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CREDIT AGREEMENT
Among
E-P ACQUISITION, INC.
(to be merged with and into
EAGLE-PICHER INDUSTRIES, INC.)
VARIOUS LENDERS
FROM TIME TO TIME PARTY HERETO
ABN AMRO BANK N.V.,
as Agent
PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent
And
DLJ CAPITAL FUNDING, INC.,
as Syndication Agent
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Dated as of February 19, 1998
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TABLE OF CONTENTS
SECTION HEADING PAGE
Parties...........................................................................................1
SECTION 1. AMOUNT AND TERMS OF CREDIT..........................................................1
Section 1.01. The Commitments.................................................................1
Section 1.01.01. Term Loans and Revolving Credit........................................1
Section 1.01.02. Swingline Loans........................................................3
Section 1.01.03. Mandatory Borrowing....................................................3
Section 1.02. Minimum Borrowing Amount, Etc...................................................4
Section 1.03. Notice of Borrowing.............................................................4
Section 1.04. Disbursement of Funds...........................................................5
Section 1.05. Notes...........................................................................6
Section 1.06. Conversions.....................................................................7
Section 1.07. Pro Rata Borrowings.............................................................8
Section 1.08. Interest........................................................................8
Section 1.09. Interest Periods................................................................9
Section 1.10. Increased Costs, Illegality, Etc...............................................10
Section 1.11. Compensation...................................................................12
Section 1.12. Change of Lending Office.......................................................13
Section 1.13. Replacement of Lenders.........................................................13
SECTION 2. LETTERS OF CREDIT..................................................................14
Section 2.01. Letters of Credit..............................................................14
Section 2.02. Minimum Stated Amount..........................................................16
Section 2.03. Letter of Credit Requests......................................................16
Section 2.04. Letter of Credit Participations................................................16
Section 2.05. Agreement to Repay Letter of Credit Drawings...................................18
Section 2.06. Increased Costs................................................................19
SECTION 3. FEES; COMMITMENTS..................................................................20
Section 3.01. Fees...........................................................................20
Section 3.02. Voluntary Reduction of Commitments.............................................21
Section 3.03. Mandatory Adjustments of Commitments, Etc......................................21
SECTION 4. PREPAYMENTS; PAYMENTS..............................................................22
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Section 4.01. Voluntary Prepayments..........................................................22
Section 4.02. Mandatory Prepayments and Repayments...........................................23
Section 4.02.01. Mandatory Prepayments and Repayments..................................23
Section 4.02.02. Application...........................................................26
Section 4.02.03. Waiver of Certain Mandatory Repayments by
B Lenders and C Lenders...............................................27
Section 4.03. Method and Place of Payment....................................................28
Section 4.04. Net Payments...................................................................28
Section 4.05. Application After Event of Default.............................................30
SECTION 5. CONDITIONS PRECEDENT...............................................................31
Section 5.01. Conditions to Closing Date and Credit Events on the
Closing Date...................................................................31
Section 5.02. Conditions to Each Credit Event................................................37
Section 5.03. Determinations under Section 5.01..............................................38
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.........................................38
Section 6.01. Corporate Status...............................................................39
Section 6.02. Corporate Power and Authority..................................................39
Section 6.03. No Violation...................................................................39
Section 6.04. Governmental Approvals.........................................................39
Section 6.05. Financial Statements; Financial Condition; Undisclosed
Liabilities, etc...............................................................40
Section 6.06. Litigation.....................................................................41
Section 6.07. True and Complete Disclosure...................................................41
Section 6.08. Use of Proceeds; Margin Regulations............................................42
Section 6.09. Tax Returns and Payments.......................................................42
Section 6.10. Compliance with ERISA..........................................................43
Section 6.11. Subsidiaries...................................................................43
Section 6.12. Compliance with Statutes, etc..................................................43
Section 6.13. Environmental Matters..........................................................44
Section 6.14. Investment Company Act.........................................................44
Section 6.15. Public Utility Holding Company Act.............................................44
Section 6.16. Patents, Licenses, Franchises and Formulas.....................................45
Section 6.17. Properties.....................................................................45
Section 6.18. Labor Relations................................................................45
Section 6.19. Indebtedness...................................................................45
Section 6.20. Security Interests.............................................................45
Section 6.21. Representations and Warranties in Other Documents..............................46
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Section 6.22. Transaction....................................................................46
Section 6.23. Capitalization.................................................................46
Section 6.24. Senior Subordinated Notes......................................................47
SECTION 7. AFFIRMATIVE COVENANTS..............................................................47
Section 7.01. Information Covenants..........................................................47
Section 7.02. Books, Records and Inspections.................................................50
Section 7.03. Maintenance of Property, Insurance, Environmental
Matters, etc...................................................................51
Section 7.04. Corporate Franchises...........................................................51
Section 7.05. Compliance with Statutes, etc..................................................52
Section 7.06. ERISA..........................................................................52
Section 7.07. Performance of Obligations.....................................................53
Section 7.08. Payment of Taxes...............................................................53
Section 7.09. Collateral, Additional Security; Further Assurances............................53
Section 7.10. Interest Rate Protection.......................................................57
Section 7.11. Foreign Subsidiaries Security..................................................57
SECTION 8. NEGATIVE COVENANTS.................................................................58
Section 8.01. Liens..........................................................................58
Section 8.02. Consolidation, Merger, Sale of Assets, etc.....................................60
Section 8.03. Dividends and Payment under Related Party Agreement............................61
Section 8.04. Indebtedness...................................................................61
Section 8.05. Advances, Investments and Loans................................................62
Section 8.06. Transactions with Affiliates...................................................63
Section 8.07. Capital Expenditures...........................................................64
Section 8.08. Interest Coverage Ratio........................................................65
Section 8.09. Leverage Ratio.................................................................65
Section 8.10. Fixed Charge Coverage Ratio....................................................66
Section 8.11. Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of
Incorporation, By-Laws and Certain Other Agreements;
Issuances of Capital Stock; etc................................................66
Section 8.12. Limitation on Restrictions on Subsidiary Dividends and
Other Distributions............................................................67
Section 8.13. Limitation on Issuances of Capital Stock by Subsidiaries.......................67
Section 8.14. Limitation on the Creation of Subsidiaries.....................................67
Section 8.15. Maintenance of Corporate Separateness; etc.....................................
