all other acquisitions made during
the term of this Agreement under this clause (II) as Permitted Acquisitions would not
exceed $10,000,000 (including within “purchase price” all cash consideration, the face amount of
all promissory notes given as consideration, and all other purchase price consideration such as
non-compete and earn-out payments); (b) prior to and after giving effect to such acquisition no
Default or Event of Default shall have occurred and be continuing; and (c) in the event a new
Subsidiary of Parent is formed or acquired in connection therewith, (I) any such new Subsidiary
that is a Domestic Subsidiary shall, prior to or concurrently with such acquisition, execute all
such agreements, documents and instruments as Agent may request to either guaranty the Obligations
or, with Agent’s consent, become a “Borrower” and “Excess Collateral Provider” under this
Agreement, and to pledge all of its “Collateral” as security therefor, (II) the owner of such new
Subsidiary shall pledge all (or in the case of a Foreign Subsidiary that is owned directly by a
Domestic Subsidiary, 65%) of the issued and outstanding equity securities of such new Subsidiary as
additional security for the Obligations, and (III) Parent, Borrowers and such new Subsidiary shall
execute and deliver such opinions, certificates and other documents as Agent may reasonably request
in connection with the foregoing clauses (I) and (II). In no event shall any
assets of any such new Subsidiary that becomes a “Borrower” hereunder be included in the Borrowing
Base, or any Loans be made to such new Subsidiary, until Agent is satisfied with the results of
such field examinations and other due diligence as Agent may deem appropriate with respect to such
new Subsidiary. In addition to the foregoing, if no Default or Event of Default shall have
occurred and be continuing, any Foreign Subsidiary may acquire all or substantially all of the
assets of any other Person (or a division of any other Person), or all of the capital stock or
other equity interests of any other Person, in a line of business permitted to be engaged in by
Borrowers and their Subsidiaries pursuant to Section 10.2.19.
Permitted Asset Disposition — so long as no Event of Default exists at the time
thereof, any of the following Asset Dispositions: (i) sales of Inventory (and, to the extent
permitted under Section 8.3.3, consignments of Inventory) and licenses or leases of Intellectual
Property in the Ordinary Course of Business (provided that no such license or lease shall be on an
exclusive basis if the Intellectual Property which is the subject thereof is necessary or desirable
to enable Agent to sell, dispose, or complete the manufacture of, or otherwise exercise its rights
with respect to, any Collateral); (ii) sales and dispositions of Equipment, in the Ordinary Course
of Business, that is obsolete or no longer used by an Obligor in its business; (iii) Asset
Dispositions of business units or lines of business for fair market value (with at least 80% of the
proceeds of any such sale or disposition payable to Obligors in cash), so long as (a) the aggregate
net book value of all assets subject to such Asset Dispositions during any Loan Year does not
exceed fifteen percent (15%) of Consolidated Total Assets as set forth in the most recent financial
statements delivered pursuant to Section 10.1.3(i) hereof, and (b) the aggregate net book value of
all assets subject to such Asset Dispositions from and after the Closing Date does not exceed
thirty percent (30%) of Consolidated Total Assets as of December 31, 2005; provided, that, if any
of the assets sold or disposed of pursuant to this clause (iii) consist of Accounts or
Inventory, then, on the date of such sale or disposition, Borrowers shall prepay the Obligations in
an amount at least equal to the net book value of such Accounts and Inventory from the net proceeds
of such sale or disposition and provide Agent an
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updated Borrowing Base Certificate giving effect to such sale or disposition; (iv) sales or
other dispositions of Fixed Assets for fair market value, provided, that, Aggregate Availability
shall be greater than $20,000,000 immediately before and after any such sale or disposition; (v)
transfers by Obligors to their officers of any key-man life insurance policies maintained by any
Obligor with respect to such officers as of the Closing Date; (vi) sales or other dispositions of
Fixed Assets by Foreign Subsidiaries for fair market value; (vii) transfers of Property to a
Borrower by another Obligor or a Subsidiary, (viii) dispositions of Inventory that is not Eligible
Inventory because it is obsolete, unmerchantable or otherwise unsaleable in the Ordinary Course of
Business of the Borrower making such disposition, (ix) Asset Dispositions that consist solely of a
termination of a lease of real or personal Property that is not necessary to the conduct of an
Obligor’s business in the ordinary course, would not reasonably be expected to have a Material
Adverse Effect and does not result from an Obligor’s default or failure to perform under such
lease, (x) Asset Dispositions that consist of a deposit to secure an obligation to the extent such
deposit is permitted under Section 10.2.5, or (xi) any other Asset Disposition that has been
consented to in writing by Agent and the Required Lenders.
Permitted Contingent Obligations — Contingent Obligations (i) arising from
endorsements of items of payment for collection or deposit in the Ordinary Course of Business, (ii)
arising from Hedging Agreements entered into in the Ordinary Course of Business pursuant to this
Agreement or with Agent’s prior written consent, (iii) of any Obligor and its Subsidiaries set
forth on Schedule 10.2.3, including extensions and renewals thereof that do not increase the amount
of such Contingent Obligations as of the date of such extension or renewal, (iv) incurred in the
Ordinary Course of Business with respect to surety bonds, appeal bonds, performance bonds and other
similar obligations, (v) arising under indemnity agreements to title insurers to cause such title
insurers to issue to Agent title insurance policies, (vi) with respect to customary indemnification
obligations in favor of sellers in connection with Permitted Acquisitions and purchasers in
connection with Permitted Asset Dispositions, (vii) consisting of reimbursement obligations from
time to time owing by any Borrower to Issuing Bank with respect to Letters of Credit (but in no
event to include reimbursement obligations at any time owing by a Borrower to any other Person that
may issue letters of credit for the account of Borrowers), (viii) under any Guaranty, (ix) under
the Coltec/Stemco Subordinated Guaranty, provided such Coltec/Stemco Subordinated Guaranty is
subordinated to the Obligations pursuant to the Xxxxxxx Sealing Subordination Agreement, (x)
arising under guaranties by any Obligor (other than Xxxxxxx Sealing or Xxxxxxxx) of the payment or
performance of any Debt or other obligations of another Obligor permitted to be incurred under the
terms of this Agreement, (xi) arising under unsecured guaranties entered into by Parent in the
Ordinary Course of Business guaranteeing obligations and liabilities not constituting Debt of any
Obligor or any Obligor’s respective Subsidiaries, (xii) arising under unsecured guaranties entered
into by Parent guaranteeing obligations and liabilities incurred by Foreign Subsidiaries in the
Ordinary Course of Business under commercial credit cards, and (xiii) arising under indemnity
agreements with respect to discontinued operations to the extent that (a) such Contingent
Obligations have been approved by Agent or (b) the aggregate amount of such Contingent Obligations
incurred under this clause (xiii) without Agent’s approval does not exceed $5,000,000.
Permitted Convertible Debenture Distributions — so long as no Default or Event of
Default shall have occurred and be continuing at the time of declaration or after giving effect to
the payment thereof, (a) Distributions by Borrowers and their Subsidiaries to Parent in the amount
of, and concurrently with, any regularly scheduled interest payments due under the Convertible
Debentures; and (b) Distributions by Borrowers and their Subsidiaries to Parent in the amount of,
and concurrently with, any principal payments due under the Convertible Debentures, any cash
payments due upon any conversion of the Convertible Debentures or any prepayments of the
Convertible Debentures permitted pursuant to Section 10.2.6, in each case to the extent that, after
giving effect to any such Distribution (and any Revolver Loans made hereunder in connection
therewith), Aggregate Availability shall be at least $20,000,000.
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Permitted Distributions — (i) so long as no Default or Event of Default shall have
occurred and be continuing at the time of any such Distribution, Distributions from any Borrower or
any Subsidiary of any Borrower to Parent in an amount during any 12 month period, which when added
to all other amounts received by Parent during such period from any Borrower or any Subsidiary of
any Borrower from any source (including, without limitation, payments on any Debt of such Borrower
or any of their respective Subsidiaries held by Parent, but excluding Distributions received by
Parent in accordance with clauses (ii), (iii) and (iv) below) shall not
exceed 120% of Parent’s actual operating expenses during such period, (ii) so long as no Default or
Event of Default shall have occurred and be continuing at the time of declaration or after giving
effect to the payment thereof (and any Revolver Loans made in connection therewith), (a) Parent may
make Distributions to the extent that, after giving effect thereto, Aggregate Availability shall be
at least $20,000,000, and (b) Borrowers and their Subsidiaries may make Distributions to Parent in
the amount of, and concurrently with, the Distribution permitted to be made by Parent under
clause (a) above in order to enable Parent to make such Distribution, (iii) so long as no
Default or Event of Default shall have occurred and be continuing at the time of declaration or
after giving effect to the payment thereof, Borrowers and their Subsidiaries may make Distributions
to Parent in the amount of, and concurrently with, any Permitted Acquisition or Permitted Foreign
Subsidiary Investment permitted to be made by Parent under Section 10.2.11 in order to enable
Parent to make such Permitted Acquisition or Permitted Foreign Subsidiary Investment, and (iv)
Borrowers and their Subsidiaries may make Permitted Convertible Debenture Distributions.
Notwithstanding the foregoing, no such Distribution may be made (I) unless such Distribution is
permitted under all Applicable Laws, and (II) unless the Person making such Distribution would be
Solvent after giving effect to such Distribution (and any Revolver Loans made hereunder in
connection therewith) and, to the extent any such Distribution is to be made with the proceeds of
Revolver Loans, Obligors shall have delivered to Agent such certificates, financial statements and
financial projections as Agent may reasonably request at the time of any such proposed Revolver
Loan in order to confirm Obligors’ compliance with this clause (II).
Permitted Excess Collateral Provider Loans — Debt owing from Xxxxxxx Sealing to one or
more of the Excess Collateral Providers so long as (i) none of such loans and advances were made
with the proceeds of Revolver Loans, (ii) such Debt is pledged to Agent as additional security for
the Obligations pursuant to a Pledge Agreement, (iii) such Debt is subordinated to the Obligations
on terms and conditions satisfactory to Agent, and (iv) such Debt was incurred at a time when no
Revolver Loans allocated to the Excess Collateral Providers were outstanding.
Permitted Fixed Asset Debt — Debt of Obligors and their Subsidiaries that is unsecured
or is secured only by a Fixed Asset Lien, provided that the aggregate principal amount of such Debt
outstanding at any time does not exceed $40,000,000. For the purposes of this definition, (a) any
such Debt (but not any increase in the principal amount thereof after the Closing Date) that is
listed on Schedule 10.2.3 shall not be included in the calculation of the amount of Permitted Fixed
Asset Debt and (b) the principal amount of any Debt consisting of capitalized leases shall be
computed as a Capitalized Lease Obligation.
Permitted Foreign Subsidiary Investments — means (i) any Debt owing from any Foreign
Subsidiary to any Borrower (or any Borrower’s Domestic Subsidiary) or any capital contribution made
by any Borrower (or any Borrower’s Domestic Subsidiary) in any Foreign Subsidiary which is incurred
or made after the Closing Date, so long as immediately prior to and immediately after the
incurrence of such Debt or the making of such capital contribution, no Default or Event of Default
shall exist and Aggregate Availability is in excess of $20,000,000, and (ii) Debt of any Foreign
Subsidiary existing on the Closing Date, including any refinancing or refunding thereof that
satisfies the Refinancing Conditions.
Permitted Lien — a Lien of a kind specified in Section 10.2.5.
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Permitted Mergers/Liquidations — any merger or consolidation of (i) a Borrower with
any other Borrower (or any liquidation of a Borrower in which its assets are contributed to another
Borrower), (ii) any Subsidiary of any Borrower with or into any Borrower (or any liquidation of any
such Subsidiary in which its assets are contributed to a Borrower), and (iii) any Subsidiary of any
Borrower with any Subsidiary of such Borrower or any other Borrower (or any liquidation of such
Subsidiary in which its assets are contributed to another Subsidiary of such Borrower or any other
Borrower); provided, that, in any such case described in clauses (i), (ii) and
(iii) above, (a) the surviving Person in any such merger or consolidation shall be a Wholly
Owned Subsidiary of Parent and (b) in no event whatsoever shall any of Xxxxxxx Sealing, Xxxxxxxx or
any Dormant Subsidiary be a party to any such merger or consolidation or liquidation.
Permitted Restrictive Agreements – as defined in Section 10.2.15.
Person — an individual, partnership, corporation, limited liability company, limited
liability partnership, joint stock company, land trust, business trust, or unincorporated
organization, or a Governmental Authority.
Plan — an employee pension benefit plan that is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Internal Revenue Code and that is
either (i) maintained by an Obligor for employees or (ii) maintained pursuant to a collective
bargaining agreement or any other arrangement under which more than one employer makes
contributions and to which an Obligor is then making or accruing an obligation to make
contributions or has within the preceding 5 years made or accrued such contributions.
Pledge Agreement — any Pledge Agreement or similar document executed by Parent, any
Borrower or any of their respective Subsidiaries evidencing the pledge by any such Person to Agent,
for the benefit of Secured Parties, as security for the Obligations, of any Equity Interests owned
by such Person in any of its Subsidiaries and/or the pledge of any Debt owing to such Person.
Pro Rata — with respect to any Lender on any date, a percentage (expressed as a
decimal, rounded to the ninth decimal place) derived at by dividing the amount of the total
Commitments of such Lender on such date by the aggregate amount of the Commitments of all Lenders
on such date (regardless of whether or not any of such Commitments have been terminated on or
before such date).
Projections — (i) on and prior to the Closing Date and thereafter until Agent and
Lenders receive new projections pursuant to Section 10.1.5, the projections of Obligors’ and their
Subsidiaries’ financial condition, results of operations and cash flow, prepared on a monthly basis
for the Fiscal Year ending December 31, 2006; and (ii) thereafter, the projections most recently
received by Agent and Lenders pursuant to and as required by Section 10.1.5, which, at Agent’s
request, will include consolidating projections.
Properly Contested — in the case of any Debt of an Obligor (including any Taxes) that
is not paid as and when due or payable by reason of such Obligor’s bona fide dispute concerning its
liability to pay same or concerning the amount thereof, (i) such Debt is being properly contested
in good faith by appropriate proceedings promptly instituted and diligently conducted; (ii) such
Obligor has established appropriate reserves as shall be required in conformity with GAAP; (iii)
the non-payment of such Debt will not have a Material Adverse Effect and will not result in a
forfeiture or sale of any assets of such Obligor with a book value of $500,000 or more; (iv) no
Lien (other than a Permitted Lien) is imposed upon any of such Obligor’s assets with respect to
such Debt unless such Lien is at all times junior and subordinate in priority to the Liens in favor
of Agent (except only with respect to property taxes that have priority as a matter of Applicable
Law) and enforcement of such Lien is stayed during the period prior to
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the final resolution or disposition of such dispute; (v) if the Debt results from, or is
determined by the entry, rendition or issuance against an Obligor or any of its assets of a
judgment, writ, order or decree, enforcement of such judgment, writ, order or decree is stayed
pending a timely appeal or other judicial review; and (vi) if such contest is abandoned, settled or
determined adversely (in whole or in part) to such Obligor, such Obligor promptly pays such Debt
and all penalties, interest and other amounts due in connection therewith.
Property — any interest in any kind of property or asset, whether real, personal or
mixed and whether tangible or intangible, including Equity Interests.
Protective Advances — as defined in Section 2.1.4.
QFM — as defined in the preamble to this Agreement.
RCRA — the Resource Conservation and Recovery Act (42 U.S.C. §§ 6991-6991i).
Real Property — with respect to any Person, all of such Person’s now or hereafter
owned or leased estates in real property, including, without limitation, all fee, leasehold and
future interests, together with all of such Person’s now or hereafter owned or leased interests in
the improvements thereon, the fixtures attached thereto and the easements appurtenant thereto.
Refinancing Conditions — the following conditions, each of which must be satisfied
before Refinancing Debt shall be permitted under Section 10.2.3: (i) the Refinancing Debt is in an
aggregate principal amount that does not exceed the aggregate principal amount of the Debt being
extended, renewed or refinanced, (ii) the Refinancing Debt has a later or equal final maturity (or
a maturity after the scheduled last day of the Term) and a longer or equal weighted average life
than the Debt being extended, renewed or refinanced, (iii) the Refinancing Debt does not bear a
rate of interest that exceeds, as of the date of such extension, renewal or refinancing, a market
rate (as determined in good faith by a Senior Officer) for Debt of such type issued by an entity
similar to the Obligor that is liable on the Debt being extended, renewed or refinanced, (iv) if
the Debt being extended, renewed or refinanced is subordinate to the Obligations, the Refinancing
Debt is subordinated to the same extent, (v) the covenants contained in any instrument or agreement
relating to the Refinancing Debt are no less favorable in any material respect, taken as a whole,
to the Obligors than those relating to the Debt being extended, renewed or refinanced, (vi) at the
time of and after giving effect to such extension, renewal or refinancing, no Default or Event of
Default shall exist, (vii) no additional Lien is granted to secure the repayment of the Refinancing
Debt (it being acknowledged that an existing Lien that applies to after acquired Property shall not
constitute a new Lien), and (viii) no additional Obligor (or Subsidiary thereof) is or may become
obligated on the Refinancing Debt.
Refinancing Debt — Debt for Money Borrowed that is permitted by Section 10.2.3 and
that is the subject or the result of an extension, renewal or refinancing.
Regulation D — Regulation D of the Board of Governors.
Register — the register maintained by Agent in accordance with Section 5.7.2.
Reimbursement Date — as defined in Section 2.3.1(iii).
Rent Reserve — on any date, the aggregate of (i) all past due rent, fees or other
charges owing on such date by any Borrower to any landlord of any premises where any of the
Collateral is located or to any processor, repairman, mechanic or other person who is in possession
of any Collateral or has asserted
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any Lien or claim thereto, and (ii) such reserve as Agent may establish equal to up to 3
months rent or other charges with respect to any Collateral in the possession of, or at a location
owned by, a Person other than a Borrower if such Person has not duly executed and delivered to
Agent a Lien Waiver satisfactory to Agent.
Report — as defined in Section 13.1.5.
Reportable Event — any of the events set forth in Section 4043(c) of ERISA other than
any such event for which the 30-day notice requirement under ERISA has been waived in regulations
issued by the Pension Benefit Guaranty Corporation or expressly waived by the Pension Benefit
Guaranty Corporation.
Required Lenders — at any date of determination thereof, two or more Lenders having
Commitments representing at least 50.1% of the aggregate Commitments at such time;
provided, however, that (i) if at any time there is only one Lender hereunder, the
term “Required Lenders” shall mean such Lender, (ii) if any Lender shall be in breach of any of its
obligations hereunder to Borrowers or Agent, including any breach resulting from its failure to
honor its Commitment in accordance with the terms of this Agreement, then, for so long as such
breach continues, the term “Required Lenders” shall mean two or more Lenders (excluding each Lender
that is in breach of its obligations under this Agreement) having Commitments representing at least
50.1% of the aggregate Commitments (excluding the Commitments of each Lender that is in breach of
its obligations under this Agreement) at such time, and (iii) if all of the Commitments have been
terminated, the term “Required Lenders” shall mean two or more Lenders (excluding each Lender that
is in breach of its obligations under this Agreement) holding Loans (including Swingline Loans)
representing at least 50.1% of the aggregate principal amount of Loans (including Swingline Loans)
outstanding at such time.
Restricted Investment — any acquisition of Property by an Obligor or any of its
Subsidiaries in exchange for cash or other Property, whether in the form of an acquisition of
Equity Interests or Debt, or the purchase or acquisition by such Obligor or any of its Subsidiaries
of any other Property, or a loan, advance, capital contribution or subscription, except the
following: (i) acquisitions of Fixed Assets or other Property to be used in the Ordinary Course of
Business of such Obligor or any of its Subsidiaries so long as the acquisition costs thereof are
Capital Expenditures permitted hereunder; (ii) acquisitions of goods held for sale or lease or to
be used in the manufacture of goods or the provision of services by such Obligor or any of its
Subsidiaries in the Ordinary Course of Business and licenses and leases of Intellectual Property in
the Ordinary Course of Business; (iii) acquisitions of current assets in the Ordinary Course of
Business of such Obligor or any of its Subsidiaries; (iv) investments in Domestic Subsidiaries of
Parent that are Obligors; (v) acquisitions of Cash Equivalents to the extent they are not subject
to rights of offset in favor of any Person other than Agent, a Lender or any Affiliate thereof;
(vi) acquisitions of Approved Short-Term Investments; (vii) loans and other advances of money to
the extent not prohibited by Section 10.2.2; (viii) Permitted Foreign Subsidiary Investments; (ix)
Hedging Agreements entered into in the Ordinary Course of Business pursuant to this Agreement or
with Agent’s prior written consent; and (x) Permitted Acquisitions.
Restrictive Agreement — an agreement (other than any of the Loan Documents) that, if
and for so long as an Obligor or any Subsidiary of such Obligor is a party thereto, would prohibit,
condition or restrict such Obligor’s or Subsidiary’s right to incur or repay Debt for Money
Borrowed (including any of the Obligations); grant Liens upon any of such Obligor’s or Subsidiary’s
assets (including Liens granted in favor of Agent pursuant to the Loan Documents); declare or make
Distributions; amend, modify, extend or renew any agreement evidencing Debt for Money Borrowed
(including any of the Loan Documents); or repay any Debt owed to another Obligor.
Revolver Commitment — at any date for any Lender, the obligation of such Lender to
make
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Revolver Loans and to purchase participations in LC Obligations pursuant to the terms and
conditions of this Agreement, which shall not exceed the principal amount set forth opposite such
Lender’s name under the heading “Revolver Commitment” on the signature pages of this Agreement or
the principal amount set forth in the Assignment and Acceptance by which it became a Lender, as
modified from time to time pursuant to the terms of this Agreement (including, without limitation,
Section 2.2) or to give effect to any applicable Assignment and Acceptance; and “Revolver
Commitments” means the aggregate principal amount of the Revolver Commitments of all Lenders,
the maximum amount of which on any date shall be $75,000,000 as increased from time to time
pursuant to Section 2.2.
Revolver Loan — a loan made by Lenders as provided in Section 2.1 (including any
Out-of-Formula Loan) or a Swingline Loan funded solely by BofA.
S&P — Standard & Poor’s Ratings Group, a division of XxXxxx-Xxxx, Inc.
Schedule of Accounts — as defined in Section 8.2.1.
SEC — Securities and Exchange Commission.
Secured Parties — Agent, Issuing Bank, Lenders (including BofA as the provider of
Swingline Loans) and any Lender (and any Affiliate of any Lender) as the provider of any Bank
Products.
Security Documents — each Patent Security Agreement, each Copyright Security
Agreement, each Trademark Security Agreement, each Guaranty, and all other instruments and
agreements now or at any time hereafter securing the whole or any part of the Obligations.
Senior Notes — the 7-1/2% Senior Notes Due 2008, issued by Coltec in the original
principal amount of $300,000,000 in accordance with the terms of the Senior Notes Indenture.
Senior Notes Indenture — the Indenture, dated as of April 16, 1998, executed by Coltec
in favor of Bankers Trust Company, as trustee, in connection with the issuance of the Senior Notes.
Senior Officer — the chairman of the board of directors, the president, the chief
financial officer, vice president or treasurer of, or in-house legal counsel to, an Obligor.
Senior Financial Officer — the chief financial officer, treasurer or controller of
Parent.
Settlement Date — as defined in Section 4.1.3(i).
Settlement Report — a report delivered by Agent to Lenders summarizing the amount of
the outstanding Revolver Loans as of the Settlement Date and the calculation of the Borrowing Base
as of such Settlement Date.
Software — shall have the meaning given to the term “software” in the UCC.
Solvent — as to any Person, such Person (i) owns Property whose fair saleable value is
greater than the amount required to pay all of such Person’s debts (including identified contingent
liabilities), (ii) owns Property whose present fair salable value (as defined below) is greater
than the probable total liabilities (including identified contingent liabilities), of such Person
as they become absolute and matured, (iii) is able to pay all of its debts as such debts mature,
(iv) has capital that is not unreasonably small for its business and is sufficient to carry on its
business and transactions and all business and transactions in which it is about to engage, (v) is
not “insolvent” within the meaning of Section 101(32) of the
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Bankruptcy Code, and (vi) has not incurred (by way of assumption or otherwise) any obligations
or liabilities (contingent or otherwise) under any of the Loan Documents, or made any conveyance
pursuant to or in connection therewith, with actual intent to hinder, delay or defraud either
present or future creditors of such Person or any of its Subsidiaries. As used herein, the term
“fair saleable value” of a Person’s assets means the amount that may be realized within a
reasonable time, either through collection or sale of such assets at the regular market value,
based upon the amount that could be obtained for such assets within such period by a capable and
diligent seller from an interested buyer who is willing (but is under no compulsion) to purchase
under ordinary selling conditions.
Statutory Reserves — on any date, the percentage (expressed as a decimal) established
by the Board of Governors which is the then stated maximum rate for all reserves (including all
basic, emergency, supplemental or other marginal reserve requirements and taking into account any
transitional adjustments or other scheduled in reserve requirements) applicable to any member bank
of the Federal Reserve System in respect to Eurocurrency Liabilities (or any successor category of
liabilities under Regulation D). Such reserve percentage shall include those imposed pursuant to
said Regulation D. The Statutory Reserve shall be adjusted automatically on and as of the
effective date of any change in such percentage.
Stemco Holdings — as defined in the preamble to this Agreement.
Stemco Holdings Delaware — as defined in the preamble to this Agreement.
Stemco LP (DE) — as defined in the preamble to this Agreement.
Stemco LP (TX) as defined in the preamble to this Agreement.
Stemco Pledge Agreement — the Pledge Agreement, dated March 11, 2005, executed by
Coltec in favor of Stemco LP (DE), pursuant to which Coltec grants Stemco LP (DE) a Lien in the
equity interests Coltec owns of both Stemco Holdings and Stemco LP (TX).
Stemco Subordinated Note — the subordinated promissory note, dated March 11, 2005,
made by Stemco LP (TX) and payable to the order of Stemco LP (DE) in the original principal amount
of $153,865,000.
Stemco Subordination Agreement — the Amended and Restated Subordination Agreement
between Stemco LP (DE) and the Agent, subordinating the Debt evidenced by the Stemco Subordinated
Note and the Coltec/Stemco Subordinated Guaranty to the Obligations and the Lien granted to Stemco
LP (DE) pursuant to the Stemco Pledge Agreement to Agent’s Liens.
Subordinated Debt — any (i) Debt evidenced by the Coltec Subordinated Note that is at
all times subject to the Xxxxxxx Sealing Subordination Agreement, (ii) Debt evidenced by the Stemco
Subordinated Note that is at all times subject to the Stemco Subordination Agreement, (iii) Debt
that is at all times subject to the Intercompany Subordination Agreement, (iv) Debt owing from
Xxxxxxxx to Xxxxxxx Sealing pursuant to the terms of that certain Letter Agreement dated as of
September 13, 1996 (provided that such Debt is subordinated to the Obligations on terms
satisfactory to Agent pursuant to a Subordination Agreement); and (v) other Debt incurred by an
Obligor that is expressly subordinated and made junior in right of payment to the Full Payment of
the Obligations and, to the extent that such Debt is incurred on or after the Closing Date, such
Debt is payable on terms and conditions (including terms relating to interest, fees, repayment and
subordination) that are reasonably satisfactory to Agent.
Subordination Agreement — the Xxxxxxx Sealing Subordination Agreement, Stemco
Subordination
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Agreement, Intercompany Subordination Agreement, and any other subordination agreement
executed and delivered after the Closing Date on terms and conditions acceptable to Agent.
Subsidiary Guarantor and Subsidiary Guarantors — as defined in the preamble to
this Agreement.
Subsidiary — any Person in which more than 50% of its outstanding Voting Securities or
more than 50% of all Equity Interests is owned directly or indirectly by Parent, by one or more
other Subsidiaries of Parent or by Parent and one or more other Subsidiaries.
Supporting Obligation — shall have the meaning given to the term “supporting
obligation” in the UCC.
Swingline Loan — as defined in Section 4.1.3(ii).
Tax Matters Agreement — that certain Tax Matters Agreement dated as of May 31, 2002 by
and between Xxxxxxxx Corporation, a New York corporation, and Parent, as the same may be amended,
supplemented, amended and restated or otherwise modified from time to time with the prior written
consent of Agent.
Taxes — any present or future taxes, levies, imposts, duties, fees, assessments,
deductions, withholdings or other charges of whatever nature, including income, receipts, excise,
property, sales, use, transfer, license, intangible, stamp, recording, payroll, withholding, social
security and franchise taxes now or hereafter imposed or levied by the United States or any other
Governmental Authority and all interest, penalties, additions to tax and similar liabilities with
respect thereto.
Term — as defined in Section 6.1.
Trademark Security Agreement — each Amended and Restated Trademark Security Agreement
to be executed by Borrowers in favor of Agent on or before the Closing Date and by which Borrowers
shall grant to Agent, for the benefit of Secured Parties, as security for the Obligations, a
security interest in all of Borrowers’ right, title and interest in and to all of their trademarks.
Transferee — as defined in Section 14.3.3.
Type — any type of a Loan determined with respect to the interest option applicable
thereto, which shall be either a LIBOR Loan or a Base Rate Loan.
UCC — the Uniform Commercial Code (or any successor statute) as adopted and in force
in the State of North Carolina or, when the laws of any other state govern the method or manner of
the perfection or enforcement of any security interest in any of the Collateral, the Uniform
Commercial Code (or any successor statute) of such state.
Undrawn Amount — on any date with respect to a particular Letter of Credit, the total
amount then available to be drawn under such Letter of Credit in Dollars.
Upstream Payment — a payment or distribution of cash or other Property by a Subsidiary
of a Borrower to such Borrower or to another Subsidiary of such Borrower that controls such initial
Subsidiary, whether in repayment of Debt owed by such Subsidiary to such Borrower or other
Subsidiary, as a dividend or distribution on account of such Borrower’s or other Subsidiary’s
ownership of Equity Interests or otherwise.
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USA Patriot Act — the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).
Value — with reference to the value of Inventory, value reasonably determined by Agent
in good faith on the basis of the lower of cost or market value of such Eligible Inventory, with
the cost thereof calculated on a first-in, first-out basis in accordance with GAAP.
Voting Securities — Equity Interests of any class or classes of a corporation or other
entity the holders of which are ordinarily, in the absence of contingencies, entitled to elect a
majority of the corporate directors or individuals performing similar functions.
Wholly Owned Subsidiary — with respect to any Person, any Subsidiary of such Person
all of the Equity Interests of which (except directors’ qualifying shares) are, directly or
indirectly, owned and controlled by such Person or one or more Wholly Owned Subsidiaries of such
Person or by such Person and one or more of such Subsidiaries.
1.2. Accounting Terms. Unless otherwise specified herein, all terms of an accounting
character used in this Agreement shall be interpreted, all accounting determinations under this
Agreement shall be made, and all financial statements required to be delivered under this Agreement
shall be prepared in accordance with GAAP, applied on a basis consistent with the most recent
audited Consolidated financial statements of Borrowers and their Subsidiaries heretofore delivered
to Agent and Lenders and using the same method for inventory valuation as used in such audited
financial statements, except for any change required by GAAP; provided, however,
that for purposes of determining Borrowers’ compliance with financial covenants contained in
Section 10.3, all accounting terms shall be interpreted and all accounting determinations shall be
made in accordance with GAAP as in effect on the date of this Agreement and applied on a basis
consistent with the application used in the financial statements referred to in Section 9.1.9.
1.3. Other Terms. All other terms contained in this Agreement shall have, when the
context so indicates, the meanings provided for by the UCC to the extent the same are used or
defined therein.
1.4. Certain Matters of Construction. The terms “herein,” “hereof” and “hereunder”
and other words of similar import refer to this Agreement as a whole and not to any particular
section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the
computation of periods of time from a specified date to a later specified date, the word “from”
means “from and including” and the words “to” and “until” each means “to but excluding.” The
section titles, table of contents and list of exhibits appear as a matter of convenience only and
shall not affect the interpretation of this Agreement. All references to statutes shall include
all related rules and implementing regulations and any amendments of same and any successor
statutes, rules and regulations; to any agreement, instrument or other documents (including any of
the Loan Documents) shall include any and all modifications and supplements thereto and any and all
restatements, extensions or renewals thereof to the extent such modifications, supplements,
restatements, extensions or renewals of any such documents are permitted by the terms thereof; to
any Person (including Agent, an Obligor, a Lender or BofA) shall mean and include the successors
and permitted assigns of such Person; to “including” and “include” shall be understood to mean
“including, without limitation” (and, for purposes of each Loan Document, the parties agree that
the rule of ejusdem generis shall not be applicable to limit a general statement, which is followed
by or referable to an enumeration of
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specific matters to matters similar to the matters specifically mentioned); to the time of day
shall mean the time of day on the day in question in Atlanta, Georgia, unless otherwise expressly
provided in this Agreement; or to the “discretion” of Agent or a Lender shall mean the sole and
absolute discretion of such Person. A Default or an Event of Default shall be deemed to exist at
all times during the period commencing on the date that such Default or Event of Default occurs to
the date on which such Default or Event of Default is waived in writing by Agent (acting with the
consent or at the direction of the Lenders or the Required Lenders, as applicable) pursuant to this
Agreement or, in the case of a Default, is cured within any period of cure expressly provided in
this Agreement; and an Event of Default shall “continue” or be “continuing” until such Event of
Default has been waived in writing by Agent (acting with the consent or at the direction of the
Lenders or the Required Lenders, as applicable). All calculations of Value shall be in Dollars,
all Loans shall be funded in Dollars and all Obligations shall be repaid in Dollars (except as
otherwise provided in the definition of “LC Obligations”). In the event that any Letter of Credit
is issued hereunder in a foreign currency, for purposes of calculating the amount of the Aggregate
Revolver Outstandings, the LC Obligations and the Undrawn Amount as of any date of determination
the foreign currency amount of such Letter of Credit shall be converted to Dollars by Agent using
such exchange rates as Agent reasonably deems appropriate under the circumstances at such time.
Whenever the phrase “to the best of Obligors’ knowledge” or words of similar import relating to the
knowledge or the awareness of an Obligor are used in this Agreement or other Loan Documents, such
phrase shall mean and refer to the actual knowledge of a Senior Officer of Parent.
SECTION 2. CREDIT FACILITIES
Subject to the terms and conditions of, and in reliance upon the representations and
warranties made in, this Agreement and the other Loan Documents, Lenders severally agree, to the
extent and in the manner hereinafter set forth, to make their respective shares of the Commitments
available to Borrowers as set forth hereinbelow:
2.1. Revolver Commitments.
2.1.1. Revolver Loans. Each Lender agrees, severally to the extent of its Revolver
Commitment and not jointly with the other Lenders, upon the terms and subject to the conditions set
forth herein, to make Revolver Loans to Borrowers on any Business Day during the period from the
Closing Date through the Business Day before the last day of the Term, not to exceed in aggregate
principal amount outstanding at any time such Lender’s Revolver Commitment at such time, which
Revolver Loans may be repaid and reborrowed in accordance with the provisions of this Agreement;
provided, however, that Lenders shall have no obligation to Borrowers whatsoever to
honor any request for a Revolver Loan on or after the Commitment Termination Date or any request
for a Revolver Loan that would exceed Availability with respect to Xxxxxxx Sealing or the Excess
Collateral Providers, as the case may be (or, if less, Aggregate Availability). Each Borrowing of
Revolver Loans shall be funded by Lenders on a Pro Rata basis in accordance with their respective
Revolver Commitments (except for BofA with respect to Swingline Loans). The Revolver Loans shall
bear interest as set forth in Section 3.1. Each Revolver Loan shall, at the option of Borrowers,
be made or continued as, or converted into, part of one or more Borrowings that, unless
specifically provided herein, shall consist entirely of Base Rate Loans or LIBOR Loans.
2.1.2. Out-of-Formula Loans. If the unpaid balance of Revolver Loans allocated to
Xxxxxxx Sealing or the Excess Collateral Providers at any time should exceed the Availability of
Xxxxxxx Sealing or the Excess Collateral Providers, as applicable, at such time, or the unpaid
balance of Revolver Loans allocated to
Xxxxxxx Sealing and the Excess Collateral Providers at any time should exceed the Aggregate
Availability at such time (in either such case, an “Out-of-Formula Condition”), such Revolver Loans
shall nevertheless constitute Obligations that are secured by the Collateral and entitled to all of
the benefits of the Loan Documents. In the event that Lenders are willing in their discretion to
make Out-of-Formula Loans or are required to do so by Section 13.9.4, such Out-of-Formula Loans
shall be due and payable as provided in Section 5.2.1(iii) and shall bear interest as provided in
Section 3.1.5.
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2.1.3. Use of Proceeds. The proceeds of the Revolver Loans shall be used by Borrowers
solely for one or more of the following purposes: (i) to pay the fees and transaction expenses
associated with the closing of the transactions described herein; (ii) to pay any of the
Obligations in accordance with this Agreement; and (iii) to make expenditures for other lawful
corporate purposes of Borrowers (including, without limitation, Permitted Acquisitions) to the
extent such expenditures are not prohibited by this Agreement or Applicable Law. In no event may
any Revolver Loan proceeds be used by any Borrower (x) to purchase or to carry, or to reduce,
retire or refinance any Debt incurred to purchase or carry, any Margin Stock or for any related
purpose that violates the provisions of Regulations T, U or X of the Board of Governors, or (y) to
fund any operations or finance any investments or activities in, or to make payments to, a Blocked
Person.
2.1.4. Protective Advances. Agent shall be authorized, in its discretion, at any time
or times that a Default or Event of Default exists or any of the conditions precedent set forth in
Section 11 have not been satisfied, to make Revolver Loans that are Base Rate Loans in an aggregate
amount outstanding at any time not to exceed $10,000,000, but only to the extent that Agent, in the
exercise of its Credit Judgment, deems the funding of such Loans (herein called “Protective
Advances”) to be necessary or desirable (i) to preserve or protect the Collateral or any portion
thereof, (ii) to enhance the likelihood, or increase the amount, of repayment of the Obligations or
(iii) to pay any other amount then due and owing by Obligors pursuant to the terms of this
Agreement, including costs, fees and expenses, all of which Protective Advances shall be deemed
part of the Obligations and secured by the Collateral, and shall be treated for all purposes of
this Agreement (including Sections 5.5.1 and 15.4) as advances for the repayment to Agent and
Lenders of Extraordinary Expenses; provided, however, that (a) no Protective
Advance shall be made under clause (i) or (ii) above unless requested by Borrower
Representative, and (b) the Required Lenders may at any time revoke Agent’s authorization to make
Protective Advances by written notice to Agent, which shall become effective prospectively upon and
after Agent’s actual receipt thereof. Absent such revocation, Agent’s determination that the
making of a Protective Advance is required for any such purposes shall be conclusive. Each Lender
shall participate in each Protective Advance in an amount equal to its Pro Rata share of the
Revolver Commitments. Notwithstanding the foregoing, the maximum amount of Protective Advances
outstanding at any time, when added to the aggregate of Revolver Loans and LC Obligations
outstanding at such time, shall not exceed the total of the Revolver Commitments (unless otherwise
agreed by the Required Lenders). Nothing in this Section 2.1.4 shall be construed to limit in any
way the amount of Extraordinary Expenses that may be incurred by Agent and that Borrowers shall be
obligated to reimburse to Agent as provided in the Loan Documents.
