CREDIT AGREEMENT
DATED AS OF APRIL 30, 2003
AMONG
ETHYL CORPORATION,
as Borrower,
THE LENDERS LISTED HEREIN,
as Lenders,
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH
as Administrative Agent,
UBS WARBURG LLC,
as Syndication Agent
CREDIT SUISSE FIRST BOSTON, CAYMAN ISLANDS BRANCH
and UBS WARBURG LLC,
as Co-Arrangers and joint book running managers,
and
SUNTRUST BANK and LASALLE BANK NATIONAL ASSOCIATION,
as Co-Documentation Agents
TABLE OF CONTENTS
PAGE NO.
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Section 1. DEFINITIONS.................................................................................. 2
1.1 Certain Defined Terms........................................................................ 2
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement........... 31
1.3 Other Definitional Provisions and Rules of Construction...................................... 32
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS................................................... 32
2.1 Commitments; Making of Loans; the Register; Notes............................................ 32
2.2 Interest on the Loans........................................................................ 39
2.3 Fees......................................................................................... 43
2.4 Repayments, Prepayments and Reductions in Revolving Loan Commitments; General Provisions
Regarding Payments; Application of Proceeds of Collateral and Payments Under the Guaranties.. 44
2.5 Use of Proceeds.............................................................................. 52
2.6 Special Provisions Governing Eurodollar Rate Loans........................................... 52
2.7 Increased Costs; Taxes; Capital Adequacy..................................................... 54
2.8 Statement of Lenders; Obligation of Lenders and Issuing Lenders to Mitigate.................. 59
2.9 Replacement of a Lender...................................................................... 59
Section 3. LETTERS OF CREDIT............................................................................ 60
3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations Therein................ 60
3.2 Letter of Credit Fees........................................................................ 62
3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit........................... 63
3.4 Obligations Absolute......................................................................... 66
3.5 Nature of Issuing Lenders' Duties............................................................ 67
Section 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT.................................................... 67
4.1 Conditions to Term Loans and Initial Revolving Loans and Swing Line Loans.................... 67
4.2 Conditions to All Loans...................................................................... 75
4.3 Conditions to Letters of Credit.............................................................. 76
Section 5. CREDIT AGREEMENT PARTIES' REPRESENTATIONS AND WARRANTIES..................................... 76
5.1 Organization, Powers, Qualification, Good Standing, Business and Subsidiaries................ 76
5.2 Authorization of Borrowing, etc.............................................................. 77
5.3 Financial Condition.......................................................................... 78
5.4 No Material Adverse Effect; No Restricted Junior Payments.................................... 78
5.5 Title to Properties; Liens; Real Property; Intellectual Property............................. 78
5.6 Litigation; Adverse Facts.................................................................... 79
5.7 Payment of Taxes............................................................................. 80
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5.8 Performance of Agreements; Material Contracts................................................ 80
5.9 Governmental Regulation...................................................................... 80
5.10 Securities Activities........................................................................ 80
5.11 Employee Benefit Plans....................................................................... 81
5.12 Certain Fees................................................................................. 81
5.13 Environmental Protection..................................................................... 82
5.14 Employee Matters............................................................................. 82
5.15 Solvency..................................................................................... 83
5.16 Matters Relating to Collateral............................................................... 83
5.17 Disclosure................................................................................... 84
Section 6. CREDIT AGREEMENT PARTIES' AFFIRMATIVE COVENANTS.............................................. 84
6.1 Financial Statements and Other Reports....................................................... 84
6.2 Existence, etc............................................................................... 89
6.3 Payment of Taxes and Claims; Tax............................................................. 89
6.4 Maintenance of Properties; Insurance; Application of Net Insurance/ Condemnation Proceeds.... 90
6.5 Inspection Rights; Lender Meeting............................................................ 92
6.6 Compliance with Laws, etc.................................................................... 92
6.7 Environmental Matters........................................................................ 92
6.8 Execution of Subsidiary Guaranty and Personal Property Collateral Documents After the
Closing Date................................................................................. 94
6.9 Matters Relating to Additional Real Property Collateral...................................... 95
6.10 Senior Secured Credit Facility Rating........................................................ 96
Borrower shall maintain a Senior Secured Credit Facility Rating....................................... 96
6.11 Qualified Holding Company Formation and Qualified Reorganization............................. 96
6.12 Certain Real Property Assets.................................................................100
Section 7. CREDIT AGREEMENT PARTIES' NEGATIVE COVENANTS.................................................101
7.1 Indebtedness.................................................................................101
7.2 Liens and Related Matters....................................................................103
7.3 Investments; Acquisitions....................................................................104
7.4 Contingent Obligations.......................................................................105
7.5 Restricted Junior Payments...................................................................107
7.6 Financial Covenants..........................................................................107
7.7 Restriction on Fundamental Changes; Asset Sales..............................................109
7.8 Consolidated Capital Expenditures............................................................111
7.9 Transactions with Shareholders and Affiliates................................................111
7.10 Sales and Lease-Backs........................................................................111
7.11 Conduct of Business..........................................................................112
7.12 Amendments or Waivers of Certain Agreements; Amendments of Documents Relating to Senior
Indebtedness.................................................................................112
7.13 Fiscal Year..................................................................................113
Section 8. EVENTS OF DEFAULT............................................................................113
8.1 Failure to Make Payments When Due............................................................113
8.2 Default in Other Agreements..................................................................113
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8.3 Breach of Certain Covenants..................................................................113
8.4 Breach of Warranty...........................................................................113
8.5 Other Defaults Under Loan Documents..........................................................114
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc.........................................114
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc...........................................114
8.8 Judgments and Attachments....................................................................115
8.9 Dissolution..................................................................................115
8.10 Employee Benefit Plans.......................................................................115
8.11 Change in Control............................................................................115
8.12 Invalidity of Loan Documents; Failure of Security; Repudiation of Obligations................115
8.13 Conduct of Business By Intermediate Holdco...................................................116
8.14 Conduct of Business By Investco..............................................................116
8.15 Conduct of Business by Holdings..............................................................116
Section 9. ADMINISTRATIVE AGENT.........................................................................117
9.1 Appointment..................................................................................117
9.2 Powers and Duties; General Immunity..........................................................118
9.3 Independent Investigation by Lenders; No Responsibility For Appraisal of Creditworthiness....120
9.4 Right to Indemnity...........................................................................120
9.5 Successor Administrative Agent and Swing Line Lender.........................................120
9.6 Collateral Documents and Guaranties..........................................................121
9.7 Duties of Other Agents.......................................................................122
9.8 Administrative Agent May File Proofs of Claim................................................122
Section 10. MISCELLANEOUS................................................................................123
10.1 Successors and Assigns; Assignments and Participations in Loans and Letters of Credit........123
10.2 Expenses.....................................................................................127
10.3 Indemnity....................................................................................128
10.4 Set-Off; Security Interest in Deposit Accounts...............................................129
10.5 Ratable Sharing..............................................................................129
10.6 Amendments and Waivers.......................................................................130
10.7 Independence of Covenants....................................................................132
10.8 Notices; Effectiveness of Signatures.........................................................132
10.9 Survival of Representations, Warranties and Agreements.......................................132
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative........................................133
10.11 Marshalling; Payments Set Aside..............................................................133
10.12 Severability.................................................................................133
10.13 Obligations Several; Independent Nature of Lenders' Rights; Damage Waiver....................133
10.14 Release of Security Interest or Guaranty.....................................................134
10.15 Applicable Law...............................................................................134
10.16 Construction of Agreement; Nature of Relationship............................................135
10.17 Consent to Jurisdiction and Service of Process...............................................135
10.18 Waiver of Jury Trial.........................................................................136
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10.19 Confidentiality..............................................................................136
10.20 Counterparts; Effectiveness..................................................................137
Signature pages S-1
iv
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF REQUEST FOR ISSUANCE
IV FORM OF TERM NOTE
V FORM OF REVOLVING NOTE
VI FORM OF SWING LINE NOTE
VII FORM OF COMPLIANCE CERTIFICATE
VIII-A FORM OF OPINION OF GENERAL COUNSEL FOR LOAN PARTIES
VIII-B FORM OF OPINION OF SPECIAL COUNSEL FOR LOAN PARTIES
IX FORM OF OPINION OF O'MELVENY & MYERS LLP
X FORM OF ASSIGNMENT AGREEMENT
XI FORM OF FINANCIAL CONDITION CERTIFICATE
XII FORM OF SUBSIDIARY GUARANTY
XIII FORM OF SECURITY AGREEMENT
XIV FORM OF HOLDINGS GUARANTY
XV FORM OF MORTGAGE
XVI FORM OF COLLATERAL ACCESS AGREEMENT
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SCHEDULES
1.1 RELATED AGREEMENTS
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
4.1C CORPORATE AND CAPITAL STRUCTURE; OWNERSHIP; MANAGEMENT
4.1E FINANCIAL STATEMENTS; PRO FORMA FINANCIAL STATEMENTS
4.1K CLOSING DATE ENVIRONMENTAL REPORTS
4.1M CLOSING DATE MORTGAGED PROPERTIES
5.1 SUBSIDIARIES OF COMPANY
5.5B REAL PROPERTY
5.5C INTELLECTUAL PROPERTY
5.6 LITIGATION
5.8 MATERIAL CONTRACTS
5.13 ENVIRONMENTAL MATTERS
6.12 SURVEYS
6.14 POST-CLOSING DELIVERIES
7.1 CERTAIN EXISTING INDEBTEDNESS
7.2 CERTAIN EXISTING LIENS
7.3 CERTAIN EXISTING INVESTMENTS
7.4 CERTAIN EXISTING CONTINGENT OBLIGATIONS
7.7 CERTAIN ASSET SALES
7.9 CERTAIN RELATED TRANSACTIONS
7.10 CERTAIN SALES AND LEASE-BACKS
vi
EXECUTION
ETHYL CORPORATION
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of April 30, 2003 and entered
into by and among ETHYL CORPORATION, a Virginia corporation ("Borrower"), THE
FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF (each individually
referred to herein as a "Lender" and collectively as "Lenders"), CREDIT SUISSE
FIRST BOSTON, CAYMAN ISLANDS BRANCH ("CSFB"), as administrative agent for
Lenders (in such capacity, "Administrative Agent"), joint lead arranger and
joint book running manager (in such capacity, "Co-Arranger"), UBS WARBURG LLC
("UBSW"), as syndication agent for Lenders (in such capacity, "Syndication
Agent"), and joint lead arranger and joint book running manager (in such
capacity, "Co-Arranger" and together with the other Co-Arranger, "Co-Arrangers")
and SUNTRUST BANK ("SunTrust") and LASALLE BANK NATIONAL ASSOCIATION
("LaSalle"), as co-documentation agents for Lenders (in such capacity,
"Co-Documentation Agents").
R E C I T A L S
WHEREAS, on or before the Closing Date (this and other
capitalized terms used in these recitals without definition being used as
defined in subsection 1.1), Borrower will issue $150,000,000 in aggregate
principal amount of Senior Notes;
WHEREAS, on or before the Closing Date, Borrower will form one
or more wholly-owned (directly or indirectly) domestic intermediate holding
companies (collectively, "Intermediate Holdco") to own 100% of the Capital Stock
of all Material Foreign Subsidiaries that are not Guarantors (other than EPAL);
WHEREAS, on or before the second anniversary of the Closing
Date, Borrower may, subject to the terms and conditions contained herein,
consummate the Qualified Holding Company Formation pursuant to which the
shareholders of Borrower will become shareholders of Holdings;
WHEREAS, on or before the second anniversary of the Closing
Date, Borrower may, subject to the terms and conditions contained herein,
consummate the Qualified Reorganization pursuant to which, among other things,
Additives may become a direct Subsidiary of Holdings;
WHEREAS, Lenders, at the request of Borrower, have agreed to
extend certain credit facilities to Borrower, the proceeds of which will be
used, together with the proceeds of the issuance and sale of the Senior Notes,
(i) to fund the Refinancing and (ii) to provide financing for working capital
and other general corporate purposes of Borrower and its Subsidiaries;
WHEREAS, Borrower desires to secure all of the Obligations
hereunder and under the other Loan Documents by granting to Administrative
Agent, on behalf of Lenders, a First Priority Lien on substantially all of its
real, personal and mixed property, including a pledge of (i) 100% of the Capital
Stock of its Domestic Subsidiaries (including, without limitation, Intermediate
Holdco), (ii) 65% of the Capital Stock of its first-tier Foreign Subsidiaries
that are not Guarantors, and (iii) 100% of the Capital Stock of the Foreign
Guarantors;
WHEREAS, all of the Domestic Subsidiaries of Borrower
(including, without limitation, Intermediate Holdco) have agreed to guarantee
the Obligations hereunder and under the other Loan Documents and to secure their
guaranties by granting to Administrative Agent, on behalf of Lenders, a First
Priority Lien on substantially all of their real, personal and mixed property,
including a pledge of (i) 100% of the Capital Stock of their Domestic
Subsidiaries and (ii) 65% of the Capital Stock of their directly owned Foreign
Subsidiaries;
WHEREAS, each Foreign Guarantor has agreed to guarantee the
Obligations hereunder and under the other Loan Documents and to secure its
guaranty by granting to Administrative Agent, on behalf of Lenders, a First
Priority Lien on substantially all of its real, personal and mixed property;
WHEREAS, each Foreign Subsidiary Payor has agreed to secure its
future trade payables to Borrower or Additives, as the case may be,
(collectively, the "Foreign Intercompany Payables") by granting to Borrower or
Additives, as the case may be, a First Priority Lien on a substantial portion of
their real, personal and mixed property; and
WHEREAS, from and after the Qualified Holding Company Formation
Date, if any, Holdings will guarantee the Obligations hereunder and under the
other Loan Documents and will secure its guaranty by granting to Administrative
Agent, on behalf of Lenders, a First Priority Lien on substantially all of its
real, personal and mixed property, including a pledge of the Capital Stock of
its wholly-owned Subsidiaries, including, without limitation, (i) Borrower and
(ii) from and after the Qualified Reorganization Date, if any, Additives:
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Company, Lenders,
Administrative Agent, Syndication Agent, Co-Documentation Agents, and
Co-Arrangers agree as follows:
Section 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the
following meanings:
"Additional Mortgaged Property" has the meaning assigned to that
term in subsection 6.9.
"Additional Mortgages" has the meaning assigned to that term in
subsection 6.9.
"Additives" means Ethyl Petroleum Additives Inc., a Delaware
corporation.
2
"Adjusted Eurodollar Rate" means, for any Interest Rate
Determination Date with respect to an Interest Period for a Eurodollar Rate
Loan, the rate per annum obtained by dividing (i) the offered quotations to
first class banks in the London interbank market by Reference Lender for Dollar
deposits of amounts in same day funds comparable to the respective principal
amounts of the Eurodollar Rate Loans of Reference Lender for which the Adjusted
Eurodollar Rate is then being determined with maturities comparable to such
Interest Period as of approximately 10:00 A.M. (New York City time) on such
Interest Rate Determination Date by (ii) a percentage equal to 100% minus the
stated maximum rate of all reserve requirements (including any marginal,
emergency, supplemental, special or other reserves) applicable on such Interest
Rate Determination Date to any member bank of the Federal Reserve System in
respect of "Eurocurrency liabilities" as defined in Regulation D (or any
successor category of liabilities under Regulation D).
"Administrative Agent" has the meaning assigned to that term in
the introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 9.5A.
"Affected Lender" has the meaning assigned to that term in
subsection 2.6C.
"Affected Loans" has the meaning assigned to that term in
subsection 2.6C.
"Affiliate", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise.
"Agents" means Administrative Agent, Syndication Agent,
Co-Documentation Agents and Co-Arrangers.
"Agreement" means this Credit Agreement dated as of April 30,
2003, as it may be amended, supplemented, restated or otherwise modified from
time to time.
"Approved Fund" means a Fund that is administered or managed by
(i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate
of an entity that administers or manages a Lender.
"Asset Sale" means the sale by Company or any of its
Subsidiaries to any Person other than Borrower or any wholly-owned Domestic
Subsidiary of Company of (i) any of the stock of any of Company's Subsidiaries,
(ii) substantially all of the assets of any division or line of business of
Company or any of its Subsidiaries, or (iii) any other assets (whether tangible
or intangible) of Company or any of its Subsidiaries (other than (a) inventory
sold in the ordinary course of business, (b) sales, assignments, transfers or
dispositions of accounts in the ordinary course of business for purposes of
collection and (c) any such other assets to the extent that the
3
aggregate value of such assets sold in any single transaction or related series
of transactions is equal to $1,000,000 or less).
"Assignment Agreement" means an Assignment Agreement in
substantially the form of Exhibit X annexed hereto.
"Bankruptcy Code" means Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any successor statute.
"Base Rate" means, at any time, the higher of (i) the Prime Rate
or (ii) the rate which is 1/2 of 1% in excess of the Federal Funds Effective
Rate. Any change in the Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective on the effective date of such
change.
"Base Rate Loans" means Loans bearing interest at rates
determined by reference to the Base Rate as provided in subsection 2.2A.
"Base Rate Margin" means the margin over the Base Rate used in
determining the rate of interest of Base Rate Loans pursuant to subsection 2.2A.
"Borrower" has the meaning assigned to that term in the
introduction to this Agreement.
"Business Day" means (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any day which is a
legal holiday under the laws of the State of New York or is a day on which
banking institutions located in such state are authorized or required by law or
other governmental action to close, and (ii) with respect to all notices,
determinations, fundings and payments in connection with the Adjusted Eurodollar
Rate or any Eurodollar Rate Loans, any day that is a Business Day described in
clause (i) above and that is also a day for trading by and between banks in
Dollar deposits in the London interbank market.
"Capital Lease", as applied to any Person, means any lease of
any property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Capital Stock" means the capital stock or other equity
interests of a Person.
"Cash" means money, currency or a credit balance in a Deposit
Account.
"Cash Equivalents" means, as at any date of determination, (i)
marketable securities (a) issued or directly and unconditionally guaranteed as
to interest and principal by the United States Government or (b) issued by any
agency of the United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing within one year
after such date; (ii) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or any
public instrumentality thereof, in each case maturing within one year after such
date and having, at the time of the
4
acquisition thereof, the highest rating obtainable from either Standard & Poor's
("S&P") or Moody's Investors Service, Inc. ("Moody's"); (iii) commercial paper
maturing no more than one year from the date of creation thereof and having, at
the time of the acquisition thereof, a rating of at least A-1 from S&P or at
least P-1 from Moody's; (iv) certificates of deposit or bankers' acceptances
maturing within one year after such date and issued or accepted by any Lender or
by any commercial bank organized under the laws of the United States of America
or any state thereof or the District of Columbia that (a) is at least
"adequately capitalized" (as defined in the regulations of its primary Federal
banking regulator) and (b) has Tier 1 capital (as defined in such regulations)
of not less than $100,000,000; and (v) shares of any money market mutual fund
that (a) has at least 95% of its assets invested continuously in the types of
investments referred to in clauses (i) and (ii) above, (b) has net assets of not
less than $500,000,000, and (c) has the highest rating obtainable from either
S&P or Moody's.
"Change in Control" means any of the following: (A)(i) any
Person, other than Bruce C. Gottwald, Floyd D. Gottwald, Jr. or members of their
respective families, or investment entities owned entirely (directly or
indirectly) by them, either individually or acting in concert with one or more
other Persons, shall have acquired beneficial ownership, directly or indirectly,
of Securities of either Credit Agreement Party (or other Securities convertible
into such Securities) representing 20% or more of the combined voting power of
all Securities of either Credit Agreement Party entitled to vote in the election
of members of the Governing Body of such Credit Agreement Party, other than
Securities having such power only by reason of the happening of a contingency;
provided that "Change of Control" does not include any of the transactions
contemplated by the Qualified Holding Company Formation or the Qualified
Reorganization; (ii) the occurrence of a change in the composition of the
Governing Body of either Credit Agreement Party such that a majority of the
members of any such Governing Body are not Continuing Members; and (iii) the
occurrence of any "Change of Control" or similar event under the Senior Note
Indenture, (B) prior to the Qualified Reorganization Date, the failure at any
time of Borrower to legally and beneficially own and control 100% of the issued
and outstanding shares of capital stock of Additives or the failure at any time
of Borrower to have the ability to elect all of the Governing Body of Additives,
(C) on and after the Qualified Holding Company Formation Date, "Change in
Control" means, in addition to (A) above, the failure at any time of Holdings to
legally and beneficially own and control 100% of the issued and outstanding
shares of capital stock of Borrower or the failure at any time of Holdings to
have the ability to elect all of the Governing Body of Borrower and (D) on and
after the Qualified Reorganization Date (assuming that the Qualified Holding
Company Formation has been consummated prior to such date), "Change in Control"
means, in addition to (A) and (C) above, the failure at any time of Holdings or
Borrower to legally and beneficially own and control 100% of the issued and
outstanding shares of capital stock of Additives or the failure at any time of
Holdings or Borrower to have the ability to elect all of the Governing Body of
Additives. As used herein, the term "beneficially own" or "beneficial ownership"
shall have the meaning set forth in the Exchange Act and the rules and
regulations promulgated thereunder.
"Class", as applied to Lenders, means each of the following two
classes of Lenders: (i) Lenders having Revolving Loan Exposure and (ii) Lenders
having Term Loan Exposure.
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"Closing Date" means the date on which the initial Loans are
made.
"Closing Date Mortgaged Property" has the meaning assigned to
that term in subsection 4.1M.
"Closing Date Mortgages" has the meaning assigned to that term
in subsection 4.1M.
"Co-Arrangers" has the meaning assigned to that term in the
introduction to this Agreement.
"Collateral" means, collectively, all of the real, personal and
mixed property (including Capital Stock) in which Liens are purported to be
granted pursuant to the Collateral Documents as security for the Obligations.
"Collateral Access Agreement" means any landlord waiver,
mortgagee waiver, bailee letter or any similar acknowledgement or agreement of
any landlord or mortgagee in respect of any Real Property Asset where any
Collateral is located or any warehouseman or processor in possession of any
inventory of any Loan Party, substantially in the form of Exhibit XVI annexed
hereto with such changes thereto as may be agreed to by Administrative Agent in
the reasonable exercise of its discretion.
"Collateral Account" has the meaning assigned to that term in
the Security Agreement.
"Collateral Documents" means the Security Agreement, the
Holdings Security Agreement, the Foreign Pledge Agreements, the Foreign
Collateral Documents, the Mortgages and all other instruments or documents
delivered by any Loan Party pursuant to this Agreement or any of the other Loan
Documents in order to grant to Administrative Agent, on behalf of Lenders, a
Lien on any real, personal or mixed property of that Loan Party as security for
the Obligations.
"Commercial Letter of Credit" means any letter of credit or
similar instrument issued for the purpose of providing the primary payment
mechanism in connection with the purchase of any materials, goods or services by
Company or any of its Subsidiaries in the ordinary course of business of Company
or such Subsidiary.
"Commitment Fee Percentage" means 0.50% per annum.
"Commitments" means the commitments of Lenders to make Loans as
set forth in subsection 2.1A and subsection 3.3.
"Company" means (A) prior to the Qualified Holding Company
Formation Date, Borrower and (B) on or after the Qualified Holding Company
Formation Date, Holdings.
"Compliance Certificate" means a certificate substantially in
the form of Exhibit VII annexed hereto.
6
"Confidential Information Memorandum" means the Confidential
Information Memorandum dated March 2003, prepared by CSFB relating to the credit
facilities evidenced by this Agreement.
"Consolidated Capital Expenditures" means, for any period, the
sum of the aggregate of all expenditures (whether paid in cash or other
consideration or accrued as a liability and including that portion of Capital
Leases which is capitalized on the consolidated balance sheet of Company and its
Subsidiaries) by Company and its Subsidiaries during that period that, in
conformity with GAAP, are included in "additions to property, plant or
equipment" or comparable items reflected in the consolidated statement of cash
flows of Company and its Subsidiaries. For purposes of this definition, the
purchase price of equipment that is purchased simultaneously with the trade-in
of existing equipment or with insurance proceeds shall be included in
Consolidated Capital Expenditures only to the extent of the gross amount of such
purchase price less the credit granted by the seller of such equipment for the
equipment being traded in at such time or the amount of such proceeds, as the
case may be.
"Consolidated Cash Interest Expense" means, for any period,
Consolidated Interest Expense for such period excluding, however, any interest
expense not payable in Cash (including amortization of discount and amortization
of debt issuance costs). Notwithstanding anything to the contrary contained
above, to the extent Consolidated Cash Interest Expense is to be determined for
(i) the third Fiscal Quarter of Fiscal Year 2002, Consolidated Cash Interest
Expense for such period shall be deemed to be $5,100,000 and (ii) the fourth
Fiscal Quarter of Fiscal Year 2002, Consolidated Cash Interest Expense for such
period shall be deemed to be $4,400,000.
"Consolidated Current Assets" means, as at any date of
determination, the total assets of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current assets in
conformity with GAAP, excluding Cash and Cash Equivalents.
"Consolidated Current Liabilities" means, as at any date of
determination, the total liabilities of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current liabilities in
conformity with GAAP.
"Consolidated EBITDA" means, for any period, the sum, without
duplication, of the amounts for such period of (i) Consolidated Net Income, (ii)
Consolidated Interest Expense, (iii) provisions for taxes based on income, (iv)
total depreciation expense, (v) total amortization expense, (vi) other non-cash
items (other than any such non-cash item to the extent it represents an accrual
of or reserve for cash expenditures in any future period), and (vii) letter of
credit fees paid to Bank of America, N.A. from and after the Closing Date in
connection with the letters of credit outstanding as of the Closing Date
pursuant to the Existing Credit Agreement in an aggregate amount of
approximately $28,600,000, but only, in the case of clauses (ii)-(vii), to the
extent deducted in the calculation of Consolidated Net Income, less other
non-cash items added in the calculation of Consolidated Net Income (other than
any such non-cash item to the extent it will result in the receipt of cash
payments in any future period), all of the foregoing as determined on a
consolidated basis for Company and its Subsidiaries in conformity with GAAP.
Notwithstanding anything to the contrary contained above, to the extent
Consolidated EBITDA
7
is to be determined for (i) the third Fiscal Quarter of Fiscal Year 2002,
Consolidated EBITDA for such period shall be deemed to be $32,900,000 and (ii)
the fourth Fiscal Quarter of Fiscal Year 2002, Consolidated EBITDA for such
period shall be deemed to be $18,000,000.
"Consolidated Excess Cash Flow" means, for any period, an amount
(if positive) equal to (i) the sum, without duplication, of the amounts for such
period of (a) Consolidated EBITDA and (b) the Consolidated Working Capital
Adjustment minus (ii) the sum, without duplication, of the amounts for such
period of (a) voluntary and scheduled repayments of Consolidated Total Debt
(excluding (1) repayments of Revolving Loans except to the extent the Revolving
Loan Commitments are permanently reduced in connection with such repayments and
(2) for purposes of Fiscal Year 2003, repayments of all Indebtedness of Borrower
and its Subsidiaries pursuant to the Refinancing), (b) Consolidated Capital
Expenditures (net of any proceeds of any related financings with respect to such
expenditures), (c) Consolidated Cash Interest Expense, and (d) the provision for
current taxes based on income of Company and its Subsidiaries and payable in
cash with respect to such period.
"Consolidated Interest Expense" means, for any period, total
interest expense (including that portion attributable to Capital Leases in
accordance with GAAP and capitalized interest) of Company and its Subsidiaries
on a consolidated basis with respect to all outstanding Indebtedness of Company
and its Subsidiaries, including all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing, net costs under Interest Rate Agreements and amounts referred to in
subsection 2.3 payable to Administrative Agent and Lenders that is considered
interest expense in accordance with GAAP, but excluding, however, any such
amounts referred to in subsection 2.3 on or before the Closing Date.
"Consolidated Leverage Ratio" means, as of the last day of any
Fiscal Quarter, the ratio of (a) Consolidated Total Debt as at such day to (b)
Consolidated EBITDA for the consecutive four Fiscal Quarters ending on such day.
"Consolidated Net Income" means, for any period, the net income
(or loss) of Company and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with GAAP;
provided that there shall be excluded (i) the income (or loss) of any Person in
which any other Person (other than Company or any of its wholly-owned Domestic
Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to Company or any of its
Subsidiaries by such Person during such period, (ii) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of Company or is merged
into or consolidated with Company or any of its Subsidiaries or that Person's
assets are acquired by Company or any of its Subsidiaries, (iii) the income of
any Subsidiary of Company to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement
(other than this Credit Agreement), instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary, (iv) any
after-tax gains or losses attributable to asset sales or returned surplus assets
of any Pension Plan, and (v) (to the extent not included in clauses (i) through
(iv) above) any net extraordinary gains or net non-cash extraordinary losses.
8
"Consolidated Net Worth" means, as at any date of determination,
the sum of the capital stock and additional paid-in capital plus retained
earnings (or minus accumulated deficits) of Company and its Subsidiaries on a
consolidated basis determined in conformity with GAAP.
"Consolidated Senior Secured Debt" means all Consolidated Total
Debt that is secured by a Lien on any assets of Company or its Subsidiaries.
"Consolidated Senior Secured Leverage Ratio" means, as of the
last day of any Fiscal Quarter, the ratio of (a) Consolidated Senior Secured
Debt as at such day to (b) Consolidated EBITDA for the consecutive four Fiscal
Quarters ending on such day.
"Consolidated Total Debt" means, as at any date of
determination, the sum of (i) the aggregate stated balance sheet amount of all
Indebtedness of Company and its Subsidiaries, determined on a consolidated basis
in accordance with GAAP and (ii) the Letter of Credit Usage.
"Consolidated Working Capital" means, as at any date of
determination, the excess (or deficit) of Consolidated Current Assets over
Consolidated Current Liabilities.
"Consolidated Working Capital Adjustment" means, for any period
on a consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or is
less than) Consolidated Working Capital as of the end of such period.
"Contingent Obligation", as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that Person (i) with
respect to any Indebtedness, lease, dividend or other obligation of another if
the primary purpose or intent thereof by the Person incurring the Contingent
Obligation is to provide assurance to the obligee of such obligation of another
that such obligation of another will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
obligation will be protected (in whole or in part) against loss in respect
thereof, (ii) with respect to any letter of credit issued for the account of
that Person or as to which that Person is otherwise liable for reimbursement of
drawings, or (iii) under Hedge Agreements. Contingent Obligations shall include
(a) the direct or indirect guaranty, endorsement (otherwise than for collection
or deposit in the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the obligation of another, (b)
the obligation to make take-or-pay or similar payments if required regardless of
non-performance by any other party or parties to an agreement, and (c) any
liability of such Person for the obligation of another through any agreement
(contingent or otherwise) (1) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for the payment or
discharge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise) or (2) to maintain the solvency
or any balance sheet item, level of income or financial condition of another if,
in the case of any agreement described under subclauses (1) or (2) of this
sentence, the primary purpose or intent thereof is as described in the preceding
sentence. The amount of any Contingent Obligation shall be equal to the amount
of the obligation so guaranteed or otherwise supported or, if less, the
9
amount to which such Contingent Obligation is specifically limited.
"Continuing Members" means, (A) any member of the Governing Body
of Borrower who (i) was a member of such Governing Body on the Closing Date or
(ii) was nominated for election or elected to such Governing Body with the
affirmative vote of a majority of the members who were either members of such
Governing Body on the Closing Date or whose nomination or election was
previously so approved, and (B) on or after the Qualified Holding Company
Formation Date, "Continuing Members" means in addition to (A) above, any member
of the Governing Body of Holdings who (i) was a member of such Governing Body on
the Qualified Holding Company Formation Date or (ii) was nominated for election
or elected to such Governing Body with the affirmative vote of a majority of the
members who were either members of such Governing Body on the Qualified Holding
Company Formation Date or whose nomination or election was previously so
approved.
"Contractual Obligation", as applied to any Person, means any
provision of any security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"Credit Agreement Party" means (A) Borrower and (B) on and after
the Qualified Holding Company Formation Date, "Credit Agreement Party" shall
mean Borrower and Holdings.
"CSFB" has the meaning assigned to that term in the introduction
to this Agreement.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement, futures contract, option contract, synthetic cap or
other similar agreement or arrangement to which Company or any of its
Subsidiaries is a party.
"Deposit Account" means a demand, time, savings, passbook or
similar account maintained with a Person engaged in the business of banking,
including a savings bank, savings and loan association, credit union or trust
company.
"Dollars" and the sign "$" mean the lawful money of the United
States of America.
"Domestic Subsidiary" means any Subsidiary of Company that is
incorporated or organized under the laws of the United States of America, any
state thereof or in the District of Columbia.
"Eligible Assignee" means (i) any Lender, any Affiliate of any
Lender and any Approved Fund of any Lender; and (ii) (a) a commercial bank
organized under the laws of the United States or any state thereof; (b) a
savings and loan association or savings bank organized under the laws of the
United States or any state thereof; (c) a commercial bank organized under the
laws of any other country or a political subdivision thereof; provided that (1)
such bank is
10
acting through a branch or agency located in the United States or (2) such bank
is organized under the laws of a country that is a member of the Organization
for Economic Cooperation and Development or a political subdivision of such
country; and (d) any other entity that is an "accredited investor" (as defined
in Regulation D under the Securities Act) that extends credit or buys loans as
one of its businesses including insurance companies, mutual funds and lease
financing companies; provided that neither Company nor any Affiliate of Company
shall be an Eligible Assignee.
"Employee Benefit Plan" means any "employee benefit plan" as
defined in Section 3(3) of ERISA which is maintained or contributed to by
Company, any of its Subsidiaries or any of their respective ERISA Affiliates, or
as to which the Company, any of its Subsidiaries or any of their respective
ERISA Affiliates could have any liability.
"Environmental Claim" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any Government Authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law, (ii) in connection with any
Hazardous Materials or any actual or alleged Hazardous Materials Activity, or
(iii) in connection with any actual or alleged damage, injury, threat or harm to
health, safety, natural resources or the environment.
"Environmental Laws" means any and all current or future
statutes, ordinances, orders, rules, regulations, guidance documents, judgments,
Governmental Authorizations, or any other requirements of any Government
Authority relating to (i) environmental matters, including those relating to any
Hazardous Materials Activity, (ii) the generation, use, storage, transportation
or disposal of Hazardous Materials, or (iii) occupational safety and health,
industrial hygiene, land use or the protection of human, plant or animal health
or welfare, in any manner applicable to any Loan Party or any of its
Subsidiaries or any Facility.
"EPAL" means Ethyl Petroleum Additives Limited, a corporation
organized under the laws of England with registered number 1213092.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor thereto.
"ERISA Affiliate", as applied to any Person, means (i) any
corporation that is a member of a controlled group of corporations within the
meaning of Section 414(b) of the Internal Revenue Code of which that Person is a
member; (ii) any trade or business (whether or not incorporated) that is a
member of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which that Person is a
member; and (iii) any member of an affiliated service group within the meaning
of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any
corporation described in clause (i) above or any trade or business described in
clause (ii) above is a member. Any former ERISA Affiliate of a Person or any of
its Subsidiaries shall continue to be considered an ERISA Affiliate of such
Person or such Subsidiary within the meaning of this definition with respect to
the period such entity was an ERISA Affiliate of such Person or such Subsidiary
and with
11
respect to liabilities arising after such period for which such Person or such
Subsidiary could be liable under the Internal Revenue Code or ERISA.
"ERISA Event" means (i) a "reportable event" within the meaning
of Section 4043 of ERISA and the regulations issued thereunder with respect to
any Pension Plan (excluding those for which the provision for 30-day notice to
the PBGC has been waived by regulation); (ii) the failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the
Internal Revenue Code) or the failure to make by its due date a required
installment under Section 412(m) of the Internal Revenue Code with respect to
any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan
pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such
plan in a distress termination described in Section 4041(c) of ERISA; (iv) the
withdrawal by Company, any of its Subsidiaries or any of their respective ERISA
Affiliates from any Pension Plan with two or more contributing sponsors or the
termination of any such Pension Plan resulting in liability pursuant to Section
4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to
terminate any Pension Plan, or the occurrence of any event or condition which
might constitute grounds under ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan; (vi) the imposition of liability
on Company, any of its Subsidiaries or any of their respective ERISA Affiliates
pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of
Section 4212(c) of ERISA; (vii) the withdrawal of Company, any of its
Subsidiaries or any of their respective ERISA Affiliates in a complete or
partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from
any Multiemployer Plan if there is any potential liability therefor, or the
receipt by Company, any of its Subsidiaries or any of their respective ERISA
Affiliates of notice from any Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to
terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the
assertion of a material claim (other than routine claims for benefits) against
any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof,
or against Company, any of its Subsidiaries or any of their respective ERISA
Affiliates in connection with any Employee Benefit Plan; (ix) receipt from the
Internal Revenue Service of notice of the failure of any Pension Plan (or any
other Employee Benefit Plan intended to be qualified under Section 401(a) of the
Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue
Code, or the failure of any trust forming part of any Pension Plan to qualify
for exemption from taxation under Section 501(a) of the Internal Revenue Code;
or (x) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan.
"Ethyl Europe" means Ethyl Europe SPRL, a corporation organized
under the laws of Belgium.
"Ethyl Korea" means Ethyl Korea, Ltd., a limited liability
company organized under the laws of Korea.
"Eurodollar Rate Loans" means Loans bearing interest at rates
determined by reference to the Adjusted Eurodollar Rate as provided in
subsection 2.2A.
12
"Eurodollar Rate Margin" means the margin over the Adjusted
Eurodollar Rate used in determining the rate of interest of Eurodollar Rate
Loans pursuant to subsection 2.2A.
"Euros" means the lawful currency of any "Participating Member
State(s)" as defined in the European Council Regulation (EC) No. 1103/97 of 17
June 1997.
"Event of Default" means each of the events set forth in Section
8.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"Excluded Real Property Assets" means (a) the Real Property
Assets of Borrower located in Oregon Hill, Virginia and (b) the Facility owned
by Additives located in Natchez, Mississippi.
"Existing Credit Agreement" means that certain First Amendment
and Restatement of Amended and Restated Credit Agreement dated as of April 10,
2001 among Borrower, the Subsidiary Guarantors (as defined therein), the various
financial institutions party thereto from time to time, and Bank of America,
N.A., as administrative agent for the lenders, as amended, supplemented,
restated or otherwise modified prior to the Closing Date.
"Facilities" means any and all real property (including all
buildings, fixtures or other improvements located thereon) now, hereafter or
heretofore owned, leased, operated or used by Company or any of its Subsidiaries
or any of their respective predecessors or Affiliates.
"Federal Funds Effective Rate" means, for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by Administrative Agent from three Federal funds
brokers of recognized standing selected by Administrative Agent.
"Financial Plan" has the meaning assigned to that term in
subsection 6.1(xii).
"First Priority" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that (i) such
Lien is perfected and has priority over any other Lien on such Collateral (other
than Liens permitted pursuant to subsection 7.2A(i), (ii), (iii), (iv) and (v))
and (ii) such Lien is the only Lien (other than Liens permitted pursuant to
subsection 7.2) to which such Collateral is subject.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Company and its
Subsidiaries ending on December 31 of each calendar year. For purposes of this
Agreement, any particular Fiscal Year shall be designated by reference to the
calendar year in which such Fiscal Year ends.
13
"Flood Hazard Property" means a Closing Date Mortgaged Property
or an Additional Mortgaged Property located in an area designated by the Federal
Emergency Management Agency as having special flood or mud slide hazards.
"Foreign Collateral Documents" means the Foreign Security
Agreements, the Mortgages delivered by any Foreign Guarantor securing real
property located outside of the United States, and all other instruments or
documents delivered by any Foreign Guarantor pursuant to this Agreement or any
of the other Loan Documents in order to grant to Administrative Agent, on behalf
of Lenders, a Lien on any real, personal or mixed property of that Loan Party as
security for the Obligations.
"Foreign Guaranties" means, collectively, each guaranty to be
executed and delivered by each Foreign Guarantor on the Closing Date or from
time to time thereafter in accordance with subsection 6.8, as each such Foreign
Guaranty may hereafter be amended, supplemented or otherwise modified from time
to time.
"Foreign Guarantors" means, collectively, Ethyl Europe, Ethyl
Brasil Additivos, LTDA, Ethyl Administration GmbH, and Ethyl Services, GmbH and
any other Foreign Subsidiary of Company that is not treated as a corporation for
United States federal income tax purposes and that is owned by Company, any
Domestic Subsidiary or any Foreign Guarantor, and that executes and delivers a
Foreign Guaranty on the Closing Date or from time to time thereafter pursuant to
subsection 6.8.
"Foreign Intercompany Collateral" means, collectively, all of
the real, personal and mixed property in which Liens are purported to be granted
pursuant to the Foreign Intercompany Security Agreements as security for the
Foreign Intercompany Payables.
"Foreign Intercompany Security Agreements" means the security
agreements to be executed by the Foreign Subsidiary Payors to secure the Foreign
Intercompany Payables on the Closing Date, in form and substance satisfactory to
Administrative Agent, as they may hereafter be amended, supplemented or modified
from time to time.
"Foreign Intercompany Payables" has the meaning assigned to that
term in the eighth recital to this Agreement.
"Foreign Plan" means any employee benefit plan maintained by
Company or any of its Subsidiaries that is mandated or governed by any law, rule
or regulation of any Government Authority other than the United States of
America, any state thereof or any other political subdivision thereof.
"Foreign Pledge Agreement" means each pledge agreement or
similar instrument governed by the laws of a country other than the United
States, executed on the Closing Date or from time to time thereafter in
accordance with subsection 6.8 by either Credit Agreement Party, any of its
Domestic Subsidiaries or any Foreign Guarantor that owns Capital Stock of one or
more Foreign Subsidiaries organized in such country, in form and substance
14
satisfactory to Administrative Agent, as such Foreign Pledge Agreement may be
amended, supplemented or otherwise modified from time to time.
"Foreign Security Agreements" means the security agreements to
be executed by the Foreign Guarantors on the Closing Date or from time to time
thereafter in accordance with subsection 6.8, in form and substance satisfactory
to Administrative Agent, as they may hereafter be amended, supplemented or
modified from time to time.
"Foreign Subsidiary" means any Subsidiary of Company that is not
a Domestic Subsidiary.
"Foreign Subsidiary Payors" means, collectively, EPAL, Ethyl
Canada, Inc. and Ethyl Japan Corporation.
"Fund" means any Person (other than a natural Person) that is
(or will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business.
"Funding and Payment Office" means (i) the office of
Administrative Agent and Swing Line Lender located at Eleven Madison Avenue, New
York, New York 10010-3629 or (ii) such other office of Administrative Agent and
Swing Line Lender as may from time to time hereafter be designated as such in a
written notice delivered by Administrative Agent and Swing Line Lender to
Company and each Lender.
"Funding Date" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the application
thereof set forth in subsection 1.2, generally accepted accounting principles
set forth in 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 in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, in each case as the same are applicable to the
circumstances as of the date of determination.
"Governing Body" means the board of directors or other body
having the power to direct or cause the direction of the management and policies
of a Person that is a corporation, partnership, trust or limited liability
company.
"Government Authority" means any political subdivision or
department thereof, any other governmental or regulatory body, commission,
central bank, board, bureau, organ or instrumentality or any court, in each case
whether federal, state, local or foreign.
"Governmental Authorization" means any permit, license,
registration, authorization, plan, directive, consent, order or consent decree
of or from, or notice to, any Government Authority.