Section 8.16. Business.......................................................................68
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SECTION 9. EVENTS OF DEFAULT..................................................................68
Section 9.01. Payments.......................................................................68
Section 9.02. Representations, etc...........................................................68
Section 9.03. Covenants......................................................................68
Section 9.04. Default under Other Agreements.................................................69
Section 9.05. Bankruptcy, etc................................................................69
Section 9.06. ERISA..........................................................................69
Section 9.07. Security Documents.............................................................70
Section 9.08. Guaranties.....................................................................70
Section 9.09. Judgments......................................................................70
Section 9.10. Change in Control..............................................................70
Section 9.11. Matters Regarding the Permanent Injunction.....................................70
SECTION 10. DEFINITIONS AND ACCOUNTING TERMS...................................................71
Section 10.01. Defined Terms..................................................................71
Section 10.02. Principles of Construction.....................................................99
SECTION 11. THE AGENT..........................................................................99
Section 11.01. Appointment....................................................................99
Section 11.02. Nature of Duties..............................................................100
Section 11.03. Lack of Reliance on the Agent.................................................100
Section 11.04. Certain Rights of the Agent...................................................100
Section 11.05. Reliance......................................................................101
Section 11.06. Indemnification...............................................................101
Section 11.07. The Agents in Their Individual Capacity.......................................101
Section 11.08. Holders.......................................................................101
Section 11.09. Resignation or Removal of the Agent...........................................102
Section 11.10. Release of Collateral.........................................................102
SECTION 12. MISCELLANEOUS.....................................................................102
Section 12.01. Payment of Expenses, Etc......................................................102
Section 12.02. Right of Setoff...............................................................104
Section 12.03. Notices.......................................................................104
Section 12.04. Benefit of Agreement, Etc.....................................................105
Section 12.05. No Waiver; Remedies Cumulative................................................107
Section 12.06. Payments Pro Rata.............................................................107
Section 12.07. Calculations; Computations....................................................108
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Section 12.08. Governing Law; Submission to Jurisdiction; Venture;
Waiver of Jury Trial..........................................................108
Section 12.09. Counterparts..................................................................110
Section 12.10. Effectiveness.................................................................110
Section 12.11. Headings Descriptive..........................................................110
Section 12.12. Amendment or Waiver; etc......................................................110
Section 12.13. Survival......................................................................112
Section 12.14. Domicile of Loans.............................................................112
Section 12.15. Confidentiality...............................................................112
Section 12.16. Register......................................................................113
Section 12.17. Judgment Currency.............................................................113
Section 12.18. Integration...................................................................114
Signature Page..................................................................................115
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Annex I Commitment
Annex II Pricing Grid
Annex III Credit Party Address
Exhibit A Notice of Borrowing
Exhibit B-1 A Term Note
Exhibit B-2 B Term Note
Exhibit B-3 C Term Note
Exhibit B-4 Revolving Note
Exhibit B-5 Swingline Note
Exhibit C Notice of Conversion/Continuation
Exhibit D Letter of Credit Request
Exhibit E Section 4.04(b)(ii) Certificate
Exhibit F Opinion
Exhibit G Certificate
Exhibit H Holdings Guaranty
Exhibit I Subsidiary Guaranty
Exhibit J Holdings Pledge Agreement
Exhibit K Borrower and Subsidiary Pledge Agreement
Exhibit L Security Agreement
Exhibit M Subordination Agreement
Exhibit N Assignment and Assumption Agreement
Exhibit O Surveyor's Certificate
Schedule 2.01 Existing Letters of Credit
Schedule 6.03 Consents Not Obtained
Schedule 6.05 Material Changes
Schedule 6.06 Litigation
Schedule 6.09 Taxes
Schedule 6.10 ERISA
Schedule 6.11 Subsidiary
Schedule 6.13 Environmental Matters
Schedule 6.17 Properties
Schedule 6.19 Existing Indebtedness
Schedule 6.23 Capitalization
Schedule 8.01 Existing Liens
Schedule 8.05 Joint Venture
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CREDIT AGREEMENT, dated as of February 19, 1998, among E-P
ACQUISITION, INC., a Delaware corporation (as further defined herein, the
"Borrower"), the lenders from time to time party hereto (each a "Lender" and,
collectively, the "Lenders"), ABN AMRO BANK N.V., as Agent (in such capacity,
the "Agent"), PNC BANK, NATIONAL ASSOCIATION, as Documentation Agent (in such
capacity, the "Documentation Agent") and DLJ CAPITAL FUNDING, INC., as
Syndication Agent (in such capacity, the "Syndication Agent"). All capitalized
terms used herein shall have the meanings provided in Section 10.
WITNESSETH:
WHEREAS, the Borrower has requested the Lenders to provide certain term
loan facilities and a revolving credit facility (including a sublimit for
letters of credit and a sublimit for swingline loans); and
WHEREAS, the credit facilities shall be used (i) to effectuate the
merger of the Borrower with and into Eagle-Picher Industries, Inc., an Ohio
corporation ("EPII"), including the repayment of certain existing debt of EPII,
(ii) to pay the transaction costs of such merger and (iii) for general corporate
purposes, all as hereinafter more fully set forth; and
WHEREAS, the Lenders are willing to provide such credit upon the terms
and conditions hereinafter set forth;
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
thereby, covenant and agree as follows:
SECTION 1. AMOUNT AND TERMS OF CREDIT.
Section 1.01. The Commitments.
Section 1.01.01. Term Loans and Revolving Credit. Subject to and upon the
terms and conditions herein set forth, each Lender severally agrees to make a
loan or loans to the Borrower which loans shall be drawn, to the extent such
Lender has a commitment under such Facility, under the A Term Loan Facility, the
B Term Loan Facility, the C Term Loan Facility and the Revolving Credit
Facility, as set forth below:
(a) Each loan under the A Term Loan Facility (each an "A Term
Loan" and, collectively, the "A Term Loans") (i) shall be made pursuant
to a drawing on the Closing Date, (ii) shall be denominated in U.S.
Dollars, (iii) except as hereinafter provided, shall be made as Base
Rate Loans or Eurodollar Rate Loans and may, at the option of the
Borrower, be maintained as and/or converted into Base Rate Loans or
Eurodollar Rate Loans, provided that all A Term Loans made by all
Lenders pursuant to the same Borrowing shall, unless otherwise
specifically provided herein, consist
entirely of A Term Loans of the same Type and (iv) shall not exceed for
any Lender at the time of incurrence thereof that aggregate principal
amount which equals the A Term Loan Commitment, if any, of such Lender
at such time. Once repaid, A Term Loans may not be reborrowed. The
aggregate amount of the A Term Loans shall not exceed $100,000,000.
(b) Each loan under the B Term Loan Facility (each a "B Term
Loan" and, collectively, the "B Term Loans") (i) shall be made pursuant
to a drawing on the Closing Date, (ii) shall be denominated in U.S.
Dollars, (iii) except as hereinafter provided, shall be made as Base
Rate Loans or Eurodollar Rate Loans and may, at the option of the
Borrower, be maintained as and/or converted into Base Rate Loans or
Eurodollar Rate Loans, provided that all B Term Loans made by all
Lenders pursuant to the same Borrowing shall, unless otherwise
specifically provided herein, consist entirely of B Term Loans of the
same Type and (iv) shall not exceed for any Lender at the time of
incurrence thereof that aggregate principal amount which equals the B
Term Loan Commitment, if any, of such Lender at such time. Once repaid,
B Term Loans may not be reborrowed. The aggregate amount of the B Term
Loans shall not exceed $50,000,000.
(c) Each loan under the C Term Loan Facility (each a "C Term
Loan" and, collectively, the "C Term Loans") (i) shall be made pursuant
to a drawing on the Closing Date, (ii) shall be denominated in U.S.
Dollars, (iii) except as hereinafter provided, shall be made as Base
Rate Loans or Eurodollar Rate Loans and may, at the option of the
Borrower, be maintained as and/or converted into Base Rate Loans or
Eurodollar Rate Loans, provided that all C Term Loans made by all
Lenders pursuant to the same Borrowing shall, unless otherwise
specifically provided herein, consist entirely of C Term Loans of the
same Type and (iv) shall not exceed for any Lender at the time of
incurrence thereof that aggregate principal amount which equals the C
Term Loan Commitment, if any, of such Lender at such time. Once repaid,
C Term Loans may not be reborrowed. The aggregate amount of the C Term
Loans shall not exceed $75,000,000.
(d) Each loan under the Revolving Credit Facility (each a
"Revolving Loan" and, collectively, the "Revolving Loans") (i) shall be
made at any time and from time to time on or after the Closing Date and
prior to the Revolving Loan Maturity Date, (ii) shall be denominated in
U.S. Dollars, (iii) except as hereinafter provided, may, at the option
of the Borrower, be incurred and maintained as and/or converted into
Base Rate Loans or Eurodollar Rate Loans, provided that all Revolving
Loans made as part of the same Borrowing shall, unless otherwise
specifically provided herein, consist of Revolving Loans of the same
Type, (iv) may be repaid and reborrowed in accordance with the
provisions hereof and (v) shall not exceed for any Revolving Lender at
any time outstanding that aggregate principal amount which equals such
Revolving Lender's Revolving Percentage, if any, of the Total Unutilized
Revolving Credit Commitment at such time. The Total Revolving Credit
Commitment on the Closing Date shall be $160,000,000.