2.2. Increase in Commitments.
2.2.1. Commitment Increases. So long as no Default or Event of Default has occurred
and is continuing, Borrowers may request that the Commitments be increased by up to $25,000,000
and, upon such request, Borrowers
(or upon the request of Borrowers, Agent) may solicit additional financial institutions to
become Lenders for purposes of this Agreement, or to encourage any Lender to increase its
Commitment; provided, that (i) each Lender which is a party to this Agreement prior to such
increase shall have the first option, and may elect to fund its Pro Rata share of the amount of the
increase in the Commitments (or any such greater amount in the event that one or more Lenders does
not elect to fund its respective Pro Rata share of the amount of the increase in the Commitments),
thereby increasing its Commitment hereunder, but no Lender shall have the obligation to do so, (ii)
in the event that it becomes necessary to include a new financial institution to fund the amount of
the increase in the Commitments, each such financial institution shall be an Eligible Assignee that
is reasonably acceptable to Agent and Parent and each such financial institution shall become a
Lender hereunder and agree to become party to, and shall assume and agree to be bound by, this
Agreement, subject to all terms and conditions hereof; (iii) in the event that it becomes necessary
to include a new financial institution to fund the amount of the
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increase in the Commitments, upon
the request of Borrowers, Agent shall use its commercially reasonable efforts to solicit such
additional financial institution or institutions to become Lenders; (iv) no Lender shall have an
obligation to the Borrowers, Agent or any other Lender to increase its Commitment or its Pro Rata
share of the Commitments, and (v) in no event shall the addition of any Lender or Lenders or the
increase in the Revolver Commitment of any Lender under this Section 2.2.1 increase the Commitments
(A) in any single instance by less than $5,000,000 or (B) to an aggregate amount greater than
$100,000,000. Upon the addition of any Lender, or the increase in the Commitment of any Lender,
Commitments set forth on the signature pages to this Agreement shall be amended by Agent and the
Borrowers to reflect such addition or such increase. Any new financial institution added as a new
Lender pursuant to this Section 2.2.1 shall be required to have a Commitment of not less than
$10,000,000 (unless otherwise agreed by Agent and Borrower Representative in their discretion).
2.2.2. Effectiveness of Commitment Increases. If any requested increase in the
Commitments is agreed to in accordance with Section 2.2.1 above, Agent and Borrowers shall
determine the effective date of such increase (the “Increase Effective Date”). Agent, with the
consent and approval of Borrowers, shall promptly confirm in writing to the Lenders the final
allocation of such increase and the Increase Effective Date, and each new Lender, and each existing
Lender that has increased its Revolver Commitment, shall purchase Revolver Loans and participations
in the Undrawn Amount of outstanding Letters of Credit from each other Lender in an amount such
that, after such purchase or purchases, the amount of outstanding Revolver Loans and participations
in outstanding Letters of Credit from each Lender shall equal such Lender’s Pro Rata share of the
Commitments, as modified to give effect to such increase, multiplied by the aggregate amount of
outstanding Revolver Loans and Letters of Credit from all Lenders. As a condition precedent to the
effectiveness of such increase, Borrowers shall deliver to Agent a certificate dated as of the
Increase Effective Date (in sufficient copies for each Lender) signed by a Senior Officer of
Parent, including a Compliance Certificate demonstrating compliance with the terms of this
Agreement and certification that, before and after giving effect to such increase, the
representations and warranties contained in Section 9 hereof are true and correct in all material
respects on and as of the Increase Effective Date (except to the extent any such representation or
warranty is stated to relate solely to an earlier date) and no Default or Event of Default has
occurred and is continuing. Borrowers shall prepay any Revolver Loans which are LIBOR Loans and
which are outstanding on the Increase Effective Date (and pay any and all costs and other required
payments in connection with such prepayment pursuant to Sections 3.7 and 3.8 hereof) to the extent
necessary to keep the outstanding Revolver Loans and Letters of Credit ratable with any revised Pro
Rata shares of the Commitments arising from any nonratable increase in the Commitments.
2.3. LC Facility.
2.3.1. Issuance of Letters of Credit. Subject to all of the terms and conditions hereof, Issuing Bank agrees to establish the LC
Facility pursuant to which, during the period from the date hereof to (but excluding) the 30th day
prior to the last day of the Term, Issuing Bank shall issue one or more Letters of Credit on
Borrower Representative’s request therefor from time to time, subject to the following terms and
conditions:
(i) Issuing Bank shall have no obligation to issue any Letter of Credit unless (x) at
least 3 Business Days prior to the date of issuance of a Letter of Credit, Issuing Bank
receives an LC Request, LC Application and such other instruments and agreements as Issuing
Bank may customarily require for the issuance of a letter of credit of equivalent type and
amount as the requested Letter of Credit, and (y) each of the LC Conditions is satisfied on
the date of Issuing Bank’s receipt of the LC Request and at the time of the requested
issuance of a Letter of Credit. If Issuing Bank shall have received written notice from a
Lender on or before the Business Day immediately prior to the date of Issuing Bank’s
issuance of a Letter of Credit that one or more of
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the conditions set forth in Section 11
has not been satisfied, Issuing Bank shall have no obligation to issue the requested Letter
of Credit or any other Letter of Credit until such notice is withdrawn in writing by that
Lender or until the Required Lenders shall have effectively waived such condition in
accordance with this Agreement. In no event shall Issuing Bank be deemed to have notice or
knowledge of any existence of any Default or Event of Default or the failure of any
conditions in Section 11 to be satisfied prior to its receipt of such notice from a Lender.
(ii) Letters of Credit may be requested by a Borrower only if they are to be used (a)
to support obligations of such Borrower or one of its Subsidiaries (including with respect
to discontinued operations), on a standby basis, (b) as documentary Letters of Credit, or
(c) for such other purposes as Agent may approve from time to time in writing.
(iii) Borrowers shall comply with all of the terms and conditions imposed on Borrowers
by Issuing Bank that are contained in any LC Application or in any other agreement executed
by or binding upon any Borrower that is customarily or reasonably required by Issuing Bank
in connection with the issuance of any Letter of Credit. If Issuing Bank shall honor any
request for payment under a Letter of Credit, Borrowers shall be jointly and severally
obligated to pay to Issuing Bank, in Dollars on the same day as the date on which payment
was made by Issuing Bank (the “Reimbursement Date”), an amount equal to the amount paid by
Issuing Bank under such Letter of Credit (or, if payment thereunder was made by Issuing Bank
in a currency other than Dollars, an amount equal to the Dollar equivalent of such currency,
as determined by Issuing Bank, as of the time of Issuing Bank’s payment under such Letter of
Credit, in each case), together with interest from and after the Reimbursement Date until
Full Payment is made by Borrowers at the Default Rate for Revolver Loans constituting Base
Rate Loans. Until Issuing Bank has received payment from Borrowers in accordance with the
foregoing provisions of this clause (iii), Issuing Bank, in addition to all of its other
rights and remedies under this Agreement and any LC Application, shall be fully subrogated
to the rights and remedies of each beneficiary under such Letter of Credit whose claims
against Borrowers have been discharged with the proceeds of such Letter of Credit. Whether
or not a Borrower submits any Notice of Borrowing to Agent, Borrowers shall be deemed to
have requested from Lenders a Borrowing of Base Rate Loans in an amount necessary to pay to
Issuing Bank all amounts due Issuing Bank on any Reimbursement Date and each Lender agrees
to fund its Pro Rata share of such Borrowing whether or not any Default or Event of Default
has occurred or exists, the Commitments have been terminated, the funding of the Borrowing
would result in (or increase the amount of) any Out-of-Formula Condition, or any of the
conditions set forth in Section 11 are not satisfied.
(iv) As among Borrowers, Lenders, Agent and Issuing Bank, Borrowers assume all risks of
the acts, omissions or misuses of any Letter of Credit by the beneficiary thereof. The
obligation of Borrowers to reimburse Issuing Bank for any payment made by Issuing Bank
under a Letter of Credit shall be absolute, unconditional, irrevocable and joint and several
and shall be paid without regard to any lack of validity or enforceability of any Letter of
Credit or the existence of any claim, setoff, defense or other right which Borrowers may
have at any time against a beneficiary of any Letter of Credit. In connection with the
issuance of any documentary Letter of Credit, none of Agent, Issuing Bank or any Lender
shall be responsible for the existence, character, quality, quantity, condition, packing,
value or delivery of any Goods purported to be represented by any documents; any differences
or variation in the character, quality, quantity, condition, packing, value or delivery of
any goods from that expressed in the documents; the form, validity, sufficiency, accuracy,
genuineness or legal effect of any documents or of any endorsements thereon, even if such
documents should in fact prove to be in any or all respects invalid, insufficient,
fraudulent or forged; the time, place, manner or order in which shipment of Goods is made;
partial or incomplete shipment of, or failure or omission to
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ship, any or all of the goods
referred to in a documentary Letter of Credit or documents applicable thereto; any deviation
from instructions, delay, default or fraud by the shipper and/or any Person in connection
with any goods or any shipping or delivery thereof; any breach of contract between the
shipper or vendors and a Borrower; errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher, unless such errors, omissions, interruptions or delays are
the result of the gross negligence or willful misconduct of Issuing Bank; errors in
interpretation of technical terms; the misapplication by the beneficiary of any Letter of
Credit of the proceeds of any drawing under such Letter of Credit; or any consequences
arising from causes beyond the control of Issuing Bank, including any act or omission
(whether rightful or wrongful) of any present or future Governmental Authority. The rights,
remedies, powers and privileges of Issuing Bank under this Agreement with respect to Letters
of Credit shall be in addition to, and cumulative with, all rights, remedies, powers and
privileges of Issuing Bank under any of the LC Documents. Nothing herein shall be deemed to
release Issuing Bank from any liability or obligation that it may have in respect to any
Letter of Credit arising out of and directly resulting from its own gross negligence or
willful misconduct.
(v) No Letter of Credit shall be extended or amended in any respect that is not solely
ministerial, unless all of the LC Conditions are met as though a new Letter of Credit were
being requested and issued. With respect to any Letter of Credit that contains any
“evergreen” or automatic renewal provision, each Lender shall be deemed to have consented to
any such extension or renewal, unless any such Lender shall have provided to Agent written
notice that it declines to consent to any such extension or renewal at least 30 days prior
to the date on which Issuing Bank is entitled to decline to extend or renew the Letter of
Credit. If all of the LC Conditions are met and no Default or Event of Default exists, each
Lender shall be deemed to have consented to any such extension or renewal.
(vi) Unless otherwise provided in any of the LC Documents, each LC Application and each
standby Letter of Credit shall be subject to the then current Uniform Customs and Practice
for Documentary Credits and any amendments or revisions thereto.
2.3.2. Participations.
(i) Immediately upon the issuance of any Letter of Credit, each Lender shall be deemed
to have irrevocably and unconditionally purchased and received from Issuing Bank, without
recourse or warranty, an undivided interest and participation equal to the Pro Rata share of
such Lender (a “Participating Lender”) in all LC Obligations arising in connection with such
Letter of Credit, but in no event greater than an amount which, when added to such Lender’s
Pro Rata share of all Revolver Loans and LC Obligations then outstanding, exceeds such
Lender’s Revolver Commitment.
(ii) If Issuing Bank makes any payment under a Letter of Credit and Borrowers do not
repay or cause to be repaid the amount of such payment on the Reimbursement Date, Issuing
Bank shall promptly notify Agent, which shall promptly notify each Participating Lender, of
such payment and each Participating Lender shall promptly (and in any event within 1
Business Day after its receipt of notice from Agent) and unconditionally pay to Agent, for
the account of Issuing Bank, in immediately available funds, the amount of such
Participating Lender’s Pro Rata share of such payment, and Agent shall promptly pay such
amounts to Issuing Bank. If a Participating Lender does not make its Pro Rata share of the
amount of such payment available to Agent on a timely basis as herein provided, such
Participating Lender agrees to pay to Agent for the account of Issuing Bank, forthwith on
demand, such amount together with interest thereon at
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the Federal Funds Rate until paid.
The failure of any Participating Lender to make available to Agent for the account of
Issuing Bank such Participating Lender’s Pro Rata share of the LC Obligations shall not
relieve any other Participating Lender of its obligation hereunder to make available to
Agent its Pro Rata share of the LC Obligations. No Participating Lender shall be
responsible for the failure of any other Participating Lender to make available to Agent its
Pro Rata share of the LC Obligations on the date such payment is to be made.
(iii) Whenever Issuing Bank receives a payment on account of the LC Obligations,
including any interest thereon, as to which Agent has previously received payments from any
Participating Lender for the account of Issuing Bank, Issuing Bank shall promptly pay to
each Participating Lender which has funded its participating interest therein, in
immediately available funds, an amount equal to such Participating Lender’s Pro Rata share
thereof.
(iv) The obligation of each Participating Lender to make payments to Agent for the
account of Issuing Bank in connection with Issuing Bank’s payment under a Letter of Credit
shall be absolute, unconditional and irrevocable, not subject to any counterclaim, setoff,
qualification or exception whatsoever, and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances and irrespective of whether or not
Borrowers may assert or have any claim for any lack of validity or unenforceability of this
Agreement or any of the other Loan Documents; any Borrower’s dispute as to its liability for
any of the LC Obligations; the existence of any Default or Event of Default; any draft,
certificate or other document presented under a Letter of Credit having been determined to
be forged, fraudulent, invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; the existence of any setoff or defense any Obligor may
have with respect to any of the Obligations; or the termination of the Commitments.
(v) Neither Issuing Bank nor any of its officers, directors, employees or agents shall
be liable to any Participating Lender for any action taken or omitted to be taken under or
in connection with any of the LC Documents except as a result of actual gross negligence or
willful misconduct on the part of Issuing Bank. Issuing Bank does not assume any
responsibility for any failure or delay in performance or breach by a Borrower or any other
Person of its obligations under any of the LC Documents. Issuing Bank does not make to
Participating Lenders any express or implied warranty, representation or guaranty with
respect to the Collateral, the LC Documents, or any Obligor. Issuing Bank shall not be
responsible to any Participating Lender for any recitals, statements, information,
representations or warranties contained in, or for the execution, validity, genuineness,
effectiveness or enforceability of or any of the LC Documents; the validity, genuineness,
enforceability, collectibility, value or sufficiency of any of the Collateral or the
perfection of any Lien therein; or the assets, liabilities, financial condition,
results of operations, business, creditworthiness or legal status of any Obligor or any
Account Debtor. In connection with its administration of and enforcement of rights or
remedies under any of the LC Documents, Issuing Bank shall be entitled to act, and shall be
fully protected in acting upon, any certification, notice or other communication in whatever
form believed by Issuing Bank, in good faith, to be genuine and correct and to have been
signed, sent or made by a proper Person. Issuing Bank may consult with and employ legal
counsel, accountants and other experts and to advise it concerning its rights, powers and
privileges under the LC Documents and shall be entitled to act upon, and shall be fully
protected in any action taken in good faith reliance upon, any advice given by such experts.
Issuing Bank may employ agents and attorneys-in-fact in connection with any matter relating
to the LC Documents and shall not be liable for the negligence, default or misconduct of any
such agents or attorneys-in-fact selected by Issuing Bank with reasonable care. Issuing
Bank shall not have any liability to any Participating Lender by reason of Issuing Bank’s
refraining to take any action under any of the LC Documents without
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having first received
written instructions from the Required Lenders to take such action.
(vi) Upon the request of any Participating Lender, Issuing Bank shall furnish to such
Participating Lender copies (to the extent then available to Issuing Bank) of each
outstanding Letter of Credit and related LC Documents as may be in the possession of Issuing
Bank and reasonably requested from time to time by such Participating Lender.
2.3.3. Cash Collateral Account. If any LC Obligations, whether or not then due or
payable, shall for any reason be outstanding (i) at any time that an Event of Default exists, (ii)
on or at any time after the Commitment Termination Date, or (iii) on the day that is 30 days prior
to the last day of the Term, then Borrowers shall, on Issuing Bank’s or Agent’s request, forthwith
pay to Issuing Bank the amount of any LC Obligations that are then due and payable and shall, upon
the occurrence of any of the events described in clauses (i), (ii) and
(iii) hereinabove, Cash Collateralize all outstanding Letters of Credit. If
notwithstanding the occurrence of one or more of the events described in clauses (i),
(ii) and (iii) in the immediately preceding sentence Borrowers fail to Cash
Collateralize any outstanding Letters of Credit on the first Business Day following Agent’s or
Issuing Bank’s demand therefor, Lenders may (and shall upon direction of Agent) advance such amount
as Revolver Loans (whether or not the Commitment Termination Date has occurred or an Out-of-Formula
Condition is created thereby), funded to Agent for the account of Borrowers. Such cash (together
with any interest accrued thereon) shall be held by Agent in the Cash Collateral Account and shall
be invested by Agent, within a reasonable amount of time following Borrowers’ request, in Cash
Equivalents. Each Borrower hereby pledges to Agent and grants to Agent a security interest in, for
the benefit of Agent in such capacity and for the Pro Rata benefit of Lenders, all Cash Collateral
held in the Cash Collateral Account from time to time and all proceeds thereof, as security for the
payment of all Obligations (including LC Obligations), whether or not then due or payable. From
time to time after cash is deposited in the Cash Collateral Account, Agent may apply Cash
Collateral then held in the Cash Collateral Account to the payment of any amounts, in such order as
Agent may elect, as shall be or shall become due and payable by Borrowers to Issuing Bank, Agent or
any Lender with respect to the LC Obligations; provided, that if at any time the LC Obligations are
reduced without the application of Cash Collateral to such LC Obligations, absent an Event of
Default, the portion of Cash Collateral related to such LC Obligations so reduced shall be promptly
paid by Issuing Bank to Borrowers. Neither Borrowers nor any other Person claiming by, through or
under or on behalf of Borrowers shall have any right to withdraw any of the Cash Collateral held in
the Cash Collateral Account, including any accrued interest, provided that upon termination or
expiration of all Letters of Credit and the payment and satisfaction of all of the LC Obligations,
any Cash Collateral remaining in the Cash Collateral Account shall be returned to Borrowers unless
an Event of Default then exists (in which event Agent may apply such Cash Collateral to the payment
of any other Obligations outstanding and, to
the extent so applied, such Cash Collateral shall be applied in accordance with the provisions
of Section 5.5, with any surplus to be turned over to Borrowers).
2.3.4. Indemnifications.
(i) In addition to and without limiting any other indemnity which Borrowers may have to
any Indemnitees under any of the Loan Documents, each Borrower hereby agrees to indemnify
and defend each of the Indemnitees and to hold each of the Indemnitees harmless from and
against any and all Claims which any Indemnitee may suffer, incur or be subject to as a
consequence, directly or indirectly, of (a) the issuance of, payment or failure to pay or
any performance or failure to perform under any Letter of Credit, (b) any suit,
investigation or proceeding as to which Agent or any Lender is or may become a party to as a
consequence, directly or indirectly, of the issuance of any Letter of Credit or the payment
or failure to pay thereunder or (c) Issuing Bank following any instructions of a Borrower
with respect to any Letter of Credit or any Document received by Issuing Bank with reference
to any Letter of Credit.
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(ii) Each Participating Lender agrees to indemnify and defend each of the Issuing Bank
Indemnitees (to the extent the Issuing Bank Indemnitees are not reimbursed by Borrowers or
any other Obligor, but without limiting the indemnification obligations of Borrowers under
this Agreement), to the extent of such Lender’s Pro Rata share of the Revolver Commitments,
from and against any and all Claims which may be imposed on, incurred by or asserted against
any of the Issuing Bank Indemnitees in any way related to or arising out of Issuing Bank’s
administration or enforcement of rights or remedies under any of the LC Documents or any of
the transactions contemplated thereby (including costs and expenses which Borrowers are
obligated to pay under Section 15.2).
2.3.5. Existing Letters of Credit. As of the Closing Date, there exist certain
letters of credit issued by BofA for the account of one or more Borrowers, as more fully described
on Schedule 2.3.5 hereto (collectively, the “Existing Letters of Credit”). The parties hereto
acknowledge and agree that, concurrently with the making of the initial Loans hereunder, such
Existing Letters of Credit shall constitute Letters of Credit hereunder for all purposes as fully
as if such Existing Letters of Credit had been issued as Letters of Credit hereunder.
2.4. Bank Products. Borrowers may request one or more Lenders to provide, or to
arrange for one or more of its Affiliates to provide, Bank Products, but no Lender shall have any
obligation whatsoever to provide, or to arrange for the provision of, any Bank Products. If Bank
Products are provided by an Affiliate of any Lender, Borrowers agree to indemnify and hold Agent
and Lenders harmless from and against any and all Claims at any time incurred by Agent or any
Lender that arise from any indemnity given by Agent or such Lender to such Affiliates that relate
to such Bank Products; provided, however, nothing contained herein is intended to limit Borrowers’
rights, with respect to Agent, any Lender or any Affiliate thereof, if any, which arise as a result
of the execution of documents by and between Borrowers (or any of them) and Agent, any Lender or
any of their Affiliates which relate to Bank Products. Borrowers acknowledge that obtaining Bank
Products from any Lender or its Affiliates is in the discretion of such Lender or its Affiliates
and is subject to all rules and regulations of such Lender or its Affiliates that are applicable to
such Bank Products.
SECTION 3. INTEREST, FEES AND CHARGES
3.1. Interest.
3.1.1. Rates of Interest. Borrowers agree to pay interest in respect of all unpaid
principal amounts of the Revolver Loans from the respective dates such principal amounts are
advanced until paid (whether at stated maturity, on acceleration or otherwise) at a rate per annum
equal to the applicable rate indicated below:
(i) for Revolver Loans made or outstanding as Base Rate Loans, the Applicable Margin
plus the Base Rate in effect from time to time; or
(ii) for Revolver Loans made or outstanding as LIBOR Loans, the Applicable Margin
plus the relevant Adjusted LIBOR Rate for the applicable Interest Period selected by
Borrowers in conformity with this Agreement.
Upon determining the Adjusted LIBOR Rate for any Interest Period requested by Borrowers, Agent
shall promptly notify Borrowers thereof. Such determination shall, absent manifest error, be
final, conclusive and binding on all parties and for all purposes. The applicable rate of interest
for all Loans (or portions thereof) bearing interest based upon the Base Rate shall be increased or
decreased, as the case may be, by an amount equal to any increase or decrease in the Base Rate,
with such
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adjustments to be effective as of the opening of business on the day that any such change
in the Base Rate becomes effective. Interest on each Loan shall accrue from and including the date
on which such Loan is made, converted to a Loan of another Type or continued as a LIBOR Loan to
(but excluding) the date of any repayment thereof; provided, however, that, if a
Loan is repaid on the same day made, one day’s interest shall be paid on such Loan.
3.1.2. Conversions and Continuations.
(i) Borrowers may on any Business Day, subject to the giving of a proper Notice of
Conversion/Continuation as hereinafter described, elect (A) to continue all or any part of a
LIBOR Loan by selecting a new Interest Period therefor, to commence on the last day of the
immediately preceding Interest Period, or (B) to convert all or any part of a Loan of one
Type into a Loan of another Type; provided, however, during the period that
any Default or Event of Default exists, Agent may (and shall at the direction of the
Required Lenders) declare that no Loan may be made or continued as or converted into a LIBOR
Loan. Any conversion of a LIBOR Loan into a Base Rate Loan shall be made on the last day of
the Interest Period for such LIBOR Loan. Any conversion or continuation made with respect
to less than the entire outstanding balance of the Loans must be allocated among Lenders on
a Pro Rata basis, and the Interest Period for Loans converted into or continued as LIBOR
Loans shall be coterminous for each Lender.
(ii) Whenever Borrowers desire to convert or continue Loans under Section 3.1.2(i),
Borrower Representative shall give Agent notice thereof in form satisfactory to Agent (a
“Notice of Conversion/Continuation”), at least 1 Business Day before the requested
conversion date, in the case of a conversion into Base Rate Loans, and at least 3 Business
Days before the requested conversion or continuation date, in the case of a conversion into
or continuation of LIBOR Loans. Promptly after receipt of a Notice of
Conversion/Continuation, Agent shall notify each Lender of the proposed conversion or
continuation. Each such Notice of
Conversion/Continuation shall be irrevocable and shall specify the aggregate principal
amount of the Loans to be converted or continued, the date of such conversion or
continuation (which shall be a Business Day) and whether the Loans are being converted into
or continued as LIBOR Loans (and, if so, the duration of the Interest Period to be
applicable thereto and, in the absence of any specification by Borrowers of the Interest
Period, an Interest Period of one month will be deemed to be specified) or Base Rate Loans.
If, upon the expiration of any Interest Period in respect of any LIBOR Loans, Borrowers
shall have failed to deliver the Notice of Conversion/Continuation, Borrowers shall be
deemed to have elected to convert such LIBOR Loans to Base Rate Loans.
3.1.3. Interest Periods. In connection with the making or continuation of, or
conversion into, each Borrowing of LIBOR Loans, Borrowers shall select an interest period (each an
“Interest Period”) to be applicable to such LIBOR Loan, which interest period shall commence on the
date such LIBOR Loan is made and shall end on a numerically corresponding day in the first, second,
third or sixth month thereafter; provided, however, that:
(i) the initial Interest Period for a LIBOR Loan shall commence on the date of such
Borrowing (including the date of any conversion from a Loan of another Type) and each
Interest Period occurring thereafter in respect of such Revolver Loan shall commence on the
date on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day that is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day, provided that, if any
Interest Period in respect of LIBOR Loans would otherwise expire on a day that is not a
Business
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Day but is a day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the immediately preceding Business Day;
(iii) any Interest Period that begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period shall expire on
the last Business Day of such calendar month; and
(iv) no Interest Period shall extend beyond the last day of the Term.
3.1.4. Interest Rate Not Ascertainable. If Agent shall determine (which determination
shall, absent manifest error, be final, conclusive and binding upon all parties) that on any date
for determining the Adjusted LIBOR Rate for any Interest Period, by reason of any changes arising
after the date of this Agreement affecting the London interbank market or any Lender’s position in
such market, adequate and fair means do not exist for ascertaining the applicable interest rate on
the basis provided for in the definition of Adjusted LIBOR Rate, then, and in any such event, Agent
shall forthwith give notice (by telephone promptly confirmed in writing) to Borrowers of such
determination. Until Agent notifies Borrowers that the circumstances giving rise to the suspension
described herein no longer exist, the obligation of Lenders to make LIBOR Loans shall be suspended,
and such affected Loans then outstanding shall, at the end of the then applicable Interest Period
or at such earlier time as may be required by Applicable Law, bear the same interest as Base Rate
Loans.
3.1.5. Default Rate of Interest. Borrowers shall pay interest at a rate per annum equal to the Default Rate (i) with respect
to the principal amount of all of the Obligations (and, to the extent permitted by Applicable Law,
all past due interest) upon the earlier to occur of (x) Borrower Representative’s receipt of notice
from Agent of the Required Lenders’ election to charge the Default Rate based upon the existence of
any Event of Default (which notice Agent shall send at the direction of the Required Lenders),
whether or not acceleration or demand for payment of the Obligations has been made, or (y) the
commencement by or against any Borrower of an Insolvency Proceeding whether or not Lenders elect to
accelerate the maturity or demand payment of any of the Obligations; and (ii) with respect to the
principal amount of any Out-of-Formula Loans upon Borrower Representative’s receipt of notice from
Agent of the Required Lenders’ election to charge the Default Rate with respect thereto, whether or
not demand for payment thereof has been made by Agent. To the fullest extent permitted by
Applicable Law, the Default Rate shall apply and accrue on any judgment entered with respect to any
of the Obligations and to the unpaid principal amount of the Obligations during any Insolvency
Proceeding of a Borrower. Each Borrower acknowledges that the cost and expense to Agent and each
Lender attendant upon the occurrence of an Event of Default are difficult to ascertain or estimate
and that the Default Rate is a fair and reasonable estimate to compensate Agent and Lenders for
such added cost and expense. Interest accrued at the Default Rate shall be due and payable on
demand.
3.2. Fees. In consideration of Lenders’ establishment of the Commitments in favor of
Borrowers, and Agent’s agreement to serve as collateral and administrative agent hereunder,
Borrowers jointly and severally agree to pay the following fees:
3.2.1. Closing Fee and Arrangement Fee. Borrowers shall pay to Agent, for the benefit
of the Initial Lenders, a closing fee as set forth in the Fee Letter, which shall be paid
concurrently with the funding of the initial Loans hereunder. In addition, Borrowers shall be
jointly and severally obligated to pay to Agent, for its own account, the arrangement fee described
in the Fee Letter, which shall be paid concurrently with the funding of the initial Loans
hereunder.
3.2.2. Unused Line Fee. Borrowers shall be jointly and severally obligated to pay to
Agent for the Pro Rata benefit of Lenders a fee equal to 0.25% per annum of the amount by which the
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Average Revolver Loan Balance for any month (or portion thereof that the Commitments are in effect)
is less than the aggregate amount of the Revolver Commitments, such fee to be paid monthly, in
arrears, on the first day of each month; but if the Commitment Termination Date shall occur on a
day other than the first day of a month, then any such fee payable for the month in which
termination shall occur shall be paid on the Commitment Termination Date.
3.2.3. LC Facility Fees. Borrowers shall be jointly and severally obligated to pay:
(i) to Agent, for the Pro Rata account of each Lender, for all Letters of Credit, the Applicable
Margin in effect for Revolver Loans that are LIBOR Loans on a per annum basis based on the average
amount available to be drawn under Letters of Credit outstanding and all Letters of Credit that are
paid or expire during the period of measurement, payable monthly, in arrears, on the first Business
Day of the following month; (ii) to Issuing Bank, for its own account, a Letter of Credit fronting
fee of 0.125% per annum based on the average amount available to be drawn under all Letters of
Credit outstanding and all Letters of Credit that are paid or expire during
the period of measurement, payable monthly, in arrears, on the first Business Day of the
following month; and (iii) to Issuing Bank, for its own account, all customary charges associated
with the issuance, amending, negotiating, payment, processing and administration of all Letters of
Credit. All Letter of Credit fees (other than the fronting fee) that are expressed as a percentage
shall be increased to a percentage that is 2% greater than the percentage that would otherwise be
applicable to LIBOR Loans when the Default Rate is in effect.
3.2.4. Audit and Appraisal Fees and Expenses. Borrowers shall reimburse Agent for all
reasonable costs and expenses incurred by Agent (including standard and actual fees charged by
Agent’s internal appraisal department) in connection with (i) audits and reviews of any Obligor’s
books and records and such other matters pertaining to any Obligor or any Collateral as Agent shall
deem appropriate, and shall pay to Agent the standard amount charged by Agent per day ($850 per day
as of the Closing Date) for each day that an employee or agent of Agent shall be engaged in an
examination or review of any Obligor’s books and records, provided, that, unless a Default or Event
of Default exists at the time any audit or review is initiated (in which event there shall be no
limit on the number of examinations and reviews for which Borrowers shall be obligated to reimburse
Agent), Borrowers shall not be obligated to reimburse Agent for the costs, expenses or charges
associated with any audit or review initiated during a Loan Year (a) at a time when Aggregate
Availability is at least $50,000,000 if Borrowers have previously reimbursed Agent for any other
audits or reviews initiated during such Loan Year at a time when no Default or Event of Default
existed, (b) at a time when Aggregate Availability is at least $25,000,000 but less than
$50,000,000 if Borrowers have previously reimbursed Agent for more than one other audit or review
initiated during such Loan Year at a time when no Default or Event of Default existed, or (c) at a
time when Aggregate Availability is less that $25,000,000 if Borrowers have previously reimbursed
Agent for more than two other audits or reviews initiated during such Loan Year at a time when no
Default or Event of Default existed, and (ii) appraisals of Inventory no more frequently than one
per Loan Year, unless a Default or Event of Default exists (in which event, there shall be no limit
on the number of appraisals for which Borrowers shall be obligated to reimburse Agent). The
foregoing shall not be construed to limit Agent’s right to conduct audits as provided in Section
10.1.1 or otherwise obtain appraisals of the Collateral at the expense of Agent and Lenders.
3.2.5. Agency Fee. In consideration of BofA’s syndication of the Commitments and
service as Agent hereunder, Borrowers shall pay to Agent an agency fee as set forth in the Fee
Letter, which fee shall be payable on the Closing Date and on the first day of each Loan Year
thereafter (or on the date of Full Payment of the Obligations upon termination of the Commitments,
if on a date other than an anniversary date).
3.2.6. General Provisions. All fees shall be fully earned by the identified recipient
thereof pursuant to the foregoing provisions of this Agreement on the due date thereof (and, in the
case of
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Letters of Credit, upon each issuance, renewal or extension of such Letter of Credit) and,
except as otherwise set forth herein or required by Applicable Law, shall not be subject to rebate,
refund or proration. All fees provided for in this Section 3.2 and in the Fee Letter are and shall
be deemed to be compensation for services and are not, and shall not be deemed to be, interest or
any other charge for the use, forbearance or detention of money.
3.3. Computation of Interest and Fees. All fees and other charges provided for in this Agreement that are calculated as a per
annum percentage of any amount and all interest shall be calculated daily and shall be computed on
the actual number of days elapsed over a year of 360 days. For purposes of computing interest and
other charges hereunder, each Payment Item and other form of payment received by Agent shall be
deemed applied by Agent and Lenders on account of the Obligations (subject to final payment of such
items) on the first Business Day after the Business Day on which Agent receives such Payment Item
in the Payment Account or, in the case of Payment Items constituting immediately available funds,
on the Business Day on which Agent receives such Payment Item in the Payment Account. Each
determination by Agent of interest and fees hereunder shall be presumptive evidence of the
correctness of such interest and fees.
3.4. Reimbursement Obligations.
3.4.1. Borrowers shall reimburse Agent and Lenders for any Extraordinary Expenses incurred by
Agent or any Lender, on the sooner to occur of Agent’s demand therefor or Agent’s receipt of any
proceeds of Collateral in connection with any Enforcement Action (subject to the provisions of
Section 5.5 with respect to the application of any proceeds of Collateral). Borrowers shall also
reimburse Agent for all reasonable out-of-pocket legal, accounting, appraisal, consulting and
other fees and expenses suffered or incurred by Agent in connection with: (i) the negotiation and
preparation of any of the Loan Documents, or any amendment or modification thereto; (ii) the
administration of the Loan Documents and the transactions contemplated thereby; (iii) action taken
to perfect or maintain the perfection or priority of any of Agent’s Liens with respect to any of
the Collateral; (iv) any inspection of or audits conducted by Agent with respect to any Obligor’s
books and records or any of the Collateral (subject to the limits set forth in Section 3.2.4); (v)
any effort by Agent to verify or appraise any of the Collateral (subject to the limits set forth
in Section 3.2.4). All amounts chargeable to or reimbursable by Borrowers under this Section 3.4
and under Section 3.2.4 shall constitute Obligations that are secured by all of the Collateral and
shall be payable on demand to Agent. Borrowers shall also reimburse Agent for reasonable
out-of-pocket expenses incurred by Agent in its administration of any of the Collateral to the
extent and in the manner provided in Section 8 or in any of the other Loan Documents. The
foregoing shall be in addition to, and shall not be construed to limit, any other provision of any
of the Loan Documents regarding the indemnification or reimbursement by Borrowers of Claims
suffered or incurred by Agent or any Lender.
3.4.2. If at any time Agent or (with the prior consent of Agent) any Lender, in each case
with the written consent of an Obligor (such consent to be deemed given if an Obligor is a party
to or acknowledges in writing any agreement giving rise to the Obligation of Agent of such Lender)
shall agree to indemnify any Person against losses or damages that such Person may suffer or incur
in its dealings or transactions with any Obligor, or shall guarantee or otherwise assure payment
of any liability or obligation of any Obligor to such Person, or otherwise shall provide
assurances of any Obligors’ payment or performance under any agreement with such Person, including
indemnities, guaranties or other assurances of payment or performance given by Agent or any Lender
with respect to Banking Relationship Debt, then the Contingent Obligation of Agent or any Lender
providing any such indemnity, guaranty or other assurance of payment or performance, together with
any payment made or liability incurred by Agent or any Lender in connection therewith, shall
constitute Obligations that are secured by the Collateral and Borrowers shall repay, on demand,
any amount so paid or any liability
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incurred by Agent or any Lender in connection with any such
indemnity, guaranty or assurance. Nothing herein shall be construed to impose upon Agent or any
Lender any obligation to provide any such indemnity, guaranty or assurance. The foregoing
agreement of Borrowers shall survive termination of the Commitments and Full Payment of the
Obligations and any other provisions of the Loan Documents regarding reimbursement or
indemnification by Borrowers of Claims suffered or incurred by Agent or any Lender.
3.5. Bank Charges. Borrowers shall pay to Agent, on demand, any and all fees, costs
or expenses which Agent pays to a bank or other similar institution (including any fees paid by
Agent or any Lender to any Participant) arising out of or in connection with (i) the forwarding to
a Borrower or any other Person on behalf of Borrower by Agent of proceeds of Loans made by Lenders
to a Borrower pursuant to this Agreement and (ii) the depositing for collection by Agent of any
Payment Item received or delivered to Agent on account of the Obligations. Each Borrower
acknowledges and agrees that Agent may charge such costs, fees and expenses to Borrowers based upon
Agent’s good faith estimate of such costs, fees and expenses as they are incurred by Agent.
