EXHIBIT 10.1
CREDIT AGREEMENT
among
ZURN INDUSTRIES, INC.
ELJER MANUFACTURING, INC.
VARIOUS LENDING INSTITUTIONS,
NATIONSBANK, N.A.,
AS DOCUMENTATION AGENT
and
BANKERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT
____________________________________
Dated as of January 21, 1997
____________________________________
$250,000,000
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TABLE OF CONTENTS
Page
SECTION 1. Amount and Terms of Credit 1
1.01 Commitment 1
1.02 Minimum Borrowing Amounts; etc. 2
1.03 Notice of Borrowing; etc. 2
1.04 Disbursement of Funds 3
1.05 Notes 3
1.06 Conversions 4
1.07 Pro Rata Borrowings 5
1.08 Interest 5
1.09 Interest Periods 6
1.10 Increased Costs; Illegality; etc. 7
1.11 Compensation 9
1.12 Change of Lending Office 9
1.13 Replacement of Banks 10
SECTION 2. Letters of Credit 10
2.01 Letters of Credit 10
2.02 Minimum Stated Amount 12
2.03 Letter of Credit Requests; Notices of Issuance 12
2.04 Agreement to Repay 12
2.05 Letter of Credit Participations 13
2.06 Increased Costs 15
SECTION 3. Fees; Commitments 16
3.01 Fees 16
3.02 Voluntary Reduction of Commitments 17
3.03 Mandatory Adjustments of Commitments; etc. 18
SECTION 4. Payments 18
4.01 Voluntary Prepayments 18
4.02 Mandatory Prepayments 19
4.03 Method and Place of Payment 22
4.04 Net Payments 22
SECTION 5. Conditions Precedent 24
5.01 Conditions Precedent to Initial Borrowing Date 24
5.02 Conditions Precedent to B Term Loans 29
5.03 Conditions Precedent to Merger Date 31
5.04 Conditions Precedent to All Credit Events 31
SECTION 6. Representations, Warranties and Agreements 32
6.01 Corporate Status 32
6.02 Corporate Power and Authority 32
6.03 No Violation 32
6.04 Litigation 33
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6.05 Use of Proceeds; Margin Regulations 33
6.06 Governmental Approvals 33
6.07 Investment Company Act 33
6.08 Public Utility Holding Company Act 34
6.09 True and Complete Disclosure 34
6.10 Financial Condition; Financial Statements 34
6.11 Security Interests 35
6.12 Representations and Warranties in Merger Agreement 35
6.13 Tax Returns and Payments 36
6.14 Compliance with ERISA 36
6.15 Subsidiaries 37
6.16 Intellectual Property; etc. 37
6.17 Pollution and Other Regulations 37
6.18 Properties 38
6.19 Labor Relations 38
6.20 Existing Indebtedness 38
6.21 Offer to Purchase 39
6.22 Merger 39
SECTION 7. Affirmative Covenants 39
7.01 Information Covenants 39
7.02 Books, Records and Inspections 41
7.03 Insurance 41
7.04 Payment of Taxes 42
7.05 Consolidated Corporate Franchises 42
7.06 Compliance with Statutes; etc. 42
7.07 ERISA 42
7.08 Good Repair 43
7.09 End of Fiscal Years; Fiscal Quarters 43
7.10 Additional Security; Further Assurances; etc 43
7.11 Corporate Separateness 45
7.12 Interest Rate Agreement 45
7.13 Merger; Control 45
7.14 Compliance with Environmental Laws 46
SECTION 8. Negative Covenants 46
8.01 Changes in Business 46
8.02 Consolidation; Merger; Sale or Purchase of Assets; etc. 46
8.03 Liens 47
8.04 Indebtedness 49
8.05 Capital Expenditures 50
8.06 Investments and Loans 50
8.07 Subsidiaries; etc. 50
8.08 Certain Actions 50
8.09 Dividends; etc. 51
8.10 Transactions with Affiliates 51
8.11 Fixed Charge Coverage Ratio 52
8.12 Minimum Net Worth 52
8.13 Capitalization Ratio 52
8.14 Interest Expense Ratio 53
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SECTION 9. Events of Default 53
9.01 Payments 53
9.02 Representations; etc. 53
9.03 Covenants 53
9.04 Default Under Other Agreements 53
9.05 Bankruptcy; etc. 54
9.06 ERISA 54
9.07 Credit Documents 55
9.08 Judgments 55
9.09 Merger Date 55
SECTION 10. Definitions 56
SECTION 11. The Agents 81
11.01 Appointment 81
11.02 Nature of Duties 81
11.03 Lack of Reliance on the Agents 82
11.04 Certain Rights of the Agents 82
11.05 Reliance 82
11.06 Indemnification 82
11.07 Each Agent in Its Individual Capacity 83
11.08 Holders 83
11.09 Resignation by the Agents 83
SECTION 12. Miscellaneous 84
12.01 Payment of Expenses; etc. 84
12.02 Right of Setoff 85
12.03 Notices 85
12.04 Benefit of Agreement 85
12.05 No Waiver; Remedies Cumulative 87
12.06 Payments Pro Rata 87
12.07 Calculations; Computations 88
12.08 Governing Law; Submission to Jurisdiction; Venue;
Waiver of Jury Trial 88
12.09 Counterparts 89
12.10 Execution 89
12.11 Headings Descriptive 89
12.12 Amendment or Waiver 89
12.13 Survival 90
12.14 Domicile of Loans 90
12.15 Confidentiality 90
12.16 Bank Register 90
12.17 Judgment Currency 91
ANNEX I--Commitments
ANNEX II--Bank Addresses
ANNEX III--Litigation
ANNEX IV--Government Approvals
ANNEX V--Subsidiaries
ANNEX VI--Environmental Claims
ANNEX VII--Properties
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ANNEX VIII--Existing Indebtedness
ANNEX IX--Insurance Policies
ANNEX X--Existing Liens
ANNEX XI--Existing Letters of Credit
ANNEX XII--Existing Investments
ANNEX XIII--Adjusted Consolidated EBITDA
ANNEX XIV--Permitted Sales
EXHIBIT A-1--Form of Notice of Borrowing
EXHIBIT A-2--Form of Letter of Credit Request
EXHIBIT B-1--Form of A Term Note
EXHIBIT B-2--Form of B Term Note
EXHIBIT B-3--Form of Revolving Note
EXHIBIT C--Section 4.04 Certificate
EXHIBIT D-1--Form of Opinion of Counsel for the Company and Eljer
EXHIBIT D-2--Form of Opinion of White & Case
EXHIBIT E--Form of Closing Certificate
EXHIBIT F-1--Form of Subsidiary Guaranty
EXHIBIT F-2--Form of Company Guaranty
EXHIBIT G--Form of Pledge Agreement
EXHIBIT H--Form of Security Agreement
EXHIBIT I--Form of Solvency Letter
EXHIBIT J--Form of Consent Letter
EXHIBIT K--Special Funding Procedures Letter
EXHIBIT L--Form of Assignment Agreement
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CREDIT AGREEMENT dated as of January 21, 1997, among ZURN
INDUSTRIES, INC., a Pennsylvania corporation, the lending institutions listed
from time to time on Annex I hereto (each a "Bank" and, collectively, the
"Banks"), NATIONSBANK, N.A., as Documentation Agent and BANKERS TRUST COMPANY,
as Administrative Agent, and on and after the date it becomes party hereto,
ELJER MANUFACTURING, INC., a Delaware corporation. Unless otherwise defined
herein, all capitalized terms used herein and defined in Section 10 are used
herein as so defined.
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions set forth
herein, the Banks are willing to make available to the Borrowers the credit
facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 Commitment. Subject to and upon the terms and conditions
herein set forth, each Bank severally agrees to make loans (each a "Loan" and,
collectively, the "Loans") to the respective Borrowers, which Loans shall be
drawn to the extent such Bank has a commitment under such Facility, under the
A Term Facility, the B Term Facility and the Revolving Facility, as set forth
below:
(a) Loans under the A Term Facility (each an "A Term Loan" and,
collectively, the "A Term Loans") (i) may only be incurred by the
Company, (ii) are to be made pursuant to (x) an initial borrowing on the
Initial Borrowing Date and (y) to the extent the Total A Term Commitment
remains available, a second borrowing on the Merger Date; (iii) except
as hereinafter provided, may, at the option of the Company, be incurred
and maintained as, and/or converted into, Base Rate Loans or Eurodollar
Loans, provided that all Loans made as part of the same Borrowing shall,
unless otherwise specifically provided herein, consist of Loans of the
same Type; and (iv) shall not exceed for any Bank at the time of
incurrence thereof in aggregate principal amount the A Term Commitment,
if any, of such Bank at such time. Once repaid, A Term Loans may not be
reborrowed.
(b) Loans under the B Term Facility (each a "B Term Loan" and
collectively, the "B Term Loans"): (i) may only be incurred by EMI;
(ii) are to be made pursuant to (x) an initial borrowing on the Merger
Date or thereafter (but no later than January 31, 1997), (y) additional
borrowings on one or more Business Days occurring after the Merger Date
and prior to the B Term Termination Date and (z) to the extent the Total
B Term Commitment remains available, a borrowing on the Plan
Confirmation Date; (iii) except as hereinafter provided, may, at the
option of EMI, be incurred and maintained as, and/or converted into Base
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Rate Loans or Eurodollar Loans, provided that all Loans made as part of
the same Borrowing shall, unless otherwise specifically provided herein,
consist entirely of Loans of the same Type; and (iv) shall not exceed
for any Bank at the time of incurrence thereof in aggregate principal
amount the B Term Commitment, if any, of such Bank as in effect on such
date. Once repaid, B Term Loans may not be reborrowed.
(c) Loans under the Revolving Facility (each a "Revolving Loan"
and, collectively, the "Revolving Loans") (i) may be incurred only by
the Company; (ii) may be made at any time and from time to time on and
after the Initial Borrowing Date and prior to the Maturity Date; (iii)
except as hereinafter provided, may, at the option of the Company, be
incurred and maintained as, and/or converted into, Base Rate Loans or
Eurodollar Loans, provided that all Loans made as part of the same
Borrowing shall, unless otherwise specifically provided herein, consist
of Loans of the same Type; (iv) may be repaid and be reborrowed in
accordance with the provisions hereof; and (v) shall not exceed for any
Bank, after giving effect to any borrowing thereof and the use of the
proceeds of such borrowing, that aggregate principal amount which, when
combined with such Bank's RF Percentage of the Letter of Credit
Outstandings at such time, equals the Revolving Commitment of such Bank
at such time.
1.02 Minimum Borrowing Amounts; etc. The aggregate principal
amount of each Borrowing shall not be less than the Minimum Borrowing Amount.
More than one Borrowing may be incurred on any day, provided that at no time
shall there be outstanding more than 10 Borrowings of Eurodollar Loans
hereunder.
1.03 Notice of Borrowing; etc. (a) Whenever a Borrower desires
to incur Loans, the Company (together, in the case of B Term Loans, with EMI)
shall give the Administrative Agent at its Notice Office (x) prior to 10:00
A.M. (New York time), at least three Business Days prior written notice (or
telephonic notice promptly confirmed in writing) of each Borrowing of
Eurodollar Loans or (y) prior to 10:00 A.M. (New York time) on the proposed
date thereof written notice (or telephonic notice promptly confirmed in
writing) of each Borrowing of Base Rate Loans to be made hereunder. Each such
notice (each a "Notice of Borrowing") shall be in the form of Exhibit A-1 and
shall be irrevocable and shall specify (i) the Facility pursuant to which each
Borrowing is being made, (ii) the aggregate principal amount of the Loans to
be made pursuant to each Borrowing, (iii) the date of Borrowing (which shall
be a Business Day) and (iv) whether any respective Borrowing shall consist of
Base Rate Loans or Eurodollar Loans and, if Eurodollar Loans, the Interest
Period to be initially applicable thereto. The Administrative Agent shall
promptly give each Bank written notice (or telephonic notice promptly
confirmed in writing) of each proposed Borrowing, of such Bank's proportionate
share thereof and of the other matters covered by the Notice of Borrowing.
(b) Without in any way limiting the obligation of a Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent may prior to receipt of written confirmation act without
liability upon the basis of such telephonic notice, believed by the
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Administrative Agent in good faith to be from an Authorized Officer of such
Borrower. In each such case, each Borrower hereby waives the right to dispute
the Administrative Agent's record of the terms of such telephonic notice.
1.04 Disbursement of Funds. (a) No later than 1:00 P.M. (New
York time) on the date specified in a Notice of Borrowing, each Bank with a
Commitment under the respective Facility will make available its pro rata
share of each Borrowing requested to be made on such date in the manner
provided below. All such amounts shall be made available to the
Administrative Agent in U.S. dollars and immediately available funds at the
Payment Office and the Administrative Agent promptly will make available to
the Borrower by depositing to its account at the Payment Office the aggregate
of the amounts so made available in the type of funds received. Unless the
Administrative Agent shall have been notified by any Bank prior to the date of
Borrowing that such Bank does not intend to make available to the
Administrative Agent its portion of the Borrowing or Borrowings to be made on
such date, the Administrative Agent may assume that such Bank has made such
amount available to the Administrative Agent on such date of Borrowing, and
the Administrative Agent, in reliance upon such assumption, may (in its sole
discretion and without any obligation to do so) make available to the Borrower
a corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent by such Bank and the Administrative
Agent has made available same to the Borrower, the Administrative Agent shall
be entitled to recover such corresponding amount from such Bank. If such Bank
does not pay such corresponding amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent shall promptly notify the
Borrower, and the Borrower shall immediately pay such corresponding amount to
such Agent. The Administrative Agent shall also be entitled to recover on
demand from such Bank or the Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to the Borrower to the
date such corresponding amount is recovered by the Administrative Agent, at a
rate per annum equal to (x) if paid by such Bank, the overnight Federal Funds
Effective Rate or (y) if paid by the Borrower, the then applicable rate of
interest, calculated in accordance with Section 1.08, for the respective
Loans.
(b) Notwithstanding the foregoing, the Special Funding Procedures
Letter shall be executed by the Company and each Bank prior to the Initial
Borrowing Date to provide for mutually satisfactory arrangements whereby a
pre-funding of the initial A Term Loans comprising Share Purchase Loans shall
be made in advance of the Tender Offer Closing Date.
(c) Nothing herein shall be deemed to relieve any Bank from its
obligation to fulfill its commitments hereunder or to prejudice any rights
which the Borrower may have against any Bank as a result of any default by
such Bank hereunder.
1.05 Notes. (a) The respective Borrower's obligation to pay the
principal of, and interest on, the Loans made to it by each Bank shall be
evidenced (i) if A Term Loans, by a promissory note substantially in the form
of Exhibit B-1 with blanks appropriately completed in conformity herewith
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(each an "A Term Note" and, collectively, the "A Term Notes"), (ii) if B Term
Loans, by a promissory note substantially in the form of Exhibit B-2 with
blanks appropriately completed in conformity herewith (each a "B Term Note"
and collectively, the "B Term Notes") and (iii) if Revolving Loans, by a
promissory note substantially in the form of Exhibit B-3 with blanks
appropriately completed in conformity herewith (each a "Revolving Note" and,
collectively, the "Revolving Notes").
(b) The A Term Note issued to each Bank with an A Term Commitment
shall (i) be executed by the Company, (ii) be payable to the order of such
Bank and be dated the Initial Borrowing Date, (iii) be in a stated principal
amount equal to the A Term Commitment of such Bank and be payable in the prin-
cipal amount of the A Term Loans evidenced thereby, (iv) mature on the
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the
case may be, evidenced thereby, (vi) be subject to mandatory repayment as
provided in Section 4.02 and (vii) be entitled to the benefits of this
Agreement and the other Credit Documents.
(c) The B Term Note issued to each Bank with a B Term Commitment
shall (i) be executed by EMI; (ii) be payable to the order of such Bank and be
dated the Initial B Term Loan Date; (iii) be in a stated principal amount
equal to the B Term Commitment of such Bank and be payable in the principal
amount of B Term Loans evidenced thereby; (iv) mature on the Maturity Date;
(v) bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby; (vi) be subject to mandatory repayment as provided in
Section 4.02; and (vii) be entitled to the benefits of this Agreement and the
other Credit Documents.
(d) The Revolving Note issued to each Bank shall (i) be executed
by the Company, (ii) be payable to the order of such Bank and be dated the
Initial Borrowing Date, (iii) be in a stated principal amount equal to the
Revolving Commitment of such Bank and be payable in the principal amount of
the Revolving Loans evidenced thereby, (iv) mature on the Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08 in respect
of the Base Rate Loans and Eurodollar Loans, as the case may be, evidenced
thereby, (vi) be subject to mandatory repayment as provided in Section 4.02
and (vii) be entitled to the benefits of this Agreement and the other Credit
Documents.
(e) Each Bank will note on its internal records the amount of
each Loan made by it and each payment in respect thereof and will, prior to
any transfer of any of its Notes, endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation shall not affect the Borrower's obligations in respect of such
Loans.
1.06 Conversions. Each Borrower shall have the option to convert
on any Business Day all or a portion at least equal to the applicable Minimum
Borrowing Amount of the outstanding principal amount of the Loans owing by it
pursuant to a single Facility into a Borrowing or Borrowings pursuant to such
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Facility of another Type of Loan, provided that (i) no partial conversion of a
Borrowing of Eurodollar Loans shall reduce the outstanding principal amount of
the Eurodollar Loans made pursuant to such Borrowing to less than the Minimum
Borrowing Amount applicable thereto, (ii) Base Rate Loans may not be converted
into Eurodollar Loans if any violation of Section 9.01 or any Event of Default
is then in existence to the extent that the Administrative Agent or the
Required Banks have determined that any such conversion at such time would be
disadvantageous to the Banks and (iii) Borrowings of Eurodollar Loans
resulting from this Section 1.06 shall be limited in number as provided in
Section 1.02. Each such conversion shall be effected by the respective
Borrower giving the Administrative Agent at its Notice Office, prior to 10:00
A.M. (New York time), at least three Business Days (or one Business Day, in
the case of a conversion into Base Rate Loans) prior written notice (or
telephonic notice promptly confirmed in writing) (each a "Notice of
Conversion") specifying the Loans to be so converted, the Type of Loans to be
converted into and, if to be converted into a Borrowing of Eurodollar Loans,
the Interest Period to be initially applicable thereto. The Administrative
Agent shall give each Bank prompt notice of any such proposed conversion
affecting any of its Loans.
1.07 Pro Rata Borrowings. All A Term Loans, all B Term Loans and
all Revolving Loans shall be made by the Banks pro rata on the basis of their
respective A Term Commitments, B Term Commitments and Revolving Commitments,
as the case may be. It is understood that no Bank shall be responsible for any
default by any other Bank in its obligation to make Loans hereunder and that
each Bank shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Bank to fulfill its
commitments hereunder.
1.08 Interest. (a) The unpaid principal amount of each Base
Rate Loan shall bear interest from the date of the Borrowing thereof until
maturity (whether by acceleration or otherwise) at a rate per annum which
shall at all times be the Applicable Base Rate Margin plus the Base Rate in
effect from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall
bear interest from the date of the Borrowing thereof until maturity (whether
by acceleration or otherwise) at a rate per annum which shall at all times be
the Applicable Eurodollar Margin plus the relevant Eurodollar Rate.
(c) All overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall bear interest at a rate per annum equal to the Base Rate in
effect from time to time plus the sum of (i) 2% and (ii) the Applicable Base
Rate Margin, provided that each Eurodollar Loan shall bear interest after
maturity (whether by acceleration or otherwise) until the end of the Interest
Period applicable to it at such maturity at a rate per annum equal to 2% in
excess of the rate of interest applicable thereto at such maturity.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on the
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last Business Day of each March, June, September and December, (ii) in respect
of each Eurodollar Loan, on the last day of each Interest Period applicable
thereto and, in the case of an Interest Period of six months, on the date
occurring three months after the first day of such Interest Period and (iii)
in respect of each Loan, on any prepayment or conversion (other than the
prepayment or conversion of Revolving Loans that are Base Rate Loans) (on the
amount prepaid or converted), at maturity (whether by acceleration or
otherwise) and, after such maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 12.07(b).
(f) The Administrative Agent, upon determining the interest rate
for any Borrowing of Eurodollar Loans for any Interest Period, shall promptly
notify the Borrower and the Banks thereof.
1.09 Interest Periods. (a) At the time a Borrower gives a
Notice of Borrowing or Notice of Conversion in respect of the making of, or
conversion into, a Borrowing of Eurodollar Loans (in the case of the initial
Interest Period applicable thereto) or prior to 10:00 A.M. (New York time) on
the third Business Day prior to the expiration of an Interest Period
applicable to a Borrowing of Eurodollar Loans of such Borrower, it shall have
the right to elect by giving the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) of the Interest Period
applicable to such Borrowing, which Interest Period shall, at the option of
such Borrower, be a one, two, three or six month period. Notwithstanding
anything to the contrary contained above:
(i) the initial Interest Period for any Borrowing of Eurodollar
Loans shall commence on the date of such Borrowing (including the date
of any conversion from a Borrowing of Base Rate Loans) and each Interest
Period occurring thereafter in respect of such Borrowing shall commence
on the day on which the next preceding Interest Period expires;
(ii) if any Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day
of such calendar month;
(iii) if any Interest Period would otherwise expire on a day which
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided that if any Interest Period would
otherwise expire on a day which is not a Business 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 next preceding Business Day;
(iv) subject to the foregoing changes (i) through (iii), only a one
month Interest Period shall be available to be selected prior to the
Syndication Date, with all Loans under each Facility during such period
to be outstanding pursuant to a single Borrowing, with all such
Borrowings to commence and end on the same day;
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(v) no Interest Period shall extend beyond the Maturity Date;
(vi) no Interest Period with respect to any Borrowing of A Term
Loans or B Term Loans may be elected that would extend beyond any date
upon which a Scheduled Repayment is required to be made in respect of
such Loans if, after giving effect to the selection of such Interest
Period, the aggregate principal amount of A Term Loans or B Term Loans,
as the case may be, maintained as Eurodollar Loans with Interest Periods
ending after such date would exceed the aggregate principal amount of A
Term Loans or B Term Loans, as the case may be, permitted to be
outstanding after such Scheduled Repayment; and
(vii) no Interest Period may be elected at any time when a violation
of Section 9.01 or an Event of Default is then in existence if the
Administrative Agent or the Required Banks have determined that such an
election at such time would be disadvantageous to the Banks.
(b) If upon the expiration of any Interest Period applicable to
its Loans, a Borrower has failed to (or may not) elect a new Interest Period
to be applicable to the respective Borrowing of Eurodollar Loans as provided
above, such Borrower shall be deemed to have elected to convert such Borrowing
into a Borrowing of Base Rate Loans effective as of the expiration date of
such current Interest Period.
1.10 Increased Costs; Illegality; etc. (a) In the event that
(x) in the case of clause (i) below, the Administrative Agent or (y) in the
case of clauses (ii) and (iii) below, any Bank shall have determined (which
determination shall, absent manifest error, be final and conclusive and
binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any
Interest Period that, by reason of any changes arising after the
Effective Date affecting the interbank Eurodollar market, adequate and
fair means do not exist for ascertaining the applicable interest rate on
the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect
to any Eurodollar Loans (other than any increased cost or reduction in
the amount received or receivable resulting from a change in the rate of
taxes or similar charges) because of (x) any change since the Effective
Date in any applicable law, governmental rule, regulation, guideline or
order (or in the interpretation or administration thereof and including
the introduction of any new law or governmental rule, regulation, guide-
line or order) (such as, for example, but not limited to, a change in
official reserve requirements, but, in all events, excluding reserves
required under Regulation D to the extent included in the computation of
the Eurodollar Rate) and/or (y) other circumstances affecting such Bank
or the interbank Eurodollar market; or
(iii) at any time, that the making or continuance of any Eurodollar
Loan has become unlawful by compliance by such Bank in good faith with
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any law, governmental rule, regulation, guideline (or would conflict
with any such governmental rule, regulation, guideline or order not
having the force of law but with which such Bank customarily complies
even though the failure to comply therewith would not be unlawful), or
has become impracticable as a result of a contingency occurring after
the Effective Date which materially and adversely affects the interbank
Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent in the
case of clause (i) above) shall (x) on such date and (y) within ten Business
Days of the date on which such event no longer exists give notice (by
telephone confirmed in writing) to the respective Borrower or Borrowers and to
the Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each of the other Banks).
Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no
longer be available until such time as the Administrative Agent notifies the
Borrower and the Banks that the circumstances giving rise to such notice by
the Administrative Agent no longer exist, and any Notice of Borrowing or
Notice of Conversion given by a Borrower with respect to Eurodollar Loans
which have not yet been incurred shall be deemed rescinded by such Borrower,
(y) in the case of clause (ii) above, the respective Borrower or Borrowers
shall pay to such Bank, upon written demand therefor, such additional amounts
(in the form of an increased rate of, or a different method of calculating,
interest or otherwise as such Bank in its sole discretion shall determine) as
shall be required to compensate such Bank for such increased costs or
reductions in amounts receivable hereunder (a written notice as to the
additional amounts owed to such Bank, showing the basis for the calculation
thereof, submitted to the Borrower or Borrowers by such Bank shall, absent
manifest error, be final and conclusive and binding upon all parties hereto)
and (z) in the case of clause (iii) above, a Borrower shall take one of the
actions specified in Section 1.10(b) as promptly as possible and, in any
event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the respective
Borrower may (and in the case of a Eurodollar Loan affected pursuant to
Section 1.10(a)(iii) each Borrower shall) either (i) if the affected
Eurodollar Loan is then being made pursuant to a Borrowing, cancel said
Borrowing by giving the Administrative Agent telephonic notice (confirmed
promptly in writing) thereof on the same date that the respective Borrower was
notified by a Bank pursuant to Section 1.10(a)(ii) or (iii), or (ii) if the
affected Eurodollar Loan is then outstanding, upon at least three Business
Days' notice to the Administrative Agent, require the affected Bank to convert
each such Eurodollar Loan into a Base Rate Loan, provided that if more than
one Bank is affected at any time, then a Borrower must treat all affected
Banks the same pursuant to this Section 1.10(b).
(c) If any Bank shall have determined that after the Effective
Date, the adoption or effectiveness of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
-16- -8-
administration thereof, or compliance by such Bank with any request or
directive regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank or comparable agency, has or would have
the effect of reducing the rate of return on such Bank's capital or assets as
a consequence of its commitments or obligations hereunder to a level below
that which such Bank could have achieved but for such adoption, effectiveness,
change or compliance (taking into consideration such Bank's policies with
respect to capital adequacy), then from time to time, within 15 days after
demand by such Bank (with a copy to the Administrative Agent), the Company
shall pay to such Bank such additional amount or amounts as will compensate
such Bank for such reduction. Each Bank, upon determining in good faith that
any additional amounts will be payable pursuant to this Section 1.10(c), will
give prompt written notice thereof to the Company, which notice shall set
forth the basis of the calculation of such additional amounts, although the
failure to give any such notice shall not release or diminish any of the
Company's obligations to pay additional amounts pursuant to this Section
1.10(c) upon the subsequent receipt of such notice.
1.11 Compensation. (a) Each Borrower shall compensate each Bank
that has made Loans to it, upon its written request (which request shall set
forth the basis for requesting such compensation), for all reasonable losses,
expenses and liabilities (including, without limitation, any loss, expense or
liability incurred by reason of the liquidation or reemployment of deposits or
other funds required by such Bank to fund its Eurodollar Loans but excluding
in any event the loss of anticipated profits) which such Bank may sustain:
(i) if for any reason (other than a default by such Bank or the Administrative
Agent) a Borrowing of Eurodollar Loans by such Borrower does not occur on a
date specified therefor in a Notice of Borrowing or Notice of Conversion
(whether or not withdrawn by such Borrower or deemed withdrawn pursuant to
Section 1.10(a)); (ii) if any prepayment, repayment or conversion of any of
the Eurodollar Loans made by it to such Borrower occurs on a date which is not
the last day of an Interest Period applicable thereto; (iii) if any prepayment
of any of the Eurodollar Loans made by it to such Borrower is not made on any
date specified in a notice of prepayment given by such Borrower; or (iv) as a
consequence of (x) any other default by such Borrower to repay its Eurodollar
Loans when required by the terms of this Agreement or (y) an election made
pursuant to Sections 1.10(b) and 1.13 with respect to Loans made to such
Borrower.
