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AMENDED AND RESTATED CREDIT AGREEMENT
among
FIRST BRANDS CORPORATION,
THE CHASE MANHATTAN BANK,
as Agent,
and
THE SEVERAL LENDERS PARTIES HERETO
Dated as of February 28, 1997
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS......................................................................................... 1
1.1. Defined Terms.................................................................................... 1
1.2. Other Definitional Provisions.................................................................... 23
SECTION 2. THE COMMITTED RATE LOANS; THE BID LOANS; THE SWING LINE LOANS...................................... 23
2.1. The Committed Rate Loans......................................................................... 23
2.2. The Bid Loans.................................................................................... 25
2.3. Limitation on Aggregate Extensions of Credit..................................................... 29
2.4. Repayment of Loans............................................................................... 29
2.5. Termination or Reduction of Commitments.......................................................... 29
2.6. Optional and Mandatory Prepayments............................................................... 29
2.7. Interest Rates and Payment Dates................................................................. 31
2.8. Minimum Amounts of Tranches...................................................................... 31
2.9. Fees ......................................................................................... 31
2.10. Requirements of Law.............................................................................. 32
2.11. Taxes .......................................................................................... 34
2.12. Computation of Interest and Fees................................................................. 35
2.13. Pro Rata Treatment and Payments.................................................................. 35
2.14. Inability to Determine Interest Rate............................................................. 36
2.15. Illegality....................................................................................... 37
2.16. Indemnity........................................................................................ 37
2.17. Conversion and Continuation Options.............................................................. 38
2.18. Eurocurrency Reserve Costs....................................................................... 39
2.19. Use of Proceeds.................................................................................. 39
2.20. Swing Line Commitment............................................................................ 39
2.21. Swing Line Note.................................................................................. 40
2.22. Procedure for Borrowing for Swing Line Loans..................................................... 40
2.23. Refunded Swing Line Loans; Swing Line Loan Participations....................................... 41
SECTION 3. LETTERS OF CREDIT.................................................................................. 42
3.1. Letters of Credit................................................................................ 42
3.2. Issuance of Letters of Credit.................................................................... 43
3.3. Participating Interests.......................................................................... 43
3.4. Reimbursement Obligation of the Company.......................................................... 43
3.5. Letter of Credit Payments........................................................................ 44
3.6. Letter of Credit Fees............................................................................ 44
3.7. Obligations of the Company Absolute.............................................................. 45
3.8. Letter of Credit Application..................................................................... 45
3.9. Purpose of Letters of Credit..................................................................... 45
SECTION 4. REPRESENTATIONS AND WARRANTIES...................................................................... 46
4.1. Financial Condition.............................................................................. 46
4.2. No Change........................................................................................ 47
4.3. Corporate Existence; Compliance with Law......................................................... 47
4.4. Corporate Power; Authorization................................................................... 47
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4.5. Enforceable Obligations.......................................................................... 47
4.6. No Legal Bar..................................................................................... 48
4.7. No Material Litigation........................................................................... 48
4.8. Federal Regulation............................................................................... 48
4.9. Investment Company Act........................................................................... 48
4.10. No Default....................................................................................... 48
4.11. Ownership of Property; Liens..................................................................... 48
4.12. Patents and Trademarks........................................................................... 48
4.13. Taxes .......................................................................................... 49
4.14. No Burdensome Restrictions....................................................................... 49
4.15. ERISA .......................................................................................... 49
4.16. Subsidiaries..................................................................................... 50
4.17. Lessor Intellectual Property..................................................................... 50
4.18. Environmental Status............................................................................. 50
SECTION 5. CONDITIONS PRECEDENT................................................................................ 51
5.1. Conditions to Initial Extension of Credit........................................................ 51
5.2. Conditions to Each Extension of Credit........................................................... 53
SECTION 6. AFFIRMATIVE COVENANTS............................................................................... 54
6.1. Financial Statements............................................................................. 54
6.2. Certificates; Other Information.................................................................. 55
6.3. Payment of Obligations........................................................................... 56
6.4. Conduct of Business and Maintenance of Existence................................................. 56
6.5. Maintenance of Property and Insurance............................................................ 56
6.6. Inspection of Property; Books and Records; Discussions.......................................... 57
6.7. Notices ......................................................................................... 57
6.8. Separate Corporate Entity for and Borrowing by Unrestricted Subsidiaries........................ 58
SECTION 7. NEGATIVE COVENANTS.................................................................................. 58
7.1. Limitation on Liens.............................................................................. 58
7.2. Prohibition of Fundamental Changes............................................................... 60
7.3. Limitation on Restricted Payments................................................................ 60
7.4. Limitation on Investments, Acquisitions, Loans and Advances..................................... 61
7.5. Limitations on Sale of Assets.................................................................... 62
7.6. Ratio of Consolidated Total Indebtedness to Consolidated Total Capitalization................... 63
7.7. Interest Coverage Ratio.......................................................................... 63
7.8. Limitation on Indebtedness of Unrestricted Subsidiaries......................................... 63
7.9. Limitation on Prepayments, Amendments and Payments in respect of Subordinated Indebtedness
and New Sale- Leasebacks...................................................................... 63
7.10. Limitation on Affiliate Transactions............................................................. 65
7.11. Prohibition on Change in Business................................................................ 65
7.12. Limitation on Assets of Non-Recourse.
Unrestricted Subsidiaries...................................................................................... 65
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SECTION 8. EVENTS OF DEFAULT................................................................................... 65
SECTION 9. THE AGENT........................................................................................... 69
9.1. Appointment...................................................................................... 69
9.2. Delegation of Duties............................................................................. 70
9.3. Exculpatory Provisions........................................................................... 70
9.4. Reliance by Agent................................................................................ 70
9.5. Notice of Default................................................................................ 71
9.6. Non-Reliance on Agent and Other Lenders.......................................................... 71
9.7. Indemnification.................................................................................. 72
9.8. Agent in its Individual Capacity................................................................. 72
9.9. Successor Agent.................................................................................. 72
SECTION 10. MISCELLANEOUS...................................................................................... 73
10.1. Amendments and Waivers.......................................................................... 73
10.2. Notices......................................................................................... 74
10.3. No Waiver; Cumulative Remedies.................................................................. 75
10.4. Survival of Representations and Warranties...................................................... 75
10.5. Payment of Expenses and Taxes................................................................... 75
10.6. Successors and Assigns; Participations; Purchasing Lenders.................................... 76
10.7. Adjustments; Set-off............................................................................ 79
10.8. Confidentiality................................................................................. 80
10.9. Further Assurances.............................................................................. 81
10.10. Severability.................................................................................... 81
10.11. Counterparts.................................................................................... 81
10.12. GOVERNING LAW................................................................................... 81
10.13. Submission to Jurisdiction...................................................................... 81
10.14. Acknowledgements................................................................................ 82
10.15. WAIVER OF JURY TRIAL............................................................................ 82
10.16. Integration..................................................................................... 82
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Schedules
Schedule I Commitments, Commitment Percentages, Lending
Offices
Schedule II Patents
Schedule III Trademarks
Schedule IV Competitors
Schedule 4.1 Sales, Transfers and Other Dispositions
Schedule 4.7 Litigation
Schedule 4.16 Subsidiaries
Schedule 4.17 Effective Date Lessor Intellectual Property
Schedule 4.18 Environmental Matters
Schedule V Existing Financing Leases
Schedule 7.10 Permitted Affiliate Transactions
Exhibits
Exhibit A Committed Rate Note
Exhibit B Bid Loan Note
Exhibit C Swing Line Note
Exhibit D Bid Loan Confirmation
Exhibit E Bid Loan Offer
Exhibit F Bid Loan Request
Exhibit G Subsidiary Guarantee Consent
Exhibit H Swing Line Loan Participation Certificate
Exhibit I Cash Collateral Agreement
Exhibit J Borrowing Certificate
Exhibit K Opinion of Kirkland & Ellis
Exhibit L Assignment and Acceptance
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February
28, 1997, among FIRST BRANDS CORPORATION, a Delaware corporation (the
"Company"), the several lenders from time to time parties hereto (the
"Lenders"), and THE CHASE MANHATTAN BANK, a New York banking corporation, as
agent for the Lenders hereunder (in such capacity, the "Agent").
W I T N E S S E T H :
WHEREAS, the Company, certain lenders (the "Existing
Lenders"), and The Chase Manhattan Bank (formerly Chemical Bank), as agent for
the Existing Lenders, are parties to a Credit Agreement, dated as of February 3,
1995 (as the same has been amended, supplemented or otherwise modified, the
"Existing Credit Agreement"), pursuant to which the Existing Lenders have made
revolving credit loans, bid loans and swing line loans, and issued or
participated in letters of credit for the account of the Company; and
WHEREAS, the Company has requested that the Existing Credit
Agreement be amended to effect certain modifications as more particularly set
forth herein; and
WHEREAS, the Lenders are agreeable to the Company's request
and to amending and restating the Existing Credit Agreement on the terms and
conditions set forth herein to effect such request;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein, the parties hereto hereby
agree that on the Effective Date (as hereinafter defined) the Existing Credit
Agreement shall be amended and restated to read in its entirety as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the
following terms shall have the following respective meanings
(such definitions to be equally applicable to the singular and
plural forms thereof):
"ABR Loans" shall mean Loans whose interest rate is
based on the Alternate Base Rate;
"Absolute Rate Bid Loan" shall mean a loan made
pursuant to an Absolute Rate Bid Loan Request;
"Absolute Rate Bid Loan Request" shall mean any Bid Loan
Request requesting the Lenders to offer to make Bid Loans at an
absolute rate (as opposed to a rate composed of the Applicable Index
Rate plus (or minus) a margin);
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"Affiliate" of any Person shall mean any Person (other than a
Restricted Subsidiary) which, directly or indirectly, is in control of,
is controlled by, or is under common control with, such Person; for
purposes of this definition, control of a Person shall mean the power,
direct or indirect, to direct or cause the direction of the management
and policies of such Person whether by contract or otherwise;
"Agent" shall have the meaning ascribed thereto in the
preamble hereto;
"Aggregate Outstandings" shall have the meaning
specified in subsection 2.3;
"Agreement" shall mean this Credit Agreement, as the same may
be amended, supplemented or otherwise modified from time to time;
"Alternate Base Rate" shall mean, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
the greatest of:
(a) the Prime Rate in effect on such day;
(b) the Base CD Rate in effect on such day plus 1%;
and
(c) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%.
If for any reason the Agent shall have determined (which determination
shall be conclusive absent clearly demonstrable error) that it is
unable to ascertain the Base CD Rate or the Federal Funds Effective
Rate or both for any reason, including the inability or failure of the
Agent to obtain sufficient quotations in accordance with the terms
thereof, the Alternate Base Rate shall be determined without regard to
clause (b) or (c), or both, as appropriate, until the circumstances
giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate shall be
effective as of the opening of business on the date of such change;
"Applicable Index Rate" shall mean, in respect of any Bid Loan
requested pursuant to an Index Rate Bid Loan Request, the LIBO Rate
applicable to the Interest Period for such Bid Loan;
"Applicable Margin" shall mean, for each Type of Loan, the
rate per annum set forth opposite the actual or implied senior
unsecured long-term debt rating of the Company below (or, if the
Applicable Margin is determined by reference to the rating of another
rating agency, such ratings as are
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generally recognized as being equivalent to those set forth below), as
quoted by such rating agency or otherwise determined in a manner
reasonably satisfactory to the Agent by reference to the ratings of the
Company's subordinated unsecured long-term debt securities published by
Moody's or S&P, or, if neither of Moody's or S&P no longer publishes
ratings of the Company's senior unsecured long-term debt securities or
subordinated unsecured long-term debt securities, the rate per annum
set forth below opposite the applicable ratio of Consolidated Total
Indebtedness to Consolidated EBITDA:
Consolidated
Total
Indebtedness/
Consolidated Eurodollar
Ratings EBITDA Loan CD Loan
------- ------------- ---------- -------
S&P Moody's
--- -------
BB+ or Ba1 or less >2.25x 0.425% 0.550%
less -
BBB- Baa3 <2.25x but 0.275% 0.400%
>1.25x
-
BBB Baa2 <1.25x but 0.250% 0.375%
>0.75x
-
BBB+ Baa1 <0.75x but 0.225% 0.350%
>0.50x
-
A- or A3 or <0.50x 0.175% 0.300%
higher higher
In the event that the Applicable Margin is being determined in
accordance with the actual or implied senior unsecured long-term debt
rating of the Company and such rating by either S&P or Moody's is not
the rating set forth opposite the then-current such rating by the other
rating agency in the table above under the heading "Ratings", the
Applicable Margin shall be the rate per annum set forth opposite the
higher of such two ratings. Changes in the Applicable Margin (whether
increases or decreases thereof) shall take effect on the first Business
Day following the date the relevant change in the rating of the
Company's securities is published; and
In the event that the Applicable Margin is being determined in
accordance with the ratio of Consolidated Total Indebtedness to
Consolidated EBITDA, the Applicable Margin for any date during any
fiscal quarter shall be determined by reference to the ratio of
Consolidated Total Indebtedness to Consolidated EBITDA as of the last
day of the Company's second preceding fiscal quarter, provided that if
the Company shall at any time fail to deliver to the Lenders prior to
the first day of any fiscal quarter the financial
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statements required pursuant to subsection 6.1 for the period ending at
the end of the second preceding fiscal quarter, such ratio, until such
financial statements shall be delivered, shall be deemed to be greater
than 2.25 to 1;
"Assignment and Acceptance" shall have the meaning
ascribed thereto in subsection 10.6(c);
"Available Commitment" shall mean, as to any Lender at any
time, the excess, if any, of (a) the amount of such Lender's Commitment
as in effect at such time over (b) the sum of (i) the aggregate
principal amount of all Committed Rate Loans made by such Lender then
outstanding plus (ii) the undrawn face amount of such Lender's
participating interest or, in the case of Chase, residual interest in
all Letters of Credit issued pursuant to subsections 3.1 and 3.2 plus
(iii) such Lender's participating interest in or, in the case of Chase,
residual interest in the unpaid reimbursement obligations of the
Company with respect to Letters of Credit whether or not outstanding at
such time, plus (iv) in the case of Chase, the aggregate principal
amount of all Swing Line Loans made by Chase then outstanding;
"Banking Governmental Authority" shall mean any of the Board,
the Office of the Comptroller of the Currency or the Federal Deposit
Insurance Corporation (or any successor bank regulatory authorities or
agencies);
"Base CD Rate" shall mean the sum of (a) the product of (i)
the Three-Month Secondary CD Rate and (ii) a fraction, the numerator of
which is one and the denominator of which is one minus the CD Reserve
Percentage and (b) the C/D Assessment Rate;
"Bid Loan" shall mean each bid loan made pursuant to
subsection 2.2;
"Bid Loan Confirmation" shall mean each confirmation by the
Company of its acceptance of Bid Loan Offers, which Bid Loan
Confirmation shall be substantially in the form of Exhibit D and shall
be delivered to the Agent in writing, by telex or by facsimile
transmission;
"Bid Loan Note" shall be as defined in subsection
2.2(f);
"Bid Loan Offer" shall mean each offer by a Lender to make Bid
Loans pursuant to a Bid Loan Request, which Bid Loan Offer shall
contain the information specified in Exhibit E and shall be delivered
to the Agent by telephone, immediately confirmed by telex or facsimile
transmission;
"Bid Loan Request" shall mean each request by the Company for
Lenders to submit bids to make Bid Loans, which
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shall contain the information in respect of such requested Bid Loans
specified in Exhibit F and shall be delivered to the Agent in writing,
by telex or facsimile transmission, or by telephone, immediately
confirmed by telex or facsimile transmission;
"Board" shall mean the Board of Governors of the
Federal Reserve System (or any successor thereto);
"Borrowing Date" shall mean any day specified in a notice
pursuant to subsection 2.1, 2.2 or 2.22 as a date on which the Company
requests that Loans be made hereunder;
"Business Day" shall mean a day other than a Saturday, Sunday
or other day on which commercial lenders in New York, New York, are
authorized or required by law to close;
"Capitalized Lease" shall mean any lease of property, real or
personal, the obligations under which are, or are required to be,
capitalized on a balance sheet of the Company in accordance with GAAP;
"Cash Collateral Agreement" shall have the meaning
ascribed thereto in subsection 2.6(b);
"Cash Equivalents" at any date shall mean (a) securities with
maturities of one year or less from the date of acquisition thereof
issued or fully guaranteed or insured by the United States Government
or any agency thereof, (b) certificates of deposit, bankers acceptances
and eurodollar time deposits with maturities of one year or less from
the date of acquisition, and overnight lender deposits of any Lender or
any other commercial lender having capital and surplus in excess of
$500,000,000, (c) repurchase agreements involving securities of the
type described in clause (a) above with Lenders and with other
commercial lenders having capital and surplus in excess of
$500,000,000, (d) commercial paper of a Lender or a domestic issuer
rated at least A-1 by S&P or P-1 by Moody's and (e) shares of an
open-end investment company registered under the Investment Company Act
of 1940, as amended, all or substantially all of the assets of which
are required to be invested in investments of the types described in
and meeting the requirements of clauses (a) through (d) of this
definition;
"C/D Assessment Rate" for any day as applied to any C/D Rate
Loan or ABR Loan shall mean the annual assessment rate in effect on
such day which is payable by a member of the Bank Insurance Fund
maintained by the Federal Deposit Insurance Corporation (the "FDIC")
classified as well-capitalized and within supervisory subgroup "B" (or
a comparable successor assessment risk classification) within the
meaning of 12 C.F.R. 'SS' 327.3(e) (or any successor provision) to the
FDIC (or any successor) for the FDIC's (or
6
such successor's) insuring time deposits at offices of such
institution in the United States;
"C/D Base Rate" with respect to each day during each Interest
Period pertaining to a C/D Rate Loan shall mean the rate of interest
per annum notified to the Agent by Chase as the average rate bid at
9:00 A.M., New York City time, or as soon thereafter as practicable, on
the first day of such Interest Period by a total of three certificate
of deposit dealers of recognized standing selected by Chase for the
purchase at face value from Chase of its certificates of deposit in an
amount comparable to the C/D Rate Loan of Chase to which such Interest
Period applies and having a maturity comparable to such Interest
Period;
"C/D Rate" with respect to each day during each Interest
Period pertaining to a C/D Rate Loan shall mean a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
C/D Base Rate
----------------------------- + C/D Assessment Rate
1.00 - C/D Reserve Percentage
"C/D Rate Loans" shall mean Committed Rate Loans the rate of
interest applicable to which is based upon the C/D Rate;
"C/D Rate Tranche" shall mean the C/D Rate Loans, the Interest
Periods with respect to all of which begin on the same date and end on
the same later date (whether or not such Loans shall originally have
been made on the same day);
"C/D Reserve Percentage" for any day as applied to any C/D
Rate Loan or any ABR Loan shall mean that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Board,
for determining the maximum reserve requirement for a Depositary
Institution (as defined in Regulation D of the Board) in respect of new
non-personal time deposits in Dollars in New York City having a
maturity comparable to the Interest Period for such C/D Rate Loan (or,
with respect to an ABR Loan, of 30 days or more) and in an amount of
$100,000 or more;
"Chase" shall mean The Chase Manhattan Bank, a New York
banking corporation;
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time;
"Collateral Documents" shall be the collective
reference to the Cash Collateral Agreement and any
Subsidiary Guarantees;
7
"Commercial Letters of Credit" shall mean the commercial
documentary letters of credit, payable in Dollars, to be issued by
Chase hereunder in such form as may from time to time be approved by
Chase, in favor of such beneficiaries as the Company or any Restricted
Subsidiary shall specify from time to time (which beneficiaries shall
be reasonably acceptable to Chase), for the account of the Company for
the purchase of goods in the ordinary course of its business;
"Commercial Paper Notes" shall mean Commercial Paper Notes
backed directly or indirectly by accounts receivable of the Company and
its Restricted Subsidiaries purchased by Funding;
"Commitment" shall mean, as to any Lender, the obligation of
such Lender to make Committed Rate Loans to the Company, and to issue
or participate in, as the case may be, Letters of Credit for the
account of the Company, and, in the case of the Swing Line Lender, to
make Swing Line Loans to the Company, hereunder in a combined aggregate
principal amount and aggregate face amount, as the case may be, at any
one time outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule I;
"Commitment Percentage" of any Lender at any time shall mean
the percentage of the aggregate Commitments then constituted by such
Lender's Commitment;
"Commitment Period" shall mean the period from and
including the Effective Date to but not including the
Termination Date;
"Committed Rate Loans" shall have the meaning ascribed
thereto in subsection 2.1(a);
"Committed Rate Notes" shall have the meaning ascribed
thereto in subsection 2.1(c);
"Commonly Controlled Entity" shall mean an entity, whether or
not incorporated, which is under common control with the Company within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Company and which is treated as a single employer under
Section 414 of the Code;
"Company" shall have the meaning ascribed thereto in
the preamble hereto;
"Competitor" shall mean, at any time, any Person which is
engaged in a business competitive with a business of the Company or any
of its Subsidiaries, and which the Company has enumerated on Schedule
IV and as supplemented by the Company in writing from time to time;
8
"Consolidated EBITDA" shall mean Consolidated EBITDAR minus
Consolidated Lease Expense.
"Consolidated EBITDAR" shall mean, for any period,
Consolidated Net Income for such period, plus to the extent deducted
from revenues in determining such Consolidated Net Income, (a)
Consolidated Interest Expense for such period, (b) tax expense for the
Company and its Consolidated Subsidiaries (other than Non-Recourse
Unrestricted Subsidiaries) for such period, (c) depreciation and
amortization expense of the Company and its Consolidated Subsidiaries
(other than Non-Recourse Unrestricted Subsidiaries) for such period,
(d) Consolidated Lease Expense for such period, and (e) the amount of
other noncash charges of the Company and its Consolidated Subsidiaries
(other than Non-Recourse Unrestricted Subsidiaries) during such period
minus noncash revenues of the Company and its Consolidated Subsidiaries
(other than Non-Recourse Unrestricted Subsidiaries) during such period;
"Consolidated Interest Expense" shall mean, for any period,
the amount of interest expense, both expensed and capitalized, of the
Company and its Consolidated Subsidiaries, determined on a consolidated
basis in accordance with GAAP, for such period on the aggregate
principal amount of their Indebtedness, determined on a consolidated
basis in accordance with GAAP (except that for purposes of this
definition no Non-Recourse Unrestricted Subsidiary shall be deemed to
constitute a Consolidated Subsidiary);
"Consolidated Lease Expense" shall mean, for any period, the
aggregate amount of fixed and contingent rentals payable by the Company
and its Consolidated Subsidiaries, determined on a consolidated basis
in accordance with GAAP (except that for purposes of this definition no
Non-Recourse Unrestricted Subsidiary shall be deemed to constitute a
Consolidated Subsidiary), for such period with respect to leases of
real and personal property;
"Consolidated Net Income" for any fiscal period of the Company
shall mean consolidated net income or loss of the Company and its
Consolidated Subsidiaries (except that for purposes of this definition
no Non-Recourse Unrestricted Subsidiary shall be deemed to constitute a
Consolidated Subsidiary, provided that any portion of the consolidated
net income of the Company and its Consolidated Subsidiaries (without
giving effect to the foregoing exception) resulting from the operations
of any Non-Recourse Unrestricted Subsidiary shall be included only to
the extent that, subject to any Requirement of Law or Contractual
Obligation applicable to such Non-Recourse Unrestricted Subsidiary,
such Non-Recourse Unrestricted Subsidiary would be able to dividend
such earnings to the Company or a Restricted Subsidiary (net, however,
of any taxes that would be
9
applicable to the payment of such dividends)) as it would appear on a
consolidated statement of income of the Company and its Consolidated
Subsidiaries for such fiscal period prepared in accordance with GAAP;
"Consolidated Net Worth" at any date shall mean the amount set
forth opposite the caption "stockholder's equity" (or any like caption)
on a consolidated balance sheet of the Company and its Consolidated
Subsidiaries at such date prepared in accordance with GAAP (except that
any investment by the Company or any of its Subsidiaries in a
Non-Recourse Unrestricted Subsidiary shall be accounted for on the
equity basis);
"Consolidated Subsidiary" shall mean a Subsidiary of the
Company whose accounts are consolidated with those of the Company for
financial reporting purposes in accordance with GAAP;
"Consolidated Total Capitalization" shall mean
Consolidated Net Worth plus Consolidated Total Indebtedness.
"Consolidated Total Indebtedness" at any date shall mean the
sum of (without duplication) (a) the Indebtedness of the Company and
its Consolidated Subsidiaries at such date determined on a consolidated
basis in accordance with GAAP, plus (b) the aggregate amount of
Contingent Obligations of the Company and its Consolidated Subsidiaries
outstanding on such date (other than Contingent Obligations of the
Company or any Consolidated Subsidiary which support Indebtedness of
the Company or any of its Subsidiaries) determined on a consolidated
basis in accordance with GAAP, plus (c) the aggregate face amount of
commercial paper issued by the CP Issuer and outstanding on such date
pursuant to the Securitization Documents, minus the aggregate principal
amount of Non-Recourse Indebtedness of the Company's Non-Recourse
Unrestricted Subsidiaries outstanding on such date that, but for the
provisions of subsection 7.8(b), would not be permitted hereunder;
"Contingent Obligation" as to any Person shall mean (a) the
undrawn face amount of all letters of credit issued for the account of
such Person and (b) any obligation of such Person guaranteeing or in
effect guaranteeing any Indebtedness, leases, dividends, letters of
credit or other obligations ("primary obligations") of any other Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether
or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to
advance or supply funds (x) for the purchase or payment of any such
primary obligation or (y) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to
10
purchase property, securities or services primarily for the purpose of
assuring the obligee under any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the obligee under such
primary obligation against loss in respect thereof; provided that the
term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of
business; the amount of any Contingent Obligation shall be deemed to be
an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made (or,
if any Contingent Obligation is specifically limited to a portion of
any such primary obligation, that portion to which it is limited) or,
if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith;
"Contractual Obligation" of any Person shall mean any
provision of any security issued by such Person or of any material
agreement, instrument or undertaking to which such Person is a party or
by which it or any of its property is bound;
"Controlled Foreign Corporation" shall mean a
controlled foreign corporation within the meaning of Section
957 of the Code;
"Default" shall mean any of the events specified in Section 8,
whether or not any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied;
"Dollars" and "$" shall mean dollars in lawful currency
of the United States of America;
"Domestic Dollar Loans" shall be the collective
reference to C/D Rate Loans and ABR Loans;
"Domestic Lending Office" shall mean, initially, the office of
a Lender designated as such in Schedule I; thereafter, such other
office of such Lender, if any, which shall be making C/D Rate Loans and
ABR Loans;
"Effective Date" shall mean February __, 1997;
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time;
"Eurodollar Lending Office" shall mean, initially, the office
of a Lender designated as such in Schedule I hereto; thereafter, such
other office of such Lender, if any, which shall be making Eurodollar
Loans;
11
"Eurodollar Loans" shall mean Committed Rate Loans hereunder
that bear interest for the Interest Period applicable thereto at an
interest rate based upon the LIBO Rate;
"Eurodollar Tranche" shall mean the Eurodollar Loans, the
Interest Periods with respect to all of which begin on the same date
and end on the same later date (whether or not such Loans shall
originally have been made on the same day);
"Event of Default" shall mean any of the events specified in
Section 8 provided that any requirement for the giving of notice, the
lapse of time, or both, or any other condition, has been satisfied;
"Existing Credit Agreement" shall have the meaning
ascribed thereto in the recitals to this Agreement;
"Existing Lenders" shall have the meaning ascribed
thereto in the recitals to this Agreement;
"Existing Letter of Credit" shall mean Irrevocable Standby
Letter of Credit NO. T214417 issued by Chase on behalf of the Company
in the amount of $667,207, for the benefit of Lumberman's Mutual
Casualty Insurance Company, American Motorist Insurance Company,
American Manufacturers Mutual Insurance Company and American Protection
Insurance Company, as amended.