"Guaranties" means (A) the Subsidiary Guaranty and any Foreign
Guaranty and
15
(B) on or after the Qualified Holding Company Formation Date, the Subsidiary
Guaranty, any Foreign Guaranty and the Holdings Guaranty.
"Guarantor" means (A) the Subsidiary Guarantors, the Foreign
Guarantors and (B) on or after the Qualified Holding Company Formation Date, the
Subsidiary Guarantors, the Foreign Guarantors, and Holdings.
"Hazardous Materials" means (i) any chemical, material or
substance at any time defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials", "extremely hazardous
waste", "acutely hazardous waste", "radioactive waste", "biohazardous waste",
"pollutant", "toxic pollutant", "contaminant", "restricted hazardous waste",
"infectious waste", "toxic substances", or any other term or expression intended
to define, list or classify substances by reason of properties harmful to
health, safety or the indoor or outdoor environment (including harmful
properties such as ignitability, corrosivity, reactivity, carcinogenicity,
toxicity, reproductive toxicity, "TCLP toxicity" or "EP toxicity" or words of
similar import under any applicable Environmental Laws); (ii) any oil,
petroleum, petroleum fraction or petroleum derived substance; (iii) any drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources;
(iv) any flammable substances or explosives; (v) any radioactive materials; (vi)
any asbestos-containing materials; (vii) urea formaldehyde foam insulation;
(viii) electrical equipment which contains any oil or dielectric fluid
containing polychlorinated biphenyls; (ix) pesticides; and (x) any other
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any Government Authority or which may or could pose a hazard to the
health and safety of the owners, occupants or any Persons in the vicinity of any
Facility or to the indoor or outdoor environment.
"Hazardous Materials Activity" means any past, current, proposed
or threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"Hedge Agreement" means an Interest Rate Agreement or a Currency
Agreement designed to hedge against fluctuations in interest rates or currency
values, respectively.
"Holdings" means a Person formed to acquire the Capital Stock of
Borrower in connection with the Qualified Holding Company Formation.
"Holdings Guaranty" means the Holdings Guaranty executed and
delivered by Holdings on or prior to the Qualified Holding Company Formation
Date, substantially in the form of Exhibit XIV annexed hereto, as such Holdings
Guaranty may thereafter be amended, supplemented, restated or otherwise modified
from time to time.
"Holdings Security Agreement" means the Holdings Security
Agreement
16
executed and delivered by Holdings on or prior to the Qualified Holding Company
Formation Date, substantially in the form of Exhibit XIII annexed hereto, as
such Holdings Security Agreement may thereafter be amended, supplemented or
otherwise modified from time to time.
"Indebtedness", as applied to any Person, means (i) all
indebtedness for borrowed money, (ii) that portion of obligations with respect
to Capital Leases that is properly classified as a liability on a balance sheet
in conformity with GAAP, (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed money,
(iv) any obligation owed for all or any part of the deferred purchase price of
property or services (excluding any such obligations incurred under ERISA),
which purchase price is (a) due more than six months from the date of incurrence
of the obligation in respect thereof or (b) evidenced by a note or similar
written instrument, (v) Synthetic Lease Obligations, and (vi) all indebtedness
secured by any Lien on any property or asset owned or held by that Person
regardless of whether the indebtedness secured thereby shall have been assumed
by that Person or is nonrecourse to the credit of that Person. Obligations under
Interest Rate Agreements and Currency Agreements constitute (1) in the case of
Hedge Agreements, Contingent Obligations, and (2) in all other cases,
Investments, and in neither case constitute Indebtedness.
"Indemnified Liabilities" has the meaning assigned to that term
in subsection 10.3.
"Indemnitee" has the meaning assigned to that term in subsection
10.3.
"Intellectual Property" means all patents, trademarks,
tradenames, copyrights, technology, software, know-how and processes used in or
necessary for the conduct of the business of Company and its Subsidiaries as
currently conducted that are material to the condition (financial or otherwise),
business or operations of Company and its Subsidiaries, taken as a whole.
"Interest Payment Date" means (i) with respect to any Base Rate
Loan, the last Business Day of March, June, September and December of each year,
commencing on the first such date to occur after the Closing Date, and (ii) with
respect to any Eurodollar Rate Loan, the last day of each Interest Period
applicable to such Loan; provided that in the case of each Interest Period of
longer than three months "Interest Payment Date" shall also include the date
that is three months after the commencement of such Interest Period.
"Interest Period" has the meaning assigned to that term in
subsection 2.2B.
"Interest Rate Agreement" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement or arrangement to which Company or any of its Subsidiaries is
a party.
"Interest Rate Determination Date", with respect to any Interest
Period, means the second Business Day prior to the first day of such Interest
Period.
17
"Intermediate Holdco" has the meaning assigned to that term in
the second recital to this Agreement.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended to the date hereof and from time to time hereafter, and any successor
statute.
"Investco" means a Person formed by Company as a Domestic
Subsidiary for the purpose of engaging in the business of buying and selling
marketable securities and debt instruments.
"Investment" means (i) any direct or indirect purchase or other
acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, any Securities of any other Person (including any Subsidiary of
Company), (ii) any direct or indirect redemption, retirement, purchase or other
acquisition for value, by any Subsidiary of Company from any Person other than
Company or any of its Subsidiaries, of any equity Securities of such Subsidiary,
(iii) any direct or indirect loan, advance (other than advances to employees for
moving, entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or capital contribution by
Company or any of its Subsidiaries to any other Person (other than a
wholly-owned Domestic Subsidiary of Company), including all indebtedness and
accounts receivable from that other Person that are not current assets or did
not arise from sales to that other Person in the ordinary course of business, or
(iv) Interest Rate Agreements or Currency Agreements not constituting Hedge
Agreements. The amount of any Investment shall be the original cost of such
Investment plus the cost of all additions thereto, without any adjustments for
increases or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment (other than adjustments for the repayment of, or the
refund of capital with respect to, the original principal amount of any such
Investment).
"IP Collateral" means, collectively, the Intellectual Property
that constitutes Collateral under the Security Agreement.
"Issuing Lender", with respect to any Letter of Credit, means
SunTrust or LaSalle, as applicable, and "Issuing Lenders" means SunTrust and
LaSalle collectively.
"Joint Venture" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal form.
"Landlord Consent and Estoppel", with respect to any Leasehold
Property, means a letter, certificate or other instrument in writing from the
lessor under the related lease, satisfactory in form and substance to
Administrative Agent, pursuant to which such lessor agrees, for the benefit of
Administrative Agent, (i) that without any further consent of such lessor or any
further action on the part of the Loan Party holding such Leasehold Property,
such Leasehold Property may be encumbered pursuant to a Mortgage and may be
assigned to the purchaser at a foreclosure sale or in a transfer in lieu of such
a sale (and to a subsequent third party assignee if Administrative Agent, any
Lender, or an Affiliate of either so acquires such Leasehold Property), (ii)
that such lessor shall not terminate such lease as a result of a default by such
Loan Party thereunder without first giving Administrative Agent notice of such
default and
18
at least 60 days (or, if such default cannot reasonably be cured by
Administrative Agent within such period, such longer period as may reasonably be
required) to cure such default, (iii) to the matters contained in a Collateral
Access Agreement and (iv) to such other matters relating to such Leasehold
Property as Administrative Agent may reasonably request.
"Leasehold Property" means any leasehold interest of any Loan
Party (other than a Foreign Subsidiary) as lessee under any lease of real
property, other than any such leasehold interest designated from time to time by
Administrative Agent in its sole discretion as not being required to be included
in the Collateral.
"Lender" and "Lenders" means the Persons identified as "Lenders"
and listed on the signature pages of this Agreement, together with their
successors and permitted assigns pursuant to subsection 10.1, and the term
"Lenders" shall include Swing Line Lender unless the context otherwise requires;
provided that the term "Lenders", when used in the context of a particular
Commitment, shall mean Lenders having that Commitment.
"Letter of Credit" or "Letters of Credit" means Commercial
Letters of Credit and Standby Letters of Credit issued or to be issued by
Issuing Lenders for the account of Borrower pursuant to subsection 3.1.
"Letter of Credit Usage" means, as at any date of determination,
the sum of (i) the maximum aggregate amount which is or at any time thereafter
may become available for drawing under all Letters of Credit then outstanding
plus (ii) the aggregate amount of all drawings under Letters of Credit honored
by Issuing Lenders and not theretofore reimbursed out of the proceeds of
Revolving Loans pursuant to subsection 3.3B or otherwise reimbursed by Borrower.
"Lien" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"Loan" or "Loans" means one or more of the Term Loans, Revolving
Loans or Swing Line Loans or any combination thereof.
"Loan Documents" means this Agreement, the Notes, the Letters of
Credit (and any applications for, or reimbursement agreements or other documents
or certificates executed by Company in favor of an Issuing Lender relating to,
the Letters of Credit), the Guaranties and the Collateral Documents.
"Loan Party" means, each of Company and any of its Subsidiaries
executing a Loan Document from time to time, and in each case "Loan Parties"
means all such Persons, collectively.
"Management Company" means an entity formed in connection with
the Qualified Reorganization to provide certain managerial services to Company
and its Subsidiaries.
19
"Margin Stock" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System as in
effect from time to time.
"Material Adverse Effect" means (i) a material adverse effect
upon the business, operations, properties, assets, condition (financial or
otherwise) or prospects of Company and its Subsidiaries taken as a whole or (ii)
the material impairment of the ability of Company and any of its Subsidiaries to
perform, or of Administrative Agent or Lenders to enforce, the Obligations.
"Material Contract" means any contract or other arrangement to
which Company or any of its Subsidiaries is a party (other than the Loan
Documents) for which breach, nonperformance, cancellation or failure to renew
could have a Material Adverse Effect.
"Material Foreign Subsidiary" means any Foreign Subsidiary that
is a Material Subsidiary.
"Material Leasehold Property" means a Leasehold Property
reasonably determined by Administrative Agent to be of material value as
Collateral or of material importance to the operations of Company or any of its
Subsidiaries.
"Material Subsidiary" means each Subsidiary of Company now
existing or hereafter acquired or formed by Company which, on a consolidated
basis for such Subsidiary and its Subsidiaries, (i) for the most recent Fiscal
Year accounted for more than 5% of the consolidated revenues of Company and its
Subsidiaries or (ii) as at the end of such Fiscal Year, was the owner of more
than 5% of the consolidated assets of Company and its Subsidiaries.
"Maximum Consolidated Capital Expenditures Amount" has the
meaning assigned to that term in subsection 7.8.
"Mortgage" means (i) a security instrument (whether designated
as a deed of trust or a mortgage or by any similar title) executed and delivered
by any Loan Party, substantially in the form of Exhibit XV annexed hereto or in
such other form as may be approved by Administrative Agent in its reasonable
discretion, in each case with such changes thereto as may be recommended by
Administrative Agent's local counsel based on local laws or customary local
mortgage or deed of trust practices, or (ii) at Administrative Agent's option,
in the case of an Additional Mortgaged Property, an amendment to an existing
Mortgage, in form satisfactory to Administrative Agent, adding such Additional
Mortgaged Property to the Real Property Assets encumbered by such existing
Mortgage, in either case as such security instrument or amendment may be
amended, supplemented or otherwise modified from time to time. "Mortgages" means
all such instruments, including the Closing Date Mortgages and any Additional
Mortgages, collectively.
"Multiemployer Plan" means any Employee Benefit Plan that is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
20
"Net Asset Sale Proceeds", with respect to any Asset Sale, means
Cash payments (including any Cash received by way of deferred payment pursuant
to, or by monetization of, a note receivable or otherwise, but only as and when
so received) received from such Asset Sale, net of any bona fide direct costs
incurred in connection with such Asset Sale, including (i) income taxes
reasonably estimated to be actually payable within two years of the date of such
Asset Sale as a result of any gain recognized in connection with such Asset Sale
and (ii) payment of the outstanding principal amount of, premium or penalty, if
any, and interest on any Indebtedness (other than the Loans) that is secured by
a Lien on the stock or assets in question and that is required to be repaid
under the terms thereof as a result of such Asset Sale.
"Net Insurance/Condemnation Proceeds" means any Cash payments or
proceeds received by Company or any of its Subsidiaries (i) under any business
interruption or casualty insurance policy in respect of a covered loss
thereunder or (ii) as a result of the taking of any assets of Company or any of
its Subsidiaries by any Person pursuant to the power of eminent domain,
condemnation or otherwise, or pursuant to a sale of any such assets to a
purchaser with such power under threat of such a taking, in each case net of any
actual and reasonable documented costs incurred by Company or any of its
Subsidiaries in connection with the adjustment or settlement of any claims of
Company or such Subsidiary in respect thereof.
"Net Securities Proceeds" means the Cash proceeds (net of
underwriting discounts and commissions and other reasonable costs and expenses
associated therewith, including reasonable legal fees and expenses) from the (i)
issuance of Capital Stock of or incurrence of Indebtedness by Company or any of
its Subsidiaries and (ii) capital contributions made by a holder of Capital
Stock of Company.
"Non-US Lender" means a Lender that is organized under the laws
of any jurisdiction other than the United States or any state or other political
subdivision thereof.
"Notes" means one or more of the Term Notes, Revolving Notes or
Swing Line Note or any combination thereof.
"Notice of Borrowing" means a notice substantially in the form
of Exhibit I annexed hereto.
"Notice of Conversion/Continuation" means a notice substantially
in the form of Exhibit II annexed hereto.
"Obligations" means all obligations of every nature of each Loan
Party from time to time owed to Administrative Agent, Lenders or any of them
under the Loan Documents, whether for principal, interest, reimbursement of
amounts drawn under Letters of Credit, fees, expenses, indemnification or
otherwise.
"Officer" means the president, chief executive officer, a vice
president, principal financial officer, treasurer, general partner (if an
individual), managing member (if an individual) or other individual appointed by
the Governing Body or the Organizational Documents of a corporation,
partnership, trust or limited liability company to serve in a similar capacity
as the foregoing.
21
"Officer's Certificate", as applied to any Person that is a
corporation, partnership, trust or limited liability company, means a
certificate executed on behalf of such Person by one or more Officers of such
Person or one or more Officers of a general partner or a managing member if such
general partner or managing member is a corporation, partnership, trust or
limited liability company.
"Operating Lease", as applied to any Person, means any lease
(including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) that is not a Capital Lease other
than any such lease under which that Person is the lessor.
"Organizational Documents" means the documents (including
Bylaws, if applicable) pursuant to which a Person that is a corporation,
partnership, trust or limited liability company is organized.
"Participant" means a purchaser of a participation in the rights
and obligations under this Agreement pursuant to subsection 10.1C.
"Patriot Act" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 (USA PATRIOT Act).
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, that is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA, and, for purposes of subsection 8.10, any Foreign Plan.
"Permitted Encumbrances" means the following types of Liens
(excluding any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or by ERISA, any such Lien imposed by a Government
Authority in connection with any Foreign Plan, any such Lien relating to or
imposed in connection with any Environmental Claim, and any such Lien expressly
prohibited by any applicable terms of any of the Collateral Documents):
(i) Liens for taxes, assessments or governmental charges or
claims the payment of which is not, at the time, required by subsection
6.3;
(ii) statutory Liens of landlords, Liens of collecting banks
under the UCC on items in the course of collection, statutory Liens and
rights of set-off of banks, statutory Liens of carriers, warehousemen,
mechanics, repairmen, workmen and materialmen, and other Liens imposed
by law, in each case incurred in the ordinary course of business (a) for
amounts not yet overdue or (b) for amounts that are overdue and that (in
the case of any such amounts overdue for a period in excess of 5 days)
are being contested in good faith by appropriate proceedings, so long as
(1) such reserves or other appropriate
22
provisions, if any, as shall be required by GAAP shall have been made
for any such contested amounts, and (2) in the case of a Lien with
respect to any portion of the Collateral, such contest proceedings
conclusively operate to stay the sale of any portion of the Collateral
on account of such Lien;
(iii) deposits made in the ordinary course of business in
connection with workers' compensation, employee benefits, unemployment
insurance and other types of social security, or to secure the
performance of statutory obligations, bids, leases, government
contracts, trade contracts and other similar obligations (exclusive of
obligations for the payment of borrowed money), so long as no
foreclosure, sale or similar proceedings have been commenced with
respect to any portion of the Collateral on account thereof;
(iv) any attachment or judgment Lien not constituting an
Event of Default under subsection 8.8;
(v) licenses (with respect to Intellectual Property and
other property), leases or subleases granted to third parties in
accordance with any applicable terms of the Collateral Documents or the
Foreign Intercompany Security Agreements and not interfering in any
material respect with the ordinary conduct of the business of Company or
any of its Subsidiaries or resulting in a material diminution in the
value of any Collateral as security for the Obligations;
(vi) easements, rights-of-way, restrictions, encroachments,
and other minor defects or irregularities in title, in each case which
do not and will not interfere in any material respect with the ordinary
conduct of the business of Company or any of its Subsidiaries or result
in a material diminution in the value of any Collateral as security for
the Obligations;
(vii) any (a) interest or title of a lessor or sublessor under
any lease not prohibited by this Agreement, (b) Lien or restriction that
the interest or title of such lessor or sublessor may be subject to, or
(c) subordination of the interest of the lessee or sublessee under such
lease to any Lien or restriction referred to in the preceding clause
(b), so long as the holder of such Lien or restriction agrees to
recognize the rights of such lessee or sublessee under such lease;
(viii) Liens arising from filing UCC financing statements
relating solely to leases not prohibited by this Agreement;
(ix) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods;
(x) any zoning or similar law or right reserved to or vested
in any governmental office or agency to control or regulate the use of
any real property;
23
(xi) Liens granted pursuant to the Collateral Documents and
the Foreign Intercompany Security Agreements; and
(xii) Liens securing obligations (other than obligations
representing Indebtedness for borrowed money) under operating,
reciprocal easement or similar agreements entered into in the ordinary
course of business of Company and its Subsidiaries.
"Person" means and includes natural persons, corporations,
limited partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
"Pledged Belgium Indebtedness" means the intercompany demand
promissory note dated as of the date hereof issued by Ethyl Europe to Borrower,
Additives, Ethyl Asia Pacific Company and Interamerica Terminals Corporation to
reflect all intercompany loans or advances between such parties, including,
without limitation, any such intercompany loans outstanding on the Closing Date,
as permitted by subsection 7.1(v), which note shall be pledged to Administrative
Agent pursuant to the Security Agreement and shall be subordinated in right of
payment to the payment in full of the Obligations and the obligations with
respect to the Senior Notes.
"Pledged Collateral" means, collectively, the shares of stock
and debt pledged pursuant to the Security Agreement, the Holdings Security
Agreement, any Foreign Pledge Agreement and any Foreign Collateral Document.
"Potential Event of Default" means a condition or event that,
after notice or lapse of time or both, would constitute an Event of Default.
"Pricing Certificate" means an Officer's Certificate of Borrower
certifying the Consolidated Leverage Ratio as at the last day of any Fiscal
Quarter and setting forth the calculation of such Consolidated Leverage Ratio in
reasonable detail, which Officer's Certificate may be delivered to
Administrative Agent at any time on or after the date of delivery by Company of
the Compliance Certificate with respect to the period ending on the last day of
such Fiscal Quarter.
"Prime Rate" means the rate that CSFB announces from time to
time as its prime lending rate, as in effect from time to time. The Prime Rate
is a reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. CSFB or any other Lender may make commercial
loans or other loans at rates of interest at, above or below the Prime Rate.
24
"Private Borrowing" means that certain loan in the aggregate
principal amount of $18,640,000 plus accrued interest and unpaid interest
thereon to Borrower by Bruce Gottwald in February 2002.
"Proceedings" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration.
"Pro Rata Share" means (i) with respect to all payments,
computations and other matters relating to the Term Loan Commitment or the Term
Loan of any Lender, the percentage obtained by dividing (x) the Term Loan
Exposure of that Lender by (y) the aggregate Term Loan Exposure of all Lenders,
(ii) with respect to all payments, computations and other matters relating to
the Revolving Loan Commitment or the Revolving Loans of any Lender or any
Letters of Credit issued or participations therein deemed purchased by any
Lender or any assignments of any Swing Line Loans deemed purchased by any
Lender, the percentage obtained by dividing (x) the Revolving Loan Exposure of
that Lender by (y) the aggregate Revolving Loan Exposure of all Lenders, and
(iii) for all other purposes with respect to each Lender, the percentage
obtained by dividing (x) the sum of the Term Loan Exposure of that Lender plus
the Revolving Loan Exposure of that Lender by (y) the sum of the aggregate Term
Loan Exposure of all Lenders plus the aggregate Revolving Loan Exposure of all
Lenders, in any such case as the applicable percentage may be adjusted by
assignments permitted pursuant to subsection 10.1. The initial Pro Rata Share of
each Lender for purposes of each of clauses (i), (ii) and (iii) of the preceding
sentence is set forth opposite the name of that Lender in Schedule 2.1 annexed
hereto.
"PTO" means the United States Patent and Trademark Office or any
successor or substitute office in which filings are necessary or, in the opinion
of Administrative Agent, desirable in order to create or perfect Liens on any IP
Collateral.
"Qualified Holding Company Formation" means one or more related
transactions that may be undertaken at the discretion of the Borrower (the
structure and terms of which shall be satisfactory to Administrative Agent) in
which (i) Holdings will be formed as a new company and (ii) Holdings will
acquire all of the issued and outstanding Capital Stock of Borrower in exchange
for the Capital Stock of Holdings, whether directly or indirectly through a
share exchange or subsidiary merger.
"Qualified Holding Company Formation Date" means the date of the
consummation of the Qualified Holding Company Formation.
"Qualified Reorganization" means one or both of the following
transactions that may be undertaken at the discretion of the Borrower (the
structure and terms of any such transaction shall be satisfactory to
Administrative Agent): (i) the conveyance or other transfer of certain assets
(including stock or other ownership interests of Subsidiaries) of Borrower and
its Subsidiaries to Additives and (ii) if the Borrower has undertaken the
Qualified Holding Company Formation, the distribution by Borrower of all of the
outstanding Capital Stock of Additives to Holdings.
"Qualified Reorganization Date" means the date of the
consummation of the
25
transaction described in subclause (ii) of Qualified Reorganization.
"Qualified Holding Company Formation Documents" means the
documents executed and delivered by any Loan Party in connection with the
Qualified Holding Company Formation.
"Qualified Reorganization Documents" means the documents
executed and delivered by any Loan Party in connection with the Qualified
Reorganization.
"Real Property Asset" means, at any time of determination, any
interest then owned or leased by any Loan Party in any real property.
"Recorded Leasehold Interest" means a Leasehold Property with
respect to which a Record Document (as hereinafter defined) has been recorded in
all places necessary or desirable, in Administrative Agent's reasonable
judgment, to give constructive notice of such Leasehold Property to third-party
purchasers and encumbrancers of the affected real property. For purposes of this
definition, the term "Record Document" means, with respect to any Leasehold
Property, (a) the lease evidencing such Leasehold Property or a memorandum
thereof, executed and acknowledged by the owner of the affected real property,
as lessor, or (b) if such Leasehold Property was acquired or subleased from the
holder of a Recorded Leasehold Interest, the applicable assignment or sublease
document, executed and acknowledged by such holder, in each case in form
sufficient to give such constructive notice upon recordation and otherwise in
form reasonably satisfactory to Administrative Agent.
"Reference Lender" means CSFB.
"Refinancing" means (i) the refinancing of the existing
Indebtedness outstanding under the Existing Credit Agreement, (ii) the
Transaction Costs, and (iii) the refinancing of the Private Borrowing.
"Refunded Swing Line Loans" has the meaning assigned to that
term in subsection 2.1A(iii).
"Register" has the meaning assigned to that term in subsection
2.1D.
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Reimbursement Date" has the meaning assigned to that term in
subsection 3.3B.
"Related Agreement" means, collectively, the Foreign
Intercompany Security Agreements and the agreements set forth on Schedule 1.1,
as amended, restated, supplemented or otherwise modified from time to time to
the extent permitted under subsection 7.12.
"Release" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of
26
Hazardous Materials into the indoor or outdoor environment (including the
abandonment or disposal of any barrels, containers or other closed receptacles
containing any Hazardous Materials), including the movement of any Hazardous
Materials through the air, soil, surface water or groundwater.
"Request for Issuance" means a request substantially in the form
of Exhibit III annexed hereto.
"Requisite Class Lenders" means, at any time of determination
(i) for the Class of Lenders having Revolving Loan Exposure, Lenders having or
holding more than 50% of the aggregate Revolving Loan Exposure of all Lenders
and (ii) for the Class of Lenders having Term Loan Exposure, Lenders having or
holding more than 50% of the aggregate Term Loan Exposure of all Lenders.
"Requisite Lenders" means Lenders having or holding more than
50% of the sum of the aggregate Term Loan Exposure of all Lenders plus the
aggregate Revolving Loan Exposure of all Lenders.
"Restricted Junior Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of stock
of either Credit Agreement Party, and, on or after the Qualified Reorganization
Date, Additives, now or hereafter outstanding, except a dividend payable solely
in shares of that class of stock to the holders of that class, (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of stock
of either Credit Agreement Party and, on or after the Qualified Reorganization
Date, Additives, now or hereafter outstanding, (iii) any payment made to retire,
or to obtain the surrender of, any outstanding warrants, options or other rights
to acquire shares of any class of stock of either Credit Agreement Party and, on
or after the Qualified Reorganization Date, Additives, now or hereafter
outstanding, and (iv) any payment or prepayment of principal of, premium, if
any, or interest on, or redemption, purchase, retirement, defeasance (including
in-substance or legal defeasance), sinking fund or similar payment with respect
to, the Senior Notes.
"Revolving Lender" means a Lender that has a Revolving Loan
Commitment and/or that has an outstanding Revolving Loan.
"Revolving Loan Commitment" means the commitment of a Revolving
Lender to make Revolving Loans to Borrower pursuant to subsection 2.1A(ii), and
"Revolving Loan Commitments" means such commitments of all Revolving Lenders in
the aggregate.
"Revolving Loan Commitment Termination Date" means April 30,
2008.
"Revolving Loan Exposure", with respect to any Revolving Lender,
means, as of any date of determination (i) prior to the termination of the
Revolving Loan Commitments, that Lender's Revolving Loan Commitment, and (ii)
after the termination of the Revolving Loan Commitments, the sum of (a) the
aggregate outstanding principal amount of the Revolving Loans of that Lender
plus (b) in the event that Lender is an Issuing Lender, the aggregate Letter of
27
Credit Usage in respect of all Letters of Credit issued by that Lender (in each
case net of any participations purchased by other Lenders in such Letters of
Credit or in any unreimbursed drawings thereunder) plus (c) the aggregate amount
of all participations purchased by that Lender in any outstanding Letters of
Credit or any unreimbursed drawings under any Letters of Credit plus (d) in the
case of Swing Line Lender, the aggregate outstanding principal amount of all
Swing Line Loans (net of any participations thereof purchased by other Revolving
Lenders) plus (e) the aggregate amount of all assignments purchased by that
Lender in any outstanding Swing Line Loans.
"Revolving Loans" means the Loans made by Revolving Lenders to
Borrower pursuant to subsection 2.1A(ii).
"Revolving Notes" means any promissory notes of Borrower issued
pursuant to subsection 2.1E to evidence the Revolving Loans of any Revolving
Lenders, substantially in the form of Exhibit V annexed hereto, as they may be
amended, supplemented or otherwise modified from time to time.
"Securities" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated, certificated or uncertificated, or otherwise, or in general any
instruments commonly known as "securities" or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"Security Agreement" means the Security Agreement executed and
delivered on the Closing Date and from time to time thereafter pursuant to
subsection 6.8, substantially in the form of Exhibit XIII annexed hereto, as
such Security Agreement may thereafter be amended, supplemented or otherwise
modified from time to time.
"Senior Note Documents" means the Senior Notes, the Senior Note
Indenture, the Senior Note Guaranty and each other document executed in
connection with the Senior Notes, as each such document may be amended,
supplemented, restated or otherwise modified from time to time thereafter as
permitted under subsection 7.12B.
"Senior Note Guaranty" means any guaranty executed and delivered
pursuant to the Senior Note Indenture.
"Senior Note Indenture" means the Indenture entered into by
Borrower and the trustee named therein pursuant to which the Senior Notes are
issued in the form approved by the Administrative Agent pursuant to subsection
4.1O and as such Indenture may be amended, supplemented, restated or otherwise
modified from time to time thereafter as permitted under subsection 7.12B.
28
"Senior Notes" means Borrower's $150,000,000 in aggregate
principal amount of 8.875% Senior Notes due 2010, issued pursuant to the Senior
Note Indenture, as such Notes may be amended, supplemented, restated or
otherwise modified from time to time thereafter as permitted under subsection
7.12B.
"Senior Secured Credit Facility Rating" means, as of any date of
determination, the ratings of S&P and Moody's, respectively, (or from a
successor reasonably satisfactory to Administrative Agent) of the Loans in
effect as of such date.
"Solvent", with respect to any Person, means that as of the date
of determination both (i)(a) the then fair saleable value of the property of
such Person is (1) greater than the total amount of liabilities (including
contingent liabilities) of such Person and (2) not less than the amount that
will be required to pay the probable liabilities on such Person's then existing
debts as they become absolute and due considering all financing alternatives and
potential asset sales reasonably available to such Person; (b) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (c) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due; and (ii) such Person is
"solvent" within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
"SPC" has the meaning assigned to that term in subsection
10.1B(iv).
"Standby Letter of Credit" means any standby letter of credit or
similar instrument issued for the purpose of supporting (i) Indebtedness of
Borrower or any of its Subsidiaries in respect of industrial revenue or
development bonds or financings, (ii) workers' compensation liabilities of
Borrower or any of its Subsidiaries, (iii) the obligations of third party
insurers of Borrower or any of its Subsidiaries arising by virtue of the laws of
any jurisdiction requiring third party insurers, (iv) obligations with respect
to Capital Leases or Operating Leases of Borrower or any of its Subsidiaries,
and (v) performance, payment, deposit or surety obligations of Borrower or any
of its Subsidiaries, in any case if required by law or governmental rule or
regulation or in accordance with custom and practice in the industry.
"Subsidiary", with respect to any Person, means any corporation,
partnership, trust, limited liability company, association, Joint Venture or
other business entity of which more than 50% of the total voting power of shares
of stock or other ownership interests entitled (without regard to the occurrence
of any contingency) to vote in the election of the members of the Governing Body
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination thereof.
"Subsidiary Guarantor" means any Subsidiary of Company that
executes and delivers a counterpart of the Subsidiary Guaranty on the Closing
Date or from time to time thereafter pursuant to subsection 6.8.
29
"Subsidiary Guaranty" means the Subsidiary Guaranty executed and
delivered by certain existing Subsidiaries of Company on the Closing Date and to
be executed and delivered by additional Subsidiaries of Company from time to
time thereafter in accordance with subsection 6.8, substantially in the form of
Exhibit XII annexed hereto, as such Subsidiary Guaranty may hereafter be
amended, supplemented or otherwise modified from time to time.
"Supplemental Collateral Agent" has the meaning assigned to that
term in subsection 9.1B.
"Swing Line Lender" means CSFB, or any Person serving as a
successor Administrative Agent hereunder, in its capacity as Swing Line Lender
hereunder.
"Swing Line Loan Commitment" means the commitment of Swing Line
Lender to make Swing Line Loans to Borrower pursuant to subsection 2.1A(iii).
"Swing Line Loans" means the Loans made by Swing Line Lender to
Borrower pursuant to subsection 2.1A(iii).
"Swing Line Note" means any promissory note of Borrower issued
pursuant to subsection 2.1E to evidence the Swing Line Loans of Swing Line
Lender, substantially in the form of Exhibit VI annexed hereto, as it may be
amended, supplemented or otherwise modified from time to time.
"Synthetic Lease Obligation" means the monetary obligation of a
Person under (a) a so-called synthetic, off-balance sheet or tax retention
lease, or (b) an agreement for the use or possession of property creating
obligations that do not appear on the balance sheet of such Person but which,
upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).
"Tax" or "Taxes" means any present or future tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature and whatever called,
by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld
or assessed, including interest, penalties, additions to tax and any similar
liabilities (excluding any interest, penalty, addition or other liability
arising from the gross negligence or willful misconduct of Administrative Agent
or any Lender) with respect thereto; except that, in the case of Administrative
Agent or a Lender, there shall be excluded (i) taxes that are imposed on the net
income or net profits (including franchise taxes imposed in lieu thereof) (a) by
the United States, (b) by any other Government Authority (or any political
subdivision thereof) under the laws of which Administrative Agent or such Lender
is organized or has its principal office or maintains its applicable lending
office, or (c) by any jurisdiction solely as a result of one or more present or
former connections between Administrative Agent or such Lender and such
jurisdiction (other than any such connection arising solely from Administrative
Agent or such Lender having executed, delivered or performed its obligations or
received a payment under, or enforced, any of the Loan Documents), and (ii) any
branch profits taxes imposed by the United States or any similar tax imposed by
any other jurisdiction in which such Lender is located or subject to tax.
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"Term Loan Commitment" means the commitment of a Lender to make
a Term Loan to Borrower pursuant to subsection 2.1A(i), and "Term Loan
Commitments" means such commitments of all Lenders in the aggregate.
"Term Loan Exposure", with respect to any Lender, means, as of
any date of determination (i) prior to the funding of the Term Loans, that
Lender's Term Loan Commitment, and (ii) after the funding of the Term Loans, the
outstanding principal amount of the Term Loan of that Lender.
"Term Loan Lender" means a Lender that has a Term Loan
Commitment and/or that has an outstanding Term Loan.
"Term Loans" means, the Term Loans made by Lenders to Borrower
pursuant to subsection 2.1A(i).
"Term Notes" means any promissory notes of Borrower issued
pursuant to subsection 2.1E to evidence the Term Loans of any Term Loan Lenders,
substantially in the form of Exhibit IV annexed hereto, as they may be amended,
supplemented, restated or otherwise modified from time to time.
"Title Company" means one or more title insurance companies
reasonably satisfactory to Administrative Agent.
"Total Utilization of Revolving Loan Commitments" means, as at
any date of determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans plus (ii) the aggregate principal amount of all
outstanding Swing Line Loans plus (iii) the Letter of Credit Usage.
"Transaction Costs" means the fees, costs and expenses payable
by Borrower on or before the Closing Date in connection with the transactions
contemplated by the Loan Documents.
"UCC" means the Uniform Commercial Code as in effect in any
applicable jurisdiction.
"U.K. Facility" means the Facility owned (or otherwise occupied)
by EPAL at London Road, Bracknell, Berkshire RG12 2UW, UK (which property,
together with the buildings erected on it, is held by EPAL as a freehold on the
Closing Date registered with absolute title at HM Land Registry under title
number: BK289187).
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF
CALCULATIONS UNDER AGREEMENT.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Borrower to Lenders pursuant to clauses (ii), (iii)
and (xii) of subsection 6.1 shall be prepared in accordance
31
with GAAP as in effect at the time of such preparation (and delivered together
with the reconciliation statements provided for in subsection 6.1(v)).
Calculations in connection with the definitions, covenants and other provisions
of this Agreement shall utilize GAAP as in effect on the date of determination,
applied in a manner consistent with that used in preparing the financial
statements referred to in subsection 5.3. If at any time any change in GAAP
would affect the computation of any financial ratio or requirement set forth in
any Loan Document, and Borrower, Administrative Agent or Requisite Lenders shall
so request, Administrative Agent, Lenders and Borrower shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of Requisite Lenders),
provided that, until so amended, such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and Borrower shall
provide to Administrative Agent and Lenders reconciliation statements provided
for in subsection 6.1(v).
1.3 OTHER DEFINITIONAL PROVISIONS AND RULES OF CONSTRUCTION.
A. Any of the terms defined herein may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference.
B. References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Agreement unless otherwise
specifically provided. Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
C. The use in any of the Loan Documents of the word
"include" or "including", when following any general statement, term or matter,
shall not be construed to limit such statement, term or matter to the specific
items or matters set forth immediately following such word or to similar items
or matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; MAKING OF LOANS; THE REGISTER; NOTES.
A. Commitments. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Borrower
herein set forth, each Lender hereby severally agrees to make the Loans as
described in subsections 2.1A(i) and 2.1A(ii) and Swing Line Lender hereby
agrees to make the Swing Line Loans as described in subsection 2.1A(iii).
(i) Term Loans. Each Lender that has a Term Loan Commitment
severally agrees to lend to Borrower on the Closing Date an amount not
exceeding its Pro Rata Share of the aggregate amount of the Term Loan
Commitments to be used for the purposes identified in subsection 2.5A.
The amount of each Lender's Term Loan
32
Commitment is set forth opposite its name on Schedule 2.1 annexed hereto
and the aggregate amount of the Term Loan Commitments is $115,000,000;
provided that the Term Loan Commitments of Lenders shall be adjusted to
give effect to any assignments of the Term Loan Commitments pursuant to
subsection 10.1B. Each Lender's Term Loan Commitment shall expire
immediately and without further action on April 30, 2003 if the Term
Loans are not made on or before that date. Borrower may make only one
borrowing under the Term Loan Commitments. Amounts borrowed under this
subsection 2.1A(i) and subsequently repaid or prepaid may not be
reborrowed.
(ii) Revolving Loans. Each Revolving Lender severally agrees,
subject to the limitations set forth below with respect to the maximum
amount of Revolving Loans permitted to be outstanding from time to time,
to lend to Borrower from time to time during the period from the Closing
Date to but excluding the Revolving Loan Commitment Termination Date an
aggregate amount not exceeding its Pro Rata Share of the aggregate
amount of the Revolving Loan Commitments to be used for the purposes
identified in subsection 2.5B. The original amount of each Revolving
Lender's Revolving Loan Commitment is set forth opposite its name on
Schedule 2.1 annexed hereto and the aggregate original amount of the
Revolving Loan Commitments is $50,000,000; provided that the Revolving
Loan Commitments of Revolving Lenders shall be adjusted to give effect
to any assignments of the Revolving Loan Commitments pursuant to
subsection 10.1B and shall be reduced from time to time by the amount of
any reductions thereto made pursuant to subsection 2.4. Each Revolving
Lender's Revolving Loan Commitment shall expire on the Revolving Loan
Commitment Termination Date and all Revolving Loans and all other
amounts owed hereunder with respect to the Revolving Loans and the
Revolving Loan Commitments shall be paid in full no later than that
date; provided that each Revolving Lender's Revolving Loan Commitment
shall expire immediately and without further action on April 30, 2003 if
the Term Loans are not made on or before that date. Amounts borrowed
under this subsection 2.1A(ii) may be repaid and reborrowed to but
excluding the Revolving Loan Commitment Termination Date.
Anything contained in this Agreement to the contrary notwithstanding,
the Revolving Loans and the Revolving Loan Commitments shall be subject to the
limitation that in no event shall the Total Utilization of Revolving Loan
Commitments at any time exceed the Revolving Loan Commitments then in effect.
(iii) Swing Line Loans.
(a) General Provisions. Swing Line Lender hereby
agrees, subject to the limitations set forth
below with respect to the maximum amount of
Swing Line Loans permitted to be outstanding
from time to time, to make a portion of the
Revolving Loan Commitments available to Borrower
from time to time during the period from the
Closing Date to but excluding the Revolving Loan
Commitment Termination Date by making Swing Line
Loans to Borrower in an aggregate amount not
exceeding the amount of the
33
Swing Line Loan Commitment to be used for the
purposes identified in subsection 2.5B,
notwithstanding the fact that such Swing Line
Loans, when aggregated with Swing Line Lender's
outstanding Revolving Loans and Swing Line
Lender's Pro Rata Share of the Letter of Credit
Usage then in effect, may exceed Swing Line
Lender's Revolving Loan Commitment. The original
amount of the Swing Line Loan Commitment is
$5,000,000; provided that any reduction of the
Revolving Loan Commitments made pursuant to
subsection 2.4 that reduces the aggregate
Revolving Loan Commitments to an amount less
than the then current amount of the Swing Line
Loan Commitment shall result in an automatic
corresponding reduction of the Swing Line Loan
Commitment to the amount of the Revolving Loan
Commitments, as so reduced, without any further
action on the part of Borrower, Administrative
Agent or Swing Line Lender. The Swing Line Loan
Commitment shall expire on the Revolving Loan
Commitment Termination Date and all Swing Line
Loans and all other amounts owed hereunder with
respect to the Swing Line Loans shall be paid in
full no later than that date; provided that the
Swing Line Loan Commitment shall expire
immediately and without further action on April
30, 2003 if the Term Loans are not made on or
before that date. Amounts borrowed under this
subsection 2.1A(iii) may be repaid and
reborrowed to but excluding the Revolving Loan
Commitment Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall
be subject to the limitation that in no event shall the Total Utilization of
Revolving Loan Commitments at any time exceed the Revolving Loan Commitments
then in effect.
(b) Swing Line Loan Prepayment with Proceeds of
Revolving Loans. With respect to any Swing Line
Loans that have not been voluntarily prepaid by
Borrower pursuant to subsection 2.4B(i), Swing
Line Lender may, at any time in its sole and
absolute discretion, deliver to Administrative
Agent (with a copy to Borrower), no later than
10:00 A.M. (New York City time) on the first
Business Day in advance of the proposed Funding
Date, a notice requesting Revolving Lenders to
make Revolving Loans that are Base Rate Loans on
such Funding Date in an amount equal to the
amount of such Swing Line Loans (the "Refunded
Swing Line Loans") outstanding on the date such
notice is given. Borrower hereby authorizes the
giving of any such notice and the making of any
such Revolving Loans. Anything contained in this
Agreement to the contrary notwithstanding, (1)
the proceeds of such Revolving Loans made by
Revolving Lenders other than
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Swing Line Lender shall be immediately delivered
by Administrative Agent to Swing Line Lender
(and not to Borrower) and applied to repay a
corresponding portion of the Refunded Swing Line
Loans and (2) on the day such Revolving Loans
are made, Swing Line Lender's Pro Rata Share of
the Refunded Swing Line Loans shall be deemed to
be paid with the proceeds of a Revolving Loan
made by Swing Line Lender, and such portion of
the Swing Line Loans deemed to be so paid shall
no longer be outstanding as Swing Line Loans and
shall no longer be due under the Swing Line
Note, if any, of Swing Line Lender but shall
instead constitute part of Swing Line Lender's
outstanding Revolving Loans and shall be due
under the Revolving Note, if any, of Swing Line
Lender. Borrower hereby authorizes
Administrative Agent and Swing Line Lender to
charge any accounts Administrative Agent and/or
Swing Line Lender may have in Borrower's name
(up to the amount available in each such
account) in order to immediately pay Swing Line
Lender the amount of the Refunded Swing Line
Loans to the extent the proceeds of such
Revolving Loans made by Revolving Lenders,
including the Revolving Loan deemed to be made
by Swing Line Lender, are not sufficient to
repay in full the Refunded Swing Line Loans. If
any portion of any such amount paid (or deemed
to be paid) to Swing Line Lender should be
recovered by or on behalf of Borrower from Swing
Line Lender in any bankruptcy proceeding, in any
assignment for the benefit of creditors or
otherwise, the loss of the amount so recovered
shall be ratably shared among all Lenders in the
manner contemplated by subsection 10.5.