(b) Notwithstanding anything in this Agreement to the contrary,
to the extent any notice required by Section 1.10, 2.06 or 4.04 is given by
any Bank more than 180 days after such Bank obtained, or reasonably should
have obtained, knowledge of the occurrence of the event giving rise to the
additional costs of the type described in such Section, such Bank shall not be
entitled to compensation under Section 1.10 or 2.06 for any amounts incurred
or accruing prior to the giving of such notice.
1.12 Change of Lending Office. Each Bank agrees that, upon the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), 1.10(c), 2.06 or 4.04 with respect to such Bank, it will, if requested
by the Company, use reasonable efforts (subject to overall policy considera-
tions of such Bank) to designate another lending office for any Loans, Letters
-17- -9-
of Credit or Acceptances affected by such event, provided that such desig-
nation is made on such terms that such Bank and its lending office suffer no
economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of any such Section.
Nothing in this Section 1.12 shall affect or postpone any of the obligations
of the Borrowers or the right of any Bank provided in Section 1.10, 2.06 or
4.04.
1.13 Replacement of Banks. (x) Upon the occurrence of any event
giving rise to the operation of Section 1.10(a)(ii) or (iii), Section 1.10(c),
2.06 or 4.04 with respect to any Bank which results in such Bank charging to a
Borrower increased costs in excess of those being generally charged by the
other Banks, (y) if a Bank becomes a Defaulting Bank and/or (z) in the case of
a refusal by a Bank to consent to a proposed change, waiver, discharge or
termination with respect to this Agreement which has been approved by the
Required Banks as provided in Section 12.12, the Company shall have the right,
if no Default or Event of Default then exists, to replace such Bank (the
"Replaced Bank") with one or more other transferee or transferees who shall be
acceptable to the Administrative Agent and none of whom shall constitute a
Defaulting Bank at the time of such replacement (collectively, the
"Replacement Bank") reasonably acceptable to the Administrative Agent,
provided that (i) at the time of any replacement pursuant to this Section
1.13, the Replacement Bank shall enter into one or more Assignment Agreements
pursuant to Section 12.04(b) (and with all fees payable pursuant to said
Section 12.04(b) to be paid by the Replacement Bank) pursuant to which the
Replacement Bank shall acquire all of the Commitments and outstanding Loans of
the Replaced Bank and, in connection therewith, shall pay to (I) the Replaced
Bank in respect thereof an amount equal to the sum of (A) an amount equal to
the principal of, and all accrued interest on, all outstanding Loans of the
Replaced Bank and (B) an amount equal to all accrued, but theretofore unpaid,
Fees owing to the Replaced Bank pursuant to Section 3.01 and (II) the Letter
of Credit Issuer all amounts owing to the Letter of Credit Issuer by the
Replaced Bank in respect of Unpaid Drawings and indemnities and (ii) all
obligations of the Borrowers owing to the Replaced Bank (other than those
specifically described in clause (i) above in respect of which the assignment
purchase price has been, or is concurrently being, paid) shall be paid in full
to such Replaced Bank concurrently with such replacement. Upon the execution
of the respective Assignment Agreement, the payment of amounts referred to in
clauses (i) and (ii) above and, if so requested by the Replacement Bank,
delivery to the Replacement Bank of the appropriate Note or Notes executed by
the respective Borrowers, the Replacement Bank shall become a Bank hereunder
and the Replaced Bank shall cease to constitute a Bank hereunder, except with
respect to indemnification provisions applicable to the Replaced Bank under
this Agreement, which shall survive as to such Replaced Bank.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, the Company may request that the Letter of Credit
Issuer at any time and from time to time on or after the Initial Borrowing
Date and prior to the Maturity Date to issue, for the account of the Company
and in support of (x) trade obligations of the Company and its Subsidiaries
-18- -10-
incurred in the ordinary course of business (letters of credit issued for such
purposes, "Trade Letters of Credit") and (y) workmen's compensation, liability
insurance, releases of contract retention obligations, contract performance
guarantee requirements and like bonding requirements of the Company and its
Subsidiaries arising in the ordinary course of business and such other standby
obligations of the Company and its Subsidiaries that are acceptable (to the
extent not excluded by the Administrative Agent on or prior to the Initial
Borrowing Date) to the Administrative Agent (letters of credit issued for such
purposes, "Standby Letters of Credit"), and subject to and upon the terms and
conditions herein set forth the Letter of Credit Issuer agrees to issue from
time to time, irrevocable letters of credit denominated in an Approved
Currency in such form as may be approved by the Letter of Credit Issuer and
the Administrative Agent. A Trade Letter of Credit shall be payable at sight
or through the creation thereunder by the Letter of Credit Issuer of an
Acceptance satisfying the terms of such Letter of Credit. Letters of Credit
and Acceptances shall include each of the Existing Letters of Credit and
Existing Acceptances, which shall be deemed issued, for purposes of Sections
2.05(a), 3.01(b) and 3.01(c), on the Initial Borrowing Date.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall
be issued if after giving effect thereto (x) the Letter of Credit Outstandings
would exceed $40,000,000 ($30,000,000 on and after January 1, 1998) or (y) the
sum of the Letter of Credit Outstandings plus the aggregate principal amount
of all Revolving Loans would exceed the Total Revolving Commitment at such
time; (ii) each Standby Letter of Credit shall have an expiry date occurring
not later than one year (or 18 months in the case of Letters of Credit issued
prior to the second anniversary of the Initial Borrowing Date with an
aggregate Stated Amount not in excess of $20,000,000) after such Letter of
Credit's date of issuance although any Standby Letter of Credit may be
extendable for successive periods of up to 12 months, but not beyond the
Business Day next preceding the Maturity Date, on terms acceptable to the
Letter of Credit Issuer and in no event shall any Standby Letter of Credit
have an expiry date occurring later than the Business Day next preceding the
Maturity Date; (iii) no Acceptance shall have a stated maturity occurring less
than 30 days after the creation thereof or later than (x) 90 days after the
creation thereof or (y) the Business Day next preceding the Maturity Date and
each Trade Letter of Credit that provides for payment through the creation of
an Acceptance must also provide that it may also be honored, at the discretion
of the Issuing Bank, by a payment in cash in the applicable Approved Currency,
it being understood that the Issuing Bank may (but shall not be obligated to)
exercise such option at any time an Event of Default exists; and (iv) each
Trade Letter of Credit shall have an expiry date occurring not later than (x)
180 days after such Letter of Credit's date of issuance or (y) the date 30
days prior to the Maturity Date.
(c) Notwithstanding the foregoing, in the event a Bank Default
exists, the Letter of Credit Issuer shall not be required to issue any Letter
of Credit or create any Acceptance unless the Letter of Credit Issuer has
entered into arrangements satisfactory to it and the Company to eliminate the
Letter of Credit Issuer's risk with respect to the participation in Letters of
Credit and/or Acceptances of the Defaulting Bank or Banks, including by cash
collateralizing such Defaulting Bank's or Banks' RF Percentage of the Letter
of Credit Outstandings.
-19- -11-
2.02 Minimum Stated Amount. The initial Stated Amount of each
Letter of Credit (other than the Existing Letters of Credit as to which no
minimum is established hereby) shall be not less than $25,000 or such lesser
amount acceptable to the Letter of Credit Issuer.
2.03 Letter of Credit Requests; Notices of
Issuance. (a) Whenever it desires that a Letter of Credit be issued after
the Initial Borrowing Date, the Company shall give the Administrative Agent
and the Letter of Credit Issuer written notice (including by way of tele-
copier) in the form of Exhibit A-2 hereof prior to 1:00 P.M. (New York time)
at least five Business Days (three Business Days in the case of Trade Letters
of Credit or, in any event, or such shorter period as may be acceptable to the
Letter of Credit Issuer) prior to the proposed date of issuance (which shall
be a Business Day) (each a "Letter of Credit Request"), which Letter of Credit
Request shall include any other documents that the Letter of Credit Issuer
customarily requires in connection therewith.
(b) The Letter of Credit Issuer shall, promptly after each
issuance of a Standby Letter of Credit by it, give the Administrative Agent,
each Bank with a Revolving Commitment and the Company written notice of the
issuance of such Standby Letter of Credit, accompanied by a copy of such
Letter of Credit. The Administrative Agent will send to each Bank with a
Revolving Commitment, upon each L/C Fee payment, a report setting forth for
the relevant period the daily aggregate Letter of Credit Outstandings during
such period.
2.04 Agreement to Repay. (a) The Company hereby agrees to
reimburse the Letter of Credit Issuer, by making payment to it at the Payment
Office, for any payment or disbursement made by the Letter of Credit Issuer
under any Letter of Credit and for each Acceptance upon the stated maturity
date thereof (each such amount so paid, disbursed or matured until reimbursed,
an "Unpaid Drawing") immediately after, and in any event on the date on which,
the Company is notified by the Letter of Credit Issuer of such payment,
disbursement or maturity, such payment to be made in U.S. dollars (and in the
Dollar Equivalent of any such payment, disbursement or matured Acceptance made
or denominated in an Alternate Currency), with interest on the amount so paid,
disbursed or matured, to the extent not reimbursed prior to 1:00 P.M. (New
York time) on the date of such payment, disbursement or maturity, from and
including the date paid, disbursed or matured to but not including the date
the Letter of Credit Issuer is reimbursed therefor at a rate per annum which
shall be the Applicable Base Rate Margin in excess of the Base Rate as in
effect from time to time (plus an additional 2% per annum if not reimbursed by
the third Business Day after the date of such notice of payment, disbursement
or maturity), such interest also to be payable on demand.
(b) The Company's obligation under this Section 2.04 to reimburse
the Letter of Credit Issuer with respect to Unpaid Drawings (including, in
each case, interest thereon) shall be absolute and unconditional under any and
all circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Company may have or have had against the Letter of Credit
Issuer, the Agents or any Bank, including, without limitation, any defense
based upon the failure of any drawing under a Letter of Credit or Acceptance
-20- -12-
to conform to the terms of the Letter of Credit or Acceptance or any
non-application or misapplication by the beneficiary of the proceeds of such
drawing; provided, however, that the Company shall not be obligated to
reimburse the Letter of Credit Issuer for any wrongful payment made by the
Letter of Credit Issuer under a Letter of Credit or Acceptance as a result of
acts or omissions constituting willful misconduct or gross negligence on the
part of the Letter of Credit Issuer.
2.05 Letter of Credit Participations. (a) Immediately upon the
issuance by the Letter of Credit Issuer of any Letter of Credit (and on the
Initial Borrowing Date with respect to any Existing Letter of Credit or any
Existing Acceptance), the Letter of Credit Issuer shall be deemed to have sold
and transferred to each other Bank, and each such Bank (each a "Participant")
shall be deemed irrevocably and unconditionally to have purchased and received
from the Letter of Credit Issuer, without recourse or warranty, an undivided
interest and participation, to the extent of such Bank's RF Percentage, in
such Letter of Credit, each substitute letter of credit, each drawing made
thereunder and each Acceptance created thereunder (and each Existing
Acceptance) and the obligations of the Company under this Agreement with
respect thereto (although the L/C Fee shall be payable directly to the
Administrative Agent for the account of the Banks as provided in Section
3.01(d) and the Participants shall have no right to receive any portion of any
Facing Fees) and any security therefor or guaranty pertaining thereto. Upon
any change in the Revolving Commitments of the Banks pursuant to Section 1.13
or 12.04(b) or upon a Bank Default, it is hereby agreed that, with respect to
all outstanding Letters of Credit, Acceptances and Unpaid Drawings, there
shall be an automatic adjustment to the participations pursuant to this
Section 2.05 to reflect the new RF Percentages of the assigning and assignee
Bank or of all Banks, as the case may be.
(b) In determining whether to pay or create an Acceptance under
any Letter of Credit or to pay any Acceptance, the Letter of Credit Issuer
shall not have any obligation relative to the Participants other than to
determine that the documents, if any, required to be delivered under such
Letter of Credit or Acceptance have been delivered and that they substantially
comply on their face with the requirements of such Letter of Credit or
Acceptance. Any action taken or omitted to be taken by the Letter of Credit
Issuer under or in connection with any Letter of Credit or Acceptance if taken
or omitted in the absence of gross negligence or willful misconduct, shall not
create for the Letter of Credit Issuer any resulting liability.
(c) In the event that the Letter of Credit Issuer makes any
payment under any Letter of Credit or Acceptance and the Company shall not
have reimbursed such amount in full to the Letter of Credit Issuer pursuant to
Section 2.04(a), the Letter of Credit Issuer shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify each
Participant of such failure, and each Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of the Letter
of Credit Issuer, the amount of such Participant's RF Percentage of such
payment (and the Dollar Equivalent of any such payment made in an Alternate
Currency) in U.S. dollars and in same day funds; provided, however, that no
Participant shall be obligated to pay to the Administrative Agent its RF
-21- -13-
Percentage of such unreimbursed amount for any wrongful payment made by the
Letter of Credit Issuer under a Letter of Credit or Acceptance as a result of
acts or omissions constituting willful misconduct or gross negligence on the
part of the Letter of Credit Issuer. If the Administrative Agent so notifies
any Participant required to fund an Unpaid Drawing prior to 11:00 A.M. (New
York time) on any Business Day, such Participant shall make available to the
Administrative Agent for the account of the Letter of Credit Issuer such
Participant's RF Percentage of the amount of such payment on such Business Day
in same day funds. If and to the extent such Participant shall not have so
made its RF Percentage of the amount of such Unpaid Drawing available to the
Administrative Agent for the account of the Letter of Credit Issuer, such
Participant agrees to pay to the Administrative Agent for the account of the
Letter of Credit Issuer, forthwith on demand such amount, together with inter-
est thereon, for each day from such date until the date such amount is paid to
the Administrative Agent for the account of the Letter of Credit Issuer at the
overnight Federal Funds Effective Rate. The failure of any Participant to
make available to the Administrative Agent for the account of the Letter of
Credit Issuer its RF Percentage of any Unpaid Drawing shall not relieve any
other Participant of its obligation hereunder to make available to the
Administrative Agent for the account of the Letter of Credit Issuer its RF
Percentage of any payment under any Letter of Credit or any Acceptance on the
date required, as specified above, but no Participant shall be responsible for
the failure of any other Participant to make available to the Administrative
Agent for the account of the Letter of Credit Issuer such other Participant's
RF Percentage of any such payment.
(d) Whenever the Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of the Letter of Credit Issuer any payments from the Participants
pursuant to clause (c) above, the Letter of Credit Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each
Participant which has paid its RF Percentage thereof, in U.S. dollars and in
same day funds, an amount equal to such Participant's RF Percentage of the
principal amount thereof and interest thereon accruing after the purchase of
the respective participations.
(e) The obligations of the Participants to make payments to the
Administrative Agent for the account of the Letter of Credit Issuer with
respect to Letters of Credit and Acceptances shall be irrevocable and not
subject to counterclaim, set-off or other defense or any other qualification
or exception whatsoever (provided that no Participant shall be required to
make payments resulting from the Letter of Credit Issuer's gross negligence or
willful misconduct) and shall be made in accordance with the terms and con-
ditions of this Agreement under all circumstances, including, without limit-
ation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or
any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right
which the Company may have at any time against a beneficiary named in a
Letter of Credit or a payee of an Acceptance, any transferee of any
-22- -14-
Letter of Credit or payee of Acceptance (or any Person for whom any such
transferee may be acting), the Agents, the Letter of Credit Issuer, any
Bank or other Person, whether in connection with this Agreement, any
Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the Company
and/or any Subsidiary and the beneficiary named in any such Letter of
Credit or payee of Acceptance);
(iii) any draft, certificate or other document, if any, presented
under the Letter of Credit or Acceptance proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
(f) To the extent the Letter of Credit Issuer is not indemnified
by the Company, the Participants will reimburse and indemnify the Letter of
Credit Issuer, in proportion to their respective RF Percentages, for and
against any and all liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, costs, expenses or disbursements of whatsoever
kind or nature which may be imposed on, asserted against or incurred by the
Letter of Credit Issuer in performing its respective duties in any way
relating to or arising out of its issuance of Letters of Credit and/or
creation of Acceptances; provided that no Participants shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Letter
of Credit Issuer's gross negligence or willful misconduct.
2.06 Increased Costs. (a) If at any time after the Effective
Date, the adoption or effectiveness of any applicable law, rule or regulation,
or any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by
the Letter of Credit Issuer or any Bank with any request or directive (whether
or not having the force of law) by any such authority, central bank or
comparable agency shall either (i) impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against Letters of
Credit issued by, or Acceptances created by, the Letter of Credit Issuer or
such Bank's participation therein, or (ii) shall impose on the Letter of
Credit Issuer or any Bank any other conditions affecting this Agreement, any
Letter of Credit, any Acceptance or such Bank's participation therein; and the
result of any of the foregoing is to increase the cost to the Letter of Credit
Issuer or such Bank of issuing, maintaining or participating in any Letter of
Credit or Acceptance, or to reduce the amount of any sum received or
receivable by the Letter of Credit Issuer or such Bank hereunder (other than
any increased cost or reduction in the amount received or receivable resulting
from the imposition of or a change in the rate of taxes or similar charges),
then, upon demand to the Company by the Letter of Credit Issuer or such Bank
-23- -15-
(a copy of which notice shall be sent by the Letter of Credit Issuer or such
Bank to the Administrative Agent), the Company shall pay to the Letter of
Credit Issuer or such Bank such additional amount or amounts as will
compensate the Letter of Credit Issuer or such Bank for such increased cost or
reduction. A certificate submitted to the Company by the Letter of Credit
Issuer or such Bank, as the case may be (a copy of which certificate shall be
sent by the Letter of Credit Issuer or such Bank to the Administrative Agent),
setting forth the basis for the determination of such additional amount or
amounts necessary to compensate the Letter of Credit Issuer or such Bank as
aforesaid shall be conclusive and binding on the Company absent manifest
error, although the failure to deliver any such certificate shall not release
or diminish any of the Company's obligations to pay additional amounts
pursuant to this Section 2.06 upon the subsequent receipt thereof.
(b) It is intended that each Acceptance will be eligible for
rediscount by Federal Reserve Banks pursuant to Section 13 of the Federal
Reserve Act, as amended, and the Company hereby agrees to indemnify and hold
harmless the Letter of Credit Issuer and any Bank with respect to any
obligation or liability imposed on the Letter of Credit Issuer or such Bank
(including, without limitation, the amount of any penalties and charges and
the cost of maintaining reserves) if any Acceptance created by the Letter of
Credit Issuer or participated in by such Bank is determined not to be eligible
for rediscount by Federal Reserve Banks pursuant to Section 13 of the Federal
Reserve Act, as amended. The determination of the Letter of Credit Issuer or
any such Bank, made in good faith, as to the amount of any such obligation or
liability, as described in a written statement from the Letter of Credit
Issuer or such Bank to the Company setting forth in reasonable detail the cal-
culation thereof, shall be conclusive absent manifest error.
SECTION 3. Fees; Commitments.
3.01 Fees. (a) The Company agrees to pay to the Administrative
Agent a commitment commission ("A Term Commitment Commission") for the account
of each Non-Defaulting Bank with an A Term Commitment for the period from and
including the Initial Borrowing Date to, but not including, the A Term
Termination Date or, if earlier, the date upon which the Total A Term
Commitment has been terminated, computed for each day at a rate per annum
equal to the Applicable CC Percentage for such day on such Bank's unutilized A
Term Commitment on such day. Such A Term Commitment Commission shall be due
and payable in arrears on the last Business Day of each March, June, September
and December and on the A Term Termination Date.
(b) EMI agrees to pay to the Administrative Agent a commitment
commission (the "B Term Commitment Commission") for the account of each Non-
Defaulting Bank with a B Term Commitment for the period from and including the
Initial Borrowing Date to, but not including, the B Term Termination Date or,
if earlier, the date upon which the Total B Term Commitment has been
terminated, computed for each day at a rate per annum equal to the Applicable
CC Percentage for such day on such Bank's unutilized B Term Commitment on such
date. Such B Term Commitment Commission shall be due and payable in arrears
on the last Business Day of each March, June, September and December and on
the B Term Termination Date.
-24- -16-
(c) The Company agrees to pay to the Administrative Agent a
commitment commission ("RF Commitment Commission") for the account of each
Non-Defaulting Bank with a Revolving Commitment for the period from and
including the Initial Borrowing Date to, but not including, the Maturity Date
or, if earlier, the date upon which the Total Revolving Commitment has been
terminated, computed for each day at a rate per annum equal to the Applicable
CC Percentage for such day on such Bank's Unutilized Revolving Commitment on
such day. Such RF Commitment Commission shall be due and payable in arrears
on the last Business Day of each March, June, September and December and on
the Maturity Date, or, if earlier, the date upon which the Total Revolving
Commitment is terminated.
(d) The Company agrees to pay to the Administrative Agent for the
account of each Non-Defaulting Bank with a Revolving Commitment pro rata on
the basis of their respective RF Percentages, a fee in respect of each Letter
of Credit and each Acceptance (the "L/C Fee") computed for each day at the
rate per annum equal to the Applicable Eurodollar Margin then in effect on the
Stated Amount of all Letters of Credit and of all Acceptances on such day.
Accrued Letter of Credit Fees shall be due and payable quarterly in arrears on
the last Business Day of each March, June, September and December of each year
and on the date upon which the Total Revolving Commitment is terminated.
(e) The Company agrees to pay directly to the Letter of Credit
Issuer a fee in respect of each Letter of Credit and each Acceptance (the
"Facing Fee") computed for each day at the rate per annum of 1/8 of 1% on the
Stated Amount of all Letters of Credit and all Acceptances on such day
provided that in no event shall the annual Facing Fee for any Letter of Credit
be less than $500. Accrued Facing Fees shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December
of each year and on the date upon which the Total Revolving Commitment is
terminated.
(f) The Company agrees to pay directly to the Letter of Credit
Issuer upon each issuance or creation of, payment under, and/or amendment of,
a Letter of Credit or Acceptance such amount as shall at the time of such
issuance, payment or amendment be the administrative charge plus expenses
which the Letter of Credit Issuer is customarily charging for issuances of,
payments under or amendments of, letters of credit or for acceptances issued
by it.
(g) The Company shall pay to the Agents and the Banks for their
respective account, such other fees as have been agreed to between the
Company, an Agent and/or any such Bank when and as due.
(h) All computations of Fees shall be made in accordance with
Section 12.07(b).
3.02 Voluntary Reduction of Commitments. Upon at least three
Business Days prior written notice (or telephonic notice confirmed in writing)
to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Banks), the
Company shall have the right, without premium or penalty, to terminate or
-25- -17-
partially reduce (x) the Unutilized Total Revolving Commitment and/or (y) with
the consent of the Required Banks, the unutilized Total A Term Commitment
and/or the unutilized Total B Term Commitment, provided that (x) any such
termination shall apply to proportionately and permanently reduce the A Term
Commitment, B Term Commitment and/or Revolving Commitment, as the case may be,
of each Bank and (y) any partial reduction pursuant to this Section 3.02 of
any of the Total A Term Commitment, the B Term Commitment or the Total
Revolving Commitment, as the case may be, shall be in the amount of at least
$1,000,000 (or, if less, the total amount thereof).
3.03 Mandatory Adjustments of Commitments; etc. (a) The Total
Commitment (and the A Term Commitment, B Term Commitment and Revolving
Commitment of each Bank) shall terminate on the Expiration Date unless the
Initial Borrowing Date has occurred on or prior to such date.
(b) The Total A Term Commitment shall be reduced at the time of
each incurrence of A Term Loans in an amount equal to the aggregate principal
amount of the A Term Loans so incurred and shall terminate on the earlier of
(x) the A Term Termination Date and (y) the date on which any Change of
Control occurs.
(c) The Total B Term Commitment shall be reduced at the time of
each incurrence of B Term Loans in an amount equal to the aggregate principal
amount of the B Term Loans so incurred and shall terminate on the earlier of
(x) the B Term Termination Date and (y) the date on which any Change of
Control occurs.
(d) The Total Revolving Commitment shall terminate on the
earlier of (x) the Maturity Date and (y) the date on which any Change of
Control occurs.
(e) The Total Revolving Commitment shall be reduced, at the time
that any required mandatory repayment of Term Loans would be made pursuant to
Section 4.02(A)(c), (e) or (f) if Term Loans were then outstanding, in the
amount by which such required repayment (determined as if an unlimited amount
of Term Loans were then outstanding) exceeds the aggregate principal amount of
Term Loans then outstanding.
(f) Each partial reduction of the Total A Term Commitment, B Term
Commitment or Revolving Commitment pursuant to this Section 3.03 shall apply
proportionately to the A Term Commitment, B Term Commitment or Revolving
Commitment, as the case may be, of each Bank.
SECTION 4. Payments.
4.01 Voluntary Prepayments. Each Borrower shall have the right
to prepay Loans made to it in whole or in part, without premium or penalty,
from time to time on the following terms and conditions: (i) subject to
clause (v) below, such Borrower shall give the Administrative Agent at the
Payment Office written notice (or telephonic notice promptly confirmed in
writing) of its intent to prepay the Loans, whether such Loans are A Term
Loans, B Term Loans or Revolving Loans, the amount of such prepayment and (in
-26- -18-
the case of Eurodollar Loans) the specific Borrowing(s) pursuant to which
made, which notice shall be given by such Borrower at least one Business Day
prior to the date of such prepayment with respect to Base Rate Loans and two
Business Days prior to the date of such prepayment with respect to Eurodollar
Loans, which notice shall promptly be transmitted by the Administrative Agent
to each of the Banks; (ii) each partial prepayment of any Loans shall be in an
aggregate principal amount of at least $10,000,000 if Eurodollar Loans or
$5,000,000 if Base Rate Loans provided that no partial prepayment of
Eurodollar Loans made pursuant to a Borrowing shall reduce the aggregate
principal amount of the Eurodollar Loans outstanding pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto; (iii) at the time of any prepayment of Eurodollar Loans pursuant to
this Section 4.01 on any date other than the last day of the Interest Period
applicable thereto, such Borrower shall pay the amounts required pursuant to
Section 1.11; (iv) each prepayment in respect of any Loans made pursuant to a
Borrowing shall be applied pro rata among such Loans, provided, that at the
Company's election in connection with any prepayment pursuant to this Section
4.01 of Revolving Loans, such prepayment shall not be applied to any Revolving
Loans of a Defaulting Bank; (v) at the time any prepayment of A Term Loans or
B Term Loans is made pursuant to this Section 4.01 a prepayment of A Term
Loans or B Term Loans, as the case may be, must also be made, with all such
prepayments to be made pro rata between the A Term Loans and B Term Loans; and
(vi) each prepayment of any Term Loans pursuant to this Section 4.01 shall be
applied to reduce the then remaining Scheduled Repayments applicable to such
Term Loans on a pro rata basis (based upon the then remaining principal amount
of each such Scheduled Repayment).
4.02 Mandatory Prepayments.
(A) Requirements:
(a) If on any date the sum of the aggregate outstanding principal
amount of Revolving Loans and the Letter of Credit Outstandings exceeds the
Total Revolving Commitment as then in effect, the Company shall repay on such
date the principal of Revolving Loans (and, if insufficient, of Unpaid
Drawings) in an aggregate amount equal to such excess. If, after giving
effect to the repayment of all outstanding Revolving Loans of Non-Defaulting
Banks and Unpaid Drawings, the aggregate amount of Letter of Credit
Outstandings exceeds the Total Revolving Commitment then in effect, the
Company shall pay to the Administrative Agent an amount in cash and/or Cash
Equivalents equal to such excess and the Administrative Agent shall hold such
payment as security for the obligations of the Company hereunder pursuant to a
cash collateral agreement to be entered into in form and substance satis-
factory to the Administrative Agent (which shall permit certain investments in
Cash Equivalents satisfactory to the Administrative Agent, until the proceeds
are applied to the secured obligations).
(b) On each date set forth below, the Company or EMI, as the case
may be, shall be required to repay the principal amount of A Term Loans and B
Term Loans, respectively, set forth opposite such date (each such repayment,
as the same may be reduced as provided in Sections 4.01 and 4.02(B), a
"Scheduled Repayment").