"Facility Fee Rate" shall mean the rate per annum set forth
opposite the actual or implied senior unsecured long-term debt rating
of the Company below (or, if the Facility Fee Rate is determined by
reference to the rating of another rating agency, such ratings as are
generally recognized as being equivalent to those set forth below), as
quoted by such rating agency or otherwise determined in a manner
reasonably satisfactory to the Agent by reference to the ratings of the
Company's subordinated unsecured long-term debt securities published by
Moody's or S&P, or, if neither of Moody's or S&P no longer publishes
ratings of the Company's senior unsecured long-term debt securities or
subordinated unsecured long-term debt securities, the rate per annum
set forth below opposite the applicable ratio of Consolidated Total
Indebtedness to Consolidated EBITDA:
Consolidated Total
Indebtedness/
Consolidated Facility
Ratings EBITDA Fee
------- ------------------ --------
S&P Moody's
--- -------
BB+ or less Ba1 or less >2.25x 0.200%
-
BBB- Baa3 <2.25x but >1.25x 0.150%
-
BBB Baa2 <1.25x but >0.75x 0.125%
-
BBB+ Baa1 <0.75X but >0.50x 0.100%
-
12
A- or higher A3 or higher <0.50x 0.075%
In the event that the Facility Fee Rate is being determined in
accordance with the actual or implied senior unsecured long-term debt
rating of the Company and such rating by either S&P or Moody's is not
the rating set forth opposite the then-current such rating by the other
rating agency in the table above under the heading "Ratings", the
Facility Fee Rate shall be the rate per annum set forth opposite the
higher of such two ratings. Changes in the Facility Fee Rate (whether
increases or decreases thereof) shall take effect on the first Business
Day following the date the relevant change in the rating of the
Company's securities is published; and
In the event that the Facility Fee Rate is being determined in
accordance with the ratio of Consolidated Total Indebtedness to
Consolidated EBITDA, the Facility Fee Rate for any date during any
fiscal quarter shall be determined by reference to the ratio of
Consolidated Total Indebtedness to Consolidated EBITDA as of the last
day of the Company's second preceding fiscal quarter, provided that if
the Company shall at any time fail to deliver to the Lenders prior to
the first day of any fiscal quarter the financial statements required
pursuant to subsection 6.1 for the period ending at the end of the
second preceding fiscal quarter, such ratio, until such financial
statements shall be delivered, shall be deemed to be greater than 2.25
to 1;
"Federal Funds Effective Rate" shall mean, for any day, the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published
for any day that is a Business Day, the average quotations, for such
day of such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it;
"Financing Lease" shall mean any operating lease of production
and/or handling equipment listed on Schedule V or entered into by the
Company or any of its Restricted Subsidiaries after the Effective Date;
"Financing Lease Value" of any Financing Lease at a particular
time shall mean the net present value of the then remaining rental
payments thereon (discounted at the implicit lease rate applicable to
such Financing Lease);
"Foreign Indebtedness Letters of Credit" shall mean standby
letters of credit, payable in Dollars, issued by Chase for the account
of the Company in favor of financial institutions in support of
Indebtedness of Foreign Subsidiaries owing to such financial
institutions;
13
"Foreign Subsidiaries" shall mean Subsidiaries of the Company
which are organized or incorporated under the laws of any jurisdiction
other than the laws of the United States or of any state thereof or the
District of Columbia or which shall not conduct any significant portion
of their business in the United States;
"Funding" shall mean First Brands Funding Inc, a Delaware
corporation and a wholly-owned Subsidiary of the Company or any other
successor or replacement thereto, including any purchaser in a
multi-seller program;
"GAAP" shall mean generally accepted accounting principles in
the United States of America as in effect from time to time; provided
that when used in Section 7 (or in the definitions referred to in
Section 7), whether directly or indirectly through a reference to a
capitalized term used therein, "GAAP" shall mean generally accepted
accounting principles as in effect on the date hereof, provided,
further, that when used with respect to consolidated financial
statements of the Company and its Restricted Subsidiaries, whether
directly or indirectly through a reference to a capitalized term,
"GAAP" shall mean generally accepted accounting principles which would
be applicable as if such Restricted Subsidiaries constituted all of the
Company's Consolidated Subsidiaries and the Company's investments in
Unrestricted Subsidiaries were accounted for using the cost method;
"Governmental Authority" shall mean any nation or government,
any state or other political subdivision thereof, and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government;
"Indebtedness" of a Person at any date shall mean (a)
indebtedness of such Person for borrowed money, (b) indebtedness of
such Person for the deferred purchase price of services or property,
excluding trade payables incurred in the ordinary course of business,
(c) obligations of such Person under Capitalized Leases, (d)
indebtedness of such Person arising under acceptance facilities and (e)
indebtedness consisting of unpaid reimbursement obligations in respect
of all drafts drawn under letters of credit issued for the account of
such Person (including, without limitation, any such indebtedness or
other obligation described in this definition that is non-recourse to
the credit of such Person but is secured by assets of such Person);
"Indenture" shall mean the Indenture dated as of March 1,
1992, between the Company and the United States Trust Company of New
York, as Trustee, pursuant to which the Senior Subordinated Notes were
issued, as the same may be
14
amended, supplemented or otherwise modified from time to
time in accordance with subsection 7.9;
"Index Rate Bid Loan" shall mean a Bid Loan made
pursuant to an Index Rate Bid Loan Request;
"Index Rate Bid Loan Request" shall mean any Bid Loan Request
requesting the Lenders to offer to make Bid Loans at an interest rate
equal to the Applicable Index Rate plus (or minus) a margin;
"Insolvency" shall mean, with respect to any Multiemployer
Plan, the condition that such Plan is insolvent within the meaning of
such term as used in Section 4245 of ERISA;
"Insolvent" shall mean pertaining to a condition of
Insolvency;
"Interest Payment Date" shall mean (a) as to any ABR Loan,
each Payment Date to occur after any such Loan is made hereunder, (b)
as to any Eurodollar Tranche having an Interest Period of one, two or
three months, and any C/D Rate Tranche having an Interest Period of 30,
60 or 90 days, the last day of the applicable Interest Period with
respect thereto and (c) as to any Eurodollar Tranche or C/D Rate
Tranche having an Interest Period of six months or 180 days,
respectively, the date which is three months or 90 days, respectively,
after the commencement of such Interest Period and the last day of such
Interest Period;
"Interest Period" shall mean
(a) with respect to any Eurodollar Loan:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be, with respect
to such Eurodollar Loan and ending one, two, three or six
months thereafter, as selected by the Company in a notice of
borrowing or notice of conversion, as the case may be, given
with respect thereto as provided in subsection 2.1 or
subsection 2.17(a), as the case may be; and
(ii) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to
such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Company by irrevocable notice
to the Agent not less than three Business Days prior to the
last day of the then current Interest Period with respect
thereto;
(b) with respect to any C/D Rate Loan:
15
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be, with respect
to such C/D Rate Loan and ending 30, 60, 90 or 180 days
thereafter, as selected by the Company in its notice of
borrowing or notice of conversion, as the case may be, given
with respect thereto as provided in subsection 2.1 or
subsection 2.17, as the case may be; and
(ii) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to
such C/D Rate Loan and ending 30, 60, 90 or 180 days
thereafter, as selected by the Company by irrevocable notice
to the Agent not less than two Business Days prior to the last
day of the then current Interest Period with respect thereto;
and
(c) with respect to any Bid Loan that is made pursuant to an Absolute
Rate Bid Loan Request, the period commencing on the Borrowing Date with respect
to such Bid Loan and ending on the date not less than 7 days nor more than 183
days thereafter, as specified by the Company in such Bid Loan Request;
provided that the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period relating to a C/D Rate
Loan would otherwise end on a day which is not a Business Day,
such Interest Period shall be extended to the next succeeding
Business Day;
(ii) if any Interest Period with respect to any
Eurodollar Loan or a Bid Loan made pursuant to an Index Rate
Bid Loan Request would otherwise end on a day which is not a
Business Day, such Interest Period shall be extended to the
next succeeding Business Day, unless the result of such
extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end
on the immediately preceding Business Day;
(iii) any Interest Period that would otherwise
extend beyond the Termination Date shall end on such date;
(iv) any Interest Period with respect to a
Eurodollar Loan or an Index Rate Bid Loan which begins on the
last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the
last Business Day of a calendar month; and
16
(v) the Company shall select Interest Periods so
as not to require a payment or prepayment of any Eurodollar
Loan or C/D Rate Loan during an Interest Period for such Loan;
"Lenders" shall have the meaning ascribed thereto in
the preamble hereto;
"Lessor Intellectual Property" shall mean intellectual
property (whether pursuant to a license or otherwise) which pertains to
an asset subject to a sale-leaseback transaction permitted by this
Agreement and in which intellectual property the lessor in such
transaction has obtained rights in connection with such transaction;
"Letter of Credit Application" shall mean a letter of credit
application for a standby letter of credit or a commercial letter of
credit, as the case may be, executed and delivered by the Company for a
Letter of Credit on the then customary form of Chase therefor;
"Letters of Credit" shall be the collective reference
to the Commercial Letters of Credit and the Standby Letters
of Credit;
"LIBO Rate" with respect to each day during each Interest
Period pertaining to a Eurodollar Loan or a Bid Loan made pursuant to
an Index Rate Bid Loan Request shall mean the rate per annum at which
Chase's Eurodollar Lending Office is offered Dollar deposits two
Business Days prior to the beginning of such Interest Period in the
interbank eurodollar market where the foreign currency and exchange
operations or eurodollar funding operations of such Eurodollar Lending
Office are customarily conducted at or about 11:00 A.M., New York City
time, for delivery on the first day of such Interest Period for the
number of days comprised therein and in an amount approximately equal
to the amount of the Eurodollar Loans of Chase to be outstanding during
such Interest Period or, in the case of Index Rate Bid Loans,
$10,000,000;
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), or preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement, any financing lease having substantially the same
legal effect as any of the foregoing and the filing of any financing
statement under the Uniform Commercial Code (other than any such
financing statement filed for informational purposes only or in
connection with Financing Leases) or comparable law of any jurisdiction
to evidence any of the foregoing);
17
"Loan" shall mean any loan made by any Lender pursuant
to this Agreement;
"Loan Documents" shall mean this Agreement, the Notes
and the Collateral Documents;
"Material Adverse Effect" shall mean a material adverse effect
on (a) the business, operations, property, financial condition or
prospects of the Company and its Restricted Subsidiaries taken as a
whole, (b) the ability of the Company or any of its Material
Subsidiaries to perform its obligations under this Agreement or the
Notes or the other Loan Documents to which it is a party, or (c) the
validity or enforceability of this Agreement or any of the Notes,
Collateral Documents or other Loan Documents or the rights and remedies
of the Agent or the Lenders hereunder or thereunder;
"Material Subsidiary" shall mean any Subsidiary at any time at
which all amounts which would be included as assets on a balance sheet
of such Subsidiary determined in accordance with GAAP as of such time
are $1,000,000 or more;
"Moody's" shall mean Moody's Investors Service, Inc.;
"Multiemployer Plan" shall mean a Plan which is a
multiemployer plan as defined in Section 4001(a)(3) of
ERISA;
"New Sale-Leaseback" shall mean any transaction entered into
by the Company after the Effective Date for the sale of equipment of
the Company which is permitted to be sold by the Company under this
Agreement, and the subsequent lease back of such equipment to the
Company from the purchaser thereof;
"Non-Recourse Indebtedness" of any Unrestricted Subsidiary of
the Company at any date shall mean Indebtedness of such Unrestricted
Subsidiary, (i) the payment of which Indebtedness has not been assumed
by the Company or any Restricted Subsidiary and (ii) for which
Indebtedness neither the Company nor any Restricted Subsidiary has
become directly or indirectly liable (including, without limitation,
pursuant to a Contingent Obligation);
"Non-Recourse Unrestricted Subsidiary" shall mean any
Unrestricted Subsidiary which shall have created Non-Recourse
Indebtedness that, but for the provisions of subsection 7.8(b), would
not be permitted to exist hereunder;
"Notes" shall be the collective reference to the
Committed Rate Notes, the Bid Notes and the Swing Line Note;
18
"Patents" shall mean all of the following to the extent that
the Company or any of its Restricted Subsidiaries has any right, title
or interest: (i) all letters patent of the United States and all
applications therefor, including, without limitation, any referred to
in Schedule II hereto, and (ii) all reissues or extensions of such
letters patent and all continuations, continuations-in-part or
divisions of such applications;
"Payment Dates" shall mean the last day of each March,
June, September and December;
"Payment Office" shall mean, initially, the office of the
Agent located at 270 Park Avenue, New York, New York 10017; thereafter,
such other office of the Agent, if any, which it may designate by
notice to the parties hereto as the Payment Office;
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA (or any
successor thereto);
"Person" shall mean an individual, a partnership, a limited
liability company, a corporation, a business trust, a joint stock
company, a trust, an unincorporated association, a joint venture, a
Governmental Authority or any other entity of whatever nature;
"Plan" shall mean any employee benefit plan which is covered
by ERISA and in respect of which the Company or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA;
"Post-Default Rate" with respect to all or any portion of any
Loan not paid when due (whether at the stated maturity, by acceleration
or otherwise), shall mean a rate per annum for each day during the
period (the "Default Period") commencing on the due date of all or such
portion of such Loan until such Loan or such portion is paid in full
(after as well as before judgment) equal to 2% above (a) if such Loan
is a Eurodollar Loan or C/D Rate Loan, the Applicable Margin plus the
LIBO Rate or C/D Rate for Interest Periods during the Default Period or
(b) if such Loan is an ABR Loan, the Alternate Base Rate;
"Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by Chase as its prime rate in
effect at its principal office in New York City. The Prime Rate is not
intended to be the lowest rate of interest charged by Chase in
connection with extensions of credit to debtors;
19
"Register" shall mean a register for the recordation of the
names and addresses of the Lenders and the Commitment of, and principal
amount of the Loans owing to, each Lender from time to time;
"Reorganization" shall mean, with respect to any Multiemployer
Plan, the condition that such Plan is in reorganization within the
meaning of Section 4241 of ERISA;
"Reportable Event" shall mean any of the events set forth in
Section 4043(b) of ERISA, other than those events as to which the
thirty day notice period is waived under subsections .13, .14, .16,
.18, .19 or .20 of PBGC Reg. 'SS' 2615;
"Required Lenders" at any date shall mean Lenders whose
Commitment Percentages aggregate at least 51%, or if the Commitments
shall have been terminated, Lenders holding Committed Rate Loans in an
aggregate principal amount of at least 51% of the aggregate principal
amount of all Committed Rate Loans then outstanding;
"Requirement of Law" for any Person shall mean the Certificate
of Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its material property or to which such Person or any of its
material property is subject;
"Responsible Financial Officer" shall mean the president, the
chief executive officer, the chief financial officer, controller,
treasurer or any assistant treasurer of the Company;
"Restricted Payment" shall have the meaning ascribed
thereto in subsection 7.3;
"Restricted Subsidiary" shall mean any Subsidiary of
the Company other than an Unrestricted Subsidiary;
"S&P" shall mean Standard & Poor's Ratings Group, a
division of McGraw-Hill, Inc.;
"Securities Act" shall mean the Securities Act of 1933, and
any successor Federal statute, and the rules and regulations
thereunder, as in effect from time to time;
"Securitization Documents" shall mean the Asset Purchase and
Sale Agreement by and between the Company and Funding, Subsidiary
Purchase Agreements by and between the Company and its Subsidiaries,
the Pooling and Servicing Agreement (including supplements thereto) by
and among the Company, Funding, the CP Issuer, the
20
letter of credit issuer and the trustee thereunder, the Pledge and
Security Agreement by and among the CP Issuer, the collateral agent and
the liquidity bank agent, the Depositary Agreement by and between the
depositor and the CP Issuer, the CP Dealer Agreement by and between the
CP Issuer and the commercial paper dealer, the Liquidity Agreement by
and among the CP Issuer, the liquidity bank agent and certain banks,
and the LOC Reimbursement Agreement by and among the letter of credit
issuer, the trustee, Funding and the Company, as in effect on the
Effective Date, including the documents and agreements contemplated by
the foregoing, as such the foregoing, singularly or in the aggregate
may be amended, supplemented, refinanced, replaced, substituted or
otherwise modified from time to time, pursuant to which no more than
$100,000,000 in aggregate principal amount of Commercial Paper Notes at
any time outstanding are issued;
"Seller Paper" shall mean any notes, bonds, debentures or
other debt securities issued by any purchaser of any assets from the
Company or its Restricted Subsidiaries as a portion of the
consideration for such purchaser's purchase of such assets;
"Senior Subordinated Notes" shall mean the 9-1/8%
Senior Subordinated Notes of the Company due 1999;
"Single Employer Plan" shall mean any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan;
"Standby Letter of Credit" shall mean an irrevocable letter of
credit, in a face amount of not less than $250,000, issued in
accordance with subsections 3.1 and 3.2 by Chase in Dollars for the
account of the Company for credit support and working capital purposes
in the ordinary course of business;
"STP" shall mean STP Consumer Services Inc., a Delaware
corporation;
"Subordinated Debt" shall mean (a) the Senior Subordinated
Notes and (b) all other unsecured Indebtedness of the Company or any of
its Restricted Subsidiaries no part of the principal of which is
required to be paid (whether by way of mandatory sinking fund,
mandatory redemption, mandatory prepayment, or otherwise) prior to
February 28, 2002, and the payment of the principal of and interest on
which, and other obligations of the Company or such Restricted
Subsidiary in respect of, is by its terms either junior or pari passu
in right of payment with the Senior Subordinated Notes;
21
"Subordinated Debt Prepayment" shall have the meaning
ascribed thereto in subsection 7.9(a);
"Subsidiary" of any Person shall mean a corporation or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the directors of such corporation, or other Persons
performing similar functions for such entity, are owned, directly or
indirectly, by such Person. Unless otherwise qualified, all references
to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer to
a Subsidiary or Subsidiaries of the Company;
"Subsidiary Guarantee" shall mean any Subsidiary Guarantee
made by a Restricted Subsidiary in favor of the Agent and the Lenders,
substantially in the form of Exhibit G to the Existing Credit
Agreement, as the same may be amended, supplemented or modified from
time to time;
"Subsidiary Guarantee Consent" shall mean the consent made by
the Subsidiary Guarantors substantially in the form of Exhibit G
hereto.
"Subsidiary Guarantor" shall mean each Restricted
Subsidiary other than Funding;
"Swing Line Commitment" shall mean the obligation of the Swing
Line Lender to make Swing Line Loans pursuant to subsection 2.20 in an
aggregate amount at any one time outstanding not to exceed $25,000,000;
"Swing Line Lender" shall have the meaning ascribed
thereto in subsection 2.20;
"Swing Line Loan Participation Certificate" shall mean
a certificate substantially in the form of Exhibit H;
"Swing Line Loans" shall have the meaning ascribed
thereto in subsection 2.20;
"Swing Line Note" shall have the meaning ascribed
thereto in subsection 2.21;
"Swing Line Participation Amount" shall have the
meaning ascribed thereto in subsection 2.23(c);
"Swing Line Rate" shall mean, for any day, a rate per annum
equal to the Alternate Base Rate for such day minus .20%;
"Termination Date" shall mean February __, 2002;
22
"Three-Month Secondary CD Rate" shall mean, for any day, the
secondary market rate for three-month certificates of deposit reported
as being in effect on such day (or, if such day is not a Business Day,
the next preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of New York
(which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate is not so reported, the
average (rounded upwards to the nearest 1/100 of 1%) of the secondary
market quotations for three-month certificates of deposit of major
money center banks in New York City received at approximately 10:00
a.m., New York City time, on such day or next preceding Business Day by
the Agent from three New York City negotiable certificate of deposit
dealers of recognized standing selected by it;
"Trademarks" shall mean all of the following to the extent
that the Company or any Restricted Subsidiary has any right, title or
interest in the United States: (i) all trademarks, service marks, trade
names, corporate names, company names, business names, fictitious
business names, trade styles and other source or business identifiers
and the goodwill associated therewith, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and all
applications in connection therewith, including, without limitation,
registrations, recordings and applications in the United States Patent
and Trademark Office or in any similar office or agency of any state
thereof, including, without limitation, those described in Schedule III
hereto, and (ii) all renewals thereof;
"Tranche" shall be the collective reference to Eurodollar
Loans or C/D Rate Loans, as the case may be, the Interest Periods with
respect to all of which begin on the same date and end on the same
later date (whether or not such Loans shall originally have been made
on the same day);
"Transferee" shall have the meaning ascribed thereto in
subsection 10.6(f);
"Type" shall mean, as to any Committed Rate Loan, its nature
as an ABR Loan, a Eurodollar Loan or a C/D Rate Loan;
"Uniform Customs" shall mean the Uniform Customs and
Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500, as
the same may be amended from time to time;
"Unrestricted Subsidiary" shall mean (a) any Foreign
Subsidiary or other Subsidiary which is a Controlled Foreign
Corporation and which, in any such case, is not a Subsidiary Guarantor,
and (b) any other Subsidiary at any time at which all amounts which
would be included as assets on a balance
23
sheet of such Subsidiary determined in accordance with GAAP as of such
time are less than $1,000,000.
1.2. Other Definitional Provisions. (a) All terms defined in
this Agreement shall have the defined meanings when used in the Notes or any of
the Collateral Documents or any certificate or other document made or delivered
pursuant hereto or thereto unless otherwise defined therein.
(b) As used herein, in the Notes or in any of the Collateral
Documents, and in any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms not defined in subsection 1.1, and
accounting terms partly defined in subsection 1.1 to the extent not defined,
shall have the respective meanings given to them under GAAP. To the extent that
the definitions of accounting terms herein are inconsistent with the meanings of
such terms under GAAP, the definitions contained herein shall control.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement or in any of the Collateral Documents
shall refer to this Agreement or such Collateral Document as a whole and not to
any particular provision of this Agreement or such Collateral Document; and
Section, subsection, Schedule and Exhibit references contained in this Agreement
are references to Sections, subsections, Schedules and Exhibits in or to this
Agreement unless otherwise specified.
SECTION 2. THE COMMITTED RATE LOANS; THE BID LOANS;
THE SWING LINE LOANS
2.1. The Committed Rate Loans. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
("Committed Rate Loans") to the Company from time to time during the Commitment
Period in an aggregate principal amount at any one time outstanding not to
exceed the amount of such Lender's Commitment, provided that no Committed Rate
Loan shall be made hereunder if, after giving effect thereto, subsection 2.3
would be contravened. During the Commitment Period the Company may use the
Commitments by borrowing, prepaying the Committed Rate Loans in whole or in
part, and reborrowing, all in accordance with the terms and conditions hereof.
(b) The Committed Rate Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans, (iii) C/D Rate Loans or (iv) a combination
thereof, as determined by the Company and notified to the Agent in accordance
with subsections 2.1(d) and 2.17, provided that no Committed Rate Loan shall be
made as a Eurodollar Loan or a C/D Rate Loan after the day that is one month or
30 days, respectively, prior to the Termination Date.
24
(c) The Committed Rate Loans made by each Lender shall be
evidenced by a promissory note of the Company, substantially in the form of
Exhibit A with appropriate insertions as to payee, date and principal amount (a
"Committed Rate Note"), payable to the order of such Lender and in a principal
amount equal to the lesser of (a) the amount of the initial Commitment of such
Lender and (b) the aggregate unpaid principal amount of all Committed Rate Loans
made by such Lender. Each Lender is hereby authorized to record the date, Type
and amount of each Committed Rate Loan made by such Lender, each continuation
thereof, each conversion of all or a portion thereof to another Type, the date
and amount of each payment or prepayment of principal thereof and, in the case
of Eurodollar Loans and C/D Rate Loans, the length of each Interest Period with
respect thereto, on the schedules annexed to and constituting a part of its
Committed Rate Note, and any such recordation shall constitute prima facie
evidence of the accuracy of the information so recorded; provided, however, that
the failure to make any such recordation (or any error in such recordation),
shall not affect the obligations of the Company hereunder or under any Committed
Rate Note. Each Committed Rate Note shall (x) be dated the Effective Date, (y)
be stated to mature on the Termination Date and (z) provide for the payment of
interest in accordance with subsection 2.7.
(d) The Company may borrow Committed Rate Loans under the
Commitments during the Commitment Period on any Business Day, provided that the
Company shall give the Agent irrevocable notice (which notice must be received
by the Agent prior to 11:30 A.M., New York City time, (a) three Business Days
prior to the requested Borrowing Date, if all or any part of the requested
Committed Rate Loans are to be initially Eurodollar Loans, (b) two Business Days
prior to the requested Borrowing Date, if all or any part of the requested
Committed Rate Loans are to be initially C/D Rate Loans, or (c) on the requested
Borrowing Date, if all of the requested Committed Rate Loans are to be initially
ABR Loans), specifying (i) the amount to be borrowed, (ii) the requested
Borrowing Date, (iii) whether the borrowing is to be of Eurodollar Loans, ABR
Loans, C/D Rate Loans or a combination thereof and (iv) if the borrowing is to
be entirely or partly of Eurodollar Loans or C/D Rate Loans, the respective
amounts of each such Type of Loan and the respective lengths of the initial
Interest Periods therefor. Each borrowing of Committed Rate Loans under the
Commitments shall be in an amount equal to (x) in the case of ABR Loans,
$2,500,000 or a whole multiple of $1,000,000 in excess thereof (or, if the then
Available Commitments are less than $2,500,000, such lesser amount) and (y) in
the case of Eurodollar Loans or C/D Rate Loans, $10,000,000 or a whole multiple
of $1,000,000 in excess thereof. Upon receipt of any such notice from the
Company, the Agent shall promptly (to the extent reasonably practicable on the
same day) notify each Lender thereof. Each Lender will make the amount of its
pro rata share of each borrowing under this subsection 2.1 available to the
Agent for the account of the Company at the office of the Agent specified in
subsection 10.2 prior to 11:00 A.M. (or, in the case of ABR Loans, 1:00 P.M.),
New York City time, on the
25
Borrowing Date requested by the Company in funds immediately available to the
Agent. Such borrowing will then be made available to the Company by the Agent
crediting the account of the Company on the books of such office with the
aggregate of the amounts made available to the Agent by the Lenders and in like
funds as received by the Agent.
(e) The Company shall give a notice pursuant to subsection
2.1(d) in respect of the Committed Rate Loans to be made on the Effective Date,
which notice shall specify the aggregate amount thereof which the Company wishes
to have outstanding on such date. Such amount shall not be less than the
aggregate principal amount of Committed Rate Loans outstanding under the
Existing Credit Agreement immediately prior to the Effective Date. The proceeds
of all such Loans made on the Effective Date will be applied to the payment of
all loans under the Existing Credit Agreement outstanding immediately prior to
the Effective Date.