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Section 1.01.02. Swingline Loans. Subject to and upon the terms and
conditions set forth herein, the Swingline Lender agrees to make, at any time
and from time to time on or after the Closing Date and prior to the Swingline
Expiry Date, a loan or loans (each, a "Swingline Loan" and, collectively, the
"Swingline Loans") to the Borrower, which Swingline Loans (i) shall be made and
maintained as Base Rate Loans, (ii) shall be denominated in U.S. Dollars, (iii)
may be repaid and reborrowed in accordance with the provisions hereof, (iv)
shall not exceed in aggregate principal amount at any time outstanding that
aggregate principal amount which, when added to the sum of (I) the aggregate
principal amount of all Revolving Loans then outstanding and (II) the aggregate
amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings
relating to Letters of Credit which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of such
Swingline Loans) at such time, equals the Total Revolving Credit Commitment at
such time and (v) shall not exceed the Maximum Swingline Amount. The Swingline
Lender will not make a Swingline Loan after it has received written notice from
the Required Lenders stating that a Default or an Event of Default exists and
specifically requesting that the Swingline Lender not make any Swingline Loans,
provided that the Swingline Lender may continue making Swingline Loans at such
time thereafter as the respective Default or Event of Default has been cured or
waived in accordance with the requirements of this Agreement or the Required
Lenders have withdrawn the written notice described above in this sentence. In
addition, the Swingline Lender shall not be obligated to make any Swingline Loan
at a time when a Lender Default exists unless the Swingline Lender shall have
entered into arrangements satisfactory to it and the Borrower to eliminate the
Swingline Lender's risk with respect to the Defaulting Lender's participation in
such Swingline Loan, including by cash collateralizing such Defaulting Lender's
Revolving Percentage of the outstanding Swingline Loans.
Section 1.01.03. Mandatory Borrowing. On any Business Day, the Swingline
Lender may, in its sole discretion, give notice to the Revolving Lenders that
its outstanding Swingline Loans shall be funded with a Borrowing of Revolving
Loans (provided that such notice shall be deemed to have been automatically
given upon the occurrence of a Default or an Event of Default under Section 9.05
or upon the exercise of any of the remedies provided in the last paragraph of
Section 9), in which case a Borrowing of Revolving Loans constituting Base Rate
Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the
immediately succeeding Business Day by all Revolving Lenders (without giving
effect to any reductions thereto pursuant to the last paragraph of Section 9)
pro rata based on each Revolving Lender's Revolving Percentage (determined
before giving effect to any termination of the Commitments pursuant to the last
paragraph of Section 9), and the proceeds thereof shall be applied directly to
the Swingline Lender to repay the Swingline Lender for such outstanding
Swingline Loans. Each Revolving Lender hereby irrevocably agrees to make Base
Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing
in the amount and in the manner specified in the preceding sentence and on the
date specified in writing by the Swingline Lender notwithstanding (i) the
amount of the Mandatory Borrowing may not comply with the Minimum Borrowing
Amount otherwise required hereunder, (ii) any condition specified in Section 5
may not then be satisfied, (iii) the existence of any Default or Event of
Default, (iv) the date of such Mandatory Borrowing and (v) the amount of the
Total Revolving Credit Commitment at such time. In
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the event that any Mandatory Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower), then each Revolving Lender (other than the Swingline Lender) hereby
agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing
would otherwise have occurred, but adjusted for any payments received from the
Borrower on or after such date and prior to such purchase from the Swingline
Lender) (without recourse or warranty) such participations in the outstanding
Swingline Loans as shall be necessary to cause the Revolving Lenders to share in
such Swingline Loans ratably based upon their respective Revolving Percentages
(determined before giving effect to any termination of the Commitments pursuant
to the last paragraph of Section 9), provided that (x) all interest payable on
the Swingline Loans shall be for the account of the Swingline Lender until the
date the respective participation is required to be purchased and, to the extent
attributable to the purchased participation, shall be payable to the participant
from and after such date and (y) at the time any purchase of participations
pursuant to this sentence is actually made, the purchasing Lender shall be
required to pay the Swingline Lender interest on the principal amount of
participation purchased for each day from and including the day upon which the
Mandatory Borrowing would otherwise have occurred to but excluding the date of
payment for such participation, at the overnight Federal Funds Rate for the
first three days and at the rate otherwise applicable to Revolving Loans
maintained as Base Rate Loans for each day thereafter.
Section 1.02. Minimum Borrowing Amount, Etc. The aggregate principal amount
of each Borrowing under a Facility shall not be less than the Minimum Borrowing
Amount for such Facility, provided that Mandatory Borrowings shall be made in
the amounts required by Section 1.01.03. More than one Borrowing may occur on
the same date, but at no time shall there be an outstanding more than fifteen
Borrowings of Eurodollar Rate Loans.
Section 1.03. Notice of Borrowing. (a) Whenever the Borrower desires to
incur Loans under any Facility (excluding Revolving Loans incurred pursuant to a
Mandatory Borrowing and Swingline Loans), it shall give the Agent at its Notice
Office at least (x) three Business Day's prior written notice (or telephonic
notice promptly confirmed in writing) of each Eurodollar Rate Loan to be made
hereunder and (y) one Business Day's prior written notice (or telephonic notice
promptly confirmed in writing) of each Base Rate Loan to be made hereunder,
provided that any such notice shall be deemed to have been given on a certain
day only if actually received by the Agent before 11:00 A.M. (New York time) on
such day. Each such notice (each a "Notice of Borrowing"), except as otherwise
expressly provided in Section 1.10, shall be irrevocable, and, in the case of
each written notice and each confirmation of telephonic notice, shall be in the
form of Exhibit A, appropriately completed, to specify (i) the Facility pursuant
to which such Borrowing is to be made, (ii) the date of such Borrowing (which
shall be a Business Day), (iii) the aggregate principal amount of the Loans to
be made pursuant to such Borrowing, (iv) whether the Loans to be made pursuant
to such Borrowing are to be initially maintained as Base Rate Loans or, to the
extent permitted hereunder, Eurodollar Rate Loans and (v) in the case of
Eurodollar Rate Loans, the initial Interest Period to be applicable thereto.
The Agent shall promptly give each Lender notice of (i) such proposed Borrowing,
(ii) such
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Lender's proportionate share thereof, if any, and (iii) the other matters
required by the immediately preceding sentence to be specified in the Notice of
Borrowing.
(b) (i) Whenever the Borrower desires to incur Swingline Loans
hereunder, it shall give the Swingline Lender no later than 11:00 A.M. (New York
time) on the day such Swingline Loan is to be made, written notice or telephonic
notice promptly confirmed in writing of each Swingline Loan to be made
hereunder. Each such notice shall be irrevocable and specify in each case (i)
the date of Borrowing (which shall be a Business Day) and (ii) the aggregate
principal amount of the Swingline Loans to be made pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01.03, with the Borrower irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of Mandatory Borrowings as set forth in
Section 1.01.03.
(c) Without, in any way, limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Agent or the Swingline Lender (in the case of a Borrowing of Swingline Loans) or
the Letter of Credit Issuer (in the case of the issuance of Letters of Credit),
as the case may be, may act without liability upon the basis of such telephonic
notice, believed by the Agent, the Swingline Lender or the Letter of Credit
Issuer, as the case may be, in good faith to be from an Authorized Officer of
the Borrower (or from any other officer of the Borrower designated in writing
from time to time by an Authorized Officer of the Borrower as a person entitled
to give telephonic notices hereunder), prior to receipt of written confirmation.