-27- -19-
Date A Term Loans B Term Loans
September 30, 1997 $2,750,000 $2,250,000
December 31, 1997 $2,750,000 $2,250,000
March 31, 1998 $2,750,000 $2,250,000
June 30, 1998 $2,750,000 $2,250,000
September 30, 1998 $2,750,000 $2,250,000
December 31, 1998 $2,750,000 $2,250,000
March 31, 1999 $2,750,000 $2,250,000
June 30, 1999 $3,437,500 $2,812,500
September 30, 1999 $3,437,500 $2,812,500
December 31, 1999 $3,437,500 $2,812,500
March 31, 2000 $3,437,500 $2,812,500
June 30, 2000 $5,156,250 $4,218,750
September 30, 2000 $5,156,250 $4,218,750
December 31, 2000 $5,156,250 $4,218,750
March 31, 2001 $5,156,250 $4,218,750
June 30, 2001 $6,875,000 $5,625,000
September 30, 2001 $6,875,000 $5,625,000
December 31, 2001 $6,875,000 $5,625,000
March 31, 2002 $6,875,000 $5,625,000
June 30, 2002 $9,625,000 $7,875,000
September 30, 2002 $9,625,000 $7,875,000
December 31, 2002 $9,625,000 $7,875,000
-28- -20-
(c) No later than three Business Days following the date of
receipt thereof by the Company and/or any of its Subsidiaries of the Cash
Proceeds from any Asset Sale, an amount equal to 100% of the Net Cash Proceeds
from such Asset Sale shall be applied as a mandatory repayment of the
principal of the then outstanding Term Loans.
(d) No later than three Business Days following the date of the
receipt thereof by the Company, an amount equal to 50% of the cash proceeds
(net of underwriting discounts and commissions and other reasonable costs
associated therewith) of any sale or issuance of equity by the Company (other
than equity issued to management and other employees of the Company or its
Subsidiaries in connection with their employment) shall be applied as a
mandatory repayment of the principal of the then outstanding Term Loans.
(e) No later than three Business Days following the date of
receipt thereof by the Company or any of its Subsidiaries, an amount equal to
100% of the cash proceeds (net of underwriting discounts and commissions and
other costs associated therewith) of any sale or issuance of Indebtedness
(other than Indebtedness permitted by Section 8.04 as in effect on the
Effective Date) shall be applied as a mandatory repayment of the then
outstanding Term Loans.
(f) On each date which is 90 days after the last day of each
fiscal year of the Company (commencing with the fiscal year ending on March
31, 1998), 100% of Excess Cash Flow for the fiscal year then last ended shall
be applied as a mandatory repayment of the principal of the then outstanding
Term Loans.
(g) On the date on which any Change of Control occurs, the
outstanding principal amount of all Loans shall become due and payable in
full.
(B) Application:
(a) Each mandatory repayment of Term Loans pursuant to Section
4.02(A) (other than pursuant to clause (b) thereof) shall be applied pro rata
between the A Term Loans and the B Term Loans, with each such application to
reduce the Scheduled Repayments in respect of the Term Loans being repaid (x)
in the case of Section 4.02(A)(c), in inverse order of maturity or (y) in all
other cases, on a pro rata basis (based upon the then remaining outstanding
principal amount of each such Scheduled Repayment).
(b) With respect to each prepayment of Loans required by Section
4.02, the Company or EMI, as the case may be, may designate the Types of Loans
which are to be prepaid and the specific Borrowing(s) under the affected
Facility pursuant to which made, provided that (i) if any prepayment of
Eurodollar Loans made pursuant to a single Borrowing shall reduce the
outstanding Loans made pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount for such Borrowing, such Borrowing shall be immedi-
ately converted into Base Rate Loans; (ii) except as provided in clause (iii)
below, each prepayment of any Loans made pursuant to a Borrowing shall be
applied pro rata among such Loans; and (iii) no prepayment made pursuant to
-29- -21-
Section 4.02(A)(a) of Revolving Loans shall be applied to the Revolving Loans
of any Defaulting Bank. In the absence of a designation by a Borrower as
described in the preceding sentence, the Administrative Agent shall, subject
to the above, make such designation in its sole discretion with a view, but no
obligation, to minimize breakage costs owing under Section 1.11.
4.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement shall be made
to the Administrative Agent for the ratable (based on its pro rata share)
account of the Banks entitled thereto, not later than 1:00 P.M. (New York
time) on the date when due and shall be made in immediately available funds
and in lawful money of the United States of America (and in the Dollar
Equivalent of any payment otherwise owing in an Alternate Currency) at the
Payment Office, it being understood that written notice by a Borrower to the
Administrative Agent to make a payment from the funds in such Borrower's
account at the Payment Office shall constitute the making of such payment to
the extent of such funds held in such account. Any payments under this
Agreement which are made later than 1:00 P.M. (New York time) shall be deemed
to have been made on the next succeeding Business Day. Whenever any payment
to be made hereunder shall be stated to be due on a day which is not a Busi-
ness Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest shall be
payable during such extension at the applicable rate in effect immediately
prior to such extension.
4.04 Net Payments. (a) All payments made by a Borrower
hereunder, under any Note or any other Credit Document, will be made without
deduction, withholding, setoff, counterclaim or other defense. Except as
provided in Section 4.04(b), all such payments will be made free and clear of,
and without deduction or withholding for, any present or future taxes, levies,
imposts, duties, fees, assessments or other charges of whatever nature now or
hereafter imposed by any jurisdiction or by any political subdivision or tax-
ing authority thereof or therein with respect to such payments (but excluding,
except as provided in the second succeeding sentence, any tax imposed on or
measured by the net income or net profits of a Bank pursuant to the laws of
the jurisdiction in which it is organized or the jurisdiction in which the
principal office or applicable lending office of such Bank is located or any
subdivision thereof or therein) and all interest, penalties or similar
liabilities with respect to such non-excluded taxes, levies, imposts, duties,
fees, assessments or other charges (all such non-excluded taxes, levies,
imposts, duties, fees, assessments or other charges being referred to
collectively as "Taxes"). If any Taxes are so levied or imposed, the
respective Borrower agrees to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every payment of all amounts
due under this Agreement or under any Note, after withholding or deduction
for or on account of any Taxes will not be less than the amount provided for
herein or in such Note. Each Borrower will furnish to the Administrative
Agent within 45 days after the date the payment of any Taxes is due pursuant
to applicable law certified copies of tax receipts evidencing such payment by
such Borrower. Each Borrower agrees to indemnify and hold harmless each Bank,
and reimburse such Bank upon its written request, for the amount of any Taxes
so levied or imposed and paid by such Bank.
-30- -22-
(b) Each Bank that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for Federal income tax purposes
agrees to deliver to each of the Borrowers and the Administrative Agent on or
prior to the Effective Date, or in the case of a Person that first becomes a
Bank by an assignment provided for in Section 1.13 or 12.04, on or prior to
the date of such assignment, (i) two accurate and complete original signed
copies of Internal Revenue Service Form 4224 or 1001 (or successor forms)
certifying to such Bank's entitlement to a complete exemption from United
States withholding tax with respect to payments to be made under this
Agreement and under any Note, or (ii) if the Bank is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal
Revenue Service Form 1001 or 4224 pursuant to clause (i) above, (x) a
certificate substantially in the form of Exhibit C (any such certificate, a
"Section 4.04 Certificate") and (y) two accurate and complete original signed
copies of Internal Revenue Service Form W-8 (or successor form) certifying to
such Bank's entitlement to a complete exemption from United States withholding
tax with respect to payments of interest to be made under this Agreement and
under any Note. In addition, each such Bank agrees that, from time to time
after the Effective Date or the date of assignment, as the case may be, when a
lapse in time or change in circumstances renders the previous certification
obsolete or inaccurate in any material respect, it will deliver to each of the
Borrowers and the Administrative Agent two new accurate and complete original
signed copies of Internal Revenue Service Form 4224 or 1001, or Form W-8 and a
Section 4.04 Certificate, as the case may be, and such other forms as may be
required in order to confirm or establish the entitlement of such Bank to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or it shall immediately
notify each of the Borrowers and the Administrative Agent of its inability to
deliver any such Form or Certificate in which case such Bank shall not be
required to deliver any such Form or Certificate pursuant to this Section
4.04(b). Notwithstanding anything to the contrary contained in Section
4.04(a), but subject to the immediately succeeding sentence, each Borrower
shall be entitled, to the extent it is required to do so by law, to deduct or
withhold income or similar taxes imposed by the United States from interest,
fees or other amounts payable hereunder for the account of any Bank which is
not a United States person (as such term is defined in Section 7701(a)(30) of
the Code) for Federal income tax purposes to the extent that such Bank has not
provided to such Borrower Internal Revenue Service Forms that establish a
complete exemption from such deduction or withholding if (I) such Bank has not
provided to such Borrower the Internal Revenue Service Forms required to be
provided to such Borrower pursuant to this Section 4.04(b) or (II) in the case
of a payment, other than interest, to a Bank described in clause (ii) of the
first sentence of this Section 4.04(b), to the extent that the Forms delivered
by such Bank do not establish a complete exemption from withholding of such
taxes. Notwithstanding anything to the contrary contained in the preceding
sentence or elsewhere in this Section 4.04 and except as set forth in Section
12.04(b), each Borrower agrees to pay any additional amounts and to indemnify
each Bank in the manner set forth in Section 4.04(a) (without regard to the
identity of the jurisdiction requiring the deduction or withholding) in
respect of any Taxes deducted or withheld by it as described in the
immediately preceding sentence as a result of any changes after the Effective
Date in any applicable law, treaty, governmental rule, regulation, guideline
-31- -23-
or order, or in the interpretation thereof, relating to the deducting or
withholding of such Taxes.
SECTION 5. Conditions Precedent.
5.01 Conditions Precedent to Initial Borrowing Date. The
obligation of the Banks to make Loans hereunder on the Initial Borrowing Date
and the obligation of the Letter of Credit Issuer to issue Letters of Credit
hereunder at such time, is subject to the satisfaction of each of the
following conditions at such time:
(a) Effectiveness; Notes. On or prior to the Tender Offer
Closing Date, (i) the Effective Date shall have occurred and (ii) there
shall have been delivered to the Administrative Agent for the account of
each Bank the appropriate A Term Note, B Term Note (if the Initial B
Term Loan Date) and/or Revolving Note executed by the respective
Borrower, in each case, in the amount, maturity and as otherwise
provided herein.
(b) Opinions of Counsel. On the Tender Offer Closing Date, the
Agents shall have received opinions, addressed to the Agents and each of
the Banks and dated the Tender Offer Closing Date, from (i) Jones, Day,
Reavis & Pogue special counsel to the Company, Thorp, Reed & Armstrong,
special counsel for the Company, Dennis Haines, Esq., General Counsel of
the Company, Weil Gotschal & Manges, special counsel for Eljer and/or
George W. Hanthorn, Esq., General Counsel for Eljer, which opinions
shall, in the aggregate, cover the matters contained in Exhibit D-1
hereto (which matters shall be allocated among such counsel in a manner
satisfactory to the Agents), (ii) White & Case, special counsel to the
Banks, which opinion shall cover the matters contained in Exhibit D-2
hereto and (iii) from local counsel satisfactory to the Agents as the
Agents may reasonably request, which opinions shall cover the perfection
of the security interests granted pursuant to the Security Documents and
such other matters incident to the transactions contemplated herein as
the Agents may reasonably request and shall be in form and substance
reasonably satisfactory to the Agents, provided that the foregoing
opinions shall not cover Eljer and its Subsidiaries and/or any Credit
Document to be executed by Eljer and/or its Subsidiaries unless the
initial incurrence of B Term Loans occurs on the Initial Borrowing Date.
(c) Corporate Proceedings. (i) On the Tender Offer Closing
Date, the Administrative Agent shall have received from the Company a
certificate, dated the Tender Offer Closing Date, signed by the
President or any Vice-President of the Company in the form of Exhibit E
hereto with appropriate insertions and deletions, together with (x)
copies of the articles of incorporation, any certificate of designation,
the by-laws, or other organizational documents of the Company, (y) the
resolutions, or such other administrative approval, of each Initial
Credit Party referred to in such certificate, which shall be reasonably
satisfactory to the Administrative Agent and (z) a statement that all of
the applicable conditions set forth in Sections 5.01(g), (h), (i), (j)
and (q) and 5.04 exist as of such date.
-32- -24-
(ii) On the Tender Offer Closing Date, all corporate and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Transaction
Documents shall be reasonably satisfactory in form and substance to the
Administrative Agent, and the Administrative Agent shall have received
all information and copies of all certificates, documents and papers,
including good standing certificates and any other records of corporate
proceedings and governmental approvals, if any, which the Administrative
Agent may have reasonably requested in connection therewith, such docu-
ments and papers, where appropriate, to be certified by proper corporate
or governmental authorities.
(d) Plans; etc. On or prior to the Tender Offer Closing Date,
there shall have been made available to the Administrative Agent true
and correct copies of:
(i) any Plans, and for each Plan (x) that is a "single-
employer plan" (as defined in Section 4001(a)(15) of ERISA) the
most recently completed actuarial valuation prepared therefor by
such Plan's regular enrolled actuary and the Schedule B,
"Actuarial Information" to the IRS Form 5500 (Annual Report) most
recently filed with the Internal Revenue Service and (y) that is
a "multiemployer plan" (as defined in Section 4001(a)(3) of
ERISA), each of the documents referred to in clause (x) either in
the possession of the Company or any of its Subsidiaries
(including Eljer and its Subsidiaries), or any ERISA Affiliate or
reasonably available thereto from the sponsor or trustees of such
Plan;
(ii) any collective bargaining agreements or any other
similar agreement or arrangements covering the employees of the
Company or any of its Subsidiaries (including Eljer and its
Subsidiaries);
(iii) all agreements evidencing or relating to the Existing
Indebtedness;
(iv) all agreements entered into by the Company or any of
its Subsidiaries (including Eljer and its Subsidiaries) governing
the terms and relative rights of its capital stock, and any
agreements entered into by members or shareholders of the Company
or any such Subsidiary with respect to their capital stock;
(v) any agreement with respect to, the management of the
Company or any of its Subsidiaries (including Eljer and its
Subsidiaries);
(vi) any material employment agreements entered into by the
Company or any of its Subsidiaries (including Eljer and its
Subsidiaries); and
-33- -25-
(vii) all tax sharing, tax allocation and other similar
agreements entered into by the Company and/or any of its
Subsidiaries (including Eljer and its Subsidiaries) with any
entity not the Company or a Subsidiary Guarantor.
In addition, the Company shall have delivered to the Administrative
Agent on or prior to the Tender Offer Closing Date a true and correct
copy of the Third Amended Plan, as originally filed in the Brass
Proceeding and as amended to date, with all such amendments to be
satisfactory to the Plan Majority Banks.
(e) Adverse Change; etc. From November 9, 1996 to the Tender
Offer Closing Date, nothing shall have occurred (and neither the Banks
nor either Agent shall have become aware of any facts or conditions not
previously known) which such Agent or the Required Banks shall
reasonably determine (a) has had, or is reasonably likely to have, a
material adverse effect on the rights or remedies of the Banks or the
Administrative Agent under this Agreement or any other Credit Document,
or on the ability of any Credit Party to perform its obligations to
them, or (b) has had, or is reasonably likely to have, a Material
Adverse Effect.
(f) Litigation. No actions, suits or proceedings shall be
pending or, to the knowledge of the Company, threatened against any
Credit Party on the Tender Offer Closing Date (a) with respect to this
Agreement or any other Credit Document, or (b) which either Agent or the
Required Banks shall determine has had, or is reasonably likely to have,
a Material Adverse Effect.
(g) Approvals. On the Tender Offer Closing Date, all necessary
governmental and material third party approvals in connection with the
transactions contemplated by the Credit Documents and the other
Transaction Documents and otherwise referred to herein or therein shall
have been obtained and remain in effect, and all applicable waiting
periods shall have expired without any action being taken by any
competent authority which restrains or prevents such transactions or
imposes, in the reasonable judgment of the Required Banks or either
Agent, materially adverse conditions upon the consummation of such
transactions.
(h) Tender Offer Documents. On or prior to the Tender Offer
Closing Date, there shall have been delivered to the Administrative
Agent true and correct copies of the Tender Offer Documents and the
Additional Tender Offer Documents (which Additional Tender Offer
Documents, other than any Additional Tender Offer Document consisting
solely of an amendment extending the expiration date of the Tender
Offer, shall be reasonably satisfactory to the Administrative Agent),
and each of the conditions to purchase contained in the Offer to
Purchase shall have been satisfied to the satisfaction of, or if
applicable, waived with the consent of the Administrative Agent. The
Administrative Agent acknowledges that, as of the Effective Date, it is
satisfied with the Tender Offer Documents delivered to it prior to the
Effective Date.
-34- -26-
(i) Tender of Shares of Eljer; Control. On the Initial Borrowing
Date, (i) the Tender Offer Closing Date shall have occurred, (ii) there
shall have been validly tendered to Acq. Sub and not withdrawn the
number of Shares that satisfies the "Minimum Condition" as defined in
the Offer to Purchase and the price per Share payable pursuant to the
Offer to Purchase shall not exceed the Maximum Price Per Share, (iii)
such number of Shares shall have been validly tendered to Acq. Sub, free
and clear of all Liens and restrictions to purchase imposed by
applicable law or otherwise and such Shares shall not have been validly
withdrawn and shall be available for purchase in accordance with the
terms and conditions set forth in the Offer to Purchase and (iv) the
Company (and/or Acq. Sub) shall have expended at least $82,000,000 of
cash on hand to consummate the Tender Offer prior to, or concurrently
with, the incurrence of the A Term Loans. After giving effect to the
consummation of the purchase of the Shares pursuant to the Tender Offer,
Acq. Sub shall own and control that number of Shares of Eljer as shall
be necessary to permit Acq. Sub to approve the Merger without the
affirmative vote or approval of any other shareholders, and there shall
be no applicable statute or other restriction which would prohibit,
materially restrict or materially delay the consummation of the Merger
or which would be reasonably likely to make the consummation of the
Merger economically unfeasible.
(j) Proxy Materials. On or prior to the Tender Offer Closing
Date, there shall have been delivered to the Administrative Agent true
and correct copies of all Proxy Materials, if any, and such Proxy
Materials shall be reasonably satisfactory in form and substance to the
Administrative Agent. The Administrative Agent acknowledges that, as of
the Effective Date, it is satisfied with the Proxy Materials delivered
to it prior to the Effective Date.
(k) Subsidiary Guaranty. On the Tender Offer Closing Date, each
Initial Subsidiary Guarantor shall have duly authorized, executed and
delivered a Guaranty in the form of Exhibit F-1 hereto (as modified,
amended or supplemented from time to time in accordance with the terms
hereof and thereof, the "Subsidiary Guaranty"), and the Subsidiary
Guaranty shall be in full force and effect.
(l) Security Documents. (i) On the Tender Offer Closing Date,
the Company and each Initial Subsidiary Guarantor shall have duly
authorized, executed and delivered a Pledge Agreement substantially in
the form of Exhibit G hereto (as modified, amended or supplemented from
time to time in accordance with the terms thereof and hereof, the
"Pledge Agreement"), and shall have delivered to the Collateral Agent,
as pledgee thereunder, all of the certificates representing the Pledged
Securities referred to therein, endorsed in blank or accompanied by exe-
cuted and undated stock powers, and the Pledge Agreement shall be in
full force and effect.
(ii) On the Tender Offer Closing Date, the Company and each
Initial Subsidiary Guarantor shall have duly authorized, executed and
delivered a Security Agreement substantially in the form of Exhibit H
-35- -27-
hereto (as modified, amended or supplemented from time to time in
accordance with the terms thereof and hereof, the "Security Agreement")
together with:
(A) executed copies of Financing Statements (Form UCC-1) in
appropriate form for filing under the UCC of each jurisdiction as
may be reasonably necessary to perfect all the security interests
purported to be created by the Security Agreement, it being
understood that perfected security interests shall be (x) required
in respect of only 80% of the aggregate inventory of the Company
and the Subsidiary Guarantors and (y) not required in respect of
immaterial equipment located in states other than those in which
the Company and the Subsidiary Guarantors have their significant
operations;
(B) copies of Requests for Information or copies (Form UCC-
11), or equivalent reports, each of recent date listing all
effective financing statements that name each such Person as
debtor and that are filed in the jurisdictions referred to in
clause (A), together with copies of such financing statements
(none of which shall cover the Collateral except (x) those with
respect to which appropriate termination statements executed by
the secured lender thereunder have been delivered to the
Collateral Agent and (y) to the extent evidencing Liens permitted
pursuant to Section 8.03(d));
(C) evidence of the completion of all recordings and
filings of, or with respect to, the Security Agreement as may be
necessary or, in the reasonable opinion of the Collateral Agent,
desirable to perfect the security interests intended to be created
thereunder or other evidence reasonably satisfactory to the
Collateral Agent that such recordings and filings shall be
completed promptly after the Tender Offer Closing Date; and
(D) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect
and protect the security interests purported to be created by the
Security Agreement have been taken or will be taken promptly after
the Initial Borrowing Date.
(m) Form U-1. On the Tender Offer Closing Date, the Company
shall have delivered to each Bank that is subject to Regulation U a duly
completed Form U-1 referred to in Regulation U. On each date upon which
A Term Loans are being incurred which are "purpose loans" as defined in
Regulation U, each Bank that is subject to Regulation U shall be able in
good faith to complete an addendum to said Form U-1 showing that the
Tender Offer Loans then being made satisfy the collateral requirements
of Regulation U.
(n) Solvency. On the Tender Offer Closing Date, the
Administrative Agent shall have received from the chief financial
officer of the Company a certificate in the form of Exhibit I hereto,
-36- -28-
expressing opinions of value and other appropriate facts or information
regarding the solvency of the Company and its Subsidiaries (including
Eljer and its Subsidiaries) taken as a whole.
(o) Insurance Policies. On the Tender Offer Closing Date, the
Administrative Agent shall have received evidence of insurance complying
with the requirements of Section 7.03 for the business and properties of
the Company and its Subsidiaries (excluding Eljer and its Subsidiaries
to the extent the B Term Loan occurs after the Initial Borrowing Date),
in form and substance satisfactory to the Administrative Agent and, with
respect to all casualty insurance, naming the Collateral Agent as an
additional insured and loss payee.
(p) Fees. On or prior to the Initial Borrowing Date, the Company
shall have paid to the Agents and the Banks all Fees and expenses agreed
upon by such parties to be paid on or prior to such date.
(q) Consent Letter. On the Tender Offer Closing Date, the
Administrative Agent shall have received a letter from CT Corporation
System, presently located at 1633 Broadway, New York, New York 10019, in
the form of Exhibit J hereto indicating its consent to its appointment
by the Company and each Initial Subsidiary Guarantor as their agent to
receive service of process.
(r) Existing Company Credit Agreement. On the Initial Borrowing
Date, the commitments under the Existing Company Credit Agreement shall
have been terminated, all loans thereunder shall have been repaid in
full, together with interest thereon, all letters of credit issued
thereunder shall have been terminated or incorporated hereunder as, or
supported hereunder by, Letters of Credit, and all other amounts owing
pursuant to the Existing Company Credit Agreement shall have been repaid
in full, and the Agents shall have received evidence in form, scope and
substance reasonably satisfactory to them that the matters set forth in
this Section 5.01(r) have been satisfied at such time.
5.02 Conditions Precedent to B Term Loans. The obligation of
each Bank to make any B Term Loans is subject to the satisfaction of the
following conditions:
(a) Notes; Opinions of Counsel. To the extent the Initial B Term
Loan Date occurs after the Initial Borrowing Date, the Agent shall have
received (x) for each Bank with a B Term Commitment, the appropriate B
Term Note executed by EMI, in the amount, maturity and as otherwise
provided herein, (y) those opinions (which shall be addressed to the
Agents and each of the Banks and dated the Initial B Term Loan Date)
required by Section 5.01(b) but not delivered on the Initial Borrowing
Date as a result of the proviso contained at the end of said Section and
(z) the evidence of insurance relating to Eljer and its Subsidiaries not
delivered pursuant to Section 5.01(o) as a result of the parenthetical
contained therein.
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(b) Subsidiary Guaranty. Each Additional Subsidiary Guarantor
shall have duly authorized, executed and delivered a counterpart of the
Subsidiary Guaranty, and the Subsidiary Guaranty shall be in full force
and effect.
(c) Company Guaranty. The Company shall have duly authorized,
executed and delivered a Guaranty in the form of Exhibit F-2 hereto (as
modified, amended or supplemented from time to time in accordance with
the terms hereof and thereof, the "Company Guaranty") and the Company
Guaranty shall be in full force and effect.
(d) Security Documents. Each Additional Subsidiary Guarantor
shall have duly authorized, executed and delivered (i) a counterpart of
the Pledge Agreement, and shall have delivered to the Collateral Agent,
as pledgee thereunder, all of the certificates representing the Pledged
Securities referred to therein, endorsed in blank or accompanied by
executed and undated stock powers, and the Pledge Agreement shall be in
full force and effect and (ii) a counterpart of the Security Agreement,
and shall have executed or provided the financing statements, requests
and/or evidences of filings or actions that it would have had to provide
under Section 5.01(l)(ii) if it had been an Initial Subsidiary
Guarantor.
(e) Corporate Proceedings. On the Initial B Term Loan Date, the
Administrative Agent shall have received from Eljer a certificate, dated
the Initial B Term Loan Date, signed by the President or any Vice-
President of Eljer in the form of Exhibit E with appropriate insertions
and deletions, together with (x) copies of the articles of
incorporation, any certificate of designation, the by-laws, or other
organizational documents of Eljer and EMI and (y) the resolutions, or
such other administrative approval, of each Additional Subsidiary
Guarantor referred to in such certificate to be reasonably satisfactory
to the Administrative Agent.
(f) Existing Eljer Credit Facilities. On the Initial B Term Loan
Date, the commitments under the Existing Eljer Credit Facilities shall
have been terminated, all loans thereunder shall have been repaid in
full, together with interest thereon, all letters of credit issued
thereunder shall have been terminated or supported hereunder by Letters
of Credit, all other amounts owing pursuant to the Existing Eljer Credit
Facilities shall have been repaid in full and all Liens on the stock and
assets of Eljer and its Subsidiaries created pursuant to the Existing
Eljer Credit Facilities shall have been released and terminated, and the
Agents shall have received evidence in form and substance reasonably
satisfactory to them that the matters set forth in this Section 5.02(f)
have been satisfied at such time.
(g) Cash Flow Statements. Prior to any borrowing of the B Term
Loans to fund the Contribution, the Company shall have delivered to each
of the Banks detailed cash flow statements covering the one year period
commencing on the Initial Borrowing Date, which statements shall be
satisfactory to the Administrative Agent and the Required Banks.
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5.03 Conditions Precedent to Merger Date. The obligation of each
Bank to make Loans, and of the Letter of Credit Issuer to issue Letters of
Credit, on and after the Merger Date is subject to the satisfaction of the
following conditions:
(a) Bring-Downs. On the Merger Date, the Administrative Agent
shall have received confirmatory bring-downs and/or up-dates, each dated
the Merger Date, of all opinions and certificates delivered pursuant to
Section 5.01 and/or 5.02 which the Administrative Agent shall reasonably
request.
(b) Merger Documents; Merger. Prior to the Merger Date, there
shall have been delivered to the Administrative Agent all Merger
Documents not delivered to the Administrative Agent on or prior to the
Tender Offer Closing Date, certified as true and correct by an
Authorized Officer of the Company, which shall be in form and substance
reasonably satisfactory to the Administrative Agent and each of the con-
ditions precedent to the consummation of the Merger as set forth in the
Merger Documents shall have been satisfied or, if applicable, waived to
the reasonable satisfaction of the Administrative Agent. Additionally,
there shall not exist any judgment, order or injunction prohibiting the
consummation of the Merger. The Merger shall have been consummated in
accordance with the terms and conditions of the Merger Documents and all
applicable laws.
(c) Approvals. On the Merger Date, all necessary governmental
and material third party approvals in connection with the transactions
contemplated by the Credit Documents and the other Transaction Documents
and otherwise referred to herein or therein shall have been obtained and
remain in effect, and all applicable waiting periods shall have expired
without any action being taken by any competent authority which
restrains or prevents such transactions or imposes, in the reasonable
judgment of the Required Banks or either Agent, materially adverse
conditions upon the consummation of such transactions.
5.04 Conditions Precedent to All Credit Events. The obligation
of the Banks to make each Loan and of the Letter of Credit Issuer to issue
each Letter of Credit is subject, at the time thereof, to the satisfaction of
the following conditions:
(a) Notice of Borrowing. The Administrative Agent shall have
received a Notice of Borrowing meeting the requirements of Section 1.02
or a Letter of Credit Request meeting the requirements of Section 2.03.
(b) No Default; Representations and Warranties. At the time of
each Credit Event and also after giving effect thereto, (i) there shall
exist no Default or Event of Default and (ii) all representations and
warranties contained herein or in the other Credit Documents shall be
true and correct in all material respects with the same effect as though
such representations and warranties had been made on and as of the date
of such Credit Event, except to the extent that such representations and
warranties expressly relate to an earlier date.