2.2. The Bid Loans. (a) The Company may borrow Bid Loans from
time to time on any Business Day during the period from the Effective Date until
the date occurring 7 days prior to the Termination Date in the manner set forth
in this subsection 2.2 and in amounts up to the available amount of the
aggregate Commitments, provided that no Bid Loan shall be made hereunder if,
after giving effect thereto, subsection 2.3 would be contravened.
(b) (i) The Company shall request Bid Loans by delivering a
Bid Loan Request to the Agent, not later than 12:00 Noon (New York City time)
four Business Days prior to the proposed Borrowing Date (in the case of an Index
Rate Bid Loan Request), and not later than 11:30 A.M. (New York City time) one
Business Day prior to the proposed Borrowing Date (in the case of an Absolute
Rate Bid Loan Request). Each Bid Loan Request may solicit bids for Bid Loans in
an aggregate principal amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and for not more than three alternative maturity
dates for such Bid Loans. The maturity date for each Bid Loan made pursuant to
an Absolute Rate Bid Loan Request shall be not less than 7 days nor more than
183 days after the Borrowing Date therefor and the maturity date for each Bid
Loan made pursuant to an Index Rate Bid Loan Request shall be 1, 2, 3, or 6
months after the Borrowing Date therefor (and in any event, in each such case,
not after the Termination Date). The Agent shall promptly (to the extent
reasonably practicable on the same day) notify each Lender by telex or facsimile
transmission of the contents of each Bid Loan Request received by it.
(ii) In the case of an Index Rate Bid Loan Request, upon receipt of
notice from the Agent of the contents of such Bid Loan Request, any Lender that
elects, in its sole discretion, to do so, shall irrevocably offer to make one or
more Bid Loans at the Applicable Index Rate plus or minus a margin determined by
such Lender in its sole discretion for each such Bid Loan. Any
26
such irrevocable offer shall be made by delivering a Bid Loan Offer to the
Agent, before 10:30 A.M. (New York City time) three Business Days before the
proposed Borrowing Date, setting forth the maximum amount of Bid Loans for each
maturity date, and the aggregate maximum amount for all maturity dates, which
such Lender would be willing to make (which amounts may, subject to subsection
2.2(a), exceed such Lender's Commitment), and the margin above or below the
Applicable Index Rate at which such Lender is willing to make each such Bid
Loan; the Agent shall advise the Company before 11:15 A.M. (New York City time)
three Business Days before the proposed Borrowing Date, of the contents of each
such Bid Loan Offer received by it. If the Agent in its capacity as a Lender
shall, in its sole discretion, elect to make any such offer, it shall advise the
Company of the contents of its Bid Loan Offer before 10:15 A.M. (New York City
time) three Business Days before the proposed Borrowing Date.
(iii) In the case of an Absolute Rate Bid Loan Request, upon receipt
of notice from the Agent of the contents of such Bid Loan Request, any Lender
that elects, in its sole discretion, to do so shall irrevocably offer to make
one or more Bid Loans at a rate of interest determined by such Lender in its
sole discretion for each such Bid Loan. Any such irrevocable offer shall be made
by delivering a Bid Loan Offer to the Agent, before 9:30 A.M. (New York City
time) on the proposed Borrowing Date, setting forth the maximum amount of Bid
Loans for each maturity date, and the aggregate maximum amount for all maturity
dates, which such Lender would be willing to make (which amount may, subject to
subsection 2.2(a), exceed such Lender's Commitment), and the rate of interest at
which such Lender is willing to make each such Bid Loan; the Agent shall advise
the Company before 10:15 A.M. (New York City time) on the proposed Borrowing
Date of the contents of each such Bid Loan Offer received by it. If the Agent in
its capacity as a Lender shall, in its sole discretion, elect to make any such
offer, it shall advise the Company of the contents of its Bid Loan Offer before
9:15 A.M. (New York City time) on the proposed Borrowing Date.
(iv) The Company shall before 11:30 A.M. (New York City time) three
Business Days before the proposed Borrowing Date (in the case of Bid Loans
requested by an Index Rate Bid Loan Request) and before 11:30 A.M. (New York
City time) on the proposed Borrowing Date (in the case of Bid Loans requested by
an Absolute Rate Bid Loan Request) either, in its absolute discretion:
(A) cancel such Bid Loan Request by giving the Agent telephone
notice to that effect, or
(B) accept one or more of the offers made by any Lender or
Lenders pursuant to clause (ii) or clause (iii) above, as the case may
be, by giving telephone notice to the Agent (immediately confirmed by
delivery to the Agent of a Bid Loan Confirmation) of the amount of Bid
Loans for each relevant maturity date to be made by each Lender (which
27
amount for each such maturity date shall be equal to or less than the
maximum amount for such maturity date specified in the Bid Loan Offer
of such Lender, and for all maturity dates included in such Bid Loan
Offer shall be equal to or less than the aggregate maximum amount
specified in such Bid Loan Offer for all such maturity dates) and
reject any remaining offers made by Lenders pursuant to clause (ii) or
clause (iii) above, as the case may be; provided, however, that (x) the
Company may not accept offers for Bid Loans for any maturity date in an
aggregate principal amount in excess of the maximum principal amount
requested in the related Bid Loan Request, (y) if the Company accepts
any of such offers, it must accept offers strictly based upon pricing
for such relevant maturity date and no other criteria whatsoever and
(z) if two or more Lenders submit offers for any maturity date at
identical pricing and the Company accepts any of such offers but does
not wish to (or by reason of the limitations set forth in subsection
2.2(a) or in clause (x) of this proviso, cannot) borrow the total
amount offered by such Lenders with such identical pricing, the Company
shall accept offers from all of such Lenders in amounts allocated among
them pro rata according to the amounts offered by such Lenders (or as
nearly pro rata as shall be practicable after giving effect to the
requirements of subsection 2.2(b)(i).
(v) If the Company notifies the Agent that a Bid Loan Request is
canceled pursuant to clause (iv)(A) above, the Agent shall give prompt telephone
notice thereof to the Lenders, and the Bid Loans requested thereby shall not be
made.
(vi) If the Company accepts pursuant to clause (iv)(B) above one or
more of the offers made by any Lender or Lenders, the Agent shall promptly
notify each Lender which has made such an offer, of the aggregate amount of such
Bid Loans to be made on such Borrowing Date for each maturity date and of the
acceptance or rejection of any offers to make such Bid Loans made by such
Lender. Each Lender which is to make a Bid Loan shall, before 12:00 Noon (New
York City time) on the Borrowing Date specified in the Bid Loan Request
applicable thereto, make available to the Agent at its office set forth in
subsection 10.2 the amount of Bid Loans to be made by such Lender, in
immediately available funds. The Agent will make such funds available to the
Company as soon as practicable on such date at the Agent's aforesaid address. As
soon as practicable after each Borrowing Date, the Agent shall notify each
Lender of the aggregate amount of Bid Loans advanced on such Borrowing Date and
the respective maturity dates thereof.
(c) Within the limits and on the conditions set forth in this
subsection 2.2, the Company may from time to time borrow under this subsection
2.2, repay pursuant to paragraph (d) below, and reborrow under this subsection
2.2.
(d) The Company shall repay to the Agent for the account of
each Lender which has made a Bid Loan (or the assignee
28
in respect thereof, as the case may be) on the maturity date of each Bid Loan
(such maturity date being that specified by the Company for repayment of such
Bid Loan in the related Bid Loan Request) the then unpaid principal amount of
such Bid Loan. The Company shall not have the right to prepay any principal
amount of any Bid Loan.
(e) The Company shall pay interest on the unpaid principal
amount of each Bid Loan from the Borrowing Date to the stated maturity date
thereof, at the rate of interest determined pursuant to paragraph (b) above
(calculated on the basis of a 360 day year for actual days elapsed), payable on
the maturity date for such Bid Loan, provided that if the maturity date for such
Bid Loan is more than 90 days (in the case of Absolute Rate Bid Loans) or three
months (in the case of Index Rate Bid Loans) after the Borrowing Date for such
Bid Loan, as the case may be, interest for such Bid Loan shall be payable on the
date which is 90 days or 3 months, as the case may be, after the Borrowing Date
for such Bid Loan and on the maturity date for such Bid Loan. If all or a
portion of the principal amount of or interest on any Bid Loan shall not be paid
when due (whether at the stated maturity, by acceleration or otherwise), (i)
such overdue principal amount shall, without limiting any rights of any Lender
under this Agreement, bear interest from the date on which such payment was due
at a rate per annum which is 2% above the rate which would otherwise be
applicable pursuant to the Bid Loan Note evidencing such Bid Loan until the
scheduled maturity date with respect thereto as set forth in the Bid Loan Note
evidencing such Bid Loan, and for each day thereafter at a rate per annum which
is 2% above the Alternate Base Rate until paid in full (as well after as before
judgment) and (ii) such overdue interest shall bear interest from the date the
same was due at a rate per annum which is 2% above the Alternate Base Rate. All
payments of interest in respect of Bid Loans shall be made to the Agent for the
account of the relevant Lenders.
(f) The Bid Loans made by each Lender shall be evidenced
initially by a promissory note of the Company, substantially in the form of
Exhibit B with appropriate insertions (a "Bid Loan Note"), payable to the order
of such Lender and representing the obligation of the Company to pay the unpaid
principal amount of all Bid Loans made by such Lender, with interest on the
unpaid principal amount from time to time outstanding of each Bid Loan evidenced
thereby as prescribed in subsection 2.2(e). Each Lender is hereby authorized to
record the date and amount of each Bid Loan made by such Lender, the maturity
date thereof, the date and amount of each payment of principal thereof and the
interest rate with respect thereto on the schedule annexed to and constituting
part of its Bid Loan Note, and any such recordation shall constitute prima facie
evidence of the accuracy of the information so recorded; provided, however, that
the failure to make any such recordation (or any error in such recordation)
shall not affect the obligations of the Company hereunder or under any Bid Loan
Note. Each Bid Loan Note shall be dated the Effective Date, and each
29
Bid Loan evidenced thereby shall bear interest for the period from and including
the Borrowing Date thereof on the unpaid principal amount thereof from time to
time outstanding at the applicable rate per annum determined as provided in, and
such interest shall be payable as specified in, subsection 2.2(e).
2.3. Limitation on Aggregate Extensions of Credit. At no time
may (i) the sum of (A) the aggregate principal amount of Committed Rate Loans
outstanding at such time, plus (B) the aggregate principal amount of Bid Loans
outstanding at such time, plus (C) the aggregate undrawn face amount of all
Letters of Credit outstanding at such time, plus (D) any unpaid reimbursement
obligations of the Company with respect to Letters of Credit whether or not
outstanding at such time, plus (E) the aggregate principal amount of all Swing
Line Loans outstanding at such time (collectively, the amount described in
clauses (i)(A)- (E) of this subsection 2.3 shall be referred to as the
"Aggregate Outstandings"), exceed (ii) the aggregate Commitments in effect at
such time.
2.4. Repayment of Loans. (a) The Company shall pay to the
Agent for the account of the Lenders the unpaid principal amount of each
Committed Rate Loan and each Swing Line Loan, plus all interest accrued thereon,
on the Termination Date.
(b) The Company will repay each Bid Loan as provided in
subsection 2.2.
2.5. Termination or Reduction of Commitments. (a) The Company
shall have the right at any time to terminate or reduce the Commitments upon not
less than four Business Days' prior notice to the Agent (which shall notify the
Lenders thereof as soon as practicable) of each such termination or reduction,
which notice shall specify the effective date thereof and the amount of any such
reduction (which shall not be less than $5,000,000 or a whole multiple of
$1,000,000 above $5,000,000) and shall be irrevocable and effective only upon
receipt by the Agent; provided that in no event shall any such termination or
reduction be permitted that would cause the Aggregate Outstandings at such time
(after giving effect to any concurrent prepayments) to exceed the Commitments as
so reduced.
(b) The Commitments, once terminated or reduced, may not be
reinstated.
2.6. Optional and Mandatory Prepayments. (a) The Company may,
subject to subsection 2.16, at any time and from time to time, prepay the
Committed Rate Loans and/or the Swing Line Loans then outstanding, in whole or
in part, without premium or penalty, and upon at least three Business Days'
irrevocable notice to the Agent, in the case of Eurodollar Loans, upon at least
two Business Days' irrevocable notice to the Agent, in the case of C/D Rate
Loans and upon irrevocable notice to the Agent not later than 12:00 Noon, New
York City time, on the date of such prepayment, in the case of ABR Loans, each
such notice to
30
specify (i) the date and amount of such prepayment, (ii) whether the prepayment
is of Eurodollar Loans, ABR Loans, C/D Rate Loans, or a combination thereof,
and, if of a combination thereof, the principal amount of prepayment allocable
to each and (iii) the original principal amount of the Swing Line Loan, Swing
Line Loans, Committed Rate Loan or Committed Rate Loans which are to be prepaid
and the date or dates such Swing Line Loan, Swing Line Loans, Committed Rate
Loan or Committed Rate Loans were made, provided that the Company may not both
prepay ABR Loans under this subsection 2.6(a) and borrow ABR Loans under
subsection 2.1 or 2.23 on the same day. Upon receipt of any such notice, the
Agent shall promptly notify each Lender thereof. If any such notice is given,
the Company will make the prepayment specified therein, together with any
amounts payable pursuant to subsection 2.16, and such prepayment, together with
such amounts payable pursuant to subsection 2.16, shall be due and payable on
the date specified therein, together (in the case of Eurodollar Loans or C/D
Rate Loans) with accrued interest to such date on the amount prepaid. Each
partial prepayment of the Loans pursuant to this paragraph (a) shall be in an
amount equal to $2,500,000 or a greater whole multiple of $1,000,000; provided,
that unless the Eurodollar Loans or C/D Rate Loans comprising any Tranche are
prepaid in full, no prepayment shall be made in respect of Eurodollar Loans or
C/D Rate Loans if, after giving effect to such prepayment, the aggregate
principal amount of the Loans comprising any Tranche shall be less than
$5,000,000.
(b) If at any time the Aggregate Outstandings exceed the
aggregate Commitments in effect at such time, whether as a result of a reduction
or termination of the Commitments pursuant to subsection 2.5, or otherwise, the
Company shall immediately prepay the Committed Rate Loans or Swing Line Loans,
or, if no Committed Rate Loans or Swing Line Loans are outstanding, cash
collateralize the Letters of Credit and the Bid Loans (in each case pursuant to
a cash collateral agreement substantially in the form of Exhibit I (the "Cash
Collateral Agreement")) in an amount equal to such excess, together with
interest thereon accrued to the date of such prepayment and any amounts payable
pursuant to subsection 2.16 in connection therewith.
(c) If the making of any mandatory prepayment pursuant to
subsection 2.6(b) would result in an obligation of the Company to pay any
material amounts pursuant to subsection 2.16, the Company shall be entitled, in
lieu of making the required prepayment at such time, to place an amount equal to
such prepayment in a cash collateral account established pursuant to the Cash
Collateral Agreement. Moneys on deposit in such cash collateral account shall be
invested in short-term obligations of the United States government and shall be
applied to the prepayment of the Loans in accordance the Cash Collateral
Agreement on the earliest date on which the costs to the Lenders referred to in
subsection 2.16 would be avoided. During the period prior to such prepayment of
such Loans, interest shall continue to accrue on such Loans. Prior to the
depositing of any moneys in the cash collateral account, the Agent and the
Lenders
31
shall be provided with such legal opinions and other documentation with respect
to the legality, validity, enforceability, perfection and priority of the cash
collateral account as they may reasonably deem necessary or appropriate.
2.7. Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the LIBO Rate plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the Alternate Base Rate or, if such ABR Loan is a Swing Line Loan, at
the Swing Line Rate.
(c) Each C/D Rate Loan shall bear interest for each day during
each Interest Period with respect thereto at a rate per annum equal to the C/D
Rate determined for such day plus the Applicable Margin.
(d) If all or a portion of (i) the principal amount of any
Committed Rate Loan or any Swing Line Loan or (ii) any interest, fees or other
amounts payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum equal to (x) in the case of overdue principal, the
Post-Default Rate or (y) in the case of overdue interest, fees or other amounts
payable hereunder, 2% above the rate described in paragraph (b) of this
subsection, in each case from the date of such non-payment until such amount is
paid in full (both before and after judgment).
(e) Interest on each Loan shall be payable in arrears on each
Interest Payment Date applicable thereto, at maturity and upon payment
(including prepayment) in full thereof, provided that interest payable pursuant
to paragraph (d) of this subsection shall be payable on demand.
2.8. Minimum Amounts of Tranches. All borrowings, conversions
and continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the Loans
comprising (i) each Eurodollar Tranche shall be equal to $10,000,000 or a whole
multiple of $1,000,000 in excess thereof and (ii) each C/D Rate Tranche shall be
equal to $10,000,000 or a whole multiple of $1,000,000 in excess thereof.
2.9. Fees. The Company agrees to pay (a) to the Agent for the
account of each Lender a facility fee for the period from and including the
Effective Date to, but excluding, the Termination Date, computed at the Facility
Fee Rate in effect from time to time on the average daily amount of the
Commitment (used and unused) of such Lender during the period for which payment
is made, payable in arrears on each Payment Date and on the Termination Date or
earlier date of termination of the
32
Commitments and (b) to the Agent, solely for the Agent's own account (i) the
fees payable pursuant to the Fee Letter, dated January 23, 1997, between the
Company and the Agent in the amounts and on the dates specified therein and (ii)
such other fees in the amounts and payable on the dates from time to time agreed
to in writing by the Company and the Agent.
2.10. Requirements of Law. (a) In the event that any change in
any Requirement of Law or in the interpretation or application thereof, or
compliance by any Lender or its Domestic Lending Office or Eurodollar Lending
Office with any request or directive (whether or not having the force of law)
from any central bank or other Governmental Authority made subsequent to the
date hereof:
(i) shall subject any Lender or its Domestic Lending
Office or Eurodollar Lending Office to any tax of any kind whatsoever
with respect to this Agreement, any Note, any Eurodollar Loan or C/D
Rate Loan made by it, or any Letters of Credit or any commitments to
extend credit under this Agreement, or changes the basis of taxation of
payments to such Lender or its Domestic Lending Office or Eurodollar
Lending Office in respect thereof (except for taxes covered by
subsection 2.11 and changes in the rate of tax on the overall net
income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by or for the account of, any office of such
Lender which is not otherwise included in the determination of the LIBO
Rate or the C/D Rate hereunder; or
(iii) shall impose on such Lender or its Domestic Lending
Office or Eurodollar Lending Office any other condition;
and the result of any of the foregoing is to increase the cost to such Lender or
its Domestic Lending Office or Eurodollar Lending Office, by an amount which
such Lender deems to be material, of making, converting into, continuing,
maintaining or participating in Eurodollar Loans, C/D Rate Loans, Letters of
Credit or the commitments to extend credit hereunder or to reduce any amount
receivable by it in respect of its Eurodollar Loans, its C/D Rate Loans, the
Letters of Credit or its commitment to extend credit hereunder, then, in any
such case, the Company shall promptly pay such Lender, upon its demand, any
additional amounts necessary to compensate such Lender for such additional cost
or reduced amount receivable as determined by such Lender (using a method of
calculation substantially similar to that used with similarly situated
borrowers). If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection 2.10, it shall promptly notify the Company in
writing, through the Agent, of the
33
event by reason of which it has become so entitled. A certificate as to any
additional amounts payable pursuant to this subsection submitted by an officer
of a Lender (which certificate shall set forth the basis of calculation of such
amount in reasonable detail), through the Agent, to the Company shall be
conclusive, in the absence of manifest error. If any Lender requests payment of
increased costs from the Company, such Lender shall, upon request of the
Company, use reasonable efforts to change its Domestic Lending Office or
Eurodollar Lending Office, as the case may be, for the purpose of minimizing
such increased costs; provided that nothing herein shall obligate such Lender to
change its Domestic Lending Office or Eurodollar Lending Office, as the case may
be, or to take any other steps, which such Lender considers in its sole
discretion to be adverse to its interests. If any Lender shall request the
payment of any additional amounts pursuant to this subsection 2.10, the Company
shall have the right to require that all Loans made thereafter by such Lender
shall be made as ABR Loans. This covenant shall survive the termination of this
Agreement and the payment of the Notes and all other amounts payable hereunder.
(b) In the event that any Lender shall have determined that
any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof does or shall have the effect of
reducing the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letters
of Credit to a level below that which such Lender could have achieved but for
such change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by any amount deemed by
such Lender to be material, then from time to time, within 15 days after demand
by such Lender (with a copy to the Agent), the Company shall pay to such Lender
such additional amount or amounts as will compensate such Lender for such
reduction. A certificate as to any additional amounts payable pursuant to this
subsection submitted by an officer of a Lender (which certificate shall set
forth the basis of calculation of such amount in reasonable detail), through the
Agent, to the Company shall be conclusive, in the absence of manifest error. If
the Company becomes obligated to pay additional amounts described in this
subsection 2.10(b) as a result of any condition described in this subsection
2.10(b) and payment of such amount is demanded by any Lender, then the Company
may, on ten Business Days' prior written notice to the Agent and such Lender,
cause such Lender to (and such Lender shall) assign pursuant to subsection 10.6
(provided that such Lender shall not be required to pay any fee pursuant to
subsection 10.6(e)) all of its rights and obligations under this Agreement to a
bank or financial institution selected by the Company and reasonably acceptable
to the Agent, provided that in no event shall the assigning Lender be required
to pay or
34
surrender to such purchasing Lender or other bank or financial institution any
of the fees received by such assigning Lender pursuant to this Agreement. This
covenant shall survive the termination of this Agreement and the payment of the
Notes and all other amounts payable hereunder.
2.11. Taxes. (a) All payments made by the Company under this
Agreement and the Notes shall be made free and clear of, and without reduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding, in the case of the Agent and each Lender, net
income and franchise taxes based upon net income imposed on the Agent or such
Lender, as the case may be, by the jurisdiction under the laws of which it is
organized or in which is located any office from or at which such Lender is
making or maintaining its Loans, or any political subdivision or taxing
authority thereof or therein (all such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions and withholdings being hereinafter called
"Taxes"). If any Taxes are required to be withheld from any amounts payable to
the Agent or any Lender hereunder or under the Notes, the amounts so payable to
the Agent or such Lender shall be increased to the extent necessary to yield to
the Agent or such Lender (after payment of all Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement and the Notes. Whenever any Taxes are payable by the Company, as
promptly as possible thereafter the Company shall send to the Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Company showing payment thereof.
If the Company fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Agent the required receipts or other required
documentary evidence, the Company shall indemnify the Agent and the Lenders for
any incremental taxes, interest or penalties that may become payable by the
Agent or any Lender as a result of any such failure. The agreements in this
subsection shall survive the termination of this Agreement and the payment of
the Notes and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof agrees that prior to the first
Interest Payment Date it will deliver to the Company and the Agent (i) two duly
completed copies of United States Internal Revenue Service Form 1001 or 4224 or
successor applicable form, as the case may be, and (ii) an Internal Revenue
Service Form W-8 or W-9 or successor applicable form. Each such Lender also
agrees to deliver to the Company and the Agent two further copies of the said
Form 1001 or 4224 and Form W-8 or W-9, or successor applicable forms or other
manner of certification, as the case may be, on or before the date that any such
form expires or becomes obsolete or after the occurrence of any event requiring
a change in the most recent form previously delivered by it to the Company and
the Agent, and such extensions or
35
renewals thereof as may reasonably be requested by the Company or the Agent.
Such Lender shall certify (i) in the case of a Form 1001 or 4224, that it is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, unless in any such case
an event (including, without limitation, any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such form with
respect to it and such Lender advises the Company that it is not capable of so
receiving payments without any deduction or withholding, and (ii) in the case of
a Form W-8 or W-9, that it is entitled to an exemption from United States backup
withholding tax.
2.12. Computation of Interest and Fees. (a) Interest on ABR
Loans whenever calculated on the basis of the Prime Rate shall be calculated on
the basis of a 365- (or 366-, as the case may be) day year for actual days
elapsed. Interest on Eurodollar Loans, C/D Rate Loans, and ABR Loans whenever
calculated on the basis of the Base CD Rate or the Federal Funds Effective Rate,
and facility fees, letter of credit fees and all other fees shall be calculated
on the basis of a 360-day year for the actual days elapsed. The Agent will, as
soon as practicable, notify the Company and the Lenders of each determination of
a LIBO Rate and a C/D Rate. Any change in the interest rate on a Loan resulting
from a change in the Alternate Base Rate, the C/D Assessment Rate or the C/D
Reserve Percentage shall become effective as of the opening of business on the
day on which such change becomes effective. The Agent shall as soon as
practicable notify the Company and the Lenders of the effective date and the
amount of each such change in interest rate.
(b) Each determination of an interest rate by the Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Company and the Lenders in the absence of manifest error.
2.13. Pro Rata Treatment and Payments. (a) Each borrowing by
the Company of Committed Rate Loans from the Lenders hereunder, each payment by
the Company on account of any facility fee or letter of credit fee hereunder and
any reduction of the Commitments of the Lenders shall be made pro rata according
to the respective Commitment Percentages of the Lenders.
(b) All payments (including prepayments) to be made by the
Company hereunder and under the Notes, whether on account of principal,
interest, fees or otherwise, shall be made without set off or counterclaim and
shall be made prior to 12:00 Noon, New York City time, on the due date thereof
to the Agent, for the account of the Lenders, at the Agent's office specified in
subsection 10.2, in Dollars and in immediately available funds. The Agent shall
distribute such payments to the Lenders promptly (to the extent reasonably
practicable on the same day) upon receipt in like funds as received. If any
payment hereunder
36
(other than payments on the Eurodollar Loans or a Bid Loan made pursuant to an
Index Rate Bid Loan Request) becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day, and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension. If any payment on a
Eurodollar Loan or a Bid Loan made pursuant to an Index Rate Bid Loan Request
becomes due and payable on a day other than a Business Day, the maturity thereof
shall be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day, and
during any such extension interest shall be payable thereon at the then
applicable rate.
(c) Unless the Agent shall have been notified in writing by
any Lender prior to a Borrowing Date for Committed Rate Loans that such Lender
will not make the amount that would constitute its Commitment Percentage of the
borrowing of Committed Rate Loans on such date available to the Agent, the Agent
shall assume that such Lender has made such amount available to the Agent on
such Borrowing Date, and the Agent may, in reliance upon such assumption, make
available to the Company a corresponding amount. If such amount is made
available to the Agent on a date after such Borrowing Date, such Lender shall
pay to the Agent on demand an amount equal to the product of (i) the daily
average Federal funds rate during such period as quoted by the Agent, times (ii)
the amount of such Lender's Commitment Percentage of such borrowing, times (iii)
a fraction the numerator of which is the number of days that elapse from and
including such Borrowing Date to the date on which such Lender's Commitment
Percentage of such borrowing shall have become immediately available to the
Agent and the denominator of which is 360. A certificate of the Agent submitted
to any Lender with respect to any amounts owing under this subsection 2.13 shall
be conclusive in the absence of manifest error. If such Lender's Commitment
Percentage of such borrowing is not in fact made available to the Agent by such
Lender within three Business Days of such Borrowing Date, the Agent shall be
entitled to recover such amount with interest thereon at the rate per annum
applicable to ABR Loans hereunder, on demand, from the Company.