(c) Swing Line Loan Assignments. If for any reason
(1) Revolving Loans are not made upon the
request of Swing Line Lender as provided in the
immediately preceding paragraph in an amount
sufficient to repay any amounts owed to Swing
Line Lender in respect of any outstanding Swing
Line Loans or (2) the Revolving Loan Commitments
are terminated at a time when any Swing Line
Loans are outstanding, each Revolving Lender
shall be deemed to, and hereby agrees to, have
purchased an assignment in of such outstanding
Swing Line Loans in an amount equal to its Pro
Rata Share (calculated, in the case of the
foregoing clause (2), immediately prior to such
termination of the Revolving Loan Commitments)
of the unpaid amount of such Swing Line Loans
together with accrued interest thereon. Upon one
Business Day's notice from Swing Line Lender,
each Revolving Lender shall deliver to Swing
Line Lender an amount equal to its respective
assignment in same day funds at the Funding and
Payment Office. In order to further evidence
such assignment (and without
35
prejudice to the effectiveness of the assignment
provisions set forth above), each Revolving
Lender agrees to enter into a separate
Assignment Agreement at the request of Swing
Line Lender in form and substance reasonably
satisfactory to Swing Line Lender. In the event
any Revolving Lender fails to make available to
Swing Line Lender the amount of such Revolving
Lender's assignment as provided in this
paragraph, Swing Line Lender shall be entitled
to recover such amount on demand from such
Revolving Lender together with interest thereon
at the rate customarily used by Swing Line
Lender for the correction of errors among banks
for three Business Days and thereafter at the
Base Rate. In the event Swing Line Lender
receives a payment of any amount in which other
Revolving Lenders have purchased assignments as
provided in this paragraph, Swing Line Lender
shall promptly distribute to Administrative
Agent such payment in its entirety and
Administrative Agent shall distribute to each
other Revolving Lender (including Swing Line
Lender) its Pro Rata Share of such payment.
(d) Revolving Lenders' Obligations. Anything
contained herein to the contrary
notwithstanding, each Revolving Lender's
obligation to make Revolving Loans for the
purpose of repaying any Refunded Swing Line
Loans pursuant to subsection 2.1A(iii)(b) and
each Revolving Lender's obligation to purchase
an assignment of any unpaid Swing Line Loans
pursuant to the immediately preceding paragraph
shall be absolute and unconditional and shall
not be affected by any circumstance, including
(1) any set-off, counterclaim, recoupment,
defense or other right which such Revolving
Lender may have against Swing Line Lender,
Borrower or any other Person for any reason
whatsoever; (2) the occurrence or continuation
of an Event of Default or a Potential Event of
Default; (3) any adverse change in the business,
operations, properties, assets, condition
(financial or otherwise) or prospects of Company
or any of its Subsidiaries; (4) any breach of
this Agreement or any other Loan Document by any
party thereto; or (5) any other circumstance,
happening or event whatsoever, whether or not
similar to any of the foregoing; provided that
such obligations of each Revolving Lender are
subject to the condition that (x) Swing Line
Lender believed in good faith that all
conditions under Section 4 to the making of the
applicable Refunded Swing Line Loans or other
unpaid Swing Line Loans, as the case may be,
were satisfied at the time such Refunded Swing
Line Loans or unpaid Swing Line Loans were made
or (y) the satisfaction of any such condition
not satisfied had been waived in accordance with
subsection 10.6 prior to or at the time such
36
Refunded Swing Line Loans or other unpaid Swing
Line Loans were made.
B. Borrowing Mechanics. Term Loans or Revolving Loans made
on any Funding Date (other than Revolving Loans made pursuant to a request by
Swing Line Lender pursuant to subsection 2.1A(iii) or Revolving Loans made
pursuant to subsection 3.3B) shall be in an aggregate minimum amount of
$3,000,000 and multiples of $1,000,000 in excess of that amount. Term Loans or
Revolving Loans made on any Funding Date as Eurodollar Rate Loans with a
particular Interest Period shall be in an aggregate minimum amount of $5,000,000
and multiples of $1,000,000 in excess of that amount. Swing Line Loans made on
any Funding Date shall be in an aggregate minimum amount of $500,000 and
multiples of $100,000 in excess of that amount. Whenever Borrower desires that
Lenders make Term Loans or Revolving Loans it shall deliver to Administrative
Agent a duly executed Notice of Borrowing no later than 12:00 Noon (New York
City time) at least three Business Days in advance of the proposed Funding Date
(in the case of a Eurodollar Rate Loan) or at least one Business Day in advance
of the proposed Funding Date (in the case of a Base Rate Loan). Whenever
Borrower desires that Swing Line Lender make a Swing Line Loan, it shall deliver
to Swing Line Lender, with a copy to Administrative Agent a duly executed Notice
of Borrowing no later than 12:00 Noon (New York City time) on the proposed
Funding Date. Term Loans and Revolving Loans may be continued as or converted
into Base Rate Loans and Eurodollar Rate Loans in the manner provided in
subsection 2.2D. In lieu of delivering a Notice of Borrowing, Borrower may give
Administrative Agent telephonic notice by the required time of any proposed
borrowing under this subsection 2.1B; provided that such notice shall be
promptly confirmed in writing by delivery of a duly executed Notice of Borrowing
to Administrative Agent on or before the applicable Funding Date.
Neither Administrative Agent nor any Lender shall incur any
liability to Borrower in acting upon any telephonic notice referred to above
that Administrative Agent believes in good faith to have been given by an
Officer or other person authorized to borrow on behalf of Borrower or for
otherwise acting in good faith under this subsection 2.1B or under subsection
2.2D, and upon funding of Loans by Lenders, and upon conversion or continuation
of the applicable basis for determining the interest rate with respect to any
Loans pursuant to subsection 2.2D, in each case in accordance with this
Agreement, pursuant to any such telephonic notice Borrower shall have effected
Loans or a conversion or continuation, as the case may be, hereunder.
Borrower shall notify Administrative Agent prior to the funding
of any Loans in the event that any of the matters to which Borrower is required
to certify in the applicable Notice of Borrowing is no longer true and correct
as of the applicable Funding Date, and the acceptance by Borrower of the
proceeds of any Loans shall constitute a re-certification by Borrower, as of the
applicable Funding Date, as to the matters to which Borrower is required to
certify in the applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G,
a Notice of Borrowing for, or a Notice of Conversion/Continuation for conversion
to, or continuation of, a Eurodollar Rate Loan (or telephonic notice in lieu
thereof) shall be irrevocable, and Borrower
37
shall be bound to make a borrowing or to effect a conversion or continuation in
accordance therewith.
C. Disbursement of Funds. All Term Loans and Revolving
Loans shall be made by Lenders simultaneously and proportionately to their
respective Pro Rata Shares, it being understood that neither Administrative
Agent nor any Lender shall be responsible for any default by any other Lender in
that other Lender's obligation to make a Loan requested hereunder nor shall the
Commitment of any Lender to make the particular type of Loan requested be
increased or decreased as a result of a default by any other Lender in that
other Lender's obligation to make a Loan requested hereunder. Promptly after
receipt by Administrative Agent of a Notice of Borrowing pursuant to subsection
2.1B (or telephonic notice in lieu thereof), Administrative Agent shall notify
each Lender for that type of Loan of the proposed borrowing. Each such Lender
shall make the amount of its Loan available to Administrative Agent not later
than 2:00 P.M. (New York City time) on the applicable Funding Date, in same day
funds in Dollars, at the Funding and Payment Office. Except as provided in
subsection 2.1A(iii) or subsection 3.3B with respect to Revolving Loans used to
repay Refunded Swing Line Loans or to reimburse any Issuing Lender for the
amount of a drawing under a Letter of Credit issued by it and with respect to
any Swing Line Loans, upon satisfaction or waiver of the conditions precedent
specified in subsections 4.1 (in the case of Loans made on the Closing Date) and
4.2 (in the case of all Loans), Administrative Agent shall make the proceeds of
such Loans available to Borrower on the applicable Funding Date in same day
funds in Dollars equal to the proceeds of all such Loans received by
Administrative Agent from Lenders. In the case of Swing Line Loans, upon
satisfaction or waiver of the conditions precedent specified in subsection 4.2,
Swing Line Lender shall make the amount of its Swing Line Loan available to
Borrower not later than 2:00 P.M. (New York City time) on the applicable Funding
Date, in same day funds in Dollars and pursuant to the instructions in the
Notice of Borrowing for such Swing Line Loan.
Unless Administrative Agent shall have been notified by any
Lender prior to a Funding Date for any Loans that such Lender does not intend to
make available to Administrative Agent the amount of such Lender's Loan
requested on such Funding Date, Administrative Agent may assume that such Lender
has made such amount available to Administrative Agent on such Funding Date and
Administrative Agent may, in its sole discretion, but shall not be obligated to,
make available to Borrower a corresponding amount on such Funding Date. If such
corresponding amount is not in fact made available to Administrative Agent by
such Lender, Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest thereon,
for each day from such Funding Date until the date such amount is paid to
Administrative Agent, at the customary rate set by Administrative Agent for the
correction of errors among banks for three Business Days and thereafter at the
Base Rate. If such Lender does not pay such corresponding amount forthwith upon
Administrative Agent's demand therefor, Administrative Agent shall promptly
notify Borrower and Borrower shall immediately pay such corresponding amount to
Administrative Agent together with interest thereon, for each day from such
Funding Date until the date such amount is paid to Administrative Agent, at the
rate payable under this Agreement for Base Rate Loans. Nothing in this
subsection 2.1C shall be deemed to relieve any Lender from its obligation to
fulfill its Commitments hereunder or to prejudice any rights that Borrower
38
may have against any Lender as a result of any default by such Lender hereunder.
D. The Register. Administrative Agent, acting for these
purposes solely as an agent of Borrower (it being acknowledged that
Administrative Agent, in such capacity, and its officers, directors, employees,
agent and affiliates shall constitute Indemnitees under subsection 10.3), shall
maintain (and make available for inspection by Borrower and Lenders upon
reasonable prior notice at reasonable times) at its address referred to in
subsection 10.8 a register for the recordation of, and shall record, the names
and addresses of Lenders and the Term Loan Commitment, Revolving Loan
Commitment, Swing Line Loan Commitment, Term Loan, Revolving Loans and Swing
Line Loans of each Lender from time to time (the "Register"). Borrower,
Administrative Agent and Lenders shall deem and treat the Persons listed as
Lenders in the Register as the holders and owners of the corresponding
Commitments and Loans listed therein for all purposes hereof; all amounts owed
with respect to any Commitment or Loan shall be owed to the Lender listed in the
Register as the owner thereof; and any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is listed in the Register as a Lender shall be conclusive and binding
on any subsequent holder, assignee or transferee of the corresponding
Commitments or Loans. Each Lender shall record on its internal records (and make
available for inspection by Administrative Agent upon reasonable prior notice)
the amount of its Loans and Commitments and each payment in respect hereof, and
any such recordation shall be conclusive and binding on Borrower, absent
manifest error, subject to the entries in the Register, which shall, absent
manifest error, govern in the event of any inconsistency with any Lender's
records. Failure to make any recordation in the Register or in any Lender's
records, or any error in such recordation, shall not affect any Loans or
Commitments or any Obligations in respect of any Loans.
E. Optional Notes. If so requested by any Lender by written
notice to Borrower at least two Business Days prior to the Closing Date or at
any time thereafter, Borrower shall execute and deliver to such Lender (and/or,
if applicable and if so specified in such notice, to any Person who is an
assignee of such Lender pursuant to subsection 10.1) on the Closing Date (or, if
such notice is delivered after the Closing Date, promptly after Borrower's
receipt of such notice) a promissory note or promissory notes to evidence such
Lender's Term Loan, Revolving Loans or Swing Line Loans, substantially in the
form of Exhibit IV, Exhibit V, or Exhibit VI annexed hereto, respectively, with
appropriate insertions.
2.2 INTEREST ON THE LOANS.
A. Rate of Interest. Subject to the provisions of
subsections 2.6 and 2.7, each Term Loan and each Revolving Loan shall bear
interest on the unpaid principal amount thereof from the date made through
maturity (whether by acceleration or otherwise) at a rate determined by
reference to the Base Rate or the Adjusted Eurodollar Rate. Subject to the
provisions of subsection 2.7, each Swing Line Loan shall bear interest on the
unpaid principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to the Base Rate.
The applicable basis for determining the rate of interest with respect to any
Term Loan or any Revolving Loan shall be selected by Borrower initially at the
time a Notice of Borrowing is given with respect to such Loan pursuant to
subsection 2.1B (subject to the last sentence of subsection 2.1B), and the basis
for determining
39
the interest rate with respect to any Term Loan or any Revolving Loan may be
changed from time to time pursuant to subsection 2.2D (subject to the last
sentence of subsection 2.1B). If on any day a Term Loan or Revolving Loan is
outstanding with respect to which notice has not been delivered to
Administrative Agent in accordance with the terms of this Agreement specifying
the applicable basis for determining the rate of interest, then for that day
that Loan shall bear interest determined by reference to the Base Rate.
(i) Subject to the provisions of subsections 2.2E, 2.2G and
2.7, the Term Loans shall bear interest through maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base
Rate plus 3.5% per annum; or
(b) if a Eurodollar Rate Loan, then at the sum of
the Adjusted Eurodollar Rate plus 4.5% per annum.
(ii) Subject to the provisions of subsections 2.2E, 2.2G and
2.7, the Revolving Loans shall bear interest through maturity as
follows:
(a) if a Base Rate Loan, then at the sum of the Base
Rate plus the applicable Base Rate Margin set forth in the table
below opposite the Consolidated Leverage Ratio for the
four-Fiscal Quarter period for which the applicable Pricing
Certificate has been delivered pursuant to subsection 6.1(iv);
or
(b) if a Eurodollar Rate Loan, then at the sum of
the Adjusted Eurodollar Rate plus the applicable Eurodollar Rate
Margin set forth in the table below opposite the Consolidated
Leverage Ratio for the four-Fiscal Quarter period for which the
applicable Pricing Certificate has been delivered pursuant to
subsection 6.1(iv):
Consolidated Eurodollar Rate Base
Leverage Ratio Margin Rate Margin
- ----------------------------------------------------------------------
Greater than 3.5:1.00 4.25% 3.25%
or equal to
- ----------------------------------------------------------------------
Greater than 3.0:1.00 4.00% 3.00%
or equal to 3.5:1.00
but less than
- ----------------------------------------------------------------------
Greater than 2.5:1.00 3.75% 2.75%
or equal to 3.0:1.00
but less than
- ----------------------------------------------------------------------
40
Greater than 2.0:1.00 3.50% 2.50%
or equal to 2.5:1.00
but less than
- ----------------------------------------------------------------------
Less than 2.0:1.00 3.25% 2.25%
- ----------------------------------------------------------------------
provided that, until the delivery of the Pricing Certificate for the Fiscal
Quarter ending September 30, 2003, the applicable margin for the Revolving Loans
that are Eurodollar Rate Loans shall be 4.00% per annum and for Revolving Loans
that are Base Rate Loans shall be 3.00% per annum.
(iii) Upon delivery of the Pricing Certificate by Borrower to
Administrative Agent pursuant to subsection 6.1(iv), the Base Rate
Margin for Revolving Loan Commitments and the Eurodollar Rate Margin for
Revolving Loan Commitments shall automatically be adjusted in accordance
with such Pricing Certificate, such adjustment to become effective on
the next succeeding Business Day following the receipt by Administrative
Agent of such Pricing Certificate (subject to the provisions of the
foregoing clauses (i) and (ii)); provided that, if at any time a Pricing
Certificate is not delivered at the time required pursuant to subsection
6.1(iv), from the time such Pricing Certificate was required to be
delivered until delivery of such Pricing Certificate, the applicable
margins shall be the maximum percentage amount for the relevant Loan set
forth above.
(iv) Subject to the provisions of subsections 2.2E, 2.2G and 2.7, the
Swing Line Loans shall bear interest through maturity at the sum of the
Base Rate plus the applicable Base Rate Margin for Revolving Loans minus
the Commitment Fee Percentage.
B. Interest Periods. In connection with each Eurodollar
Rate Loan, Borrower may, pursuant to the applicable Notice of Borrowing or
Notice of Conversion/Continuation, as the case may be, select an interest period
(each an "Interest Period") to be applicable to such Loan, which Interest Period
shall be, at Borrower's option, either a one, two, three or six month period;
provided that:
(i) the initial Interest Period for any Eurodollar Rate Loan
shall commence on the Funding Date in respect of such Loan, in the case
of a Loan initially made as a Eurodollar Rate Loan, or on the date
specified in the applicable Notice of Conversion/Continuation, in the
case of a Loan converted to a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods
applicable to a Eurodollar Rate Loan continued as such pursuant to a
Notice of Conversion/Continuation, each successive Interest Period shall
commence on the day on which the next preceding Interest Period expires;
41
(iii) if an Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided that, if any Interest Period
would otherwise expire on a day that is not a Business Day but is a day
of the month after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding Business Day;
(iv) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (v) of this subsection 2.2B, end on the
last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the
Term Loans shall extend beyond April 30, 2009 and no Interest Period
with respect to any portion of the Revolving Loans shall extend beyond
the Revolving Loan Commitment Termination Date;
(vi) no Interest Period with respect to any type of Term
Loans shall extend beyond a date on which Borrower is required to make a
scheduled payment of principal of such type of Term Loans, unless the
sum of (a) the aggregate principal amount of such type of Term Loans
that are Base Rate Loans plus (b) the aggregate principal amount of such
type of Term Loans that are Eurodollar Rate Loans with Interest Periods
expiring on or before such date equals or exceeds the principal amount
required to be paid on such type of Term Loans on such date;
(vii) there shall be no more than 5 Interest Periods
outstanding at any time; and
(viii) in the event Borrower fails to specify an Interest
Period for any Eurodollar Rate Loan in the applicable Notice of
Borrowing or Notice of Conversion/Continuation, Borrower shall be deemed
to have selected an Interest Period of one month.
C. Interest Payments. Subject to the provisions of
subsection 2.2E, interest on each Loan shall be payable in arrears on and to
each Interest Payment Date applicable to that Loan, upon any prepayment of that
Loan (to the extent accrued on the amount being prepaid) and at maturity
(including final maturity).
D. Conversion or Continuation. Subject to the provisions of
subsection 2.6, Borrower shall have the option (i) to convert at any time all or
any part of its outstanding Term Loans or Revolving Loans equal to $3,000,000
and multiples of $1,000,000 in excess of that amount from Loans bearing interest
at a rate determined by reference to one basis to Loans bearing interest at a
rate determined by reference to an alternative basis or (ii) upon the expiration
of any Interest Period applicable to a Eurodollar Rate Loan, to continue all or
any portion of such Loan equal to $5,000,000 and multiples of $1,000,000 in
excess of that amount as a Eurodollar Rate Loan; provided, however, that a
Eurodollar Rate Loan may only be converted into a Base Rate Loan on the
expiration date of an Interest Period applicable thereto.
Borrower shall deliver a duly executed Notice of
Conversion/Continuation to
42
Administrative Agent no later than 12:00 Noon (New York City time) at least one
Business Day in advance of the proposed conversion date (in the case of a
conversion to a Base Rate Loan) and at least three Business Days in advance of
the proposed conversion/continuation date (in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan). In lieu of delivering a Notice of
Conversion/Continuation, Borrower may give Administrative Agent telephonic
notice by the required time of any proposed conversion/continuation under this
subsection 2.2D; provided that such notice shall be promptly confirmed in
writing by delivery of a duly executed Notice of Conversion/Continuation to
Administrative Agent on or before the proposed conversion/continuation date.
Upon receipt of written or telephonic notice of any proposed
conversion/continuation under this subsection 2.2D, Administrative Agent shall
promptly notify each Lender of the Loan subject to the Notice of
Conversion/Continuation.
E. Default Rate. Upon the occurrence and during the
continuation of any Event of Default, the outstanding principal amount of all
Loans and, to the extent permitted by applicable law, any interest payments
thereon not paid when due and any fees and other amounts then due and payable
hereunder, shall thereafter bear interest (including post-petition interest in
any proceeding under the Bankruptcy Code or other applicable bankruptcy laws)
payable upon demand at a rate that is 2% per annum in excess of the interest
rate otherwise payable under this Agreement with respect to the applicable Loans
(or, in the case of any such fees and other amounts, at a rate which is 2% per
annum in excess of the interest rate otherwise payable under this Agreement for
Base Rate Loans); provided that, in the case of Eurodollar Rate Loans, upon the
expiration of the Interest Period in effect at the time any such increase in
interest rate is effective such Eurodollar Rate Loans shall thereupon become
Base Rate Loans and shall thereafter bear interest payable upon demand at a rate
which is 2% per annum in excess of the interest rate otherwise payable under
this Agreement for Base Rate Loans. Payment or acceptance of the increased rates
of interest provided for in this subsection 2.2E is not a permitted alternative
to timely payment and shall not constitute a waiver of any Event of Default or
otherwise prejudice or limit any rights or remedies of Administrative Agent or
any Lender.
F. Computation of Interest. Interest on the Loans shall be
computed on the basis of a 360-day year, in each case for the actual number of
days elapsed in the period during which it accrues. In computing interest on any
Loan, the date of the making of such Loan or the first day of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan being converted
from a Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan
to such Base Rate Loan, as the case may be, shall be included, and the date of
payment of such Loan or the expiration date of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being converted to a Eurodollar
Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate
Loan, as the case may be, shall be excluded; provided that if a Loan is repaid
on the same day on which it is made, one day's interest shall be paid on that
Loan.
G. Maximum Rate. Notwithstanding the foregoing provisions
of this subsection 2.2, in no event shall the rate of interest payable by
Borrower with respect to any Loan exceed the maximum rate of interest permitted
to be charged under applicable law.
43
2.3 FEES.
A. Commitment Fees. Borrower agrees to pay to
Administrative Agent, for distribution to each Revolving Lender in proportion to
that Lender's Pro Rata Share, commitment fees for the period from and including
the Closing Date to and excluding the Revolving Loan Commitment Termination Date
equal to the average of the daily excess of the Revolving Loan Commitments over
the sum of (i) the aggregate principal amount of outstanding Revolving Loans
(but not any outstanding Swing Line Loans) plus (ii) the Letter of Credit Usage
multiplied by 0.50% per annum, such commitment fees to be calculated on the
basis of a 360-day year and the actual number of days elapsed and to be payable
quarterly in arrears on the last Business Day of March, June, September and
December of each year, commencing on the first such date to occur after the
Closing Date, and on the Revolving Loan Commitment Termination Date.
B. Other Fees. Borrower agrees to pay to Administrative
Agent such fees in the amounts and at the times separately agreed upon between
Borrower and Administrative Agent.
2.4 REPAYMENTS, PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN
COMMITMENTS; GENERAL PROVISIONS REGARDING PAYMENTS; APPLICATION
OF PROCEEDS OF COLLATERAL AND PAYMENTS UNDER THE GUARANTIES.
A. Scheduled Payments of Term Loans.
(i) Scheduled Payments of Term Loans. Borrower shall make
principal payments on the Term Loans in installments on the dates and in
the amounts set forth below:
DATE SCHEDULED REPAYMENT
---- -------------------
June 30, 2003 $ 2,156,250
September 30, 2003 $ 2,156,250
December 31, 2003 $ 2,156,250
March 31, 2004 $ 2,156,250
June 30, 2004 $ 3,593,750
September 30, 2004 $ 3,593,750
December 31, 2004 $ 3,593,750
March 31, 2005 $ 3,593,750
June 30, 2005 $ 3,593,750
44
DATE SCHEDULED REPAYMENT
---- -------------------
September 30, 2005 $ 3,593,750
December 31, 2005 $ 3,593,750
March 31, 2006 $ 3,593,750
June 30, 2006 $ 4,312,500
September 30, 2006 $ 4,312,500
December 31, 2006 $ 4,312,500
March 31, 2007 $ 4,312,500
June 30, 2007 $ 5,750,000
September 30, 2007 $ 5,750,000
December 31, 2007 $ 5,750,000
March 31, 2008 $ 5,750,000
June 30, 2008 $ 9,343,750
September 30, 2008 $ 9,343,750
December 31, 2008 $ 9,343,750
April 30, 2009: $ 9,343,750
Total: $ 115,000,000
; provided that the scheduled installments of principal of the Term Loans set
forth above shall be reduced in connection with any voluntary or mandatory
prepayments of the Term Loans in accordance with subsection 2.4B(iv); and
provided, further that the Term Loans and all other amounts owed hereunder with
respect to the Term Loans shall be paid in full no later than April 30, 2009,
and the final installment payable by Borrower in respect of the Term Loans on
such date shall be in an amount, if such amount is different from that specified
above, sufficient to repay all amounts owing by Borrower under this Agreement
with respect to the Term Loans.
B. Prepayments and Reductions in Revolving Loan
Commitments.
(i) Voluntary Prepayments. Borrower may, upon written or
telephonic notice to Administrative Agent on or prior to 12:00 Noon (New
York City time) on the date of
45
prepayment, which notice, if telephonic, shall be promptly confirmed in
writing, at any time and from time to time prepay any Swing Line Loan on
any Business Day in whole or in part in an aggregate minimum amount of
$500,000 and multiples of $100,000 in excess of that amount. Borrower
may, upon not less than one Business Day's prior written or telephonic
notice, in the case of Base Rate Loans, and three Business Days' prior
written or telephonic notice, in the case of Eurodollar Rate Loans, in
each case given to Administrative Agent by 12:00 Noon (New York City
time) on the date required and, if given by telephone, promptly
confirmed in writing to Administrative Agent who shall promptly notify
each Lender for the Loans to be prepaid), at any time and from time to
time prepay any Term Loans or Revolving Loans on any Business Day in
whole or in part in an aggregate minimum amount of (a) for Base Rate
Loan, $3,000,000 and multiples of $1,000,000 in excess of that amount
and (b) for Eurodollar Rate Loans, $5,000,000 and multiples of
$1,000,000 in excess of that amount; provided, however, that a
Eurodollar Rate Loan may only be prepaid on the expiration of the
Interest Period applicable thereto. Notice of prepayment having been
given as aforesaid shall be irrevocable and the principal amount of the
Loans specified in such notice shall become due and payable on the
prepayment date specified therein. Any such voluntary prepayment shall
be applied as specified in subsection 2.4B(iv).
(ii) Voluntary Reductions of Revolving Loan Commitments.
Borrower may, upon not less than three Business Days' prior written or
telephonic notice confirmed in writing to Administrative Agent who shall
promptly notify each Revolving Lender of such notice, at any time and
from time to time terminate in whole or permanently reduce in part,
without premium or penalty, the Revolving Loan Commitments in an amount
up to the amount by which the Revolving Loan Commitments exceed the
Total Utilization of Revolving Loan Commitments at the time of such
proposed termination or reduction; provided that any such partial
reduction of the Revolving Loan Commitments shall be in an aggregate
minimum amount of $5,000,000 and multiples of $5,000,000 in excess of
that amount. Borrower's notice to Administrative Agent shall designate
the date (which shall be a Business Day) of such termination or
reduction and the amount of any partial reduction, and such termination
or reduction of the Revolving Loan Commitments shall be effective on the
date specified in Borrower's notice and shall reduce the Revolving Loan
Commitment of each Revolving Lender proportionately to its Pro Rata
Share. Any such voluntary reduction of the Revolving Loan Commitments
shall be applied as specified in subsection 2.4B(iv).
(iii) Mandatory Prepayments and Mandatory Reductions of
Revolving Loan Commitments. The Loans shall be prepaid and/or the
Revolving Loan Commitments shall be permanently reduced in the amounts
and under the circumstances set forth below, all such prepayments and/or
reductions to be applied as set forth below or as more specifically
provided in subsection 2.4B(iv):
(a) Prepayments and Reductions From Net Asset Sale
Proceeds. No later than the date of receipt by Company or any of
its Subsidiaries of any Net Asset Sale Proceeds in respect of
any Asset Sale, Borrower shall either (1) prepay the Loans
and/or the Revolving Loan Commitments shall be permanently
reduced
46
in an aggregate amount equal to such Net Asset Sale Proceeds or
(2) so long as no Potential Event of Default or Event of Default
shall have occurred and be continuing and to the extent that
aggregate Net Asset Sale Proceeds from the Closing Date through
the date of determination do not exceed $2,500,000, deliver to
Administrative Agent an Officer's Certificate setting forth (x)
that portion of such Net Asset Sale Proceeds that Borrower or
such Subsidiary intends to reinvest in equipment or other
productive assets of the general type used in the business of
Company and its Subsidiaries within 180 days of such date of
receipt and (y) the proposed use of such portion of the Net
Asset Sale Proceeds and such other information with respect to
such reinvestment as Administrative Agent may reasonably
request, and Company shall, or shall cause one or more of its
Subsidiaries to, promptly and diligently apply such portion to
such reinvestment purposes; provided, however, that, pending
such reinvestment, such portion of the Net Asset Sale Proceeds
shall be applied to prepay outstanding Revolving Loans (without
a reduction in Revolving Loan Commitments) to the full extent
thereof. In addition, Borrower shall, no later than 180 days
after receipt of such Net Asset Sale Proceeds that have not
theretofore been applied to the Obligations or that have not
been so reinvested as provided above, make an additional
prepayment of the Loans (and/or the Revolving Loan Commitments
shall be permanently reduced) in the full amount of all such Net
Asset Sale Proceeds.
(b) Prepayments and Reductions from Net
Insurance/Condemnation Proceeds. No later than the first
Business Day following the date of receipt by Administrative
Agent or by Company or any of its Subsidiaries of any Net
Insurance/Condemnation Proceeds that are required to be applied
to prepay the Loans and/or reduce the Revolving Loan Commitments
pursuant to the provisions of subsection 6.4C, Borrower shall
prepay the Loans and/or the Revolving Loan Commitments shall be
permanently reduced in an aggregate amount equal to the amount
of such Net Insurance/Condemnation Proceeds.
(c) Prepayments and Reductions Due to Issuance of
Equity Securities. On the date of receipt of the Net Securities
Proceeds from the issuance of any Capital Stock of Company or
any of its Subsidiaries (other than Net Securities Proceeds in
an aggregate amount not to exceed $5,000,000 in any Fiscal Year)
or from any capital contribution to Company by any holder of
Capital Stock thereof after the Closing Date, Borrower shall
prepay the Loans and/or the Revolving Loan Commitments shall be
permanently reduced in an aggregate amount equal to such Net
Securities Proceeds.
(d) Prepayments and Reductions Due to Issuance of
Indebtedness. On the date of receipt of the Net Securities
Proceeds from the issuance of any Indebtedness of Company or any
of its Subsidiaries after the Closing Date, other than
Indebtedness permitted pursuant to subsection 7.1 (except for
Indebtedness permitted by subsection 7.1(vii)(y)), Borrower
shall prepay the Loans and/or the Revolving Loan Commitments
shall be permanently reduced in an aggregate amount equal to
such Net Securities Proceeds.
47
(e) Prepayments and Reductions from Consolidated
Excess Cash Flow. (1) In the event that there shall be
Consolidated Excess Cash Flow for any Fiscal Year (commencing
with Fiscal Year 2003), Borrower shall, no later than 90 days
after the end of such Fiscal Year, prepay the Loans and/or the
Revolving Loan Commitments shall be permanently reduced in an
aggregate amount equal to 75% of such Consolidated Excess Cash
Flow; provided, that so long as no Event of Default or Potential
Event of Default has occurred and is continuing, Borrower shall
prepay the Loans and/or the Revolving Loan Commitments shall be
permanently reduced in an aggregate amount equal to 50% of such
Consolidated Excess Cash Flow, if the Consolidated Leverage
Ratio at the last day of such Fiscal Year is 2.00:1:00 or less.
(2) Notwithstanding the foregoing, so long as no Event of
Default or Potential Event of Default shall have occurred and be
continuing either on the last day of such Fiscal Year or on the
date such payment would be made and Consolidated Excess Cash
Flow for such Fiscal Year (commencing with Fiscal Year 2003)
equals or exceeds $30,000,000, Borrower may retain up to
$5,000,000 of such Consolidated Excess Cash Flow (such retained
amount, the "Retained Excess Cash Flow") to make acquisitions
permitted under subsection 7.3(vi) and to enter into marketing,
joint venture or manufacturing arrangements; provided, that, any
such Retained Excess Cash Flow not used as permitted above by
Borrower by the end of the Fiscal Year immediately following the
date of determination, must be applied in accordance with
subsection 2.4B(iii)(e)(1).
(f) Prepayments and Reductions from Payment of the
Pledged Belgium Indebtedness. No later than the first Business
Day following the date of receipt by Borrower of any payment
under the Pledged Belgium Indebtedness, Borrower shall prepay
the Loans and/or the Revolving Loan Commitments shall be
permanently reduced in an aggregate amount equal to the amount
of such payment.
(g) Calculations of Net Proceeds Amounts; Additional
Prepayments and Reductions Based on Subsequent Calculations.
Concurrently with any prepayment of the Loans and/or reduction
of the Revolving Loan Commitments pursuant to subsections
2.4B(iii)(a)-(f), Borrower shall deliver to Administrative Agent
an Officer's Certificate demonstrating the calculation of the
amount of the applicable Net Asset Sale Proceeds, Net
Insurance/Condemnation Proceeds, Net Securities Proceeds,
Consolidated Excess Cash Flow or pursuant to payments made under
the Pledged Belgium Indebtedness, as the case may be, that gave
rise to such prepayment and/or reduction. In the event that
Borrower shall subsequently determine that the actual amount was
greater than the amount set forth in such Officer's Certificate,
Borrower shall promptly make an additional prepayment of the
Loans (and/or, if applicable, the Revolving Loan Commitments
shall be permanently reduced) in an amount equal to the amount
of such excess, and Borrower shall concurrently therewith
deliver to Administrative Agent an
48
Officer's Certificate demonstrating the derivation of the
additional amount resulting in such excess.
(h) Prepayments Due to Reductions or Restrictions of
Revolving Loan Commitments. Borrower shall from time to time
prepay first the Swing Line Loans and second the Revolving Loans
to the extent necessary (1) so that the Total Utilization of
Revolving Loan Commitments shall not at any time exceed the
Revolving Loan Commitments then in effect.
(iv) Application of Prepayments and Reductions of Revolving
Loan Commitments.
(a) Application of Voluntary Prepayments by Type of
Loans and Order of Maturity. Any voluntary prepayments pursuant
to subsection 2.4B(i) shall be applied as specified by Borrower
in the applicable notice of prepayment; provided that in the
event Borrower fails to specify the Loans to which any such
prepayment shall be applied, such prepayment shall be applied
first to repay outstanding Swing Line Loans to the full extent
thereof, second to repay outstanding Revolving Loans to the full
extent thereof, and third to repay outstanding Term Loans to the
full extent thereof. Any voluntary prepayments of the Term Loans
pursuant to subsection 2.4B(i) shall be applied to reduce the
scheduled installments of principal of the Term Loans set forth
in subsections 2.4A(i) on a pro rata basis (in accordance with
the respective outstanding principal amounts thereof) to each
remaining scheduled installment of principal of the Term Loans,
as set forth in subsection 2.4A(i).
(b) Application of Mandatory Prepayments by Type of
Loans. Except as provided in subsection 2.4D, any amount
required to be applied as a mandatory prepayment of the Loans
and/or a reduction of the Revolving Loan Commitments pursuant to
subsections 2.4B(iii)(a)-(f) shall be applied first to prepay
the Term Loans to the full extent thereof, second, to the extent
of any remaining portion of such amount, to prepay the Swing
Line Loans to the full extent thereof and to permanently reduce
the Revolving Loan Commitments by the amount of such prepayment,
third, to the extent of any remaining portion of such amount, to
repay the Revolving Loans to the full extent thereof and to
further permanently reduce the Revolving Loan Commitments by the
amount of such prepayment and fourth, to the extent of any
remaining portion of such amount, to further permanently reduce
the Revolving Loan Commitments to the full extent thereof. Any
mandatory reduction of Revolving Commitments pursuant to this
subsection 2.4B shall be in proportion to each Revolving
Lender's Pro Rata Share.
(c) Application of Mandatory Prepayments of Term
Loans to Scheduled Installments of Principal Thereof/Waiver of
Term Loan Payments. Any mandatory prepayments of the Term Loans
pursuant to subsection 2.4B(iii), subject to the last sentence
of subsection 2.4B(iv)(c), shall be applied on a pro rata basis
(in accordance with the respective outstanding principal amounts
thereof) to
49
each scheduled installment of principal of the Term Loans set
forth in subsection 2.4A(i) that is unpaid at the time of such
prepayment. Notwithstanding the foregoing, in the case of any
mandatory prepayment of the Term Loans pursuant to subsection
2.4B(iii), the Lenders of the Term Loans may waive the right to
receive the amount of such mandatory prepayment of the Term
Loans. If any Lender or Lenders waive the right to receive the
amount of such mandatory prepayment, all of the amount that
otherwise would have been applied to mandatorily prepay the Term
Loans of such Lender or Lenders shall be retained by Borrower.
(d) Application of Prepayments to Base Rate Loans
and Eurodollar Rate Loans. Considering Term Loans and Revolving
Loans being prepaid separately, any prepayment thereof (a) in
respect of Revolving Loans, shall be applied first to Base Rate
Loans to the full extent thereof before application to
Eurodollar Rate Loans and (b) in respect of Term Loans, shall be
applied on a pro rata basis among all outstanding Loans, in each
case in a manner that minimizes the amount of any payments
required to be made by Borrower pursuant to subsection 2.6D.
C. General Provisions Regarding Payments.
(i) Manner and Time of Payment. All payments by Borrower of
principal, interest, fees and other Obligations shall be made in Dollars
in same day funds, without defense, setoff or counterclaim, free of any
restriction or condition, and delivered to Administrative Agent not
later than 12:00 Noon (New York City time) on the date due at the
Funding and Payment Office for the account of Lenders; funds received by
Administrative Agent after that time on such due date shall be deemed to
have been paid by Company on the next succeeding Business Day. Borrower
hereby authorizes Administrative Agent to charge any accounts
Administrative Agent may have in Borrower's name in order to cause
timely payment to be made to Administrative Agent of all principal,
interest, fees and expenses due hereunder (subject to sufficient funds
being available in its accounts for that purpose).
(ii) Application of Payments to Principal and Interest. All
payments in respect of the principal amount of any Loan shall include
payment of accrued interest on the principal amount being repaid or
prepaid, and all such payments (and, in any event, any payments in
respect of any Loan on the Interest Payment Date with respect to such
Loan) shall be applied to the payment of interest before application to
principal.
(iii) Apportionment of Payments. Aggregate principal and
interest payments (a) in respect of Revolving Loans, shall be
apportioned among all outstanding Loans to which such payments relate,
proportionately to Lenders' respective Pro Rata Shares and (b) in
respect of Term Loans, shall be apportioned among all outstanding Loans
to which such payments relate, proportionately to Lenders' respective
Pro Rata Shares after giving effect to any waiver of any Lender pursuant
to subsection 2.1B(iv)(c). Administrative Agent shall promptly
distribute to each Lender its Pro Rata Share of all such payments
50
received by Administrative Agent and the commitment fees of such Lender,
if any, when received by Administrative Agent pursuant to subsection
2.3. Notwithstanding the foregoing provisions of this subsection
2.4C(iii), if, pursuant to the provisions of subsection 2.6C, any Notice
of Conversion/Continuation is withdrawn as to any Affected Lender or if
any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share
of any Eurodollar Rate Loans, Administrative Agent shall give effect
thereto in apportioning payments received thereafter.
(iv) Payments on Business Days. Whenever any payment to be
made hereunder shall be stated to be due on a day that is not a Business
Day, such payment shall be made on the preceding Business Day.
(v) Notation of Payment. Each Lender agrees that before
disposing of any Note held by it, or any part thereof (other than by
granting participations therein), that Lender will make a notation
thereon of all Loans evidenced by that Note and all principal payments
previously made thereon and of the date to which interest thereon has
been paid; provided that the failure to make (or any error in the making
of) a notation of any Loan made under such Note shall not limit or
otherwise affect the obligations of Company hereunder or under such Note
with respect to any Loan or any payments of principal or interest on
such Note.
D. Application of Proceeds of Collateral and Payments after
Event of Default.
Upon termination of the Revolving Loan Commitments or upon the
occurrence and during the continuation of an Event of Default, if requested by
Requisite Lenders (a) all payments received on account of the Obligations,
whether from Borrower, from any Guarantor or otherwise, shall be applied by
Administrative Agent against the Obligations and (b) all proceeds received by
Administrative Agent in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral under any Collateral Document
shall be held by Administrative Agent as Collateral for, and/or (then or at any
time thereafter) applied in full or in part by Administrative Agent against, the
applicable Secured Obligations (as defined in such Collateral Document), in each
case in the following order of priority:
(i) to the payment of all costs and expenses of such sale,
collection or other realization, all other expenses, liabilities and
advances made or incurred by Administrative Agent in connection
therewith, and all amounts for which Administrative Agent is entitled to
compensation (including the fees described in subsection 2.3),
reimbursement and indemnification under any Loan Document and all
advances made by Administrative Agent thereunder for the account of the
applicable Loan Party, and to the payment of all costs and expenses paid
or incurred by Administrative Agent in connection with the Loan
Documents, all in accordance with subsections 9.4, 10.2 and 10.3 and the
other terms of this Agreement and the Loan Documents;
(ii) thereafter, to the payment of all other Obligations for
the ratable benefit of the holders thereof (subject to the provisions of
subsection 2.4C(ii) hereof); and
51
(iii) thereafter, to the payment to or upon the order of such
Loan Party or to whosoever may be lawfully entitled to receive the same
or as a court of competent jurisdiction may direct.
2.5 USE OF PROCEEDS.
A. Term Loans. The proceeds of the Term Loans shall be
applied by Borrower (i) to refinance a portion of the existing Indebtedness
outstanding under the Existing Credit Agreement and (ii) to pay Transaction
Costs.
B. Revolving Loans; Swing Line Loans. The proceeds of any
Revolving Loans and any Swing Line Loans shall be applied by Borrower for
working capital and other general corporate purposes of Company and its
Subsidiaries, which may include the making of intercompany loans to any of
Borrower's wholly-owned Subsidiaries, in accordance with subsection 7.1(iv), for
their own general corporate purposes.
C. Margin Regulations. No portion of the proceeds of any
borrowing under this Agreement shall be used by Company or any of its
Subsidiaries in any manner that might cause the borrowing or the application of
such proceeds to violate Regulation U, Regulation T or Regulation X of the Board
of Governors of the Federal Reserve System or any other regulation of such Board
or to violate the Exchange Act, in each case as in effect on the date or dates
of such borrowing and such use of proceeds.
2.6 SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS.
Notwithstanding any other provision of this Agreement to the
contrary, the following provisions shall govern with respect to Eurodollar Rate
Loans as to the matters covered:
A. Determination of Applicable Interest Rate. As soon as
practicable after 10:00 A.M. (New York City time) on each Interest Rate
Determination Date, Administrative Agent shall determine (which determination
shall, absent manifest error, be conclusive and binding upon all parties) the
interest rate that shall apply to the Eurodollar Rate Loans for which an
interest rate is then being determined for the applicable Interest Period and
shall promptly give notice thereof (in writing or by telephone confirmed in
writing) to Company and each Lender.