-39- -31-
The acceptance of the benefits of each Credit Event shall
constitute a representation and warranty by the Company to the Agents and each
of the Banks that all of the applicable conditions specified in Section 5.01,
5.02, 5.03 and/or 5.04, as the case may be, exist as of that time. All of the
certificates, legal opinions and other papers referred to in Section 5, unless
otherwise specified, shall be delivered to the Administrative Agent at its
Notice Office for the account of, and (except for the Notes) in sufficient
counterparts for, each of the Banks and shall be reasonably satisfactory in
form and substance to the Administrative Agent.
SECTION 6. Representations, Warranties and Agreements. In order
to induce the Banks to enter into this Agreement and to make the Loans and to
issue, create and/or participate in the Letters of Credit and Acceptances, the
Company makes the following representations and warranties to, and agreements
with, the Banks, all of which shall survive the execution and delivery of this
Agreement and the making of the Loans.
6.01 Corporate Status. Each of the Company and its Subsidiaries
(i) is a duly organized and validly existing corporation in good standing
under the laws of the jurisdiction of its organization and has the corporate
power and authority to own its property and assets and to transact the
business in which it is engaged and presently proposes to engage and (ii) has
duly qualified and is authorized to do business and is in good standing in all
jurisdictions where it is required to be so qualified and where the failure to
be so qualified is reasonably likely to have a Material Adverse Effect.
6.02 Corporate Power and Authority. Each Credit Party has the
corporate power and authority to execute, deliver and carry out the terms and
provisions of the Transaction Documents to which it is a party and has taken
all necessary corporate action to authorize the execution, delivery and
performance of the Transaction Documents to which it is a party. Each Credit
Party has duly executed and delivered each Transaction Document to which it is
a party and each such Transaction Document constitutes the legal, valid and
binding obligation of such Credit Party enforceable in accordance with its
terms.
6.03 No Violation. Neither the execution, delivery and
performance by any Credit Party of the Credit Documents to which it is a
party nor compliance with the terms and provisions thereof, nor the
consummation of the transactions contemplated therein (i) will contravene any
applicable provision of any law, statute, rule, regulation, order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
conflict or be inconsistent with or result in any breach of, any of the terms,
covenants, conditions or provisions of, or constitute a default under, or
(other than pursuant to the Security Documents) result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of any Credit Party or any of its Subsidiaries pursuant to
the terms of any indenture, mortgage, deed of trust, agreement or other
instrument to which any Credit Party is a party or by which it or any of its
property or assets are bound or to which it may be subject or (iii) will
violate any provision of the charter or By-Laws of any Credit Party.
-40- -32-
6.04 Litigation. Except as set forth on Annex III hereto, there
are no actions, suits or proceedings pending or, to the Company's knowledge,
threatened with respect to the Company or any of its Subsidiaries (i) that
have had, or are reasonably likely to have, a Material Adverse Effect or (ii)
that have had, or are reasonably likely to have, a material adverse effect on
the rights or remedies of the Banks or on the ability of the Credit Parties to
perform their obligations to them under the Credit Documents.
6.05 Use of Proceeds; Margin Regulations. (a) The proceeds of A
Term Loans shall be used to finance, in part, the purchase of Shares pursuant
to the Offer to Purchase or the Merger.
(b) The proceeds of B Term Loans shall be used (w) to refinance
the Existing Eljer Credit Facilities, (x) to refinance Internal Revenue Bonds
under which Eljer and/or any of its Subsidiaries are liable to the extent
included in Existing Indebtedness, (y) to refinance the Selkirk UK Debt and
the Selkirk Germany Debt and (z) to fund the Contribution.
(c) The proceeds of Revolving Loans may be used for the general
corporate and working capital purposes of the Company and its Subsidiaries,
including to refinance the Brass DIP Debt upon the Plan Confirmation Date, and
to pay consideration owing upon the Merger pursuant to the Merger Agreement
and to pay costs and expenses related to the Acquisition.
(d) Each Acceptance shall be created solely to finance the import
to the United States of goods to be purchased by the Company and its
Subsidiaries and/or to finance the domestic shipment of goods to be purchased
by the Company and its Subsidiaries as part of their general working capital
needs and will not be used for speculative purposes.
(e) Neither the making or continuance of any Loan hereunder, nor
the use of the proceeds thereof, will violate or be inconsistent with the
provisions of Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System and no part of the proceeds of any Loan will be used to
purchase or carry any Margin Stock in violation of Regulation U or to extend
credit for the purpose of purchasing or carrying any Margin Stock in violation
of Regulation U. In addition, no part of the proceeds of any B Term Loan or
Revolving Loan will be used to purchase or carry any Margin Stock.
6.06 Governmental Approvals. Except for filings and recordings
in connection with the Security Documents and those items listed on Annex IV,
no order, consent, approval, license, authorization, or validation of, or
filing, recording or registration with, or exemption by, any foreign or
domestic governmental or public body or authority, or any subdivision thereof,
that has not been obtained or made is required to authorize or is required in
connection with (i) the execution, delivery and performance of any Credit
Document or (ii) the legality, validity, binding effect or enforceability of
any Credit Document.
6.07 Investment Company Act. None of the Company nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of
1940, as amended.
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6.08 Public Utility Holding Company Act. None of the Company nor
any of its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company," or of a "sub-
sidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
6.09 True and Complete Disclosure. All factual information
(taken as a whole) heretofore or contemporaneously furnished by or on behalf
of the Company in writing to the Administrative Agent or any Bank for purposes
of or in connection with this Agreement or any transaction contemplated herein
is, and all other such factual information (taken as a whole) hereafter
furnished by or on behalf of the Company in writing to any Bank will be, true
and accurate in all material respects on the date as of which such information
is dated or certified and not incomplete by omitting to state any material
fact necessary to make such information (taken as a whole) not misleading at
such time in light of the circumstances under which such information was
provided. The projections and pro forma financial information contained in
such materials are based on good faith estimates and assumptions believed by
the Company to be reasonable at the time made, it being recognized by the
Banks that such projections as to future events are not to be viewed as facts
and that actual results during the period or periods covered by any such pro-
jections may differ from the projected results. There is no fact known to the
Company which is reasonably likely to have a Material Adverse Effect which has
not been disclosed in writing to the Banks or to the Administrative Agent on
behalf of the Banks.
6.10 Financial Condition; Financial Statements. (a) On and as
of each of the Tender Offer Closing Date and the Merger Date, on a pro forma
basis after giving effect to the Transaction and to all Indebtedness incurred
and to be incurred and Liens created and to be created in connection
therewith, (x) the sum of the assets, at a fair valuation, of the Company and
its Subsidiaries taken as a whole will exceed their debts, (y) the Company and
its Subsidiaries taken as a whole will not have incurred or intended to, or
believe that they will, incur debts beyond their ability to pay such debts as
such debts mature and (z) the Company and its Subsidiaries taken as a whole
will not have unreasonably small capital with which to conduct their business.
For purposes of this Section 6.10, "debt" means any liability on a claim, and
"claim" means (i) right to payment whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured; or (ii) right to
an equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
(b) (i) The consolidated balance sheet of the Company and its
Subsidiaries at March 31, 1996 and at September 30, 1996 and the related
consolidated statements of income, retained earnings and cash flows of the
Company and its Subsidiaries for the fiscal year or six months ended as of
said dates, which, in the case of the annual financial statements have been
examined by Ernst & Young LLP, independent certified public accountants, who
delivered an unqualified opinion in respect therewith, (ii) the consolidated
-42- -34-
balance sheet of Eljer and its Subsidiaries at December 31, 1995 and at
September 29, 1996 and the related consolidated statements of income and cash
flows for the fiscal year or nine months ended as of said dates, which, in the
case of the annual financial statements have been examined by Arthur Andersen
LLP, independent certified public accountants, and (iii) the pro forma (after
giving effect to the Transaction) consolidated balance sheet of the Company as
of the end of September, 1996, copies of all of which have heretofore been
furnished to each Bank, present fairly the financial position of such entities
at the dates of said statements and the results for the period covered thereby
(or, in the case of the pro forma balance sheet, presents a good faith
estimate of the consolidated pro forma financial condition of the Company
after giving effect to the Transaction and the related financing thereof at
the date thereof) in accordance with GAAP, except to the extent provided in
the notes to said financial statements. All such financial statements (other
than the aforesaid pro forma balance sheet) have been prepared in accordance
with generally accepted accounting principles and practices consistently
applied except to the extent provided in the notes to said financial state-
ments. Except for the increase in liabilities arising from the incurrence of
Indebtedness to finance the Acquisition, nothing has occurred since March 31,
1996 that has had, or is reasonably likely to have, a Material Adverse Effect.
(c) Except as reflected in the financial statements and the notes
thereto described in Section 6.10(b) and the Indebtedness incurred hereunder,
there were as of the Initial Borrowing Date no liabilities or obligations with
respect to the Company or any of its Subsidiaries of a nature (whether
absolute, accrued, contingent or otherwise and whether or not due) which,
either individually or in aggregate, would be material to the Company and its
Subsidiaries taken as a whole, except as incurred in the ordinary course of
business consistent with past practices subsequent to the dates of their last
annual financial statements.
6.11 Security Interests. Once executed and delivered, each of
the Security Documents creates, as security for the obligations purported to
be secured thereby, a valid and enforceable perfected security interest in and
Lien on all of the Collateral subject thereto (except to the extent perfection
is not required pursuant to Section 5.01(l)(ii)(A)), superior to and prior to
the rights of all third Persons and subject to no other Liens (except (x) that
the Security Agreement Collateral may be subject to the security interests
evidenced by Permitted Liens relating thereto and (y) the Mortgaged Properties
may be subject to Permitted Encumbrances relating thereto) in favor of the
Collateral Agent for the benefit of the Secured Creditors. No filings or
recordings are required in order to perfect the security interests created
under any Security Document except for filings or recordings required in
connection with any such Security Document (other than the Pledge Agreements)
which shall have been made upon or prior to (or are the subject of arrange-
ments, satisfactory to the Administrative Agent, for filing on or promptly
after the date of) the execution and delivery thereof.
6.12 Representations and Warranties in Merger Agreement. All
representations and warranties set forth in the Merger Agreement were true and
correct in all material respects as of the time such representations and
warranties were made and shall be true and correct in all material respects as
-43- -35-
of the Initial Borrowing Date as if such representations and warranties were
made on and as of such date, unless stated to relate to a specific earlier
date, in which case such representations and warranties shall be true and
correct in all material respects as of such earlier date.
6.13 Tax Returns and Payments. Each of the Company and its
Subsidiaries has filed all federal income tax returns and all other material
tax returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it which have become due, other than
those not yet delinquent and except for those contested in good faith. The
Company and its Subsidiaries have paid, or have provided adequate reserves (in
the good faith judgment of the management of the Company) for the payment of,
all federal, state and foreign income taxes applicable for all prior fiscal
years and for the current fiscal year to the date hereof.
6.14 Compliance with ERISA. Each Plan is in substantial
compliance with ERISA and the Code; no Reportable Event (except with respect
to the Brass Proceeding) has occurred with respect to a Plan; no Plan is
insolvent or in reorganization; no Plan has an Unfunded Current Liability in
excess of $500,000; no Plan has an accumulated or waived funding deficiency,
has permitted decreases in its funding standard account or has applied for an
extension of any amortization period within the meaning of Section 412 of the
Code; neither the Company nor any Subsidiary nor any ERISA Affiliate has in-
curred any material liability to or on account of a Plan pursuant to Section
409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA
or Section 401(a)(29), 4971, 4975 or 4980 of the Code or expects to incur any
liability (including any indirect, contingent or secondary liability) under
any of the foregoing Sections with respect to any Plan; no proceedings have
been instituted to terminate or appoint a trustee to administer any Plan; no
condition exists which presents a material risk to the Company or any
Subsidiary or any ERISA Affiliate of incurring a liability to or on account of
a Plan pursuant to the foregoing provisions of ERISA and the Code; the
aggregate liabilities of the Company and its Subsidiaries and its ERISA
Affiliates to all Plans which are multiemployer plans (as defined in Section
4001(a)(3) of ERISA) in the event of a complete withdrawal therefrom, as of
the close of the most recent fiscal year of each such Plan ended prior to the
date of the most recent Credit Event, are not material; no lien imposed under
the Code or ERISA on the assets of the Company or any Subsidiary or any ERISA
Affiliate exists or is likely to arise on account of any Plan; and the Company
and its Subsidiaries do not maintain or contribute to any employee welfare
benefit plan (as defined in Section 3(1) of ERISA) (other than as disclosed in
the financial statements referred to in Section 6.10(b)) which provides
benefits to retired employees (other than as required by Section 601 of ERISA)
or any employee pension benefit plan (as defined in Section 3(2) of ERISA),
except to the extent that all events described in the preceding clauses of
this Section 6.14 and then in existence would not, in the aggregate, have or
be reasonably likely to have a Material Adverse Effect. With respect to Plans
that are multiemployer plans (within the meaning of Section 4001(a)(3) of
ERISA) the representations and warranties in this Section 6.14 are made to the
best knowledge of the Company.
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6.15 Subsidiaries. (a) Annex V hereto lists each Subsidiary of
the Company (and the direct and indirect ownership interests of the Company
therein) existing on the Effective Date but determined after giving effect to
the Acquisition.
(b) There are no restrictions on the Company or any of its
Subsidiaries which prohibit or otherwise restrict the transfer of cash or
other assets from any Subsidiary to the Company, other than prohibitions or
restrictions existing under or by reason of (i) this Agreement and the other
Credit Documents, (ii) applicable law, (iii) customary non-assignment
provisions entered into in the ordinary course of business and consistent with
past practices, (iv) any restriction or encumbrance with respect to a
Subsidiary of the Company imposed pursuant to an agreement which has been
entered into for the sale or disposition of all or substantially all of the
capital stock or assets of such Subsidiary, so long as such sale or
disposition is permitted under this Agreement, (v) until refinanced in full
and terminated, the Existing Company Credit Agreement and the Existing Eljer
Credit Facilities, (vi) until the Plan Confirmation Date, the Brass DIP Debt,
(vii) any documents or instruments governing the terms of any Indebtedness or
other obligations secured by Liens permitted by Section 8.03, provided that
such prohibitions or restrictions apply only to the assets subject to such
Liens and (viii) Permitted Restrictions.
6.16 Intellectual Property; etc. The Company and each of its
Subsidiaries have obtained all material patents, trademarks, service marks,
trade names, copyrights, licenses and other rights, free from burdensome
restrictions, that are necessary for the operation of their businesses taken
as a whole as presently conducted and as proposed to be conducted.
6.17 Pollution and Other Regulations. (a) Each of the Company
and its Subsidiaries is in compliance with all Environmental Laws governing
its business for which failure to comply is reasonably likely to have a
Material Adverse Effect. All licenses, permits, registrations or approvals
required for the business of the Company and each of its Subsidiaries, as
conducted as of the Effective Date, under any Environmental Law have been
secured and the Company and each of its Subsidiaries is in substantial
compliance therewith, except such licenses, permits, registrations or appro-
vals the failure to secure or to comply therewith is not reasonably likely to
have a Material Adverse Effect. Neither the Company nor any of its
Subsidiaries is in noncompliance with, breach of or default under any applic-
able writ, order, judgment, injunction, or decree to which the Company or such
Subsidiary is a party or which would affect the ability of the Company or such
Subsidiary to operate any real property and no event has occurred and is
continuing which, with the passage of time or the giving of notice or both,
would constitute noncompliance, breach of or default thereunder, except in
each such case, such noncompliance, breaches or defaults as are not reasonably
likely to, in the aggregate, have a Material Adverse Effect. There are as of
the Effective Date no Environmental Claims pending or, to the best knowledge
of the Company, threatened, which (a) challenge the validity, term or
entitlement of the Company or any of its Subsidiaries for any permit, license,
order or registration required for the operation of any facility under the
Environmental Laws which the Company or any of its Subsidiaries operates and
-45- -37-
(b) wherein an unfavorable decision, ruling or finding would be reasonably
likely to have a Material Adverse Effect. There are no facts, circumstances,
conditions or occurrences concerning the Company or any of its Subsidiaries,
any of their operations or on any Real Property or, to the knowledge of the
Company, on any property adjacent to any such Real Property that could
reasonably be expected (i) to form the basis of an Environmental Claim against
the Company, any of its Subsidiaries or any Real Property of the Company or
any of its Subsidiaries, or (ii) to cause such Real Property to be subject to
any restrictions on the ownership, occupancy, use or transferability of such
Real Property under any Environmental Law, except in each such case, such
Environmental Claims or restrictions that individually or in the aggregate are
not reasonably likely to have a Material Adverse Effect.
(b) Hazardous Materials have not at any time been (i) generated,
used, treated or stored on, or transported to or from, any Real Property of
the Company or any of its Subsidiaries or (ii) released on any Real Property,
in each case where such occurrence or event individually or in the aggregate
is reasonably likely to have a Material Adverse Effect.
(c) All material Environmental Claims of the Company and its
Subsidiaries (other than Eljer and its Subsidiaries) pending as of the
Effective Date are set forth on Annex VI hereto.
6.18 Properties. The Company and each of its Subsidiaries have
good and marketable title to all properties owned by them, including all
property reflected in the consolidated balance sheets of the Company and its
Subsidiaries and of Eljer and its Subsidiaries referred to in Section 6.10(b),
free and clear of all Liens, other than (i) as referred to in the consolidated
balance sheets or in the notes thereto or (ii) as permitted by Section 8.03.
Annex VII contains a true and complete list of each Real Property owned or
leased by the Company or any of its Subsidiaries on the Effective Date
(determined after giving effect to the Acquisition) and the type of interest
therein held by the Company or the respective Subsidiary.
6.19 Labor Relations. The Company and its Subsidiaries are not
engaged in any unfair labor practice that is reasonably likely to have a
Material Adverse Effect. There is (i) no unfair labor practice complaint
pending against the Company or any of its Subsidiaries or threatened against
any of them, before the National Labor Relations Board, and no grievance or
arbitration proceeding arising out of or under any collective bargaining
agreement is so pending against any of them or threatened against any of them,
(ii) no strike, labor dispute, slowdown or stoppage pending against the
Company or any of its Subsidiaries or threatened against any of them and (iii)
no union representation question existing with respect to the employees of the
Company or any of its Subsidiaries and no union organizing activities are
taking place, except with respect to any matter specified in clause (i), (ii)
or (iii) above, either individually or in the aggregate, such as is not
reasonably likely to have a Material Adverse Effect.
6.20 Existing Indebtedness. Annex VIII sets forth a true and
complete list of all Indebtedness (other than intercompany indebtedness) of
the Company and each of its Subsidiaries (including Eljer and its
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Subsidiaries) as of the Initial Borrowing Date that is in excess of $5,000 for
any one issue and is to remain outstanding thereafter (all such Indebtedness,
of whatever size, but excluding Indebtedness hereunder, the "Existing
Indebtedness"), in each case showing the aggregate principal amount thereof
and the name of the respective borrower (or issuer) and any other entity which
directly or indirectly guaranteed such debt.
6.21 Offer to Purchase. All necessary governmental and material
third party approvals in connection with the purchase of Shares pursuant to
the Offer to Purchase, and the transactions contemplated thereby and otherwise
referred to therein have been or, prior to the time when required, will have
been, obtained and remain in effect, and all applicable waiting periods have
or, prior to the time when required, will have, expired without, in all such
cases, any action being taken by any competent authority which materially
restrains, prevents, imposes materially adverse conditions upon or unduly hin-
ders, the consummation of the purchase of Shares pursuant to the Offer to
Purchase or the Merger. Additionally, except to the extent consented to by
the Required Banks, there does not exist any judgment, order, injunction or
other restraint issued or filed with respect to the making of Loans or which
would reasonably be expected to materially impair the right or ability of the
Acq. Sub to purchase the Shares pursuant to the Offer to Purchase or to
consummate the Merger. At the time of their dissemination to the public, the
Offer to Purchase and all other Tender Offer Documents and Additional Tender
Offer Documents (taken as a whole) prepared by or on behalf of the Company
and/or its Subsidiaries (including Eljer and/or its Subsidiaries) did not or
will not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in light of
the circumstances under which made, not misleading.
6.22 Merger. On and as of the Merger Date, (i) all consents and
approvals of, and filings and registrations with, and all other actions in
respect of, all governmental agencies, authorities or instrumentalities
required in order to make or consummate the Merger, or otherwise required in
connection with the Merger, will have been obtained, given, filed or taken and
are or will be in full force and effect (or effective judicial relief with
respect thereto will have been obtained) other than the post-Merger
notification required to be filed with the Federal Cartel Office of Germany
and (ii) the Merger shall have been consummated in accordance with the Merger
Documents and in compliance with all applicable laws.
SECTION 7. Affirmative Covenants. The Company covenants and
agrees that on the Effective Date and thereafter for so long as this Agreement
is in effect and until the Commitments have terminated, no Notes, Letters of
Credit or Acceptances are outstanding and the Loans, together with interest,
Fees and all other Obligations incurred hereunder, are paid in full:
7.01 Information Covenants. The Company will furnish to each
Bank:
(a) Annual Financial Statements. Within 90 days after the close
of each fiscal year of the Company, the consolidated balance sheet of the
Company and its Consolidated Subsidiaries, as at the end of such fiscal year
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and the related consolidated statements of income, of retained earnings and of
cash flows for such fiscal year, in each case setting forth comparative
consolidated figures for the preceding fiscal year, and examined by inde-
pendent certified public accountants of recognized national standing whose
opinion shall be free of exceptions and qualifications not acceptable to the
Required Banks, together with a certificate of such accounting firm stating
that in the course of its regular audit of the business of the Company, which
audit was conducted in accordance with generally accepted auditing standards,
such accounting firm has obtained no knowledge of any Default or Event of
Default which has occurred and is continuing or, if in the opinion of such
accounting firm such a Default or Event of Default has occurred and is
continuing, a statement as to the nature thereof.
(b) Quarterly Financial Statements. As soon as available and in
any event within 45 days after the close of the first three quarterly
accounting periods in each fiscal year, the Form 10-Q of the Company for such
period as filed or to be filed with the SEC, or, if such Form 10-Q is no
longer filed by the Company, unaudited consolidated balance sheet of the
Company and its Consolidated Subsidiaries as at the end of such quarterly
period and the related consolidated statements of income, of retained earnings
and of cash flows for such quarterly period and for the elapsed portion of the
fiscal year ended with the last day of such quarterly period, and in each case
setting forth comparative consolidated figures for the related periods in the
prior fiscal year, all of which shall be certified by the chief financial
officer or controller of the Company, subject to changes resulting from audit
and normal year-end audit adjustments.
(c) Budgets; etc. Not more than 60 days after the commencement
of each fiscal year of the Company, a budget of the Company and its
Subsidiaries in reasonable detail for each of the fiscal quarters of such
fiscal year. Together with each delivery of consolidated financial statements
pursuant to Sections 7.01(a) and (b), a comparison of the current year to date
financial results against the budgets required to be submitted pursuant to
this clause (c) shall be presented.
(d) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Sections 7.01(a) and (b), a certificate
of the chief financial officer, controller or other Authorized Officer of the
Company to the effect that no Default or Event of Default exists or, if any
Default or Event of Default does exist, specifying the nature and extent
thereof, which certificate, shall set forth the calculations required to
establish (I) the Leverage Ratio for the Relevant Determination Date occurring
on the last day of such fiscal year or quarter and (II) whether the Company
and its Subsidiaries were in compliance with the provisions of Sections 8.11,
8.12, 8.13 and 8.14 as at the end of such fiscal period or year, as the case
may be, and shall be accompanied by (x) a report of the Company's contractual
commitments and contingencies in the form provided for in the Existing Company
Credit Agreement, (y) an updated Annex VI with revisions through the date of
delivery and (z) a report establishing the location of the inventory of the
Company and its Subsidiaries (and the percentage of such inventory located in
each state).
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(e) Notice of Default or Litigation. Promptly, and in any event
within three Business Days after the Company obtains knowledge thereof, notice
of (x) the occurrence of any event which constitutes a Default or Event of
Default which notice shall specify the nature thereof, the period of existence
thereof and what action the Company proposes to take with respect thereto and
(y) the commencement of or any significant development in any litigation or
governmental proceeding pending against the Company or any of its Subsidiaries
which is reasonably likely to have a Material Adverse Effect or is reasonably
likely to have a material adverse effect on the ability of any Credit Party to
perform its obligations hereunder or under any other Credit Document.
(f) Other Information. Promptly upon transmission thereof, (i)
copies of all regular or special reports to, or effective registration
statements with, the Securities and Exchange Commission or any successor
thereto (the "SEC") by the Company or any of its Subsidiaries and (ii) with
reasonable promptness, such other information or documents (financial or
otherwise) as the Administrative Agent on its own behalf or on behalf of the
Required Banks may reasonably request from time to time.
7.02 Books, Records and Inspections. The Company will, and will
cause its Subsidiaries to, permit, upon reasonable notice to the chief
financial officer, controller or any other Authorized Officer of the Company,
officers and designated representatives of either Agent or the Required Banks
to visit and inspect any of the properties or assets of the Company and any of
its Subsidiaries in whomsoever's possession, and to examine the books of
account of the Company and any of its Subsidiaries and discuss the affairs,
finances and accounts of the Company and of any of its Subsidiaries with, and
be advised as to the same by, its and their officers and independent
accountants, all at such reasonable times and intervals and to such reasonable
extent as either Agent or the Required Banks may desire.
7.03 Insurance. The Company will, and will cause each of its
Subsidiaries (other than, prior to the Plan Confirmation Date, Brass) to, at
all times maintain in full force and effect insurance in such amounts,
covering such risks and liabilities and with such deductibles or self-insured
retentions as are in accordance with normal industry practice. All such
insurance shall be provided by insurers having an A.M. Best policyholders
rating of not less than B+ or such other insurers as may be approved by the
Required Banks. At any time that insurance at the levels described in Annex
IX is not being maintained by the Company and its Subsidiaries, the Company
will notify the Banks in writing thereof and, if thereafter notified by the
Administrative Agent to do so, the Company will, and will cause its
Subsidiaries to, obtain insurance at such levels at least equal to those set
forth in Annex IX to the extent then generally available (but in any event
within the deductible or self-insured retention limitations set forth in the
preceding sentence) or otherwise as are acceptable to the Administrative
Agent. The Company will, and will cause each of its Subsidiaries to, furnish
annually to the Administrative Agent a summary of the insurance carried
together with certificates of insurance and other evidence of such insurance,
if any, naming the Collateral Agent as an additional insured and/or loss
payee.
-49- -41-
7.04 Payment of Taxes. The Company will pay and discharge, and
will cause each Subsidiary to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits,
or upon any properties belonging to it, prior to the date on which penalties
attach thereto, and all lawful claims which, if unpaid, might become a Lien or
charge upon any properties of the Company or any of its Subsidiaries, provided
that neither the Company nor any Subsidiary shall be required to pay any such
tax, assessment, charge, levy or claim which is being contested in good faith
and by proper proceedings if it has maintained adequate reserves (in the good
faith judgment of the management of the Company) with respect thereto in
accordance with GAAP.
7.05 Consolidated Corporate Franchises. The Company will do, and
will cause each Subsidiary to do, or cause to be done, all things necessary to
preserve and keep in full force and effect its existence, material rights and
authority, provided that any transaction permitted by Section 8.02 will not
constitute a breach of this Section 7.05.
7.06 Compliance with Statutes; etc. The Company will, and will
cause each Subsidiary to, comply with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and the
ownership of its property other than those the noncompliance with which are
not reasonably likely to have a Material Adverse Effect or a material adverse
effect on the ability of the Credit Parties to perform their obligations under
any Credit Document.
