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ATRIUM COMPANIES, INC.,
as Borrower,
and
THE GUARANTORS PARTY HERETO
----------------------
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 2, 1998
AMENDED AND RESTATED AS OF OCTOBER 25, 2000
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MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
as Lead Arranger and Syndication Agent,
BANK ONE, TEXAS, N.A.
as Documentation Agent,
and
FLEET NATIONAL BANK,
as Administrative Agent,
and
THE LENDERS PARTY HERETO
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TABLE OF CONTENTS
This Table of Contents is not part of the First Amended and
Restated Credit Agreement to which it is attached but is inserted for
convenience of reference only.
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Section 1. DEFINITIONS, ACCOUNTING MATTERS AND RULES OF CONSTRUCTION................................ 2
1.01. CERTAIN DEFINED
TERMS.................................................................................................. 2
1.02. ACCOUNTING TERMS AND DETERMINATIONS......................................................37
1.03. CLASSES AND TYPES OF LOANS...............................................................37
1.04. RULES OF CONSTRUCTION....................................................................37
1.05. EFFECT ON ORIGINAL CREDIT AGREEMENT AND OTHER CREDIT DOCUMENTS...........................38
Section 2. COMMITMENTS, LETTERS OF CREDIT, FEES, REGISTER, PREPAYMENTS AND REPLACEMENT OF
LENDERS................................................................................39
2.01. LOANS....................................................................................39
2.02. BORROWINGS...............................................................................41
2.03. LETTERS OF CREDIT........................................................................41
2.04. TERMINATION AND REDUCTIONS OF COMMITMENTS................................................47
2.05. FEES.....................................................................................47
2.06. LENDING OFFICES..........................................................................47
2.07. SEVERAL OBLIGATIONS OF LENDERS...........................................................48
2.08. NOTES; REGISTER..........................................................................48
2.09. OPTIONAL PREPAYMENTS AND CONVERSIONS OR CONTINUATIONS OF LOANS...........................49
2.10. MANDATORY PREPAYMENTS....................................................................50
2.11. REPLACEMENT OF LENDERS...................................................................53
Section 3. PAYMENTS OF PRINCIPAL AND INTEREST.......................................................53
3.01. REPAYMENT OF LOANS.......................................................................53
3.02. INTEREST.................................................................................54
Section 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC..........................................55
4.01. PAYMENTS.................................................................................55
4.02. PRO RATA TREATMENT.......................................................................55
4.03. COMPUTATIONS.............................................................................56
4.04. MINIMUM AMOUNTS..........................................................................56
4.05. CERTAIN NOTICES..........................................................................56
4.06. NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT.........................................57
4.07. RIGHT OF SETOFF; SHARING OF PAYMENTS; ETC................................................58
Section 5. YIELD PROTECTION, ETC....................................................................59
5.01. ADDITIONAL COSTS.........................................................................59
5.02. LIMITATION ON TYPES OF LOANS.............................................................61
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5.03. ILLEGALITY...............................................................................61
5.04. TREATMENT OF AFFECTED LOANS..............................................................62
5.05. COMPENSATION.............................................................................62
5.06. NET PAYMENTS.............................................................................63
Section 6. GUARANTEE................................................................................66
6.01. THE GUARANTEE............................................................................66
6.02. OBLIGATIONS UNCONDITIONAL................................................................66
6.03. REINSTATEMENT............................................................................68
6.04. SUBROGATION; SUBORDINATION...............................................................68
6.05. REMEDIES.................................................................................68
6.06. INSTRUMENT FOR THE PAYMENT OF MONEY......................................................68
6.07. CONTINUING GUARANTEE.....................................................................69
6.08. GENERAL LIMITATION ON GUARANTEE OBLIGATIONS..............................................69
Section 7. CONDITIONS PRECEDENT.....................................................................69
7.01. EFFECTIVENESS OF ORIGINAL CREDIT AGREEMENT AND INITIAL EXTENSION
OF CREDIT UNDER THE ORIGINAL CREDIT AGREEMENT..........................................69
7.02. EFFECTIVENESS OF THIS AGREEMENT AND INITIAL EXTENSION OF CREDIT
UNDER THIS AGREEMENT...................................................................69
7.03. INITIAL AND SUBSEQUENT EXTENSIONS OF CREDIT UNDER THIS AGREEMENT.........................76
7.04. PERMITTED ACQUISITIONS...................................................................77
Section 8. REPRESENTATIONS AND WARRANTIES...........................................................77
8.01. CORPORATE EXISTENCE......................................................................77
8.02. FINANCIAL CONDITION; ETC.................................................................78
8.03. LITIGATION...............................................................................79
8.04. NO BREACH; NO DEFAULT....................................................................79
8.05. ACTION...................................................................................79
8.06. APPROVALS................................................................................80
8.07. REPRESENTATIONS AND WARRANTIES IN TRANSACTION DOCUMENTS..................................80
8.08. ERISA....................................................................................80
8.09. TAXES....................................................................................81
8.10. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY ACT; OTHER RESTRICTIONS...........81
8.11. ENVIRONMENTAL MATTERS....................................................................81
8.12. ENVIRONMENTAL INVESTIGATIONS.............................................................82
8.13. USE OF PROCEEDS..........................................................................82
8.14. SUBSIDIARIES.............................................................................82
8.15. PROPERTIES...............................................................................83
8.16. SECURITY INTEREST; ABSENCE OF FINANCING STATEMENTS; ETC..................................83
8.17. LICENSES AND PERMITS; COMPLIANCE WITH LAWS...............................................83
8.18. TRUE AND COMPLETE DISCLOSURE.............................................................84
8.19. SOLVENCY; ETC............................................................................84
8.20. CONTRACTS................................................................................84
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8.21. LABOR MATTERS............................................................................84
8.22. [Reserved]...............................................................................85
Section 9. COVENANTS................................................................................85
9.01. FINANCIAL STATEMENTS, ETC................................................................85
9.02. LITIGATION, ETC..........................................................................88
9.03. EXISTENCE; COMPLIANCE WITH LAW; PAYMENT OF TAXES; INSPECTION RIGHTS; PERFORMANCE
OF OBLIGATIONS; ETC....................................................................89
9.04. INSURANCE................................................................................89
9.05. LIMITATION ON LINES OF BUSINESS..........................................................90
9.06. LIMITATION ON FUNDAMENTAL CHANGES, ACQUISITIONS OR DISPOSITIONS..........................91
9.07. LIMITATION ON LIENS AND RELATED MATTERS..................................................94
9.08. PROHIBITION ON DISQUALIFIED CAPITAL STOCK; LIMITATION ON INDEBTEDNESS AND
CONTINGENT OBLIGATIONS.................................................................97
9.09. LIMITATION ON INVESTMENTS; LIMITATION ON CREATION OF SUBSIDIARIES........................99
9.10. LIMITATION ON DIVIDEND PAYMENTS.........................................................101
9.11. FINANCIAL COVENANTS.....................................................................102
9.12. PLEDGE OR MORTGAGE OF ADDITIONAL COLLATERAL.............................................104
9.14. COMPLIANCE WITH ENVIRONMENTAL LAWS......................................................105
9.15. Limitation on Transactions with Affiliates..............................................106
9.16. LIMITATION ON ACCOUNTING CHANGES; LIMITATION ON INVESTMENT COMPANY STATUS...............107
9.17. LIMITATION ON MODIFICATIONS OF CERTAIN DOCUMENTS, ETC...................................107
9.18. INTEREST RATE PROTECTION AGREEMENTS.....................................................107
9.19. LIMITATION ON CERTAIN RESTRICTIONS AFFECTING SUBSIDIARIES...............................108
9.20. ADDITIONAL OBLIGORS.....................................................................108
9.21. LIMITATION ON DESIGNATION OF DESIGNATED SENIOR INDEBTEDNESS.............................109
9.22. FOREIGN SUBSIDIARIES' SECURITY..........................................................109
9.23. LIMITATION ON ACTIVITIES OF HOLDINGS....................................................109
9.24. LIMITATION ON ISSUANCE OR DISPOSITIONS OF EQUITY INTERESTS OF COMPANIES.................110
9.25. LIMITATION ON PAYMENTS OR PREPAYMENTS OF INDEBTEDNESS OR THE MEZZANINE SECURITIES
OR MODIFICATION OF DEBT DOCUMENTS....................................................110
9.26. CASUALTY AND CONDEMNATION...............................................................111
9.27. TAX SHARING ARRANGEMENTS................................................................111
9.28. POST CLOSING OBLIGATIONS................................................................111
Section 10. EVENTS OF DEFAULT.......................................................................112
Section 11. The AGENTS..............................................................................115
11.01. GENERAL PROVISIONS......................................................................115
11.02. INDEMNIFICATION.........................................................................118
11.03. CONSENTS UNDER OTHER CREDIT DOCUMENTS...................................................118
11.04. COLLATERAL SUB-AGENTS...................................................................118
11.05. ASSISTANCE BY LENDERS...................................................................119
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Section 12. MISCELLANEOUS...........................................................................119
12.01. WAIVER..................................................................................119
12.02. NOTICES.................................................................................119
12.03. EXPENSES, INDEMNIFICATION, ETC..........................................................119
12.04. AMENDMENTS, ETC.........................................................................121
12.05. SUCCESSORS AND ASSIGNS..................................................................124
12.06. ASSIGNMENTS AND PARTICIPATIONS..........................................................124
12.07. SURVIVAL................................................................................126
12.08. CAPTIONS................................................................................127
12.09. COUNTERPARTS; INTERPRETATION; EFFECTIVENESS.............................................127
12.10. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVERS; ETC.................................127
12.11. CONFIDENTIALITY.........................................................................127
12.12. INDEPENDENCE OF REPRESENTATIONS, WARRANTIES AND COVENANTS...............................128
12.13. SEVERABILITY............................................................................128
12.14. ACKNOWLEDGMENTS.........................................................................128
12.15. USE OF NET AVAILABLE PROCEEDS FROM WING ASSET SALE AND ATRIUM ASSET SALE................128
Signatures............................................................................................S-1
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ANNEX A - Commitments on Amendment and
Restatement Date
ANNEX B - Ellison Property Documents
SCHEDULE 1.01(a) - Applicable Margins**
SCHEDULE 1.01(b) - Applicable Margins after Reset Date**
SCHEDULE 1.01(c) - Guarantors**
SCHEDULE 3.01(b) - Amortization Schedule**
SCHEDULE 7.02(xv) - Mortgaged Real Property at Original
Closing Date and Amendment and
Restatement Date**
SCHEDULE 8.03 - Litigation*
SCHEDULE 8.11 - Environmental Matters**
SCHEDULE 8.14 - Subsidiaries of Borrower**
SCHEDULE 8.20 - Certain Contracts**
SCHEDULE 8.21 - Labor Matters*
SCHEDULE 9.06(h) - Certain Dispositions*
SCHEDULE 9.06(k) - Certain Properties to be Leased or
Subleased
SCHEDULE 9.06(p) - Certain Properties to be Sold After
the Amendment and Restatement Date
SCHEDULE 9.07 - Certain Existing Liens*
SCHEDULE 9.08 - Certain Indebtedness to Remain
Outstanding**
SCHEDULE 9.08(m) - Indebtedness Incurred in Connection
with the Ellison Acquisition
SCHEDULE 9.09 - Investments*
SCHEDULE 9.15 - Existing Affiliate Agreements**
SCHEDULE 9.28(c) - Ellison Property
SCHEDULE 9.28(g) - Good Standings to be Delivered for
Foreign Jurisdictions
EXHIBIT A-1 - Form of Revolving Credit Note**
EXHIBIT A-2 - Form of Tranche A Term Loan Note
EXHIBIT A-3 - Form of Tranche B Term Loan Note**
EXHIBIT A-4 - Form of Tranche C Term Loan Note**
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* These Schedules are those which are attached to the Original Credit
Agreement (but are attached hereto for convenience of reference).
Schedule 9.06 of the Original Credit Agreement is redesignated as
Schedule 9.06(h).
** Amended and Restated in connection with the Amended and Restated Credit
Agreement.
*** The forms of these documents are the forms attached to the Original
Credit Agreement (but are attached hereto for convenience of
reference).
**** These documents were executed and delivered in connection with the
Original Credit Agreement (but are attached hereto for convenience of
reference).
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EXHIBIT A-5 - Form of Swing Loan Note**
EXHIBIT B - Form of Intercompany Note***
EXHIBIT C - Form of Interest Rate Certificate***
EXHIBIT D-1 - Form of Mortgage***
EXHIBIT D-2 - Form of Mortgage Amendment
EXHIBIT E - Form of Security Agreement****
EXHIBIT F - [Reserved]
EXHIBIT G-1 - Form of Opinion of Counsel to the
Obligors Delivered on the
Original Closing Date****
EXHIBIT G-2 - Form of Opinion of Counsel to the
Obligors to Be Delivered on the
Amendment and Restatement Date
EXHIBIT H - Form of Notice of Assignment***
EXHIBIT I - Form of Notice of Borrowing***
EXHIBIT J - Form of Notice of
Conversion/Continuation***
EXHIBIT K - Form of Joinder Agreement***
EXHIBIT L - Form of Section 5.06 Certificate for
Lenders***
EXHIBIT M - Form of Solvency Certificate***
EXHIBIT N - Form of Assignment Agreement***
EXHIBIT O - Form of Tax Sharing Agreement***
EXHIBIT P - Form of Perfection Certificate***
EXHIBIT Q - Form of Landlord Lien Waiver, Access
Agreement and Consent
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*** The forms of these documents are the forms attached to the Original
Credit Agreement (but are attached hereto for convenience of
reference).
**** These documents were executed and delivered in connection with the
Original Credit Agreement (but are attached hereto for convenience of
reference).
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FIRST AMENDED AND RESTATED CREDIT AGREEMENT dated as of
October 2, 1998, amended and restated as of October 25, 2000 (the "AGREEMENT"),
among ATRIUM COMPANIES, INC., a Delaware corporation, as Borrower; the
Guarantors party hereto; each of the lenders that is a signatory hereto
identified under the caption "LENDERS" on the signature pages hereto or that,
pursuant to Section 12.06(b), shall become a "Lender" hereunder (individually, a
"LENDER" and, collectively, the "LENDERS"); MERRILL LYNCH & CO., MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED, as lead arranger and syndication agent
(collectively in such capacities, the "LEAD ARRANGER"); BANK ONE, TEXAS, N.A. as
documentation agent (in such capacity, the "DOCUMENTATION AGENT"); and FLEET
NATIONAL BANK, as administrative agent (in such capacity, the "ADMINISTRATIVE
AGENT").
WHEREAS, pursuant to a Second Amended and Restated Purchase
Agreement (the "ELLISON ACQUISITION AGREEMENT"), dated as of September 29, 2000,
by and between The Ellison Company, Inc. ("ELLISON COMPANY"), Borrower and
Holdings, Holdings will cause Borrower to acquire (the "ELLISON ACQUISITION")
(a) all of the outstanding capital stock of VES, Inc., a Delaware corporation
doing business in North Carolina as Ellison Extrusion Systems, Inc. ("ELLISON
EXTRUSION"), and (b) substantially all of the assets of Ellison Company's Window
and Doors Division ("ELLISON W&D" and, together with Ellison Extrusion, "ELLISON
TARGET").
WHEREAS, in connection with the financing of the Ellison
Acquisition, certain investors (the "MEZZANINE INVESTORS") will purchase for
cash senior PIK notes and common stock, par value $.01 per share, (the
"MEZZANINE SECURITIES") of Holdings sufficient to generate gross proceeds to
Holdings of not less than $36.5 million (the "MEZZANINE FINANCING").
WHEREAS, Borrower, the Lenders, the Guarantors, the Lead
Arranger and the Administrative Agent originally entered into that certain
Credit Agreement (the "ORIGINAL CREDIT AGREEMENT") dated as of October 2, 1998,
as amended by Waiver No. 1 dated April 6, 1999, Amendment and Consent No. 1
dated May 5, 1999, Amendment No. 2 dated June 11, 1999, Amendment and Waiver No.
3 dated November 17, 1999, Amendment and Waiver No. 4 dated March 24, 2000,
Waiver No. 5 dated May 17, 2000, Amendment and Waiver No. 6 dated August 14,
2000, Amendment and Waiver No. 7 dated August 25, 2000, and Amendment and Waiver
No. 8 dated August 30, 2000, and are entering into this Agreement in order to
amend and restate the Original Credit Agreement to (a) reflect the provisions of
all prior amendments; (b) permit the consummation of the Ellison Acquisition and
related transactions; (c) add the Tranche A Term Loan Facility of $14.0 million;
(d) provide for new Revolving Credit Commitments of $7.0 million; (e) provide
for new Tranche B Term Loan Facility Commitments of $12.0 million; (f) provide
for new Tranche C Term Loan Facility Commitments of $12.0 million; (g) permit
the issuance of the Mezzanine Securities on the terms set forth in the Mezzanine
Securities Documents; (h) join Ellison Extrusion to this Agreement as a
Guarantor; and (i) effect other changes to the Original Credit Agreement, as
evidenced hereby.
WHEREAS, Borrower, the Lenders, the Guarantors, the Lead
Arranger and the Administrative Agent intend that (a) all obligations under the
Original Credit Agreement of the parties shall continue to exist under and be
evidenced by this Agreement and the other Credit Documents; and (b) except as
expressly stated herein or amended hereby, the Original Credit Agreement and the
other
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Credit Documents are ratified and confirmed as remaining unmodified and in
full force and effect with respect to all Obligations.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties agree that the Original
Credit Agreement is hereby amended and restated in its entirety as follows:
Section 1. DEFINITIONS, ACCOUNTING MATTERS AND RULES OF
CONSTRUCTION.
1.01. CERTAIN DEFINED TERMS. As used herein, the following
terms shall have the following meanings:
"ABR LOANS" shall mean Loans that bear interest at rates based
upon the Alternate Base Rate.
"ACQUISITION" shall mean, with respect to any Person, any
transaction or series of related transactions for the direct or indirect (a)
acquisition of all or substantially all of the Property of any other Person, or
of any business or division of any other Person, (b) acquisition of in excess of
50% of the Equity Interests of any other Person, or otherwise causing any other
Person to become a Subsidiary of such Person, or (c) merger or consolidation or
any other combination with any other Person.
"ACQUISITION CONSIDERATION" shall mean the purchase
consideration for any Acquisition and all other payments made and Indebtedness
assumed by any Company in exchange for, or as part of, or in connection with,
any Acquisition, whether paid in cash or by exchange of Equity Interests or of
assets or otherwise and whether payable at or prior to the consummation of such
Acquisition or deferred for payment at any future time, whether or not any such
future payment is subject to the occurrence of any contingency, and includes any
and all payments and liabilities representing the purchase price and the amount
of any Indebtedness assumed, "earn-outs" and other similar agreements in an
amount reasonably determined in good faith by Borrower at the time of
consummation of such Acquisition equal to the net present value of the payment
provided for in such "earn-out" or other similar agreement, consulting
agreements (exclusive of consulting or employment agreements for services
rendered in the ordinary course of business) and service agreements and
non-competition agreements.
"ADDITIONAL COLLATERAL" see Section 9.12.
"ADDITIONAL OBLIGORS" see Section 9.20.
"ADJUSTED NET INCOME" shall mean, for any period, the
consolidated net income (loss) for such period, of Borrower and its Consolidated
Subsidiaries calculated on a consolidated basis in accordance with GAAP,
adjusted by excluding (to the extent taken into account in the calculation of
such consolidated net income (loss)) the effect of (a) gains or losses for such
period from Dispositions not in the ordinary course of business and Excluded
Dispositions not in the ordinary course of business, and the tax consequences
thereof, (b) any non-recurring or extraordinary items of income or expense for
such period and the tax consequences thereof (including expenses related to the
Transac-
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tions), (c) the portion of net income (loss) of any Person (other than a
Subsidiary) in which Borrower or any Subsidiary has an ownership interest,
except to the extent of the amount of cash dividends or other cash
distributions actually paid to Borrower or (subject to clause (e) below) any
Subsidiary during such period to the extent not in excess of Borrower's or
such Subsidiary's proportionate interest in such Person's consolidated net
income for such period, (d) the net income (loss) of any Person combined with
Borrower or any Subsidiary on a "pooling of interests" basis attributable to
any period prior to the date of combination, and (e) the net income of any
Subsidiary to the extent that the declaration or payment of dividends or
similar distribution by such Subsidiary was not for the relevant period
permitted (without giving effect to any non-permanent waiver), directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Subsidiary or its stockholders.
"ADMINISTRATIVE AGENT" see the introduction hereto.
"ADMINISTRATIVE AGENT'S FEE LETTER" shall mean the Fee Letter
dated as of October 1, 1998 between Administrative Agent and Borrower.
"ADVANCE DATE" see Section 4.06.
"AFFILIATE" shall mean, with respect to any Person, any other
Person which directly or indirectly controls, or is under common control with,
or is controlled by, such Person. As used in this definition, "CONTROL"
(including, with its correlative meanings, "CONTROLLED BY" and "UNDER COMMON
CONTROL WITH") shall mean possession, directly or indirectly, of power to direct
or cause the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise). Notwithstanding the foregoing, solely for purposes of Section 9.15,
no Company shall be deemed an Affiliate of any other Company.
"AFFILIATE TRANSACTION" see Section 9.15.
"AGENT" means either of the Lead Arranger or the
Administrative Agent.
"AGREEMENT" see the introduction to this Agreement.
"ALTERNATE BASE RATE" shall mean for any day, a rate PER ANNUM
that is equal to the higher of (i) the Federal Funds Rate, PLUS 0.50%, or (ii)
the Prime Rate.
"AMENDED AND RESTATED CREDIT DOCUMENTS" shall mean this
Agreement, the Notes issued on or after the Amendment and Restatement Date, any
Letter of Credit Documents executed and delivered on or after the Amendment and
Restatement Date and any Security Documents executed and delivered on or after
the Amendment and Restatement Date.
"AMENDED AND RESTATED TRANSACTION DOCUMENTS" shall mean any
operative document relating to the Amended and Restated Transactions, including
but not limited to the Credit Documents, the Ellison Acquisition Documents, the
Mezzanine Securities Documents, the Wing Asset Sale Documents, the Atrium Wood
Asset Sale Documents and each of the Related Documents with respect
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thereto, in each case, including all schedules, exhibits, appendices, annexes
and attachments and amendments thereto and, in each case, as amended and in
effect from time to time in accordance with their respective terms and this
Agreement.
"AMENDED AND RESTATED TRANSACTIONS" shall mean the Ellison
Acquisition, the Mezzanine Financing, the Wing Asset Sale, the Atrium Wood Asset
Sale and the borrowings hereunder and the other transactions contemplated hereby
to occur on the Amendment and Restatement Date.
"AMENDMENT AND RESTATEMENT DATE" shall mean the date on which,
pursuant to the terms of this Agreement (including Sections 1.05 and 7.02), the
Original Credit Agreement shall have been amended and restated by this
Agreement.
"AMORTIZATION PAYMENT" shall mean each scheduled installment
of principal payments on the Term Loans as set forth in Section 3.01(b).
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and
for each Type of Loan, the "Lending Office" of such Lender (or of an Affiliate
of such Lender) designated for such type of Loan on the signature pages hereof
or such other office of such Lender (or of an Affiliate of such Lender) as such
Lender may from time to time specify in writing to the Administrative Agent and
Borrower as the office by which its Loans of such Type are to be made and
maintained.
"APPLICABLE MARGIN" shall be, for any (A) Tranche B Term Loan
or Tranche C Term Loan , the percentage per annum set forth on SCHEDULE 1.01(a)
specified therein applicable to such Term Loan and (B) Revolving Credit Loan or
Tranche A Term Loan, (x) from the Amendment and Restatement Date to the date
(the "RESET DATE") on which Borrower shall have delivered to the Lenders the
financial statements and Interest Rate Certificates required by Sections
9.01(a), (b) and (e) in respect of the fiscal quarter of Borrower ended March
31, 2001 and an Officer's Certificate demonstrating the then applicable Total
Leverage Ratio, the percentage PER ANNUM set forth on SCHEDULE 1.01(a) for such
Loan, and (y) on and after the Reset Date, when the Total Leverage Ratio at the
end of the most recently ended fiscal quarter is as set forth in SCHEDULE
1.01(b), the percentage PER ANNUM set forth opposite such Total Leverage Ratio
in SCHEDULE 1.01(b) for such Loan. Any change in the Total Leverage Ratio shall
be effective to adjust the Applicable Margin as of the date of receipt by the
Administrative Agent of the Interest Rate Certificate most recently delivered
pursuant to Section 9.01(e). If Borrower fails to deliver the Interest Rate
Certificates and financial statements within the times specified in Sections
9.01(a), (b) and (e), the Total Leverage Ratio shall be deemed to be that in
Tier I of SCHEDULE 1.01(b) until Borrower delivers such Interest Rate
Certificates and financial statements.
"APPROVED FUND" shall mean, with respect to any Lender that is
a fund or commingled investment vehicle that invests in commercial loans, any
other fund that invests in commercial loans and is managed or advised by the
same investment advisor as such Lender or by an Affiliate of such investment
advisor.
"ARDATRIUM" shall mean Ardatrium L.L.C., a Delaware limited
liability company.
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"ARDSHIEL" see the definition of "Investors."
"ATRIUM WOOD PURCHASE AGREEMENT" see the definition of Atrium
Wood Asset Sale.
"ATRIUM WOOD ASSET SALE" shall mean the disposition by
Borrower (d/b/a Atrium Wood Patio Doors) of certain assets related to Borrower's
wood patio door business pursuant to an Asset Purchase Agreement (the "ATRIUM
WOOD PURCHASE AGREEMENT") dated August 30, 2000 by and between Borrower and
Woodgrain Millwork, Inc., an Oregon corporation.
"ATRIUM WOOD ASSET SALE DOCUMENTS" shall mean the Atrium Wood
Purchase Agreement including all schedules, exhibits, appendices, annexes and
attachments and amendments thereto and, in each case, as amended and in effect
from time to time in accordance with their respective terms and this agreement.
"BANKRUPTCY CODE" shall mean the Federal Bankruptcy Code of
1978.
"BORROWER" see the introduction to this Agreement.
"BUSINESS DAY" shall mean any day (a) on which commercial
banks are not authorized or required to close in New York City or Dallas, Texas
and (b) if such day relates to a borrowing of, a payment or prepayment of
principal of or interest on, a Continuation or Conversion of or into, or an
Interest Period for, a LIBOR Loan or a notice by Borrower with respect to any
such borrowing, payment, prepayment, Continuation, Conversion or Interest
Period, that is also a day on which dealings in Dollar deposits are carried out
in the London interbank market.
"CAPITAL EXPENDITURES" shall mean, for any period, any direct
or indirect expenditures of Borrower and the Subsidiaries which should be
capitalized on the consolidated balance sheet of Borrower and the Subsidiaries
in accordance with GAAP in respect of the purchase or other acquisition of fixed
or capital assets (including, without limitation, securities), excluding (i)
normal replacement and maintenance programs properly charged to current
operations, (ii) any expenditure made with the Net Available Proceeds of any
Disposition to the extent such Net Available Proceeds are not required to be
applied to the prepayment of the Loans in accordance with Section 2.10(a)(iv),
(iii) any expenditure made with the proceeds of any Excluded Disposition, (iv)
expenditures in an amount not to exceed the sum of (x) the Net Available
Proceeds of any Casualty Event to the extent such Net Available Proceeds are not
required to be applied to the prepayment of the Loans in accordance with Section
2.10(a)(i) and (y) the amount of any applicable insurance deductibles with
respect to such Casualty Event to the extent such amount is applied as set forth
in clause (x) of Section 2.10(a)(i) within the period specified therein, (v)
expenditures to effect Permitted Acquisitions, (vi) the purchase price of
equipment to the extent that the consideration therefor consists of used or
surplus equipment being traded in at such time or the proceeds of a concurrent
sale of such used or surplus equipment, in each case in the ordinary course of
business, (vii) the payment of the purchase price of the Greenville Acquisition
and the Greenville Expenditure, (viii) the payment of the purchase price of the
Mt. Pleasant Acquisition/Wing II Acquisition, (ix) any deposits required to be
made in connection with the purchase or other acquisition of fixed or capital
assets; PROVIDED, HOWEVER, that such a deposit shall no longer be excluded from
Capital Expenditures if used to purchase or acquire fixed or capital assets,
-6-
(x) expenditures in an amount not to exceed $3.0 million in the aggregate
since the Amendment and Restatement Date so long as Borrower has a bona fide
side plan to expand capacities and capture synergies with such expenditures
and (xi) option exercise costs to acquire Property and the costs of
improvements to such Property so long as such Property is sold within the
same fiscal year.
"CAPITAL LEASE," as applied to any Person, shall mean any
lease of any Property by that Person as lessee which, in conformity with GAAP,
is required to be classified and accounted for as a capital lease on the balance
sheet of that Person.
"CAPITAL LEASE OBLIGATIONS" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a Capital Lease,
and, for purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP.
"CASUALTY EVENT" shall mean, with respect to any Property
(including Real Property) of any Person, any loss of title with respect to Real
Property or any loss of or damage to or destruction of, or any condemnation or
other taking (including by any Governmental Authority) of, such Property
(including Real Property) for which such Person or any of its Subsidiaries
receives insurance proceeds or proceeds of a condemnation award or other
compensation; PROVIDED, HOWEVER, no such event shall constitute a Casualty Event
if (x) such proceeds or other compensation in respect thereof is less than $1.0
million and (y) all such proceeds and other compensation in respect of all such
events since the Original Closing Date are less than $5.0 million. "Casualty
Event" shall include but not be limited to any taking of any Mortgaged Real
Property or Real Property of any Company or any part thereof, in or by
condemnation or other eminent domain proceedings pursuant to any law, general or
special, or by reason of the requisition (other than for temporary purposes) of
the use or occupancy of any Mortgaged Real Property or Real Property of any
Company or any part thereof, by any Governmental Authority, civil or military.
"CERCLA" see Section 8.11.
"CHANGE OF CONTROL" shall mean any transaction or event
(including, without limitation, an issuance, sale or exchange of Equity
Interests, a merger or consolidation, or a dissolution or liquidation) occurring
on or after the Amendment and Restatement Date (whether or not approved by the
board of directors of Holdings) as a direct or indirect result of which (a) if
such transaction or event occurs prior to the consummation of an Initial Public
Offering, the Permitted Holders fail to collectively beneficially own, directly
or indirectly, Equity Interests of Borrower representing at least a majority (on
a fully diluted basis) of the aggregate voting power of the Equity Interests of
Borrower at the time outstanding or fail to have the ability to appoint at least
a majority of the board of directors of Borrower; (b) if such transaction or
event is an Initial Public Offering or occurs after the consummation of an
Initial Public Offering, (i) any Person or any group (other than the Permitted
Holders) shall (A) (directly or indirectly) beneficially own in the aggregate
Equity Interests of Borrower representing 35% or more (on a fully diluted basis)
of the aggregate voting power of the Equity Interests of Borrower at the time
outstanding; or (B) have the right or power to appoint, directly or indirectly,
a majority or more of the board of directors of Borrower or (ii) during any
period of two consecutive years, individuals who at the beginning of such period
constituted the board of directors of Borrower
-7-
(together with any new directors whose election by the shareholders of
Borrower was approved by a vote of at least a majority of the directors of
Borrower then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the board of
directors of Borrower then in office; or (c) if such transaction or event
occurs at any time, whether before or after the consummation of an Initial
Public Offering, any event or circumstance constituting a "change of control"
or other similar occurrence under the Senior Subordinated Notes Indenture or
the Mezzanine Securities Documents shall occur which results in an obligation
of any Company to prepay, purchase, offer to purchase, redeem or defease all
or a portion of such Indebtedness. For purposes of this definition, (x) the
terms "BENEFICIALLY OWN" and "GROUP" shall have the respective meanings
ascribed to them pursuant to Section 13(d) of the United States Securities
Exchange Act of 1934, except that a Person or group shall be deemed to
"beneficially own" all securities that such Person or group has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time, and (y) any Person or group shall be deemed to beneficially
own any Equity Interests beneficially owned by any other Person (the "PARENT
ENTITY") so long as such Person or group beneficially owns, directly or
indirectly, at least a majority of the voting power of the then outstanding
Equity Interests of the parent entity and no other Person or group has the
right to designate or appoint a majority or more of the directors of such
parent entity.
"CLASS" see Section 1.03.
"CODE" shall mean the United States Internal Revenue Code of
1986, as amended, and the U.S. Treasury Regulations promulgated thereunder.
"COLLATERAL" shall mean all of the Pledged Collateral and
Mortgaged Real Property.
"COLLATERAL ACCOUNT" see Section 9(d) of the Security
Agreement.
"COMMISSION" shall mean the United States Securities and
Exchange Commission.
"COMMITMENT LETTER" shall mean the New Credit Facilities
Commitment Letter among Merrill Lynch Capital Corporation, Borrower and Holdings
dated July 28, 2000 together with Annex I thereto and incorporated therein.
"COMMITMENTS" shall mean the Revolving Credit Commitments and
the Term Loan Commitments.
"COMPANIES" shall mean the Obligors and their respective
Subsidiaries; and "COMPANY" shall mean any of them.
"CONSOLIDATED EBITDA" shall mean, for any Measurement Period,
the remainder of (A) the sum (without duplication) of the amounts for such
period of (i) Adjusted Net Income, (ii) income tax expense to the extent
deducted in determining Adjusted Net Income for such period, (iii) all interest
expense to the extent deducted in determining Adjusted Net Income for such
period, (iv) depreciation expenses and amortization expense to the extent
deducted in determining Adjusted
-8-
Net Income for such period, (v) the non-cash component of any item of expense
to the extent deducted in determining Adjusted Net Income for such period,
other than to the extent requiring an accrual or reserve for future cash
expenses, all as determined on a consolidated basis for Borrower and its
Consolidated Subsidiaries in accordance with GAAP; and (vi) an amount not to
exceed $3.5 million resulting from the write-off in connection with the
Ellison Acquisition of the accounts receivable of Ellison Company owing from
Reynolds Building Products, MINUS (B) the sum of (i) cash dividends and other
distributions paid by Borrower pursuant to Section 9.10(b)(i) and (ii) solely
for purposes of calculating Consolidated EBITDA for purposes of the Interest
Coverage Ratio and the Fixed Charge Coverage Ratio, interest income from
Permitted Investments. Prior to the first anniversary of the Amendment and
Restatement Date, Consolidated EBITDA shall be calculated on a pro forma
basis as if the Amended and Restated Transactions had occurred on the first
day of the relevant Measurement Period and prior to June 30, 2002, the
following amounts of pro forma expense and cost reductions relating to the
Ellison Acquisition and the Wing Asset Sale and the Atrium Wood Asset Sale
shall be added to Consolidated EBITDA calculated at the Amendment and
Restatement Date and at each of the following Measurement Dates (i) $4.2
million at the Amendment and Restatement Date and at December 31, 2000, (ii)
$3.5 million at March 31, 2001, (iii) $2.8 million at June 30, 2001, (iv)
$2.1 million at September 30, 2001; (v) $1.4 million at December 31, 2001;
and (vi) $700,000 at March 31, 2002.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any
Measurement Period, the sum of (A) all cash interest expense (including
commitment fees, letter of credit fees and the interest component of Capital
Leases) of Borrower and its Consolidated Subsidiaries for such Measurement
Period including the net amounts payable or receivable under all Interest Rate
Protection Agreements less interest income from Permitted Investments, PLUS (B)
all Dividend Payments made during such Measurement Period pursuant to Section
9.10(c) and (d).
"CONSOLIDATED SUBSIDIARY" shall mean, for any Person, each
Subsidiary of such Person (whether now existing or hereafter created or
acquired) the financial statements of which shall be (or should have been)
consolidated with the financial statements of such Person in accordance with
GAAP.
"CONTINGENT OBLIGATION" shall mean, as to any Person, any
direct or indirect liability of such Person, whether or not contingent, with or
without recourse, (a) with respect to any Indebtedness, lease, dividend, letter
of credit or other obligation (the "PRIMARY OBLIGATIONS") of another Person (the
"PRIMARY OBLIGOR"), including any obligation of such Person (i) to purchase,
repurchase or otherwise acquire such primary obligations or any security
therefor, (ii) to advance or provide funds for the payment or discharge of any
such primary obligation, or to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency or any
balance sheet item, level of income or financial condition of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation, or (iv)
otherwise to assure or hold harmless the holder of any such primary obligation
against loss in respect thereof (each of (i)-(iv), a "GUARANTY OBLIGATION"); (b)
with respect to any Surety Instrument (other than any Letter of Credit) issued
for the account of such Person or as to which such Person is otherwise liable
for reimbursement
-9-
of drawings or payments; (c) to purchase any materials, supplies or other
property from, or to obtain the services of, another Person if the relevant
contract or other related document or obligation requires that payment for
such materials, supplies or other property, or for such services, shall be
made regardless of whether delivery of such materials, supplies or other
property is ever made or tendered, or such services are ever performed or
tendered; or (d) in respect of any Swap Contract; PROVIDED, HOWEVER, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection or standard contractual indemnities entered into, in
each case in the ordinary course of business. The amount of any Contingent
Obligation shall (x) in the case of a Guaranty Obligation, be deemed equal to
the stated or determinable amount of the primary obligation in respect of
which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect
thereof, and (y) in the case of other Contingent Obligations, be equal to the
maximum reasonably anticipated liability in respect thereof.
"CONTINUE," "CONTINUATION" and "CONTINUED" shall refer to the
continuation pursuant to Section 2.09 of a LIBOR Loan from one Interest Period
to the next Interest Period.
"CONTRACTUAL OBLIGATION" shall mean as to any Person, any
provision of any security issued by such Person or of any mortgage, security
agreement, pledge agreement, indenture, credit agreement, securities purchase
agreement, debt instrument, contract, agreement, instrument or other undertaking
to which such Person is a party or by which it or any of its Property is bound
or subject.
"CONVERT," "CONVERSION" and "CONVERTED" shall refer to a
conversion pursuant to Section 2.09 of one Type of Loan into another Type of
Loan, which may be accompanied by the transfer by a Lender (at its sole
discretion) of a Loan from one Applicable Lending Office to another.
"COVERED TAXES" see Section 5.06(a).
"CREDIT DOCUMENTS" shall mean the Amended and Restated Credit
Documents and the Original Credit Documents.
"CREDITOR" shall mean (i) any Agent, (ii) the Issuing Lender,
(iii) any Lender, and (iv) any party to a Swap Contract relating to the Loans if
at the date of entering into such Swap Contract such party was a Lender or an
Affiliate of a Lender.
"DEBT ISSUANCE" shall mean the incurrence by any Obligor of
any Indebtedness after the Amendment and Restatement Date (other than as
permitted by Section 9.08).
"DEFAULT" shall mean any event or condition that constitutes
an Event of Default or that would become, with notice or lapse of time or both,
an Event of Default.
"DESIGNATED EQUITY ISSUANCE PROCEEDS" shall mean at any time
the excess of (A) any net cash proceeds of any issuance of Qualified Capital
Stock by Holdings designated in writing by Borrower to the Administrative Agent
pursuant to an Officer's Certificate as being "Designated Equity Issuance
Proceeds" to the extent that the aggregate amount of such net cash proceeds so
designated since the Original Closing Date does not exceed $20.0 million OVER
(B) the aggregate sum total
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of all amounts applied in reliance on such Designated Equity Issuance Proceeds
since the Original Closing Date and on or prior to such time pursuant to
Section 9.06(i).
"DISPOSITION" shall mean (i) any conveyance, sale, lease,
assignment, transfer or other disposition (including by way of merger or
consolidation and including any sale-leaseback transaction) of any Property
(including receivables and Equity Interests of any Person owned by any Company
other than Borrower) (whether now owned or hereafter acquired) by any Company to
any Person other than Borrower or any Qualified Subsidiary, (ii) any issuance or
sale by any Subsidiary of its Equity Interests to any Person other than Borrower
or any Subsidiary, and (iii) any liquidating or other non-ordinary course
dividend or distribution or return of Investment received by any Company in
respect of any joint venture or similar enterprise, excluding, however, in each
case, any Excluded Disposition.
"DISPOSITION EVENT" shall mean the receipt by any Company of
cash proceeds or cash distributions of any kind from Property received in
consideration for a Disposition.
"DISQUALIFIED CAPITAL STOCK" shall mean, with respect to any
Person, any Equity Interest of such Person that, by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable),
or upon the happening of any event, matures (excluding any maturity as the
result of an optional redemption by the issuer thereof) or is mandatorily
redeemable (other than solely for Qualified Capital Stock), pursuant to a
sinking fund obligation or otherwise, or is redeemable at the sole option of the
holder thereof (other than solely for Qualified Capital Stock) or exchangeable
or convertible into debt securities of the issuer thereof at the sole option of
the holder thereof, in whole or in part, on or prior to the date which is 90
days after the Final Maturity Date.
"DIVIDEND PAYMENT" shall mean dividends (in cash, Property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any Equity Interests
or Equity Rights of any Company, but excluding dividends paid through the
issuance of additional shares of Qualified Capital Stock and any redemption or
exchange of any Qualified Capital Stock of such Company through the issuance of
Qualified Capital Stock of such Company.
"DOLLARS" and "$" shall mean lawful money of the United States
of America.
"ELIGIBLE PERSON" shall mean (i) a commercial bank organized
under the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100.0 million; (ii) a commercial bank organized
under the laws of any other country that is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a political subdivision of
any such country, and having a combined capital and surplus in a dollar
equivalent amount of at least $100.0 million; PROVIDED, HOWEVER, that such bank
is acting through a branch or agency located in the country in which it is
organized or another country that is also a member of the OECD; (iii) an
insurance company, mutual fund or other entity which is regularly engaged in
making, purchasing or investing in loans or securities or other financial
institution organized under the laws of the United States, any state thereof,
any other country that is a member of the OECD or a political subdivision of
-11-
any such country with assets, or assets under management, in a dollar
equivalent amount of at least $100.0 million; (iv) any Affiliate of a Lender
or an Approved Fund of a Lender; and (v) any other entity (other than a
natural person) which is an "accredited investor" (as defined in Regulation D
under the United States Securities Act of 1933, as amended) which extends
credit or buys loans as one of its businesses including, but not limited to,
insurance companies, mutual funds and investment funds. With respect to any
Lender, any Approved Fund in respect thereof shall be treated as a single
Eligible Person.
"ELLISON ACQUISITION" see the introduction to this Agreement.
"ELLISON ACQUISITION AGREEMENT" see the introduction to this
Agreement.
"ELLISON ACQUISITION DOCUMENTS" shall mean the Ellison
Acquisition Agreement including all schedules, exhibits, appendices, annexes and
attachments and amendments thereto and, in each case, as amended and in effect
from time to time in accordance with their respective terms and this Agreement.
"ELLISON COMPANY" see the introduction to this Agreement.
"ELLISON EXTRUSION" see the introduction to this Agreement.
"ELLISON PLEDGE AMENDMENT" see Section 7.02(i)(6).
"ELLISON PROPERTY" shall mean the owned or leased Real
Property acquired pursuant to the Ellison Acquisition and more particularly
described on SCHEDULE 9.28(c).
"ELLISON TARGET" see the introduction to this Agreement.
"ELLISON W&D" see the introduction to this Agreement.
"EMPLOYEE BENEFIT PLAN" shall mean an employee benefit plan
(as defined in Section 3(3) of ERISA) that is maintained or contributed to by
any ERISA Entity or with respect to which Borrower or a Subsidiary could incur
liability.
"ENVIRONMENTAL CLAIM" shall mean, with respect to any Person,
any written notice, claim, demand or other communication (collectively, a
"CLAIM") by any other Person alleging such Person's liability for any costs,
cleanup costs, response, corrective action or other costs, damages to natural
resources or other Property, personal injuries, fines or penalties arising out
of or resulting from (i) the presence, Release or threatened Release into the
environment, of any Hazardous Material at any location, whether or not owned by
such Person, or (ii) any violation of any Environmental Law. The term
"Environmental Claim" shall include, without limitation, any claim by any Person
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the presence of Hazardous Materials or arising
from alleged injury or threat of injury to health, safety or the environment.
-12-
"ENVIRONMENTAL LAWS" shall mean any and all present and future
applicable laws, rules or regulations of any Governmental Authority, any orders,
decrees, judgments or injunctions and the common law in each case as now or
hereafter in effect, relating to pollution or protection of human health, safety
or the environment, including without limitation, ambient air, indoor air, soil,
surface water, ground water, land or subsurface strata and natural resources
such as wetlands, flora and fauna, including, without limitation, those relating
to Releases or threatened Releases of Hazardous Materials into the environment,
or otherwise relating to the manufacture, processing, generation, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials.
"EQUITY INTERESTS" shall mean, with respect to any Person, any
and all shares, interests, participations or other equivalents, including
membership interests (however designated, whether voting or non-voting), of
capital of such Person, including, if such Person is a partnership, partnership
interests (whether general or limited) and any other interest or participation
that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, such partnership, whether outstanding on or
after the Amendment and Restatement Date.
"EQUITY ISSUANCE" shall mean any of (a) any issuance or sale
after the Amendment and Restatement Date by Borrower, Holdings, or any other
Person of which Borrower is a wholly owned subsidiary of (x) any Equity
Interests (including any Equity Interests issued upon exercise of any Equity
Rights) or any Equity Rights, or (y) any other security or instrument
representing an Equity Interest (or the right to obtain any Equity Interest) in
the issuing or selling Person, or (b) the receipt by any Company after the
Amendment and Restatement Date of any capital contribution (whether or not
evidenced by any Equity Interest issued by the recipient of such contribution)
other than from any other Company; PROVIDED, HOWEVER, that the issuance of any
debt security that is convertible into or exchangeable for Equity Interests or
Equity Rights shall, for purposes of Section 2.10(a), be a Debt Issuance and not
an Equity Issuance. Notwithstanding the foregoing, each of the following shall
be deemed not an Equity Issuance: (i) any issuance of Equity Interests of
Holdings to the seller or sellers in consideration for a Permitted Acquisition;
(ii) any issuance or sale of Equity Interests of any Person (other than
Borrower) owned by any Company (which, for the avoidance of doubt, is treated as
a Disposition); (iii) any individual issuance or sale by Holdings of Equity
Interests of Holdings to any employee, director, officer or consultant in the
ordinary course of business in an aggregate amount for all such issuances and
sales not to exceed 10% of the then outstanding Equity Interests of Holdings;
(iv) any issuance of Equity Interests of Holdings to the extent that the
proceeds thereof are used for a substantially contemporaneous purchase or
redemption of Equity Interests of Holdings pursuant to Section 9.10(b)(ii); (v)
the issuance of any common Equity Interests (x) on the Amendment and Restatement
Date in connection with the Amended and Restated Transactions (including common
Equity Interests issued as part of the Mezzanine Financing, common Equity
Interests issued to the seller in the Ellison Acquisition, and new common Equity
Interests issued to the Investors and others to provide financing for the
Amended and Restated Transactions) and (y) after the Amendment and Restatement
Date pursuant to the Ellison Acquisition Agreement (as in effect on the
Amendment and Restatement Date); and (vi) Equity Issuances to any of the
Investors or their Affiliates in an aggregate amount not to exceed $5.0 million
since the Amendment and Restatement Date so long as the entire net proceeds
thereof are used solely for working capital purposes.
-13-
"EQUITY RIGHTS" shall mean, with respect to any Person, any
outstanding subscriptions, options, warrants, commitments, preemptive rights or
agreements of any kind (including any stockholders' or voting trust agreements)
for the issuance, sale, registration or voting of, or outstanding securities
convertible into, any additional Equity Interests of any class, or partnership
or other ownership interests of any type in, such Person.
"ERISA" shall mean the United States Employee Retirement
Income Security Act of 1974, as amended.
"ERISA ENTITY" shall mean any member of an ERISA Group.