B. Inability to Determine Applicable Interest Rate. In the
event that Administrative Agent shall have determined (which determination shall
be conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date that by reason of circumstances affecting the London
interbank market adequate and fair means do not exist for ascertaining the
interest rate applicable to such Loans on the basis provided for in the
definition of Adjusted Eurodollar Rate, Administrative Agent shall on such date
give notice (by telefacsimile or by telephone confirmed in writing) to Borrower
and each Lender of such determination, whereupon (i) no Loans may be made as, or
converted to, Eurodollar Rate Loans until such time as Administrative Agent
notifies Borrower and Lenders that the circumstances
52
giving rise to such notice no longer exist and (ii) any Notice of Borrowing or
Notice of Conversion/Continuation given by Borrower with respect to the Loans in
respect of which such determination was made shall be deemed to be for a Base
Rate Loan.
C. Illegality or Impracticability of Eurodollar Rate Loans.
In the event that on any date any Lender shall have determined (which
determination shall be conclusive and binding upon all parties hereto but shall
be made only after consultation with Borrower and Administrative Agent) that the
making, maintaining or continuation of its Eurodollar Rate Loans (i) has become
unlawful as a result of compliance by such Lender in good faith with any law,
treaty, governmental rule, regulation, guideline or order (or would conflict
with any such treaty, governmental rule, regulation, guideline or order not
having the force of law even though the failure to comply therewith would not be
unlawful) or (ii) has become impracticable, or would cause such Lender material
hardship, as a result of contingencies occurring after the date of this
Agreement which materially and adversely affect the London interbank market or
the position of such Lender in that market, then, and in any such event, such
Lender shall be an "Affected Lender" and it shall on that day give notice (by
telefacsimile or by telephone confirmed in writing) to Company and
Administrative Agent of such determination (which notice Administrative Agent
shall promptly transmit to each other Lender). Thereafter (a) the obligation of
the Affected Lender to make Loans as, or to convert Loans to, Eurodollar Rate
Loans shall be suspended until such notice shall be withdrawn by the Affected
Lender, (b) to the extent such determination by the Affected Lender relates to a
Eurodollar Rate Loan then being requested by Borrower pursuant to a Notice of
Borrowing or a Notice of Conversion/Continuation, the Affected Lender shall make
such Loan as (or convert such Loan to, as the case may be) a Base Rate Loan, (c)
the Affected Lender's obligation to maintain its outstanding Eurodollar Rate
Loans (the "Affected Loans") shall be terminated at the earlier to occur of the
expiration of the Interest Period then in effect with respect to the Affected
Loans or when required by law, and (d) the Affected Loans shall automatically
convert into Base Rate Loans on the date of such termination. Notwithstanding
the foregoing, to the extent a determination by an Affected Lender as described
above relates to a Eurodollar Rate Loan then being requested by Borrower
pursuant to a Notice of Borrowing or a Notice of Conversion/Continuation,
Borrower shall have the option, subject to the provisions of subsection 2.6D, to
rescind such Notice of Borrowing or Notice of Conversion/Continuation as to all
Lenders by giving notice (by telefacsimile or by telephone confirmed in writing)
to Administrative Agent of such rescission on the date on which the Affected
Lender gives notice of its determination as described above (which notice of
rescission Administrative Agent shall promptly transmit to each other Lender).
Except as provided in the immediately preceding sentence, nothing in this
subsection 2.6C shall affect the obligation of any Lender other than an Affected
Lender to make or maintain Loans as, or to convert Loans to, Eurodollar Rate
Loans in accordance with the terms of this Agreement.
D. Compensation For Breakage or Non-Commencement of
Interest Periods. Borrower shall compensate each Lender, upon written request by
that Lender pursuant to subsection 2.8, for all reasonable losses, expenses and
liabilities (including any interest paid by that Lender to lenders of funds
borrowed by it to make or carry its Eurodollar Rate Loans and any loss, expense
or liability sustained by that Lender in connection with the liquidation or
53
re-employment of such funds) which that Lender may sustain: (i) if for any
reason (other than a default by that Lender) a borrowing of any Eurodollar Rate
Loan does not occur on a date specified therefor in a Notice of Borrowing or a
telephonic request therefor, or a conversion to or continuation of any
Eurodollar Rate Loan does not occur on a date specified therefor in a Notice of
Conversion/Continuation or a telephonic request therefor, (ii) if any prepayment
or other principal payment or any conversion of any of its Eurodollar Rate Loans
(including any prepayment or conversion occasioned by the circumstances
described in subsection 2.6C) occurs on a date prior to the last day of an
Interest Period applicable to that Loan, (iii) if any prepayment of any of its
Eurodollar Rate Loans is not made on any date specified in a notice of
prepayment given by Borrower, or (iv) as a consequence of any other default by
Borrower in the repayment of its Eurodollar Rate Loans when required by the
terms of this Agreement.
E. Booking of Eurodollar Rate Loans. Any Lender may make,
carry or transfer Eurodollar Rate Loans at, to, or for the account of any of its
branch offices or the office of an Affiliate of that Lender.
F. Assumptions Concerning Funding of Eurodollar Rate Loans.
Calculation of all amounts payable to a Lender under this subsection 2.6 and
under subsection 2.7A shall be made as though that Lender had funded each of its
Eurodollar Rate Loans through the purchase of a Eurodollar deposit bearing
interest at the rate obtained pursuant to clause (i) of the definition of
Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar
Rate Loan and having a maturity comparable to the relevant Interest Period,
whether or not its Eurodollar Rate Loans had been funded in such manner.
G. Eurodollar Rate Loans After Default. After the
occurrence of and during the continuation of a Potential Event of Default or an
Event of Default, (i) Borrower may not have a Loan be made or maintained as, or
converted to, a Eurodollar Rate Loan after the expiration of any Interest Period
then in effect for that Loan and (ii) subject to the provisions of subsection
2.6D, any Notice of Borrowing or Notice of Conversion/Continuation given by
Borrower with respect to a requested borrowing or conversion/continuation that
has not yet occurred shall be deemed to be for a Base Rate Loan or, if the
conditions to making a Loan set forth in subsection 4.2 cannot then be
satisfied, to be rescinded by Borrower.
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. Compensation for Increased Costs. Subject to the
provisions of subsection 2.7B (which shall be controlling with respect to the
matters covered thereby), in the event that any Lender (including any Issuing
Lender) shall determine (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto) that any law, treaty
or governmental rule, regulation or order, or any change therein or in the
interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or other Government Authority, in each case that
becomes effective after the date hereof, or compliance by such Lender with any
guideline, request or directive issued or made after the date hereof by any
central bank or other Government Authority (whether or not having the force of
law):
54
(i) subjects such Lender to any additional Tax with respect
to this Agreement or any of its obligations hereunder (including with
respect to issuing or maintaining any Letters of Credit or purchasing or
maintaining any participations therein or maintaining any Commitment
hereunder) or any payments to such Lender of principal, interest, fees
or any other amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve,
special deposit, compulsory loan, insurance charge or similar
requirement against assets held by, or deposits or other liabilities in
or for the account of, or advances or loans by, or other credit extended
by, or any other acquisition of funds by, any office of such Lender
(other than any such reserve or other requirements with respect to
Eurodollar Rate Loans that are reflected in the definition of Adjusted
Eurodollar Rate); or
(iii) imposes any other condition (other than with respect to
Taxes, determined without regard to the exclusions contained in the
definition of Taxes) on or affecting such Lender or its obligations
hereunder or the London interbank market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining its Loans or Commitments or agreeing to
issue, issuing or maintaining any Letter of Credit or agreeing to purchase,
purchasing or maintaining any participation therein or to reduce any amount
received or receivable by such Lender with respect thereto; then, in any such
case, Borrower shall promptly pay to such Lender, upon receipt of the statement
referred to in subsection 2.8A, such additional amount or amounts (in the form
of an increased rate of, or a different method of calculating, interest or
otherwise as such Lender in its sole discretion shall determine) as may be
necessary to compensate such Lender for any such increased cost or reduction in
amounts received or receivable hereunder.
B. Taxes.
(i) Payments to Be Free and Clear. Except as otherwise
provided herein, all sums payable by Borrower under this Agreement and
the other Loan Documents shall be paid free and clear of, and without
any deduction or withholding on account of, any Tax imposed, levied,
collected, withheld or assessed by or within the United States of
America or any political subdivision in or of the United States of
America or any other jurisdiction from or to which a payment is made by
or on behalf of Borrower or by any federation or organization of which
the United States of America or any such jurisdiction is a member at the
time of payment.
(ii) Grossing-up of Payments. If Borrower or any other Person
is required by law to make any deduction or withholding on account of
any such Tax from any sum paid or payable by Borrower to Administrative
Agent or any Lender under any of the Loan Documents:
(a) Borrower shall notify Administrative Agent of
any such requirement or any change in any such requirement as
soon as Borrower becomes aware of it;
55
(b) Borrower shall pay any such Tax when such Tax is
due, such payment to be made (if the liability to pay is imposed
on Borrower) for its own account or (if that liability is
imposed on Administrative Agent or such Lender, as the case may
be) on behalf of and in the name of Administrative Agent or such
Lender;
(c) the sum payable by Borrower in respect of which
the relevant deduction, withholding or payment is required shall
be increased to the extent necessary to ensure that, after the
making of that deduction, withholding or payment, Administrative
Agent or such Lender, as the case may be, receives on the due
date a net sum equal to what it would have received had no such
deduction, withholding or payment been required or made; and
(d) within 30 days after the later of paying any sum
from which it is required by law to make any deduction or
withholding and the due date of payment of any Tax which it is
required by clause (b) above to pay, Borrower shall deliver to
Administrative Agent evidence reasonably satisfactory to the
other affected parties of such deduction, withholding or payment
and of the remittance thereof to the relevant taxing or other
authority;
provided that no such additional amount shall be required to be paid to
Administrative Agent or any Lender under clause (c) above except to the extent
that any change after the date on which such Lender became a Lender in any such
requirement for a deduction, withholding or payment shall result in an increase
in the rate of such deduction, withholding or payment from that in effect on the
date on which such Lender became a Lender, in respect of payments to or for the
benefit of such Lender.
(iii) Evidence of Exemption from U.S. Withholding Tax.
(a) Each Lender shall deliver to Administrative
Agent and to Borrower, on or prior to the Closing Date (in the
case of each Lender listed on the signature pages hereof) or on
or prior to the date of the Assignment Agreement pursuant to
which it becomes a Lender (in the case of each other Lender),
and at such other times as may be necessary in the determination
of Borrower or Administrative Agent (each in the reasonable
exercise of its discretion), two original copies of Internal
Revenue Service Form W-9, W-8BEN or W-8ECI (or any successor
forms), as the case may be, properly completed and duly executed
by such Lender, or, in the case of a Non-US Lender claiming
exemption from United States federal withholding tax under
Section 871(h) or 881(c) of the Internal Revenue Code with
respect to payments of "portfolio interest", two original copies
of a form W-8BEN (or any successor forms), as the case may be,
properly completed and duly executed by such Lender, and, a
certificate of such Lender certifying that such Lender is not
(i) a "bank" for purposes of Section 881(c) of the Internal
Revenue Code, (ii) a ten-percent shareholder (within the meaning
of Section 871(h)(3)(B) of the Internal Revenue Code) of either
Credit Agreement Party or (iii) a controlled foreign corporation
related to either Credit
56
Agreement Party (within the meaning of Section 864(d)(4) of the
Internal Revenue Code), in each case together with any other
certificate or statement of exemption required under the
Internal Revenue Code or the regulations issued thereunder to
establish that such Non-US Lender is not subject to United
States withholding tax with respect to any payments to such
Lender of (x) with respect to Non-US Lenders that are "banks"
for purposes of Section 881(c) of the Internal Revenue Code and
to US Lenders, any amounts, and (y) with respect to Non-US
Lenders that are not "banks" for purposes of Section 881(c) of
the Internal Revenue Code, interest payable under any of the
Loan Documents.
(b) Each Lender, to the extent it does not act or
ceases to act for its own account with respect to any portion of
any sums paid or payable to such Lender under any of the Loan
Documents (for example, in the case of a typical participation
by such Lender), shall deliver to Administrative Agent and to
Borrower, on or prior to the Closing Date (in the case of each
Lender listed on the signature pages hereof), on or prior to the
date of the Assignment Agreement pursuant to which it becomes a
Lender (in the case of each other Lender), or on such later date
when such Lender ceases to act for its own account with respect
to any portion of any such sums paid or payable, and at such
other times as may be necessary in the determination of Borrower
or Administrative Agent (each in the reasonable exercise of its
discretion), (1) two original copies of the forms or statements
required to be provided by such Lender under subsection
2.7B(iii)(a), properly completed and duly executed by such
Lender, to establish the portion of any such sums paid or
payable with respect to which such Lender acts for its own
account that is not subject to United States withholding tax,
and (2) two original copies of Internal Revenue Service Form W-9
or W-8IMY (or any successor forms), as the case may be, properly
completed and duly executed by such Lender, together with any
information, if any, such Lender chooses or is required to
transmit with such form, and any other certificate or statement
of exemption required under the Internal Revenue Code or the
regulations issued thereunder, to establish that such Lender is
not acting for its own account with respect to a portion of any
such sums payable to such Lender.
(c) Each Lender hereby agrees, from time to time
after the initial delivery by such Lender of such forms,
whenever a lapse in time or change in circumstances renders such
forms, certificates or other evidence so delivered obsolete or
inaccurate in any material respect, that such Lender shall
promptly (1) deliver to Administrative Agent and to Borrower two
original copies of renewals, amendments or additional or
successor forms, properly completed and duly executed by such
Lender, together with any other certificate or statement of
exemption required in order to confirm or establish that such
Lender is not subject to United States withholding tax with
respect to payments to such Lender under the Loan Documents and,
if applicable, that such Lender does not act for its own account
with respect to any portion of such payment, or (2) notify
Administrative
57
Agent and Borrower in writing of its inability to deliver any
such forms, certificates or other evidence.
(d) Borrower shall not be required to pay any
additional amount to any Non-US Lender under clause (c) of
subsection 2.7B(ii), (1) with respect to any Tax required to be
deducted or withheld on the basis of the information,
certificates or statements of exemption such Lender chooses to
transmit with an Internal Revenue Service Form W-8IMY pursuant
to subsection 2.7B(iii)(b)(2) or (2) if such Lender shall have
failed to satisfy the requirements of clause (a), (b) or (c)(1)
of this subsection 2.7B(iii); provided that if such Lender shall
have satisfied the requirements of subsection 2.7B(iii)(a) on
the date such Lender became a Lender, nothing in this subsection
2.7B(iii)(d) shall relieve Borrower of its obligation to pay any
amounts pursuant to subsection 2.7B(ii)(c) in the event that, as
a result of any change subsequent to the date such Lender became
a Lender, in any applicable law treaty or governmental rule,
regulation or order or in the interpretation, administration or
application thereof, such Lender is no longer properly entitled
to deliver forms, certificates or other evidence at a subsequent
date establishing the fact that such Lender is not subject to
withholding as described in subsection 2.7B(iii)(a).
(e) In the event that Administrative Agent or any
Lender obtains any refund of Taxes in respect of which an
additional payment amount described in subsection 2.7B(ii)(c)
was paid, Administrative Agent or such Lender thereupon shall
repay to Borrower an amount with respect to such refund equal to
any net reduction in Taxes actually obtained by Administrative
Agent or such Lender as is attributable to such refund;
provided, however, that Borrower, upon the request of
Administrative Agent or such Lender, agrees to repay the amount
paid over to Borrower (plus interest thereon at the rate imposed
by the applicable taxing authority) to Administrative Agent or
such Lender in the event Administrative Agent or such Lender is
required to repay such refund to such taxing authority. Nothing
in this paragraph shall require Administrative Agent or any
Lender to make available to Borrower any tax returns or other
information Administrative Agent or such Lender deems to be
confidential or proprietary.
C. Capital Adequacy Adjustment. If any Lender shall have
determined that the adoption, effectiveness, phase-in or applicability after the
date hereof of any law, rule or regulation (or any provision thereof) regarding
capital adequacy, or any change therein or in the interpretation or
administration thereof by any Government Authority charged with the
interpretation or administration thereof, or compliance by any Lender with any
guideline, request or directive regarding capital adequacy (whether or not
having the force of law) of any such Government Authority, has or would have the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to,
such Lender's Loans or Commitments or Letters of Credit or participations
therein or other obligations hereunder with respect to the Loans or the Letters
of Credit to a level below that which such Lender or such controlling
corporation could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the
58
policies of such Lender or such controlling corporation with regard to capital
adequacy), then from time to time, within five Business Days after receipt by
Borrower from such Lender of the statement referred to in subsection 2.8A,
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender or such controlling corporation on an after-tax basis for
such reduction.
2.8 STATEMENT OF LENDERS; OBLIGATION OF LENDERS AND ISSUING LENDERS
TO MITIGATE.
A. Statements. Each Lender claiming compensation or
reimbursement pursuant to subsection 2.6D, 2.7 or 2.8B shall deliver to Borrower
(with a copy to Administrative Agent) a written statement, setting forth in
reasonable detail the basis of the calculation of such compensation or
reimbursement, which statement shall be conclusive and binding upon all parties
hereto absent manifest error.
B. Mitigation. Each Lender and Issuing Lender agrees that,
as promptly as practicable after the officer of such Lender or Issuing Lender
responsible for administering the Loans or Letters of Credit of such Lender or
Issuing Lender, as the case may be, becomes aware of the occurrence of an event
or the existence of a condition that would cause such Lender to become an
Affected Lender or that would entitle such Lender or Issuing Lender to receive
payments under subsection 2.7, use reasonable effort to make, issue, fund or
maintain the Commitments of such Lender or the Affected Loans or Letters of
Credit of such Lender or Issuing Lender through another lending or letter of
credit office of such Lender or Issuing Lender, if (i) as a result thereof the
circumstances which would cause such Lender to be an Affected Lender would cease
to exist or the additional amounts which would otherwise be required to be paid
to such Lender or Issuing Lender pursuant to subsection 2.7 would be materially
reduced and (ii) as determined by such Lender or Issuing Lender in its sole
discretion, such action would not otherwise be disadvantageous to such Lender or
Issuing Lender; provided that such Lender or Issuing Lender will not be
obligated to utilize such other lending or letter of credit office pursuant to
this subsection 2.8B unless Borrower agrees to pay all incremental expenses
incurred by such Lender or Issuing Lender as a result of utilizing such other
lending or letter of credit office as described above.
2.9 REPLACEMENT OF A LENDER.
If Borrower receives a statement of amounts due pursuant to
subsection 2.8A from a Lender, a Revolving Lender defaults in its obligations to
fund a Revolving Loan pursuant to this Agreement, a Lender (a "Non-Consenting
Lender") refuses to consent to an amendment, modification or waiver of this
Agreement that, pursuant to subsection 10.6, requires consent of 100% of the
Lenders or 100% of the Lenders with Obligations directly affected or a Lender
becomes an Affected Lender (any such Lender, a "Subject Lender"), so long as (i)
no Potential Event of Default or Event of Default shall have occurred and be
continuing and Borrower has obtained a commitment from another Lender or an
Eligible Assignee to purchase at par the Subject Lender's Loans and assume the
Subject Lender's Commitments and all other obligations of the Subject Lender
hereunder, (ii) such Lender is not an Issuing Lender with respect to any Letters
of Credit outstanding (unless all such Letters of Credit are terminated or
arrangements
59
acceptable to such Issuing Lender (such as a "back-to-back" letter of credit)
are made) and (iii), if applicable, the Subject Lender is unwilling to withdraw
the notice delivered to Borrower pursuant to subsection 2.8 and/or is unwilling
to remedy its default upon 10 days prior written notice to the Subject Lender
and Administrative Agent, Borrower may require the Subject Lender to assign all
of its Loans and Commitments to such other Lender, Lenders, Eligible Assignee or
Eligible Assignees pursuant to the provisions of subsection 10.1B; provided
that, prior to or concurrently with such replacement, (1) the Subject Lender
shall have received payment in full of all principal, interest, fees and other
amounts (including all amounts under subsections 2.6D, 2.7 and/or 2.8B (if
applicable)) through such date of replacement and a release from its obligations
under the Loan Documents, (2) the processing fee required to be paid by
subsection 10.1B(i) shall have been paid to Administrative Agent, (3) all of the
requirements for such assignment contained in subsection 10.1B, including,
without limitation, the consent of Administrative Agent (if required) and the
receipt by Administrative Agent of an executed Assignment Agreement and other
supporting documents, have been fulfilled, and (4) in the event such Subject
Lender is a Non-Consenting Lender, each assignee shall consent, at the time of
such assignment, to each matter in respect of which such Subject Lender was a
Non-Consenting Lender and Borrower also requires each other Subject Lender that
is a Non-Consenting Lender to assign its Loans and Commitments.
Section 3. LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF
PARTICIPATIONS THEREIN.
A. Letters of Credit. In addition to Borrower requesting
that Lenders make Revolving Loans pursuant to subsection 2.1A(ii) and that Swing
Line Lender make Swing Line Loans pursuant to subsection 2.1A(iii), Borrower may
request, in accordance with the provisions of this subsection 3.1, from time to
time during the period from the Closing Date to but excluding the 30th day prior
to the Revolving Loan Commitment Termination Date, that one or more Revolving
Lenders issue Letters of Credit payable on a sight basis for the account of
Borrower for the purposes specified in the definitions of Commercial Letters of
Credit and Standby Letters of Credit. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of
Borrower herein set forth, any one or more Lenders may, but (except as provided
in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit
in accordance with the provisions of this subsection 3.1; provided that Borrower
shall not request that any Revolving Lender issue (and no Revolving Lender shall
issue):
(i) any Letter of Credit if, after giving effect to such
issuance, the Total Utilization of Revolving Loan Commitments would
exceed the Revolving Loan Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such
issuance, the Letter of Credit Usage would exceed $35,000,000;
(iii) any Standby Letter of Credit having an expiration date
later than the earlier of (a) ten days prior to the Revolving Loan
Commitment Termination Date and
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(b) the date which is one year from the date of issuance of such Standby
Letter of Credit; provided that the immediately preceding clause (b)
shall not prevent any Issuing Lender from agreeing that a Standby Letter
of Credit will automatically be extended for one or more successive
periods not to exceed one year each unless such Issuing Lender elects
not to extend for any such additional period; and provided, further that
such Issuing Lender shall elect not to extend such Standby Letter of
Credit if it has knowledge that an Event of Default has occurred and is
continuing (and has not been waived in accordance with subsection 10.6)
at the time such Issuing Lender must elect whether or not to allow such
extension;
(iv) any Standby Letter of Credit issued for the purpose of
supporting (a) trade payables or (b) any Indebtedness constituting
"antecedent debt" (as that term is used in Section 547 of the Bankruptcy
Code);
(v) any Commercial Letter of Credit having an expiration
date (a) later than the earlier of (1) the date which is 30 days prior
to the Revolving Loan Commitment Termination Date and (2) the date which
is 180 days from the date of issuance of such Commercial Letter of
Credit or (b) that is otherwise unacceptable to the applicable Issuing
Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other
than Dollars.
B. Mechanics of Issuance.
(i) Request for Issuance. Whenever Borrower desires the
issuance of a Letter of Credit, it shall deliver to the applicable
Issuing Lender a Request for Issuance no later than 12:00 Noon (New York
City time) at least three Business Days (in the case of Standby Letters
of Credit) or five Business Days (in the case of Commercial Letters of
Credit), or in each case such shorter period as may be agreed to by such
Issuing Lender in any particular instance, in advance of the proposed
date of issuance. Issuing Lender, in its reasonable discretion, may
require changes in the text of the proposed Letter of Credit or any
documents described in or attached to the Request for Issuance. In
furtherance of the provisions of subsection 10.8, and not in limitation
thereof, Borrower may submit Requests for Issuance by telefacsimile and
Administrative Agent and Issuing Lenders may rely and act upon any such
Request for Issuance without receiving an original signed copy thereof.
No Letter of Credit shall require payment against a conforming demand
for payment to be made thereunder on the same business day (under the
laws of the jurisdiction in which the office of the Issuing Lender to
which such demand for payment is required to be presented is located)
that such demand for payment is presented if such presentation is made
after 10:00 A.M. (in the time zone of such office of such Issuing
Lender) on such business day.
Borrower shall notify the applicable Issuing Lender and
Administrative Agent prior to the issuance of any Letter of Credit in
the event that any of the matters to which Borrower is required to
certify in the applicable Request for Issuance is no longer true and
correct as of the proposed date of issuance of such Letter of Credit,
and upon the
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issuance of any Letter of Credit, Borrower shall be deemed to have
re-certified, as of the date of such issuance, as to the matters to
which Borrower is required to certify in the applicable Request for
Issuance.
(ii) Determination of Issuing Lender. Borrower may request
either Issuing Lender to issue a Letter of Credit by delivering to such
Issuing Lender (with a copy to Administrative Agent) a Request for
Issuance. Issuing Lenders shall be obligated to issue any Letter of
Credit, notwithstanding the fact that the Letter of Credit Usage with
respect to such Letter of Credit and with respect to all other Letters
of Credit issued by Issuing Lender, when aggregated with Issuing
Lender's outstanding Revolving Loans and Swing Line Loans, may exceed
Issuing Lender's Revolving Loan Commitment then in effect.
(iii) Issuance of Letter of Credit. Upon satisfaction or
waiver (in accordance with subsection 10.6) of the conditions set forth
in subsection 4.3, the Issuing Lender shall issue the requested Letter
of Credit in accordance with the Issuing Lender's standard operating
procedures.
(iv) Notification to Revolving Lenders. Upon the issuance of
or amendment to any Standby Letter of Credit the applicable Issuing
Lender shall promptly notify Administrative Agent and Borrower of such
issuance or amendment in writing and such notice shall be accompanied by
a copy of such Letter of Credit or amendment. Upon receipt of such
notice, Administrative Agent shall notify each Revolving Lender in
writing of such issuance or amendment and the amount of such Revolving
Lender's respective participation in such Standby Letter of Credit or
amendment. In the case of Commercial Letters of Credit, such Issuing
Lender will send by facsimile transmission to Administrative Agent,
promptly upon the first Business Day of each week, a report of its daily
aggregate maximum amount available for drawing under Commercial Letters
of Credit for the previous week. Administrative Agent shall notify each
Revolving Lender in writing of the contents thereof.
C. Revolving Lenders' Purchase of Participations in Letters
of Credit. Immediately upon the issuance of each Letter of Credit, each
Revolving Lender shall be deemed to, and hereby agrees to, have irrevocably
purchased from the Issuing Lender a participation in such Letter of Credit and
any drawings honored thereunder in an amount equal to such Revolving Lender's
Pro Rata Share of the maximum amount that is or at any time may become available
to be drawn thereunder.
3.2 LETTER OF CREDIT FEES.
Borrower agrees to pay the following amounts with respect to
Letters of Credit issued hereunder:
(i) with respect to each Standby Letter of Credit, (a) a
fronting fee, payable directly to the applicable Issuing Lender for its
own account, equal to (the greater of (x) $500 and (y) 0.25% per annum
of the daily amount available to be drawn under such Standby Letter of
Credit and (b) a letter of credit fee, payable to Administrative Agent
for
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the account of Revolving Lenders, equal to the applicable Eurodollar
Rate Margin for Revolving Loans multiplied by the daily amount available
to be drawn under such Standby Letter of Credit, each such fronting fee
or letter of credit fee to be payable in arrears on and to (but
excluding) the last Business Day of March, June, September and December
of each year and on and to the Revolving Loan Commitment Termination
Date and computed on the basis of a 360-day year for the actual number
of days elapsed;
(ii) with respect to each Commercial Letter of Credit, (a) a
fronting fee, payable directly to the applicable Issuing Lender for its
own account, equal to the greater of (x) $1,000 and (y) 0.25% per annum
of the daily amount available to be drawn under such Commercial Letter
of Credit and (b) a letter of credit fee, payable to Administrative
Agent for the account of Revolving Lenders, equal to the applicable
Eurodollar Rate Margin for Revolving Loans multiplied by the daily
amount available to be drawn under such Commercial Letter of Credit,
each such fronting fee or letter of credit fee to be payable in arrears
on and to (but excluding) the last Business Day of March, June,
September and December of each year and on and to the Revolving Loan
Commitment Termination Date and computed on the basis of a 360-day year
for the actual number of days elapsed; and
(iii) with respect to the issuance, amendment or transfer of
each Letter of Credit and each payment of a drawing made thereunder
(without duplication of the fees payable under clauses (i) and (ii)
above), documentary and processing charges payable directly to the
applicable Issuing Lender for its own account in accordance with such
Issuing Lender's standard schedule for such charges in effect at the
time of such issuance, amendment, transfer or payment, as the case may
be.
(iv) For purposes of calculating any fees payable under
clauses (i) and (ii) of this subsection 3.2, the daily amount available
to be drawn under any Letter of Credit shall be determined as of the
close of business on any date of determination. Promptly upon receipt by
Administrative Agent of any amount described in clause (i)(b) or (ii)(b)
of this subsection 3.2, Administrative Agent shall distribute to each
Revolving Lender its Pro Rata Share of such amount.
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS PAID UNDER LETTERS OF
CREDIT.
A. Responsibility of Issuing Lender With Respect to
Drawings. In determining whether to honor any drawing under any Letter of Credit
by the beneficiary thereof, the Issuing Lender shall be responsible only to
examine the documents delivered under such Letter of Credit with reasonable care
so as to ascertain whether they appear on their face to be in strict compliance
with the terms and conditions of such Letter of Credit.
B. Reimbursement by Borrower of Amounts Paid Under Letters
of Credit. In the event an Issuing Lender has determined to honor a drawing
under a Letter of Credit issued by it, such Issuing Lender shall immediately
notify Borrower and Administrative Agent, and Borrower shall reimburse such
Issuing Lender on the date on which such drawing is honored (the "Reimbursement
Date") in an amount in Dollars and in same day funds equal to
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the amount of such payment; provided that, anything contained in this Agreement
to the contrary notwithstanding, (i) unless Borrower shall have notified
Administrative Agent and such Issuing Lender prior to 10:00 A.M. (New York City
time) on the date such drawing is honored that Borrower intends to reimburse
such Issuing Lender for the amount of such payment with funds other than the
proceeds of Revolving Loans, Borrower shall be deemed to have given a timely
Notice of Borrowing to Administrative Agent requesting Revolving Lenders to make
Revolving Loans that are Base Rate Loans on the Reimbursement Date in an amount
in Dollars equal to the amount of such payment and (ii) subject to satisfaction
or waiver of the conditions specified in subsection 4.2B, Revolving Lenders
shall, on the Reimbursement Date, make Revolving Loans that are Base Rate Loans
in the amount of such payment, the proceeds of which shall be applied directly
by Administrative Agent to reimburse such Issuing Lender for the amount of such
payment; and provided, further that if for any reason proceeds of Revolving
Loans are not received by such Issuing Lender on the Reimbursement Date in an
amount equal to the amount of such payment, Borrower shall reimburse such
Issuing Lender, on demand, in an amount in same day funds equal to the excess of
the amount of such payment over the aggregate amount of such Revolving Loans, if
any, which are so received. Nothing in this subsection 3.3B shall be deemed to
relieve any Revolving Lender from its obligation to make Revolving Loans on the
terms and conditions set forth in this Agreement, and Borrower shall retain any
and all rights it may have against any Revolving Lender resulting from the
failure of such Revolving Lender to make such Revolving Loans under this
subsection 3.3B.
C. Payment by Lenders of Unreimbursed Amounts Paid Under
Letters of Credit.
(i) Payment by Revolving Lenders. In the event that Borrower
shall fail for any reason to reimburse any Issuing Lender as provided in
subsection 3.3B in an amount equal to the amount of any payment by such
Issuing Lender under a Letter of Credit issued by it, such Issuing
Lender shall promptly notify Administrative Agent who will notify each
other Lender of the unreimbursed amount of such honored drawing and of
such other Revolving Lender's respective participation therein based on
such Revolving Lender's Pro Rata Share. Each Revolving Lender shall make
available to Administrative Agent for the benefit of such Issuing Lender
an amount equal to its respective participation, in Dollars and in same
day funds, at the Funding and Payment Office, not later than 12:00 Noon
(New York City time) on the first business day after the date notified
by such Issuing Lender. In the event that any Revolving Lender fails to
make available to Administrative Agent for the benefit of such Issuing
Lender on such business day the amount of such Revolving Lender's
participation in such Letter of Credit as provided in this subsection
3.3C, such Issuing Lender shall be entitled to recover such amount on
demand from such Revolving Lender together with interest thereon at the
rate customarily used by such Issuing Lender for the correction of
errors among banks for three Business Days and thereafter at the Base
Rate. Nothing in this subsection 3.3C shall be deemed to prejudice the
right of any Lender to recover from any Issuing Lender any amounts made
available by such Revolving Lender to such Issuing Lender pursuant to
this subsection 3.3C in the event that it is determined by the final
judgment of a court of competent jurisdiction that the payment with
respect to a Letter of Credit by such
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Issuing Lender in respect of which payment was made by such Revolving
Lender constituted gross negligence or willful misconduct on the part of
such Issuing Lender.
(ii) Distribution to Lenders of Reimbursements Received From
Borrower. In the event any Issuing Lender shall have been reimbursed by
other Revolving Lenders pursuant to subsection 3.3C(i) for all or any
portion of any payment by such Issuing Lender under a Letter of Credit
issued by it, such Issuing Lender shall distribute to Administrative
Agent on behalf of each other Revolving Lender that has paid all amounts
payable by it under subsection 3.3C(i) with respect to such payment such
other Revolving Lender's Pro Rata Share of all payments subsequently
received by such Issuing Lender from Company in reimbursement of such
payment under the Letter of Credit when such payments are received. Any
such distribution shall be made to a Revolving Lender.
D. Interest on Amounts Paid Under Letters of Credit.
(i) Payment of Interest by Borrower. Borrower agrees to pay
to each Issuing Lender, with respect to payments under any Letters of
Credit issued by it, interest on the amount paid by such Issuing Lender
in respect of each such payment from the date a drawing is honored to
but excluding the date such amount is reimbursed by Borrower (including
any such reimbursement out of the proceeds of Revolving Loans pursuant
to subsection 3.3B) at a rate equal to (a) for the period from the date
such drawing is honored to but excluding the Reimbursement Date, the
rate then in effect under this Agreement with respect to Revolving Loans
that are Base Rate Loans and (b) thereafter, a rate which is 2% per
annum in excess of the rate of interest otherwise payable under this
Agreement with respect to Revolving Loans that are Base Rate Loans.
Interest payable pursuant to this subsection 3.3D(i) shall be computed
on the basis of a 360-day year for the actual number of days elapsed in
the period during which it accrues and shall be payable on demand or, if
no demand is made, on the date on which the related drawing under a
Letter of Credit is reimbursed in full.
(ii) Distribution of Interest Payments by Issuing Lender.
Promptly upon receipt by any Issuing Lender of any payment of interest
pursuant to subsection 3.3D(i) with respect to a payment under a Letter
of Credit issued by it, (a) such Issuing Lender shall distribute to
Administrative Agent on behalf of each other Revolving Lender, out of
the interest received by such Issuing Lender in respect of the period
from the date such drawing is honored to but excluding the date on which
such Issuing Lender is reimbursed for the amount of such payment
(including any such reimbursement out of the proceeds of Revolving Loans
pursuant to subsection 3.3B), the amount that such other Revolving
Lender would have been entitled to receive in respect of the letter of
credit fee that would have been payable in respect of such Letter of
Credit for such period pursuant to subsection 3.2 if no drawing had been
honored under such Letter of Credit, and (b) in the event such Issuing
Lender shall have been reimbursed by other Revolving Lenders pursuant to
subsection 3.3C(i) for all or any portion of such payment, such Issuing
Lender shall distribute to Administrative Agent on behalf of each other
Revolving Lender that has paid all amounts payable by it under
subsection 3.3C(i) with respect to such payment such other Revolving
Lender's Pro Rata Share of any interest received by such
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Issuing Lender in respect of that portion of such payment so reimbursed
by other Revolving Lenders for the period from the date on which such
Issuing Lender was so reimbursed by other Revolving Lenders to but
excluding the date on which such portion of such payment is reimbursed
by Borrower. Administrative Agent shall distribute any such amounts to a
Revolving Lender.
3.4 OBLIGATIONS ABSOLUTE.
The obligation of Borrower to reimburse each Issuing Lender for
payments under the Letters of Credit issued by it and to repay any Revolving
Loans made by Revolving Lenders pursuant to subsection 3.3B and the obligations
of Revolving Lenders under subsection 3.1C and 3.3C(i) shall be unconditional
and irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances including any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, set-off, defense or other
right which Borrower or any Lender may have at any time against a
beneficiary or any transferee of any Letter of Credit (or any Persons
for whom any such transferee may be acting), any Issuing Lender or other
Revolving Lender or any other Person or, in the case of a Revolving
Lender, against Borrower, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction (including
any underlying transaction between Borrower or one of its Subsidiaries
and the beneficiary for which any Letter of Credit was procured);
(iii) any draft 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;
(iv) payment by the applicable Issuing Lender under any
Letter of Credit against presentation of a draft or other document which
does not strictly comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or prospects of
Company or any of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document
by any party thereto;
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event
of Default shall have occurred and be continuing;
provided, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing
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Lender under the circumstances in question (as determined by a final judgment of
a court of competent jurisdiction).
3.5 NATURE OF ISSUING LENDERS' DUTIES.
As between Borrower and any Issuing Lender, Borrower assumes all
risks of the acts and omissions of, or misuse of the Letters of Credit issued by
such Issuing Lender by, the respective beneficiaries of such Letters of Credit.
In furtherance and not in limitation of the foregoing, such Issuing Lender shall
not be responsible for: (i) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in connection
with the application for and issuance of any such Letter of Credit, even if it
should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign any
such Letter of Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, which may prove to be invalid or ineffective for any
reason; (iii) failure of the beneficiary of any such Letter of Credit to comply
fully with any conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in transmission or delivery of
any messages, by mail, cable, telegraph, telex or otherwise, whether or not they
be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or
delay in the transmission or otherwise of any document required in order to make
a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of such Issuing Lender, including any act or
omission by a Government Authority, and none of the above shall affect or
impair, or prevent the vesting of, any of such Issuing Lender's rights or powers
hereunder.
In furtherance and extension and not in limitation of the
specific provisions set forth in the first paragraph of this subsection 3.5, any
action taken or omitted by any Issuing Lender under or in connection with the
Letters of Credit issued by it or any documents and certificates delivered
thereunder, if taken or omitted in good faith, shall not put such Issuing Lender
under any resulting liability to Borrower.
Notwithstanding anything to the contrary contained in this
subsection 3.5, Borrower shall retain any and all rights it may have against any
Issuing Lender for any liability arising solely out of the gross negligence or
willful misconduct of such Issuing Lender, as determined by a final judgment of
a court of competent jurisdiction.
Section 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of
Letters of Credit hereunder are subject to the satisfaction of the following
conditions.
4.1 CONDITIONS TO TERM LOANS AND INITIAL REVOLVING LOANS AND SWING
LINE LOANS.
The obligations of Lenders to make the Term Loans are, in
addition to the
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conditions precedent specified in subsection 4.2, subject to prior or concurrent
satisfaction of the following conditions:
A. Loan Party Documents. On or before the Closing Date,
Borrower shall, and shall cause each other Loan Party to, deliver to Lenders (or
to Administrative Agent with sufficient originally executed copies, where
appropriate, for each Lender) the following with respect to Borrower or such
Loan Party, as the case may be, each, unless otherwise noted, dated the Closing
Date:
(i) Copies of the Organizational Documents of such Person,
certified by the Secretary of State (or foreign equivalent) of its
jurisdiction of organization or, if such document is of a type that may
not be so certified, certified by the secretary or similar officer of
the applicable Loan Party, together with a good standing certificate
from the Secretary of State of its jurisdiction of organization and each
other state in which such Person is qualified to do business and, to the
extent generally available, a certificate or other evidence of good
standing as to payment of any applicable franchise or similar taxes from
the appropriate taxing authority of each of such jurisdictions, each
dated a recent date prior to the Closing Date;
(ii) Resolutions of the Governing Body of such Person
approving and authorizing the execution, delivery and performance of the
Loan Documents to which it is a party, certified as of the Closing Date
by the secretary or similar officer of such Person as being in full
force and effect without modification or amendment;
(iii) Signature and incumbency certificates of the officers of
such Person executing the Loan Documents to which it is a party;
(iv) Executed originals of the Loan Documents to which such
Person is a party; and
(v) Such other documents as Administrative Agent may
reasonably request.
B. Fees. Borrower shall have paid to Administrative Agent,
for distribution (as appropriate) to Administrative Agent and Lenders, the fees
payable on the Closing Date referred to in subsection 2.3.
C. Corporate and Capital Structure; Ownership.
(i) Corporate Structure. The corporate organizational
structure of the Company and its Subsidiaries shall be as set forth on Schedule
4.1C annexed hereto.
(ii) Capital Structure and Ownership. The capital structure
and ownership of Company and its Subsidiaries shall be as set forth on Schedule
4.1C annexed hereto.
D. Representations and Warranties; Performance of
Agreements. Borrower shall have delivered to Administrative Agent an Officer's
Certificate, in form and substance satisfactory to Administrative Agent, to the
effect that the representations and
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warranties in Section 5 are true, correct and complete in all material respects
on and as of the Closing Date to the same extent as though made on and as of
that date (or, to the extent such representations and warranties specifically
relate to an earlier date, that such representations and warranties were true,
correct and complete in all material respects on and as of such earlier date)
and that each of the Loan Parties shall have performed in all material respects
all agreements and satisfied all conditions which this Agreement provides shall
be performed or satisfied by it on or before the Closing Date except as
otherwise disclosed to and agreed to in writing by Administrative Agent;
provided that, if a representation and warranty, covenant or condition is
qualified as to materiality, with respect to such representation and warranty,
covenant or condition the applicable materiality qualifier set forth above shall
be disregarded for purposes of this condition.
E. Financial Statements; Pro Forma Financial Statements. On
or before the Closing Date, Lenders shall have received from Borrower (i)
audited and unaudited financial statements of Borrower and its Subsidiaries as
set forth in Schedule 4.1E and (ii) pro forma financial statements, giving
effect to the Refinancing and the other transactions contemplated herein to
occur on or before the Closing Date, which pro forma financial statements shall
be in form and substance satisfactory to Co-Arrangers.
F. Opinions of Counsel to Loan Parties. Lenders shall have
received originally executed copies of one or more favorable written opinions of
(i) Steven M. Edmonds, general counsel for Loan Parties and (ii) Hunton &
Williams, special counsel for Loan Parties, in each case in form and substance
reasonably satisfactory to Administrative Agent and its counsel, dated as of the
Closing Date and setting forth substantially the matters in the opinions
designated in Exhibit VIII-A and Exhibit VIII-B, respectively, annexed hereto
and as to such other matters as Administrative Agent acting on behalf of Lenders
may reasonably request (this Credit Agreement constituting a written request by
Borrower to such counsel to deliver such opinions to Lenders).
G. Opinion of Administrative Agent's Counsel. Lenders shall
have received originally executed copies of a favorable written opinion of
O'Melveny & Myers LLP, counsel to Administrative Agent, dated as of the Closing
Date, substantially in the form of Exhibit IX annexed hereto.