In each such case, the Borrower hereby waives the right to dispute the Agent's,
the Swingline Lender's or the Letter of Credit Issuer's record of the terms of
any such telephonic notice to the extent such record is made without gross
negligence or willful misconduct of the Agent, the Swingline Lender or the
Letter of Credit Issuer, as the case may be.
Section 1.04. Disbursement of Funds. No later than 1:00 P.M. (New York
time) on the date specified in each Notice of Borrowing (or (x) in the case of
Swingline Loans, no later than 2:00 P.M. (New York time) on the date specified
in Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings, no later than
12:00 Noon (New York time) on the date specified in Section 1.01.03), each
Lender with a Commitment under the respective Facility will make available
through such Lender's applicable lending office its pro rata portion, if any, of
each Borrowing requested to be made on such date to the Agent (or, in the case
of Swingline Loans, the Swingline Lender shall make available the full amount
thereof), in U.S. Dollars and in immediately available funds at the Agent's
Payment Office. The Agent will make available to the Borrower at the Agent's
Payment Office the aggregate of the amounts so made available prior to 1:00 P.M.
(New York time) on such day, to the extent of funds actually received by the
Agent prior to 12:00 Noon (New York time). Unless the Agent shall have been
notified by any Lender prior to the date of any Borrowing that such Lender does
not intend to make available to the Agent such Lender's portion of any Borrowing
to be made on such date, the Agent may assume that such Lender has made such
amount available to the Agent on such date of Borrowing and the Agent may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If such corresponding
5
amount is not in fact made available to the Agent by such Lender, the Agent
shall be entitled to recover such corresponding amount on demand from such
Lender. If such Lender does not pay such corresponding amount forthwith upon
the Agent's demand therefor, the Agent shall promptly notify the Borrower and
the Borrower shall immediately pay such corresponding amount to the Agent. The
Agent shall also be entitled to recover on demand from such Lender or the
Borrower, as the case may be, interest on such corresponding amount in respect
of each day from the date such corresponding amount was made available by the
Agent to the Borrower until the date such corresponding amount is recovered by
the Agent, at a rate per annum equal to (i) if recovered from such Lender, the
overnight Federal Funds Rate and (ii) if recovered from the Borrower, the rate
of interest applicable to the respective Borrowing as determined in accordance
with the appropriate clause of Section 1.08. Nothing in this Section 1.04 shall
be deemed to relieve any Lender from its obligation to fulfill its Commitment
hereunder or to prejudice any rights which the Borrower may have against any
Lender as a result of any default by such Lender hereunder.
Section 1.05. Notes. (a) The Borrower's obligation to pay the principal of,
and interest on, all Loans made by each Lender to the Borrower shall be
evidenced (i) if A Term Loans, by a promissory note duly executed and delivered
to such Lender by the Borrower in the form of Exhibit B-1 with blanks
appropriately completed in conformity herewith (each, an "A-Term Note" and,
collectively, the "A-Term Notes"), (ii) if B Term Loans, by a promissory note
duly executed and delivered to such Lender by the Borrower in the form of
Exhibit B-2 with blanks appropriately completed in conformity herewith (each, a
"B-Term Note" and collectively, the "B-Term Notes"), (iii) if C Term Loans, by a
promissory note duly executed and delivered to such Lender by the Borrower in
the form of Exhibit B-3 with blanks appropriately completed in conformity
herewith (each, a "C-Term Note" and, collectively, the "C-Term Notes"), (iv) if
Revolving Loans, by a promissory note duly executed and delivered to such Lender
by the Borrower in the form of Exhibit B-4 with blanks appropriately completed
in conformity herewith (each, a "Revolving Note" and, collectively, the
"Revolving Notes") and (v) if Swingline Loans, by a promissory note duly
executed and delivered to the Swingline Lender by the Borrower in the form of
Exhibit B-5 with blanks appropriately completed in conformity herewith (the
"Swingline Note").
(b) The A-Term Note issued to each Lender shall (i) be executed by the
Borrower, (ii) be payable to such Lender or its registered assigns and be dated
the Closing Date, (iii) be in a stated principal amount equal to the A Term Loan
Commitment of such Lender and be payable in the principal amount of the
outstanding A Term Loans evidenced thereby, (iv) mature on the A Term Loan
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Rate Loans, as the
case may be, evidenced thereby and (vi) be entitled to the benefits of this
Agreement and the other Credit Documents.
(c) The B-Term Note issued to each Lender shall (i) be executed by the
Borrower, (ii) be payable to such Lender or its registered assigns and be dated
the Closing Date, (iii) be in a stated principal amount equal to the B Term Loan
Commitment of such Lender and be payable in the principal amount of the
outstanding B Term Loans evidenced thereby, (iv) mature on the B Term Loan
Maturity Date, (v) bear interest as provided in the
6
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Rate Loans, as the case may be, evidenced thereby and (vi) be
entitled to the benefits of this Agreement and the other Credit Documents.
(d) The C-Term Note issued to each Lender shall (i) be executed by the
Borrower, (ii) be payable to such Lender or its registered assigns and be dated
the Closing Date, (iii) be in a stated principal amount equal to the C Term Loan
Commitment of such Lender and be payable in the principal amount of the
outstanding C Term Loans evidenced thereby, (iv) mature on the C Term Loan
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Rate Loans, as the
case may be, evidenced thereby and (vi) be entitled to the benefits of this
Agreement and the other Credit Documents.
(e) The Revolving Note issued to each Lender shall (i) be executed by
the Borrower, (ii) be payable to such Lender or its registered assigns and be
dated the Closing Date, (iii) be in a stated principal amount equal to the
Revolving Credit Commitment of such Lender and be payable in the principal
amount of the outstanding Revolving Loans evidenced thereby, (iv) mature on the
Revolving Loan Maturity Date, (v) bear interest as provided in the appropriate
clause of Section 1.08 in respect of the Base Rate Loans and Eurodollar Rate
Loans, as the case may be, evidenced thereby and (vi) be entitled to the
benefits of this Agreement and the other Credit Documents.
(f) The Swingline Note issued to the Swingline Lender shall (i) be
executed by the Borrower, (ii) be payable to the Swingline Lender or its
registered assigns and be dated the Closing Date, (iii) be in a stated principal
amount equal to the Maximum Swingline Amount and be payable in the principal
amount of the outstanding Swingline Loans evidenced thereby, (iv) mature on the
Swingline Expiry Date, (v) bear interest as provided in the appropriate clause
of Section 1.08 in respect of the Base Rate Loans evidenced thereby, and (vi) be
entitled to the benefits of this Agreement and the other Credit Documents.
(g) Each Lender will note on its internal records the amount of each
Loan made by it and each payment and conversion in respect thereof and will
prior to any transfer of any of its Notes endorse on the reverse side thereof
the outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation shall not affect the Borrower's obligations in respect of such
Loans.