"ERISA EVENT" shall mean (a) any "reportable event," as
defined in Section 4043 of ERISA or the regulations issued thereunder with
respect to a Plan (other than an event for which the 30-day notice period is
waived); (b) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived, the failure to make by its due date a required
installment under Section 412(m) of the Code with respect to any Plan or the
failure to make any required contribution to a Multiemployer Plan; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by any ERISA Entity of any liability under Title IV of
ERISA with respect to the termination of any Plan; (e) the receipt by any ERISA
Entity from the PBGC of any notice relating to an intention of the PBGC to
terminate any Plan or Plans or to appoint a trustee to administer any Plan, or
the occurrence of any event or condition which is reasonably likely to
constitute grounds under ERISA for the PBGC to terminate or appoint a trustee to
administer any Plan; (f) the incurrence by any ERISA Entity of any liability
with respect to the withdrawal or partial withdrawal from any Multiemployer
Plan; (g) the receipt by an ERISA Entity of any notice, or the receipt by any
Multiemployer Plan from any Company of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA; (h) the making of any amendment to any Plan which could result in the
imposition of a lien or the posting of a bond or other security; or (i) the
occurrence of a nonexempt prohibited transaction (within the meaning of Section
4975 of the Code or Section 406 of ERISA) which is reasonably likely to result
in liability to any Company.
"ERISA GROUP" shall mean any Company and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with any Subsidiary are
treated as a single employer under Section 414 of the Code.
"EVENT OF DEFAULT" see Section 10.
"EXCESS CASH FLOW" shall mean, for any period, (A) the sum of
(i) Consolidated EBITDA for such period (calculated for this definition by
adding back the cash portion of all extraordinary or non-recurring items of
income (other than from Dispositions and Excluded Dispositions) to the extent
excluded in the calculation of Adjusted Net Income and by deducting the cash
portion of all extraordinary or non-recurring items of expense to the extent
excluded in the calculation of Adjusted
-14-
Net Income), (ii) any net decrease in Working Capital during such period
(except to the extent attributable to assets or Persons subject to a
Disposition during such period), and (iii) cash received from the proceeds of
any life insurance or "key man" policy during such period, MINUS (B) the sum
of (i) cash interest expense (including, without duplication, Capital Lease
expense, letter of credit fees and commitment fees) of Borrower and its
Consolidated Subsidiaries for such period to the extent deducted in
calculating Adjusted Net Income, (ii) the sum of all scheduled principal
payments (other than pursuant to Section 2.10(a)(v)) on any Indebtedness
(including Capital Leases and Term Loans pursuant to Section 3.01(b)) of
Borrower and its Consolidated Subsidiaries made during such period from
internally generated funds, all prepayments of Revolving Credit Loans made
from internally generated funds and to the extent accompanied by a permanent
reduction in Revolving Credit Commitments and voluntary prepayments of Term
Loans pursuant to Section 2.09 made from internally generated funds, (iii)
Capital Expenditures made during such period by Borrower and the Subsidiaries
from internally generated funds (including expenditures that would be Capital
Expenditures but for being excluded from the definition of Capital
Expenditures by clauses (v), (vii), (viii), (ix) and (x) thereof), (iv) all
income taxes actually paid in cash by Borrower or any Subsidiary during such
period or within a normal payment period thereafter (PROVIDED, HOWEVER, that
any amount deducted pursuant to this clause (iv) which was not actually paid
during such period shall not again be deducted for determining Excess Cash
Flow for another period), (v) cash dividends paid during such period by
Borrower pursuant to Section 9.10(b)(ii) to the extent made with internally
generated funds, (vi) cash paid during such period for any Permitted
Acquisition to the extent funded from internally generated funds, and (vii)
any net increases in Working Capital during such period (except to the extent
attributable to assets or Persons subject to an Acquisition during such period).
"EXCHANGE ACT" shall mean the United States Securities
Exchange Act of 1934, as amended.
"EXCLUDED DISPOSITIONS" shall mean (i) Dispositions for fair
market value resulting in no more than $2.0 million in aggregate proceeds in any
fiscal year; (ii) an exchange of equipment or inventory for other equipment or
inventory, provided that the Company effecting such exchange receives at least
substantially equivalent value in such exchange for the Property disposed of;
(iii) any transaction permitted by Section 9.06 (other than clauses (g) and (h)
thereof), any Lien permitted by Section 9.07 and any Investment permitted by
Section 9.09; (iv) any issuance of Equity Interests by any Subsidiary to
directors or nominees if required by applicable law if resulting in DE MINIMIS
proceeds; (v) the sale of inventory in the ordinary course of business; and (vi)
the Greenville Sale-Leaseback.
"EXCLUDED EQUITY ISSUANCE" shall mean any issuance of Equity
Interests of Holdings excluded from the definition of Equity Issuance by virtue
of clause (iv) of the second sentence thereof.
"EXCLUDED TAXES" see Section 5.06(a).
"EXEMPT LENDER" see Section 5.06(b).
"EXISTING AFFILIATE AGREEMENTS" see Section 9.15.
-15-
"FAIR MARKET VALUE" shall mean, with respect to any asset, a
price (after taking into account any liabilities relating to such assets), as
determined by Borrower in good faith, that is within a reasonable range of
prices which could be negotiated in an arm's-length free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of which is
under any compulsion to complete the transaction.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate PER
ANNUM (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; PROVIDED, HOWEVER, that (a) if the day for which such
rate is to be determined is not a Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding Business Day
as so published on the next succeeding Business Day and (b) if such rate is not
so published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate quoted to the Administrative Agent on such Business
Day on such transactions by three federal funds brokers of recognized standing,
as determined by the Administrative Agent.
"FEE LETTER" shall mean the New Credit Facilities Fee Letter
dated as of July 28, 2000 by and among Merrill Lynch Capital Corporation and
Borrower and the other parties thereto.
"FINAL MATURITY DATE" shall mean June 30, 2006.
"FINANCIAL MAINTENANCE COVENANTS" shall mean the covenants set
forth in Section 9.11(a) through (e).
"FIXED CHARGE COVERAGE RATIO" shall mean, for any Test Date,
the ratio of (x) Consolidated EBITDA for the Measurement Period ending on or
immediately prior to such Test Date to (y) Fixed Charges for such Measurement
Period; PROVIDED, HOWEVER, that prior to the first anniversary of the Amendment
and Restatement Date, (i) Consolidated Interest Expense included in Fixed
Charges shall be calculated on a pro forma basis as if the Amended and Restated
Transactions had occurred on the first day of such Measurement Period and (ii)
Capital Expenditures included in Fixed Charges shall be deemed to be $3 million
for each of the fiscal quarters ending on each of the following dates: December
31, 1999, March 31, 2000, June 30, 2000 and September 30, 2000.
"FIXED CHARGES" shall mean, for any Measurement Period, the
sum of (i) Consolidated Interest Expense for such period, (ii) the sum of all
scheduled principal payments on any Indebtedness of Borrower and its
Consolidated Subsidiaries (including, without duplication, any lease payments in
respect of Capital Leases attributable to the principal component thereof for
such period), and (iii) Capital Expenditures during such period.
"FOREIGN PLAN" shall mean any employee benefit plan, program,
policy, arrangement or agreement maintained or contributed to by, or entered
into with, Borrower or any Subsidiary with respect to employees employed outside
the United States.
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"FOREIGN SUBSIDIARY" shall mean any direct or indirect
Subsidiary organized outside of the United States as defined in Section
7701(a)(9) of the Code (or any successor provision).
"FUNDING DATE" shall mean the date of the making of any
extension of credit hereunder (including the Amendment and Restatement Date).
"GAAP" shall mean generally accepted accounting principles set
forth as of the relevant date in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), which are applicable to the
circumstances as of the date of determination.
"GEIPPP II" see the definition of "Investors."
"GOVERNMENTAL AUTHORITY" shall mean any government or
political subdivision of the United States or any other country or any agency,
authority, board, bureau, central bank, commission, department or
instrumentality thereof or therein, including, without limitation, any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic, or
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to such government or political
subdivision.
"GREENVILLE ACQUISITION" shall mean the acquisition by
Borrower of the property (the "GREENVILLE PROPERTY") located at 1001 Ed
Rutherford Road, Greenville, Texas and described in a Purchase and Sale
Agreement dated February 24, 1999 by and between DowBrands, Inc. and Borrower
for a purchase price of $2.9 million.
"GREENVILLE EXPENDITURES" shall mean expenditures by Borrower
to effect improvements of the Greenville Property in an amount not to exceed
$2.0 million.
"GREENVILLE SALE-LEASEBACK" shall mean the sale by Borrower of
the Greenville Property for a price not less than $4.9 million and
contemporaneous leasing of the Greenville Property to Borrower by the purchaser.
"GROSS-UP AMOUNT" see Section 5.06(a).
"GUARANTEE" shall mean the guarantee of each Guarantor
pursuant to Section 6.
"GUARANTEED OBLIGATIONS" see Section 6.01.
"GUARANTORS" shall mean Holdings, each Subsidiary listed on
SCHEDULE 1.01(c) and each direct and indirect Wholly Owned Subsidiary that
guarantees the payment of the Obligations of Borrower under the Credit Documents
pursuant to Section 9.20.
"GUARANTY OBLIGATION" see the definition of "Contingent
Obligation."
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"HAZARDOUS MATERIAL" shall mean any pollutant, contaminant,
toxic, hazardous or extremely hazardous substance, constituent or waste, or any
other constituent, waste, material, compound or substance subject to regulation
under any Environmental Law including, without limitation, petroleum or any
petroleum product, including crude oil or any fraction thereof, polychlorinated
biphenyls, urea-formaldehyde insulation and asbestos.
"HOLDINGS" shall mean D and W Holdings, Inc., a Delaware
corporation, the survivor of the merger with Atrium Corporation, a Delaware
corporation and the direct parent of Borrower, on the Amendment and Restatement
Date.
"IN THE ORDINARY COURSE OF BUSINESS" shall mean in the
ordinary course of business of Borrower and the Subsidiaries and on ordinary
business terms.
"INCUR" shall mean, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (including by conversion,
exchange or otherwise), assume, guarantee or otherwise become liable in respect
of such Indebtedness or other obligation or the recording, as required pursuant
to GAAP or otherwise, of any such Indebtedness or other obligation on the
balance sheet of such Person (and "INCURRENCE," "INCURRED" and "INCURRING" shall
have meanings correlative to the foregoing). Indebtedness of any Person or any
of its Subsidiaries existing at the time such Person becomes a Company (or is
merged into or consolidates with any Company), whether or not such Indebtedness
was incurred in connection with, or in contemplation of, such Person becoming a
Company (or being merged into or consolidated with any Company), shall be deemed
incurred at the time any such Person becomes a Company or merges into or
consolidates with any Company. Neither the accrual of interest, nor the
accretion of accreted value or amortization of financing fees, shall be deemed
to be an incurrence.
"INDEBTEDNESS" shall mean, for any Person, without
duplication, (a) all indebtedness for borrowed money of such Person; (b) all
non-contingent (but only so long as non-contingent) obligations issued,
undertaken or assumed by such Person as the deferred purchase price of Property
or services (other than trade payables and accrued expenses paid on customary
terms and not more than 60 days past due and incurred in the ordinary course of
business on ordinary terms); (c) all non-contingent reimbursement or payment
obligations of such Person with respect to Surety Instruments (such as, for
example, unpaid reimbursement obligations in respect of a drawing under a letter
of credit); (d) all obligations of such Person evidenced by notes, bonds,
debentures or similar instruments, including obligations so evidenced incurred
in connection with the acquisition of Property or businesses; (e) all
indebtedness of such Person created or arising under any conditional sale or
other title retention agreement, or incurred as financing, in either case with
respect to Property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such Property), the amount of such indebtedness to be
deemed the fair market value of such Property; (f) all Capital Lease Obligations
of such Person; (g) all net obligations of such Person with respect to Swap
Contracts (such obligations to be equal at anytime to the aggregate net amount
that would have been payable or receivable by such Person at the most recent
fiscal quarter end in connection with the termination of such Swap Contracts at
such fiscal quarter end); (h) all amounts required to be paid by such Person as
a guaranteed payment to partners,
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including any mandatory redemption of shares or interests; (i) all
indebtedness of other Persons referred to in clauses (a) through (h) above
secured by (or for which the holder of such indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien upon or in
Property (including accounts and contracts rights) owned by such Person,
whether or not such Person has assumed or become liable for the payment of
such indebtedness, the amount of such indebtedness to be deemed to be the
fair market value of such Property; and (j) all Guaranty Obligations of such
Person in respect of indebtedness or obligations of others of the kinds
referred to in clauses (a) through (h) above. Indebtedness shall not include
accounts extended by suppliers in the ordinary course of business on normal
trade terms in connection with the purchase of goods and services. The
Indebtedness of any Person shall include any Indebtedness of any partnership
in which such Person is the general partner.
"INDEMNITEE" see Section 12.03.
"INITIAL PUBLIC OFFERING" shall mean a primary underwritten
public offering of the common stock of Holdings or any other direct or indirect
holding company thereof, other than any public offering or sale pursuant to a
registration statement on Form S-8 or a comparable form.
"INSOLVENCY PROCEEDING" shall mean, with respect to any
Person, (a) any case, action or proceeding with respect to such Person before
any court or by or before any other Governmental Authority relating to
bankruptcy, insolvency, reorganization, liquidation, receivership, dissolution,
sequestration, conservatorship, winding-up or relief of debtors (or the passing
of a resolution for or with a view to any of the foregoing), or (b) any
assignment for the benefit of creditors, composition, marshalling of assets for
creditors, or other similar arrangement in respect of such Person's creditors
generally or any substantial portion of its creditors.
"INTERCOMPANY NOTE" shall mean a promissory note substantially
in the form of EXHIBIT B.
"INTEREST COVERAGE RATIO" shall mean, for any Test Date, the
ratio of (x) Consolidated EBITDA for the Measurement Period ending on or
immediately prior to such Test Date to (y) Consolidated Interest Expense for
such Measurement Period; PROVIDED, HOWEVER, that prior to the first anniversary
of the Amendment and Restatement Date, Consolidated Interest Expense shall be
calculated on a pro forma basis as if the Amended and Restated Transactions had
occurred on the first day of such Measurement Period.
"INTEREST PERIOD" shall mean, with respect to any LIBOR Loan,
each period commencing on the date such LIBOR Loan is made or Converted from an
ABR Loan or the last day of the next preceding Interest Period for such LIBOR
Loan and (subject to the requirements of Sections 2.01(a), 2.01(b), 2.01(c),
2.01(d) and 2.09) ending on the numerically corresponding day in the first,
second, third or sixth calendar month or, if available to all Lenders, the ninth
or twelfth calendar month thereafter or, in the case of a seven-day LIBOR Loan,
the seventh day thereafter, as Borrower may select as provided in Section 4.05,
except that each Interest Period that commences on the last Business Day of a
calendar month (or on any day for which there is no numerically corresponding
day in the appropriate subsequent calendar month) shall end on the last Business
Day of the appropriate
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subsequent calendar month. Notwithstanding the foregoing: (i) if any Interest
Period for any Revolving Credit Loan would otherwise end after the Revolving
Credit Commitment Termination Date, such Interest Period shall end on the
Revolving Credit Commitment Termination Date; (ii) no Interest Period for any
Term Loan may commence before and end after any Principal Payment Date,
unless, after giving effect thereto, the aggregate principal amount of the
Term Loans having Interest Periods that end after such Principal Payment Date
shall be equal to or less than the aggregate principal amount of the Term
Loans scheduled to be outstanding after giving effect to the payments of
principal required to be made on such Principal Payment Date; (iii) each
Interest Period that would otherwise end on a day that is not a Business Day
shall end on the next succeeding Business Day (or, if such next succeeding
Business Day falls in the next succeeding calendar month, on the next
preceding Business Day); and (iv) notwithstanding clauses (i) and (ii) above,
no Interest Period shall have a duration of less than one month and, if the
Interest Period for any LIBOR Loan would otherwise be a shorter period, such
Loan shall not be available hereunder as a LIBOR Loan for such period;
PROVIDED, HOWEVER, that the foregoing shall not prohibit an Interest Period
of seven days pursuant to and in accordance with Section 4.05.
"INTEREST RATE CERTIFICATE" shall mean an Officer's
Certificate substantially in the form of EXHIBIT C, delivered pursuant to
Section 9.01(e), demonstrating in reasonable detail the calculation of the Total
Leverage Ratio as of the last day of the Measurement Period then last ended on
or immediately prior to the date such certificate is required to be delivered.
"INTEREST RATE PROTECTION AGREEMENT" shall mean, for any
Person, an interest rate swap, cap, floor or collar agreement or similar
arrangement between such Person and one or more financial institutions providing
for the transfer or mitigation of interest risks either generally or under
specific contingencies.
"INTERNALLY GENERATED FUNDS" shall mean funds not generated
from the proceeds of any Loan, Debt Issuance, Equity Issuance, Disposition,
insurance recovery or Indebtedness (in each case without regard to the
exclusions from the definition thereof) (other than transactions in the ordinary
course of business).
"INVESTMENT" shall mean, for any Person: (a) the acquisition
(whether for cash, Property, services or securities or otherwise) of Equity
Interests, bonds, notes, debentures or other securities of any other Person; (b)
the making of any deposit with, or advance, loan or other extension of credit
to, any other Person (including the purchase of Property from another Person
subject to an understanding or agreement, contingent or otherwise, to resell
such Property to such Person); (c) any capital contribution to (by means of any
transfer of cash or other Property to others or any payment for Property or
services for the account or use of others) any other Person; (d) the entering
into, or direct or indirect incurrence, of any Guaranty Obligation with respect
to Indebtedness or other liability of any other Person; (e) the entering into of
any Swap Contract; or (f) any agreement to make any Investment (including any
"short sale" or any sale of any securities at a time when such securities are
not owned by the Person entering in to such sale).
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"INVESTORS" shall mean Ardshiel, Inc. ("ARDSHIEL") and GE
Investment Private Placement Partners II, Limited Partnership ("GEIPPP II").
"ISSUING LENDER" shall mean Fleet National Bank or any of its
Affiliates, or such other Lender or Lenders selected by Borrower reasonably
satisfactory to the Administrative Agent, as the issuer of Letters of Credit
under Section 2.03, together with its successors and assigns in such capacity.
"JOINDER AGREEMENT" shall mean a Joinder Agreement
substantially in the form of EXHIBIT K.
"LEAD ARRANGER" see the introduction to this Agreement.
"LEASE" shall mean any lease, sublease, franchise agreement,
license, occupancy or concession agreement.
"LENDER" and "LENDERS" see the introduction to this Agreement.
"LETTER OF CREDIT" see Section 2.03.
"LETTER OF CREDIT DOCUMENTS" shall mean, with respect to any
Letter of Credit, collectively, any other agreements, instruments, guarantees or
other documents (whether general in application or applicable only to such
Letter of Credit) governing or providing for (a) the rights and obligations of
the parties concerned or at risk with respect to such Letter of Credit or (b)
any collateral security for any of such obligations, each as the same may be
modified and supplemented and in effect from time to time.
"LETTER OF CREDIT INTEREST" shall mean, for each Revolving
Credit Lender, such Lender's participation interest (or, in the case of the
Issuing Lender, the Issuing Lender's retained interest) in the Issuing Lender's
liability under Letters of Credit and such Lender's rights and interests in
Reimbursement Obligations and fees, interest and other amounts payable in
connection with Letters of Credit and Reimbursement Obligations.
"LETTER OF CREDIT LIABILITY" shall mean, without duplication,
at any time and in respect of any Letter of Credit, the sum of (a) the undrawn
face amount of such Letter of Credit, PLUS (b) the aggregate unpaid principal
amount of all Reimbursement Obligations of Borrower at such time due and payable
in respect of all drawings made under such Letter of Credit.
"LIBOR BASE RATE" shall mean, with respect to any LIBOR Loan
for any Interest Period therefor, the rate PER ANNUM determined by the
Administrative Agent to be the arithmetic mean (rounded to the nearest 1/100th
of 1%) of the offered rates for deposits in Dollars with a term comparable to
such Interest Period that appears on the Telerate Screen 3750 (as defined below)
at approximately 11:00 a.m., London, England time, on the second full Business
Day preceding the first day of such Interest Period; PROVIDED, HOWEVER, that (i)
if no comparable term for an Interest Period is available, the LIBOR Base Rate
shall be determined using the weighted average of the offered rates for the
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two terms most nearly corresponding to such Interest Period and (ii) if there
shall at any time no longer exist a Telerate Screen 3750, "LIBOR Base Rate"
shall mean, with respect to each day during each Interest Period pertaining
to LIBOR Loans comprising part of the same Borrowing, the rate PER ANNUM
equal to the rate at which the Administrative Agent is offered deposits in
Dollars at approximately 11:00 a.m., London, England time, two Business Days
prior to the first day of such Interest Period in the London interbank market
for delivery on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to its portion of the amount of
such LIBOR Loan to be outstanding during such Interest Period. "TELERATE
SCREEN 3750" shall mean the display designated as Page 3750 on the Telerate
Service (or such other page as may replace such page on such service for the
purpose of displaying the rates at which Dollar deposits are offered by
leading banks in the London interbank deposit market).
"LIBOR LOANS" shall mean Loans that bear interest at rates
based on rates referred to in the definition of LIBOR Base Rate in this Section
1.01.
"LIBOR RATE" shall mean, for any LIBOR Loan for any Interest
Period therefor, a rate PER ANNUM (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Administrative Agent to be equal to the LIBOR
Base Rate for such Loan for such Interest Period divided by 1 minus the Reserve
Requirement (if any) for such Loan for such Interest Period.
"LIEN" shall mean, with respect to any Property, any mortgage,
lien, pledge, claim, charge, security interest or encumbrance of any kind, any
other type of preferential arrangement in respect of such Property having the
effect of a security interest or any filing consented to by any Company of any
financing statement under the UCC or any other similar notice of Lien under any
similar notice or recording statute of any Governmental Authority consented to
by any Company, including any easement, right-of-way or other encumbrance on
title to Real Property, and any agreement to give any of the foregoing. For
purposes of the Credit Documents, a Person shall be deemed to own subject to a
Lien any Property that it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement (other than an operating lease) relating to such
Property.
"LOANS" shall mean the Revolving Credit Loans and the Term
Loans.
"LOSSES" of any Person shall mean the losses, liabilities,
claims (including those based upon negligence, strict or absolute liability and
liability in tort), damages, reasonable expenses, obligations, penalties,
actions, judgments, encumbrances, liens, penalties, fines, suits, reasonable and
documented costs or disbursements of any kind or nature whatsoever (including
reasonable fees and expenses of counsel in connection with any Proceeding
commenced or threatened in writing, whether or not such Person shall be
designated a party thereto) at any time (including following the payment of the
Obligations) incurred by, imposed on or asserted against such Person.
"MAJORITY LENDERS" shall mean Lenders holding at least a
majority of the sum of (without duplication) (a) the aggregate principal amount
of outstanding Loans (other than Swing Loans), PLUS (b) the aggregate amount of
all Letter of Credit Liabilities, PLUS (c) the aggregate Unuti-
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lized Revolving Credit Commitments then in effect, PLUS (d) the aggregate Term
Loan Commitments then in effect, PLUS (e) in the case of the Swing Loan Lender
only, the aggregate amount of Swing Loans then outstanding.
"MAJORITY REVOLVING CREDIT LENDERS" shall mean Lenders holding
at least a majority of the sum of (without duplication) (a) the aggregate
principal amount of outstanding Revolving Credit Loans, PLUS (b) the aggregate
amount of all Letter of Credit Liabilities, PLUS (c) the aggregate Unutilized
Revolving Credit Commitments then in effect, PLUS (d) in the case of the Swing
Loan Lender only, the aggregate amount of Swing Loans then outstanding.
"MAJORITY TRANCHE A TERM LOAN LENDERS" shall mean Lenders
holding at least a majority of the aggregate principal amount of outstanding
Tranche A Term Loans.
"MAJORITY TRANCHE B TERM LOAN LENDERS" shall mean Lenders
holding at least a majority of the aggregate principal amount of outstanding
Tranche B Term Loans.
"MAJORITY TRANCHE C TERM LOAN LENDERS" shall mean Lenders
holding at least a majority of the aggregate principal amount of outstanding
Tranche C Term Loans.
"MANAGEMENT AGREEMENT" shall mean the management agreement
dated as of October 2, 1998 among Ardshiel, Holdings and Borrower, as such
agreement may be amended and in effect from time to time in accordance with its
terms and this Agreement.
"MARGIN STOCK" shall mean margin stock within the meaning of
Regulations T, U and X.
"MATERIAL ADVERSE CHANGE" shall mean, with respect to any
Person, a material adverse change, or any condition or event that has resulted
or could reasonably be expected to result in a material adverse change, in the
business, operations, financial condition or results of operations of such
Person, together with the Subsidiaries taken as a whole. Unless otherwise
indicated, Material Adverse Change refers to Borrower and the Subsidiaries taken
as a whole.
"MATERIAL ADVERSE EFFECT" shall mean, any of (a) a material
adverse effect, or any condition or event that has resulted or could reasonably
be expected to result in a material adverse effect, on the business, operations,
financial condition or results of operations of Borrower, together with the
Subsidiaries taken as a whole, (b) a material adverse effect on the ability of
the Obligors to consummate in a timely manner the Transactions or to perform any
of their material obligations under any Credit Document, (c) an adverse effect
on the legality, binding effect or enforceability of any material provision of
any Credit Document or any of the material rights and remedies of the Lenders,
the Issuing Lender or Lead Arranger thereunder or (d) a material adverse effect
on the Collateral or the Liens in favor of the Administrative Agent on the
Collateral or the priority of such Liens.
"MEASUREMENT PERIOD" shall mean the most recent trailing four
fiscal quarters of Borrower for which financial statements have been, or should
have been, provided pursuant to Section 9.01(a) or (b).
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"MEZZANINE FINANCING" see introduction to this Agreement.
"MEZZANINE INVESTORS" see introduction to this Agreement.
"MEZZANINE SECURITIES" see introduction to this Agreement and
shall include any senior PIK notes of Holdings issued as payment of interest on
such notes or in exchange for the Mezzanine Securities issued on the Amendment
and Restatement Date in accordance with the Mezzanine Securities Documents.
"MEZZANINE SECURITIES DOCUMENTS" shall mean the Mezzanine
Securities, the Mezzanine Securities Indenture, the Mezzanine Securities
Purchase Agreement, an exchange and registration rights agreement relating to
the senior PIK notes due 2010 issued by Holdings as part of the Mezzanine
Financing, a registration rights agreement relating to the common stock issued
by Holdings as part of the Mezzanine Financing, and all other documents relating
thereto, as any such documents may be amended from time to time in accordance
with their terms and this Agreement.
"MEZZANINE SECURITIES INDENTURE" shall mean the Indenture
between Holdings, as issuer, and a trustee to be named in the form attached to
the Mezzanine Securities Purchase Agreement, as such may be amended and in
effect from time to time in accordance with its terms and this Agreement.
"MEZZANINE SECURITIES PURCHASE AGREEMENT" shall mean the
Securities Purchase Agreement among Holdings and the purchasers listed on the
signature pages thereto dated as of the Amendment and Restatement Date relating
to the 15% senior PIK notes due 2010 and the common stock of Holdings.
"MORTGAGE" shall mean an agreement, including, but not limited
to, a mortgage, deed of trust or any other document, creating and evidencing a
Lien on a Mortgaged Real Property, which shall be substantially in the form of
EXHIBIT D-1, with such schedules and including such provisions as shall be
necessary to conform such document to applicable or local law or as shall be
customary under local law, as the same may at any time be amended in accordance
with the terms thereof and hereof.
"MORTGAGE AMENDMENT" shall mean an amendment to a Mortgage,
which shall be substantially in the form of EXHIBIT D-2, with such schedules and
including such provisions as shall be necessary to conform such document to
applicable or local law or as shall be customary under local law, as the same
may at any time be amended in accordance with the terms thereof and hereof.
"MORTGAGED REAL PROPERTY" shall mean each Real Property set
forth on SCHEDULE 7.02(XV) which shall be subject to a Mortgage delivered on the
Original Closing Date, the Amendment and Restatement Date or thereafter (if any)
pursuant to Sections 7.02(xv) and 9.12.
"MT. PLEASANT ACQUISITION/WING II ACQUISITION" shall mean (i)
the acquisition by Borrower of the property (the "MT. PLEASANT PROPERTY")
previously leased by Wing Industries, Inc. from Metal Industries, Inc. for a
purchase price of approximately $454,000 and (ii) the acquisition of the
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property (the "WING II PROPERTY") leased by Wing Industries, Inc. from the
Greenville Economic Development Corporation for a purchase price of
approximately $299,000.
"MULTIEMPLOYER PLAN" shall mean at any time a multiemployer
plan within the meaning of Section 4001(a)(3) of ERISA (i) to which any member
of the ERISA Group is then making or accruing an obligation to make
contributions while a member of the ERISA Group, (ii) to which any member of the
ERISA Group has within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a member of the ERISA
Group during such five year period, or (iii) with respect to which any Company
is reasonably likely to incur liability.
"NAIC" shall mean the National Association of Insurance
Commissioners.
"NET AVAILABLE PROCEEDS" shall mean:
(i) in the case of any Disposition Event, the amount of Net
Cash Payments received by any Company in connection with such
Disposition Event less deductions for amounts applied to (x)
Indebtedness (other than Indebtedness hereunder) secured by Liens
permitted hereunder on the assets sold, (y) taxes and (z) costs of
sale;
(ii) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation
received by any Company in respect of such Casualty Event net of (A)
fees and expenses incurred by such Company in connection with recovery
thereof, (B) repayments of Indebtedness (other than Indebtedness
hereunder) to the extent secured by a Lien on such Property that is
permitted hereunder, and (C) any taxes (including income, transfer,
stamp, duty, customs, withholding and any other taxes) paid or payable
by any Company in respect of the amount so recovered (after application
of all credits and other offsets); and
(iii) in the case of any Equity Issuance or any Debt Issuance,
the aggregate amount of all cash received by the Person effecting such
transaction in respect thereof net of all investment banking fees,
discounts and commissions, legal fees, consulting fees, accountants'
fees, underwriting discounts and commissions and other customary fees
and expenses, actually incurred and satisfactorily documented in
connection therewith.
"NET CASH PAYMENTS" shall mean, with respect to any
Disposition Event, the aggregate amount of all cash payments (including any cash
payments received by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or otherwise, but
only as and when received) received by any Company directly or indirectly in
connection with such Disposition Event; PROVIDED, HOWEVER, that Net Cash
Payments shall be net (without duplication) of (i) the amount of all fees and
expenses paid by any Company in connection with such Disposition Event (the
"RELEVANT DISPOSITION"); (ii) any taxes (including income, transfer, stamp,
duty, customs, withholding and any other taxes) paid or estimated to be payable
by any Company as a result of the Relevant Disposition (after application of all
credits and other offsets); (iii) any repayments by any Company of Indebtedness
other than Indebtedness hereunder to the extent that (a) such Indebtedness is
secured by a Lien on the Property that is the subject of the Relevant
Disposition that is permit-
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ted hereunder and (b) the transferee of (or holder of a Lien on) such
Property requires that such Indebtedness be repaid as a condition to the
purchase or sale of such Property; (iv) amounts required to be paid to any
Person (other than any Company) owning a beneficial interest in the assets
subject to such Relevant Disposition; and (v) option exercise costs to
acquire Property.
"NEW WITHHOLDING REGULATIONS" see Section 5.06(b).
"NON-U.S. LENDER" see Section 5.06(b).
"NOTES" shall mean the Revolving Credit Notes, Term Loan Notes
and the Swing Loan Note.
"NOTICE OF ASSIGNMENT" shall mean a notice of assignment
pursuant to Section 12.06 substantially in the form of EXHIBIT H.
"NOTICE OF BORROWING" shall mean a notice of borrowing
substantially in the form of EXHIBIT I.
"OBLIGATIONS" shall mean all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time existing,
owing to any Creditor or any of its Related Parties or their respective
permitted successors, transferees or assignees pursuant to the terms of any
Credit Document or any Swap Contract or secured by any of the Security
Documents, whether or not the right of such Person to payment in respect of such
obligations and liabilities is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured and whether or not such claim is discharged, stayed or
otherwise affected by any bankruptcy case or insolvency or liquidation
proceeding.
"OBLIGORS" shall mean Borrower and the Guarantors.
"OFFICER'S CERTIFICATE" shall mean, as applied to any
corporation, a certificate executed on behalf of such corporation by its
Chairman of the Board (if an officer), its Chief Executive Officer, its Chief
Financial Officer, its President or one of its Vice Presidents (or an equivalent
officer) or any Assistant Treasurer in their official (and not individual)
capacities; PROVIDED, HOWEVER, that every Officer's Certificate with respect to
the compliance with a condition precedent to the making of any Loan or the
taking of any other action hereunder shall include (i) a statement that the
officers making or giving such Officer's Certificate have read such condition
and any definitions or other provisions contained in this Agreement relating
thereto, and (ii) a statement as to whether, in the opinion of the signers, such
condition has been complied with.
"ORGANIC DOCUMENT" shall mean, relative to any Person, its
certificate of incorporation, its by-laws, its partnership agreement, its
memorandum and articles of association, share designations or similar
organization documents and all shareholder agreements, voting trusts and similar
arrangements applicable to any of its authorized shares of Equity Interests.
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"ORIGINAL CLOSING DATE" shall mean the date upon which the
initial extension of credit under the Original Credit Agreement was made
(October 2, 1998).
"ORIGINAL CREDIT AGREEMENT" see the introduction to this
Agreement.
"ORIGINAL CREDIT DOCUMENTS" shall mean the "Credit Documents"
as such term is defined in the Original Credit Agreement.
"ORIGINAL TRANSACTION DOCUMENTS" shall mean the "Transaction
Documents" as such term is defined in the Original Credit Agreement.
"ORIGINAL TRANSACTIONS" shall mean the "Transactions" as such
term is defined in the Original Credit Agreement.
"OTHER TAXES" see Section 5.06(c).
"PARTICIPANT" see Section 12.06(c).
"PAYMENT DATE" shall mean any Principal Payment Date and each
date on which interest is due and payable on any Loan.
"PAYOR" see Section 4.06.
"PBGC" shall mean the United States Pension Benefit Guaranty
Corporation or any successor thereto.
"PERMITS" see Section 8.17.
"PERMITTED ACQUISITION" shall mean any Acquisition effected in
compliance with Section 9.06(i), (m) or (o).
"PERMITTED HOLDERS" means each of the Investors and any
Affiliates thereof.
"PERMITTED INVESTMENTS" shall mean, for any Person: (a) direct
obligations of the United States of America, or of any agency thereof, or
obligations guaranteed as to principal and interest by the United States of
America, or by any agency thereof, in either case maturing not more than one
year from the date of acquisition thereof by such Person; (b) time deposits,
certificates of deposit or bankers' acceptances (including eurodollar deposits)
issued by any bank or trust company organized under the laws of the United
States of America or any state thereof and having capital, surplus and undivided
profits of at least $500.0 million and a deposit rating of investment grade; (c)
commercial paper rated A-1 or better by Standard & Poor's Corporation or P-1 or
better by Moody's Investors Service, Inc., respectively, maturing not more than
180 days from the date of acquisition thereof by such Person; (d) repurchase
obligations with a term of not more than 30 days for underlying securities of
the types described in clause (a) above entered into with a bank meeting the
qualifications described in clause (b) above; (e) securities with maturities of
six months or less from the date
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of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States of America, or by any political subdivision or
taxing authority thereof, and rated at least A by Standard & Poor's
Corporation or A by Moody's Investors Service, Inc.; or (f) money market
mutual funds that invest primarily in the foregoing items.
"PERMITTED LIENS" see Section 9.07.
"PERMITTED REFINANCING" shall mean, with respect to any
Indebtedness or Contingent Obligation, any refinancing thereof, PROVIDED,
HOWEVER, that (x) no Event of Default shall have occurred and be continuing or
would arise therefrom, (y) any such refinancing Indebtedness shall (I) not be on
financial and other terms that are, taken as a whole, materially more onerous
(as determined by Borrower and the Lead Arranger) to any Company or Creditor
than the Indebtedness or Contingent Obligation being refinanced and shall not
have defaults, rights or remedies more burdensome (as determined by Borrower and
the Lead Arranger) to any Company or Creditor than the Indebtedness being
refinanced, (II) not have a stated maturity or weighted average life that is
shorter than the Indebtedness or Contingent Obligation being refinanced, (III)
if the Indebtedness or Contingent Obligation being refinanced is subordinated by
its terms or by the terms of any agreement or instrument relating to such
Indebtedness or Contingent Obligation, be at least as subordinate to the
Obligations as the Indebtedness or Contingent Obligation being refinanced (and
unsecured if the refinanced Indebtedness is unsecured), and (IV) be in principal
amount that does not exceed the principal amount so refinanced, plus the lesser
of (1) the stated amount of any premium or other payment required to be paid in
connection with such refinancing pursuant to the terms of the Indebtedness or
Contingent Obligation being refinanced and (2) the amount of premium or other
payment actually paid at such time to refinance the Indebtedness, PLUS, in
either case, the amount of fees and reasonable expenses of any Company incurred
in connection with such refinancing, and (z) the sole obligor on such
refinancing Indebtedness or Contingent Obligation shall be the original obligor
on such Indebtedness or Contingent Obligation being refinanced; PROVIDED,
HOWEVER, that any guarantor of the Indebtedness or Contingent Obligation being
refinanced shall be permitted to guarantee the refinancing Indebtedness.
"PERSON" shall mean any individual, corporation, company,
voluntary association, partnership, limited liability company, joint venture,
trust, unincorporated organization or government (or any agency, instrumentality
or political subdivision thereof).
"PLAN" shall mean at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code or
Section 302 of ERISA and is maintained or contributed to by any member of the
ERISA Group or with respect to which any Company could incur liability.
"PLEDGED COLLATERAL" shall have the meaning set forth in the
Security Agreement.
"PRIME RATE" shall mean for any day, a rate PER ANNUM that is
equal to the corporate base rate of interest established by the Administrative
Agent from time to time, changing when and as said corporate base rate changes.
The corporate base rate is not necessarily the lowest rate charged by the
Administrative Agent to its customers.
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"PRINCIPAL OFFICE" shall mean the principal office of the
Administrative Agent, located on the Amendment and Restatement Date at Fleet
National Bank, 100 Federal Street, Mail Stop 01-08-05, Boston, Massachusetts
02110, or such other office as may be designated by the Administrative Agent.
"PRINCIPAL PAYMENT DATE" shall mean, with respect to any Term
Loan, each Quarterly Date or other date set forth on Schedule 3.01(b) on which a
payment of principal is due with respect to such Term Loan.
"PRIOR LIENS" shall mean Liens which, pursuant to the
provisions of any Security Document, are or may be superior to the Lien of such
Security Document.
"PRO FORMA BALANCE SHEETS" see Section 8.02(d).
"PROCEEDING" shall mean any claim, counterclaim, action,
judgment, suit, hearing, governmental investigation, arbitration or proceeding,
including by or before any Governmental Authority and whether judicial or
administrative.
"PROPERTY" shall mean any right, title or interest in or to
property or assets of any kind whatsoever, whether real, personal or mixed and
whether tangible or intangible and including Equity Interests or other ownership
interests of any Person.
"QUALIFIED CAPITAL STOCK" shall mean with respect to any
Person any Equity Interest of such Person that is not Disqualified Capital
Stock.
"QUALIFIED SUBSIDIARY" shall mean any Wholly Owned Subsidiary
that is an Obligor.
"QUARTER" shall mean each three month period ending on March
31, June 30, September 30 and December 31.
"QUARTERLY DATES" shall mean the last Business Day of March,
June, September and December in each year, commencing with the last Business Day
of December 2000.
"REAL PROPERTY" shall mean all right, title and interest of
any Company (including, without limitation, any leasehold estate) in and to a
parcel of real property owned or operated by any Company, whether by lease,
license or other use agreement, together with, in each case, all improvements
and appurtenant fixtures, equipment, personal property, easements and other
property and rights incidental to the ownership, lease or operation thereof or
thereon.
"REDEEM" shall mean redeem, repurchase, repay, defease or
otherwise acquire or retire for value; and "REDEMPTION" and "REDEEMED" have
correlative meanings.
"REFINANCE" shall mean refinance, renew, extend, replace,
defease or refund, in whole or in part, including successively; and
"REFINANCING" and "REFINANCED" have correlative meanings.
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"REGISTER" see Section 2.08.
"REGULATION D" shall mean Regulation D (12 C.F.R. Part 204) of
the Board of Governors of the United States Federal Reserve System.
"REGULATIONS T, U AND X" shall mean, respectively, Regulation
T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) and Regulation X (12
C.F.R. Part 224) of the Board of Governors of the United States Federal Reserve
System (or any successor), as the same may be modified and supplemented and in
effect from time to time.
"REGULATORY CHANGE" shall mean, with respect to any Lender,
any change after the Original Closing Date in United States Federal, state or
foreign law or regulations (including Regulation D) or the adoption or making
after the Original Closing Date of any interpretation, directive or request
applying to a class of banks or other financial institutions including such
Lender of or under any Federal, state or foreign law or regulations (whether or
not having the force of law and whether or not failure to comply therewith would
be unlawful) by any court or governmental or monetary authority or any other
regulatory agency with proper authority, including non-governmental agencies or
bodies, charged with the interpretation or administration thereof or by the
NAIC.
"REIMBURSEMENT OBLIGATIONS" shall mean, at any time, the
obligations of Borrower then outstanding, or that may thereafter arise in
respect of all Letters of Credit then outstanding, to reimburse amounts paid by
the Issuing Lender in respect of any drawings under a Letter of Credit.
"RELATED DOCUMENTS" shall mean any agreement, document or
instrument entered into by any Obligor in connection with any Acquisition or
debt or equity financing, as any such agreement, document or instrument is
amended and in effect from time to time in accordance with its respective terms
and this Agreement.
"RELATED PARTIES" see Section 11.01.
"RELEASE" shall mean any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the environment.
"RELEVANT DISPOSITION" see the definition of Net Cash
Payments.
"REPLACED LENDER" see Section 2.11.
"REPLACEMENT LENDER" see Section 2.11.
"REQUIRED PAYMENT" see Section 4.06.
"REQUIREMENT OF LAW" shall mean as to any Person, the
Certificate of Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
each
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case applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"RESERVE REQUIREMENT" shall mean, for any Interest Period for
any LIBOR Loan, the average maximum rate at which reserves (including any
marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the United
States Federal Reserve System in New York City with deposits exceeding one
billion Dollars against "Eurocurrency liabilities" (as such term is used in
Regulation D).
"RESET DATE" see the definition of Applicable Margin.
"RESPONSIBLE OFFICER" shall mean the Chief Executive Officer
of Borrower or the President of Borrower or, with respect to financial matters,
the Chief Financial Officer of Borrower, any Vice President-Finance or Treasurer
(or an equivalent officer).
"REVOLVING CREDIT COMMITMENT" shall mean, for each Revolving
Credit Lender, the obligation of such Lender to make Revolving Credit Loans in
an aggregate principal amount at any one time outstanding up to but not
exceeding the amount set opposite the name of such Lender on ANNEX A under the
caption "Revolving Credit Commitment" (as the same may be reduced from time to
time pursuant to Section 2.04 or changed pursuant to Section 12.06(b)). The
aggregate principal amount of the Revolving Credit Commitments on the Amendment
and Restatement Date is $47.0 million.
"REVOLVING CREDIT COMMITMENT PERCENTAGE" shall mean, with
respect to any Revolving Credit Lender, the ratio of (a) the amount of the
Revolving Credit Commitment of such Lender to (b) the aggregate amount of the
Revolving Credit Commitments of all of the Lenders.
"REVOLVING CREDIT COMMITMENT TERMINATION DATE" shall mean June
30, 2004.
"REVOLVING CREDIT COMMITMENTS" shall mean the aggregate sum of
the Revolving Credit Commitments of all of the Revolving Credit Lenders.
"REVOLVING CREDIT FACILITY" shall mean the credit facility
comprising the Revolving Credit Commitment of all of the Revolving Credit
Lenders.
"REVOLVING CREDIT LENDERS" shall mean (a) on the Amendment and
Restatement Date, the Lenders having Revolving Credit Commitments on the
signature pages hereof and (b) thereafter, the Lenders from time to time holding
Revolving Credit Loans and Revolving Credit Commitments after giving effect to
any assignments thereof permitted by Section 12.06(b).
"REVOLVING CREDIT LOANS" see Section 2.01(a).
"REVOLVING CREDIT NOTES" shall mean the promissory notes
provided for by Section 2.08(a) and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time.
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"SECURITY AGREEMENT" shall mean a Security Agreement
substantially in the form of EXHIBIT E among the Obligors and the
Administrative Agent, as the same may be amended in accordance with the terms
thereof and hereof or such other agreements reasonably acceptable to the
Administrative Agent as shall be necessary to comply with applicable
Requirements of Law and effective to grant to the Administrative Agent a
perfected first priority security interest (subject to Prior Liens, if any)
in the Pledged Collateral covered thereby.
"SECURITY DOCUMENTS" shall mean the Security Agreement, the
Mortgages and the Mortgage Amendments and each other security document or
pledge agreement required by applicable local law to grant a valid, perfected
security interest in any property or asset acquired or developed pursuant to
a Permitted Acquisition, and all UCC or other financing statements or
instruments of perfection required by this Agreement, the Security Agreement,
any Mortgage or any Mortgage Amendment to be filed with respect to the
security interests in Property and fixtures created pursuant to the Security
Agreement, any Mortgage or any Mortgage Amendment and any other document or
instrument utilized to pledge as collateral for the Obligations any Property
of whatever kind or nature.
"SENIOR DEBT" shall mean, at any date, Total Debt, LESS
Subordinated Debt of Borrower and the Subsidiaries on a consolidated basis.
"SENIOR LEVERAGE RATIO" shall mean, for any Test Date, the
ratio of (x) Senior Debt at such Test Date to (y) Consolidated EBITDA for the
Measurement Period ended on or immediately prior to such Test Date.
"SENIOR SUBORDINATED NOTES" shall mean the 10 1/2% Senior
Subordinated Notes due 2009 issued by Borrower pursuant to the Senior
Subordinated Notes Indenture, in an aggregate principal amount of $175.0
million, guaranteed by each of the Guarantors (other than Holdings) on a
senior subordinated basis, including the senior subordinated notes issued
pursuant to a registered exchange offer therefor.
"SENIOR SUBORDINATED NOTES INDENTURE" shall mean the
Indenture by and among Borrower, as issuer, each of the guarantors party
thereto from time to time and State Street Bank and Trust Company, as
trustee, dated as of May 17, 1999, as such may be amended and in effect from
time to time in accordance with its terms and this Agreement.
"SOLVENT" and "SOLVENCY" shall mean, for any Person on a
particular date, that on such date (a) the fair value of the Property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair
salable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as
they become absolute and matured, (c) such Person does not intend to, and
does not believe that it will, incur debts and liabilities beyond such
Person's ability to pay as such debts and liabilities mature, (d) such Person
is not engaged in a business or a transaction, and is not about to engage in
a business or a transaction, for which such Person's Property would
constitute an unreasonably small capital and (e) such Person is able to pay
its debts as they become due and payable.
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"STATE AND LOCAL REAL PROPERTY DISCLOSURE REQUIREMENTS"
shall mean any state or local laws requiring notification of the buyer of
real property, or notification, registration, or filing to or with any state
or local agency, prior to the sale of any Real Property or transfer of
control of an establishment, of the actual or threatened presence or release
into the environment, or the use, disposal, or handling of Hazardous
Materials on, at, under, or near the Real Property to be sold or the
establishment for which control is to be transferred.