2.14. Inability to Determine Interest Rate. In the event that
prior to the first day of any Interest Period:
(a) the Agent shall have determined (which determination shall
be conclusive and binding upon the Company) that by reason of
circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the LIBO Rate or the C/D Rate for
such Interest Period, or
(b) the Agent shall have received notice from the Required
Lenders that the LIBO Rate or the C/D Rate determined or to be
determined for such Interest Period will
37
not adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining their
affected Loans during such Interest Period,
the Agent shall give telex, telecopy or telephonic notice thereof to the Company
and the Lenders as soon as practicable thereafter. If such notice is given (w)
any Eurodollar Loans or C/D Rate Loans, as the case may be, requested to be made
on the first day of such Interest Period shall be made as ABR Loans, (x) any
Committed Rate Loans that were to have been converted on the first day of such
Interest Period to Eurodollar Loans or C/D Rate Loans, as the case may be, shall
be converted to or continued as ABR Loans, (y) any outstanding Eurodollar Loans
or C/D Rate Loans, as the case may be, shall be converted, on the first day of
such Interest Period, to ABR Loans and (z) any Bid Loans requested pursuant to
an Index Rate Bid Loan Request to be made on the first day of such Interest
Period shall not be made as Bid Loans. Until such notice has been withdrawn by
the Agent, no further Eurodollar Loans or C/D Rate Loans, as the case may be,
shall be made or continued as such, nor shall the Company have the right to
convert Committed Rate Loans to Eurodollar Loans or C/D Rate Loans, as the case
may be.
2.15. Illegality. Notwithstanding any other provision herein,
if any change in any Requirement of Law or in the interpretation or application
thereof shall make it unlawful for any Lender or its Eurodollar Lending Office
to make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert Domestic Dollar Loans to Eurodollar Loans
shall forthwith be canceled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to ABR Loans on the
respective last days of the then-current Interest Periods with respect to such
Loans or within such earlier period as may be required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of the
then-current Interest Period with respect thereto, the Company shall pay to such
Lender such amounts, if any, as may be required pursuant to subsection 2.16.
2.16. Indemnity. The Company agrees to indemnify each Lender
for, and to hold such Lender harmless from, any loss or expense which such
Lender may sustain or incur as a consequence of (a) default by the Company in
payment when due of the principal amount of or interest on any Eurodollar Loan
or C/D Rate Loan, (b) default by the Company in making a borrowing of,
conversion into or continuance of Eurodollar Loans or C/D Rate Loans after the
Company has given a notice requesting the same in accordance with the provisions
of this Agreement, (c) default by the Company in making any prepayment after the
Company has given a notice thereof in accordance with the provisions of this
Agreement or (d) the making of a prepayment or conversion of Eurodollar Loans or
C/D Rate Loans on a day which is not the last day of an Interest Period with
respect thereto, including,
38
without limitation, in each case, any such loss or expense arising from the
reemployment of funds obtained by it or from fees payable to terminate the
deposits from which such funds were obtained. A certificate as to any additional
amounts payable pursuant to the foregoing sentence submitted by an officer of a
Lender, through the Agent, to the Company shall be conclusive, absent manifest
error. This covenant shall survive termination of this Agreement and payment of
the Notes and all other amounts payable hereunder.
2.17. Conversion and Continuation Options. (a) The Company may
elect from time to time to convert Eurodollar Loans or C/D Rate Loans to ABR
Loans, and/or to convert Eurodollar Loans or ABR Loans to C/D Rate Loans, by
giving the Agent at least two Business Days' prior irrevocable notice of such
election, provided that any such conversion of Eurodollar Loans or C/D Rate
Loans may only be made on the last day of an Interest Period with respect
thereto. The Company may elect from time to time to convert ABR Loans or C/D
Rate Loans to Eurodollar Loans by giving the Agent at least three Business Days'
prior irrevocable notice of such election, provided that any such conversion of
C/D Rate Loans may, subject to the third succeeding sentence, only be made on
the last day of an Interest Period with respect thereto. Any such notice of
conversion to Eurodollar Loans or C/D Rate Loans shall specify the length of the
initial Interest Period or Interest Periods therefor. Upon receipt of any such
notice the Agent shall promptly notify each Lender thereof. If the last day of
the then current Interest Period with respect to C/D Rate Loans that are to be
converted to Eurodollar Loans is not a Business Day, such conversion shall be
made on the next succeeding Business Day, and during the period from such last
day to such succeeding Business Day such Loans shall bear interest as if they
were ABR Loans. All or any part of outstanding Eurodollar Loans, ABR Loans and
C/D Rate Loans may be converted as provided herein, provided that (i) no Loan
may be converted into a Eurodollar Loan or a C/D Rate Loan when any Event of
Default has occurred and is continuing and the Agent or the Required Lenders
have determined that such a conversion is not appropriate, (ii) any such
conversion may only be made if, after giving effect thereto, subsection 2.8
shall not have been contravened and (iii) no Loan may be converted into a
Eurodollar Loan or a C/D Rate Loan after the date that is one month or 30 days,
respectively, prior to the Termination Date.
(b) Any Eurodollar Loans or C/D Rate Loans may be continued as
such upon the expiration of the then-current Interest Period with respect
thereto by the Company giving notice to the Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan or C/D Rate Loan may be continued as such (i)
when any Event of Default has occurred and is continuing and the Agent or the
Required Lenders have determined that such a continuation is not appropriate,
(ii) if, after giving effect thereto, subsection 2.8 would be contravened
39
or (iii) after the date that is one month or 30 days, respectively, prior to the
Termination Date and provided, further, that if the Company shall fail to give
any required notice as described above in this paragraph such Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period.
2.18. Eurocurrency Reserve Costs. The Company agrees to pay to
each Lender which requests compensation under this subsection 2.18 (by notice to
the Company and the Agent), on the last day of each Interest Period with respect
to any Eurodollar Loan made by such Lender, so long as such Lender shall be
required to maintain reserves against "Eurocurrency liabilities" under
Regulation D of the Board (or, so long as such Lender may be required by the
Board or by any other Governmental Authority to maintain reserves against any
other category of liabilities which includes deposits by reference to which the
interest rate on Eurodollar Loans is determined as provided in this Agreement or
against any category of extensions of credit or other assets of such Lender
which includes any Eurodollar Loans), an additional amount (determined by such
Lender and notified to the Company) representing such Lender's calculation or,
if an accurate calculation is impracticable, reasonable estimate (using such
reasonable means of allocation as such Lender shall determine) of the actual
costs, if any, incurred by such Lender during such Interest Period as a result
of the applicability of the foregoing reserves to such Eurodollar Loans, which
amount in any event shall not exceed the product of the following for each day
of such Interest Period:
(i) the principal amount of the Eurodollar Loans made by
such Lender to which such Interest Period relates outstanding on such
day; and
(ii) the difference between (x) a fraction the numerator of
which is the LIBO Rate (expressed as a decimal) applicable to such
Eurodollar Loan and the denominator of which is one minus the maximum
rate (expressed as a decimal) at which such reserve requirements are
imposed by the Board or other Governmental Authority on such date minus
(y) such numerator; and
(iii) a fraction the numerator of which is one and the
denominator of which is 360.
2.19. Use of Proceeds. The proceeds of the Loans shall be used
by the Company to refinance outstanding Indebtedness under the Existing Credit
Agreement, for the Company's working capital requirements and for any of the
Company's corporate purposes not prohibited under this Agreement.
2.20. Swing Line Commitment. Subject to the terms and
conditions hereof, Chase, as the swing line lender (in such capacity, the "Swing
Line Lender") agrees to make extensions of credit available to the Company from
time to time during the
40
Commitment Period by making swing line loans (the "Swing Line Loans") to the
Company in an aggregate principal amount at any one time outstanding not to
exceed the Swing Line Commitment; provided that (a) the aggregate principal
amount of Swing Line Loans outstanding at any time shall not exceed the Swing
Line Commitment then in effect (notwithstanding that the Swing Line Loans
outstanding at any time, when aggregated with the Swing Line Lender's other
outstanding Loans hereunder, may exceed the Swing Line Commitment then in
effect) and (b) the Company shall not request and the Swing Line Lender shall
not make, any Swing Line Loan if, after giving effect to the making of such
Swing Line Loan, subsection 2.3 would be contravened. Swing Line Loans shall
bear interest at the Swing Line Rate. From and after the Effective Date and
during the Commitment Period, the Company may use the Swing Line Commitment by
borrowing, repaying and reborrowing, all in accordance with the terms and
conditions hereof.
2.21. Swing Line Note. The Swing Line Loans made by the Swing
Line Lender shall be evidenced by a promissory note of the Company substantially
in the form of Exhibit C, with appropriate insertions (the "Swing Line Note"),
payable to the order of the Swing Line Lender and representing the obligation of
the Company to pay the lesser of the Swing Line Commitment and the Swing Line
Loans. The Swing Line Lender is hereby authorized to record the date and the
amount of each Swing Line Loan made by the Swing Line Lender and the date and
amount of each payment or prepayment of principal thereof, on the schedule
annexed to and constituting a part of the Swing Line Note, and any such
recordation shall constitute prima facie evidence of the accuracy of the
information so recorded; provided, however, that the failure to make any such
recordation shall not affect the obligations of the Company hereunder or under
the Swing Line Note. The Swing Line Note shall (a) be dated the Effective Date,
(b) be stated to mature on the Termination Date and (c) provide for the payment
of interest in accordance with subsection 2.7 as such subsection is applicable
to ABR Loans.
2.22. Procedure for Borrowing for Swing Line Loans. Whenever
the Company desires that the Swing Line Lender make Swing Line Loans under
subsection 2.20 it shall give the Swing Line Lender irrevocable telephonic
notice confirmed promptly in writing (which telephonic notice must be received
by the Swing Line Lender not later than 11:30 A.M., New York City time, on the
proposed Borrowing Date), specifying (i) the amount to be borrowed and (ii) the
requested Borrowing Date (which shall be a Business Day during the Commitment
Period). Each borrowing under the Swing Line Commitment shall be in an amount
equal to $100,000 or a whole multiple thereof. Not later than 2:00 P.M., New
York City time, on the Borrowing Date specified in a notice in respect of Swing
Line Loans, the Swing Line Lender shall make available to the Agent at its
office specified in subsection 10.2 an amount in immediately available funds
equal to the amount of the Swing Line Loan to be made by the Swing Line Lender.
The Agent shall make the proceeds of such Swing Line Loan available to the
41
Company on such Borrowing Date by depositing such proceeds in the account of the
Company with the Agent on such Borrowing Date for transmittal by the Agent upon
the Company's request.
2.23. Refunded Swing Line Loans; Swing Line Loan
Participations. (a) The Swing Line Lender, at any time and from time to time in
its sole and absolute discretion may, on behalf of the Company (which hereby
irrevocably directs the Swing Line Lender to act on its behalf), on one Business
Day's notice given by the Swing Line Lender no later than 10:00 A.M., New York
City time, request each Lender to make, and each Lender hereby agrees to make, a
Committed Rate Loan that is an ABR Loan, in an amount equal to such Lender's
Commitment Percentage (calculated with respect to the aggregate Commitments then
outstanding) of the aggregate amount of the Swing Line Loans (the "Refunded
Swing Line Loans") outstanding on the date of such notice, to repay the Swing
Line Lender. Unless any of the events described in Section 8(h) shall have
occurred (in which case the procedures of subsection 2.23(c) shall apply), each
Lender shall make the amount of such Committed Rate Loan available to the Agent
at its office set forth in subsection 10.2 in immediately available funds, not
later than 10:00 A.M., New York City time, one Business Day after the date of
such notice. The proceeds of such Committed Rate Loans shall be immediately paid
by the Agent to the Swing Line Lender which shall apply such proceeds to repay
the Refunded Swing Line Loans. Effective on the day such Committed Rate Loans
are made, the portion of the Swing Line Loans so paid shall no longer be
outstanding as Swing Line Loans, shall no longer be due under the Swing Line
Note and shall be due under the respective Committed Rate Notes issued to the
Lenders in accordance with their respective Commitment Percentages of the
aggregate Commitments. The Company authorizes the Swing Line Lender to charge
the Company's accounts with the Agent (up to the amount available in each such
account) in order to immediately pay the amount of such Refunded Swing Line
Loans to the extent amounts received from the Lenders are not sufficient to
repay in full such Refunded Swing Line Loans.
(b) Notwithstanding anything herein to the contrary, the Swing
Line Lender shall not be obligated to make any Swing Line Loans if a Default or
an Event of Default shall have occurred and be continuing. The Swing Line Lender
shall notify the Company of such election not to make any Swing Line Loans
unless the Event of Default is of the type specified in Section 8(h).
(c) If prior to the time a Committed Rate Loan would have
otherwise been made pursuant to subsection 2.23(a), one of the events described
in Section 8(h) shall have occurred and be continuing, each Lender shall, on the
date such Committed Rate Loan was to have been made pursuant to the notice
referred to in subsection 2.23(a) (the "Refunding Date"), purchase an undivided
participating interest in an amount equal to (i) its Commitment Percentage times
(ii) the aggregate principal amount of Swing Line Loans then outstanding which
were to have been repaid with
42
such Refunded Swing Line Loans (the "Swing Line Participation Amount"). On the
Refunding Date, each Lender shall transfer to the Swing Line Lender, in
immediately available funds, such Lender's Swing Line Participation Amount, and
upon receipt thereof the Swing Line Lender shall deliver to such Lender a Swing
Line Loan Participation Certificate dated the date of the Swing Line Lender's
receipt of such funds and in the Swing Line Participation Amount.
(d) Whenever, at any time after the Swing Line Lender has
received from any Lender such Lender's Swing Line Participation Amount, the
Swing Line Lender receives any payment on account of the Swing Line Loans, the
Swing Line Lender will distribute to such Lender its Swing Line Participation
Amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's participating interest was outstanding
and funded); provided, however, that in the event that all or any part of such
payment received by the Swing Line Lender is required to be returned, such
Lender will return to the Swing Line Lender such portion thereof previously
distributed to it by the Swing Line Lender.
(e) Each Lender's obligation to make the Loans referred to in
subsection 2.23(a) and to purchase participating interests pursuant to
subsection 2.23(c) shall be absolute and unconditional and shall not be affected
by any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Lender or the
Company may have against the Swing Line Lender, the Company or any other Person
for any reason whatsoever; (ii) the occurrence or continuance of a Default or an
Event of Default; (iii) any adverse change in the condition (financial or
otherwise) of the Company; (iv) any breach of this Agreement or any other Loan
Document by the Company, any Subsidiary or any other Lender; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
SECTION 3. LETTERS OF CREDIT
3.1. Letters of Credit. Effective as of the Effective Date,
the Existing Letter of Credit shall be deemed a Standby Letter of Credit
outstanding under, and subject to the terms of, this Agreement. Subject to the
terms and conditions hereof, Chase agrees to issue Letters of Credit for the
account of the Company from time to time on any Business Day during the
Commitment Period; provided that (a) the sum of (i) the face amount of any such
Letter of Credit, plus (ii) the aggregate face amount of all Letters of Credit
then outstanding, shall in no event exceed $50,000,000; and (b) no Letter of
Credit shall be issued if, after giving effect to such issuance, the Aggregate
Outstandings at the time of such issuance would exceed the aggregate Commitments
then in effect on such date. Each Letter of Credit renewed or issued hereunder
shall (a) expire no later than the date five days prior to the Termination Date,
(b) be denominated in Dollars, and (c) be in a minimum face amount of
43
$50,000 in the case of Commercial Letters of Credit and $250,000 in the case of
Standby Letters of Credit. Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York.
3.2. Issuance of Letters of Credit. (a) The Company may
request Chase to issue a Letter of Credit upon at least five Business Days'
written notice to Chase at its address specified in subsection 10.2, setting
forth in such notice (i) the proposed issuance date of such Letter of Credit,
(ii) the face amount of such Letter of Credit and (iii) in the case of
Commercial Letters of Credit, the proposed form thereof, and by the concurrent
delivery to Chase of a Letter of Credit Application, completed to the
satisfaction of Chase. The Company shall also provide such other certificates,
documents and other papers and information as Chase may reasonably request. Upon
receipt of such notice and Letter of Credit Application, Chase will notify each
other Lender thereof and shall, subject to the terms and conditions hereof,
process such Letter of Credit Application, and the other certificates,
documents, and other papers delivered to Chase in connection therewith, in
accordance with its customary procedures, and shall promptly issue such Letter
of Credit (but in no event shall Chase be required to issue any Letter of Credit
earlier than five Business Days after receipt by Chase of the Letter of Credit
Application relating thereto) by issuing the original of such Letter of Credit
to the beneficiary thereof and by furnishing a copy thereof to the Company.
Chase will notify the Lenders of the issuance of such Letter of Credit as soon
as reasonably practicable following such issuance.
(b) Each Letter of Credit issued hereunder shall, among other
things, (i) be denominated in Dollars, (ii) provide for the payment of sight
drafts when presented for honor thereunder in accordance with the terms thereof
and when accompanied by the certificate(s) or other document(s) described
therein, (iii) in the case of a Standby Letter of Credit, have an expiry date
occurring not later than the date that is one year after the date of issuance of
such Standby Letter of Credit and in the case of a Commercial Letter of Credit,
have an expiry date occurring not later than the date that is 360 days after the
date of issuance of such Commercial Letter of Credit, (iv) have an expiry date
occurring not later than five days prior to the Termination Date, and (v) be in
a form satisfactory to Chase.
3.3. Participating Interests. Effective as of the date of
issuance thereof, Chase agrees to apportion and does apportion, to each other
Lender, and each other Lender severally and irrevocably agrees to take and does
take, an undivided participating interest in each Letter of Credit in a
percentage equal to such Lender's Commitment Percentage as in effect at such
time.
3.4. Reimbursement Obligation of the Company. To induce Chase
to issue Letters of Credit, the Company hereby agrees to reimburse Chase (i)
unless such reimbursement
44
obligation has been accelerated pursuant to Section 8, on each date on which
Chase notifies the Company of the date and amount of a draft presented under any
Letter of Credit and paid by Chase for (A) the amount of such draft paid by
Chase under such Letter of Credit and (B) the amount of any taxes, fees, charges
or other costs or expenses whatsoever incurred by Chase in connection with any
payment made by Chase or any Lender under, or with respect to, such Letter of
Credit and (ii) upon the acceleration of such reimbursement obligation in
accordance with Section 8, in an amount equal to the then maximum liability
(whether direct or contingent) of Chase under each Letter of Credit then
outstanding. Each such payment shall be made to Chase at such office as shall
have been specified in writing by Chase, in lawful money of the United States of
America and in immediately available funds. Interest shall be payable on any and
all amounts remaining unpaid by the Company under this subsection 3.4 from the
date such amounts become payable (whether at stated maturity, by acceleration or
otherwise) until payment in full at the Post-Default Rate with respect to ABR
Loans.
3.5. Letter of Credit Payments. (a) If any draft shall be
presented for payment under any Letter of Credit, Chase shall promptly notify
the Company of the date and the amount of the draft presented for payment. The
responsibility of Chase to the Company in connection with any draft presented
for payment under any Letter of Credit shall, in addition to any payment
obligation expressly provided for in such Letter of Credit, be limited to
determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity with such
Letter of Credit.
(b) In the event that Chase makes a payment under any Letter
of Credit and is not reimbursed in full therefor in accordance with the
provisions of subsection 3.4 forthwith upon demand of Chase, Chase will promptly
notify each other Lender. Forthwith upon its receipt of any such notice, each
other Lender will transfer to Chase, in immediately available funds, an amount
equal to such other Lender's Commitment Percentage of the unreimbursed portion
of such payment.
(c) Whenever, at any time after Chase has made a payment under
any Letter of Credit and has received from any other Lender such other Lender's
Commitment Percentage of the unreimbursed portion of such payment, Chase
receives any reimbursement on account of such unreimbursed portion or any
payment of interest on account thereof, Chase will distribute to such other
Lender its Commitment Percentage thereof.
3.6. Letter of Credit Fees. (a) The Company agrees to pay to
the Agent, with respect to each Letter of Credit, a letter of credit fee of (i)
1/8 of 1% of the face amount thereof, in the case of Commercial Letters of
Credit, payable upon issuance and (ii) in the case of Standby Letters of Credit,
a rate per annum, calculated on the face amount thereof, equal to the Applicable
Margin then in effect for Eurodollar Loans,
45
payable on each Payment Date and on the expiry date thereof. The Agent shall
remit to each Lender (including Chase) a ratable portion of such letter of
credit fees based upon such Lender's Commitment Percentage (as in effect on the
date of issuance of such Letter of Credit) of the amount received by the Agent.
The Company agrees to pay or reimburse Chase upon demand for such normal and
customary fees, costs and expenses as are incurred or charged by Chase from time
to time in issuing, effecting payment under or administering any Letter of
Credit (including, without limitation, amendment, negotiation, transfer and
payment fees).
(b) The Company shall pay to Chase, for its own account, with
respect to each Letter of Credit, payable in advance on the date of issuance
thereof, a letter of credit origination fee equal to 0.125% per annum on the
face amount of such Letter of Credit.
3.7. Obligations of the Company Absolute. The Company's
obligations under this Section 3 shall be absolute and unconditional under any
and all circumstances and irrespective of any set-off, counterclaim or defense
to payment which the Company may have or have had against Chase or any
beneficiary of a Letter of Credit. The Company also agrees with Chase that Chase
shall not be responsible for, and the Company's reimbursement obligations under
subsection 3.4 shall not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even though such
documents shall in fact prove to be in any and all respects invalid, fraudulent
or forged, or any dispute between or among the Company or any Restricted
Subsidiary and any beneficiary of any Letter of Credit or any other party to
which such Letter of Credit may be transferred or any claims whatsoever of the
Company or any Restricted Subsidiary against any beneficiary of such Letter of
Credit or any such transferee. Chase shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Letter of Credit,
except for errors or omissions caused by Chase's gross negligence or willful
misconduct. The Company agrees that any action taken or omitted by Chase under
or in connection with any Letter of Credit or the related drafts or documents,
if done in the absence of gross negligence or willful misconduct and in
accordance with the standards of care specified in the Uniform Customs and, to
the extent not consistent therewith, the Uniform Commercial Code of the State of
New York, shall be binding on the Company and shall not put Chase or any other
Lender under any liability to the Company.
3.8. Letter of Credit Application. To the extent that any
provision of any Letter of Credit Application related to any Letter of Credit is
inconsistent with the provisions of this Section 3, the provisions of this
Section 3 shall be controlling.
3.9. Purpose of Letters of Credit. Each Letter of Credit shall
be used by the Company for credit support (including
46
to support the obligations of Restricted Subsidiaries) and other general
corporate purposes in the ordinary course of business.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make
the Loans and to issue and/or to participate in the Letters of Credit hereunder,
the Company hereby represents and warrants to the Agent and each Lender that:
4.1. Financial Condition. The consolidated balance sheet of
the Company and its Consolidated Subsidiaries as at June 30, 1996 and the
related statements of consolidated earnings, consolidated stockholders' equity
and consolidated cash flows for the fiscal year ended on such date, reported on
by KPMG Peat Marwick, complete and correct copies of which have heretofore been
furnished to each Lender, respectively present fairly the consolidated financial
condition of the Company and its Consolidated Subsidiaries as at such date, and
the consolidated results of their operations and their consolidated cash flows
for the fiscal year then ended. The unaudited consolidated balance sheet of the
Company and its Consolidated Subsidiaries as at December 31, 1996 and the
related unaudited statements of consolidated earnings, consolidated
stockholders' equity and consolidated cash flows for the three-month period
ended on such date, certified by a Responsible Financial Officer, complete and
correct copies of which have heretofore been furnished to each Lender, present
fairly the consolidated financial condition of the Company and its Consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the three-month period then ended (subject
to normal year-end audit adjustments). All such financial statements, including
the related schedules and notes thereto, have been prepared in accordance with
GAAP applied consistently throughout the periods involved (except as approved by
such accountants and as disclosed therein, for the absence of notes and for
normal year-end adjustments). Neither the Company nor any of its Consolidated
Subsidiaries had, as of the date of the most recent balance sheet referred to
above, any Contingent Obligation, contingent liability or liability for taxes,
long-term lease or unusual forward or long-term commitment, which is not
reflected in the foregoing statements or in the notes thereto, other than
contingent items which could not reasonably be expected to have a Material
Adverse Effect. Except as set forth in Schedule 4.1 or as disclosed in the
Company's Report on Form 10-Q for the quarter ended December 31, 1996, during
the period from December 31, 1996 to and including the Effective Date there has
been no sale, transfer or other disposition by the Company or any of its
Consolidated Subsidiaries of any material part of its business or property and
no purchase or other acquisition (including any capital stock of any other
Person) material in relation to the consolidated financial condition of the
Company and its Consolidated Subsidiaries at December 31, 1996.
47
4.2. No Change. (a) Except as set forth on Schedule 4.1 or as
disclosed in the Company's Report on Form 10-Q for the quarter ended December
31, 1996, since December 31, 1996, there has been no change, and no development
or event involving a prospective change, which has had or could reasonably be
expected to have a Material Adverse Effect and (b) since December 31, 1996,
except as permitted by this Agreement, no dividends or other distributions have
been declared, paid or made upon the capital stock of the Company nor has any of
the capital stock of the Company been redeemed, retired, purchased or otherwise
acquired for value by the Company or any of its Subsidiaries.
4.3. Corporate Existence; Compliance with Law. Each of the
Company and its Material Subsidiaries is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority and the legal right to
own its property, to lease the property it operates and to conduct its business,
except as permitted by subsection 7.2. As of the Effective Date, the Company is
duly qualified as a foreign corporation and is in good standing under the laws
of each State of the United States and the District of Columbia. Except as
permitted by subsection 7.2, each of the Company and its Subsidiaries is duly
qualified as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of business requires such qualification and is in compliance with all
Requirements of Law, except to the extent that the failure to be so qualified or
to so comply would not, in the aggregate, have a Material Adverse Effect.
4.4. Corporate Power; Authorization. Each of the Company and
each Subsidiary Guarantor has the corporate power and authority, and the legal
right, to make, deliver and perform the Loan Documents to which it is a party
and, in the case of the Company, to obtain extensions of credit hereunder, and
has taken all necessary corporate action on its part to be taken to authorize
the borrowings and issuances of Letters of Credit contemplated by this Agreement
on the terms and conditions of this Agreement and the Notes and to authorize the
execution, delivery and performance of the Loan Documents to which it is a
party. No consent or authorization of, or filing with, or other act in respect
of, any Person (including, without limitation, any Governmental Authority) is
required in connection with the execution, delivery, performance, validity or
enforceability of any of the Loan Documents or the borrowings and issuances of
Letters of Credit contemplated by this Agreement.
4.5. Enforceable Obligations. Each of the Loan Documents has
been, and each of the Notes will be, duly executed and delivered on behalf of
the Company and each Subsidiary Guarantor which is a party thereto, and each of
the Loan Documents constitutes, and each of the Notes when executed and
delivered will constitute, a legal, valid and binding obligation of the Company
or such Subsidiary Guarantor which is a party thereto enforceable against the
Company or such Subsidiary
48
Guarantor which is a party thereto in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
4.6. No Legal Bar. The execution, delivery and performance of
each of the Loan Documents, the borrowings and issuances of Letters of Credit
contemplated by this Agreement and the use of the proceeds thereof (a) do not
and will not violate (i) any Requirement of Law or (ii) any Contractual
Obligation of the Company or any of its Material Subsidiaries and (b) will not
result in, or require, the creation or imposition of any Lien (other than Liens
created pursuant to the Collateral Documents) on any of its or their respective
properties or revenues pursuant to any such Requirement of Law or Contractual
Obligation.