Section 1.06. Conversions. The Borrower shall have the option to convert on
any Business Day occurring after the Closing Date all or a portion equal to at
least the applicable Minimum Borrowing Amount, of the outstanding principal
amount of the Loans (other than Swingline Loans) made to the Borrower pursuant
to one or more Borrowings of one or more Types of Loans under a single Facility
into a Borrowing or Borrowings of another Type of Loans under such Facility,
provided that (i) except as otherwise provided in Section 1.10(b), Eurodollar
Rate Loans may be converted into Base Rate Loans only on the last day of an
Interest Period applicable thereto and no such partial conversion of Eurodollar
Rate Loans shall reduce the outstanding principal amount of Eurodollar Rate
Loans made pursuant to any single Borrowing to less than the Minimum Borrowing
Amount applicable
7
thereto, (ii) Base Rate Loans may only be converted into Eurodollar Rate Loans
if no Default or Event of Default is in existence on the date of the conversion
and (iii) no conversion pursuant to this Section 1.06 shall result in a greater
number of Borrowings than is permitted under Section 1.02. Swingline Loans may
not be converted pursuant to this Section 1.06. Each such conversion shall be
effected by the Borrower giving the Agent at its Notice Office prior to 11:00
A.M. (New York time) at least three Business Days' (two Business Days' in the
case of conversions into Base Rate Loans) prior written notice in the form of
Exhibit C (or telephone notice promptly confirmed in writing) (each a "Notice
of Conversion") specifying the Loans to be so converted, the Borrowing(s)
pursuant to which such Loans were made, the date of such conversion (which
shall be a Business Day) and, if to be converted into Eurodollar Rate Loans,
the Interest Period to be initially applicable thereto. Each Notice of
Conversion, except as otherwise expressly provided in Section 1.10, shall be
irrevocable. The Agent shall give each Lender prompt notice of any such proposed
conversion affecting any of its Loans.
Section 1.07. Pro Rata Borrowings. All Borrowings of Loans (other than
Swingline Loans) under this Agreement with respect to a Facility shall be
incurred from the Lenders pro rata on the basis of their then respective
Commitments. It is understood that no Lender shall be responsible for any
default by any other Lender of its obligation to make Loans hereunder and that
each Lender shall be obligated to make the Loans to be made by it hereunder
regardless of the failure of any other Lender to fulfill its commitments.
Section 1.08. Interest. (a) The Borrower agrees to pay interest in respect
of the unpaid principal amount of each Base Rate Loan made to the Borrower from
the date the proceeds thereof are made available to the Borrower until the
earlier of (i) the maturity (whether by acceleration or otherwise) of such Base
Rate Loan and (ii) the conversion of such Base Rate Loan into a Eurodollar Rate
Loan pursuant to Section 1.06 at a rate per annum which shall be equal to the
sum of the Applicable Base Rate Margin plus the Base Rate in effect from time to
time.
(b) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Rate Loan made to the Borrower from the date
the proceeds thereof are made available to the Borrower until the earlier of (i)
the maturity (whether by acceleration or otherwise) of such Eurodollar Rate Loan
and (ii) the conversion of such Eurodollar Rate Loan into a Base Rate Loan
pursuant to Section 1.06 at a rate per annum which shall, during each Interest
Period applicable thereto, be equal to the sum of the Applicable Eurodollar Rate
Margin plus the Eurodollar Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and any other overdue amount payable hereunder
(including, to the extent legally permitted, overdue interest) shall bear
interest at a rate per annum equal to (i) in the case of overdue principal of
any Loan, the rate which is 2% in excess of the rate then borne by such Loan
and, after the expiration of the Interest Period, if any, for such Loan, 2% plus
8
the Applicable Base Rate Margin plus the Base Rate from time to time in effect
and (ii) in the case of overdue interest or any other overdue amount, the rate
equal to 2% plus the Applicable Base Rate Margin plus the Base Rate from time to
time in effect. Interest which accrues under this Section 1.08(c) shall be
payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable (i) in
respect of each Base Rate Loan, quarterly in arrears on the last Business Day of
each February, May, August and November, (ii) in respect of each Eurodollar Rate
Loan, (x) on the last day of each Interest Period applicable thereto and, in the
case of an Interest Period in excess of three months, on each date occurring at
three month intervals after the first day of such Interest Period and (y) the
date of any conversion into a Base Rate Loan pursuant to Section 1.06, 1.09 or
1.10(b), as applicable (on the amount converted), and (iii) in respect of each
Loan, on any repayment or prepayment (on the amount repaid or prepaid), at
maturity (whether by acceleration or otherwise) and, after such maturity, on
demand.
(e) On each Interest Determination Date, the Agent shall determine the
interest rate for the Eurodollar Rate Loans for the Interest Period to be
applicable to such Eurodollar Rate Loans and shall promptly notify the Borrower
and the Lenders thereof. Each such determination shall, absent manifest error,
be final and conclusive and binding on all parties hereto.
Section 1.09. Interest Periods. At the time the Borrower gives any Notice
of Borrowing or Notice of Conversion in respect of the making of, or conversion
into, any Eurodollar Rate Loan (in the case of the initial Interest Period
applicable thereto) or by giving the Agent written irrevocable notice (or
telephonic notice promptly confirmed in writing) thereof by 11:00 A.M. (New York
time), on the third Business Day prior to the expiration of an Interest Period
applicable to such Eurodollar Rate Loan (in the case of subsequent Interest
Periods), it shall have the right to elect the interest period (each an
"Interest Period") applicable to a Borrowing of such Eurodollar Rate Loans,
which Interest Period shall, at the option of the Borrower, be a one, two, three
or six-month or, if available (as determined by the Agent), twelve-month period
provided that:
(i) all Eurodollar Rate Loans comprising a Borrowing shall at all
times have the same Interest Period;
(ii) the initial Interest Period for any Borrowing of Eurodollar
Rate Loans shall commence on the date of such Borrowing (including the
date of any conversion from a Borrowing of Base Rate Loans) and each
Interest Period occurring thereafter in respect of such Borrowing shall
commence on the day on which the next preceding Interest Period expires;
(iii) if any Interest Period begins on a day for which there is
not numerically corresponding day in the calendar month at the end of
such Interest Period, such Interest Period shall end on the last
Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day which
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, however, that if any Interest Period
would otherwise expire on a day which
9
is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day;
(v) no Interest Period may be selected at any time when a Default
or an Event of Default is then in existence;
(vi) no Interest Period for a Borrowing under a Facility may be
selected if it would extend beyond the respective Maturity Date for such
Facility; and
(vii) no Interest Period with respect to any Borrowing of Term
Loans shall extend beyond any date upon which a scheduled repayment of
such Term Loans is required to be made under Section 4.02.01(b)(i), (ii)
or (iii), as the case may be, if, after giving effect to the selection
of such Interest Period, the aggregate principal amount of such Term
Loans maintained as Eurodollar Loans with Interest Periods ending after
such date of mandatory repayment would exceed the aggregate principal
amount of such Term Loans permitted to be outstanding after such
mandatory prepayment.
If upon the expiration of any Interest Period, the Borrower has failed
to select (or is not permitted to select) a new Interest Period to be applicable
to such Borrowing as provided above, the Borrower shall be deemed to have
selected to convert such Borrowing into a Borrowing of Base Rate Loans effective
as of the expiration date of such current Interest Period.