"SUBORDINATED DEBT" shall mean the Senior Subordinated
Notes and any other Indebtedness of any Company that is subordinated to any
other Indebtedness of such Company.
"SUBORDINATION PROVISIONS" see Section 10.01(o).
"SUBSIDIARY" shall mean, with respect to any Person, any
corporation, partnership or other entity of which at least a majority of the
securities or other ownership interests having by the terms thereof ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership or
other entity shall have or might have voting power by reason of the happening
of any contingency) is at the time directly or indirectly owned or controlled
by such Person or one or more Subsidiaries of such Person or by such Person
and one or more Subsidiaries of such Person. Unless the context clearly
requires otherwise, all references to any Subsidiary shall mean a Subsidiary
of Borrower. All references to any Subsidiary of Borrower shall include all
those Persons which become Subsidiaries upon consummation of the Ellison
Acquisition.
"SUPERMAJORITY LENDERS" shall mean Lenders holding at least
two-thirds of the sum of (without duplication) (a) the aggregate principal
amount of outstanding Loans (other than Swing Loans), PLUS (b) the aggregate
amount of all Letter of Credit Liabilities, PLUS (c) the aggregate Unutilized
amount of Revolving Credit Commitments then in effect, PLUS (d) the aggregate
Term Loan Commitments then in effect, PLUS (e) in the case of the Swing Loan
Lender only, the aggregate amount of Swing Loans then outstanding.
"SUPERMAJORITY LENDERS OF THE AFFECTED CLASS" shall mean
Lenders holding at least two-thirds of the aggregate amount of the
Commitments of the applicable tranche of Term Loan Commitments which would be
affected by any modification, supplement or waiver contemplated by clause (f)
to the proviso to Section 12.04(i).
"SURETY INSTRUMENTS" shall mean all letters of credit
(including standby and commercial), bankers' acceptances, bank guarantees,
surety bonds and similar instruments.
"SURVEY" shall mean a survey of any Mortgaged Real Property
(and all improvements thereon): (i) prepared by a surveyor or engineer
licensed to perform surveys in the state, province or country where such
Mortgaged Real Property is located, (ii) dated (or redated) not earlier than
six months prior to the date of delivery thereof unless there shall have
occurred after the date of such survey any exterior construction on the site
of such Mortgaged Real Property, in which event such survey shall be dated
(or redated) after the completion of such construction or, if such
construction shall not
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have been completed as of such date of delivery, not earlier than 20 days
prior to such date of delivery, (iii) certified by the surveyor (in a manner
reasonably acceptable to the Administrative Agent) to the Administrative
Agent and (iv) complying in all material respects with Requirements of Law.
"SWAP CONTRACT" shall mean any agreement entered into in
the ordinary course of business (as a BONA FIDE hedge and not for speculative
purposes) (including any master agreement and any agreement, whether or not
in writing, relating to any single transaction) that is an interest rate swap
agreement, basis swap, forward rate agreement, commodity swap, commodity
option, forward commodity purchase agreement, equity or equity index swap or
option, bond option, interest rate option, foreign exchange agreement, rate
cap, collar or floor agreement, currency swap agreement, cross-currency rate
swap agreement, swaption, currency option or any other similar agreement
(including any option to enter into any of the foregoing) and is designed to
protect the Obligors against fluctuations in interest rates, currency
exchange rates, or similar risks (including any Interest Rate Protection
Agreement entered into pursuant to Section 9.18).
"SWING LOAN COMMITMENT" shall mean the obligation of the
Swing Loan Lender to make or continue Swing Loans hereunder in an aggregate
principal amount up to but not exceeding $5.0 million, as the same may be
reduced or terminated pursuant to Section 2.04 or Section 10, it being
understood that the Swing Loan Commitment is part of the Revolving Credit
Commitment of the Swing Loan Lender, rather than a separate, independent
commitment.
"SWING LOAN LENDER" shall mean Fleet National Bank and its
successors and assigns in such capacity.
"SWING LOAN MATURITY DATE" shall mean the Revolving Credit
Commitment Termination Date.
"SWING LOAN NOTE" shall mean the promissory note made by
Borrower evidencing the Swing Loans, in the form of EXHIBIT A-5.
"SWING LOANS" see Section 2.01(f).
"TAX RETURNS" see Section 8.09.
"TAX SHARING AGREEMENT" shall mean the Amended Tax Sharing
Agreement substantially in the form of EXHIBIT O among Holdings and each of
the Companies, as such may be amended and in effect from time to time in
accordance with its terms and this Agreement.
"TAXES" shall mean any and all taxes, imposts, duties,
charges, fees, levies or other charges or assessments of whatever nature,
including income, gross receipts, excise, real or personal property, sales,
withholding, social security, retirement, unemployment, occupation, use,
service, license, net worth, payroll, franchise, and transfer and recording,
imposed by the Internal Revenue Service or any taxing authority (whether
domestic or foreign, including any federal, state, U.S. possession, county,
local or foreign government or any subdivision or taxing agency thereof),
whether computed on a separate, consolidated, unitary, combined or any other
basis, including interest, fines,
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penalties or additions to tax attributable to or imposed on or with respect
to any such taxes, charges, fees, levies or other assessments.
"TERM LOAN COMMITMENTS" shall mean the Tranche A Term Loan
Commitments, the Tranche B Term Loan Commitments and the Tranche C Term Loan
Commitments, collectively.
"TERM LOAN FACILITIES" shall mean the credit facilities
comprising the Term Loan Commitments.
"TERM LOAN LENDERS" shall mean the Tranche A Term Loan
Lenders, the Tranche B Term Loan Lenders and the Tranche C Term Loan Lenders,
collectively.
"TERM LOAN NOTES" shall mean the Tranche A Term Loan Notes,
the Tranche B Term Loan Notes and the Tranche C Term Loan Notes, collectively.
"TERM LOAN TRANCHES" shall mean the Term Loans outstanding
under the Tranche A Term Loans, the Tranche B Term Loans and the Tranche C
Term Loans, collectively, and "TERM LOAN TRANCHE" shall mean any of them.
"TERM LOANS" shall mean the Tranche A Term Loans, the
Tranche B Term Loans and the Tranche C Term Loans, collectively.
"TEST DATE" shall mean, for any Financial Maintenance
Covenant, the last day of each fiscal quarter included within any period set
forth in the table for such Financial Maintenance Covenant. Compliance with
the Financial Maintenance Covenants shall be tested, as of each Test Date, on
the date on which financial statements pursuant to Section 9.01(a) or (b)
have been, or should have been, delivered for the applicable fiscal period.
"TITLE COMPANY" shall mean First American Title Insurance
Company or such other title insurance or abstract company as shall be
designated by the Lead Arranger.
"TOTAL DEBT" shall mean, at any date, the aggregate amount
of Indebtedness of Borrower and its Consolidated Subsidiaries as of such date
determined on a consolidated basis in accordance with GAAP.
"TOTAL LEVERAGE RATIO" shall mean, for any Test Date, the
ratio of (x) Total Debt at such Test Date to (y) Consolidated EBITDA for the
Measurement Period ended on or immediately prior to such Test Date.
"TRANCHE A TERM LOAN COMMITMENT" shall mean, for each
Tranche A Term Loan Lender, the obligation of such Lender to make on the
Amendment and Restatement Date a Tranche A Term Loan in an amount up to but
not exceeding the amount set opposite the name of such Lender on ANNEX A
under the caption "Tranche A Term Loan Commitment" (as the same may be
changed pursuant to Section 12.06(b)). The aggregate principal amount of the
Tranche A Term Loan Commitments on the Amendment and Restatement Date is
$14.0 million.
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"TRANCHE A TERM LOAN COMMITMENTS" shall mean the aggregate
sum of the Tranche A Term Loan Commitment of all the Lenders.
"TRANCHE A TERM LOAN LENDERS" shall mean (a) on the
Amendment and Restatement Date, the Lenders having Tranche A Term Loan
Commitments, and (b) thereafter, the Lenders from time to time holding
Tranche A Term Loans and Tranche A Term Loan Commitments after giving effect
to any assignments thereof permitted by Section 12.06(b).
"TRANCHE A TERM LOAN NOTES" shall mean the promissory notes
provided for by Section 2.08(a)(ii) and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time.
"TRANCHE A TERM LOANS" shall mean the loans provided for by
Section 2.01(b), which may be ABR Loans and/or LIBOR Loans.
"TRANCHE B TERM LOAN COMMITMENT" shall mean, for each
Tranche B Term Loan Lender, the obligation of such Lender to make on the
Amendment and Restatement Date a Tranche B Term Loan in an amount up to but
not exceeding the amount set opposite the name of such Lender on ANNEX A
under the caption "Tranche B Term Loan Commitment" (as the same may be
changed pursuant to Section 12.06(b)). The aggregate principal amount of the
Tranche B Term Loan Commitments on the Amendment and Restatement Date is
$12.0 million.
"TRANCHE B TERM LOAN COMMITMENTS" shall mean the aggregate
sum of the Tranche B Term Loan Commitment of all the Lenders.
"TRANCHE B TERM LOAN LENDERS" shall mean (a) on the
Amendment and Restatement Date, the Lenders having Tranche B Term Loan
Commitments or having Tranche B Term Loans outstanding, and (b) thereafter,
the Lenders from time to time holding Tranche B Term Loans and Tranche B Term
Loan Commitments after giving effect to any assignments thereof permitted by
Section 12.06(b).
"TRANCHE B TERM LOAN NOTES" shall mean the promissory notes
provided for by Section 2.08(a)(iii) and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time.
"TRANCHE B TERM LOANS" shall mean the loans provided for by
Section 2.01(c), which may be ABR Loans and/or LIBOR Loans.
"TRANCHE C TERM LOAN COMMITMENT" shall mean, for each
Tranche C Term Loan Lender, the obligation of such Lender to make on the
Amendment and Restatement Date a Tranche C Term Loan in an amount up to but
not exceeding the amount set opposite the name of such Lender on ANNEX A
under the caption "Tranche C Term Loan Commitment" (as the same may be
changed pursuant to Section 12.06(b)). The aggregate principal amount of the
Tranche C Term Loan Commitments on the Amendment and Restatement Date is
$12.0 million.
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"TRANCHE C TERM LOAN COMMITMENT PERCENTAGE" shall mean,
with respect to any Tranche C Term Loan Lender, the ratio of (a) the amount
of the Tranche C Term Loan Commitment of such Lender to (b) the Tranche C
Term Loan Commitments.
"TRANCHE C TERM LOAN COMMITMENTS" shall mean the aggregate
sum of the Tranche C Term Loan Commitment of all the Lenders.
"TRANCHE C TERM LOAN LENDERS" shall mean (a) on the
Amendment and Restatement Date, the Lenders having Tranche C Term Loan
Commitments or having Tranche C Term Loans outstanding, and (b) thereafter,
the Lenders from time to time holding Tranche C Term Loans and Tranche C Term
Loan Commitments after giving effect to any assignments thereof permitted by
Section 12.06(b).
"TRANCHE C TERM LOAN NOTES" shall mean the promissory notes
provided for by Section 2.08(a)(iv) and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time.
"TRANCHE C TERM LOANS" shall mean the loans provided for by
Section 2.01(d), which may be ABR Loans and/or LIBOR Loans.
"TRANSACTION DOCUMENTS" shall mean collectively the
Original Transaction Documents and the Amended and Restated Transaction
Documents.
"TRANSACTIONS" shall mean the Original Transactions and the
Amended and Restated Transactions collectively.
"TYPE" see Section 1.03.
"UCC" shall mean the Uniform Commercial Code as in effect
in the applicable state or jurisdiction.
"UNUTILIZED REVOLVING CREDIT COMMITMENT" shall mean, for
any Revolving Credit Lender, at any time, the excess of such Lender's
Revolving Credit Commitment at such time over the sum of (i) the aggregate
outstanding principal amount of Revolving Credit Loans made by such Lender,
(ii) such Lender's Revolving Credit Commitment Percentage of the aggregate
amount of Letter of Credit Liabilities at such time and (iii) with respect to
the Swing Loan Lender only, the aggregate principal amount of Swing Loans
then outstanding.
"U.S. LENDER" see Section 5.06(b).
"WHOLLY OWNED SUBSIDIARY" shall mean, with respect to any
Person, any corporation, partnership or other entity of which all of the
Equity Interests (other than, in the case of a corporation, directors'
qualifying shares or nominee shares required under applicable law) are
directly or indirectly owned or controlled by such Person or one or more
Wholly Owned Subsidiaries of such Person or by such Person and one or more
Wholly Owned Subsidiaries of such Person. Unless the context clearly
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requires otherwise, all references to any Wholly Owned Subsidiary shall mean
a Wholly Owned Subsidiary of Borrower.
"WING II PROPERTY" see the definition of Mt. Pleasant
Acquisition/Wing II Acquisition.
"WING ASSET SALE" shall mean the disposition of certain
assets related to Borrower's residential door business pursuant to an Asset
Purchase Agreement (the "WING PURCHASE AGREEMENT") dated June 30, 2000 by and
among Borrower, Wing Industries, Inc., a Texas corporation and subsidiary of
Borrower, and Premdor Corporation, a Michigan corporation.
"WING PURCHASE AGREEMENT" see the definition of Wing Asset
Sale.
"WING ASSET SALE DOCUMENTS" shall mean the Wing Purchase
Agreement including all schedules, exhibits, appendices, annexes and
attachments and amendments thereto and, in each case, as amended and in
effect from time to time in accordance with their respective terms and this
agreement.
"WITHDRAWAL LIABILITY" shall mean liability to a
Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part 1 of Subtitle E of
Title IV of ERISA.
"WORKING CAPITAL" shall mean an amount determined for
Borrower and the Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP) equal to the sum of all current assets
(other than cash) less the sum of all current liabilities (other than the
current portion of long-term Indebtedness and the current portion of deferred
tax assets or liabilities).
1.02. ACCOUNTING TERMS AND DETERMINATIONS. Except as
otherwise provided in this Agreement, all computations and determinations as
to accounting or financial matters (including financial covenants) shall be
made in accordance with GAAP consistently applied for all applicable periods,
and all accounting or financial terms shall have the meanings ascribed to
such terms by GAAP. All financial statements to be delivered pursuant to this
Agreement shall be prepared in accordance with GAAP. All financial covenants
are to be calculated in accordance with GAAP as in effect on the Original
Closing Date unless such modifications are agreed to by the parties hereto.
1.03. CLASSES AND TYPES OF LOANS. Loans hereunder are
distinguished by "Class" and by "Type". The "CLASS" of a Loan (or of a
Commitment to make a Loan) refers to whether such Loan is a Revolving Credit
Loan, Tranche A Term Loan, Tranche B Term Loan or Tranche C Term Loan, each
of which constitutes a Class. The "TYPE" of a Loan refers to whether such
Loan is an ABR Loan or a LIBOR Loan, each of which constitutes a Type. Loans
may be identified by both Class and Type.
1.04. RULES OF CONSTRUCTION. (a) In this Agreement and each
other Credit Document, unless the context clearly requires otherwise (or such
other Credit Document clearly provides otherwise), references to (i) the
plural include the singular, the singular the plural and the part the whole;
(ii) Persons include their respective permitted successors and assigns or, in
the case of
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governmental Persons, Persons succeeding to the relevant functions of such
Persons; (iii) agreements (including this Agreement), promissory notes and
other contractual instruments include subsequent amendments, assignments, and
other modifications thereto, but only to the extent such amendments,
assignments or other modifications thereto are not prohibited by their terms
or the terms of any Credit Document; (iv) statutes and related regulations
include any amendments of same and any successor statutes and regulations;
and (v) time shall be a reference to New York time. Where any provision
herein refers to action to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether such
action is taken directly or indirectly by such Person.
(b) In this Agreement and each other Credit Document,
unless the context clearly requires otherwise (or such other Credit Document
clearly provides otherwise), (i) "AMEND" shall mean "amend, restate, amend
and restate, supplement or modify"; and "AMENDED," "AMENDING" and "AMENDMENT"
shall have meanings correlative to the foregoing; (ii) in the computation of
periods of time from a specified date to a later specified date, "FROM" shall
mean "from and including"; "TO" and "UNTIL" shall mean "to but excluding";
and "THROUGH" shall mean "to and including"; (iii) "HEREOF," "HEREIN" and
"HEREUNDER" (and similar terms) in this Agreement or any other Credit
Document refer to this Agreement or such other Credit Document, as the case
may be, as a whole and not to any particular provision of this Agreement or
such other Credit Document; (IV) "INCLUDING" (and similar terms) shall mean
"including without limitation" (and similarly for similar terms); (v) "OR"
has the inclusive meaning represented by the phrase "and/or"; (vi)
"SATISFACTORY TO" any Creditor shall mean in form, scope and substance and on
terms and conditions reasonably satisfactory to such Creditor; (vii)
references to "THE DATE HEREOF" shall mean the Amendment and Restatement
Date; PROVIDED, HOWEVER, that in the Credit Documents other than this
Agreement, unless the context clearly otherwise requires, such term means the
Original Closing Date; and (viii) "ASSET" and "PROPERTY" shall have the same
meaning and effect and refer to all tangible and intangible assets and
property, whether real, personal or mixed and of every type and description.
(c) In this Agreement unless the context clearly requires
otherwise, any reference to (i) an Annex, Exhibit or Schedule is to an Annex,
Exhibit or Schedule, as the case may be, attached to this Agreement and
constituting a part hereof, and (ii) a Section or other subdivision is to a
Section or such other subdivision of this Agreement.
(d) No doctrine of construction of ambiguities in
agreements or instruments against the interests of the party controlling the
drafting thereof shall apply to any Credit Document.
1.05. EFFECT ON ORIGINAL CREDIT AGREEMENT AND OTHER CREDIT
DOCUMENTS. Upon the execution and delivery by the parties hereto of this
Agreement and the satisfaction (or waiver) of the conditions set forth in
Section 7.02, (a) this Agreement shall be deemed to amend, restate and
supersede the Original Credit Agreement, except that the grants of security
interests, mortgages and Liens under and pursuant to the Credit Documents
shall continue unaltered, and each other Credit Document shall continue in
full force and effect in accordance with its terms, and the parties hereto
hereby ratify and confirm the terms thereof as being in full force and effect
and unaltered by this Agreement; (b) all Obligations (including all
indemnities) under the Original Credit Agreement and the other Credit
Documents shall continue to be outstanding except as expressly modified by
this Agreement and shall
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be governed in all respects by this Agreement and the other Credit Documents,
it being agreed and understood that this Agreement does not constitute a
novation, satisfaction, payment or reborrowing of any Obligation under the
Original Credit Agreement or any other Credit Document except as expressly
modified by this Agreement, nor does it operate as a waiver of any right,
power or remedy of any Lender under any Credit Document (other than the
Original Credit Agreement); and (c) all references to the Original Credit
Agreement in any Credit Document or other document or instrument delivered in
connection therewith shall be deemed to refer to this Agreement and the
provisions hereof.
Section 2. COMMITMENTS, LETTERS OF CREDIT, FEES, REGISTER,
PREPAYMENTS AND REPLACEMENT OF LENDERS.
2.01. LOANS.
(a) REVOLVING CREDIT LOANS. Each Revolving Credit Lender
severally agrees, on the terms and conditions of this Agreement, to make
revolving credit loans (the "REVOLVING CREDIT LOANS") to Borrower in Dollars
during the period from and including the Amendment and Restatement Date to
but not including the Revolving Credit Commitment Termination Date in an
aggregate principal amount at any one time outstanding not exceeding the
amount of the Revolving Credit Commitment of such Lender as in effect from
time to time; PROVIDED, HOWEVER, that in no event shall the sum of the
aggregate principal amount of (without duplication) all Revolving Credit
Loans then outstanding, PLUS the aggregate principal amount of Swing Loans
then outstanding, PLUS the aggregate amount of all Letter of Credit
Liabilities at any time exceed the aggregate amount of the Revolving Credit
Commitments as in effect at such time. Subject to the terms and conditions of
this Agreement, during such period Borrower may borrow, repay and reborrow
the amount of the Revolving Credit Commitments by means of ABR Loans and
LIBOR Loans and may Convert Revolving Credit Loans of one Type into Revolving
Credit Loans of another Type (as provided in Section 2.09) or Continue
Revolving Credit Loans of one Type as Revolving Credit Loans of the same Type
(as provided in Section 2.09).
(b) TRANCHE A TERM LOANS. Each Lender having a Tranche A
Term Loan Commitment severally agrees, on the terms and conditions of this
Agreement, to make a single term loan to Borrower in Dollars on the Amendment
and Restatement Date in an aggregate principal amount equal to its Tranche A
Term Loan Commitment, such loan to be used to finance the Amended and
Restated Transactions and to pay related fees and expenses. Subject to the
terms and conditions of this Agreement, on and after the Amendment and
Restatement Date, Borrower may Convert Tranche A Term Loans of one Type into
Tranche A Term Loans of another Type (as provided in Section 2.09) or
Continue Tranche A Term Loans of one Type as Tranche A Term Loans of the same
Type (as provided in Section 2.09).
Tranche A Term Loans that are repaid or prepaid may not be
reborrowed.
(c) TRANCHE B TERM LOANS. Tranche B Term Loans in the
amount of $58,250,000 are outstanding on the Amendment and Restatement Date
prior to the making of any additional Tranche B Term Loans in connection with
the Amended and Restated Transactions. Each Lender having a
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Tranche B Term Loan Commitment severally agrees, on the terms and conditions
of this Agreement, to make a single term loan to Borrower in Dollars on the
Amendment and Restatement Date in an aggregate principal amount equal to its
Tranche B Term Loan Commitment, such loan to be used to finance the Amended
and Restated Transactions and to pay related fees and expenses. Subject to
the terms and conditions of this Agreement, on and after the Amendment and
Restatement Date, Borrower may Convert Tranche B Term Loans of one Type into
Tranche B Term Loans of another Type (as provided in Section 2.09) or
Continue Tranche B Term Loans of one Type as Tranche B Term Loans of the same
Type (as provided in Section 2.09).
Tranche B Term Loans that are repaid or prepaid may not be
reborrowed.
(d) TRANCHE C TERM LOANS. Tranche C Term Loans in the
amount of $69,180,000 are outstanding on the Amendment and Restatement Date
prior to the making of any additional Tranche C Term Loans in connection with
the Amended and Restated Transactions. Each Lender having a Tranche C Term
Loan Commitment severally agrees, on the terms and conditions of this
Agreement, to make a single term loan to Borrower in Dollars on the Amendment
and Restatement Date in an aggregate principal amount equal to its Tranche C
Term Loan Commitment, such loan to be used to finance the Amended and
Restated Transactions and to pay related fees and expenses. Subject to the
terms and conditions of this Agreement, on and after the Amendment and
Restatement Date, Borrower may Convert Tranche C Term Loans of one Type into
Tranche C Term Loans of another Type (as provided in Section 2.09) or
Continue Tranche C Term Loans of one Type as Tranche C Term Loans of the same
Type (as provided in Section 2.09).
Tranche C Term Loans that are repaid or prepaid may not be
reborrowed.
(e) LIMIT ON LIBOR LOANS. No more than 10 separate Interest
Periods in respect of LIBOR Loans of each Class may be outstanding at any one
time. Unless consented to by the Lead Arranger in its sole discretion, no
LIBOR Loans (other than 7-day LIBOR Loans) may be made prior to the earlier
of (x) completion of the primary syndication of the Commitments and Loans, as
determined by the Lead Arranger, and (y) 30 days after the Amendment and
Restatement Date.
(f) SWING LOANS. Subject to the terms and conditions of
this Agreement, upon request of Borrower, the Swing Loan Lender agrees to
make one or more swing loans to Borrower from time to time from and including
the Amendment and Restatement Date to but excluding the Swing Loan Maturity
Date, up to but not exceeding the amount of the Swing Loan Lender's Swing
Loan Commitment as then in effect. (Such swing loans referred to in this
Section 2.01(f) now or hereafter made by the Swing Loan Lender to Borrower
from and including the Closing Date to but excluding the Swing Loan Maturity
Date are hereinafter collectively called the "SWING LOANS.") Prior to the
Swing Loan Maturity Date, Borrower may borrow, repay and reborrow Swing Loans
up to the Swing Loan Commitment in accordance with the terms of this
Agreement. The Swing Loan Lender shall not make any Swing Loans on or after
the Swing Loan Maturity Date. Notwithstanding anything to the contrary
contained in this Section 2.01(f) or elsewhere in this Agreement, the Swing
Loan Lender shall not be obligated, pursuant to this Section 2.01(f) or
otherwise, to make any Swing Loan to or for the account of Borrower, and
Borrower shall not be entitled to borrow, pursuant to this Sec-
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tion 2.01(f), if, after giving full effect to the requested Swing Loan, the
aggregate outstanding amount of Revolving Credit Loans, PLUS the aggregate
outstanding amount of Swing Loans, PLUS the aggregate outstanding Letter of
Credit Liabilities would exceed the aggregate amount of the Revolving Credit
Commitments as in effect at such time. Notwithstanding anything herein or
elsewhere to the contrary, the Swing Loans will be made and maintained only
as ABR Loans. The Swing Loan Lender shall not make any Swing Loan after
receiving a written notice from Borrower or the Majority Revolving Credit
Lenders stating that a Default exists and is continuing until such time as
the Swing Loan Lender shall have received written notice of (i) rescission of
all such notices from the party or parties originally delivering such notice,
(ii) the waiver of such Default by the Majority Lenders, or (iii) the
Administrative Agent's good faith determination that such Default has ceased
to exist. Swing Loans shall be made in minimum amounts of $250,000 and
integral multiples of $250,000 above such amount.
Upon the occurrence of a Default, each Revolving Credit
Lender shall be deemed to have purchased (and each Revolving Credit Lender
hereby irrevocably agrees to purchase on a PRO RATA basis (based upon each
Revolving Credit Lender's Revolving Credit Commitment)) an irrevocable
participation in all outstanding Swing Loans, together with all accrued
interest thereon, without any further action by or on behalf of the Swing
Loan Lender, any other Lender, Borrower or any other Person. Upon one
Business Day's notice from the Swing Loan Lender, each other Revolving Credit
Lender shall deliver to the Swing Loan Lender an amount equal to its
respective participation in such Swing Loan (as determined pursuant to the
immediately preceding sentence) in cash. In order to evidence such
participation, each Revolving Credit Lender agrees to enter into a
participation agreement at the request of the Swing Loan Lender in form and
substance satisfactory to the Swing Loan Lender and the Revolving Credit
Lender. If any Revolving Credit Lender fails to make available to the Swing
Loan Lender the amount of such Revolving Credit Lender's participation as
provided in this paragraph, the Swing Loan Lender shall be entitled to
recover such amount on demand from such Revolving Credit Lender, together
with interest thereon at the Federal Funds Rate until such amount is paid in
full in cash. In the event the Swing Loan Lender receives a payment from
Borrower or any other Obligor of any amount in which the Revolving Credit
Lenders have purchased participations as provided in this paragraph, the
Swing Loan Lender shall promptly distribute to each Revolving Credit Lender
its PRO RATA share of such payment. Anything contained in this Agreement or
otherwise to the contrary notwithstanding, (A) each Revolving Credit Lender's
obligation to purchase a participation in each unpaid Swing Loan shall be
absolute and unconditional and shall not be affected by any circumstances,
including, without limitation, (1) any setoff, counterclaim, recoupment,
defense or other right which such Revolving Credit Lender may now or
hereafter have against the Swing Loan Lender, Borrower or any other Person
for any reason whatsoever, (2) the occurrence or continuation of a Default or
an Event of Default, (3) any material adverse change in the condition of
Borrower or any Subsidiary, (4) any breach or default of this Agreement or
any of the Security Documents by any Person, or (5) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing, and (B) the Swing Loan Lender shall not have any obligation to
make any Swing Loans if (1) Borrower fails for whatever reason to satisfy any
of the conditions precedent set forth in Section 7.03 or (2) any Revolving
Credit Lender fails for whatever reason to comply with its obligations under
this Section 2.01(f).
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2.02. BORROWINGS. Borrower shall give the Administrative Agent
notice of each borrowing hereunder as provided in Section 4.05. The form of such
notice of borrowing shall be substantially in the form of EXHIBIT I. Not later
than 1 p.m. New York time on the date specified for each borrowing hereunder,
each Lender shall make available the amount of the Loan or Loans to be made by
it on such date to the Administrative Agent, at an account specified by the
Administrative Agent maintained at the Principal Office, in immediately
available funds, for the account of Borrower. Each borrowing of Revolving Credit
Loans shall be made by each Revolving Credit Lender PRO RATA based on such
Lender's Revolving Credit Commitment Percentage. The amounts so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to Borrower by depositing the same, in immediately
available funds, in an account of Borrower maintained with the Administrative
Agent at the Principal Office designated by Borrower.
2.03. LETTERS OF CREDIT. Subject to the terms and
conditions hereof, the Revolving Credit Commitments may be utilized, upon the
request of Borrower, in addition to the Revolving Credit Loans provided for
by Section 2.01(a), for standby and commercial documentary letters of credit
(herein collectively called "LETTERS OF CREDIT") issued by the Issuing Lender
for the account of Borrower or any Subsidiary which is an Obligor (PROVIDED,
that Borrower shall be a co-applicant (and jointly and severally liable) with
respect to each Letter of Credit issued for the account of any such
Subsidiary); PROVIDED, HOWEVER, that in no event shall (i) the aggregate
amount of all Letter of Credit Liabilities, PLUS the aggregate principal
amount of the Revolving Credit Loans then outstanding, PLUS the aggregate
principal amount of Swing Loans then outstanding exceed at any time the
Revolving Credit Commitments as in effect at such time, (ii) the sum of the
aggregate principal amount of Revolving Credit Loans then outstanding made by
any Revolving Credit Lender, PLUS such Lender's PRO RATA share (based on the
Revolving Credit Commitments) of the aggregate principal amount of Swing
Loans then outstanding, PLUS such Lender's PRO RATA share (based on the
Revolving Credit Commitments) of the aggregate amount of all Letter of Credit
Liabilities exceed such Lender's Revolving Credit Commitment as in effect at
such time, (iii) the outstanding aggregate amount of all Letter of Credit
Liabilities exceed $10.0 million, (iv) the face amount of any Letter of
Credit be less than $10,000, (v) the expiration date of any Letter of Credit
extend beyond the earlier of (x) the fifth Business Day preceding the
Revolving Credit Commitment Termination Date and (y) the date twelve months
following the date of such issuance for standby Letters of Credit or 180 days
after the date of such issuance for commercial documentary Letters of Credit,
unless the Majority Revolving Credit Lenders have approved such expiry date
in writing (but never beyond the fifth Business Day prior to the Revolving
Credit Commitment Termination Date); PROVIDED, HOWEVER, that any standby
Letter of Credit may be automatically extendible for periods of up to one
year (but never beyond the fifth Business Day preceding the Revolving Credit
Commitment Termination Date) so long as such Letter of Credit provides that
the Issuing Lender retains an option satisfactory to the Issuing Lender to
terminate such Letter of Credit prior to each extension date, unless the
Majority Revolving Credit Lenders have approved such expiry date in writing,
or (vi) the Issuing Lender issue any Letter of Credit after it has received
notice from Borrower or the Majority Revolving Credit Lenders stating that a
Default exists until such time as the Issuing Lender shall have received
written notice of (x) rescission of such notice from the Majority Revolving
Credit Lenders, (y) waiver of such Default in accordance with this Agreement
or (z) the Administrative Agent's good faith determination that such Default
has ceased to exist. The following additional provisions shall apply to
Letters of Credit:
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(a) Borrower shall give the Administrative Agent at least
three Business Days' irrevocable prior notice (effective upon receipt)
specifying the date (which shall be no later than thirty days preceding
the Revolving Credit Termination Date) each Letter of Credit is to be
issued and describing in reasonable detail the proposed terms of such
Letter of Credit (including the beneficiary thereof) (including whether
such Letter of Credit is to be a commercial Letter of Credit or a
standby Letter of Credit). Upon receipt of any such notice, the
Administrative Agent shall advise the Issuing Lender of the contents
thereof. Each Lender hereby authorizes the Issuing Lender to issue, and
perform its obligations under, Letters of Credit. Letters of Credit
shall be issued in accordance with the customary procedures of the
Issuing Lender, which may include an application for Letters of Credit.
The Issuing Lender may refuse to issue any Letter of Credit the
contents of which are not reasonably satisfactory to it. If there is
any conflict between the procedures required by the Issuing Lender and
this Agreement, this Agreement shall govern.
(b) On each day during the period commencing with the issuance
by the Issuing Lender of any Letter of Credit and until such Letter of
Credit shall have expired or been terminated, the Revolving Credit
Commitment of each Revolving Credit Lender shall be deemed to be
utilized for all purposes hereof in an amount equal to such Lender's
Revolving Credit Commitment Percentage of the then undrawn face amount
of such Letter of Credit. Each Revolving Credit Lender (other than the
Issuing Lender) agrees that, upon the issuance of any Letter of Credit
hereunder, it shall automatically acquire a participation in the
Issuing Lender's liability under such Letter of Credit in an amount
equal to such Lender's Revolving Credit Commitment Percentage of such
liability, and each Revolving Credit Lender (other than the Issuing
Lender) thereby shall absolutely, unconditionally and irrevocably
assume, as primary obligor and not as surety, and shall be
unconditionally obligated to the Issuing Lender to pay and discharge
when due, its Revolving Credit Commitment Percentage of the Issuing
Lender's liability under such Letter of Credit. The Issuing Lender
shall be deemed to hold a Letter of Credit Liability in an amount equal
to its retained interest in the related Letter of Credit after giving
effect to such acquisition by the Revolving Credit Lenders other than
the Issuing Lender of their participation interests.
(c) Upon the making of any payment to the beneficiary of any
Letter of Credit, the Issuing Lender shall promptly notify Borrower
(through the Administrative Agent) of the amount paid by the Issuing
Lender and the date on which payment was made to such beneficiary.
Borrower hereby unconditionally agrees to pay and reimburse the Issuing
Lender for the amount of payment under such Letter of Credit, together
with interest thereon at the Alternate Base Rate plus the Applicable
Margin applicable to Revolving Credit Loans from the date payment was
made to such beneficiary to the date on which payment is due, not later
than the next Business Day after the date on which Borrower receives
such notice from the Issuing Lender. Any such payment due from Borrower
and not paid on the required date shall bear interest at rates
specified in Section 3.02(b).
(d) Forthwith upon its receipt of a notice referred to in
clause (c) of this Section 2.03, Borrower shall advise the Issuing
Lender whether or not Borrower intends to borrow
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hereunder to finance its obligation to reimburse the Issuing Lender
for the amount of the related demand for payment and, if it does,
submit a notice of such borrowing as provided in Section 4.05. In
the event that Borrower fails to so advise the Administrative
Agent, or if Borrower fails to reimburse the Issuing Lender for a
demand for payment under a Letter of Credit by the next Business
Day after the date of such notice, the Administrative Agent shall
give each Revolving Credit Lender prompt notice of the amount of
the demand for payment, specifying such Lender's Revolving Credit
Commitment Percentage of the amount of the related demand for
payment.
(e) Each Revolving Credit Lender (other than the Issuing
Lender) shall pay to the Administrative Agent for account of the
Issuing Lender at the Principal Office in Dollars and in immediately
available funds, the amount of such Lender's Revolving Credit
Commitment Percentage of any payment under a Letter of Credit upon not
less than one Business Day's notice by the Issuing Lender (through the
Administrative Agent) to such Revolving Credit Lender requesting such
payment and specifying such amount. Each such Revolving Credit Lender's
obligation to make such payments to the Administrative Agent for
account of the Issuing Lender under this clause (e), and the Issuing
Lender's right to receive the same, shall be absolute and unconditional
and shall not be affected by any circumstance whatsoever, including (i)
the failure of any other Revolving Credit Lender to make its payment
under this clause (e), (ii) the financial condition of Borrower or the
existence of any Default or Event of Default or (iii) the termination
of the Commitments. Each such payment to the Issuing Lender shall be
made without any offset, abatement, withholding or reduction
whatsoever.
(f) Upon the making of each payment by a Revolving Credit
Lender to the Issuing Lender pursuant to clause (e) above in respect of
any Letter of Credit, such Lender shall, automatically and without any
further action on the part of the Administrative Agent, the Issuing
Lender or such Lender, acquire (i) a participation in an amount equal
to such payment in the Reimbursement Obligation owing to the Issuing
Lender by Borrower hereunder and under the Letter of Credit Documents
relating to such Letter of Credit and (ii) a participation in a
percentage equal to such Lender's Revolving Credit Commitment
Percentage in any interest or other amounts payable by Borrower
hereunder and under such Letter of Credit Documents in respect of such
Reimbursement Obligation. Upon receipt by the Issuing Lender from or
for the account of Borrower of any payment in respect of any
Reimbursement Obligation or any such interest or other amounts
(including by way of setoff or application of proceeds of any
collateral security) the Issuing Lender shall promptly pay to the
Administrative Agent for account of each Revolving Credit Lender which
has satisfied its obligations under clause (e) above, such Revolving
Credit Lender's Revolving Credit Commitment Percentage of such payment,
each such payment by the Issuing Lender to be made in the same money
and funds in which received by the Issuing Lender. In the event any
payment received by the Issuing Lender and so paid to the Revolving
Credit Lenders hereunder is rescinded or must otherwise be returned by
the Issuing Lender, each Revolving Credit Lender shall, upon the
request of the Issuing Lender (through the Administrative Agent), repay
to the Issuing Lender (through the Administrative Agent) the amount of
such payment paid to such Lender, with interest at the rate specified
in clause (i) of this Section 2.03.
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(g) Borrower shall pay to the Administrative Agent for the
account of the Issuing Lender in respect of each Letter of Credit a
letter of credit commission in an amount (not less than $250) equal to
(x) the rate PER ANNUM equal to the Applicable Margin for Revolving
Credit Loans that are LIBOR Loans in effect from time to time,
multiplied by (y) the daily average undrawn face amount of such Letter
of Credit for the period from and including the date of issuance of
such Letter of Credit (i) in the case of a Letter of Credit which
expires in accordance with its terms, to and including such expiration
date and (ii) in the case of a Letter of Credit which is drawn in full
or is otherwise terminated other than on the stated expiration date of
such Letter of Credit, to but excluding the date such Letter of Credit
is drawn in full or is terminated, such fee to be non-refundable and to
be paid in arrears quarterly, on each Quarterly Date (or such $250 PER
ANNUM fee to be paid on the date of issuance of the applicable Letter
of Credit), and on the earlier of the Revolving Credit Commitment
Termination Date or the date of the termination of the Revolving Credit
Commitments or the date of such termination, expiration or the Business
Day subsequent to notice of a drawing. The Issuing Lender shall pay to
the Administrative Agent for account of each Revolving Credit Lender
(other than the Issuing Lender), from time to time at reasonable
intervals (but in any event at least quarterly), but only to the extent
actually received from Borrower, an amount equal to such Lender's
Revolving Credit Commitment Percentage of all letter of credit
commissions referred to in the first sentence of this clause (g). In
addition, Borrower shall pay to the Administrative Agent for account of
the Issuing Lender only in respect of each Letter of Credit a letter of
credit issuance fee in an amount equal to, in the case of standby
Letters of Credit, 0.25% PER ANNUM multiplied by the original face
amount, and, in the case of documentary Letters of Credit, 0.25% PER
ANNUM multiplied by the average daily outstanding amount, in each case
from the issue date through the expiry date of such Letter of Credit
(but in no event less than $500 per Letter of Credit), such amount to
be payable quarterly in arrears on each Quarterly Date, plus all
charges, costs and expenses in the amounts customarily charged by the
Issuing Lender from time to time in like circumstances with respect to
the issuance, amendment or transfer of each Letter of Credit and
drawings and other transactions relating thereto.
(h) Promptly following the end of each calendar month, the
Issuing Lender shall deliver (through the Administrative Agent) to each
Revolving Credit Lender and Borrower a notice describing the aggregate
amount of all Letters of Credit outstanding at the end of such month.
Upon the request of any Revolving Credit Lender from time to time, the
Issuing Lender shall deliver any other information reasonably requested
by such Lender with respect to each Letter of Credit then outstanding.
(i) To the extent that any Revolving Credit Lender fails to
pay an amount required to be paid pursuant to clause (e) or (f) of this
Section 2.03 on the due date therefor, such Lender shall pay interest
to the Issuing Lender (through the Administrative Agent) on such amount
from and including such due date to but excluding the date such payment
is made (i) during the period from and including such due date to but
excluding the date three Business Days thereafter, at a rate PER ANNUM
equal to the Federal Funds Rate (as in effect from time to time)
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and (ii) thereafter, at a rate PER ANNUM equal to the post-default
rate (as in effect from time to time) pursuant to Section 3.02(b)(y).
(j) The issuance by the Issuing Lender of any modification or
supplement to any Letter of Credit hereunder that would extend the
expiry date or increase the face amount thereof shall be subject to the
same conditions applicable under this Section 2.03 to the issuance of
new Letters of Credit, and no such modification or supplement shall be
issued hereunder unless either (x) the respective Letter of Credit
affected thereby would have complied with such conditions had it
originally been issued hereunder in such modified or supplemented form
or (y) each Revolving Credit Lender shall have consented thereto.
(k) Notwithstanding the foregoing, the Issuing Lender shall
not be under any obligation to issue any Letter of Credit if at the
time of such issuance, any order, judgment or decree of any
Governmental Authority or arbitrator shall purport by its terms to
enjoin or restrain the Issuing Lender from issuing such Letter of
Credit or any requirement of law applicable to the Issuing Lender or
any request or directive (whether or not having the force of law) from
any Governmental Authority shall prohibit, or request that the Issuing
Lender refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon such Issuing
Lender with respect to such Letter of Credit any restriction or reserve
or capital requirement (for which the Issuing Lender is not otherwise
compensated) not in effect on the date hereof. At any time that the
Issuing Lender shall not be under any obligation to issue Letters of
Credit pursuant to this paragraph (k), the Issuing Lender may be
replaced by Borrower with another Lender reasonably acceptable to the
Administrative Agent upon notice to the Issuing Lender and the
Administrative Agent. Upon any such replacement, the Administrative
Agent shall notify the Lenders of any such replacement of the Issuing
Lender and the replacement Issuing Lender shall agree to be bound by
the applicable provisions of this Agreement. At the time any such
replacement shall become effective, Borrower shall pay all unpaid fees
accrued for the account of the replaced Issuing Lender pursuant to
Section 2.03(g). From and after the effective date of any such
replacement, (i) the successor Issuing Lender shall have all the rights
and obligations of the Issuing Lender under this Agreement with respect
to Letters of Credit to be issued thereafter and (ii) references herein
to the term "Issuing Lender" shall be deemed to refer to such successor
or to any previous Issuing Lender, or to such successor and all
previous Issuing Lenders, as the context shall require. After the
replacement of an Issuing Lender hereunder, the replaced Issuing Lender
shall remain a party hereto and shall continue to have all the rights
and obligations of an Issuing Lender under this Agreement with respect
to Letters of Credit issued by it prior to such replacement, but shall
not be required to issue additional Letters of Credit.
The obligations of Borrower under this Agreement and any Letter of Credit
Document to reimburse the Issuing Lender for a drawing under a Letter of Credit,
and to repay any drawing under a Letter of Credit converted into Revolving
Credit Loans, shall be unconditional and irrevocable, and shall be paid strictly
in accordance with the terms of this Agreement and each such other Letter of
Credit Document under all circumstances, including the following: (i) any lack
of validity or enforceability of this Agreement or any Letter of Credit
Document; (ii) the existence of any claim, setoff, defense or
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other right that Borrower may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the Issuing Lender or any
other Person, whether in connection with this Agreement, the transactions
contemplated hereby or by the Letter of Credit Documents or any unrelated
transaction; (iii) any draft, demand, certificate or other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any
Letter of Credit; or any defense based upon the failure of any drawing under
a Letter of Credit to conform to the terms of the Letter of Credit or any
non-application or misapplication by the beneficiary of the proceeds of such
drawing; or (iv) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of,
Borrower or a Guarantor; PROVIDED, HOWEVER, that Borrower shall not be
obligated to reimburse the Issuing Lender for any wrongful payment determined
by a court of competent jurisdiction to have been made by the Issuing Lender
as a result of acts or omissions constituting bad faith or gross negligence
on the part of the Issuing Lender. To the extent that any provision of any
Letter of Credit Document is inconsistent with the provisions of this Section
2.03, the provisions of this Section 2.03 shall control.
2.04. TERMINATION AND REDUCTIONS OF COMMITMENTS. (a) (i)
The aggregate amount of the Revolving Credit Commitments shall be
automatically and permanently reduced to zero on the Revolving Credit
Commitment Termination Date. The aggregate amount of Revolving Credit
Commitments shall be permanently reduced on the date any required prepayments
described in Section 2.10(a) are required to be made in the amount specified
in Section 2.10(b)(ii).
(ii) The aggregate amount of the Term Loan Commitments shall
be automatically and permanently reduced to zero immediately after the making
of the Term Loans on the Amendment and Restatement Date.
(b) Borrower shall have the right at any time or from time
to time (without premium or penalty except breakage costs (if any)) (i) so
long as no Revolving Credit Loans or Letter of Credit Liabilities will be
outstanding as of the date specified for termination, to terminate the
Revolving Credit Commitments, and (ii) to reduce the aggregate amount of the
Unutilized Revolving Credit Commitments of all the Revolving Credit Lenders;
PROVIDED, HOWEVER, that (x) Borrower shall give notice of each such
termination or reduction as provided in Section 4.05, and (y) each partial
reduction shall be in an aggregate amount at least equal to $5.0 million (or
a larger multiple of $1.0 million) or, if less, the remaining Revolving
Credit Commitments.
(c) The Commitments once terminated or reduced may not be
reinstated.
2.05. FEES. (a) Borrower shall pay to the Administrative
Agent for the account of each Revolving Credit Lender a commitment fee on the
daily average amount of such Lender's Unutilized Revolving Credit Commitment,
for the period from and including the Closing Date to but not including the
earlier of the date such Revolving Credit Commitment is terminated and the
Revolving Credit Commitment Termination Date, at a rate PER ANNUM equal to
(1) prior to the Amendment and
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Restatement Date, the Applicable Revolving Credit Fee Percentage (as defined
in the Original Credit Agreement) and (2) thereafter, 0.500% so long as the
Total Leverage Ratio is greater than or equal to 3.5:1.0; 0.375% so long as
the Total Leverage Ratio is less than 3.5:1.0 but greater than or equal to
2.0:1.0, and 0.250% so long as the Total Leverage Ratio is less than 2.0:1.0.
Any change in such fee shall be based upon the most recently delivered
Interest Rate Certificate showing the calculation of the Total Leverage Ratio
and shall be effective as of the date of delivery to the Administrative
Agent. If no such Interest Rate Certificate is delivered as required by
Section 9.01(e), then the applicable fee shall be 0.500% PER ANNUM until such
delivery. Any accrued commitment fee under this Section 2.05(a) shall be
payable in arrears on each Quarterly Date and on the earlier of the date the
Revolving Credit Commitments are terminated and the Revolving Credit
Commitment Termination Date.
(b) Borrower shall pay to the Administrative Agent for its
own account a nonrefundable administrative fee pursuant to the terms of the
Administrative Agent's Fee Letter.
2.06. LENDING OFFICES. The Loans of each Type made by each
Lender shall be made and maintained at such Lender's Applicable Lending
Office for Loans of such Type. No Lender shall (unless required by law or if
the failure to do so would adversely affect such Lender) change its
Applicable Lending Office for LIBOR Loans if such change would increase
Borrower's net costs or expenses hereunder materially (including withholding
payments).
2.07. SEVERAL OBLIGATIONS OF LENDERS. The failure of any
Lender to make any Loan to be made by it on the date specified therefor shall
not relieve any other Lender of its obligation to make its Loan on such date,
but neither any Lender nor the Administrative Agent shall be responsible for
the failure of any other Lender to make a Loan to be made by such other
Lender, and no Lender shall have any obligation to the Administrative Agent
or any other Lender for the failure by such Lender to make any Loan required
to be made by such Lender.