4.7. No Material Litigation. Except as described in Schedule
4.7, no litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Company,
threatened by or against the Company or any of its Subsidiaries or against any
of its or their respective properties or revenues (a) with respect to this
Agreement, the Notes or any Collateral Document or any of the transactions
contemplated hereby or thereby or (b) which would, in the reasonable judgment of
the Company, have a Material Adverse Effect.
4.8. Federal Regulation. No part of the proceeds of any of the
Loans and no Letter of Credit will be used for any purpose which violates the
provisions of Regulation G, T, U or X of the Board as in effect on the date of
making of such Loans or issuance of such Letter of Credit.
4.9. Investment Company Act. Neither the Company nor any of
its Subsidiaries is an "investment company" (as defined or used in the
Investment Company Act of 1940, as amended).
4.10. No Default. Neither the Company nor any of its Material
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
4.11. Ownership of Property; Liens. Each of the Company and
its Material Subsidiaries has good and marketable fee, or valid leasehold or
subleasehold, interests in all its material real property, and good and
marketable title to all other material property owned by it; and none of such
property is subject to any Lien, except as permitted in subsection 7.1.
4.12. Patents and Trademarks. Each of the Company and its
Material Subsidiaries owns, or has all right to use, all Patents and Trademarks
necessary for the conduct of its business
49
as currently conducted. Schedules II and III list all material Patents and
registered Trademarks, respectively, owned by each of the Company, First Brands
Properties, Inc., A&M Products, Inc., Himolene Incorporated and Forest
Technologies, Inc. in their respective names as of the date hereof, there being
no other material Patents and registered Trademarks owned by the Company and its
Material Subsidiaries as of the date hereof. No material registered copyright is
owned by the Company as of the date hereof. To the best of the Company's
knowledge, as of the date hereof each such material Patent and (except as
described in Schedule III) Trademark is valid and enforceable and is subsisting,
unexpired and has not been abandoned in the country (and with respect to each
such Trademark, for the goods) specified on Schedules II and III, respectively.
Except for the licenses listed in Schedules II and III, as of the date hereof
none of such material Patents or Trademarks listed in Schedule II or III is the
subject of any licensing or franchise agreement. Except as disclosed in
Schedules II or III as of the date hereof no holding, decision or judgment has
been rendered by any court or administrative agency which would limit, cancel or
question the validity of, and, to the knowledge of the Company, no action or
proceeding is pending seeking to limit, cancel or question the validity of, any
such material Patent or Trademark and, to the knowledge of the Company, no
action or proceeding is pending which, if adversely determined, would have a
material adverse effect on the value of any such material Patent or Trademark.
4.13. Taxes. Each of the Company and its Material Subsidiaries
has filed or caused to be filed all tax returns which to the knowledge of the
Company are required to be filed, and has paid all taxes shown to be due and
payable on said returns or on any material assessments made against it or any of
its property and all other material taxes, fees or other charges imposed on it
or any of its property by any Governmental Authority, except for taxes not yet
due and except for those the amount or validity of which is currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the Company
or its Material Subsidiaries, as the case may be.
4.14. No Burdensome Restrictions. No Contractual Obligation of
the Company or any of its Subsidiaries, and no Requirement of Law, has, or
insofar as the Company may reasonably foresee may have, a Material Adverse
Effect.
4.15. ERISA. No Reportable Event material in relation to the
business, operations, property or financial or other condition of the Company
and its Restricted Subsidiaries taken as a whole has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any employee benefit plan. Each Plan has complied in
all material respects with the applicable provisions of ERISA and the Code. The
present value of all benefits vested under all Single Employer Plans (based on
those actuarial assumptions used to fund the Plans) did not, as of the last
annual valuation date
50
prior to the date on which this representation is made or deemed made, exceed
the value of the assets of the Plans allocable to such vested benefits by more
than $10,000,000. Neither the Company nor any Commonly Controlled Entity has had
a complete or partial withdrawal from any Multiemployer Plan and the liability
to which the Company or any Commonly Controlled Entity would become subject
under ERISA if the Company or any such Commonly Controlled Entity were to
withdraw completely from all Multiemployer Plans as of the valuation date most
closely preceding the date on which this representation is made or deemed made
is not in excess of $500,000, in the case of any one Multiemployer Plan, or
$1,000,000 in the aggregate, in the case of more than one Multiemployer Plan. No
Multiemployer Plan is in Reorganization or Insolvent.
4.16. Subsidiaries. The Subsidiaries listed on Schedule 4.16
will constitute all of the Subsidiaries (Restricted and Unrestricted) of the
Company as of the Effective Date, and the Subsidiaries designated on such
Schedule as Unrestricted Subsidiaries constitute all of the Unrestricted
Subsidiaries of the Company as of the Effective Date.
4.17. Lessor Intellectual Property. Each item of Lessor
Intellectual Property is solely associated with the business in which is used
the equipment subject to the sale-leaseback transaction pursuant to which the
lessor in such transaction obtained an interest therein. Schedule 4.17 sets
forth all Lessor Intellectual Property as of the date hereof.
4.18. Environmental Status. To the knowledge of the Company
after reasonable investigation, the use of all of the real property and the
operation of the Company's and its Subsidiaries' facilities thereon is in
substantial compliance with all material applicable zoning, environmental
protection, land use and building codes, laws, rules, orders, regulations,
statutes, decrees, requirements and/or ordinances, except to the extent that the
failure to be in such substantial compliance could not reasonably be expected to
have a Material Adverse Effect. The Company has no knowledge of any pending or
threatened governmental or private proceedings or notices of violations against
it or any of its Subsidiaries or any of its or any such Subsidiary's real
property with respect to the ownership, condition or maintenance of its or any
such Subsidiary's real property, except for such proceedings or notices which
could not reasonably be expected to have a Material Adverse Effect. To the best
of the Company's knowledge, none of its or any Subsidiary's real property
contains any hazardous or toxic waste or underground storage tanks, except (i)
that its and its Subsidiaries' real property contains storage tanks used to
store petroleum, petroleum products, waste water and certain nonhazardous and
non-toxic substances, (ii) as disclosed on Schedule 4.18 and (iii) for
quantities of hazardous or toxic waste, and underground storage tanks, which
could not reasonably be expected to have a Material Adverse Effect. To the best
of the Company's knowledge, each parcel of its or any Subsidiary's real property
51
is in substantial compliance with all material state and federal environmental
standards and requirements, except to the extent that the failure to be in such
substantial compliance could not reasonably be expected to have a Material
Adverse Effect. The Company has not, nor has any of its Subsidiaries, received
any written notices of violation, non-compliance, liability, potential
liability, or adversary action by regulatory agencies with respect to any of its
or any Subsidiary's real property regarding environmental control matters or
environmental permit compliance, except for those notices relating to violations
or adversary actions that could not reasonably be expected to have a Material
Adverse Effect. As of the date hereof, to the best of the Company's knowledge
after reasonable investigation, hazardous waste has not been transported onto or
disposed of onto any of the Company's or any Subsidiary's real property since
such real property has been owned by the Company or such Subsidiary.
SECTION 5. CONDITIONS PRECEDENT
5.1. Conditions to Initial Extension of Credit. The
effectiveness of this Agreement, and the obligation of each Lender to make the
initial extension of credit requested to be made hereunder, is subject to the
satisfaction of the following conditions precedent on or prior to February 28,
1997:
(a) Existing Credit Agreement. The Agent shall have received
evidence, satisfactory to the Agent, with a copy for each Lender, that
all obligations of the Existing Lenders under the Existing Credit
Agreement have been terminated, including, without limitation, those
with respect to all letters of credit issued pursuant to the Existing
Credit Agreement (other than the Existing Letter of Credit), that all
payments of principal and interest payable under the Existing Credit
Agreement and all fees payable and all other amounts due thereunder
have been paid in full and that no Loans (as defined in the Existing
Credit Agreement) made pursuant to the Existing Credit Agreement are
outstanding;
(b) Agreement; Notes. The Agent shall have received, (i) this
Agreement, executed and delivered by a duly authorized officer of the
Company, with a counterpart for each Lender, (ii) for the account of
each Lender, a Committed Rate Note and a Bid Note, and (iii) for the
account of the Swing Line Lender, a Swing Line Note; in each case
conforming to the requirements hereof and executed and delivered by a
duly authorized officer of the Company;
(c) Collateral Documents. The Agent shall have received, with
a copy for each Lender, (i) the Subsidiary Guarantee Consent, executed
and delivered by a duly authorized officer of each Restricted
Subsidiary (other than Funding), and (ii) a Cash Collateral Agreement,
executed and
52
delivered by a duly authorized officer of the Company, each of which
Collateral Documents will reflect this Agreement;
(d) Borrowing Certificate of the Company. The Agent shall have
received, with an executed counterpart for each Lender, a certificate
of the Company in substantially the form of Exhibit J, dated the
Effective Date and executed and delivered by a duly authorized officer
of the Company;
(e) Corporate Proceedings. The Agent shall have received, with
a copy for each Lender, (i) a copy of resolutions in form and substance
reasonably satisfactory to the Agent, of the Board of Directors of the
Company and each Subsidiary Guarantor authorizing (x) the execution,
delivery and performance of the Loan Documents to which it is a party,
and (y) the granting by it of the pledges and security interests
granted by it pursuant to the Collateral Documents to which it is a
party, and (ii) a copy of the certificate of incorporation and the
by-laws of the Company and each Subsidiary Guarantor, in each case
certified, with an executed counterpart of such certification for each
Lender, by the Secretary or an Assistant Secretary of the Company or
such Subsidiary Guarantor as of the Effective Date; and such
certificate shall state that the resolutions, the certificate of
incorporation and the by-laws thereby certified have not been amended,
modified, revoked or rescinded and are in full force and effect as of
the date of such certificate;
(f) Incumbency Certificates. The Agent shall have received,
with an executed counterpart for each Lender, a certificate of the
Secretary or an Assistant Secretary of the Company and each Subsidiary
Guarantor, dated the Effective Date, as to the incumbency and signature
of the officers of the Company and each Subsidiary Guarantor executing
each of the Loan Documents to which it is a party and any certificate
or other documents to be delivered by it pursuant hereto and thereto,
together with evidence of the incumbency of such Secretary or Assistant
Secretary;
(g) Legal Opinions. The Agent shall have received, with an
executed counterpart for each Lender, the executed legal opinion of
Kirkland & Ellis, counsel to the Company, substantially in the form of
Exhibit K, with such changes therein as shall be requested or approved
by the Agent; such legal opinion shall cover such matters incident to
the transactions contemplated by this Agreement, the Notes and the
Collateral Documents as the Lenders may reasonably require;
(h) No Litigation. Except as set forth on Schedule 4.7, (i) no
litigation, investigation or proceeding before or by any arbitrator or
Governmental Authority shall be continuing or threatened against the
Company or any Subsidiary of the Company or against the officers or
53
directors of any thereof (A) in connection with this Agreement, the
Notes, the Collateral Documents or any of the transactions contemplated
hereby or thereby and which, in the reasonable opinion of the Required
Lenders, is deemed material or (B) which would, in the reasonable
opinion of the Required Lenders, have a Material Adverse Effect; and
(ii) no injunction, writ, restraining order or other order of any
nature materially adverse to the Company and its Subsidiaries or the
conduct of its or their business or inconsistent with the due
consummation of the transactions contemplated hereby shall have been
issued by any Governmental Authority;
(i) Fees. The Agent shall have received for the account of
itself and the Lenders all fees payable to the Agent and the Lenders on
or prior to the Effective Date pursuant to Sections 2 and 3; and
(j) Other. All corporate and other proceedings and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement, the Notes and the
Collateral Documents shall be satisfactory in form and substance to
each Lender and the Agent and their counsel.
5.2. Conditions to Each Extension of Credit. The agreement of
each Lender to make any extension of credit requested to be made on any date
(including, without limitation, its initial extension of credit, any Swing Line
Loan and the issuance of any Letter of Credit), is subject to the satisfaction
of the following conditions precedent as of the date such extension of credit is
made:
(a) Representations and Warranties. Each of the
representations and warranties made by the Company in or pursuant to
this Agreement and the Collateral Documents to which it is a party, and
each of the representations and warranties made by any Subsidiary of
the Company in or pursuant to any Collateral Documents to which it is a
party, and each of the representations and warranties contained in any
certificate, document or financial or other statement furnished at any
time under or in connection with this Agreement or any Collateral
Document shall be true and correct in all material respects on and as
of such date as if made on and as of such date; and
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extension of credit requested to be made on such date.
Each borrowing of Loans by the Company hereunder, and each issuance of a Letter
of Credit hereunder, shall constitute a representation and warranty by the
Company as of the date of such
54
borrowing or issuance, as the case may be, that the conditions contained in this
subsection 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
From the date hereof and so long as the Commitments remain in
effect or any amounts remain owing hereunder, under any Note or under any Letter
of Credit or Letter of Credit Application, the Company covenants and agrees
that:
6.1. Financial Statements. The Company will furnish
to each Lender:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Company, copies of the
consolidated balance sheet of the Company and its Consolidated
Subsidiaries as at the end of such fiscal year and the related
statements of consolidated earnings, consolidated stockholders' equity
and consolidated cash flows for such fiscal year, setting forth in
comparative form the figures as of the end of and for the previous
year, in each case certified, without a going concern or like
qualification or qualification arising out of the scope of the audit,
by independent certified public accountants of nationally recognized
standing; and
(b) as soon as available, but in any event within 45 days
after the end of each of the first three fiscal quarters of the
Company, copies of the unaudited consolidated balance sheet of the
Company and its Consolidated Subsidiaries as at the end of such quarter
and the related unaudited statements of consolidated earnings,
consolidated stockholders' equity and consolidated cash flows for such
quarter and the portion of the fiscal year through such quarter, in
each case setting forth in comparative form the figures as of the end
of and for the corresponding periods of the previous fiscal year,
certified by a Responsible Financial Officer as presenting fairly the
financial condition and results of operations of the Company and its
Consolidated Subsidiaries (subject in each case to normal year-end
audit adjustments);
all such financial statements to be complete and correct in all material
respects and prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein (except as approved by
such accountants or officer, as the case may be, and disclosed therein and
except that the financial statements referred to in subsection 6.1(b) need not
contain footnotes and may be subject to year-end adjustments); provided that all
such financial statements of the Company and its Consolidated Subsidiaries
referred to in this subsection 6.1 shall not include as assets of the Company or
any Restricted Subsidiary any notes receivable, interest receivable or any other
assets (other than the investment accounts of the
55
Company and the Restricted Subsidiaries accounting for such Person's investments
in the Unrestricted Subsidiaries permitted pursuant to subsections 7.4(f) and
(g)) arising from any transaction between the Company or any Restricted
Subsidiary and any Unrestricted Subsidiary, and shall not include as income of
the Company or any Restricted Subsidiary any interest, dividend or any other
income arising from any transaction between the Company or any Restricted
Subsidiary and any Unrestricted Subsidiary unless, and only to the extent that,
such interest, dividend or other income has theretofore been received by the
Company or such Restricted Subsidiary in cash, and shall reflect the investments
of the Company and its Restricted Subsidiaries in the Unrestricted Subsidiaries
on a cost basis.
6.2. Certificates; Other Information. The Company
will furnish:
(a) to each Lender concurrently with the delivery of each set
of the financial statements referred to in subparagraph (a) of
subsection 6.1, a certificate of the independent certified public
accountants certifying such set of financial statements stating that,
although such examination was not conducted with a view toward
determining whether a Default or Event of Default occurred or existed,
in making the examination necessary for such certification no knowledge
was obtained of any Default or Event of Default (except as specified in
such certificate) and attaching to such certification the calculations
prepared by the Company to support such statement in respect of
subsections 7.6 and 7.7, and verifying such calculations;
(b) to each Lender concurrently with the delivery of each set
of the financial statements referred to in paragraphs (a) and (b) of
subsection 6.1, a certificate of a Responsible Financial Officer (A)
stating that, to the best of such officer's knowledge, during the
period covered by such set of financial statements each of the Company
and its Subsidiaries has observed or performed in all material respects
all of its covenants and other agreements, and satisfied in all
material respects every condition, contained in this Agreement, the
Notes and the Collateral Documents to be observed, performed or
satisfied by it, and that such officer has obtained no knowledge of any
Default or Event of Default (except as specified in such certificate)
and (B) showing in detail the calculations supporting such statement in
respect of subsections 7.6 and 7.7 and, if applicable, reconciliations
to reflect changes in GAAP since the date hereof;
(c) to each Lender (i) promptly after the same are sent and
received, copies of all financial statements, reports and notices which
the Company sends to holders of the capital stock of the Company as a
class, and (ii) promptly after the same are filed and received, copies
of all financial statements and reports which the Company may
56
make to, or file with, and copies of all material notices the Company
receives from, the Securities and Exchange Commission or any public
body succeeding to any or all of the functions of the Securities and
Exchange Commission;
(d) to each Lender, as soon as available, but in any event
within 15 days prior to the beginning of each fiscal year of the
Company, a copy of the consolidated plan and forecast of the Company
and its Consolidated Subsidiaries for the next succeeding fiscal year;
(e) to each Lender promptly after the execution thereof copies
of all material amendments, waivers and consents entered into by the
Company relating to the Indenture, any Financing Lease, and any New
Sale-Leaseback; and
(f) to each Lender promptly such additional financial and
other information (including, without limitation, consolidating
financial statements) as any Lender through the Agent may from time to
time reasonably request.
6.3. Payment of Obligations. The Company will, and will cause
each of its Restricted Subsidiaries to, pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all of
its material Indebtedness and other material obligations of whatever nature
(including any obligations for taxes), except, without prejudice to the
effectiveness of paragraph (g) of Section 8, for any Indebtedness or other
material obligation which is being contested in good faith by appropriate
proceedings and with respect to which, on a consolidated basis, adequate
reserves in conformity with GAAP shall have been provided on the books of the
Company or its Restricted Subsidiaries, as the case may be.
6.4. Conduct of Business and Maintenance of Existence. The
Company will, and will cause each of its Restricted Subsidiaries to, (a) except
as otherwise provided in subsections 7.2 and 7.5, preserve, renew and keep in
full force and effect its corporate existence and take all reasonable action to
maintain all its material rights, licenses, privileges and franchises necessary
or desirable in the normal conduct of its business and (b) comply with all of
its Contractual Obligations and Requirements of Law, except to the extent that
the failure to comply therewith would not, in the aggregate, have a Material
Adverse Effect.
6.5. Maintenance of Property and Insurance. The Company will,
and will cause each of its Restricted Subsidiaries to, keep all of its property
necessary for the continued operation of its business in good working order and
condition (ordinary wear and tear excepted) and maintain with financially sound
and reputable insurance companies insurance thereon and with respect to product
liability claims, in each case in at least such amounts and with such
deductibles and against at least
57
such risks as are usually insured against in the same general area by companies
engaged in the same or similar businesses; and, the Company will furnish any
Lender, upon the written request of such Lender through the Agent, full
information as to the insurance carried.
6.6. Inspection of Property; Books and Records; Discussions.
The Company will, and will cause each of its Restricted Subsidiaries to, (a)
keep proper books of record and account in which full, true and correct entries
in conformity with GAAP in all material respects (or, in the case of Foreign
Subsidiaries, generally accepted accounting principles in effect from time to
time in their respective jurisdictions of incorporation) and all Requirements of
Law in all material respects shall be made of all dealings and transactions in
relation to its business and activities and (b) permit representatives of the
Agent or any Lender (at the Agent's or such Lender's expense, as the case may
be) to visit and inspect any of its properties and to examine and make abstracts
from any of its books and records at their customary location at any reasonable
time and as often as may reasonably be desired for use by such Lender in making
continuing credit decisions hereunder, and to discuss the business, operations,
properties and financial and other condition of the Company and its Restricted
Subsidiaries with its officers and employees and with its independent certified
public accountants.
6.7. Notices. The Company will promptly give written
notice to each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) upon knowledge thereof of any officer of the Company, any
default or event of default under any Contractual Obligation of the
Company or any of its Restricted Subsidiaries which, in the reasonable
judgment of the Company, would have a Material Adverse Effect;
(c) any litigation, investigation or proceeding affecting the
Company or any of its Restricted Subsidiaries of which the Company or
any such Restricted Subsidiary has knowledge and which, in the
reasonable judgment of the Company, would have a Material Adverse
Effect;
(d) the commencement of any investigation or proceeding into
or against the Company or any of its Restricted Subsidiaries of which
the Company or any such Restricted Subsidiary has knowledge with
respect to any alleged violations of laws relating to the protection of
the environment which could, in the reasonable judgment of the Company,
have a Material Adverse Effect and, quarterly thereafter, the status of
each such investigation or proceeding;
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(e) the following events, as soon as possible and in any event
within 30 days after the Company knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any Plan, or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan, or (ii) the
institution of proceedings or the taking or expected taking of any
other action by PBGC or the Company or any Commonly Controlled Entity
or any Multiemployer Plan with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Plan; and
(f) any material change which, in the reasonable judgment of
the Company, would have a material adverse effect on the business,
operations, property or financial condition of the Company and its
Restricted Subsidiaries taken as a whole.
Each notice pursuant to this subsection 6.7 shall be accompanied by a statement
of a Responsible Financial Officer setting forth details of the occurrence
referred to therein and stating what action the Company proposes to take with
respect thereto.
6.8. Separate Corporate Entity for and Borrowing by
Unrestricted Subsidiaries. The Company shall, and shall cause each of its
Subsidiaries to, operate each Unrestricted Subsidiary in such a manner as to
make it apparent to all creditors of such Unrestricted Subsidiary that such
Unrestricted Subsidiary is an entity separate and distinct from the Company or
any Restricted Subsidiary and as such is solely responsible for its debts; such
manner shall include, but not be limited to, the maintenance of a separate board
of directors for such Unrestricted Subsidiary. Nothing in this subsection 6.8
shall be construed to prohibit guarantees by the Company or any Restricted
Subsidiary of obligations of any Unrestricted Subsidiary to the extent otherwise
permitted hereunder or under the other Loan Documents.
SECTION 7. NEGATIVE COVENANTS
From the date hereof and so long as the Commitments remain in
effect or any amounts remain owing hereunder, under any Note or under any Letter
of Credit or Letter of Credit Application, the Company covenants and agrees
that:
7.1. Limitation on Liens. The Company will not, and will not
permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens in favor of the Agent and the Lenders created
pursuant to the Cash Collateral Agreement;
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(b) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings; provided that adequate
reserves with respect thereto are maintained on the books of the
Company or its Restricted Subsidiaries, as the case may be, in
conformity with GAAP;
(c) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, or other like Liens arising in the ordinary course of
business and not overdue for a period of more than 60 days or which are
being contested in good faith by appropriate proceedings;
(d) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;
(e) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(f) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or such Restricted Subsidiary;
(g) Liens securing Indebtedness of the Company and its
Restricted Subsidiaries in respect of the purchase price of fixed or
capital assets; provided that the Indebtedness secured by such Liens
would not result in any violation of subsection 7.6, and provided,
further that (A) such Liens do not at any time encumber any property
other than the property financed by such Indebtedness and the amount of
Indebtedness secured thereby is not increased and (B) the principal
amount of Indebtedness (other than Capitalized Leases) secured by any
such Lien shall at no time exceed 100% of the fair value (as determined
in good faith by the board of directors of the Company or such
Restricted Subsidiary) of the respective asset at the time it was
acquired;
(h) Liens created in connection with Capitalized Leases,
Financing Leases, and New Sale-Leasebacks; provided that such Liens do
not at any time encumber any property other than the property financed
by such Capitalized Lease, Financing Lease or New Sale-Leaseback, and
the amount of such Capitalized Lease, Financing Lease or New
Sale-Leaseback is not increased;
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(i) Liens on the proceeds or the rights thereto securing
Indebtedness of the Company and its Restricted Subsidiaries for
financing export sales under bankers' acceptances;
(j) Liens on accounts receivable of the Company, its
Subsidiaries or Funding to the extent created as contemplated by the
Securitization Documents; and
(k) Liens on Patents and Trademarks in the ordinary course of
the Company's or such Restricted Subsidiary's business as conducted as
of the Effective Date.
7.2. Prohibition of Fundamental Changes. Except as permitted
in subsections 7.4 and 7.5, the Company will not, and will not permit any of its
Restricted Subsidiaries to, 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, transfer or otherwise
dispose of, in one transaction or a series of related transactions, all or
substantially all of its business, property or tangible or intangible assets,
whether now owned or hereafter acquired, or acquire by purchase or otherwise,
all or substantially all the business, property or fixed assets of, or stock or
other evidence of beneficial ownership of, any Person, except that so long as no
Default or Event of Default shall have occurred and be continuing, or would
result therefrom, the Company or any of its Restricted Subsidiaries may enter
into a transaction of merger or consolidation, provided that the Company or such
Restricted Subsidiary shall be the continuing or surviving corporation.
7.3. Limitation on Restricted Payments. The Company will not,
and will not permit any of its Restricted Subsidiaries to, declare or pay any
dividends (other than dividends payable solely in capital stock (excluding any
non-perpetual or mandatorily-redeemable preferred stock) of the Company) on, or
make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, retirement or other acquisition
of, shares of any class of capital stock of the Company or any stock options or
warrants to purchase any such capital stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Company (any
such declaration, payment, setting apart, purchase, redemption, retirement,
acquisition or distribution, a "Restricted Payment"), except that so long as on
the date of declaration or notice of such Restricted Payment no Default or Event
of Default would (on a pro forma basis after giving effect to such Restricted
Payment) have occurred and be continuing, the Company may make Restricted
Payments subsequent to the Effective Date in an aggregate amount not to exceed
the sum of (a) $100,000,000, (b) an amount equal to 50% of Consolidated Net
Income for each fiscal quarter ended after the Effective Date for which
financial statements shall have been delivered to the Lenders pursuant to
subsection 6.1 and (c) $20,000,000,
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constituting that portion of the Company's stock buyback program unused at the
Effective Date.