H. Solvency Assurances. On the Closing Date, Administrative
Agent and Lenders shall have received an Officer's Certificate of Company dated
the Closing Date, substantially in the form of Exhibit XI annexed hereto and
with appropriate attachments, in each case demonstrating that, after giving
effect to the consummation of the transactions contemplated by the Loan
Documents, Borrower and the Guarantors on a consolidated basis will be Solvent.
I. Evidence of Insurance. Administrative Agent shall have
received a certificate from Borrower's insurance broker or other evidence
satisfactory to it that all insurance required to be maintained pursuant to
subsection 6.4 is in full force and effect and that Administrative Agent on
behalf of Lenders has been named as additional insured and/or loss payee
thereunder to the extent required under subsection 6.4.
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J. Necessary Governmental Authorizations and Consents;
Expiration of Waiting Periods, Etc. Borrower shall have obtained all
Governmental Authorizations and all consents of other Persons, in each case that
are necessary or advisable in connection with the transactions contemplated by
the Loan Documents and the continued operation of the business conducted by
Company and its Subsidiaries in substantially the same manner as conducted prior
to the Closing Date. Each such Governmental Authorization and consent shall be
in full force and effect, except in a case where the failure to obtain or
maintain a Governmental Authorization or consent, either individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. All applicable waiting periods shall have expired without any action
being taken or threatened by any competent authority that would restrain,
prevent or otherwise impose adverse conditions on the transactions contemplated
by the Loan Documents or the financing thereof. No action, request for stay,
petition for review or rehearing, reconsideration, or appeal with respect to any
of the foregoing shall be pending, and the time for any applicable Government
Authority to take action to set aside its consent on its own motion shall have
expired.
K. Environmental Reports. On or prior to the Closing Date,
Borrower shall, or shall cause each applicable Loan Party to, deliver to
Administrative Agent (i) complete copies of Phase I, Phase II, and letter
reports and any other material documents and information, which are in the
possession or control of Borrower or any of its Subsidiaries, regarding
environmental matters relating to Borrower and its Subsidiaries and the
Facilities and (ii) a complete and executed copy of the "transaction screen
questionnaire" found in Sections 6 though 11 of the Standard Practice for
Environmental Site Assessments: Transaction Screen Process (ASTM designation E
1528 - 00) for each of the Facilities listed on Schedule 4.1K annexed hereto.
L. Security Interests in Personal and Mixed Property. To
the extent not otherwise satisfied pursuant to subsection 4.1M, Administrative
Agent shall have received evidence satisfactory to it that Borrower and the
other Loan Parties shall have taken or caused to be taken all such actions,
executed and delivered or caused to be executed and delivered all such
agreements, documents and instruments, and made or caused to be made all such
filings and recordings (other than the filing or recording of items described in
clauses (ii), (iii) and (iv) below) that may be necessary or, in the opinion of
Administrative Agent, desirable in order to create in favor of Administrative
Agent, for the benefit of Lenders, a valid and (upon such filing and recording)
perfected First Priority security interest in the entire personal and mixed
property Collateral. Such actions shall include the following:
(i) Stock Certificates and Instruments. Delivery to
Administrative Agent of (a) certificates (which certificates shall be
accompanied by irrevocable undated stock powers, duly endorsed in blank
and otherwise satisfactory in form and substance to Administrative
Agent) representing all Capital Stock pledged pursuant to the Security
Agreement, any Foreign Pledge Agreement and any Foreign Collateral
Document, and (b) all promissory notes, including, without limitation,
the Pledged Belgium Indebtedness, or other instruments (duly endorsed,
where appropriate, in a manner satisfactory to Administrative Agent)
evidencing any Collateral;
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(ii) Lien Searches and UCC Termination Statements. Delivery
to Administrative Agent of (a) the results of a recent search, by a
Person satisfactory to Administrative Agent, of all effective UCC
financing statements and fixture filings and all judgment and tax lien
filings which may have been made with respect to any personal or mixed
property of any Loan Party, together with copies of all such filings
disclosed by such search, and (b) UCC termination statements duly
executed (if required) by all applicable Persons for filing in all
applicable jurisdictions as may be necessary to terminate any effective
UCC financing statements or fixture filings disclosed in such search
(other than any such financing statements or fixture filings in respect
of Liens permitted to remain outstanding pursuant to the terms of this
Agreement).
(iii) UCC Financing Statements and Fixture Filings. Delivery
to Administrative Agent of UCC financing statements and, where
appropriate, fixture filings, duly executed by each applicable Loan
Party (if required) with respect to all personal and mixed property
Collateral of such Loan Party, for filing in all jurisdictions as may be
necessary or, in the opinion of Administrative Agent, desirable to
perfect the security interests created in such Collateral pursuant to
the Collateral Documents;
(iv) PTO Cover Sheets, Etc. Delivery to Administrative Agent
of all cover sheets or other documents or instruments required to be
filed with the PTO in order to create or perfect Liens in respect of any
IP Collateral;
(v) Foreign Pledge Agreements. Execution and delivery to
Administrative Agent of Foreign Pledge Agreements with respect to 65% of
the Capital Stock owned by Borrower or any Loan Party of all Foreign
Subsidiaries that are not Foreign Guarantors and with respect to 100% of
the Capital Stock owned by Borrower or any Loan Party of all Foreign
Guarantors with respect to which Administrative Agent deems a Foreign
Pledge Agreement necessary or advisable to perfect or otherwise protect
the First Priority Liens granted to Administrative Agent on behalf of
Lenders in such Capital Stock, and the taking of all such other actions
under the laws of such jurisdictions as Administrative Agent may deem
necessary or advisable to perfect or otherwise protect such Liens;
(vi) Foreign Collateral Documents and Foreign Guaranties.
Execution and delivery to Administrative Agent of the Foreign Collateral
Documents and the Foreign Guaranties and all related documentation, all
in form, substance and scope satisfactory to Administrative Agent; and
(vii) Foreign Intercompany Security Agreements. Execution and
delivery to Administrative Agent of (A) the Foreign Intercompany
Security Agreements and (B) one or more favorable opinions of (i) Osler,
Hoskin, special Canadian counsel for Loan Parties, Hunton & Williams,
special U.K. counsel for Loan Parties, and Blakemore & Mitsuki, special
Japanese counsel for Loan Parties, all in form, substance and scope
satisfactory to Administrative Agent; and
(viii) Opinions of Local Counsel. Delivery to Administrative
Agent of an opinion of counsel (which counsel shall be reasonably
satisfactory to Administrative
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Agent) under the laws of the jurisdiction of organization of any Loan
Party with respect to the creation and perfection of the security
interests in favor of Administrative Agent in personal or mixed property
Collateral and such other matters governed by the laws of such
jurisdiction regarding such security interests as Administrative Agent
may reasonably request, in each case in form and substance reasonably
satisfactory to Administrative Agent.
M. Closing Date Mortgages; Closing Date Mortgage Policies;
Etc. Administrative Agent shall have received from Borrower and each applicable
Subsidiary Guarantor:
(i) Closing Date Mortgages. Fully executed and notarized
Mortgages (each a "Closing Date Mortgage" and, collectively, the
"Closing Date Mortgages"), duly recorded in all appropriate places in
all applicable jurisdictions, encumbering each Real Property Asset
listed in Part A of Schedule 4.1M annexed hereto (each a "Closing Date
Mortgaged Property" and, collectively, the "Closing Date Mortgaged
Properties");
(ii) Opinions of Local Counsel. An opinion of counsel (which
counsel shall be reasonably satisfactory to Administrative Agent) in
each state in which a Closing Date Mortgaged Property is located with
respect to the enforceability of the form(s) of Closing Date Mortgages
to be recorded in such state and such other matters as Administrative
Agent may reasonably request, in each case in form and substance
reasonably satisfactory to Administrative Agent;
(iii) Collateral Access Agreements. In the case of each Real
Property Asset of any Loan Party listed in Part B of Schedule 4.1M
annexed hereto, to the extent obtainable through the commercially
reasonably efforts of such Loan Party, a Collateral Access Agreement
with respect thereto and in the event that any landlord party to a
Collateral Access Agreement requests an estoppel certificate regarding
such Leasehold Property, Borrower or the applicable Subsidiary Guarantor
will include a description of such Collateral Access Agreement in such
estoppel certificate;
(iv) Title Insurance. (a) ALTA mortgagee title insurance
policies or unconditional commitments therefor (the "Closing Date
Mortgage Policies") issued by the Title Company with respect to the
Closing Date Mortgaged Properties listed in Part A of Schedule 4.1M
annexed hereto, in amounts not less than the respective amounts
designated therein with respect to any particular Closing Date Mortgaged
Properties, insuring fee simple title to, or a valid leasehold interest
in, each such Closing Date Mortgaged Property vested in such Loan Party
and assuring Administrative Agent that the applicable Closing Date
Mortgages create valid and enforceable First Priority mortgage Liens on
the respective Closing Date Mortgaged Properties encumbered thereby,
subject only to a standard survey exception (which such exception shall
be removed upon Borrower's delivery of the surveys pursuant to
subsection 6.12C) which Closing Date Mortgage Policies (1) shall include
such endorsements as are commercially available in the applicable
jurisdiction pertaining to matters reasonably requested by
Administrative Agent and (2) shall provide for affirmative insurance and
such
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reinsurance as Administrative Agent may reasonably request, all of the
foregoing in form and substance reasonably satisfactory to
Administrative Agent; and (b) evidence satisfactory to Administrative
Agent that such Loan Party has (i) delivered to the Title Company all
certificates and affidavits required by the Title Company in connection
with the issuance of the Closing Date Mortgage Policies and (ii) paid to
the Title Company or to the appropriate governmental authorities all
expenses and premiums of the Title Company in connection with the
issuance of the Closing Date Mortgage Policies and all recording and
stamp taxes (including mortgage recording and intangible taxes) payable
in connection with recording the Closing Date Mortgages in the
appropriate real estate records;
(v) Copies of Documents Relating to Title Exceptions. Copies
of all recorded documents listed as exceptions to title or otherwise
referred to in the Closing Date Mortgage Policies;
(vi) Matters Relating to Flood Hazard Properties. (a)
Evidence, which may be in the form of a letter from an insurance broker
or a municipal engineer, as to whether (1) any Closing Date Mortgaged
Property is a Flood Hazard Property and (2) the community in which any
such Flood Hazard Property is located is participating in the National
Flood Insurance Program, (b) if there are any such Flood Hazard
Properties, such Loan Party's written acknowledgement of receipt of
written notification from Administrative Agent (1) as to the existence
of each such Flood Hazard Property and (2) as to whether the community
in which each such Flood Hazard Property is located is participating in
the National Flood Insurance Program, and (c) in the event any such
Flood Hazard Property is located in a community that participates in the
National Flood Insurance Program, evidence that Borrower and its
Subsidiaries have obtained flood insurance in respect of such Flood
Hazard Property to the extent required under the applicable regulations
of the Board of Governors of the Federal Reserve System; and
(vii) Environmental Indemnity. If requested by Administrative
Agent, an environmental indemnity agreement, satisfactory in form and
substance to Administrative Agent and its counsel, with respect to the
indemnification of Administrative Agent and Lenders for any liabilities
that may be imposed on or incurred by any of them as a result of any
Hazardous Materials Activity.
N. Matters Relating to Existing Indebtedness of Company and
its Subsidiaries.
(i) Termination of Existing Credit Agreement and Related
Liens; Existing Letters of Credit. On the Closing Date, Borrower and its
Subsidiaries shall have (a) repaid in full all Indebtedness outstanding
under the Existing Credit Agreement (the aggregate principal amount of
which Indebtedness shall not exceed $235,000,000), (b) terminated any
commitments to lend or make other extensions of credit thereunder, (c)
delivered to Administrative Agent all documents or instruments necessary
to release all Liens securing Indebtedness or other obligations of
Borrower and its Subsidiaries thereunder, and (d) made arrangements
satisfactory to Administrative Agent with respect
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to the cancellation of any letters of credit outstanding thereunder, the
inclusion of any such letters of credit in the Revolving Loan
Commitments hereunder, or the issuance of Letters of Credit to support
the obligations of Borrower and its Subsidiaries with respect thereto.
(ii) Termination of Private Borrowing and Related Liens. On
the Closing Date, Borrower and its Subsidiaries shall have (a) repaid in
full all Indebtedness outstanding in respect of the Private Borrowing
(the aggregate principal amount of which Indebtedness shall not exceed
$18,640,000, (b) terminated any commitments to lend or make other
extensions of credit thereunder, (c) delivered to Administrative Agent
all documents and instruments necessary to release all obligations of
Company and its Subsidiaries thereunder, and (d) delivered to
Administrative Agent all documents or instruments necessary to release
all Liens securing Indebtedness or other obligations of Borrower and its
Subsidiaries thereunder.
(iii) Existing Indebtedness to Remain Outstanding.
Administrative Agent shall have received an Officer's Certificate of
Company stating that, after giving effect to the transactions described
in this subsection 4.1N, the Indebtedness of Loan Parties (other than
Indebtedness under the Loan Documents, the Senior Notes and other
Indebtedness permitted under subsection 7.1(vi) hereof) shall consist of
Indebtedness in an aggregate amount not to exceed $5,700,000 in respect
of Capital Leases described in Part II of Schedule 7.1 annexed hereto.
O. Issuance of Senior Notes. On or before the Closing Date,
Borrower shall have issued and sold the Senior Notes in an aggregate principal
amount of $150,000,000 and Borrower shall have delivered to Administrative Agent
complete, correct and conformed copies of the Senior Note Documents, all in form
and substance reasonably satisfactory to Administrative Agent, together with an
Officer's Certificate of Borrower certifying to the foregoing. Borrower shall
deliver an Officer's Certificate stating that such documents are complete,
correct and conformed and that Borrower has received not less than $150,000,000
in proceeds for the Senior Notes. In addition, all opinions by counsel to
Borrower or any of its Subsidiaries (and, if requested by Administrative Agent,
any certificates and letters) delivered in connection with the Senior Note
Documents shall be addressed to Administrative Agent and Lenders or accompanied
by a written authorization from each Person delivering such an opinion stating
that Administrative Agent and Lenders may rely on such opinion as though it were
addressed to them. The issuance of Senior Notes shall be deemed to be a
representation and warranty by Borrower that all conditions thereto have been
satisfied and that same is permitted in accordance with the terms of this
Agreement, which representation and warranty shall be deemed to be a
representation and warranty for all purposes hereunder, including without
limitation, Sections 5 and 8.
P. Formation of Intermediate Holdco. On or before the
Closing Date, Borrower shall have formed Intermediate Holdco to own 100% of the
Capital Stock of all Foreign Material Subsidiaries that are not Guarantors
(other than EPAL) and the Organizational Documents therefor shall be in form in
substance satisfactory to Administrative Agent.
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Q. Senior Secured Credit Facility Rating. On the Closing
Date, the Senior Secured Credit Facility Rating shall be B+ and Ba3 or better.
R. Completion of Proceedings. All corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel
shall be satisfactory in form and substance to Administrative Agent and such
counsel, and Administrative Agent and such counsel shall have received all such
counterpart originals or certified copies of such documents as Administrative
Agent may reasonably request.
4.2 CONDITIONS TO ALL LOANS.
The obligations of Lenders to make Loans on each Funding Date
are subject to the following further conditions precedent:
A. Administrative Agent shall have received before that
Funding Date, in accordance with the provisions of subsection 2.1B, an
originally executed Notice of Borrowing, in each case signed by a duly
authorized Officer of Borrower.
B. As of that Funding Date:
(i) The representations and warranties contained herein and
in the other Loan Documents shall be true, correct and complete in all
material respects on and as of that Funding Date to the same extent as
though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date,
in which case such representations and warranties shall have been true,
correct and complete in all material respects on and as of such earlier
date; provided, that, if a representation and warranty is qualified as
to materiality, with respect to such representation and warranty the
materiality qualifier set forth above shall be disregarded for purposes
of this condition;
(ii) No event shall have occurred and be continuing or would
result from the consummation of the borrowing contemplated by such
Notice of Borrowing that would constitute an Event of Default or a
Potential Event of Default;
(iii) Each Loan Party shall have performed in all material
respects all agreements and satisfied all conditions which this
Agreement provides shall be performed or satisfied by it on or before
that Funding Date; and
(iv) No order, judgment or decree of any arbitrator or
Government Authority shall purport to enjoin or restrain any Lender from
making the Loans to be made by it on that Funding Date.
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4.3 CONDITIONS TO LETTERS OF CREDIT.
The issuance of any Letter of Credit hereunder (whether or not
the applicable Issuing Lender is obligated to issue such Letter of Credit) is
subject to the following conditions precedent:
A. On or before the date of issuance of the initial Letter
of Credit pursuant to this Agreement, the initial Loans shall have been made.
B. On or before the date of issuance of such Letter of
Credit, Administrative Agent shall have received, in accordance with the
provisions of subsection 3.1B(i), an originally executed Request for Issuance
(or a facsimile copy thereof) in each case signed by a duly authorized Officer
of Company, together with all other information specified in subsection 3.1B(i)
and such other documents or information as the applicable Issuing Lender may
reasonably require in connection with the issuance of such Letter of Credit.
C. On the date of issuance of such Letter of Credit, all
conditions precedent described in subsection 4.2B shall be satisfied to the same
extent as if the issuance of such Letter of Credit were the making of a Loan and
the date of issuance of such Letter of Credit were a Funding Date.
Section 5. CREDIT AGREEMENT PARTIES' REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to
make the Loans, to induce Issuing Lenders to issue Letters of Credit and to
induce Revolving Lenders to purchase participations therein, each Credit
Agreement Party represents and warrants to each Lender:
5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
SUBSIDIARIES.
A. Organization and Powers. Each of Company and its
Subsidiaries is a corporation, partnership, trust or limited liability company
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization as specified in Schedule 5.1 annexed hereto. Each
of Company and its Subsidiaries has all requisite power and authority to own and
operate its properties, to carry on its business as now conducted and as
proposed to be conducted, and is qualified to do business and in good standing
in every jurisdiction where its assets are located and wherever necessary to
carry out its business and operations, in each case except where failure to be
so qualified or in good standing or a lack of such power and authority has not
had and could not reasonably be expected to result in a Material Adverse Effect,
to enter into the Loan Documents to which it is a party and to carry out the
transactions contemplated thereby.
B. Qualification and Good Standing. Each of Company and its
Subsidiaries is qualified to do business and in good standing in every
jurisdiction where its assets are located and wherever necessary to carry out
its business and operations, except in
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jurisdictions where the failure to be so qualified or in good standing has not
had and could not reasonably be expected to result in a Material Adverse Effect.
C. Conduct of Business. Each of Company and its
Subsidiaries is engaged only in the businesses permitted to be engaged in
pursuant to subsection 7.11.
D. Subsidiaries. All of the Subsidiaries of each Credit
Agreement Party and their jurisdictions of organization are identified in
Schedule 5.1 annexed hereto, as said Schedule 5.1 may be supplemented from time
to time pursuant to the provisions of subsection 6.1(xiv). The Capital Stock of
each of the Subsidiaries of each Credit Agreement Party identified in Schedule
5.1 annexed hereto (as so supplemented) is duly authorized, validly issued,
fully paid and nonassessable and none of such Capital Stock constitutes Margin
Stock. Schedule 5.1 annexed hereto (as so supplemented) correctly sets forth the
ownership interest of each Credit Agreement Party and each of its Subsidiaries
in each of the Subsidiaries identified therein.
5.2 AUTHORIZATION OF BORROWING, ETC.
A. Authorization of Borrowing. The execution, delivery and
performance of the Loan Documents have been duly authorized by all necessary
action on the part of each Loan Party that is a party thereto.
B. No Conflict. The execution, delivery and performance by
Loan Parties of the Loan Documents to which they are parties and the
consummation of the transactions contemplated by the Loan Documents do not and
will not (i) violate any provision of any law or any governmental rule or
regulation applicable to any Credit Agreement Party or any of its Subsidiaries,
the Organizational Documents of any Credit Agreement Party or any of its
Subsidiaries or any order, judgment or decree of any court or other Government
Authority binding on any Credit Agreement Party or any of its Subsidiaries, (ii)
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any Contractual Obligation of any Credit Agreement
Party or any of its Subsidiaries, (iii) result in or require the creation or
imposition of any Lien upon any of the properties or assets of any Credit
Agreement Party or any of its Subsidiaries (other than any Liens created under
any of the Loan Documents in favor of Administrative Agent on behalf of
Lenders), or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of any Credit Agreement
Party or any of its Subsidiaries, except for such approvals or consents which
will be obtained on or before the Closing Date and disclosed in writing to
Lenders.
C. Governmental Consents. The execution, delivery and
performance by Loan Parties of the Loan Documents to which they are parties and
the consummation of the transactions contemplated by the Loan Documents do not
and will not require any Governmental Authorization.
D. Binding Obligation. Each of the Loan Documents has been
duly executed and delivered by each Loan Party that is a party thereto and is
the legally valid and binding obligation of such Loan Party, enforceable against
such Loan Party in accordance with its respective terms, except as may be
limited by bankruptcy, insolvency, reorganization,
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moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability.
E. Valid Issuance of Senior Notes. Borrower has the
corporate power and authority to issue the Senior Notes. The Senior Notes, when
issued and paid for, will be legally valid and binding obligations of Borrower,
enforceable against Borrower in accordance with their respective terms. The
Senior Notes, when issued and sold, will either (a) have been registered or
qualified under applicable federal and state securities laws or (b) be exempt
therefrom.
5.3 FINANCIAL CONDITION.
Borrower has heretofore delivered to Lenders, at Lenders'
request, the financial statements and information set forth in Schedule 4.1E.
All such statements other than pro forma financial statements were prepared in
conformity with GAAP and fairly present, in all material respects, the financial
position (on a consolidated and, where applicable, consolidating basis) of the
entities described in such financial statements as at the respective dates
thereof and the results of operations and cash flows (on a consolidated and,
where applicable, consolidating basis) of the entities described therein for
each of the periods then ended, subject, in the case of any such unaudited
financial statements, to changes resulting from audit and normal year-end
adjustments. Neither Company nor any of its Subsidiaries has (and will not have
following the funding of the initial Loans) any Contingent Obligation,
contingent liability or liability for taxes, long-term lease or unusual forward
or long-term commitment that, as of the Closing Date, is not reflected in the
foregoing financial statements or the notes thereto and, as of any Funding Date
subsequent to the Closing Date, is not reflected in the most recent financial
statements delivered to Lenders pursuant to subsection 6.1 or the notes thereto
and that, in any such case, is material in relation to the business, operations,
properties, assets, condition (financial or otherwise) or prospects of Company
or any of its Subsidiaries.
5.4 NO MATERIAL ADVERSE EFFECT; NO RESTRICTED JUNIOR PAYMENTS.
Since December 31, 2002, no event or change has occurred that
has resulted in or evidences, either in any case or in the aggregate, a Material
Adverse Effect. Neither Company nor any of its Subsidiaries has directly or
indirectly declared, ordered, paid or made, or set apart any sum or property
for, any Restricted Junior Payment or agreed to do so except as permitted by
subsection 7.5.
5.5 TITLE TO PROPERTIES; LIENS; REAL PROPERTY; INTELLECTUAL
PROPERTY.
A. Title to Properties; Liens. Company and its Subsidiaries
have (i) good, sufficient and legal title to (in the case of fee interests in
real property), (ii) valid leasehold interests in (in the case of leasehold
interests in real or personal property), or (iii) good title to (in the case of
all other personal property), all of their respective properties and assets
reflected in the financial statements referred to in subsection 5.3 or in the
most recent financial statements delivered pursuant to subsection 6.1, in each
case except for assets disposed of since the date of such financial statements
in the ordinary course of business or as otherwise permitted under
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subsection 7.7. Except as permitted by this Agreement, all such properties and
assets are free and clear of Liens.
B. Real Property. As of the Closing Date, Schedule 5.5B
annexed hereto contains a true, accurate and complete list of (i) all fee
interests in any Real Property Assets and (ii) all leases, subleases or
assignments of leases (together with all amendments, modifications, supplements,
renewals or extensions of any thereof) affecting each Real Property Asset,
regardless of whether a Loan Party is the landlord, tenant or subtenant (whether
directly or as an assignee or successor in interest) under such lease, sublease
or assignment. Except as specified in Schedule 5.5B annexed hereto, each
agreement listed in clause (ii) of the immediately preceding sentence is in full
force and effect and neither Credit Agreement Party has knowledge of any default
that has occurred and is continuing thereunder, and each such agreement
constitutes the legally valid and binding obligation of each applicable Loan
Party, enforceable against such Loan Party in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles.
C. Intellectual Property. As of the Closing Date, Company
and its Subsidiaries own or have the right to use, all Intellectual Property
used in the conduct of their business, except where the failure to own or have
such right to use in the aggregate could not reasonably be expected to result in
a Material Adverse Effect. No claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, nor does either
Credit Agreement Party know of any valid basis for any such claim, except for
such claims that in the aggregate could not reasonably be expected to result in
a Material Adverse Effect. The use of such Intellectual Property by Company and
its Subsidiaries does not infringe on the rights of any Person, except for such
claims and infringements that, in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. All federal and state and all
foreign registrations of and applications for Intellectual Property, and all
unregistered Intellectual Property, that are owned or licensed by Company or any
of its Subsidiaries on the Closing Date are described on Schedule 5.5C annexed
hereto.
5.6 LITIGATION; ADVERSE FACTS.
Except as set forth in Schedule 5.6 annexed hereto, there are no
Proceedings (whether or not purportedly on behalf of Company or any of its
Subsidiaries) at law or in equity, or before or by any court or other Government
Authority (including any Environmental Claims) that are pending or, to the
knowledge of an Officer of either Credit Agreement Party, threatened against or
affecting Company or any of its Subsidiaries or any property of Company or any
of its Subsidiaries and that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. Neither Company nor any of
its Subsidiaries (i) is in violation of any applicable laws (including
Environmental Laws) that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect, or (ii) is subject to or in
default with respect to any final judgments, writs, injunctions, decrees, rules
or regulations of any court or other Government Authority that, individually or
in the aggregate, could reasonably be expected to result in a Material Adverse
Effect.
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5.7 PAYMENT OF TAXES.
Except to the extent permitted by subsection 6.3 (as if the
proviso in subsection 6.3 was contained in this subsection 5.7), (i) all tax
returns and reports of Company and its Subsidiaries required to be filed by any
of them have been timely filed (taking into account all valid extensions of time
for filing), and (ii) all taxes shown on such tax returns to be due and payable
and all assessments, fees and other governmental charges upon Company and its
Subsidiaries and upon their respective properties, assets, income, businesses
and franchises that are due and payable have been timely paid. Neither Credit
Agreement Party knows of any proposed tax assessment against Company or any of
its Subsidiaries that is not being contested by Company or such Subsidiary in
good faith and by appropriate proceedings; provided that such reserves or other
appropriate provisions, if any, as shall be required in conformity with GAAP
shall have been made or provided therefor.
5.8 PERFORMANCE OF AGREEMENTS; MATERIAL CONTRACTS.
A. Neither Company nor any of its Subsidiaries is in
default in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any of its Contractual Obligations, and no
condition exists that, with the giving of notice or the lapse of time or both,
would constitute such a default, except where the consequences, direct or
indirect, of such default or defaults, if any, could not reasonably be expected
to result in a Material Adverse Effect.
B. Part A of Schedule 5.8 contains a true, correct and
complete list of all the Material Contracts in effect on the Closing Date.
Except as described on Part A of Schedule 5.8, all such Material Contracts are
in full force and effect and no material defaults currently exist thereunder.
5.9 GOVERNMENTAL REGULATION.
Neither Company nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act or the Investment Company Act of 1940 or
under any other federal or state statute or regulation which may limit its
ability to incur Indebtedness or which may otherwise render all or any portion
of the Obligations unenforceable.
5.10 SECURITIES ACTIVITIES.
A. Neither Company nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock.
B. Following application of the proceeds of each Loan, not
more than 25% of the value of the assets (whether of either Credit Agreement
Party only or of such Credit Agreement Party and its Subsidiaries on a
consolidated basis) subject to the provisions of subsection 7.2 or 7.7 or
subject to any restriction contained in any agreement or instrument,
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between either Credit Agreement Party and any Lender or any Affiliate of any
Lender, relating to Indebtedness and within the scope of subsection 8.2, will be
Margin Stock.
5.11 EMPLOYEE BENEFIT PLANS.
A. Company, each of its Subsidiaries and each of their
respective ERISA Affiliates are in compliance with all applicable provisions and
requirements of ERISA and the regulations and published interpretations
thereunder with respect to each Employee Benefit Plan, and have performed all
their obligations under each Employee Benefit Plan, except for such instances of
noncompliance as have not resulted in and could not reasonably be expected to
result in a Material Adverse Effect. Each Employee Benefit Plan that is intended
to qualify under Section 401(a) of the Internal Revenue Code has received a
determination from the Internal Revenue Service that such plan is so qualified
as to its form, and to the Company's knowledge, each such Employee Benefit Plan
has not been operated in any way that would result in such Employee Benefit Plan
no longer being qualified.
B. During the five-year period prior to the date on which
this representation has been made or deemed made, no ERISA Event has occurred
that has resulted in or could reasonably be expected to result in, a Material
Adverse Effect.
C. The expected post retirement benefit obligation
(determined as of the last day of the Company's most recently ended fiscal year
in accordance with Financial Accounting Standards Board Statement No. 106,
without regard to liabilities attributable to continuation coverage mandated by
Section 4980B of the Code) of the Company and its ERISA Affiliates is not and
could not reasonably be expected to result in a Material Adverse Effect.
D. As of the most recent valuation date for any Pension
Plan, the amount of unfunded benefit liabilities (as defined in Section
4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans
(excluding for purposes of such computation any Pension Plans with respect to
which assets exceed benefit liabilities) could not reasonably be expected to
result in a Material Adverse Effect.
E. Company, its Subsidiaries and their respective ERISA
Affiliates have not incurred withdrawal liabilities under Section 4201 or 4204
of ERISA in respect to Multiemployer Plans that, individually or in the
aggregate would result in a Material Adverse Effect.
F. As of the date hereof, Company and its Subsidiaries have
made full payment when due of all required contributions to any Foreign Plan,
except where such failure to make full payment has not resulted in and could not
reasonably be expected to result in a Material Adverse Effect.
5.12 CERTAIN FEES.
No broker's or finder's fee or commission will be payable with
respect to this Agreement or any of the transactions contemplated hereby, and
Borrower, and on and after the
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Qualified Holding Company Formation Date, each of Borrower and Holdings, jointly
and severally, hereby indemnifies Lenders against, and agrees that they will
hold Lenders harmless from, any claim, demand or liability for any such broker's
or finder's fees alleged to have been incurred in connection herewith or
therewith and any expenses (including reasonable fees, expenses and
disbursements of counsel) arising in connection with any such claim, demand or
liability.
5.13 ENVIRONMENTAL PROTECTION.
Except as set forth in Schedule 5.13 annexed hereto:
(i) neither Company nor any of its Subsidiaries nor any of
their respective Facilities or operations are subject to any outstanding
written order, consent decree or settlement agreement with any Person
relating to (a) any Environmental Law, (b) any Environmental Claim, or
(c) any Hazardous Materials Activity;
(ii) neither Company nor any of its Subsidiaries has received
any letter or request for information under Section 104 of the
Comprehensive Environmental Response, Compensation, and Liability Act
(42 U.S.C. Section 9604) or any comparable state law;
(iii) there are and, to each Credit Agreement Party's
knowledge, have been no conditions, occurrences, or Hazardous Materials
Activities that could reasonably be expected to form the basis of an
Environmental Claim against Company or any of its Subsidiaries;
(iv) Commencing at least 5 years prior to the Closing Date,
Company has maintained an environmental management system for its and
each of Subsidiaries' operations that demonstrates a commitment to
environmental compliance and includes procedures for (a) tracking
changes in applicable Environmental Laws and modifying operations to
comply with new requirements thereunder, (b) training employees to
comply with applicable environmental requirements and updating such
training as necessary, (c) performing regular internal compliance audits
of each Facility and ensuring to establish methods of correction of any
incidents of non-compliance detected by means of such audits, and (d)
reviewing the compliance status of off-site hazardous waste disposal
facilities;
(v) compliance with all current or reasonably foreseeable
future requirements pursuant to or under Environmental Laws would not,
individually or in the aggregate, be reasonably expected to result in a
Material Adverse Effect.
5.14 EMPLOYEE MATTERS.
There is no strike or work stoppage in existence or threatened
involving Company or any of its Subsidiaries that could reasonably be expected
to result in a Material Adverse Effect.
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5.15 SOLVENCY.
Each Loan Party is and, upon the incurrence of any Obligations
by such Loan Party on any date on which this representation is made, will be,
Solvent.
5.16 MATTERS RELATING TO COLLATERAL.
A. Creation, Perfection and Priority of Liens. The
execution and delivery of the Collateral Documents by Loan Parties, together
with (i) the actions taken on or prior to the date hereof pursuant to
subsections 4.1L, 4.1M, 6.8 and 6.9 and (ii) the delivery to Administrative
Agent of any Pledged Collateral not delivered to Administrative Agent at the
time of execution and delivery of the applicable Collateral Document (all of
which Pledged Collateral has been so delivered) are effective to create in favor
of Administrative Agent for the benefit of Lenders, as security for the
respective Secured Obligations (as defined in the applicable Collateral Document
in respect of any Collateral), a valid First Priority Lien on all of the
Collateral, and all filings and other actions necessary or desirable to perfect
and maintain the perfection and First Priority status of such Liens have been
duly made or taken and remain in full force and effect, other than the filing of
any UCC financing statements delivered to Administrative Agent for filing (but
not yet filed) and the periodic filing of UCC continuation statements in respect
of UCC financing statements filed by or on behalf of Administrative Agent.
B. Foreign Intercompany Collateral. The execution and
delivery of the Foreign Intercompany Security Agreements will be effective to
create in favor of Borrower or Additives, as the case may be, a legal, valid and
enforceable First Priority Lien on each Foreign Subsidiary Payor's right, title
and interest in and to the Foreign Intercompany Collateral. Each Foreign
Subsidiary Payor has good and marketable title to all the Foreign Intercompany
Collateral, free and clear of all Liens, other than Liens permitted hereunder.
Pursuant to the Foreign Intercompany Security Agreements, all right, title, and
interest of each Foreign Subsidiary Payor in and to the Foreign Intercompany
Collateral will be pledged to Borrower or Additives, as the case may be. The
Foreign Intercompany Security Agreements are effective to create in favor of
Borrower or Additives, as the case may be, a legal, valid and enforceable First
Priority Lien on the Foreign Intercompany Collateral.
C. Governmental Authorizations. No authorization, approval
or other action by, and no notice to or filing with, any Government Authority is
required for either (i) the pledge or grant by any Loan Party of the Liens
purported to be created in favor of Administrative Agent pursuant to any of the
Collateral Documents or (ii) the exercise by Administrative Agent of any rights
or remedies in respect of any Collateral (whether specifically granted or
created pursuant to any of the Collateral Documents or created or provided for
by applicable law), except for filings or recordings contemplated by subsection
5.16A and except as may be required, in connection with the disposition of any
Pledged Collateral, by laws generally affecting the offering and sale of
securities.
D. Absence of Third-Party Filings. Except such as may have
been filed in favor of Administrative Agent as contemplated by subsection 5.16A
and to evidence permitted lease obligations and other Liens permitted pursuant
to subsection 7.2, (i) no effective UCC
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financing statement, fixture filing or other instrument similar in effect
covering all or any part of the Collateral is on file in any filing or recording
office and (ii) no effective filing covering all or any part of the IP
Collateral is on file in the PTO.
E. Margin Regulations. The pledge of the Pledged Collateral
pursuant to the Collateral Documents does not violate Regulation T, U or X of
the Board of Governors of the Federal Reserve System.
F. Information Regarding Collateral. All information
supplied to Administrative Agent by or on behalf of any Loan Party with respect
to any of the Collateral (other than search results of all effective UCC
financing statements and fixture filings and search results in connection with
the IP Collateral, in each case, supplied by a third party), in each case taken
as a whole with respect to any particular Collateral, is accurate and complete
in all material respects.
5.17 DISCLOSURE.
No representation or warranty of Company or any of its
Subsidiaries contained in the Confidential Information Memorandum or in any Loan
Document or in any other document, certificate or written statement furnished to
Lenders by or on behalf of Company or any of its Subsidiaries for use in
connection with the transactions contemplated by this Agreement contains any
untrue statement of a material fact or omits to state a material fact (known to
Company, in the case of any document not furnished by it) necessary in order to
make the statements contained herein or therein not misleading in light of the
circumstances in which the same were made. Any projections and pro forma
financial information contained in such materials are based upon good faith
estimates and assumptions believed by Credit Agreement Parties to be reasonable
at the time made, it being recognized by Lenders that such projections as to
future events are not to be viewed as facts and that actual results during the
period or periods covered by any such projections may differ from the projected
results. There are no facts known (or which should upon the reasonable exercise
of diligence be known) to Company (other than matters of a general economic
nature) that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect and that have not been disclosed herein or
in such other documents, certificates and statements furnished to Lenders for
use in connection with the transactions contemplated hereby.
Section 6. CREDIT AGREEMENT PARTIES' AFFIRMATIVE COVENANTS
Each Credit Agreement Party covenants and agrees that, so long
as any of the Commitments hereunder shall remain in effect and until payment in
full of all of the Loans and other Obligations and the cancellation or
expiration of all Letters of Credit, unless Requisite Lenders shall otherwise
give prior written consent, each Credit Agreement Party shall perform, and shall
cause each of its Subsidiaries to perform, all covenants in this Section 6.
6.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Each Credit Agreement Party will maintain, and cause each of its
Subsidiaries to
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maintain, a system of accounting established and administered in accordance with
sound business practices to permit preparation of financial statements in
conformity with GAAP. Borrower will deliver to Administrative Agent for
distribution to Lenders:
(i) Events of Default, etc.: promptly upon any officer of
either Credit Agreement Party obtaining knowledge (a) of any condition
or event that constitutes an Event of Default or Potential Event of
Default, or becoming aware that any Lender has given any notice (other
than to Administrative Agent) or taken any other action with respect to
a claimed Event of Default or Potential Event of Default, (b) that any
Person has given any notice to either Credit Agreement Party or any of
its Subsidiaries or taken any other action with respect to a claimed
default or event or condition of the type referred to in subsection 8.2,
or (c) of the occurrence of any event or change that has caused or
evidences, either in any case or in t he aggregate, a Material Adverse
Effect, an Officer's Certificate specifying the nature and period of
existence of such condition, event or change, or specifying the notice
given or action taken by any such Person and the nature of such claimed
Event of Default, Potential Event of Default, default, event or
condition, and what action Company or such other Loan Party has taken,
is taking and proposes to take with respect thereto;
(ii) Quarterly Financials: as soon as available and in any
event within 45 days after the end of each Fiscal Quarter of each Fiscal
Year, the consolidated balance sheets (including detail of shareholders'
equity) of Company and its Subsidiaries as at the end of such Fiscal
Quarter and the related consolidated statements of income and cash flows
of Company and its Subsidiaries for such Fiscal Quarter and for the
period from the beginning of the then current Fiscal Year to the end of
such fiscal period, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous
Fiscal Year, to the extent prepared for such fiscal period, all in
reasonable detail and certified by the chief financial officer of
Company that they fairly present, in all material respects, the
financial condition of Company and its Subsidiaries as at the dates
indicated and the results of their operations and their cash flows for
the periods indicated, subject to changes resulting from audit and
normal year-end adjustments;
(iii) Year-End Financials: as soon as available and in any
event within 90 days after the end of each Fiscal Year, (a) the
consolidated balance sheets (including details of shareholders' equity)
of Company and its Subsidiaries as at the end of such Fiscal Year and
the related consolidated statements of income and cash flows of Company
and its Subsidiaries for such Fiscal Year, setting forth in each case in
comparative form the corresponding figures for the previous Fiscal Year,
all in reasonable detail and certified by the chief financial officer of
Company that they fairly present, in all material respects, the
financial condition of Company and its Subsidiaries as at the dates
indicated and the results of their operations and their cash flows for
the periods indicated, and (b) in the case of such consolidated
financial statements, a report thereon of PricewaterhouseCoopers LLP or
other independent certified public accountants of recognized national
standing selected by Borrower and satisfactory to Administrative Agent,
which report shall be unqualified, shall express no doubts about the
ability of Company and its Subsidiaries to continue as a going concern,
and shall state that such
85
consolidated financial statements fairly present, in all material
respects, the consolidated financial position of Company and its
Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated in conformity
with GAAP applied on a basis consistent with prior years (except as
otherwise disclosed in such financial statements) and that the
examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally accepted
auditing standards;
(iv) Pricing and Compliance Certificates: together with each
delivery of financial statements pursuant to subdivisions (ii) and (iii)
above, (a) an Officer's Certificate of Borrower stating that the signers
have reviewed the terms of this Agreement and have made, or caused to be
made under their supervision, a review in reasonable detail of the
transactions and condition of Company and its Subsidiaries during the
accounting period covered by such financial statements and that such
review has not disclosed the existence during or at the end of such
accounting period, and that the signers do not have knowledge of the
existence as at the date of such Officer's Certificate, of any condition
or event that constitutes an Event of Default or Potential Event of
Default, or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof and what action
Borrower or any other Loan Party has taken, is taking and proposes to
take with respect thereto; and (b) a Compliance Certificate
demonstrating in reasonable detail compliance during and at the end of
the applicable accounting periods with the restrictions contained in
Section 7; in addition, on or before the 45th day following the end of
each Fiscal Quarter, a Pricing Certificate demonstrating in reasonable
detail the calculation of the Consolidated Leverage Ratio as of the end
of the four-Fiscal Quarter period then ended;
(v) Reconciliation Statements: if, as a result of any change
in accounting principles and policies from those used in the preparation
of the audited financial statements referred to in subsection 5.3, the
consolidated financial statements of Company and its Subsidiaries
delivered pursuant to subdivisions (ii), (iii) or (xii) of this
subsection 6.1 will differ in any material respect from the consolidated
financial statements that would have been delivered pursuant to such
subdivisions had no such change in accounting principles and policies
been made, then (a) together with the first delivery of financial
statements pursuant to subdivision (ii), (iii) or (xii) of this
subsection 6.1 following such change, consolidated financial statements
of Company and its Subsidiaries for (y) the current Fiscal Year to the
effective date of such change and (z) the two full Fiscal Years
immediately preceding the Fiscal Year in which such change is made, in
each case prepared on a pro forma basis as if such change had been in
effect during such periods, and (b) together with each delivery of
financial statements pursuant to subdivision (ii), (iii) or (xii) of
this subsection 6.1 following such change, if required pursuant to
subsection 1.2, a written statement of the chief accounting officer or
chief financial officer of Borrower setting forth the differences
(including any differences that would affect any calculations relating
to the financial covenants set forth in subsection 7.6) which would have
resulted if such financial statements had been prepared without giving
effect to such change;
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(vi) Accountants' Certification: together with each delivery
of consolidated financial statements pursuant to subdivision (iii)
above, a written statement by the independent certified public
accountants giving the report thereon (a) stating that their audit
examination has included a review of the terms of this Agreement and the
other Loan Documents as they relate to accounting matters, (b) stating
whether, in connection with their audit examination, any condition or
event that constitutes an Event of Default or Potential Event of Default
has come to their attention and, if such a condition or event has come
to their attention, specifying the nature and period of existence
thereof; provided that such accountants shall not be liable by reason of
any failure to obtain knowledge of any such Event of Default or
Potential Event of Default that would not be disclosed in the course of
their audit examination, and (c) stating that based on their audit
examination nothing has come to their attention that causes them to
believe either or both that the information contained in the
certificates delivered therewith pursuant to subdivision (iv) above is
not correct or that the matters set forth in the Compliance Certificates
delivered therewith pursuant to clause (b) of subdivision (iv) above for
the applicable Fiscal Year are not stated in accordance with the terms
of this Agreement;
(vii) Accountants' Reports: promptly upon receipt thereof
(unless restricted by applicable professional standards), copies of all
reports submitted to either Credit Agreement Party by independent
certified public accountants in connection with each annual, interim or
special audit of the financial statements of Company and its
Subsidiaries made by such accountants, including any comment letter
submitted by such accountants to management in connection with their
annual audit;
(viii) SEC Filings and Press Releases: promptly upon their
becoming available, copies of (a) all financial statements, reports,
notices and proxy statements sent or made available generally by either
Credit Agreement Party to its security holders or by any Subsidiary of
Company to its security holders other than Company or another Subsidiary
of Company, (b) all regular and periodic reports and all registration
statements (other than on Form S-8 or a similar form) and prospectuses,
if any, filed by either Credit Agreement Party or any of its
Subsidiaries with any securities exchange or with the Securities and
Exchange Commission or any governmental or private regulatory authority,
and (c) all press releases and other statements made available generally
by Company or any of its Subsidiaries to the public concerning material
developments in the business of Company or any of its Subsidiaries;
(ix) Litigation or Other Proceedings: (a) promptly upon any
Officer of either Credit Agreement Party obtaining knowledge of (1) the
institution of, or non-frivolous threat of, any Proceeding against or
affecting Company or any of its Subsidiaries or any property of Company
or any of its Subsidiaries not previously disclosed in writing by
Borrower to Lenders or (2) any material development in any Proceeding
that, in any case:
(x) if adversely determined, could reasonably be
expected to have a Material Adverse Effect; or
(y) seeks to enjoin or otherwise prevent the
consummation of, or to
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recover any damages or obtain relief as a result of, the
transactions contemplated hereby;
written notice thereof together with such other information as may be reasonably
available to either Credit Agreement Party to enable Lenders and their counsel
to evaluate such matters; and (b) within twenty days after the end of each
Fiscal Quarter, a schedule of all Proceedings involving an alleged liability of,
or claims against or affecting, Company or any of its Subsidiaries that is equal
to or greater than $500,000, and promptly after request by Administrative Agent
such other information as may be reasonably requested by Administrative Agent to
enable Administrative Agent and its counsel to evaluate any of such Proceedings;
(x) ERISA Events: promptly upon either Credit Agreement
Party or any of its Subsidiaries becoming aware of the occurrence of or
forthcoming occurrence of any ERISA Event, a written notice specifying
the nature thereof, what action Company, any of its Subsidiaries or any
of their respective ERISA Affiliates has taken, is taking or proposes to
take with respect thereto and, when known, any action taken or
threatened by the Internal Revenue Service, the Department of Labor or
the PBGC with respect thereto;
(xi) ERISA Notices: with reasonable promptness, copies of (a)
all notices received by Company, any of its Subsidiaries or any of their
respective ERISA Affiliates from a Multiemployer Plan sponsor concerning
an ERISA Event; and (b) copies of such other documents or governmental
reports or filings relating to any Employee Benefit Plan as
Administrative Agent shall reasonably request;
(xii) Financial Plans: as soon as practicable and in any event
no later than the first day of each Fiscal Year, a consolidated (and, on
or after the Qualified Reorganization Date, upon Administrative Agent's
request and to the extent reasonably available, consolidating) plan and
financial forecast for such Fiscal Year and the next four succeeding
Fiscal Years (the "Financial Plan" for such Fiscal Years), including (a)
forecasted consolidated (and, if applicable, consolidating) balance
sheets and forecasted consolidated (and, if applicable, consolidating)
statements of income and cash flows of Company and its Subsidiaries for
each such Fiscal Year and, together with pro forma Compliance
Certificates for each such Fiscal Year and an explanation of the
assumptions on which such forecasts are based, (b) forecasted
consolidated (and, if applicable, consolidating) statements of income
and cash flows of Company and its Subsidiaries for each month of the
first such Fiscal Year, together with an explanation of the assumptions
on which such forecasts are based, (c) the amount of forecasted
unallocated overhead for each such Fiscal Year, and (d) such other
information and projections as any Lender may reasonably request;
(xiii) Insurance: as soon as practicable after any material
adverse change in insurance coverage maintained by Company and its
Subsidiaries notice thereof to Administrative Agent specifying the
changes and reasons therefor;
(xiv) New Subsidiaries: promptly upon any Person becoming a
Subsidiary of Company, a written notice setting forth with respect to
such Person (a) the date on which
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such Person became a Subsidiary of Company and (b) all of the data
required to be set forth in Schedule 5.1 annexed hereto with respect to
all Subsidiaries of Company (it being understood that such written
notice shall be deemed to supplement Schedule 5.1 annexed hereto for all
purposes of this Agreement);
(xv) Material Contracts: promptly, and in any event within
ten Business Days after any Material Contract of Company or any of its
Subsidiaries set forth in Part B of Schedule 5.8 annexed hereto is
terminated or amended in a manner that is materially adverse to Company
or such Subsidiary, as the case may be, or any new Material Contract is
entered into, a written statement describing such event with copies of
such material amendments or new contracts, and an explanation of any
actions being taken with respect thereto;
(xvi) Other Information: with reasonable promptness, such
other information and data with respect to Company or any of its
Subsidiaries as from time to time may be reasonably requested by any
Lender.