2.08. NOTES; REGISTER. (a) (i) In connection with the
increase in the Revolving Credit Commitments on the Amendment and Restatement
Date as part of the amendments to the Original Credit Agreement, each Lender
shall surrender its Notes issued in connection with its Revolving Credit
Commitments under the Original Credit Agreement and be issued (if it
requests) Notes pursuant to this Section 2.08. The Revolving Credit Loans
made or to be made by such Revolving Credit Lender who has requested a Note
shall be evidenced by one or more promissory notes of Borrower, substantially
in the form of EXHIBIT A-1, dated the Amendment and Restatement Date, payable
to such Lender and otherwise duly completed.
(ii) In connection with the addition of the Tranche A Term
Loan Commitments on the Amendment and Restatement Date as part of the
amendments to the Original Credit Agreement, at the request of each Lender
having Term A Loan Commitments, the Tranche A Term Loans made by such Lender
shall be evidenced by one or more promissory notes of Borrower, substantially
in the form of EXHIBIT A-2, dated the Amendment and Restatement Date, payable
to such Lender and otherwise duly completed.
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(iii) In connection with the increase in the Tranche B Term Loan
Commitments on the Amendment and Restatement Date as part of the amendments to
the Original Credit Agreement, each Lender shall surrender its Notes issued in
connection with its Term B Loan Commitments under the Original Credit Agreement
and be issued (if it requests) Notes pursuant to this Section 2.08. The Tranche
B Term Loans made or to be made by such Tranche B Term Loan Lender who has
requested a Note shall be evidenced by one or more promissory notes of Borrower,
substantially in the form of EXHIBIT A-3, dated the Amendment and Restatement
Date, payable to such Lender and otherwise duly completed.
(iv) In connection with the increase in the Tranche C Term Loan
Commitments on the Amendment and Restatement Date as part of the amendments to
the Original Credit Agreement, each Lender shall surrender its Notes issued in
connection with its Term C Loan Commitments under the Original Credit Agreement
and be issued (if it requests) Notes pursuant to this Section 2.08. The Tranche
C Term Loans made or to be made by such Tranche C Term Loan Lender who has
requested a Note shall be evidenced by one or more promissory notes of Borrower,
substantially in the form of EXHIBIT A-4, dated the Amendment and Restatement
Date, payable to such Lender and otherwise duly completed.
(v) At the request of the Swing Loan Lender, the Swing Loans
made by the Swing Loan Lender shall be evidenced by one or more promissory notes
of Borrower, substantially in the form of EXHIBIT A-5, dated the Amendment and
Restatement Date, payable to the Swing Loan Lender and otherwise duly completed.
(b) The date, amount, Type, interest rate and duration of
Interest Period (if applicable) of each Loan of each Class made by each Lender
to Borrower, and each payment made on account of the principal thereof, shall be
recorded by such Lender on its books and, prior to any transfer of any Note
evidencing the Loans of such Class held by it, endorsed by such Lender on the
schedule attached to such Note or any continuation thereof; PROVIDED, HOWEVER,
that the failure of such Lender to make any such recordation or endorsement
shall not affect the obligations of Borrower to make a payment when due of any
amount owing hereunder or under such Note.
(c) Borrower hereby designates the Administrative Agent to
serve as its agent, solely for purposes of this Section 2.08, to maintain a
register (the "REGISTER") on which it will record the name and address of each
Lender, the Commitment from time to time of each of the Lenders, the principal
amount of the Loans made by each of the Lenders and each repayment in respect of
the principal amount of the Loans of each Lender. Failure to make any such
recordation or any error in such recordation shall not affect Borrower's
obligations in respect of such Loans. The entries in the Register shall be
conclusive, in the absence of manifest error, and Borrower, the Administrative
Agent and the Lenders shall treat each Person whose name is recorded in the
Register as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Credit Documents,
notwithstanding any notice to the contrary. The Register shall be available for
inspection by Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
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2.09. OPTIONAL PREPAYMENTS AND CONVERSIONS OR CONTINUATIONS OF
LOANS. Subject to Section 4.04, Borrower shall have the right to prepay Loans,
or to Convert Loans of one Type into Loans of another Type or to Continue Loans
of one Type as Loans of the same Type, at any time or from time to time to be
applied as specified by Borrower; PROVIDED, HOWEVER, that: (a) Borrower shall
give the Administrative Agent notice of each such prepayment, Conversion or
Continuation as provided in Section 4.05 (and, upon the date specified in any
such notice of prepayment, the amount to be prepaid shall become due and payable
hereunder); (b) if LIBOR Loans are prepaid or Converted other than on the last
day of an Interest Period for such Loans, Borrower shall at such time pay all
expenses and costs required by Section 5.05; and (c) prepayments of the Term
Loans pursuant to this Section 2.09 shall be applied PRO RATA between the Term
Loan Tranches based upon the remaining unpaid amounts thereof and, as to each
such Term Loan Tranche, the amount to be applied thereto shall be applied in
inverse order of maturity among the remaining Amortization Payments based upon
the remaining unpaid amounts thereof. Each notice of Conversion or Continuation
shall be substantially in the form of EXHIBIT J.
Notwithstanding the foregoing, and without limiting the rights
and remedies of the Lenders under Section 10, in the event that any Event of
Default shall have occurred and be continuing, the Administrative Agent may (and
at the request of the Majority Lenders shall) suspend the right of Borrower to
Convert any Loan into a LIBOR Loan, or to Continue any Loan as a LIBOR Loan, in
which event all Loans shall be Converted (on the last day(s) of the respective
Interest Periods therefor) or Continued, as the case may be, as ABR Loans.
2.10. MANDATORY PREPAYMENTS. (a) Borrower shall prepay the
Term Loans as follows (each such prepayment to be effected in each case in the
manner, order and to the extent specified in subsection (b) below of this
Section 2.10):
(i) CASUALTY EVENTS. On or prior to the third Business Day
after the date on which any Company receives any Net Available Proceeds
from any Casualty Event, in an aggregate principal amount equal to 100%
of such Net Available Proceeds; PROVIDED, HOWEVER, that (x) so long as
no Event of Default then exists or would arise therefrom, such Net
Available Proceeds shall not be required to be so applied on such date
to the extent that Borrower has delivered an Officer's Certificate to
the Administrative Agent on or prior to such date stating that such
proceeds shall be used to (1) repair, replace or restore any Property
in respect of which such Net Available Proceeds were paid or (2) fund
the substitution of other Property used or usable in the business of
Borrower and the Subsidiaries, in each case within 180 days following
the date of the receipt of such Net Available Proceeds, (y) all such
Net Available Proceeds shall be held in the Collateral Account and
released therefrom only in accordance with the terms of the Security
Agreement, and (z) if all or any portion of such Net Available Proceeds
not required to be applied to the prepayment of Term Loans pursuant to
the preceding proviso is not so used within 180 days after the date of
the receipt of such Net Available Proceeds, such remaining portion
shall be applied on the last day of such period as specified in Section
2.10(b), unless prior to such 180th day a Company shall have entered
into a binding agreement to so use such Net Available Proceeds, in each
case within 180 days after the date
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of such agreement (and if not so used, the Net Available Proceeds
shall be applied as specified in Section 2.10(b)).
(ii) EQUITY ISSUANCE. On or prior to the third Business Day
after the date on which the Person consummating the relevant Equity
Issuance receives any Net Available Proceeds from any such Equity
Issuance that is consummated on or after the Amendment and Restatement
Date, in an aggregate principal amount equal to 50% of such Net
Available Proceeds; PROVIDED, HOWEVER, that the Designated Equity
Issuance Proceeds need not be so applied to the extent
contemporaneously applied pursuant to Section 9.06(i).
(iii) DEBT ISSUANCE. On or prior to the third Business Day after
the date on which the Person consummating the relevant Debt Issuance
receives any Net Available Proceeds from any such Debt Issuance that is
consummated on or after the Amendment and Restatement Date, in an
aggregate principal amount equal to 100% of such Net Available
Proceeds.
(iv) DISPOSITION EVENTS. On or prior to the third Business Day
after the date of receipt by any Company of any Net Available Proceeds
from any Disposition Event on or after the Amendment and Restatement
Date, in an aggregate principal amount equal to 100% of the Net
Available Proceeds from such Disposition Event; PROVIDED, HOWEVER, that
(x) the Net Available Proceeds from any Disposition Event permitted by
Section 9.06(g), (h) and (p), shall not be required to be applied as
provided herein on such date if and to the extent that (1) no Event of
Default then exists or would arise therefrom and (2) Borrower delivers
an Officer's Certificate to the Administrative Agent on or prior to
such date stating that such Net Available Proceeds shall be reinvested
in capital assets of Borrower or any Subsidiary in each case within 180
days following the date of such Disposition Event (which certificate
shall set forth the estimates of the proceeds to be so expended), (y)
all such Net Available Proceeds shall be held in the Collateral Account
and released therefrom only in accordance with the terms of the
Security Agreement, and (z) if all or any portion of such Net Available
Proceeds not so applied as provided herein is not so used within such
180 day period, such remaining portion shall be applied on the last day
of such period as specified in Section 2.10(b), unless prior to such
180th day a Company shall have entered into a binding agreement to so
use such Net Available Proceeds, in each case within 180 days after the
date of such agreement (and if not so used, the Net Available Proceeds
shall be applied as specified in Section 2.10(b)); PROVIDED, HOWEVER,
that the Net Available Proceeds from a Disposition Event permitted by
Section 9.06(q) need not be applied pursuant to this Section
2.10(a)(iv) so long as all proceeds of such Disposition Event are
applied to consummate the Ellison Acquisition. Any interest income from
Net Available Proceeds held in the Collateral Account shall be for the
account of Borrower and, so long as no Default then exists, shall be
delivered to Borrower (after deduction of customary administrative fees
and expenses, if any) from time to time upon request by Borrower.
(v) EXCESS CASH FLOW. Not later than 100 days after the end of
each fiscal year of Borrower commencing with the fiscal year ended
December 31, 2001, in an aggregate principal amount equal to (A) 75% of
Excess Cash Flow for such fiscal year if the Total Leverage
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Ratio at the end of such fiscal year is greater than or equal to
2.75:1.0 (as evidenced in an Officer's Certificate delivered to the
Administrative Agent), and (B) 50% of Excess Cash Flow for such fiscal
year if the Total Leverage Ratio at the end of such fiscal year is less
than 2.75:1.0 (as evidenced in an Officer's Certificate delivered to
the Administrative Agent).
(vi) OTHER REQUIRED PREPAYMENTS. If the terms of any agreement,
instrument or indenture pursuant to which any Indebtedness PARI PASSU
with or junior in right of payment to the Loans is outstanding (or
pursuant to which such Indebtedness is guaranteed) require prepayment
of such Indebtedness out of the proceeds of any Disposition or
otherwise unless such proceeds are used to prepay other Indebtedness,
then, to the extent not otherwise required by this Section 2.10(a), the
Loans shall be repaid in an amount not less than the minimum amount
that would be required to be prepaid not later than the latest time as
and upon such terms so that such other Indebtedness will not be
required to be prepaid pursuant to the terms of the agreement,
indenture or instrument or guarantee governing such other Indebtedness.
(b) APPLICATION. The amount of any required prepayments
described in Section 2.10(a) shall be applied as follows:
(i) FIRST, the amount of the required prepayment shall be
applied to the reduction of Amortization Payments on the Term Loans
required by Section 3.01(b) PRO RATA among the Term Loan Tranches based
upon the remaining unpaid amounts thereof and, as to each such Tranche
A Term Loan, the amount to be applied PRO RATA to the remaining
Amortization Payments thereof based on the remaining unpaid amounts
thereof and as to each such Tranche B Term Loan and Tranche C Term
Loan, the amount to be applied thereto shall be applied in inverse
order of maturity to the remaining Amortization Payments of such
Tranche B Term Loan and Tranche C Term Loan; and
(ii) SECOND, after such time as no Term Loans remain
outstanding, Revolving Credit Commitments shall be permanently reduced
(at the same time that the prepayment of the Term Loans would have been
made and assuming an unlimited amount thereof then outstanding) PRO
RATA in an amount equal to the remaining amount of any such required
prepayment that would have been applied to the Term Loans (assuming an
unlimited amount thereof then outstanding) and to the extent that,
after giving effect to such reduction, the aggregate principal amount
of Revolving Credit Loans, PLUS the aggregate principal amount of Swing
Loans, PLUS the aggregate amount of all Letter of Credit Liabilities
would exceed the Revolving Credit Commitments, Borrower shall, FIRST,
prepay outstanding Revolving Credit Loans, SECOND, prepay outstanding
Swing Loans and, THIRD, provide cover for Letter of Credit Liabilities
as specified in Section 2.10(d), in an aggregate amount equal to such
excess.
Notwithstanding the foregoing, if the amount of any prepayment
of Loans required under this Section 2.10 shall be in excess of the amount of
the ABR Loans at the time outstanding, only the portion of the amount of such
prepayment as is equal to the amount of such outstanding ABR Loans shall be
immediately prepaid and, at the election of Borrower, the balance of such
required prepayment shall be either (i) deposited in the Collateral Account and
applied to the prepayment of
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LIBOR Loans on the last day of the then next-expiring Interest Period for
LIBOR Loans or (ii) prepaid immediately, together with any amounts owing to
the Lenders under Section 5.05. Notwithstanding any such deposit in the
Collateral Account, interest shall continue to accrue on such Loans until
prepayment.
(c) REVOLVING CREDIT EXTENSION REDUCTIONS. Until the Revolving
Credit Commitment Termination Date, Borrower shall from time to time immediately
prepay the Swing Loans and the Revolving Credit Loans (and/or provide cover for
Letter of Credit Liabilities as specified in Section 2.10(d)) in such amounts as
shall be necessary so that at all times the aggregate outstanding amount of the
Revolving Credit Loans, PLUS the aggregate outstanding amount of Swing Loans,
PLUS the aggregate outstanding Letter of Credit Liabilities shall not exceed the
Revolving Credit Commitments as in effect at such time, such amount to be
applied, FIRST, to Swing Loans, SECOND, to Revolving Credit Loans outstanding
and, THIRD, as cover for Letter of Credit Liabilities outstanding as specified
in Section 2.10(d).
(d) COVER FOR LETTER OF CREDIT LIABILITIES. In the event that
Borrower shall be required pursuant to this Section 2.10 to provide cover for
Letter of Credit Liabilities, Borrower shall effect the same by paying to the
Administrative Agent immediately available funds in an amount equal to the
required amount, which funds shall be retained by the Administrative Agent in
the Collateral Account (as provided in the Security Agreement as collateral
security in the first instance for the Letter of Credit Liabilities) until such
time as all Letters of Credit shall have been terminated and all of the Letter
of Credit Liabilities paid in full.
2.11. REPLACEMENT OF LENDERS. Borrower shall have the right,
if no Default then exists, to replace any Lender (the "REPLACED LENDER") with
one or more other Eligible Persons reasonably acceptable to the Lead Arranger
(collectively, the "REPLACEMENT LENDER") if (x) such Lender is charging Borrower
increased costs pursuant to Section 5.01 or 5.06 in excess of those being
charged generally by the other Lenders or such Lender becomes incapable of
making LIBOR Loans as provided in Section 5.03 and/or (y) as provided in Section
12.04(ii), such Lender refuses to consent to certain proposed amendments,
waivers or modifications with respect to this Agreement; PROVIDED, HOWEVER, that
(i) at the time of any replacement pursuant to this Section 2.11, the
Replacement Lender shall enter into one or more assignment agreements in
accordance with Section 12.06(b) (and with all fees payable pursuant to Section
12.06 to be paid by the Replacement Lender) pursuant to which the Replacement
Lender shall acquire all of the Commitments and outstanding Loans of, and in
each case Letter of Credit Interests for, the Replaced Lender and, in connection
therewith, shall pay to (x) the Replaced Lender, an amount equal to the sum of
(A) the principal of, and all accrued interest on, all outstanding Loans of the
Replaced Lender, (B) all Reimbursement Obligations owing to such Replaced
Lender, together with all then unpaid interest with respect thereto at such
time, and (C) all accrued, but theretofore unpaid, fees owing to the Replaced
Lender pursuant to Section 2.05, and (y) the Issuing Lender an amount equal to
such Replaced Lender's Revolving Credit Commitment Percentage of any
Reimbursement Obligations (which at such time remains a Reimbursement
Obligation) to the extent such amount was not theretofore funded by such
Replaced Lender, and (ii) all obligations of Borrower owing to the Replaced
Lender (other than those specifically described in clause (i) above in respect
of which the assignment purchase price has been, or is concurrently being, paid,
but including
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any amounts which would be paid to a Lender pursuant to Section 5.05 if
Borrower were prepaying a LIBOR Loan) shall be paid in full to such Replaced
Lender concurrently with such replacement. Upon the execution of the
applicable assignment agreement, the payment of amounts referred to in
clauses (i) and (ii) above and, if so requested by the Replacement Lender,
delivery to the Replacement Lender of Notes executed by Borrower, the
Replacement Lender shall become a Lender hereunder and the Replaced Lender
shall cease to constitute a Lender hereunder and be released of all its
obligations as a Lender, except with respect to indemnification provisions
applicable to the Replaced Lender under this Agreement, which shall survive
as to such Replaced Lender.
Section 3. PAYMENTS OF PRINCIPAL AND INTEREST.
3.01. REPAYMENT OF LOANS.
(a) REVOLVING CREDIT AND SWING LOANS. Borrower hereby promises
to pay to the Administrative Agent for the account of each Lender the entire
outstanding principal amount of such Lender's Revolving Credit Loans, and each
Revolving Credit Loan shall mature, on the Revolving Credit Commitment
Termination Date. Borrower hereby promises to pay the Swing Loan Lender for its
account the entire outstanding principal amount of the Swing Loans, and the
Swing Loans shall mature, on the Swing Loan Maturity Date.
(b) (1) TRANCHE A TERM LOANS. Borrower hereby promises to pay
to the Administrative Agent for the account of the Tranche A Term Loan Lenders,
in repayment of the principal of the Tranche A Term Loans, the amounts set forth
on SCHEDULE 3.01(b) on the dates set forth on SCHEDULE 3.01(b) (subject to
adjustment for any prepayments required by Section 2.10 to the extent actually
made).
(2) TRANCHE B TERM LOANS. Borrower hereby promises to pay to
the Administrative Agent for the account of the Tranche B Term Loan Lenders, in
repayment of the principal of the Tranche B Term Loans, the amounts set forth on
SCHEDULE 3.01(b) on the dates set forth on SCHEDULE 3.01(b) (subject to
adjustment for any prepayments required by Section 2.10 to the extent actually
made).
(3) TRANCHE C TERM LOANS. Borrower hereby promises to pay to
the Administrative Agent for the account of the Tranche C Term Loan Lenders, in
repayment of the principal of the Tranche C Term Loans, the amounts set forth on
SCHEDULE 3.01(b) on the dates set forth on SCHEDULE 3.01(b) (subject to
adjustment for any prepayments required by Section 2.10 to the extent actually
made).
3.02. INTEREST. (a) Borrower hereby promises to pay to the
Administrative Agent for the account of each Lender interest on the unpaid
principal amount of each Loan made by such Lender for the period from and
including the date of such Loan to but excluding the date such Loan shall be
paid in full at the following rates PER ANNUM:
(i) during such periods as such Loan is an ABR Loan, the
Alternate Base Rate (as in effect from time to time), PLUS the
Applicable Margin; and
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(ii) during such periods as such Loan is a LIBOR Loan, for each
Interest Period relating thereto, the LIBOR Rate for such Loan for such
Interest Period, PLUS the Applicable Margin.
(b) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and other overdue amounts owed by any
Obligor under the Credit Documents (including such interest accruing before and
after judgment) shall bear interest at a rate PER ANNUM equal to (x) in the case
of principal of any Loans, the rate which is 2% in excess of the rate then borne
by such Loans and (y) in the case of interest and such other amounts, the rate
which is 2% in excess of the rate otherwise applicable to ABR Loans which are
Revolving Credit Loans from time to time. Interest which accrues under this
paragraph shall be payable on demand.
(c) Accrued interest on each Loan shall be payable (i) in the
case of an ABR Loan, quarterly on the Quarterly Dates, (ii) in the case of a
LIBOR Loan, on the last day of each Interest Period therefor and, if such
Interest Period is longer than three months, at three-month intervals following
the first day of such Interest Period and (iii) in the case of any LIBOR Loan,
upon the payment or prepayment thereof or the Conversion of such Loan to a Loan
of another Type (but only on the principal amount so paid, prepaid or
Converted), except that interest payable at the rate set forth in Section
3.02(b) shall be payable from time to time on demand. Promptly after the
determination of any interest rate provided for herein or any change therein,
the Administrative Agent shall give notice thereof to the Lenders to which such
interest is payable and to Borrower.
Section 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
4.01. PAYMENTS. (a) Except to the extent otherwise provided
herein, all payments of principal, interest, Reimbursement Obligations and other
amounts to be made by Borrower under this Agreement and the Notes, and, except
to the extent otherwise provided therein, all payments to be made by the
Obligors under any other Credit Document, shall be made in Dollars, in
immediately available funds, without deduction, set-off or counterclaim, to the
Administrative Agent at its account at the Principal Office, not later than 1
p.m. New York time on the date on which such payment shall become due (each such
payment made after such time on such due date to be deemed to have been made on
the next succeeding Business Day).
(b) Borrower shall, at the time of making each payment under
this Agreement or any Note for the account of any Lender, specify (in accordance
with Section 2.09 and 2.10, if applicable) to the Administrative Agent (which
shall so notify the intended recipient(s) thereof) the Loans, Reimbursement
Obligations or other amounts payable by Borrower hereunder to which such payment
is to be applied (and in the event that Borrower fails to so specify, or if an
Event of Default has occurred and is continuing, the Administrative Agent may
distribute such payment to the Lenders for application to the Obligations under
the Credit Documents in such manner as it or the Majority Lenders, subject to
Section 4.02, may determine to be appropriate).
(c) Except to the extent otherwise provided in the second
sentence of Section 2.03(g), each payment received by the Administrative Agent
or by the Issuing Lender (through the Adminis-
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trative Agent) under this Agreement or any Note for the account of any Lender
shall be paid by the Administrative Agent or by the Issuing Lender (through
the Administrative Agent), as the case may be, to such Lender, in immediately
available funds, (x) if the payment was actually received by the
Administrative Agent or by the Issuing Lender (through the Administrative
Agent), as the case may be, prior to 1 p.m. (New York time) on any day, on
such day and (y) if the payment was actually received by the Administrative
Agent or by the Issuing Lender (through the Administrative Agent), as the
case may be, after 1 p.m. (New York time) on any day, by 2:00 p.m. (New York
time) on the following Business Day (it being understood that to the extent
that any such payment is not made in full by the Administrative Agent or by
the Issuing Lender (through the Administrative Agent), as the case may be,
the Administrative Agent shall pay to such Lender, upon demand, interest at
the Federal Funds Rate from the date such amount was required to be paid to
such Lender pursuant to the foregoing clauses until the date the
Administrative Agent pays such Lender the amount).
(d) If the due date of any payment under this Agreement or any
Note would otherwise fall on a day that is not a Business Day, such date shall
be extended to the next succeeding Business Day, and interest shall be payable
for any principal so extended for the period of such extension.
4.02. PRO RATA TREATMENT. Except to the extent otherwise
provided herein: (a) each borrowing of Loans of a particular Class from the
Lenders under Section 2.01 shall be made from the relevant Lenders, each payment
of commitment fee under Section 2.05 in respect of Commitments of a particular
Class shall be made for account of the relevant Lenders, and each termination or
reduction of the amount of the Commitments of a particular Class under Section
2.04 shall be applied to the respective Commitments of such Class of the
relevant Lenders, PRO RATA according to the amounts of their respective
Commitments of such Class; PROVIDED, HOWEVER, that Swing Loans shall be made
only by, and interest thereon shall be paid by Borrower only to, the Swing Loan
Lender (subject to such Lender's obligations in respect of any participation
therein purchased by the other Revolving Credit Lenders as provided in Section
2.01(f)); (b) except as otherwise provided in Section 5.04, LIBOR Loans of any
Class having the same Interest Period shall be allocated PRO RATA among the
relevant Lenders according to the amounts of their respective Revolving Credit
and Term Loan Commitments (in the case of the making of Loans) or their
respective Revolving Credit and Term Loans (in the case of Conversions and
Continuations of Loans); (c) each payment or prepayment of principal of
Revolving Credit Loans or Term Loans by Borrower shall be made for account of
the relevant Lenders PRO RATA in accordance with the respective unpaid
outstanding principal amounts of the Loans of such Class held by them; and (d)
each payment of interest on Revolving Credit Loans and Term Loans by Borrower
shall be made for account of the relevant Lenders PRO RATA in accordance with
the amounts of interest on such Loans then due and payable to the respective
Lenders.
4.03. COMPUTATIONS. Interest on LIBOR Loans and commitment
fees and letter of credit fees shall be computed on the basis of a year of 360
days and actual days elapsed (including the first day but excluding the last
day) occurring in the period for which such amounts are payable and interest on
ABR Loans and Reimbursement Obligations shall be computed on the basis of a year
of 365 or 366 days, as the case may be, and actual days elapsed (including the
first day but excluding the last day) occurring in the period for which such
amounts are payable. Notwithstanding the foregoing, for each day that the
Alternate Base Rate is calculated by reference to the Federal Funds Rate,
interest
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on ABR Loans and Reimbursement Obligations shall be computed on the basis of
a year of 360 days and actual days elapsed (including the first day but
excluding the last day).
4.04. MINIMUM AMOUNTS. Except for mandatory prepayments made
pursuant to Section 2.10, Conversions or prepayments made pursuant to Section
5.04 and borrowings hereunder to finance any payment made in respect of a Letter
of Credit, each borrowing, Conversion and prepayment of principal of Loans
(other than Swing Loans, for which the minimum amounts thereof are in Section
2.01(f)) shall be in an amount at least equal to $250,000 (or, if less, the
remaining aggregate principal amount thereof) with respect to ABR Loans and
$250,000 (or, if less, the remaining aggregate principal amount thereof) with
respect to LIBOR Loans and in multiples of $100,000 in excess thereof
(borrowings, Conversions or prepayments of or into Loans of different Types or,
in the case of LIBOR Loans, having different Interest Periods at the same time
hereunder to be deemed separate borrowings, Conversions and prepayments for
purposes of the foregoing, one for each Type or Interest Period). Anything in
this Agreement to the contrary notwithstanding, the aggregate principal amount
of LIBOR Loans having the same Interest Period shall be in an amount at least
equal to $500,000 and in multiples of $100,000 in excess thereof and, if any
LIBOR Loans or portions thereof would otherwise be in a lesser principal amount
for any period, such Loans or portions, as the case may be, shall be ABR Loans
during such period.
4.05. CERTAIN NOTICES. Notices by Borrower to the
Administrative Agent of terminations or reductions of the Commitments, of
borrowings, Conversions, Continuations and optional prepayments of Loans and of
Classes of Loans, of Types of Loans and of the duration of Interest Periods
shall be irrevocable and shall be effective only if received by the
Administrative Agent not later than 1 p.m. New York time on the number of
Business Days prior to the date of the relevant termination, reduction,
borrowing, Conversion, Continuation or prepayment or the first day of such
Interest Period specified in the table below.
NOTICE PERIODS
NOTICE NUMBER OF BUSINESS DAYS PRIOR
- ------ -----------------------------
Termination or reduction of Commitments 2
Borrowing or optional prepayment of, or Conver-
sions into, ABR Loans (including Swing Loans) 1
Borrowing or optional prepayment of, Conver-
sions into, Continuations as, or duration of
Interest Periods for, LIBOR Loans 3
Each such notice of termination or reduction shall specify the
amount and the Class of the Commitments to be terminated or reduced. Each such
notice of borrowing, Conversion, Continuation or prepayment shall specify the
Class of Loans to be borrowed, Converted, Continued or prepaid and the amount
(subject to Section 4.04) and Type of each Loan to be borrowed, Converted,
Continued or prepaid and the date of borrowing, Conversion, Continuation or
prepayment (which shall
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be a Business Day). Each such notice of the duration of an Interest Period
shall specify the Loans to which such Interest Period is to relate. Unless
otherwise consented to by the Lead Arranger in its sole discretion, prior to
the date on which Borrower has been notified by the Lead Arranger that the
primary syndication of the Commitments has been completed, no borrowing of or
Conversion into any LIBOR Loan may be made having an Interest Period of other
than seven days. The Administrative Agent shall promptly notify the Lenders
of the contents of each such notice. In the event that Borrower fails to
select the Type of Loan within the time period and otherwise as provided in
this Section 4.05, such Loan (if outstanding as a LIBOR Loan) will be
automatically Converted into an ABR Loan on the last day of the then current
Interest Period for such Loan or (if outstanding as an ABR Loan) will remain
as, or (if not then outstanding) will be made as, an ABR Loan. In the event
that Borrower fails to select an Interest Period for any LIBOR Loan within
the time period and otherwise as provided in this Section 4.05, such Interest
Period shall be for one month.
4.06. NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless
the Administrative Agent shall have received written notice from a Lender or
Borrower (the "PAYOR") prior to the date on which the Payor is to make payment
to the Administrative Agent of (in the case of a Lender) the proceeds of a Loan
to be made by such Lender hereunder or a payment to the Administrative Agent for
the account of one or more of the Lenders hereunder (such payment being herein
called the "REQUIRED PAYMENT"), which notice shall be effective upon receipt,
that the Payor does not intend to make the Required Payment to the
Administrative Agent, the Administrative Agent may assume that the Required
Payment has been made and may, in reliance upon such assumption (but shall not
be required to), make the amount thereof available to the intended recipient(s)
on such date; and, if the Payor has not in fact made the Required Payment to the
Administrative Agent, the recipient(s) of such payment shall, on demand, repay
to the Administrative Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date (the
"ADVANCE DATE") such amount was so made available by the Administrative Agent
until the date the Administrative Agent recovers such amount at a rate PER ANNUM
equal to the Federal Funds Rate for such day and, if such recipient(s) shall
fail promptly to make such payment, the Administrative Agent shall be entitled
to recover such amount, on demand, from the Payor, together with interest as
aforesaid; PROVIDED, HOWEVER, that if neither the recipient(s) nor the Payor
shall return the Required Payment to the Administrative Agent within three
Business Days of the date such demand was made, then, retroactively to the
Advance Date, the Payor and the recipient(s) shall each be obligated to pay
interest on the Required Payment as follows (without double recovery):
(i) if the Required Payment shall represent a payment to be
made by Borrower to the Lenders, Borrower and the recipient(s) shall
each be obligated retroactively to the Advance Date to pay interest in
respect of the Required Payment at the rate set forth in Section
3.02(b) (without duplication of the obligation of Borrower under
Section 3.02 to pay interest on the Required Payment at the rate set
forth in Section 3.02(b)), it being understood that the return by the
recipient(s) of the Required Payment to the Administrative Agent shall
not limit such obligation of Borrower under Section 3.02 to pay
interest at the rate set forth in Section 3.02(b) in respect of the
Required Payment and
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(ii) if the Required Payment shall represent proceeds of a Loan
to be made by the Lenders to Borrower, the Payor and Borrower shall
each be obligated retroactively to the Advance Date to pay interest in
respect of the Required Payment pursuant to Section 3.02, it being
understood that the return by Borrower of the Required Payment to the
Administrative Agent shall not limit any claim Borrower may have
against the Payor in respect of such Required Payment.
4.07. RIGHT OF SETOFF; SHARING OF PAYMENTS; ETC. (a) Each
Obligor agrees that, in addition to (and without limitation of) any right of
setoff, banker's lien or counterclaim a Lender may otherwise have, each Lender
shall be entitled, at its option (to the fullest extent permitted by law), to
set off and apply any deposit (general or special, time or demand, provisional
or final), or other indebtedness, held by it for the credit or account of such
Obligor at any of its offices, in Dollars or in any other currency, against any
principal of or interest on any of such Lender's Loans, Reimbursement
Obligations or any other amount payable to such Lender hereunder that is not
paid when due (regardless of whether such deposit or other indebtedness is then
due to such Obligor), in which case it shall promptly notify such Obligor and
the Administrative Agent thereof; PROVIDED, HOWEVER, that such Lender's failure
to give such notice shall not affect the validity thereof.
(b) Each of the Lenders agrees that, if it should receive
(other than pursuant to Section 5) 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, Reimbursement Obligations or fees,
of a sum which with respect to the related sum or sums received by other Lenders
is in a greater proportion than the total of such amounts then owed and due to
such Lender bears to the total of such amounts then owed and due to all of the
Lenders immediately prior to such receipt, then such Lender receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Lenders an interest in the Obligations of the respective Obligor to such
Lenders in such amount as shall result in a proportional participation by all of
the Lenders in such amount; PROVIDED, HOWEVER, that if all or any portion of
such excess amount is thereafter recovered from such Lender, such purchase shall
be rescinded and the purchase price restored to the extent of such recovery, but
without interest. Borrower consents to the foregoing arrangements.
(c) Borrower agrees that any Lender so purchasing such a
participation may exercise all rights of setoff, banker's lien, counterclaim or
similar rights with respect to such participation as fully as if such Lender
were a direct holder of Loans or other amounts (as the case may be) owing to
such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to
exercise any such right or shall affect the right of any Lender to exercise, and
retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of any Obligor. If, under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a setoff to which this Section 4.07 applies, such Lender shall, to the extent
practicable, exercise its rights in re-
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spect of such secured claim in a manner consistent with the rights of the
Lenders entitled under this Section 4.07 to share in the benefits of any
recovery on such secured claim.
Section 5. YIELD PROTECTION, ETC.
5.01. ADDITIONAL COSTS. (a) If the adoption of, or any change
in, any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority or the
NAIC made subsequent to the Original Closing Date:
(i) shall subject any Lender or Issuing Lender to any tax of
any kind whatsoever with respect to this Agreement, any Note, any
Letter of Credit or any Lender's participation therein, any Letter of
Credit Document or any LIBOR Loan made by it or change the basis of
taxation of payments to such Lender in respect thereof by any
Governmental Authority (except for taxes covered by or expressly
excluded from coverage by Section 5.06 and changes in the rate of tax
on the overall net income of such Lender or its Applicable Lending
Office, or any affiliate thereof or franchise tax by any Governmental
Authority);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender or Issuing Lender
which is not otherwise included in the determination of the LIBOR Rate
hereunder; or
(iii) shall impose on such Lender or Issuing Lender any other
condition (excluding taxes);
and the result of any of the foregoing is to increase the cost to such Lender or
Issuing Lender, by an amount which such Lender or Issuing Lender deems to be
material, of making, converting into, continuing or maintaining LIBOR Loans or
issuing or participating in Letters of Credit or to reduce any amount receivable
hereunder in respect thereof then, in any such case, Borrower shall promptly pay
such Lender or Issuing Lender, upon its written demand, any additional amounts
necessary to compensate such Lender or Issuing Lender for such increased cost or
reduced amount receivable; PROVIDED, HOWEVER, that a Lender that is an assignee
or transferee of an interest under this Agreement pursuant to Section 2.11 or
12.06 that was already a Lender hereunder immediately prior to such assignment
or transfer shall be entitled to additional amounts pursuant to this Section
5.01 on the assigned or transferred interest only to the same extent as the
assignor Lender. If any Lender or Issuing Lender becomes entitled to claim any
additional amounts pursuant to this subsection, it shall promptly notify
Borrower, through the Administrative Agent, of the event by reason of which it
has become so entitled. A certificate as to any additional amounts setting forth
the calculation of such additional amounts pursuant to this Section 5.01
submitted by such Lender or Issuing Lender, through the Administrative Agent, to
Borrower shall be conclusive in the absence of clearly demonstrable error.
Without limiting the survival of any other covenant hereunder, this Section 5.01
shall survive the termination of this Agreement and the payment of the Notes and
all other amounts payable hereunder.
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(b) In the event that any Lender or Issuing Lender shall have
determined that the adoption of any law, rule, regulation or guideline regarding
capital adequacy (or any change after the date hereof therein or in the
interpretation or application thereof) or compliance by any Lender or Issuing
Lender or any corporation controlling such Lender or Issuing Lender with any
request or directive regarding capital adequacy (whether or not having the force
of law) from any central bank or Governmental Authority or the NAIC, in each
case, made subsequent to the date hereof including, without limitation, the
issuance of any final rule, regulation or guideline, does or shall have the
effect of reducing the rate of return on such Lender's or Issuing Lender's or
such corporation's capital as a consequence of its obligations hereunder or
under any Letter of Credit to a level below that which such Lender or Issuing
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or Issuing Lender's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Lender or Issuing Lender to be material, then from time to time, after
submission by such Lender or Issuing Lender to Borrower (with a copy to the
Administrative Agent) of a written request therefor, Borrower shall promptly pay
to such Lender or Issuing Lender such additional amount or amounts as will
compensate such Lender or Issuing Lender for such reduction.
(c) Each Lender (and Issuing Lender) shall notify Borrower of
any event that will entitle such Lender (or Issuing Lender, as the case may be)
to compensation under paragraph (a) or (b) of this Section 5.01 as promptly as
practicable, but in any event within 90 days after such Lender (or Issuing
Lender, as the case may be) obtains actual knowledge thereof; PROVIDED, HOWEVER,
that (i) if any Lender (or Issuing Lender, as the case may be) fails to give
such notice within 90 days after it obtains actual knowledge of such an event,
such Lender (or Issuing Lender, as the case may be) shall, with respect to
compensation payable pursuant to this Section 5.01 in respect of any costs
resulting from such event, only be entitled to payment under this Section 5.01
for costs incurred from and after the date 90 days prior to the date that such
Lender (or Issuing Lender, as the case may be) does give such notice and (ii)
each Lender (or Issuing Lender, as the case may be), will designate a different
Applicable Lending Office for the Loans of such Lender (or the Letters of
Credit, as the case may be) affected by such event if such designation will
avoid the need for, or reduce the amount of, such compensation and will not, in
the sole opinion of such Lender (or Issuing Lender, as the case may be), be
disadvantageous to such Lender (or Issuing Lender, as the case may be). Each
Lender (or Issuing Lender, as the case may be) will furnish to Borrower at the
time of request for compensation under paragraph (a) or (b) of this Section 5.01
a certificate setting forth the basis, amount and reasonable detail of
computation of each request by such Lender for compensation under paragraph (a)
or (b) of this Section 5.01, which certificate shall, except for demonstrable
error, be final, conclusive and binding for all purposes.
5.02. LIMITATION ON TYPES OF LOANS. Anything herein to the
contrary notwithstanding, if, on or prior to the determination of any LIBOR Base
Rate for any Interest Period:
(i) the Administrative Agent determines, which determination
shall be conclusive, absent manifest error, that quotations of interest
rates for the relevant deposits referred to in the definition of "LIBOR
Base Rate" in Section 1.01 are not being provided in the relevant
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amounts or for the relevant maturities for purposes of determining
rates of interest for LIBOR Loans as provided herein; or
(ii) if the related Loans are Revolving Credit Loans, the
Majority Revolving Credit Lenders or, if the related Loans are Tranche
A Term Loans, the Majority Tranche A Term Loan Lenders or, if the
related Loans are Tranche B Term Loans, the Majority Tranche B Term
Loan Lenders or, if the related Loans are Tranche C Term Loans, the
Majority Tranche C Term Loan Lenders determine, which determination
shall be conclusive, that the relevant rates of interest referred to in
the definition of "LIBOR Base Rate" in Section 1.01 upon the basis of
which the rate of interest for LIBOR Loans for such Interest Period is
to be determined are not likely adequate to cover the cost to the
applicable Lenders of making or maintaining LIBOR Loans for such
Interest Period,
then the Administrative Agent shall give Borrower and each Lender prompt notice
thereof, and so long as such condition remains in effect, the affected Lenders
shall be under no obligation to make additional LIBOR Loans (but shall make
their portion of any additional Borrowings as ABR Loans), to Continue LIBOR
Loans or to Convert ABR Loans into LIBOR Loans and Borrower shall, on the last
day(s) of the then current Interest Period(s) for the outstanding LIBOR Loans,
either prepay such Loans of such affected Lenders or Convert such Loans of such
affected Lenders into ABR Loans in accordance with Section 2.09.
5.03. ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender or
Issuing Lender or its Applicable Lending Office to honor its obligation to make
or maintain LIBOR Loans or issue Letters of Credit hereunder (and, in the sole
opinion of such Lender or Issuing Lender, the designation of a different
Applicable Lending Office would either not avoid such unlawfulness or would be
disadvantageous to such Lender or Issuing Lender), then such Lender or Issuing
Lender shall promptly notify Borrower thereof (with a copy to the Administrative
Agent) and such Lender's or Issuing Lender's obligation to make or Continue, or
to Convert Loans of any other Type into, LIBOR Loans or issue Letters of Credit
shall be suspended until such time as such Lender or Issuing Lender may again
make and maintain LIBOR Loans or issue Letters of Credit (in which case the
provisions of Section 5.04 shall be applicable).
5.04. TREATMENT OF AFFECTED LOANS. If the obligation of any
Lender to make LIBOR Loans or to Continue, or to Convert ABR Loans into, LIBOR
Loans shall be suspended pursuant to Section 5.03, such Lender's LIBOR Loans
shall be automatically Converted into ABR Loans on the last day(s) of the then
current Interest Period(s) for such LIBOR Loans (or on such earlier date as such
Lender may specify to Borrower with a copy to the Administrative Agent as is
required by law) and, unless and until such Lender gives notice as provided
below that the circumstances specified in Section 5.03 which gave rise to such
Conversion no longer exist:
(i) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal which would
otherwise be applied to such Lender's LIBOR Loans shall be applied
instead to its ABR Loans; and
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(ii) all Loans which would otherwise be made or Continued by
such Lender as LIBOR Loans shall be made or Continued instead as ABR
Loans and all ABR Loans of such Lender which would otherwise be
Converted into LIBOR Loans shall remain as ABR Loans.
If such Lender gives notice to Borrower with a copy to the Administrative Agent
that the circumstances specified in Section 5.03 which gave rise to the
Conversion of such Lender's LIBOR Loans pursuant to this Section 5.04 no longer
exist (which such Lender agrees to do promptly upon such circumstances ceasing
to exist) at a time when LIBOR Loans are outstanding, such Lender's ABR Loans
shall be automatically Converted, on the first day(s) of the next succeeding
Interest Period(s) for such outstanding LIBOR Loans, to the extent necessary so
that, after giving effect thereto, all Loans held by the Lenders holding LIBOR
Loans and by such Lender are held PRO RATA (as to principal amounts, Types and
Interest Periods) in accordance with their respective Commitments.
5.05. COMPENSATION. (a) Borrower agrees to indemnify each
Lender and to hold each Lender harmless from any loss or expense which such
Lender may sustain or incur as a consequence of (1) default by Borrower in
payment when due of the principal amount of or interest on any LIBOR Loan, (2)
default by Borrower in making a borrowing of, Conversion into or Continuation of
LIBOR Loans after Borrower has given a notice requesting the same in accordance
with the provisions of this Agreement, (3) default by Borrower in making any
prepayment after Borrower has given a notice thereof in accordance with the
provisions of the Agreement, or (4) the making of a payment or a prepayment of
LIBOR Loans on a day which is not the last day of an Interest Period with
respect thereto, including in each case, any such loss (excluding loss of
margin) or expense arising from the reemployment of funds obtained by it or from
fees payable to terminate the deposits from which such funds were obtained.
(b) For the purpose of calculation of all amounts payable to a
Lender under this Section 5.05 each Lender shall be deemed to have actually
funded its relevant LIBOR Loan through the purchase of a deposit bearing
interest at the LIBOR Rate in an amount equal to the amount of the LIBOR Loan
and having a maturity comparable to the relevant Interest Period; PROVIDED,
HOWEVER, that each Lender may fund each of its LIBOR Loans in any manner it sees
fit, and the foregoing assumption shall be utilized only for the calculation of
amounts payable under this subsection. Any Lender requesting compensation
pursuant to this Section 5.05 will furnish to the Administrative Agent and
Borrower a certificate setting forth the basis and amount of such request and
such certificate, absent manifest error, shall be conclusive. Without limiting
the survival of any other covenant hereunder, this covenant shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder.
5.06. NET PAYMENTS. (a) All payments made by Borrower or any
Guarantor hereunder or under any Note or any Guarantee will be made without
setoff, counterclaim or other defense. Except as provided in Section 5.06(b),
all such payments will be made free and clear of, and without deduction or
withholding for, any present or future Taxes now or hereafter imposed by any
Governmental Authority or by any political subdivision or taxing authority
thereof or therein with respect to such payments (but excluding any Excluded
Tax) and all interest, penalties or similar liabilities with respect thereto
(all such Taxes (other than Excluded Taxes) being referred to collectively as
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"COVERED TAXES"). If any Covered Taxes are so levied or imposed, Borrower and
each Guarantor, as the case may be, agrees (on a joint and several basis for the
Guarantors) to pay the full amount of such Covered Taxes, and such additional
amounts as may be necessary so that every payment of all amounts due under this
Agreement, the Guarantees or under any Note, after withholding or deduction for
or on account of any Covered Taxes, will not be less than the amount provided
for herein or in such Note. If any amounts are payable in respect of Covered
Taxes pursuant to the preceding sentence (any such amounts, the "GROSS-UP
AMOUNT"), Borrower and each Guarantor agrees, notwithstanding the definition of
Excluded Taxes, to reimburse (on a joint and several basis for the Guarantors)
each Lender, upon the written request of such Lender, (i) for Taxes imposed on
or measured by the net income or net profits of such Lender pursuant to the laws
of the jurisdiction in which such Lender is organized or in which the principal
office or Applicable Lending Office of such Lender is located or under the laws
of any political subdivision or taxing authority of any such jurisdiction by
reason of the making of payments in respect of Covered Taxes pursuant to this
Section (including pursuant to this sentence) and (ii) for any withholding of
Taxes as such Lender shall determine are payable by, or withheld from, such
Lender in respect of amounts paid in respect of Covered Taxes to or on behalf of
such Lender pursuant to the preceding sentence and in respect of any amounts
paid to or on behalf of such Lender pursuant to this sentence. Borrower and each
Guarantor, as the case may be, will furnish to the Administrative Agent within
45 days after the date the payment of any Covered Taxes is due pursuant to
applicable law certified copies of tax receipts or other documentation
reasonably satisfactory to such Lender evidencing such payment by Borrower or
any Guarantor. Borrower and the Guarantors agree (jointly and severally for the
Guarantors) to indemnify and hold harmless each Lender, and reimburse such
Lender upon its written request, for the amount of any Covered Taxes so levied
or imposed and paid by such Lender and any liability (including penalties,
additions to tax, interest and expenses) arising therefrom or with respect
thereto.
"EXCLUDED TAXES" shall mean other than as provided in the
third sentence of the first paragraph of this Section 5.06(a), any Tax (other
than any Other Taxes) imposed on or measured by the net income or net profits of
a Lender 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 Lender is located or any jurisdiction in which such Lender conducts
business or any subdivision thereof or therein.