Section 1.10. Increased Costs, Illegality, Etc. (a) In the event that any
Lender shall have determined (which determination shall, absent manifest error,
be final and conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the interbank
Eurodollar market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition
of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect
to any Eurodollar Rate Loan because of (x) any change since the date of
this Agreement in any applicable law or governmental rule, regulation,
guideline, order or request (whether or not having the force of law) or
in the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, guideline,
order or request such as, for example, but not limited to, (A) a change
in official reserve requirements, but, in all events, excluding reserves
required under Regulation D to the extent included in the computation of
the Eurodollar Rate or (B) a change in the basis of taxation of payments
to any Lender of the principal of or interest on such Eurodollar Rate
Loan or any other amounts payable hereunder (except for changes in
10
the rate of tax on, or determined by reference to, the net income or
profits of such Lender pursuant to the laws of the jurisdiction in which
such Lender is organized or the jurisdiction in which such Lender's
principal office or applicable lending office is located or any
subdivision thereof or therein) and/or (y) any other circumstances
affecting such Lender or the interbank Eurodollar market or the
position of such Lender in such market; or
(iii) at any time that the making or continuance of any Eurodollar
Rate Loan has become (x) unlawful by compliance by such Lender with any
law, governmental rule, regulation, guideline or order, (y) impossible
by compliance by such Lender with any governmental request (whether or
not having the force of law) or (z) has become impracticable as a result
of a contingency occurring after the date of this Agreement which
materially and adversely affects the interbank Eurodollar market;
then, and in any such event, such Lender (or the Agent, in the case of clause
(i) above) shall promptly give notice (by telephone confirmed in writing) to the
Borrower and, except in the case of clause (i) above, to the Agent of such
determination (which notice the Agent shall promptly transmit to each of the
other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Rate
Loans shall no longer be available until such time as the Agent notifies the
Borrower and the Lenders that the circumstances giving rise to such notice by
the Agent no longer exist, and any Notice of Borrowing or Notice of Conversion
given by the Borrower with respect to such affected Eurodollar Rate Loans which
have not yet been incurred (including by way of conversion) shall be deemed
rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower
shall pay to such Lender, within 15 days of receipt of the notice referred to
below, such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as shall be required to compensate such Lender
for such increased costs or reductions in amounts received or receivable
hereunder (a written notice as to the additional amounts owed to such Lender,
setting forth in reasonable detail the basis for the calculation thereof,
submitted to the Borrower by such Lender shall, absent manifest error, be final
and conclusive and binding upon all parties hereto) and (z) in the case of the
clause (iii) above, the Borrower shall take one of the actions specified in
Section 1.10(b) as promptly as possible and, in any event, within the time
period required by law.
(b) At any time that any Eurodollar Rate Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Rate Loan affected pursuant to Section 1.10(a)(iii)
shall) either (x) if the affected Eurodollar Rate Loan is then being made
initially or pursuant to a conversion, cancel the respective Borrowing by giving
the Agent irrevocable telephonic notice (confirmed in writing) thereof on the
same date that the Borrower was notified by the affected Lender or the Agent
pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Rate
Loan is then outstanding, upon at least three Business Days' written notice to
the Agent, require the affected Lender to convert such Eurodollar Rate Loan
into a Base Rate Loan (which conversion, in the case of the circumstances
described in Section 1.10(a)(iii), shall occur no later than the last day of the
Interest Period then applicable to such Eurodollar Rate Loan (or
11
such earlier date as shall be required by applicable law)), provided that, if
more than one Lender is similarly affected at any time, then all similarly
affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined that after the date hereof, the
adoption or effectiveness of any applicable law, rule or regulation regarding
capital adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by such Lender or any corporation controlling such Lender with any request or
directive regarding capital adequacy issued after the date hereof (whether or
not having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Lender's or such other corporation's capital or assets as a consequence of such
Lender's Commitments or obligations hereunder to a level below that which such
Lender or such other corporation could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Lender's or
such other corporation's policies with respect to capital adequacy), then from
time to time, upon written demand by such Lender (with a copy to the Agent),
accompanied by the notice referred to in the last sentence of this clause (c),
the Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender or such other corporation for such reduction. Each
Lender, upon determining in good faith that any additional amounts will be
payable pursuant to this Section 1.10(c), will give prompt written notice
thereof to the Borrower, which notice shall set forth the basis of the
calculation of such additional amounts, although the failure to give any such
notice shall not release or diminish the Borrower's obligations to pay
additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt
of such notice.
Section 1.11. Compensation. The Borrower shall compensate each Lender,
upon its written request (which request shall set forth the basis for
requesting such compensation), for all reasonable losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds
required by such Lender to fund its Eurodollar Rate Loans but excluding any loss
of anticipated profits) which such Lender may sustain: (i) if for any reason
(other than a default by such Lender or the Agent) a Borrowing of, or conversion
from or into, Eurodollar Rate Loans does not occur on a date specified therefor
in a Notice of Borrowing or Notice of Conversion (whether or not withdrawn by
the Borrower or deemed withdrawn pursuant to Section 1.10); (ii) if any
repayment (including any repayment made pursuant to Section 4.01 or 4.02 or as a
result of an acceleration of the Loans pursuant to Section 9) or conversion of
any of its Eurodollar Rate Loans occurs on a date which is not the last day of
an Interest Period with respect thereto; (iii) if any prepayment of any of its
Eurodollar Rate Loans is not made on any date specified in a notice of
prepayment given by the Borrower; or (iv) as a consequence of (x) any other
default by the Borrower to repay its Loans when required by the terms of this
Agreement or the Notes held by such Lender or (y) any election made pursuant to
Section 1.10(b). Calculation of all amounts payable to a Lender under this
Section 1.11 shall be made as though that Lender had actually funded its
relevant Eurodollar Rate Loan through the purchase of a Eurodollar deposit
bearing interest at the Eurodollar Rate in an amount equal to the amount of
that Loan, having a maturity
12
comparable to the relevant Interest Period and through the transfer of such
Eurodollar deposit from an offshore office of that Lender to a domestic office
of that Lender in the United States of America; provided, however, that each
Lender may fund each of its Eurodollar Rate Loans in any manner it sees fit and
the foregoing assumption shall be utilized only for the calculation of amounts
payable under this Section 1.11. It is further understood and agreed that if any
repayment of Eurodollar Rate Loans pursuant to Section 4.01 or 4.02 or any
conversion of Eurodollar Rate Loans pursuant to Section 1.06 in either case
occurs on a date which is not the last day of any Interest Period applicable
thereto, such repayment or conversion shall be accompanied by any amounts owing
to any Lender pursuant to this Section 1.11.
Section 1.12. Change of Lending Office. Each Lender agrees that on the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.06 or Section 4.04 with respect to such
Lender, it will, if requested by the Borrower, use reasonable efforts (subject
to overall policy considerations of such Lender) to designate another lending
office for any Loans or Letters of Credit affected by such event, provided
that such designation is made on such terms that, in the sole judgment of such
Lender, such Lender and its lending office suffer no economic, legal, regulatory
or other disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of such Section. Nothing in this Section 1.12
shall affect or postpone any of the obligations of the Borrower or the right
of any Lender provided in Sections 1.10, 2.06 and 4.04.
Section 1.13. Replacement of Lenders. (a)(i) If any Lender becomes a
Defaulting Lender, (ii) upon the occurrence of any event giving rise to the
operation of Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.06
or Section 4.04 with respect to any Lender which results in such Lender
charging to the Borrower increased costs in excess of those being generally
charged to the Borrower by the other Lenders or (iii) as and to the extent
provided in Section 12.12(b), the Borrower shall have the right and in the case
of clause (a)(i) above, the Agent shall have the right, in accordance with the
requirements of Section 12.04(b), if, in the case of a replacement by the
Borrower, no Default or Event of Default will exist after giving effect to such
replacement, to replace such Lender (the "Replaced Lender") with one or more
other Eligible Transferee or Transferees (collectively, the "Replacement
Lender") acceptable to the Agent and the Letter of Credit Issuers (such
acceptability to be communicated to the Borrower within 15 days), provided that
(i) at the time of any replacement pursuant to this Section 1.13, the
Replacement Lender shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 12.04(b) (and with all fees payable pursuant to
said Section 12.04(b) to be paid by the Replacement Lender) pursuant to which
the Replacement Lender shall acquire all of the Commitments and all outstanding
Loans of, and the participations in Letters of Credit and Swingline Loans by,
the Replaced Lender and, in connection therewith, shall pay to (x) the Replaced
Lender in respect thereof an amount equal to the sum of (A) an amount equal to
the principal of, and all accrued interest on, all outstanding Loans of the
Replaced Lender and an amount equal to all Unpaid Drawings that have been funded
by (and not reimbursed to) such Replaced Lender, together with all then unpaid
interest with respect thereto at such time, and (B) an amount equal to all
accrued, but theretofore unpaid, Fees owing to the Replaced Lender
13
pursuant to Section 3.01, (y) the Letter of Credit Issuer an amount equal to
such Replaced Lender's Revolving Percentage of any Unpaid Drawing (which at
such time remains an Unpaid Drawing) to the extent such amount was not
theretofore funded by such Replaced Lender and (z) the Swingline Lender an
amount equal to such Replaced Lender's Revolving Percentage of any Mandatory
Borrowing to the extent such amount was not theretofore funded by such Replaced
Lender, and (ii) all obligations of the Borrower owing to the Replaced Lender
(other than those specifically described in clause (i) above in respect of which
the assignment purchase price has been, or is concurrently being, paid) shall be
paid in full by the Borrower to such Replaced Lender concurrently with such
replacement.