3.6. Illegality. Notwithstanding anything to the contrary contained elsewhere in this
Agreement, if (i) any change in any law or regulation or in the interpretation thereof by any
Governmental Authority charged with the administration thereof shall make it unlawful for a Lender
to make or maintain a LIBOR Loan or to give effect to its obligations as contemplated hereby with
respect to a LIBOR Loan or (ii) at any time such Lender determines that the making or continuance
of any LIBOR Loan has become impracticable as a result of a contingency occurring after the date
hereof which adversely affects the London interbank market or the position of such Lender in such
market, then such Lender shall give after such determination Agent and Borrowers notice thereof and
may thereafter (1) declare that LIBOR Loans will not thereafter be made by such Lender, whereupon
any request by a Borrower for a LIBOR Loan from such Lender shall be deemed a request for a Base
Rate Loan unless such Lender’s declaration shall be subsequently withdrawn (which declaration shall
be withdrawn promptly after the cessation of the circumstances described in clause (i) or
(ii) above); and (2) require that all outstanding LIBOR Loans made by such Lender be
converted to Base Rate Loans, under the circumstances of clause (i) or (ii) of this
Section 3.6 insofar as such Lender determines the continuance of LIBOR Loans to be impracticable,
in which event each of such Lender’s outstanding LIBOR Loans shall be converted to Base Rate Loans
automatically on the expiration date of the respective Interest Period applicable thereto (or, to
the extent any such LIBOR Loan may not be lawfully maintained as a LIBOR Loan until such expiration
date, immediately upon such notice).
3.7. Increased Costs. If, by reason of (a) the introduction after the date hereof of
or any change (including any change by way of imposition or increase of Statutory Reserves or other
reserve requirements) in or in the interpretation of any law or regulation by any Governmental
Authority, or (b) the compliance with any guideline or request from any central bank or other
Governmental Authority or quasi-Governmental Authority exercising control over banks or financial
institutions generally (whether or not having the force of law):
(i) any Lender shall be subject after the date hereof to any Tax, duty or other charge
with respect to any LIBOR Loan or Letter of Credit or its obligation to make LIBOR Loans or
to issue Letters of Credit or participate in the LC Obligations arising from the issuance of
Letters of Credit, or a change shall result in the basis of taxation of payment to any
Lender of the principal of or interest on its LIBOR Loans or its obligation to make LIBOR
Loans, issue Letters of Credit or participate in the LC Obligations arising from the
issuance of Letters of Credit (except for Excluded Taxes); or
(ii) any reserve (including any imposed by the Board of Governors), special deposits
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or similar requirement against assets of, deposits with or for the account of, or credit
extended by,
any Lender shall be imposed or deemed applicable or any other condition affecting its
LIBOR Loans or Letters of Credit or its obligation to make LIBOR Loans or to issue Letters
of Credit or participate in the LC Obligations arising from the issuance of Letters of
Credit shall be imposed on such Lender or the London interbank market;
and as a result thereof there shall be any increase in the cost to such Lender of agreeing to make
or making, funding or maintaining LIBOR Loans or issuing Letters of Credit (except to the extent
already included in the determination of the applicable Adjusted LIBOR Rate for LIBOR Loans), or
there shall be a reduction in the amount received or receivable by such Lender, then such Lender
shall, promptly after determining the existence or amount of any such increased costs for which
such Lender seeks payment hereunder, give Borrower Representative notice thereof and Borrowers
shall from time to time, upon written notice from and demand by such Lender (with a copy of such
notice and demand to Agent), pay to Agent for the account of such Lender, within 5 Business Days
after the date specified in such notice and demand, an additional amount sufficient to indemnify
such Lender against such increased costs. A certificate as to the amount of such increased costs,
submitted to Borrowers by such Lender, shall be final, conclusive and binding for all purposes,
absent manifest error; provided, however, that Borrowers shall not be obligated to indemnify any
Lender for such increased costs for any period 90 days or more prior to the date such Lender
provides such notice.
If any Lender shall advise Agent at any time that, because of the circumstances described
hereinabove in this Section 3.7 or any other circumstances arising after the date of this Agreement
generally affecting the London interbank market, the Adjusted LIBOR Rate, as determined by Agent,
will not adequately and fairly reflect the cost to such Lender of funding LIBOR Loans or issuing
Letters of Credit, then, and in any such event:
(i) Agent shall forthwith give notice (by telephone confirmed promptly in writing) to
Borrowers and Lenders of such event;
(ii) Borrowers’ right to request and such Lender’s obligation to make LIBOR Loans or to
issue Letters of Credit or participate in the LC Obligations arising from the issuance of
Letters of Credit shall be immediately suspended and Borrowers’ right to continue a LIBOR
Loan as such beyond the then applicable Interest Period or to request a Letter of Credit
shall also be suspended, until each condition giving rise to such suspension no longer
exists; and
(iii) such Lender shall make a Base Rate Loan as part of the requested Borrowing of
LIBOR Loans, which Base Rate Loan shall, for all purposes, be considered part of such
Borrowing.
For purposes of this Section 3.7, all references to a Lender shall be deemed to include any
bank holding company or bank parent of such Lender. If any Lender provides notice that, due to the
circumstances described in this Section 3.7, the Adjusted LIBOR Rate will not adequately and fairly
reflect the cost to such Lender of funding LIBOR Loans or participating in LC Obligations arising
from the issuance of Letters of Credit, then such Lender may be replaced pursuant to the provisions
of Section 13.17.
3.8. Capital Adequacy. If any Lender determines that (i) the introduction after the date
hereof of any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy Regulation,
(iii) any change in the interpretation or administration of any Capital Adequacy Regulation by any
central bank or other Governmental Authority charged with the interpretation or administration
thereof, or (iv) compliance by such Lender or any
corporation or other entity controlling such Lender with any Capital
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Adequacy Regulation, affects
or would affect the amount of capital required or expected to be maintained by such Lender or any
Person controlling such Lender and (taking into consideration such Lender’s or such corporation’s
or other entity’s policies with respect to capital adequacy and such Lender’s desired return on
capital) determines that the amount of such capital is increased as a consequence of its
Commitments, loans, credits or obligations under this Agreement, then: (a) Agent shall promptly,
after its receipt of a certificate from such Lender setting forth such Lender’s determination of
such occurrence, give notice thereof to Borrowers and Lenders; and (b) Borrowers shall pay to
Agent, for the account of such Lender, as an additional fee from time to time, on demand, such
amount as such Lender certifies to be the amount reasonably calculated to compensate such Lender
for such reduction; provided, however, that Borrowers shall not be obligated to pay any Lender for
such amounts for any period 90 days or more prior to the date such Lender provides such notice. A
certificate of such Lender claiming entitlement to compensation as set forth above will be
conclusive in the absence of manifest error. Such certificate will set forth the nature of the
occurrence giving rise to such compensation, the additional amount or amounts to be paid to such
Lender (including the basis for such Lender’s determination of such amount), and the method by
which such amounts were determined. In determining such amount, such Lender may use any reasonable
averaging and attribution method. For purposes of this Section 3.8 all references to a Lender
shall be deemed to include any bank holding company or bank parent of such Lender.
3.9. Mitigation. Each Lender agrees that, with reasonable promptness after such
Lender becomes aware that such Lender is entitled to receive payments under Sections 3.6, 3.7 or
3.8, or is or has become subject to U.S. withholding taxes payable by any Borrower in respect of
its Loans, it will, to the extent not inconsistent with any internal policy of such Lender or any
applicable legal or regulatory restriction, (i) use all reasonable efforts to make, fund or
maintain the Commitment of such Lender or the Loans of such Lender through another lending office
of such Lender or (ii) take such other reasonable measures, if, as a result thereof, the
circumstances which would relieve Borrowers from their obligations to pay such additional amounts
(or reduce the amount of such payments), or such withholding taxes would be reduced, and if the
making, funding or maintaining of such Commitment or Loans through such other lending office or in
accordance with such other measures, as the case may be, would not otherwise adversely affect such
Commitment or Loans or the interests of such Lender.
3.10. Funding Losses. If for any reason (other than due to a default by a Lender, as a
result of a Lender’s refusal to honor a LIBOR Loan request due to circumstances described in this
Agreement or as a result of the application of Section 3.7) a Borrowing of, or conversion to or
continuation of, LIBOR Loans does not occur on the date specified therefor in a Notice of Borrowing
or Notice of Conversion/Continuation (whether or not withdrawn), or if any repayment (including any
conversions pursuant to Section 3.1.2) of any of its LIBOR Loans occurs on a date that is not the
last day of an Interest Period applicable thereto, or if for any reason Borrowers default in their
obligation to repay LIBOR Loans when required by the terms of this Agreement, then Borrowers shall
be jointly and severally obligated to pay to each Lender an amount equal to all losses and expenses
which such Lender may sustain or incur as a consequence thereof, including any such loss or expense
arising from the liquidation or redeployment of funds obtained by it to maintain its LIBOR Loans or
from fees payable to terminate the deposits from which such funds were obtained. Borrowers shall
pay all such amounts due to any Lender upon presentation by such Lender of a statement setting
forth the amount and such Lender’s calculation thereof, which statement shall be deemed true and
correct absent manifest error. For purposes of this Section 3.10, all references to a Lender shall
be deemed to include any bank holding company or bank parent of such Lender.
3.11. Maximum Interest. Regardless of any provision contained in any of the Loan
Documents, in no contingency or event whatsoever shall the aggregate of all amounts that are
contracted for, charged or received by Agent and Lenders pursuant to the terms of this Agreement or
any of the other Loan Documents and that are deemed interest under Applicable Law exceed the
highest rate permissible
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under any Applicable Law (including, to the extent applicable, 18 U.S.C. §
85). No agreements, conditions, provisions or stipulations contained in this Agreement or any of
the other Loan Documents or the exercise by Agent of the right to accelerate the payment or the
maturity of all or any portion of the Obligations, or the exercise of any option whatsoever
contained in any of the Loan Documents, or the prepayment by Borrowers of any of the Obligations,
or the occurrence of any contingency whatsoever, shall entitle Agent or any Lender to charge or
receive in any event, interest or any charges, amounts, premiums or fees deemed interest by
Applicable Law (such interest, charges, amounts, premiums and fees referred to herein collectively
as “Interest”) in excess of the Maximum Rate and in no event shall Borrowers be obligated to pay
Interest exceeding such Maximum Rate, and all agreements, conditions or stipulations, if any, which
may in any event or contingency whatsoever operate to bind, obligate or compel Borrowers to pay
Interest exceeding the Maximum Rate shall be without binding force or effect, at law or in equity,
to the extent only of the excess of Interest over such Maximum Rate. If any Interest is charged or
received with respect to the Obligations in excess of the Maximum Rate (“Excess”), Borrowers
stipulate that any such charge or receipt shall be the result of an accident and bona fide error,
and such Excess, to the extent received, shall be applied first to reduce the principal of such
Obligations and the balance, if any, returned to Borrowers, it being the intent of the parties
hereto not to enter into a usurious or otherwise illegal relationship. Each Borrower recognizes
that, with fluctuations in the rates of interest set forth in Section 3.1.1, and the Maximum Rate,
such an unintentional result could inadvertently occur. All monies paid to Agent or any Lender
hereunder or under any of the other Loan Documents, whether at maturity or by prepayment, shall be
subject to any rebate of unearned Interest as and to the extent required by Applicable Law. By the
execution of this Agreement, each Borrower covenants that (i) the credit or return of any Excess
shall constitute the acceptance by such Borrower of such Excess, and (ii) such Borrower shall not
seek or pursue any other remedy, legal or equitable, against Agent or any Lender, based in whole or
in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate.
For the purpose of determining whether or not any Excess has been contracted for, charged or
received by Agent or any Lender, all Interest at any time contracted for, charged or received from
Borrowers in connection with any of the Loan Documents shall, to the extent permitted by Applicable
Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the
Obligations. Borrowers, Agent and Lenders shall, to the maximum extent permitted under Applicable
Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as
Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this
Section 3.11 shall be deemed to be incorporated into every Loan Document (whether or not any
provision of this Section is referred to therein). All such Loan Documents and communications
relating to any Interest owed by Borrowers and all figures set forth therein shall, for the sole
purpose of computing the extent of Obligations, be automatically recomputed by Borrowers, and by
any court considering the same, to give effect to the adjustments or credits required by this
Section 3.11.
SECTION 4. LOAN ADMINISTRATION
4.1. Manner of Borrowing and Funding Revolver Loans. Borrowings under the Commitments
established pursuant to Section 2.1 shall be made and funded as follows:
4.1.1. Notice of Borrowing.
(i) Whenever Borrowers desire to make a Borrowing under Section 2.1 (other than a
Borrowing resulting from a conversion or continuation pursuant to Section 3.1.2), Borrowers
shall give Agent notice of such Borrowing request in form satisfactory to Agent (a “Notice
of Borrowing”). Such Notice of Borrowing shall be given by Borrower Representative at the
office designated by Agent from time to time (a) no later than 12:00 noon on the Business
Day of the requested funding date of such Borrowing, in the
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case of Base Rate Loans, and (b)
no later than 1:00 p.m. at least 3 Business Days prior to the requested funding date of such
Borrowing, in the case of LIBOR Loans. Notices received after such times shall be deemed
received on the next Business Day. The Revolver Loans made by each Lender on the Closing
Date, if any, shall be in excess of $250,000 and shall be made as Base Rate Loans and
thereafter may be made or continued as or converted into Base Rate Loans or LIBOR Loans.
Each Notice of Borrowing (or telephonic notice thereof) shall be irrevocable and shall
specify (I) the principal amount of the Borrowing, (II) the date of Borrowing (which shall
be a Business Day), (III) whether the Borrowing is to consist of Base Rate Loans or LIBOR
Loans, (IV) in the case of LIBOR Loans, the duration of the Interest Period to be applicable
thereto, (V) the applicable Borrower(s) (i.e. Xxxxxxx Sealing or the Excess Collateral
Providers) on behalf of which such request is made, and (VI) the account of the applicable
Borrower to which the proceeds of such Borrowing are to be disbursed.
(ii) Unless payment is otherwise timely made by Borrowers, the becoming due of any
amount required to be paid with respect to any of the Obligations (whether as principal,
accrued interest, fees or other charges, including Extraordinary Expenses and LC
Obligations, and any amounts owed to any Lender or any Affiliate of any Lender for Banking
Relationship Debt) shall be deemed irrevocably to be a request (without any requirement for
the submission of a Notice of Borrowing) for Revolver Loans on the due date of, and in an
aggregate amount required to pay, such Obligations, and the proceeds of such Revolver Loans
may be disbursed by way of direct payment of the relevant Obligation and shall bear interest
as Base Rate Loans unless and until such Loans are converted to LIBOR Loans in accordance
with the terms of this Agreement.
(iii) If Borrowers elect to establish a Controlled Disbursement Account with BofA or
any Affiliate of BofA, then, at Agent’s election, the presentation for payment by BofA (or
its Affiliate) of any check or other item of payment drawn on the Controlled Disbursement
Account at a time when there are insufficient funds in such account to cover such check
shall be deemed irrevocably to be a request (without any requirement for the submission of a
Notice of Borrowing) for Revolver Loans on the date of such presentation and in an amount
equal to the aggregate amount of the items presented for payment, and the proceeds of such
Revolver Loans may be disbursed to the Controlled Disbursement Account and shall bear
interest as Base Rate Loans.
(iv) Neither Agent nor any Lender shall have any obligation to honor any deemed request
for a Revolver Loan on or after the Commitment Termination Date or when an Out-of-Formula
Condition exists (except as may be otherwise required by Agent pursuant to this Agreement)
or would result therefrom or when any condition precedent in Section 11 is not satisfied.
4.1.2. Fundings by Lenders. Subject to its receipt of notice from Agent of a Notice of Borrowing as provided in Section
4.1.1(i) (except in the case of a deemed request by Borrower Representative for a Revolver Loan as
provided in Sections 2.3, 4.1.1(ii) or (iii), in which event no Notice of Borrowing need be
submitted), each Lender shall timely honor its Revolver Commitment by funding its Pro Rata share of
each Borrowing of Revolver Loans that is properly requested and that Borrowers are entitled to
receive under this Agreement. Agent shall endeavor to notify Lenders of each Notice of Borrowing
(or deemed request for a Borrowing pursuant to Sections 2.3, 4.1.1(ii) or (iii)), by 1:00 p.m. on
the proposed funding date (in the case of Base Rate Loans) or by 3:00 p.m. at least 2 Business Days
before the proposed funding date (in the case of LIBOR Loans). Each Lender shall deposit with
Agent an amount equal to its Pro Rata share of the Borrowing requested or deemed requested by
Borrowers at Agent’s designated bank in immediately available funds not later than 2:00 p.m. on the
date of funding of such Borrowing, unless Agent’s notice to Lenders is received after 1:00 p.m. on
the proposed funding date
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of a Base Rate Loan, in which event Lenders shall deposit with Agent
their respective Pro Rata shares of the requested Borrowing on or before 11:00 a.m. of the next
Business Day. Subject to its receipt of such amounts from Lenders, Agent shall make the proceeds
of the Revolver Loans received by it available to Borrowers by disbursing such proceeds in
accordance with Borrower Representative’s disbursement instructions set forth in the applicable
Notice of Borrowing. Neither Agent nor any Lender shall have any liability on account of any delay
by any bank or other depository institution in treating the proceeds of any Revolver Loan as
collected funds or any delay in receipt, or any loss, of funds that constitute a Revolver Loan, the
wire transfer of which was initiated by Agent in accordance with wiring instructions provided to
Agent. Unless Agent shall have been notified in writing by a Lender prior to the proposed time of
funding that such Lender does not intend to deposit with Agent an amount equal such Lender’s Pro
Rata share of the requested Borrowing (or deemed request for a Borrowing pursuant to Section 2.3 or
clauses (ii) or (iii) of Section 4.1.1), Agent may assume that such Lender has deposited or
promptly will deposit its share with Agent and Agent may in its discretion disburse a corresponding
amount to Borrowers on the applicable funding date. If a Lender’s Pro Rata share of such Borrowing
is not in fact deposited with Agent, then, if Agent has disbursed to Borrowers an amount
corresponding to such share, then such Lender agrees to pay, and in addition Borrowers agree to
repay, to Agent forthwith on demand such corresponding amount, together with interest thereon, for
each day from the date such amount is disbursed by Agent to or for the benefit of Borrowers until
the date such amount is paid or repaid to Agent, (a) in the case of Borrowers, at the interest rate
applicable to such Borrowing and (b) in the case of such Lender, at the Federal Funds Rate. If
such Lender repays to Agent such corresponding amount, such amount so repaid shall constitute a
Revolver Loan, and if both such Lender and Borrowers shall have repaid such corresponding amount,
Agent shall promptly return to Borrowers such corresponding amount in same day funds. A notice
from Agent submitted to any Lender with respect to amounts owing under this Section 4.1.2 shall be
conclusive, absent manifest error.
4.1.3. Settlement and Swingline Loans.
(i) In order to facilitate the administration of the Revolver Loans under this
Agreement, Lenders and Agent agree (which agreement shall be solely between Lenders and
Agent and shall not be for the benefit of or enforceable by any Borrower) that settlement
among them with respect to the Revolver Loans may take place on a periodic basis on dates
determined from time to time by Agent (each a “Settlement Date”), which may occur before or
after the occurrence or during the continuance of a Default or Event of Default and whether
or not all of the conditions set forth in Section 11 have been met. On each Settlement
Date, payment shall be made by or to each Lender in the manner provided herein and in
accordance with the Settlement Report delivered by Agent to Lenders with respect to such
Settlement Date so that, as of each Settlement Date and after giving effect to the
transaction to take place on such Settlement Date, each Lender shall hold its Pro Rata share
of all Revolver Loans and participations in LC Obligations. Agent shall request settlement
with the Lenders on a basis not less frequently than
once every 5 Business Days.
(ii) Between Settlement Dates, Agent may request BofA to advance, and BofA may, but
shall in no event be obligated to, advance to Borrowers out of BofA’s own funds the entire
principal amount of any Borrowing of Revolver Loans that are Base Rate Loans requested or
deemed requested pursuant to this Agreement (any such Revolver Loan funded exclusively by
BofA being referred to as a “Swingline Loan”); provided, that if BofA fails to advance all
such funds, the Lenders shall not be relieved of their obligation to fund Revolver Loans in
accordance with the terms of this Agreement. Each Swingline Loan shall constitute a
Revolver Loan hereunder and shall be subject to all of the terms, conditions and security
applicable to other Revolver Loans, except that all payments thereon shall be payable to
BofA solely for its own account. The obligation of Borrowers to repay such Swingline Loans
to BofA shall be evidenced
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by the records of BofA and need not be evidenced by any
promissory note. Unless a funding is required by all Lenders pursuant to Sections 2.1.4 or
13.9.4, Agent shall not request BofA to make any Swingline Loan if (A) Agent shall have
received written notice from any Lender that one or more of the applicable conditions
precedent set forth in Section 11 will not be satisfied on the requested funding date for
the applicable Borrowing and Agent has made a determination (without any liability to any
Person) that such condition precedent will not be satisfied, or (B) the requested Borrowing
would exceed the amount of Availability of Xxxxxxx Sealing or the Excess Collateral
Providers, as applicable, or the Aggregate Availability, on the funding date. BofA shall
not be required to determine whether the applicable conditions precedent set forth in
Section 11 have been satisfied or the requested Borrowing would exceed the amount of
Availability of Xxxxxxx Sealing or the Excess Collateral Providers, as applicable, or the
Aggregate Availability, on the funding date applicable thereto prior to making, in its
discretion, any Swingline Loan. Agent shall notify the Lenders of the outstanding balance
of Swingline Loans prior to 11:00 a.m. on each Settlement Date and each Lender (other than
BofA) shall deposit with Agent an amount equal to its Pro Rata share of the outstanding
amount of Swingline Loans in immediately available funds not later than 2:00 p.m. on such
Settlement Date. Each Lender’s obligation to make such deposit with Agent shall be absolute
and unconditional, without defense, offset, counterclaim or other defense, and without
regard to whether any of the conditions precedent set forth in Section 11 are satisfied, any
Out-of-Formula Condition exists or the Commitment Termination Date has occurred. If, as the
result of the commencement by or against Borrowers of any Insolvency Proceeding or
otherwise, any Swingline Loan may not be settled among Lenders hereunder, then each Lender
(other than BofA) shall be deemed to have purchased a participating interest in any unpaid
Swingline Loan in an amount equal to such Lender’s Pro Rata share of such Swingline Loan and
shall transfer to BofA, in immediately available funds not later than the second Business
Day after BofA’s request therefor, the amount of such Lender’s participation. The proceeds
of Swingline Loans may be used solely for purposes for which Revolver Loans generally may be
used in accordance with Section 2.1.3. If any amounts received by BofA in respect of any
Swingline Loans are later required to be returned or repaid by BofA to Borrowers or any
other Obligor or their respective representatives or successors-in-interest, whether by
court order, settlement or otherwise, the other Lenders shall, on demand by BofA with notice
to Agent, pay to Agent for the account of BofA, an amount equal to each other Lender’s Pro
Rata share of all such amounts required to be returned or repaid.
4.1.4. Disbursement Authorization. Each Borrower hereby irrevocably authorizes Agent to
disburse the proceeds of each Revolver Loan requested by any Borrower, or deemed to be requested
pursuant to Section 4.1.1 or Section 4.1.3(ii), as follows: (i) the proceeds of each Revolver Loan
requested under Section 4.1.1(i) shall be disbursed by Agent in accordance with the terms of the
written disbursement letter from Borrowers in the case of the
initial Borrowing, and, in the case of each subsequent Borrowing, by wire transfer to such bank
account of Borrowers as may be agreed upon by Borrowers and Agent from time to time or elsewhere if
pursuant to a written direction from any Borrower that is approved by Agent; and (ii) the proceeds
of each Revolver Loan requested under Section 4.1.1(ii) or Section 4.1.3(ii) shall be disbursed by
Agent by way of direct payment of the relevant interest or other Obligation. Any Loan proceeds
received by any Borrower or in payment of any of the Obligations shall be deemed to have been
received by all Borrowers for purposes of the joint and several liability of Borrowers hereunder,
but shall be accounted for in accordance with GAAP to reflect the liability on the financial record
of the actual Borrower.
4.1.5. Notices. Each Borrower authorizes Agent and Lenders to extend, convert or
continue Loans, effect selections of Types of Loans and transfer funds to or on behalf of Borrowers
based on telephonic or electronic instructions from any individual whom Agent or any Lender in good
faith believes to be acting on behalf of any Borrower. Borrowers shall confirm each such
telephonic request
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for a Borrowing or conversion or continuation of Loans by prompt delivery to
Agent of the required Notice of Borrowing or Notice of Conversion/Continuation, as applicable. If
the written confirmation differs in any material respect from the action taken by Agent or Lenders,
the records of Agent and Lenders shall govern. Neither Agent nor any Lender shall have any
liability for any loss suffered by any Borrower as a result of Agent’s or any Lender’s acting upon
its understanding of telephonic or electronic instructions or requests from a person believed in
good faith by Agent or any Lender to be a person authorized by a Borrower to give such instructions
or to make such requests on Borrowers’ behalf.
4.2. Defaulting Lender. If any Lender shall, at any time, fail to make any payment to
Agent or BofA that is required hereunder, Agent may, but shall not be required to, retain payments
that would otherwise be made to such defaulting Lender hereunder and apply such payments to such
defaulting Lender’s defaulted obligations hereunder, at such time, and in such order, as Agent may
elect in its discretion. With respect to the payment of any funds from Agent to a Lender or from a
Lender to Agent, the party failing to make the full payment when due pursuant to the terms hereof
shall, on demand by the other party, pay such amount together with interest on such amount at the
Federal Funds Rate. The failure of any Lender to fund its portion of any Loan or payment in
respect of an LC Obligation shall not relieve any other Lender of its obligation, if any, to fund
its portion of the Revolver Loan or payment in respect of an LC Obligation on the date of
Borrowing, but no Lender shall be responsible for the failure of any other Lender to make any Loan
or payment in respect of an LC Obligation to be made by such Lender on the date of any Borrowing.
Solely as among the Lenders and solely for purposes of (i) voting upon or consenting to amendments,
waivers, actions or inactions under any of the Loan Documents, or with respect to the Collateral or
any Obligations, and (ii) determining a defaulting Lender’s share of payments and proceeds of
Collateral pending such defaulting Lender’s cure of its defaults hereunder, a defaulting Lender
shall not be deemed to be a “Lender” and such Lender’s Commitment shall be deemed to be zero (0).
The provisions of this Section 4.2 shall be solely for the benefit of Agent and Lenders and may not
be enforced by Borrowers.
4.3. Special Provisions Governing LIBOR Loans.
4.3.1. Number of LIBOR Loans. In no event may the number of LIBOR Loans outstanding
at any time to any Lender exceed 10.
4.3.2. Minimum Amounts. Each Borrowing of LIBOR Loans pursuant to Section 4.1.1(i), and each continuation of or
conversion to LIBOR Loans pursuant to Section 3.1.2, shall be in a minimum amount of $1,000,000 and
integral multiples of $100,000 in excess of that amount.
4.3.3. LIBOR Lending Office. Each Lender shall have the right at any time and from
time to time to designate a different office of itself or of any Affiliate as such Lender’s LIBOR
Lending Office, and to transfer any outstanding LIBOR Loans to such LIBOR Lending Office. No such
designation or transfer shall result in any liability on the part of Borrowers for increased costs
or expenses resulting solely from such designation or transfer. Increased costs for expenses
resulting from a change in Applicable Law occurring subsequent to any such designation or transfer
shall be deemed not to result solely from such designation or transfer.
4.3.4. Funding of LIBOR Loans. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBOR Loans hereunder by causing one of its foreign
branches or Affiliates (or an international banking facility created by such Lender) to make or
maintain such LIBOR Loans; provided, however, that such LIBOR Loans shall nonetheless be deemed to
have been made and to be held by such Lender, and the obligation of Borrowers to repay such LIBOR
Loans shall nevertheless be to such Lender for the account of such foreign branch, Affiliate or
international banking facility. The calculation of all amounts payable to any Lender under
Sections 3.7 and 3.10 shall be made as if each
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Lender had actually funded or committed to fund its
LIBOR Loan through the purchase of an underlying deposit in an amount equal to the amount of such
LIBOR Loan and having a maturity comparable to the relevant Interest Period for such LIBOR Loans;
provided, however, each Lender may fund its LIBOR Loans in any manner it deems fit and the
foregoing presumption shall be utilized only for the calculation of amounts payable under Sections
3.7 and 3.10.
4.4. Borrower Representative. Each Borrower hereby irrevocably appoints Coltec, and
Coltec agrees to act under this Agreement, as the agent and representative of itself and each other
Borrower for all purposes under this Agreement (in such capacity, “Borrower Representative”),
including requesting Borrowings, submitting LC Requests, selecting whether any Loan or portion
thereof is to bear interest as a Base Rate Loan or a LIBOR Loan, and receiving account statements
and other notices and communications to Borrowers (or any of them) from Agent. Agent may rely, and
shall be fully protected in relying, on any Notice of Borrowing, Notice of Conversion/Continuation,
LC Request, disbursement instructions, reports, information, Borrowing Base Certificate or any
other notice or communication made or given by Borrower Representative, whether in its own name, on
behalf of any Borrower or on behalf of “the Borrowers,” and Agent shall have no obligation to make
any inquiry or request any confirmation from or on behalf of any other Borrower as to the binding
effect on such Borrower of any such Notice of Borrowing, Notice of Conversion Continuation, LC
Request, instruction, report, information, Borrowing Base Certificate or other notice or
communication, nor shall the joint and several character of Borrowers’ liability for the
Obligations be affected, provided that the provisions of this Section 4.4 shall not be construed so
as to preclude any Borrower from directly requesting Borrowings or taking other actions permitted
to be taken by “a Borrower” hereunder. In addition to the separate accounts to be maintained for
the Loans and Obligations of Xxxxxxx Sealing and the Loans and Obligations of the Excess Collateral
Providers pursuant to Section 5.7, Agent may maintain a single Loan Account in the name of “Coltec”
or “EnPro” hereunder, and each Borrower expressly agrees to such arrangement and confirms that such
arrangement shall have no effect on the joint and several character of such Borrower’s
liability for the Obligations.
4.5. All Loans to Constitute One Obligation. The Loans and LC Obligations shall
constitute one general obligation of Borrowers and (unless otherwise expressly provided in any
Security Document) shall be secured by Agent’s Lien upon all of the Collateral; provided,
however, that Agent and each Lender shall be deemed to be a creditor of each Borrower and
the holder of a separate claim against each Borrower to the extent of any Obligations jointly and
severally owed by Borrowers to Agent or such Lender.
SECTION 5. PAYMENTS
5.1. General Payment Provisions. All payments (including all prepayments) of
principal of and interest on the Loans, LC Obligations and other Obligations that are payable to
Agent or any Lender shall be made to Agent in Dollars without any offset or counterclaim and free
and clear of (and without deduction for) any Taxes (other than Excluded Taxes), and, with respect
to payments made other than by application of balances in the Payment Account, in immediately
available funds not later than 1:00 p.m. on the due date (and payment made after such time on the
due date to be deemed to have been made on the next succeeding Business Day). Borrowers shall, at
the time Borrowers make any payment under this Agreement, specify to Agent the Obligations to which
such payment is to be applied and, if Borrowers fail so to specify or if the application specified
by Borrowers would be inconsistent with the terms of this Agreement or if an Event of Default
exists, Agent shall distribute such payment to Lenders for application to the Obligations in such
manner as Agent, subject to the provisions of this Agreement, may determine to be appropriate;
provided, that, unless an Event of Default exists (i) all payments received from each Dominion
Account of Xxxxxxx Sealing shall be applied first to the Obligations relating to the Aggregate
Revolver Outstandings of Xxxxxxx Sealing and (ii) all payments received from each Dominion Account
of
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an Excess Collateral Provider shall be applied first to the Obligations relating to the
Aggregate Revolver Outstandings of the Excess Collateral Providers. All payments received by Agent
shall be subject to the rights of offset that Agent may have as to amounts otherwise to be remitted
to a particular Lender by reason of amounts due Agent from such Lender under any of the Loan
Documents. At any time and from time to time, to the extent Loans are not repaid by application of
balances in the Payment Account (if required hereunder), Borrowers shall have the right to prepay
the Loans, in whole or in part, without premium or penalty (except as provided in the proviso
below), upon written notice given to Agent not later than 1:00 p.m., three (3) Business Days prior
to each intended prepayment of LIBOR Loans and one (1) Business Day prior to each intended
prepayment of Base Rate Loans; provided that unless made together with all amounts required
under Section 3.10 to be paid as a consequence of such prepayment, a prepayment of a LIBOR Loan may
be made only on the last day of the Interest Period applicable thereto. Each such notice shall
specify the proposed date of such prepayment, the aggregate principal amount of the Loans to be
prepaid, whether such Loans are Base Rate Loans or LIBOR Loans (and, in the case of LIBOR Loans,
the Interest Period of the Borrowing pursuant to which made), shall be irrevocable and shall bind
Borrowers to make such prepayment on the terms specified therein (except to the extent that the
amount of the Loans to be repaid is reduced by the application of balances in the Payment Account
prior to the time of repayment). Loans prepaid pursuant to this Section 5.1 may be reborrowed,
subject to the terms and conditions of this Agreement.
5.2. Repayment of Revolver Loans.
5.2.1. Payment of Principal. The outstanding principal amounts with respect to the Revolver Loans shall be repaid as
follows:
(i) Any portion of the Revolver Loans consisting of the principal amount of Base Rate
Loans shall be paid by Borrowers to Agent, for the Pro Rata benefit of Lenders (or, in the
case of Swingline Loans, for the sole benefit of BofA), unless timely converted to a LIBOR
Loan in accordance with this Agreement, immediately upon (a) each receipt by Agent, any
Lender or Borrowers of any proceeds of any of the Accounts or Inventory, to the extent of
such proceeds, and (b) the Commitment Termination Date.
(ii) Any portion of the Revolver Loans consisting of the principal amount of LIBOR
Loans shall be paid by Borrowers to Agent, for the Pro Rata benefit of Lenders, unless
continued as a LIBOR Loan in accordance with the terms of this Agreement, immediately upon
(a) the last day of the Interest Period applicable thereto and (b) the Commitment
Termination Date. In no event shall Borrowers be authorized to make a voluntary prepayment
with respect to any Revolver Loan outstanding as a LIBOR Loan prior to the last day of the
Interest Period applicable thereto unless Borrowers pay to Agent, for the Pro Rata benefit
of Lenders, concurrently with any prepayment of a LIBOR Loan, any amount due Agent and
Lenders under Section 3.10 as a consequence of such prepayment. Notwithstanding anything to
the contrary contained in this Agreement, unless so directed by Borrower Representative or
unless an Event of Default has occurred and is continuing, neither Agent nor any Lender
shall apply any payments which it receives (or any proceeds of Accounts or Inventory) to any
LIBOR Loan, except on the expiration date of the Interest Period applicable to any such
LIBOR Loan; provided, that Borrowers shall be required to pay breakage losses in accordance
with Section 3.10 of this Agreement if required thereunder. In the event that Agent
receives, on any date when LIBOR Loans are outstanding but no Base Rate Loans are
outstanding, proceeds of any of the Accounts or Inventory that are required to be used to
prepay the principal amount of LIBOR Loans, Agent may hold such proceeds as cash security
for the Obligations represented by such LIBOR Loans and apply such proceeds to such LIBOR
Loans on the expiration date of the Interest Period applicable thereto.
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(iii) Notwithstanding anything to the contrary contained elsewhere in this Agreement,
if an Out-of-Formula Condition shall exist, Borrowers shall, on the sooner to occur of the
first Business Day after any Borrower has obtained knowledge thereof or Agent’s demand,
repay the outstanding Revolver Loans that are Base Rate Loans in an amount sufficient to
reduce the aggregate unpaid principal amount of all Revolver Loans by an amount equal to
such excess; and, if such payment of Base Rate Loans is not sufficient to eliminate the
Out-of-Formula Condition, then Borrowers shall immediately deposit with Agent, for the Pro
Rata benefit of Lenders, for application to any outstanding Revolver Loans bearing interest
as LIBOR Loans as the same become due and payable (whether at the end of the applicable
Interest Periods or on the Commitment Termination Date) cash in an amount sufficient to
eliminate such Out-of-Formula Condition, and Agent may (a) hold such deposit as cash
security pending disbursement of same to Lenders for application to the outstanding Revolver
Loans bearing interest as LIBOR Loans as the same become due and payable, or (b) if a
Default or Event of Default exists, immediately apply such proceeds to the payment of the
Obligations, including the Revolver Loans outstanding as LIBOR Loans (in which event
Borrowers shall also pay to Agent for the Pro Rata benefit of Lenders any amounts required
by Section 3.10 to be paid by reason of the prepayment of a LIBOR Loan prior to the last day
of the Interest Period applicable thereto).
5.2.2. Payment of Interest. Interest accrued on the Revolver Loans shall be due and payable on (i) the first day of
each month (for the immediately preceding month), computed through the last day of the preceding
month, with respect to any Revolver Loan (whether a Base Rate Loan or LIBOR Loan) and (ii) the last
day of the applicable Interest Period in the case of a LIBOR Loan. Accrued interest shall also be
paid by Borrowers on the Commitment Termination Date. With respect to any Base Rate Loan converted
into a LIBOR Loan pursuant to Section 3.1.2 on a day when interest would not otherwise have been
payable with respect to such Base Rate Loan, accrued interest to the date of such conversion on the
amount of such Base Rate Loan so converted shall be paid on the conversion date.
5.3. Payment of Other Obligations. The balance of the Obligations requiring the
payment of money, including LC Obligations and Extraordinary Expenses incurred by Agent or any
Lender, shall be repaid by Borrowers to Agent for allocation among Agent and Lenders as provided in
the Loan Documents, or, if no date of payment is otherwise specified in the Loan Documents, on
demand.
5.4. Marshaling; Payments Set Aside. None of Agent or Lenders shall be under any
obligation to marshal any assets in favor of Borrowers or any other Obligor or against or in
payment of any or all of the Obligations. To the extent that Borrowers make a payment to Agent or
Lenders or Agent or any Lender receives payment from the proceeds of any Collateral or exercises
its right of setoff, and such payment or the proceeds of such Collateral or setoff (or any part
thereof) are subsequently invalidated, declared to be fraudulent or preferential, set aside or
required to be repaid to a trustee, receiver or any other Person, then to the extent of any loss by
Agent or Lenders, the Obligations or part thereof originally intended to be satisfied, and all
Liens, rights and remedies therefor, shall be revived and continued in full force and effect as if
such payment or proceeds had not been made or received and any such enforcement or setoff had not
occurred. The provisions of the immediately preceding sentence of this Section 5.4 shall survive
any termination of the Commitments and Full Payment of the Obligations.