(b) Each Lender that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) for U.S. federal income tax
purposes (a "NON-U.S. LENDER") agrees to deliver to Borrower and the
Administrative Agent on or prior to the Original Closing Date (or, if a new
Lender as of the Amendment and Restatement Date, on or prior to the Amendment
and Restatement Date) or, in the case of a Lender that is an assignee or
transferee of an interest under this Agreement pursuant to Section 2.11 or 12.06
(unless the respective Lender was already a Lender hereunder immediately prior
to such assignment or transfer), on the date of such assignment or transfer to
such Lender, (i) two accurate and complete original signed copies of Internal
Revenue Service Form W-8ECI or W-8BEN (or successor forms) certifying to such
Lender'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,
with respect to any assignee Lender, at least as extensive as the assigning
Lender), or (ii) if the Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code
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and cannot deliver either Internal Revenue Service Form W-8BEN or W-8ECI
pursuant to clause (i) above, (x) a certificate substantially in the form of
EXHIBIT L (any such certificate, a "SECTION 5.06 CERTIFICATE") and (y) two
accurate and complete original signed copies of Internal Revenue Service Form
W-8 (or successor form) certifying to such Lender'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, with respect to any
assignee Lender, at least as extensive as the assigning Lender). At the
request of Borrower, each Lender that is a United States person (as such term
is defined in Section 7701(a)(30) of the Code) for U.S. federal income tax
purposes (a "U.S. LENDER"), other than a U.S. Lender that is a corporation or
financial institution (an "EXEMPT LENDER"), agrees to deliver to Borrower and
the Administrative Agent as soon as practicable after the Amendment and
Restatement Date, or in the case of a U.S. Lender that is not an Exempt
Lender and that is an assignee or transferee of an interest under this
Agreement pursuant to Section 2.11 or 12.06 (unless the respective Lender was
already a Lender hereunder immediately prior to such assignment or transfer),
on the date of such assignment or transfer to such Lender, two accurate and
complete original signed copies of Internal Revenue Service Form W-9 (or
successor form) in order to demonstrate such Lender's entitlement to a
complete exemption from United States back-up withholding tax with respect to
payments to be made under this Agreement and under any Note. In addition,
each Lender agrees that from time to time after the Original Closing Date,
when a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, it will deliver
to Borrower and the Administrative Agent two new accurate and complete
original signed copies of Internal Revenue Service Form W-8ECI, Form W-8BEN,
Form W-8 and a Section 5.06 Certificate, or Form W-9 (if a Form W-9 was
previously provided to Borrower and the Administrative Agent pursuant to
Borrower's request), as the case may be, and such other forms as may be
required in order to confirm or establish the entitlement of such Lender 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 Borrower and the Administrative Agent of its inability to
deliver any such form or certificate, in which case such Lender shall not be
required to deliver any such form or certificate pursuant to this Section
5.06(b). Notwithstanding the foregoing, no Lender shall be required to
deliver any such form or certificate if a change in treaty, law or regulation
has occurred prior to the date on which such delivery would otherwise be
required that renders any such form or certificate inapplicable or would
prevent the Lender from duly completing and delivering any such form or
certificate with respect to it and such Lender so advises Borrower. Neither
Borrower nor any Guarantor shall be required to indemnify any Non-U.S.
Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect
of any Covered Taxes to the extent that (i) the obligation to pay such
Covered Taxes would not have arisen but for a failure by such Non-U.S. Lender
to comply with the provisions of this Section 5.06(b) or (ii) if the Internal
Revenue Service makes a final determination that a Lender is a "conduit
entity" participating in a "conduit financing arrangement" within the meaning
of Treasury Regulation Section 1.881-3, such additional amounts are in excess
of the amounts that would otherwise have been payable had such Lender not
been a "conduit entity" participating in a "conduit financing arrangement"
within the meaning of Treasury Regulation Section 1.881-3. Notwithstanding
anything to the contrary contained in the preceding sentence or elsewhere in
this Section 5.06 and except as set forth in Section 12.06(b), Borrower
agrees to pay additional amounts and to indemnify each Lender in the manner
set forth in Section 5.06(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any
amounts deducted or withheld by it as described in the immediately
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preceding sentence as a result of any changes after the Original Closing Date
in any applicable law, treaty, governmental rule, regulation, guideline or
order, or in the interpretation thereof, relating to the deducting or
withholding of income or similar Covered Taxes. For purposes of the
immediately preceding sentence, the final U.S. Treasury regulations that were
issued October 6, 1997 with respect to the withholding of United States
federal income tax (the "NEW WITHHOLDING REGULATIONS") shall not be
considered to constitute a change after the Original Closing Date, or
otherwise, in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the
deducting or withholding of income or similar Covered Taxes, notwithstanding
that the New Withholding Regulations generally are only effective for
payments made after December 31, 2000.
(c) In addition, Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "OTHER TAXES").
(d) Any Lender claiming any additional amounts payable
pursuant to this Section 5.06 agrees to use (at the Obligors' expense)
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Applicable Lending Office if it
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue; PROVIDED, HOWEVER, that such change of the
Applicable Lending Office, and the filing of any certificates or forms
contemplated by the immediately succeeding sentence, would not, in the sole
judgment of such Lender, be otherwise disadvantageous to such Lender. Each
Lender shall submit to Borrower or any applicable Governmental Authority all
certificates or forms relating to Taxes reasonably requested of it by Borrower
pursuant to applicable provisions of the Code, treaties or regulations.
(e) If Borrower or any Guarantor pays any Gross-up Amount or
additional amount under this Section 5.06 to a Lender and such Lender determines
in its sole and absolute discretion that it has actually received or realized in
connection therewith any refund or any reduction of, or credit against, its tax
liabilities (a "TAX BENEFIT"), such Lender shall pay to such Borrower or such
Guarantor, as the case may be, an amount that the Lender shall, in its sole and
absolute discretion, determine is equal to the net benefit, after tax, which was
obtained by the Lender as a consequence of such Tax Benefit; PROVIDED, HOWEVER,
that (i) such Lender shall not be required to make any payment under this
Section 5.06(e) if an Event of Default shall have occurred and be continuing;
(ii) any taxes that are imposed on a Lender as a result of a disallowance or
reduction (including through the expiration of any tax credit carryover or
carryback of such Lender that otherwise would not have expired) of any Tax
Benefit with respect to which such Lender has made a payment to Borrower or any
Guarantor pursuant to this Section 5.06(e) shall be treated as a tax for which
Borrower or any Guarantor is obligated to indemnify such Lender pursuant to this
Section 5.06 without any exclusions or defenses; and (iii) nothing in this
Section 5.06(e) shall require the Lender to disclose any confidential
information to Borrower or any Guarantor (including its tax returns).
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Section 6. GUARANTEE.
6.01. THE GUARANTEE. The Guarantors hereby jointly and
severally guarantee as a primary obligor and not as a surety to each Lender,
Issuing Lender and Agent and their respective successors and assigns the
prompt payment in full when due (whether at stated maturity, by acceleration
or otherwise) of the principal of and interest (including any interest, fees,
costs or charges that would accrue but for the provisions of the Bankruptcy
Code after any bankruptcy or insolvency petition under the Bankruptcy Code)
on the Loans made by the Lenders to, and the Notes held by each Lender of,
Borrower and all other Obligations from time to time owing to the Lenders,
Issuing Lender or Agents by Borrower under this Agreement and under the Notes
and by any Obligor under any of the other Credit Documents, and all
obligations of Borrower or any Subsidiary to any Lender or any Affiliate of
any Lender in respect of any Swap Contract and all Obligations owing to the
Issuing Lender under the Letter of Credit Documents, in each case strictly in
accordance with the terms thereof (such obligations being herein collectively
called the "GUARANTEED OBLIGATIONS"). The Guarantors hereby jointly and
severally agree that if Borrower shall fail to pay in full when due (whether
at stated maturity, by acceleration or otherwise) any of the Guaranteed
Obligations, the Guarantors will promptly pay the same, without any demand or
notice whatsoever, and that in the case of any extension of time of payment
or renewal of any of the Guaranteed Obligations, the same will be promptly
paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
6.02. OBLIGATIONS UNCONDITIONAL. The obligations of the
Guarantors under Section 6.01 are absolute, irrevocable and unconditional,
joint and several, irrespective of the value, genuineness, validity,
regularity or enforceability of the obligations of Borrower under this
Agreement, the Notes or any other agreement or instrument referred to herein
or therein, or any substitution, release or exchange of any other guarantee
of or security for any of the Guaranteed Obligations, and, to the fullest
extent permitted by applicable law, irrespective of any other circumstance
whatsoever that might otherwise constitute a legal or equitable discharge or
defense of a surety or Guarantor (except for payment in full). Without
limiting the generality of the foregoing, it is agreed that the occurrence of
any one or more of the following shall not alter or impair the liability of
the Guarantors hereunder which shall remain absolute, irrevocable and
unconditional under any and all circumstances as described above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of
the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be amended in
any respect, or any right under this Agreement, the Notes or any other
Credit Document or any other agreement or instrument re-
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ferred to herein or therein shall be amended or waived in any respect
or any other guarantee of any of the Guaranteed Obligations or any
security therefor shall be released or exchanged in whole or in part
or otherwise dealt with;
(iv) any lien or security interest granted to, or in favor of,
the Issuing Lender or any Lender or Agent as security for any of the
Guaranteed Obligations shall fail to be perfected; or
(v) the release of any other Guarantor.
The Guarantors hereby expressly waive diligence,
presentment, demand of payment, protest and all notices whatsoever, and any
requirement that the Issuing Lender or any Agent or any Lender exhaust any
right, power or remedy or proceed against Borrower under this Agreement or
the Notes or any other agreement or instrument referred to herein or therein,
or against any other Person under any other guarantee of, or security for,
any of the Guaranteed Obligations. The Guarantors waive any and all notice of
the creation, renewal, extension, waiver, termination or accrual of any of
the Guaranteed Obligations and notice of or proof of reliance by the Issuing
Lender, any Lender or any Agent upon this guarantee or acceptance of this
guarantee, and the Guaranteed Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred in
reliance upon this guarantee, and all dealings between Borrower and the
Issuing Lender, Lenders and Agents shall likewise be conclusively presumed to
have been had or consummated in reliance upon this guarantee. This guarantee
shall be construed as a continuing, absolute, irrevocable and unconditional
guarantee of payment without regard to any right of offset with respect to
the Guaranteed Obligations at any time or from time to time held by the
Issuing Lender, Lenders and Agents, and the obligations and liabilities of
the Guarantors hereunder shall not be conditioned or contingent upon the
pursuit by the Issuing Lender, Lenders or Agents or any other Person at any
time of any right or remedy against Borrower or against any other Person
which may be or become liable in respect of all or any part of the Guaranteed
Obligations or against any collateral security or guarantee therefor or right
of offset with respect thereto. This guarantee shall remain in full force and
effect and be binding in accordance with and to the extent of its terms upon
the Guarantors and the successors and assigns thereof, and shall inure to the
benefit of the Lenders, and their respective successors and assigns,
notwithstanding that from time to time during the term of this Agreement
there may be no Guaranteed Obligations outstanding.
6.03. REINSTATEMENT. The obligations of the Guarantors
under this Section 6 shall be automatically reinstated if and to the extent
that for any reason any payment by or on behalf of Borrower in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any
holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise. The Guarantors
jointly and severally agree that they will indemnify the Issuing Lender, each
Agent and each Lender on demand for all reasonable costs and expenses
(including reasonable fees of counsel) incurred by the Issuing Lender, such
Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
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similar payment under any bankruptcy, insolvency or similar law, other than
any costs or expenses resulting from the gross negligence or bad faith of
such Creditor.
6.04. SUBROGATION; SUBORDINATION. Each Guarantor hereby
agrees that until the indefeasible payment and satisfaction in full in cash
of all Guaranteed Obligations and the expiration and termination of the
Commitments of the Lenders under this Agreement it shall not exercise any
right or remedy arising by reason of any performance by it of its guarantee
in Section 6.01, whether by subrogation or otherwise, against Borrower or any
other Guarantor of any of the Guaranteed Obligations or any security for any
of the Guaranteed Obligations. The payment of any amounts due with respect to
any indebtedness of Borrower or any other Guarantor now or hereafter owing to
any Guarantor by reason of any payment by such Guarantor under the Guarantee
in this Section 6 is hereby subordinated to the prior indefeasible payment in
full in cash of the Guaranteed Obligations. Each Guarantor agrees that it
will not demand, sue for or otherwise attempt to collect any such
indebtedness of Borrower to such Guarantor until the Obligations shall have
been indefeasibly paid in full in cash. If, notwithstanding the foregoing
sentence, any Guarantor shall prior to the indefeasible payment in full in
cash of the Guaranteed Obligations collect, enforce or receive any amounts in
respect of such indebtedness, such amounts shall be collected, enforced and
received by such Guarantor as trustee for the Lead Arranger, the Issuing
Lender and the Lenders and be paid over to the Administrative Agent on
account of the Guaranteed Obligations without affecting in any manner the
liability of such Guarantor under the other provisions of the guaranty
contained herein.
6.05. REMEDIES. The Guarantors jointly and severally agree
that, as between the Guarantors and the Lenders, the obligations of Borrower
under this Agreement and the Notes may be declared to be forthwith due and
payable as provided in Section 10 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section
10) for purposes of Section 6.01 notwithstanding any stay, injunction or
other prohibition preventing such declaration (or such obligations from
becoming automatically due and payable) as against Borrower and that, in the
event of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and
payable by Borrower) shall forthwith become due and payable by the Guarantors
for purposes of Section 6.01.
6.06. INSTRUMENT FOR THE PAYMENT OF MONEY. Each Guarantor
hereby acknowledges that the guarantee in this Section 6 constitutes an
instrument for the payment of money, and consents and agrees that any Lender
or Agent, at its sole option, in the event of a dispute by such Guarantor in
the payment of any moneys due hereunder, shall have the right to bring a
motion-action under New York CPLR Section 3213.
6.07. CONTINUING GUARANTEE. The guarantee in this Section 6
is a continuing guarantee, and shall apply to all Guaranteed Obligations
whenever arising.
6.08. GENERAL LIMITATION ON GUARANTEE OBLIGATIONS. In any
action or proceeding involving any state corporate law, or any state, Federal
or foreign bankruptcy, insolvency, reorganization or other law affecting the
rights of creditors generally, if the obligations of any Guarantor under
Section 6.01 would otherwise be held or determined to be void, voidable,
invalid or unenforceable, or
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subordinated to the claims of any other creditors, on account of the amount
of its liability under Section 6.01, then, notwithstanding any other
provision to the contrary, the amount of such liability shall, without any
further action by such Guarantor, any Lender, any Agent or any other Person,
be automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other creditors as
determined in such action or proceeding.
Section 7. CONDITIONS PRECEDENT.
7.01. EFFECTIVENESS OF ORIGINAL CREDIT AGREEMENT AND
INITIAL EXTENSION OF CREDIT UNDER THE ORIGINAL CREDIT AGREEMENT. The
conditions to the Loans made on the Original Closing Date set forth in
Section 7.01 of the Original Credit Agreement have been certified by Borrower
to have been satisfied as of the Original Closing Date and the text thereof,
including any definitions used solely in Section 7.01 of the Original Credit
Agreement, is herein deleted for economy of documentation; however, such
certification continues in full force and effect. Reference is made to the
Original Credit Agreement for the text of and definitions relating to Section
7.01; PROVIDED, HOWEVER, the terms "Transactions" and "Transaction Documents"
as defined in the Original Credit Agreement shall be changed to "Original
Transactions" and "Original Transaction Documents," respectively, as such
terms are defined in this First Amended and Restated Credit Agreement.
7.02. EFFECTIVENESS OF THIS AGREEMENT AND INITIAL EXTENSION
OF CREDIT UNDER THIS AGREEMENT. The effectiveness of the Amended and Restated
Credit Documents and the obligation of the Lenders to make any initial
extension of credit hereunder (whether by making a Loan or issuing a Letter
of Credit) is subject to the satisfaction of the conditions precedent that:
(i) DOCUMENTATION AND EVIDENCE OF CERTAIN MATTERS. The Lead
Arranger shall have received the following documents, each duly
executed where appropriate (with sufficient conformed copies for each
Lender), each of which shall be reasonably satisfactory to the Lead
Arranger (and to the extent specified below, to the Majority Lenders or
to each Lender, as the case may be) in form and substance:
(1) CORPORATE DOCUMENTS. Certified true and complete
copies of the charter and by-laws and all amendments thereto
(or equivalent documents) of each Person to become an Obligor
on the Amendment and Restatement Date and of all corporate
authority for each Obligor (including board of director
resolutions and evidence of the incumbency, including specimen
signatures, of officers) with respect to the execution,
delivery and performance of such of the Amended and Restated
Credit Documents to which such Obligor is intended to be a
party and each other document to be delivered by such Obligor
from time to time in connection herewith and the extensions of
credit hereunder and the consummation of the Amended and
Restated Transactions, certified as of the Amendment and
Restatement Date as complete and correct copies thereof by the
Secretary or an Assistant Secretary of such Obligor.
(2) OFFICER'S CERTIFICATE. An Officer's Certificate
of Borrower, dated the Amendment and Restatement Date, to the
effect set forth in clauses (a) and (b) of
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Section 7.03(i) and to the effect that all conditions
precedent to the making of such extension of credit have been
satisfied (except to the extent that any such condition is
required to be satisfactory to, or determined by, any Agent,
the Lenders or the Majority Lenders).
(3) OPINIONS OF COUNSEL. (i) Opinion of Paul,
Hastings, Janofsky & Walker, LLP, counsel to the Obligors,
substantially in the form of EXHIBIT G-2 and (ii) opinion of
local counsel to the Obligors reasonably acceptable to the
Lead Arranger with respect to any Mortgages executed in
connection herewith (and each Obligor hereby instructs such
counsel to deliver such opinion to the Lenders and the
Agents).
(4) THE AMENDED AND RESTATED CREDIT AGREEMENT. This
Agreement, (i) executed and delivered by a duly authorized
officer of each Obligor with a counterpart for each Lender,
and (ii) executed and delivered by a duly authorized officer
of each Lender and Agent.
(5) NOTES. The Term Loan Notes, duly completed and
executed for each Lender that has requested Term Loan Notes
prior to the Amendment and Restatement Date.
(6) SECURITY DOCUMENTS. A pledge amendment (the
"ELLISON PLEDGE AMENDMENT") with respect to Securities of
Ellison Extrusion and each of its Subsidiaries required to be
delivered under Section 7 of the Security Agreement, such
pledge agreements required under local law in the reasonable
judgment of counsel to the Administrative Agent and requested
reasonably in advance of the intended Amendment and
Restatement Date (each of which shall be in full force and
effect) and the Perfection Certificate of each of Ellison
Extrusion and Holdings, substantially in the form of EXHIBIT
P, duly authorized, executed and delivered by the Obligors and
the certificates identified in the Ellison Pledge Amendment
and on Schedule I-A and Schedule I-B to the Joinder Agreement
of each of Ellison Extrusion and Holdings, accompanied by
undated stock powers executed in blank or undated notations or
instruments of assignment executed in blank, as applicable.
(7) SOLVENCY CERTIFICATE. A certificate from the
chief financial officer of Borrower substantially in the form
of EXHIBIT M, in form and substance reasonably satisfactory to
the Lead Arranger with respect to the Solvency of Borrower (on
a consolidated basis) immediately after giving effect to the
Transactions.
(8) INSURANCE. Evidence of insurance covering
Ellison Extrusion and the assets of Ellison W&D acquired on
the date hereof complying with the requirements of Section
9.04 and the Security Documents in scope, form and substance
reasonably satisfactory to the Lead Arranger and certificates
naming the Administrative Agent as an additional insured
and/or loss payee, and stating that such insurance shall not
be
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canceled or revised without 30 days prior written notice by
the insurer to the Administrative Agent.
(9) TRANSACTION DOCUMENTS, ETC. Copies of each of
the Amended and Restated Transaction Documents, any management
or similar agreement entered into by any Obligor or any
executive officer or director thereof with Holdings or any of
its Affiliates, and all exhibits, appendices, annexes and
schedules to any thereof, each certified by a senior officer
of Borrower as true, complete and correct copies thereof.
(10) FINANCIAL STATEMENTS OF ELLISON TARGET. (i)
Audited financial statements of Ellison Target for the fiscal
years ended December 31, 1998 and 1999, together with the
report thereon by KPMG LLP, certified public accountants,
which shall not have any material qualification, and (ii)
unaudited interim financial statements for each of (x)
Borrower and (y) Ellison Target, for the six-month period
ended on June 30, 2000.
(ii) DATE OF CLOSING. Such extension of credit shall be made on
or before October 30, 2000.
(iii) CONSUMMATION OF AMENDED AND RESTATED TRANSACTIONS. The
Amended and Restated Transactions shall have been or shall
simultaneously be consummated in accordance with the terms hereof and
the terms of the Amended and Restated Transaction Documents and the
other documentation therefor (without the waiver or amendment of any
material condition unless consented to by (x) the Lead Arranger and the
Majority Lenders, in the case of waivers of conditions in the Ellison
Acquisition Agreement, the Wing Purchase Agreement and the Atrium Wood
Purchase Agreement; and (y) the Lead Arranger in the case of any other
Transaction Document).
(iv) MAXIMUM CONSIDERATION. The total cash consideration
(including debt assumed) to consummate the Ellison Acquisition shall
not exceed $100.0 million.
(v) NO OTHER DEBT OR PREFERRED STOCK. After giving effect to
the Amended and Restated Transactions and the initial borrowings
hereunder on the Amendment and Restatement Date, no Company shall have
outstanding any Indebtedness or preferred stock (or direct or indirect
guarantee or other credit support in respect thereof) outstanding other
than (i) the Loans, (ii) the Senior Subordinated Notes, (iii) the
Mezzanine Securities and (iv) Capitalized Lease Obligations and
purchase money indebtedness listed on SCHEDULE 9.08 not exceeding $5.0
million in the aggregate on terms and conditions reasonably
satisfactory to the Lead Arranger.
(vi) TAX SHARING AGREEMENT. The Tax Sharing Agreement shall be
in full force and effect in form and substance satisfactory to the Lead
Arranger.
(vii) NET AVAILABLE PROCEEDS FROM WING ASSET SALE AND ATRIUM
WOOD ASSET SALE. All Net Available Proceeds received from the Wing
Asset Sale and the Atrium Wood Asset
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Sale shall be applied to finance the Ellison Acquisition and to pay
fees and expenses related thereto, to pay fees and expenses related
to the Amended and Restated Transactions and/or other general business
purposes relating to or resulting from the Amended and Restated
Transactions.
(viii) MERGER OF ATRIUM CORPORATION AND D AND W HOLDINGS, INC.
The merger of Atrium Corporation with and into D and W Holdings, Inc.,
with D and W Holdings, Inc. remaining as the surviving corporation
shall have taken place on terms and conditions reasonably acceptable to
the Lead Arranger.
(ix) NO MATERIAL ADVERSE CHANGE. There shall not have occurred
or become known any Material Adverse Change of Ellison Target or
Borrower, in each case together with their respective Subsidiaries
taken as a whole, after giving effect to the Transactions, since
December 31, 1999.
(x) PRO FORMA BALANCE SHEET. The Lead Arranger and the Lenders
shall have received an estimated pro forma consolidated balance sheet
of Borrower as of June 30, 2000 after giving effect to the Amended and
Restated Transactions.
(xi) APPROVALS. All requisite Governmental Authorities and
third parties shall have approved or consented to the Amended and
Restated Transactions and the other transactions contemplated hereby to
the extent required and all applicable appeal periods shall have
expired. There shall be no governmental or judicial action or
Proceeding, actual or threatened, that has had the effect of (or could
reasonably be expected to have the effect of) restraining, preventing
or imposing materially burdensome conditions on any of the Amended and
Restated Transactions or the other transactions contemplated hereby.
(xii) PAYMENT OF FEES AND EXPENSES OF AGENTS. All accrued fees
and expenses (including the reasonable fees and expenses of Cahill
Gordon & Reindel, special counsel to both the Lead Arranger and the
Administrative Agent (and appropriate local counsel in respect of
security interest matters)) of the Lead Arranger and the Administrative
Agent in connection with the Credit Documents shall have been paid.
(xiii) MAXIMUM REVOLVING CREDIT LOANS. After giving effect to the
Amended and Restated Transactions, the aggregate amount outstanding
under the Revolving Credit Facility shall not exceed $47.0 million.
(xiv) FILINGS AND LIEN SEARCHES. The Obligors shall have
authorized, executed and delivered each of the following to the extent
not delivered on the Original Closing Date:
(1) UCC Financing Statements (Form UCC-1) or UCC
amendments (Form UCC-3) in appropriate form for filing under
the UCC and any other applicable law, rule or regulation in
each jurisdiction as may be necessary or appropriate to
perfect the Liens created, or purported to be created, by the
Security Documents;
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(2) certified copies of Requests for Information
(Form UCC-11), tax lien, judgment lien and pending lawsuit
searches or equivalent reports or lien search reports, each of
a recent date listing all effective financing statements, lien
notices or comparable documents that name any of Ellison
Company or its Subsidiaries as debtor and that are filed in
those state and county jurisdictions in which any of the
Collateral of such Person is located and the state and county
jurisdictions in which each such Person's principal place of
business is located, none of which encumber the Collateral
covered or intended to be covered by the Security Agreement
other than those encumbrances which constitute Prior Liens;
(3) to the extent equipment or inventory is
maintained on a leased premise, a copy of each Lease or other
agreement relating to such possessory interest in such leased
premise;
(4) with respect to each Mortgage executed prior to
the date hereof, a Mortgage Amendment and endorsements (in
form and substance satisfactory to the Lead Arranger and the
Administrative Agent) to the title insurance policies relating
thereto, and delivery of such other security or other
documents and the taking of all actions as may be necessary
or, in the opinion of the Lead Arranger, desirable, to perfect
or continue the Liens created, or purported to be created by
such Mortgages; and
(5) evidence of the completion of all recordings and
filings of, or with respect to, the Security Agreement,
including filings with the United States Patent, Trademark and
Copyright offices, and delivery of such other security and
other documents and the taking of all actions as may be
necessary or, in the opinion of the Lead Arranger, desirable,
to perfect or continue the Liens created, or purported to be
created, by the Security Agreement.
(xv) CONDITIONS RELATING TO MORTGAGED REAL PROPERTY AND REAL
PROPERTY. To the extent not delivered on the Original Closing Date, on
or prior to the Amendment and Restatement Date, each Obligor to enter
into a Mortgage shall have caused to be delivered to Administrative
Agent, on behalf of the Lenders, the following documents and
instruments;
(1) a Mortgage encumbering each Mortgaged Real
Property in favor of Administrative Agent, for the benefit of
the Lenders, in form for recording in the recording office of
each jurisdiction where each such Mortgaged Real Property is
situated, together with such other documentation as shall be
required to create a lien under applicable law, and such other
similar statements as are contemplated by the counsel opinions
described in Section 7.02(i)(3)(ii) with respect to such
Mortgage, all of which shall be in form and substance
reasonably satisfactory to the Lead Arranger, which Mortgage
and other instruments shall when recorded be effective to
create a first priority Lien on such Mortgaged Real Property
subordinate to no Liens other than Prior Liens applicable to
such Mortgaged Real Property as shall be acceptable to
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the Lead Arranger and the Administrative Agent and subject to
no other Liens except Liens expressly permitted by such
Mortgage;
(2) with respect to each Mortgaged Real Property,
such consents, approvals, estoppels, tenant subordination
agreements or other instruments as necessary or required to
consummate the Amended and Restated Transactions or as shall
reasonably be deemed necessary by the Lead Arranger to
consummate the transactions contemplated hereby or to grant
the Lien contemplated by the Mortgage.
(3) the following documents and instruments:
(i) with respect to each Mortgage, a policy (or commitment to
issue a policy) of title insurance insuring (or committing to insure)
the Lien of such Mortgage as a valid first priority Lien on the real
property and fixtures described therein in an amount not less than 115%
of the fair market value thereof which policy (or commitment) shall (a)
be issued by the Title Company, (b) include such reinsurance
arrangements (with provisions for direct access) as shall be reasonably
acceptable to the Lead Arranger, (c) have been supplemented by such
endorsements (or where such endorsements are not available, opinions of
special counsel or other professionals reasonably acceptable to the
Lead Arranger) as shall be reasonably requested by the Lead Arranger,
(d) such affidavits and instruments of indemnification as shall be
reasonably required to induce the Title Company to issue the policy or
policies (or commitment) and endorsements contemplated in this
subparagraph (iii) and (e) contain no exceptions to title other than
exceptions for Prior Liens applicable to such Mortgaged Real Property
as shall be acceptable to the Lead Arranger and the Administrative
Agent;
(ii) with respect to each Mortgaged Real Property (other than
as set forth on SCHEDULE 7.02(XV)), a Survey;
(iii) with respect to each Mortgaged Real Property, policies
or certificates of insurance as required by the Mortgage relating
thereto;
(iv) with respect to each Mortgaged Real Property, UCC,
judgment and tax lien searches complying with Section 7.02(xiv) above;
(v) evidence acceptable to the Lead Arranger of payment by
Borrower of all title insurance premiums, search and examination
charges, survey costs, mortgage recording taxes and related charges
required for the recording of the Mortgages and issuance of the title
insurance policies referred to in subclause (3)(i) of this Section
7.02(xv) above;
(vi) with respect to each Real Property or Mortgaged Real
Property, copies of all Leases, subleases, leases in which Borrower
holds the tenant's
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interest or other agreements relating to possessory interests, if any.
To the extent any of the foregoing affect any Mortgaged Real Property,
such agreement shall be subordinate to the Lien of the Mortgage to be
recorded against such Mortgaged Real Property either expressly by its
terms or pursuant to a subordination, non-disturbance and attornment
agreement and shall otherwise be reasonably acceptable to the Lead
Arranger;
(vii) with respect to each Mortgaged Real Property, Borrower
shall have made all notification, registrations and filings, to the
extent required by, and in accordance with, all State and Local Real
Property Disclosure Requirements applicable to such Mortgaged Real
Property, including the use of forms provided by state or local
agencies, where such forms exist, whether to Borrower or to or with the
state or local agency; and
(viii) with respect to each Mortgaged Real Property, an
Officer's Certificate or other evidence reasonably satisfactory to the
Lead Arranger that as of the date thereof there (a) has been issued and
is in effect, to the extent required, a valid and proper certificate of
occupancy or local or foreign equivalent for the use then being made of
such Mortgaged Real Property, (b) has not occurred any material
Casualty Event of any Mortgaged Real Property and (c) except as could
not be reasonably expected to have a Material Adverse Effect or as may
be disclosed in the Survey of such Mortgaged Real Property delivered
pursuant to subclause (3)(ii) of this Section 7.02(xv) above, are no
disputes regarding boundary lines, location, encroachment or possession
of such Mortgaged Real Property and no state of facts existing which
could give rise to any such claim.
(xvi) INVESTOR DEBT SECURITIES. The 12% Senior Discount Notes
due 2010 of Atrium Corporation shall have been cancelled and converted
into equity of Holdings on terms and conditions reasonably acceptable
to the Lead Arranger.
(xvii) MEZZANINE FINANCING. The Mezzanine Financing shall be
consummated and result in gross proceeds of not less than $36.5 million
in cash.
(xviii) JOINDER AGREEMENT. The Lead Arranger shall have
received a joinder agreement from each of Holdings and Ellison
Extrusion (which shall be in full force and effect) duly authorized,
executed and delivered by Holdings and Ellison Extrusion in the form
attached to the Security Agreement as Exhibit 4.
(xix) NO DEFAULT OR EVENT OF DEFAULT UNDER THE ORIGINAL CREDIT
AGREEMENT. Immediately prior to the Amendment and Restatement Date, no
Default or Event of Default (as defined in the Original Credit
Agreement) has occurred and is continuing under the Original Credit
Agreement.
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(xx) CAPITALIZATION AND CORPORATE STRUCTURE. The Lead Arranger
shall be satisfied (in its reasonable judgment) with the capitalization
and corporate and organizational structure of Borrower (after giving
effect to the Amended and Restated Transactions).
(xxi) ENVIRONMENTAL REPORTS. The Lead Arranger and the Lenders
shall have received third-party environmental reports reasonably
satisfactory to them (including Phase I reports) reasonably requested
regarding the Ellison Acquisition.
(xxii) RETAINED EQUITY IN ATRIUM. The current shareholders of
Ellison Extrusion shall retain common equity in Borrower or Holdings
with a value of not less than $26.25 million on terms and conditions
and pursuant to documentation reasonably satisfactory to the Lead
Arranger.
(xxiii) NEW CASH COMMON EQUITY. New cash common equity in an
amount not less than $21.0 million shall have been provided on the
Amendment and Restatement Date to Borrower or Holdings on terms and
conditions and pursuant to documentation reasonably acceptable to Lead
Arranger (exclusive of any amount received in connection with the
Mezzanine Financing).
(xxiv) WING ASSET SALE AND ATRIUM WOOD ASSET SALE. The Wing
Asset Sale and the Atrium Wood Asset Sale shall have been consummated
and shall have generated gross proceeds of approximately $20.1 million
and $3.7 million, respectively.
(xxv) OTHER MATTERS. The Lead Arranger and the Lenders shall
have received such other legal opinions, corporate documents and other
instruments and/or certificates as the Lead Arranger or the Majority
Lenders may request in their reasonable discretion.
(xxvi) CONVERSION OF NOTE TO EQUITY. The $5,000,000
subordinated note of Borrower owing to Atrium Holdings referenced in
Section One (1) of Amendment and Waiver No. 7 dated as of August 25,
2000 to this Agreement shall have been (or substantially concurrently
with the closing hereunder will be) converted into common equity of
Borrower and shall no longer be outstanding or in effect.
7.03. INITIAL AND SUBSEQUENT EXTENSIONS OF CREDIT UNDER THIS
AGREEMENT. The obligation of the Lenders to make any Loan or otherwise extend
any credit to Borrower upon the occasion of each borrowing or other extension of
credit hereunder (including the initial borrowing on the Amendment and
Restatement Date) is subject to the further conditions precedent that:
(i) NO DEFAULT; REPRESENTATIONS AND WARRANTIES TRUE. Both
immediately prior to the making of such Loan or other extension of
credit and also after giving pro forma effect thereto and to the
intended use thereof:
(a) no Default shall have occurred and be
continuing; and
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(b) the representations and warranties made by the
Obligors in Section 8, and by each Obligor in each of the
other Credit Documents to which it is a party, shall be true
and correct in all material respects on and as of the date of
the making of such Loan or other extension of credit with the
same force and effect as if made on and as of such date (or,
if any such representation or warranty is expressly stated to
have been made as of a specific date, as of such specific
date).
(ii) NO LEGAL BAR. The Loans and the use of proceeds thereof
shall not contravene, violate or conflict with, nor involve any Lender
in a violation of, any law, rule, injunction, or regulation or
determination of any court of law or other Governmental Authority.
Each notice of borrowing or request for the issuance of a
Letter of Credit by Borrower hereunder shall constitute a certification by
Borrower to the effect set forth in clause (i) above (both as of the date of
such notice or request and, unless Borrower otherwise notifies Administrative
Agent prior to the date of such borrowing or issuance, as of the date of such
borrowing or issuance).
Each notice submitted by Borrower hereunder for an
extension of credit hereunder shall constitute a representation and warranty
by Borrower, as of the date of such notice and as of the relevant borrowing
date or date of issuance of a Letter of Credit, as applicable, that the
applicable conditions in Sections 7.02 and 7.03 have been satisfied or waived
in accordance with the terms hereof.
7.04. PERMITTED ACQUISITIONS. The obligation of the Lenders
to make any Revolving Credit Loan or otherwise extend any credit to Borrower,
the proceeds of which will be used to make a Permitted Acquisition, is
subject to the satisfaction of the conditions set forth in Sections 7.02 (if
the date of such extension of credit is the Amendment and Restatement Date)
and 7.03 and to the further condition precedent that there is at least $10.0
million of aggregate Unutilized Revolving Credit Commitments after giving
effect to such extension of credit to effect any such Permitted Acquisition.
Section 8. REPRESENTATIONS AND WARRANTIES. Each of the
Obligors represents and warrants to the Creditors that, on the Amendment and
Restatement Date and at and as of each Funding Date (in each case immediately
before and immediately after giving effect to the transactions contemplated
to occur on such date (including the Amended and Restated Transactions)):
8.01. CORPORATE EXISTENCE. Each Obligor and each
Subsidiary: (a) is a corporation, partnership or other entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its organization; (b) has all requisite corporate or other power and
authority, and has all governmental licenses, authorizations, consents and
approvals necessary to own its Property and carry on its business as now
being conducted, except as would not, individually or in the aggregate, be
reasonably likely to have a Material Adverse Effect; and (c) is qualified to
do business and is in good standing in all jurisdictions in which the nature
of the business conducted by it makes such qualification necessary and where
failure to be so qualified and in good standing individually or in the
aggregate is reasonably likely to have a Material Adverse Effect except as
provided for on Section 9.28(g).
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8.02. FINANCIAL CONDITION; ETC. (a) Borrower has heretofore
delivered to the Lenders (A) the audited consolidated balance sheets of
Borrower and its Subsidiaries as of December 31, 1997, December 31, 1998 and
December 31, 1999, and the related statements of earnings, changes in
stockholders' equity and cash flows for the fiscal years ended on those
dates, together with reports thereon by PricewaterhouseCoopers LLP, (B) the
unaudited consolidated balance sheets of Borrower and its Subsidiaries as of
June 30, 2000 and the related statements of earnings and cash flows for the
six-month period ended on such date, (C) the audited consolidated balance
sheet of Ellison Target as of December 31, 1998 and December 31, 1999, and
the related statements of earnings, changes in stockholders' equity and cash
flows for the fiscal years ended on those dates, together with reports
thereon by KPMG LLP, and (D) the unaudited consolidated balance sheet of
Ellison Target as of June 30, 2000 and the related statements of earnings for
the six-month period ended on such date. All of said financial statements,
including in each case the related schedules and notes are true, complete (in
the case of year-end financial statements) and correct in all material
respects, have been prepared in accordance with GAAP consistently applied
(other than the omission of footnotes with respect to interim statements) and
present fairly the financial position of Borrower and its Subsidiaries and
Ellison Target, as the case may be, as of the respective dates of said
balance sheets and the results of their operations for the respective periods
covered thereby, subject (in the case of interim statements) to period-end
audit adjustments.
(b) Except as set forth in the financial statements or
other information referred to in Section 8.02(a), as of the Amendment and
Restatement Date there are no material liabilities of any Company of any
kind, whether accrued, contingent, absolute, determined, determinable or
otherwise, and there is no existing condition, situation or set of
circumstances which is reasonably likely to result in such a liability, other
than:
(i) liabilities incurred in the ordinary course of business
consistent with past practice since December 31, 1999 which in the
aggregate are not reasonably likely to have a Material Adverse Effect;
and
(ii) liabilities under this Agreement and the other Credit
Documents or the Mezzanine Securities Documents or liabilities incurred
in connection with the transactions contemplated hereby.
(c) Except as set forth in the financial statements referred
to in Section 8.02(a), since December 31, 1999, there has been no Material
Adverse Effect or any event, change or circumstance which could reasonably be
expected to cause or evidence, either individually or together with any other
events, changes and circumstances, a Material Adverse Effect.
(d) The pro forma balance sheets of Borrower and its
Consolidated Subsidiaries as of June 30, 2000 heretofore delivered to the
Lenders (the "PRO FORMA BALANCE SHEETS"), certified by the Chief Financial
Officer of Borrower, copies of which have been heretofore furnished to each
Lender, together with the notes thereto, accurately reflect in all material
respects all adjustments necessary to give effect to the Amended and Restated
Transactions, were prepared based on good faith assump-
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tions, and present fairly in all material respects on a pro forma basis the
consolidated financial position of Borrower and its Consolidated
Subsidiaries, adjusted as described above.
8.03. LITIGATION. Except as disclosed in SCHEDULE 8.03,
there is no Proceeding pending against, or to the knowledge of any Company
threatened in writing against or affecting, any Company or any of its
respective Properties before any Governmental Authority that has a reasonable
likelihood of being adversely determined and that, if determined or resolved
adversely to such Company in accordance with the plaintiff's demands, is
reasonably likely to have (individually or in the aggregate) a Material
Adverse Effect.
8.04. NO BREACH; NO DEFAULT. (a) None of the execution,
delivery and performance by each of the Obligors of any Credit Document or
Transaction Document to which it is a party and the consummation of the
transactions herein and therein contemplated (including the Transactions)
will (i) conflict with or result in a breach of, or require any consent
(which has not been obtained and is in full force and effect) under, any
Organic Document of any Company, or any applicable Requirement of Law or any
order, writ, injunction or decree of any Governmental Authority binding on
any Company, or any term or provision of any Contractual Obligation of any
Company, or (ii) constitute (with due notice or lapse of time or both) a
default under any such Contractual Obligation, or (iii) result in the
creation or imposition of any Lien (except for the Liens created pursuant to
the Security Documents) upon any Property of any Company pursuant to the
terms of any such Contractual Obligation, except with respect to each of the
foregoing which is not (either individually or in the aggregate) reasonably
likely to have a Material Adverse Effect.
(b) No Company is in default under or with respect to any
Contractual Obligation (including any Transaction Document) or any order,
award or decree of any Governmental Authority or arbitrator binding upon it
or any of its Property in any respect which is likely to have (individually
or in the aggregate) a Material Adverse Effect.
(c) No Default has occurred and is continuing.
(d) Immediately prior to the Amendment and Restatement
Date, no Default or Event of Default (as defined in the Original Credit
Agreement) has occurred and is continuing under the Original Credit Agreement.
8.05. ACTION. Each of the Obligors has all necessary
corporate power, authority and legal right to execute, deliver and perform
its obligations under each Credit Document and Transaction Document to which
it is a party and to consummate the transactions herein and therein
contemplated; the execution, delivery and performance by each of the Obligors
of each Credit Document and Transaction Document to which it is a party and
the consummation of the transactions herein and therein contemplated have
been duly authorized by all necessary corporate action on its part; and this
Agreement has been duly and validly executed and delivered by each of the
Obligors and constitutes, and each of the Notes and the other Credit
Documents and Transaction Documents to which it is a party when executed and
delivered by such Obligor (in the case of the Notes, for value) will
constitute, its legal, valid and binding obligation, enforceable against each
of the Obligors in accordance
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with its terms, except as such enforceability may be limited by (a)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws of general applicability from time to time in effect affecting
the enforcement of creditors' rights and remedies and (b) the application of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
8.06. APPROVALS. No authorizations, approvals or consents
of, and no filings or registrations with, any Governmental Authority or any
securities exchange are necessary for the execution, delivery or performance
by any Obligor of the Credit Documents and the Transaction Documents to which
it is a party or for the legality, validity or enforceability hereof or
thereof or for the consummation of the transactions herein and therein
contemplated, except for filings and recordings in respect of the Liens
created pursuant to the Security Documents and, in connection with the
Transactions, except for consents, filings and authorizations that have been
maintained or made and are in full force and effect.
8.07. REPRESENTATIONS AND WARRANTIES IN TRANSACTION
DOCUMENTS. The representations and warranties of each Company set forth in
each Transaction Document were, in each case, true and correct in all
material respects as of the time such representations and warranties were
made or deemed made. To the best knowledge of each Company, the
representations and warranties of each party other than the Companies to each
Transaction Document contained therein were true and correct in all material
respects on the date made.
8.08. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
for which liability could reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed the fair market value of the assets of all
such underfunded Plans by an amount that could reasonably be expected to have
a Material Adverse Effect. Each Company is in compliance in all material
respects with the presently applicable provisions of ERISA and the Code with
respect to each Employee Benefit Plan maintained by such Company. Using
actuarial assumptions and computation methods consistent with subpart 1 of
subtitle E of Title IV of ERISA, the aggregate liabilities of any of each
ERISA Entity to all Multiemployer Plans in the event of a complete withdrawal
therefrom, as of the close of the most recent fiscal year of each such
Multiemployer Plan, would not reasonably be expected to result in a Material
Adverse Effect.
Each Foreign Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities, except
where failure to do so would not be expected to have a Material Adverse
Effect. Neither Borrower nor any Subsidiary have incurred any material
obligation in connection with the termination of or withdrawal from any
Foreign Plan. The present value of the accrued benefit liabilities (whether
or not vested) under each Foreign Plan which is funded, determined as of the
end of the most recently ended fiscal year of Borrower or Subsidiary on the
basis of actuarial assumptions, each of which is reason-
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able, did not materially exceed the current value of the assets of such
Foreign Plan, and for each Foreign Plan which is not funded, the obligations
of such Foreign Plan are properly accrued.
8.09. TAXES. Each Company has filed or caused to be filed
all U.S. federal income tax returns and all other material returns,
statements, forms and reports for taxes (the "RETURNS"), domestic or foreign,
required to be filed by it and has paid all taxes payable by it which have
become due or any assessments made against it or any of its Property and all
other material taxes, fees or other charges imposed on it or any of its
Property (including the Mortgaged Real Property) by any Governmental
Authority (other than those which, in the aggregate, are not substantial in
amount or those the amount or validity of which is currently being contested
in good faith by appropriate proceedings and with respect to which reserves
in conformity with GAAP have been provided on the books of the relevant
Company, as the case may be); the Returns accurately reflect in all material
respects all liability for taxes of the relevant Company for the periods
covered thereby; and no tax lien has been filed (except with respect to taxes
not yet due and payable) and, to the best knowledge of the Obligors, no
action, suit, proceeding, investigation, audit or claim is being asserted or
has been threatened in writing or otherwise by any authority with respect to
any such tax, fee or other charge, except as could not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect. No
Company has entered into an agreement or waiver extending any statute of
limitations relating to the payment or collection of taxes of any Company.
8.10. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT; OTHER RESTRICTIONS. No Company is an "investment company", or a
company "controlled" by an "investment company", within the meaning of the
United States Investment Company Act of 1940, as amended. No Company is a
"holding company", or an "affiliate" of a "holding company" or a "subsidiary
company" of a "holding company", within the meaning of the United States
Public Utility Holding Company Act of 1935, as amended. No Obligor is subject
to regulation under any law or regulation which limits its ability to incur
Indebtedness, other than Regulation X of the Board of Governors of the
Federal Reserve System.
8.11. ENVIRONMENTAL MATTERS. Except as disclosed in
SCHEDULE 8.11 and except as would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect: (i) each
Company is in compliance with and in the last two years has been in
compliance with, and is not subject to liability under, any Environmental
Laws applicable to it and there are no Environmental Laws, including such
Laws which have been formally proposed for public comment, which would
reasonably be expected to result in material expenditures by any Company, and
no such Environmental Laws would reasonably be expected to interfere in any
material way with current or projected operations of any Company; (ii) no
Company has received written notice that it or any of its predecessors in
interest has been identified as a potentially responsible party under the
United States Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), or any other Environmental Law,
nor has any Company received notice that any Hazardous Materials that it or
any of its predecessors in interest has used, generated, stored, treated,
handled, transported or disposed of, or arranged for disposal or treatment
of, have been found at any site at which any Person is conducting or plans to
conduct any action pursuant to any Environmental Law, and no Company, or to
the knowledge of the Obligors, any of their respective predecessors in
interest,
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has disposed of, arranged for the disposal or treatment of, or otherwise
released Hazardous Materials at any site at which any Person is conducting or
plans to conduct any action under Environmental Law; (iii) no properties now
or formerly owned, leased or operated by any Company or any of their
respective predecessors in interest, are (x) listed or proposed for listing
on the National Priorities List under CERCLA or (y) listed on the
Comprehensive Environmental Response, Compensation and Liability Information
System List promulgated pursuant to CERCLA or (z) included on any similar
lists maintained by any Governmental Authority; (iv) there are no past or
present events, conditions, activities, practices or actions, or any
agreements, judgments, decrees or orders by which any Company is bound, which
would reasonably be expected to prevent any Company's compliance with any
Environmental Law, or which would reasonably be expected to give rise to any
liability of any Company under any Environmental Law, including, without
limitation, liability under CERCLA or similar state or foreign laws; (v) no
Lien has been asserted or recorded, or to the knowledge of the Obligors,
threatened, under any Environmental Law with respect to any asset, facility,
inventory or property currently owned, leased or operated by any Company;
(vi) there are no underground storage tanks or related piping at any property
owned, operated or leased by any Company and no such tanks or related piping
have been removed from such properties; and (vii) no Company is subject to
any Proceeding alleging the violation of, or liability under, any
Environmental Law and, to the knowledge of the Obligors, no such Proceeding
is threatened.