7.07 ERISA. As soon as possible and, in any event, within 10
Business Days after the Company or any of its Subsidiaries or ERISA Affiliates
knows or has reason to know of the occurrence of any of the following, the
Company will deliver to each of the Banks a certificate of the chief financial
officer of the Company setting forth details as to such occurrence and such
action, if any, which the Company, such Subsidiary or such ERISA Affiliate is
required or proposes to take, together with any notices required or proposed
to be given to or filed with or by the Company, the Subsidiary, the ERISA
Affiliate, the PBGC, a Plan participant (other than notices relating to an
individual participant's benefits) or the Plan administrator with respect
thereto: that a Reportable Event has occurred; that an accumulated funding
deficiency has been incurred or an application is reasonably likely to be or
has been made to the Secretary of the Treasury for a waiver or modification of
the minimum funding standard (including any required installment payments) or
an extension of any amortization period under Section 412 of the Code with re-
spect to a Plan; that a Plan which has an Unfunded Current Liability has been
or may be terminated, reorganized, partitioned or declared insolvent under
Title IV of ERISA; that a Plan has an Unfunded Current Liability and there is
a failure to make a required contribution, which gives rise to a lien under
ERISA or the Code; that proceedings are reasonably likely to be or have been
instituted to terminate a Plan which has an Unfunded Current Liability; that a
proceeding has been instituted pursuant to Section 515 of ERISA to collect a
delinquent contribution to a Plan; that the Company, any Subsidiary or any
ERISA Affiliate will or may incur any liability (including, any contingent or
secondary liability) to or on account of the termination of or withdrawal from
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a Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
with respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the
Code or Section 409, 502(l) or 502(l) of ERISA or that the Company or any
Subsidiary may incur any material liability pursuant to any employee welfare
benefit plan (as defined in Section 3(1) of ERISA) (other than as disclosed in
the financial statements provided pursuant to Section 6.10(b)) that provides
benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or any employee pension benefit plan (as
defined in Section 3(2) of ERISA). Upon request of a Bank, the Company will
deliver to such Bank a complete copy of the annual report (Form 5500) of each
Plan required to be filed with the Internal Revenue Service. In addition to
any certificates or notices delivered to the Banks pursuant to the first
sentence hereof, copies of any annual reports and any other material notices
received by the Company or any Subsidiary with respect to a Plan shall be
delivered to the Banks no later than 10 days after the later of the date such
notice has been filed with the Internal Revenue Service or the PBGC, given to
Plan participants (other than notices relating to an individual participant's
benefits) or received by the Company or such Subsidiary.
7.08 Good Repair. The Company will, and will cause each of its
Subsidiaries to, ensure that its properties and equipment used or useful in
its business in whomsoever's possession they may be, are kept in good repair,
working order and condition, normal wear and tear excepted, and that from time
to time there are made in such properties and equipment all needful and proper
repairs, renewals, replacements, extensions, additions, betterments and
improvements thereto, to the extent and in the manner useful or customary for
companies in similar businesses.
7.09 End of Fiscal Years; Fiscal Quarters. The Company will, for
financial reporting purposes, cause (i) each of its, and each of its
Subsidiaries' fiscal years to end on March 31 of each year and (ii) each of
its, and each of its Subsidiaries' fiscal quarters to end on the Saturday
nearest to June 30, September 30 and December 31 of each year and on each
March 31.
7.10 Additional Security; Further Assurances; etc. (a) No later
than 45 days following the Initial Borrowing Date (in the case of the Company
and the Initial Subsidiary Guarantors) or the Initial B Term Loan Date, (in
the case each Additional Subsidiary Guarantor) the Collateral Agent shall have
received:
(A) fully executed counterparts of deeds of trust, mortgages or
amendments to such documents and similar documents in each case in form
and substance reasonably satisfactory to the Collateral Agent (each a
"Mortgage" and collectively, the "Mortgages") covering all the Mortgaged
Properties owned by the Company and/or any Subsidiary Guarantor, for
recording in all places to the extent necessary or desirable, in the
reasonable judgment of the Collateral Agent, effectively to create a
valid and enforceable first priority Lien, subject only to Liens
permitted pursuant to Section 8.03(d), on each such Mortgaged Property
in favor of the Collateral Agent (or such other trustee as may be
required or desired under local law) for the benefit of the Secured
Creditors;
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(B) mortgagee title insurance policies on each such Mortgaged
Property issued by Chicago Title Insurance Company or other title
insurers reasonably satisfactory to the Collateral Agent (the "Mortgage
Policies") in amounts satisfactory to the Collateral Agent assuring the
Collateral Agent that the Mortgages on such Mortgaged Properties are
valid and enforceable first priority mortgage liens on the respective
Mortgaged Properties, free and clear of all defects and encumbrances
except Permitted Liens and such Mortgage Policies shall otherwise be in
form and substance reasonably satisfactory to the Collateral Agent and
shall include, as reasonably appropriate and where available, an
endorsement for future advances under this Agreement and the Notes and
for any other matter that the Collateral Agent in its reasonable discre-
tion may reasonably request, when practicable, shall not include an
exception for mechanics' liens, and shall provide for affirmative
insurance and such reinsurance as the Collateral Agent in its discretion
may reasonably request; and
(C) a survey and, to the extent requested by the Collateral
Agent, an affidavit of no change relating to any such survey, in each
case in form and substance reasonably satisfactory to the Collateral
Agent, for each Mortgaged Property, certified by a licensed professional
surveyor reasonably satisfactory to the Collateral Agent.
(b) The Company will, and will cause the Subsidiary Guarantors
to, grant to the Collateral Agent security interests and mortgages (each a
"New Mortgage") in such owned Real Property (x) acquired after the Initial
Borrowing Date or (y) of a Subsidiary Guarantor owned on the date it first
becomes a Subsidiary Guarantor or thereafter acquired, in each case as may be
requested from time to time by the Agent. Such New Mortgages shall be granted
pursuant to documentation reasonably satisfactory in form and substance to the
Collateral Agent and shall constitute valid and enforceable Liens superior to
and prior to the rights of all third Persons and subject to no other Liens
except as are permitted by Section 8.03. The New Mortgages or instruments
related thereto shall have been duly recorded or filed in such manner and in
such places as are required by law to establish, perfect, preserve and protect
the Liens in favor of the Collateral Agent required to be granted pursuant to
the New Mortgages and all taxes, fees and other charges payable in connection
therewith shall have been paid in full, with each New Mortgage to be accom-
panied by mortgage policies related thereto reasonably satisfactory to the
Collateral Agent.
(c) The Company will, and will cause its Subsidiaries to, at the
expense of the Company, make, execute, endorse, acknowledge, file and/or
deliver to the Collateral Agent from time to time such vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing statements,
transfer endorsements, powers of attorney, certificates, real property
surveys, reports and other assurances or instruments and take such further
steps relating to the collateral covered by any of the Security Documents as
the Collateral Agent may reasonably require. Furthermore, the Company shall
cause to be delivered to the Collateral Agent such opinions of counsel, title
insurance and other related documents as may be requested by the Collateral
Agent to assure themselves that this Section 7.10 has been complied with.
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(d) The Company will cause any Subsidiary which was not an
Initial Subsidiary Guarantor on the Initial Borrowing Date as a result of (A)
clause (iv) or (v) of the definition of Initial Subsidiary Guarantor to become
a Subsidiary Guarantor, in the event that such Subsidiary ceases to be
contractually prohibited from entering into the Subsidiary Guaranty or ceases
to be a De Minimis Subsidiary, as the case may be, and (B) clause (iii) of the
definition of Initial Subsidiary Guarantor to become a Subsidiary Guarantor,
in the event that such corporation remains a Subsidiary on January 1, 1998, in
each case by (x) promptly executing a Subsidiary Guaranty and (y) taking the
actions specified in clause (iii) of the last sentence of Section 8.06.
(e) The Company agrees that each action required above by Section
7.10(b), (c) or (d) shall be completed as soon as possible, but in no event
later than 60 days after such action is requested to be taken by the
Collateral Agent.
7.11 Corporate Separateness. The Company will take, and will
cause each of its Subsidiaries to take, all such action as is necessary to
keep the businesses, assets and liabilities of the Zurn Group separate and
apart from those of the Eljer Group, including, without limitation, ensuring
that all customary formalities regarding corporate existence, including
holding regular board of directors' meetings and maintenance of corporate
records, are followed. All financial statements of the Company and its
Subsidiaries provided to creditors will, to the extent permitted by GAAP,
clearly evidence the corporate separateness of the Zurn Group from the Eljer
Group. Neither the Company nor any of its Subsidiaries will take any action,
or conduct its affairs in a manner which is likely to result in the corporate
existence of the entities in the Eljer Group on the one hand, and the entities
in the Zurn Group on the other, being ignored, or in the assets and
liabilities of any of the Zurn Group being substantively consolidated with
those of any of the Eljer Group in a bankruptcy, reorganization or other
insolvency proceeding.
7.12 Interest Rate Agreement. The Borrowers (x) will, no later
than the date occurring 60 days after the Initial Borrowing Date, enter into
Interest Rate Agreements which cover for at least two years from the Initial
Borrowing Date at least $125,000,000 of the outstanding Term Loans on terms
reasonably satisfactory to the Agent and (y) may thereafter, enter into
Interest Rate Agreements which cover additional amounts of outstanding Term
Loans on terms (and in such amounts) reasonably satisfactory to the
Administrative Agent.
7.13 Merger; Control. The Company will (i) cause the Merger to
be consummated as promptly as practical and in no event later than the date
which is 180 days after the Initial Borrowing Date, (ii) take all actions
available to it to cause designees of the Company to constitute a majority of
the Board of Directors of Eljer as promptly as reasonably practical after the
Initial Borrowing Date (and in no event later than the Merger Date), (iii)
comply with all of its covenants and agreements contained in the Merger
Agreement, (iv) exercise all of its rights and powers to cause Eljer to comply
with all of Eljer's covenants and conditions contained in the Merger Agreement
and (v) not waive or agree to amend any covenant binding upon Eljer and its
-53- -45-
Subsidiaries that is set forth in the Merger Agreement if such waiver or
amendment would result in a breach of any of the covenants contained in this
Agreement (other than pursuant to the preceding clause (iv)).
7.14 Compliance with Environmental Laws. (i) The Company will
comply, and the Company will cause each of its Subsidiaries to comply, with
all Environmental Laws applicable to the ownership, lease or use of all Real
Property now or hereafter owned, leased or operated by the Company or any of
its Subsidiaries, will promptly pay or cause to be paid all costs and expenses
incurred in connection with such compliance, and will keep or cause to be kept
all such Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws and (ii) neither the Company nor any of its Subsidiaries
will generate, use, treat, store, release or dispose of, or permit the genera-
tion, use, treatment, storage, release or disposal of Hazardous Materials on
any Real Property now or hereafter owned, leased or operated by the Company or
any of its Subsidiaries, or transport or permit the transportation of
Hazardous Materials to or from any such Real Property, except to the extent
that the failure to comply with the requirements specified in clause (i) or
(ii) above, either individually or in the aggregate, would not be reasonably
likely to have a Material Adverse Effect. If required to do so under any
applicable directive or order of any governmental agency, the Company agrees
to undertake, and cause each of its Subsidiaries to undertake, any clean up,
removal, remedial or other action necessary to remove and clean up any
Hazardous Materials from any Real Property owned, leased or operated by the
Company or any of its Subsidiaries in accordance with, in all material
respects, the requirements of all applicable Environmental Laws and in
accordance with, in all material respects, such orders and directives of all
governmental authorities, except to the extent that the Company or such
Subsidiary is contesting such order or directive in good faith and by
appropriate proceedings and for which adequate reserves have been established
to the extent required by GAAP.
SECTION 8. Negative Covenants. The Company hereby covenants and
agrees, as of the Effective Date and thereafter for so long as this Agreement
is in effect and until the Commitments have terminated, no Notes, Letters of
Credit or Acceptances are outstanding and the Loans, together with interest,
Fees and all other Obligations incurred hereunder, are paid in full, that:
8.01 Changes in Business. The Company will not, and will not
permit any of its Subsidiaries to, materially alter the character of the
business of the Company and its Subsidiaries from that conducted by the
Company and its Subsidiaries (including Eljer and its Subsidiaries) on the
Initial Borrowing Date.
8.02 Consolidation; Merger; Sale or Purchase of Assets; etc. The
Company will not, and will not permit any Subsidiary to, wind up, liquidate or
dissolve its affairs, or enter into any transaction of merger or
consolidation, sell or otherwise dispose of all or any part of its property or
assets (other than inventory or obsolete equipment or excess equipment no
longer needed in the conduct of the business in the ordinary course of
business) or purchase, lease or otherwise acquire all or any part of the
property or assets of any Person (other than purchases or other acquisitions
-54- -46-
of inventory, leases, materials and equipment in the ordinary course of
business) or agree to do any of the foregoing at any future time, except that
the following shall be permitted:
(a) any entity that is a member of the Zurn Group or the Eljer
Group may be merged or consolidated with or into, or be liquidated into,
another member of said Group (so long as a Borrower is the surviving
entity to the extent involving a Borrower or a Subsidiary Guarantor is
the surviving entity to the extent involving a Subsidiary Guarantor), or
all or any part of its business, properties and assets of such entity
may be conveyed, leased, sold or transferred to another member of such
Group that is a Borrower or a Subsidiary Guarantor, provided that no
such merger, consolidation, liquidation, conveyance, lease, sale or
transfer consummated prior to the Plan Confirmation Date may involve
Brass or its assets or liabilities;
(b) capital expenditures to the extent within the limitations set
forth in Section 8.05 hereof;
(c) the investments, acquisitions and transfers or dispositions
of properties permitted pursuant to Section 8.06;
(d) each of the Company and its Subsidiaries may lease (as
lessee) real or personal property in the ordinary course of business (so
long as such lease does not create a Capitalized Lease Obligation not
otherwise permitted by Section 8.04(c));
(e) Permitted Sales; and
(f) Permitted Acquisitions.
8.03 Liens. The Company will not, and will not permit any of its
Subsidiaries to, (I) create, incur, assume or suffer to exist any Lien upon or
with respect to any property or assets of any kind (real or personal, tangible
or intangible) of the Company or any such Subsidiary whether now owned or
hereafter acquired, (II) sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such
property or assets (including sales of accounts receivable or notes with
recourse to the Company or any of its Subsidiaries), (III) or assign any right
to receive income, (IV) file or permit the filing of any financing statement
under the UCC or any other similar notice of Lien under any similar recording
or notice statute or (V) grant to any creditor a signature pledge, except:
(a) Liens for taxes not yet due or Liens for taxes being
contested in good faith and by appropriate proceedings for which
adequate reserves (in the good faith judgment of the management of the
Company) have been established;
(b) Liens in respect of property or assets of the Company or any
of its Subsidiaries imposed by law which were incurred in the ordinary
course of business, such as carriers', warehousemen's and mechanics'
Liens, statutory landlord's Liens, and other similar Liens arising in
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the ordinary course of business, and (x) which do not in the aggregate
materially detract from the value of such property or assets or
materially impair the use thereof in the operation of the business of
the Company or any Subsidiary or (y) which are being contested in good
faith by appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or asset subject to
such Lien;
(c) Liens created by or pursuant to this Agreement or the other
Credit Documents;
(d) (x) Liens on assets of the Company and each Subsidiary
existing on the Effective Date and listed on Part A of Annex X hereto,
without giving effect to any subsequent extensions or renewals thereof
and (y) immaterial Liens on assets of the Company and each Subsidiary
existing on the Initial Borrowing Date at the locations listed on Part B
of Annex X;
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 9.08
provided, that no cash or property is deposited or delivered to secure
any respective judgment or award (or any appeal bond in respect thereof,
except as permitted by the following clause (f));
(f) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business (exclusive of
obligations in respect of the payment for borrowed money);
(g) leases or subleases granted to others not interfering in any
material respect with the business of the Company or any of its
Subsidiaries;
(h) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the
business of the Company or any of its Subsidiaries;
(i) Liens arising from UCC financing statements regarding leases
permitted by this Agreement;
(j) purchase money Liens securing payables arising from the
purchase by the Company or any Subsidiary Guarantor of any equipment or
goods in the normal course of business, provided that such payables
shall not constitute Indebtedness;
(k) any interest or title of a lessor or any lien on the interest
or title of a lessor under any lease permitted by this Agreement;
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(l) Liens arising pursuant to purchase money mortgages relating
to, or security interests securing Indebtedness representing the
purchase price of, assets acquired by the Company or any Subsidiary
Guarantor after the Effective Date, provided that any such Liens attach
only to the assets so acquired and that all Indebtedness secured by
Liens created pursuant to this clause (l) shall not exceed $5,000,000 at
any time outstanding;
(m) Liens created pursuant to Capital Leases permitted pursuant
to Section 8.04(c);
(n) prior to the Plan Confirmation Date, Liens on assets of Brass
created pursuant to the Brass DIP Debt; and
(o) other Liens on assets of the Company and the Subsidiary
Guarantors securing Indebtedness not in excess of $1,000,000 in the
aggregate at any time outstanding.
8.04 Indebtedness. The Company will not, and will not permit any
of its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;
(b) Indebtedness owing by (i) any member of the Zurn Group or the
Eljer Group to another member of such Group, (ii) the Company to Eljer
and (iii) any Subsidiary to the Company in respect of advances made by
the Company with proceeds of Revolving Loans;
(c) Capitalized Lease Obligations of the Company or any
Subsidiary Guarantor, provided that the aggregate Capitalized Lease
Obligations under all Capital Leases entered into after the Effective
Date shall not exceed $5,000,000;
(d) Existing Indebtedness, without giving effect to any
subsequent extension, renewal or refinancing thereof;
(e) Indebtedness incurred pursuant to purchase money mortgages
permitted by Section 8.03(l);
(f) prior to the Plan Confirmation Date, Indebtedness of Brass
constituting the Brass DIP Debt;
(g) on and after the Plan Confirmation Date, amounts owing to the
Brass Trust by Eljer and EMI pursuant to the Third Amended Plan; and
(h) additional Indebtedness of the Company not to exceed an
aggregate outstanding principal amount of $15,000,000 at any time,
provided that of the Indebtedness permitted by this clause (h) no more
than (x) $5,000,000 shall constitute Indebtedness of Foreign
Subsidiaries and (y) $10,000,000 shall constitute Indebtedness in
respect of letters of credit.
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8.05 Capital Expenditures. (a) The Company will not, and will
not permit any of its Subsidiaries to, incur Consolidated Capital
Expenditures, provided that the Company and any Subsidiary Guarantor may make
Consolidated Capital Expenditures (x) during the period from the Effective
Date through March 31, 1998 (taken as one accounting period) in an aggregate
amount not in excess of $22,000,000, (y) during the fiscal year of the Company
ended March 31, 1999, $22,000,000 and (z) during each successive fiscal year
of the Company, in an aggregate amount not in excess of $18,000,000.
(b) In the event that the maximum amount which is permitted to be
expended in respect of Consolidated Capital Expenditures during any fiscal
year pursuant to Section 8.05(a) (without giving effect to this clause (b)) is
not fully expended during such fiscal year, the maximum amount which may be
expended during the immediately succeeding fiscal year pursuant to Section
8.05(a) shall be increased by such unutilized amount provided that such
increase shall not exceed $7,500,000 in any fiscal year.
8.06 Investments and Loans. The Company will not, and will not
permit any Subsidiary to, make or permit to exist any Investment or acquire or
establish any Subsidiary, except for Permitted Investments or as permitted by
the next sentence. The Company and/or any Subsidiary Guarantor may acquire
100% of the Capital Stock of any other Person pursuant to a Permitted
Acquisition if the following conditions are satisfied: (i) an Event of
Default has not occurred and is continuing under this Agreement and will not
occur as a result of, in connection with or after giving effect to such
acquisition; (ii) the Person being acquired engages exclusively in the
business permitted to be engaged in by the Company and its Subsidiaries
pursuant to Section 8.01; (iii) such Person shall become a Subsidiary
Guarantor upon such Investment and shall execute and deliver a counterpart of
the Pledge Agreement and the Security Agreement (and take all steps required
by the Administrative Agent to perfect the Liens of the Collateral Agent on
the Collateral subject thereto) and shall take all actions required by Section
7.10(b) and (c).
8.07 Subsidiaries; etc. The Company will not, and will not
permit any Subsidiary to, (x) sell, assign or otherwise encumber or dispose of
any shares of a Subsidiary's capital stock or other securities (or warrants,
rights or options to acquire shares or other equity securities) except to the
Company or its direct parent company to the extent a Wholly-Owned Subsidiary
of the Company (to the extent otherwise permitted hereunder) and except for
dispositions permitted by Section 8.02 and (y) after the Effective Date,
create or permit to be created any new Subsidiary except to the extent created
in compliance with the second sentence of Section 8.06.
8.08 Certain Actions. The Company will not, and will not permit
any of its Subsidiaries to:
(a) make (or give any notice in respect thereof) any voluntary or
optional payment or prepayment or redemption or acquisition for value of
(including, without limitation, by way of depositing with the trustee
with respect thereto money or securities before due for the purpose of
-58- -50-
paying when due) or exchange of any Existing Indebtedness except as
contemplated by Section 5.01(r), 5.02(f) and 6.05(b);
(b) amend or modify, or permit the amendment or modification of,
any provisions of the Third Amended Plan that is not acceptable to the
Plan Majority Banks or consent to any other plan of reorganization for
the Brass Proceedings that is not acceptable to the Plan Majority Banks;
and/or
(c) amend, modify or change in any manner adverse to the
interests of the Banks the Certificate of Incorporation (including,
without limitation, by the filing of any certificate of designation) or
By-Laws of the Company, or the Acquisition Documents or enter into any
new agreement in any manner adverse to the interests of the Banks with
respect to the capital stock of the Company.
8.09 Dividends; etc. (a) The Company will not redeem, retire,
purchase or otherwise acquire, directly or indirectly, any Capital Stock of
the Company or other evidence of ownership interest, or declare or pay
dividends upon any Capital Stock of the Company or make any distribution of
the Company's property or assets (any of the foregoing, a "Dividend"),
provided that this Section 8.09 will not prohibit, so long as at the time of
the declaration, announcement or execution thereof no Event of Default shall
have occurred and is continuing or would occur as a consequence thereof, the
payment of Dividends not in excess of $6,000,000 per year.
(b) The Company will not, and will not permit any of its
Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance
or restriction which prohibits or otherwise restricts (A) the ability of any
Subsidiary to (a) pay dividends or make other distributions or pay any
Indebtedness owed to the Company or any Subsidiary, (b) make loans or advances
to the Company or any Subsidiary or (c) transfer any of its properties or
assets to the Company or any Subsidiary or (B) the ability of the Company or
any other Subsidiary to create, incur, assume or suffer to exist any Lien upon
its property or assets to secure the Obligations, other than prohibitions or
restrictions existing under or by reason of: (i) this Agreement and the other
Credit Documents; (ii) applicable law; (iii) customary non-assignment
provisions entered into in the ordinary course of business and consistent with
past practices; (iv) any restriction or encumbrance with respect to a
Subsidiary imposed pursuant to an agreement which has been entered into for
the sale or disposition of all or substantially all of the capital stock or
assets of such Subsidiary, so long as such sale or disposition is permitted
under this Agreement; (v) until refinanced in full and terminated, the
Existing Company Credit Agreement and the Existing Eljer Credit Facilities;
(vi) until the Plan Confirmation Date, the Brass DIP Debt; (vii) Liens
permitted under Section 8.03 and any documents or instruments governing the
terms of any Indebtedness or other obligations secured by any such Liens,
provided that such prohibitions or restrictions apply only to the assets
subject to such Liens; and (viii) Permitted Restrictions.
8.10 Transactions with Affiliates. The Company will not, and
will not permit any Subsidiary to, sell, lease, license, transfer, exchange,
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or otherwise dispose of any of its properties, assets or services to, or
purchase, lease, or license the use of any property, assets or services from,
or transfer funds to, or enter into any contract, agreement, understanding,
loan, advance or guarantee with, to or for the benefit of, any Affiliate (each
of the foregoing, an "Affiliate Transaction," whether constituting one
transaction or a series of related transactions), unless such Affiliate
Transaction is on terms that are no less favorable to the Company or the
relevant Subsidiary than those that would have been obtained in a comparable
transaction by the Company or such Subsidiary with an unrelated person. The
foregoing limitation does not limit, and shall not apply to, (i) the payment
of reasonable annual compensation to directors or executive officers of the
Company or any Subsidiary thereof, and (ii) intercompany transactions not
prohibited by this Agreement.
8.11 Fixed Charge Coverage Ratio. The Company will not permit
the ratio of (i) Adjusted Consolidated EBITDA of the Company to (ii)
Consolidated Fixed Charges of the Company for any 12 month period (taken as
one accounting period) ending on a Measurement Date occurring in a period set
forth below to be less than the ratio set forth opposite such period:
Period Ratio
Effective Date to and including 1.05:1
December 31, 1997
January 1, 1998 to and including 1.15:1
December 31, 1998
January 1, 1999 to and including 1.35:1
December 31, 1999
January 1, 2000 and thereafter 1.40:1
8.12 Minimum Net Worth. The Company will not permit Consolidated
Net Worth on a Measurement Date to be less than (a) $200 million plus (c) 75%
times Cumulative Net Income as of such Measurement Date.
8.13 Capitalization Ratio. The Company will not permit the
Capitalization Ratio as of any Measurement Date occurring in a period set
forth below to be more than the ratio set forth opposite such period:
Period Ratio
Effective Date to and including 0.55:1
December 31, 1997
January 1, 1998 to and including 0.51:1
December 31, 1998
January 1, 1999 to and including 0.47:1
December 31, 1999
January 1, 2000 to and including 0.43:1
December 31, 2000
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January 1, 2001 and thereafter 0.40:1
8.14 Interest Expense Ratio. The Company will not permit the
ratio of (i) Adjusted Consolidated EBITDA of the Company to (ii) Consolidated
Interest Expense for any 12 month period (taken as one accounting period)
ending on a Measurement Date occurring in a period set forth below to be less
than the ratio set forth opposite such period:
Period Ratio
Effective Date to and including 3.50:1
December 31, 1997
January 1, 1998 to and including 4.25:1
December 31, 1998
January 1, 1999 to and including 5.50:1
December 31, 1999
January 1, 2000 and thereafter 6.00:1
SECTION 9. Events of Default. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
9.01 Payments. The Company shall (i) default in the payment when
due of any principal of the Loans or (ii) default, and such default shall
continue for five or more days, in the payment when due of any interest on the
Loans or any Fees or any other amounts owing hereunder or under any other
Credit Document; or
9.02 Representations; etc. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document or
in any statement or certificate delivered or required to be delivered pursuant
hereto or thereto shall prove to be untrue in any material respect on the date
as of which made or deemed made; or
9.03 Covenants. The Company shall (a) default in the due
performance or observance by it of any term, covenant or agreement contained
in Sections 7.10, 7.11, 7.12, 7.13 and 8, or (b) default in the due
performance or observance by it of any term, covenant or agreement (other than
those referred to in Section 9.01, 9.02 or clause (a) of this Section 9.03)
contained in this Agreement and such default shall continue unremedied for a
period of at least 30 days after notice to the defaulting party by the
Administrative Agent or the Required Banks; or
9.04 Default Under Other Agreements. (a) The Company or any of
its Subsidiaries (other than Brass prior to the Plan Confirmation Date) shall
(i) default in any payment with respect to any Indebtedness (other than the
Obligations) beyond the period of grace, if any, applicable thereto or (ii)
default in the observance or performance of any agreement or condition
relating to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
-61- -53-
cause, or to permit the holder or holders of such Indebtedness (or a trustee
or agent on behalf of such holder or holders) to cause any such Indebtedness
to become due prior to its stated maturity; or (b) any such Indebtedness of
the Company or any of its Subsidiaries shall be declared to be due and
payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof, provided that it
shall not constitute an Event of Default pursuant to this Section 9.04 unless
the principal amount of such Indebtedness exceeds $1,000,000 individually or
in the aggregate at any one time; or
9.05 Bankruptcy; etc. The Company or any of its Subsidiaries
(other than Brass prior to the Plan Confirmation Date) shall commence a
voluntary case concerning itself under Title 11 of the United States Code
entitled "Bankruptcy," as now or hereafter in effect, or any successor thereto
(the "Bankruptcy Code"); or an involuntary case is commenced against the
Company or any such Subsidiary and the petition is not controverted within 10
days, or is not dismissed within 60 days, after commencement of the case; or a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or substantially all of the property of the Company or any such
Subsidiary; or the Company or any such Subsidiary commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief
of debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the Company or any
such Subsidiary; or there is commenced against the Company or any such
Subsidiary any such proceeding which remains undismissed for a period of 60
days; or the Company or any such Subsidiary is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or the Company or any such Subsidiary suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or the
Company or any such Subsidiary makes a general assignment for the benefit of
creditors; or any corporate action is taken by the Company or any such
Subsidiary for the purpose of effecting any of the foregoing; or
9.06 ERISA. (a) A singleemployer plan (as defined in Section
4001 of ERISA) established by the Company, any of its Subsidiaries or any
ERISA Affiliate shall fail to maintain the minimum funding standard required
by Section 412 of the Code for any plan year or a waiver of such standard or
extension of any amortization period is sought or granted under Section 412 of
the Code or shall provide security to induce the issuance of such waiver or
extension, (b) any Plan is or shall have been or is likely to be terminated or
the subject of termination proceedings under ERISA by PBGC or an event has
occurred entitling the PBGC to terminate a Plan under Section 4042(a) of
ERISA, (c) any Plan shall have an Unfunded Current Liability in excess of
$500,000 or (d) the Company or a Subsidiary or any ERISA Affiliate has
incurred or is likely to incur a material liability to or on account of a
termination of or a withdrawal from a Plan under Section 515, 4062, 4063,
4064, 4201 or 4204 of ERISA; and there shall result from any such event or
events described in the preceding clauses of this Section 9.06 the imposition
of a Lien upon the assets of the Company or any Subsidiary, the granting of a
security interest, or a liability or a material risk of incurring a liability
to the PBGC or a Plan or a trustee appointed under ERISA or a penalty under
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Section 4971 of the Code, in each case which would have, in the opinion of the
Required Banks a Material Adverse Effect; or
9.07 Credit Documents. Any Security Document or Guaranty (once
executed) shall cease to be in full force and effect (except as provided
therein) or any Security Document shall cease to give the Collateral Agent any
Lien encumbering assets with an aggregate fair market value in excess of
$1,000,000 (and, if encumbering assets with a fair market value of less than
$1,000,000, for a period greater than thirty or more days), or any material
rights, powers and privileges purported to be created thereby in favor of the
Collateral Agent or any Credit Party shall default in any material respect in
the due performance or observance of any term, covenant or agreement on its
part to be performed or observed pursuant to any such Security Document or
Guaranty or shall disaffirm or seek to disaffirm any Guaranty; or
9.08 Judgments. One or more judgments or decrees shall be
entered against the Company and/or any of its Subsidiaries involving a
liability of $1,000,000 or more or in the aggregate (not paid or to the extent
not covered by insurance) and any such judgments or decrees shall not have
been vacated, discharged or stayed or bonded pending appeal within 60 days
from the entry thereof; or
9.09 Merger Date. The Merger Date shall not have occurred within
180 days following the Initial Borrowing Date;
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Administrative Agent shall, upon the
written request of the Required Banks, by written notice to the Borrowers,
take any or all of the following actions, without prejudice to the rights of
any Agent or any Bank to enforce its claims against any Borrower, except as
otherwise specifically provided for in this Agreement (provided that, if an
Event of Default specified in Section 9.05 shall occur with respect to a Bor-
rower, the result which would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon the Commitment of each Bank shall forthwith
terminate immediately and any Commitment Commission shall forthwith become due
and payable without any other notice of any kind; (ii) declare the principal
of and any accrued interest in respect of all Loans and all obligations owing
hereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrowers; (iii) terminate any Letter of Credit which
may be terminated in accordance with its terms; (iv) direct the Company to pay
(and the Company agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default specified in Section 10.05 with respect to
the Company, it will pay) to the Collateral Agent at the Payment Office such
amount of cash, to be held as security by the Collateral Agent, as is equal to
the aggregate Stated Amount of all Letters of Credit and all Acceptances then
outstanding; (v) enforce, as Collateral Agent (or direct the Collateral Agent
to enforce) all of the Liens and security interests created pursuant to the
Security Documents; and (vi) apply any cash collateral held for the benefit of
the Banks pursuant to Section 4.02 to repay outstanding Obligations.