5.5. Allocation of Payments.
5.5.1. Allocation. At any time that an Event of Default exists or Agent receives a payment
or Collateral proceeds in an amount that is insufficient to pay all amounts then due and payable to
Agent and Lenders, all monies to be applied to the Obligations, whether such monies represent
voluntary or mandatory payments or prepayments by one or more Obligors or are received pursuant to
demand for payment or realized from any disposition of Collateral and irrespective of any
designation by
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Borrowers of the Obligations that are intended to be satisfied, shall be allocated
among Agent and such of the Lenders as are entitled thereto (and, with respect to monies allocated
to Lenders, on a Pro Rata basis unless otherwise provided herein): (i) first, to Agent to
pay the amount of Extraordinary Expenses that have not been reimbursed to Agent by Borrowers or
Lenders, together with interest accrued thereon at the rate applicable to Revolver Loans that are
Base Rate Loans, until Full Payment of all such Obligations; (ii) second, to Agent to pay
principal and accrued interest on any portion of the Revolver Loans (including Protective Advances)
which Agent may have advanced on behalf of any Lender and for which Agent has not been reimbursed
by such Lender or Borrowers, until Full Payment of all such Obligations; (iii) third, to
BofA to pay the principal and accrued interest on any portion of the Swingline Loans outstanding,
to be shared with Lenders that have acquired and paid for a participating interest in such
Swingline Loans, until Full Payment of all such Obligations; (iv) fourth, to the extent
that Issuing Bank has not received from any Participating Lender a payment as required by Section
2.3.2, to Issuing Bank to pay all such required payments from each Participating
Lender, until Full Payment of all such Obligations; (v) fifth, to Agent to pay any Claims
that have not been paid pursuant to any indemnity of Agent Indemnitees by any Obligor, or to pay
amounts owing by Lenders to Agent Indemnitees pursuant to Section 13.6, in each case together with
interest accrued thereon at the rate applicable to Revolver Loans that are Base Rate Loans, until
Full Payment of all such Obligations; (vi) sixth, to Agent to pay any fees due and payable
to Agent, until Full Payment of all such Obligations; (vii) seventh, to each Lender,
ratably, for any Claims that such Lender has paid to Agent Indemnitees pursuant to its indemnity of
Agent Indemnitees and any Extraordinary Expenses that such Lender has reimbursed to Agent or such
Lender has incurred, to the extent that such Lender has not been reimbursed by Obligors therefor,
until Full Payment of all such Obligations; (viii) eighth, to Issuing Bank to pay principal
and interest with respect to LC Obligations (or to the extent any of the LC Obligations are
contingent and an Event of Default then exists, deposited in the Cash Collateral Account to Cash
Collateralize the LC Obligations), which payment shall be shared with the Participating Lenders in
accordance with Section 2.3.2(iii), until Full Payment of all such Obligations; (ix) ninth,
to Lenders in payment of the unpaid principal and accrued interest in respect of the Loans and
other Obligations (excluding Banking Relationship Debt) then outstanding, in such order of
application as shall be designated by Agent (acting at the direction or with the consent of the
Required Lenders), until Full Payment of all such Obligations; and (x) tenth, to Lenders or
any Affiliate of any Lender in payment of any Banking Relationship Debt owed to such Person and
secured by the Collateral hereunder, until Full Payment of all such Obligations; provided,
that, (a) if any Lender (or its Affiliates) other than BofA (or its Affiliates) provides any Bank
Products to any Bank Products Obligor, such Lender shall report to Agent the current Banking
Relationship Debt of the Bank Products Obligors to such Lender and its Affiliates under Bank
Products and any increase in such Banking Relationship Debt since the last report (collectively,
the “Reported Obligations”) no less frequently than monthly and whenever requested by Agent, and
(b) if there is any Banking Relationship Debt or increase in the Banking Relationship Debt of the
Bank Products Obligors to such Lender and its Affiliates under such Bank Products and such Lender
fails
to report such Banking Relationship Debt or increased Banking Relationship Debt to Agent on a
timely basis as required in clause (a) above, then, notwithstanding anything to the
contrary in this Agreement or any other Loan Document, the payment of such Banking Relationship
Debt or increased Banking Relationship Debt shall not constitute an Obligation and shall not be
secured by any of Agent’s Liens in the Collateral. The allocations set forth in this Section 5.5
are solely to determine the rights and priorities of Agent and Lenders as among themselves and may
be changed by Agent and Lenders without notice to or the consent or approval of any Borrower or any
other Person. Any amounts remaining after the foregoing allocations shall be distributed to
Borrower Representative, for the benefit of Borrowers, or as otherwise required by Applicable Law.
5.5.2. Erroneous Allocation. Agent shall not be liable for any allocation or
distribution of payments made by it in good faith and, if any such allocation or distribution is
subsequently determined to have been made in error, the sole recourse of any Lender to which
payment was due but not made shall be to recover from the other Lenders any payment in excess of
the amount to
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which such other Lenders are determined to be entitled (and such other Lenders hereby
agree to return to such Lender any such erroneous payments received by them).
5.6. Application of Payments and Collateral Proceeds. Each Borrower irrevocably
waives the right to direct the application of any and all payments and Collateral proceeds at any
time or times hereafter received by Agent or any Lender from or on behalf of Borrowers, and each
Borrower does hereby irrevocably agree that Agent shall have the continuing exclusive right to
apply and reapply any and all such payments and Collateral proceeds received at any time or times
hereafter by Agent or its agent against the Obligations, in such manner as Agent may deem
advisable, notwithstanding any entry by Agent upon any of its books and records;
provided, however, that any payments or proceeds of Collateral received by Agent on
any date that an Event of Default does not exist shall be applied in accordance with any provisions
of this Agreement that govern the application of such payment or proceeds. If, as the result of
Agent’s collection of proceeds of Accounts and other Collateral as authorized by Section 8.2.6 a
credit balance exists, such credit balance shall not accrue interest in favor of Borrowers, but
shall be available to Borrowers at any time or times for so long as no Default or Event of Default
exists. Agent may apply such credit balance against any of the Obligations upon and after the
occurrence of an Event of Default and, to the extent so applied, such credit balance shall be
applied in the manner specified in Section 5.5.1.
5.7. Loan Accounts; the Register; Account Stated.
5.7.1. Loan Accounts. Each Lender shall maintain in accordance with its usual and
customary practices an account or accounts (a “Loan Account”) evidencing the Debt of Borrowers to
such Lender resulting from each Loan owing to such Lender from time to time, including the amount
of principal and interest payable to such Lender from time to time hereunder, provided that
separate Loan Accounts shall be maintained for Xxxxxxx Sealing and for the Excess Collateral
Providers. Any failure of a Lender to record in the Loan Account, or any error in doing so, shall
not limit or otherwise affect the obligation of Borrowers hereunder to pay any amount owing
hereunder to such Lender.
5.7.2. The Register. Agent shall maintain a register (the “Register”), which shall
include a master account and a subsidiary account for each Lender and in which accounts (taken
together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the Type of
each Loan comprising such Borrowing and any Interest Period applicable thereto, (ii) the effective
date and amount of each Assignment and Acceptance delivered to and accepted by it and the parties
thereto, (iii) the amount of any principal or interest due and payable or to become due and payable
from Borrowers to each Lender hereunder, and (iv) the amount of any sum received by Agent from
Borrowers or any other Obligor and each Lender’s Pro Rata share thereof. The Register shall be
available for inspection by Borrowers or any Lender at the offices of Agent at any reasonable time
and from time to time upon reasonable prior notice. Any failure of Agent to record in the
Register, or any error in doing so, shall not limit or otherwise affect the obligation of Borrowers
hereunder to pay any amount owing with respect to the Loans or provide the basis for any claim
against Agent. The Register shall maintain separate accounts for the Loans and Obligations of
Xxxxxxx Sealing and the Loans and Obligations of the Excess Collateral Providers.
5.7.3. Entries Binding. The entries made in the Register and each Loan Account shall
constitute rebuttably presumptive evidence of the information contained therein; provided, however,
that if a copy of information contained in the Register or any Loan Account is provided to any
Person, or any Person inspects the Register or any Loan Account, at any time or from time to time,
then the information contained in the Register or the Loan Account, as applicable, shall be
conclusive and binding on such Person for all purposes absent manifest error, unless such Person
notifies Agent in writing within 30 days
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after such Person’s receipt of such copy or such Person’s
inspection of the Register or Loan Account of its intention to dispute the information contained
therein.
5.8. Gross Up for Taxes. If Borrowers shall be required by Applicable Law to withhold or deduct any Indemnified
Taxes from or in respect of any sum payable under this Agreement or any of the other Loan
Documents, (a) the sum payable to Agent or such Lender shall be increased as may be necessary so
that, after making all required withholding or deductions, Agent or such Lender (as the case may
be) receives an amount equal to the sum it would have received had no such withholding or
deductions been made, (b) Borrowers shall make such withholding or deductions, and (c) Borrowers
shall pay the full amount withheld or deducted to the relevant taxation authority or other
authority in accordance with Applicable Law. If Agent or any Lender determines that it has
received a refund, credit, or other reduction of taxes in respect of any Taxes paid by Borrowers
pursuant to this Section 5.8, such Person shall, within 30 days from the date of actual receipt of
such refund or the filing of the tax return in which such credit or other reduction results in a
lower tax payment, pay over such refund or the amount of such tax reduction to Borrowers (but only
to the extent of Taxes paid by Borrowers pursuant to this Section 5.8), net of all out-of-pocket
expenses of such Person, and without interest (other than interest paid by the relevant
Governmental Authority with respect to such refund).
5.9. Withholding Tax Exemption. At least 5 Business Days prior to the first date on
which interest or fees are payable hereunder for the account of any Foreign Lender, such Foreign
Lender agrees that it will deliver to Borrowers and Agent 2 duly completed copies of United States
Internal Revenue Service Form W-8BEN or W-8ECI (or any subsequent replacement substitute or form
therefor), certifying in either case that such Lender is entitled to receive payment under this
Agreement without deduction or withholding of any United States federal income taxes. Each Foreign
Lender which so delivers a Form W-8BEN or W-8ECI further undertakes to deliver to Borrowers and
Agent 2 additional copies of such form (or a successor form) on or before the date that such form
expires (currently, 3 successive calendar years for Form W-8BEN and 1 calendar year for Form
W-8ECI) or becomes obsolete or after the occurrence of any event requiring a change in the most
recent form so delivered by it, and such amendments thereto or extensions or renewals thereof as
may be reasonably requested by Borrowers or Agent, in each case, certifying that such Foreign
Lender is entitled to receive payments under this Agreement without deduction or withholding of any
United States federal income taxes, unless an event (including any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would otherwise be required
that renders all such forms inapplicable or that would prevent such Foreign Lender from duly
completing and delivering any such form with respect to it and such Lender advises Borrowers and
Agent that it is not capable of receiving payments without any deduction or withholding of United
States federal income taxes.
5.10. Nature and Extent of Each Borrower’s Liability.
5.10.1. Joint and Several Liability. Each Borrower shall be liable for, on a joint
and several basis, and hereby guarantees the timely payment by all other Borrowers, Obligors and
Bank Product Obligors of, all of the Loans and other Obligations, regardless of which Borrower,
Obligor or Bank Product Obligor actually may have received the proceeds of any Loans or other
extensions of credit hereunder (or the direct benefit of any Bank Products) or the amount of such
Loans received or the manner in which Agent or any Lender accounts for such Loans or other
extensions of credit or Bank Products on its books and records, it being acknowledged and agreed
that Loans to any Borrower and any other extensions of credit hereunder and Bank Products inure to
the mutual benefit of all Borrowers and that Agent and Lenders are relying on the joint and several
liability of Borrowers in extending the Loans and other financial accommodations hereunder and in
making Bank Products available to Bank Products Obligors. Each Borrower hereby unconditionally and
irrevocably agrees that upon default in the payment when due (whether at stated
maturity, by acceleration or otherwise) of any principal of, or interest owed
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on, any of the
Loans or other Obligations, such Borrower shall forthwith pay the same, without notice or demand.
5.10.2. Unconditional Nature of Liability. Each Borrower’s joint and several
liability hereunder with respect to, and guaranty of, the Loans and other Obligations shall, to
the fullest extent permitted by Applicable Law, be unconditional irrespective of (i) the validity,
enforceability, avoidance or subordination of any of the Obligations or of any promissory note or
other document evidencing all or any part of the Obligations, (ii) the absence of any attempt to
collect any of the Obligations from any other Obligor (or Bank Products Obligor) or any Collateral,
or the absence of any other action to enforce the same, (iii) the waiver, consent, extension,
forbearance or granting of any indulgence by Agent or any Lender with respect to any provision of
any instrument evidencing or securing the payment of any of the Obligations, or any other agreement
now or hereafter executed by any other Obligor (or Bank Products Obligor) and delivered to Agent or
any Lender, (iv) the failure by Agent to take any steps to perfect or maintain the perfected status
of its security interest in or Lien upon, or to preserve its rights to, any of the Collateral or
other security for the payment or performance of any of the Obligations or Agent’s release of any
Collateral or of its Liens upon any Collateral, (v) Agent’s or Lenders’ election, in any proceeding
instituted under the Bankruptcy Code, for the application of Section 1111(b)(2) of the Bankruptcy
Code, (vi) any borrowing or grant of a security interest by any other Obligor (or Bank Products
Obligor), as debtor-in-possession under Section 364 of the Bankruptcy Code, (vii) the release or
compromise, in whole or in part, of the liability of any Obligor (or Bank Products Obligor) for the
payment of any of the Obligations, (viii) any amendment or modification of any of the Loan
Documents or any waiver of a Default or Event of Default, (ix) any increase in the amount of the
Obligations beyond any limits imposed herein or in the amount of any interest, fees or other
charges payable in connection therewith, or any decrease in the same, (x) the disallowance of all
or any portion of Agent’s or any Lender’s claims against any other Obligor (or Bank Products
Obligor) for the repayment of any of the Obligations under Section 502 of the Bankruptcy Code, (xi)
any change in the corporate existence or structure of any other Obligor; (xii) any law or
regulation of any jurisdiction or any event affecting any term of any Obligation; or (xiii) any
other circumstance that might constitute a legal or equitable discharge or defense of any Obligor
(or Bank Products Obligor); provided, however, nothing contained in the foregoing shall limit any
Obligor’s right to institute an action for any alleged breach by Agent or any Lender of any
obligations hereunder. Under no circumstances shall Borrowers be construed to have waived defenses
based upon Full Payment with respect to any Obligation, willful misconduct or gross negligence.
After the occurrence and during the continuance of any Event of Default, Agent may proceed directly
and at once, without notice to any Obligor, against any or all of Obligors (or Bank Products
Obligor) to collect and recover all or any part of the Obligations, without first proceeding
against any other Obligor (or Bank Products Obligor) or against any Collateral or other security
for the payment or performance of any of the Obligations, and each Borrower waives any provision
under Applicable Law that might otherwise require Agent to pursue or exhaust its remedies against
any Collateral or Obligor (or Bank Products Obligor) before pursuing another Obligor (or Bank
Products Obligor). Each Borrower consents and agrees that Agent shall be under no obligation to
marshal any assets in favor of any Obligor (or Bank Pro
ducts Obligor) or against or in payment of
any or all of the Obligations.
5.10.3. No Reduction in Liability for Obligations. No payment or payments made by an
Obligor (or Bank Products Obligor) or received or collected by Agent from a 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 any Borrower under this Agreement
(except to the extent so reduced or paid), each of whom shall remain jointly and
severally liable for the payment and performance of all Loans and other Obligations until Full
Payment of the Obligations.
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5.10.4. Contribution. Each Borrower is unconditionally obligated to repay the
Obligations as a joint and several obligor under this Agreement. If, as of any date, the aggregate
amount of payments made by a Borrower on account of the Obligations and proceeds of such Borrower’s
Collateral that are applied to the Obligations exceeds the aggregate amount of Loan proceeds
actually used by such Borrower in its business (such excess amount being referred to as an
“Accommodation Payment”), then each of the other Borrowers (each such Borrower being referred to as
a “Contributing Borrower”) shall be obligated to make contribution to such Borrower (the “Paying
Borrower”) in an amount equal to (A) the product derived by multiplying the sum of each
Accommodation Payment of each Borrower by the Allocable Percentage of the Borrower from whom
contribution is sought less (B) the amount, if any, of the then outstanding Accommodation
Payment of such Contributing Borrower (such last mentioned amount which is to be subtracted from
the aforesaid product to be increased by any amounts theretofore paid by such Contributing Borrower
by way of contribution hereunder, and to be decreased by any amounts theretofore received by such
Contributing Borrower by way of contribution hereunder); provided, however, that a
Paying Borrower’s recovery of contribution hereunder from the other Borrowers shall be limited to
that amount paid by the Paying Borrower in excess of its Allocable Percentage of all Accommodation
Payments then outstanding of all Borrowers. As used herein, the term “Allocable Percentage” shall
mean, on any date of determination thereof, a fraction the denominator of which shall be equal to
the number of Borrowers who are parties to this Agreement on such date and the numerator of which
shall be 1; provided, however, that such percentages shall be modified in the event
that contribution from a Borrower is not possible by reason of insolvency, bankruptcy or otherwise
by reducing such Borrower’s Allocable Percentage equitably and by adjusting the Allocable
Percentage of the other Borrowers proportionately so that the Allocable Percentages of all
Borrowers at all times equals 100%.
5.10.5. Subordination. Each Borrower hereby subordinates any claims, including any
right of payment, subrogation, contribution and indemnity, that it may have from or against any
other Obligor (or Bank Products Obligor), and any successor or assign of any other Obligor (or Bank
Products Obligor), including any trustee, receiver or debtor-in-possession, howsoever arising, due
or owing or whether heretofore, now or hereafter existing, to the Full Payment of all of the
Obligations.
SECTION 6. TERM AND TERMINATION OF COMMITMENTS
6.1. Term of Commitments. Subject to each Lender’s right in accordance with the terms
of this Agreement to cease making Loans and other extensions of credit to Borrowers when any
Default or Event of Default exists or upon termination of the Commitments as provided in Section
6.2, the Commitments shall be in effect for a period (the “Term”) commencing on the date hereof and
continuing until the close of business on April 21, 2011, unless sooner terminated as provided in
Section 6.2.
6.2. Termination.
6.2.1. Termination by Agent or Required Lenders. Agent may (and upon the direction of the Required Lenders, shall) terminate the Commitments
without notice at any time that an Event of Default exists; provided, however, that
the Commitments shall automatically terminate as provided in Section 12.2.
6.2.2. Termination by Borrowers. At any time and from time to time after the date
hereof, upon not less than ten (10) Business Days’ prior written notice to Agent from Borrower
Representative, the Borrowers may terminate in whole or reduce in part the aggregate Commitments;
provided that (i) no such termination by Borrowers shall be effective until Full Payment of the
Obligations, (ii) any such partial reduction shall be in an aggregate amount of not less than
$5,000,000 or, if greater, an integral multiple of $500,000 in excess thereof, and (iii) no such
partial reduction shall
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reduce the aggregate Commitments to less than $50,000,000. The amount of
any termination or reduction made under this Section 6.2.2 may not thereafter be reinstated, and
any notice of termination given by Borrowers shall be irrevocable unless Agent receives notice of
the revocation thereof at least 3 Business Days prior to the proposed termination date. Each
reduction of the Commitments pursuant to this Section 6.2.2 shall be applied ratably among the
Lenders according to their respective Revolver Commitments. If on the effective date of any
reduction in the Commitments, and after giving effect thereto, an Out-of-Formula Condition exists,
the provisions of Section 5.2.1(iii) hereof shall apply, except that such repayment shall be due
immediately upon such effective date without further notice to or demand upon Borrowers.
6.2.3. Effect of Termination. On the effective date of termination of all of the
Commitments by Agent or by Borrowers, all of the Obligations shall be immediately due and payable,
Lenders shall have no obligation to make any Loans, Issuing Bank shall have no obligation to issue
any Letters of Credit, and each Lender and its Affiliates may terminate any Bank Products
(including any services or products under Cash Management Agreements). All undertakings,
agreements, covenants, warranties and representations of Borrowers contained in the Loan Documents
shall survive any such termination and Agent shall retain its Liens in the Collateral and all of
its rights and remedies under the Loan Documents notwithstanding such termination, in each case,
until Full Payment of the Obligations. Notwithstanding the Full Payment of the Obligations, Agent
shall not be required to terminate its Liens in any of the Collateral unless, with respect to any
loss or damage Agent may incur as a result of the dishonor or return of any Payment Items applied
to the Obligations, Agent shall have received either (i) a written agreement, executed by Borrowers
and any Person deemed financially responsible by Agent whose loans or other advances to Borrowers
are used in whole or in part to satisfy the Obligations, indemnifying Agent and Lenders from any
such loss or damage; or (ii) such monetary reserves and Liens on the Collateral for such period of
time as Agent, in its reasonable discretion, may deem necessary to protect Agent from any such loss
or damage. The provisions of Sections 3.4, 3.7, 3.8, 3.10, 5.4 and 5.8 and this Section 6.2.3 and
all obligations of Borrowers to indemnify Agent or any Lender pursuant to this Agreement or any of
the other Loan Documents, shall in all events survive any termination of the Commitments and Full
Payment of the Obligations.
SECTION 7. COLLATERAL
7.1. Grant of Security Interest. To secure the prompt payment and performance of all
of the Obligations, each Obligor hereby grants to Agent, for the benefit of Secured Parties, a
continuing security interest in and Lien upon all of the following Property and interests in
Property of such Obligor, whether now owned or existing or
hereafter created, acquired or arising and wheresoever located, but excluding all Fixed Assets
and all Software and Intellectual Property embedded in Fixed Assets:
(i) all Accounts;
(ii) all Supporting Obligations
(iii) all Goods, including all Inventory, but excluding all Equipment;
(iv) all Instruments;
(v) all Chattel Paper, including Electronic Chattel Paper;
(vi) all Documents;
(vii) all General Intangibles, including Payment Intangibles, Software and Intellectual
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Property, excluding, however, rights under (but not proceeds of) any lease, contract or
agreement (including, without limitation, any license), that contains an enforceable
restriction on such Obligor’s right to grant a security interest to Agent, unless and until
such Obligor shall have obtained consent from the relevant party or parties thereto to the
grant of the security interest;
(viii) all Deposit Accounts;
(ix) all Investment Property (but excluding any portion thereof that constitutes Margin
Stock unless otherwise expressly provided in any Security Documents);
(x) all Letter-of-Credit Rights;
(xi) all Insurance Receivables Rights;
(xii) all monies now or at any time or times hereafter in the possession or under the
control of Agent or a Lender or a bailee or Affiliate of Agent or a Lender, including any
Cash Collateral in the Cash Collateral Account, but excluding, to the extent the Lien
therein constitutes a Permitted Lien under Section 10.2.5(viii), cash collateral posted in
favor of any surety or bonding company in connection with any appeal bond issued by such
surety or bonding company;
(xiii) all accessions to, substitutions for and all replacements, products and cash and
non-cash proceeds of (i) through (xi) above, including proceeds of and unearned premiums
with respect to insurance policies insuring any of the Collateral and claims against any
Person for loss of, damage to or destruction of any of the Collateral; and
(xiv) all books and records (including customer lists, files, correspondence, tapes,
computer programs, print-outs, and other computer materials and records) of such Obligor
pertaining to any of (i) through (xiii) above.
7.2. Lien on Deposit Accounts. As additional security for the payment and performance
of the Obligations, each Obligor hereby grants to Agent, for the benefit of Secured Parties, a
continuing security interest in and Lien upon all of such Obligor’s right, title and interest in
and to each Deposit Account of such Obligor and in and to any deposits or other sums at any time
credited to each such Deposit Account, including any sums in any blocked account or any special
lockbox account and in the accounts in which sums are deposited, but
excluding (i) Deposit Accounts solely holding cash collateral permitted as a Lien under
Section 10.2.5(viii), (ii) Deposit Accounts exclusively used for worker’s compensation programs,
payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of such
Obligor’s employees, and (iii) other Deposit Accounts containing from time to time no more than
$100,000. In connection with the foregoing, each Obligor hereby authorizes and directs each such
bank or other depository to pay or deliver to Agent upon its written demand therefor made at any
time that an Event of Default exists and without further notice to such Obligor (such notice being
hereby expressly waived), all balances in each Deposit Account maintained by such Obligor with such
depository for application to the Obligations then outstanding, and the rights given Agent in this
Section shall be cumulative with and in addition to Agent’s other rights and remedies in regard to
the foregoing Property as proceeds of Collateral. Each Obligor hereby irrevocably appoints Agent
as such Obligor’s attorney-in-fact at any time that an Event of Default exists to collect any and
all such balances to the extent any such payment is not made to Agent by such bank or other
depository after demand thereon is made by Agent pursuant hereto.
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7.3. Other Collateral.
7.3.1. Cash Collateral. In addition to the items of Property referred to in Section
7.1 above, the Obligations shall also be secured by the Cash Collateral to the extent provided
herein and all of the other items of Property from time to time described in any of the Security
Documents as security for any of the Obligations.
7.3.2. Commercial Tort Claims. Obligors shall promptly notify Agent in writing upon
any Obligor’s obtaining a Commercial Tort Claim (other than, for so long as no Default or Event of
Default exists, a Commercial Tort Claim that is less than $1,000,000) after the Closing Date
against any Person and, upon Agent’s written request, promptly execute such instruments or
agreements and do such other acts or things reasonably deemed appropriate by Agent to confer upon
Agent (for the benefit of Secured Parties) a security interest in each such Commercial Tort Claim.
7.3.3. Certain After-Acquired Collateral. Obligors shall promptly notify Agent in
writing upon any Obligor’s obtaining any Collateral after the Closing Date consisting of Deposit
Accounts (but excluding (i) Deposit Accounts solely holding cash collateral permitted as a Lien
under Section 10.2.5(viii), (ii) Deposit Accounts exclusively used for worker’s compensation
programs, payroll, payroll taxes and other employee wage and benefit payments to or for the benefit
of such Obligor’s employees, and (iii) other Deposit Accounts containing from time to time no more
than $100,000), Investment Property, Letter-of-Credit Rights or Chattel Paper and, upon Agent’s
request, shall promptly execute such documents and do such other acts or things (including using
use commercially reasonable efforts to cause other Persons to do such other acts or things) deemed
appropriate by Agent to confer upon Agent a duly perfected first priority Lien upon and (to the
extent applicable for the perfection of a Lien) control with respect to such Collateral; promptly
notify Agent in writing upon any Obligor’s obtaining any Collateral after the Closing Date
consisting of Documents or Instruments and, upon Agent’s request, shall promptly execute such
documents and do such other acts or things deemed appropriate by Agent to deliver to it possession
of such Documents as are negotiable and such Instruments, and, with respect to non-negotiable
Documents, to have such non-negotiable Documents issued in the name of Agent; and with respect to
Collateral in the possession of a
third party, other than certificated securities and Goods covered by a Document, such Obligor,
upon the request of Agent, shall use commercially reasonable efforts to obtain an acknowledgment
from the third party that is in possession of such Collateral that such third party holds the
Collateral for the benefit of Agent.
7.4. No Assumption of Liability. The security interest granted pursuant to this
Agreement is granted as security only and shall not subject Agent or any Lender to, or in any way
alter or modify, any obligation or liability of Obligors with respect to or arising out of the
Collateral.
7.5. Lien Perfection; Further Assurances. Promptly after Agent’s request therefor,
Obligors shall execute or cause to be executed and deliver to Agent such instruments, assignments,
title certificates or other documents as are necessary under the UCC or other Applicable Law to
perfect (or continue the perfection of) Agent’s Lien upon the Collateral and shall take such other
action as reasonably may be requested by Agent to give effect to or carry out the intent and
purposes of this Agreement; provided, that, notwithstanding anything to the contrary set forth in
this Agreement, unless an Event of Default exists Obligors shall not be required to provide any
notice to, or obtain the acknowledgment of, any insurer under an Asbestos Insurance Policy with
respect to Agent’s Lien in the Insurance Receivables Rights. Unless prohibited by Applicable Law,
each Obligor hereby irrevocably authorizes Agent to execute and file in any jurisdiction any
financing statement or amendment thereto on such Obligor’s behalf, including financing statements
that indicate the Collateral with equal or lesser detail than as set forth in this Section 7. Each
Obligor also hereby ratifies its authorization for Agent to have filed in any jurisdiction any like
financing statement or amendment thereto if filed prior to the date hereof. The
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parties agree that
a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing
statement and may be filed in any appropriate office in lieu thereof.
7.6. Foreign Subsidiary Stock. Notwithstanding anything to the contrary set forth in
Section 7.1 above, the types or items of Collateral described in such Section shall include only
sixty-five percent (65%) of the Equity Interests of any direct Foreign Subsidiary of Parent, a
Borrower or a Domestic Subsidiary and no other Equity Interests of any Foreign Subsidiary.
SECTION 8. COLLATERAL ADMINISTRATION
8.1. General Provisions.
8.1.1. Location of Collateral. All tangible items of Collateral, other than Inventory
in transit, shall at all times be kept by Obligors at one or more of the business locations of
Obligors set forth in Schedule 8.1.1 hereto and shall not be moved therefrom, without the prior
written approval of Agent, except that in the absence of an Event of Default and acceleration of
the maturity of the Obligations in consequence thereof, Obligors may (i) make sales or other
dispositions of any Collateral to the extent not prohibited by Section 10.2.9 and (ii) move
Inventory or any record relating to any Collateral to a location in the United States other than
those shown on Schedule 8.1.1 hereto so long as Obligors give Agent notice of such new location in
the next Compliance Certificate required to be delivered to Agent pursuant to Section 10.1.3;
provided, that Obligors shall not be required to provide such notice to Agent with respect to any
new location so
long as the Value of Inventory at such location does not at any time exceed $100,000 and the
aggregate Value of Inventory at all such locations does not at any time exceed $500,000. Following
the movement of any Inventory to such new location, Obligors shall cooperate with Agent in
connection with the filing of any UCC-1 financing statements and the delivery any other appropriate
documentation (excluding Lien Waivers to the extent not required by the following sentence)
necessary to perfect or continue the perfection of Agent’s first priority Liens with respect to
such Inventory. Notwithstanding anything to the contrary contained in this Agreement, Obligors
shall not be permitted to keep, store or otherwise maintain any Inventory at any location
(including any location described in Schedule 8.1.1), unless (i) an Obligor is the owner of such
location, (ii) an Obligor leases such location and either the landlord has executed in favor of
Agent a Lien Waiver, if Agent requires, or a Rent Reserve has been established with respect to such
location, (iii) the Collateral consists of Inventory placed with a warehouseman, bailee or
processor, and either (A) Agent has received from such warehouseman, bailee or processor an
acceptable Lien Waiver and an appropriate UCC-1 financing statement has been filed with the
appropriate Governmental Authority in the jurisdiction where such warehouseman, bailee or processor
is located in order to perfect, or to maintain the uninterrupted perfection of, Agent’s security
interest in such Inventory or (B) if Agent requires, a Rent Reserve has been established with
respect to such location, or (iv) in the case of any location that does not satisfy the
requirements of any of the foregoing clauses (i), (ii) or (iii), the Value
of Inventory at such location does not at any time exceed $100,000 and the aggregate Value of
Inventory at all such locations under this clause (iv) does not at any time exceed
$500,000.
8.1.2. Insurance of Collateral; Condemnation Proceeds.
(i) Each Obligor shall pay for and maintain, with financially sound and reputable
insurers having a rating of at least B+ VII or better by Best’s Ratings, a publication of
A.M. Best Company (or, in the case of aircraft liability insurance, with its current
insurers or with other insurers reasonably acceptable to Agent), insurance upon all
Collateral, wherever located, covering casualty, hazard, public liability, theft, malicious
mischief, and such other risks and in such amounts as are reasonably satisfactory to Agent.
Schedule 8.1.2 describes all insurance of Obligors in effect on the date hereof and Agent
confirms that the level of insurance set forth on
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Schedule 8.1.2 is reasonably satisfactory
to it based on the circumstances as of the date hereof. All proceeds payable under each
such policy, to the extent relating to tangible Collateral or business interruption
insurance, shall be payable to Agent for application to the Obligations. Obligors shall
deliver insurance certificates (and, following Agent’s request, certified copies of
policies) for such policies relating to tangible Collateral or business interruption
insurance to Agent with lender’s loss payable endorsements reasonably satisfactory to Agent
naming Agent as sole loss payee, assignee or additional insured, as appropriate. Each
policy of insurance or insurance certificate or endorsement relating to tangible Collateral
or business interruption insurance shall contain a clause requiring the insurer to give not
less than 30 days prior written notice to Agent in the event of cancellation of the policy
for any reason whatsoever and a clause specifying that the interest of Agent shall not be
impaired or invalidated by any act or neglect of any Obligor or the owner of the Property or
by the occupation of the premises for purposes more hazardous than are permitted by said
policy. If any Obligor fails to provide and pay for such insurance, Agent may, at its
option, but shall not be required to, procure the same and charge Obligors therefor. Each
Obligor agrees to deliver to Agent, upon written request, true copies of all reports made in
any reporting forms to property insurance companies. For so long as no Event of Default
exists, each Obligor shall have the right to settle, adjust and compromise any claim with
respect to any insurance maintained by such Obligor with respect to the Collateral provided
that all proceeds thereof are applied in the manner specified in this Agreement. At any
time that an Event of Default exists, Agent alone shall be authorized to settle, adjust and
compromise such property insurance claims, and Agent shall have all rights and remedies with
respect to such policies of property insurance as are provided for in this Agreement and the
other Loan
Documents.
(ii) Any proceeds of insurance referred to in this Section 8.1.2 (other than proceeds
from any workers’ compensation or D&O insurance or Asbestos Insurance Policies), to the
extent relating to Collateral, and any condemnation awards that are paid to Agent in
connection with a condemnation of any of the Collateral shall be paid to Agent and applied
first to the payment of the Revolver Loans and then to any other Obligations outstanding;
provided, however, that if an Event of Default exists on the date of Agent’s
receipt thereof, Agent shall apply such proceeds to the Obligations in the order of
application provided in Section 5.5.1. Proceeds from any policy of business interruption
insurance may be used by Obligors in the Ordinary Course of Business, provided that at the
time of such use no Default or Event of Default exists and the insured loss has not resulted
in (and would not reasonably be expected to result in) any Material Adverse Effect, but
otherwise may be applied by Agent to the payment of the Obligations in such order of
application as Agent may elect in its discretion (subject to the provisions of Section
5.5.1).
(iii) Any proceeds of insurance and condemnation proceeds related to Fixed Assets may
be used by Borrowers for such purposes as Borrowers shall determine and are permitted under
this Agreement, and such insurance proceeds may be pledged by Borrowers as part of any Fixed
Asset Lien permitted hereunder.
8.1.3. Protection of Collateral. All expenses of protecting, storing, warehousing,
insuring, handling, maintaining and shipping any Collateral, all Taxes imposed under any Applicable
Law on any of the Collateral or in respect of the sale thereof, and all other payments required to
be made by Agent to any Person to realize upon any Collateral shall be borne and paid by Obligors.
Agent shall not be liable or responsible in any way for the safekeeping of any of the Collateral or
for any loss or damage thereto or for any diminution in the value thereof (except for reasonable
care in the custody thereof while any Collateral is in Agent’s actual possession), or for any act
or default of any warehouseman, carrier, forwarding agency, or other Person whomsoever, but the
same shall be at Obligors’ sole risk.
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8.1.4. Defense of Title to Collateral. Each Obligor shall at all times defend such
Obligors’ title to the Collateral and Agent’s Liens therein against all Persons and all claims and
demands whatsoever other than Permitted Liens.
8.2. Administration of Accounts.
8.2.1. Records and Schedules of Accounts. Each Borrower shall keep accurate and
complete records of its Accounts and all payments and collections thereon and shall submit to Agent
on such periodic basis as Agent shall reasonably request a sales and collections report for the
preceding period, in form reasonably satisfactory to Agent. Each Borrower shall also provide to
Agent on or before the 20th day of each month, a detailed aged trial balance of all Accounts
existing as of the last day of the preceding month, specifying the names, face value and aging
classification of each Account (“Schedule of Accounts”), and, upon Agent’s request therefor, each
Account Debtor’s address and the invoice and due dates for each Account, copies of proof of
delivery and a copy of all documents, including repayment histories and present status reports
relating to the Accounts so scheduled and such other matters and information relating to the status
of then existing Accounts as Agent shall reasonably request. In addition, if Accounts in an
aggregate face amount in excess of $1,000,000 cease to be Eligible Accounts in whole or in part at
any time while there are any
Aggregate Revolver Outstandings hereunder, Borrowers shall notify Agent of such occurrence
promptly (and in any event within 2 Business Days) after any Senior Financial Officer having
obtained knowledge of such occurrence and the applicable Borrowing Base shall thereupon be adjusted
to reflect such occurrence. Each Borrower shall, upon Agent’s request, deliver to Agent copies of
invoices or invoice registers related to all of its Accounts.
8.2.2. Discounts, Disputes and Returns. If any Borrower grants any discounts (other
than discounts for prompt payment in the Ordinary Course of Business), allowances or credits that
are not shown on the face of the invoice for the Account involved, such Borrower shall report such
discounts (other than discounts for prompt payment in the Ordinary Course of Business), allowances
or credits, as the case may be, to Agent as part of the next required Schedule of Accounts. If any
amounts due and owing in excess of $1,000,000 are in dispute between any Borrower and any Account
Debtor, or if any returns are made in excess of $1,000,000 with respect to any Accounts owing from
an Account Debtor, in each case at any time while there are any Aggregate Revolver Outstandings
hereunder, such Borrower shall provide Agent with written notice thereof at the time of submission
of the next Schedule of Accounts, explaining in reasonable detail the reason for the dispute or
return, all claims related thereto and the amount in controversy.
8.2.3. Taxes. If an Account of any Borrower includes a charge for any Taxes payable
to any Governmental Authority, Agent is authorized, in its discretion, to pay the amount thereof to
the proper taxing authority for the account of such Borrower and to charge Borrowers therefor;
provided, however, that neither Agent nor Lenders shall be liable for any Taxes that may be due by
Borrowers.
8.2.4. Account Verification. Whether or not a Default or an Event of Default exists,
Agent shall have the right at any time, in the name of Agent, any designee of Agent or any Borrower
to verify the validity, amount or any other matter relating to any Accounts of such Borrower by
mail, telephone, telegraph or otherwise. So long as no Default or Event of Default exists,
verifications of Accounts shall be conducted at the sole cost and expense of Agent and the Lenders.
Borrowers shall cooperate fully with Agent in an effort to facilitate and promptly conclude any
such verification process.
8.2.5. Maintenance of Dominion Account. Each Borrower shall establish and maintain a
Dominion Account pursuant to a lockbox or other arrangement reasonably acceptable to Agent with
BofA or such other bank as may be selected by Borrowers and be reasonably acceptable to Agent.