8.12. ENVIRONMENTAL INVESTIGATIONS. All material
environmental investigations, studies, audits, assessments and data which are
in the possession, custody or control of any Company relating (i) to the
current or prior business, operations, facilities or Property of any Company
or any of their respective predecessors in interest or (ii) to any facility,
Property or other asset now or previously owned, operated, leased or used by
any Company or any of their respective predecessors in interest have been
made available to the Lead Arranger and the Lenders.
8.13. USE OF PROCEEDS. No Company is engaged principally,
or as one of its important activities, in the business of extending credit
for the purpose, whether immediate, incidental or ultimate, of buying or
carrying Margin Stock and no part of the proceeds of any extension of credit
hereunder will be used directly or indirectly and whether immediately,
incidentally or ultimately to purchase or carry any Margin Stock or to extend
credit to others for such purpose or to refund Indebtedness originally
incurred for such purpose. Borrower will use the proceeds of (A) all Term
Loans made on the Amendment and Restatement Date to finance in part the
Ellison Acquisition and to pay related fees and expenses and repay
outstanding Revolving Credit Loans, and (B) all Revolving Credit Loans for
general corporate purposes (including to pay fees and expenses for the
Amended and Restated Transactions); PROVIDED, HOWEVER, that not more than
$20.0 million in aggregate principal amount of Revolving Credit Loans shall
be used to finance Acquisitions.
Following application of the proceeds of each extension of
credit hereunder, not more than 25 percent of the value of the assets (either
of Borrower only or of Borrower and its Consolidated Subsidiaries) will be
Margin Stock. If requested by any Lender or the Lead Arranger, Borrower will
furnish to the Administrative Agent and each Lender a statement to the
foregoing effect in conformity with the requirements of FR Form U-1 referred
to in Regulation U.
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8.14. SUBSIDIARIES. As of the Amendment and Restatement Date
(after giving effect to the Amended and Restated Transactions), none of
Borrower or Holdings has any Subsidiaries or interests in partnerships, joint
ventures or business trusts other than the entities set forth on SCHEDULE
8.14. Borrower and Holdings own, as of the Amendment and Restatement Date, the
percentage of the issued and outstanding Equity Interests or other evidences
of the ownership of each of their respective Subsidiaries, partnerships or
joint ventures listed on SCHEDULE 8.14 as set forth on such Schedule. Except
as set forth on SCHEDULE 8.14, no such Subsidiary, partnership or joint
venture has issued any securities convertible into shares of its Equity
Interests (or other evidence of ownership) or any Equity Rights to acquire
such shares or securities convertible into such shares (or other evidence of
ownership), and the outstanding stock and securities (or other evidence of
ownership) of such Subsidiaries, partnerships or joint ventures are owned by
Borrower or Holdings free and clear of all Liens and Equity Rights of others
of any kind whatsoever, except for Liens pursuant to the Security Documents.
Holdings does not have any direct equity interest in any Person other than
Borrower.
8.15. PROPERTIES. Each of the Companies (i) has good title
to and beneficial ownership of all Property owned by it, including all the
Property reflected in the most recent financial statements provided hereunder
(except Property sold or otherwise disposed of since the date thereof in the
ordinary course of business or as otherwise not prohibited by the Credit
Documents), or acquired after the date thereof, free and clear of all Liens,
except Permitted Liens or Liens otherwise permitted by Section 9.07 and (ii)
is the lessee of all leasehold estates and is in possession of the Properties
purported to be leased thereunder, and each such lease is valid without
default thereunder by the lessee or, to the knowledge of the Obligors, the
lessor. Title to all Property of any Company is held by such Company free and
clear of all Liens except for Permitted Liens and Prior Liens or as otherwise
permitted by Section 9.07.
8.16. SECURITY INTEREST; ABSENCE OF FINANCING STATEMENTS;
ETC. The Security Documents, once executed and delivered, will create, in
favor of the Administrative Agent for the benefit of the Issuing Lender,
Lenders and Agents, as security for the obligations purported to be secured
thereby, a valid and enforceable, and upon filing or recording with the
appropriate Governmental Authorities and delivery of the applicable documents
to the Administrative Agent, perfected first priority security interest in and
Lien upon all of the Collateral (and the proceeds thereof), superior to and
prior to the rights of all third persons other than the holders of Prior Liens
and subject to no other Liens other than Permitted Liens or Liens otherwise
permitted by Section 9.07.
Except with respect to Prior Liens, Permitted Liens or as
otherwise permitted by Section 9.07 and the Liens created by the Security
Documents, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry, or other public office, that purports to cover,
affect or give notice of any Lien on, or security interest in, any Property of
any Company or rights thereunder.
8.17. LICENSES AND PERMITS; COMPLIANCE WITH LAWS. The
Companies hold all governmental permits, licenses, authorizations, consents
and approvals necessary for the Companies to own, lease, and operate their
respective Properties and to operate their respective businesses as now being
conducted (collectively, the "PERMITS"), except for Permits the failure of
which to obtain is not
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reasonably likely to have a Material Adverse Effect. None of the Permits has
been modified in any way that is reasonably likely to have a Material Adverse
Effect. All Permits are in full force and effect except where the failure to
be in full force and effect is not reasonably likely to have a Material
Adverse Effect.
Each Company is in material compliance with all applicable
statutes, laws, ordinances, rules, orders and regulations of any Governmental
Authority in all jurisdictions in which it is presently doing business, and
each Company will comply with all such laws and regulations which may be
imposed in the future in jurisdictions in which it may then be doing business,
in each case other than those the non-compliance with which would not
(individually or in the aggregate) reasonably be expected to have a Material
Adverse Effect. There does not exist any judgment, order or injunction
prohibiting or imposing material adverse conditions upon any of the
Transactions or the performance by any Obligor of its obligations under the
Credit Documents, the Transaction Documents and all applicable laws.
8.18. TRUE AND COMPLETE DISCLOSURE. The information,
reports, financial statements, exhibits and schedules furnished in writing by
or on behalf of any Obligor to any Creditor in connection with the
negotiation, preparation or delivery of this Agreement and the other Credit
Documents or included herein or therein or delivered pursuant hereto or
thereto or pursuant to any information memorandum distributed in connection
with the syndication of the Commitments and Loans, including all filings made
with the Commission by Borrower or any Company but in each case excluding all
projections, whether prior to or after the Amendment and Restatement Date,
when taken as a whole, do not, as of the date such information was furnished,
contain any untrue statement of material fact or omit to state a material fact
necessary in order to make the statements herein or therein, in light of the
circumstances under which they were made, not materially misleading. The
projections and pro forma financial information furnished at any time by any
Obligor to any Creditor pursuant to this Agreement have been prepared in good
faith based on assumptions believed by Borrower to be reasonable at the time
made, it being recognized by the Lenders that such financial information as it
relates to future events is not to be viewed as fact and that actual results
during the period or periods covered by such financial information may differ
from the projected results set forth therein by a material amount and no
Obligor, however, makes any representation as to the ability of any Company to
achieve the results set forth in any such projections. Each Obligor
understands that all such statements, representations and warranties shall be
deemed to have been relied upon by the Lenders as a material inducement to
make each extension of credit hereunder.
8.19. SOLVENCY; ETC. As of the Amendment and Restatement
Date and each other date of an extension of credit hereunder immediately prior
to and immediately following such extension of credit, each Obligor is and
will be Solvent (after giving effect to Section 6.08).
8.20. CONTRACTS. No Company is in default under any material
contract or agreement to which it is a party or by which it is bound, nor, to
Borrower's knowledge, does any condition exist that, with notice or lapse of
time or both, would constitute such default, excluding in any case such
defaults that are not reasonably likely to have a Material Adverse Effect.
SCHEDULE 8.20 accurately and completely lists (x) all agreements, if any,
among the stockholders (or any of their Affiliates other
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than any Company) of Holdings on the one hand and any Company on the other in
effect on the date hereof and all (y) material agreements which are in effect
on the date hereof in connection with the conduct of the business of the
Companies.
8.21. LABOR MATTERS. Set forth on SCHEDULE 8.21 is a list
and description (including dates of termination) of all collective bargaining
or similar agreements between or applicable to any Company as of the date
hereof and any union, labor organization or other bargaining agent in respect
of the employees of any Company on the date indicated on SCHEDULE 8.21. Except
as set forth in SCHEDULE 8.21, there are no strikes or other labor disputes
against any Company pending or, to the knowledge of any Obligor, threatened.
8.22. [Reserved].
Section 9. COVENANTS. Each Obligor, for itself and on behalf
of its Subsidiaries, covenants and agrees with the Creditors that, so long as
any Commitment, Loan or Letter of Credit Liability is outstanding and until
payment in full of all amounts payable by Borrower hereunder:
9.01. FINANCIAL STATEMENTS, ETC. The Companies shall deliver
to the Administrative Agent (and the Administrative Agent shall deliver to
each Lender within three Business Days after the receipt thereof):
(a) QUARTERLY FINANCIALS. As soon as available and in any
event within 45 days (or, if SEC Form 12b-25 is filed in respect of
such fiscal quarter, 50 days) after the end of each of the first three
quarterly fiscal periods of each fiscal year, consolidated statements
of operations, cash flows and stockholders' equity of Borrower and its
Consolidated Subsidiaries for such period and for the period from the
beginning of the respective fiscal year to the end of such period, and
the related consolidated balance sheet of Borrower and its Consolidated
Subsidiaries as at the end of such period, setting forth in each case
in comparative form (i) the corresponding consolidated statements of
operations, cash flows and stockholders' equity for the corresponding
periods in the preceding fiscal year (provided that for purposes of any
fiscal quarter ending on or prior to the first anniversary of the
Amendment and Restatement Date, this clause (i) shall only require pro
forma consolidated statements of operations for the corresponding
periods in the preceding fiscal year that give effect to the Amended
and Restated Transactions and all other Acquisitions that shall have
occurred during the preceding fiscal year as if they occurred on the
first day of the preceding fiscal year) and (ii) the corresponding
budget or plan for such period, accompanied by a certificate of a
Responsible Officer of Borrower, which certificate shall state that
said consolidated financial statements fairly present the consolidated
financial condition, results of operations and cash flows of Borrower
and its Consolidated Subsidiaries in accordance with GAAP, consistently
applied, as at the end of, and for, such period (subject to normal
year-end audit adjustments); in addition, Borrower shall provide
consolidated financial statements for Foreign Subsidiaries (if any) for
the same periods in fiscal years 2000 and thereafter substantially
consistent with the foregoing;
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(b) ANNUAL FINANCIALS. As soon as available and in any event
within 90 days (or, if SEC Form 12b-25 is filed in respect of such
fiscal year, 105 days) after the end of each fiscal year, consolidated
statements of operations, cash flows and stockholders' equity of
Borrower and its Consolidated Subsidiaries for such year and the
related consolidated balance sheet of Borrower and its Consolidated
Subsidiaries as at the end of such year, setting forth in each case in
comparative form (i) the corresponding consolidated information as of
the end of and for the preceding fiscal year (provided that for
purposes of any fiscal year ending on or prior to the first anniversary
of the Amendment and Restatement Date, this clause (i) shall only
require a pro forma consolidated statement of operations for the
preceding fiscal year that gives effect to the Amended and Restated
Transactions and all other Acquisitions that shall have occurred during
the preceding fiscal year as if they occurred on the first day of such
preceding fiscal year) and (ii) the corresponding budget or plan for
such period, and, in the case of the foregoing consolidated financial
statements, accompanied by an opinion, without material qualification,
thereon of independent certified public accountants of recognized
national standing, which opinion shall state that said consolidated
financial statements fairly present the consolidated financial
condition, results of operations and cash flows of Borrower and its
Consolidated Subsidiaries as at the end of, and for, such fiscal year
in accordance with GAAP, consistently applied; Borrower shall supply
such additional information and detail as to any item or items
contained on any such statement that Lenders (to the extent applicable)
may reasonably require; all such information will be prepared in
accordance with GAAP consistently applied; in addition, Borrower shall
provide consolidated financial statements for Foreign Subsidiaries (if
any) for the same periods in fiscal years 2000 and thereafter
substantially consistent with the foregoing;
(c) COMPLIANCE CERTIFICATE.
(i) concurrently with the delivery of the financial
statements referred to in Section 9.01(b), a certificate of
the independent certified public accountants reporting on such
financial statements stating that in making the examination
necessary therefor no knowledge was obtained of any Event of
Default relating to the Financial Maintenance Covenants,
except as specified in such certificate; and
(ii) at the time it furnishes each set of financial
statements pursuant to paragraph (a) or (b) above, a
certificate of a senior financial officer of Borrower (I) to
the effect that no Default has occurred and is continuing (or,
if any Default has occurred and is continuing, describing the
same in reasonable detail and describing the action that
Borrower has taken and proposes to take with respect thereto)
and (II) setting forth in reasonable detail the computations
necessary (to the extent applicable) to determine whether each
Company is in compliance with Sections 9.07, 9.08, 9.09, 9.10
and 9.11 as of the end of the respective quarterly fiscal
period or fiscal year;
(d) OTHER FINANCIAL INFORMATION. Promptly upon delivery
thereof to the stockholders of any Company generally, copies of all
financial statements and reports and proxy statements so delivered, and
within five days after the same are filed, copies of all financial
statements
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and reports which any Company may make to or file with the Commission
or any successor or analogous Governmental Authority;
(e) INTEREST RATE CERTIFICATES. Together with the financial
statements delivered pursuant to clause (a) or (b) of this Section
9.01, an Interest Rate Certificate;
(f) NOTICE OF DEFAULT. Promptly after any Company knows or has
reason to believe that any Default has occurred or that Holdings in
default of any material term or provision of the Mezzanine Securities
Documents or any other agreement or instrument relating to or
evidencing material Indebtedness of any Company (including, without
limitation, the Senior Subordinated Notes Indenture), a notice of such
Default describing the same in reasonable detail and, together with
such notice or as soon thereafter as possible, a description of the
action that the Companies have taken and propose to take with respect
thereto;
(g) ENVIRONMENTAL MATTERS. Written notice of any Environmental
Claim materially affecting any Company, any Mortgaged Real Property or
the operations of any Company, and any notice from any Person of (i)
the occurrence of any release, spill or discharge of any Hazardous
Material that is reportable under any Environmental Law, (ii) the
commencement of any clean-up pursuant to or in accordance with any
Environmental Law of any Hazardous Material at, on, under or within the
Mortgaged Real Property or any part thereof, (iii) any matters relating
to Hazardous Materials or Environmental Laws that may impair, or
threaten to impair, Lenders' security interest in the Mortgaged Real
Property or any Obligor's ability to perform any of its obligations
under this Agreement when such performance is due or (iv) any other
condition, circumstance, occurrence or event which could reasonably be
expected to result in a material liability of any Company under any
Environmental Law;
(h) AUDITORS' REPORTS. Promptly upon receipt thereof, copies
of all reports submitted to any Company by independent certified public
accountants in connection with each annual, interim or special audit of
such Company's books made by such accountants, including, without
limitation, any management letter commenting on any Company's internal
controls submitted by such accountants to management at any time;
(i) ANNUAL BUDGETS. As soon as practicable and in any event
within 60 days after the beginning of each fiscal year of Borrower, a
consolidated plan and financial forecast for such fiscal year,
including without limitation (a) a forecasted consolidated balance
sheet and forecasted consolidated statements of income and cash flows
of Borrower and its Consolidated Subsidiaries for such fiscal year,
together with an Officer's Certificate demonstrating pro forma
compliance for such fiscal year with Section 9.11 and an explanation of
the assumptions on which such forecasts are based and (b) forecasted
consolidated statements of income and cash flows of Borrower and its
Consolidated Subsidiaries for each month of each such fiscal year,
together with an explanation of the assumptions on which such forecasts
are based;
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(j) LIEN MATTERS. Written notice of (1) the incurrence of any
Lien (other than Permitted Liens, Prior Liens and other Liens expressly
permitted by the terms of the applicable Security Document) on, or
claim asserted against any of the Collateral or (2) the occurrence of
any other event which is reasonably likely to adversely affect the
aggregate value of the Collateral;
(k) NOTICE OF MATERIAL ADVERSE EFFECT OR MATERIAL ADVERSE
CHANGE. Written notice of the occurrence of any event or condition
which has had or has resulted in or is reasonably likely to have or
result in any Material Adverse Effect or any Material Adverse Change;
(l) GOVERNMENTAL FILINGS AND NOTICES. Promptly after request
by the Administrative Agent, copies of any other reports or documents
that were filed by any Company with any Governmental Agency;
(m) ERISA INFORMATION. Promptly upon the occurrence of any
ERISA Event that, alone or together with any other ERISA Events that
have occurred, is reasonably likely to result in liability to the
Companies in an aggregate amount exceeding $250,000, a written notice
specifying the nature thereof, what action Borrower, its Subsidiaries
or other ERISA Entity have taken, are taking or propose to take with
respect thereto, and, when known, any action taken or threatened by the
Internal Revenue Service, Department of Labor, PBGC or Multiemployer
Plan sponsor with respect thereto;
(n) ERISA FILINGS, ETC. Upon request by the Administrative
Agent, copies of: (i) each Schedule B (Actuarial Information) to the
annual report (Form 5500 Series) filed by Borrower, its Subsidiaries or
ERISA Affiliates with the Internal Revenue Service with respect to each
Plan; (ii) the most recent actuarial valuation report for each Plan;
(iii) all notices received by Borrower or any of its Subsidiaries or
ERISA Affiliates from a Multiemployer Plan sponsor or any governmental
agency concerning an ERISA Event; and (iv) such other documents or
governmental reports or filings relating to any Employee Benefit Plan
as the Administrative Agent shall reasonably request;
(o) [Reserved];
(p) NAME AND LOCATION CHANGES. Promptly, written notice of any
change (i) in such Company's corporate name or in any trade name used
to identify it in the conduct of its business or in the ownership of
its properties, (ii) in the location of such Obligor's chief executive
office, its principal place of business, any office in which it
maintains books or records relating to Collateral owned by it or any
office or facility at which Collateral owned by it is located
(including the establishment of any such new office or facility), (iii)
in such Company's identity or corporate structure, (iv) resulting in
any tangible Collateral being located in any jurisdiction in which a
financing statement must be, but has not been, filed in order to
perfect the Administrative Agent's Liens, or (v) in such Company's
Federal Taxpayer Identification Number (to the extent applicable); each
Company will not effect or permit any change referred to in the
preceding sentence unless all filings have been made under the Uniform
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Commercial Code or otherwise that are required in order for the
Administrative Agent to continue at all times following such change to
have a valid, legal and perfected security interest in all the
Collateral; and
(q) MISCELLANEOUS. Promptly, such financial and other
information with respect to any Company as any Creditor may from time
to time reasonably request.
9.02. LITIGATION, ETC. Borrower shall promptly give to the
Administrative Agent and each Lender notice of all Proceedings, and any
material development thereof, affecting any Company, except Proceedings which
could not reasonably be expected to have (individually or in the aggregate) a
Material Adverse Effect.
9.03. EXISTENCE; COMPLIANCE WITH LAW; PAYMENT OF TAXES;
INSPECTION RIGHTS; PERFORMANCE OF OBLIGATIONS; ETC. Each Company shall (i)
preserve and maintain its legal existence and all of its material rights,
privileges and franchises (PROVIDED, HOWEVER, that nothing in this Section
9.03 shall prohibit any transaction expressly permitted under Section 9.06),
(ii) except as is not reasonably likely to have (individually or in the
aggregate) a Material Adverse Effect, comply with the requirements of all
applicable laws, rules, regulations and orders of Governmental Authorities,
(iii) except as is not reasonably likely to have (individually or in the
aggregate) a Material Adverse Effect, timely file true, accurate and complete
tax returns required by all Governmental Authorities and pay and discharge all
Taxes, assessments and governmental charges or levies imposed on it or on its
income or profits or on any of its Property prior to the date on which any
penalties attach thereto (except for any such Tax, assessment, charge or levy
the payment of which is being contested in good faith and by proper
proceedings and against which adequate reserves are being maintained in
accordance with GAAP); (iv) maintain all of its Properties used or useful in
its business in good working order and condition, ordinary wear and tear
excepted, except to the extent that the failure to do so with respect to any
such Property is not reasonably likely to have (individually or in the
aggregate) a Material Adverse Effect; (v) permit representatives of any
Creditor during normal business hours and upon reasonable notice to examine,
copy and make extracts from its books and records, to inspect its Properties,
and to discuss its business and affairs with its officers and employees, all
to the extent reasonably requested by such Creditor; (vi) allow the Lead
Arranger and Administrative Agent to consult with Borrower's independent
public accountants and auditors with respect to the financial affairs of the
Companies (and the Lead Arranger is expressly authorized to disclose any
information obtained to the Lenders) and authorize such accountants to
disclose to the Lead Arranger and the Lenders any and all financial statements
and other supporting financial documents and schedules including copies of any
management letter with respect to the business, financial condition and other
affairs of the Companies; at the request of the Lead Arranger, Borrower shall
deliver a letter addressed to such accountants instructing them to comply with
the provisions of this Section 9.03(vi); (vii) perform in all material
respects all of its Contractual Obligations, except where such failure to so
perform, singly or in the aggregate with all other such failures, is not
reasonably likely to have a Material Adverse Effect; and (viii) keep proper
books of record and accounts, in which full and correct entries shall be made
of all financial transactions and the Property and business of each Company in
accordance with GAAP in effect from time to time or as otherwise required by
applicable rules and regulations of any Governmental Authority having
jurisdiction over such Company.
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9.04. INSURANCE. (A) Each Company shall maintain, with
financially sound and reputable insurers, insurance of the kinds and in the
amounts customarily insured against by companies engaged in the same or
similar business and similarly situated (including business interruption
insurance). Each Company shall pay all insurance premiums payable by it as and
when due. Borrower will advise the Administrative Agent promptly of any
material policy cancellation, reduction or amendment. Borrower will not, and
will not permit any Subsidiary to, materially modify any of the provisions of
any policy with respect to casualty insurance without delivering the original
copy of the endorsement reflecting such modification to the Administrative
Agent.
(B) All policies of insurance required to be maintained by
any Obligor must name the Administrative Agent on behalf of the Issuing
Lender, Lenders and Agents as loss payee (in the case of property insurance)
or additional insured (in the case of liability insurance), as applicable, or
certificate holder (in the case of workers' compensation insurance) and must
provide that no cancellation, non-renewal or modification (including reduced
coverage) of the policies will be made without thirty days' prior written
notice to the Administrative Agent and if the insurance carrier shall have
received written notice from the Administrative Agent of the occurrence and
continuance of an Event of Default, the insurance carrier shall pay all
proceeds otherwise payable to any Obligor under such policies directly to the
Administrative Agent.
(C) The Obligors shall give immediate written notice of any
loss in excess of $5.0 million to the insurance carrier and to Administrative
Agent. Each Obligor hereby irrevocably authorizes and empowers the
Administrative Agent, as its attorney-in-fact coupled with an interest, if any
Default shall have occurred or such loss is reasonably likely to be materially
adverse to the Lenders, to make proof of loss, to adjust and compromise any
claim under insurance policies, to appear in and prosecute any action rising
from such insurance policies, to collect and receive insurance proceeds, and
to deduct therefrom the Administrative Agent's expenses incurred in the
collection of such proceeds. Nothing contained in this Section 9.04(C),
however, shall require the Administrative Agent to incur any expense or take
any action hereunder.
(D) Each policy of insurance obtained or maintained by any
Company shall: (i) be written by financially responsible companies selected by
Borrower and having an A.M. Best rating of "A" or better and being in a
financial size category of XII or larger, or by other companies reasonably
acceptable to the Administrative Agent and the Lead Arranger; (ii) waive all
rights of subrogation of the insurers against the Creditors; (iii) waive any
right of the insurers to set-off or counterclaim or to make any other
deduction, whether by way of attachment or otherwise, as against any Creditor;
(iv) waive all claims for insurance premiums or commissions or additional
premiums or assessments against the Creditors; and (v) provide that, except in
the case of third-party liability insurance, the proceeds of any loss
affecting any Property which is Collateral (including Real Property) or
interests therein shall be applied in accordance with the terms of this
Agreement.
(E) If at any time the area in which any Mortgaged Real
Property is located is designated (i) a "flood hazard area" in any Flood
Insurance Rate Map published by the Federal Emergency Management Agency (or
any successor agency), Borrower shall obtain flood insurance in such total
amount as the Administrative Agent or the Majority Lenders may from time to
time reasonably re-
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quire, and otherwise comply with the National Flood Insurance Program as set
forth in the Flood Disaster Protection Act of 1973, as amended from time to
time, or (ii) a "Zone 1" area, Borrower shall obtain earthquake insurance in
such total amount as the Administrative Agent or the Majority Lenders may
reasonably require; PROVIDED, HOWEVER, that Borrower shall not, unless
required by applicable law pertaining to Borrower or any Creditor, be required
to obtain any insurance described in this Section 9.04(E) if not available at
commercially reasonable rates.
9.05. LIMITATION ON LINES OF BUSINESS. No Company shall
directly or indirectly engage to any material extent in any line or lines of
business activity other than the business of the type conducted by Borrower
and the Subsidiaries as of the Original Closing Date or any business related,
ancillary or complementary thereto.
9.06. LIMITATION ON FUNDAMENTAL CHANGES, ACQUISITIONS OR
DISPOSITIONS. No Company shall, directly or indirectly, in a single
transaction or series of transactions, on or after the Original Closing Date,
(1) merge, consolidate or amalgamate with or into any Person (other than
pursuant to the Transactions on the Closing Date), or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), (2) effect any
Acquisition, or (3) effect any Disposition (or agree to do any of the
foregoing). Notwithstanding the foregoing provisions of this Section 9.06,
each of the following shall be permitted:
(a) purchases and sales of Property to be sold or used in the
ordinary course of business;
(b) the pledge of the Collateral pursuant to the Security
Documents and the incurrence of any Permitted Lien;
(c) the merger, consolidation, dissolution or liquidation of
(1) any Subsidiary with or into (i) Borrower if Borrower shall be the
continuing or surviving corporation or (ii) any Qualified Subsidiary if
such Qualified Subsidiary shall be the continuing or surviving
corporation, and (2) any Subsidiary that is not a Qualified Subsidiary
with or into any other Subsidiary that is not a Qualified Subsidiary;
(d) Dispositions by (1) any Company to Borrower or to any
Qualified Subsidiary or (2) any Subsidiary that is not a Qualified
Subsidiary to any other Subsidiary that is not a Qualified Subsidiary;
(e) Dispositions of used, worn out, obsolete or surplus
Property by any Company in the ordinary course of business;
(f) sale or discount, in each case without recourse, of
accounts receivable past due arising in the ordinary course of
business, but only in connection with the compromise or collection
thereof; PROVIDED, HOWEVER, that in no event may any Company enter into
any factoring or securitization program with respect to receivables;
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(g) any Disposition by Borrower or any Subsidiary for fair
market value not to exceed $10.0 million in the aggregate in any fiscal
year of Borrower and $35.0 million in the aggregate since the Original
Closing Date; PROVIDED, HOWEVER, that the Net Available Proceeds
therefrom are applied as specified in Section 2.10(a)(iv) or applied to
the prepayment of the Loans as specified in Section 2.10(a)(iv);
(h) Dispositions described on SCHEDULE 9.06(h) for fair market
value not to exceed $4.0 million; PROVIDED, HOWEVER, that the Net
Available Proceeds therefrom are applied as specified in Section
2.10(a)(iv) or applied to the prepayment of the Loans as specified in
Section 2.10(a)(iv);
(i) Acquisitions by Borrower or any Qualified Subsidiary;
PROVIDED, HOWEVER, that each Acquisition under this Section 9.06(i)
shall satisfy each of the following conditions:
(i) the Loans to be made on the Amendment and
Restatement Date shall have been made, and the Amended and
Restated Transactions shall have been consummated;
(ii) no Default then exists or would result
therefrom;
(iii) immediately after giving effect to such
Acquisition, Borrower would be in compliance with Section
9.05;
(iv) after giving pro forma effect in accordance
with GAAP to such Acquisition, (1) Borrower shall be in
compliance with all of the Financial Maintenance Covenants as
of the Test Date immediately prior to the consummation thereof
(assuming, for purposes of the Financial Maintenance
Covenants, that such Acquisition, and all other Acquisitions
consummated since the first day of the relevant Measurement
Period for each of the Financial Maintenance Covenants ending
on or prior to the date of such Acquisition, had occurred on
the first day of such relevant Measurement Period), and the
Lenders shall have been provided reasonably detailed
calculations of such compliance and reasonable supporting data
and information with respect thereto), and (2) as reasonably
determined in good faith by Borrower at such time based on
available information then known by Borrower, Borrower and the
Subsidiaries can reasonably be expected to remain in
compliance with such covenants through the Final Maturity Date
and to have sufficient cash liquidity to conduct their
respective business and pay their respective debts and other
liabilities as they come due;
(v) no Company shall, in connection with any such
Acquisition, assume or remain liable with respect to any
Indebtedness or other liability (including any material tax or
ERISA liability) of the related seller, except (1) to the
extent permitted under Section 9.08 or, if after giving pro
forma effect thereto, the representations and warranties of
each Obligor in Section 8 would be true in all material
respects, and (2) obligations of the seller or acquired Person
or business incurred in the ordinary
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course of business and necessary or desirable to the continued
operation of the underlying properties, and any other such
liabilities or obligations not permitted to be assumed or
otherwise supported by any of the Companies hereunder shall be
paid in full or released as to the assets being so acquired on
or before the consummation of such Acquisition;
(vi) the Properties acquired in connection with any
such Acquisition shall be free and clear of any Liens, other
than Permitted Liens or Liens otherwise permitted by Section
9.07;
(vii) the board of directors of the acquired Person
shall not have indicated privately to any Company or publicly
its opposition to the consummation of such Acquisition;
(viii) either (x) such Acquisition shall be effected
through Borrower or a Qualified Subsidiary and the Person or
business acquired shall at the time of consummation of such
Acquisition be merged or combined or consolidated with or into
a domestic Qualified Subsidiary or shall be at the time of
consummation thereof a domestic Qualified Subsidiary or (y)
the Acquisition Consideration for such Acquisition, together
with the aggregate amount of the Acquisition Consideration for
all other Acquisitions (other than Acquisitions made pursuant
to Section 9.06(m)) effected pursuant to this Section 9.06(i)
that do not comply with clause (x) of this subparagraph (viii)
since the Original Closing Date, shall not exceed $5.0
million;
(ix) with respect to any Acquisition involving
Acquisition Consideration of more than $10.0 million, Borrower
shall have provided not fewer than 30 days prior to the
proposed closing thereof the Lead Arranger and the Lenders
with (1) written notice thereof and a brief description of the
material terms thereof and a brief description of the business
or Person to be acquired, (2) historical financial statements
for the last three fiscal years (or, if less, for the period
of such Person's existence) of the Person or business to be
acquired (audited if available without undue cost or delay)
and unaudited financial statements thereof for the most recent
interim period which are available, (3) reasonably detailed
projections for the succeeding five years (or, if earlier,
through the year in which the Final Maturity Date occurs)
pertaining to the Person or business to be acquired, (4)
copies of all material documentation pertaining to such
Acquisition, and (5) all such other information and data
relating to such Acquisition or the Person or business to be
acquired as may be reasonably requested by Lead Arranger or
the Majority Lenders;
(x) Borrower shall have delivered to the Lead
Arranger and the Lenders (x) an Officer's Certificate at least
ten days prior to the date of consummation of such Acquisition
(but in any event not earlier than a date which would result
in the Test Date occurring on or immediately prior to the
consummation of such Acquisition being more than 135 days
prior to the date of consummation of such Acquisition)
certi-
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fying that (1) such Acquisition complies with this Section
9.06(i) (which shall have attached thereto reasonably detailed
backup data and calculations showing such compliance), and (2)
such Acquisition is not reasonably likely to have a Material
Adverse Effect and (y) financial statements referred to in
clause (ix) of this Section 9.06(i) for the most recently
ended fiscal period if the latest financial statements
previously delivered pursuant to clause (ix) cover a period
ending more than 135 days before the date of consummation of
such Acquisition; and
(xi) the Acquisition Consideration for such
Acquisition, together with the aggregate amount of the
Acquisition Consideration for all Acquisitions (other than
Acquisitions made pursuant to Sections 9.06(m) and 9.06(o)
below) effected pursuant to this Section 9.06(i) since the
Original Closing Date, shall not exceed $20.0 million
(PROVIDED, HOWEVER that any portion of such Acquisition
Consideration that consists of an "earn-out" or similar
payment shall not exceed $5.0 million in the aggregate since
the Original Closing Date), PLUS the then available amount of
the Designated Equity Issuance Proceeds but not to exceed
$20.0 million;
(j) transfers resulting from any casualty or condemnation of
Property;
(k) licenses or sublicenses by any Company of software,
trademarks and other intellectual property and general intangible and
leases, licenses or subleases of other property in the ordinary course
of business and which do not materially interfere with the business of
any Company and any lease or sublease of the properties listed in
SCHEDULE 9.06(K);
(l) any consignment arrangements or similar arrangements for
the sale of assets in the ordinary course of business of any Company;
(m) Acquisitions not otherwise permitted hereunder by Borrower
or any Subsidiary; PROVIDED, HOWEVER, that (1) the sole consideration
provided therefor by any Company is Qualified Capital Stock of
Holdings, and (2) such Acquisition shall comply with each of clauses
(i), (ii), (iii), (iv), (v), (vi), (vii), (viii)(x), (ix) and (x) of
Section 9.06(i) (with references therein to Section 9.06(i) being
deemed references to this Section 9.06(m));
(n) the making of Investments permitted by Section 9.09 and
the liquidation in the ordinary course of business of (A) Permitted
Investments and (B) Investments made pursuant to Sections 9.09(a) and
9.09(b);
(o) the Ellison Acquisition;
(p) Dispositions of any of the Mt. Pleasant Property, the Wing
II Property and the properties listed on SCHEDULE 9.06(p); PROVIDED,
HOWEVER, that the Net Available Proceeds therefrom are applied as
specified in Section 2.10(a)(iv) or applied to the prepayment of the
Loans as specified in Section 2.10(a)(iv); and
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(q) the Wing Asset Sale and the Atrium Wood Asset Sale so long
as the entire proceeds thereof are used solely to finance the Amended
and Restated Transactions and pay fees and expenses related thereto.
To the extent the Majority Lenders waive the provisions of this Section 9.06
with respect to the sale or other disposition of any Collateral, or any
Collateral is sold or otherwise disposed of as permitted by this Section 9.06
(other than to any Obligor), such Collateral in each case shall be sold or
otherwise disposed of free and clear of the Liens created by the Security
Documents and the Administrative Agent shall take such actions as are
appropriate in connection therewith.
9.07. LIMITATION ON LIENS AND RELATED MATTERS. No Company
shall, directly or indirectly, create, incur, assume or suffer to exist any
Lien upon or with respect to any Collateral except for Prior Liens and other
Liens created by or expressly permitted by the applicable Security Document.
No Company shall, directly or indirectly, create, incur, assume or suffer to
exist any Lien upon or with respect to any of their respective Property that
does not constitute Collateral, whether now owned or hereafter acquired, or
assign any right to receive income, or 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, except the following, which are
herein collectively referred to as "PERMITTED LIENS":
(a) Liens in existence on the Original Closing Date and
identified in SCHEDULE 9.07;
(b) Liens imposed by any Governmental Authority for taxes,
assessments or charges not yet due or which are being contested in good
faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the relevant Company, in
accordance with GAAP;
(c) Liens imposed by law which were incurred in the ordinary
course of business, such as carriers', warehousemen's, landlords' and
mechanics' Liens and other similar Liens arising in the ordinary course
of business, in each case for sums the payment of which is not required
by Section 9.03;
(d) pledges or deposits under workers' compensation,
unemployment insurance and other social security legislation or the
deposits securing the liability to insurance carriers;
(e) pledges or deposits to secure the performance of bids,
trade contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(f) easements, rights-of-way, restrictions or minor defects or
irregularities in title incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Real Property or minor imperfections in
title thereto which, in the aggregate, are not material in amount, and
which do not in any case materially detract from the value of the Real
Property subject thereto or interfere with the ordinary conduct of the
business of any Company;
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(g) Liens upon tangible personal Property acquired after the
Original Closing Date by Borrower or any Subsidiary, each of which
Liens either (A) existed on such Property before the time of its
acquisition and was not created in anticipation thereof, or (B) was
created solely for the purpose of securing Indebtedness representing,
or incurred to finance or refinance, the cost of such Property or
improvements thereon; PROVIDED, HOWEVER, that (1) no such Lien shall
extend to or cover any Property of any Company other than the Property
so acquired and improvements thereon and proceeds thereof, and (2) the
principal amount of Indebtedness secured by any such Lien shall at no
time exceed 100% of the fair market value of such Property at the time
it was acquired;
(h) Liens existing on any Property of any Person at the time
such Property is acquired or such Person becomes a Subsidiary or is
merged or consolidated with or into a Subsidiary and, in each case, not
created in contemplation of or in connection with such event; PROVIDED,
HOWEVER, that such Liens do not extend to any other Property of any
Company;
(i) Liens not otherwise permitted hereunder securing
obligations of Borrower or any Subsidiary at any time not exceeding in
the aggregate $5.0 million;
(j) Liens securing obligations under Swap Contracts with any
Creditor to the extent such Swap Contract relates to the Loans and only
so long as the Obligations are secured by the same collateral on at
least a PARI PASSU basis;
(k) Liens consisting of judgment or judicial attachment Liens
(including prejudgment attachment) in existence less than 60 days after
the entry thereof or the enforcement of which is effectively stayed or
payment of which is covered in full (subject to a customary deductible)
by insurance or which do not otherwise result in an Event of Default
under Section 10(h);
(l) Liens securing obligations in respect of Capital Leases
solely on Property subject to such Capital Leases;
(m) leases or subleases granted to third Persons not
interfering in any material respect with the business of any Company;
(n) Liens arising from UCC financing statements regarding
leases permitted by this Agreement;
(o) any interest or title of a lessor or sublessor under any
lease permitted by this Agreement;
(p) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of custom duties in connection
with the importation of goods so long as such Liens attach only to the
imported goods;
(q) Liens arising out of consignment or similar arrangements
for the sale of goods entered into by any Company in the ordinary
course of business;
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(r) Liens created under the Credit Documents securing the
obligations owing to the Creditors; and
(s) any extension, renewal or replacement of the foregoing;
PROVIDED, HOWEVER, that the Liens permitted by this Section 9.07(s)
shall not cover any additional principal amount of Indebtedness or
Property (other than like Property substituted for Property covered by
such Lien).
Except with respect to (i) specific Property encumbered
pursuant to a Lien permitted to be incurred pursuant to this Section 9.07 or
(ii) specific Property to be sold pursuant to an executed agreement with
respect to a Disposition consummated in accordance with this Agreement, no
Company will directly or indirectly enter into any agreement on or after the
Original Closing Date prohibiting or restricting in any manner (directly or
indirectly and including by way of covenant, representation or warranty or
event of default) the creation or assumption of any Lien upon its Property,
whether now owned or hereafter acquired, except pursuant to the Credit
Documents, the Mezzanine Securities Documents and the Senior Subordinated
Notes Indenture and any Permitted Refinancing of any thereof (so long as such
Permitted Refinancing is not more restrictive in such regard than the
Indebtedness being refinanced) so long as not directly or indirectly
restricting the granting of any Lien securing the Obligations.
9.08. PROHIBITION ON DISQUALIFIED CAPITAL STOCK; LIMITATION
ON INDEBTEDNESS AND CONTINGENT OBLIGATIONS. No Company shall directly or
indirectly issue or permit to be outstanding any Disqualified Capital Stock,
other than Disqualified Capital Stock issued to and held by Borrower or any
Qualified Subsidiary. No Company shall, directly or indirectly, incur any
Indebtedness or any Contingent Obligation, except (each of which shall be
given independent effect) for the following:
(a) the Loans and the other Obligations (including the
Guarantees) under the Credit Documents;
(b) (A) the Senior Subordinated Notes (less all repayments and
prepayments thereof), (B) the Mezzanine Securities (but only so long as
not a direct or indirect obligation of Borrower or any Subsidiary and
less all repayments and prepayments thereof), (C) other Indebtedness
and Contingent Obligations outstanding on the Original Closing Date and
listed in SCHEDULE 9.08 and specified on SCHEDULE 9.08 as to remain
outstanding after the Original Closing Date (less the aggregate amount
of any permanent prepayments or repayments thereof) and (D) in the case
of the Senior Subordinated Notes, the Mezzanine Securities and any such
Indebtedness listed on Schedule 9.08, Permitted Refinancings thereof;
(c) (x) Indebtedness and Contingent Obligations of Borrower or
any Subsidiary owing to Borrower or any Qualified Subsidiary, (y)
Indebtedness and Contingent Obligations of any Subsidiary that is not a
Qualified Subsidiary owed to any other Subsidiary that is not a
Qualified Subsidiary and (z) Indebtedness of Holdings owing to Borrower
incurred on the Original Closing Date in connection with the Original
Transactions in form and substance satisfactory to the Lead Arranger;
PROVIDED, HOWEVER, that (1) such Indebtedness shall be evi-
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denced by an Intercompany Note which (other than if issued by or held
by a Foreign Subsidiary) shall be pledged to the Administrative Agent
on behalf of the Lenders pursuant to the Security Agreement and (2)
such Indebtedness and Contingent Obligations shall not be held by any
Person other than Borrower or a Qualified Subsidiary and shall not be
subordinate to any other Indebtedness or Contingent Obligations or
other obligation of the obligor unless also subordinated to the Loans
on terms no less favorable to the Lenders than that of any other
creditor;
(d) Contingent Obligations in respect of operating leases;
(e) Indebtedness and Contingent Obligations arising from
honoring a check, draft or similar instrument against insufficient
funds; PROVIDED, HOWEVER, that such Indebtedness is extinguished within
two Business Days of its incurrence;
(f) Swap Contracts;
(g) Contingent Obligations of Borrower, Holdings or any
Subsidiary in respect of Indebtedness or other liabilities of Borrower
or any Subsidiary to the extent that the existence of such Indebtedness
or other liabilities is not prohibited under this Agreement;
(h) Contingent Obligations in connection with Dispositions
permitted under Section 9.06, arising in connection with
indemnification and other agreements in respect of any contract
relating to such Disposition, not to exceed the consideration received
by Borrower or any Subsidiary in connection with such sale and
excluding, however, in all cases any Contingent Obligation with respect
to any obligation of any third person incurred in connection with the
acquisition of the Property which is the subject of such Disposition;
(i) Indebtedness and Contingent Obligations of Borrower and
the Subsidiaries (including Permitted Refinancings thereof) secured by
Liens permitted under Section 9.07(g) or (l) (and extensions, renewals
or replacements thereof pursuant to Section 9.07(s)) not exceeding
(together with any Permitted Refinancing thereof) $5.0 million in the
aggregate at any time outstanding for Borrower and the Subsidiaries
collectively;
(j) [Reserved];
(k) Indebtedness of a Person that becomes a Subsidiary after
the date hereof; PROVIDED, HOWEVER, that (1) such Indebtedness existed
at the time such Person became a Subsidiary and was not created in
connection with or in anticipation thereof, (2) immediately after
giving effect to the acquisition of such Person by Borrower no Default
shall have occurred and be continuing, and (3) the aggregate amount of
Indebtedness outstanding at any time pursuant to this Section 9.08(k)
shall not exceed $5.0 million for all Subsidiaries;
(l) Indebtedness and Contingent Obligations incurred by
Borrower or any Subsidiary, and any Permitted Refinancing thereof, not
to exceed in the aggregate at any time outstanding
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the excess of (1) $10.0 million over (2) the aggregate amount of
Indebtedness outstanding pursuant to Section 9.08(k); and
(m) Indebtedness to be assumed in connection with the Ellison
Acquisition as set forth in SCHEDULE 9.08(m), less any prepayments or
repayments of the principal thereof and Permitted Refinancings thereof.
All intercompany debt shall be unsecured and subordinate in
right of payment (to the same extent as the subordination provisions set forth
in EXHIBIT B hereto) to the Obligations. Each Obligor, by its execution and
delivery of this Agreement, hereby agrees to subordinate its right of payment
under any intercompany debt owed to it by Borrower or any Subsidiary to the
full and complete payment and performance of the Obligations. No Obligor shall
incur any Subordinated Debt unless such Subordinated Debt shall be
subordinated to the Obligations at least to the same extent and for so long as
such Subordinated Debt is subordinated to any other Indebtedness pursuant to
documentation reasonably acceptable to the Lead Arranger.
9.09. LIMITATION ON INVESTMENTS; LIMITATION ON CREATION OF
SUBSIDIARIES. No Company shall, directly or indirectly, make or permit to
remain outstanding any Investment, except for the following:
(a) operating deposit accounts and certificates of deposit
with banks in the ordinary course of business;
(b) Permitted Investments;
(c) Investments by any Company in Borrower or any Qualified
Subsidiary or in any Subsidiary if as a result thereof or in connection
therewith such Subsidiary becomes a Qualified Subsidiary (provided that
no Investment will be permitted in respect of any Subsidiary with
respect to which Borrower has not complied with Section 9.20);
(d) Investments outstanding on the Original Closing Date and
identified in SCHEDULE 9.09 and any renewals, amendments and
replacements thereof that do not increase the amount thereof;
(e) Investments that constitute Indebtedness or Contingent
Obligations permitted under Section 9.08;
(f) advances, loans or extensions of credit by any Company to
(1) employees of any Company in the ordinary course of business;
PROVIDED, HOWEVER, that the aggregate amount of all such loans,
advances and extensions of credit shall not at any time exceed in the
aggregate $2.0 million (without giving effect to any write-down or
write-off thereof) and (2) employees of any Company in connection with
stock option plans so long as (x) such loans do not involve cash
payments by any Company and (y) no Company incurs any obligations at
any time to repurchase the stock so purchased;
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(g) extensions of credit in the nature of accounts receivable
or notes receivable arising from the sale or lease of goods or services
in the ordinary course of business;
(h) pledges or deposits required in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other social security or similar legislation;
(i) pledges or deposits in connection with (i) the
non-delinquent performance of bids, trade contracts (other than for
borrowed money), leases or statutory obligations, (ii) contingent
obligations on surety or appeal bonds, and (iii) other non-delinquent
obligations of a like nature, in each case incurred in the ordinary
course of business;
(j) 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;
(k) Borrower and the Subsidiaries may hold additional
Investments in any Subsidiary which is not a Qualified Subsidiary to
the extent that such Investments reflect an increase in the
stockholders' equity of such Subsidiary resulting from retained
earnings of such Subsidiary;
(l) Investments by any Subsidiary (other than a Qualified
Subsidiary) in any other Subsidiary (other than a Qualified
Subsidiary);
(m) Capital Expenditures permitted by Section 9.11(e);
(n) Investments by any Company in any Subsidiary which is not
a Qualified Subsidiary to the extent made in the ordinary course to
fund or support the ordinary course operations of such Subsidiary so
long as no Default shall have occurred and be continuing; PROVIDED,
HOWEVER, that (1) the amount of such Investments made pursuant to this
clause (n) shall not exceed $1.0 million in the aggregate outstanding
at any time (without giving effect to any write-down or write-off
thereof), and (2) all such Investments which are Indebtedness shall be
evidenced by Intercompany Notes, which shall be pledged to
Administrative Agent pursuant to the Security Agreement;
(o) Borrower or any Subsidiary may hold the Equity Interests
of any Subsidiary existing on the Amendment and Restatement Date or
created or acquired thereafter in accordance with the provisions hereof
and any additional Equity Interests issued in exchange therefor or as a
dividend thereon;
(p) Investments for the creation of any Wholly Owned Foreign
Subsidiary which is a foreign sales corporation consisting of DE
MINIMIS capitalization;
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(q) Investments consisting of non-cash consideration received
in the form of securities, notes or similar obligations in connection
with any Disposition permitted by Section 9.06(g) (which shall not be
subordinated by its terms to any obligations of the issuer thereof);
PROVIDED, HOWEVER, that (1) the aggregate amount of such non-cash
consideration received in connection with any such Disposition shall
not exceed 20% of the total consideration received in connection with
such Disposition, (2) such non-cash consideration is pledged pursuant
to the appropriate Security Document, and (3) the aggregate amount of
such Investments made and outstanding at any time shall not exceed $5.0
million (without giving effect to any write-downs or write-offs
thereof);
(r) Investments by Foreign Subsidiaries in high quality
investments of the type similar to Permitted Investments made outside
the United States;
(s) Permitted Acquisitions;
(t) Investments by Borrower or any Subsidiary in any joint
venture so long as after giving effect thereto Borrower shall be in
compliance with Section 9.05 and the aggregate amount thereof
outstanding at any time (without giving effect to any write-downs or
write-offs thereof, but net of any cash returns of capital, cash
dividends and cash distributions received in respect thereof) does not
exceed $5.0 million;
(u) Investments made to consummate the Ellison Acquisition in
accordance with the Ellison Acquisition Agreement; and
(v) in addition to the foregoing, other Investments by
Borrower or any Subsidiary not exceeding in the aggregate outstanding
at any time (without giving effect to any write-downs or write-offs
thereof, but net of any cash returns of capital, cash dividends and
cash distributions received in respect thereof) $5.0 million.