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SECTION 10. Definitions. As used herein, the following terms
shall have the meanings herein specified unless the context otherwise
requires. Defined terms in this Agreement shall include in the singular
number the plural and in the plural the singular:
"Acceptance" shall mean an acceptance or deferred payment
obligation demanded by a beneficiary under a Trade Letter of Credit to the
extent the terms thereof provide for such Acceptance, which Acceptance shall
be in the form provided for in such Letter of Credit or otherwise acceptable
to the Letter of Credit Issuer.
"Acquisition" shall mean (x) the purchase by the Company or Acq.
Sub for cash of outstanding shares of Eljer (for a price per share not to
exceed the Maximum Price per share) pursuant to the Offer to Purchase and (y)
the Merger.
"Acquisition Documents" shall mean the Merger Agreement and all
other Tender Offer Documents.
"Acq. Sub." shall mean Zurn Acquisition Co., Inc., a Delaware
corporation and Wholly-Owned Subsidiary of the Company.
"Additional Subsidiary Guarantor" shall mean (i) Eljer and (ii)
each Subsidiary (other than a Foreign Subsidiary, a De Minimis Subsidiary and
Brass) of Eljer on the Merger Date.
"Additional Tender Offer Documents" shall mean all amendments and
exhibits to, and documents related to, the Tender Offer Documents filed with
the SEC under the Exchange Act, or distributed to the stockholders of Eljer,
in each case to the extent delivered to the Banks after the Effective Date and
shall include any Merger Documents first delivered to the Banks after such
date.
"Adjusted Cash Flow" for any fiscal year shall mean Consolidated
Net Income of the Company for such fiscal year (after provision for taxes)
plus the amount of all net non-cash charges (including, without limitation,
depreciation, deferred tax expense, non-cash interest expense, amortization
and other non-cash charges) that were deducted in arriving at such
Consolidated Net Income for such fiscal year, minus the amount of all non-cash
gains and gains from sales of assets (other than sales of inventory and
equipment in the normal course of business) that were added in arriving at
such Consolidated Net Income for such fiscal year.
"Adjusted Consolidated EBITDA" for any period ending on or prior
to the first anniversary of the Initial Borrowing Date, shall mean
Consolidated EBITDA for such period adjusted as provided in Annex XIII hereto.
"Administrative Agent" shall mean BTCo acting as Administrative
Agent for the Banks hereunder and shall include any successor to the
Administrative Agent appointed pursuant to Section 11.09.
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"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling (including, but not limited to, all
directors and officers of such Person), controlled by, or under direct or
indirect common control with such Person. A Person shall be deemed to control
a corporation if such Person possesses, directly or indirectly, the power (i)
to vote 10% or more of the securities having ordinary voting power for the
election of directors of such corporation or (ii) to direct or cause the
direction of the management and policies of such corporation, whether through
the ownership of voting securities, by contract or otherwise.
"Affiliate Transaction" shall have the meaning provided in Section
8.10.
"Agents" shall mean and include the Administrative Agent and the
Documentation Agent.
"Agreement" shall mean this Credit Agreement, as the same may be
from time to time further modified, amended and/or supplemented.
"Alternate Currency" shall mean and include Canadian Dollars,
Australian Dollars, New Zealand Dollars, French Francs, Deutsche Marks,
Spanish Pesetas, Japanese Yen, Pounds Sterling and any other freely
convertible currencies that may be acceptable to the Letter of Credit Issuer
and the Required Banks.
"Applicable Base Rate Margin" shall mean (x) at any time prior to
the Plan Confirmation Date, 1.00% and (y) at any time on and after the Plan
Confirmation Date, as specified in clause (i), (ii), (iii) or (iv) below so
long as the ratio set forth in such clause has been satisfied as at the
Relevant Determination Date:
(i) 1.00% in the event that at the Relevant Determination Date
the Leverage Ratio is equal to or greater than 3.5 to 1;
(ii) .50% in the event that as at the Relevant Determination Date
the Leverage Ratio is equal to or greater than 3.0 to 1 but less than
3.5 to 1;
(iii) .25% in the event that as at the Relevant Determination Date
the Leverage Ratio is equal to or greater than 2.5 to 1 but less than
3.0 to 1; or.
(iv) 0% in the event that as of the Relevant Determination Date,
the Leverage Ratio is less than 2.5 to 1.
The Leverage Ratio shall be determined for the last day of a fiscal quarter or
year by delivery of an officer's certificate of the Company to the Banks pur-
suant to Section 7.01(d), which certificate shall set forth the calculation of
the Leverage Ratio. The Applicable Base Rate Margin so determined shall
apply, except as set forth below, from the Business Day after the date on
which such officer's certificate is delivered to the Administrative Agent to
the Business Day after the date on which the next certificate is delivered to
-65- -57-
the Administrative Agent pursuant to Section 7.01(d). Notwithstanding
anything to the contrary contained above, the Applicable Base Rate Margin
shall be 1.00% (x) if no officer's certificate has been delivered to the Banks
pursuant to Section 7.01(d) which sets forth the Leverage Ratio for the
Relevant Determination Date or the financial statements upon which any such
calculations are based have not been delivered, in each case by the 45th day
following the end of any of the first three fiscal quarters of the Company or
the 90th day following the end of a fiscal year of the Company, as the case
may be, until such a certificate and/or financial statements are delivered and
(y) at all times when there shall exist a violation of Section 9.01 or an
Event of Default.
"Applicable CC Percentage" shall mean (x) at any time (I) that the
Plan Confirmation Date has occurred and (II) the Applicable Eurodollar Margin
is 1.50% or less, .25% and (y) at any other time, .375%.
"Applicable Eurodollar Margin" shall mean (x) at any time prior to
the Plan Confirmation Date, 2.00% and (y) at any time on and after the Plan
Confirmation Date, as specified in clause (i), (ii), (iii) or (iv) below so
long as the ratio set forth in such clause has been satisfied as at the
Relevant Determination Date:
(i) 2.00% in the event that at the Relevant Determination Date
the Leverage Ratio is equal to or greater than 3.5 to 1;
(ii) 1.50% in the event that as at the Relevant Determination
Date the Leverage Ratio is equal to or greater than 3.0 to 1 but less
than 3.5 to 1;
(iii) 1.25% in the event that as of the Relevant Determination
Date the Leverage Ratio is equal to or greater than 2.5 to 1 but less
than 3.0 to 1;
(iv) 1.00% in the event that as at the Relevant Determination
Date the Leverage Ratio is equal to or greater than 2.0 to 1 but less
than 2.5 to 1; or
(v) .75% in the event that as at the Relevant Determination Date
the Leverage Ratio is less than 2.0 to 1.
The Leverage Ratio shall be determined for the last day of a fiscal quarter or
year by delivery of an officer's certificate of the Company to the Banks pur-
suant to Section 7.01(d), which certificate shall set forth the calculation of
the Leverage Ratio. The Applicable Eurodollar Margin so determined shall
apply, except as set forth below, from the Business Day after the date on
which such officer's certificate is delivered to the Administrative Agent to
the Business Day after the date on which the next certificate is delivered to
the Administrative Agent pursuant to Section 7.01(d). Notwithstanding
anything to the contrary contained above, the Applicable Eurodollar Margin
shall be 2.00% (x) if no officer's certificate has been delivered to the Banks
pursuant to Section 7.01(d) which sets forth the Leverage Ratio for the
Relevant Determination Date or the financial statements upon which any such
-66- -58-
calculations are based have not been delivered, in each case by the 45th day
following the end of any of the first three fiscal quarters of the Company or
the 90th day following the end of a fiscal year of the Company, as the case
amy be, until such a certificate and/or financial statements are delivered and
(y) at all times when there shall exist a violation of Section 9.01 or an
Event of Default.
"Approved Currency" shall mean and include U.S. dollars and each
Alternate Currency.
"Asset Sale" shall mean and include (x) the sale, transfer or
other disposition by the Company or any Subsidiary to any Person other than
the Company or any Subsidiary of any asset of the Company or such Subsidiary
(other than sales, transfers or other dispositions in the ordinary course of
business of inventory and/or obsolete or excess equipment and other than sales
in which the Net Cash Proceeds are $100,000 or less) and/or (y) the receipt by
the Company or any Subsidiary of any insurance, condemnation or similar pro-
ceeds in connection with a casualty or taking of any of its assets in excess
of the costs incurred by the Company and its Subsidiaries in respect of such
event and of repairing or replacing the assets so damaged, destroyed or taken
excluding, however, all proceeds of insurance related to Brass as contemplated
by the Third Amended Plan as payable to other parties.
"Assignment Agreement" shall mean an Assignment Agreement
substantially in the form of Exhibit L hereto (appropriately completed).
"A Term Commitment" shall mean, with respect to each Bank, the
amount set forth opposite such Bank's name in Annex I hereto directly below
the column entitled "A Term Commitment," as the same may be reduced from time
to time pursuant to Section 3.02, 3.03 and/or 9 or (y) adjusted from time to
time as a result of assignments to or from such Bank pursuant to Section
12.04.
"A Term Commitment Commission" shall have the meaning provided in
Section 3.01(a).
"A Term Facility" shall mean the Facility evidenced by the Total A
Term Commitment.
"A Term Loan" shall have the meaning provided in Section 1.01(a).
"A Term Note" shall have the meaning provided in Section 1.05(a).
"A Term Termination Date" shall mean the earliest of (x) the
Merger Date, (ii) the date 180 days after the Initial Borrowing Date and (iii)
the date on which the Total A Term Commitment is terminated.
"Authorized Officer" shall mean any senior officer of a Borrower
designated as such in writing to the Administrative Agent by such Borrower in
each case to the extent acceptable to the Administrative Agent.
"Bank" shall have the meaning provided in the first paragraph of
this Agreement.
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"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any incurrence of Loans
or to fund its portion of any unreimbursed payments under Section 2.05(c) or
(ii) a Bank having notified the Administrative Agent and/or any Borrower that
it does not intend to comply with the obligations under Section 1.01 or under
Section 2.05(c), in the case of either (i) or (ii) as a result of the
appointment of a receiver or conservator with respect to such Bank at the
direction or request of any regulatory agency or authority.
"Bank Register" shall have the meaning provided in Section 12.16.
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
"Base Rate" at any time shall mean the higher of (i) the rate
which is 1/2 of 1% in excess of the Federal Funds Effective Rate and (ii) the
Prime Lending Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the
rates provided in Section 1.08(a).
"Borrower" shall mean and include (x) with respect to the A Term
Facility and the Revolving Facility, the Company and (y) with respect to the B
Term Facility, EMI.
"Borrowing" shall mean the incurrence of one Type of Loan pursuant
to a single Facility by a Borrower from all of the Banks having Commitments
with respect to such Facility on a pro rata basis on a given date (or
resulting from conversions on a given date), having in the case of Eurodollar
Loans the same Interest Period; provided that Base Rate Loans incurred
pursuant to Section 1.10(b) shall be considered part of any related Borrowing
of Eurodollar Loans.
"Brass" shall mean United States Brass Corporation, a Delaware
corporation and a Wholly-Owned Subsidiary of EMI.
"Brass DIP Debt" shall mean the Indebtedness owing by Brass to
Congress Financial Corporation (Southwest) pursuant to the debtor in
possession financing as in effect on the Effective Date and as the same (x)
may be extended and/or (y) may, with the agreement of the Required Banks, be
amended from time to time.
"Brass Proceeding" shall mean the Chapter 11 case in respect of
Brass in the United States Bankruptcy Court, Eastern District of Texas, Case
No. 94-408235.
"Brass Trust" shall mean the Brass Trust referred to in the Third
Amended Plan.
"BTCo" shall mean Bankers Trust Company.
"B Term Commitment" shall mean, with respect to each Bank, the
amount set forth opposite such Bank's name in Annex I hereto directly below
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the column entitled "B Term Commitment," as the same may be reduced from time
to time pursuant to Section 3.02, 3.03 and/or 9 or (y) adjusted from time to
time as a result of assignments to or from such Bank pursuant to Section
12.04.
"B Term Commitment Commission" shall have the meaning provided in
Section 3.01(b).
"B Term Facility" shall mean the Facility evidenced by the Total B
Term Commitment.
"B Term Loan" shall have the meaning provided in Section 1.01(b).
"B Term Note" shall have the meaning provided in Section 1.05(a).
"B Term Termination Date" shall mean the earliest of (x) the Plan
Confirmation Date, (ii) December 31, 1997 and (iii) the date on which the
Total B Term Commitment is terminated.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday, Sunday and any day
which shall be in the City of New York a legal holiday or a day on which
banking institutions are authorized by law or other governmental actions to
close and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, any day
which is a Business Day described in clause (i) and which is also a day for
trading by and between banks in U.S. dollar deposits in the interbank
Eurodollar market.
"Capital Lease" as applied to any Person shall mean any lease of
any property (whether real, personal or mixed) by that Person as lessee which,
in conformity with GAAP, is accounted for as a capital lease on the balance
sheet of that Person.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of such Person's
capital stock, whether or not voting, including but not limited to common
stock, preferred stock, convertible debentures, warrants, options or similar
rights to acquire such capital stock, and all agreements, instruments and
documents convertible, in whole or in part, into any one or more or all of the
foregoing.
"Capitalization Ratio" shall mean, at any Measurement Date, the
ratio of (x) the Consolidated Debt of the Company on such date to (y) the sum
of (i) such Consolidated Debt plus (ii) Consolidated Net Worth on such date.
"Capitalized Lease Obligations" shall mean all obligations under
Capital Leases of the Company or any of its Subsidiaries in each case taken at
the amount thereof accounted for as liabilities in accordance with GAAP.
"Cash Equivalents" shall mean (i) securities issued or directly
and fully guaranteed or insured by the United States of America or any agency
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or instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof) having maturities of
not more than six months from the date of acquisition, (ii) U.S. dollar
denominated time deposits, certificates of deposit and bankers' acceptances of
(x) any Bank or (y) any bank (or the parent company of such bank) whose
short-term commercial paper rating from Standard & Poor's Corporation ("S&P")
is at least A-1 or the equivalent thereof or from Moody's Investors Service,
Inc. ("Moody's") is at least P-1 or the equivalent thereof (any such bank, an
"Approved Bank"), in each case with maturities of not more than six months
from the date of acquisition, (iii) repurchase obligations with a term of not
more than seven days for underlying securities of the types described in
clause (i) above entered into with any bank meeting the qualifications
specified in clause (ii) above, (iv) commercial paper issued by any Bank or
Approved Bank or by the parent company of any Bank or Approved Bank and
commercial paper issued by, or guaranteed by, any industrial or financial
company with a short-term commercial paper rating of at least A-1 or the
equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody's
(any such company, an "Approved Company"), or guaranteed by any industrial
company with a long term unsecured debt rating of at least A or A2, or the
equivalent of each thereof, from S&P or Moody's, as the case may be, and in
each case maturing within six months after the date of acquisition and (v)
investments in money market funds substantially all of whose assets are
comprised of securities of the type described in clauses (i) through (iv)
above.
"Cash Proceeds" shall mean, with respect to any Asset Sale, the
aggregate cash payments (including any cash received by way of deferred
payment pursuant to a note receivable issued in connection with such Asset
Sale, other than the portion of such deferred payment constituting interest
(or imputed interest in accordance with GAAP if no interest is stated), but
only as and when so received) and/or insurance or condemnation proceeds
received by the Company and/or any Subsidiary from such Asset Sale.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Sec. 9601 et
seq.
"Change of Control" shall mean an occurrence whereby (i) any
"person" (as such term is used in sections 13(d) and 14(d) of the Exchange
Act) other than the Company, any trustee or other fiduciary holding securities
under an employee benefit plan of the Company, or any corporation owned,
directly or indirectly, by the shareholders of the Company in substantially
the same proportions as their ownership of Common Stock, becomes the
"beneficial owner" (as defined in rule 13d-3 of the Exchange Act), directly or
indirectly, of securities of the Company representing twenty percent (20%) or
more of the combined voting power of the Company's then outstanding
securities; (ii) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board of Directors, and any new
director (other than a director designated by a person who has entered into an
agreement with the Company to effect a transaction described in clauses (i),
(iii) or (iv) of this paragraph) whose election by the Board of Directors or
nomination for election by the Company's shareholders was approved by a vote
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of at least two-thirds of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved cease for any reason to constitute a
majority thereof,(iii) the shareholders of the Company approve (A) a merger or
consolidation of the Company with any other company, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the combined voting power
of the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation or (B) a merger or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no "person" (as herein above defined) acquires
more than fifty percent (50%) of the combined voting power of the Company's
then outstanding securities, (iv) the shareholders of the Company approve a
plan of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all of substantially all of the Company's assets
or (v) any "Change of Control" or similar term as defined in any other
agreement evidencing or governing Indebtedness of the Company or any
Subsidiary.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time and the regulations promulgated and the rulings issued
thereunder. Section references to the Code are to the Code, as in effect at
the Effective Date and any subsequent provisions of the Code, amendatory
thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all of the Collateral as defined in each
of the Security Documents.
"Collateral Agent" shall mean the Administrative Agent acting as
collateral agent for the Banks.
"Commitment" shall mean, with respect to each Bank, such Bank's A
Term Commitment, B Term Commitment and Revolving Commitment, if any.
"Commitment Commission" shall mean and include A Term Commitment
Commission, B Term Commitment Commission and RF Commitment Commission.
"Common Stock" shall mean the common stock of the Company.
"Company" shall mean Zurn Industries, Inc., a Pennsylvania
corporation.
"Company Guaranty" shall have the meaning provided in Section
5.02(c).
"Consolidated Capital Expenditures" shall mean, for any period,
the aggregate of all expenditures (whether paid in cash or accrued as
liabilities and including in all events all amounts expended or capitalized
under Capital Leases but excluding any amount representing capitalized
interest) by the Company and its Subsidiaries during that period that, in
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conformity with GAAP, are or are required to be included in the property,
plant or equipment reflected in the consolidated balance sheet of the Company
and its Subsidiaries.
"Consolidated Cash Interest Expense" of any Person shall mean, for
any period, Consolidated Interest Expense of such Person, but excluding,
however, interest expense not payable in cash and amortization of discount and
deferred issuance and financing costs.
"Consolidated Current Assets" shall mean, as to any Person at any
time, the current assets (other than cash and Cash Equivalents) of such Person
and its Subsidiaries determined on a consolidated basis in accordance with
GAAP.
"Consolidated Current Liabilities" shall mean, as to any Person at
any time, the current liabilities of such Person and its Subsidiaries
determined on a consolidated basis in accordance with GAAP, but excluding all
short-term Indebtedness and the current portion of any long-term Indebtedness
of such Person or its Subsidiaries, in each case to the extent otherwise
included therein.
"Consolidated Debt" of any Person shall mean, as at any date of
determination, (x) the aggregate stated balance sheet amount of all
Indebtedness of such Person and its Subsidiaries on a consolidated basis as
determined in accordance with GAAP plus (y) the aggregate balance sheet
Indebtedness of any other Person which has been guaranteed directly or
indirectly, by such first Person.
"Consolidated EBIT" of any Person shall mean, for any period,
Consolidated Net Income plus (A) the sum of the amounts for such period
included in determining such Consolidated Net Income of (i) provisions for
taxes based on income, (ii) Consolidated Interest Expense and (iii) losses on
sales of assets (excluding sales in the ordinary course of business), other
extraordinary losses and losses attributable to discontinued operations of an
entire business segment (other than operating losses of such discontinued
operations) less (B) the sum of the amounts for such period included in
determining such Consolidated Net Income of gains on sales of assets
(excluding sales in the ordinary course of business), other extraordinary
gains and gains attributable to discontinued operations of an entire business
segment and less (C) operating losses attributable to discontinued operations
for such period not otherwise included in determining such Consolidated Net
Income, all as determined on a consolidated basis for such Person and its
Subsidiaries in accordance with GAAP.
"Consolidated EBITDA" of any Person shall mean, for any period,
the sum of the amounts for such period for such Person of (i) Consolidated
EBIT, (ii) depreciation expense and (iii) amortization expense, all as
determined on a consolidated basis for such Person and its Subsidiaries in
accordance with GAAP.
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"Consolidated Fixed Charges" of any Person shall mean, for any
period, the sum, without duplication, for such Person of the amounts for such
period of (i) Consolidated Cash Interest Expense, (ii) Dividends paid by the
Company, (iii) Consolidated Capital Expenditures paid in cash and (iv)
scheduled payments on all Indebtedness (including, without limitation, any
payments of principal on the Brass DIP Debt) of the Company and its
Subsidiaries, all as determined on a consolidated basis for such Person and
its Subsidiaries in accordance with GAAP.
"Consolidated Interest Expense" of any Person shall mean, for any
period, total interest expense (including that attributable to Capital Leases
in accordance with GAAP) of such Person and its Subsidiaries on a consolidated
basis with respect to all outstanding Indebtedness of (and, to the extent such
interest is payable in cash, with respect to all deferred compensation payable
by) such Person and its Subsidiaries, including, without limitation, all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing and net costs under Interest Rate
Agreements.
"Consolidated Net Income" of any Person (a "Designated Person")
shall mean for any period, the net income (or loss) of such Designated Person
and its Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP, provided that there
shall be excluded (i) the income (or loss) of any Person (other than
Subsidiaries of the Designated Person) in which any other Person (other than
the Designated Person or any of its Subsidiaries) has a joint interest, except
to the extent of the amount of dividends or other distributions actually paid
to the Designated Person or any of its Subsidiaries by such Person during such
period, (ii) the income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary of the Designated Person or is merged into or
consolidated with the Designated Person or any of its Subsidiaries or that
Person's assets are acquired by the Designated Person or any of its Subsidi-
aries, (iii) the income of any Subsidiary of the Designated Person to the
extent that the declaration or payment of dividends or similar distributions
by that Person of that income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Person, (iv)
Transaction Expenses, and (v) compensation expense resulting from the issuance
of capital stock, stock options or stock appreciation rights issued to
employees, including officers, of the Designated Person or any Subsidiary, or
the exercise of such options or rights, in each case to the extent the
obligation (if any) associated therewith is not expected to be settled by the
payment of cash by the Designated Person or any Affiliate of the Designated
Person and compensation expense resulting from the repurchase of any such
capital stock, options and rights.
"Consolidated Net Worth" shall mean at any time for the
determination thereof (i) all amounts which, in conformity with GAAP, would be
included under the caption "total shareholders' equity" (or any like caption)
on a consolidated balance sheet of the Company and its Consolidated
Subsidiaries as at such date plus (ii) to the extent not included in clause
(i), the stated balance sheet value of all preferred stock of the Company
-73- -65-
subject to mandatory redemption provided that none of such preferred stock
shall be subject to any mandatory redemption on or prior to the Maturity Date.
"Contingent Obligations" shall mean as to any Person any
obligation of such Person guaranteeing or intending to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations")
of any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (a) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (b) to advance or
supply funds (i) for the purchase or payment of any such primary obligation or
(ii) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (c) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (d) otherwise to
assure or hold harmless the owner of such primary obligation against loss in
respect thereof, provided however, that the term Contingent Obligation shall
not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Contingent Obligation is made or,
if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.
"Consolidated Subsidiary" shall mean, at any time, each Subsidiary
of the Company whose accounts are consolidated with those of the Company in
accordance with GAAP.
"Contribution" shall mean the payment made to the Brass Trust on
or after the Plan Confirmation Date by EMI on behalf of itself and Eljer
pursuant to the Third Amended Plan, including in any event a payment of
$30,045,000 in lieu of the contribution of 17.5% of the shares of Eljer common
stock as provided for in the Third Amended Plan.
"Credit Documents" shall mean this Agreement, the Notes, the
Security Documents, any documents executed in connection therewith and the
Guaranties.
"Credit Event" shall mean the making of a Loan or the issuance of
a Letter of Credit.
"Credit Party" shall mean each Borrower and each Guarantor.
"Cumulative Net Income" shall mean, as of any Measurement Date,
the sum of the Consolidated Net Income, if positive, for each fiscal quarter
of the Company commencing on or after the Effective Date and ending on or
prior to such Measurement Date.
"Default" shall mean any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
-74- -66-
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
"De Minimis Subsidiary" shall mean each Domestic Subsidiary
existing on the Initial Borrowing Date to the extent that (i) it holds no
capital stock of any other Subsidiary that is not a De Minimis Subsidiary,
(ii) the fair market value of all assets held by such Subsidiary is less than
$100,000 and (iii) the net income for such Subsidiary for the last 12 months
then ended is less than $100,000.
"Dividends" shall have the meaning provided in Section 8.09.
"Documentation Agent" shall mean NationsBank, N.A., acting as
Documentation Agent for the Banks hereunder.
"Dollar Equivalent" shall mean, at any time for the determination
thereof, the amount of U.S. dollars necessary to purchase the amount of the
relevant Alternate Currency involved in such computation at the spot exchange
rate therefor as quoted by the Administrative Agent on the date two Business
Days prior to the date of any determination thereof for purchase on such date,
provided that (i) the Dollar Equivalent of any Unpaid Drawing in respect of
any Letter of Credit or Acceptance denominated in an Alternate Currency shall
be determined at the time the drawing under such Letter of Credit was paid or
disbursed by the Letter of Credit Issuer or at the maturity date of such
Acceptance, as the case may be, (ii) for purposes of Sections 1.01(c), 2.01(b)
and 4.02(A)(a), the Dollar Equivalent of the Stated Amount of any Letter of
Credit or Acceptance denominated in an Alternate Currency shall be calculated
(x) on the date of the issuance of the respective Letter of Credit or
Acceptance, as the case may be, (y) on the first Business Day of each calendar
month thereafter and (z) on such other day as the Administrative Agent may, in
its sole discretion, consider appropriate and (iii) for purposes of Sections
3.01(d) and (e), the Dollar Equivalent of the Stated Amount of any Letter of
Credit or Acceptance denominated in an Alternate Currency shall be calculated
on the first day of each calendar month in the quarterly period in which the
respective payment is due pursuant to said Sections.