Each Borrower shall issue to each such lockbox bank an irrevocable letter of instruction directing
such
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bank to deposit all payments or other remittances received in the lockbox to the applicable
Dominion Account. Each Borrower shall enter into agreements, in form satisfactory to Agent, with
each bank at which a Dominion Account is maintained by which such bank shall transfer to the
Payment Account all Payment Items and monies deposited to such Dominion Account not later than the
next Business Day following the Business Day on which each such deposit is made; provided, that,
Borrowers shall not be required to comply with this requirement with respect to account number
208973 maintained with Mercantile Bank (the “Mercantile Account”) unless the Mercantile Account
remains open after September 30, 2006. All balances in each Dominion Account shall be subject to
Agent’s Lien. Each Borrower shall obtain the agreement (in favor of and in form and content
reasonably satisfactory to Agent) by each bank at which a Dominion Account is maintained to waive
any offset rights against the funds deposited into such Dominion Account, except offset rights in
respect of charges incurred in the administration of such Dominion Account; provided, that,
Borrowers shall not be required to comply with this requirement with respect to the Mercantile
Account unless the Mercantile Account remains open after September 30, 2006. Neither Agent nor
Lenders assume any responsibility to Borrowers for such lockbox arrangement or Dominion Account by
virtue of this Agreement, including any claim of accord and satisfaction or release with respect to
deposits accepted by any bank thereunder.
8.2.6. Collection of Accounts and Proceeds of Collateral. To expedite collection of
Accounts, each Borrower shall endeavor to make collection of such Borrower’s Accounts for Agent and
Lenders and, in connection therewith, shall use commercially reasonable efforts to keep in full
force and effect any Supporting Obligation or collateral security relating to each such Account.
Each Borrower shall (i) request in writing and otherwise take such reasonable steps to ensure that
all Account Debtors forward payment directly to the applicable Dominion Account (or lockboxes
related to such Dominion Account), and (ii) deposit promptly, and in any event no later than the
first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar
items of payment relating to or constituting payments made in respect of any and all Collateral
(whether or not otherwise delivered to a lockbox) into such Dominion Account. All Payment Items
received by any Borrower in respect of its Accounts, together with the proceeds of any other
Collateral, shall be held by such Borrower as trustee of an express trust for Agent’s and Lenders’
benefit; each Borrower shall immediately deposit same in kind in the applicable Dominion Account;
and Agent may remit such proceeds to Lenders for application to the Obligations in the manner
authorized by this Agreement. Agent retains the right at all times that a Default or an Event of
Default exists to notify Account Debtors of any Borrower that Accounts have been assigned to Agent,
to collect Accounts directly in its own name (and, in connection therewith, to charge to Borrowers
the collection costs and expenses incurred by Agent, including reasonable out-of-pocket attorneys’
fees). At any time an Event of Default exists, Agent shall have the right to settle or adjust all
disputes and claims directly with the Account Debtor and to compromise the amount or extend the
time for payment of any Accounts upon such terms and conditions as Agent may deem advisable, and to
charge the deficiencies, costs and expenses thereof, including reasonable out-of-pocket attorneys’
fees, to Borrowers.
8.3. Administration of Inventory.
8.3.1. Records and Reports of Inventory. Each Borrower shall keep accurate and
complete records of its Inventory (including records showing the cost thereof and daily withdrawals
therefrom and additions thereto) and shall furnish Agent inventory reports respecting such
Inventory in form and detail reasonably satisfactory to Agent at such times as Agent may request,
but so long as no Default or Event of Default exists, no more frequently than once each month.
Each Borrower shall, at its own expense, conduct a physical inventory no less frequently than
annually (and on a more frequent basis if requested by Agent when an Event of Default exists) and
periodic cycle counts consistent with such Borrower’s historical practices and shall provide to
Agent a report based on each such physical inventory and cycle count promptly after completion
thereof, together with such supporting information as Agent
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shall reasonably request. Agent may
participate in and observe each physical count or inventory, which participation shall be at
Borrowers’ expense at any time that an Event of Default exists.
8.3.2. Returns of Inventory. No Borrower shall return any of its Inventory to a
supplier or vendor thereof, or any other Person, whether for cash, credit against future purchases
or then existing payables, or otherwise,
unless (i) such return is in the Ordinary Course of Business of such Borrower; (ii) no Default
or Event of Default exists or would result therefrom; (iii) the return of such Inventory will not
result in an Out-of-Formula Condition; (iv) if there are any Aggregate Revolver Outstandings
hereunder at such time, such Borrower promptly notifies Agent thereof if the aggregate Value of all
Inventory returned in any month exceeds $1,000,000; and (v) any payments received by such Borrower
in connection with any such return are promptly turned over to Agent for application to the
Obligations in accordance with the terms of this Agreement.
8.3.3. Acquisitions and Sale of Inventory. No Borrower shall acquire or accept any
Inventory on consignment or approval unless such Inventory is segregated from such Borrower’s other
owned Inventory and is marked in a manner designating the true owner thereof. Each Borrower will
use its best efforts to insure that all Inventory that is produced in the United States will be
produced in accordance with the FLSA. No Borrower shall sell any Eligible Inventory on a
consignment, sale and return, sale on approval or other similar basis.
8.3.4. Maintenance of Inventory. Borrowers shall produce, use, store and maintain all
Inventory with all reasonable care and caution in accordance, in all material respects, with
applicable standards of any insurance and in conformity, in all material respects, with Applicable
Law and will maintain current rent payments (within applicable grace periods provided for in
leases) at all locations at which any Inventory with a book value in excess of $500,000 is
maintained or stored.
8.4. Administration of Deposit Accounts.
Each Obligor represents that, as of the Closing Date, Schedule 8.4 (as the same may be amended
or supplemented from time to time) sets forth all of the Deposit Accounts maintained by each
Obligor, including Deposit Accounts into which all Payment Items relating to any Collateral will be
deposited; each Obligor is the sole account holder of each such Deposit Account and is not aware of
any Person (other than Agent) having either dominion or control (within the meaning of Section
9-104 of the UCC) over any such Deposit Account or any property deposited therein (other than any
such control that has been released or terminated on or before the Closing Date and control arising
by operation of law in favor the depository bank in which such Deposit Account is maintained); and
each Obligor has taken all actions required to establish Agent’s “control” (within the meaning of
Section 9-104 of the UCC) over all Deposit Accounts (other than (i) Deposit Accounts solely holding
cash collateral permitted as a Lien under Section 10.2.5(viii), (ii) Deposit Accounts exclusively
used for worker’s compensation programs, payroll, payroll taxes and other employee wage and benefit
payments to or for the benefit of such Obligor’s employees, and (iii) other Deposit Accounts
containing from time to time no more than $100,000). Each Obligor shall promptly notify Agent of
any additional Deposit Account opened and any Deposit Account that is closed.
8.5. Borrowing Base Certificates. At any time that (i) Aggregate Availability is
greater than $20,000,000, Borrowers shall deliver to Agent and each Lender a Borrowing Base
Certificate on or before the fifteenth (15th) day of each calendar month, prepared as of the close
of business on the last Business Day of the previous calendar month, or (ii) Aggregate Availability
is equal to or less than $20,000,000, Borrowers shall deliver to Agent and each Lender a Borrowing
Base Certificate on or before the fourth (4th) Business Day of each
week, prepared as of the close of business on the last Business Day of the previous week. All
calculations of Availability and Aggregate Availability in connection with any
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Borrowing Base
Certificate shall originally be made by Borrowers and certified by a Senior Officer to Agent,
provided that Agent shall have the right to review and adjust, in the exercise of its Credit
Judgment, any such calculation (i) to reflect its reasonable estimate of declines in value of any
of the Collateral described therein and (ii) to the extent that such calculation is not in
accordance with this Agreement or does not accurately reflect the amount of the Availability
Reserve. In no event shall the Borrowing Base, Availability or Aggregate Availability on any date
be deemed to exceed the amount of the Borrowing Base, Availability or Aggregate Availability, as
applicable, shown on the Borrowing Base Certificate last received by Agent prior to such date, as
the calculation in such Borrowing Base Certificate may be adjusted from time to time by Agent as
herein authorized.
SECTION 9. REPRESENTATIONS AND WARRANTIES
9.1. General Representations and Warranties. To induce Agent and Lenders to enter
into this Agreement and to make available the Commitments, each Obligor warrants and represents to
Agent and Lenders that:
9.1.1. Organization and Qualification. Each Obligor is an entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of its organization. Each
Obligor is duly qualified and is authorized to do business as a foreign corporation in each state
or jurisdiction listed on Schedule 9.1.1 hereto and is in good standing in all states and
jurisdictions in which the failure of such Obligor to be so qualified would reasonably be expected
to have a Material Adverse Effect.
9.1.2. Power and Authority. Each Obligor is duly authorized and empowered to enter
into, execute, deliver and perform this Agreement and each of the other Loan Documents to which it
is a party. The execution, delivery and performance of this Agreement and each of the other Loan
Documents have been duly authorized by all necessary corporate, limited liability company or
partnership action and do not and will not (i) require any consent or approval of any of the
holders of the Equity Interests of any Obligor or any of its Subsidiaries other than those obtained
on or prior to the date hereof; (ii) contravene the Organic Documents of any Obligor or any of its
Subsidiaries; (iii) violate, or cause any Obligor or any of its Subsidiaries to be in default
under, any provision of any Applicable Law, order, writ, judgment, injunction, decree,
determination or award in effect having applicability to any Obligor or any of its Subsidiaries;
(iv) result in a breach of or constitute a default under any indenture or loan or credit agreement
or any other material agreement, lease or instrument to which any Obligor or any of its
Subsidiaries is a party or by which it or its Properties may be bound or affected; or (v) result
in, or require, the creation or imposition of any Lien (other than Permitted Liens) upon or with
respect to any of the Properties now owned or hereafter acquired by any Obligor or any of its
Subsidiaries.
9.1.3. Legally Enforceable Agreement. This Agreement is, and each of the other Loan
Documents when delivered under this Agreement will be, a legal, valid and binding obligation of
each Obligor signatory thereto enforceable against each of them in accordance with the respective
terms of such Loan Documents, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other
similar laws of general application affecting the enforcement of creditors’ rights generally
or by general equitable principles.
9.1.4. Capital Structure. As of the date hereof, Schedule 9.1.4 hereto states (i) the
correct name of each Obligor, its jurisdiction of incorporation and, except with respect to Parent,
the percentage of its Equity Interests having voting powers owned by each Person, (ii) the name of
each Obligor’s corporate Affiliates and the nature of the affiliation and (iii) the number of
authorized and issued Equity Interests (and treasury shares) of each Obligor and its Subsidiaries.
Each Obligor has good title to all of the shares it purports to own of the Equity Interests of each
of its Subsidiaries, free and clear in each case of any Lien other than Permitted Liens. All such
Equity Interests have been duly issued and
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are fully paid and non-assessable. Since the date of
the financial statements of Obligors referred to in Section 9.1.9 through the date hereof, Obligors
have not made, or obligated themselves to make, any Distribution, other than Distributions in
connection with the operation of the Obligors’ cash management system in the Ordinary Course of
Business. There are no outstanding options to purchase, or any rights or warrants to subscribe
for, or any commitments or agreements to issue or sell, or any Equity Interests or obligations
convertible into, or any powers of attorney relating to, shares of the capital stock of any Obligor
(other than Parent) or any of its Subsidiaries. Except as set forth on Schedule 9.1.4 hereto,
there are no outstanding agreements or instruments binding upon the holders of any Obligor’s Equity
Interests relating to the ownership of its Equity Interests.
9.1.5. Corporate Names. During the 5-year period preceding the date of this
Agreement, no Obligor has been known as or used any corporate, fictitious or trade names except
those listed on Schedule 9.1.5 hereto. Except as set forth on Schedule 9.1.5, during the 5-year
period preceding the date of this Agreement no Obligor has been the surviving corporation of a
merger or consolidation or acquired all or substantially all of the assets of any Person.
9.1.6. Business Locations; Agent for Process. As of the date hereof, the chief
executive office and other places of business of each Obligor are as listed on Schedule 8.1.1
hereto. During the 5-year period preceding the date of this Agreement, no Obligor has had an
office or place of business other than as listed on Schedule 8.1.1, other than sales offices and
other similar locations to the extent that the Value of Inventory at any such location did not at
any time exceed $100,000 and the aggregate Value of Inventory at all such locations did not at any
time exceed $500,000. Except as shown on Schedule 8.1.1 on the date hereof, no Inventory of any
Obligor is stored with a bailee, warehouseman, processor or similar Person or consigned to any
Person, other than any such location not shown on Schedule 8.1.1 to the extent that the Value of
Inventory at such location does not exceed $100,000 on the date hereof and the aggregate Value of
Inventory at all such locations not shown on Schedule 8.1.1 does not exceed $500,000 on the date
hereof.
9.1.7. Title to Properties; Priority of Liens. Each Obligor and each of its
Subsidiaries has good and marketable title to and fee simple ownership of, or valid and subsisting
leasehold interests in, all of its material real Property, and good title to all of its material
personal Property, including all Property reflected in the financial statements referred to in
Section 9.1.9 or delivered pursuant to Section 10.1.3 (except as disposed of since the date thereof
as permitted by the terms of this Agreement (or the Original Loan Agreement for periods prior to
the date hereof)), in each case free and clear of all Liens except Permitted Liens. Each
Obligor has paid or discharged, and has caused each of its Subsidiaries to pay and discharge,
all lawful claims which, if unpaid, would reasonably be expected to become a Lien against any
Properties of such Obligor or any such Subsidiary that is not a Permitted Lien. The Liens granted
to Agent pursuant to this Agreement and the other Security Documents are duly perfected, first
priority Liens, subject only to those Permitted Liens that are expressly permitted by the terms of
this Agreement to have priority over the Liens of Agent; provided, that, no representation or
warranty is made by any Obligor as to the perfection of Agent’s Lien in (i) the Insurance
Receivables Rights except with respect to the Insurance Receivables Rights arising out of any
Asbestos Insurance Policies provided by North River Insurance Company, (ii) the Mercantile Account
at any time on or prior to September 30, 2006, or (iii) any Pledged Collateral (as defined in any
Pledge Agreement) under foreign law.
9.1.8. Accounts. Agent may rely, in determining which Accounts are Eligible Accounts,
on all statements and representations made by Borrowers with respect to any Account. Unless
otherwise indicated in writing to Agent or specifically excluded by Borrowers in their calculation
of a Borrowing Base in any Borrowing Base Certificate, Borrowers make each of the following
warranties to the knowledge of the Senior Financial Officers (subject to the limitation in the last
paragraph of this Section 9.1.8) with respect to each Account:
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(i) It is genuine and in all respects what it purports to be, and it is not evidenced
by a judgment;
(ii) It arises out of a completed, bona fide sale and delivery of goods or rendition of
services by a Borrower in the Ordinary Course of Business and substantially in accordance
with the terms and conditions of all purchase orders, contracts or other documents relating
thereto and forming a part of the contract between a Borrower and the Account Debtor;
(iii) It is for a sum certain maturing as stated in the invoice covering such sale or
rendition of services, a copy of which has been furnished or is available to Agent on
request;
(iv) Such Account, and Agent’s security interest therein, is not subject to any offset
(except claims for offsets netted out in the computation of Eligible Accounts included in
any Borrowing Base Certificate), Lien (other than Permitted Liens), deduction, defense,
dispute or counterclaim except for conditions in the Ordinary Course of Business or claims
where the amount in controversy is immaterial, and each such Account is absolutely owing to
a Borrower and is not contingent in any respect or for any reason;
(v) The contract under which such Account arose does not condition or restrict a
Borrower’s right to assign to Agent the right to payment thereunder unless such Borrower has
obtained the Account Debtor’s consent to such collateral assignment or complied with any
conditions to such assignment (regardless of whether under the UCC or other Applicable Law
any such restrictions are ineffective to prevent the grant of a Lien upon such Account in
favor of Agent);
(vi) Such Borrower has not made any agreement with any Account Debtor thereunder for
any extension, compromise, settlement or modification of any such Account or any deduction
therefrom, except discounts, allowances, credits or rebates which are granted by a Borrower
for prompt payment or otherwise in the Ordinary Course of Business and, except with respect
to discounts for prompt payment, which are reflected in the calculation of the net amount of
each respective invoice related thereto and are reflected in the Schedules of Accounts
submitted to
Agent pursuant to Section 8.2.1 (or accounted for in the computation of Eligible
Accounts included in the Borrowing Base); and
(vii) There are no facts, events or occurrences which are reasonably likely to (A)
impair the validity or enforceability of such Account or to (B) reduce the amount payable
thereunder (other than discounts for prompt payment in the Ordinary Course of Business) from
the face amount of the invoice and statements delivered to Agent with respect thereto.
For purposes of determining whether an Account is an Eligible Account, the foregoing warranties are
made regardless of the knowledge of any Senior Financial Officer with respect to an event or
condition that would constitute a breach of any of the foregoing warranties. For all other
purposes of this Agreement (including the purpose of determining whether an Event of Default exists
hereunder), the foregoing warranties (a) are only made to the extent of the knowledge of the Senior
Financial Officers and (b) are not made to the extent there are no Aggregate Revolver Outstandings
at any time any such Account is included in the Borrowing Base or the aggregate face amount of the
applicable Accounts in breach of this representation does not exceed $1,000,000.
9.1.9. Financial Statements; Fiscal Year. The Consolidated and consolidating balance
sheets of Obligors and such other Persons described therein (including the accounts of all
Subsidiaries of Obligors for the respective periods during which a Subsidiary relationship existed)
as of December 31,
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2005, and the related statements of income, changes in stockholder’s equity, and
changes in financial position for the periods ended on such dates, have been prepared in accordance
with GAAP, and present fairly, in all material respects, the financial positions of Obligors and
such Persons at such dates and the results of Obligors’ operations for such periods. Since
December 31, 2005, there has been no material adverse change in the condition, financial or
otherwise, of Obligors and such other Persons, taken as a whole, as shown on the Consolidated
balance sheet as of such date.
9.1.10. Full Disclosure. None of the representations, warranties or statements made
by Parent or any Obligor in the Loan Documents as of the date such representations, warranties and
statements are made or deemed made, taken as a whole, and none of the statements contained in any
exhibit, report, statement or certificate furnished by or on behalf of Parent or any Obligor in
connection with the Loan Documents (including any offering and disclosure materials delivered by or
on behalf of Parent or any Borrower to Lenders prior to the Closing Date), in each case, as of the
date made and taken as a whole, contains any untrue statement of a material fact or omits any
material fact required to be stated therein or necessary to make the statements made therein, in
light of the circumstances under which they are made, not misleading as of the time when made or
delivered.
9.1.11. Solvent Financial Condition. Each Obligor is now Solvent and, after giving
effect to the Loans to be made hereunder, the LC Obligations to be incurred in connection herewith
and the consummation of the other transactions described in the Loan Documents, will be Solvent,
provided that no representation is made under this Section 9.1.11 with respect to Xxxxxxx Sealing
or Xxxxxxxx.
9.1.12.
Surety Obligations. Except as set forth on Schedule 9.1.12 on the date hereof, no Obligor is obligated as
surety or indemnitor under any surety or similar bond issued or entered into to assure payment,
performance or completion of performance of any undertaking or obligation of any Person.
9.1.13. Taxes. The FEIN of each of each Obligor as of the date hereof is as shown on
Schedule 9.1.13. Each Obligor and each of its Subsidiaries has filed all federal and other
material state and local tax returns and other reports it is required by law to file and has paid,
or made provision for the payment of, all federal and other material Taxes upon it, its income and
Properties as and when such Taxes are due and payable, except to the extent being Properly
Contested. The provision for Taxes on the books of each Obligor and each of its Subsidiaries are
adequate, in all material respects, for all years not closed by applicable statutes, and for its
current Fiscal Year.
9.1.14. Brokers. There are no claims against any Obligor for brokerage commissions,
finder’s fees or investment banking fees in connection with the transactions contemplated by this
Agreement or any of the other Loan Documents.
9.1.15. Intellectual Property. Each Obligor and each of its Subsidiaries owns or has
the lawful right to use all Intellectual Property necessary for the present and planned future
conduct of its business without any conflict with the rights of others, except as would not
reasonably be expected to have a Material Adverse Effect, and there is no objection to, or pending
(or, to such Obligor’s knowledge, threatened) Intellectual Property Claim with respect to, any
Obligor’s or any of its Subsidiaries’ right to use any such Intellectual Property and such Obligor
is not aware of any grounds for challenge or objection thereto, except in any such case as would
not reasonably be expected to have a Material Adverse Effect; and, except as may be disclosed on
Schedule 9.1.15, as of the date hereof no Obligor pays any royalty or other compensation to any
Person for the right to use any Intellectual Property in connection with the manufacturing,
marketing, sale or distribution of Inventory. As of the date hereof, all registered United States
patents, trademarks, service marks, trade names and copyrights (and any licenses related thereto)
of each Obligor are listed on Schedule 9.1.15.
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9.1.16. Governmental Approvals. Each Obligor and each of its Subsidiaries has, and is
in good standing with respect to, all Governmental Approvals necessary to continue to conduct its
business as heretofore or proposed to be conducted by it and to own or lease and operate its
Properties as now owned or leased by it, except as would not reasonably be expected to have a
Material Adverse Effect.
9.1.17. Compliance with Laws. Except as set forth on Schedule 9.1.17, each Obligor
and each of its Subsidiaries has duly complied with, and its Properties, business operations and
leaseholds are in compliance in all material respects with, the provisions of all Applicable Law,
except to the extent that any such noncompliance would not reasonably be expected to have a
Material Adverse Effect. No Inventory has been produced in violation of the FLSA in any material
respect.
9.1.18. Burdensome Contracts. No Obligor nor any of its Subsidiaries is a party or subject to any contract, agreement, or
charter or other corporate restriction, which has or could be reasonably expected to have a
Material Adverse Effect. No Obligor nor any of its Subsidiaries is a party or subject to any
Restrictive Agreements, except for Permitted Restrictive Agreements and as set forth on Schedule
9.1.18, none of which prohibit the execution or delivery of any of the Loan Documents by any
Obligor or the performance by any Obligor of its obligations under any of the Loan Documents to
which it is a party, in accordance with the terms of such Loan Documents.
9.1.19. Litigation. Except as set forth on Schedule 9.1.19, there are no actions,
suits, proceedings or investigations pending or, to the knowledge of any Obligor, threatened on the
date hereof against or affecting any Obligor or any of its Subsidiaries, or the business,
operations, Properties, profits or condition of any Obligor or any of its Subsidiaries, (i) which
relate to any of the Loan Documents or any of the transactions contemplated thereby or (ii) which,
if determined adversely to any Obligor or any of its Subsidiaries, would reasonably be expected to
have a Material Adverse Effect. No Obligor nor any of its Domestic Subsidiaries is in default on
the date hereof with respect to any order, writ, injunction, judgment, decree or rule of any court,
Governmental Authority or arbitration board or tribunal specifically applicable thereto.
9.1.20. No Defaults. No event has occurred and no condition exists which would, upon
or immediately after the execution and delivery of this Agreement or any Obligor’s performance
hereunder, constitute a Default or an Event of Default. No Obligor nor any of its Subsidiaries is
in default, and no event has occurred and no condition exists which constitutes or which with the
passage of time or the giving of notice or both would constitute a default, under any Material
Contract or in the payment of any Debt of an Obligor or a Subsidiary to any Person for Money
Borrowed, in each case which would reasonably be expected to have a Material Adverse Effect.
9.1.21. Leases. Schedule 9.1.21 is a complete listing of each capitalized and
operating lease of each Obligor on the date hereof that constitutes a Material Contract. Each
Obligor and each of its Subsidiaries is in substantial compliance with all of the terms of each of
its respective capitalized and operating leases, except as would not reasonably be expected to have
a Material Adverse Effect, and there is no basis upon which the lessors under any such leases could
terminate same or declare such Obligor or any of its Subsidiaries in default thereunder, except as
would not reasonably be expected to have a Material Adverse Effect.
9.1.22. ERISA. Each Obligor and each of its Subsidiaries is in full compliance with
the requirements of ERISA and the regulations promulgated thereunder with respect to each Plan,
except as would not reasonably be expected to have a Material Adverse Effect. No Obligor nor any
of its Subsidiaries has any withdrawal liability in connection with a Multiemployer Plan.
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9.1.23. Trade Relations. As of the date hereof, to Obligors’ knowledge, there exists
no actual or threatened termination, cancellation or limitation of, or any materially adverse
modification or change in, the
business relationship between any Obligor and any customer or any group of customers whose
purchases individually or in the aggregate are material to the business of such Obligor, or with
any material supplier or group of suppliers, and, as of the date hereof, to Obligors’ knowledge,
there exists no condition or state of facts or circumstances which is reasonably likely to have a
Material Adverse Effect or prevent any Obligor from conducting such business after the consummation
of the transactions contemplated by this Agreement in substantially the same manner in which it has
heretofore been conducted.
9.1.24. Labor Relations. Except as described on Schedule 9.1.24, no Obligor is on
the date hereof a party to or bound by any collective bargaining agreement. On the date hereof,
there are no material grievances, disputes or controversies with any union or any other
organization of any Obligor’s employees, or, to any Obligor’s knowledge, any threats of strikes,
work stoppages or any asserted pending demands for collective bargaining by any union or
organization affecting any Obligor.
9.1.25. Not a Regulated Entity. No Obligor is (i) an “investment company” or a
“person directly or indirectly controlled by or acting on behalf of an investment company” within
the meaning of the Investment Company Act of 1940; or (ii) subject to regulation under the Federal
Power Act, the Interstate Commerce Act, any public utilities code or any other Applicable Law
regarding its authority to incur Debt.
9.1.26. Margin Stock. No Obligor nor any of its Subsidiaries is engaged, principally
or as one of its important activities, in the business of extending credit for the purpose of
purchasing or carrying any Margin Stock.
9.1.27. Anti-Terrorism Laws.
(i) General. No Obligor nor any of its Affiliates is in violation in any
material respect of any Anti-Terrorism Law or engages in or conspires to engage in any
transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to
violate, any of the prohibitions set forth in any Anti-Terrorism Law.
(ii) Executive Order No. 13224.
(a) No Obligor nor any of its Affiliates is any of the following (each a
“Blocked Person”): (1) a Person that is listed in the annex to, or is otherwise
subject to the provisions of, Executive Order No. 13224; (2) a Person owned or
controlled by, or acting for or on behalf of, any Person that is listed in the annex
to, or is otherwise subject to the provisions of, Executive Order No. 13224; (3) a
Person or entity with which any bank or other financial institution is prohibited
from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; (4)
a Person or entity that commits, threatens or conspires to commit or supports
“terrorism” as defined in Executive Order No. 13224; (5) a Person or entity that is
named as a “specially designated national” on the most current list published by the
U.S. Treasury Department Office of Foreign Asset Control (“OFAC”) at its official
website or any replacement website or other replacement official publication of
such list; (6) a Person or entity who is affiliated with a Person or entity listed
above; or (7) an agency of the government of, an organization directly or indirectly
controlled by, or a Person resident in, a country on any official list maintained by
OFAC.
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(b) No Obligor nor any of its Affiliates (1) conducts any business or engages
in making or receiving any contribution of funds, goods or services to or for the
benefit of any Blocked Person, (2) has any of its assets in a Blocked Person, (3)
deals in, or otherwise engages in any transaction relating to, any Property or
interests in Property blocked pursuant to Executive Order No. 13224, or (4) derives
any of its operating income from investments in or transactions with a Blocked
Person.
9.1.28. Payable Practices. No Obligor nor any of its Domestic Subsidiaries has made
any material change in its historical accounts payable practices from those in effect immediately
prior to the Closing Date.
9.1.29. Not the Holder of Plan Assets. No Obligor is an entity deemed to hold “plan
assets” within the meaning of 29 C.F.R. §2510.3-101 of an “employee benefit plan” (as defined in
Section 3(3) of ERISA) that is subject to Title I of ERISA or any “plan” (within the meaning of
Section 4975 of the Internal Revenue Code), and neither the execution of this Agreement nor the
funding of any Loans gives rise to a prohibited transaction within the meaning of Section 406 of
ERISA or Section 4975 of the Internal Revenue Code.
9.1.30. Tax Matters. The representations and warranties of Parent in support of the
“Tax Opinion” (as defined in the Tax Matters Agreement) are true and correct in all material
respects as of the Closing Date.
9.1.31. Senior Notes Indenture. Without limitation of any of the terms of Section
9.1.2, the incurrence of the Agent’s Liens does not and will not result in a breach of or
constitute a default under the Senior Notes Indenture or any other indenture or loan or credit
agreement or any other material agreement, lease or instrument to which any Obligor or any of its
Subsidiaries is a party or by which it or its Properties may be bound or affected. As of the date
hereof, there is no outstanding Exempted Debt other than (i) Obligations that constitute Exempted
Debt and (ii) Debt in the aggregate principal amount of $1,000,000 described in Item 1 of Schedule
10.2.5.
9.2. Reaffirmation of Representations and Warranties. Each representation and
warranty contained in this Agreement and the other Loan Documents shall be deemed to be made on the
Closing Date and reaffirmed, in all material respects, by each Obligor on each day that Borrowers
request or are deemed to have requested any Loan, Letter of Credit or other extension of credit
hereunder, except for changes in the nature of an Obligor’s or, if applicable, any Subsidiary’s
business or operations that may occur after the date hereof in the Ordinary Course of Business so
long as Agent has consented to such changes or such changes are not violative of any provision of
this Agreement. Notwithstanding the foregoing, representations and warranties which by their terms
are applicable only as of a specific date shall be deemed made only at and as of such date.
9.3. Survival of Representations and Warranties. All representations and warranties
of Obligors contained in this Agreement or any of the other Loan Documents shall survive the
execution, delivery and acceptance thereof by Agent, Lenders and the parties thereto and the
closing of the transactions described therein or related thereto.
SECTION 10. COVENANTS AND CONTINUING AGREEMENTS
10.1. Affirmative Covenants. For so long as there are any Commitments outstanding and
thereafter until Full Payment of the Obligations, each Obligor covenants that it shall and shall
cause each Subsidiary to:
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10.1.1. Visits and Inspections. Permit representatives of Agent from time to time, as
often as may be reasonably requested, but only during normal business hours and (except when a
Default or Event of Default exists) upon reasonable prior notice to an Obligor, to visit and
inspect the Properties of such Obligor and each of its Subsidiaries, inspect, audit and make
extracts from such Obligor’s and each Subsidiary’s books and records, and discuss with its
officers, its employees and its independent accountants, such Obligor’s and each Subsidiary’s
business, financial condition, business prospects and results of operations. Representatives of
each Lender shall be authorized to accompany Agent on each such visit and inspection and to
participate with Agent therein, but at their own expense (unless a Default or Event of Default
exists, in which event Obligors shall promptly reimburse all such expenses). Neither Agent nor any
Lender shall have any duty to make any such inspection and shall not incur any liability by reason
of its failure to conduct or delay in conducting any such inspection.
10.1.2. Notices. Notify Agent in writing, promptly after an Obligor’s obtaining
knowledge thereof, of (i) the commencement of any litigation affecting any Obligor (other than
litigation asserting damages based on alleged asbestos exposure), whether or not the claims
asserted in such litigation are considered by Obligors to be covered by insurance, and of the
institution of any administrative proceeding, in each case to the extent that such litigation or
proceeding would reasonably be expected to have a Material Adverse Effect; (ii) any labor dispute
to which any Obligor may become a party, any pending or threatened strikes or walkouts relating to
any of its plants or other facilities, and the expiration of any labor contract to which it is a
party or by which it is bound, in each case which would reasonably be expected to have a Material
Adverse Effect; (iii) any material default by any Obligor under, or termination of, any Material
Contract or any note, indenture, loan agreement, mortgage, lease, deed, guaranty or other similar
agreement relating to any Debt of such Obligor exceeding $5,000,000; (iv) the existence of any
Default or Event of Default; (v) any judgment against any Obligor in an amount exceeding
$5,000,000; (vi) the assertion by any Person of any Intellectual Property Claim against an Obligor
or any of its Subsidiaries, the adverse resolution of which would reasonably be expected to have a
Material Adverse Effect; (vii) any violation or asserted violation by any Obligor of any Applicable
Law (including ERISA, OSHA, FLSA, or any Environmental Laws), the adverse resolution of which would
reasonably be expected to have a Material Adverse Effect; (viii) any Environmental Release by an
Obligor or on any Property owned or occupied by an Obligor which is reasonably likely to give rise
to liability in excess of $5,000,000; (ix) the discharge of Obligors’ independent accountants or
any withdrawal of resignation by such independent accountants from their acting in such capacity;
and (x) any investigation of any Obligor by the SEC or the U.S. Department of Justice or, to the
extent any such investigation would reasonably be expected to have a Material Adverse Effect, by
any other Governmental Authority. Furthermore, Obligors shall notify Agent promptly upon any
Obligor other than Parent (i) being required to file reports under Section 15(b) of the Securities
Exchange Act of 1934, (ii) registering securities under Section 12 of the Securities Exchange Act
of 1934 or (iii) filing a registration statement under the Securities Act of 1933.
10.1.3. Financial and Other Information. Keep adequate records and books of account with respect to its business activities in which
proper entries are made in accordance with GAAP reflecting all its financial transactions; and
cause to be prepared and furnished to Agent and Lenders the following (all to be prepared in
accordance with GAAP applied on a consistent basis, unless Obligors’ certified public accountants
concur in any change therein, such change is disclosed to Agent and is consistent with GAAP and, if
required by the Required Lenders, the financial covenants set forth in Section 10.3 are amended in
a manner requested by the Required Lenders to take into account the effects of such change):
(i) as soon as available, and in any event within 90 days after the close of each
Fiscal Year audited balance sheets of Parent and its consolidated Subsidiaries as of the end
of such Fiscal Year and the related statements of income, shareholders’ equity and cash
flow, on a
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Consolidated basis, certified without an Impermissible Qualification by a firm of
independent certified public accountants of recognized national standing selected by
Obligors but reasonably acceptable to Agent and setting forth in each case in comparative
form the corresponding Consolidated and consolidating (by business unit) figures for the
preceding Fiscal Year;
(ii) as soon as available, and in any event within 45 days after the end of each month
hereafter, including the last month of each Fiscal Year, unaudited balance sheets of Parent
and its consolidated Subsidiaries as of the end of such month and the related unaudited
statements of income and cash flow for such month and for the portion of such Fiscal Year
then elapsed, on a Consolidated and consolidating (by business unit) basis, setting forth in
each case in comparative form the corresponding figures for the preceding Fiscal Year and
certified by the principal financial officer of Obligors as prepared in accordance with GAAP
and fairly presenting, in all material respects, the Consolidated financial position and
results of operations of Obligors and their Subsidiaries for such month and period subject
only to changes from audit and year-end adjustments and except that such statements need not
contain notes;
(iii) not later than 15 days after the end of each month during which Average
Availability was less than $15,000,000, a listing of all of each Obligor’s trade payables as
of the last Business Day of such month, specifying the name of and balance due each trade
creditor, and, at Agent’s request, monthly detailed trade payable agings in form acceptable
to Agent;
(iv) except to the extent publicly available, promptly after the sending or filing
thereof, as the case may be, copies of any proxy statements, financial statements or reports
which any Obligor has made generally available to its shareholders; copies of any regular,
periodic and special reports or registration statements or prospectuses which any Obligor
files with the SEC or any Governmental Authority which may be substituted therefor, or any
national securities exchange; and copies of any press releases or other statements made
available by an Obligor to the public concerning material changes to or developments in the
business of such Obligor;
(v) promptly following Agent’s request, copies of any annual report to be filed in
accordance with ERISA in connection with each Plan; and
(vi) such other data and information (financial or otherwise) as Agent, from time to
time, may reasonably request, bearing upon or related to the Collateral or any Obligor’s or
Subsidiary’s financial condition or results of operations.
Concurrently with the delivery of the financial statements described in clause (i) of
this Section 10.1.3, Obligors shall deliver to Agent a copy of any accountants’ letter to Obligors’
management that is prepared in connection with such financial statements and also shall cause to be
prepared and shall deliver to Agent a certificate of the aforesaid certified public accountants
stating to Agent and Lenders that, based
upon such accountants’ audit of the Consolidated financial statements of Obligors and their
Subsidiaries performed in connection with their examination of said financial statements, nothing
came to their attention that caused them to believe that Obligors were not in compliance with
Section 10.3, or, if they are aware of such noncompliance, specifying the nature thereof.
Concurrently with the delivery of the financial statements described in clauses (i) and
(ii) of this Section 10.1.3, or more frequently if requested by Agent during any period
that a Default or Event of Default exists, Obligors shall cause to be prepared and furnished to
Agent a Compliance Certificate executed by the chief financial officer of Parent.
10.1.4. Landlord and Storage Agreements. Promptly following Agent’s request, provide
Agent with copies of all existing and future agreements between any Obligor and any landlord,
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warehouseman or bailee which owns any premises at which any Collateral may, from time to time, be
kept.
10.1.5. Projections. No later than 60 days after the beginning of each Fiscal Year of
Obligors, beginning with the Fiscal Year commencing on January 1 2007, deliver to Agent the
Projections of Obligors for such Fiscal Year, as prepared on a month-by-month basis.
10.1.6. Taxes. Pay and discharge all federal and other material Taxes prior to the
date on which such Taxes become delinquent or penalties attach thereto, except and to the extent
only that such Taxes are being Properly Contested.
10.1.7. Compliance with Laws. Comply with all Applicable Law, including ERISA, all
Environmental Laws, FLSA, OSHA, Anti-Terrorism Laws and all laws, statutes, regulations and
ordinances regarding the collection, payment and deposit of Taxes, and obtain and keep in force any
and all Governmental Approvals necessary to the ownership of its Properties or to the conduct of
its business, in each case to the extent that any such failure to comply, obtain or keep in force
could be reasonably expected to have a Material Adverse Effect.
10.1.8. Insurance. In addition to the insurance required herein with respect to the
Collateral, maintain with its current insurers or with other financially sound and reputable
insurers having a rating of at least B+ VII or better by Best’s Ratings, a publication of A.M. Best
Company (or, in the case of aircraft liability insurance, with its current insurers or with other
insurers reasonably acceptable to Agent), (i) insurance with respect to its Properties and business
against such casualties and contingencies of such type (including product liability, workers’
compensation, larceny, embezzlement, or other criminal misappropriation insurance) and in such
amounts and with such coverages, limits and deductibles as is customary in the business of such
Obligor or such Subsidiary and (ii) business interruption insurance in an amount reasonably
acceptable to Agent. Agent confirms that the level of business interruption insurance disclosed to
it on or prior to the date hereof is reasonably satisfactory to it based on the circumstances as of
the date hereof.