7.4. Limitation on Investments, Acquisitions, Loans and
Advances. The Company will not, and will not permit any of its Restricted
Subsidiaries to, make any advance, loan, extension of credit or capital
contribution to, or purchase or otherwise acquire any stock, bonds, notes,
debentures or other securities of, or acquire by purchase or otherwise all or
substantially all of the business, properties or assets of, or make any other
investment in, any Person, except
(a) extensions of trade credit in the ordinary course of
business,
(b) investments in Cash Equivalents,
(c) loans and advances (i) to officers, directors and
employees of the Company or its Restricted Subsidiaries for travel,
entertainment, relocation and other expenses in the ordinary course of business
and (ii) to officers, directors and employees of the Company or any of its
Subsidiaries in an aggregate amount not to exceed $5,000,000 to be used to
purchase common stock of the Company and for the exercise of options to purchase
common stock of the Company granted to such officers, directors or employees
under stock option plans of the Company or any of its Subsidiaries, each such
loan to have a maturity not in excess of ten years,
(d) purchases of inventory in the ordinary course of
business,
(e) investments in an amount not to exceed $500,000 in the
aggregate in insurance companies with which the Company maintains excess
liability insurance,
(f) loans, advances, extensions of credit, capital
contributions and investments by the Company to and in Persons that are
Restricted Subsidiaries or simultaneously therewith become Restricted
Subsidiaries (other than any thereof permitted under clause (h) of this
subsection 7.4); provided that prior to the making of the initial loan, advance,
extension of credit, capital contribution or investment in any such Subsidiary,
the Company shall (i) cause such Subsidiary to become a party to the Subsidiary
Guarantee as a Subsidiary Guarantor and (ii) provide the Agent and the Lenders
with such satisfactory legal opinions and other documentation with respect to
the legality, validity and enforceability of such guarantee thereby as the Agent
may reasonably deem necessary or appropriate,
(g) the Company's investment in the Restricted Subsidiaries
and Unrestricted Subsidiaries listed on Schedule 4.16 as of the Effective Date,
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(h) the transactions contemplated by the Securitization
Documents,
(i) loans, advances, extensions of credit, capital
contributions and investments by the Company to and in Persons that are Foreign
Subsidiaries; provided that (i) no Default or Event of Default shall have
occurred and be continuing or would result therefrom and (ii) such loan,
advance, extension of credit, capital contribution or investment would not have
a Material Adverse Effect,
(j) acquisitions of securities of, or assets of, other Persons
other than Subsidiaries so long as the acquisition thereof does not materially
change the nature of the business in which the Company and its Restricted
Subsidiaries, taken as a whole, are engaged from that in which the Company and
its Restricted Subsidiaries were engaged on the Effective Date,
(k) Seller Paper (i) issued in connection with the sale by the
Company of its former "Prestone" business in an aggregate principal amount not
in excess of $12,000,000, (ii) which may be issued in connection with the sale
by the Company of its East Hartford facility in an aggregate principal amount
not to exceed $5,300,000, and (iii) which may be issued in connection with any
other sale or disposition of any property permitted under subsection 7.5(a), (b)
or (c) in an aggregate principal amount not to exceed 10% of the fair market
value of such property at the time of such sale, and
(l) loans, advances, extensions of credit, capital
contributions and investments in addition to those in subsections 7.4(a) through
(k) above which additional loans, advances, extensions of credit, capital
contributions and investments do not exceed in the aggregate $15,000,000.
7.5. Limitations on Sale of Assets. Except as permitted by
subsections 7.2 and 7.4, the Company will not, nor will it permit any of its
Restricted Subsidiaries to, sell, lease or otherwise dispose of any of its
assets (including, without limitation, receivables and leasehold interests and
shares of capital stock of Restricted Subsidiaries of the Company, whether then
owned by the Company or any Restricted Subsidiary or then issued by any
Restricted Subsidiary), except:
(a) sales of obsolete or worn out property, or property
(including inventory) disposed of in the ordinary course of business;
(b) sales or other dispositions such that at the time of such
sale the aggregate fair market value as determined in good faith by the
Company's Board of Directors or applicable committee thereof of all
property subject to all such sales or dispositions made in reliance on
this subsection 7.5(b) from and after the Effective Date shall not
exceed 25% of Consolidated Net Worth as of the most
63
recent fiscal quarter for which the financial statements contemplated
in subsections 6.1(a) and (b) have been delivered; and
(c) the sale of accounts receivable and all items relating
thereto (including, without limitation, purchase agreements, security
interests, contracts, financing statements, guarantees, insurance,
monies due or to become due, and proceeds thereof) by the Company,
Subsidiaries of the Company and Funding as contemplated by the
Securitization Documents.
7.6. Ratio of Consolidated Total Indebtedness to Consolidated
Total Capitalization. The Company will not at any time permit the ratio of
Consolidated Total Indebtedness at such time to Consolidated Total
Capitalization to exceed 0.60 to 1.0.
7.7. Interest Coverage Ratio. The Company will not permit, for
any period of four consecutive fiscal quarters of the Company, the ratio of (a)
Consolidated EBITDAR for such period to (b) the sum of (i) Consolidated Interest
Expense for such period and (ii) Consolidated Lease Expense for such period to
be less than 2.25 to 1.0.
7.8. Limitation on Indebtedness of Unrestricted Subsidiaries.
The Company will not permit any of its Unrestricted Subsidiaries to create,
incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness in an aggregate principal amount for all
Unrestricted Subsidiaries not to exceed $50,000,000 at any one time
outstanding; and
(b) Other Non-Recourse Indebtedness of any Non-Recourse
Unrestricted Subsidiary.
7.9. Limitation on Prepayments, Amendments and Payments in
respect of Subordinated Indebtedness and New Sale- Leasebacks. (a) The Company
will not, and will not permit any of its Restricted Subsidiaries to,
(i) directly or indirectly, by deposit of monies or
otherwise, prepay, purchase, redeem, retire, defease or otherwise
acquire, or make any optional payment on account of any principal of,
interest on, or premium payable in connection with the optional
prepayment, redemption, defeasance or retirement of, any Subordinated
Debt (any such payment, a "Subordinated Debt Prepayment"), unless, (x)
the Company or such Restricted Subsidiary shall give written notice to
the Agent at the address specified in subsection 10.2 at least 20 days
prior to making such Subordinated Debt Prepayment and (y) at the time
notice of such payment is given, no Default or Event of Default shall
have occurred and be continuing or would (on a pro forma basis after
64
giving effect to such Subordinated Debt Prepayment) result from making
such Subordinated Debt Prepayment, or
(ii) cause or permit the termination in full or part
(including a partial payment or termination) of any New Sale-Leaseback
if, after giving effect to such termination and any payments required
to be made in connection therewith, any Default or Event of Default
shall have occurred and be continuing, or
(iii) agree to the modification or amendment of any of
the terms of payment of or applicable to, or amortization or sinking
fund requirements of or applicable to, or the terms of subordination of
or applicable to, any Subordinated Debt or any instrument evidencing or
governing the terms of any Subordinated Debt, or
(iv) agree to any modification of the Indenture, or any
of the instruments referred to in clause (iii) above or any documents
entered into in connection with any New Sale-Leaseback which would
restrict the ability of the Company to effect any amendments or
modifications to this Agreement or the other Loan Documents or to
prepay the amounts outstanding hereunder and thereunder, or
(v) agree to any modification of any affirmative or
negative covenants, events of default or remedial provisions of or
applicable to the Indenture, or any of the instruments referred to in
clause (iii) above, if the effect of any such modification is to place
any further restrictions on the Company or increase the obligations of
the Company thereunder or confer on the holders of any such instrument
any additional rights (including, without limitation, with respect to
such holder's ability to accelerate the obligations thereunder).
(b) Nothing in subsection 7.9(a) shall be deemed to prohibit
any refinancing of any of the Financing Leases or New Sale-Leasebacks so long as
no Default or Event of Default would occur as a result thereof.
(c) The Company will not give any notice to the Agent referred
to in Sections 3.02 or 12.01(c) of the Indenture relating to optional redemption
and defeasance of the Senior Subordinated Debentures which would not be
permitted under subsection 7.9(a)(i) or 7.9(e) at the time such notice is given.
(d) The Company will not permit the modification or waiver of,
or any change other than those which could not have an adverse effect on the
Company or the Agent or any Lender in the provisions of the certificate of
incorporation of the Company.
(e) The Company and the Lenders acknowledge that the Company
may request that the Required Lenders consent to a Subordinated Debt Prepayment,
or an amendment, waiver or other
65
modification of the terms of any Subordinated Debt, or refinancing of any
Subordinated Debt, which is otherwise prohibited by this subsection 7.9, and
that upon the consent of the Required Lenders in the manner set forth in
subsection 10.1 for a waiver, the Company may make such Subordinated Debt
Prepayment or consent to such amendment, waiver or other modification or
refinancing in the amount and subject to the other terms and conditions as may
be set forth in such consent.
7.10. Limitation on Affiliate Transactions. Except for the
intercompany debt between First Brands Properties Inc. and Citrus Holdings
Limited or one of its subsidiaries, as described on Schedule 7.10 hereto, the
Company will not, nor will it permit its Restricted Subsidiaries to, enter into
any material transactions, including, without limitation, the purchase, sale or
exchange of property or the rendering of any services, with any Affiliate of the
Company, except a transaction which is in the ordinary course of the Company's
or such Restricted Subsidiary's business and which is upon fair and reasonable
terms no less favorable to the Company or such Restricted Subsidiary than it
would obtain in a comparable arm's-length transaction with a Person not an
Affiliate; provided that the foregoing shall not restrict transactions between
the Company and any Restricted Subsidiary or between any Restricted
Subsidiaries.
7.11. Prohibition on Change in Business. The Company will not,
and will not permit its Subsidiaries to, enter into any business, either
directly or indirectly, if the effect thereof would be to materially change the
nature of the business in which the Company and its Restricted Subsidiaries,
taken as a whole, are engaged from that in which the Company and its Restricted
Subsidiaries were engaged on the Effective Date.
7.12. Limitation on Assets of Non-Recourse Unrestricted
Subsidiaries. The Company will not at any time permit the consolidated total
assets of all Non-Recourse Unrestricted Subsidiaries to exceed 25% of the
consolidated total assets of the Borrower and all its Subsidiaries without the
prior written consent of the Required Lenders.
SECTION 8. EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the
following events:
(a) Payments. (i) Failure by the Company to pay when due any
principal of any Note or any reimbursement obligation in respect of any
Letter of Credit or (ii) failure by the Company to pay any interest on
any Note or to pay any fee or other amount payable hereunder within
three Business Days after the date when due;
(b) Representations and Warranties. Any representation or
warranty made or, pursuant to subsection
66
5.2, deemed made by the Company or any Restricted Subsidiary in this
Agreement or any Collateral Document, or in any certificate, document
or financial or other written statement furnished at any time in
connection herewith or therewith shall prove to have been untrue or
misleading in any material respect on the date when made or so deemed
to have been made;
(c) Certain Covenants. Default by the Company in the
observance or performance of any covenant or agreement contained in
Section 7 or subsection 2.6(b);
(d) Other Covenants. Default by the Company in the observance
or performance of any other covenant or agreement contained in this
Agreement and the continuance of such default unremedied for a period
of 30 days after knowledge thereof by any officer of the Company or
notice to the Company thereof by the Agent or any Lender, or for a
period of 60 days after knowledge thereof by any officer of the Company
or notice to the Company thereof by the Agent or any Lender, if by
reason of the nature of such default the same cannot be remedied within
the 30-day period commencing on the date of such default and the
Company (in the judgment of the Required Lenders) proceeds with
reasonable diligence during such 60-day period to cure such default;
(e) Collateral Document Covenants. Default by the Company or
any Material Subsidiary in the observance or performance of any other
covenant or agreement contained in any Collateral Document to which it
is a party and continuance of such default unremedied for a period of
30 days after knowledge thereof by any officer of the Company or notice
to the Company thereof by the Agent or any Lender, or for a period of
60 days after knowledge thereof by any officer of the Company or notice
to the Company thereof by the Agent or any Lender, if by reason of the
nature of such default the same cannot be remedied within the 30-day
period commencing on the date of such default and the Company (in the
judgment of the Required Lenders) proceeds with reasonable diligence
during such 60-day period to cure such default;
(f) Effectiveness of Collateral Documents. If for any reason
(other than any act on the part of the Agent or any Lender) any
Collateral Document ceases to be in full force and effect or any party
thereto (other than the Agent or any Lender) shall so assert in
writing;
(g) Cross-Default. The Company or any of its Restricted
Subsidiaries shall (i) default in the payment of (A) principal of or
interest on any of its Indebtedness (other than any such default in
respect of the Notes or reimbursement obligations in respect of the
Letters of Credit) or in the payment of any Contingent Obligation
relating to Indebtedness, where the aggregate principal
67
amount of all such Indebtedness and Contingent Obligations then
outstanding exceeds $5,000,000, or (B) rent or stipulated loss value in
respect of any Financing Leases having an aggregate Financing Lease
Value in excess of $5,000,000, in either case beyond the period of
grace, if any, provided in the instrument or agreement under which such
Indebtedness, Contingent Obligation or Financing Lease was created or
(ii) default in the observance or performance of any other agreement or
condition relating to any Indebtedness or Contingent Obligation (the
aggregate principal amount of which then outstanding exceeds
$5,000,000) or any Financing Leases (having an aggregate Financing
Lease Value at such time in excess of $5,000,000), or contained in any
instrument or agreement evidencing, securing or relating thereto, or
any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the
holder or holders of such Indebtedness, beneficiary or beneficiaries of
such Contingent Obligation or lessor under such Financing Lease (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries or lessor) to cause such Indebtedness or Financing Lease
to become due prior to its stated maturity or such Contingent
Obligation to become payable;
(h) Commencement of Bankruptcy or Reorganization Proceeding.
(i) The Company or any of its Restricted Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it as bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, wind-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for it or for
all or any substantial part of its assets; or (ii) there shall be
commenced against the Company or any of its Restricted Subsidiaries any
such case, proceeding or other action referred to in subsection (i)
which results in the entry of an order for relief or any such
adjudication or appointment or remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against the Company or any of its Restricted Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv)
the Company or any of its Restricted Subsidiaries shall take any action
authorizing, or in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth above in
this paragraph (h); or
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(v) the Company or any of its Restricted Subsidiaries shall generally
not, or shall be unable to, or shall admit in writing its inability to,
pay its debts as they become due;
(i) Material Judgments. One or more judgments or decrees shall
be entered against the Company or any of its Restricted Subsidiaries
involving in the aggregate a liability (not covered by insurance) of
$5,000,000 or more and all such judgments or decrees shall not have
been vacated, satisfied, discharged or suspended pending appeal by bond
or otherwise within 60 days from the entry thereof;
(j) ERISA. (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) other than a prohibited transaction that has been specifically
authorized or otherwise permitted by the United States Department of
Labor or other Governmental Authority having jurisdiction therefor,
involving any Single Employer Plan with vested unfunded liabilities in
excess of $500,000 or any Multiemployer Plan, (ii) any "accumulated
funding deficiency" (as defined in Section 302 of ERISA), whether or
not waived, shall exist with respect to any such Plan, (iii) a
Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed,
to administer or to terminate, any such Single Employer Plan, which
Reportable Event or institution of proceedings is likely to result in
the termination of such Plan for purposes of Title IV of ERISA, and, in
the case of a Reportable Event, the continuance of such Reportable
Event unremedied for ten days after notice of such Reportable Event
pursuant to Section 4043(a), (c) or (d) of ERISA is given or the
continuance of such proceedings for thirty days after commencement
thereof, as the case may be, (iv) any Multiemployer Plan or any such
Single Employer Plan shall terminate for purposes of Title IV of ERISA,
(v) the Company or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan, or (vi) any other event or
condition shall occur or exist with respect to any Multiemployer Plan
or any such Single Employer Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other
such events or conditions, if any, is likely to subject the Company or
any of its Subsidiaries to any tax, penalty or other liabilities in the
aggregate material in relation to the business, operations, property or
financial condition of the Company and its Subsidiaries taken as a
whole;
(k) Ownership of Common Stock. If prior to the date on which
the sum of the then outstanding Commitments and the then aggregate
Financing Lease Value on such date becomes less than $200,000,000, any
Person or Persons acting in concert of beneficial ownership (within the
meaning of Rule
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13d-3 of the Securities and Exchange Commission promulgated under the
Securities Exchange Act of 1934, as amended, or any successor,
replacement or analogous rule or provision of law) shall acquire
beneficial ownership of 30% or more of the voting power of the
Company's capital stock and such condition shall have continued for 30
days or more, provided, however, that the events described in this
paragraph (k) shall not constitute a Default or Event of Default unless
and until a notice of determination to such effect is delivered by the
Required Lenders to the Company;
then, and in any such event, (x) if such event is an Event of Default specified
in clause (i), (ii), (iii) or (iv) of paragraph (h) above with respect to the
Company, automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement (including amounts payable in respect of Letters of Credit whether or
not the beneficiaries thereof shall have presented the drafts and other
documents required thereunder) and the Notes shall immediately become due and
payable, and (y) if such event is any other Event of Default, either or both of
the following actions may be taken: (i) with the consent of the Required
Lenders, the Agent may, or upon the request of the Required Lenders, the Agent
shall, by notice to the Company, declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; and (ii) with
the consent of the Required Lenders, the Agent may, or upon the request of the
Required Lenders, the Agent shall, by notice of default to the Company, declare
the Loans (with accrued interest thereon) and all other amounts owing under this
Agreement (including amounts payable in respect of Letters of Credit whether or
not the beneficiaries thereof shall have presented the drafts and other
documents required thereunder) and the Notes to be due and payable forthwith,
whereupon the same shall immediately become due and payable. With respect to all
Letters of Credit that shall not have expired or with respect to which
presentment for honor shall not have occurred, the Company shall deposit in a
cash collateral account opened by the Agent pursuant to the Cash Collateral
Agreement an amount equal to the aggregate undrawn amount of Letters of Credit,
and the unused portion thereof, if any, shall be returned to the Company after
the respective expiry dates of the Letters of Credit and after all obligations
of the Company hereunder and under the other Loan Documents are paid in full.
Except as expressly provided above in this Section 8, presentment, demand,
protest and all other notices of any kind are hereby expressly waived.
SECTION 9. THE AGENT
9.1. Appointment. Each Lender hereby irrevocably designates
and appoints Chase as the Agent of such Lender under the Loan Documents. Each
Lender hereby irrevocably authorizes Chase, as the Agent for such Lender, to
take such action on its behalf under the provisions of the Loan Documents and to
exercise
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such powers and perform such duties as are expressly delegated to the Agent by
the terms of the Loan Documents, together with such other powers as are
reasonably incidental thereto. Chase hereby accepts its appointment as Agent and
the authorization set forth above. Notwithstanding any provision to the contrary
in the Loan Documents, the Agent shall not have any duties or responsibilities,
except those expressly set forth in the Loan Documents, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into the Loan
Documents or otherwise exist against the Agent.
9.2. Delegation of Duties. The Agent may execute any of its
duties under the Loan Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or misconduct of
any agents or attorneys-in-fact selected by it with reasonable care.
9.3. Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be
(a) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with the Loan Documents (except for its or such
Person's own gross negligence or wilful misconduct) or (b) responsible in any
manner to any of the Lenders for any recitals, statements, representations or
warranties made by the Company or any Subsidiary or any officer thereof
contained in the Loan Documents or in any certificate, report, statement or
other document referred to or provided for in, or received by it under or in
connection with, the Loan Documents or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of the Loan Documents or for any
failure of any party thereto (other than the Agent) to perform its obligations
thereunder. The Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, the Loan Documents, or to inspect the
properties, books or records of any party to any thereof.
9.4. Reliance by Agent. The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Company), independent accountants and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under any Loan Document unless it
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shall have received such advice or concurrence of the Required Lenders or, to
the extent that any Loan Document expressly provides that the Agent is justified
in relying only upon all of the Lenders, all of the Lenders as it deems
appropriate or it shall have been expressly indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Agent shall in
all cases be fully protected in acting, or in refraining from acting, under the
Loan Documents in accordance with a request of the Required Lenders or, to the
extent that any Loan Document expressly provides that the Agent is justified in
relying only upon all of the Lenders, all of the Lenders, and such request, and
any action taken or failure to act pursuant thereto, shall be binding upon all
the Lenders and all future holders of the Notes.
9.5. Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default unless
it has received notice from a Lender or the Company referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". In the event that the Agent receives any such notice, it
shall promptly give notice thereof to the Lenders. The Agent shall take such
action with respect to any Default or Event of Default as shall be reasonably
directed by the Required Lenders or, to the extent that any Loan Document
expressly provides that the Agent is justified in relying only upon all of the
Lenders, all of the Lenders; provided that, except as expressly provided herein,
unless and until the Agent shall have received such directions, it may (but
shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable in
the best interests of the Lenders.
9.6. Non-Reliance on Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Agent nor any of its respective
officers, directors, employees, agents, attorneys-in-fact or affiliates has made
any representations or warranties to it and that no act by any of them hereafter
taken, including any review of the affairs of the Company or any Subsidiary,
shall be deemed to constitute any representation or warranty by the Agent to any
Lender. Each Lender represents to the Agent that it has or will, independently
and without reliance upon the Agent or any other Lender, and based on such
documents and information as it has deemed or will deem appropriate, made and
will make its own appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of the Company and
its Subsidiaries, and made and will make its own decision to make its Loans,
participate in Letters of Credit and enter into the Loan Documents to which it
is or will be a party. Each Lender also represents that it will, independently
and without reliance upon the Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals
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and decisions in taking or not taking action under the Loan Documents, and to
make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Company and its Subsidiaries. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Agent hereunder or furnished to the Agent with copies or counterparts for
the Lenders, the Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of the Company which
may come into its possession or the possession of any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
9.7. Indemnification. The Lenders agree to indemnify the Agent
(in its capacity as such), to the extent not reimbursed by the Company and
without limiting the obligation of the Company to do so, ratably according to
the respective amounts of their Commitment Percentages, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment of the
Notes) be imposed on, incurred by or asserted against the Agent in such capacity
in any way relating to or arising out of the Loan Documents, or any documents
contemplated by or referred to therein or the transactions contemplated thereby
or any action taken or omitted by the Agent in such capacity thereunder or in
connection therewith; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting solely
from the gross negligence or willful misconduct of the Agent. The agreements in
this subsection 9.7 shall survive the payment of the Notes and all other amounts
payable hereunder.
9.8. Agent in its Individual Capacity. The Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Company or any of its Subsidiaries as though the Agent
were not the Agent under the Loan Documents. With respect to its Loans and any
Note or other promissory note issued to it, the Agent shall have the same rights
and powers under this Agreement as any Lender and may exercise the same as
though it were not the Agent, and the terms "Lender" and "Lenders" shall include
the Agent in its individual capacity.
9.9. Successor Agent. The Agent may resign as Agent upon 30
days' notice to the Company and the Lenders. If the Agent shall resign as Agent
under this Agreement, then the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders, which successor agent shall, if no
Default or Event of Default has occurred and is continuing, be subject to
73
approval by the Company, which approval shall not be unreasonably withheld (or,
if the Required Lenders and the Company are unable to select such successor
agent within such 30-day period, a successor agent shall be selected by the then
Agent), whereupon such successor agent (which shall be a bank or trust company)
shall succeed to the rights, powers and duties of the Agent under all of the
Loan Documents, and the term "Agent" shall mean such successor agent effective
upon its appointment, and the former Agent's rights, powers and duties as Agent
shall be terminated, without any other or further act or deed on the part of
such former Agent or any of the parties to this Agreement or any holders of the
Notes. After any retiring Agent's resignation hereunder as 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 Agent under the Loan Documents.
SECTION 10. MISCELLANEOUS
10.1. Amendments and Waivers. With the written consent of the
Required Lenders, the Agent and the appropriate parties to the Loan Documents
may, from time to time, enter into written amendments, supplements or
modifications hereto or thereto for the purpose of adding any provisions to the
Loan Documents or changing in any manner the rights of the Lenders or of such
parties thereunder, and with the consent of the Required Lenders, the Agent on
behalf of the Lenders may execute and deliver to the appropriate parties to the
Loan Documents a written instrument waiving, on such terms and conditions as the
Agent may specify in such instrument, any of the requirements of the Loan
Documents or any Default or Event of Default and its consequences; provided that
no such waiver and no such amendment, supplement or modification shall (a)
reduce the amount or extend the final maturity of any Note of any Lender, or
reduce the rate or extend the time of payment of interest thereon, or change the
amount or terms (including, without limitation, fees and commissions) of such
Lender's Commitment, in each case without the consent of the Lender affected
thereby, (b) amend the definition of "Termination Date" contained in subsection
1.1, without the written consent of all of the Lenders, (c) release all or
substantially all of the collateral provided for in any Collateral Document (or,
except as expressly permitted hereunder, permit any creditor to obtain a Lien on
such collateral), or terminate the Subsidiary Guarantee or release any
Subsidiary Guarantor from its obligations thereunder (except, to the extent that
any such Subsidiary Guarantor is sold, merged, dissolved or otherwise ceases to
be a Subsidiary of the Company, in each case as a result of a transaction which
is permitted hereunder, the Agent may release such Subsidiary Guarantor from the
Subsidiary Guarantee), or sell all of the capital stock of, or all or
substantially all of the assets of, any Restricted Subsidiary (except as
permitted hereunder), or amend, modify or waive any provision of this subsection
10.1 or change the definition of "Required Lenders" contained in subsection 1.1,
or consent to the
74
assignment or transfer by the Company or any Subsidiary Guarantor of any of its
rights and obligations under this Agreement and the other Loan Documents
(except, with respect to any Subsidiary Guarantor, to the extent such Subsidiary
Guarantor ceases to be a Subsidiary of the Company as a result of a transaction
which is permitted hereunder), in each case without the written consent of all
of the Lenders, or (d) amend, modify or waive any provision of Section 9 without
the written consent of the then Agent. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and shall
be binding upon the Company, the other parties to the Loan Documents, the
Lenders, the Agent and all future holders of the Notes. In the case of any
waiver, the Company, the other parties to the Loan Documents, the Lenders and
the Agent shall be restored to their former position and rights hereunder, under
the other Loan Documents and under the outstanding Notes, and any Default or
Event of Default waived shall be deemed to be cured and not continuing; but no
such waiver shall extend to any subsequent or other Default or Event of Default,
or impair any right consequent thereon. The Agent shall, as soon as practicable,
furnish a copy of each such amendment, supplement, modification or waiver to
each Lender.
10.2. Notices. Unless otherwise expressly provided herein, all
notices, consents, requests and demands to or upon the respective parties hereto
to be effective shall be in writing or by telecopy and shall be deemed to have
been duly given or made when delivered by hand, mail or courier, or, in the case
of telecopy notice, when sent (with machine or oral confirmation), addressed as
follows in the case of each of the Company and the Agent and as set forth in
Schedule I in the case of each of the other parties hereto, or to such address
or other address as may be hereafter notified by any of the respective parties
hereto or any future holders of the Notes:
The Company: First Brands Corporation
83 Wooster Heights Road
Danbury, Connecticut 06813-1911
Attention: Chief Financial Officer
Telecopy: (203) 731-2518
with a copy to:
First Brands Corporation
83 Wooster Heights Road
Danbury, Connecticut 06813-1911
Attention: Einar M. Rod
Telecopy: (203) 731-2518
The Agent: The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Attention: Edward McNulty
Telecopy: (212) 270-0330
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with a copy to: The Chase Manhattan Bank
Agent Bank Services
1 Chase Manhattan Plaza
New York, New York 10005
Attention: Sandra Miklave
Telecopy: (212) 552-5658
provided that any notice, request or demand to or upon the Agent, the Swing Line
Lender or Chase, as the case may be, pursuant to subsection 2.1, 2.2, 2.5, 2.6,
2.22 or 3.2 shall not be effective until received.
10.3. No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Agent or any Lender, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
10.4. Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the Notes.