"Domestic Subsidiary" shall mean a Subsidiary of the Company that
is organized under the laws of the United States or any state thereof.
"Effective Date" shall have the meaning provided in Section 12.10.
"Eljer" shall mean Eljer Industries, Inc., a Delaware corporation.
"Eljer Group" shall mean Eljer and its Subsidiaries.
"EMI" shall mean Eljer Manufacturing, Inc., a Delaware
corporation.
"Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demand letters, claims, liens, notices
of noncompliance or violation, investigations (other than internal reports
prepared by the Company or any of its Subsidiaries solely in the ordinary
-75- -67-
course of such Person's business and not in response to any third party action
or investigative request of any kind) or proceedings relating to any
Environmental Law or any permit issued, or any written approval given, under
any such Environmental Law (hereafter, "Claims"), including, without
limitation, (a) any and all Claims by governmental or regulatory authorities
for enforcement, cleanup, removal, response, remedial or other actions or
damages pursuant to any applicable Environmental Law, and (b) any and all
Claims by any third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from Hazardous Materials
arising from alleged injury or threat of injury to health, safety or the
environment.
"Environmental Law" means any applicable Federal, state, foreign
or local statute, law, rule, regulation, ordinance, code, guide, policy and
rule of common law now or hereafter in effect and in each case as amended, and
any judicial or administrative interpretation thereof, including any judicial
or administrative order, consent decree or judgment, relating to the
environment, health, safety or Hazardous Materials, including, without
limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, as amended,
33 U.S.C. Sec. 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C.
Sec. 7401 et seq.; the Clean Air Act, 42 U.S.C. Sec. 7401 et seq.; the Safe
Drinking Water Act, 42 U.S.C. Sec. 3808 et seq.; the Oil Pollution Act of
1990, 33 U.S.C. Sec. 2701 et seq. and any applicable state, local or foreign
counterparts or equivalents.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the Initial Borrowing Date and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section
3(9) of ERISA) which together with the Company or a Subsidiary would be deemed
to be a "single employer" within the meaning of Sections 414(b), (c), (m) and
(o) of the Code.
"Eurodollar Loans" shall mean each Loan bearing interest at the
rates provided in Section 1.08(b).
"Eurodollar Rate" shall mean with respect to each Interest Period
for a Eurodollar Loan, (i) the offered quotation to first-class banks in the
interbank Eurodollar market by the Administrative Agent for dollar deposits of
amounts in same day funds comparable to the outstanding principal amount of
the Eurodollar Loan of the Administrative Agent for which an interest rate is
then being determined with maturities comparable to the Interest Period to be
applicable to such Eurodollar Loan, determined as of 10:00 A.M. (New York
time) on the date which is two Business Days prior to the commencement of such
Interest Period divided (and rounded upward to the next whole multiple of 1/16
of 1%) by (ii) a percentage equal to 100% minus the then stated maximum rate
of all reserve requirements (including, without limitation, any marginal,
emergency, supplemental, special or other reserves) applicable to any member
bank of the Federal Reserve System in respect of Eurocurrency liabilities as
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defined in Regulation D (or any successor category of liabilities under
Regulation D).
"Event of Default" shall have the meaning provided in Section 9.
"Excess Cash Flow" shall mean, for any fiscal year, the remainder
of (i) the sum of (x) Adjusted Cash Flow for such fiscal year and (y) the
Working Capital Decrease for such fiscal year, plus (ii) to the extent not
included in (i) above, any amounts received by the Company and its
Subsidiaries in settlement of, or in payment of any judgments resulting from,
actions, suits or proceedings with respect to the Company and/or its
Subsidiaries from the first day to the last day of such fiscal year, plus
(iii) to the extent not included in (i) above, any amounts received during
such fiscal year by the Company and/or its Subsidiaries in connection with the
repayment or redemption of any long-term promissory notes and/or preferred
stock of other Persons held by them, minus (iv) the sum of (w) the amount of
Dividends paid during such fiscal year, (x) the amount of Consolidated Capital
Expenditures (except to the extent financed through the incurrence of
Indebtedness other than Revolving Loans) made during such fiscal year, (y) the
increase, if any, in Working Capital from the first day to the last day of
such fiscal year and (z) any repayments or prepayments of the principal amount
of Term Loans pursuant to Section 4.01 or 4.02(A)(b), all scheduled payments
of Existing Indebtedness and of any promissory note issued by Eljer or its
Subsidiaries to the Brass Trust pursuant to the Third Amended Plan and all
scheduled payments of other long term obligations not otherwise deducted in
determining Excess Cash Flow, in each case during such fiscal year.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Existing Acceptances" shall mean each acceptance or term draft
created prior to the Effective Date by BTCo that is to be continued as an
Acceptance under this Agreement and is listed on Annex XI hereto.
"Existing Company Credit Agreement" shall mean the Credit
Agreement, dated as of June 15, 1995, among the Company, the financial insti-
tutions from time to time party thereto and BTCo, as agent.
"Existing Eljer Credit Facilities" shall mean, collectively, (i)
the Amended and Restated Credit Agreement dated as of December 11, 1992 among
EMI, Eljer and the financial institutions party thereto and (ii) the Loan and
Security Agreement dated as of October 17, 1994 between EMI and Congress
Financial Corporation (Southwest).
"Existing Indebtedness" shall have the meaning provided in Section
6.20.
"Existing Letters of Credit" shall mean each letter of credit
issued under the Existing Company Credit Agreement that is to be continued as
a Letter of Credit under this Agreement and is listed on Annex XI hereto.
"Expiration Date" shall mean January 31, 1997.
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"Facility" shall mean any of the credit facilities established
under this Agreement, i.e., the A Term Facility, the B Term Facility and the
Revolving Facility.
"Facing Fee" shall have the meaning provided in Section 3.01(e).
"Federal Funds Effective Rate" shall mean for any period, a
fluctuating interest rate equal for each day during such period to the
weighted average of the rates on overnight Federal Funds transactions with
members of the Federal Reserve System arranged by Federal Funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by the
Administrative Agent from three Federal Funds brokers of recognized standing
selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to
in, Section 3.01.
"Foreign Subsidiary" shall mean any Subsidiary other than a
Domestic Subsidiary.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect on the date of this Agreement; it being
understood and agreed that determinations in accordance with GAAP for purposes
of Section 8, including defined terms as used therein, are subject to Section
12.07(a).
"Guarantor" shall mean and include each Subsidiary Guarantor and,
in respect of the B Term Facility, the Company.
"Guaranties" shall mean and include the Company Guaranty and the
Subsidiary Guaranty.
"Hazardous Materials" means (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment
that contained, electric fluid containing levels of polychlorinated biphenyls,
and radon gas; and (b) any chemicals, materials or substances defined as or
included in the definition of "hazardous substances," "hazardous waste,"
"hazardous materials," "extremely hazardous waste," "restricted hazardous
waste," "toxic substances," "toxic pollutants," "contaminants," or
"pollutants," or words of similar import, under any Environmental Law.
"Indebtedness" of any Person shall mean without duplication (i)
all indebtedness of such Person for borrowed money, (ii) the deferred purchase
price of assets or services which in accordance with GAAP would be shown on
the liability side of the balance sheet of such Person, (iii) the face amount
of all letters of credit issued for the account of such Person and, without
duplication, all drafts and acceptances drawn thereunder, (iv) all
Indebtedness of a second Person secured by any Lien on any property owned by
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such first Person, whether or not such indebtedness has been assumed, (v) all
Capitalized Lease Obligations of such Person, (vi) all obligations of such
Person to pay a specified purchase price for goods or services whether or not
delivered or accepted, i.e., take-or-pay and similar obligations, (vii) all
net obligations of such Person under Interest Rate Agreements and (viii) all
Contingent Obligations of such Person, (other than Contingent Obligations
arising from the guaranty by such Person of the obligations of the Company
and/or its Subsidiaries to the extent such guaranteed obligations do not
constitute Indebtedness and are otherwise permitted hereunder) provided that
Indebtedness shall not include trade payables and accrued expenses, in each
case arising in the ordinary course of business.
"Initial Borrowing Date" shall mean the date, on or after the
Tender Offer Closing Date, upon which the initial Borrowing of A Term Loans
occurs.
"Initial B Term Loan Date" shall mean the first date on which B
Term Loans are made.
"Initial Credit Party" shall mean and include the Company and each
Initial Subsidiary Guarantor.
"Initial Subsidiary Guarantor" shall mean each Subsidiary of the
Company existing on the Initial Borrowing Date other than (i) Eljer and its
Subsidiaries, (ii) each Foreign Subsidiary, (iii) each Subsidiary listed on
Annex XIV, (iv) each Subsidiary subject to a contractual prohibition on its
entering into the Subsidiary Guaranty and (v) each De Minimis Subsidiary.
"Interest Period" with respect to any Loan shall mean the interest
period applicable thereto, as determined pursuant to Section 1.09.
"Interest Rate Agreement" shall mean any interest rate swap
agreement, any interest rate cap agreement, any interest rate collar agreement
or other similar agreement or arrangement designed to protect the Company or
any Subsidiary against fluctuations in interest rates.
"Investment" shall mean, with respect to any Person, all
investments by such Person in other Persons (including Affiliates and
Subsidiaries) in the forms of loans, guarantees, advances or capital
contributions (excluding commission, travel and similar advances to officers
and employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Capital Stock or other
securities and all other items that are or would be classified as investments
on a balance sheet prepared in accordance with GAAP.
"Judgment Currency" shall have the meaning provided in Section
12.17(a).
"Judgment Currency Conversion Date" shall have the meaning
provided in Section 12.17(a).
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"Leasehold" of any Person means all of the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"L/C Fee" shall have the meaning provided in Section 3.01(d).
"Letters of Credit" shall mean and include Standby Letters of
Credit and Trade Letters of Credit.
"Letter of Credit Issuer" shall mean BTCo.
"Letter of Credit Outstandings" shall mean, at any time, the sum
of, without duplication, (i) the aggregate Stated Amount of all outstanding
Letters of Credit which have not been terminated and of all outstanding
Acceptances which have not matured and (ii) the aggregate amount of all Unpaid
Drawings.
"Letter of Credit Request" shall have the meaning provided in
Section 2.03(a).
"Leverage Ratio" shall mean, at any Relevant Determination Date,
the ratio of (x) the Consolidated Debt of the Company on such date to (y) the
Adjusted Consolidated EBITDA of the Company for the 12 fiscal months (taken as
one accounting period) ending on such date.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any
of the foregoing, any conditional sale or other title retention agreement or
any lease in the nature thereof).
"Loan" shall have the meaning provided in Section 1.01.
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean a material adverse effect on
the business, property, assets, liabilities, operations, condition (financial
or otherwise) or prospects of (I) for the purposes of Section 5.01, (x) the
Company and its Subsidiaries (other than Eljer and its Subsidiaries) taken as
a whole and/or (y) Eljer and its Subsidiaries (other than Brass) taken as a
whole and (II) for the purposes of all other provisions, the Company and its
Subsidiaries (other than, prior to the Plan Confirmation Date, Brass) taken as
a whole.
"Maturity Date" shall mean the date which is the sixth anniversary
of the Initial Borrowing Date.
"Maximum Price Per Share" shall mean $24 or such higher amount
agreed to by the Administrative Agent and the Required Banks.
"Measurement Date" shall mean the last day of each fiscal quarter
of the Company.
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"Merger" shall mean the merger of Acq. Sub with and into Eljer
pursuant to the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger
dated as of December 14, 1996, between the Company, Acq. Sub and Eljer.
"Merger Date" shall mean the date on which the Merger shall have
been consummated.
"Merger Documents" shall mean all agreements and instruments,
including the Merger Agreement, the Certificate of Merger, all Proxy Materials
and any other document or information sent by the Company, Acq. Sub or Eljer
to Eljer shareholders or filed with the SEC under the Exchange Act in respect
of the Merger, in the form delivered to the Administrative Agent pursuant to
Section 5.01(h) or 5.03(b), as the case may be, and as the same may be
subsequently amended, modified or supplemented in accordance with the
provisions thereof and hereof.
"Minimum Borrowing Amount" shall mean (i) for Loans maintained as
Base Rate Loans, $5,000,000 and (ii) for Loans maintained as Eurodollar Loans,
$10,000,000.
"Mortgage" shall have the meaning provided in Section 7.10(a).
"Mortgage Policies" shall have the meaning provided in Section
7.10(a).
"Mortgaged Properties" shall mean and include the Real Properties
owned by the Company and/or a Subsidiary Guarantor to the extent designated as
such on Annex VII.
"Net Cash Proceeds" shall mean, with respect to any Asset Sale,
the Cash Proceeds resulting therefrom net of expenses (as estimated in good
faith by the Company) of a sale or recovery (including payment of principal,
premium and interest of Indebtedness secured by the assets which are the
subject of the Asset Sale and required to be, and which is, repaid under the
terms thereof as a result of such Asset Sale), and incremental taxes paid or
payable as a result thereof.
"New Mortgage" shall have the meaning provided in Section 7.10.
"Non-Defaulting Bank" shall mean each Bank other than a Defaulting
Bank.
"Note" shall mean and include each A Term Note, each B Term Note
and each Revolving Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03.
"Notice of Conversion" shall have the meaning provided in Section
1.06.
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"Notice Office" shall mean the office of the Administrative Agent
at 130 Liberty Street, New York, New York 10006 or such other office as the
Administrative Agent may designate to the Company from time to time.
"Obligations" shall mean all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time
existing, owing to the Agents, the Collateral Agent or any Bank pursuant to
the terms of this Agreement or any other Credit Document.
"Offer to Purchase" shall mean the Offer to Purchase, dated
December 20, 1996, issued in connection with the Acquisition, as amended,
modified or supplemented.
"Participant" shall have the meaning provided in Section 2.05(a).
"Payment Office" shall mean the office of the Administrative Agent
at 130 Liberty Street, New York, New York 10006 or such other office as the
Agent may designate to the Company from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisitions" shall mean one or more acquisitions of
assets, stock and/or businesses by the Company or any Subsidiary Guarantor
provided that (i) after giving effect thereto, Section 8.01 is complied with,
(ii) the aggregate purchase price paid in connection with all such
acquisitions shall not exceed $15,000,000, (iii) the aggregate purchase price
for all such acquisitions shall be paid solely in Common Stock and (iv) at the
time of the making of any such acquisition, the covenants contained in
Sections 8.11 through 8.14 shall be complied with on a pro forma basis as if
such acquisition was consummated on the first day of the 12 month period
ending on the Measurement Date last to occur.
"Permitted Encumbrances" shall mean, with respect to the Mortgaged
Property, such exceptions to title as are set forth in the title insurance
policy or title commitment delivered with respect thereto, all of which
exceptions must be reasonably acceptable to the Administrative Agent.
"Permitted Investments" shall mean (a) cash and Cash Equivalents,
(b) Investments outstanding on the Initial Borrowing Date in Subsidiary
Guarantors and Investments thereafter made in existing Subsidiary Guarantors,
(c) Investments in the entities that are not Subsidiaries to the extent
outstanding on the Effective Date and listed on Part A of Annex XII, without
giving effect to any increase thereto, (d) prior to the Initial B Term Loan
Date, Investments by the Company in Eljer effected pursuant to the Tender
Offer and Investments by a member of the Eljer Group in another member of the
Eljer Group, (e) Investments in all other Subsidiaries up to $1,000,000 in the
aggregate, including Investments in a Person that becomes a Subsidiary of the
Company immediately after such Investment, provided (i) an Event of Default
has not occurred and is continuing and will not occur as a result of, in
connection with or after giving effect to such Investment and (ii) such
Person, at the time of such Investment or at the time such Person becomes a
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Subsidiary, engages exclusively in the business permitted to be engaged in by
the Company and its Subsidiaries pursuant to Section 8.01, (f) Investments
made after the Effective Date to the extent permitted by Part B of Annex XII,
(g) loans and advances of money in the ordinary course of business and
consistent with past practice to officers and employees of the Company or any
of its Subsidiaries, (h) Investments in receivables owing to the Company
and/or any Subsidiary, if created or acquired in the ordinary course of busi-
ness and payable or dischargeable in accordance with customary trade terms,
and (i) Investments (including debt obligations) received in connection with
the bankruptcy or reorganization of suppliers and customers and in settlement
of delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business and/or, to the extent permitted
pursuant to the definition of Permitted Sales, in connection with the
consummation of Permitted Sales.
"Permitted Liens" shall mean Liens described in clauses (a), (b)
and (d) of Section 8.03.
"Permitted Restrictions" shall mean those restrictions (1) on
Selkirk Manufacturing Ltd. contained in the Facility Agreement for Secured
Credit Facilities for Selkirk Manufacturing Ltd. arranged by the Governor and
Company of the Bank of Scotland (the "Selkirk UK Debt") and (2) on Selkirk
Schornsteintechnik GMRM contained in each of the credit facilities between
Selkirk Schornsteintechnik GMRM on the one hand and Commerzbank Gummersbach
and Deutsche Bank AG, respectively, on the other hand (the "Selkirk Germany
Debt"), in each case until such credit facility is refinanced.
"Permitted Sales" shall mean the sale for fair market value (as
determined by the Company) for cash and/or promissory notes of (i) the Real
Property, divisions of the Company and/or Subsidiaries listed on Annex XIV and
(ii) other properties, assets, stock or businesses to the extent that the
aggregate net proceeds from all such sales do not exceed (I) $1,000,000 for
all such sales consummated during the period ending on March 31, 1998 and (II)
$3,000,000 for all such sales consummated during any subsequent fiscal year,
provided that (x) at least 50% of the net proceeds of any such sale shall
consist of cash, (y) any promissory note received as consideration shall have
a maturity no later than two years from the date of consummation of such sale
and (z) the aggregate principal (or face amount) of all promissory notes
received by the Company and its Subsidiaries (I) in connection with any such
sale, shall not exceed $2,500,000 and (II) in connection with all Permitted
Sales, shall not exceed $5,000,000.
"Person" shall mean any individual, partnership, joint venture,
firm, corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
"Plan" shall mean any multi-employer or single-employer plan as
defined in Section 4001 of ERISA, which is maintained or contributed to by (or
to which there is an obligation to contribute of) the Company, a Subsidiary or
an ERISA Affiliate, and each such plan for the five year period immediately
following the latest date on which the Company, a Subsidiary, or an ERISA
Affiliate maintained, contributed to or had an obligation to contribute to
such plan.
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"Plan Confirmation Date" shall mean the date on which the Plan of
Reorganization for Brass as set forth in the Third Amended Plan (or as
otherwise acceptable to the Required Banks) becomes effective and is
consummated.
"Plan Majority Banks" shall mean the Required Banks, or, at any
time that two or less Banks constitute the Required Banks, the Super Majority
Banks.
"Pledge Agreement" shall have the meaning provided in Section
5.01(l)(i).
"Pledged Securities" shall mean all the Pledged Securities as
defined in the relevant Pledge Agreement.
"Prime Lending Rate" shall mean the rate which BTCo announces from
time to time as its prime lending rate, the Prime Lending Rate to change when
and as such prime lending rate changes. The Prime Lending Rate is a reference
rate and does not necessarily represent the lowest or best rate actually
charged to any customer. BTCo may make commercial loans or other loans at
rates of interest at, above or below the Prime Lending Rate.
"Proxy Materials" shall mean all proxy materials, if any, sent by
Eljer or on behalf of the Company to the stockholders of Eljer in connection
with the Merger.
"RCRA" shall mean the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. Sec. 6901 et seq.
"Real Property" of any Person shall mean all of the right, title
and interest of such Person in and to land, improvements and fixtures,
including Leaseholds.
"Regulation D" shall mean Regulation D of the Board of Governors
of the Federal Reserve System as from time to time in effect and any successor
to all or a portion thereof establishing reserve requirements.
"Regulation U" shall mean Regulation U of the Board of Governors
of the Federal Reserve System as from time to time in effect and any successor
to all or a portion thereof establishing margin requirements.
"Relevant Determination Date" shall mean, at any time, the last
day of the then most recently ended fiscal quarter or year of the Company with
respect to which an officer's certificate has been, or is required to be,
delivered to the Banks pursuant to Section 7.01(d).
"Replaced Bank" shall have the meaning provided in Section 1.13.
"Replacement Bank" shall have the meaning provided in Section
1.13.
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"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan as to which the 30-day notice
requirement has not been waived by the PBGC.
"Required Banks" shall mean Non-Defaulting Banks whose A Term
Loans, A Term Commitments, B Term Loans, B Term Commitments and Revolving
Commitments (or if terminated, as in effect immediately prior to such
termination) constitute greater than 50% of the sum of the A Term Loans, A
Term Commitments, B Term Loans, B Term Commitments and Revolving Commitments
(or if terminated, as in effect immediately prior to such termination) of all
Non-Defaulting Banks.
"Revolving Commitment" shall mean, with respect to each Bank, the
amount set forth opposite such Bank's name in Annex I hereto directly below
the column entitled "Revolving Commitment," as the same may be (x) reduced
from time to time pursuant to Section 3.02, 3.03 and/or 9 or (y) adjusted from
time to time as a result of assignments to or from such Bank pursuant to
Section 12.04.
"Revolving Facility" shall mean the Facility evidenced by the
Total Revolving Commitments.
"Revolving Loan" shall have the meaning provided in Section
1.01(c).
"Revolving Note" has the meaning provided in Section 1.05(a).
"RF Commitment Commission" shall have the meaning provided in
Section 3.01(c).
"RF Percentage" shall mean at any time for each Bank with a
Revolving Commitment the percentage obtained by dividing such Bank's Revolving
Commitment by the Total Revolving Commitment, provided that if the Total
Revolving Commitment has been terminated, the RF Percentage of each Bank shall
be determined by dividing such Bank's Revolving Commitment immediately prior
to such termination by the Total Revolving Commitment immediately prior to
such termination.
"Scheduled Repayment" shall have the meaning provided in Section
4.02(A)(b).
"SEC" shall have the meaning provided in Section 7.01(f).
"SEC Regulation D" shall mean Regulation D as promulgated under
the Securities Act of 1933, as amended, as the same may be in effect from time
to time.
"Section 4.04 Certificate" shall have the meaning provided in
Section 4.04(b).
"Secured Creditors" shall have the meaning provided in the
Security Documents.
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"Security Agreement" shall have the meaning provided in Section
5.01(l)(ii).
"Security Agreement Collateral" shall mean all "Collateral" as
defined in the Security Agreement.
"Security Documents" shall mean the Pledge Agreement, the Security
Agreement, each Mortgage and, once executed, each New Mortgage.
"Selkirk Germany Debt" and "Selkirk UK Debt" shall have the
meaning provided in the definition of Permitted Restrictions.
"Share Purchase Loans" shall mean the A Term Loans the proceeds of
which are utilized on the date incurred to purchase Shares pursuant to the
Offer to Purchase.
"Shares" shall mean shares of common stock of Eljer.
"Special Funding Procedures Letter" shall mean a letter agreement
among the Company and each Bank, substantially in the form of Exhibit K
hereto.
"Standby Letter of Credit" shall have the meaning provided in
Section 2.01.
"Stated Amount" shall mean (x) for each Letter of Credit, the
maximum available to be drawn thereunder (regardless of whether any conditions
for drawing could then be met) and (y) for each Acceptance, the face amount
thereof provided that the Stated Amount for each Letter of Credit and
Acceptance denominated in an Alternate Currency shall be the Dollar Equivalent
of the foregoing for such Letter of Credit or Acceptance.
"Subsidiary" of any Person shall mean and include (i) any
corporation more than 50% of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time stock of any
class or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by such
Person directly or indirectly through Subsidiaries and (ii) any partnership,
association, joint venture or other entity in which such Person directly or
indirectly through Subsidiaries, has more than a 50% equity interest at the
time. Unless otherwise expressly provided, all references herein to
"Subsidiary" shall mean a Subsidiary of the Company.
"Subsidiary Guarantor" shall mean (i) each Initial Subsidiary
Guarantor, (ii) on and after the Initial B Term Loan Date each Additional
Subsidiary Guarantor, (iii) any other newly created entity that has executed
and delivered a counterpart of the Subsidiary Guaranty pursuant to Section
8.06 and (iv) each Subsidiary that becomes a Subsidiary Guarantor in
compliance with Section 7.10(d).
"Subsidiary Guaranty" shall have the meaning provided in Section
5.01(k).
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"Super Majority Banks" shall mean Non-Defaulting Banks whose A
Term Loans, A Term Commitments, B Term Loans, B Term Commitments and Revolving
Commitments (or if terminated, as in effect immediately prior to such
termination) constitute greater than 66 2/3% of the sum of the A Term Loans, A
Term Commitments, B Term Loans, B Term Commitments and Revolving Commitments
(or if terminated, as in effect immediately prior to such termination) of all
Non-Defaulting Banks.
"Syndication Date" shall mean the earlier of (i) the date 90 days
after the Initial Borrowing Date and (ii) the date on which the Administrative
Agent has notified the Company that, in the Administrative Agent's sole
determination, the primary syndication of the Facilities has been completed.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Tender Offer" shall mean the tender offer commenced by Acq. Sub
pursuant to the Offer to Purchase.
"Tender Offer Closing Date" shall mean the date of the closing of
the Tender Offer, which shall also be the date Shares are accepted for payment
by Acq. Sub, provided that if prior to the date of the closing of the Tender
Offer the Company has given the Administrative Agent written notice that it
will not utilize the Special Funding Procedures Letter, the Tender Offer
Closing Date shall then be the Initial Borrowing Date.
"Tender Offer Documents" shall mean the Offer to Purchase, the
Schedule 14D-1 filed by the Company and Acq. Sub, the Schedule 14D-9 filed by
Eljer with respect to the Offer to Purchase and all amendments and exhibits
thereto and related documents filed with the SEC or distributed to the
stockholders of Eljer, in each case to the extent delivered to the
Administrative Agent prior to the Effective Date and shall, in any event,
include any Merger Document first delivered to the Administrative Agent during
such period.
"Tender Offer Loans" shall mean those Loans whose proceeds are
used to finance, in whole or in part, the purchase of Shares pursuant to the
Offer to Purchase.
"Term Loans" shall mean and include A Term Loans and B Term Loans.
"Third Amended Plan" shall mean the Third Amended Plan of
Reorganization under Chapter 11 of the United States Bankruptcy Code for Brass
in the form delivered to the Administrative Agent pursuant to Section 5.01(d)
and as amended with the consent of the Required Banks.
"Total A Term Commitment" shall mean the sum of the A Term
Commitments of each of the Banks.
"Total Commitment" shall mean the sum of the Total A Term
Commitment, Total B Term Commitment and the Total Revolving Commitment.
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"Total Revolving Commitment" shall mean the sum of the Revolving
Commitments of each of the Banks.
"Total B Term Commitment" shall mean the sum of the B Term
Commitments of each of the Banks.
"Trade Letter of Credit" shall have the meaning provided in
Section 2.01.
"Transaction" shall mean (i) the Acquisition and (ii) the
refinancing of the Existing Eljer Credit Facilities.
"Transaction Documents" shall mean the Acquisition Documents and
the Credit Documents.
"Transaction Expenses" shall mean all fees and expenses incurred
in connection with, and payable prior to or substantially concurrently with
the closing of, the Acquisition.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, i.e., a Base Rate Loan or Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits
under the Plan as of the close of its most recent Plan year determined in
accordance with Statement of Financial Accounting Standards No. 35, based upon
the actuarial assumptions used by the Plan's actuary in the most recent annual
valuation of the Plan, exceeds the fair market value of the assets thereof,
determined in accordance with Section 412 of the Code.
"Unpaid Drawings" shall have the meaning provided in Section
2.04(a).
"Unutilized Revolving Commitment" for any Bank at any time shall
mean the excess of (i) the Revolving Commitment of such Bank over (ii) the sum
of (x) the aggregate outstanding principal amount of Revolving Loans made by
such Bank plus (y) an amount equal to such Bank's RF Percentage of the Letter
of Credit Outstandings at such time.
"Unutilized Total Revolving Commitment" shall mean, at any time,
(i) the Total Revolving Commitment at such time less (ii) the sum of the
aggregate principal amount of all Revolving Loans at such time plus the Letter
of Credit Outstandings at such time.