6.2 EXISTENCE, ETC.
Except as permitted under subsection 7.7, each Credit Agreement
Party will, and will cause each of its Subsidiaries to, at all times preserve
and keep in full force and effect its existence in the jurisdiction of
organization specified on Schedule 5.1 and all rights and franchises material to
its business; provided, however that neither Company nor any of its Subsidiaries
shall be required to preserve any such right or franchise if the Governing Body
of Company or such Subsidiary shall determine that the preservation thereof is
no longer desirable in the conduct of the business of Company or such
Subsidiary, as the case may be, and that the loss thereof is not disadvantageous
in any material respect to either Credit Agreement Party, such Subsidiary or
Lenders.
6.3 PAYMENT OF TAXES AND CLAIMS; TAX.
A. Each Credit Agreement Party will, and will cause each of
its Subsidiaries to, pay all taxes, assessments and other governmental charges
imposed upon it or any of its properties or assets or in respect of any of its
income, businesses or franchises before any penalty accrues thereon (excluding
any penalties for an immaterial underpayment of estimated taxes), and all claims
(including claims for labor, services, materials and supplies) for sums that
have become due and payable and that by law have or may become a Lien upon any
of its properties or assets, prior to the time when any penalty or fine shall be
incurred with respect thereto; provided that no such tax, assessment, charge or
claim need be paid if it is being contested in good faith by appropriate
proceedings timely instituted and diligently conducted, so long as (i) such
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor and (ii) in the case of a
tax, assessment, charge or claim which has or may become a Lien against any of
the Collateral, such proceedings conclusively operate to stay the sale of any
portion of the Collateral to satisfy such charge or claim.
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B. Each Credit Agreement Party will not, nor will it permit
any of its Subsidiaries to, file or consent to the filing of any consolidated
income tax return with any Person (other than a Credit Agreement Party or any
Subsidiary of a Credit Agreement Party).
6.4 MAINTENANCE OF PROPERTIES; INSURANCE; APPLICATION OF NET
INSURANCE/ CONDEMNATION PROCEEDS.
A. Maintenance of Properties. Each Credit Agreement Party
will, and will cause each of its Subsidiaries to, maintain or cause to be
maintained in good repair, working order and condition, ordinary wear and tear
and casualty and condemnation excepted, all material properties used or useful
in its business and the business of its Subsidiaries (including all Intellectual
Property) and from time to time will make or cause to be made all appropriate
repairs, renewals and replacements thereof.
B. Insurance. Each Credit Agreement Party will, and will
cause each of its Subsidiaries to, maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance, third
party property damage insurance, business interruption insurance and casualty
insurance with respect to liabilities, losses or damage in respect of the
assets, properties and businesses of Company and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by corporations
of established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for
corporations similarly situated in the industry. Without limiting the generality
of the foregoing, Each Credit Agreement Party will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained (i) flood insurance with
respect to each Flood Hazard Property that is located in a community that
participates in the National Flood Insurance Program, in each case in compliance
with any applicable regulations of the Board of Governors of the Federal Reserve
System, and (ii) replacement value casualty insurance on the Collateral under
such policies of insurance, with such insurance companies, in such amounts, with
such deductibles, and covering such risks as are at all times satisfactory to
Administrative Agent in its commercially reasonable judgment. Each such policy
of insurance shall (a) name Administrative Agent for the benefit of Lenders as
an additional insured thereunder as its interests may appear and (b) in the case
of each business interruption and casualty insurance policy, contain a loss
payable clause or endorsement, satisfactory in form and substance to
Administrative Agent, that names Administrative Agent for the benefit of Lenders
as the loss payee thereunder for any covered loss in excess of $1,000,000 and
provides for at least 30 days prior written notice to Administrative Agent of
any modification or cancellation of such policy.
C. Application of Net Insurance/Condemnation Proceeds.
(i) Business Interruption Insurance. Upon receipt by Company
or any of its Subsidiaries of any business interruption insurance
proceeds constituting Net Insurance/Condemnation Proceeds, (a) so long
as no Event of Default or Potential Event of Default shall have occurred
and be continuing, Borrower or such other Subsidiary of Company may
retain and apply such Net Insurance/Condemnation Proceeds for working
capital purposes, and (b) if an Event of Default or Potential Event of
Default shall have
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occurred and be continuing, Borrower shall apply an amount equal to such
Net Insurance/Condemnation Proceeds to prepay the Loans (and/or the
Revolving Loan Commitments shall be reduced) as provided in subsection
2.4B;
(ii) Net Insurance/Condemnation Proceeds Received by Credit
Agreement Parties. Upon receipt by either Credit Agreement Party or any
of its Subsidiaries of any Net Insurance/Condemnation Proceeds other
than from business interruption insurance, (a) so long as no Event of
Default or Potential Event of Default shall have occurred and be
continuing, each Credit Agreement Party shall, or shall cause one or
more of its Subsidiaries to, promptly and diligently apply such Net
Insurance/Condemnation Proceeds to pay or reimburse the costs of
repairing, restoring or replacing the assets in respect of which such
Net Insurance/Condemnation Proceeds were received or, to the extent not
so applied, to prepay the Loans (and/or the Revolving Loan Commitments
shall be reduced) as provided in subsection 2.4B, and (b) if an Event of
Default or Potential Event of Default shall have occurred and be
continuing, Borrower shall apply an amount equal to such Net
Insurance/Condemnation Proceeds to prepay the Loans (and/or the
Revolving Loan Commitments shall be reduced) as provided in subsection
2.4B.
(iii) Net Insurance/Condemnation Proceeds Received by
Administrative Agent. Upon receipt by Administrative Agent of any Net
Insurance/Condemnation Proceeds as loss payee, (a) if the aggregate
amount of Net Insurance/Condemnation Proceeds received (and reasonably
expected to be received) by Administrative Agent in respect of any
covered loss exceeds $2,000,000, or if and to the extent Borrower would
have been required to apply such Net Insurance/Condemnation Proceeds (if
Company or its Subsidiaries had received them directly) to prepay the
Loans and/or reduce the Revolving Loan Commitments, Administrative Agent
shall, and Borrower hereby authorizes Administrative Agent to, apply
such Net Insurance/Condemnation Proceeds to prepay the Loans (and/or the
Revolving Loan Commitments shall be reduced) as provided in subsection
2.4B, and (b) to the extent the foregoing clause (a) does not apply and
(1) the aggregate amount of such Net Insurance/Condemnation Proceeds
received (and reasonably expected to be received) by Administrative
Agent in respect of any covered loss does not exceed $1,000,000,
Administrative Agent shall deliver such Net Insurance/Condemnation
Proceeds to Borrower, and each Credit Agreement Party shall, or shall
cause one or more of its Subsidiaries to, promptly apply such Net
Insurance/Condemnation Proceeds to the costs of repairing, restoring, or
replacing the assets in respect of which such Net Insurance/Condemnation
Proceeds were received, and (2) if the aggregate amount of Net
Insurance/Condemnation Proceeds received (and reasonably expected to be
received) by Administrative Agent in respect of any covered loss exceeds
$1,000,000, Administrative Agent shall hold such Net
Insurance/Condemnation Proceeds pursuant to the terms of the Security
Agreement and, so long as each Credit Agreement Party or any of its
Subsidiaries proceeds diligently to repair, restore or replace the
assets of Company or such Subsidiary in respect of which such Net
Insurance/Condemnation Proceeds were received, Administrative Agent
shall from time to time disburse to Borrower or such Subsidiary of
Company from the
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Collateral Account, to the extent of any such Net Insurance/Condemnation
Proceeds remaining therein in respect of the applicable covered loss,
amounts necessary to pay the cost of such repair, restoration or
replacement after the receipt by Administrative Agent of invoices or
other documentation reasonably satisfactory to Administrative Agent
relating to the amount of costs so incurred and the work performed
(including, if required by Administrative Agent, lien releases and
architects' certificates); provided, however that if at any time
Administrative Agent reasonably determines (A) that Company or any
Subsidiary of Company is not proceeding diligently with such repair,
restoration or replacement or (B) that such repair, restoration or
replacement cannot be completed with the Net Insurance/Condemnation
Proceeds then held by Administrative Agent for such purpose, together
with funds otherwise available to Company or any Subsidiary of Company
for such purpose, or that such repair, restoration or replacement cannot
be completed within 180 days after the receipt by Administrative Agent
of such Net Insurance/Condemnation Proceeds, Administrative Agent shall,
and Borrower hereby authorizes Administrative Agent to, apply such Net
Insurance/ Condemnation Proceeds to prepay the Loans (and/or the
Revolving Loan Commitments shall be reduced) as provided in subsection
2.4B.
6.5 INSPECTION RIGHTS; LENDER MEETING.
A. Inspection Rights. Each Credit Agreement Party shall,
and shall cause each of its Subsidiaries to, permit any authorized
representatives designated by any Lender to visit and inspect any of the
properties of Company or of any of its Subsidiaries, to inspect, copy and take
extracts from its and their financial and accounting records, and to discuss its
and their affairs, finances and accounts with its and their officers and
independent public accountants (provided that Borrower may, if it so chooses, be
present at or participate in any such discussion), all upon reasonable notice
and at such reasonable times during normal business hours and as often as may
reasonably be requested.
B. Lender Meeting. Borrower will, upon the request of
Administrative Agent or Requisite Lenders, participate in a meeting of
Administrative Agent and Lenders once during each Fiscal Year to be held at
Company's principal offices (or at such other location as may be agreed to by
Borrower and Administrative Agent) at such time as may be agreed to by Borrower
and Administrative Agent.
6.6 COMPLIANCE WITH LAWS, ETC.
Each Credit Agreement Party shall comply, and shall cause each
of its Subsidiaries and all other Persons on or occupying any Facilities to
comply, with the requirements of all applicable laws, rules, regulations and
orders of any Government Authority (including all Environmental Laws),
noncompliance with which could reasonably be expected to result in, individually
or in the aggregate, a Material Adverse Effect.
6.7 ENVIRONMENTAL MATTERS.
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A. Environmental Disclosure. Borrower will deliver to
Administrative Agent and Lenders:
(i) Environmental Audits and Reports. As soon as practicable
following receipt thereof by any Loan Party, copies of all environmental
investigations, analyses and reports of any kind or character, whether
prepared by personnel of Company or any of its Subsidiaries or by
independent consultants, governmental authorities or any other Persons,
with respect to significant environmental matters at any Facility or
with respect to any Environmental Claims;
(ii) Notice of Certain Releases, Remedial Actions, Etc.
Promptly upon the occurrence thereof, written notice describing in
reasonable detail (a) any Release required to be reported to any
federal, state or local governmental or regulatory agency under any
applicable Environmental Laws, (b) any remedial action taken by Company,
any Subsidiary of Company or any other Person in response to (1) any
Hazardous Materials Activities the existence of which could reasonably
be expected to result in one or more Environmental Claims having,
individually or in the aggregate, a Material Adverse Effect, or (2) any
Environmental Claims that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect, and (c)
Company's discovery of any occurrence or condition on any real property
adjoining or in the vicinity of any Facility that could cause such
Facility or any part thereof to be subject to any material restrictions
on the ownership, occupancy, transferability or use thereof under any
Environmental Laws.
(iii) Written Communications Regarding Environmental Claims,
Releases, Etc. As soon as practicable following the sending or receipt
thereof by either Credit Agreement Party or any of their respective
Subsidiaries, a copy of any and all written communications with respect
to (a) any Environmental Claims that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect, (b)
any Release required to be reported to any federal, state or local
governmental or regulatory agency, and (c) any request for information
from any governmental agency that suggests such agency is investigating
whether Company or any of its Subsidiaries may be potentially
responsible for any Hazardous Materials Activity.
(iv) Notice of Certain Proposed Actions Having Environmental
Impact. Prompt written notice describing in reasonable detail (a) any
proposed acquisition of stock, assets, or property by Company or any of
its Subsidiaries that could reasonably be expected to (1) expose Company
or any of its Subsidiaries to, or result in, Environmental Claims that
could reasonably be expected to result in, individually or in the
aggregate, a Material Adverse Effect or (2) affect the ability of
Company or any of its Subsidiaries to maintain in full force and effect
all material Governmental Authorizations required under any
Environmental Laws for their respective operations and (b) any proposed
action to be taken by Company or any of its Subsidiaries to modify
current operations in a manner that could reasonably be expected to
subject Company or any of its Subsidiaries to any material additional
obligations or requirements under any Environmental Laws.
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B. Company's Actions Regarding Hazardous Materials
Activities, Environmental Claims and Violations of Environmental Laws.
(i) Remedial Actions Relating to Hazardous Materials
Activities. Each Credit Agreement Party shall, and shall cause its
Subsidiaries to, in compliance with all applicable Environmental Laws,
promptly undertake, any and all investigations, studies, sampling,
testing, abatement, cleanup, removal, remediation or other response
actions necessary to remove, remediate, clean up or abate any Hazardous
Materials Activity on, under or about any Facility that is in violation
of any Environmental Laws or that is reasonably expected to present a
material risk of giving rise to an Environmental Claim.
(ii) Actions with Respect to Environmental Claims and
Violations of Environmental Laws. Each Credit Agreement Party shall
promptly take, and shall cause each of its Subsidiaries promptly to
take, any and all actions necessary to (i) cure any violation of
applicable Environmental Laws by Company or its Subsidiaries and (ii)
make an appropriate response to any Environmental Claim against Company
or any of its Subsidiaries and discharge any obligations it may have to
any Person thereunder.
6.8 EXECUTION OF SUBSIDIARY GUARANTY AND PERSONAL PROPERTY
COLLATERAL DOCUMENTS AFTER THE CLOSING DATE.
A. Execution of Subsidiary Guaranty and Personal Property
Collateral Documents. In the event that any Person becomes a Domestic Subsidiary
of Company after the date hereof, Borrower will promptly notify Administrative
Agent of that fact and cause such Domestic Subsidiary to execute and deliver to
Administrative Agent a counterpart of the Subsidiary Guaranty and Security
Agreement and to take all such further actions and execute all such further
documents and instruments (including actions, documents and instruments
comparable to those described in subsection 4.1L) as may be necessary or, in the
opinion of Administrative Agent, desirable to create in favor of Administrative
Agent, for the benefit of Lenders, a valid and perfected First Priority Lien on
all of the personal and mixed property assets of such Domestic Subsidiary
described in the applicable forms of Collateral Documents; provided that,
Investco shall not be required to execute a counterpart of the Subsidiary
Guaranty or the Security Agreement under this subsection 6.8A. In addition, as
provided in the Security Agreement, each Credit Agreement Party shall, or shall
cause the Subsidiary that owns the Capital Stock of such Person (including
without limitation Investco), to execute and deliver to Administrative Agent a
supplement to the Security Agreement and to deliver to Administrative Agent all
certificates representing such Capital Stock of such Person (accompanied by
irrevocable undated stock powers, duly endorsed in blank).
B. Foreign Subsidiaries. In the event that any Person
becomes a Foreign Subsidiary of Company (but only to the extent such Foreign
Subsidiary is held directly by Company, a Domestic Subsidiary of Company, or a
Foreign Subsidiary that is not treated as a corporation for United States
federal income tax purposes) after the date hereof, Borrower will promptly
notify Administrative Agent of that fact and (i) in the event such Foreign
Subsidiary is not treated as a corporation for United States federal income tax
purposes, cause such Foreign Subsidiary to execute and deliver to Administrative
Agent a Foreign Guaranty and Foreign
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Security Agreement and (ii) cause such Foreign Subsidiary to execute and deliver
to Administrative Agent such other documents and instruments and take such
further actions (including actions, documents and instruments comparable to
those described in subsection 4.1L) as may be necessary, or in the reasonable
opinion of Administrative Agent, desirable to create in favor of Administrative
Agent, for the benefit of Lenders, a valid and perfected First Priority Lien on
(x) with respect to any such Foreign Subsidiaries that are treated as
corporations for United States federal income tax purposes, 65% of the capital
stock of such Foreign Subsidiary and (y) with respect to any such Foreign
Subsidiaries that are not treated as corporations for United States federal
income tax purposes, 100% of the Capital Stock of such Foreign Subsidiary.
C. Subsidiary Organizational Documents, Legal Opinions,
Etc. Borrower shall deliver to Administrative Agent, together with such Loan
Documents, (i) certified copies of such Subsidiary's Organizational Documents,
together with, if such Subsidiary is a Domestic Subsidiary, a good standing
certificate from the Secretary of State of the jurisdiction of its organization
and each other state in which such Person is qualified to do business and, to
the extent generally available, a certificate or other evidence of good standing
as to payment of any applicable franchise or similar taxes from the appropriate
taxing authority of each of such jurisdictions, each to be dated a recent date
prior to their delivery to Administrative Agent, (ii) a certificate executed by
the secretary or similar officer of such Subsidiary as to (a) the fact that the
attached resolutions of the Governing Body of such Subsidiary approving and
authorizing the execution, delivery and performance of such Loan Documents are
in full force and effect and have not been modified or amended and (b) the
incumbency and signatures of the officers of such Subsidiary executing such Loan
Documents, (iii) an executed supplement to the Security Agreement evidencing the
pledge of the Capital Stock of such Subsidiary by Company or a Subsidiary of
Company that owns such Capital Stock, accompanied by certificate evidencing such
Capital Stock, together with an irrevocable undated stock powers duly endorsed
in blank and satisfactory in form and substance to Administrative Agent, and
(iv) a favorable opinion of the general counsel to such Subsidiary, in form and
substance satisfactory to Administrative Agent and its counsel, as to (a) the
due organization and good standing of such Subsidiary, (b) the due
authorization, execution and delivery by such Subsidiary of such Loan Documents,
(c) the enforceability of such Loan Documents against such Subsidiary and (d)
such other matters (including matters relating to the creation and perfection of
Liens in any Collateral pursuant to such Loan Documents) as Administrative Agent
may reasonably request, all of the foregoing to be satisfactory in form and
substance to Administrative Agent and its counsel.
6.9 MATTERS RELATING TO ADDITIONAL REAL PROPERTY COLLATERAL.
A. Collateral Access Agreement. From and after the Closing
Date, in the event that Company or any Subsidiary of Company (excluding any
Foreign Subsidiary that is treated as a corporation for United States federal
income tax purposes) acquires a Leasehold Property where Company or such
Subsidiary holds personal property with a fair market value equal to or in
excess of $1,000,000, Borrower shall inform Administrative Agent and, upon
Administrative Agent's request, shall, promptly deliver to Administrative Agent
a Collateral Access Agreement for such Leasehold Property.
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B. Additional Mortgages, Etc. From and after the Closing
Date, in the event that (i) any Loan Party acquires any fee interest in real
property or any Material Leasehold Property or (ii) at the time any Person
becomes a Subsidiary Guarantor, such Person owns or holds any fee interest in
real property or any Material Leasehold Property, in either case excluding any
such Real Property Asset the encumbrancing of which requires the consent of any
applicable lessor or then-existing senior lienholder, where Company and its
Subsidiaries have attempted in good faith, but are unable, to obtain such
lessor's or senior lienholder's consent (any such non-excluded Real Property
Asset described in the foregoing clause (i) or (ii) being an "Additional
Mortgaged Property"), Company or such other Loan Party shall deliver to
Administrative Agent, as soon as practicable after such Person acquires such
Additional Mortgaged Property or becomes a Subsidiary Guarantor, as the case may
be, a fully executed and notarized Mortgage (an "Additional Mortgage"), duly
recorded in all appropriate places in all applicable jurisdictions, encumbering
the interest of such Loan Party in such Additional Mortgaged Property; and such
opinions, appraisal, documents, title insurance, environmental reports that
would have been delivered on the Closing Date if such Additional Mortgaged
Property were a Closing Date Mortgaged Property or that may be reasonably
required by Administrative Agent, including, without limitation, in the case of
any Additional Mortgaged Property consisting of a Material Leasehold Property,
(a) a Landlord Consent and Estoppel with respect thereto and (b) evidence that
such Material Leasehold Property is a Recorded Leasehold Interest.
C. Environmental Reports. If reasonably required by
Administrative Agent, Company or such other Loan Party shall deliver to
Administrative Agent, as soon as practicable after such Person acquires any
Additional Mortgaged Property, reports and other information, in form, scope and
substance reasonably satisfactory to Administrative Agent, and prepared by
environmental consultants reasonably satisfactory to Administrative Agent and
Requisite Lenders, concerning any environmental hazards or liabilities to which
any Loan Party may be subject with respect to such Additional Mortgaged
Property.
D. Real Estate Appraisals. Each Credit Agreement Party
shall, and shall cause each of its Subsidiaries to, permit an independent real
estate appraiser satisfactory to Administrative Agent, upon reasonable notice,
to visit and inspect any Additional Mortgaged Property for the purpose of
preparing an appraisal of such Additional Mortgaged Property satisfying the
requirements of any applicable laws and regulations (in each case to the extent
required under such laws and regulations as determined by Administrative Agent
in its discretion).
6.10 SENIOR SECURED CREDIT FACILITY RATING.
Borrower shall maintain a Senior Secured Credit Facility Rating.
6.11 QUALIFIED HOLDING COMPANY FORMATION AND QUALIFIED
REORGANIZATION.
A. If Borrower elects to consummate the Qualified Holding
Company Formation, same shall have been consummated no later than the second
anniversary of the Closing Date. At the time of the consummation thereof, each
element of the Qualified Holding
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Company Formation shall be consummated in all material respects in accordance
with the requirements of the definition of Qualified Holding Company Formation
(and the component definitions appearing therein), the terms of the relevant
Qualified Holding Company Formation Documents therefor and all applicable laws.
The Qualified Holding Company Formation, including, without limitation, any and
all Tax effects, shall be reasonably satisfactory in form and substance to
Co-Arrangers. At the time of consummation of each element of the Qualified
Holding Company Formation, all material consents and approvals of, and filings
and registrations with, and all other actions in respect of, Government
Authorities required to make or consummate each such element of the Qualified
Holding Company Formation in accordance with the definition of Qualified Holding
Company Formation (and the component definitions appearing therein), the terms
of relevant Qualified Holding Company Formation Document therefor and all
applicable laws shall be (or have been) obtained, given, filed or taken and are
or will be in full force and effect (or effective judicial relief with respect
thereto shall have been obtained). Additionally, at the time of the consummation
of each element of the Qualified Holding Company Formation, there shall not
exist any judgment, order or injunction prohibiting or imposing material adverse
conditions upon any element of the Qualified Holding Company Formation, the
making of any Loan or the issuance of any Letter of Credit, or the performance
by either Credit Agreement Party and its Subsidiaries of their respective
obligations under the Qualified Holding Company Formation Documents therefor and
in accordance with all applicable laws. The consummation of the Qualified
Holding Company Formation shall be deemed to be a representation and warranty by
each Credit Agreement Party that conditions thereto specified in paragraphs A
and B of this subsection 6.11 have been satisfied in all material respects and
that same is permitted in accordance with the terms of this Agreement and the
other Loan Documents, which representation and warranty shall be deemed to be a
representation and warranty for all purposes hereunder, including, without
limitation, Sections 4 and 8.
B. On or prior to the Qualified Holding Company Formation
Date, if the Qualified Holding Company Formation is to be consummated, (i)
Holdings shall have duly authorized, executed and delivered to Administrative
Agent the Holdings Guaranty, and the Holdings Guaranty shall be in full force
and effect; (ii) Holdings shall have duly authorized, executed and delivered to
Administrative Agent a counterpart to this Agreement, and this Agreement shall
be in full force and effect; (iii)(A) Holdings shall have duly authorized,
executed and delivered to Administrative Agent the Holdings Security Agreement
and instruments related thereto shall have been recorded or filed in such manner
and in such places as are required by law to establish, perfect, preserve and
protect the Liens in favor of Administrative Agent for the benefit of the
Lenders required to be granted pursuant to the Collateral Documents, all in form
and substance satisfactory to Administrative Agent; (B) all taxes, fees and
other charges payable in connection therewith shall have been paid in full and
(C) each Credit Agreement Party shall, and shall have caused its Subsidiaries
to, take such other actions as may be necessary or, in the opinion of
Administrative Agent, desirable under local law (as advised by local counsel),
to create, maintain, effect, perfect (or render enforceable against third
parties), preserve, maintain and protect security interests granted (or
purported to be granted) by the Collateral Documents; (iv) the Administrative
Agent shall have received from Holdings, Borrower and each other Loan Party,
true and correct certified copies of resolutions of the Governing Bodies of such
Person with respect to the matters set forth in paragraphs A and B
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of this subsection 6.11, and such resolutions shall be satisfactory in form and
substance to Administrative Agent; (v) the Administrative Agent shall have
received from Holdings and each Subsidiary of Holdings that is not a Subsidiary
of Borrower an Officer's Certificate, dated the Qualified Holding Company
Formation Date, certifying and attaching true and correct copies of the
Organizational Documents of such Person, and all of the foregoing shall be
satisfactory to Administrative Agent; (vi) Administrative Agent shall have
received from Hunton & Williams LLP, counsel to the Loan Parties, an opinion
addressed to each Agent and the Lenders and dated the Qualified Holding Company
Formation Date, which opinion shall cover such matters incident to the Qualified
Holding Company Formation and the other transactions contemplated by this
subsection 6.11 as the Administrative Agent may reasonably request (including,
without limitation, customary opinions as to Holdings, Borrower or any of its
Subsidiaries and an opinion as to no conflict with the Loan Documents, the
Senior Note Indenture and any other material Indebtedness outstanding after
giving effect to the Qualified Holding Company Formation) and otherwise in form
and substance satisfactory to Administrative Agent; (vii) Administrative Agent
and Lenders shall have received a letter from the chief financial officer of
Holdings and an Officer's Certificate of Holdings dated the Qualified Holding
Company Formation Date in substantially the form of Exhibit XI annexed hereto
and with appropriate attachments, in each case demonstrating that, after giving
effect to the Qualified Holding Company Formation, each of Holdings and Borrower
and each of its Subsidiaries on a consolidated basis will be Solvent; and (viii)
Administrative Agent shall have received true and correct copies of all
Qualified Holding Company Formation Documents and all terms and conditions
thereof shall be consistent with the requirements of this Agreement and
otherwise be in form and substance reasonably satisfactory to Administrative
Agent.
C. If Borrower elects to consummate the Qualified
Reorganization, same shall have been consummated no later than the second
anniversary of the Closing Date. At the time of the consummation thereof, each
element of the Qualified Reorganization shall be consummated in all material
respects in accordance with the requirements of the definition Qualified
Reorganization (and the component definitions appearing therein), the terms of
the relevant Qualified Reorganization Documents therefor and all applicable
laws. The Qualified Reorganization, including, without limitation, any and all
Tax effects, shall be reasonably satisfactory in form and substance to
Co-Arrangers. At the time of consummation of each element of the Qualified
Reorganization, all material consents and approvals of, and filings and
registrations with, and all other actions in respect of, Government Authorities
required to make or consummate each such element of the Qualified Reorganization
in accordance with the definition of Qualified Reorganization (and the component
definitions appearing therein), the terms of relevant Qualified Reorganization
Document therefor and all applicable laws shall be (or have been) obtained,
given, filed or taken and are or will be in full force and effect (or effective
judicial relief with respect thereto shall have been obtained). Additionally, at
the time of the consummation of each element of the Qualified Reorganization,
there shall not exist any judgment, order or injunction prohibiting or imposing
material adverse conditions upon any element of the Qualified Reorganization,
the making of any Loan or the issuance of any Letter of Credit, or the
performance by either Credit Agreement Party and its Subsidiaries of their
respective obligations under the Qualified Reorganization Documents therefor and
in accordance with all applicable laws. The consummation of the Qualified
Reorganization shall be deemed to
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be a representation and warranty by each Credit Agreement Party that the
conditions thereto specified in paragraphs C and D of this subsection 6.11 have
been satisfied in all material respects and that same is permitted in accordance
with the terms of this Agreement and the other Loan Documents, which
representation and warranty shall be deemed to be a representation and warranty
for all purposes hereunder, including, without limitation, Sections 4 and 8.
D. On or prior to the consummation of the Qualified
Reorganization, if the Qualified Reorganization is to be consummated, (i) (A)
Additives shall have duly authorized, executed and delivered to Administrative
Agent any Collateral Documents requested by Administrative Agent and instruments
related thereto shall have been recorded or filed in such manner and in such
places as are required by law to establish, perfect, preserve and protect the
Liens in favor of Administrative Agent for the benefit of the Lenders required
to be granted pursuant to the Collateral Documents, all in form and substance
satisfactory to Administrative Agent; (B) all taxes, fees and other charges
payable in connection therewith shall have been paid in full and (C) each Credit
Agreement Party shall, and shall have caused its Subsidiaries to, take such
other actions as may be necessary or, in the opinion of Administrative Agent,
desirable under local law (as advised by local counsel), to create, maintain,
effect, perfect (or render enforceable against third parties), preserve,
maintain and protect security interests granted (or purported to be granted) by
the Collateral Documents; (ii) the Administrative Agent shall have received from
Holdings, Borrower and each other Loan Party, true and correct certified copies
of resolutions of the Governing Bodies of such Person with respect to the
matters set forth in paragraphs C and D of this subsection 6.11, and such
resolutions shall be satisfactory in form and substance to Administrative Agent;
(iii) the Administrative Agent shall have received an Officer's Certificate of
Additives, dated the date of the consummation of the Qualified Reorganization,
certifying and attaching true and correct copies of the Organizational Documents
of Additives, and all of the foregoing shall be satisfactory to Administrative
Agent; (iv) Administrative Agent shall have received from Hunton & Williams,
counsel to the Loan Parties, an opinion addressed to each Agent and the Lenders
and dated the date of the consummation of the Qualified Reorganization, which
opinion shall cover such matters incident to the Qualified Reorganization and
the other transactions contemplated by this subsection 6.11 as the
Administrative Agent may reasonably request (including, without limitation,
customary opinions as to Holdings, Borrower or any of its Subsidiaries and an
opinion as to no conflict with the Loan Documents, the Senior Notes Indenture
and any other material Indebtedness outstanding after giving effect to the
Qualified Reorganization) and otherwise in form and substance satisfactory to
Administrative Agent; (v) Administrative Agent and Lenders shall have received a
letter from the chief financial officer of each Credit Agreement Party an
Officer's Certificate of such Credit Agreement Party dated the date of the
consummation of the Qualified Reorganization in substantially the form of
Exhibit XI annexed hereto and with appropriate attachments, in each case
demonstrating that, after giving effect to the Qualified Reorganization, each
Credit Agreement Party and each of its Subsidiaries on a consolidated basis will
be Solvent; and (vii) Administrative Agent shall have received true and correct
copies of all Qualified Reorganization Documents and all terms and conditions
thereof shall be consistent with the requirements of this Agreement and
otherwise be in form and substance reasonably satisfactory to Administrative
Agent.
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6.12 CERTAIN REAL PROPERTY ASSETS.
A. Borrower shall, and Company shall cause Additives to, no
later than 90 days after the Closing Date, (a) sell each of the Excluded Real
Property Assets or (b) execute and deliver to Administrative Agent a fully
executed and notarized Mortgage, duly recorded in all appropriate places in all
applicable jurisdictions, encumbering the interest of Borrower or Additives, as
the case may be, in each of the Excluded Real Property Assets, and such
opinions, appraisal, documents, title insurance, environmental reports that
would have been delivered on the Closing Date if such Excluded Real Property
Asset was a Closing Date Mortgaged Property or that may be reasonably required
by Administrative Agent.
B. Company shall, no later than 90 days after the Closing
Date, (i) cause EPAL to (a) sell the U.K. Facility pursuant to a sale and
lease-back arrangement and execute and deliver to Borrower and Additives,
jointly, a fully executed and delivered First Priority Mortgage on its leasehold
interest or interests in such U.K. Facility, which Mortgage shall secure the
Foreign Intercompany Payables owed to Borrower by EPAL or (b) execute and
deliver to Borrower and Additives, jointly, a fully executed and delivered First
Priority Mortgage on its freehold interest in the U.K. Facility, in each case,
which Mortgage shall secure the Foreign Intercompany Payables owed to Borrower
or Additives, as the case may be, by EPAL and be duly recorded in all
appropriate places in all applicable jurisdictions, encumbering the interest of
EPAL in such U.K. Facility, and such legal opinions, appraisals, documents,
title insurance, environmental reports and other documents that would have been
delivered on the Closing Date if the U.K. Facility was a Closing Date Mortgaged
Property or that may be reasonably required by Administrative Agent and (ii), in
either case, assign such fully executed and notarized Mortgage to Administrative
Agent pursuant to the terms of the Security Agreement.
C. Borrower shall, no later than 30 Business Days after the
Closing Date, deliver to Administrative Agent surveys, in form, scope and
substance reasonably satisfactory to Administrative Agent for each of the
Closing Date Mortgaged Properties listed on Schedule 6.12 annexed hereto.
D. Borrower shall use its best efforts to cause Albemarle
Corporation to subordinate its interest in that certain Lease Agreement dated as
of January 1, 2002 by and between Borrower and Albemarle Corporation, a
memorandum of which lease was recorded February 5, 2002 as Clerk's Instrument
No. 02-003781, in the Clerk's Office Circuit Court, City of Richmond, Virginia,
to the Mortgage to be recorded in such Clerk's Office, pursuant to a
subordination, non-disturbance and attornment agreement among Albemarle
Corporation, Administrative Agent and Borrower, in form and substance reasonably
satisfactory to Administrative Agent.
6.13 ETHYL KOREA
As soon as practicable but in any event no later than 60 days
after the Closing Date, Borrower shall (i) pledge the Capital Stock of Ethyl
Korea to Administrative Agent pursuant to the Security Agreement as if Ethyl
Korea was a new Foreign Subsidiary and subject to subsection 6.8B or (b) cause
Ethyl Korea to be dissolved, or liquidated, and/or merged, or
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amalgamated, in any case, to or into Borrower or any wholly-owned Subsidiary of
Borrower (and in the case of any such merger, Borrower or such wholly-owned
Subsidiary shall be the continuing or surviving entity) such that Ethyl Korea
shall cease to exist.
6.14 POST-CLOSING DELIVERIES.
Borrower shall, and shall cause each of its Subsidiaries, as
applicable, to (i) take any actions set forth on Schedule 6.14 annexed hereto
and (ii) deliver each document, certificate or other item set forth on such
Schedule 6.14, in each case within the time period specified on such Schedule
6.14 (subject to any extension as provided in Schedule 6.14) and in form and
substance reasonably satisfactory to Administrative Agent.
Section 7. CREDIT AGREEMENT PARTIES' NEGATIVE COVENANTS
Each Credit Agreement Party covenants and agrees that, so long
as any of the Commitments hereunder shall remain in effect and until payment in
full of all of the Loans and other Obligations and the cancellation or
expiration of all Letters of Credit, unless Requisite Lenders shall otherwise
give prior written consent, each Credit Agreement Party shall perform, and shall
cause each of its Subsidiaries to perform, all covenants in this Section 7.
7.1 INDEBTEDNESS.
Each Credit Agreement Party shall not, and shall not permit any
of its Subsidiaries to, directly or indirectly, create, incur, assume or
guaranty, or otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness, except:
(i) Each Loan Party may become and remain liable with
respect to the Obligations;
(ii) Borrower and any Subsidiary of Company (other than
Investco) may become and remain liable with respect to Contingent
Obligations permitted by subsection 7.4 and, upon any matured
obligations actually arising pursuant thereto, the Indebtedness
corresponding to the Contingent Obligations so extinguished;
(iii) Borrower and any Subsidiary of Company (other than
Investco) may become and remain liable with respect to Indebtedness in
respect of Capital Leases, together with all Indebtedness in respect of
Capital Leases permitted pursuant to subsection 7.1(vi), not to exceed
$7,500,000 in the aggregate at any one time;
(iv) Borrower may become and remain liable with respect to
Indebtedness to any Subsidiary Guarantor, and any Subsidiary Guarantor
may become and remain liable with respect to Indebtedness to Borrower or
any other Subsidiary Guarantor; provided that (a) all such intercompany
Indebtedness shall be evidenced by a promissory note or other instrument
and such promissory note or other instrument shall have been pledged to
Administrative Agent pursuant to the Security Agreement and (b) all such
intercompany Indebtedness shall be subordinated in right of payment to
the payment in full of the
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Obligations pursuant to the terms of the applicable promissory notes or
an intercompany subordination agreement;
(v) (A) Any Foreign Subsidiary may become and remain liable
with respect to Indebtedness owed to Borrower or any Domestic Subsidiary
of Company (other than Investco and other than Indebtedness under the
Pledged Belgium Indebtedness) in an aggregate principal amount for all
such Foreign Subsidiaries not to exceed $12,000,000 at any time
outstanding provided that (i) all such intercompany Indebtedness shall
be evidenced by a promissory note or other instrument and such
promissory note or other instrument shall have been pledged to
Administrative Agent pursuant to the Security Agreement and (ii) all
such intercompany Indebtedness shall be subordinated in right of payment
to the payment in full of the Obligations and the obligations with
respect to the Senior Notes pursuant to the terms of the applicable
promissory notes or an intercompany subordination agreement and (B)
Ethyl Europe may become and remain liable with respect to Indebtedness
under the Pledged Belgium Indebtedness in an aggregate principal amount
not to exceed $20,000,000 at any time outstanding;
(vi) Borrower and any Subsidiary of Company, as applicable,
may remain liable with respect to Indebtedness existing as of the
Closing Date and described in Schedule 7.1 annexed hereto;
(vii) (A) Prior to the Qualified Holding Company Formation
Date, Borrower and (B) on or after the Qualified Holding Company
Formation Date, Holdings, may become and remain liable with respect to
unsecured Indebtedness evidenced by (x) the Senior Notes in an aggregate
principal amount not to exceed $150,000,000 and (y) additional senior
notes issued under the Senior Note Indenture in an aggregate principal
amount not to exceed $25,000,000, pursuant to documentation in form and
substance satisfactory to Administrative Agent; provided that the
proceeds of such issuance of additional senior notes shall be applied as
required pursuant to subsection 2.4B(iii)(d) or subsection 2.4D;
(viii) Borrower or any Subsidiary of Company (other than
Investco) may become and remain liable with respect to Indebtedness of
any Person assumed in connection with any acquisition of such Person
permitted under subsection 7.3 and a Person that becomes a direct or
indirect wholly-owned Subsidiary of Borrower as a result of any
acquisition permitted under subsection 7.3 may remain liable with
respect to Indebtedness existing on the date of such acquisition;
provided, that such Indebtedness is not created in anticipation of such
acquisition and the aggregate amount of such Indebtedness does not
exceed $10,000,000 outstanding at any time;
(ix) Foreign Subsidiaries of Company may become and remain
liable with respect to other Indebtedness in an aggregate principal
amount not to exceed $5,000,000 at any time outstanding; and
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(x) Borrower and any Domestic Subsidiary of Company (other
than Investco) may become and remain liable with respect to other
Indebtedness in an aggregate principal amount not to exceed $5,000,000
at any time outstanding.