No Company shall, directly or indirectly, create or acquire
any Subsidiary without the prior written consent of the Majority Lenders, which
consent shall not be unreasonably withheld; PROVIDED, HOWEVER, that the
provisions of this paragraph shall not require the Majority Lenders' consent for
(I) the creation or acquisition of direct or indirect Wholly Owned Subsidiaries
so long as Section 9.20 is complied with at the time of formation or acquisition
thereof, and (II) the creation or acquisition of any Subsidiary which is not a
Wholly Owned Subsidiary so long as the Investment made in connection therewith
complies with this Section 9.09 at the time of formation or acquisition thereof.
9.10. LIMITATION ON DIVIDEND PAYMENTS. No Company shall,
directly or indirectly, declare or make any Dividend Payment at any time,
except:
(a) any Subsidiary may declare and make Dividend Payments to
Borrower or any Subsidiary to the extent made PRO RATA to all holders
of Equity Interests thereof;
(b) so long as no Default has occurred and is continuing or
would arise therefrom, Borrower may make Dividend Payments to Holdings
if the proceeds thereof are used at the
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time of such Dividend Payment by Holdings (and Holdings may use such
Dividend Payments by Borrower as set forth below):
(i) to pay out-of-pocket expenses, for
administrative, legal and accounting services provided by
third parties that are reasonable and customary and incurred
in the ordinary course of business for the professional
services, or to pay franchise fees and similar costs; and
(ii) to make a Dividend Payment to Holdings to
redeem Equity Interests (other than Disqualified Capital
Stock) held by current or former employees or directors of any
Company (or their estates or beneficiaries of their estates);
PROVIDED, HOWEVER, that the aggregate cash consideration paid,
or distributions made, pursuant to this clause (b)(ii) shall
not exceed $10.0 million in the aggregate since the Original
Closing Date, PLUS, in each case, the proceeds of any Excluded
Equity Issuance consummated substantially contemporaneously
with such purchase or redemption;
(c) so long as after giving effect thereto and any Revolving
Loans made to effect such Dividend Payment no Default has occurred and
is continuing or would arise therefrom, Borrower may make Dividend
Payments to Holdings so long as such Dividend Payment is made after the
fifth anniversary of the Amendment and Restatement Date and not earlier
than the second Business Day prior to the due date of any scheduled
interest payment on the Mezzanine Securities and the proceeds thereof
are used at the time of such Dividend Payment by Holdings to pay, on
the scheduled semiannual interest payment dates, interest accrued on
the Mezzanine Securities subsequent to the fifth anniversary of the
Amendment and Restatement Date at a rate no greater than the rate then
to be applicable as specified in the Mezzanine Securities Documents as
in effect on the Amendment and Restatement Date;
(d) as of the Business Day prior to the end of each accrual
period of the Mezzanine Securities that ends after the fifth year of
issuance of the Mezzanine Securities, Borrower shall be permitted to
pay dividends or make capital distributions on its Equity Interests to
permit Holdings to pay the AHYDO Amounts (as defined in the Mezzanine
Securities Documents) so long as no Default or Event of Default shall
have occurred and be continuing or shall be in effect after giving pro
forma effect to the payment of such dividend or the making of such
capital distribution; PROVIDED that prior to making any dividend or
distribution permitted by this paragraph, Borrower shall have made any
mandatory prepayments required pursuant to Section 2.10(a)(v) for the
calendar year immediately preceding the calendar year in which any such
dividend or capital distribution is paid; and
(e) so long as after giving effect thereto and any Revolving
Credit Loans made to effect such Dividend Payment no Default has
occurred and is continuing or would arise therefrom, Borrower may make
Dividend Payments to Holdings to redeem the Series B Common Stock of
Holdings as and when required by Holdings' Amended and Restated
Certificate of Incorporation as in effect on the Amendment and
Restatement Date, and Holdings may so redeem the Series B Common Stock,
so long as in each case any such Dividend Payment since
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the Amendment and Restatement Date does not exceed the par value of
such Series B Common Stock as of the Amendment and Restatement Date
($0.01 per share) and does not exceed $75,000 in the aggregate since
the Amendment and Restatement Date.
9.11. FINANCIAL COVENANTS.
(a) MAXIMUM TOTAL LEVERAGE RATIO. The Total Leverage Ratio
shall not, as of any Test Date during any period set forth in the table below,
exceed the ratio set forth opposite such period in the table below:
Period Ratio
------ -----
Amendment and Restatement Date - 12/30/01 5.25x
12/31/01 - 12/30/02 4.75x
12/31/02 - 12/30/03 4.00x
12/31/03 - 12/30/04 3.75x
12/31/04 and thereafter 3.25x
(b) MAXIMUM SENIOR LEVERAGE RATIO. The Senior Leverage Ratio
shall not, as of any Test Date during any period set forth in the table below,
exceed the ratio set forth opposite such period in the table below:
Period Ratio
------ -----
Amendment and Restatement Date - 12/30/01 2.75x
12/31/01 - 12/30/02 2.50x
12/31/02 - 12/30/03 2.25x
12/31/03 - 12/30/04 2.00x
12/31/04 and thereafter 2.00x
(c) MINIMUM INTEREST COVERAGE RATIO. The Interest Coverage
Ratio shall not, as of any Test Date during any period set forth in the table
below, be less than the ratio set forth opposite such period in the table below:
Period Ratio
------ -----
Amendment and Restatement Date - 12/30/01 1.50x
12/31/01 - 12/30/02 1.75x
12/31/02 - 12/30/03 2.00x
12/31/03 - 12/30/04 2.25x
12/31/04 and thereafter 2.50x
(d) MINIMUM FIXED CHARGE COVERAGE RATIO. The Fixed Charge
Coverage Ratio shall not, as of any Test Date during any period set forth in the
table below, be less than the ratio set forth opposite such period in the table
below:
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Period Ratio
------ -----
Amendment and Restatement Date - 12/30/01 1.10x
12/31/01 - 12/30/02 1.25x
12/31/02 - 12/30/03 1.35x
12/31/03 - 12/30/04 1.50x
12/31/04 and thereafter 1.75x
(e) CAPITAL EXPENDITURES. Borrower shall not permit the
aggregate amount of Capital Expenditures made by Borrower and the
Subsidiaries to exceed (a) $5.0 million in the aggregate for the fiscal
quarter ended December 31, 2000, (b) $16.0 million in the aggregate for the
fiscal year ended December 31, 2001, (c) $17.0 million in the aggregate for
the fiscal year ended December 31, 2002, (d) $18.0 million for the fiscal
year ended December 31, 2003, and (d) $20.0 million for any fiscal year of
Borrower thereafter; PROVIDED, HOWEVER, that (x) if the aggregate amount of
Capital Expenditures for any fiscal year shall be less than the amount
permitted for such fiscal year (before giving effect to any carryover), then
the shortfall may be added to the amount of Capital Expenditures permitted
for the immediately succeeding (but not any other) fiscal year if the amount
expended in such fiscal year would not exceed 125% of the amount permitted
for such fiscal year (before any carryover) and (y) in determining whether
any amount is available for carryover, the amount expended in any fiscal year
shall first be deemed to be from the amount allocated to such year before any
carryover.
9.12. PLEDGE OR MORTGAGE OF ADDITIONAL COLLATERAL. (a)
Promptly, and in any event within 30 days, after the acquisition of any
Property (other than Real Property) of the type that would have constituted
Collateral at the Amendment and Restatement Date (including the Equity
Interests of any Subsidiary hereafter created or acquired owned directly by
Borrower or any Qualified Subsidiary) (the "ADDITIONAL COLLATERAL") and after
the creation or acquisition of any Wholly Owned Subsidiary or other
Subsidiary (so long as such creation or acquisition is by Borrower or any
Qualified Subsidiary), each Obligor shall take all action reasonably
necessary or desirable, if any, including the execution and delivery of all
such agreements, assignments, documents, registers and instruments (including
amendments to the Credit Documents) and the filing of appropriate financing
statements or other documents under the provisions of the UCC or applicable
requirements of any Governmental Authority in each of the offices where such
filing is necessary or appropriate, to grant (in the reasonable judgment of
Administrative Agent or the Majority Lenders) to the Administrative Agent for
the benefit of the Issuing Lender, Lenders and Agents a duly perfected first
priority Lien on such Property pursuant to the appropriate Security Documents
subject to Prior Liens permitted under Section 9.07(g) or (h); PROVIDED,
HOWEVER, that not more than 65% of the capital stock of any Foreign
Subsidiary (limited to "first-tier" Foreign Subsidiaries) need be pledged.
In the event that, after the Original Closing Date, any
Obligor (including any Qualified Subsidiary created or acquired on or after
the Amendment and Restatement Date) acquires or holds a fee interest with a
market or book value of $2.0 million or more in any Real Property, such
Obligor shall promptly and in any event within 90 days of the date of
acquisition of such Real Property by any Obligor (i) take such actions and
execute such documents as the Administrative Agent
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shall reasonably require to confirm the Lien of an existing Mortgage, if
applicable, or to create a new Mortgage on such additional Real Property and
(ii) cause to be delivered to the Administrative Agent, on behalf of the
Lenders, the documents and instruments reasonably requested by the
Administrative Agent, including, without limitation, the items set forth in
Section 7.02 in respect of Mortgaged Real Property. If requested by the Lead
Arranger or the Majority Lenders, Borrower shall obtain at its sole expense
and as soon as practicable but in any event not later than 45 days after
request therefor, Phase 1 environmental reports from an environmental
engineering firm reasonably acceptable to the Lead Arranger with respect to
any Real Property owned by any Company if not delivered on or prior to the
Amendment and Restatement Date.
The costs of all actions taken by the parties in connection
with the pledge of Additional Collateral or in connection with any Mortgage,
including reasonable costs of counsel for the Administrative Agent, shall be
paid by the Obligors promptly following written demand.
(b) With respect to each Mortgaged Real Property set forth
in SCHEDULE 7.02(xv) which was not previously a Mortgaged Real Property prior
to the Amendment and Restatement Date, the Obligors shall deliver a Survey to
the Administrative Agent, on behalf of the Lenders, on or prior to the 30th
day after the Amendment and Restatement Date.
9.13. SECURITY INTERESTS; FURTHER ASSURANCES. Each Obligor
shall, promptly, upon the reasonable request of the Administrative Agent or
any Lender, at Borrower's expense, execute, acknowledge and deliver, or cause
the execution, acknowledgment and delivery of, and thereafter register, file
or record, or cause to be registered, filed or recorded, in an appropriate
governmental office, any document or instrument supplemental to or
confirmatory of the Security Documents or otherwise deemed by the
Administrative Agent reasonably necessary or desirable for the continued
validity, perfection and priority of the Liens on the Collateral covered
thereby, or obtain any consents, including, without limitation, landlord or
similar lien waivers and consents, as may be reasonably necessary or
appropriate in connection therewith.
Each Obligor shall deliver or cause to be delivered to the
Administrative Agent from time to time such other documentation, consents,
authorizations, approvals and orders in form and substance reasonably
satisfactory to the Administrative Agent as the Administrative Agent shall
reasonably deem necessary to perfect or maintain the Liens on the Collateral.
If any Lender determines in good faith that it is required
by any Governmental Authority or any Requirement of Law to obtain appraisals
as to the market value of any Real Property constituting Collateral, Borrower
shall obtain such appraisals as soon as practicable but in any event not less
than 60 days after request therefor, at the sole cost and expense of Borrower
and in conformity with the requirements of such Governmental Authority and
all Requirements of Law, as from time to time in effect.
If an Event of Default shall have occurred and be
continuing, upon the reasonable request of the Administrative Agent, Borrower
will obtain and deliver to the Administrative Agent appraisal reports in form
and substance and from appraisers satisfactory to the Administrative Agent,
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stating (a) the then current fair market, orderly liquidation and forced
liquidation values of all or any portion of the equipment or real estate
owned by any Company and (b) the then current business value of each Company.
All such appraisals shall be conducted and made at the reasonable expense of
Borrower.
Upon the exercise by the Administrative Agent or the
Lenders of any power, right, privilege or remedy pursuant to any Credit
Document which requires any consent, approval, registration, qualification or
authorization of any Governmental Authority, each Obligor shall execute and
deliver all applications, certifications, instruments and other documents and
papers that the Administrative Agent or the Lenders may be so required to
obtain.
9.14. COMPLIANCE WITH ENVIRONMENTAL LAWS. (a) Each Company
shall comply with all Environmental Laws, and will keep or cause all Property
to be kept free of any Liens under Environmental Laws, unless failure to do
so could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect or subject any Agent, Lender or Issuing
Lender to any material risk of damages or liability; (b) in the event of the
presence of any Hazardous Material at, on, under or emanating from any Real
Property which would reasonably be expected to result in liability under or a
violation of any Environmental Law, in each case which could reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect, each Company shall undertake, and/or use their best efforts to cause
any of their respective tenants or occupants to undertake, at no expense to
any Lender, any action required pursuant to Environmental Laws to mitigate
and eliminate such adverse effect; PROVIDED, HOWEVER, that no Company shall
be required to comply with any order or directive of a Governmental Authority
which is being contested in good faith and by proper proceedings so long as
it has maintained adequate reserves with respect to such compliance to the
extent required in accordance with GAAP; (c) each Company shall promptly
notify the Administrative Agent of the occurrence of any event specified in
clause (b) of this Section 9.14 and shall periodically thereafter keep the
Administrative Agent informed of any material actions taken in response to
such event and the results of such actions; and (d) at the written request of
the Administrative Agent at any time and from time to time, each Obligor will
provide, at such Obligor's sole cost and expense, an environmental site
assessment (including, without limitation, the results of any groundwater or
other testing, conducted if the Administrative Agent directs that such
testing be conducted) concerning any Real Property now or hereafter owned,
leased or operated by any Company, conducted by an environmental consulting
firm proposed by such Obligor and approved by the Administrative Agent
indicating the presence or absence of Hazardous Materials and the potential
cost of any required investigation or other response or any corrective action
in connection with any Hazardous Materials on, at, under or emanating from
such Real Property and the potential cost of any required investigation,
response or corrective action to address any such Hazardous Materials;
PROVIDED, HOWEVER, that such request may be made only if (a) there has
occurred and is continuing an Event of Default, (b) the Administrative Agent
reasonably believes that any Company or any such Real Property or operations
are not in material compliance with Environmental Law or (c) circumstances
exist that reasonably could be expected to form the basis of an Environmental
Claim against such Company or any such Real Property which could,
individually or in the aggregate, have a Material Adverse Effect. If any
Obligor fails to provide the same within 60 days after such request was made,
the Administrative Agent may but is under no obligation to conduct the same,
and such Obligor shall
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grant and hereby grants to the Administrative Agent and its agents access to
such Real Property and specifically grants the Administrative Agent an
irrevocable non-exclusive license, subject to the rights of tenants, to
undertake such an assessment, all at such Obligor's sole cost and expense.
9.15. LIMITATION ON TRANSACTIONS WITH AFFILIATES. No
Company shall, directly or indirectly, enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any Property, the rendering of any service, or a merger or
consolidation) with or for the benefit of any Affiliate (an "AFFILIATE
TRANSACTION") unless such Affiliate Transaction is (i) otherwise not
prohibited under this Agreement; (ii) in the ordinary course of such
Company's business, and (iii) on fair and reasonable terms that are not less
favorable to such Company than those that are reasonably obtainable at the
time in an arm's-length transaction with a Person that is not such an
Affiliate; PROVIDED, HOWEVER, that, other than with respect to clauses (b) or
(f) of this Section 9.15, so long as no Default under Section 10(a), (e),
(f), (g) or (j) or Section 10(d) arising by virtue of a default in the
performance of any obligation in Section 9.05, 9.06, 9.07, 9.08, 9.09, 9.10,
9.15, 9.25 or 9.28 shall have occurred and be continuing or would arise
therefrom, the following shall be permitted: (a) Dividend Payments permitted
by Section 9.10; (b) reasonable fees and compensation paid to, and customary
indemnity and reimbursement provided on behalf of, officers, directors and
employees of any Company in the ordinary course of business; (c) loans or
advances to employees permitted by Section 9.09; (d) transactions and
agreements contemplated by the Management Agreement and any amendments
thereof permitted by Section 9.17 (including any payment of accrued fees
thereunder for any prior period during which the payment thereof was not
permitted by this Section 9.15); (e) transactions and agreements pursuant to
and payments under the Tax Sharing Agreement and any amendments thereof
permitted by Section 9.27; (f) transactions and agreements in existence on
the Original Closing Date and described with particularity in SCHEDULE 9.15
(as such agreements are in effect on the Original Closing Date, the "EXISTING
AFFILIATE AGREEMENTS") and the transactions pursuant to the Existing
Affiliate Agreements; PROVIDED, FURTHER, HOWEVER, so long as any Default
under Section 10(d) arising by virtue of a default in the performance of any
obligation in Section 9.11 has not been cured or waived and Borrower shall
not subsequently be in compliance therewith in each case within 90 days after
the occurrence thereof, payments pursuant to management agreements described
in clause (d) of this Section 9.15 shall only be permitted in an amount equal
to 50% of the amount then due (other than any accrued and unpaid portion)
provided for therein as in effect on the Original Closing Date and the
remaining 50% shall be permitted to (and shall) accrue thereunder on a
subordinated basis; (g) transactions with the Investors or their Affiliates
in the ordinary course of business of the Companies or with an aggregate
value for all such transactions not to exceed $250,000; (h) transactions and
agreements pursuant to and contemplated by the Ellison Acquisition Documents
as in effect on the Amendment and Restatment Date; or (i) the conversion of
Holdings' Series B Common Stock into Series A Common Stock pursuant to the
terms of Holdings' Amended and Restated Certificate of Incorporation.
9.16. LIMITATION ON ACCOUNTING CHANGES; LIMITATION ON
INVESTMENT COMPANY STATUS. No Company shall make or permit, any change in (i)
accounting policies or reporting practices, except immaterial changes and
except as required by GAAP or (ii) its fiscal year end (December 31 of each
year). No Obligor shall be or become an investment company subject to the
registration requirements under the United States Investment Company Act of
1940, as amended.
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9.17. LIMITATION ON MODIFICATIONS OF CERTAIN DOCUMENTS,
ETC. No Company shall, directly or indirectly, consent to any modification,
supplement or waiver of, or amend, in any manner which could reasonably be
expected to be materially adverse to the Lenders, any of the provisions of
any Organic Document; PROVIDED, HOWEVER, that after the Amendment and
Restatement Date Holdings shall be permitted to amend its Organic Documents
to reflect its change of name to Atrium Corporation; PROVIDED, FURTHER, that
Holdings shall execute and acknowledge UCC-3 Amendments, in form reasonably
satisfactory to Administrative Agent, within 45 days of such change of name
and in accordance with the provisions of SECTION 5(d) of the Security
Agreement. No material change that could reasonably be expected to be adverse
to the Lenders may be made to the Ellison Acquisition Documents, the
Mezzanine Securities Documents, the Wing Asset Sale Documents, the Atrium
Wood Asset Sale Documents, the Senior Subordinated Notes Indenture or the
Management Agreement, in each case without the consent of the Lead Arranger
and the Majority Lenders.
9.18. INTEREST RATE PROTECTION AGREEMENTS. Borrower shall
obtain, on or within 90 days after the Amendment and Restatement Date,
interest rate protection agreements having terms and with counterparties
reasonably satisfactory to the Lead Arranger as shall result in at least 50%
of the aggregate principal amount of then outstanding Total Debt of Borrower
either bearing interest at a fixed rate or being hedged for a period of at
least three years from the date the initial interest rate protection
agreements were obtained.
9.19. LIMITATION ON CERTAIN RESTRICTIONS AFFECTING
SUBSIDIARIES. No Company (other than a Foreign Subsidiary) shall, directly or
indirectly, create or otherwise cause or suffer to exist or become effective
any direct or indirect encumbrance or restriction on the ability of such
Company to (a) pay dividends or make any other distributions on such
Company's Equity Interests or any other interest or participation in its
profits owned by any other Company, or pay any Indebtedness or any other
obligation owed to any other Company, (b) make Investments in or to any other
Company, or (c) transfer any of its Property to any other Company. The
foregoing shall not prohibit (i) any such encumbrances or restrictions
existing under or by reason of (A) applicable law, (B) the Credit Documents,
(C) the Senior Subordinated Notes Indenture as in effect on the Amendment and
Restatement Date, (D) the Mezzanine Securities Documents as in effect on the
Amendment and Restatement Date and (E) any Permitted Refinancing of the
Senior Subordinated Notes Indenture or the Mezzanine Securities Documents so
long as such restriction in such Permitted Refinancing is not more
disadvantageous to the Lenders or Borrower than the Senior Subordinated Notes
Indenture or the Mezzanine Securities Documents, as applicable, as in effect
on the Amendment and Restatement Date, (ii) restrictions on the transfer of
assets subject to a Lien permitted under Section 9.07, (iii) customary
restrictions on subletting or assignment of any lease governing a leasehold
interest of any Company, and (iv) with respect to restrictions described in
clause (c) only, restrictions on the transfer of any Property subject to a
Disposition permitted under this Agreement.
9.20. ADDITIONAL OBLIGORS. Upon any Obligor creating or
acquiring any Wholly Owned Subsidiary (other than a Foreign Subsidiary) after
the Original Closing Date (each such Wholly Owned Subsidiary referred to
herein as an "ADDITIONAL OBLIGOR" and collectively as the "ADDITIONAL
OBLIGORS"), Borrower shall (i) cause each such Wholly Owned Subsidiary to
execute and deliver all such agreements, guarantees, documents and
certificates (including any amendments to the
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Credit Documents and a Joinder Agreement) as the Administrative Agent may
reasonably request and do such other acts and things as the Administrative
Agent may reasonably request in order to have such Wholly Owned Subsidiary
guarantee the Obligations in accordance with the terms of the Credit
Documents, (ii) promptly (I) execute and deliver to the Administrative Agent
such amendments to the Security Documents as the Administrative Agent deems
necessary or advisable in order to grant to the Administrative Agent, for the
benefit of the Lenders, a perfected first priority security interest in the
Equity Interests and debt securities of such new Wholly Owned Subsidiary
which are owned by Borrower or any Wholly Owned Subsidiary and required to be
pledged pursuant to the Security Agreement, (II) deliver to the
Administrative Agent the certificates representing such Equity Interests and
debt securities, together with (A) in the case of such Equity Interests,
undated stock powers endorsed in blank, and (B) in the case of such debt
securities, endorsed in blank, in each case executed and delivered by a
responsible officer of Borrower or such Subsidiary, as the case may be, (III)
cause such new Wholly Owned Subsidiary to take such actions necessary or
advisable to grant to the Administrative Agent for the benefit of the Lenders
a perfected first priority security interest in the collateral described in
the Security Agreement with respect to such new Wholly Owned Subsidiary
(subject to Prior Liens, if any), including, without limitation, the filing
of Uniform Commercial Code financing statements in such jurisdictions as may
be required by the Security Agreement or by law or as may be reasonably
requested by the Administrative Agent, and (IV) if reasonably requested by
the Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
9.21. LIMITATION ON DESIGNATION OF DESIGNATED SENIOR
INDEBTEDNESS. Borrower shall not, nor shall it permit any Subsidiary to,
designate any Indebtedness or other obligation, other than Indebtedness under
the Credit Documents, as "Designated Senior Indebtedness," as such term is
defined in the Senior Subordinated Notes Indenture as in effect on the
Amendment and Restatement Date or any Permitted Refinancing thereof, or any
comparable designation that confers upon the holders of such Indebtedness or
other obligation (or any Person acting on their behalf) the right to initiate
blockage periods under the Senior Subordinated Notes Indenture or any other
Indebtedness or other obligation of Borrower and its Subsidiaries.
9.22. FOREIGN SUBSIDIARIES' SECURITY. If following a change
in the relevant sections of the Code or the regulations, rules, rulings,
notices or other official pronouncements issued or promulgated thereunder,
counsel for Borrower reasonably acceptable to the Administrative Agent does
not within 30 days after a request from the Administrative Agent or the
Majority Lenders deliver evidence, in form and substance mutually
satisfactory to the Administrative Agent and Borrower, with respect to any
Foreign Subsidiary which has not already had all of its stock pledged
pursuant to the Security Agreement that (i) a pledge of 65% or more of the
total combined voting power of all classes of capital stock of such Foreign
Subsidiary entitled to vote and (ii) the entering into by such Foreign
Subsidiary of a Joinder Agreement, in any such case could reasonably be
expected to cause the undistributed earnings of such Foreign Subsidiary as
determined for Federal income tax purposes to be treated as a deemed dividend
to such Foreign Subsidiary's United States parent for Federal income tax
purposes, then in the case of a failure to deliver the evidence described in
clause (i) above, that portion of such Foreign Subsidiary's outstanding
capital stock so issued by such Foreign Subsidiary and not
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theretofore pledged pursuant to the Security Agreement shall be pledged to
the Administrative Agent for the benefit of the Lenders pursuant to the
Security Agreement (or another security agreement in substantially similar
form, if needed), and in the case of a failure to deliver the evidence
described in clause (ii) above, such Foreign Subsidiary shall execute and
deliver a Joinder Agreement, guaranteeing the Obligations of Borrower under
the Loan Documents and granting the Administrative Agent for the benefit of
the Lenders a security interest in all of such Foreign Subsidiary's assets
securing the Obligations of such Foreign Subsidiary under its Guarantee, in
each case to the extent that the entering into of such Joinder Agreement is
permitted by the laws of the respective foreign jurisdiction and with all
documents delivered pursuant to this Section 9.22 to be in form and substance
reasonably satisfactory to the Administrative Agent.
9.23. LIMITATION ON ACTIVITIES OF HOLDINGS. Holdings shall
not conduct any business, incur any obligations (other than the Credit
Documents and corporate overhead (including, without limitation, fees and
expenses incidental to an initial public offering), Indebtedness permitted by
Section 9.08(c)(z) and the Mezzanine Securities Documents) or hold or acquire
any assets (other than (i) the Equity Interests of Borrower and (ii) cash in
an amount not to exceed $1.0 million at any time) and shall have no
operations other than holding such Equity Interests and activities reasonably
related thereto. Notwithstanding the foregoing, Holdings may own a $5.0
million subordinated note of Borrower evidencing $5.0 million owing from
Borrower to Holdings so long as (i) such note is subordinated to the
Obligations and (ii) such note is pledged to the Lenders. Such note may be
contributed to the equity of Borrower on or about the closing of the Ellison
Acquisition and thereupon cancelled, provided, that if the Ellison
Acquisition does not close, such note may be contributed to Borrower (and
thereupon cancelled) at any such date as determined by Holdings.
9.24. LIMITATION ON ISSUANCE OR DISPOSITIONS OF EQUITY
INTERESTS OF COMPANIES. Borrower shall not issue any of its Equity Interests
or Equity Rights or permit any Person to own any of its Equity Interests or
Equity Rights other than Holdings or any parent or indirect parent thereof.
Holdings shall not, directly or indirectly, effect any Disposition of any
Equity Interests or Equity Rights of Borrower other than the pledge thereof
pursuant to the Security Agreement. No Company shall effect the Disposition
of any Equity Interests of any Subsidiary unless (i) all Equity Interests
owned by such Company are sold pursuant thereto in accordance with the Credit
Documents, upon which sale the Guarantee of such Subsidiary shall be
automatically deemed to be released, or (ii) an Investment in an amount equal
to the fair market value of the remaining Equity Interests owned by such
Company in such Subsidiary after giving effect to such Disposition would have
been permitted to be made at such time pursuant to Section 9.09 (at the time
of such sale an Investment shall be deemed made in such Subsidiary in an
amount equal to the fair market value of such Equity Interests).
9.25. LIMITATION ON PAYMENTS OR PREPAYMENTS OF INDEBTEDNESS
OR THE MEZZANINE SECURITIES OR MODIFICATION OF DEBT DOCUMENTS. No Company
shall, directly or indirectly:
(a) make any payment or prepayment (optional or otherwise) on
or redemption of or any payments in redemption, defeasance or
repurchase of any Senior Subordinated Notes, Subordinated Debt or
Mezzanine Securities (whether in cash, securities or other Property)
except (1) regularly scheduled mandatory payments of interest, but only
to the extent permitted
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under Section 9.10 and the subordination provisions, if any,
applicable thereto, (2) any Permitted Refinancing effected in
accordance with this Agreement, (3) with respect to the Mezzanine
Securities, the payment of the AHYDO Amounts as contemplated by the
Dividend Payments permitted by Section 9.10(d), (4) the conversion or
exchange of any Indebtedness into shares of common Equity Interests of
Holdings and (5) Dividend Payments permitted by Section 9.10(e); or
(b) amend, supplement, waive or otherwise modify any of the
provisions of the Senior Subordinated Notes Indenture or the Senior
Subordinated Notes or any Subordinated Debt or the Mezzanine Securities
Documents (or any Permitted Refinancing of any thereof):
(i) which shortens the fixed maturity, or increases
the rate or shortens the time of payment of interest on, or
increases the amount or shortens the time of payment of any
principal or premium payable whether at maturity, at a date
fixed for prepayment or by acceleration or otherwise of such
Indebtedness, or increases the amount of, or accelerates the
time of payment of, any fees payable in connection therewith
or alters the right of the issuer of the Mezzanine Securities
to pay interest in kind on the Mezzanine Securities;
(ii) which relates to the affirmative or negative
covenants, events of default, redemption or repurchase
provisions, or remedies under the documents or instruments
evidencing any such Indebtedness and the effect of which is to
subject any Company to any more onerous or more restrictive
provisions taken as a whole; or
(iii) which otherwise materially adversely affects the
interests of the Lenders as senior creditors or the interests
of the Lenders under this Agreement or any other Credit
Document in any respect.
9.26. CASUALTY AND CONDEMNATION. Each Obligor will furnish
to the Administrative Agent and the Lenders prompt written notice of any
casualty or other insured damage to any material portion of the Collateral or
the commencement of any action or proceeding for the taking of any material
portion of the Collateral or any part thereof or interest therein under power
of eminent domain or by condemnation or similar proceeding.
9.27. TAX SHARING ARRANGEMENTS. No Company shall enter into
or permit to exist any amendment to the Tax Sharing Agreement or any other
tax sharing agreement or similar arrangement unless the same shall have been
reviewed by, and consented to, by the Lead Arranger and the Majority Lenders.
9.28. POST CLOSING OBLIGATIONS. Borrower will, and will
cause each Subsidiary to, as expeditiously as possible but in no event later
than 180 days after the Amendment and Restatement Date:
(a) obtain and deliver to the Administrative Agent and counsel
to the Administrative Agent updated title insurance commitments and
endorsements to the title policies (or where
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such endorsements are not available opinions of special counsel or
other professionals reasonably acceptable to the Administrative
Agent), as appropriate, with respect to the Real Property described
on SCHEDULE 7.02(xv) which shall be in form and substance satisfactory
to the Administrative Agent and shall omit from such title insurance
commitments or title policies, as the case may be, any and all
exceptions which the Administrative Agent deems reasonably necessary;
(b) obtain and deliver to the Administrative Agent evidence of
the completion of all recordings and filings of, or with respect to,
the Security Documents and deliver such other security and other
documents as may be necessary or, in the reasonable opinion of the
Administrative Agent, desirable to perfect the Liens created, or
purported or intended to be created, by the Security Documents;
(c) obtain and deliver to the Administrative Agent each of the
documents listed on ANNEX B attached hereto with respect to the Ellison
Properties identified as property numbers one and two on SCHEDULE
9.28(c) attached hereto;
(d) obtain and deliver to the Administrative Agent and counsel
to the Administrative Agent UCC, judgment and tax lien searches (at the
state and local levels) conducted against Ellison Extrusion and Ellison
W&D and each of their respective subsidiaries in each of the
jurisdictions listed on Annex B to the joinder agreement dated as of
the date hereof, executed by Ellison Extrusion and delivered pursuant
to SECTION 22 of the Security Agreement. Borrower will, and will cause
each Subsidiary to, obtain all releases of liens or judgments that are
not permitted under the Credit Documents or that Administrative Agent
shall reasonably request be removed or released;
(e) obtain and deliver to the Administrative Agent and counsel
to the Administrative Agent updated UCC, judgment and tax lien searches
with respect to the UCC, judgment and tax lien searches delivered to
the Administrative Agent on the Original Closing Date and updates to
any UCC, judgment and tax lien searches, if any, delivered to
Administrative Agent subsequent to the Original Closing Date; and
(f) obtain, with respect to each Ellison Property, a landlord
lien waiver, access agreement and consent substantially in the form of
EXHIBIT Q or in a form otherwise satisfactory to the Administrative
Agent; and
(g) obtain and deliver to the Administrative Agent and counsel
to the Administrative Agent good standing certificates for those
Subsidiaries listed on SCHEDULE 9.28(g) attached hereto for those
jurisdictions listed on such schedule where such Subsidiaries are
qualified to do business.
Section 10. EVENTS OF DEFAULT. If one or more of the
following events (herein called "EVENTS OF DEFAULT") shall occur and be
continuing:
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(a) (i) Borrower shall default in the payment when due
(whether at stated maturity upon prepayment or repayment or
acceleration or otherwise) of any principal of any Loan or
Reimbursement Obligation, or (ii) Borrower shall default in the payment
when due of interest on any Loan or any Reimbursement Obligation or any
fee or any other amount payable by it hereunder or under any other
Credit Document when due and such default under this clause (ii) shall
have continued unremedied for three or more Business Days; or
(b) Any Company shall default in the payment when due of any
principal of or interest on any of its Indebtedness (other than the
Loans) aggregating $3.5 million or more, beyond the period of grace, if
any, provided in the instrument or agreement under which such
Indebtedness was created, after giving effect to any consents or
waivers relating thereto obtained before the expiration of any such
period of grace; or any event specified in any note, agreement,
indenture or other document evidencing or relating to any Indebtedness
aggregating $3.5 million or more if the effect of such event (after
giving effect to any consents or waivers relating thereto obtained
before the expiration of any such period of grace) is to cause, or
(with the giving of any notice or the lapse of time or both) to permit
the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause, such Indebtedness to become
due, or to be prepaid in full (whether by redemption, purchase, offer
to purchase or otherwise), prior to its stated maturity; PROVIDED,
HOWEVER, that the $3.5 million threshold in this paragraph (b) shall be
increased to $5.0 million so long as no Company has outstanding any
Indebtedness that would permit any holder thereof to declare such
Indebtedness due and payable prior to its stated maturity upon the
occurrence of a default or event of default with respect to any one or
more issues of other Indebtedness of any Company aggregating $6.0
million or less; or
(c) Any representation or warranty made or deemed made in any
Credit Document (or in any modification or supplement thereto) by any
Obligor or in any certificate furnished to any Creditor pursuant to the
provisions thereof, shall prove to have been false or misleading as of
the time made, deemed made or furnished in any material respect; or
(d) Any Obligor shall default in the performance of any of its
obligations under any of Sections 9.01(f), 9.05 through 9.13, 9.15
through 9.25 and 9.27 and 9.28; or any Obligor shall default in the
performance of any of its obligations under Section 5.02 of the
Security Agreement; or Borrower shall default in the performance of its
obligations under Section 9.01(e) or (k) and such default shall
continue unremedied for five Business Days; or any Obligor shall
default in the performance of any of its other obligations in this
Agreement, the Security Documents or the Letter of Credit Documents and
such default shall continue unremedied for a period of thirty days
after written notice thereof to such Obligor or Borrower by the
Administrative Agent or any Lender; or
(e) Any Company shall not, or shall admit in writing its
inability to, or be generally unable to, pay its debts as such debts
become due; or
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(f) Any Company shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its
Property, (ii) make a general assignment for the benefit of its
creditors, (iii) commence or consent to any Insolvency Proceeding, (iv)
file a petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
readjustment of debts, (v) fail to controvert within 60 days or in a
timely and appropriate manner, or acquiesce in writing to, any petition
filed against it in an involuntary Insolvency Proceeding, or (vi) take
any corporate action for the purpose of effecting any of the foregoing;
or
(g) (i) Any Insolvency Proceeding is commenced or filed
against any Company, or any writ, judgment, warrant of attachment,
execution or similar process is issued or levied against any Company,
and either (1) such proceeding or petition shall not be dismissed, or
such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded, within 60 days
after commencement, filing or levy or (2) such proceeding shall not be
actively contested by such Company; (ii) any Company admits the
material allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under non-U.S.
law) is ordered in any Insolvency Proceeding; (iii) any Company
acquiesces in the appointment of a receiver, receiver and manager,
trustee, custodian, conservator, liquidator, mortgagee in possession
(or agent therefor), or other similar person for itself or a
substantial portion of its Property or business; or (iv) an order of
relief against any Company shall be entered in any involuntary
Insolvency Proceeding; or
(h) A final judgment or judgments for the payment of money in
excess of $3.5 million in the aggregate (exclusive of judgment amounts
to the extent covered by insurance) shall be rendered by one or more
courts, administrative tribunals or other bodies having jurisdiction
against any Company and the same shall not be discharged (or provision
shall not be made for such discharge), vacated or bonded pending
appeal, or a stay of execution thereof shall not be procured, within 60
days from the date of entry thereof and such Company shall not, within
said period of 60 days, or such longer period during which execution of
the same shall have been stayed, appeal therefrom and cause the
execution thereof to be stayed during such appeal; PROVIDED, HOWEVER,
that the $3.5 million threshold in this paragraph (h) shall be
increased to $5.0 million so long as no Company has outstanding any
Indebtedness that would permit any holder thereof to declare such
Indebtedness due and payable prior to its stated maturity upon the
occurrence of any judgment rendered by one or more courts,
administrative tribunals or bodies having jurisdiction against any
Company for the payment of money of $6.0 million or less in the
aggregate; or
(i) An ERISA Event or noncompliance with respect to foreign
plans shall have occurred that, when taken together with all other
ERISA Events and noncompliance with respect to foreign plans that have
occurred, is reasonably likely to result in liability of any Company in
an aggregate amount exceeding $5.0 million; or
(j) Any Change of Control shall occur; or
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(k) Any Security Document after delivery thereof by any
Obligor at any time shall cease to be in full force and effect or shall
for any reason fail to create or cease to maintain a valid and duly
perfected first priority security interest in and Lien upon (subject to
Prior Liens and other Liens expressly permitted by the terms of the
applicable Security Document) any material portion of the Collateral;
or
(l) Any Guarantee ceases to be in full force and effect or any
of the Guarantors repudiates or attempts to repudiate, any of its
obligations under any of the Guarantees; or
(m) Any Credit Document or any material provision thereof
shall at any time and for any reason be declared by a court of
competent jurisdiction to be null and void, or a Proceeding shall be
commenced by any Obligor, or by any Governmental Authority, seeking to
establish the invalidity or unenforceability thereof (exclusive of
questions of interpretation of any provision thereof), or any Obligor
shall repudiate or deny that it has any liability or obligation for the
payment of principal or interest or other obligations purported to be
created under any Credit Document; or
(n) Any non-monetary judgment, order or decree is entered
against any Company which is reasonably likely to have a Material
Adverse Effect, and there shall be any period of 60 consecutive days
during which a stay of enforcement of such judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect; or
(o) The subordination provisions relating to the Senior
Subordinated Notes or any other Subordinated Debt (the "SUBORDINATION
PROVISIONS") shall fail in any material respect to be enforceable by
the Lenders (which have not effectively waived the benefits thereof) in
accordance with the terms thereof, or any Obligation shall fail to
constitute Senior Debt (as defined in any Subordinated Debt), or any
Obligor shall, directly or indirectly, disavow or contest in any manner
any of the Subordination Provisions;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (f) or (g) with respect to Borrower of this Section 10, the
Administrative Agent may, and upon written direction of the Majority Lenders
shall, by notice to Borrower, terminate the Commitments and/or declare the
principal amount then outstanding of, and the accrued interest on, the Loans,
the Reimbursement Obligations and all other amounts payable by Borrower
hereunder and under the Notes (including any amounts payable under Section 5.05
or 5.06) to be forthwith due and payable, whereupon such amounts shall be
immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by Borrower,
reduce any claim to judgment, take any other action permitted by law and/or take
any action permitted to be taken by the Security Documents during the existence
of an Event of Default; and (2) in the case of the occurrence of an Event of
Default referred to in clause (f) or (g) of this Section 10 with respect to
Borrower, the Commitments shall automatically be terminated and the principal
amount then outstanding of, and the accrued interest on, the Loans, the
Reimbursement Obligations and all other amounts payable by Borrower hereunder
and under the Notes (including any amounts payable under Section 5.05 or 5.06)
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shall automatically become immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are hereby
expressly waived by Borrower.
In addition, Borrower agrees, upon the occurrence and
during the continuance of any Event of Default if the Administrative Agent
has declared the principal amount then outstanding of, and accrued interest
on, the Revolving Credit Loans, and all other amounts payable to the
Revolving Credit Lenders hereunder and under the Notes evidencing such Loans
to be due and payable, it may and shall, if requested by the Majority
Revolving Credit Lenders through the Administrative Agent (and, in the case
of any Event of Default referred to in clause (f) or (g) of this Section 10
with respect to Borrower, forthwith, without any demand or the taking of any
other action by the Administrative Agent or such Lenders) provide cover for
the Letter of Credit Liabilities by paying to the Administrative Agent
immediately available funds in an amount equal to the then aggregate undrawn
face amount of all Letters of Credit, which funds shall be held by the
Administrative Agent in the Collateral Account as collateral security in the
first instance for the Letter of Credit Liabilities and be subject to
withdrawal only as provided in the Security Agreement.
Section 11. THE AGENTS.
11.01. GENERAL PROVISIONS. Each of the Lenders and the
Issuing Lender hereby irrevocably appoints the Administrative Agent as its
agent and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof and the Security Documents, together with such
actions and powers as are reasonably incidental thereto. The Administrative
Agent agrees to give promptly to each Lender a copy of each notice or other
document received by it pursuant to any Credit Document (other than any that
are required to be delivered to the Lenders by any Credit Party).
The Lender or other financial institution serving as any
Agent or Issuing Lender hereunder shall have the same rights and powers in
its capacity as a Lender as any other Lender and may exercise the same as
though it were not such Agent or Issuing Lender, and such bank and its
Affiliates may accept deposits from, lend money to and generally engage in
any kind of business with any Company or other Affiliate thereof as if it
were not such Agent or Issuing Lender hereunder.
No Agent or Issuing Lender shall have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) no Agent or Issuing Lender shall be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) no Agent or Issuing Lender shall have any
duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby that
such Agent or Issuing Lender is required to exercise in writing by the
Majority Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 12.04), and (c)
except as expressly set forth herein, no Agent or Issuing Lender shall have
any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to any Company that is communicated to or obtained
by the financial institution serving as such Agent or Issuing Lender or any
of its Affiliates in any capacity. No Agent or Issuing Lender shall be liable
for any action taken or not taken by it with the consent or at the request of
the
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Majority Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 12.04) or in the
absence of its own gross negligence or willful misconduct. No Agent shall be
deemed to have knowledge of any Default or Event of Default unless and until
written notice thereof is given to the Administrative Agent and such Agent by
Borrower or a Lender, and no Agent or Issuing Lender shall be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or any other
Credit Document, (ii) the contents of any certificate, report or other
document delivered hereunder or under any other Credit Document or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or
any other Credit Document or any other agreement, instrument or document, or
(v) the satisfaction of any condition set forth in Section 7 or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to such Agent.
Each Agent and Issuing Lender shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the
proper Person. Each Agent and Issuing Lender also may rely upon any statement
made to it orally or by telephone and believed by it to be made by the proper
Person, and shall not incur any liability for relying thereon. Each Agent and
Issuing Lender may consult with legal counsel (who may be counsel for
Borrower), independent accountants and other experts selected by it, and
shall not be liable for any action taken or not taken by it in accordance
with the advice of any such counsel, accountants or experts. Each Agent and
Issuing Lender may deem and treat the payee of any Note as the owner thereof
for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with such Agent or Issuing Lender.
Each Agent and Issuing Lender shall be fully justified in failing or refusing
to take any action under this Agreement or any other Credit Document unless
it shall first receive such advice or concurrence of the Majority Lenders
(or, if so specified by this Agreement, all Lenders) as it deems appropriate
or it shall first be indemnified to its satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action (it being understood that this
provision shall not release the Administrative Agent from performing any
action with respect to Borrower expressly required to be performed by it
pursuant to the terms hereof) under this Agreement. Each Agent and Issuing
Lender shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Credit Documents in accordance
with a request of the Majority Lenders (or, if so specified by this
Agreement, all Lenders), and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Loans.
Each Agent and Issuing Lender may perform any and all its
duties and exercise its rights and powers by or through any one or more
sub-agents appointed by such Agent or Issuing Lender and reasonably
acceptable to Borrower. Each Agent, Issuing Lender and any such sub-agent may
perform any and all its duties and exercise its rights and powers through
their respective Affiliates, directors, officers, employees, agents and
advisors ("RELATED PARTIES"). The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of
each Agent and Issuing Lender and any such sub-agent, and shall apply to
their respective activities in con-
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nection with the syndication of the credit facilities provided for herein as
well as activities of such Agent or Issuing Lender.
Subject to the appointment and acceptance of a successor
Agent as provided in this paragraph, any Agent may resign at any time by
notifying the Lenders, the Issuing Lender (with respect to the Administrative
Agent only) and Borrower. Upon any such resignation, the Majority Lenders
shall have the right to appoint a successor which, so long as no Event of
Default is continuing, shall be reasonably acceptable to Borrower. If no
successor shall have been so appointed by the Majority Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives
notice of its resignation, then the retiring Agent may, on behalf of the
Lenders and the Issuing Lender, appoint a successor Agent which shall be a
bank with an office in New York, New York, or an Affiliate of any such bank
which, so long as no Event of Default is continuing, shall be reasonably
acceptable to Borrower. Upon the acceptance of its appointment as Agent
hereunder by a successor, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations
hereunder. The fees payable by Borrower to a successor Agent shall be the
same as those payable to its predecessor unless otherwise agreed between
Borrower and such successor. After the Agent's resignation hereunder, the
provisions of this Section 11 shall continue in effect for the benefit of
such retiring Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it
was acting as such Agent.