(b) Upon the execution of the respective Assignment and Assumption
Agreements, the payment of the amounts referred to in clauses (i) and (ii) of
proviso of Section 1.13(a), recordation of the assignment on the Register by the
Agent pursuant to Section 12.16 and the delivery to the Replacement Lender of
the appropriate Note or Notes executed by the Borrower, the Replacement Lender
shall become a Lender hereunder and the Replaced Lender shall cease to
constitute a Lender hereunder, except with respect to indemnification provisions
under this Agreement (including, without limitation, Sections 1.10, 1.11, 2.06,
4.04, 12.01 and 12.06), which shall survive as to such Replaced Lender.
SECTION 2. LETTERS OF CREDIT.
Section 2.01. Letters of Credit. (a) Subject to and upon the terms and
conditions set forth herein, the Borrower may request that the Letter of Credit
Issuer issue, at any time and from time to time on and after the Closing Date
and prior to the fifth Business Day (or the 30th day in the case of trade
Letters of Credit) preceding the Revolving Loan Maturity Date, for the account
of the Borrower and in support of (i) trade obligations of the Borrower or any
of its Subsidiaries that arise in the ordinary course of business and are in
respect of general corporate purposes of the Borrower or any of its
Subsidiaries, as the case may be, and/or (ii) on a standby basis, L/C
Supportable Indebtedness of the Borrower or any of its Subsidiaries to any other
Person, irrevocable letters of credit in such form as may be approved by the
Letter of Credit Issuer, and subject to and upon the terms and conditions herein
set forth, the Letter of Credit Issuer in each case agrees to issue from time to
time Letters of Credit (each such letter of credit issued or deemed issued
pursuant to this paragraph (a), a "Letter of Credit" and, collectively, the
"Letters of Credit"). For purposes of this Agreement and the other Credit
Documents, each of the Existing Letters of Credit shall be deemed a Letter of
Credit issued under this Agreement (in which each Revolving Lender shall be
deemed to have purchased a participation on the Closing Date as provided in
Section 2.04(a)). To the extent the terms and conditions of any agreement or
document relating to the reimbursement of drawings under any Existing Letter of
Credit are inconsistent with the terms and conditions of this Agreement, the
terms and conditions of this Agreement shall control with respect to such
Existing Letter of Credit. Notwithstanding the foregoing the Letter of Credit
Issuer shall be under no obligation to issue any Letter of Credit if at the time
of such issuance:
(i) any order, judgment or decree of any governmental authority
or arbitrator shall purport by its terms to enjoin or restrain the
Letter of Credit Issuer
14
from issuing such Letter of Credit or any requirement of law applicable
to the Letter of Credit Issuer or any request or directive (whether or
not having the force of law) from any governmental authority with
jurisdiction over the Letter of Credit Issuer shall prohibit, or request
that the Letter of Credit Issuer refrain from, the issuance of letters
of credit generally or such Letter of Credit in particular or shall
impose upon the Letter of Credit Issuer with respect to such Letter of
Credit any restriction or reserve or capital requirement (for which the
Letter of Credit Issuer is not otherwise compensated) not in effect on
the date hereof, or any unreimbursed loss, cost or expense which was not
applicable, in effect or known to the Letter of Credit Issuer as of the
date hereof and which the Letter of Credit Issuer in good faith deems
material to it; or
(ii) the Letter of Credit Issuer shall have received notice from
the Required Lenders prior to the issuance of such Letter of Credit of
the type described in the penultimate sentence of Section 2.03(b).
In addition, the Letter of Credit Issuer shall not be obligated to issue any
Letter of Credit at a time when a Lender Default exists unless the Letter of
Credit Issuer shall have entered into arrangements satisfactory to it and the
Borrower to eliminate the Letter of Credit Issuer's risk with respect to the
participation in Letters of Credit of the Defaulting Lender, including by cash
collateralizing such Lender's Revolving Percentage of the Letter of Credit
Outstandings. If the Letter of Credit Issuer shall not be able to issue a Letter
of Credit because of the circumstances described in clause (i) above, then, the
Borrower may, with the consent of the Agent and such Revolving Lender, designate
any Revolving Lender as a substitute letter of credit issuer for such Letter of
Credit.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time would
exceed either (x) $60,000,000 or (y) when added to the sum of the aggregate
principal amount of all Swingline Loans and Revolving Loans then outstanding,
an amount equal to the Total Revolving Credit Commitment at such time; (ii)(x)
each standby Letter of Credit shall have an expiry date occurring not later than
one year after such Letter of Credit's date of issuance (except for the Existing
Letters of Credit, which shall each have an expiry date as set forth in Schedule
2.01 and any Letter of Credit replacing each Existing Letter of Credit
identified on Schedule 2.01 as a letter of credit required to have an expiry
date later than one year after the issuance), provided that any such Letter of
Credit (other than Existing Letters of Credit) may be automatically extendable
for periods of up to one year so long as such Letter of Credit provides that
the Letter of Credit Issuer retains an option, satisfactory to the Letter of
Credit Issuer, to terminate such Letter of Credit within a specified period of
time prior to each scheduled extension date and (y) each trade Letter of Credit
shall have an expiry date occurring not later than one year after such Letter of
Credit's date of issuance; (iii)(x) no standby Letter of Credit shall have an
expiry date occurring later than the fifth Business Day next preceding the
Revolving Loan Maturity Date and (y) no trade Letter of Credit shall have an
expiry date occurring later
15
than 30 days prior to the Revolving Loan Maturity Date; and (iv) each Letter of
Credit shall be denominated in U.S. Dollars.
Section 2.02. Minimum Stated Amount. The initial Stated Amount of each
Letter of Credit shall not be less than $25,000 or such lesser amount as
is acceptable to the Letter of Credit Issuer.
Section 2.03. Letter of Credit Requests. (a) Whenever the Borrower desires
that a Letter of Credit be issued for its account, it shall give the Agent
and the Letter of Credit Issuer at least five Business Days' (or such shorter
period as is acceptable to the Letter of Credit Issuer) written notice
thereof. Each notice shall be in the form of Exhibit D (each a "Letter
of Credit Request").
(b) The making of each Letter of Credit Request shall be deemed to be a
representation and warranty by the Borrower that such Letter of Credit may be
issued in accordance with, and will not violate the requirements of, Section
2.01(b). Unless the Letter of Credit Issuer has received notice from the
Required Lenders before it issues a Letter of Credit that a Default or an Event
of Default then exists or that the issuance of such Letter of Credit would
violate Section 2.01(b), then the Letter of Credit Issuer shall issue the
requested Letter of Credit for the account of the Borrower in accordance with
the Letter of Credit Issuer's usual and customary practices. Upon its issuance
of any Letter of Credit or any amendment thereto, the Letter of Credit Issuer
shall promptly notify the Agent and each Lender of such issuance or amendment,
which notice shall be accompanied by a copy of the Letter of Credit actually
issued or the amendment actually made.