7.2 LIENS AND RELATED MATTERS.
A. Prohibition on Liens. Each Credit Agreement Party shall
not, and shall not permit any of its Subsidiaries to, directly or indirectly,
create, incur, assume or permit to exist any Lien on or with respect to any
property or asset of any kind (including any document or instrument in respect
of goods or accounts receivable) of Company or any of its Subsidiaries, whether
now owned or hereafter acquired, or any income or profits therefrom, or file or
permit the filing of, or permit to remain in effect, any financing statement or
other similar notice of any Lien with respect to any such property, asset,
income or profits under the UCC or under any similar recording or notice
statute, except:
(i) Permitted Encumbrances;
(ii) Liens on any asset existing at the time of acquisition
of such asset by Borrower or a Subsidiary of Company, or Liens to secure
the payment of all or any part of the purchase price of an asset upon
the acquisition of such asset by Borrower or a Subsidiary of Company or
to secure any Indebtedness permitted hereby incurred by Borrower or a
Subsidiary of Company at the time of or with ninety days after the
acquisition of such asset, which Indebtedness is incurred for the
purpose of financing all or any part of the purchase price thereof;
provided, however, that the Lien shall apply only to the asset so
acquired and proceeds thereof; and provided further, that all such Liens
do not in the aggregate secure Indebtedness in excess of $5,000,000 at
any time;
(iii) Liens on assets of a Person that becomes a direct or
indirect Subsidiary of Company after the date of this Agreement,
provided, however, that such Liens exist at the time such Person becomes
a Subsidiary of Company and are not created in anticipation thereof and,
in any event, do not in the aggregate secure Indebtedness in excess of
$5,000,000 at any time; and
(iv) Liens described on the Closing Date Mortgage Policies;
(v) Liens described in Schedule 7.2 annexed hereto; and
(vi) Other Liens securing Indebtedness in an aggregate amount
not to exceed $5,000,000 at any time outstanding.
B. Equitable Lien in Favor of Lenders. If Company or any of
its Subsidiaries shall create or assume any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, other than Liens excepted by
the provisions of subsection 7.2A, it shall make or cause to be made effective
provision whereby the Obligations will be secured by such Lien equally and
ratably with any and all other Indebtedness secured thereby as long as any such
Indebtedness shall be so secured; provided that, notwithstanding the foregoing,
this
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covenant shall not be construed as a consent by Requisite Lenders to the
creation or assumption of any such Lien not permitted by the provisions of
subsection 7.2A.
C. No Further Negative Pledges. Neither Credit Agreement
Party nor any of their respective Subsidiaries shall enter into any agreement
prohibiting the creation or assumption of any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, except with respect to specific
property encumbered to secure payment of particular Indebtedness or to be sold
pursuant to an executed agreement with respect to an Asset Sale.
D. No Restrictions on Subsidiary Distributions to Company
or Other Subsidiaries. Each Credit Agreement Party will not, and will not permit
any of its Subsidiaries to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any such Subsidiary to (i) pay dividends or make any other
distributions on any of such Subsidiary's Capital Stock owned by Company or any
other Subsidiary of Company, (ii) repay or prepay any Indebtedness owed by such
Subsidiary to Company or any other Subsidiary of Company, (iii) make loans or
advances to Company or any other Subsidiary of Company, or (iv) transfer any of
its property or assets to Company or any other Subsidiary of Company, except (a)
as provided in this Agreement and (b) as may be provided in an agreement with
respect to an Asset Sale.
7.3 INVESTMENTS; ACQUISITIONS.
Each Credit Agreement Party shall not, and shall not permit any
of its Subsidiaries to, directly or indirectly, make or own any Investment in
any Person, including any Joint Venture, or acquire, by purchase or otherwise,
all or substantially all the business, property or fixed assets of, or Capital
Stock or other ownership interest of any Person, or any division or line of
business of any Person except:
(i) Company and its Subsidiaries may make and own
Investments in Cash Equivalents;
(ii) Company and its Subsidiaries may own the Investments
contemplated by the Qualified Holding Company Formation and the
Qualified Reorganization;
(iii) Borrower and its Subsidiaries may continue to own the
Investments owned by them as of the Closing Date in any Subsidiaries of
Borrower and Borrower and any wholly-owned Domestic Subsidiary of
Company may make and own additional equity Investments in their
respective wholly-owned Domestic Subsidiaries (other than Investco);
(iv) Borrower and any Subsidiary of Company may make
intercompany loans to the extent permitted under subsection 7.1(iv) or
7.1(v);
(v) Borrower and any Subsidiary of Company may make
Consolidated Capital Expenditures permitted by subsection 7.8;
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(vi) Borrower and any wholly-owned Domestic Subsidiary of
Company (other than Investco) may acquire assets (including Capital
Stock and Capital Stock of any wholly-owned Domestic Subsidiary formed
in connection with any such acquisition, in each case, so long as such
purchase of Capital Stock results in the formation of a wholly-owned
Domestic Subsidiary); provided, that the aggregate amount of
consideration paid by Borrower or such wholly-owned Domestic Subsidiary
in connection with such acquisition (i) in any Fiscal Year does not
exceed $50,000,000 in the aggregate and the Cash portion thereof does
not exceed $25,000,000 in the aggregate and (ii) during the term of this
Agreement does not exceed $150,000,000 in the aggregate and the Cash
portion thereof does not exceed $75,000,000 in the aggregate; provided,
further that in each case, for purposes of determining the aggregate
amount of consideration received pursuant to this subsection 7.3(vi),
any Indebtedness assumed as permitted under subsection 7.1(viii) shall
be deemed to be included in the Cash portion of the consideration; and
provided, further that each Credit Agreement Party shall, and shall
cause its Domestic Subsidiaries to, comply with the requirements of
subsections 6.8 and 6.9 with respect to each such acquisition that
results in a Person becoming a Subsidiary;
(vii) Borrower and any wholly-owned Subsidiary of Company
(other than Investco) may make additional Investments (a) in their
respective wholly-owned Foreign Subsidiaries (other than Ethyl Europe),
provided that, the amount of all such Investments constituting equity
Investments together with the amount of all such Investments
constituting loans or advances permitted under subsection 7.1(v)(A) does
not exceed $15,000,000 in the aggregate and (b) in Ethyl Europe,
provided that, the amount of all such Investments constituting equity
Investments together with the amount of all such Investments
constituting loans or advances permitted under subsection 7.1(v)(B) does
not exceed $25,000,000 in the aggregate;
(viii) Borrower and any Domestic Subsidiary of Company (other
than Investco) may make and own other Investments in an aggregate amount
not to exceed at any time $5,000,000;
(ix) Borrower and any Subsidiary of Company (other than
Investco) may acquire Securities in connection with the satisfaction or
enforcement of Indebtedness or claims due or owing to Borrower or any
Subsidiary of Company or as security for any such Indebtedness or claim;
and
(x) Borrower and any Subsidiary of Company may continue to
own the Investments described in Schedule 7.3 annexed hereto;
(xi) Borrower may make and own Investments in Investco in an
aggregate amount not to exceed $7,500,000 at any time Investco may make
and own Investments in marketable securities and debt instruments.
7.4 CONTINGENT OBLIGATIONS.
Each Credit Agreement Party shall not, and shall not permit any
of its
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Subsidiaries to, directly or indirectly, create or become or remain
liable with respect to any Contingent Obligation, except:
(i) Loan Parties may become and remain liable with respect
to Contingent Obligations under their respective Guaranties;
(ii) Borrower may become and remain liable with respect to
Contingent Obligations in respect of Letters of Credit and Company and
its Subsidiaries (other than Investco) may become and remain liable with
respect to Contingent Obligations in respect of foreign letters of
credit in an aggregate amount not to exceed at any time $3,000,000;
(iii) Borrower may become and remain liable with respect to
Contingent Obligations under Hedge Agreements with respect to
Indebtedness in an aggregate notional principal amount not to exceed at
any time $50,000,000; provided, that such Hedge Agreements are not
entered into for speculative purposes;
(iv) Borrower and any Subsidiary of Company (other than
Investco) may become and remain liable with respect to Contingent
Obligations in respect of customary indemnification and purchase price
adjustment obligations incurred in connection with Asset Sales or other
sales of assets;
(v) Borrower and any Subsidiary of Company (other than
Investco) may become and remain liable with respect to Contingent
Obligations under guarantees in the ordinary course of business of the
obligations of suppliers, customers, franchisees and licensees of
Borrower and any Subsidiary of Company (other than Investco) in an
aggregate amount not to exceed at any time $2,000,000;
(vi) Borrower and any wholly-owned Domestic Subsidiary of
Company (other than Investco) may become and remain liable with respect
to Contingent Obligations in respect of any Indebtedness of Borrower or
any wholly-owned Domestic Subsidiary of Company (other than Investco)
permitted by subsection 7.1;
(vii) Borrower and its Subsidiaries, as applicable, may remain
liable with respect to Contingent Obligations described in Schedule 7.4
annexed hereto;
(viii) Borrower and any Guarantor may become and remain liable
with respect to Contingent Obligations arising under any unsecured
guaranties of the Senior Notes;
(ix) Borrower may become and remain liable with respect to
Contingent Obligations under a guaranty in connection with the sale and
subsequent lease of the U.K.Facility in accordance with subsection 6.12B
in an aggregate amount not to exceed $10,500,000; and
(x) Borrower and any Domestic Subsidiary of Company (other
than Investco) may become and remain liable with respect to other
Contingent Obligations; provided
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that the maximum aggregate liability, contingent or otherwise, of
Borrower and any Subsidiary of Company in respect of all such Contingent
Obligations shall at no time exceed $2,000,000.
7.5 RESTRICTED JUNIOR PAYMENTS.
Each Credit Agreement Party shall not, and shall not permit any
of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set
apart any sum for any Restricted Junior Payment; provided (i) that Borrower may
make regularly scheduled payments of interest in respect of the Senior Notes in
accordance with the terms of, and only to the extent required by the indenture
or other agreement pursuant to which such Senior Notes were issued, as such
indenture or other agreement may be amended from time to time to the extent
permitted under subsection 7.12B, (ii) so long as (A) no Event of Default or
Potential Event of Default shall have occurred and be continuing on the date
such Restricted Junior Payment is declared or to be made, nor would an Event of
Default or Potential Event of Default result from the making of such Restricted
Junior Payment, (B) after giving effect to the making of such Restricted Junior
Payment the Credit Agreement Parties shall be in pro forma compliance with each
of the covenants contained in subsection 7.6 for the most recent full Fiscal
Quarter immediately preceding the date of such payment for which the relevant
financial information has been delivered pursuant to clauses (ii) and (iii) of
subsection 6.1, and (C) Borrower shall have delivered to Administrative Agent an
Officer's Certificate in form and substance satisfactory to Administrative Agent
(including a calculation of the compliance with the covenants contained in
subsection 7.6) certifying as to the accuracy of the foregoing clauses (A) and
(B) above, either Credit Agreement Party or, if after the Qualified
Reorganization Date, Additives, may make (1) Restricted Junior Payments
described in subsection (i) of the definition of Restricted Junior Payment and
(2) Restricted Junior Payments described in subsections (ii) and (iii) of the
definition of Restricted Junior Payment; provided, that the aggregate amount of
Restricted Junior Payments made pursuant to the preceding clauses (1) and (2)
shall not exceed $5,000,000 in the aggregate in any Fiscal Year; and (iii) on
and after the Qualified Holding Company Formation Date, so long as no Event of
Default or Potential Event of Default shall have occurred and be continuing or
shall be caused thereby, Borrower, or if on or after the Qualified
Reorganization Date, Borrower and Additives, may make Restricted Junior Payments
to Holdings (a) in an aggregate amount not to exceed $500,000 in any Fiscal
Year, to the extent necessary to permit Holdings to pay general administrative
costs and expenses and (b) to the extent necessary to permit Holdings to
discharge the consolidated tax liabilities of Holdings and its Subsidiaries, in
each case so long as Holdings applies the amount of any such Restricted Junior
Payment for such purpose.
7.6 FINANCIAL COVENANTS.
A. Minimum Interest Coverage Ratio. Neither Credit
Agreement Party shall permit the ratio of (i) Consolidated EBITDA to (ii)
Consolidated Cash Interest Expense for any four-Fiscal Quarter period ending on
any of the dates set forth below to be less than the correlative ratio
indicated:
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FISCAL QUARTER ENDING: MINIMUM INTEREST
COVERAGE RATIO
- -------------------------------------------------------------------------------------------------
June 30, 2003 3.2500:1.00
September 30, 2003 3.2500:1.00
December 31, 2003 3.2500:1.00
March 31, 2004 3.3125:1.00
June 30, 2004 3.3750:1.00
September 30, 2004 3.4375:1.00
December 31, 2004 3.5000:1.00
March 31, 2005 3.5625:1.00
June 30, 2005 3.6250:1.00
September 30, 2005 3.6875:1.00
December 31, 2005 3.7500:1.00
March 31, 2006 3.8125:1.00
June 30, 2006 3.8750:1.00
September 30, 2006 3.9375:1.00
December 31, 2006 and thereafter 4.0000:1.00
B. Maximum Senior Secured Leverage Ratio. Neither Credit
Agreement Party shall permit the Consolidated Senior Secured Leverage Ratio as
of the last day of any Fiscal Quarter, commencing with the second Fiscal Quarter
in 2003, to exceed 2.25:1.00.
C. Maximum Leverage Ratio. Neither Credit Agreement Party
shall permit the Consolidated Leverage Ratio as of the last day of the most
recently ended Fiscal Quarter ending on any of the dates set forth below to
exceed the correlative ratio indicated:
FISCAL QUARTER ENDING: MAXIMUM LEVERAGE RATIO
- ----------------------------------------------------------------------------------------------------
June 30, 2003 4.10:1.00
September 30, 2003 4.10:1.00
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FISCAL QUARTER ENDING: MAXIMUM LEVERAGE RATIO
- ----------------------------------------------------------------------------------------------------
December 31, 2003 4.10:1.00
March 31, 2004 3.95:1.00
June 30, 2004 3.75:1.00
September 30, 2004 3.55:1.00
December 31, 2004 3.35:1.00
March 31, 2005 3.25:1.00
June 30, 2005 3.15:1.00
September 30, 2005 3.05:1.00
December 31, 2005 2.90:1.00
March 31, 2006 2.80:1.00
June 30, 2006 2.70:1.00
September 30, 2006 2.60:1.00
December 31, 2006 and thereafter 2.50:1.00
D. Minimum Consolidated Net Worth. Neither Credit Agreement
Party shall permit Consolidated Net Worth as of any date of determination to be
less than the sum of (x) $145,223,000 plus (y) 75% of Consolidated Net Income
for each Fiscal Quarter ending prior to such date of determination, commencing
with Fiscal Quarter ending June 30, 2003 plus (z) 100% of Net Equity Proceeds
received by either Credit Agreement Party or any of its Subsidiaries since the
Closing Date up to such date of determination.
7.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES.
Each Credit Agreement Party shall not, and shall not permit any
of its Subsidiaries to, alter the corporate, capital or legal structure of
Company or any of its Subsidiaries, or enter into any transaction of merger or
consolidation, or liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or
sublessor), transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, property or assets (including its
notes or receivables and Capital Stock of a Subsidiary, whether newly issued or
outstanding), whether now owned or hereafter acquired, except:
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(i) any Subsidiary of Borrower (other than Investco) and, on
and after the Qualified Holding Company Formation Date, any Subsidiary
of Company (other than Borrower or Investco) may be merged with or into
Borrower or any wholly-owned Subsidiary Guarantor, or be liquidated,
wound up or dissolved, or all or any part of its business, property or
assets may be conveyed, sold, leased, transferred or otherwise disposed
of, in one transaction or a series of transactions, to Borrower or any
wholly-owned Subsidiary Guarantor; provided that, in the case of such a
merger, Borrower or such wholly-owned Subsidiary Guarantor shall be the
continuing or surviving Person;
(ii) Borrower and any Subsidiary of Company (other than
Investco) may sell or otherwise dispose of assets in transactions that
do not constitute Asset Sales; provided that the consideration received
for such assets shall be in an amount at least equal to the fair market
value thereof;
(iii) Borrower may consummate the Qualified Holding Company
Formation and/or the Qualified Reorganization at any time within two
years after the Closing Date;
(iv) Borrower and any Subsidiary of Company may dispose of
obsolete, worn out or surplus property in the ordinary course of
business;
(v) Borrower and any Subsidiary of Company (other than
Investco) may make Asset Sales of assets having a fair market value not
in excess of $10,000,000 in the aggregate during the term of this
Agreement; provided that (a) the consideration received for such assets
shall be in an amount at least equal to the fair market value thereof;
(b) the sole consideration received shall be cash; and (c) the proceeds
of such Asset Sales shall be applied as required by subsection
2.4B(iii)(a) or subsection 2.4D. Notwithstanding anything to the
contrary contained in this subsection 7.7(v), the Asset Sales listed on
Schedule 7.7 annexed hereto shall not be included in the $10,000,000 set
forth above provided that the proceeds of such Asset Sales shall be
applied as required by subsection 2.4B(iii)(a) or subsection 2.4D;
(vi) in order to resolve disputes that occur in the ordinary
course of business, Borrower and any Subsidiary of Company may discount
or otherwise compromise for less than the face value thereof, notes or
accounts receivable;
(vii) Borrower or any Subsidiary of Company may sell or
dispose of shares of Capital Stock of any of its Subsidiaries in order
to qualify members of the Governing Body of the Subsidiary if required
by applicable law;
(viii) Investco may sell or dispose of marketable securities
and debt instruments; and
(ix) Any Person (other than Investco) may be merged with or
into Borrower or any Subsidiary of Company (other than Investco) if the
acquisition of the Capital Stock of such Person by Borrower or such
Subsidiary would have been permitted pursuant to subsection 7.3;
provided that (a) in the case of Borrower, Borrower shall be the
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continuing surviving Person, (b) if a Subsidiary is not the surviving or
continuing Person, the surviving Person becomes a Subsidiary and
complies with the provisions of subsection 6.8 and (b) no Potential
Event of Default or Event of Default shall have occurred or be
continuing after giving effect thereto.
7.8 CONSOLIDATED CAPITAL EXPENDITURES.
Each Credit Agreement Party shall not, and shall not permit its
Subsidiaries to, make or incur Consolidated Capital Expenditures, in any Fiscal
Year indicated below, in an aggregate amount in excess of the corresponding
amount (the "Maximum Consolidated Capital Expenditures Amount") set forth below
opposite such Fiscal Year:
FISCAL YEAR MAXIMUM CONSOLIDATED
CAPITAL EXPENDITURES
- ---------------------------------------------------------------------------------------------------
2003 $ 20,000,000
2004 and thereafter $ 25,000,000
7.9 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
Except as set forth in Schedule 7.9 annexed hereto, neither
Credit Agreement Party shall, nor will either Credit Agreement Party permit any
of its Subsidiaries to, directly or indirectly, enter into or permit to exist
any transaction (including the purchase, sale, lease or exchange of any property
or the rendering of any service) with any holder of 5% or more of any class of
equity Securities of Company or with any Affiliate of Company or of any such
holder, on terms that are less favorable to Company or that Subsidiary, as the
case may be, than those that might be obtained at the time from Persons who are
not such a holder or Affiliate; provided that the foregoing restriction shall
not apply to (i) any transaction between Borrower and any wholly-owned Domestic
Subsidiaries of Company or between any wholly-owned Domestic Subsidiaries of
Company (other than Investco) or (ii) reasonable and customary fees paid to
members of the Governing Bodies of Company and its Subsidiaries.
7.10 Sales and Lease-Backs.
Except as set forth in Schedule 7.10 annexed hereto, neither
Credit Agreement Party shall, nor will either Credit Agreement Party permit any
of its Subsidiaries to, directly or indirectly, become or remain liable as
lessee or as a guarantor or other surety with respect to any lease, whether an
Operating Lease or a Capital Lease, of any property (whether real, personal or
mixed), whether now owned or hereafter acquired, (i) that Borrower or any
Subsidiary of Company has sold or transferred or is to sell or transfer to any
other Person (other than Company or any of its Subsidiaries) or (ii) that
Borrower or any Subsidiary of Company intends to use for substantially the same
purpose as any other property that has been or is to be sold or transferred by
Borrower or any Subsidiary of Company to any Person (other than Borrower or any
Subsidiary of Company) in connection with such lease; provided, EPAL may become
and remain liable as lessee in connection with the sale and subsequent lease of
the U.K. Facility in accordance with subsection 6.12B.
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7.11 CONDUCT OF BUSINESS.
A. From and after the Closing Date, subject to subsections
7.11B, C and D, Borrower shall not, and shall not permit any of its Subsidiaries
to, engage in any business other than (i) the businesses engaged in by Borrower
and its Subsidiaries on the Closing Date and similar or related businesses and
(ii) such other lines of business as may be consented to by Requisite Lenders.
B. From and after the Closing Date, neither Credit
Agreement Party shall permit Intermediate Holdco to engage in any business other
than as permitted under subsection 8.13.
C. From and after the Closing Date, neither Credit
Agreement Party shall permit Investco to engage in any business other than as
permitted under subsection 8.14.
D. From and after the Qualified Holding Company Formation
Date, (i) Holdings shall not permit any of its Subsidiaries to engage in any
business other than (x) the businesses engaged in by Borrower and the
Subsidiaries of Company on the Closing Date and similar or related businesses
and (y) such other lines of business as may be consented to by Requisite Lenders
and (ii) Holdings shall not engage in any business other than as permitted under
subsection 8.15.
7.12 AMENDMENTS OR WAIVERS OF CERTAIN AGREEMENTS; AMENDMENTS OF
DOCUMENTS RELATING TO SENIOR INDEBTEDNESS.
A. Amendments or Waivers of Certain Agreements. Neither
Credit Agreement Party will agree to, nor will either Credit Agreement Party
permit any of its Subsidiaries to agree to, any material amendment to, or waive
any of its material rights under, any Related Agreement after the Closing Date
without in each case obtaining the prior written consent of Requisite Lenders to
such amendment or waiver.
B. Amendments of Documents Relating to Senior Note
Documents. Neither Credit Agreement Party shall, nor will either Credit
Agreement Party permit any of its Subsidiaries to, amend or otherwise change the
terms of the Senior Note Documents, or make any payment consistent with an
amendment thereof or change thereto, if the effect of such amendment or change
is to increase the interest rate on such Senior Notes, change (to earlier dates)
any dates upon which payments of principal or interest are due thereon, change
any event of default or condition to an event of default with respect thereto
(other than to eliminate any such event of default or increase any grace period
related thereto), change the redemption, prepayment or defeasance provisions
thereof, change the subordination provisions thereof (or of any guaranty
thereof), or change any collateral therefor (other than to release such
collateral), or if the effect of such amendment or change, together with all
other amendments or changes made, is to increase materially the obligations of
the obligor thereunder or to confer any additional rights on the holders of such
Senior Notes (or a trustee or other representative on their behalf) which would
be adverse to Company or any of its Subsidiaries or Lenders.
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7.13 FISCAL YEAR.
Neither Credit Agreement Party shall change its Fiscal Year-end
from December 31 of each calendar year.
Section 8. EVENTS OF DEFAULT
If any of the following conditions or events ("Events of
Default") shall occur:
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by Borrower to pay any installment of principal of or
interest on any Loan when due, whether at stated maturity, by acceleration, by
notice of voluntary prepayment, by mandatory prepayment or otherwise; failure by
Borrower to pay when due any amount payable to an Issuing Lender in
reimbursement of any drawing under a Letter of Credit; or failure by Borrower to
pay any fee or any other amount due under this Agreement within five days after
the date due; or
8.2 DEFAULT IN OTHER AGREEMENTS.
(i) Failure of Company or any of its Subsidiaries to pay
when due any principal of or interest on or any other amount payable in
respect of one or more items of Indebtedness (other than Indebtedness
referred to in subsection 8.1) or Contingent Obligations in an
individual principal amount of $2,000,000 or more or with an aggregate
principal amount of $5,000,000 or more, in each case beyond the end of
any grace period provided therefor; or
(ii) breach or default by Company or any of its Subsidiaries
with respect to any other material term of (a) one or more items of
Indebtedness or Contingent Obligations in the individual or aggregate
principal amounts referred to in clause (i) above or (b) any loan
agreement, mortgage, indenture or other agreement relating to such
item(s) of Indebtedness or Contingent Obligation(s), if the effect of
such breach or default is to cause, or to permit the holder or holders
of that Indebtedness or Contingent Obligation(s) (or a trustee on behalf
of such holder or holders) to cause, that Indebtedness or Contingent
Obligation(s) to become or be declared due and payable prior to its
stated maturity or the stated maturity of any underlying obligation, as
the case may be (upon the giving or receiving of notice, lapse of time,
both, or otherwise); or
8.3 BREACH OF CERTAIN COVENANTS.
Failure of any Loan Party to perform or comply with any term or
condition contained in subsection 2.5 or 6.2 or Section 7 of this Agreement; or
8.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement
made by any Loan Party herein or in any other Loan Document or in any statement
or certificate at any time given
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by any Loan Party in writing pursuant hereto or thereto or in connection
herewith or therewith shall be false in any material respect on the date as of
which made; or
8.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Any Loan Party shall default in the performance of or compliance
with any term contained in this Agreement or any of the other Loan Documents,
other than any such term referred to in any other subsection of this Section 8,
and such default shall not have been remedied or waived within 30 days after the
earlier of (i) an Officer of either Credit Agreement Party or such Loan Party
becoming aware of such default or (ii) receipt by either Credit Agreement Party
or such Loan Party of notice from Administrative Agent or any Lender of such
default; or
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter
a decree or order for relief in respect of Company or any of its
Subsidiaries in an involuntary case under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, which decree or order is not stayed; or any other
similar relief shall be granted under any applicable federal or state
law; or
(ii) an involuntary case shall be commenced against Company
or any of its Subsidiaries under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over Company
or any of its Subsidiaries, or over all or a substantial part of its
property, shall have been entered; or there shall have occurred the
involuntary appointment of an interim receiver, trustee or other
custodian of Company or any of its Subsidiaries for all or a substantial
part of its property; or a warrant of attachment, execution or similar
process shall have been issued against any substantial part of the
property of Company or any of its Subsidiaries, and any such event
described in this clause (ii) shall continue for 60 days unless
dismissed, bonded or discharged; or
8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Company or any of its Subsidiaries shall have an order
for relief entered with respect to it or commence a voluntary case under
the Bankruptcy Code or under any other applicable bankruptcy, insolvency
or similar law now or hereafter in effect, or shall consent to the entry
of an order for relief in an involuntary case, or to the conversion of
an involuntary case to a voluntary case, under any such law, or shall
consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its
property; or Company or any of its Subsidiaries shall make any
assignment for the benefit of creditors; or
114
(ii) Company or any of its Subsidiaries shall be unable, or
shall fail generally, or shall admit in writing its inability, to pay
its debts as such debts become due; or the Governing Body of Company or
any of its Subsidiaries (or any committee thereof) shall adopt any
resolution or otherwise authorize any action to approve any of the
actions referred to in clause (i) above or this clause (ii); or
8.8 JUDGMENTS AND ATTACHMENTS.
Any money judgment, writ or warrant of attachment or similar
process involving (i) in any individual case an amount in excess of $2,000,000
or (ii) in the aggregate at any time an amount in excess of $5,000,000 (in
either case not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage) shall be entered or
filed against Company or any of its Subsidiaries or any of their respective
assets and shall remain undischarged, unvacated, unbonded or unstayed for a
period of 60 days (or in any event later than five days prior to the date of any
proposed sale thereunder); or
8.9 DISSOLUTION.
Any order, judgment or decree shall be entered against Company
or any of its Subsidiaries decreeing the dissolution or split up of Company or
that Subsidiary and such order shall remain undischarged or unstayed for a
period in excess of 30 days; or
8.10 EMPLOYEE BENEFIT PLANS.
There shall occur one or more ERISA Events or similar events in
respect of any Foreign Plans, that individually or in the aggregate results in
or might reasonably be expected to result in liability of Company, any of its
Subsidiaries or any of their respective ERISA Affiliates in excess of $5,000,000
during the term of this Agreement; or there shall occur as of the later of (i)
the end of the plan year or (ii) the last day of the period in which
contributions are permitted with respect to such plan year any "accumulated
funding deficiency" (as such term is defined in Section 304 of ERISA and Section
412 of the Internal Revenue Code), whether or not waived, under any Pension
Plans or similar deficiency under any Foreign Plans which exceeds $5,000,000; or
8.11 CHANGE IN CONTROL.
A Change in Control shall have occurred; or
8.12 INVALIDITY OF LOAN DOCUMENTS; FAILURE OF SECURITY; REPUDIATION
OF OBLIGATIONS.
At any time after the execution and delivery thereof, (i) any
Loan Document or any provision thereof, for any reason other than the
satisfaction in full of all Obligations, shall cease to be in full force and
effect (other than in accordance with its terms) or shall be declared to be null
and void, (ii) Administrative Agent shall not have or shall cease to have a
valid and perfected First Priority Lien in any Collateral purported to be
covered by the Collateral
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Documents in each case for any reason other than the failure of Administrative
Agent or any Lender to take any action within its control, (iii) any Loan Party
shall contest the validity or enforceability of any Loan Document or any
provision thereof in writing or deny in writing that it has any further
liability, including with respect to future advances by Lenders, under any Loan
Document or any provision thereof to which it is a party; or (iv) the Foreign
Intercompany Security Agreements shall cease to be in full force and effect or
shall cease to give Borrower or Additives, as the case may be, Liens, rights,
powers and privileges purported to be created thereby (including, without
limitation, a perfected security interest in, and Lien on, all of the Foreign
Intercompany Collateral), in favor of Borrower or Additives, as the case may be,
superior to and prior to the rights of all third Persons, and subject to no
other Liens; or
8.13 CONDUCT OF BUSINESS BY INTERMEDIATE HOLDCO.
Intermediate Holdco shall (i) engage in any business other than
entering into and performing its obligations under and in accordance with the
Loan Documents to which it is a party, (ii) own any assets other than 100% of
the Capital Stock of the Material Foreign Subsidiaries, or (iii) incur any
material liabilities other than its Obligations arising under the Loan
Documents; or
8.14 CONDUCT OF BUSINESS BY INVESTCO.
Investco shall engage in any business other than buying and
selling marketable securities and debt instruments;
8.15 CONDUCT OF BUSINESS BY HOLDINGS.
On or after the Qualified Holding Company Formation Date,
Holdings shall (i) engage in any business other than entering into and
performing its obligations under and in accordance with the Loan Documents, the
Related Agreements, the Qualified Holding Company Formation Documents and any
Qualified Reorganization Documents to which it is a party or (ii) own any assets
other than (a) the capital stock of Borrower, (b) the capital stock of
Additives, (c) the capital stock of Management Company, (d) the capital stock of
such other Subsidiaries permitted to be acquired pursuant to the Credit
Agreement and (e) Cash and Cash Equivalents in an amount not to exceed $500,000
at any one time for the purpose of paying general operating expenses of
Holdings:
THEN (i) upon the occurrence of any Event of Default described
in subsection 8.6 or 8.7, each of (a) the unpaid principal amount of and accrued
interest on the Loans, (b) an amount equal to the maximum amount that may at any
time be drawn under all Letters of Credit then outstanding (whether or not any
beneficiary under any such Letter of Credit shall have presented, or shall be
entitled at such time to present, the drafts or other documents or certificates
required to draw under such Letter of Credit), and (c) all other Obligations
shall automatically become immediately due and payable, without presentment,
demand, protest or other requirements of any kind, all of which are hereby
expressly waived by Borrower, and the obligation of each Lender to make any
Loan, the obligation of Administrative Agent to issue any Letter of Credit and
the right of any Lender to issue any Letter of Credit hereunder shall
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thereupon terminate, and (ii) upon the occurrence and during the continuation of
any other Event of Default, Administrative Agent shall, upon the written request
or with the written consent of Requisite Lenders, by written notice to Borrower,
declare all or any portion of the amounts described in clauses (a) through (c)
above to be, and the same shall forthwith become, immediately due and payable,
and the obligation of each Lender to make any Loan, the obligation of
Administrative Agent to issue any Letter of Credit and the right of any Lender
to issue any Letter of Credit hereunder shall thereupon terminate; provided that
the foregoing shall not affect in any way the obligations of Revolving Lenders
under subsection 3.3C(i) or the obligations of Revolving Lenders to purchase
assignments of any unpaid Swing Line Loans as provided in subsection 2.1A(iii).
Any amounts described in clause (b) above, when received by
Administrative Agent, shall be held by Administrative Agent pursuant to the
terms of the Security Agreement and shall be applied as therein provided.
Section 9. ADMINISTRATIVE AGENT
9.1 APPOINTMENT.
A. Appointment of Administrative Agent. CSFB is hereby
appointed Administrative Agent hereunder and under the other Loan Documents.
Each Lender hereby authorizes Administrative Agent to act as its agent in
accordance with the terms of this Agreement and the other Loan Documents.
Administrative Agent agrees to act upon the express conditions contained in this
Agreement and the other Loan Documents, as applicable. The provisions of this
Section 9 are solely for the benefit of Administrative Agent and Lenders and
neither Credit Agreement Party nor any of its Subsidiaries shall have rights as
a third party beneficiary of any of the provisions thereof. In performing its
functions and duties under this Agreement, Administrative Agent (other than as
provided in subsection 2.1D) shall act solely as an agent of Lenders and does
not assume and shall not be deemed to have assumed any obligation towards or
relationship of agency or trust with or for either Credit Agreement Party or any
of its Subsidiaries.
B. Appointment of Supplemental Collateral Agents. It is the
purpose of this Agreement and the other Loan Documents that there shall be no
violation of any law of any jurisdiction denying or restricting the right of
banking corporations or associations to transact business as agent or trustee in
such jurisdiction. It is recognized that in case of litigation under this
Agreement or any of the other Loan Documents, and in particular in case of the
enforcement of any of the Loan Documents, or in case Administrative Agent deems
that by reason of any present or future law of any jurisdiction it may not
exercise any of the rights, powers or remedies granted herein or in any of the
other Loan Documents or take any other action which may be desirable or
necessary in connection therewith, it may be necessary that Administrative Agent
appoint an additional individual or institution as a separate trustee,
co-trustee, collateral agent or collateral co-agent (any such additional
individual or institution being referred to herein individually as a
"Supplemental Collateral Agent" and collectively as "Supplemental Collateral
Agents").
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In the event that Administrative Agent appoints a Supplemental
Collateral Agent with respect to any Collateral, (i) each and every right,
power, privilege or duty expressed or intended by this Agreement or any of the
other Loan Documents to be exercised by or vested in or conveyed to
Administrative Agent with respect to such Collateral shall be exercisable by and
vest in such Supplemental Collateral Agent to the extent, and only to the
extent, necessary to enable such Supplemental Collateral Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Loan Documents and necessary to the exercise or performance
thereof by such Supplemental Collateral Agent shall run to and be enforceable by
either Administrative Agent or such Supplemental Collateral Agent, and (ii) the
provisions of this Section 9 and of subsections 10.2 and 10.3 that refer to
Administrative Agent shall inure to the benefit of such Supplemental Collateral
Agent and all references therein to Administrative Agent shall be deemed to be
references to Administrative Agent and/or such Supplemental Collateral Agent, as
the context may require.
Should any instrument in writing from either Credit Agreement
Party or any other Loan Party be required by any Supplemental Collateral Agent
so appointed by Administrative Agent for more fully and certainly vesting in and
confirming to him or it such rights, powers, privileges and duties, each Credit
Agreement Party shall, or shall cause such Loan Party to, execute, acknowledge
and deliver any and all such instruments promptly upon request by Administrative
Agent. In case any Supplemental Collateral Agent, or a successor thereto, shall
die, become incapable of acting, resign or be removed, all the rights, powers,
privileges and duties of such Supplemental Collateral Agent, to the extent
permitted by law, shall vest in and be exercised by Administrative Agent until
the appointment of a new Supplemental Collateral Agent.
9.2 POWERS AND DUTIES; GENERAL IMMUNITY.
A. Powers; Duties Specified. Each Lender irrevocably
authorizes Administrative Agent to take such action on such Lender's behalf and
to exercise such powers, rights and remedies hereunder and under the other Loan
Documents as are specifically delegated or granted to Administrative Agent by
the terms hereof and thereof, together with such powers, rights and remedies as
are reasonably incidental thereto. Administrative Agent shall have only those
duties and responsibilities that are expressly specified in this Agreement and
the other Loan Documents. Administrative Agent may exercise such powers, rights
and remedies and perform such duties by or through its agents or employees.
Administrative Agent shall not have, by reason of this Agreement or any of the
other Loan Documents, a fiduciary relationship in respect of any Lender or
either Credit Agreement Party; and nothing in this Agreement or any of the other
Loan Documents, expressed or implied, is intended to or shall be so construed as
to impose upon Administrative Agent any obligations in respect of this Agreement
or any of the other Loan Documents except as expressly set forth herein or
therein.
B. No Responsibility for Certain Matters. No Agent shall be
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or any
other Loan Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral
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statements or in any financial or other statements, instruments, reports or
certificates or any other documents furnished or made by such Agent to Lenders
or by or on behalf of any Loan Party to such Agent or any Lender in connection
with the Loan Documents and the transactions contemplated thereby or for the
financial condition or business affairs of Company, its Subsidiaries or any
other Person liable for the payment of any Obligations, nor shall such Agent be
required to ascertain or inquire as to the performance or observance of any of
the terms, conditions, provisions, covenants or agreements contained in any of
the Loan Documents or as to the use of the proceeds of the Loans or the use of
the Letters of Credit or as to the existence or possible existence of any Event
of Default or Potential Event of Default. Anything contained in this Agreement
to the contrary notwithstanding, Administrative Agent shall not have any
liability arising from confirmations of the amount of outstanding Loans or the
Letter of Credit Usage or the component amounts thereof.
C. Exculpatory Provisions. No Agent or any of its officers,
directors, employees or agents shall be liable to Lenders for any action taken
or omitted by such Agent under or in connection with any of the Loan Documents
except to the extent caused by such Agent's gross negligence or willful
misconduct. An Agent shall be entitled to refrain from any act or the taking of
any action (including the failure to take an action) in connection with this
Agreement or any of the other Loan Documents or from the exercise of any power,
discretion or authority vested in it hereunder or thereunder unless and until
such Agent shall have received instructions in respect thereof from Requisite
Lenders (or such other Lenders as may be required to give such instructions
under subsection 10.6) and, upon receipt of such instructions from Requisite
Lenders (or such other Lenders, as the case may be), such Agent shall be
entitled to act or (where so instructed) refrain from acting, or to exercise
such power, discretion or authority, in accordance with such instructions.
Without prejudice to the generality of the foregoing, (i) each Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
communication, instrument or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and shall be
entitled to rely and shall be protected in relying on opinions and judgments of
attorneys (who may be attorneys for each Credit Agreement Party and its
Subsidiaries), accountants, experts and other professional advisors selected by
it; and (ii) no Lender shall have any right of action whatsoever against an
Agent as a result of such Agent acting or (where so instructed) refraining from
acting under this Agreement or any of the other Loan Documents in accordance
with the instructions of Requisite Lenders (or such other Lenders as may be
required to give such instructions under subsection 10.6).
D. Agents Entitled to Act as Lender. The agency hereby
created shall in no way impair or affect any of the rights and powers of, or
impose any duties or obligations upon, an Agent in its individual capacity as a
Lender hereunder. With respect to its participation in the Loans and the Letters
of Credit, an Agent shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not performing the duties and
functions delegated to it hereunder, and the term "Lender" or "Lenders" or any
similar term shall, unless the context clearly otherwise indicates, include each
Agent in its individual capacity. An Agent and its Affiliates may accept
deposits from, lend money to, acquire equity interests in and generally engage
in any kind of commercial banking, investment banking, trust, financial advisory
or other business with Company or any of its Affiliates as if it were not
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performing the duties specified herein, and may accept fees and other
consideration from either Credit Agreement Party and its Subsidiaries for
services in connection with this Agreement and otherwise without having to
account for the same to Lenders.
9.3 INDEPENDENT INVESTIGATION BY LENDERS; NO RESPONSIBILITY FOR
APPRAISAL OF CREDITWORTHINESS.
Each Lender agrees that it has made its own independent
investigation of the financial condition and affairs of each Credit Agreement
Party and its Subsidiaries in connection with the making of the Loans and the
issuance of Letters of Credit hereunder and that it has made and shall continue
to make its own appraisal of the creditworthiness of each Credit Agreement Party
and its Subsidiaries. No Agent shall have any duty or responsibility, either
initially or on a continuing basis, to make any such investigation or any such
appraisal on behalf of Lenders or to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter, and no Agent shall have
any responsibility with respect to the accuracy of or the completeness of any
information provided to Lenders.
9.4 RIGHT TO INDEMNITY.
Each Lender, in proportion to its Pro Rata Share, severally
agrees to indemnify each Agent and its officers, directors, employees, agents,
attorneys, professional advisors and Affiliates to the extent that any such
Person shall not have been reimbursed by either Credit Agreement Party, for and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including counsel fees and
disbursements and fees and disbursements of any financial advisor engaged by
Agents) or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against an Agent or and other such Persons in
exercising the powers, rights and remedies of an Agent or performing duties of
an Agent hereunder or under the other Loan Documents or otherwise in its
capacity as Agent in any way relating to or arising out of this Agreement or the
other Loan Documents; provided that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of an Agent resulting solely from such
Agent's gross negligence or willful misconduct as determined by a final judgment
of a court of competent jurisdiction. If any indemnity furnished to an Agent or
any other such Person for any purpose shall, in the opinion of such Agent, be
insufficient or become impaired, such Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished.
9.5 SUCCESSOR ADMINISTRATIVE AGENT AND SWING LINE LENDER.
A. Successor Administrative Agent. Any Agent may resign at
any time by giving 30 days' prior written notice thereof to Lenders and Company.
Upon any such notice of resignation, Requisite Lenders shall have the right,
upon five Business Days' notice to Borrower, to appoint a successor
Administrative Agent. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, that successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers,
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privileges and duties of the retiring Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation hereunder as an Agent,
the provisions of this Section 9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was an Agent under this Agreement.