"Wholly-Owned Subsidiary" of any Person shall mean any Subsidiary
of such Person to the extent all of the capital stock or other ownership
interests in such Subsidiary, other than directors' qualifying shares, is
owned directly or indirectly by such Person.
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"Working Capital" shall mean the excess of Consolidated Current
Assets over Consolidated Current Liabilities.
"Working Capital Decrease" shall mean for any period the decrease
in Working Capital from the first day to the last day of such period to the
extent in excess of $5,000,000.
"Written" or "in writing" shall mean any form of written
communication or a communication by means of telex, facsimile transmission,
telegraph or cable.
"Zurn Group" shall mean the Company and its Subsidiaries other
than Eljer and its Subsidiaries.
SECTION 11. The Agents.
11.01 Appointment. The Banks hereby designate Bankers Trust
Company as Administrative Agent (for purposes of this Section 11, the term
"Administrative Agent" shall include BTCo in its capacity as Collateral Agent
pursuant to the Security Documents) and NationsBank, N.A., as Documentation
Agent, in each case to act as specified herein and in the other Credit
Documents. Each Bank hereby irrevocably authorizes, and each holder of any
Note by the acceptance of such Note shall be deemed irrevocably to authorize,
the Administrative Agent and the Documentation Agent to take such action on
its behalf under the provisions of this Agreement, the other Credit Documents
and any other instruments and agreements referred to herein or therein and to
exercise such powers and to perform such duties hereunder and thereunder as
are specifically delegated to or required of the Administrative Agent and the
Documentation Agent, as the case may be, by the terms hereof and thereof and
such other powers as are reasonably incidental thereto. Each of the
Administrative Agent and the Documentation Agent may perform any of its duties
hereunder by or through its respective officers, directors, agents, employees
or affiliates.
11.02 Nature of Duties. The Administrative Agent shall not have
any duties or responsibilities except those expressly set forth in this
Agreement and the Security Documents. The Documentation Agent shall have no
duties under this Agreement or any other Credit Document. Neither Agent nor
any of its respective officers, directors, agents, employees or affiliates
shall be liable for any action taken or omitted by it or them hereunder or
under any other Credit Document or in connection herewith or therewith, unless
caused by its or their gross negligence or willful misconduct. The duties, if
any, of each Agent shall be mechanical and administrative in nature; no Agent
shall have by reason of this Agreement or any other Credit Document a
fiduciary relationship in respect of any Bank or the holder of any Note; and
nothing in this Agreement or any other Credit Document, expressed or implied,
is intended to or shall be so construed as to impose upon either Agent any
obligations in respect of this Agreement or any other Credit Document except
as expressly set forth herein or therein.
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11.03 Lack of Reliance on the Agents. Independently and without
reliance upon either Agent, each Bank and the holder of each Note, to the
extent it deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of the
Company and its Subsidiaries in connection with the making and the continuance
of the Loans and the taking or not taking of any action in connection herewith
and (ii) its own appraisal of the creditworthiness of the Company and its Sub-
sidiaries and, except as expressly provided in this Agreement, neither Agent
shall have any duty or responsibility, either initially or on a continuing
basis, to provide any Bank or the holder of any Note with any credit or other
information with respect thereto, whether coming into its possession before
the making of the Loans or at any time or times thereafter. Neither Agent
shall be responsible to any Bank or the holder of any Note for any recitals,
statements, information, representations or warranties herein or in any docu-
ment, certificate or other writing delivered in connection herewith or for the
execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of the Company and its Subsidiaries or be
required to make any inquiry concerning either the performance or observance
of any of the terms, provisions or conditions of this Agreement or any other
Credit Document, or the financial condition of the Company and its
Subsidiaries or the existence or possible existence of any Default or Event of
Default.
11.04 Certain Rights of the Agents. If an Agent shall request
instructions from the Required Banks with respect to any act or action
(including failure to act) in connection with this Agreement or any other
Credit Document, such Agent shall be entitled to refrain from such act or tak-
ing such action unless and until such Agent shall have received instructions
from the Required Banks and such Agent shall not incur liability to any Person
by reason of so refraining. Without limiting the foregoing, neither any Bank
nor the holder of any Note shall have any right of action whatsoever against
either Agent as a result of such Agent acting or refraining from acting
hereunder or under any other Credit Document in accordance with the
instructions of the Required Banks.
11.05 Reliance. Each Agent shall be entitled to rely, and shall
be fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made
by any Person that such Agent believed to be the proper Person, and, with
respect to all legal matters pertaining to this Agreement and any other Credit
Document and its duties hereunder and thereunder, upon advice of counsel
selected by such Agent.
11.06 Indemnification. To the extent an Agent is not reimbursed
and indemnified by the Company, the Banks will reimburse and indemnify such
Agent, in proportion to their respective Loans and Commitments as used in
determining the Required Banks, for and against any and all liabilities, obli-
gations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements of whatsoever kind or nature which may be imposed
on, asserted against or incurred by such Agent in performing its respective
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duties hereunder or under any other Credit Document, in any way relating to or
arising out of this Agreement or any other Credit Document; provided that no
Bank shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from an Agent's gross negligence or willful
misconduct.
11.07 Each Agent in Its Individual Capacity. With respect to its
obligation to make Loans under this Agreement, each Agent shall have the
rights and powers specified herein for a "Bank" and may exercise the same
rights and powers as though it were not performing the duties specified
herein; and the term "Banks," "Required Banks," "Letter of Credit Issuer",
"holders of Notes" or any similar terms shall, unless the context clearly
otherwise indicates, include the Agent in its individual capacity. Each Agent
may accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with the Company or any Affiliate of the
Company as if it were not performing the duties specified herein, and may
accept fees and other consideration from the Company for services in
connection with this Agreement and otherwise without having to account for the
same to the Banks.
11.08 Holders. Each Agent may deem and treat the payee of any
Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment, transfer or endorsement thereof, as the case may be,
shall have been filed with such Agent. 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 any Note shall be conclusive and binding on any
subsequent holder, transferee, assignee or indorsee, as the case may be, of
such Note or of any Note or Notes issued in exchange therefor.
11.09 Resignation by the Agents. (a) The Administrative Agent
may resign from the performance of all its functions and duties hereunder
and/or under the other Credit Documents at any time by giving 15 Business Days
prior written notice to the Company and the Banks. Such resignation shall
take effect upon the appointment of a successor Administrative Agent pursuant
to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Banks shall appoint
a successor Administrative Agent hereunder who shall be or such commercial
bank or trust company as is reasonably acceptable to the Company.
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent, with
the consent of the Company, shall then appoint a successor Administrative
Agent who shall serve as Administrative Agent hereunder or thereunder until
such time, if any, as the Banks appoint a successor Administrative Agent as
provided above.
(d) If no successor Administrative Agent has been appointed pur-
suant to clause (b) or (c) above by the 20th Business Day after the date such
notice of resignation was given by the Administrative Agent, the
Administrative Agent's resignation shall become effective and the Required
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Banks shall thereafter perform all the duties of the Administrative Agent
hereunder and/or under any other Credit Document until such time, if any, as
the Banks appoint a successor Administrative Agent as provided above.
(e) The Documentation Agent may resign as Documentation Agent at
any time by giving 15 Business Days prior written notice to the Company and
the Banks, with such resignation to be effective upon expiration of such
notice period.
SECTION 12. Miscellaneous.
12.01 Payment of Expenses; etc. The Company agrees to: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Administrative Agent in
connection with the negotiation, preparation, execution and delivery of the
Credit Documents and the documents and instruments referred to therein and any
amendment, waiver or consent relating thereto (including, without limitation,
the reasonable fees and disbursements of their respective counsel) and of the
Administrative Agent and each of the Banks in connection with the enforcement
of the Credit Documents and the documents and instruments referred to therein
(including, without limitation, the reasonable fees and disbursements of
counsel for Administrative Agent and for each of the Banks); (ii) pay and hold
each of the Banks harmless from and against any and all present and future
stamp and other similar taxes with respect to the foregoing matters and save
each of the Banks harmless from and against any and all liabilities with
respect to or resulting from any delay or omission (other than to the extent
attributable to such Bank) to pay such taxes; and (iii) indemnify each Bank
(including in its capacity as an Agent), its officers, directors, employees,
representatives and agents from and hold each of them harmless against any and
all losses, liabilities, claims, damages or expenses incurred by any of them
as a result of, or arising out of, or in any way related to, or by reason of,
(a) any investigation, litigation or other proceeding (whether or not any Bank
is a party thereto) related to the entering into and/or performance of any
Transaction Document or the use of the proceeds of any Loans hereunder or the
Transaction or the consummation of any transactions contemplated in any Credit
Document, or (b) the actual or alleged presence of Hazardous Materials in the
air, surface water or groundwater or on the surface or subsurface of any Real
Property owned or at any time operated by the Company or any of its
Subsidiaries, the release, generation, storage, transportation, handling or
disposal of Hazardous Materials at any location, whether or not owned or
operated by the Company or any of its Subsidiaries, the non-compliance of any
Real Property with foreign, federal, state and local laws, regulations, and
ordinances (including applicable permits thereunder) applicable to any Real
Property, or any Environmental Claim asserted against the Company, any of its
Subsidiaries or any Real Property owned or at any time operated by the Company
or any of its Subsidiaries, including, in each case, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding (but excluding any such
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified).
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12.02 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, if an Event of Default then exists, each Bank
is hereby authorized at any time or from time to time, without presentment,
demand, protest or other notice of any kind to the Company or to 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) and any other
Indebtedness at any time held or owing by such Bank (including without
limitation by branches and agencies of such Bank wherever located) to or for
the credit or the account of any Credit Party against and on account of the
Obligations and liabilities of such Credit Party to such Bank under this
Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations purchased by such Bank pursuant to
Section 12.06(b), and all other claims of any nature or description arising
out of or connected with this Agreement or any other Credit Document,
irrespective of whether or not such Bank shall have made any demand hereunder
and although said Obligations, liabilities or claims, or any of them, shall be
contingent or unmatured, with the execution by any Credit Party of any Credit
Documents constituting its agreement to the provisions of this Section 12.02.
12.03 Notices. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in
writing (including telegraphic, telex, telecopier or cable communication) and
mailed, telegraphed, telexed, telecopied, cabled or delivered, if to the
Company, at the address specified opposite its signature below; if to any
Bank, at its address specified for such Bank on Annex II hereto; or, at such
other address as shall be designated by any party in a written notice to the
other parties hereto. All such notices and communications shall be mailed,
telegraphed, telexed, telecopied, or cabled or sent by overnight courier, and
shall be effective when received.
12.04 Benefit of Agreement. (a) This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto, provided that a Borrower may not
assign or transfer any of its rights or obligations hereunder without the
prior written consent of the Banks. Each Bank may at any time grant
participations in any of its rights hereunder or under any of the Notes to
another financial institution, provided that in the case of any such
participation, the participant shall not have any rights under this Agreement
or any of the other Credit Documents (the participant's rights against such
Bank in respect of such participation to be those set forth in the agreement
executed by such Bank in favor of the participant relating thereto) and all
amounts payable by a Borrower hereunder shall be determined as if such Bank
had not sold such participation, except that the participant shall be entitled
to the benefits of Sections 1.10, 2.06 and 4.04 of this Agreement to the
extent that such Bank would be entitled to such benefits if the participation
had not been entered into or sold, and, provided further that no Bank shall
transfer, grant or assign any participation under which the participant shall
have rights to approve any amendment to or waiver of this Agreement or any
other Credit Document except to the extent such amendment or waiver would (i)
extend the final scheduled maturity of any Loan or Note in which such
participant is participating (it being understood that any waiver of the
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application of any prepayment or the method of any application of any
prepayment to, the amortization of the Loans shall not constitute an extension
of the final maturity date), or reduce the rate or extend the time of payment
of interest or Fees thereon (except in connection with a waiver of the
applicability of any post-default increase in interest rates), or reduce the
principal amount thereof, or increase such participant's participating
interest in any Commitment over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default or of a mandatory
reduction in the Total Commitment, or a mandatory prepayment, shall not con-
stitute a change in the terms of any Commitment and that an increase in a
Commitment shall be permitted without any approval of a participant if such
increase does not increase such participant's participation), (ii) release all
or substantially all of the Collateral or (iii) consent to the assignment or
transfer by the Company of any of its rights and obligations under this
Agreement or any other Credit Document.
(b) Notwithstanding the foregoing, (x) any Bank may assign all or
a portion of its outstanding Loans, A Term Commitment, B Term Commitment
and/or Revolving Commitment and its rights and obligations hereunder to
another Bank, and (y) with the consent of the Administrative Agent and the
Company (which consents shall not be unreasonably withheld), any Bank
Administrative may assign all or a portion of its outstanding Loans, A Term
Commitment, B Term Commitment and/or Revolving Commitment and its rights and
obligations hereunder to one or more commercial banks or other financial
institutions (including one or more Banks), provided that all assignments
hereunder must be pro rata among the various Commitments and Loans. No
assignment pursuant to the immediately preceding sentence shall to the extent
such assignment represents an assignment to an institution other than one or
more Banks hereunder, be in an aggregate amount less than $5,000,000 unless
the entire Loans and Commitment of the assigning Bank are so assigned. If any
Bank so sells or assigns all or a part of its rights hereunder or under the
Notes, any reference in this Agreement or the Notes to such assigning Bank
shall thereafter refer to such Bank and to the respective assignee to the
extent of their respective interests and the respective assignee shall have,
to the extent of such assignment (unless otherwise provided therein), the same
rights and benefits as it would if it were such assigning Bank. Each
assignment pursuant to this Section 12.04(b) shall be effected by the
assigning Bank and the assignee Bank executing an Assignment Agreement. In
the event of any such assignment either the assigning or the assignee Bank
shall pay to the Administrative Agent a nonrefundable assignment fee of $3,500
and at the time of any assignment pursuant to this Section 12.04(b), (i) Annex
I shall be deemed to be amended to reflect the Commitments of the respective
assignee (which shall result in a direct reduction to the Commitments of the
assigning Bank) and of the other Banks, and (ii) the Company will issue new
Notes to the respective assignee and to the assigning Bank in conformity with
the requirements of Section 1.05. Each Bank and the Company agree to execute
such documents (including without limitation amendments to this Agreement and
the other Credit Documents) as shall be necessary to effect the foregoing.
Nothing in this clause (b) shall prevent or prohibit any Bank from pledging
its Notes or Loans to a Federal Reserve Bank in support of borrowings made by
such Bank from such Federal Reserve Bank.
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(c) Notwithstanding any other provisions of this Section 12.04,
no transfer or assignment of the interests or obligations of any Bank
hereunder or any grant of participation therein shall be permitted if such
transfer, assignment or grant would require a Borrower to file a registration
statement with the SEC or to qualify the Loans under the "Blue Sky" laws of
any State.
(d) Each Bank initially party to this Agreement hereby
represents, and each Person that becomes a Bank pursuant to an assignment
permitted by this Section 12.04 will, upon its becoming party to this
Agreement, represent that it is a commercial lender, other financial
institution or other "accredited" investor (as defined in SEC Regulation D)
which makes loans in the ordinary course of its business and that it will make
or acquire Loans for its own account in the ordinary course of such business,
provided that subject to the preceding clauses (a) and (b), the disposition of
any promissory notes or other evidences of or interests in Indebtedness held
by such Bank shall at all times be within its exclusive control.
12.05 No Waiver; Remedies Cumulative. No failure or delay on the
part of any Agent or any Bank in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
the Company and any Agent or any Bank shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege
hereunder or under any other Credit Document preclude any other or further
exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies herein expressly provided
are cumulative and not exclusive of any rights or remedies which any Agent or
any Bank would otherwise have. No notice to or demand on the Company in any
case shall entitle the Company to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Agents or the Banks to any other or further action in any circumstances
without notice or demand.
12.06 Payments Pro Rata. (a) The Administrative Agent agrees
that promptly after its receipt of each payment from or on behalf of the
Company in respect of any Obligations hereunder, it shall distribute such
payment to the Banks (other than any Bank that has expressly waived its right
to receive its pro rata share thereof) pro rata based upon their respective
shares, if any, of the Obligations with respect to which such payment was
received.
(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security,
by the exercise of the right of setoff or banker's lien, by counterclaim or
cross action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans or Fees, of a sum which with respect to the related sum or sums
received by other Banks is in a greater proportion than the total of such
Obligation then owed and due to such Bank bears to the total of such
Obligation then owed and due to all of the Banks immediately prior to such
receipt, then such Bank receiving such excess payment shall purchase for cash
without recourse or warranty from the other Banks an interest in the Obliga-
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tions to such Banks in such amount as shall result in a proportional parti-
cipation by all of the Banks in such amount, provided that if all or any
portion of such excess amount is thereafter recovered from such Bank, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein,
the provisions of the preceding Sections 12.06(a) and (b) shall be subject to
the express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks.
12.07 Calculations; Computations. (a) The financial statements
to be furnished to the Banks pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Company to the Banks), provided that (x) except as otherwise
specifically provided herein, all computations determining compliance with
Section 8, including definitions used therein, shall utilize accounting
principles and policies in effect at the time of the preparation of, and in
conformity with those used to prepare, the March 31, 1996 historical financial
statements of the Company delivered to the Banks pursuant to Section 6.10(b)
and (y) that if at any time the computations determining compliance with
Section 8 utilize accounting principles different from those utilized in the
financial statements furnished to the Banks, such financial statements shall
be accompanied by reconciliation work-sheets.
(b) All computations of interest and Fees hereunder shall be made
on the actual number of days elapsed over a year of 360 days.
12.08 Governing Law; Submission to Jurisdiction; Venue; Waiver of
Jury Trial. (a) This Agreement and the other Credit Documents and the rights
and obligations of the parties hereunder and thereunder shall be construed in
accordance with and be governed by the law of the state of New York. Any
legal action or proceeding with respect to this Agreement or any other Credit
Document may be brought in the courts of the State of New York or of the
United States for the Southern District of New York, and, by execution and
delivery of this Agreement, the Company hereby irrevocably accepts for itself
and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. The Company further irrevocably con-
sents to the service of process out of any of the aforementioned courts in any
such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the Company, such service to become effec-
tive 30 days after such mailing. The Company hereby irrevocably designates
appoints and empowers CT Corporation System, with offices on the date hereof
located at 1633 Broadway, New York, New York 10019, as its agent for service
of process in respect of any such action or proceeding. Nothing herein shall
affect the right of any Agent or any Bank to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
the Company in any other jurisdiction.
(b) The Company hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid
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actions or proceedings arising out of or in connection with this Agreement or
any other Credit Document brought in the courts referred to in clause (a)
above and hereby further irrevocably waives and agrees not to plead or claim
in any such court that any such action or proceeding brought in any such court
has been brought in an inconvenient forum.
(c) Each of the parties to this agreement hereby irrevocably
waives all right to a trial by jury in any action, proceeding or counterclaim
arising out of or relating to this Agreement, the other Credit Documents or
the transactions contemplated hereby or thereby.
12.09 Counterparts. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Company and the Administrative Agent.
12.10 Execution. This Agreement shall become effective on the
date (the "Effective Date") on which the Company and each of the Banks shall
have signed a copy hereof (whether the same or different copies) and shall
have delivered the same to the Administrative Agent at the Payment Office or,
in the case of the Banks, shall have given to the Administrative Agent,
telephonic (confirmed in writing), written telex or facsimile transmission
notice (actually received) at such office that the same has been signed and
mailed to it.
12.11 Headings Descriptive. The headings of the several sections
and subsections of this Agreement are inserted for convenience only and shall
not in any way affect the meaning or construction of any provision of this
Agreement.
12.12 Amendment or Waiver. Neither this Agreement nor any other
Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination
is in writing signed by the Borrowers and the Required Banks, provided that no
such change, waiver, discharge or termination shall (A) without the consent of
each Bank (other than a Defaulting Bank) affected thereby, (i) extend the
Maturity Date (it being understood that any waiver of the application of any
prepayment of or the method of application of any prepayment to the
amortization of, the Loans shall not constitute any such extension), or reduce
the rate or extend the time of payment of interest (other than as a result of
waiving the applicability of any post-default increase in interest rates) or
Fees thereon, or reduce the principal amount thereof, or increase the Commit-
ment of any Bank over the amount thereof then in effect (it being understood
that a waiver of any Default or Event of Default, or of a mandatory reduction
in the Total Commitment, shall not constitute a change in the terms of any
Commitment of any Bank), (ii) release or permit the release of all or
substantially all of the Collateral except as expressly provided in the Credit
Documents, (iii) amend, modify or waive any provision of this Section 12.12,
(iv) reduce the percentage specified in, or otherwise modify, the definition
of Required Banks (it being understood that to the extent the Required Banks
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have consented to the inclusion under this Agreement of one or more additional
credit facilities, such additional credit facilities shall be included in
determining the Required Banks on substantially the same basis as the
Facilities are included in such determination) or (v) consent to the
assignment or transfer by a Borrower of any of its rights and obligations
under this Agreement, (B) without the consent of the Super Majority Banks, be
made to Section 4.02(A)(b) or the definition of Super Majority Banks and (C)
without the consent of the Plan Majority Banks, be made to Section 8.08(b) or
the definition of Plan Majority Banks. No provision of Section 11 may be
amended without the consent of an Agent affected thereby and no provision of
Section 2 may be amended without the consent of the Letter of Credit Issuer.
12.13 Survival. All indemnities set forth herein including,
without limitation, in Section 1.10, 1.11, 2.06, 4.04, 11.06 or 12.01 shall
survive the execution and delivery of this Agreement and the making and
repayment of the Loans.
12.14 Domicile of Loans. Each Bank may transfer and carry its
Loans at, to or for the account of any branch office, subsidiary or affiliate
of such Bank, provided that the Borrower shall not be responsible for costs
arising under Section 1.10, 2.06 or 4.04 resulting from any such transfer
(other than a transfer pursuant to Section 1.12) to the extent not otherwise
applicable to such Bank prior to such transfer.
12.15 Confidentiality. Subject to Section 12.04, the Banks shall
hold all non-public information obtained pursuant to the requirements of this
Agreement which has been identified as such by the Company in accordance with
its customary procedure for handling confidential information of this nature
and in accordance with safe and sound banking practices and in any event may
make disclosure reasonably required by any bona fide transferee or participant
in connection with the contemplated transfer of any Loans or participation
therein (so long as such transferee or participant agrees to abide by the
provisions of this Section 12.15) or as required or requested by any govern-
mental agency or representative thereof or pursuant to legal process, provided
that, unless specifically prohibited by applicable law or court order, each
Bank shall notify the Company of any request by any governmental agency or
representative thereof (other than any such request in connection with an
examination of the financial condition of such Bank by such governmental
agency) for disclosure of any such non-public information prior to disclosure
of such information, and provided further that in no event shall any Bank be
obligated or required to return any materials furnished by the Company or any
Subsidiary.
12.16 Bank Register. The Borrowers hereby designate the
Administrative Agent to serve as their agent, solely for purposes of this
Section 12.16, to maintain a register (the "Bank Register") on which it will
record the Commitments from time to time of each of the Banks, the Loans made
by each of the Banks and each repayment in respect of the principal amount of
the Loans of each Bank. Failure to make any such recordation, or any error in
such recordation, shall not affect the respective Borrower's obligations in
respect of such Loans. With respect to any Bank, the transfer of the
Commitments of such Bank and the rights to the principal of, and interest on,
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any Loan made pursuant to such Commitments shall not be effective until such
transfer is recorded on the Bank Register maintained by the Administrative
Agent with respect to ownership of such Commitments and Loans and prior to
such recordation all amounts owing to the transferor with respect to such
Commitments and Loans shall remain owing to the transferor. The registration
of assignment or transfer of all or part of any Commitments and Loans shall be
recorded by the Administrative Agent on the Bank Register only upon the
acceptance by the Administrative Agent of a properly executed and delivered
Assignment Agreement pursuant to Section 12.04(b). The Borrowers, jointly and
severally, agree to indemnify the Administrative Agent from and against any
and all losses, claims, damages and liabilities of whatsoever nature which may
be imposed on, asserted against or incurred by the Administrative Agent in
performing its duties under this Section 12.16 other than those resulting from
the Administrative Agent's willful misconduct or gross negligence.
12.17 Judgment Currency. (a) The Credit Parties' obligations
hereunder and under the other Credit Documents to make payments in U.S.
dollars shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment expressed in or converted into any currency other
than U.S. dollars, except to the extent that such tender or recovery results
in the effective receipt by the Administrative Agent, the Collateral Agent or
the respective Bank of the full amount of U.S. dollars expressed to be payable
to the Administrative Agent, the Collateral Agent or such Bank under this
Agreement or the other Credit Documents. If, for the purpose of obtaining or
enforcing judgment against any Credit Party in any court or in any
jurisdiction, it becomes necessary to convert into or from any currency other
than U.S. dollars (such other currency being hereinafter referred to as the
"Judgment Currency") an amount due in U.S. dollars, the conversion shall be
made at the Dollar Equivalent thereof determined as of the Business Day
immediately preceding the day on which the judgment is given (such Business
Day being hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date of actual payment
of the amount due, the Company covenants and agrees to pay, or cause to be
paid, such additional amounts, if any (but in any event not a lesser amount)
as may be necessary to ensure that the amount paid in the Judgment Currency,
when converted at the rate of exchange prevailing on the date of payment, will
produce the amount of U.S. dollars which could have been purchased with the
amount of Judgment Currency stipulated in the judgment or judicial award at
the rate of exchange prevailing on the Judgment Currency Conversion Date.
(c) For purposes of determining the Dollar Equivalent for this
Section, such amounts shall include any premium and costs payable in
connection with the conversion into or from the Judgment Currency.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
Address: ZURN INDUSTRIES, INC.
One Zurn Place
Erie, PA 16505
Attention: John R. Mellet
Tel: (814) 878-2230 By /s/ Robert R. Womack
Fax: (814) 454-0524 Title: Chairman & CEO
Address: ELJER MANUFACTURING, INC.
17120 Dallas Parkway
Suite 205
Dallas, TX 75248 By /s/ Scott G. Arbuckle
Attention: Brooks F. Sherman Title: C.E.O. & Chairman
Tel: (214) 407-2603
Fax: (214) 407-2684
Address: BANKERS TRUST COMPANY
One Bankers Trust Plaza Individually and as Administrative Agent
130 Liberty Street
New York, New York 10006
Attention: Patricia Hogan
Tel: (212) 250-5175 By /s/ Patricia Hogan
Fax: (212) 250-7218 Title: Vice President
NATIONSBANK, N.A.,
Individually and as Documentation Agent
By /s/ Michael D. McKay
Title: SVP
SOCIETE GENERALE, NEW YORK
BRANCH
By /s/ Alan S. Zinser
Title: Assistant Vice President
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PNC BANK, NATIONAL ASSOCIATION
By /s/ James F. Stevenson
Title: Vice President
BROWN BROTHERS HARRIMAN & CO.
By /s/ A.H. Robertson
Title: Partner
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ANNEX I
COMMITMENTS
A Term B Term Revolving
Bank Commitment Commitment Commitment
Bankers Trust Company $23,400,000 $28,600,000 $13,000,000
NationsBank, N.A. 23,400,000 28,600,000 13,000,000
Societe Generale 23,400,000 28,600,000 13,000,000
PNC Bank, National 16,200,000 19,800,000 9,000,000
Association
Brown Brothers 3,600,000 4,400,000 2,000,000
Harriman & Co.
TOTAL $90,000,000 $110,000,000 50,000,000
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ANNEX II
BANK ADDRESSES
Bankers Trust Company One Bankers Trust Plaza
130 Liberty Street
New York, New York 10006
Attention: Larry Benison
Tel. No.: (212) 250-7561
Fax No.: (212) 250-7351
NationsBank, N.A. 100 N. Tryon
8th Floor
Charlotte, NC 28255
Attention: Michael D. McKay
Tel. No.: (704) 388-6919
Fax No.: (704) 388-0960
Societe Generale, 1221 Avenue of the Americas
New York Branch New York, NY 10020
Attention: Alan Zinser
Tel. No.: (212) 278-6876
Fax No.: (212) 278-7430
PNC Bank, National 901 State Street
Association Dept. 64, 4th Floor
Erie, PA 16501
Attention: James F. Stevenson
Tel. No.: (814) 871-9383
Fax No.: (814) 871-9432
Brown Brothers Harriman & Co. 40 Water Street
Boston, MA 02109
Attention: John Walsh
Tel. No.: (617) 589-4983
Fax No.: (617) 589-3178
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