10.1.9. Intellectual Property. Within 45 days after the end of any Fiscal Quarter, notify Agent of any application for or
acquisition of registered United States Intellectual Property of an Obligor or Domestic Subsidiary
during such Fiscal Quarter and, upon request of Agent, deliver to Agent, in form and substance
acceptable to Agent and in recordable form, all documents necessary for Agent to obtain and perfect
a first priority Lien on such Intellectual Property.
10.1.10.
Tax Matters Agreement 10.1.11. . Parent shall comply in all material
respects with all of its respective covenants and obligations under the Tax Matters Agreement,
including without limitation, its obligations pursuant to Section 3.02(b) thereof not to take any
action inconsistent with the representation letter delivered by Parent in connection with the “Tax
Opinion” as defined therein (unless the requirements of such Section 3.02(b) have been satisfied).
10.2. Negative Covenants. For so long as there are any Commitments outstanding and
thereafter until Full Payment of the Obligations, each Obligor covenants that it shall not and
shall not permit any Subsidiary to:
10.2.1. Fundamental Changes. Merge, reorganize, consolidate or amalgamate with any
Person, or liquidate, wind up its affairs or dissolve itself, in each case whether in a single
transaction or in a series of related transactions, except for Permitted Mergers/Liquidations;
change an Obligor’s name or conduct business under any new fictitious name, except in connection
with Permitted
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Mergers/Liquidations; or change an Obligor’s FEIN, organizational identification
number or state of organization, except in connection with Permitted Mergers/Liquidations.
10.2.2. Loans. Make any loans or other advances of money to any Person other than (i)
to an officer or employee of an Obligor or a Subsidiary for salary, travel advances, advances
against commissions and other similar advances in the Ordinary Course of Business, (ii) loans and
advances that constitute Permitted Foreign Subsidiary Investments, (iii) Permitted Excess
Collateral Provider Loans; and (iv) loans and advances that are permitted under Section 10.2.3(ii),
(iv), (vii) or (viii).
10.2.3. Permitted Debt. Create, incur, assume, guarantee or suffer to exist any Debt,
except:
(i) the Obligations;
(ii) Subordinated Debt that is subject at all times to subordination pursuant to the
provisions of a Subordination Agreement;
(iii) Permitted Fixed Asset Debt;
(iv) Debt for Money Borrowed set forth on Schedule 10.2.3;
(v) Permitted Contingent Obligations;
(vi) unsecured Debt (including earn-out and non-compete payments) to sellers under
Permitted Acquisitions;
(vii) Debt from any Obligor to any other Obligor (other than Xxxxxxx Sealing and
Xxxxxxxx) in connection with the ordinary course operation of the Obligors’ cash management
system;
(viii) Debt from any Excess Collateral Provider to any other Excess Collateral Provider
(provided that such Debt is subordinated to the Obligations pursuant to the terms of the
Intercompany Subordination Agreement);
(ix) Permitted Excess Collateral Provider Loans;
(x) Debt under the Convertible Debentures in a maximum principal amount of up to
$172,500,000;
(xi) unsecured Debt that is not included in any of the preceding paragraphs of this
Section 10.2.3;
(xii) Debt owing solely by Foreign Subsidiaries, including, without limitation,
Permitted Foreign Subsidiary Investments; and
(xiii) Refinancing Debt so long as each of the Refinancing Conditions is met with
respect thereto.
None of the provisions of this Section 10.2.3 that authorize any Obligor to incur any Debt shall be
deemed to override, modify or waive any of the provisions of Section 10.3, which shall constitute
an independent and separate covenant and obligation of each Obligor.
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10.2.4. Affiliate Transactions. Enter into, or be a party to, any transaction with
any Affiliate, except: (i) the transactions contemplated by the Loan Documents; (ii) payment of
reasonable compensation to officers and employees for services actually rendered to such Obligor or
its Subsidiaries; (iii) payment of customary directors’ fees and indemnities; (iv) transactions
expressly permitted by the terms of Sections 10.2.1, 10.2.2, 10.2.3, 10.2.5, 10.2.6, 10.2.7,
10.2.8, 10.2.9, 10.2.11 and 10.2.15; (v) transactions with Affiliates that were consummated prior
to the date hereof and have been disclosed to Agent prior to the Closing Date; and (vi)
transactions with Affiliates in the Ordinary Course of Business and pursuant to the reasonable
requirements of such Obligor’s or such Subsidiary’s business and upon fair and reasonable terms
that are no less favorable to such Obligor or such Subsidiary than such Obligor or such Subsidiary
would obtain in a comparable arm’s length transaction with a Person not an Affiliate or stockholder
of such Obligor or such Subsidiary.
10.2.5. Limitation on Liens. Create or suffer to exist any Lien upon any of its
Property, income or profits, whether now owned or hereafter acquired, except the following
(collectively, “Permitted Liens”):
(i) Liens at any time granted in favor of Agent;
(ii) Liens for Taxes (excluding any Lien imposed pursuant to any of the provisions of
ERISA) not yet due or being Properly Contested;
(iii) statutory Liens (excluding any Lien for Taxes, including any Lien imposed
pursuant to any of the provisions of ERISA) arising in the Ordinary Course of Business of an
Obligor or a Subsidiary, including statutory Liens in favor of materialmen, mechanics,
carriers, warehousemen, landlords and other like Persons, but only if and for so long as (a)
payment in respect of any such Lien is not at the time required or the Debt secured by any
such Liens is being Properly Contested and (b) such Liens do not materially detract from the
value of the Property of such Obligor or such Subsidiary and do not materially impair the
use thereof in the operation of such Obligor’s or such Subsidiary’s business;
(iv) Fixed Asset Liens securing Permitted Fixed Asset Debt;
(v) Liens securing Debt of a Subsidiary of an Obligor to another Obligor or to another
such Subsidiary;
(vi) Liens arising by virtue of the rendition, entry or issuance against such Obligor
or any of its Subsidiaries, or any Property of such Obligor or any of its Subsidiaries, of
any judgment, writ, order, or decree for so long as each such Lien (a) is in existence for
less than 30 consecutive days after it first arises or is being Properly Contested and (b)
is at all times junior in priority to any Liens in favor of Agent;
(vii) Liens incurred or deposits made in the Ordinary Course of Business to secure the
performance of tenders, bids, leases, contracts (other than for the repayment of Money
Borrowed), statutory obligations (including workers compensation, unemployment insurance,
social security and similar laws) and other similar obligations, or arising as a result of
progress payments under government contracts, or to secure indemnity, performance or other
similar bonds for the performance of tenders, bids, leases, contracts (other than for the
repayment of Money Borrowed) or to secure statutory obligations, provided that, to the
extent any such Liens attach to any of the Collateral (other than any Accounts or Inventory
arising out of or relating to any tender, bid or contract secured by any such bond and any
cash or Cash Equivalents serving as collateral or a deposit for any of the foregoing
obligations), such Liens are at all times
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subordinate and junior to the Liens upon the
Collateral in favor of Agent;
(viii) Liens consisting of cash collateral posted in favor of any surety or bonding
company in connection with any appeal bonds issued by such surety or bonding company, so
long as Aggregate Availability is at least $20,000,000 upon the posting of any such cash
collateral (after giving effect to any Revolver Loans made hereunder in connection
therewith) (it being understood that Agent shall be authorized to release its Lien in any
cash collateral posted in accordance with this clause (viii));
(ix) easements, encroachments, reservations, servitudes, rights-of-way, restrictions,
covenants or other agreements of record, leases and other similar charges or encumbrances
and title exceptions on real Property of such Obligor or any of its Subsidiaries that do not
secure any monetary obligation and do not materially interfere with the ordinary conduct of
the business of such Obligor or such Subsidiary;
(x) normal and customary rights of setoff upon deposits of cash in favor of banks and
other depository institutions and Liens of a collecting bank arising under the UCC on checks
and other items of payment in the course of collection;
(xi) Liens in favor of (a) Xxxxxxx Sealing in the Membership Interests pursuant to the
CIP/GGB Pledge Agreement, provided that such Liens shall at all times be subordinate to
Agent’s
Liens therein in accordance with the terms of the Xxxxxxx Sealing Subordination
Agreement, and (b) Stemco in the general partnership interests in Stemco LP (TX) and in the
stock of Stemco Holdings pursuant to the Stemco Pledge Agreement, provided that such Liens
shall at all times be subordinate to Agent’s Liens therein in accordance with the terms of
the Stemco Subordination Agreement;
(xii) such other Liens as appear on Schedule 10.2.5, to the extent provided therein;
(xiii) Liens applicable solely to Property of Foreign Subsidiaries; and
(xiv) such other Liens as Agent and the Required Lenders in their discretion may
hereafter approve in writing.
The foregoing negative pledge shall not apply to any Margin Stock to the extent that the
application of such negative pledge to such Margin Stock would require filings or other actions by
any Lender under Regulation U or other regulations of the Board of Governors, or otherwise result
in a violation of any such regulations.
10.2.6. Restrictions on Payment of Certain Debt. Make any payments or repurchases
with respect to any:
(i) Subordinated Debt other than payment of regularly scheduled installments of
principal and interest and fees and other charges when required to be paid by any instrument
or agreement evidencing such Subordinated Debt, but in each case only to the extent that
payment thereof is not violative of any subordination agreement relating to such
Subordinated Debt; or
(ii) Funded Debt (other than the Obligations) prior to the date on which any such
payment is required to be made pursuant to any instrument or agreement evidencing such
Funded Debt, including any voluntary prepayment, redemption, defeasance or other acquisition
for value of any such Funded Debt, except to the extent that, (a) at the time of any such
prepayment or
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repurchase no Default or Event of Default shall have occurred and be
continuing, and (b) after giving effect to any such prepayment, Aggregate Availability shall
exceed $20,000,000.
10.2.7. Distributions. Declare or make any Distributions, except for Upstream
Payments and Permitted Distributions.
10.2.8. Upstream Payments. Create or suffer to exist any encumbrance or restriction
on the ability of a Subsidiary to make any Upstream Payment, except for encumbrances or
restrictions (i) pursuant to the Loan Documents, (ii) existing under Applicable Law and (iii)
identified and fully disclosed in Schedule 10.2.8.
10.2.9. Disposition of Assets. Make any Asset Disposition other than a Permitted
Asset Disposition.
10.2.10. Subsidiaries. Form or acquire any Subsidiary after the Closing Date, except as otherwise permitted in
connection with a Permitted Acquisition, or permit any existing Subsidiary to issue any additional
Equity Interests except director’s qualifying shares.
10.2.11. Restricted Investments. Make or have any Restricted Investment.
10.2.12. Tax Consolidation. File or consent to the filing of any consolidated income
tax return with any Person other than a Subsidiary.
10.2.13. Fiscal Year. Establish a fiscal year different from the Fiscal Year.
10.2.14. Organic Documents. Amend, modify or otherwise change any of the terms or
provisions in any of its Organic Documents as in effect on the date hereof, except for changes that
do not affect in any way (i) such Obligor’s or any of its Subsidiaries’ right and authority to
enter into and perform the Loan Documents to which it is a party, (ii) the perfection of Agent’s
Liens in any Collateral, or (iii) the authority or obligation of an Obligor to pay or perform any
of the Obligations.
10.2.15. Restrictive Agreements. Enter into or become a party to any Restrictive
Agreement, provided that the foregoing shall not apply to (i) Restrictive Agreements existing on
the date hereof and identified on Schedule 9.1.18 (and amendments, modifications and replacements
thereof, so long as such amendments, modifications or replacements are not more restrictive, taken
as a whole, than the scheduled agreements) so long as such agreements do not prohibit any of the
transactions or Liens contemplated by the Loan Documents, (ii) restrictions or conditions imposed
by any Restrictive Agreement evidencing or governing secured Debt that is permitted by this
Agreement if such restrictions or conditions apply only to the Properties securing such Debt and do
not prohibit any of the transactions or Liens contemplated by the Loan Documents, (iii) customary
provisions in leases, licenses and other contracts restricting the assignment thereof or rights
thereunder, (iv) agreements acquired in any Permitted Acquisitions so long as such Agreements were
not entered into in anticipation of such Permitted Acquisition, the restriction is not applicable
to any Person other than the Person or the assets of the Person so acquired, and such agreements do
not prohibit any of the transactions or Liens contemplated by the Loan Documents, (v) agreements in
connection with Debt of Foreign Subsidiaries permitted hereunder that prohibit such Foreign
Subsidiary from creating, assigning or incurring any Lien upon its assets or incurring Debt, so
long as such agreements do not prohibit any of the transactions or Liens contemplated by the Loan
Documents, and (vi) any agreement governing Debt permitted to be incurred hereunder so long as the
terms and conditions of any such restrictions and encumbrances, taken as a whole, are not more
restrictive than those contained in this Agreement and do not prohibit any of the
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transactions or
Liens contemplated by the Loan Documents (collectively “Permitted Restrictive Agreements”).
10.2.16. Hedging Agreements. Enter into any Hedging Agreement, other than Hedging
Agreements entered into in the Ordinary Course of Business to hedge or mitigate risks to which any
Obligor or any Subsidiary is exposed in the conduct of its business or the management of its
liabilities and not for any speculative purpose.
10.2.17. Compromise of Claims. Discount, forgive, waive or otherwise compromise any
claim or debt owing to it, except for reasonable consideration negotiated on an arms-length basis
and in the Ordinary Course of Business or, so long as no Event of Default exists, as would not
reasonably be expected to have a Material Adverse Effect.
10.2.18. Anti-Terrorism Laws. Conduct any business or engage in any transaction or
dealing with any Blocked Person (as defined in Section 9.1.27(ii)) in violation in any material
respect of any Anti-Terrorism Law, including the making or receiving any contribution of funds,
goods or services to or for the benefit of any Blocked Person; deal in, or otherwise engage in any
transaction relating to, any property or interests in property blocked pursuant to Executive Order
No. 13224; or engage in on conspire to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in
Executive Order No. 13224 or the USA Patriot Act. Obligors shall deliver to Agent and Lenders any
certification or other evidence reasonably requested from time to time by Agent or any Lender
confirming each Obligor’s compliance with this Section 10.2.18.
10.2.19. Conduct of Business. Engage in any business other than (a) the business
engaged in by it on the Closing Date, (b) any business or activities which are substantially
similar, related or incidental thereto, and (c) any similar business that manufactures products and
provides related services for sale to industrial customers.
10.2.20. Multiemployer Plans. Become, or permit any Subsidiary to become a party to a
Multiemployer Plan.
10.2.21. Dormant Subsidiaries. From and after the date of this Agreement, no Dormant
Subsidiary shall (i) conduct or engage in any business, (ii) incur of become liable with respect to
any Debt, (iii) acquire any assets, or (iv) enter into any transaction with any of Parent, any
Borrower, any of their respective Subsidiaries or any other Person.
10.2.22. Senior Notes Indenture Provisions. Incur any Exempted Debt if the incurrence
thereof would cause Coltec to violate the terms of Section 4.2(b) of the Senior Notes Indenture; or
enter into any amendment or modification of (i) any of the terms of Section 4.2(b) of the Senior
Notes Indenture, except to the extent that such amendment or modification would increase the amount
of Exempted Debt that is permitted to be incurred thereunder, or (ii) the definition of “Exempted
Debt” set forth in the Senior Notes Indenture.
10.3. Financial Covenants. For so long as there are any Commitments outstanding and
thereafter until Full Payment of the Obligations, Obligors covenant that:
10.3.1. Minimum Fixed Charge Coverage Ratio.
If (i) Average Availability for any fiscal month of Obligors shall be equal to or less than
$15,000,000 (or $20,000,000 in the event of any increase in the Commitments in accordance with
Section 2.2) or (ii) Aggregate Availability (as determined by Agent) on any day during any fiscal
month of Obligors shall be equal to or less than $7,500,000 (or $10,000,000 in the event of any
increase in the Commitments in accordance with Section
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2.2) (any such event being a “Covenant
Trigger”), Obligors shall be required to maintain a Fixed Charge Coverage Ratio of at least 1.0
to 1.0 as of the immediately preceding fiscal month end for which financial statements have been
(or were required to be) delivered hereunder and as of each subsequent fiscal month end;
provided, that (a) a breach of such covenant when so tested shall not be cured by a
subsequent increase of the Average Availability or Aggregate Availability above the applicable
limit set forth above, and (b) following a Covenant Trigger, the requirement to comply with the
Fixed Charge Coverage Ratio shall no longer apply if (I) Aggregate Availability (as determined by
Agent) on each day during any four consecutive fiscal month period of Obligors commencing after the
date of such Covenant Trigger shall be greater than $7,500,000 (or $10,000,000 in the event of any
increase in the Commitments in accordance with Section 2.2) and (II) Average Availability for each
fiscal month during such four fiscal month period shall be greater than $15,000,000 (or $20,000,000
in the event of any increase in the Commitments in accordance with Section 2.2), after which time
the requirement to comply with the Fixed Charge Coverage Ratio shall not apply unless a subsequent
Covenant Trigger occurs. If Obligors fail to deliver financial statements on the due date therefor
(without giving effect to any cure periods), such that the Fixed Charge Coverage Ratio cannot be
calculated, the Fixed Charge Coverage Ratio shall be deemed to be less than 1.0 to 1.0 until such
time as the required financial statements are actually delivered.
SECTION 11. CONDITIONS PRECEDENT
11.1. Conditions Precedent to Initial Credit Extensions. Initial Lenders shall not be
required to fund any requested Loan or otherwise extend credit to Borrowers, and Issuing Bank shall
have no obligation to issue any Letter of Credit, unless each of the following conditions has been
satisfied:
11.1.1. Loan Documents. Each of the Loan Documents required to be executed at closing
shall have been duly executed and delivered to Agent by each of the signatories thereto and
accepted by Agent and Initial Lenders and each Obligor shall be in compliance with all of the terms
thereof.
11.1.2. Aggregate Availability. Agent shall have determined, and Initial Lenders
shall be satisfied, that, immediately after Initial Lenders have made the initial Revolver Loans to
be made on the Closing Date (if any), Issuing Bank has issued the Letters of Credit to be issued on
the Closing Date (if any), and Borrowers have paid (or made provision for payment of) all fees and
closing costs incurred in connection with the Commitments, and after increasing the Availability
Reserve in the amount of any payables of Borrowers that are stretched beyond Borrowers’ customary
payment practices, Aggregate Availability is not less than $15,000,000.
11.1.3. Evidence of Perfection and Priority of Liens. Agent shall have received
copies of all filing receipts or acknowledgments issued by any Governmental Authority to evidence
any filing or recordation necessary to continue the perfection of the Liens of Agent in the
Collateral and evidence in form satisfactory to Agent and Initial Lenders that such
Liens constitute valid and perfected Liens, and that there are no other Liens upon any
Collateral except for Permitted Liens.
11.1.4. Organic Documents. Agent shall have received copies of the Organic Documents
of each Obligor, and all amendments thereto, certified by the Secretary of State or other
appropriate official of the jurisdiction of each Obligor’s organization.
11.1.5. Good Standing Certificates. Agent shall have received good standing
certificates for each Obligor, issued by the Secretary of State or other appropriate official of
such Obligor’s jurisdiction of organization and principal place of business.
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11.1.6. Opinion Letters. Agent and Initial Lenders shall have received favorable,
written opinions of Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.A. and Xxxxxx X. XxXxxxxx, Deputy General
Counsel to Parent, in the forms attached as Exhibit B hereto.
11.1.7. Insurance. Agent shall have received certificates of insurance with respect
to the property and casualty insurance policies of Obligor with respect to the Collateral, in form
acceptable to Agent, and including loss payable endorsements on Agent’s standard form of loss payee
endorsement naming Agent as loss payee with respect to each such property policy, and certificates
of insurance with respect to Obligors’ liability insurance policies, including product liability
policies, together with endorsements naming Agent as an additional insured, all as required by the
Loan Documents.
11.1.8. Lockbox and Dominion Accounts. Agent shall have received the duly executed
agreements establishing each Lockbox and Dominion Account required by this Agreement, in each case
with a financial institution reasonably acceptable to Agent for the collection or servicing of the
Accounts.
11.1.9. Solvency Certificates. Agent and Initial Lenders shall have received
certificates satisfactory to them from one or more knowledgeable Senior Officers of each Obligor
(other than Xxxxxxx Sealing and Xxxxxxxx) that, after giving effect to the financing under this
Agreement and the issuance of the Letters of Credit, each Obligor is Solvent.
11.1.10. Payment of Fees. Borrowers shall have paid, or made provision for the
payment on the Closing Date of, all fees and expenses to be paid hereunder and under the Fee Letter
to Agent and Lenders on the Closing Date.
11.1.11. LC Conditions. With respect to the issuance of any Letter of Credit on the Closing Date, each of the LC
Conditions is satisfied.
11.2. Conditions Precedent to All Credit Extensions. Lenders shall not be required to
fund any Loans or otherwise extend any credit to or for the benefit of Borrowers and Issuing Bank
shall have no obligation to issue any Letter of Credit, unless and until each of the following
conditions has been and continues to be satisfied:
11.2.1. No Defaults. No Default or Event of Default exists at the time, or would
result from the funding, of any Loan or other extension of credit.
11.2.2. Representations and Warranties. Each of the representations and warranties by
an Obligor in any of the Loan Documents (including any representations and warranties in any
certificate furnished at any time in connection herewith) are true and correct, in all material
respects, on and as of the date of each extension of credit hereunder (except for those
representations or warranties which expressly relate to an earlier date).
11.2.3. No Litigation. No action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before any court, governmental
agency or legislative body to enjoin, restrain or prohibit, or to obtain damages in respect of, or
which is related to or arises out of, this Agreement or any of the other Loan Documents or the
consummation of the transactions contemplated hereby or thereby.
11.2.4. No Material Adverse Effect. No event shall have occurred since December 31,
2005, and no condition shall exist, which has or would be reasonably expected to have a Material
Adverse Effect.
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11.2.5. Borrowing Base Certificate. Agent shall have received each Borrowing Base
Certificate then required by the terms of this Agreement.
11.2.6. LC Conditions. With respect to the issuance of any Letter of Credit after the
Closing Date, each of the LC Conditions is satisfied.
11.2.7. Senior Notes Indenture. The incurrence of such Loan or other extension of
credit would not cause the aggregate amount of outstanding Exempted Debt to exceed the limit
thereon set forth in Section 4.2(b) of the Senior Notes Indenture, to the extent then applicable.
11.3. Inapplicability of Conditions
.. None of the conditions precedent set forth in Sections 11.1 or 11.2 shall be conditions to
the obligation of (i) each Participating Lender to make payments to Issuing Bank pursuant to
Section 2.3.2, (ii) each Lender to deposit with Agent such Lender’s Pro Rata share of a Borrowing
in accordance with Section 4.1.2, (iii) each Lender to fund its Pro Rata share of a Revolver Loan
to repay outstanding Swingline Loans to BofA as provided in Section 4.1.3(ii), (iv) each Lender to
pay any amount payable to Agent or any other Lender pursuant to this Agreement or (v) Agent to pay
any amount payable to any Lender pursuant to this Agreement.
11.4. Limited Waiver of Conditions Precedent. If Lenders shall make any Loan or
otherwise extend any credit to Borrowers under this Agreement at a time when any of the foregoing
conditions precedent are not satisfied (regardless of whether the failure of satisfaction of any
such conditions precedent was known or unknown to Agent or Lenders), the funding of such Loan or
other extension of credit shall not operate as a waiver of the right of Agent and Lenders to insist
upon the satisfaction of all conditions precedent with respect to each subsequent Borrowing
requested by Borrowers or a waiver of any Default or Event of Default as a consequence of the
failure of any such conditions to be satisfied, unless Agent, with the prior written consent of the
Required Lenders, in writing waives the satisfaction of any condition precedent, in which event
such waiver shall only be applicable for the specific instance given and only to the extent and for
the period of time expressly stated in such written waiver.
SECTION 12. EVENTS OF DEFAULT; REMEDIES ON DEFAULT
12.1. Events of Default. The occurrence or existence of any one or more of the
following events or conditions shall constitute an “Event of Default” (each of which Events of
Default shall be deemed to exist unless and until waived in accordance with the provisions of
Section 13.9):
12.1.1. Payment of Obligations. Borrowers shall fail to pay any of the Obligations on
the due date thereof (whether due at stated maturity, on demand, upon acceleration or otherwise);
provided, that, if Agent fails to charge Borrowers’ loan account in accordance with Section
4.1.1(ii) for any interest payment or other Obligation (other than principal) for which Borrower
Representative does not receive prior demand or notice of the amount and due date thereof at a time
when Borrowers have sufficient Availability to pay such amount in full (taking into account the
provisions of Section 4.1.1 and all other amounts charged to Borrowers’ loan account on such date),
then the non-payment of such interest or other Obligation shall not constitute an Event of Default
under this Section 12.1.1 unless and until Borrower Representative has received notice of the
amount due and Borrowers fail to pay such amount within 2 Business Days thereafter.
12.1.2. Misrepresentations. Any representation, warranty or other written statement
to Agent or any Lender by or on behalf of any Obligor, whether made in or furnished in compliance
with any of the Loan Documents (including any representation made in any Borrowing Base
Certificate), proves to have been false or misleading in any material respect when made or
furnished or when reaffirmed pursuant to Section 9.2.
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12.1.3. Breach of Specific Covenants. Any Obligor shall fail or neglect to perform, keep or observe: (i) any covenant contained
in Sections 7.3, 7.5, 8.1.1, 8.2.4, 8.2.5, 8.2.6, 8.4, 10.1.1, 10.1.9, 10.2 or 10.3 on the date
that such Borrower is required to perform, keep or observe such covenant; or (ii) any covenant
contained in Sections 8.1.2, 8.2.1, 8.2.2, 8.3, 8.5, 10.1.3 or 10.1.6 the breach of such other
covenant is not cured within 5 Business Days after the earlier of (a) the date on which a Senior
Officer of any Obligor acquired knowledge thereof and (b) the date on which written notice thereof
is delivered by Agent or any Lender to Borrower Representative.
12.1.4. Breach of Other Covenants. Any Obligor shall fail or neglect to perform, keep
or observe any covenant contained in this Agreement (other than a covenant which is dealt with
specifically elsewhere in Section 12.1) and the breach of such other covenant is not cured within
30 days after the earlier of (a) the date on which a Senior Officer of any Obligor acquired
knowledge thereof and (b) the date on which written notice thereof is delivered by Agent or any
Lender to Borrower Representative.
12.1.5. Default Under Security Documents/Other Agreements. Any Obligor shall default
in the due and punctual observance or performance of any covenant to be observed or performed by it
under any of the Other Agreements or Security Documents and the breach of such other covenant is
not cured within 30 days after the earlier of (a) the date on which a Senior Officer of any Obligor
acquired knowledge thereof and (b) the date on which written notice thereof is delivered by Agent
or any Lender to Borrower Representative.
12.1.6. Other Defaults. There shall occur any default or event of default on the part
of any Obligor or any Subsidiary under any agreement, document or instrument to which such Obligor
or such Subsidiary is a party or by which such Obligor or such Subsidiary or any of their
respective Properties is bound, creating or relating to any Debt (other than the Obligations) in
excess of $5,000,000, if the payment or maturity of such Debt may be accelerated in consequence of
such default or event of default or demand for payment of such Debt may be made; or any such Debt
shall be declared due and payable in accordance with the terms thereof prior to the stated maturity
of such Debt or be required to be prepaid (other than by a regularly scheduled required prepayment
or by a prepayment or redemption permitted under Section 10.2.6) prior to the stated maturity
thereof.
12.1.7. Uninsured Losses. There shall occur any loss, theft, damage or destruction of
any of the Collateral not fully covered (subject to such deductibles as Agent shall have permitted)
by insurance if the amount not covered by insurance exceeds $5,000,000.
12.1.8. Material Adverse Effect. There shall occur any event or condition that has a
Material Adverse Effect.
12.1.9. Solvency. Any Obligor (other than Xxxxxxx Sealing or Xxxxxxxx) shall cease to
be Solvent.
12.1.10. Insolvency Proceedings. Any Insolvency Proceeding shall be commenced by any Obligor; an Insolvency Proceeding is
commenced against any Obligor and any of the following events occur: such Obligor consents to the
institution of the Insolvency Proceeding against it, the petition commencing the Insolvency
Proceeding is not timely controverted by such Obligor, the petition commencing the Insolvency
Proceeding is not dismissed within 30 days after the date of the filing thereof (provided that, in
any event, during the pendency of any such period, Lenders shall be relieved from their obligation
to make Loans or otherwise extend credit to or for the benefit of Borrowers hereunder), an interim
trustee is appointed to take possession all or a substantial portion of the Properties of such
Obligor or to operate all or any substantial portion of the business of such Obligor or an order
for relief shall have
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been issued or entered in connection with such Insolvency Proceeding; or any
Obligor shall make an offer of settlement extension or composition to its unsecured creditors
generally.
12.1.11. Business Disruption. There shall occur a cessation of a substantial part of
the business of any Obligor for a period which may be reasonably expected to have a Material
Adverse Effect; or any Obligor shall suffer the loss or revocation of any license or permit now
held or hereafter acquired by such Obligor which is necessary to the continued or lawful operation
of its business and such loss or revocation would reasonably be expected to have a Material Adverse
Effect; or any Obligor shall be enjoined, restrained or in any way prevented by court, governmental
or administrative order from conducting all or any material part of its business affairs and such
event would reasonably be expected to have a Material Adverse Effect; or any material lease or
agreement pursuant to which any Obligor leases or occupies any premises on which any Collateral is
located shall be canceled or terminated prior to the expiration of its stated term and such
cancellation or termination has a Material Adverse Effect.
12.1.12. ERISA. Any of the following events shall occur and, as a result thereof, any
Obligor shall have incurred or would be reasonably likely to incur liability to one or more Plans
or to the Pension Benefit Guaranty Corporation (or any combination thereof) in excess of
$5,000,000: (i) a Reportable Event shall occur which Agent, in its Credit Judgment, shall determine
constitutes grounds for the termination by the Pension Benefit Guaranty Corporation of any Plan or
for the appointment by the appropriate United States district court of a trustee for any Plan, (ii)
any Plan shall be terminated or any such trustee shall be requested or appointed, or (iii) any
Obligor is in “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a
Plan resulting from such Obligor’s complete or partial withdrawal from such Plan.
12.1.13. Challenge to or Insufficiency of Loan Documents. Any Obligor or any of its
Affiliates shall challenge or contest (or support the challenge or contest of others) in any
action, suit or proceeding the validity or enforceability of any of the Loan Documents, the
legality or enforceability of any of the Obligations or the perfection or priority of any Lien
granted to Agent, or any of the Loan Documents ceases to be in full force or effect for any reason
other than a full or partial waiver or release by Agent and Lenders in accordance with the terms
thereof.
12.1.14. Judgment. One or more judgments, orders, decrees or arbitration awards is
entered against Parent, any Borrower or any of their respective Subsidiaries involving in the
aggregate liability (to the extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage) as to any single or related or unrelated series of transactions,
incidents or conditions, of $5,000,000 or more and the
same shall remain unsatisfied, unvacated and unstayed pending appeal for a period of 30 days
after the entry thereof.
12.1.15. Repudiation of or Default Under Guaranty. Any Guarantor shall revoke or
attempt to revoke the Guaranty signed by such Guarantor, shall repudiate such Guarantor’s liability
thereunder, or shall be in default under the terms thereof, or shall fail to confirm in writing,
promptly after receipt of Agent’s written request therefor, such Guarantor’s ongoing liability
under the Guaranty in accordance with the terms thereof.
12.1.16. Criminal Forfeiture. Any Obligor (or any of its Senior Officers) is criminally
convicted for (i) a felony committed in the conduct of the business of such Obligor or (ii) a
violation of any state or federal law (including the Controlled Substances Act, the Money
Laundering Control Act of 1986, and the Illegal Exportation of War Materials Act), and in either
case under clause (i) or (ii) such event would reasonably be expected to lead to a
forfeiture of any material Collateral.
12.1.17. Change of Control. A Change of Control shall occur.
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12.2. Acceleration of Obligations; Termination of Commitments. Without in any way
limiting the right of Agent to demand payment of any portion of the Obligations payable on demand
in accordance with this Agreement, upon or at any time after the occurrence of an Event of Default
(other than pursuant to Section 12.1.10) and for so long as such Event of Default shall exist,
Agent may in its discretion (and, upon receipt of written instructions to do so from the Required
Lenders, shall) (a) declare the principal of and any accrued interest on the Loans and all other
Obligations owing under any of the Loan Documents to be, whereupon the same shall become without
further notice or demand (all of which notice and demand each Borrower expressly waives), forthwith
due and payable and Borrowers shall forthwith pay to Agent the entire principal of and accrued and
unpaid interest on the Loans and other Obligations plus reasonable attorneys’ fees and court costs
if such principal and interest are collected by or through an attorney-at-law and (b) terminate the
Revolver Commitments; provided, however, that upon the occurrence of an Event of
Default specified in Section 12.1.10, all of the Obligations shall become automatically due and
payable without declaration, notice or demand by Agent to or upon any Borrower or any other Obligor
and the Revolver Commitments shall automatically terminate as if terminated by Agent pursuant to
Section 6.2.1 and with the effects specified in Section 6.2.3.
12.3. Other Remedies. Upon and after the occurrence of an Event of Default and for so
long as such Event of Default shall exist, Agent may in its discretion (and, upon receipt of
written direction of the Required Lenders, shall) institute any Enforcement Action and exercise
from time to time the following rights and remedies:
12.3.1. All of the rights and remedies of a secured party under the UCC or under other
Applicable Law, and all other legal and equitable rights to which Agent may be entitled under any
of the Loan Documents, all of which rights and remedies shall be cumulative and shall be in
addition to any other rights or remedies contained in this Agreement or any of the other Loan
Documents, and none of which shall be exclusive.
12.3.2. The right to collect all amounts at any time payable to an Obligor from any Account
Debtor or other Person at any time indebted to such Obligor.
12.3.3. The right to take immediate possession of any of the Collateral, and to (i) require
Obligors to assemble the Collateral, at Obligors’ expense, and make it available to Agent at a
place designated by Agent which is reasonably convenient to both parties, and (ii) enter any
premises where any of the Collateral shall be located and to keep and store the Collateral on said
premises until sold (and if said premises be owned or leased by an Obligor, then such Obligor
agrees not to charge Agent for storage of any Collateral therein).
12.3.4. The right to sell or otherwise dispose of all or any Collateral in its then
condition, or after any further manufacturing or processing thereof, at public or private sale or
sales, with such notice as may be required by Applicable Law, in lots or in bulk, for cash or on
credit, all as Agent, in its discretion, may deem advisable. Each Obligor agrees that any
requirement of notice to any Obligor of any proposed public or private sale or other disposition
of Collateral by Agent shall be deemed reasonable notice thereof if given at least 10 days prior
thereto, and such sale may be at such locations as Agent may designate in said notice. Agent
shall have the right to conduct such sales on any Obligor’s premises, without charge therefor, and
such sales may be adjourned from time to time in accordance with Applicable Law. Agent shall have
the right to sell, lease or otherwise dispose of the Collateral, or any part thereof, for cash,
credit or any combination thereof, and Agent may purchase all or any part of the Collateral at
public or, if permitted by law, private sale and, in lieu of actual payment of such purchase
price, may set off the amount of such price against the Obligations. The proceeds realized from
the sale or other disposition of any Collateral may be applied, after allowing 2 Business
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Days for
collection, first to any Extraordinary Expenses incurred by Agent and then to the remainder of the
Obligations as specified in Section 5.5.1.
12.3.5. The right to obtain the appointment of a receiver, without notice of any kind
whatsoever, to take possession of the Collateral and to exercise such rights and powers as the
court appointing such receiver shall confer upon such receiver.
12.3.6. The right to require Borrowers to Cash Collateralize outstanding Letters of Credit,
and, if Borrowers fail promptly to make such deposit, Lenders may (and shall upon the direction of
the Required Lenders) advance such amount as a Revolver Loan (whether or not an Out-of-Formula
Condition exists or is created thereby or the Commitments have been terminated). Any such deposit
or advance shall be held by Agent in the Cash Collateral Account to fund future payments on any
Letter of Credit. When all Letters of Credit have been drawn upon or expired, any amounts
remaining in the Cash Collateral Account shall be applied against any outstanding Obligations, or,
after Full Payment of all Obligations, returned to Borrowers.
Agent is hereby granted, solely during an Event of Default, an irrevocable, non-exclusive license
or other right to use, license or sub-license (exercisable without payment of royalty or other
compensation to any Obligor or any other Person) any or all of each Obligor’s Intellectual Property
and all of each Obligor’s computer hardware and software trade secrets, brochures, customer lists,
promotional and advertising materials, labels, and packaging materials, and any Property of a
similar nature, in advertising for sale, marketing, selling and collecting and in completing the
manufacturing of any Collateral, and each Obligor’s rights under all licenses and all franchise
agreements shall inure to Agent’s benefit.
12.4. Setoff. In addition to any Liens granted under any of the Loan Documents and
any rights now or hereafter available under Applicable Law, Agent and each Lender (and each of
their respective Affiliates)
is hereby authorized by Obligors at any time that an Event of Default exists, without notice
to any Obligors or any other Person (any such notice being hereby expressly waived), to set off and
to appropriate and apply any and all deposits, general or special (including certificates of
deposit whether matured or unmatured (but not including trust accounts)) and any other Debt at any
time held or owing by such Lender or any of their Affiliates to or for the credit or the account of
any Obligor against and on account of the Obligations of Obligors arising under the Loan Documents
to Agent, such Lender or any of their Affiliates, including all Loans and LC Obligations and all
claims of any nature or description arising out of or in connection with this Agreement,
irrespective of whether or not (i) Agent or such Lender shall have made any demand hereunder, (ii)
Agent, at the request or with the consent of the Required Lenders, shall have declared the
principal of and interest on the Loans and other amounts due hereunder to be due and payable as
permitted by this Agreement and even though such Obligations may be contingent or unmatured or
(iii) the Collateral for the Obligations is adequate. Notwithstanding the foregoing, each of Agent
and Lenders agree with each other that it shall not, without the express consent of the Required
Lenders, and that it shall (to the extent that it is lawfully entitled to do so) upon the request
of the Required Lenders, exercise its setoff rights hereunder against any accounts of any Obligor
now or hereafter maintained with Agent, such Lender or any Affiliate of any of them, but no Obligor
shall have any claim or cause of action against Agent or any Lender for any setoff made without the
consent of the Required Lenders and the validity of any such setoff shall not be impaired by the
absence of such consent. If any party (or its Affiliate) exercises the right of setoff provided
for hereunder, such party shall be obligated to share any such setoff in the manner and to the
extent required by Section 13.5.