B. Successor Swing Line Lender. Any resignation of
Administrative Agent pursuant to subsection 9.5A shall also constitute the
resignation of CSFB or its successor as Swing Line Lender, and any successor
Administrative Agent appointed pursuant to subsection 9.5A shall, upon its
acceptance of such appointment, become the successor Swing Line Lender for all
purposes hereunder. In such event (i) Borrower shall prepay any outstanding
Swing Line Loans made by the retiring or removed Administrative Agent in its
capacity as Swing Line Lender, (ii) upon such prepayment, the retiring
Administrative Agent and Swing Line Lender shall surrender any Swing Line Note
held by it to Borrower for cancellation, and (iii) if so requested by the
successor Administrative Agent and Swing Line Lender in accordance with
subsection 2.1E, Borrower shall issue a new Swing Line Note to the successor
Administrative Agent and Swing Line Lender substantially in the form of Exhibit
VI annexed hereto, in the principal amount of the Swing Line Loan Commitment
then in effect and with other appropriate insertions.
9.6 COLLATERAL DOCUMENTS AND GUARANTIES.
Each Lender hereby further authorizes Administrative Agent, on
behalf of and for the benefit of Lenders, to enter into each Collateral Document
as secured party and to be the agent for and representative of Lenders under
each Guaranty, and each Lender agrees to be bound by the terms of each
Collateral Document and Guaranty; provided that Administrative Agent shall not
(i) enter into or consent to any material amendment, modification, termination
or waiver of any provision contained in any Collateral Document or Guaranty or
(ii) release any Collateral (except as otherwise expressly permitted or required
pursuant to the terms of this Agreement or the applicable Collateral Document),
in each case without the prior consent of Requisite Lenders (or, if required
pursuant to subsection 10.6, all Lenders); provided further, however, that,
without further written consent or authorization from Lenders, Administrative
Agent may execute any documents or instruments necessary to (a) release any Lien
encumbering any item of Collateral that is the subject of a sale or other
disposition of assets permitted by this Agreement or to which Requisite Lenders
have otherwise consented, (b) release any Guarantor from any Guaranty if all of
the Capital Stock of such Guarantor is sold to any Person (other than an
Affiliate of Company) pursuant to a sale or other disposition permitted
hereunder or to which Requisite Lenders have otherwise consented or (c)
subordinate the Liens of Administrative Agent, on behalf of Lenders, to any
Liens permitted by subsection 7.2; provided that, in the case of a sale of such
item of Collateral or stock referred to in subdivision (a) or (b), the
requirements of subsection 10.14 are satisfied. Anything contained in any of the
Loan Documents to the contrary notwithstanding, each Credit Agreement Party,
Administrative Agent and each Lender hereby agree that (1) no Lender shall have
any right individually to realize upon any of the Collateral under any
Collateral Document or to enforce any Guaranty, it being understood and agreed
that all powers, rights and remedies under the Collateral Documents and the
Guaranties may be exercised solely by Administrative Agent for the benefit of
Lenders in accordance with
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the terms thereof, and (2) in the event of a foreclosure by Administrative Agent
on any of the Collateral pursuant to a public or private sale, Administrative
Agent or any Lender may be the purchaser of any or all of such Collateral at any
such sale and Administrative Agent, as agent for and representative of Lenders
(but not any Lender or Lenders in its or their respective individual capacities
unless Requisite Lenders shall otherwise agree in writing) shall be entitled,
for the purpose of bidding and making settlement or payment of the purchase
price for all or any portion of the Collateral sold at any such public sale, to
use and apply any of the Obligations as a credit on account of the purchase
price for any collateral payable by Administrative Agent at such sale.
9.7 DUTIES OF OTHER AGENTS.
None of the Lenders identified in this Agreement as a
Co-Arranger, Syndication Agent or a Co-Documentation Agent shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than those applicable to all Lenders as such. Without limiting the foregoing,
none of such Lenders shall have or be deemed to have a fiduciary relationship
with any Lender.
9.8 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to either Credit Agreement Party or any of
its Subsidiaries, Administrative Agent (irrespective of whether the principal of
any Loan shall then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether Administrative Agent shall have made any
demand on either Credit Agreement Party) shall be entitled and empowered, by
intervention in such proceeding or otherwise
(i) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Loans and any
other Obligations that are owing and unpaid and to file such other
papers or documents as may be necessary or advisable in order to have
the claims of Lenders and Agents (including any claim for the reasonable
compensation, expenses, disbursements and advances of Lenders and Agents
and their agents and counsel and all other amounts due Lenders and
Agents under subsections 2.3 and 10.2) allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to Administrative Agent and, in the event that
Administrative Agent shall consent to the making of such payments directly to
Lenders, to pay to Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of Agents and their agents
and counsel, and any other amounts due Agents under subsections 2.3 and 10.2.
Nothing herein contained shall be deemed to authorize
Administrative Agent to
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authorize or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lenders or to authorize Administrative Agent to vote in
respect of the claim of any Lender in any such proceeding.
Section 10. MISCELLANEOUS.
10.1 SUCCESSORS AND ASSIGNS; ASSIGNMENTS AND PARTICIPATIONS IN LOANS
AND LETTERS OF CREDIT.
A. General. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of the parties hereto and the successors and assigns of Lenders (it
being understood that Lenders' rights of assignment are subject to the further
provisions of this subsection 10.1). None of Credit Agreement Parties' rights or
obligations hereunder nor any interest therein may be assigned or delegated by
either Credit Agreement Party without the prior written consent of all Lenders
(and any attempted assignment or transfer by either Credit Agreement Party
without such consent shall be null and void). No sale, assignment or transfer or
participation of any Letter of Credit or any participation therein may be made
separately from a sale, assignment, transfer or participation of a corresponding
interest in the Revolving Loan Commitment and the Revolving Loans of the
Revolving Lender effecting such sale, assignment, transfer or participation.
Anything contained herein to the contrary notwithstanding, except as provided in
subsection 2.1A(iii) and subsection 10.5, the Swing Line Loan Commitment and the
Swing Line Loans of Swing Line Lender may not be sold, assigned or transferred
as described below to any Person other than a successor Administrative Agent and
Swing Line Lender to the extent contemplated by subsection 9.5. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the
Affiliates of each of Administrative Agent and Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
B. Assignments.
(i) Amounts and Terms of Assignments. Any Lender may assign
to one or more Eligible Assignees all or any portion of its rights and
obligations under this Agreement; provided that (a) except (1) in the
case of an assignment of the entire remaining amount of the assigning
Lender's rights and obligations under this Agreement or (2) in the case
of an assignment to a Lender or an Affiliate of a Lender or an Approved
Fund of a Lender, the aggregate amount of the Revolving Loan Exposure or
Term Loan Exposure, as the case may be, of the assigning Lender and the
assignee subject to each such assignment shall not be less than
$1,000,000, in the case of any assignment of a Revolving Loan, or
$1,000,000, in the case of any assignment of a Term Loan, unless
Administrative Agent otherwise consents each such consent not to be
unreasonably withheld or delayed), (b) each partial assignment shall be
made as an assignment of a proportionate part of all the assigning
Lender's rights and obligations under this Agreement with respect to the
Loan or the Commitment assigned, (c) the parties to each assignment
shall (i) electronically execute and deliver to Administrative Agent an
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Assignment Agreement via an electronic settlement system acceptable to
Administrative Agent (which initially shall be ClearPar, LLC) or, (ii)
manually execute and deliver to Administrative Agent an Assignment
Agreement, together with a processing and recordation fee of $3,500 (at
Administrative Agent's discretion) and the Eligible Assignee, if it
shall not be a Lender, shall deliver to Administrative Agent information
reasonably requested by Administrative Agent, including such forms,
certificates or other evidence, if any, with respect to United States
federal income tax withholding matters and with respect to information
requested under the Patriot Act as the assignee under such Assignment
Agreement may be required to deliver to Administrative Agent pursuant to
subsection 2.7B(iii), and (d) Administrative Agent and, if no Event of
Default has occurred and is continuing, Borrower, shall have consented
thereto (which consent shall not be unreasonably withheld); provided,
that no consent of Borrower shall be required in the case of any
assignment of a Term Loan to another Lender, an Affiliate of a Lender or
an Approved Fund of a Lender and no consent of Borrower shall be
required in connection with any assignment relating to the primary
allocation or syndication of the Term Loans or Revolving Loans by CSFB
to Persons that are either organized under the laws of the United States
or are qualified to do business in one or more states of the United
States. Upon such execution, delivery and consent, from and after the
effective date specified in such Assignment Agreement, (y) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such
Assignment Agreement, shall have the rights and obligations of a Lender
hereunder and (z) the assigning Lender thereunder shall, to the extent
that rights and obligations hereunder have been assigned by it pursuant
to such Assignment Agreement, relinquish its rights (other than any
rights which survive the termination of this Agreement under subsection
10.9B) and be released from its obligations under this Agreement (and,
in the case of an Assignment Agreement covering all or the remaining
portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto; provided that,
anything contained in any of the Loan Documents to the contrary
notwithstanding, if such Lender is the Issuing Lender with respect to
any outstanding Letters of Credit such Lender shall continue to have all
rights and obligations of an Issuing Lender with respect to such Letters
of Credit until the cancellation or expiration of such Letters of Credit
and the reimbursement of any amounts drawn thereunder). The assigning
Lender shall, upon the effectiveness of such assignment or as promptly
thereafter as practicable, surrender its Notes, if any, to
Administrative Agent for cancellation, and thereupon new Notes shall, if
so requested by the assignee and/or the assigning Lender in accordance
with subsection 2.1E, be issued to the assignee and to the assigning
Lender, substantially in the form of Exhibit IV, Exhibit V or Exhibit VI
annexed hereto, as the case may be, with appropriate insertions, to
reflect the new Commitments and/or outstanding Revolving Loans and/or
outstanding Term Loans, as the case may be, of the assignee and the
assigning Lender. Other than as provided in subsection 2.1A(iii) and
subsection 10.5, any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this
subsection 10.1B shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with subsection 10.1C.
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(ii) Acceptance by Administrative Agent; Recordation in
Register. Upon its receipt of an Assignment Agreement executed by an
assigning Lender and an assignee representing that it is an Eligible
Assignee, together with the processing and recordation fee referred to
in subsection 10.1B(i) and any forms, certificates or other evidence
with respect to United States federal income tax withholding matters
that such assignee may be required to deliver to Administrative Agent
pursuant to subsection 2.7B(iii), Administrative Agent shall, if
Administrative Agent and Borrower have consented to the assignment
evidenced thereby (in each case to the extent such consent is required
pursuant to subsection 10.1B(i)), (a) accept such Assignment Agreement
by executing a counterpart thereof as provided therein (which acceptance
shall evidence any required consent of Administrative Agent to such
assignment), (b) record the information contained therein in the
Register, and (c) give prompt notice thereof to Borrower. Administrative
Agent shall maintain a copy of each Assignment Agreement delivered to
and accepted by it as provided in this subsection 10.1B(ii).
(iii) Deemed Consent by either Credit Agreement Party. If the
consent of either Credit Agreement Party to an assignment or to an
Eligible Assignee is required hereunder (including a consent to an
assignment which does not meet the minimum assignment thresholds
specified in subsection 10.1B(i)), such Credit Agreement Party shall be
deemed to have given its consent five Business Days after the date
notice thereof has been delivered by the assigning Lender (through
Administrative Agent) unless such consent is expressly refused by such
Credit Agreement Party prior to such fifth Business Day.
(iv) Special Purpose Funding Vehicles. Notwithstanding
anything to the contrary contained in this subsection 10.1B, any Lender
(a "Granting Lender") may grant to a special purpose funding vehicle (a
"SPC"), identified as such in writing from time to time by the Granting
Lender to the Administrative Agent, the option to provide to Company all
or any part of any Loan that such Granting Lender would otherwise be
obligated to make to Company; provided that (i) nothing herein shall
constitute a commitment by any SPC to make any Loan and (ii) if an SPC
elects not to exercise such option or otherwise fails to provide all or
any part of such Loan, the Granting Lender shall be obligated to make
such Loan. The making of a Term Loan or Revolving Loan by an SPC
hereunder shall utilize the Term Loan Commitment or Revolving Loan
Commitment, as applicable, of the Granting Lender to the same extent, as
if, such Loan were made by such Granting Lender. Each party hereto
hereby agrees that no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall
remain with the Granting Lender). In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year
and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPC, it will not institute
against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this
subsection 10.1, any SPC may (i) with notice
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to, but without the prior written consent of, Administrative Agent and
without paying any processing fee therefore, assign all or a portion of
its interests in any Loan to the Granting Lender or to any financial
institutions (consented to by Administrative Agent) providing liquidity
and/or credit support to or for the account of such SPC to support the
funding or maintenance of any Loans and (ii) disclose on a confidential
basis any non-public information relating to its Loans to any rating
agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPC. This section may not be
amended without the written consent of each SPC.
C. Participations. Any Lender may, without the consent of,
or notice to, either Credit Agreement Party or Administrative Agent, sell
participations to one or more Persons (other than a natural Person or Company or
any of its Affiliates) in all or a portion of such Lender's rights and/or
obligations under this Agreement; provided that (i) such Lender's obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) each Credit Agreement Party, Administrative Agent and
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver directly affecting (i) the extension of the
regularly scheduled maturity of any portion of the principal amount of or
interest on any Loan allocated to such participation or (ii) a reduction of the
principal amount of or the rate of interest payable on any Loan allocated to
such participation. Subject to the further provisions of this subsection 10.1C,
each Credit Agreement Party agrees that each Participant shall be entitled to
the benefits of subsections 2.6D and 2.7 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection 10.1B.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of subsection 10.4 as though it were a Lender, provided such
Participant agrees to be subject to subsection 10.5 as though it were a Lender.
A Participant shall not be entitled to receive any greater payment under
subsections 2.6D or 2.7 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant unless the
sale of the participation to such Participant is made with each Credit Agreement
Party's prior written consent, such consent not to be unreasonably withheld (it
being understood that a participation resulting in immediate additional payments
would be reason to withhold consent). A Participant that would be a Non-US
Lender if it were a Lender shall not be entitled to the benefits of subsection
2.7 unless Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of Borrower, to comply with
subsection 2.7B(iii) as though it were a Lender.
D. Pledges and Assignments. Any Lender may at any time
pledge or assign a security interest in all or any portion of its Loans, and the
other Obligations owed to such Lender, to secure obligations of such Lender,
including without limitation any pledge or assignment to secure obligations to
any Federal Reserve Bank; provided that (i) no Lender shall be relieved of any
of its obligations hereunder as a result of any such assignment or pledge and
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(ii) in no event shall any assignee or pledgee be considered to be a "Lender" or
be entitled to require the assigning Lender to take or omit to take any action
hereunder. In the case of any Lender that is a fund that invests in bank loans,
subject to clauses (i) and (ii) above, such Lender may, without the consent of
Borrower or Administrative Agent, assign or pledge all or any portion of its
rights under this Agreement, including the Loans and Notes, if any, or any other
instrument evidencing its rights as a Lender under this Agreement, to any holder
of, trustee for, or any other representative of holders of, obligations owed or
securities issued, by such fund as security for such obligations or securities;
provided that any foreclosure or similar action by such trustee or
representative shall be subject to the provisions of this subsection 10.1.
E. Information. Each Lender may furnish any information
concerning Company and its Subsidiaries in the possession of that Lender from
time to time to assignees and participants (including prospective assignees and
participants), subject to subsection 10.19.
F. Agreements of Lenders. Each Lender listed on the
signature pages hereof hereby agrees (i) that it is an Eligible Assignee
described in clause (ii) of the definition thereof; (ii) that it has experience
and expertise in the making of loans or investing in loans such as the Loans;
and (iii) that it will make its Loans for its own account in the ordinary course
of its business and without a view to distribution of such Loans within the
meaning of the Securities Act or the Exchange Act or other federal securities
laws (it being understood that, subject to the provisions of this subsection
10.1, the disposition of such Loans or any interests therein shall at all times
remain within its exclusive control). Each Lender that becomes a party hereto
pursuant to an Assignment Agreement shall be deemed to agree that the agreements
of such Lender contained in Section 2(c) of such Assignment Agreement are
incorporated herein by this reference.
10.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, each Credit Agreement Party, jointly and severally, agrees to pay
promptly (i) all reasonable costs and expenses of negotiation, preparation and
execution of the Loan Documents and any consents, amendments, waivers or other
modifications thereto; (ii) all costs and expenses of furnishing all opinions by
counsel for the Loan Parties (including any opinions requested by Agents or
Lenders as to any legal matters arising hereunder) and of the Loan Parties'
performance of and compliance with all agreements and conditions on its part to
be performed or complied with under this Agreement and the other Loan Documents
including with respect to confirming compliance with environmental, insurance
and solvency requirements; (iii) all reasonable fees, expenses and disbursements
of counsel to Administrative Agent (including allocated costs of internal
counsel) in connection with the negotiation, preparation, execution and
administration of the Loan Documents and any consents, amendments, waivers or
other modifications thereto and any other documents or matters requested by any
Loan Party; (iv) all costs and expenses of creating and perfecting Liens in
favor of Administrative Agent on behalf of Lenders pursuant to any Collateral
Document, including filing and recording fees, expenses and taxes, stamp or
documentary taxes, search fees, title insurance premiums, and reasonable fees,
expenses and disbursements of counsel to Administrative Agent and of counsel
providing any opinions that Administrative Agent or Requisite Lenders may
request in respect of the Collateral Documents
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or the Liens created pursuant thereto; (v) all costs and expenses (including the
reasonable fees, expenses and disbursements of any auditors, accountants or
appraisers and any environmental or other consultants, advisors and agents
employed or retained by Administrative Agent or its counsel) of obtaining and
reviewing any appraisals provided for under subsection 6.9D and any
environmental audits, reports or questionnaires provided for under subsection
4.1K or 6.9B or 6.9C; (vi) all costs and expenses incurred by Administrative
Agent in connection with the custody or preservation of any of the Collateral;
(vii) all other costs and expenses incurred by Administrative Agent in
connection with the syndication of the Commitments; (viii) all costs and
expenses, including reasonable attorneys' fees (including allocated costs of
internal counsel) and fees, costs and expenses of accountants, advisors and
consultants, incurred by Administrative Agent and its counsel relating to
efforts to (a) evaluate or assess any Loan Party, its business or financial
condition and (b) protect, evaluate, assess or dispose of any of the Collateral;
and (ix) all costs and expenses, including reasonable attorneys' fees (including
allocated costs of internal counsel), fees, costs and expenses of accountants,
advisors and consultants and costs of settlement, incurred by Administrative
Agent and Lenders in enforcing any Obligations of or in collecting any payments
due from any Loan Party hereunder or under the other Loan Documents (including
in connection with the sale of, collection from, or other realization upon any
of the Collateral or the enforcement of the Loan Documents) or in connection
with any refinancing or restructuring of the credit arrangements provided under
this Agreement in the nature of a "work-out" or pursuant to any insolvency or
bankruptcy proceedings.
10.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection
10.2, whether or not the transactions contemplated hereby shall be consummated,
each Credit Agreement Party, jointly and severally, agrees to defend (subject to
Indemnitees' selection of counsel), indemnify, pay and hold harmless the Agents
and Lenders (including Issuing Lenders), and the officers, directors, employees,
agents and Affiliates of Administrative Agent and Lenders (collectively called
the "Indemnitees"), from and against any and all Indemnified Liabilities (as
hereinafter defined); provided that neither Credit Agreement Party shall not
have any obligation to any Indemnitee hereunder with respect to any Indemnified
Liabilities to the extent such Indemnified Liabilities arise solely from the
gross negligence or willful misconduct of that Indemnitee as determined by a
final judgment of a court of competent jurisdiction.
As used herein, "Indemnified Liabilities" means, collectively,
any and all liabilities, obligations, losses, damages (including natural
resource damages), penalties, actions, judgments, suits, claims (including
Environmental Claims), costs (including the costs of any investigation, study,
sampling, testing, abatement, cleanup, removal, remediation or other response
action necessary to remove, remediate, clean up or abate any Hazardous Materials
Activity), expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto, and any fees or expenses
incurred by Indemnitees in enforcing this indemnity), whether direct, indirect
or consequential and whether based on any federal, state or foreign laws,
statutes, rules or regulations (including securities and commercial laws,
statutes, rules or regulations and
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Environmental Laws), on common law or equitable cause or on contract or
otherwise, that may be imposed on, incurred by, or asserted against any such
Indemnitee, in any manner relating to or arising out of (i) this Agreement or
the other Loan Documents or the transactions contemplated hereby or thereby
(including Lenders' agreement to make the Loans hereunder or the use or intended
use of the proceeds thereof or the issuance of Letters of Credit hereunder or
the use or intended use of any thereof, the failure of an Issuing Lender to
honor a drawing under a Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
Government Authority) or any enforcement of any of the Loan Documents (including
any sale of, collection from, or other realization upon any of the Collateral or
the enforcement of the Guaranties), (ii) the statements contained in the
commitment letter delivered by any Lender to either Credit Agreement Party with
respect thereto, or (iii) any Environmental Claim or any Hazardous Materials
Activity relating to or arising from, directly or indirectly, any past or
present activity, operation, land ownership, or practice of Company or any of
its Subsidiaries. To the extent subsection 2.7 and this subsection 10.3 conflict
and the provisions cannot be construed in a manner that could be viewed as
consistent, subsection 2.7 will govern.
To the extent that the undertakings to defend, indemnify, pay
and hold harmless set forth in this subsection 10.3 may be unenforceable in
whole or in part because they are violative of any law or public policy, each
Credit Agreement Party shall contribute the maximum portion that it is permitted
to pay and satisfy under applicable law to the payment and satisfaction of all
Indemnified Liabilities incurred by Indemnitees or any of them.
10.4 SET-OFF; SECURITY INTEREST IN DEPOSIT ACCOUNTS.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default each Lender is hereby authorized by each
Credit Agreement Party at any time or from time to time, without notice to
either Credit Agreement Party or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and to apply any and all
deposits (general or special, time or demand, provisional or final, including
Indebtedness evidenced by certificates of deposit, whether matured or unmatured,
but not including trust accounts) and any other Indebtedness at any time held or
owing by that Lender or any Affiliate of that Lender to or for the credit or the
account of any Loan Party against and on account of the Obligations of any Loan
Party to that Lender (or any Affiliate of that Lender) or to any other Lender
(or any Affiliate of any other Lender) under this Agreement, the Letters of
Credit and participations therein and the other Loan Documents, including all
claims of any nature or description arising out of or connected with this
Agreement, the Letters of Credit and participations therein or any other Loan
Document, irrespective of whether or not (i) that Lender shall have made any
demand hereunder or (ii) the principal of or the interest on the Loans or any
amounts in respect of the Letters of Credit or any other amounts due hereunder
shall have become due and payable pursuant to Section 8 and although said
obligations and liabilities, or any of them, may be contingent or unmatured.
Each Credit Agreement Party hereby further grants to Administrative Agent and
each Lender a security interest in all deposits and accounts maintained with
Administrative Agent or such Lender as security for the Obligations.
10.5 RATABLE SHARING.
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Lenders hereby agree among themselves that if any of them shall,
whether by voluntary payment (other than a voluntary prepayment of Loans made
and applied in accordance with the terms of this Agreement), by realization upon
security, through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under the Loan
Documents or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then due and owing to that
Lender hereunder or under the other Loan Documents (collectively, the "Aggregate
Amounts Due" to such Lender) that is greater than the proportion received by any
other Lender in respect of the Aggregate Amounts Due to such other Lender, then
the Lender receiving such proportionately greater payment shall (i) notify
Administrative Agent and each other Lender of the receipt of such payment and
(ii) apply a portion of such payment to purchase assignments (which it shall be
deemed to have purchased from each seller of an assignment simultaneously upon
the receipt by such seller of its portion of such payment) of the Aggregate
Amounts Due to the other Lenders so that all such recoveries of Aggregate
Amounts Due shall be shared by all Lenders in proportion to the Aggregate
Amounts Due to them; provided that if all or part of such proportionately
greater payment received by such purchasing Lender is thereafter recovered from
such Lender upon the bankruptcy or reorganization of any Loan Party or
otherwise, those purchases shall be rescinded and the purchase prices paid for
such assignments shall be returned to such purchasing Lender ratably to the
extent of such recovery, but without interest. Each Credit Agreement Party
expressly consents to the foregoing arrangement and agrees that any purchaser of
an assignment so purchased may exercise any and all rights of a Lender as to
such assignment as fully as if that Lender had complied with the provisions of
subsection 10.1B with respect to such assignment. In order to further evidence
such assignment (and without prejudice to the effectiveness of the assignment
provisions set forth above), each purchasing Lender and each selling Lender
agree to enter into an Assignment Agreement at the request of a selling Lender
or a purchasing Lender, as the case may be, in form and substance reasonably
satisfactory to each such Lender.
10.6 AMENDMENTS AND WAIVERS.
No amendment, modification, termination or waiver of any
provision of this Agreement or of the Notes, and no consent to any departure by
either Credit Agreement Party therefrom, shall in any event be effective without
the written concurrence of Requisite Lenders; provided that no such amendment,
modification, termination, waiver or consent shall, without the consent of (a)
each Lender with Obligations directly affected (whose consent shall be required
for any such amendment, modification, termination or waiver in addition to that
of Requisite Lenders) (1) reduce the principal amount of any Loan, (2) increase
the maximum aggregate amount of Letters of Credit, (3) postpone the scheduled
final maturity date of any Loan, (4) postpone the date of any scheduled
installment of principal of any Loan, (5) postpone the date on which any
interest or any fees are payable, (6) decrease the interest rate borne by any
Loan (other than any waiver of any increase in the interest rate applicable to
any of the Loans pursuant to subsection 2.2E) or the amount of any fees payable
hereunder (excluding any change in the manner in which any financial ratio used
in determining any interest rate or fee is calculated that would result in a
reduction of any such rate or fee), (7) reduce the amount or
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postpone the due date of any amount payable in respect of any Letter of Credit,
(8) extend the expiration date of any Letter of Credit beyond the Revolving Loan
Commitment Termination Date or (9) change in any manner the obligations of
Revolving Lenders relating to the purchase of participations in Letters of
Credit; (b) each Lender, (1) change in any manner the definition of "Class" or
the definition of "Pro Rata Share" or the definition of "Requisite Class
Lenders" or the definition of "Requisite Lenders" (except for any changes
resulting solely from an increase in Commitments approved by Requisite Lenders),
(2) change in any manner any provision of this Agreement that, by its terms,
expressly requires the approval or concurrence of all Lenders, (3) increase the
maximum duration of Interest Periods permitted hereunder, (4) release any Lien
granted in favor of Administrative Agent with respect to all or substantially
all of the Collateral or release Holdings from its obligations under the
Holdings Guaranty or all or substantially all of the Subsidiary Guarantors or
Foreign Guarantors from their obligations under the Subsidiary Guaranty or
Foreign Guaranty, respectively, in each case other than in accordance with the
terms of the Loan Documents, or (5) change in any manner or waive the provisions
contained in subsection 8.1 or this subsection 10.6. In addition, (i) any
amendment, modification, termination or waiver of any of the provisions
contained in Section 4 shall be effective only if evidenced by a writing signed
by or on behalf of Administrative Agent and Requisite Lenders and, if affecting
subsection 4.3, Issuing Lenders, (ii) no amendment, modification, termination or
waiver of any provision of any Note shall be effective without the written
concurrence of the Lender which is the holder of that Note, (iii) no amendment,
modification, termination or waiver of any provision of subsection 2.1A(iii) or
of any other provision of this Agreement relating to the Swing Line Loan
Commitment or the Swing Line Loans shall be effective without the written
concurrence of Swing Line Lender, (iv) no amendment, modification, termination
or waiver of any provision of Section 3 shall be effective without the written
concurrence of Administrative Agent and, with respect to the purchase of
participations in Letters of Credit, without the written concurrence of each
Issuing Lender that has issued an outstanding Letter of Credit or has not been
reimbursed for a payment under a Letter of Credit, (v) no amendment,
modification, termination or waiver of any provision of Section 9 or of any
other provision of this Agreement which, by its terms, expressly requires the
approval or concurrence of Administrative Agent shall be effective without the
written concurrence of Administrative Agent, (vi) no amendment, modification,
termination or waiver of any provision of subsection 2.4 that has the effect of
changing any voluntary or mandatory prepayments or Commitment reductions
applicable to a Class in a manner that disproportionately disadvantages such
Class relative to any other Class shall be effective without the written
concurrence of Requisite Class Lenders of such affected Class (it being
understood and agreed that any amendment, modification, termination or waiver of
any such provision which only postpones or reduces any voluntary or mandatory
prepayment or Commitment reduction from those set forth in subsection 2.4 with
respect to one Class but not any other Class shall be deemed to
disproportionately disadvantage such one Class but not to disproportionately
disadvantage any such other Class for purposes of this clause (vi)) and (vii) no
Commitment of a Lender shall be increased without the consent of such Lender (it
being understood that a waiver of any condition precedent, covenants, Events of
Default or Potential Events of Default or of a mandatory prepayment or
Commitment reduction shall not constitute an increase in the Commitment of any
Lender and that an increase in the available portion of any Commitment of any
Lender shall not constitute an increase in the Commitment of such Lender).
Administrative Agent may, but shall have no obligation to, with the concurrence
of any Lender,
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execute amendments, modifications, waivers or consents on behalf of that Lender.
Any waiver or consent shall be effective only in the specific instance and for
the specific purpose for which it was given. No notice to or demand on either
Credit Agreement Party in any case shall entitle either Credit Agreement Party
to any other or further notice or demand in similar or other circumstances. Any
amendment, modification, termination, waiver or consent effected in accordance
with this subsection 10.6 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by either Credit Agreement Party,
on such Credit Agreement Party.
10.7 INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception to, or would
otherwise be within the limitations of, another covenant shall not avoid the
occurrence of an Event of Default or Potential Event of Default if such action
is taken or condition exists.
10.8 NOTICES; EFFECTIVENESS OF SIGNATURES.
Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in writing
and may be personally served, or sent by telefacsimile or United States mail or
courier service and shall be deemed to have been given when delivered in person
or by courier service, upon receipt of telefacsimile in complete and legible
form, or three Business Days after depositing it in the United States mail with
postage prepaid and properly addressed; provided that notices to Administrative
Agent, Swing Line Lender and any Issuing Lender shall not be effective until
received. For the purposes hereof, the address of each party hereto shall be as
set forth under such party's name on the signature pages hereof or (i) as to
Credit Agreement Parties and Administrative Agent, such other address as shall
be designated by such Person in a written notice delivered to the other parties
hereto and (ii) as to each other party, such other address as shall be
designated by such party in a written notice delivered to Administrative Agent.
Electronic mail and Internet and intranet websites may be used to distribute
routine communications, such as financial statements and other information as
provided in subsection 6.01; provided, however, that no signature with respect
to any notice, request, agreement, waiver, amendment or other document or any
notice that is intended to have binding effect may be sent by electronic mail.
Loan Documents and notices under the Loan Documents may be
transmitted and/or signed by telefacsimile. The effectiveness of any such
documents and signatures shall, subject to applicable law, have the same force
and effect as an original copy with manual signatures and shall be binding on
all Loan Parties, Agents and Lenders. Administrative Agent may also require that
any such documents and signature be confirmed by a manually-signed copy thereof;
provided, however, that the failure to request or deliver any such
manually-signed copy shall not affect the effectiveness of any facsimile
document or signature.
10.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
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A. All representations, warranties and agreements made
herein shall survive the execution and delivery of this Agreement and the making
of the Loans and the issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by
law to the contrary, the agreements of the Borrower set forth in subsections
2.6D and 2.7 and the agreements of each Credit Agreement Party set forth in
subsections 10.2, 10.3, 10.4, 10.17 and 10.18 and the agreements of Lenders set
forth in subsections 9.2C, 9.4, 10.5 and 10.18 shall survive the payment of the
Loans, the cancellation or expiration of the Letters of Credit and the
reimbursement of any amounts drawn thereunder, and the termination of this
Agreement.
10.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE
No failure or delay on the part of an Agent or any Lender in the
exercise of any power, right or privilege hereunder or under any other Loan
Document shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
10.11 MARSHALLING; PAYMENTS SET ASIDE.
Neither any Agent nor any Lender shall be under any obligation
to marshal any assets in favor of either Credit Agreement Party or any other
party or against or in payment of any or all of the Obligations. To the extent
that either Credit Agreement Party makes a payment or payments to Administrative
Agent or Lenders (or to Administrative Agent for the benefit of Lenders), or
Agents or Lenders enforce any security interests or exercise their rights of
setoff, and such payment or payments or the proceeds of such enforcement or
setoff or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, any other state or federal
law, common law or any equitable cause, then, to the extent of such recovery,
the obligation or part thereof originally intended to be satisfied, and all
Liens, rights and remedies therefor or related thereto, shall be revived and
continued in full force and effect as if such payment or payments had not been
made or such enforcement or setoff had not occurred.
10.12 SEVERABILITY.
In case any provision in or obligation under this Agreement or
the Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
10.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS;
DAMAGE WAIVER.
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The obligations of Lenders hereunder are several and no Lender
shall be responsible for the obligations or Commitments of any other Lender
hereunder. Nothing contained herein or in any other Loan Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute
Lenders, or Lenders and either Credit Agreement Party, as a partnership, an
association, a Joint Venture or any other kind of entity. The amounts payable at
any time hereunder to each Lender shall be a separate and independent debt, and
each Lender shall be entitled to protect and enforce its rights arising out of
this Agreement and it shall not be necessary for any other Lender to be joined
as an additional party in any proceeding for such purpose.
To the extent permitted by law, each Credit Agreement Party
shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with or
as a result of this Agreement (including, without limitation, subsection 2.1C
hereof), any other Loan Document, any transaction contemplated by the Loan
Documents, any Loan or the use of proceeds thereof.
10.14 RELEASE OF SECURITY INTEREST OR GUARANTY.
Upon the proposed sale or other disposition of any Collateral
that is permitted by this Agreement or to which Requisite Lenders have otherwise
consented, or the sale or other disposition of all of the Capital Stock of a
Subsidiary Guarantor or a Foreign Guarantor to any Person (other than an
Affiliate of Company) permitted by this Agreement or to which Requisite Lenders
have otherwise consented, for which a Loan Party desires to obtain a security
interest release or a release of the Subsidiary Guaranty or any Foreign Guaranty
from Administrative Agent, such Loan Party shall deliver an Officer's
Certificate (i) stating that the Collateral or the Capital Stock subject to such
disposition is being sold or otherwise disposed of in compliance with the terms
hereof and (ii) specifying the Collateral or Capital Stock being sold or
otherwise disposed of in the proposed transaction. Upon the receipt of such
Officer's Certificate, Administrative Agent shall, at such Loan Party's expense,
so long as Administrative Agent (a) has no reason to believe that the facts
stated in such Officer's Certificate are not true and correct and (b), if the
sale or other disposition of such item of Collateral or Capital Stock
constitutes an Asset Sale, shall have received evidence satisfactory to it that
arrangements satisfactory to it have been made for delivery of the Net Asset
Sale Proceeds if and as required by subsection 2.4, execute and deliver such
releases of its security interest in such Collateral or such Subsidiary Guaranty
or such Foreign Guaranty, as may be reasonably requested by such Loan Party.
10.15 APPLICABLE LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE APPLICATION OF ANOTHER LAW.
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10.16 CONSTRUCTION OF AGREEMENT; NATURE OF RELATIONSHIP.
Each of the parties hereto acknowledges that (i) it has been
represented by counsel in the negotiation and documentation of the terms of this
Agreement, (ii) it has had full and fair opportunity to review and revise the
terms of this Agreement, (iii) this Agreement has been drafted jointly by all of
the parties hereto, and (iv) neither Administrative Agent nor any Lender or
other Agent has any fiduciary relationship with or duty to either Credit
Agreement Party arising out of or in connection with this Agreement or any of
the other Loan Documents, and the relationship between Administrative Agent, the
other Agents and Lenders, on one hand, and either Credit Agreement Party, on the
other hand, in connection herewith or therewith is solely that of debtor and
creditor. Accordingly, each of the parties hereto acknowledges and agrees that
the terms of this Agreement shall not be construed against or in favor of
another party.
10.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST EITHER CREDIT AGREEMENT
PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT,
OR ANY OBLIGATIONS THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING
AND DELIVERING THIS AGREEMENT, EACH CREDIT AGREEMENT PARTY, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(i) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(ii) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(iii) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL, RETURN RECEIPT REQUESTED, TO SUCH CREDIT AGREEMENT PARTY AT ITS
ADDRESS PROVIDED IN ACCORDANCE WITH SUBSECTION 10.8;
(iv) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE SUCH CREDIT
AGREEMENT PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE
CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
(v) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH
CREDIT AGREEMENT PARTY IN THE COURTS OF ANY OTHER JURISDICTION; AND
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(vi) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.17
RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO
THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW
SECTION 5-1402 OR OTHERWISE.
10.18 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver
is intended to be all-encompassing of any and all disputes that may be filed in
any court and that relate to the subject matter of this transaction, including
contract claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each party hereto acknowledges that this waiver is a material
inducement to enter into a business relationship, that each has already relied
on this waiver in entering into this Agreement, and that each will continue to
rely on this waiver in their related future dealings. Each party hereto further
warrants and represents that it has reviewed this waiver with its legal counsel
and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 10.18 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
10.19 CONFIDENTIALITY.
Each Lender shall hold all non-public information obtained
pursuant to the requirements of this Agreement that has been identified in
writing as confidential by Borrower in accordance with such Lender's customary
procedures for handling confidential information of this nature, it being
understood and agreed by each Credit Agreement Party that in any event a Lender
may make disclosures (a) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and other advisors
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such information and instructed to keep
such information confidential), (b) to the extent requested by any Government
Authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder, (f) subject to an agreement containing provisions substantially the
same as those of this subsection 10.19, to (i) any Eligible Assignee
136
of or participant in, or any prospective Eligible Assignee of or Participant in,
any of its rights or obligations under this Agreement or (ii) any direct or
indirect contractual counterparty or prospective counterparty (or such
contractual counterparty's or prospective counterparty's professional advisor)
to any credit derivative transaction relating to obligations of either Credit
Agreement Party, (g) with the consent of either Credit Agreement Party, (h) to
the extent such information (i) becomes publicly available other than as a
result of a breach of this subsection 10.19 or (ii) becomes available to
Administrative Agent or any Lender on a nonconfidential basis from a source
other than either Credit Agreement Party or (i) to the National Association of
Insurance Commissioners or any other similar organization or any nationally
recognized rating agency that requires access to information about a Lender's or
its Affiliates' investment portfolio in connection with ratings issued with
respect to such Lender or its Affiliates and that no written or oral
communications from counsel to an Agent and no information that is or is
designated as privileged or as attorney work product may be disclosed to any
Person unless such Person is a Lender or a participant hereunder; provided that,
unless specifically prohibited by applicable law or court order, each Lender
shall notify Borrower of any request by any Government Authority or
representative thereof (other than any such request in connection with any
examination of the financial condition of such Lender by such Government
Authority) for disclosure of any such non-public information prior to disclosure
of such information; and provided, further that in no event shall any Lender be
obligated or required to return any materials furnished by Company or any of its
Subsidiaries. In addition, Administrative Agent and Lenders may disclose the
existence of this Agreement and information about this Agreement to market data
collectors, similar service providers to the lending industry, and service
providers to Administrative Agent and Lenders.
10.20 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto.
[**Remainder of page intentionally left blank**]
137
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
BORROWER:
ETHYL CORPORATION
By: /s/ David Fiorenza
-------------------------------------------
Name: David Fiorenza
Title: Vice President, Principal
Financial Officer
Notice Address:
330 South Fourth Street
P.O. Box 2189
Richmond, VA 23218-2189
Attention: David Fiorenza
Telephone: (804) 788-5055
Facsimile: (804) 788-5435
E-mail: david_fiorenza@ethyl.com
LENDERS:
CREDIT SUISSE FIRST BOSTON, CAYMAN
ISLANDS BRANCH
as Administrative Agent and
as Co-Arranger
By: /s/ S. William Fox
-------------------------------------------
Name: S. William Fox
Title: Director
By: /s/ Ian W. Nalitt
-------------------------------------------
Name: Ian W. Nalitt
Title: Associate
Notice Address:
Eleven Madison Avenue
New York, NY 10010
Attention: Julia Kingsbury
Telephone: (212) 325-2000
Facsimile: (212) 325-8304
UBS WARBURG LLC,
as Co-Arranger and Syndication Agent
By: /s/ Andreas Gruson
-------------------------------------------
Name: Andreas Gruson
Title: Executive Director
By: /s/ M. Gui Goodreau
-------------------------------------------
Name: M. Gui Goodreau
Title: Associate Director
Notice Address:
677 Washington Blvd, 6th Floor
Stamford, CT 06912
Attention: Lynne Alfarone
Telephone: (203) 719-4308
Facsimile: (203) 719-4176
E-mail: Lynne.Alfarone@ubsw.com
UBS AG, CAYMAN ISLANDS BRANCH
By: /s/ Wilfred Saint
-------------------------------------------
Name: Wilfred Saint
Title: Associate Director
By: /s/ Thomas R. Salzano
-------------------------------------------
Name: Thomas R. Salzano
Title: Director
Notice Address:
677 Washington Blvd, 6th Floor
Stamford, CT 06912
Attention: Lynne Alfarone
Telephone: (203) 719-4308
Facsimile: (203) 719-4176
E-mail: Lynne.Alfarone@ubsw.com
SUNTRUST BANK,
individually and as Co-Documentation Agent
By: /s/ Mark A. Flatin
-------------------------------------------
Name: Mark A. Flatin
Title: Director
Notice Address:
10710 Midlothean Turnpike
Richmond, VA 23235
Attention: Bonnie Brown
Telephone: (804) 594-1061
Facsimile: (804) 594-1139
LASALLE BANK NATIONAL ASSOCIATION,
individually and as Co-Documentation Agent
By: /s/ Mark Mital
-------------------------------------------
Name: Mark Mital
Title: Vice President
Notice Address:
135 S. LaSalle Street
Chicago, IL 60603
Attention: Mark Mital
Telephone: (312) 904-2747
Facsimile: (312) 904-6546
RZB FINANCE LLC, CONNECTICUT OFFICE
By: /s/ John A. Valiska
-------------------------------------------
Name: John A. Valiska
Title: Group Vice President
By: /s/ Christoph Hoedl
-------------------------------------------
Name: Christoph Hoedl
Title: Vice President
Notice Address:
1133 Avenue of the Americas
New York, NY 10036
Attention: Klaus Hein
Telephone: (212) 845-4111
Facsimile: (212) 944-2093
E-Mail: khein@rzbfinance.com
TRANSAMERICA BUSINESS CAPITAL CORPORATION
By: /s/ Stephen K. Goetschius
-------------------------------------------
Name: Stephen K. Goetschius
Title: SVP
Notice Address:
555 Theodore Fremd Avenue
Rye, NY 10580
Attention: Katherine Kozack
Telephone: (914) 921-7226
Facsimile: (914) 921-9072
E-mail: katherine.kozack@transamerica.com
GMAC COMMERCIAL FINANCE LLC
By: /s/ Michael Hampton
-----------------------
Name: Michael Hampton
Title: Vice President
Notice Address:
210 Interstate North Parkway
Suite 315
Atlanta, GA 30339
Attention: Divisional Chief Credit Officer
Telephone: (678) 553-2700
Facsimile: (678) 553-2707