Each Lender acknowledges that it has, independently and
without reliance upon any Agent, Issuing Lender or any other Lender and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon any Agent,
Issuing Lender or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement, any related agreement or any document furnished hereunder or
thereunder. No Agent or Issuing Lender shall be deemed a trustee or other
fiduciary on behalf of any party.
11.02. INDEMNIFICATION. Each Lender agrees to indemnify and
hold harmless each Agent and the Issuing Lender (to the extent not reimbursed
under Section 12.03, but without limiting the obligations of Borrower under
Section 12.03), ratably in accordance with the aggregate principal amount of
the respective Commitments of and/or Loans and Reimbursement Obligations held
by the Lenders (or, if all of the Commitments shall have been terminated or
expired, ratably in accordance with the aggregate outstanding amount of the
Loans and Reimbursement Obligations held by the Lenders), for any and all
liabilities (including, without limitation, pursuant to any Environmental
Law), obligations, losses, damages, fines, penalties, actions, judgments,
deficiencies, suits, costs, expenses (including reasonable attorneys' and
experts' fees) or disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against such Agent or Issuing Lender
(including by any Lender) arising out of or by reason of any investigation in
or in any way relating to or arising out of any Credit Document or any other
documents contemplated by or referred to therein for any action taken or
omitted to be taken by such Agent or Issuing Lender under or in respect of
any of the Credit Documents or other such documents or the transactions
contemplated thereby (including the
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costs and expenses that Borrower is obligated to pay under Section 12.03, but
excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or thereof or
of any such other documents; PROVIDED, HOWEVER, that no Lender shall be
liable for any of the foregoing to the extent they are determined by a court
of competent jurisdiction in a final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of the party to be
indemnified. The agreements set forth in this Section 11.02 shall survive the
payment of all Loans and other obligations hereunder and shall be in addition
to and not in lieu of any other indemnification agreements contained in any
other Credit Document.
11.03. CONSENTS UNDER OTHER CREDIT DOCUMENTS. Except as
otherwise provided in this Agreement and the other Credit Documents, the
Administrative Agent may, with the prior consent of the Majority Lenders (but
not otherwise), consent to any modification, supplement or waiver under any
of the other Credit Documents.
11.04. COLLATERAL SUB-AGENTS. Each Lender by its execution
and delivery of this Agreement agrees, as contemplated by Section 4.03 of the
Security Agreement, that, in the event it shall hold any Permitted
Investments referred to therein, such Permitted Investments shall be held in
the name and under the control of such Lender, and such Lender shall hold
such Permitted Investments as a collateral sub-agent for the Administrative
Agent thereunder. Borrower by its execution and delivery of this Agreement
hereby consents to the foregoing.
11.05. ASSISTANCE BY LENDERS. Each of the Lenders shall
provide full assistance and cooperation to the Administrative Agent and each
Lender hereby grants express and exclusive foreclosing and mortgage
enforcement authority to the Administrative Agent with respect to the
Collateral.
Section 12. MISCELLANEOUS.
12.01. WAIVER. No failure on the part of any Creditor to
exercise and no delay in exercising, and no course of dealing with respect
to, any right, power or privilege under any Credit Document shall operate as
a waiver thereof, nor shall any single or partial exercise of any right,
power or privilege under any Credit Document preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
12.02. NOTICES. All notices, requests and other
communications provided for herein and under the Security Documents
(including any modifications of, or waivers, requests or consents under, this
Agreement) shall be given or made in writing (including by facsimile)
delivered to the intended recipient at the "Address for Notices" specified
below its name on the signature pages hereof (or as to any Guarantor, as so
specified for Borrower) or, as to any party, at such other address as shall
be designated by such party in a notice to each other party. Except as
otherwise provided in this Agreement, all such communications shall be deemed
to have been duly given when transmitted by facsimile or personally delivered
or, in the case of a mailed notice, upon receipt, in each case given or
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addressed as aforesaid. Any Notice of Borrowing or Notice of
Continuation/Conversion shall be deemed to have been received when actually
received.
12.03. EXPENSES, INDEMNIFICATION, ETC. (a) The Obligors,
jointly and severally, agree to pay or reimburse:
(i) the Issuing Lender, the Lead Arranger and the
Administrative Agent for all of their reasonable out-of-pocket costs
and expenses (including the reasonable fees and expenses of one legal
counsel and one legal counsel in each applicable locality) in
connection with (1) the negotiation, preparation, execution and
delivery of the Credit Documents, including this Agreement as amended
and restated on the Amendment and Restatement Date and the extension of
credit hereunder, (2) the negotiation or preparation of any
modification, supplement or waiver of any of the terms of any Credit
Document (whether or not consummated or effective) and (3) the
syndication of the Loans and Commitments;
(ii) each of the Lenders, the Issuing Lender and the
Administrative Agent for all reasonable out-of-pocket costs and
expenses of the Lenders, the Issuing Lender and the Administrative
Agent (including the reasonable fees and expenses of legal counsel) in
connection with (1) any enforcement or collection proceedings resulting
from any Default, including all manner of participation in or other
involvement with (x) bankruptcy, insolvency, receivership, foreclosure,
winding up or liquidation proceedings, (y) judicial or regulatory
proceedings and (z) workout, restructuring or other negotiations or
proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated), (2) the enforcement of this
Section 12.03 and (3) any documentary taxes; and
(iii) the Administrative Agent for all reasonable costs,
expenses, taxes, assessments and other charges incurred in connection
with any filing, registration, recording or perfection of any security
interest contemplated by any Credit Document or any other document
referred to therein.
(b) The Obligors, jointly and severally, hereby agree to
indemnify each Creditor and their respective Affiliates, directors, trustees,
officers, employees and agents (each, an "INDEMNITEE") from, and hold each of
them harmless against, and that no Indemnitee will have any liability for,
any and all Losses incurred by any of them (including any and all Losses
incurred by the Administrative Agent, the Lead Arranger or the Issuing Lender
to any Lender, whether or not any Creditor is a party thereto) directly or
indirectly arising out of or by reason of or relating to the negotiation,
execution, delivery, performance, administration or enforcement of any Credit
Document, any of the transactions contemplated by the Credit Documents, any
breach by any Obligor of any representation, warranty, covenant or other
agreement contained in any of the Credit Documents in connection with any of
the Transactions, the use or proposed use of any of the Loans or Letters of
Credit, the issuance of or performance under any Letter of Credit or the use
of any collateral security for the Loans (including the exercise by any
Creditor of the rights and remedies or any power of attorney with respect
thereto and any action or inaction in respect thereof), but excluding (i) any
such Losses to the extent finally determined by a court of competent
jurisdiction in a final and nonappealable judgment to have arisen
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primarily from the gross negligence or bad faith of the Indemnitee and (ii)
claims among the Agents and the Lenders other than to the extent arising out
of or as a result of any direct or indirect act or omission of any Obligor or
any Affiliate, director, officer, employee or agent thereof.
Without limiting the generality of the foregoing, the
Obligors, jointly and severally, will indemnify each Creditor and each other
Indemnitee from, and hold each Creditor and each other Indemnitee harmless
against, any Losses described in the preceding sentence arising under any
Environmental Law as a result of (A) the past, present or future operations
of any Company (or any predecessor in interest to any Company), (B) the past,
present or future condition of any site or facility owned, operated, leased
or used at any time by any Company (or any such predecessor in interest), or
(C) any Release or threatened Release of any Hazardous Materials at, on,
under or from any such site or facility, including any such Release or
threatened Release that shall occur during any period when any Creditor shall
be in possession of any such site or facility following the exercise by such
Creditor of any of its rights and remedies hereunder or under any of the
Security Documents (except to the extent such release or threatened release
is caused by the actions of such Creditor); PROVIDED, HOWEVER, that the
indemnity hereunder shall be subject to the exclusions from indemnification
set forth in the preceding paragraph.
To the extent that the undertaking to indemnify and hold
harmless set forth in this Section 12.03 or any other provision of any Credit
Document providing for indemnification is unenforceable because it is
violative of any law or public policy or otherwise, the Obligors, jointly and
severally, shall contribute the maximum portion that each of them is
permitted to pay and satisfy under applicable law to the payment and
satisfaction of all indemnified liabilities incurred by any of the Persons
indemnified hereunder.
The Obligors also agree that no Indemnitee shall have any
liability (whether direct or indirect, in contract or tort or otherwise) for
any Losses to any Obligor or any Obligor's security holders or creditors
resulting from, arising out of, in any way related to or by reason of any
matter referred to in any indemnification or expense reimbursement provisions
set forth in this Agreement or any other Credit Document, except to the
extent that any Loss is determined by a court of competent jurisdiction in a
final nonappealable judgment to have resulted primarily from the gross
negligence or bad faith of such Indemnitee.
The Obligors agree that, without the prior written consent
of the Administrative Agent, the Lead Arranger and the Majority Lenders which
consent shall not be unreasonably withheld, no Obligor will settle,
compromise or consent to the entry of any judgment in any pending or
threatened Proceeding in respect of which indemnification is reasonably
likely to be sought under the indemnification provisions of this Section
12.03 (whether or not any Indemnitee is an actual or potential party to such
Proceeding), unless such settlement, compromise or consent includes an
unconditional written release of each Indemnitee from all liability arising
out of such Proceeding and does not include any statement as to an admission
of fault, culpability or failure to act by or on behalf of any Indemnitee and
does not involve any payment of money or other value by any Indemnitee or any
injunctive relief or factual findings or stipulations binding on any
Indemnitee.
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12.04. AMENDMENTS, ETC. (i) No provision of any Credit
Document may be amended, modified or supplemented except by an instrument in
writing signed by the Obligors party thereto and the Majority Lenders, or by
the Obligors party thereto and the Administrative Agent acting with the
written consent of the Majority Lenders, and no provision of any Credit
Document may be waived except by an instrument in writing signed by the
Obligors party thereto and the Majority Lenders, or by the Obligors party
thereto and the Administrative Agent acting with the written consent of the
Majority Lenders; PROVIDED, HOWEVER, that:
(a) no amendment or waiver shall, unless by an instrument
signed by all of the Lenders or by the Administrative Agent acting with
the written consent of each Lender (with Obligations directly affected
in the case of clauses (I), (II) or (IV) (it being understood that the
consent of no other Lender or Agent is needed in each such case)): (I)
extend the scheduled final maturity of any Loan or Note, or extend the
stated expiration date of any Letter of Credit beyond the Revolving
Credit Commitment Termination Date, or reduce the rate of interest
(other than any waiver of any increase in the interest rate applicable
to any of the Loans pursuant to clause (b) of Section 3.02) or fees
thereon, or extend the time of payment of interest or fees thereon
(other than in connection with the extension of any scheduled payment
hereunder otherwise permitted hereby), or reduce the principal amount
thereof, or make any change to the definition of Applicable Margin or
Applicable Revolving Credit Fee Percentage, (II) extend the final
maturity of any of the Commitments (or reinstate any Commitment
terminated pursuant to Section 10), (III) change the currency in which
any Obligation is payable, (IV) amend the terms of this Section 12.04
or Section 4.07, 5 or 11.03, (V) reduce the percentages specified in
the definition of the term "Majority Lenders" or "Supermajority
Lenders" or amend any provision of any Credit Document requiring the
consent of all the Lenders or reduce any other percentage of the
Lenders required to make any determinations or waive any rights
hereunder or to modify any provision hereof (it being understood that,
with the consent of the Majority Lenders, additional extensions of
credit pursuant to this Agreement may be included in the determination
of the Majority Lenders and Supermajority Lenders without notice to or
consent of any other Lender or Agent on substantially the same basis as
the Commitments (and related extensions of credit) are included on the
Closing Date), (VI) release any Guarantor from its obligations under
Section 6 (unless permitted by this Agreement), (VII) consent to the
assignment or transfer by any Obligor of any of its rights and
obligations under any Credit Document, (VIII) release all or
substantially all the Collateral or terminate the Lien under any Credit
Document in respect of all or substantially all the Collateral (except
as permitted by the Credit Documents) or agree to additional
obligations (other than the Obligations and other extensions of credit
under this Agreement consented to by the Majority Lenders) being
secured by the Collateral, (IX) waive the requirement that nine and
twelve month LIBOR Interest Periods require the consent of all Lenders
or (X) amend Section 12.03 or any other indemnification and expense
reimbursement provision set forth in any Credit Document (it being
understood that any prepayment required by Section 2.10(a) (and any
corresponding reduction of the Revolving Credit Commitments), other
than pursuant to Section 2.10(a)(v), may be waived or amended by the
Majority Lenders);
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(b) no such amendment, modification, supplement or waiver
shall increase the Commitments of any Lender over the amount thereof
then in effect without the consent of such Lender (it being understood
that amendments, modifications or waivers of conditions precedent,
covenants, Defaults or Events of Default shall not constitute an
increase of the Commitment of any Lender);
(c) any modification or supplement of or waiver with respect
to Section 11 which affects any Agent in their respective capacities as
such shall require the consent of such Agent;
(d) no consent of any Lender need be obtained, and the
Administrative Agent is hereby authorized, to release any Lien securing
the Obligations on Property which is the subject of any Disposition
permitted by the Credit Documents and to release any Guarantee of a
Subsidiary upon the sale of all of the Equity Interests of such
Subsidiary in accordance with the Credit Documents;
(e) subject to clause (a)(I) above of this proviso to this
Section 12.04(i), the consent of the Majority Tranche A Term Loan
Lenders, if the Tranche A Term Loans are directly affected, or the
Majority Tranche B Term Loan Lenders, if the Tranche B Term Loans are
directly affected, or the Majority Tranche C Term Loan Lenders, if the
Tranche C Term Loans are directly affected, shall be required with
respect to any extension of any scheduled Amortization Payment or any
reduction in the amount of any scheduled Amortization Payment or any
change to Section 3.01(b) (it being understood that, subject to clause
(f) below of this Section 12.04, any prepayment required by Section
2.10 (and any corresponding reduction of the Revolving Credit
Commitments), other than pursuant to Section 2.10(a)(v), may be
modified, supplemented or waived by the Majority Lenders);
(f) no modification, supplement or waiver shall, unless by an
instrument signed by the Supermajority Lenders of the Affected Class or
by the Administrative Agent acting with the written consent of the
Supermajority Lenders of the Affected Class, change the timing of the
receipt or the application of mandatory prepayments hereunder as among
the Tranche A Term Loans, the Tranche B Term Loans and the Tranche C
Term Loans or the order in which any such prepayment is applied to the
Tranche A Term Loans, the Tranche B Term Loans and Tranche C Term Loans
(although any required prepayment set forth in Section 2.10 (and any
corresponding reduction of the Revolving Credit Commitments), other
than pursuant to Section 2.10(a)(v), may otherwise be modified,
supplemented or waived by the Majority Lenders);
(g) no reduction of the percentage specified in the definition
of "Majority Revolving Credit Lenders," "Majority Tranche A Term Loan
Lenders," "Majority Tranche B Term Loan Lenders" or "Majority Tranche C
Term Loan Lenders" shall be made without the consent of each Revolving
Credit Lender, each Tranche A Term Loan Lender, each Tranche B Term
Loan Lender or each Tranche C Term Loan Lender, respectively (it being
understood that, only the Class of such Loan to which such definition
relates need consent to any such reduction and that with the consent of
the Majority Lenders, other additional extensions of credit
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pursuant to this Agreement may be included in any such definition
without notice to or consent of any other Lender or Agent on
substantially the same terms as the Commitments (and related extensions
of credit) are included on the Amendment and Restatement Date);
(h) no reduction of the percentage specified in the definition
of "Supermajority Lenders of the Affected Class" shall be made without
the consent of each Term Loan Lender (it being understood that, with
the consent of the Majority Lenders, additional extensions of credit
pursuant to this Agreement may be included in either such definition
without notice to or consent of any other Lender or Agent on
substantially the same terms as the Commitments (and related extensions
of credit) are included on the Amendment and Restatement Date);
(i) no amendment or waiver shall make any change to Section
2.01(f) or the definitions of "Swing Loan Commitment," "Swing Loan
Maturity Date" or "Swing Loans" or the Swing Loan Note without the
consent of the Swing Loan Lender;
(j) no amendment or waiver shall affect the rights or duties
of the Issuing Lender in its capacity as such or alter the obligation
of any Revolving Credit Lender pursuant to Section 2.03(e) or 2.03(f)
without the consent of the Issuing Lender;
(k) no consent of any Lender need be obtained to effect any
amendment of any Credit Document necessary to comply with Section 9.12
or Section 9.20;
(l) no modification or waiver may be made to Section
2.10(a)(v) or the timing of any prepayment required thereunder or to
the definition of "Excess Cash Flow" or any definition used therein
(solely in the context used therein but not in any other context) may
be made without the consent of the Supermajority Lenders;
(m) [Reserved]; and
(n) no amendment, modification, supplement or waiver may be
made to any condition precedent to any extension of credit under the
Revolving Credit Facility set forth in Section 7.02 without the written
consent of the Majority Revolving Credit Lenders, it being understood
that no amendment to or waiver of any representation or warranty or any
covenant contained in this Agreement or any other Credit Document, or
of any Default, shall be deemed to be effective for purposes of
determining whether the conditions precedent set forth in Section 7.02
to the making of any extension of credit under the Revolving Credit
Loans have been satisfied unless the Majority Revolving Credit Lenders
shall have consented to such amendment or waiver.
(ii) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by Section 12.04(i)(a) (other than clause (I) of such section),
the consent of the Majority Lenders is obtained but the consent of one or more
of such other Lenders whose consent is required is not obtained, then Borrower
shall have the right to replace each such non-consenting Lender or Lenders (so
long as all non-consenting Lenders are so replaced) with one or more
Replacement Lenders pursuant to Section 2.11 so long as at the time of
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such replacement each such Replacement Lender consents to the proposed change,
waiver, discharge or termination; PROVIDED, HOWEVER, that Borrower shall not
have the right to replace a Lender solely as a result of the exercise of such
Lender's rights (and the withholding of any required consent by such Lender)
pursuant to clause (I) of Section 12.04(i)(a).
12.05. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
12.06. ASSIGNMENTS AND PARTICIPATIONS. (a) No Obligor may
assign its respective rights or obligations hereunder or under the Notes or
any other Credit Document without the prior written consent of all of the
Lenders.
(b) Each Lender may assign to any Eligible Person any of its
Loans, its Notes, its Letter of Credit Interests and its Commitments (but only
with the consent (which shall not be unreasonably withheld, delayed or
conditioned) of Borrower, the Lead Arranger and the Administrative Agent and,
in the case of the Revolving Credit Commitments, the Issuing Lender);
PROVIDED, HOWEVER, that (i) no such consent by Borrower, the Issuing Lender,
the Lead Arranger or the Administrative Agent shall be required in the case of
any assignment to another Lender or any Lender's Affiliate or an Approved Fund
of any Lender (in which case, the assignee and assignor Lenders shall give
notice of the assignment to the Lead Arranger and the Administrative Agent);
(ii) no consent of Borrower need be obtained if any Event of Default shall
have occurred and be continuing or if determined by the Lead Arranger (in
consultation with Borrower) to achieve a successful primary syndication; (iii)
each assignment, other than to a Lender or any Lender's Affiliate or an
Approved Fund of any Lender and other than any assignment effected by Merrill
Lynch Capital Corporation or any of its Affiliates in connection with the
syndication of the Commitments and/or Loans or otherwise, shall be in an
aggregate amount at least equal to $1.0 million unless the assigning Lender's
exposure is reduced to $0 or unless Borrower and the Lead Arranger otherwise
agree; and (iv) in no event may any such assignment be made to any Obligor or
any of its Affiliates without consent of all Lenders. Any assignment of a Loan
shall be effective only upon appropriate entries with respect thereto being
made in the Register (and each Note shall expressly so provide). Any
assignment or transfer of a Loan shall be registered on the Register only upon
surrender for registration of assignment or transfer of the Note evidencing
such Loan (if a Note was issued in respect thereof), accompanied by an
instrument in writing substantially in the form of EXHIBIT H, and upon consent
thereto by Borrower, the Lead Arranger, the Administrative Agent and the
Issuing Lender to the extent required above (none of which consents to be
unreasonably withheld), one or more new Notes (if requested by the new Lender)
in the same aggregate principal amount shall be issued to the designated
assignee and the old Notes shall be returned by the Administrative Agent to
Borrower marked "cancelled". Upon execution and delivery by the assignee to
Borrower, the Lead Arranger and the Administrative Agent of an instrument in
writing substantially in the form of EXHIBIT H, and upon consent thereto by
Borrower, the Lead Arranger, the Administrative Agent and the Issuing Lender
to the extent required above (none of which consents to be unreasonably
withheld), and in the case of a Loan, upon appropriate entries being made in
the Register the assignee shall have, to the extent of such assignment (unless
otherwise provided in such assignment with the consent of the Administrative
Agent), the obligations, rights and benefits of a Lender hereunder holding the
Commitment(s), Loans (or portions thereof) and Letter of Credit Inter-
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ests assigned to it (in addition to the Commitment(s), Letter of Credit
Interests and Loans, if any, theretofore held by such assignee) and the
assigning Lender shall, to the extent of such assignment, be released from the
Commitment(s) (or portion(s) thereof) so assigned. Upon any such assignment
(other than to a Lender or any Affiliate of a Lender or any Approved Fund and
other than any assignment by Merrill Lynch Capital Corporation or any of its
Affiliates) the assignee Lender shall pay a fee of $3,500 to the
Administrative Agent. Upon any such assignment, certain rights and obligations
of the assigning Lender shall survive as set forth in Section 12.07. Each
assignment shall be made pursuant to an agreement substantially in the form of
EXHIBIT N. At the time of each assignment pursuant to this Section 12.06(b) to
any Eligible Person that is not already a Lender hereunder, the respective
assignee Lender shall provide to Borrower and the Administrative Agent the
appropriate Internal Revenue Service forms (and, if applicable, a Section 5.06
Certificate) described in Section 5.06(b).
(c) A Lender may sell or agree to sell to one or more other
Eligible Persons a participation in all or any part of any Loans and Letter of
Credit Interests held by it, or in its Commitments, in which event each
purchaser of a participation (a "PARTICIPANT") shall be entitled to the rights
and benefits of the provisions of Section 5 (PROVIDED, HOWEVER, that no
Participant shall be entitled to receive any greater amount pursuant to
Section 5 than the transferor Lender would have been entitled to receive in
respect of the participation effected by such transferor Lender had no
participation occurred) with respect to its participation in such Loans,
Letter of Credit Interests and Commitments as if such Participant were a
"Lender" for purposes of said Section, but, except as otherwise provided in
Section 4.07(c), shall not have any other rights or benefits under this
Agreement or any Note or any other Credit Document (the Participant's rights
against such Lender in respect of such participation to be those set forth in
the agreements executed by such Lender in favor of the Participant). All
amounts payable by Borrower to any Lender under Section 5 in respect of Loans,
Letter of Credit Interests and its Commitments shall be no greater than the
amount that would have applied if such Lender had not sold or agreed to sell
any participation in such Loans, Letter of Credit Interests and Commitments,
and as if such Lender were funding each of such Loan, Letter of Credit
Interests and Commitments in the same way that it is funding the portion of
such Loan, Letter of Credit Interests and Commitments in which no
participations have been sold. In no event shall a Lender that sells a
participation agree with the Participant to take or refrain from taking any
action hereunder or under any other Credit Document, except that such Lender
may agree with the Participant that it will not, without the consent of the
Participant, agree to any modification or amendment set forth in subclauses
(I), (II), (III) or (VIII) of clause (a) of the proviso to Section 12.04(i).
(d) In addition to the assignments and participations
permitted under the foregoing provisions of this Section 12.06, any Lender may
assign and pledge all or any portion of its Loans and its Notes to any United
States Federal Reserve Bank as collateral security pursuant to Regulation A of
the Board of Governors of the Federal Reserve System and any Operating
Circular issued by such Federal Reserve Bank and, in the case of a Lender that
is an investment fund, any such Lender may assign or pledge all or any portion
of its Loans and its Notes to its trustee or other creditors in support of its
obligations to its trustee or such other creditors, without notice to or
consent of Borrower, the Administrative Agent, Lead Arranger or Issuing
Lender. No such assignment shall release the assigning Lender from its
obligations hereunder.
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(e) A Lender may furnish any information concerning any
Company in the possession of such Lender from time to time to assignees and
participants (including prospective assignees and participants) subject,
however, to and so long as the recipient agrees in writing to be bound by the
provisions of Section 12.11. In addition, each of the Administrative Agent and
Lead Arranger may furnish any information concerning any Obligor or any of its
Affiliates in the Administrative Agent's or Lead Arranger's possession to any
Affiliate of Administrative Agent or Lead Arranger, subject, however, to the
provisions of Section 12.11. The Obligors shall assist any Lender in
effectuating any assignment or participation pursuant to this Section 12.06
(including during syndication) in whatever manner such Lender reasonably deems
necessary, including participation in meetings with prospective transferees.
12.07. SURVIVAL. The obligations of the Obligors under
Sections 5.01, 5.05, 5.06 and 12.03, the obligations of each Guarantor under
Section 6.03, and the obligations of the Lenders under Sections 5.06 and
11.02, shall survive the repayment of the Loans and Reimbursement Obligations
and the termination of the Commitments and, in the case of any Lender that may
assign any interest in its Commitments, Loans or Letter of Credit Interest
hereunder, shall (to the extent relating to such time as it was a Lender)
survive the making of such assignment, notwithstanding that such assigning
Lender may cease to be a "Lender" hereunder. In addition, each representation
and warranty made, or deemed to be made by a notice of any extension of
credit, herein or pursuant hereto shall be considered to have been relied upon
by the other parties hereto and shall survive the execution and delivery of
this Agreement and the Notes and the making of any extension of credit
hereunder, regardless of any investigation made by any such other party or on
its behalf and notwithstanding that the Administrative Agent or any Lender may
have had notice or knowledge of any Default or incorrect representation or
warranty and regardless of whether any such representation or warranty under
the Ellison Acquisition Agreement survives the Ellison Acquisition.
12.08. CAPTIONS. The table of contents and captions and
section headings appearing herein are included solely for convenience of
reference and are not intended to affect the interpretation of any provision
of this Agreement.
12.09. COUNTERPARTS; INTERPRETATION; EFFECTIVENESS. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all
of which when taken together shall constitute a single contract. This
Agreement and any separate letter agreements with respect to fees payable to
the Administrative Agent constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof, other than the indemnity, confidentiality, waiver of jury trial and
governing law provisions of the Commitment Letter, which are not superseded
and survive and except that if the initial extensions of credit do not occur
on the date of execution and delivery hereof the Fee Letter shall survive
until the earlier of the date of the initial extensions of credit hereunder or
the date of expiration or termination of the Commitments and any ticking fee
thereunder (if any) shall be payable up to such earlier date. Except as
provided in Section 7.02, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative
Agent shall have received counterparts hereof which, when taken together, bear
the signatures of each of the other parties hereto, and there-
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after shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.
12.10. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVERS;
ETC. Each Credit Document shall be governed by, and construed in accordance
with, the law of the State of New York, without regard to the principles of
conflicts of laws thereof (except in the case of the other Credit Documents,
to the extent otherwise expressly stated therein). Each Obligor hereby
irrevocably and unconditionally: (I) submits for itself and its Property in
any Proceeding relating to any Credit Document to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the Supreme Court of the State of New
York sitting in New York County, the courts of the United States of America
for the Southern District of New York, and appellate courts from any thereof;
(II) consents that any such Proceeding may be brought in any such court and
waives trial by jury and any objection that it may now or hereafter have to
the venue of any such Proceeding in any such court or that such Proceeding was
brought in an inconvenient court and agrees not to plead or claim the same;
(III) agrees that service of process in any such Proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to Borrower at its address set forth
in Section 12.02 or at such other address of which Administrative Agent shall
have been notified pursuant thereto; and (IV) agrees that nothing herein shall
affect the right to effect service of process in any other manner permitted by
law or shall limit the right to sue in any other jurisdiction.
12.11. CONFIDENTIALITY. Each Lender agrees to keep
confidential information obtained by it pursuant hereto and the other Credit
Documents confidential in accordance with such Lender's customary practices
for treatment of its confidential information and agrees that it will only use
such information in connection with the transactions contemplated by this
Agreement and not disclose any of such information other than (a) to such
Lender's employees, representatives, directors, attorneys, auditors, agents,
professional advisors, trustees or affiliates who are advised of the
confidential nature of such information or to any direct or indirect
contractual counterparty in swap agreements or such contractual counterparty's
professional advisor (so long as such contractual counterparty or professional
advisor to such contractual counterparty agrees to be bound by the provision
of this Section 12.11), (b) to the extent such information presently is or
hereafter becomes available to such Lender on a non-confidential basis from
any source of such information that is in the public domain at the time of
disclosure, (c) to the extent disclosure is required by law (including
applicable securities laws), regulation, subpoena or judicial order or process
(PROVIDED that notice of such requirement or order shall be promptly furnished
to Borrower unless such notice is legally prohibited) or requested or required
by bank, securities, insurance or investment company regulations or auditors
or any administrative body or commission (including the Securities Valuation
Office of the NAIC) to whose jurisdiction such Lender may be subject, (d) to
any rating agency to the extent required in connection with any rating to be
assigned to such Lender, (e) to assignees or participants or prospective
assignees or participants who agree to be bound by the provisions of this
Section 12.11, (f) to the extent required in connection with any litigation
between any Obligor and any Lender with respect to the Loans or this Agreement
and the other Credit Documents or (g) with Borrower's prior written consent.
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12.12. INDEPENDENCE OF REPRESENTATIONS, WARRANTIES AND
COVENANTS. The representations, warranties and covenants contained herein
shall be independent of each other and no exception to any representation,
warranty or covenant shall be deemed to be an exception to any other
representation, warranty or covenant contained herein unless expressly
provided, nor shall any such exception be deemed to permit any action or
omission that would be in contravention of applicable law. Notwithstanding
anything herein to the contrary, any matter identified on a Schedule to this
Agreement shall be deemed to be set forth on all other Schedules to this
Agreement for purposes of determining compliance with any of the
representations, warranties or covenants contained herein.
12.13. SEVERABILITY. Wherever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of
this Agreement.
12.14. ACKNOWLEDGMENTS. The Obligors hereby acknowledge
that: (a) this Agreement and the other Credit Documents are the result of
negotiation and each of the Obligors has been advised by counsel in connection
with the negotiation, execution and delivery of this Agreement and the other
Credit Documents; (b) no Creditor has any fiduciary or similar relationship to
any Obligor and the relationship between the Creditors on the one hand, and
the Obligors, on the other hand, is solely that of debtor and creditor; and
(c) no joint venture exists among the Creditors or among the Obligors and the
Creditors.
12.15. USE OF NET AVAILABLE PROCEEDS FROM WING ASSET SALE
AND ATRIUM ASSET SALE. Notwithstanding Amendment and Waiver No. 7 and
Amendment and Waiver No. 8 to the Original Credit Agreement, the Net Available
Proceeds from the Wing Asset Sale and the Atrium Wood Asset Sale may be used
to consummate the Ellison Acquisition and to pay fees and expenses related
thereto, to pay fees and expenses related to the Amended and Restated
Transactions and for other general business purposes relating to or resulting
from the Amended and Restated Transactions.
[Signature Pages Follow]
S-1
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
ATRIUM COMPANIES, INC.
By:
-----------------------
Name:
Title:
Address for Notices:
Contact Person:
Telecopier No.:
Telephone No.:
S-2
GUARANTORS:
D AND W HOLDINGS, INC.
By:
-----------------------
Name:
Title:
ATRIUM DOOR AND WINDOW
COMPANY - WEST COAST
By:
-----------------------
Name:
Title:
ATRIUM DOOR AND WINDOW
COMPANY OF THE NORTHEAST
By:
-----------------------
Name:
Title:
ATRIUM DOOR AND WINDOW
COMPANY OF NEW YORK
By:
-----------------------
Name:
Title:
S-3
ATRIUM DOOR AND WINDOW
COMPANY OF ARIZONA
By:
-----------------------
Name:
Title:
ATRIUM DOOR AND WINDOW
COMPANY OF NEW ENGLAND
By:
-----------------------
Name:
Title:
DOOR HOLDINGS, INC.
By:
-----------------------
Name:
Title:
R.G. DARBY COMPANY, INC.
By:
-----------------------
Name:
Title:
TOTAL TRIM, INC.
By:
-----------------------
Name:
Title:
S-4
WING INDUSTRIES HOLDINGS, INC.
By:
-----------------------
Name:
Title:
WING INDUSTRIES, INC.
By:
-----------------------
Name:
Title:
R.G. DARBY COMPANY - SOUTH
By:
-----------------------
Name:
Title:
TOTAL TRIM, INC. - South
By:
-----------------------
Name:
Title:
HEAT, INC.
By:
-----------------------
Name:
Title:
S-5
H.I.G. VINYL, INC.
By:
-----------------------
Name:
Title:
CHAMPAGNE INDUSTRIES, INC.
By:
-----------------------
Name:
Title:
THERMAL INDUSTRIES, INC.
By:
-----------------------
Name:
Title:
BEST BUILT, INC.
By:
-----------------------
Name:
Title:
VES, INC.
By:
-----------------------
Name:
Title:
S-6
FLEET NATIONAL BANK, as
Administrative Agent, Issuing
Lender and as a Lender
By:
-----------------------
Name:
Title:
Address for Notices:
Fleet National Bank
100 Federal Street
Mail Stop 01-08-05
Boston, Massachusetts 02110
Attention: Paul Holian
Telecopier No.: 617-434-4929
Telephone No.: 617-434-3037
S-7
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED, as
Lead Arranger and
Syndication Agent
By:
-----------------------
Name:
Title:
Address for Notices:
World Financial Center
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
South Tower
225 Liberty Street
New York, New York 10080-6114
Attention:
Telecopier No.: (212) 449-8230
Telephone No.: (212) 449-8221
S-8
Bank One, Texas, N.A. as
Documentation Agent and as a
Lender
By:
-----------------------
Name:
Title:
Address for Notices:
Telecopier No.:
Telephone No.:
S-9
LENDERS
MERRILL LYNCH CAPITAL
CORPORATION, as a Lender
By:
-----------------------
Name:
Title:
Lending Office for all Loans:
World Financial Center
c/o Merrill Lynch & Co.
North Tower - 7th Floor
250 Vesey Street
New York, New York 10281-1307
Address for Notices:
World Financial Center
c/o Merrill Lynch & Co.
North Tower
250 Vesey Street
New York, New York 10281-1316
Attention: Peter Wersching
Telecopier No.: (212) 449-4972
Telephone No.: (212) 449-9435
S-10
[ ],
as a Lender
By:
-----------------------
Name:
Title:
By:
-----------------------
Name:
Title:
Lending Office for all Loans:
Address for Notices:
Attention:
Telecopier No.:
Telephone No.:
ANNEX A
COMMITMENTS ON AMENDMENT AND RESTATEMENT DATE
Allocation
-------------------------------------------------------------------------------------------
Revolving Tranche A Tranche B Tranche C Term
Credit Term Loan Term Loan Loan
Legal Name Commitments Commitments Commitments Commitments Total
- ------------------------------- --------------- --------------- ---------------- ------------------ ---------------
Fleet National Bank $ 8,873,669.51 $ 1,747,339.01 0.00 0.00 $ 10,621,008.52
Indosuez Capital 4,000,000.00 0.00 0.00 0.00 4,000,000.00
BHF (USA) Capital Corporation 7,500,000.00 0.00 0.00 0.00 7,500,000.00
Bay View Financial Corporation 3,200,000.00 6,800,000.00 0.00 0.00 10,000,000.00
Bank One, Texas, N.A. 8,354,643.35 3,709,286.69 0.00 0.00 12,063,930.04
4,000,000.00 0.00 0.00 0.00 4,000,000.00
Merrill Lynch Capital Corporation 7,421,762.59 443,525.19 12,000,000.00 12,000,000.00 31,865,287.78
Greater Bay Corporate Finance 3,649,924.55 1,299,849.11 0.00 0.00 4,949,773.66
--------------- --------------- ---------------- ------------------ ---------------
Total $ 47,000,000.00 $ 14,000,000.00 $ 12,000,000.00 $ 12,000,000.00 $ 85,000,000.00
=============== =============== ================ ================== ===============
ANNEX B
ELLISON PROPERTY DOCUMENTS
(i) Mortgage encumbering each Ellison Property in favor of
the Administrative Agent and for the benefit of the Lenders, duly executed
and acknowledged by fee owner in the case of owned Real Property and by the
tenant in the case of leased Real Property, and otherwise in form for
recording in the recording office where each such Ellison Property is
situated, together with such certificates, affidavits, questionnaires or
returns as shall be required in connection with the recording or filing
thereof to create a Lien under applicable law, and such UCC-1 financing
statements and other similar statements as are contemplated by the counsel
opinion described in clause (ix) below in respect of such Mortgage, all of
which shall be in form and substance satisfactory to the Administrative
Agent, and any other instruments necessary to grant a mortgage Lien under the
laws of the jurisdiction in which each Ellison Property is located, which
Mortgage and financing statements and other instruments shall, when recorded,
be effective to create a Lien on each such Ellison Property prior to the
rights of all third persons other than the holders of Prior Liens applicable
to such Ellison Property as shall be acceptable to the Administrative Agent
and subject to no other Liens except those Liens expressly permitted by the
Mortgage;
(ii) such consents, approvals, amendments, supplements,
estoppels, tenant subordination agreements or other instruments as necessary
or required to consummate the transactions contemplated hereby or as shall
reasonably be deemed necessary by the Administrative Agent in order for
Borrower or the applicable subsidiary of Borrower to grant the Lien
contemplated by the Mortgage with respect to each Ellison Property;
(iii) a policy (or commitment to issue a policy) of title
insurance insuring (or committing to insure) the Lien of the Mortgage as a
valid first mortgage Lien on the real property and fixtures described therein
in an amount not less than 115% of the fair market value thereof, which
policy (or commitment) shall (w) be issued by the Title Company, (x) include
such reinsurance arrangements (with provisions for direct access) as shall be
reasonably acceptable to the Administrative Agent, (y) contain a "tie-in" or
"cluster" endorsement (if available under applicable law) (I.E., policies
which insure against losses regardless of location or allocated value of the
insured property up to a stated maximum coverage amount) and have been
supplemented by such endorsements (or if such endorsements are not available,
opinions of special counsel, architects or other professionals reasonably
acceptable to the Administrative Agent to the extent that such opinions can
be obtained at a cost which is reasonable with respect to the value of each
such Ellison Property) as shall be reasonably requested by the Administrative
Agent (including, without limitation, endorsements on matters relating to
usury, first loss, last dollar, zoning, contiguity, variable rate, revolving
credit, doing business, environmental and so-called comprehensive coverage
over covenants and restrictions) and (z) contain only such exceptions to
title as shall be Prior Liens applicable to such Ellison Property as shall be
acceptable to the Administrative Agent;
(iv) policies or certificates of insurance as required by
the Mortgage relating thereto, which policies or certificates shall comply
with the insurance requirements contained in the Mortgage;
-2-
(v) a Survey;
(vi) such affidavits, certificates, information (including
financial data) and instruments of indemnification (including, without
limitation, a so-called "gap" indemnification) as shall be required to induce
the Title Company to issue the policy or policies (or commitment) and
endorsements contemplated in subparagraph (iii) above;
(vii) evidence acceptable to the Administrative Agent of
payment by Borrower or the applicable Subsidiary of Borrower of all
applicable title insurance premiums, search and examination charges, survey
costs and related charges, mortgage recording taxes, fees, charges, costs and
expenses required for the recording of the Mortgage and issuance of the title
insurance policy referred to in subparagraph (iii) above;
(viii) an Officer's Certificate or other evidence
satisfactory to the Administrative Agent that as of the date thereof there
(x) has been issued and is in effect a valid and proper certificate of
occupancy or other local equivalent, if any, for the use then being made of
each such Ellison Property and that there is not outstanding any citation,
violation or similar notice indicating that such Ellison Property contains
conditions which are not in compliance with local codes or ordinances
relating to building or fire safety or structural soundness, (y) has not
occurred any Taking or Destruction of such Ellison Property and (z) are no
disputes regarding boundary lines, location, encroachment or possession of
such Ellison Property and no state of facts exist which could give rise to
any such claim; and
(ix) an opinion addressed to each of the Lenders and the
Agents and dated the date of the Mortgage in form and substance satisfactory
to Administrative Agent from local counsel to Borrower and the applicable
Subsidiary of Borrower in the jurisdiction in which each Ellison Property is
located.
SCHEDULE 1.01(a)
LIBOR LOANS ABR LOANS
----------- ---------
Revolving Credit Loans 3.000% 2.000%
Tranche A Term Loans 3.000% 2.000%
Tranche B Term Loans 3.250% 2.250%
Tranche C Term Loans 3.500% 2.500%
SCHEDULE 1.01(b)
--------------------------------------------------------------------------------
REVOLVING CREDIT LOANS AND
TRANCHE A TERM LOANS
--------------------------------------------------------------------------------
TIER TOTAL LEVERAGE RATIO LIBOR ABR MARGIN
MARGIN
--------------------------------------------------------------------------------
I greater than or equal to 4.0 3.000% 2.000%
--------------------------------------------------------------------------------
II less than 4.0 but 2.750% 1.750%
greater than or equal to 3.5
--------------------------------------------------------------------------------
III less than 3.5 but 2.500% 1.500%
greater than 3.0
--------------------------------------------------------------------------------
IV less than 3.0 but 2.250% 1.250%
greater than 2.5
--------------------------------------------------------------------------------
V less than 2.5 2.200% 1.200%
--------------------------------------------------------------------------------
SCHEDULE 1.01(c)
GUARANTORS
ATRIUM CORPORATION
Atrium Door and Window Company - West Coast
Atrium Door and Window Company of the Northeast
Atrium Door and Window Company of New York
Atrium Door and Window Company of Arizona
Atrium Door and Window Company of New England
Best Built, Inc.
Champagne Industries, Inc.
Door Holdings, Inc.
Heat, Inc.
H.I.G. Vinyl, Inc.
R.G. Darby Company, Inc.
R.G. Darby Company - South
Thermal Industries, Inc.
Total Trim, Inc.
Total Trim - South
Wing Industries Holdings, Inc.
Wing Industries, Inc.
VES, Inc.
SCHEDULE 3.01(b)
AMORTIZATION PAYMENTS
TRANCHE A TRANCHE B TRANCHE C
DATE* TERM LOANS TERM LOANS TERM LOANS
- ---------------- -------------- -------------- --------------
December 2000 $ 930,000 $ 280,000 $ 280,000
March 2001 930,000 280,000 280,000
June 2001 930,000 280,000 280,000
September 2001 930,000 280,000 280,000
December 2001 930,000 280,000 280,000
March 2002 930,000 280,000 280,000
June 2002 930,000 280,000 280,000
September 2002 930,000 280,000 280,000
December 2002 930,000 280,000 280,000
March 2003 930,000 280,000 280,000
June 2003 930,000 280,000 280,000
September 2003 930,000 280,000 280,000
December 2003 930,000 280,000 280,000
March 2004 930,000 280,000 280,000
June 2004 980,000 280,000 280,000
September 2004 N.A. 280,000 280,000
December 2004 N.A. 280,000 280,000
March 2005 N.A. 280,000 280,000
June 2005 N.A. 65,210,000 280,000
September 2005 N.A. N.A. 280,000
December 2005 N.A. N.A. 280,000
March 2006 N.A. N.A. 280,000
June 2006 N.A. N.A. 75,020,000
------------ ------------ -------------
$ 14,000,000 $ 70,250,000 $ 81,180,000
============ ============ =============
- -------------------------
* Unless otherwise indicated, such date is the last Business Day of the
specified month.
SCHEDULE 7.02(xv)
- --------------------------------------------------------------------------------------------
MORTGAGOR JURISDICTION
- --------------------------------------------------------------------------------------------
1. Atrium Companies, Inc. Texas- Collin County
(Site 6)
- --------------------------------------------------------------------------------------------
2. Atrium Companies, Inc. Texas- Dallas County
(Site 4)
- --------------------------------------------------------------------------------------------
3. Atrium Companies, Inc. Texas- Dallas County
(Site 5)
- --------------------------------------------------------------------------------------------
4. Atrium Door and Window Arizona- Maricopa County
Company of Arizona (Site 1)
- --------------------------------------------------------------------------------------------
5. Atrium Door and Window Massachusetts-Worcester County
Company of New England, Inc. Register of Deeds
(Site 3)
- --------------------------------------------------------------------------------------------
6. Atrium Door and Window Connecticut- Town of Bridgeport (Site
Company of the Northeast 2)
- --------------------------------------------------------------------------------------------
7. Thermal Industries, Inc. Murrysville, Westmoreland County,
Pennsylvania
- --------------------------------------------------------------------------------------------
SCHEDULE 9.06(k)
PROPERTIES PERMITTED TO BE LEASED OR SUBLEASED
WING INDUSTRIES-GREENVILLE (WING 1 BLDG)
6202 INDUSTRIAL DRIVE
GREENVILLE, TX 75402
WING INDUSTRIES-GREENVILLE (WING II BLDG)
6120 HIGHWAY 66
GREENVILLE, TX 75402
WING INDUSTRIES-GREENVILLE (WING III BLDG)
1001 ED RUTHERFORD DR.
GREENVILLE, TX 75402
WING INDUSTRIES - MT PLEASANT
2718 S. JEFFERSON
MT. PLEASANT, TX 75455
ATRIUM DISTRIBUTORS
2100 E. UNION BOWER RD.
IRVING, TX 75061
ATRIUM ALUMINUM PRODUCTS
2101 E. UNION BOWER RD.
IRVING, TX 75061
WING INDUSTRIES - CHICAGO
6415 MUIRFILED DR.
HANOVER PARK, IL 60103
WING INDUSTRIES - ALLENTOWN
7384 PENN DRIVE
ALLENTOWN, PA 18106
SCHEDULE 9.06(p)
PROPERTIES PERMITTED TO BE SOLD
WING INDUSTRIES-GREENVILLE (WING 1 BLDG)
6202 INDUSTRIAL DRIVE
GREENVILLE, TX 75402
WING INDUSTRIES-GREENVILLE (WING II BLDG)
6120 HIGHWAY 66
GREENVILLE, TX 75402
WING INDUSTRIES-GREENVILLE (WING III BLDG)
1001 ED RUTHERFORD DR.
GREENVILLE, TX 75402
ATRIUM DISTRIBUTORS
2100 E. UNION BOWER RD.
IRVING, TX 75061
ATRIUM ALUMINUM PRODUCTS
2101 E. UNION BOWER RD.
IRVING, TX 75061
SCHEDULE 9.28(c)
- ------------------------------------------------------------------------------------------------------
LANDLORD TENANT LOCATION
- ------------------------------------------------------------------------------------------------------
1. John G.B. Ellison, Jr. VES, Inc. Welcome Business Center
Davidson County, NC
376,210 Square Feet
- ------------------------------------------------------------------------------------------------------
2. John G.B. Ellison, Jr. VES, Inc. Welcome Business Center
Davidson County, NC
51,300 Square Feet
- ------------------------------------------------------------------------------------------------------
3. Ken Chilton Ellison Extrusion Systems, divi- Block 3408, Lot 6B
sion of Ellison Co., Inc. Shorefair Dr. & 32nd Street
Winston-Salem, NC
- ------------------------------------------------------------------------------------------------------
SCHEDULE 9.28(g)
COMPANY STATES
- ------- ------
Atrium Companies, Inc. Arizona, Nevada, North Carolina
Atrium Door and Window Company Oregon, Utah
- - West Coast
Atrium Door and Window Company Massachusetts
of the Northeast
Atrium Door and Window Company Arizona
of Arizona
Atrium Door and Window of New Massachusetts
England, Inc.
Thermal Industries, Inc. Massachusetts
Total Trim, Inc. Arkansas