10.5. Payment of Expenses and Taxes. The Company agrees (a) to
pay or reimburse the Agent for all its reasonable out-of-pocket costs and
expenses incurred in connection with the preparation, execution and delivery of,
and any amendment, supplement or modification to, the Loan Documents and any
other documents prepared in connection herewith, and the consummation of the
transactions contemplated hereby and thereby, including, without limitation, the
fees and disbursements of one counsel retained by the Agent, (b) to pay or
reimburse each Lender and the Agent for all their reasonable costs and expenses
incurred in connection with the enforcement or preservation of any rights under
the Loan Documents and any such other documents, including, without limitation,
fees and disbursements of counsel (which may be the reasonable invoiced
allocated costs and expenses of in-house legal counsel or staff determined in
good faith) to (i) the Agent and to the several Lenders, and (ii) upon the
reasonable determination by Lenders, whose Commitment Percentages aggregate more
than 66-2/3% of the Commitment Percentages of all Lenders other than the Agent
(in its capacity as Lender), that an actual or potential conflict of interest
may exist in the representation of such Lenders by the counsel referred to in
clause (i) above, one alternate counsel for the several Lenders, (c) to pay and
indemnify and hold harmless each Lender and the Agent from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp,
76
excise and other taxes, if any, which may be payable or determined to be payable
in connection with the execution and delivery of, or consummation of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, the Loan Documents and any such
other documents, and (d) to pay and indemnify and hold harmless each Lender and
the Agent (and their respective directors, officers, employees and agents) from
and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement
and performance of the Loan Documents and any such other documents or
preservation of rights thereunder or in any way relating to any Financing Leases
or New Sale-Leasebacks (all the foregoing, collectively, the "indemnified
liabilities"); provided that the Company shall have no obligation hereunder with
respect to indemnified liabilities arising from (i) the gross negligence or
wilful misconduct of the Agent or any such Lender, (ii) legal proceedings
commenced against the Agent or any such Lender by any security holder or
creditor thereof, arising out of and based upon rights afforded any such
security holder or creditor solely in its capacity as such, or (iii) legal
proceedings commenced against the Agent or any such Lender by any other Lender.
The agreements in this subsection shall survive repayment of the Notes and all
other amounts payable hereunder.
10.6. Successors and Assigns; Participations; Purchasing
Lenders. (a) This Agreement shall be binding upon and inure to the benefit of
the Company, the Lenders, the Agent, all future holders of the Notes and their
respective successors and assigns, except that the Company may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities which are not then Competitors or Affiliates of
Competitors of the Company ("Participants") participating interests in any Loan
owing to such Lender, any Note held by such Lender, the Commitment of such
Lender or any other interest of such Lender hereunder and under the other Loan
Documents. Each Lender shall promptly notify the Company of any such sale of a
participating interest to a Participant, provided that any failure to provide
such notice shall not affect the validity or enforceability of any such sale. In
the event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Note for all purposes under this Agreement and the other Loan
Documents, and the Company and the Agent shall continue to deal solely and
directly with such Lender in
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connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents. Each Participant shall agree in writing with the
selling Lender that such Participant shall comply with the confidentiality
provisions of subsection 10.8. Nothing herein shall be deemed to obligate the
Company to provide any financial or other information or documents to any
Participant. The Company agrees that if amounts outstanding under this Agreement
and the Notes are due or unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement and any Note to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under this Agreement or any Note, provided that such
Participant shall only be entitled to such right of setoff if it shall have
agreed in the agreement pursuant to which it shall have acquired its
participating interest to share with the Lenders the proceeds thereof as
provided in subsection 10.7. The Company also agrees that each Participant shall
be entitled to the benefits of subsections 2.10, 2.11, 2.15, 2.16, 2.18 and 10.5
with respect to its participation in the Commitments and the Loans outstanding
from time to time; provided, that no Participant shall be entitled to receive
any greater amount pursuant to such subsections than the transferor Lender would
have been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred. The participation agreement pursuant to which such Participant obtains
its participating interest may require the consent of the Participant to
amendments, waivers or modifications of the Loan Documents only to the extent
that any such amendment, waiver or modification would, pursuant to the proviso
to the first sentence of subsection 10.1, require the consent of the Lender
which sold such participating interest and the transferor Lender shall retain
the sole right to approve, without the consent of any Participant, all other
amendments, modifications or waivers.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to any
Lender and, with the consent of the Company and the Agent (which in each case
shall not be unreasonably withheld), to one or more additional banks or
financial institutions ("Assignees") all or any part of its rights and
obligations under this Agreement, the Notes, and the other Loan Documents, in
amounts to be no less than $10,000,000 (or, if less, the entire amount of such
Lender's Commitment) pursuant to an Assignment and Acceptance substantially in
the form of Exhibit L (an "Assignment and Acceptance") executed by such
Assignee, such transferor Lender and, if required, the Company and the Agent and
delivered to the Agent for its acceptance and recording in the Register. Upon
such execution, delivery, acceptance and recording, from and after the Transfer
Effective Date determined pursuant to and as defined in such
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Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder with a Commitment as set forth therein,
and (y) the transferor Lender thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of a transferor Lender's rights and obligations under this Agreement,
such transferor Lender shall cease to be a party hereto except as to subsections
2.10, 2.11, 2.15, 2.18 and 10.5). Such Assignment and Acceptance shall be deemed
to amend this Agreement to the extent, and only to the extent, necessary to
reflect the addition of such Assignee and the resulting adjustment, if any, of
Commitment Percentages arising from the purchase by such Assignee of all or a
portion of the rights and obligations of such transferor Lender under this
Agreement and the other Loan Documents. On or prior to the Transfer Effective
Date determined pursuant to and as defined in such Assignment and Acceptance,
the Company, at its own expense, shall execute and deliver to the Agent in
exchange for the surrendered Notes new Notes to the order of such Assignee in an
amount, in the case of Committed Rate Notes, equal to the Commitment assumed by
it pursuant to such Assignment and Acceptance and, if the transferor Lender has
retained a Commitment hereunder, new Notes to the order of the transferor Lender
in an amount, in the case of Committed Rate Notes, equal to the Commitment
retained by it hereunder. Such new Notes shall be dated the Effective Date and
shall otherwise be in the form of the Notes replaced thereby. The Notes
surrendered by the transferor Lender shall be returned by the Agent to the
Company marked "canceled".
(d) The Agent shall maintain at its address referred to in
subsection 10.2 a copy of each Assignment and Acceptance delivered to it and the
Register for the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Loans owing to, each Lender from time
to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Company, the Agent and the Lenders may treat each Person
whose name is recorded in the Register as the owner of the Loan recorded therein
for all purposes of this Agreement. The Register shall be available for
inspection by the Company or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by a transferor Lender and Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the Company and the Agent) together
with payment to the Agent of a registration and processing fee of $4,000, the
Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the
Transfer Effective Date determined pursuant thereto record the information
contained therein in the Register and give notice of such acceptance and
recordation to the Lenders and the Company.
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(f) The Company authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
permitted hereunder any and all financial information or other documents in such
Lender's possession concerning the Company and its affiliates which has been
delivered to such Lender by or on behalf of the Company pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Company in connection with such Lender's credit evaluation of the Company and
its affiliates prior to becoming a party to this Agreement; provided, that,
prior to any such disclosure, such Transferee or prospective Transferee shall
agree, in a signed writing in favor of the Company to comply with the
confidentiality requirements set forth in subsection 10.8 as if such Transferee
or prospective Transferee were a Lender hereunder.
(g) If, pursuant to this subsection, any interest in this
Agreement or any Note is transferred to any Assignee which is organized under
the laws of any jurisdiction other than the United States or any State thereof,
the transferor Lender shall cause such Assignee, concurrently with the
effectiveness of such transfer, to comply with subsection 2.11(b).
(h) Nothing herein shall prohibit any Lender from pledging or
assigning any Note to any Federal Reserve Bank in accordance with applicable
law.
10.7. Adjustments; Set-off. (a) If any Lender (a "benefitted
Lender") shall at any time receive any payment of all or part of any of its
Loans (or participations therein) or its interest in the reimbursement
obligations of the Company under the Letters of Credit, in each case which are
then due, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in paragraph (h) of Section 8, or
otherwise except pursuant to subsections 2.10(b) and 10.6) in a greater
proportion than any such payment to and collateral received by any other Lender,
if any, in respect of such other Lender's Loans (or participations therein, as
the case may be) or its interest in the reimbursement obligations of the Company
under the Letters of Credit, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders such portion of each such other
Lender's Loans (or participations therein, as the case may be) or its interest
in the reimbursement obligations of the Company under the Letters of Credit or
shall provide such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such benefitted Lender to
share the excess payment or benefits of such collateral or proceeds ratably with
each of the Lenders; provided that if all or any portion of such excess payment
or benefits is thereafter recovered from such benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest. The Company agrees that each Lender so
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purchasing a portion of another Lender's Loans (or participations therein, as
the case may be) or its interest in the reimbursement obligations of the Company
under the Letters of Credit, or interest thereon, may exercise all rights of
payment (including, without limitation, rights of set-off) with respect to such
portion as fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence of an Event of Default and acceleration of
the obligations owing in connection with this Agreement, each Lender shall have
the right, without prior notice to the Company, any such notice being expressly
waived to the extent permitted by applicable law, and without regard for any
collateral security held by or on behalf of such Lender, to set off and apply
against any indebtedness, whether matured or unmatured, of the Company to such
Lender, any amount owing from such Lender to the Company at, or at any time
after, the happening of any of the above mentioned events, and such right of
set-off may be exercised by such Lender against the Company or against any
trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver, custodian or execution, judgment or attachment creditor of
the Company, or against anyone else claiming through or against the Company or
such trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender prior to the making, filing or issuance, or service
upon such Lender of, or of notice of, any such petition, assignment for the
benefit of creditors, appointment or application for the appointment of a
receiver, or issuance of execution, subpoena, order or warrant. Each Lender
agrees promptly to notify the Company and the Agent after any such set-off and
application made by such Lender; provided that the failure to give such notice
shall not affect the validity of such set-off and application.
10.8. Confidentiality. Each Lender agrees to take normal and
reasonable precautions and exercise due care to maintain the confidentiality of
all information provided to it by the Company in connection with this Agreement
(other than information which is a matter of general public knowledge or which
has heretofore been or is hereafter published for public distribution or filed
as public information with any governmental or bank regulatory authority other
than as a result of a breach of this covenant); provided that any Lender may
disclose such information (a) at the request of any bank regulatory authority or
in connection with an examination of such Lender by any such authority, (b)
pursuant to subpoena or other court process, (c) when required to do so in
accordance with the provisions of any applicable law, (d) at the direction of
any other agency of any State of the United States or of any other jurisdiction
in which such Lender conducts its business, (e) to such Lender's independent
auditors and other professional advisors or (f)
81
subject to 10.6(f), to any Transferee or potential Transferee of such Lender.
10.9. Further Assurances. The Company agrees that at any time
and from time to time upon the written request of the Agent, the Company will,
and will cause its Subsidiaries to, execute and deliver such further documents
and do such further acts and things as the Agent may reasonably request in order
to effect the purposes of this Agreement and the other Loan Documents.
10.10. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.11. Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with each of the Company and the Agent.
10.12. GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
10.13. Submission to Jurisdiction. The Company hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement (and the other Loan Documents to
which it is a party), or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction
of the courts of the State of New York, the courts of the United States
of America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any such substantially similar form of mail),
postage prepaid to the Company at its
82
address set forth in subsection 10.2 or at such other address of which
the Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or
consequential damages.
10.14. Acknowledgements. The Company hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the Notes and the other
Loan Documents;
(b) neither the Agent nor any Lender has any fiduciary
relationship to the Company, and the relationship between Agent and
Lenders, on one hand, and Company, on the other hand, is solely that of
debtor and creditor; and
(c) no joint venture exists among the Lenders or among the
Company and the Lenders.
10.15. WAIVER OF JURY TRIAL. THE PARTIES HERETO EACH HEREBY
WAIVE ANY RIGHT TO A TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW IN ANY ACTION
OR PROCEEDING ARISING OUT OF THIS AGREEMENT, THE NOTES OR ANY OTHER LOAN
DOCUMENT, AND FOR ANY COUNTERCLAIM THEREIN.
10.16. Integration. This Agreement including, without
limitation, the agreements referred to in subsection 2.9, represents the entire
agreement of each of the parties hereto with respect to the subject matter
hereof and there are no promises or representations by the Agent or any Lender
relative to the subject matter hereof not stated or referred to herein.
83
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
FIRST BRANDS CORPORATION
By /s/ DONALD DeSANTIS
---------------------------------------
Title: Senior Vice President
THE CHASE MANHATTAN BANK, as
Agent and as a Lender
By: /s/ PETER C. ECKSTEIN
---------------------------------------
Title: Vice President
THE BANK OF NEW YORK
By: /s/ KENNETH SNEIDER
---------------------------------------
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ JAMES RODIER
---------------------------------------
Title: Managing Director
By: /s/ CHRIS HORGAN
---------------------------------------
Title: Associate
LTCB TRUST COMPANY
By: /s/ GREGORY HONG
---------------------------------------
Title: Senior Vice President
MELLON BANK, N.A.
By: /s/ JOSEPH F. BOND
---------------------------------------
Title: Vice President
NATIONSBANK, N.A.
By: /s/ EILEEN C. HIGGINS
---------------------------------------
Title: Vice President
84
PNC BANK, NATIONAL ASSOCIATION
By: /s/ SARAH McCLINTOCK
---------------------------------------
Title: Vice President
ROYAL BANK OF CANADA
By: /s/ SHERYL L. GREENBERG
---------------------------------------
Title: Manager
TORONTO DOMINION (NEW YORK), INC.
By: /s/ DEBBIE A. GREENE
---------------------------------------
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ RON HURST
---------------------------------------
Title: Vice President
FLEET NATIONAL BANK
By: /s/ BARBARA AGOSTINI
---------------------------------------
Title: Assistant Vice President
FIRST UNION NATIONAL BANK
By: /s/ ROBERT H. WATERS, JR.
---------------------------------------
Title: Senior Vice President
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By: /s/ DEBORAH A. BROADHEIM
---------------------------------------
Title: Vice President
1
SCHEDULE I
Commitments, Commitment Percentages and Lending Offices
Commitment
Bank and Lending Office Percentage Commitment
- ----------------------- ---------- ----------
THE CHASE MANHATTAN BANK 8.67% $26,000,000
270 Park Avenue
New York, New York 10017
Attention: Edward McNulty
Telecopy: (212) 270-0330
Telephone: (212) 270-4812
THE BANK OF NEW YORK 8.00% $24,000,000
One Wall Street
New York, New York 10286
Attention: Kenneth Sneider, Jr
Telecopy: (212) 635-6999
Telephone: (212) 635-6863
CREDIT SUISSE FIRST BOSTON 8.00% $24,000,000
11 Madison Avenue
New York, New York 10010
Attention: Chris Horgan
Telecopy: (212) 325-8309
Telephone: (212) 325-9157
LTCB TRUST COMPANY 8.00% $24,000,000
165 Broadway, 49th Floor
New York, New York 10006
Attention: Gregory Hong
Telecopy: (212) 608-2371
Telephone: (212) 335-4534
NATIONSBANK, N.A 8.00% $24,000,000
101 North Tryon Street, 15th Floor
Charlotte, North Carolina 28255
with a copy to:
NATIONSBANK, N.A
767 Fifth Avenue
New York, New York 10153-0083
Attention: Eileen Higgins
Telecopy: (212) 751-6909
Telephone: (212) 407-5337
2
PNC BANK, NATIONAL ASSOCIATION 8.00% $24,000,000
335 Madison Avenue
10th Floor
New York, New York 10017
Attention: Sarah McClintock
Telecopy: (212) 409-3737
Telephone: (212) 409-3726
ROYAL BANK OF CANADA 8.00% $24,000,000
Grand Cayman (North America
No. 1) Branch
c/o New York Branch
Financial Square
New York, New York 10005-3531
Attention: David Barsalav
Telecopy: (212) 428-6459
Telephone: (212) 428-6418
with a copy to:
ROYAL BANK OF CANADA
Financial Square, 24th Floor
New York, New York 10005-3531
Attention: Sheryl Greenberg
Telecopy: (212) 428-6459
Telephone: (212) 428-6476
TORONTO DOMINION (NEW YORK), INC. 8.00% $24,000,000
909 Fannin Street, 17th Floor
Houston, Texas 77010
with a copy to:
TORONTO DOMINION (NEW YORK), INC.
31 West 52nd Street
New York, New York 10019
Attention: Robert Harris/Nancy Sheridan
Telecopy: (212) 262-1926
Telephone: (212) 468-0585
CREDIT LYONNAIS 8.00% $24,000,000
1301 Avenue of the Americas
New York, New York 10019
Attention: Rod Hurst
Telecopy: (212) 459-3179
Telephone: (212) 261-7362
FLEET NATIONAL BANK 8.00% $24,000,000
One Landmark Square, 12th Floor
Stamford, Connecticut 06904
Attention: Barbara Agostini
Telecopy: (203) 358-6111
Telephone: (203) 358-6195
3
FIRST UNION NATIONAL BANK 8.00% $ 24,000,000
550 Broad Street, 15th Floor
Newark, New Jersey 07102
Attention: Mark Smith
Telecopy: (201) 565-6681
Telephone: (201) 565-6465
MORGAN GUARANTY TRUST COMPANY 8.00% $ 24,000,000
OF NEW YORK
60 Wall Street
22nd Floor
New York, NY 10260
Attention: Deborah Broadheim
Telecopy: (212) 648-5021
Telephone: (212) 648-8063
MELLON BANK, N.A 3.33% $ 10,000,000
1 MBC
Pittsburgh, Pennsylvania 15258
with a copy to:
MELLON BANK, N.A
65 East 55th Street
New York, New York 10022-3219
Attention: Joseph Bond
Telecopy: (212) 702-5269
Telephone: (212) 702-4017
TOTAL: 100.00% $300,000,000
EXHIBIT A
FORM OF COMMITTED RATE NOTE
$__________ New York, New York
February __, 1997
FOR VALUE RECEIVED, the undersigned, FIRST BRANDS CORPORATION,
a Delaware corporation (the "Company"), hereby unconditionally promises to pay
on the Termination Date to the order of (the "Lender") at the office of The
Chase Manhattan Bank located at 270 Park Avenue, New York, New York 10017 in
lawful money of the United States of America and in immediately available funds,
the principal amount of the lesser of (a) DOLLARS ($ ) and (b) the aggregate
unpaid principal amount of all Committed Rate Loans made by the Lender to the
undersigned pursuant to subsection 2.1 of the Credit Agreement referred to
below.
The undersigned further agrees to pay interest in like money
at such office on the unpaid principal amount hereof from time to time from the
date hereof at the rates per annum set forth in subsection 2.7 of the Credit
Agreement referred to below until any such amount shall become due and payable
(whether at the stated maturity, by acceleration or otherwise), and thereafter
on such overdue amount at the rate per annum set forth in subsection 2.7(d) of
the Credit Agreement until paid in full (as well after as before judgment).
Interest shall be payable in arrears on each Interest Payment Date, commencing
on the first such date to occur after the date hereof, at maturity and upon
payment (including prepayment) of the unpaid principal amount hereof to the
extent provided in the Credit Agreement, provided that interest payable pursuant
to subsection 2.7(d) of the Credit Agreement shall be payable on demand.
The holder of this Note is authorized to record the date, Type
and amount of each Committed Rate Loan made pursuant to subsection 2.1 of the
Credit Agreement, the date and amount of each payment or prepayment of principal
with respect thereto, the Eurodollar Rate or the C/D Rate, the length of each
Interest Period with respect to the portion of such Committed Rate Loan made
and/or maintained as either a Eurodollar Loan or a C/D Rate Loan, as the case
may be, and each conversion or continuation made pursuant to subsection 2.17 of
the Credit Agreement, on the schedules annexed hereto and made a part hereof,
which recordation shall constitute prima facie evidence of the accuracy of the
information so recorded; provided that failure by such holder to make any such
recordation (or any error in such recordation) on this Note shall not affect the
obligations of the Company under this Note or under the Credit Agreement.
2
This Note is one of the Committed Rate Notes referred to in
the Amended and Restated Credit Agreement, dated as of February __, 1997 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Company, the Lender, the other lenders parties thereto,
and The Chase Manhattan Bank, as Agent, and is subject to optional and mandatory
prepayment in whole or in part as provided therein. Terms used herein which are
defined in the Credit Agreement shall have such defined meanings unless
otherwise defined herein or unless the context otherwise requires.
Payment and performance of this Note is guaranteed as set
forth in the Subsidiary Guarantee. The Company agrees to pay all costs and
expenses incurred by the Lender in connection with the enforcement of its rights
and remedies under the Credit Agreement, this Note and the Subsidiary Guarantee.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Note shall become, or may be declared to be, immediately due and payable,
all as provided therein.
THIS COMMITTED RATE NOTE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
FIRST BRANDS CORPORATION
By:
--------------------------------------
Title:
SCHEDULE A to
Committed Rate Note
LOANS, CONVERSIONS AND
PAYMENTS OF EURODOLLAR LOANS
Interest
Amount of Period Amount of
Amount of C/D Rate and Amount of Eurodollar
ABR Loans Loans Maturity Eurodollar Loans
Converted Converted Date Loans Converted Amount
into into With Converted into of Notation
Amount Eurodollar Eruodollar Respect Interest into C/D Principal Made
Date of Loan Loans Loans Thereto Rate ABR Loans Rate Loans Repaid By
- ------ ------- ---------- ---------- -------- -------- --------- ---------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
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- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
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- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
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- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
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- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
SCHEDULE B to
Committed Rate Note
LOANS, CONVERSIONS AND
PAYMENTS OF C/D RATE LOANS
Interest
Period Amount of
Amount of Amount of and Amount of C/D Rate
ABR Eurodollar Maturity C/D Rate Loans
Loans Loans Date Loans Converted Amount
Converted Converted With Converted into of Notation
Amount into C/D into C/D Respect Interest into Eurodollar Principal Made
Date of Loan Rate Loans Rate Loans Thereto Rate ABR Loans Rate Loans Repaid By
- ------ ------- ---------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
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- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
- ------ ------- ----------- ---------- -------- -------- ---------- ----------- --------- --------
SCHEDULE C to
Committed Rate Note
LOANS, CONVERSIONS AND
PAYMENTS OF ABR LOANS
Amount of Amount of Amount of Amount of
Eurodollar C/D Rate ABR ABR
Loans Loans Loans Loans Amount
Converted Converted Converted Converted of Notation
Amount into into into Euro- into C/D Principal Made
Date of Loan ABR Loans ABR Loans dollar Loans Rate Loans Repaid By
- ------ ------- ----------- ---------- ------------ ---------- --------- --------
- ------ ------- ----------- ---------- ------------ ---------- --------- --------
- ------ ------- ----------- ---------- ------------ ---------- --------- --------
- ------ ------- ----------- ---------- ------------ ---------- --------- --------
- ------ ------- ----------- ---------- ------------ ---------- --------- --------
- ------ ------- ----------- ---------- ------------ ---------- --------- --------
- ------ ------- ----------- ---------- ------------ ---------- --------- --------
- ------ ------- ----------- ---------- ------------ ---------- --------- --------
- ------ ------- ----------- ---------- ------------ ---------- --------- --------
- ------ ------- ----------- ---------- ------------ ---------- --------- --------
- ------ ------- ----------- ---------- ------------ ---------- --------- --------
- ------ ------- ----------- ---------- ------------ ---------- --------- --------
- ------ ------- ----------- ---------- ------------ ---------- --------- --------
- ------ ------- ----------- ---------- ------------ ---------- --------- --------
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- ------ ------- ----------- ---------- ------------ ---------- --------- --------
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- ------ ------- ----------- ---------- ------------ ---------- --------- --------
EXHIBIT B
[FORM OF BID LOAN NOTE]
PROMISSORY NOTE
$300,000,000 New York, New York
February __, 199_
FOR VALUE RECEIVED, the undersigned, FIRST BRANDS CORPORATION,
a Delaware corporation (the "Company"), hereby unconditionally promises to pay
to the order of (the "Lender") at the office of
The Chase Manhattan Bank located at 270 Park Avenue, New York, New York 10017,
in lawful money of the United States of America and in immediately
available funds, the principal amount of (a) THREE HUNDRED MILLION DOLLARS
($300,000,000), or, if less, (b) the aggregate unpaid principal amount of all
Bid Loans made by the Lender to the Company pursuant to subsection 2.2
of the Credit Agreement referred to below. The principal amount of each Bid
Loan evidenced hereby shall be payable on the maturity date
therefor set forth on the schedule annexed hereto and made a part
hereof or on a continuation thereof which shall be attached hereto and made a
part hereof (the "Grid"). The Company further agrees to pay interest in like
money at such office on the unpaid principal amount of each Bid Loan evidenced
hereby, at the rate per annum set forth in respect of such Bid Loan on the Grid,
calculated on the basis of a year of 360 days and actual days elapsed from the
date of such Bid Loan until the due date thereof (whether at the stated
maturity, by acceleration or otherwise) and thereafter at the rates determined
in accordance with subsection 2.2(e) of the Credit Agreement. Interest on each
Bid Loan evidenced hereby shall be payable on the date or dates set forth in
respect of such Bid Loan on the Grid. Bid Loans evidenced by this Note may not
be prepaid.
The holder of this Note is authorized to endorse on the Grid the date,
amount, interest rate, and maturity date in respect of each Bid Loan made
pursuant to subsection 2.2 of the Credit Agreement and each payment of principal
with respect thereto, which endorsement shall constitute prima facie evidence of
the accuracy of the information endorsed; provided, however, that the failure to
make any such endorsement (or any error in such recordation) shall not affect
the obligations of the Company under this Note or under the Credit Agreement.
This Note is one of the Bid Loan Notes referred to in the Amended and
Restated Credit Agreement, dated as of February __, 1997 (as amended,
supplemented or otherwise modified from time to
2
time, the "Credit Agreement"), among the Company, the Lender, the other lenders
parties thereto, and The Chase Manhattan Bank, as Agent, and is entitled to the
benefits thereof.
Payment and performance of this Note is guaranteed as set
forth in the Subsidiary Guarantee. The Company agrees to pay all costs and
expenses incurred by the Lender in connection with the enforcement of its rights
and remedies under the Credit Agreement, this Note and the Subsidiary Guarantee.
Upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable, all as
provided therein.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Terms defined in the Credit Agreement are used herein with their
defined meanings unless otherwise defined herein.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
FIRST BRANDS CORPORATION
By
---------------------------------------
Title:
SCHEDULE OF BID LOANS
Date Amount Amount of
of of Interest Maturity Payment Principal Authori-
Loan Loan Rate Date Date Payment zation
- ---- ------ -------- -------- ------- --------- --------
- ---- ------ -------- -------- ------- --------- --------
- ---- ------ -------- -------- ------- --------- --------
- ---- ------ -------- -------- ------- --------- --------
- ---- ------ -------- -------- ------- --------- --------
- ---- ------ -------- -------- ------- --------- --------
- ---- ------ -------- -------- ------- --------- --------
- ---- ------ -------- -------- ------- --------- --------
- ---- ------ -------- -------- ------- --------- --------
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- ---- ------ -------- -------- ------- --------- --------
EXHIBIT C
[FORM OF SWING LINE NOTE]
New York, New York
$25,000,000 February __, 199_
FOR VALUE RECEIVED, the undersigned, FIRST BRANDS CORPORATION,
a Delaware corporation (the "Company"), hereby unconditionally promises to pay
to the order of THE CHASE MANHATTAN BANK (the "Swing Line Lender") on the
Termination Date, as defined in the Credit Agreement (as defined below), at its
offices located at 270 Park Avenue, New York, New York 10017, in lawful money of
the United States of America and in immediately available funds, the lesser of
(a) TWENTY-FIVE MILLION DOLLARS ($25,000,000) and (b) the aggregate unpaid
principal amount of all Swing Line Loans made by the Swing Line Lender to the
Company pursuant to subsection 2.20 of the Credit Agreement referred to below.