12.5. Remedies Cumulative; No Waiver.
12.5.1. All covenants, conditions, provisions, warranties, guaranties, indemnities, and other
undertakings of Obligors contained in this Agreement, the other Loan Documents, or any other
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agreement between Agent or any Lender and any Obligor, heretofore, concurrently, or hereafter
entered into, shall be deemed cumulative to and not in derogation or substitution of any of the
terms, covenants, conditions, or agreements of Obligors herein contained. The rights and remedies
of Agent and Lenders under this Agreement and the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies that Agent or any Lender would otherwise have.
12.5.2. The failure or delay of Agent or any Lender to require strict performance by Obligors
of any provision of any of the Loan Documents or to exercise or enforce any rights, Liens, powers
or remedies under any of the Loan Documents or with respect to any Collateral shall not operate as
a waiver of such performance, Liens, rights, powers and remedies, but all such requirements,
Liens, rights, powers, and remedies shall continue in full force and effect until all Loans and
all other Obligations owing or to become owing from Obligors to Agent and Lenders shall have been
fully satisfied. None of the undertakings, agreements, warranties, covenants and representations
of Obligors contained in this Agreement or any of the other Loan Documents and no Event of Default
shall be deemed to have been suspended or waived by Agent or any Lender, unless such suspension or
waiver is by an instrument in writing specifying such suspension or waiver and is signed by a duly
authorized representative of Agent or such Lender and directed to Borrower Representative.
12.5.3. If Agent or any Lender shall accept performance by an Obligor, in whole or in part,
of any obligation that such Obligor is required by any of the Loan Documents to perform only when
a Default or Event of Default exists, or if Agent or any Lender shall exercise any right or remedy
under any of the Loan Documents that may not be exercised other than when a Default or Event of
Default exists, Agent’s or Lender’s acceptance of such performance by an Obligor or Agent’s or
Lender’s exercise of any such right or remedy shall not operate to waive any such Event of Default
or to preclude the exercise by Agent or any Lender of any other right or remedy, unless otherwise
expressly agreed in writing by Agent or such Lender, as the case may be.
SECTION 13. AGENT
13.1. Appointment, Authority and Duties of Agent.
13.1.1. Each Lender hereby irrevocably appoints and designates BofA as Agent to act as herein
specified. Agent may, and each Lender by becoming a party to this Agreement shall be deemed
irrevocably to have authorized Agent to, enter into all Loan Documents to which Agent is or is
intended to be a party and all amendments hereto and all Security Documents at any time executed
by any Obligor, for its benefit and the Pro Rata benefit of Lenders and, except as otherwise
provided in this Section 13, to exercise such rights and powers under this Agreement and the other
Loan Documents as are specifically delegated to Agent by the terms hereof and thereof, together
with such other rights and powers as are reasonably incidental thereto. Each Lender agrees that
any action taken by Agent or the Required Lenders in accordance with the provisions of this
Agreement or the other Loan Documents, and the exercise by Agent or the Required Lenders of any of
the powers set forth herein or therein, together with such other powers as are reasonably
incidental thereto, shall be authorized and binding upon all Lenders. Without limiting the
generality of the foregoing, Agent shall have the sole and exclusive right and authority to (a)
act as the disbursing and collecting agent for Lenders with respect to all payments and
collections arising in connection with this Agreement and the other Loan Documents; (b) execute
and deliver, as Agent, each Loan Document (including each Lien Waiver and Subordination Agreement)
and accept delivery of each such agreement by any Obligor or any other Person; (c) act as
collateral agent for Secured Parties for purposes of the
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perfection of all security interests and
Liens created by this Agreement or the Security Documents and, subject to the direction of the
Required Lenders, for all other purposes stated therein, provided that Agent hereby appoints,
authorizes and directs each Lender to act as a collateral sub-agent for Agent and the other
Lenders for purposes of the perfection of all security interests and Liens with respect to an
Obligor’s Deposit Accounts maintained with, and all cash and Cash Equivalents held by, such
Lender; (d) subject to the direction of the Required Lenders, manage, supervise or otherwise deal
with the Collateral; and (e) except as may be otherwise specifically restricted by the terms of
this Agreement and subject to the direction of the Required Lenders, exercise all remedies given
to Agent with respect to any of the Collateral under the Loan Documents relating thereto,
Applicable Law or otherwise. The duties of Agent shall be ministerial and administrative in
nature, and Agent shall not have by reason of this Agreement or any other Loan Document a
fiduciary relationship with any Lender (or any Lender’s participants). Unless and until its
authority to do so is revoked in writing by Required Lenders, Agent alone shall be authorized to
determine whether any Accounts or Inventory constitute Eligible Accounts or Eligible Inventory
(basing such determination in each case upon the meanings given to such terms in Section 1), or
whether to impose or release any reserve, and to exercise its own Credit Judgment in connection
therewith, which determinations and judgments, if exercised in good faith, shall exonerate Agent
from any liability to Lenders or any other Person for any errors in judgment.
13.1.2. Agent (which term, as used in this sentence, shall include reference to Agent’s
officers, directors, employees, attorneys, agents and Affiliates and to the officers, directors,
employees, attorneys and agents of Agent’s Affiliates) shall not: (a) have any duties or
responsibilities except those expressly set forth in this Agreement and the other Loan Documents
or (b) be required to take, initiate or conduct any Enforcement Action (including any litigation,
foreclosure or collection proceedings hereunder or under any of the other Loan Documents) except
to the extent directed to do so in writing by the Required Lenders during the continuance of any
Event of Default. The conferral upon Agent of any right hereunder shall not imply a duty on
Agent’s part to exercise any such right unless instructed to do so by the Required Lenders in
accordance with this Agreement.
13.1.3. Agent may perform any of its duties by or through its agents and employees and may
employ one or more Agent Professionals and shall not be responsible for the negligence or
misconduct of any such Agent Professionals selected by it with reasonable care. Obligors
shall promptly (and in any event, on demand) reimburse Agent for all reasonable out-of-pocket
expenses (including all Extraordinary Expenses) incurred by Agent pursuant to any of the
provisions hereof or of any of the other Loan Documents or in the execution of any of Agent’s
duties hereby or thereby created or in the exercise of any right or power herein or therein
imposed or conferred upon it or Lenders (excluding, however, general overhead and other in-house
expenses, except as expressly permitted hereunder), and each Lender agrees promptly to pay to
Agent, on demand, such Lender’s Pro Rata share of any such reimbursement for expenses (including
Extraordinary Expenses) that is not timely made by Obligors to Agent.
13.1.4. The rights, remedies, powers and privileges conferred upon Agent hereunder and under
the other Loan Documents may be exercised by Agent without the necessity of the joinder of any
other parties unless otherwise required by Applicable Law. If Agent shall request instructions
from the Required Lenders with respect to any act or action (including the failure to act) in
connection with this Agreement or any of the other Loan Documents, Agent shall be entitled to
refrain from such act or taking such action unless and until Agent shall have received
instructions from the Required Lenders; and Agent shall not incur liability to any Person by
reason of so refraining. Without limiting the foregoing, no Lender shall have any right of action
whatsoever against Agent as a result of Agent acting or refraining from acting hereunder or under
any of the Loan Documents pursuant to or in accordance with the instructions of the Required
Lenders except for Agent’s own gross negligence or willful misconduct in connection with any
action taken by it. Notwithstanding anything to the contrary contained in this Agreement, Agent
shall not be required to take any action that is in its opinion contrary to Applicable Law or the
terms of any of the Loan Documents or that would in its reasonable opinion subject it or any of
its officers, employees or directors to personal liability.
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13.1.5. Agent shall promptly, upon receipt thereof, forward to each Lender (i) copies of any
significant written notices, reports, certificates and other information received by Agent from
any Obligor (but only if and to the extent such Obligor is not required by the terms of the Loan
Documents to supply such information directly to Lenders) and (ii) copies of the results of any
field audits or other examinations made or prepared by or on behalf of Agent with respect to
Obligors or the Collateral (each, a “Report” and collectively, “Reports”).
13.2. Agreements Regarding Collateral and Examination Reports.
13.2.1. Lenders hereby irrevocably authorize Agent to release any Lien with respect to any
Collateral (i) upon the termination of the Commitments and Full Payment of the Obligations, (ii)
that is the subject of an Asset Disposition which is a Permitted Asset Disposition under clause
(i) of the definition thereof or which Borrower Representative otherwise certifies in writing
to Agent is a Permitted Asset Disposition (and Agent may rely conclusively on any such certificate
without further inquiry), (iii) valued in the aggregate not in excess of $1,000,000 during each
Fiscal Year without the prior written authorization of any of the Lenders, (iv) valued in the
aggregate not in excess of $2,000,000 during each Fiscal Year with the prior written authorization
of the Required Lenders, or (v) with the written consent of all Lenders. Agent shall have no
obligation whatsoever to any of the Lenders to assure that any of the Collateral exists or is owned
by an Obligor or is cared for, protected or insured or has been encumbered, or that Agent’s Liens
have been properly, sufficiently or lawfully created, perfected, protected or enforced or are
entitled to any particular priority or to exercise any duty of care with respect to any of the
Collateral.
13.2.2. Agent and Lenders each hereby appoints each other Lender as agent for the purpose of
perfecting Liens (for the benefit of Secured Parties) in any Collateral that, in accordance with
the UCC or any other Applicable Law, can be perfected only by possession. Should any Lender obtain
possession of any such Collateral, such Lender shall notify Agent thereof, and, promptly upon
Agent’s request therefor, shall deliver such Collateral to Agent or otherwise deal with such
Collateral in accordance with Agent’s instructions.
13.2.3. Each Lender agrees that neither BofA nor Agent makes any representation or warranty as
to the accuracy or completeness of any Report and shall not be liable for any information contained
in or omitted from any such Report; agrees that the Reports are not intended to be comprehensive
audits or examinations and that BofA or Agent or any other Person performing any audit or
examination will inspect only specific information regarding Obligations or the Collateral and will
rely significantly upon Obligors’ books and records as well as upon representations of Obligors’
officers and employees; agrees to keep all Reports confidential and strictly for its internal use
and not to distribute the Reports (or the contents thereof) to any Person (except to its
Participants, attorneys, accountants and other Persons with whom such Lender has a confidential
relationship) or use any Report in any other manner; and, without limiting the generality of any
other indemnification contained herein, agrees to hold Agent and any other Person preparing a
Report harmless from any action that the indemnifying Lender may take or conclusion the
indemnifying Lender may reach or draw from any Report in connection with any Loans or other credit
accommodations that the indemnifying Lender has made or may make to Borrowers, or the indemnifying
Lender’s participation in, or its purchase of, a loan or loans of any Obligor, and to pay and
protect, and indemnify, defend and hold Agent and each other such Person preparing a Report
harmless from and against all claims, actions, proceedings, damages, costs, expenses and other
amounts (including attorneys’ fees) incurred by Agent and any such other Person preparing a Report
as the direct or indirect result of any third parties who might obtain all or any part of any
Report through the indemnifying Lender.
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13.3. Reliance By Agent. Agent shall be entitled to rely, and shall be fully
protected in so relying, upon any certification, notice or other communication (including any
thereof by telephone, telex, telegram, telecopier message or cable) believed by it to be genuine
and correct and to have been signed, sent or made by or on behalf of the proper Person or Persons,
and upon advice and statements of Agent Professionals selected by Agent with reasonable care.
Without limiting the generality of the foregoing, Agent may rely upon any Notice of Borrowing, LC
Request, Notice of Conversion/Continuation or any similar notice or request believed by Agent to be
genuine. As to any matters not expressly provided for by this Agreement or any of the other Loan
Documents, Agent shall in all cases be fully protected in acting or refraining from acting
hereunder and thereunder in accordance with the instructions of the Required Lenders, and such
instructions of the Required Lenders and any action taken or failure to act pursuant thereto shall
be binding upon Lenders.
13.4. Action Upon Default. Agent shall not be deemed to have knowledge of the
occurrence of a Default or an Event of Default unless it has received written notice from a Lender
or any or all Borrowers specifying the occurrence and nature of such Default or Event of Default.
If Agent shall receive such a notice of a Default or an Event of Default or shall otherwise acquire
actual knowledge of any Default or Event of Default, Agent shall promptly notify Lenders and Agent
may (and shall upon written direction of the Required Lenders) take such action and assert such
rights and remedies under this Agreement and the other Loan Documents as Agent shall deem necessary
or appropriate, or shall refrain from taking such action and asserting such rights, as the Required
Lenders shall direct in writing from time to time. If any Lender shall receive a notice of a
Default or an Event of Default or shall otherwise acquire actual knowledge of any Default or Event
of Default, such Lender shall promptly notify Agent and the other Lenders in writing. As provided
in Section 13.3, Agent shall not be subject to any liability by reason of
acting or refraining to act pursuant to any request of the Required Lenders except for its own
willful misconduct or gross negligence in connection with any action taken by it. In no event
shall the Required Lenders, without the prior written consent of each Lender, direct Agent to
accelerate and demand payment of the Loans held by one Lender without accelerating and demanding
payment of all other Loans or to terminate the Commitments of one or more Lenders without
terminating the Commitments of all Lenders. Each Lender agrees that, except as otherwise provided
in any of the Loan Documents or with the written consent of Agent and the Required Lenders, it will
not take any legal action or institute any action or proceeding against any Obligor with respect to
any of the Obligations or Collateral or accelerate or otherwise enforce its portion of the
Obligations. Without limiting the generality of the foregoing, none of Lenders may exercise any
right that it might otherwise have under Applicable Law to credit bid at foreclosure sales, UCC
sales or other similar sales or dispositions of any of the Collateral except as authorized by Agent
and the Required Lenders. Notwithstanding anything to the contrary set forth in this Section 13.4
or elsewhere in this Agreement, each Lender shall be authorized to take such action to preserve or
enforce its rights against any Obligor where a deadline or limitation period is otherwise
applicable and would, absent the taking of specified action, bar the enforcement of Obligations
held by such Lender against such Obligor, including the filing of proofs of claim in any Insolvency
Proceeding.
13.5. Ratable Sharing. If any Lender shall obtain any payment or reduction (including
any amounts received as adequate protection of a bank account deposit treated as cash collateral
under the Bankruptcy Code) of any Obligation (whether voluntary, involuntary, through the exercise
of any right of set-off or otherwise) in excess of its Pro Rata share of payments or reductions on
account of such Obligations obtained by all of the Lenders, such Lender shall forthwith (i) notify
the other Lenders and Agent of such receipt and (ii) purchase from the other Lenders such
participations in the affected Obligations as shall be necessary to cause such purchasing Lender to
share the excess payment or reduction, net of costs incurred in connection therewith, on a Pro Rata
basis, provided that if all or any portion of such excess payment or reduction is
thereafter recovered from such purchasing Lender or additional costs are incurred, the purchase
shall be rescinded and the purchase price restored to the extent
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of such recovery or such
additional costs, but without interest. Each Obligor agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 13.5 may, to the fullest extent
permitted by Applicable Law, exercise all of its rights of payment (including the right of set-off)
with respect to such participation as fully as if such Lender were the direct creditor of Obligors
in the amount of such participation.
13.6. Indemnification of Agent Indemnitees.
13.6.1. Each Lender agrees to indemnify and defend the Agent Indemnitees (to the extent not
reimbursed by Obligors, but without limiting the indemnification obligations of Obligors under any
of the Loan Documents), on a Pro Rata basis, and to hold each of the Agent Indemnitees harmless
from and against, any and all Claims which may be imposed on, incurred by or asserted against any
of the Agent Indemnitees in any way related to or arising out of any of the Loan Documents or
referred to herein or therein or the transactions contemplated thereby (including the costs and
expenses which Obligors are obligated to pay under Section 15.2 or amounts Agent may be called
upon to pay in connection with any lockbox or Dominion Account arrangement contemplated hereby or
under any indemnity, guaranty or other assurance of payment or performance given by Agent pursuant
to Section 3.4.2 or the enforcement of any of the terms of any Loan Documents).
13.6.2. Without limiting the generality of the foregoing provisions of this Section 13.6, if
Agent should be sued by any receiver, trustee in bankruptcy, debtor-in-possession or other Person
on account of any alleged preference or fraudulent transfer received or alleged to have been
received from any Borrower or any other Obligor as the result of any transaction under the Loan
Documents, then in
such event any monies paid by Agent in settlement or satisfaction of such suit, together with
all Extraordinary Expenses incurred by Agent in the defense of same, shall be promptly reimbursed
to Agent by Lenders to the extent of each Lender’s Pro Rata share.
13.6.3. Without limiting the generality of the foregoing provisions of this Section 13.6, if
at any time (whether prior to or after the Commitment Termination Date) any action or proceeding
shall be brought against any of the Agent Indemnitees by an Obligor or by any other Person
claiming by, through or under an Obligor, to recover damages for any act taken or omitted by Agent
under any of the Loan Documents or in the performance of any rights, powers or remedies of Agent
against any Obligor, any Account Debtor, the Collateral or with respect to any Loans, or to obtain
any other relief of any kind on account of any transaction involving any Agent Indemnitees under
or in relation to any of the Loan Documents, each Lender agrees to indemnify, defend and hold the
Agent Indemnitees harmless with respect thereto and to pay to the Agent Indemnitees such Lender’s
Pro Rata share of such amount as any of the Agent Indemnitees shall be required to pay by reason
of a judgment, decree, or other order entered in such action or proceeding or by reason of any
compromise or settlement agreed to by the Agent Indemnitees, including all interest and costs
assessed against any of the Agent Indemnitees in defending or compromising such action, together
with attorneys’ fees and other legal expenses paid or incurred by the Agent Indemnitees in
connection therewith; provided, however, that no Lender shall be liable to any
Agent Indemnitee for any of the foregoing to the extent that they arise solely from the willful
misconduct or gross negligence of such Agent Indemnitee. In Agent’s discretion, Agent may also
reserve for or satisfy any such judgment, decree or order from proceeds of Collateral prior to any
distributions therefrom to or for the account of Lenders.
13.7. Limitation on Responsibilities of Agent. Agent shall in all cases be fully
justified in failing or refusing to act hereunder unless it shall have received further assurances
to its satisfaction from Lenders of their indemnification obligations under Section 13.6 against
any and all Indemnified Claims which may be incurred by Agent by reason of taking or continuing to
take any such action. Agent shall not be liable to Lenders for any action taken or omitted to be
taken under or in connection with this
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Agreement or the other Loan Documents except as a result and
to the extent of losses caused by the Agent’s actual gross negligence or willful misconduct. Agent
does not assume any responsibility for any failure or delay in performance or breach by any Obligor
or any Lender of its obligations under this Agreement or any of the other Loan Documents. Agent
does not make to Lenders, and no Lender makes to Agent or the other Lenders, any express or implied
warranty, representation or guarantee with respect to the Obligations, the Collateral, the Loan
Documents or any Obligor. Neither Agent nor any of its officers, directors, employees, attorneys
or agents shall be responsible to Lenders, and no Lender nor any of its agents, attorneys or
employees shall be responsible to Agent or the other Lenders, for: (i) any recitals, statements,
information, representations or warranties contained in any of the Loan Documents or in any
certificate or other document furnished pursuant to the terms hereof; (ii) the execution, validity,
genuineness, effectiveness or enforceability of any of the Loan Documents; (iii) the genuineness,
enforceability, collectibility, value, sufficiency, location or existence of any Collateral, or the
validity, extent, perfection or priority of any Lien therein; (iv) the validity, enforceability or
collectibility of any the Obligations; or (v) the assets, liabilities, financial condition, results
of operations, business, creditworthiness or legal status of any Obligor or any Account Debtor.
Neither Agent nor any of its officers, directors, employees, attorneys or agents shall have any
obligation to any Lender to ascertain or inquire into the existence of any Default or Event of
Default, the observance or performance by any Obligor of any of the duties or agreements of such
Obligor under any of the Loan Documents or the satisfaction of any conditions precedent contained
in any of the Loan Documents. Agent may consult with and employ legal counsel, accountants and
other experts and shall be entitled to act upon, and shall be fully protected in any action taken
in good faith reliance upon, any advice given by such experts.
13.8. Successor Agent and Co-Agents.
13.8.1. Subject to the appointment and acceptance of a successor Agent as provided below,
Agent may resign at any time by giving at least 30 days written notice thereof to each Lender and
Borrower Representative. Upon receipt of any notice of such resignation, the Required Lenders,
after prior consultation with (but without having to obtain consent of) each Lender, shall have
the right to appoint a successor Agent which shall be (i) a Lender, (ii) a United States based
affiliate of a Lender, or (iii) a commercial bank that is organized under the laws of the United
States or of any State thereof and has a combined capital surplus of at least $500,000,000 and,
provided no Default or Event of Default then exists, is reasonably acceptable to Borrower
Representative (and for purposes hereof, any successor to BofA shall be deemed acceptable to
Borrower Representative). If no successor agent is appointed prior to the effective date of the
resignation of Agent, then Agent may appoint, after consultation with Lenders and Borrower
Representative, a successor agent from among Lenders. Upon the acceptance by a successor Agent of
an appointment to serve as Agent hereunder, such successor Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring Agent without
further act, deed or conveyance, and the retiring Agent shall be discharged from its duties and
obligations hereunder but shall continue to enjoy the benefits of the indemnification set forth in
Sections 13.6 and 15.2. After any retiring Agent’s resignation hereunder as Agent, the provisions
of this Section 13 (including the provisions of Section 13.6) shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it was acting as Agent.
Notwithstanding anything to the contrary contained in this Agreement, any successor by merger or
acquisition of the stock or assets of BofA shall continue to be Agent hereunder without further
act on the part of the parties hereto unless such successor shall resign in accordance with the
provisions hereof.
13.8.2. It is the intent of the parties that there shall be no violation of any Applicable
Law denying or restricting the right of financial institutions to transact business as agent or
otherwise in any jurisdiction. In case of litigation under any of the Loan Documents, or in case
Agent deems that by reason of present or future laws of any jurisdiction Agent might be prohibited
from exercising any of the powers, rights or remedies granted to Agent or Lenders hereunder or
under any of the Loan Documents
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or from holding title to or a Lien upon any Collateral or from
taking any other action which may be necessary hereunder or under any of the Loan Documents, Agent
may appoint an additional Person (with the consent of Borrower Representative absent an Event of
Default, such consent not to be unreasonably withheld or delayed) as a separate collateral agent
or co-collateral agent which is not so prohibited from taking any of such actions or exercising
any of such powers, rights or remedies. If Agent shall appoint an additional Person as a separate
collateral agent or co-collateral agent as provided above, each and every remedy, power, right,
claim, demand or cause of action intended by any of the Loan Documents to be exercised by or
vested in or conveyed to Agent with respect thereto shall be exercisable by and vested in such
separate collateral agent or co-collateral agent, but only to the extent necessary to enable such
separate collateral agent or co-collateral agent to exercise such powers, rights and remedies, and
every covenant and obligation necessary to the exercise thereof by such separate collateral agent
or co-collateral agent shall run to and be enforceable by either of them. Should any instrument
from Lenders be required by the separate collateral agent or co-collateral agent so appointed by
Agent in order more fully and certainly to vest in and confirm to him or it such rights, powers,
duties and obligations, any and all of such instruments shall, on request, be executed,
acknowledged and delivered by Lenders whether or not a Default or Event of Default then exists.
In case any separate collateral agent or co-collateral agent, or a successor to either, shall die,
become incapable of acting, resign or be removed, all the estates, properties, rights, powers,
duties and obligations of such separate collateral agent or co-collateral agent, so far as
permitted by Applicable Law, shall vest in and be exercised by the Agent until the appointment of
a new collateral agent or successor to such separate collateral agent or co-collateral agent.
13.9. Consents, Amendments and Waivers; Out-of-Formula Loans.
13.9.1. No amendment or modification of any provision of this Agreement or any of the other
Loan Documents, nor any waiver of any Default or Event of Default, shall be effective without the
prior written agreement or consent of the Required Lenders; provided, however,
that
(i) without the prior written consent of Agent, no amendment or waiver shall be
effective with respect to any provision in any of the Loan Documents (including Section 3.4,
4.1.3 and this Section 13) to the extent such provision relates to the rights, duties,
immunities, exculpation, indemnification or discretion of Agent;
(ii) without the prior written consent of Issuing Bank, no amendment or waiver with
respect to any of the LC Obligations or the provisions of Sections 2.3 or 11.2.6 shall be
effective;
(iii) without the prior written consent of each affected Lender, except as otherwise
expressly provided in this Agreement, no amendment or waiver shall be effective that would
(1) increase or otherwise modify any Commitment of such Lender (other than to reduce such
Lender’s Commitment on a proportionate basis with the same Commitments of other Lenders);
(2) alter (other than to increase) the rate of interest payable in respect of any
Obligations owed to such Lender; provided that only the consent of the Required Lenders
shall be required to waive the applicability of any post-default increase in interest rates;
(3) waive any interest or fee payable to such Lender pursuant to Section 3; or (4)
subordinate the payment of any Obligations owed to such Lender to the payment of any Debt;
and
(iv) without the prior written consent of all Lenders, no amendment or waiver shall be
effective that would (1) waive any Default or Event of Default if the Default or Event of
Default relates to any Obligor’s failure to observe or perform any covenant that may not be
amended without the unanimous written consent of Lenders (and, where so provided
hereinafter, the written consent of Agent) as hereinafter set forth; (2) alter the
provisions of Sections 3.6, 3.7, 3.8,
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3.10, 5.5, 5.6, 7.1 (except to add to the categories
of Property of Obligors constituting Collateral), 13.9, 15.2, 15.3, 15.4 or 15.16; (3) amend
the definitions of “Pro Rata” or “Required Lenders” (and the other defined terms used in
such definitions), or any provision of this Agreement obligating Agent to take certain
actions at the direction of the Required Lenders, or any provision of any of the Loan
Documents regarding the Pro Rata treatment or obligations of Lenders; (4) amend the
definition of “Eligible Accounts,” “Eligible Inventory,” “Excess Collateral Providers
Accounts and Inventory Borrowing Base,” “Excess Collateral Providers Borrowing Base,”
“Excess Collateral Providers Inventory Formula Amount,” “Xxxxxxx Sealing Accounts and
Inventory Borrowing Base,” “Xxxxxxx Sealing Borrowing Base,” or “Xxxxxxx Sealing Inventory
Formula Amount”; (5) increase any of the percentages set forth in the definitions of Xxxxxxx
Sealing Accounts and Inventory Borrowing Base, Xxxxxxx Sealing Inventory Formula Amount,
Excess Collateral Providers Borrowing Base or Excess Collateral Providers Inventory Formula
Amount; (6) subordinate the priority of any Liens granted to Agent under any of the Loan
Documents to consensual, non-statutory Liens granted after the Closing Date to any other
Person, except as currently provided in or contemplated by the Loan Documents (including a
subordination in favor of the holders of Permitted Liens that are permitted to have priority
over Agent’s Liens) and except for Liens granted by an Obligor to financial institutions
with respect to amounts on deposit with such financial institutions to cover returned items,
processing and analysis charges and other charges in the Ordinary Course of Business that
relate to deposit accounts with such financial institutions; or (7) knowingly release any
Obligor that is Solvent from liability for any of the Obligations (other than as permitted
hereunder).
The making of any Loans hereunder by any Lender during the existence of a Default or Event of
Default shall not be deemed to constitute a waiver of such Default or Event of Default. Any waiver
or consent granted by Lenders hereunder shall be effective only if in writing and then only in the
specific instance and for the specific purpose for which it was given.
13.9.2. No Obligor will, directly or indirectly, pay or cause to be paid any remuneration or
other thing of value, whether by way of supplemental or additional interest, fee or otherwise, to
any Lender (in its capacity as a Lender hereunder) as consideration for or as an inducement to the
consent to or agreement by such Lender with any waiver or amendment of any of the terms and
provisions of this Agreement or any of the other Loan Documents, unless such remuneration or thing
of value is concurrently paid, on the same terms, on a Pro Rata or other mutually agreed upon
basis to all Lenders; provided, however, that Obligors may contract to pay a fee
only to those Lenders who actually vote in writing to approve any waiver or amendment of the terms
and provisions of this Agreement or any of the other Loan Documents to the extent that such waiver
or amendment may be implemented by vote of the Required Lenders and such waiver or amendment is in
fact approved (and the Obligors may exercise rights under Section 13.17).
13.9.3. Any request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is a Lender, shall be conclusive and binding upon any
Transferee of such Lender.
13.9.4. Unless otherwise directed in writing by the Required Lenders, Agent may require
Lenders to honor requests by Borrowers for Out-of-Formula Loans (in which event, and
notwithstanding anything to the contrary set forth in Section 2.1.1 or elsewhere in this
Agreement, Lenders shall continue to make Revolver Loans up to their Pro Rata share of the
Commitments) and to forbear from requiring Borrowers to cure an Out-of-Formula Condition, if and
for so long as (i) such Out-of-Formula Condition does not continue for a period of more than 30
consecutive days, following which no Out-of-Formula Condition exists for at least 5 consecutive
days before another Out-of-Formula Condition exists, (ii) the amount of the Revolver Loans
outstanding at any time does not
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exceed the aggregate of the Commitments at such time, and (iii)
the Out-of-Formula Condition is not known by Agent at the time in question to exceed $10,000,000.
In no event shall any Borrower or any other Obligor be deemed to be a beneficiary of this Section
13.9.4 or authorized to enforce any of the provisions of this Section 13.9.4.
13.10. Due Diligence and Non-Reliance. Each Lender hereby acknowledges and represents
that it has, independently and without reliance upon Agent or the other Lenders, and based upon
such documents, information and analyses as it has deemed appropriate, made its own credit analysis
of each Obligor and its own decision to enter into this Agreement, to fund the Loans to be made by
it, issue Letters of Credit and purchase participations in the LC Obligations pursuant to Section
2.3.2, and each Lender has made such inquiries concerning the Loan Documents, the Collateral and
each Obligor as such Lender feels necessary and appropriate, and has taken such care on its own
behalf as would have been the case had it entered into the other Loan Documents without the
intervention or participation of the other Lenders or Agent. Each Lender hereby further
acknowledges and represents that the other Lenders and Agent have not made any representations or
warranties to it concerning any Obligor, any of the Collateral or the legality, validity,
sufficiency or enforceability of any of the Loan Documents. Each Lender also hereby acknowledges
that it will, independently and without reliance upon the other Lenders or Agent, and based upon
such financial statements, documents and information as it deems appropriate at the time, continue
to make and rely upon its own credit decisions in making Loans and in taking or refraining to take
any other action under this Agreement or any of the other Loan Documents. Except for notices,
reports and other information
expressly required to be furnished to Lenders by Agent hereunder, Agent shall not have any
duty or responsibility to provide any Lender with any notices, reports or certificates furnished to
Agent by any Obligor or any credit or other information concerning the affairs, financial
condition, business or Properties of any Obligor (or any of its Affiliates) which may come into
possession of Agent or any of Agent’s Affiliates.
13.11. Representations and Warranties of Lenders. Each Lender represents and warrants
to each Obligor, Agent and the other Lenders that it has the power to enter into and perform its
obligations under this Agreement and the other Loan Documents, and that it has taken all necessary
and appropriate action to authorize its execution and performance of this Agreement and the other
Loan Documents to which it is a party, each of which will be binding upon it and the obligations
imposed upon it herein or therein will be enforceable against it in accordance with the respective
terms of such documents; and none of the consideration used by it to make or fund its Loans or to
participate in any other transactions under this Agreement constitutes for any purpose of ERISA or
Section 4975 of the Internal Revenue Code assets of any “plan” as defined in Section 3(3) of ERISA
or Section 4975 of the Internal Revenue Code and the rights and interests of such Lender in and
under the Loan Documents shall not constitute plan assets under ERISA.
13.12. The Required Lenders. As to any provisions of this Agreement or the other Loan
Documents under which action may or is required to be taken upon direction or approval of the
Required Lenders, the direction or approval of the Required Lenders shall be binding upon each
Lender to the same extent and with the same effect as if each Lender joined therein.
Notwithstanding anything to the contrary contained in this Agreement, Obligors shall not be deemed
to be a beneficiary of, or be entitled to enforce, xxx upon or assert as a defense to any of the
Obligations, any provisions of this Agreement that requires Agent or any Lender to act, or
conditions their authority to act, upon the direction or consent of the Required Lenders; and any
action taken by Agent or any Lender that requires the consent or direction of the Required Lenders
as a condition to taking such action shall, insofar as Obligors are concerned, be presumed to have
been taken with the requisite consent or direction of the Required Lenders.
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13.13. Several Obligations. The obligations and Commitment of each Lender under this
Agreement and the other Loan Documents are several and neither Agent nor any Lender shall be
responsible for the performance by the other Lenders of its obligations or Commitment hereunder or
thereunder. Notwithstanding any liability of Lenders stated to be joint and several to third
Persons under any of the Loan Documents, such liability shall be shared, as among Lenders, Pro
Rata.
13.14. Agent in its Individual Capacity. With respect to its obligation to lend under
this Agreement and the Loans made by it, Agent shall have the same rights and powers hereunder and
under the other Loan Documents as any other Lender and may exercise the same as though it were not
performing the duties specified herein; and the terms “Lenders,” “Required Lenders,” or any similar
term shall, unless the context clearly otherwise indicates, include Agent in its capacity as a
Lender. Agent and its Affiliates may each accept deposits from, maintain deposits or credit
balances for, invest in, lend money to, act as trustee under indentures of, serve as financial
advisor to, and generally engage in any kind of business with any Obligor or any Affiliate of any
Obligor, as if it were any other bank and without any duty to account therefor (or for any fees or
other consideration received in connection therewith) to the other Lenders. BofA or its Affiliates
may receive information regarding any Obligor or any of such Obligor’s Affiliates and account
debtors (including information that may be subject to confidentiality obligations in favor of
Obligors or any of their Affiliates) and Lenders acknowledge that neither Agent nor BofA shall be
under any obligation to provide such information to Lenders to the extent acquired by BofA in its
individual capacity and not as Agent hereunder.
13.15. No Third Party Beneficiaries. Except in the case of Sections 13.1.3, 13.2.1,
13.8, 13.9.2, 13.9.3, 13.11 and 13.17, this Section 13 is not intended to confer any rights or
benefits upon Obligors or any other Person except Lenders and Agent, and no Person (including any
Obligor) other than Lenders and Agent shall have any right to enforce any of the provisions of this
Section 13 except in the case of Sections 13.1.3, 13.2.1, 13.8, 13.9.2, 13.9.3, 13.11 and 13.17.
As between Obligors and Agent, any action that Agent may take or purport to take on behalf of
Lenders under any of the Loan Documents shall be conclusively presumed to have been authorized and
approved by Lenders as herein provided.
13.16. Notice of Transfer. Agent may deem and treat a Lender party to this Agreement
as the owner of such Lender’s portion of the Revolver Loans for all purposes, unless and until a
written notice of the assignment or transfer thereof executed by such Lender has been received by
Agent.
13.17. Replacement of Certain Lenders. If a Lender (“Non-Consenting Lender”) shall
have (i) failed to fund its Pro Rata share of any Loan requested (or deemed requested) by Borrowers
which such Lender is obligated to fund under the terms of this Agreement and which such failure has
not been cured, (ii) requested compensation from Borrowers under Section 3.7 or 3.8 to recover
increased costs incurred by such Lender (or its parent or holding company) or restore a rate of
return on capital which are not being incurred and requested generally by the other Lenders (or
their respective parents or holding companies), (iii) delivered a notice pursuant to Section 3.6
claiming that such Lender is unable to extend LIBOR Loans to Borrowers for reasons not generally
applicable to the other Lenders, (iv) defaulted in paying or performing any of its obligations to
Agent, or (v) failed (within 5 Business Days after Agent’s request) or refused to give its consent
to any amendment, waiver or action for which consent of all of the Lenders is required and in
respect of which the Required Lenders have consented, then, in any such case and in addition to any
other rights and remedies that Agent, any other Lender or Borrowers may have against such
Non-Consenting Lender, any Borrower or Agent may make written demand on such Non-Consenting Lender
(with a copy to Agent in the case of a demand by Borrowers and a copy to Borrowers in the case of a
demand by Agent) for the Non-Consenting Lender to assign, and such Non-Consenting Lender shall
assign pursuant to one or more duly executed Assignment and Acceptances within 5 Business Days
after the date of such demand, to one or more Lenders willing to accept such assignment or
assignments, or to one or more Eligible Assignees designated by Agent and, in the absence of an
Event
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of Default, approved by Borrower Representative (such approval not to be unreasonably
withheld or delayed), all of such Non-Consenting Lender’s rights and obligations under this
Agreement (including its Revolver Commitment and all Loans owing to it) in accordance with Section
14. Agent is hereby irrevocably authorized to execute one or more Assignment and Acceptances as
attorney-in-fact for any Non-Consenting Lender which fails or refuses to execute and deliver the
same within 5 Business Days after the date of such demand. The Non-Consenting Lender shall be
entitled to receive, in cash and concurrently with execution and delivery of each such Assignment
and Acceptance, all amounts then owed to the Non-Consenting Lender by Obligors hereunder, including
the aggregate outstanding principal amount of the Loans owed to such Lender, together with accrued
interest thereon through the date of such assignment (but excluding any prepayment
penalty, termination charge or amounts otherwise then due and payable under Sections 3.7 or
3.10). Upon the replacement of any Non-Consenting Lender pursuant to this Section 13.17, such
Non-Consenting Lender shall cease to have any participation in, entitlement to, or other right to
share in the Liens of Agent in any Collateral and such Non-Consenting Lender shall have no further
liability to Agent, any Lender or any other Person under any of the Loan Documents (except as
provided in Section 13.6 as to events or transactions which occur prior to the replacement of such
Non-Consenting Lender), including any commitment to make Loans or purchase participations in LC
Obligations. Agent shall have the right at any time, but shall not be obligated to, upon written
notice to any Lender and with the consent of such Lender (which may be granted or withheld in such
Lender’s discretion), to purchase for Agent’s own account all of such Lender’s right, title and
interest in and to this Agreement, the other Loan Documents and the Obligations (together with such
Lender’s interest in the Revolver Commitments), for the face amount of the Obligations owed to such
Lender (or such greater or lesser amount as Agent and such Lender may mutually agree upon).
13.18. Remittance of Payments and Collections.
13.18.1. All payments by any Lender to Agent shall be made not later than the time set forth
elsewhere in this Agreement on the Business Day such payment is due; provided, however, that if
such payment is due on demand by Agent and such demand is made on the paying Lender after 11:00
a.m. on such Business Day, then payment shall be made by 11:00 a.m. on the next Business Day.