The Company further agrees to pay interest in like money at said office on the
unpaid principal amount hereof from time to time and, to the extent permitted by
law, accrued and unpaid interest in respect hereof until payment in full of the
principal amount hereof and accrued interest hereon at the rate per annum and on
the dates specified in the Credit Agreement until paid in full (after as well as
before judgment). The holder of this Note is authorized to record the date and
the amount of each Swing Line Loan made by the Swing Line Lender pursuant to
subsection 2.20 of the Credit Agreement and the date and amount of each payment
or prepayment of the principal hereof on Schedule I annexed hereto and made a
part hereof and any such recordation shall constitute prima facie evidence of
the accuracy of the information so recorded, provided, that the failure to make
any such recordation (or any error in such recordation) shall not affect the
obligations of the Company hereunder or under the Credit Agreement.
This Note is the Swing Line Note referred to in the Amended
and Restated Credit Agreement, dated as of February __, 1997, among the Company,
the Swing Line Lender, the other banks and financial institutions parties
thereto from time to time and The Chase Manhattan Bank, as agent for said banks
and financial institutions (as the same may from time to time be amended,
modified or supplemented, the "Credit Agreement"; terms defined therein being
used herein as so defined), is entitled to the benefits thereof and may be
prepaid in whole or in part as provided therein.
Payment and performance of this Note is guaranteed as set
forth in the Subsidiary Guarantee. The Company agrees to pay all costs and
expenses incurred by the Swing Line Lender in
2
connection with the enforcement of its rights and remedies under the Credit
Agreement, this Note and the Subsidiary Guarantee.
If any payment on this Note becomes due and payable on a day
other than a Business Day, such payment shall be extended to the next succeeding
Business Day, and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Note shall become, or may be declared to be, immediately due and payable as
provided therein.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
FIRST BRANDS CORPORATION
By:
--------------------------------------
Title:
Schedule I to
Swing Line Note
LOANS AND REPAYMENTS
Unpaid
Amount of Amount of Principal
Swing Line Swing Line Balance of
Loans Loans Swing Line Notation
Date Made Repaid Loans Made By
- --------- ---------- ----------- ---------- ----------
- --------- ---------- ----------- ---------- ----------
- --------- ---------- ----------- ---------- ----------
- --------- ---------- ----------- ---------- ----------
- --------- ---------- ----------- ---------- ----------
- --------- ---------- ----------- ---------- ----------
- --------- ---------- ----------- ---------- ----------
- --------- ---------- ----------- ---------- ----------
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EXHIBIT D
[FORM OF BID LOAN CONFIRMATION]
____________, 19__
The Chase Manhattan Bank, as Agent
270 Park Avenue
New York, New York 10017
Dear Sirs:
Reference is made to the Amended and Restated Credit
Agreement, dated as of February __, 1997, among the undersigned, the Lenders
from time to time parties thereto, and The Chase Manhattan Bank, as Agent (as
the same may be amended, supplemented or otherwise modified, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein as therein
defined.
In accordance with subsection 2.2(b)(iv)(B) of the Credit
Agreement, the undersigned accepts and confirms the offers by the Bid Loan
Lender(s) to make Bid Loans to the undersigned on ________, 19__ [Bid Loan Date]
under [clause (ii)] [clause (iii)] of said subsection 2.2(b) in the (respective)
amount(s) set forth on the attached list of Bid Loans offered.
Very truly yours,
FIRST BRANDS CORPORATION
By:
--------------------------------------
Title:
[Company to attach Bid Loan offer list prepared by Agent with
accepted amount entered by the Company to right of each Bid Loan offer].
EXHIBIT E
[FORM OF BID LOAN OFFER]
____________, 19__
The Chase Manhattan Bank, as Agent
270 Park Avenue
New York, New York 10017
Dear Sirs:
Reference is made to the Amended and Restated Credit
Agreement, dated as of February __, 1997, among First Brands Corporation, a
Delaware corporation, the Lenders from time to time parties thereto, and The
Chase Manhattan Bank, as Agent (as the same may be amended, supplemented or
otherwise modified, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein as therein defined.
In accordance with [clause (ii)] [clause (iii)] of subsection
2.2(b) of the Credit Agreement, the undersigned Lender offers to make Bid Loans
thereunder in the following amounts with the following maturity dates:
Bid Loan Request Dated _________, 19__ Type of Bid Loan Requested:
Bid Loan Date: ___________, 19__ ____________________________
Aggregate Maximum Amount (All Maturity Dates): $_______________________
Maturity Date 1 : Maturity Date 2 : Maturity Date 3 :
- --------------- --- --------------- --- --------------- ---
Maximum Amount $ Maximum Amount $ Maximum Amount $
--- --- ---
Rate * Amount $ Rate * Amount $ Rate * Amount $
- --- - --- - ---
Rate * Amount $ Rate * Amount $ Rate * Amount $
- --- - --- - ---
The undersigned Lender [will][will not] accept an allocation
of the Bid Loans solicited pursuant to the Company's Bid Loan Request, dated ,
19 , which would make the undersigned's Bid Loan less than $5,000,000.
Very truly yours,
[NAME OF BIDDING LENDER]
By:
--------------------------------------
Name:
Title:
Telephone No.:
Fax No.:
- -------------------------
2
* In the case of Index Rate Bid Loans, insert margin bid. In the case of
Absolute Rate Bid Loans, insert fixed rate bid.
EXHIBIT F
[FORM OF BID LOAN REQUEST]
__________ 199__
The Chase Manhattan Bank, as Agent
270 Park Avenue
New York, New York 10017
Dear Sirs:
Reference is made to the Amended and Restated Credit Agreement,
dated as of February __, 1997, among the undersigned, the Lenders from time to
time parties thereto, and The Chase Manhattan Bank, as Agent for such Lenders
(as the same may from time to time be amended, supplemented or otherwise
modified, the "Credit Agreement"). Terms defined in the Credit Agreement are
used herein as therein defined.
This is an [Index Rate] [Absolute Rate] Bid Loan Request pursuant
to subsection 2.2(b)[(ii)][(iii)] of the Credit Agreement requesting quotes for
the following Bid Loans:
Aggregate Principal Amount $ $ $
------- ------- -------
------- ------- -------
Bid Loan Date
_____________
Note: Pursuant to the Credit Agreement, a Bid Loan Request may be
transmitted in writing, by telex or by facsimile transmission, or
by telephone, immediately confirmed by telex or facsimile
transmission. In any case, a Bid Loan Request shall contain the
information specified in the second paragraph of this form.
2
[Interest Period]* _______ _______ _______
Maturity Date** _______ _______ _______
Interest Payment Dates _______ _______ _______
Very truly yours,
FIRST BRANDS CORPORATION
By:_____________________
Title:
- --------
* Insert only in an Index Rate Bid Request.
** In an Index Rate Bid Request, insert last day of Interest Period.
EXHIBIT G
FORM OF SUBSIDIARY GUARANTEE CONSENT
Reference is made to the (i) Credit Agreement, dated as of
February 3, 1995 (the "Existing Credit Agreement"), among First Brands
Corporation, a Delaware corporation (the "Company"), the several banks and
financial institutions parties thereto and Chemical Bank, a New York banking
corporation, as agent; (ii) the Subsidiary Guarantee, dated as of February 3,
1995 (the "Subsidiary Guarantee"), made by the parties signatory thereto (the
"Guarantors"), in favor of the Agent and (iii) the Amended and Restated Credit
Agreement, dated as of February __, 1997 (the "Amended and Restated Credit
Agreement"), among the Company, the several banks and other financial
institutions parties thereto (the "Lenders") and The Chase Manhattan Bank, a New
York banking corporation (formerly Chemical Bank), as agent (the "Agent"). All
capitalized terms used herein that are not otherwise defined herein shall have
the respective meanings ascribed thereto in the Existing Credit Agreement, the
Subsidiary Guarantee or the Amended and Restated Credit Agreement, as the
context may require.
In connection with the execution of the Amended and Restated
Credit Agreement, each of the undersigned Guarantors under the Subsidiary
Guarantee hereby acknowledges receipt thereof and hereby (i) affirms its
obligations under each Loan Document to which it is a party, and affirms and
agrees that each such Loan Document is and shall remain in full force and
effect, in each case upon and after giving effect to the Amended and Restated
Credit Agreement and (ii) represents and warrants to the Lenders that all
representations and warranties made by it under each Loan Document to which it
is a party are true and correct as if made on the date hereof, in each case upon
and after giving effect to the Amended and Restated Credit Agreement and to the
affirmations and agreements set forth herein.
Each of the undersigned Guarantors further agrees that (i)
each reference in each Loan Document to the "Credit Agreement" shall hereafter
include reference to the Amended and Restated Credit Agreement, (ii) each
guarantee, and other obligation and agreement made, granted, undertaken or
agreed to by it in respect of or by reference to the "Credit Agreement", any
term defined therein or any obligations thereunder shall be deemed to have been,
and hereby is, made, granted, undertaken and agreed to, as the case may be, in
respect of the Amended and Restated Credit Agreement, the terms defined therein
and the obligations thereunder, as applicable, and (iii) each Loan Document is
hereby affirmed, amended and restated to the extent necessary to effectuate the
foregoing.
2
Dated as of: February __, 1997
PAULSBORO PACKAGING, INC.
By:____________________________________
Title:
FIRST BRANDS PROPERTIES INC.
By:____________________________________
Title:
FIRST BRANDS ACQUISITIONS INC.
By:____________________________________
Title:
A&M PRODUCTS INC.
By:____________________________________
Title:
HIMOLENE INCORPORATED
By:____________________________________
Title:
3
FOREST TECHNOLOGIES, INC.
By:____________________________________
Title:
EXHIBIT H
[FORM OF SWING LINE LOAN PARTICIPATION CERTIFICATE]
__________________ __, 19__
[Name of Bank]
________________
________________
________________
Dear Sirs:
Pursuant to subsection 2.23(c) of the Amended and Restated
Credit Agreement, dated as of February __, 1997 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"; unless otherwise
defined herein, terms defined in the Credit Agreement are used herein as therein
defined), among First Brands Corporation, a Delaware corporation, the several
lenders from time to time parties thereto (the "Lenders") and The Chase
Manhattan Bank, a New York banking corporation, as agent for the Lenders
thereunder (in such capacity, the "Agent"), the undersigned, as the Swing Line
Lender under the Credit Agreement, hereby acknowledges receipt from you on the
date hereof of __________________ DOLLARS ($______) as
2
payment for an undivided participating interest in the following
Swing Line Loan:
Date of Swing Line Loan: __________________
Principal Amount of Swing Line Loan
Participating Interest: $_________________
Very truly yours,
THE CHASE MANHATTAN BANK
By:_____________________
Title:
EXHIBIT I
CASH COLLATERAL AGREEMENT
CASH COLLATERAL AGREEMENT, dated as of February __, 1997 (as
the same may from time to time be amended, supplemented or otherwise modified,
the "Agreement"), made by FIRST BRANDS CORPORATION, a Delaware corporation (the
"Company"), in favor of The Chase Manhattan Bank, as agent for the Lenders (the
"Agent").
W I T N E S S E T H :
WHEREAS, the Company, the lenders parties thereto (the
"Lenders") and the Agent are parties to an Amended and Restated Credit
Agreement, dated as of February __, 1997 (as the same may from time to time be
amended, supplemented or otherwise modified, the "Credit Agreement"; unless
otherwise defined herein, terms defined in the Credit Agreement are used herein
with such defined meanings); and
WHEREAS, the Company may from time to time, prior to the
Termination Date request Bid Loans, and the Lenders may make Bid Loans all in
accordance with the terms of the Credit Agreement; and
WHEREAS, The Chase Manhattan Bank ("Chase") may from time to
time issue Letters of Credit for the account of the Company during the
Commitment Period, and the Lenders agree to take undivided participating
interests in such Letters of Credit, all in accordance with the terms and
conditions of the Credit Agreement; and
WHEREAS, pursuant to subsection 2.6(b) and (c) of the Credit
Agreement, if at any time the Aggregate Outstandings shall exceed the
Commitments, the Company is required under the Credit Agreement, if no Committed
Rate Loans or Swing Line Loans are outstanding, to cash collateralize the
Letters of Credit and the Bid Loans in an amount equal to such excess, and the
Company may in lieu of making a prepayment under subsection 2.6(b) of the Credit
Agreement which would result in material obligations of the Company under
subsection 2.16 of the Credit Agreement deposit cash collateral in the amount of
such prepayment, in each case in accordance with a cash collateral agreement
substantially on the terms hereof; and
WHEREAS, pursuant to Section 8 of the Credit Agreement, if, at
the time the Commitments are terminated and the Loans and other amounts owing
under the Credit Agreement become immediately due and payable, there exist
Letters of Credit which have not
2
expired or with respect to which presentment for honor has not occurred, the
Company shall deposit in the cash collateral account established pursuant to
this Agreement an amount equal to the aggregate undrawn amount of such Letters
of Credit; and
WHEREAS, it is a condition precedent to the obligations of the
Agent and the Lenders under the Credit Agreement that the Company shall have
executed and delivered this Agreement;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto agree as follows:
ARTICLE I
1.1 Security Deposit Account. (a) The Agent has established an
interest-bearing demand deposit account numbered 323-293034 and entitled
"CHASE/FIRST BRANDS CORPORATION - Cash Collateral Account" (the "Account" or the
"Cash Collateral Account"). If at any time (i) pursuant to subsection 2.6(b) of
the Credit Agreement, the Company is required to cash collateralize the Bid
Loans and/or the Letters of Credit, or pursuant to subsection 2.6(c) the Company
has determined to deposit cash collateral in lieu of making a prepayment
pursuant to subsection 2.6(b) of the Credit Agreement, then the Company will
deposit in the Account in cash such amount, if any, as is necessary to cause the
amount of cash and securities (valued at the then fair market value determined
by the Agent) then on deposit in the Account to be no less than the excess, if
any, of the Aggregate Outstandings over the Commitments at such time (the amount
of any such excess, the "Collateralized Amount"), and (ii) pursuant to the
penultimate sentence of Section 8 of the Credit Agreement, the Company is
required to make a deposit in the Account, the Company shall immediately deposit
in cash the amount specified in such sentence into the Account. All moneys and
securities in the Account shall constitute collateral security for the payment
by the Company of the outstanding Bid Loans and the reimbursement obligations of
the Company with respect to the Letters of Credit and Committed Rate Loans in
respect of which the Company has determined to deposit cash collateral in lieu
of making any prepayments, and shall at all times be subject to the exclusive
domain and control of the Agent. Moneys and securities in the Cash Collateral
Account may be withdrawn therefrom only as specifically provided in this
Agreement.
(b) All moneys and securities at any time deposited in the
Cash Collateral Account, whether by the Company or by any other Person, and all
interest or other income earned with respect thereto, are herein called the
"Pledged Deposits".
(c) The Company hereby assigns, delivers, pledges and conveys
to the Agent, and grants to the Agent a security interest in, the Pledged
Deposits as collateral security for the prompt and unconditional payment in full
of the Bid Loans and the
3
reimbursement obligations of the Company with respect to the Letters of Credit
and Committed Rate Loans in respect of which the Company has determined to
deposit cash collateral in lieu of making any prepayments, as described in
subsection 1.1(a) hereof.
(d) The Company shall not have any rights or powers with
respect to the Pledged Deposits or any part thereof, except (i) as provided in
subsection 2.1 hereof and (ii) the right to have the Pledged Deposits applied to
the payment of the Bid Notes and the reimbursement obligations and Cash
Collateralized Prepayments (as defined below) of the Company with respect to the
Letters of Credit, in accordance with the provisions of subsection 1.2 hereof.
(e) If at any time the amount of the Pledged Deposits
deposited in the Account pursuant to subsection 1.1(a)(i) hereof exceeds the
Collateralized Amount, the Agent will release an amount of the Pledged Deposits
equal to such excess.
1.2 Application of Pledged Deposits. (a) The Pledged Deposits
shall be accumulated in the Cash Collateral Account and held therein until
released pursuant to subsection 1.1(e) hereof or applied in accordance with this
subsection 1.2.
(b) (i) Upon the maturity of any outstanding Bid Loan (whether
at the stated maturity, by acceleration, or otherwise), the Agent shall withdraw
from the Cash Collateral Account Pledged Deposits in an amount equal to the
unpaid principal amount of such Bid Loan or if less the amount of the Pledged
Deposits, and apply such Pledged Deposits to the payment of such principal.
(ii) At any time at which there shall exist any reimbursement
obligation which is then due and payable as a result of a drawing under a Letter
of Credit, the Agent shall withdraw from the Cash Collateral Account Pledged
Deposits in an amount equal to such reimbursement obligation, or, if less, the
amount of the Pledged Deposits, and apply such Pledged Deposits to the payment
of such reimbursement obligations thereon.
(iii) Upon the first day on which any portion of any Loan
which, but for the application of subsection 2.6(c) of the Credit Agreement,
would have been prepaid pursuant to subsection 2.6(b) thereof (a "Cash
Collateralized Prepayment"), may be paid or prepaid without the costs to the
Lenders referred to in subsection 2.16 thereof, the Agent shall withdraw from
the Cash Collateral Account Pledged Deposits in an amount equal to the amount of
such Cash Collateralized Prepayment or if less the amount of the Pledged
Deposits, and apply such Pledged Deposits to the payment of such Cash
Collateralized Prepayment.
(iv) After payment in full of all principal amount of the Bid
Loans and reimbursement obligations under Letters of Credit pursuant to clauses
(i) and (ii) of this paragraph (b), the Agent shall withdraw from the Cash
Collateral Account Pledged
4
Deposits in an amount equal to the accrued and unpaid interest on such Bid Loans
and reimbursement obligations and apply such Pledged Deposits pro rata thereto.
ARTICLE II
2.1 Investment. (a) Funds held by the Agent in the
Cash Collateral Account shall not be invested or reinvested except as provided
in the following paragraph (b).
(b) Unless an Event of Default shall have occurred and be
continuing, collected funds on deposit in the Cash Collateral Account may be
invested or reinvested, in accordance with the written instructions of the
Company, in Cash Equivalents.
(c) The Agent shall sell all or any designated part of the
securities held in the Cash Collateral Account if (i) so directed by the Company
by the delivery of a written request or (ii) at any time proceeds thereof are
required for any withdrawal under Article One of this Agreement. If any such
sale (or any payment at maturity) produces a net sum less than the cost
(including accrued interest paid as such) of the securities so sold or paid and
such sale causes the amount of the Pledged Deposits to fall below the
Collateralized Amount, the Agent shall give written notice of such deficiency to
the Company, and the Company shall promptly pay to the Agent immediately
available funds in an amount equal to such deficiency for deposit in the Cash
Collateral Account. If any such sale (or any payment at maturity) produces a net
sum greater than the cost (including accrued interest paid as such) of the
securities so sold or paid (a "Profit"), such net sum shall be considered income
on the Pledged Deposits and shall be subject to the provisions of paragraph (d)
of this subsection 2.1. All such securities, the interest thereon and the net
proceeds of the sale or payment thereof (to the extent such interest and
proceeds shall not have been paid to the Company in accordance with the terms
hereof) plus any deficiency paid by the Company to the Agent shall be held in
the Cash Collateral Account for the same purposes as the funds used to purchase
such securities.
(d) The Agent and the Company hereby agree that any interest
paid as such on cash or securities in the Cash Collateral Account (less an
amount equal to accrued interest paid upon purchase) and any Profits received by
the Agent on the sale or other disposition of securities in the Cash Collateral
Account shall, unless there is an existing Event of Default, be paid to the
Company as collected by the Agent during the term of this Agreement; provided,
however, that, whether or not an Event of Default is in existence, interest and
Profits on the cash and securities at any time held in the Cash Collateral
Account shall be retained in such Account if and to the extent that withdrawal
thereof would reduce the Pledged Deposits below the Collateralized Amount at
such time.
5
ARTICLE III
3.1 The Agent's Fees, Expenses and Responsibilities. (a) The
Company agrees to pay the reasonable fees and expenses of the Agent (including
reasonable counsel fees) incurred in connection with its execution and delivery
of this Agreement and the performance of its duties hereunder. The duties of the
Agent are only such as are specifically provided herein. The Agent shall have no
liability hereunder except for the performance by it in good faith of the acts
to be performed by it hereunder and except for its own willful default or
misconduct or gross negligence.
(b) The Agent shall be under no responsibility with respect to
any of the moneys deposited with it hereunder other than to comply with the
specific duties and responsibilities herein set forth or set forth in written
instructions herein provided for. The Agent may consult with counsel and shall
be fully protected in respect of any action taken or omitted by it in accordance
with such counsel's advice. The Company hereby assumes liability for and agrees
(whether or not any of the transactions contemplated hereby are consummated) to
indemnify and hold harmless the Agent from and against any and all liabilities,
obligations, losses, damages, penalties, taxes, claims, actions, suits, costs,
expenses and disbursements (including counsel fees and expenses) of whatsoever
kind and nature which may be imposed on, incurred by or asserted at any time
against the Agent and in any way relating to or arising out of this Agreement or
the administration of the Cash Collateral Account or the action or inaction of
the Agent hereunder, except only that the Company shall not be required to
indemnify the Agent in the case of willful misconduct or gross negligence on the
part of the Agent. The indemnities contained in this subsection 3.1(b) shall
survive the termination of this Agreement. The Agent shall not be required to
institute legal proceedings of any kind. The Agent shall have no responsibility
for the genuineness or validity of any document, notice, request, instruction or
other item delivered to it and shall be fully protected in acting in accordance
with written schedules, notices, requests or instructions given to it hereunder
and believed by it to have been signed by the proper party or parties.
3.2 Notices. All notices, instructions and other
communications to any party hereto shall be in writing and may be made or
delivered in person, or by first class mail addressed to such party as provided
below (or to such other address as such party may hereafter specify in a written
notice to the other parties hereto), or by telecopy dispatched to such party at
the number set forth below (or at such other number as such party may hereafter
specify in a written notice to the other parties hereto):
6
The Company: First Brands Corporation
83 Wooster Heights Road
Danbury, Connecticut 06813
Attention: Chief Financial Officer
Telecopy: (203) 732-2518
The Agent: The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Attention: Edward McNulty
Telecopy: (212) 270-0330
All notices, instructions and other communications shall be deemed given when
received by the party to whom addressed.
3.3 Amendments and Supplements. No agreement shall be
effective to amend, supplement or discharge in whole or in part this Agreement
unless such agreement is in writing and signed by the parties hereto in
accordance with the Credit Agreement. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns, provided that the Company shall not assign this Agreement without
the prior written consent of the Lenders.
3.4 Action by Company. The Company may perform any of its
duties hereunder or exercise any of its rights hereunder by and through duly
authorized agents specifically designated for such purposes.
3.5 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Agent, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
3.6 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
3.7 Integration. This Agreement represents the entire
agreement of each of the parties hereto with respect to the subject matter
hereof and there are no promises or representations by the Agent or any Lender
relative to the subject matter hereof not stated or referred to herein.
7
3.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
8
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first set forth above.
FIRST BRANDS CORPORATION
By_________________________
Title:
THE CHASE MANHATTAN BANK, as
Agent
By_________________________
Title:
EXHIBIT J
[FORM OF BORROWING CERTIFICATE]
Pursuant to subsection 5.1(d) of the Amended and Restated
Credit Agreement, dated as of February __, 1997 (as the same from time to time
be amended, supplemented or otherwise modified, the "Credit Agreement"), among
First Brands Corporation (the "Company"), the several lenders from time to time
parties thereto (the "Lenders") and The Chase Manhattan Bank, as agent for the
Lenders (the "Agent"), the undersigned hereby certifies to the Lenders that:
1. The representations and warranties of the Company and the
Subsidiary Guarantors set forth in the Credit Agreement and the
Collateral Documents or which are contained in any other certificate,
document or financial or other written statement furnished pursuant to
or in connection with the Credit Agreement and the Collateral Documents
are true and correct in all material respects on and as of the
Effective Date.
2. Immediately prior to and immediately after the making of
the Loans requested to be made, and the issuance of the Letters of
Credit requested to be issued, on the Effective Date, no Default or
Event of Default has occurred and is continuing.
The terms used in this Certificate shall have the respective
meanings ascribed to them in the Credit Agreement.
Executed this _____ day of February, 1997.
FIRST BRANDS CORPORATION
By_________________________
Title:
EXHIBIT L
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit Agreement, dated
as of February __, 1997 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among First Brands Corporation (the
"Borrower"), the Lenders named therein and The Chase Manhattan Bank, as agent
for the Lenders (in such capacity, the "Agent"). Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
____________________________ (the "Assignor") and _____________________________
(the "Assignee") agree as follows:
(a) The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Assignment Effective Date (as defined below), a ___% interest (the "Assigned
Interest") in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents with respect to those credit facilities
contained in the Credit Agreement as are set forth on SCHEDULE 1 (individually,
an "Assigned Facility"; collectively, the "Assigned Facilities"), in a principal
amount for each Assigned Facility as set forth on SCHEDULE 1.
(b) The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement, any other Loan Document or
any other instrument or document furnished pursuant thereto or with respect to
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement, any other Loan Document or any other instrument
or document furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim; (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower, any of its Subsidiaries or any other
obligor or the performance or observance by the Borrower, any of its
Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; and (c) attaches any Notes (other
than, if the Assignor is to retain any part of its Commitment, its Bid Loan
Note) held by it evidencing the Assigned Facilities and (i) requests that the
Agent, upon request by the Assignee, exchange the attached Notes for a new Note
or Notes payable to the Assignee and (ii) if the Assignor has
2
retained any interest in the Assigned Facility, requests that the Agent exchange
the attached Notes for a new Note or Notes payable to the Assignor, in each case
in amounts which reflect the assignment being made hereby (and after giving
effect to any other assignments which have become effective on the Assignment
Effective Date).
(c) The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to subsection 4.1 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (c) agrees
that it will, independently and without reliance upon the Assignor, the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement, the other Loan Documents or any
other instrument or document furnished pursuant hereto or thereto; (d) appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement, the other Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto as are delegated to the Agent by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with its terms
all the obligations which by the terms of the Credit Agreement are required to
be performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to subsection
2.11(b) of the Credit Agreement.
(d) The effective date of this Assignment and Acceptance shall be ____,
199___ (the "Assignment Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for acceptance by
it and recording by the Agent pursuant to the Credit Agreement, effective as of
the Assignment Effective Date (which shall not, unless otherwise agreed to by
the Agent, be earlier than five Business Days after the date of such acceptance
and recording by the Agent).
(e) Upon such acceptance and recording, from and after the Assignment
Effective Date, the Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignee whether such amounts have accrued prior to the Assignment Effective
Date or accrue subsequent to the Assignment Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments by the Agent for
periods prior to the Assignment Effective Date or with respect to the making of
this assignment directly between themselves.
3
(f) From and after the Assignment Effective Date, (a) the Assignee
shall be a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the other Loan Documents and shall be bound by the
provisions thereof and (b) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
(g) This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE AMENDED AND RESTATED CREDIT AGREEMENT,
DATED AS OF FEBRUARY __, 1997
AMONG
FIRST BRANDS CORPORATION,
THE LENDERS NAMED THEREIN
AND THE CHASE MANHATTAN BANK,
AS AGENT FOR THE LENDERS (IN SUCH CAPACITY, THE "AGENT")
- --------------------------------------------------------------------------------
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Credit Principal Commitment Percentage
Facility Assigned Amount Assigned Assigned
- ----------------- --------------- ---------------------
$________________ ___ . ___________________%
[Name of Assignee] [Name of Assignor]
By _____________________________ By__________________________________
Name: Name:
Title: Title:
Accepted: *Consented To:
The Chase Manhattan Bank, as First Brands Corporation
Agent
By _____________________________ By__________________________________
Name: Name:
Title: Title:
- -------------
* If requested.