Payment by Agent to any Lender shall be made by wire transfer, promptly following Agent’s receipt
of funds for the account of such Lender and in the type of funds received by Agent; provided,
however, that if Agent receives such funds at or prior to 12:00 noon, Agent shall pay such funds
to such Lender by 2:00 p.m. on such Business Day, but if Agent receives such funds after 12:00
noon, Agent shall pay such funds to such Lender by 2:00 p.m. on the next Business Day.
13.18.2. With respect to the payment of any funds from Agent to a Lender or from a Lender to
Agent, the party failing to make full payment when due pursuant to the terms hereof shall, on
demand by the other party, pay such amount together with interest thereon at the Federal Funds
Rate. In no event shall Borrowers be entitled to receive any credit for any interest paid by
Agent to any Lender, or by any Lender to Agent, at the Federal Funds Rate as provided herein.
13.18.3. If Agent pays any amount to a Lender in the belief or expectation that a related
payment has been or will be received by Agent from an Obligor and such related payment is not
received by Agent, then Agent shall be entitled to recover such amount from each Lender that
receives such amount. If Agent determines at any time that any amount received by it under this
Agreement or any of the other Loan Documents must be returned to an Obligor or paid to any other
Person pursuant to any Applicable Law, court order or otherwise, then, notwithstanding any other
term or condition of this Agreement or any of the other Loan Documents, Agent shall not be
required to distribute such amount to any Lender.
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13.19.
Arranger. Each of the parties to this Agreement acknowledges that,
other than any rights and duties explicitly assigned to Arranger under this Agreement, Arranger
does not have any obligations hereunder and shall not be responsible or accountable to any other
party hereto for any action or failure to act hereunder. Without limiting the foregoing, Arranger
shall not have or be deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on Arranger in deciding to enter into this
Agreement or in taking or not taking action hereunder.
SECTION 14. BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS
14.1. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of Obligors, Agent, Arranger, Issuing Bank and Lenders and their respective successors and
permitted assigns (which, in the case of Agent, shall include any successor Agent appointed
pursuant to Section 13.8), except that (i) no Obligor shall have the right to assign its rights or
delegate performance of any of its obligations under any of the Loan Documents and (ii) any
assignment by any Lender must be made in compliance with Section 14.3. Agent may treat the Person
which made any Loan as the owner thereof for all purposes hereof unless and until such Person
complies with Section 14.3 in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with Agent. Any assignee or transferee of any
rights with respect to any Loan agrees by acceptance thereof to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is the holder of a Loan, shall be
conclusive and binding on any subsequent holder, transferee or assignee of such Loan.
14.2. Participations.
14.2.1. Permitted Participants; Effect. Any Lender may, in the ordinary course of
its business and in accordance with Applicable Law, at any time sell to one or more banks or other
financial institutions (each a “Participant”) a participating interest in any of the Obligations
owing to such Lender, any Commitment of such Lender or any other interest of such Lender under any
of the Loan Documents. In the event of any such sale by a Lender of participating interests to a
Participant, such Lender’s obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties hereto for the performance of such
obligations, such Lender shall remain the holder of its Loans and Commitments for all purposes
under the Loan Documents, all amounts payable by Obligors under this Agreement shall be determined
as if such Lender had not sold such participating interests, and Obligors and Agent shall continue
to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under the Loan Documents. If a Lender sells a participation to a Person other than an
Affiliate of such Lender, then such Lender shall give prompt written notice thereof to Borrowers
and Agent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled
to the benefits of Section 5.8 unless Borrowers are notified of the participation sold to
Participant and such Participant agrees, for the benefit of Borrowers, to comply with Section 5.9
as though such Participant were a Lender.
14.2.2. Voting Rights. Each Lender shall retain the sole right to approve, without
the consent of any Participant, any amendment, modification or waiver of any provision of the Loan
Documents other than an amendment, modification or waiver with respect to any Loans or Commitment
in which such Participant has an interest which forgives principal, interest or fees or reduces the
stated interest rate or the stated rates at which fees are payable with respect to any such Loan or
Commitment, postpones the Commitment Termination Date, or (at any time that an Event of Default
exists) any date fixed for any regularly scheduled payment of interest or fees on such Loan or
Commitment.
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14.2.3. Benefit of Set-Off. Each Obligor agrees that each Participant shall be deemed
to have the right of set-off provided in Section 12.4 in respect of its participating interest in
amounts owing under the Loan Documents to the same extent and subject to the same requirements
under this Agreement (including
Section 13.5) as if the amount of its participating interest were owing directly to it as a
Lender under the Loan Documents, provided that each Lender shall retain the right of set-off
provided in Section 12.4 with respect to the amount of participating interests sold to each
Participant. Lenders agree to share with each Participant, and each Participant by exercising the
right of set-off provided in Section 12.4 agrees to share with each Lender, any amount received
pursuant to the exercise of its right of set-off, such amounts to be shared in accordance with
Section 13.5 as if each Participant were a Lender.
14.2.4. Notices. Each Lender shall be solely responsible for notifying its
Participants of any matters relating to the Loan Documents to the extent that any such notice may
be required, and neither Agent nor any other Lender or Obligor shall have any obligation, duty or
liability to any Participant of any other Lender. Without limiting the generality of the
foregoing, neither Agent nor any Lender or Obligor shall have any obligation to give notices or to
provide documents or information to a Participant of another Lender.
14.3. Assignments.
14.3.1. Permitted Assignments. Subject to its compliance with Section 14.3.2, a
Lender may, in accordance with Applicable Law, at any time assign to any Eligible Assignee all or
any part of its rights and obligations under the Loan Documents, so long as (i) each assignment is
of a constant, and not a varying, ratable percentage of all of the transferor Lender’s rights and
obligations under the Loan Documents with respect to the Loans and the LC Obligations and, in the
case of a partial assignment, is in a minimum principal amount of $10,000,000 (unless otherwise
agreed by Agent and, in the absence of an Event of Default, Borrower Representative, in its or
their discretion); (ii) except in the case of an assignment in whole of a Lender’s rights and
obligations under the Loan Documents or an assignment by one original signatory to this Agreement
to another such signatory, immediately after giving effect to any assignment, the aggregate amount
of the Commitments retained by the transferor Lender shall in no event be less than $10,000,000
(unless otherwise agreed by Agent and, in the absence of an Event of Default, Borrower
Representative, in its or their discretion); and (iii) the parties to each such assignment shall
execute and deliver to Agent, for its acceptance and recording, an Assignment and Acceptance.
Nothing contained herein shall limit in any way the right of a Lender to pledge or assign all or
any portion of its rights under this Agreement or with respect to any of the Obligations to (x) any
Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A
of the Board of Governors and any Operating Circular issued by such Federal Reserve Bank, (y)
direct or indirect contractual counterparties in swap agreements relating to the Loans, provided
that any payment by Borrowers to the assigning Lender in respect of any assigned Obligations in
accordance with the terms of this Agreement shall satisfy Borrowers’ obligations hereunder in
respect of such assigned Obligations to the extent of such payment, and no such assignment shall
release the assigning Lender from its obligations hereunder.
14.3.2. Effect; Effective Date. Upon (i) delivery to Agent of a notice of assignment
substantially in the form attached as Exhibit D hereto, together with any consents required by
Section 14.3.1, and (ii) payment of a $3,500 fee to the Agent for processing any assignment to an
Eligible Assignee that is not an Affiliate of the transferor Lender, such assignment shall become
effective on the effective date specified in such notice of assignment. The Assignment and
Acceptance shall contain a representation and warranty by the Eligible Assignee that the
assignment evidenced thereby will not result in a non-exempt “prohibited transaction” under
Section 406 of ERISA. On and after the effective date of such assignment, such Eligible Assignee
shall for all purposes be a Lender party to this
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Agreement and the other Loan Documents executed
by the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents to the same extent as if it were an original
party thereto, and no further consent or action by Obligors, Lenders or Agent shall be required to
release the transferor Lender with respect to the Commitment (or portion thereof) of such Lender
and Obligations assigned to such Eligible Assignee. Without limiting the generality of the
foregoing, such Eligible Assignee shall be subject to and bound by all of the Loan Documents. If
the transferor Lender shall have assigned all of its interests, rights and obligations under this
Agreement pursuant to Section 14.3.1, then (i) such transferor Lender shall no longer have any
obligation to indemnify Agent with respect to any transactions, events or occurrences that
transpire after the effective date of such assignment, (ii) each Eligible Assignee to which such
transferor Lender shall make an assignment shall be responsible to Agent to indemnify Agent in
accordance with this Agreement with respect to transactions, events and occurrences transpiring on
and after the effective date of such assignment to it, and (iii) the transferor Lender shall
continue to be entitled to the benefits of those provisions of the Loan Documents (including
indemnities from Obligors) that survive Full Payment of the Obligations.
14.3.3. Dissemination of Information. Each Obligor authorizes each Lender and Agent
to disclose to any Participant, any Eligible Assignee or any other Person acquiring an interest in
the Loan Documents by operation of law (each a “Transferee”), and any prospective Transferee, any
and all information in Agent’s or such Lender’s possession concerning each Obligor, the
Subsidiaries of each Obligor or the Collateral, subject to appropriate confidentiality undertakings
on the part of such Transferee.
14.4. Tax Treatment. If any interest in any Loan Document is transferred to any
Transferee that is organized under the laws of any jurisdiction other than the United States or any
State thereof, the transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of Section 5.9.
SECTION 15. MISCELLANEOUS
15.1. Power of Attorney. Each Obligor hereby irrevocably designates, makes,
constitutes and appoints Agent (and all Persons designated by Agent) as such Obligor’s true and
lawful attorney (and agent-in-fact) and Agent, or Agent’s designee, may, without notice to such
Obligor and in either such Obligor’s or Agent’s name, but at the cost and expense of Obligors:
15.1.1. At such time or times as Agent or said designee, in its discretion, may determine,
endorse such Obligor’s name on any Payment Item or other proceeds of the Collateral (including
proceeds of insurance) which come into the possession of Agent or under Agent’s control.
15.1.2. At any time that an Event of Default exists: (i) demand payment of the Accounts from
the Account Debtors, enforce payment of the Accounts by legal proceedings or otherwise, and
generally exercise all of such Obligor’s rights and remedies with respect to the collection of the
Accounts; (ii) settle, adjust, compromise, discharge or release any of the Accounts or other
Collateral or any legal proceedings brought to collect any of the Accounts or other Collateral;
(iii) sell or assign any of the Accounts and other Collateral upon such terms, for such amounts and
at such time or times as Agent deems advisable; (iv) take control, in any manner, of any item of
payment or proceeds relating to any Collateral; (v) prepare, file and sign such Obligor’s name
to a proof of claim in bankruptcy or similar document against any Account Debtor or to any
notice of Lien, assignment or satisfaction of Lien or similar document in connection with any of
the Collateral; (vi) receive, open and dispose of all mail addressed to such Obligor and to notify
postal authorities to change the address for delivery thereof to such address as Agent may
designate; (vii) endorse the name of such Obligor upon any Payment Item relating to any Collateral
and deposit the same to the account of Agent for application to the Obligations;
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(viii) endorse the
name of such Obligor upon any Chattel Paper, Document, Instrument, invoice, freight xxxx, xxxx of
lading or similar document or agreement relating to any Accounts or Inventory of any Obligor and
any other Collateral; (ix) use such Obligor’s stationery and sign the name of such Obligor to
verifications of the Accounts and notices thereof to Account Debtors; (x) use the information
recorded on or contained in any data processing equipment and computer hardware and software
relating to any Collateral; (xi) make and adjust claims under policies of insurance; (xii) sign the
name of such Obligor to and file any proof of claim in an Insolvency Proceeding of any Account
Debtor and on notices of Liens, claims of mechanic’s Liens or assignments or releases of mechanic’s
Liens securing any Accounts; (xiii) take all action as may be necessary to obtain the payment of
any letter of credit or banker’s acceptance of which such Obligor is a beneficiary; and (xiv) do
all other acts and things necessary, in Agent’s determination, to fulfill such Obligor’s
obligations under any of the Loan Documents.
15.2. General Indemnity. Whether or not any of the transactions contemplated by any
of the Loan Documents are consummated, each Obligor agrees to indemnify and defend the Indemnitees
and hold the Indemnitees harmless from and against any Claims that may be instituted or asserted
against or are incurred by any of the Indemnitees. Without limiting the generality of the
foregoing, this indemnity shall extend to any Claims instituted or asserted against or incurred by
any of the Indemnitees (x) under any Environmental Laws (or other similar laws) by reason of an
Obligor’s or any other Person’s failure to comply with laws applicable to solid or hazardous waste
materials or other toxic substances) or (y) under any Anti-Terrorism Laws, including any fines
assessed against Agent or any Lender by any Governmental Authority as a result of conduct of an
Obligor. Additionally, if any Indemnified Taxes shall be payable by any party on account of the
execution or delivery of this Agreement, or the execution, delivery, issuance or recording of any
of the other Loan Documents, or the creation or repayment of any of the Obligations hereunder, by
reason of any Applicable Law now or hereafter in effect, Obligors shall pay (and shall promptly
reimburse Agent and Lenders for their payment of) all such Taxes, including any interest and
penalties thereon, and will indemnify and hold Indemnitees harmless from and against all liability
in connection therewith.
15.3. Survival of and Limitations Upon Indemnities. Notwithstanding anything to the
contrary in this Agreement or any of the other Loan Documents, the obligation of each Obligor and
each Lender with respect to each indemnity given by it in this Agreement shall survive the Full
Payment of the Obligations, the termination of any of the Commitments and the resignation of Agent.
Notwithstanding anything to the contrary contained in this Agreement, no party shall have any
obligation under this Agreement to indemnify an Indemnitee with respect to any Claim to the extent
that it is determined in a final, non-appealable judgment by a court of competent jurisdiction that
such Claim resulted from the gross negligence or willful misconduct of such Indemnitee.
15.4. Modification of Agreement. This Agreement may not be modified, altered or
amended, except by an agreement in writing signed by Obligors (or Borrower Representative on behalf
of Obligors), Agent and Lenders (or, where
otherwise expressly allowed by Section 13, the Required Lenders in lieu of Agent and Lenders);
provided, however, that no consent, written or otherwise, of Obligors (or Borrower
Representative) shall be necessary or required in connection with any amendment of any of the
provisions of Sections 2.3.2, 4.1.3, 5.5, or 13 (other than Sections 13.1.3, 13.2.1, 13.8, 13.9.2,
13.9.3, 13.11 and 13.17).
15.5. Severability. Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under Applicable Law, but if any provision
of this Agreement shall be prohibited by or invalid under Applicable Law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
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15.6. Cumulative Effect; Conflict of Terms. The provisions of the Other Agreements
and the Security Documents are hereby made cumulative with the provisions of this Agreement.
Without limiting the generality of the foregoing, the parties acknowledge that this Agreement and
the other Loan Documents may use several different limitations, tests or measurements to regulate
the same or similar matters and that such limitations, tests and measures are cumulative and each
must be performed, except as may be expressly stated to the contrary in this Agreement. Except as
otherwise provided in any of the other Loan Documents by specific reference to the applicable
provision of this Agreement, if any provision contained in this Agreement is in direct conflict
with, or inconsistent with, any provision in any of the other Loan Documents, the provision
contained in this Agreement shall govern and control.
15.7. Counterparts; Facsimile Signatures. This Agreement and any amendments hereto
may be executed in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be an original and
all of which counterparts taken together shall constitute but one and the same instrument. Loan
Documents may be executed by facsimile and the effectiveness of any such Loan Documents and
signatures thereon shall, subject to Applicable Law, have the same force and effect as manually
signed originals and shall be binding on all parties thereto. Agent may require that any such
documents and signatures be confirmed by a manually-signed original thereof, provided that
the failure to request or deliver the same shall not limit the effectiveness of any facsimile
signature.
15.8. Consent. Whenever the consent of Agent or Lenders (or any combination of
Lenders) is required to be obtained under this Agreement or any of the other Loan Documents as a
condition to any action, inaction, condition or event, each party whose consent is required shall
be authorized to give or withhold its consent in its discretion and to condition its consent upon
the giving of additional collateral security for the Obligations, the payment of money or any other
matter.
15.9. Notices and Communications.
15.9.1. Except as otherwise provided in Section 4.1.5, all notices, requests and other
communications to or upon a party hereto shall be in writing (including facsimile transmission or
similar writing) and shall be given to such party at the address or facsimile number for such
party on the signature pages hereof (or, in the case of a Person who becomes a Lender after the
date hereof, at the address shown on the applicable Assignment and Acceptance by which such Person
became a Lender)
or at such other address or facsimile number as such party may hereafter specify for the
purpose by notice to Agent and Borrower Representative in accordance with the provisions of this
Section 15.9.
15.9.2. Except as otherwise provided in Section 4.1.5, each such notice, request or other
communication shall be effective (i) if given by facsimile transmission, when transmitted to the
facsimile number specified herein for the noticed party and confirmation of receipt is received,
(ii) if given by mail, 3 Business Days after such communication is deposited in the U.S. Mail,
with first-class postage pre-paid, addressed to the noticed party at the address specified herein,
or (iii) if given by personal delivery, when duly delivered with receipt acknowledged in writing
by the noticed party. In no event shall a voicemail message be effective as a notice,
communication or confirmation under any of the Loan Documents. Notwithstanding the foregoing, no
notice to or upon Agent pursuant to Sections 2.3, 3.1.2, 4.1 or 6.2.2 shall be effective until
after actually received by the individual to whose attention at Agent such notice is required to
be sent. Any written notice, request or demand that is not sent in conformity with the provisions
hereof shall nevertheless be effective on the date that such notice, request or demand is actually
received by the individual to whose attention at the noticed party such notice, request or demand
is required to be sent. Any notice received by Borrower Representative shall be deemed to have
been received by all Obligors.
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15.9.3. Electronic mail and (with the permission of the noticed party) intranet websites may
be used only to distribute routine communications, such as financial statements, Borrowing Base
Certificates and other information required by Section 10.1.3, and to distribute Loan Documents
for execution by the parties thereto, and may not be used for any other purpose as effective
notice under this Agreement or any of the other Loan Documents.
Agent and Lenders shall be authorized to rely and act upon any notices (including telephonic
communications) purportedly given by or on behalf of any Obligor even if such notices were made in
a manner other than as specified herein, were incomplete or were not preceded or followed by any
other form of notice specified or required herein, or the terms thereof, as understood by the
recipient, varied from any confirmation thereof. Obligors jointly and severally agree to indemnify
and defend each Indemnitee from all losses, costs, expenses and liabilities resulting from the
reliance by any such Indemnitee on each telephone communication purportedly given by or on behalf
of any Obligor.
15.10. Performance of Obligors’ Obligations. If any Obligor shall fail to discharge
any covenant, duty or obligation hereunder or under any of the other Loan Documents, Agent may, in
its discretion at any time or from time to time, for such Obligor’s account and at Obligors’
expense, pay any amount or do any act required of Obligors hereunder or under any of the other Loan
Documents or otherwise lawfully requested by Agent to (i) enforce any of the Loan Documents or
collect any of the Obligations, (ii) preserve, protect, insure or maintain or realize upon any of
the Collateral, or (iii) preserve, defend, protect or maintain the validity or priority of Agent’s
Liens in any of the Collateral, including the payment of any judgment against any Obligor, any
insurance premium, any warehouse charge, any finishing or processing charge, any landlord claim,
any other Lien upon or with respect to any of the Collateral (whether or not a Permitted Lien).
All payments that Agent may make under this Section and all out-of-pocket costs and expenses
(including Extraordinary Expenses) that Agent pays or incurs in connection with any action taken by
it hereunder shall be reimbursed to Agent by Obligors, on demand, with interest from the date such
payment is made or such costs or expenses are incurred to the date of payment thereof at the
Default Rate applicable for Revolver Loans that are Base Rate Loans. Any payment made or other
action taken by Agent under this Section shall be without prejudice to any right to assert, and
without waiver of, an Event of Default hereunder and to without prejudice to Agent’s right proceed
thereafter as provided herein or in any of the other Loan Documents.
15.11. Credit Inquiries. Each Obligor hereby authorizes and permits Agent and Lenders
(but Agent and Lenders shall have no obligation) to respond to usual and customary credit inquiries
from third parties concerning such Obligor or any of its Subsidiaries.
15.12. Time of Essence. Time is of the essence of this Agreement, the Other
Agreements and the Security Documents.
15.13. Indulgences Not Waivers. Agent’s or any Lender’s failure at any time or times
hereafter, to require strict performance by Obligors of any provision of this Agreement shall not
waive, affect or diminish any right of Agent or any Lender thereafter to demand strict compliance
and performance therewith.
15.14. Entire Agreement; Exhibits and Schedules. This Agreement and the other Loan
Documents, together with all other instruments, agreements and certificates executed by the parties
pursuant to any Loan Document, embody the entire understanding and agreement between the parties
hereto and thereto with respect to the subject matter hereof and thereof and supersede all prior
agreements, understandings and inducements, whether express or implied, oral or written, regarding
the same subject matter. Each of the Exhibits and each of the Schedules attached hereto are
incorporated into this Agreement and by this reference made a part hereof.
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15.15. Interpretation. No provision of this Agreement or any of the other Loan
Documents shall be construed against or interpreted to the disadvantage of any party hereto by any
court or other governmental or judicial authority by reason of such party having, or being deemed
to have, structured, drafted or dictated such provision. The paragraph and section headings are
for convenience of reference only and shall not affect the substantive meaning of any provision of
this Agreement.
15.16. Obligations of Lenders Several. The obligations of each Lender hereunder are
several, and no Lender shall be responsible for the obligations or Commitment of any other Lender.
Nothing contained in this Agreement and no action taken by Lenders pursuant hereto shall be deemed
to constitute Lenders to be a partnership, association, joint venture or any other kind of entity.
The amounts payable at any time hereunder to each Lender shall be a separate and independent debt,
and each Lender shall be entitled, to the extent not otherwise restricted hereunder, to protect and
enforce its rights arising out of this Agreement and any of the other Loan Documents and it shall
not be necessary for Agent or any other Lender to be joined as an additional party in any
proceeding for such purpose.
15.17. Confidentiality. Each of Agent and each Lender agrees to take normal and
reasonable precautions and exercise due care to maintain the confidentiality of any confidential
information that is delivered or made available by Obligors to it and that is marked or otherwise
identified by Obligors as confidential, (including information made available to Agent or any
Lender in connection with a visit or investigation by any Person contemplated in Section 10.1.1),
for a period of 24 months following the Commitment
Termination Date, except that Agent and any Lender may disclose such information (i) to their
respective Affiliates and individuals employed or retained by Agent or such Lender who are or are
expected to become engaged in evaluating, approving, structuring, administering or otherwise giving
professional advice with respect to any of the Loans or Collateral, including any of their
respective legal counsel, auditors or other professional advisors; (ii) to any party to this
Agreement from time to time or any Participant, (iii) pursuant the order of any court or
administrative agency, (iv) upon the request or demand of any regulatory agency or other
Governmental Authority having jurisdiction over Agent or such Lender or in accordance with Agent’s
or Lender’s regulatory compliance policies, (v) which has ceased to be confidential other than by
an act or omission of Agent or any Lender except as permitted herein or which becomes available to
Agent or any Lender on a nonconfidential basis from a source other than Obligors, (vi) to the
extent reasonably required in connection with any litigation (with respect to any of the Loan
Documents or any of the transactions contemplated thereby) to which Agent, any Lender or their
respective Affiliates may be a party, (vii) to the extent reasonably required in connection with
the exercise of any remedies hereunder, (viii) to any actual or proposed Participant, Assignee,
counterparty or advisors to any swap or derivative transactions relating to Obligors and the
Obligations, or any other Transferee of all or part of a Lender’s rights hereunder so long as such
Person has agreed in writing to be bound by the provisions of this Section, (ix) to the National
Association of Insurance Commissioners or any similar organization or to any nationally recognized
rating agency that requires access to information about a Lender’s portfolio in connection with
ratings issued with respect to such Lender, (x) to the extent required (on the advice of Agent’s or
such Lender’s counsel) by Applicable Law, or (xi) with the consent of the affected Obligor.
15.18. Amendment and Restatement. This Agreement and the other Loan Documents amend
and restate the Original Loan Agreement, the Original Security Agreement and the other “Loan
Documents” (as defined in the Original Loan Agreement). All rights, benefits, indebtedness,
interests, liabilities and obligations of the parties to the Original Loan Agreement, the Original
Security Agreement and the agreements, documents and instruments executed and delivered in
connection with the Original Loan Agreement and the Original Security Agreement (collectively, the
“Original Loan Documents”) are hereby renewed, amended, restated and superseded in their entirety
according to the terms and provisions set forth herein and in the other Loan Documents. This
Agreement does not constitute, nor shall it result in, a waiver of or release, discharge or
forgiveness of any amount payable pursuant to the Original Loan
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Documents or any indebtedness,
liabilities or obligations of Obligors thereunder, all of which are renewed and continued and are
hereafter payable and to be performed in accordance with this Agreement and the other Loan
Documents. Neither this Agreement nor any other Loan Document extinguishes the indebtedness or
liabilities outstanding in connection with the Original Loan Documents, nor do they constitute a
novation with respect thereto. All security interests, pledges, assignments and other Liens
previously granted by any Obligor pursuant to the Original Loan Documents are hereby renewed and
continued, and all such security interests, pledges, assignments and other Liens shall remain in
full force and effect as security for the Obligations except as modified by the provisions hereof.
Amounts in respect of interest, fees and other amounts payable to or for the account of Agent,
Issuing Bank and Lenders shall be calculated (i) in accordance with the provisions of the Original
Loan Agreement with respect to any period (or a portion of any period) ending prior to the Closing
Date, and (ii) in accordance with the provisions of this Agreement with respect to any period (or a
portion of any period) commencing on or after the Closing Date.
15.19. USA Patriot Act Notice. Each Lender hereby notifies Borrowers that, pursuant
to the requirements of the USA Patriot Act, it is required to obtain, verify and record information
that identifies each Borrower, which
information includes the name and address of each Borrower and other information that will
allow such Lender to identify each Borrower in accordance with the Act.
15.20. Governing Law. This Agreement shall be governed by and construed in accordance
with the internal laws (but without regard to conflict of law principles) of the State of North
Carolina, but giving effect to federal laws relating to national banks.
15.21. Consent to Forum. Each Obligor hereby consents to the non-exclusive jurisdiction of
any United States federal court sitting in or with direct or indirect jurisdiction over the Western
District of North Carolina or in any North Carolina state court sitting in Mecklenburg County,
North Carolina, in any action, suit or other proceeding arising out of or relating to this
Agreement or any of the other Loan Documents and each Obligor irrevocably agrees that all claims
and demands in respect of any such action, suit or proceeding may be heard and determined in any
such court and irrevocably waives any objection it may now or hereafter have as to the venue of any
such action, suit or proceeding brought in any such court or that such court is an inconvenient
forum. Nothing herein shall limit the right of Agent or any Lender to bring proceedings against
any Obligor or with respect to any Collateral in the courts of any other jurisdiction. Any
judicial proceeding commenced by any Obligor against Agent, BofA, any Lender or any holder of any
of the Obligations, or any Affiliate of Agent, BofA, any Lender or any holder of any Obligations,
involving, directly or indirectly, any matter in any way arising out of, related to or connected
with any Loan Document shall be brought only in a United States federal court sitting in or with
direct jurisdiction over the Western District of North Carolina or in any North Carolina state
court sitting in Mecklenburg County, North Carolina. Nothing in this Agreement shall be deemed to
preclude the enforcement by Agent of any judgment or order obtained in such forum or the taking of
any action under this Agreement to enforce same in any other appropriate forum or jurisdiction.
15.22. Waivers.
15.22.1 To the fullest extent permitted by Applicable Law, Agent, each Lender and each Obligor
waives (i) the right to trial by jury in any action, suit, proceeding or counterclaim of any kind
arising out of or related to any of the Loan Documents, the Obligations or the Collateral; and (ii)
any claim against any party hereto, on any theory of liability, for special, indirect,
consequential, exemplary or punitive damages (as opposed to direct or actual damages) in respect of
any claim for breach of contract or any other theory of liability arising out of, or the taking of
any Enforcement Action, or related to any of the Loan Documents, any transaction thereunder or the
use of the proceeds of any Loans.
-113-
15.22.2 To the fullest extent permitted by Applicable Law, each Obligor waives (i)
presentment, demand and protest and notice of presentment, protest, default, non payment, maturity,
release, compromise, settlement, extension or renewal of any or all commercial paper, accounts,
contract rights, documents, instruments, chattel paper and guaranties at any time held by Agent on
which such Obligor may in any way be liable and hereby ratifies and confirms whatever Agent may do
in this regard; (ii) notice prior to taking possession or control of the Collateral or any bond or
security which might be required by any court prior to allowing Agent to exercise any of Agent’s
remedies; (iii) the benefit of all valuation, appraisement and exemption laws; and (iv) notice of
acceptance hereof.
15.22.3 Each party hereto acknowledges that the foregoing waivers are a material inducement to
the other parties entering into this Agreement and that each other party hereto is relying upon the
foregoing waivers in its future dealings with such party. Each party hereto warrants and
represents that it has reviewed the foregoing waivers with its legal counsel and has knowingly and
voluntarily waived its jury trial rights following consultation with legal counsel. In the event
of litigation, this Agreement may be filed as a written consent to a trial by the Court.
[Remainder of page intentionally left blank; signatures begin on following page]
-114-
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered on the day and year
specified at the beginning of this Agreement.
| BORROWERS: | ||||||
| COLTEC INDUSTRIES INC | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx
|
|||||
| Xxxxxx X. Xxxxxx, Treasurer | ||||||
| Address: | 0000 Xxxxxxxx Xxxxxxxxx | |||||
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 | ||||||
| Facsimile: | (000) 000-0000 | |||||
| COLTEC INDUSTRIAL PRODUCTS LLC | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx
|
|||||
| Xxxxxx X. Xxxxxx, Treasurer | ||||||
| Address: | c/o Coltec Industries Inc | |||||
| 0000 Xxxxxxxx Xxxxxxxxx | ||||||
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 | ||||||
| Facsimile: | (000) 000-0000 | |||||
| XXXXXXX SEALING TECHNOLOGIES LLC | ||||||
| By: | /s/ Xxxx X. Xxxx | |||||
| Xxxx X. Xxxx, Vice President and Secretary | ||||||
| Address: | 0000 Xxxxxxxx Xxxxxx | |||||
| Xxxxxxx, Xxx Xxxx 00000-0000 | ||||||
| Facsimile: | (000) 000-0000 | |||||
[Enpro/Amended and Restated Loan And Security Agreement]
S-1
| GGB LLC | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx
|
|||||
| Xxxxxx X. Xxxxxx, Treasurer | ||||||
| Address: | c/o Coltec Industries Inc | |||||
| 0000 Xxxxxxxx Xxxxxxxxx | ||||||
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 | ||||||
| Facsimile: | (000) 000-0000 | |||||
| CORROSION CONTROL CORPORATION | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Xxxxxx X. Xxxxxx, Treasurer | ||||||
| Address: | c/o Coltec Industries Inc | |||||
| 0000 Xxxxxxxx Xxxxxxxxx | ||||||
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 | ||||||
| Facsimile: | (000) 000-0000 | |||||
| STEMCO LP | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Xxxxxx X. Xxxxxx, Treasurer | ||||||
| Address: | c/o Coltec Industries Inc | |||||
| 0000 Xxxxxxxx Xxxxxxxxx | ||||||
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 | ||||||
| Facsimile: | (000) 000-0000 | |||||
[Enpro/Amended and Restated Loan And Security Agreement]
S-2
| GUARANTORS: | ||||||
| ENPRO INDUSTRIES, INC. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx
|
|||||
| Xxxxxx X. Xxxxxx, Vice President | ||||||
| and Treasurer | ||||||
| Address: | 0000 Xxxxxxxx Xxxxxxxxx | |||||
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 | ||||||
| Facsimile: | (000) 000-0000 | |||||
| QFM SALES AND SERVICES, INC. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Xxxxxx X. Xxxxxx, Treasurer | ||||||
| Address: | c/o Coltec Industries Inc | |||||
| 0000 Xxxxxxxx Xxxxxxxxx | ||||||
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 | ||||||
| Facsimile: | (000) 000-0000 | |||||
| COLTEC INTERNATIONAL SERVICES CO. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Xxxxxx X. Xxxxxx, Treasurer | ||||||
| Address: | c/o Coltec Industries Inc | |||||
| 0000 Xxxxxxxx Xxxxxxxxx | ||||||
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 | ||||||
| Facsimile: | (000) 000-0000 | |||||
[Enpro/Amended and Restated Loan And Security Agreement]
S-3
| XXXXXXXX LITIGATION MANAGEMENT GROUP, LTD. | ||||||
| By: | /s/ Xxxx X. Xxxxx | |||||
| Address: | c/o Garlock Sealing Technologies LLC | |||||
| 0000 Xxxxxxxx Xxxxxx | ||||||
| Xxxxxxx, Xxx Xxxx 00000-0000 | ||||||
| Facsimile: | (000) 000-0000 | |||||
| GGB, INC. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Xxxxxx X. Xxxxxx, Treasurer | ||||||
| Address: | c/o Coltec Industries Inc | |||||
| 0000 Xxxxxxxx Xxxxxxxxx | ||||||
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 | ||||||
| Facsimile: | (000) 000-0000 | |||||
| XXXXXXX INTERNATIONAL INC. | ||||||
| By: | /s/ Xxxx X. Xxxx | |||||
| Xxxx X. Xxxx, Vice President and Secretary | ||||||
| Address: | c/o Garlock Sealing Technologies LLC | |||||
| 0000 Xxxxxxxx Xxxxxx | ||||||
| Xxxxxxx, Xxx Xxxx 00000-0000 | ||||||
| Facsimile: | (000) 000-0000 | |||||
[Enpro/Amended and Restated Loan And Security Agreement]
S-4
| STEMCO DELAWARE LP | ||||||
| By: | /s/ Xxxxxxxxx X. Standing | |||||
| Address: | c/o Coltec Industries Inc | |||||
| 0000 Xxxxxxxx Xxxxxxxxx | ||||||
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 | ||||||
| Facsimile: | (000) 000-0000 | |||||
| STEMCO HOLDINGS, INC. | ||||||
| By: | /s/ Xxxxxx X. XxXxxxxx | |||||
| Xxxxxx X. XxXxxxxx, Vice President | ||||||
| Address: | c/o Coltec Industries Inc | |||||
| 0000 Xxxxxxxx Xxxxxxxxx | ||||||
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 | ||||||
| Facsimile: | (000) 000-0000 | |||||
| STEMCO HOLDINGS DELAWARE, INC. | ||||||
| By: | /s/ Xxxxxxxxx X. Standing | |||||
| Xxxxxxxxx X. Standing, Vice President and Treasurer | ||||||
| Address: | c/o Coltec Industries Inc | |||||
| 0000 Xxxxxxxx Xxxxxxxxx | ||||||
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 | ||||||
| Facsimile: | (000) 000-0000 | |||||
[Enpro/Amended and Restated Loan And Security Agreement]
S-5
| XXXXXXX OVERSEAS CORPORATION | ||||||
| By: | /s/ Xxxx X. Xxxx
|
|||||
| Xxxx X. Xxxx, Vice President and Secretary | ||||||
| Address: | c/o Garlock Sealing Technologies LLC | |||||
| 0000 Xxxxxxxx Xxxxxx | ||||||
| Xxxxxxx, Xxx Xxxx 00000-0000 | ||||||
| Facsimile: | (000) 000-0000 | |||||
[Enpro/Amended and Restated Loan And Security Agreement]
S-6
| LENDERS: | BANK OF AMERICA, N.A., as a Lender and Issuing Bank |
|||||||||
Revolver Commitment:
|
$ | 25,000,000 | By: | /s/ Xxxxxx X. Xxxxxxx
|
||||||
| Name: | Xxxxxx Xxxxxxx | |||||||||
| Title: | Senior Vice President | |||||||||
| LIBOR Lending Office: | ||||||||||
| 000 Xxxxxxxx Xxxxxxx, Xxxxx 000 | ||||||||||
| Xxxxxxx, Xxxxxxx 00000 | ||||||||||
| Attention: Loan Administration Officer — EnPro | ||||||||||
| Telecopier No.: (000) 000-0000 | ||||||||||
Signature Page — Amended and Restated Loan and Security Agreement
(EnPro)
(EnPro)
| CITICORP USA, INC. | ||||||||||
Revolver Commitment:
|
$ | 25,000,000 | By: | /s/ Miles X. XxXxxxx
|
||||||
| Name: | Miles X. XxXxxxx | |||||||||
| Title: | Vice President and Director | |||||||||
| LIBOR Lending Office: | ||||||||||
| 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx | ||||||||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||||||||
| Attention: Miles X. XxXxxxx, Director | ||||||||||
| Telecopier No.: (000) 000-0000 | ||||||||||
Signature Page — Amended and Restated Loan and Security Agreement
(EnPro)
(EnPro)
| WACHOVIA BANK, NATIONAL ASSOCIATION | ||||||||||
Revolver Commitment:
|
$ | 25,000,000 | ||||||||
| By: | /s/ Xxx X. Xxxxx
|
|||||||||
| Name: | Xxx X. Xxxxx | |||||||||
| Title: | Vice President | |||||||||
| LIBOR Lending Office: | ||||||||||
| Wachovia Capital Finance | ||||||||||
| 0000 XXX Xxxxxxx, Xxxxx 0000 | ||||||||||
| Xxxxxx, Xxxxx 00000 | ||||||||||
| Attention: Xxx Xxxxx | ||||||||||
| Telecopier No.: (000) 000-0000 | ||||||||||
Signature Page — Amended and Restated Loan and Security Agreement
(EnPro)
(EnPro)
| AGENT: | BANK OF AMERICA, N.A., as Agent |
|||||||
| By: | /s/ Xxxxxx X. Xxxxxxx
|
|||||||
| Name: | Xxxxxx Xxxxxxx | |||||||
| Title: | Senior Vice President | |||||||
| Address: | ||||||||
| 000 Xxxxxxxx Xxxxxxx, XX — Xxxxx 000 | ||||||||
| Xxxxxxx, Xxxxxxx 00000 | ||||||||
| Attention: Loan Administration Officer — EnPro | ||||||||
| Telecopier No.: (000) 000-0000 | ||||||||
Signature Page — Amended and Restated Loan and Security Agreement
(EnPro)
(EnPro)