Section 2.04. Letter of Credit Participations. (a) Immediately upon the
issuance by the Letter of Credit Issuer of any Letter of Credit, the Letter
of Credit Issuer shall be deemed to have sold and transferred to each
other Revolving Lender (each such Lender, in its capacity under this
Section 2.04, a "Participant"), and each such Participant shall be deemed
irrevocably and unconditionally to have purchased and received from the Letter
of Credit Issuer, without recourse or warranty, an undivided interest and
participation, to the extent of such Participant's Revolving Percentage
in such Letter of Credit, each drawing made thereunder and the obligations
of the Borrower under this Agreement with respect thereto, and any security
therefor or guaranty pertaining thereto. Upon any change in the Revolving Credit
Commitment of the Revolving Lenders pursuant to Section 1.13 or 12.04, it is
hereby agreed that, with respect to all outstanding Letters of Credit and
Unpaid Drawings, there shall be an automatic adjustment to the participations
pursuant to this Section 2.04 to reflect the new Revolving Percentages of
the assignor and assignee Lender or of all Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the Letter
of Credit Issuer shall have no obligation relative to the respective
Participants other than to confirm that any documents required to be delivered
under such Letter of Credit appear to have been delivered and that they appear
to substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by the Letter of Credit Issuer
under or in connection with any Letter of Credit if taken or omitted in the
absence of gross
16
negligence or willful misconduct, shall not create for the Letter of Credit
Issuer any resulting liability to the Borrower or any Lender.
(c) In the event that the Letter of Credit Issuer makes any payment
under any Letter of Credit and the Borrower shall not have reimbursed such
amount in full to the Letter of Credit Issuer pursuant to Section 2.05(a), the
Letter of Credit Issuer shall promptly notify the Agent, which shall promptly
notify each Participant of such failure, and each Participant shall promptly and
unconditionally pay to the Agent for the account of the Letter of Credit Issuer
the amount of such Participant's Revolving Percentage of such unreimbursed
payment in U.S. Dollars and in same day funds. If the Agent so notifies, prior
to 12:00 Noon (New York time) on any Business Day, any Participant required to
fund a payment under a Letter of Credit, such Participant shall make available
to the Agent for the account of the Letter of Credit Issuer in U.S. Dollars such
Participant's Revolving Percentage of the amount of such payment on such
Business Day in same day funds. If and to the extent such Participant shall not
have so made its Revolving Percentage of the amount of such payment available to
the Agent for the account of the Letter of Credit Issuer, such Participant
agrees to pay to the Agent for the account of the Letter of Credit Issuer,
forthwith on demand such amount, together with interest thereon, for each day
from such date until the date such amount is paid to the Agent for the account
of the Letter of Credit Issuer at the overnight Federal Funds Rate. The failure
of any Participant to make available to the Agent for the account of the Letter
of Credit Issuer its Revolving Percentage of any payment under any Letter of
Credit shall not relieve any other Participant of its obligation hereunder to
make available to the Agent for the account of the Letter of Credit Issuer its
Revolving Percentage of any payment under any Letter of Credit on the date
required, as specified above, but no Participant shall be responsible for the
failure of any other Participant to make available to the Agent for the account
of the Letter of Credit Issuer such other Participant's Revolving Percentage of
any such payment.
(d) Whenever the Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Agent has received for the account of
the Letter of Credit Issuer any payments from the Participants pursuant to
clause (c) above, the Letter of Credit Issuer shall pay to the Agent for the
account of each Participant which has paid its Revolving Percentage thereof, in
U.S. Dollars and in same day funds, an amount equal to such Participant's
Revolving Percentage (based upon the proportionate aggregate amount originally
funded by such Participant to the aggregate amount funded by all Participants)
of the principal amount of such reimbursement obligation and interest thereon
accruing after the purchase of the respective participations.
(e) The obligations of the Participants to make payments to the Agent
for the account of the Letter of Credit Issuer with respect to Letters of Credit
shall be unconditional and irrevocable and not subject to counterclaim, set-off
or other defense or any other qualification or exception whatsoever and shall be
made in accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, any of the following
circumstances:
17
(i) any lack of validity or enforceability of this Agreement or
any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right
which the Borrower or any of its Subsidiaries may have at any time
against a beneficiary named in a Letter of Credit, any transferee of any
Letter of Credit (or any Person for whom any such transferee may be
acting), the Agent, the Agent for the account of the Letter of Credit
Issuer, any Participant, any Lender or any other Person, whether in
connection with this Agreement, any Letter of Credit, any other Credit
Document, the transactions contemplated herein or therein or any
unrelated transactions (including any underlying transaction between the
Borrower or any of its Subsidiaries on the one hand and the beneficiary
named in any such Letter of Credit on the other hand);
(iii) any draft, certificate or any other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default unless the
Letter of Credit Issuer shall have issued any such Letter of Credit in
disregard of a notice received from the Required Lenders of the type
described in the penultimate sentence of Section 2.03(b).
Section 2.05. Agreement to Repay Letter of Credit Drawings. (a) The
Borrower hereby agrees to reimburse the Letter of Credit Issuer, by making
payment to the Agent in immediately available funds at the Payment Office of the
Agent, for any payment or disbursement made by the Letter of Credit Issuer under
any Letter of Credit (each such amount, so paid until reimbursed, an "Unpaid
Drawing"), immediately after, and in any event on the date of such payment or
disbursement, with interest on the amount so paid or disbursed by the Letter of
Credit Issuer, to the extent not reimbursed prior to 12:00 Noon (New York time)
on the date of such payment or disbursement, from and including the date paid or
disbursed to but excluding the date the Letter of Credit Issuer was reimbursed
by the Borrower therefor at a rate per annum which shall be the Applicable Base
Rate Margin plus the Base Rate as in effect from time to time for Revolving
Loans; provided, however, to the extent such amounts are not reimbursed prior to
12:00 Noon (New York time) on the third Business Day following such payment or
disbursement, interest shall thereafter accrue on the amounts so paid or
disbursed by the Letter of Credit Issuer (and until reimbursed by the Borrower)
at a rate per annum which shall be the Applicable Base Rate Margin plus the Base
Rate as in effect from time to time for Revolving Loans plus 2% and with such
interest to be payable on demand. The Letter of Credit Issuer shall give the
Borrower prompt notice of each Drawing under any Letter of Credit, provided that
the failure to give any such notice shall in no way affect, impair or diminish
the Borrower's obligations hereunder.
18
(b) The obligations of the Borrower under this Section 2.05 to reimburse
the Letter of Credit Issuer with respect to drawings on Letters of Credit (each,
a "Drawing") (including, in each case, interest thereon) shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Borrower or any of its Subsidiaries
may have or have had against any Lender (including in its capacity as issuer of
the Letter of Credit or as Participant), or any non-application or
misapplication by the beneficiary of the proceeds of such Drawing, the Letter of
Credit Issuer's only obligation to the Borrower being to confirm that any
documents required to be delivered under such Letter of Credit appear to have
been delivered and that they appear to substantially comply on their face with
the requirements of such Letter of Credit. Any action taken or omitted to be
taken by the Letter of Credit Issuer under or in connection with any Letter of
Credit if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create for the Letter of Credit Issuer any resulting
liability to the Borrower or any of its Subsidiaries.
Section 2.06. Increased Costs. If at any time after the date
hereof, the introduction of or any change in any applicable law or governmental
rule, regulation, order, guideline, directive or request (whether or not having
the force of law), or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by the Letter of
Credit Issuer or any Participant with any request or directive by any such
authority (whether or not having the force of law), or any change in generally
acceptable accounting principles, shall either (i) impose, modify or make
applicable any reserve, deposit, capital adequacy or similar requirement against
letters of credit issued by the Letter of Credit Issuer or participated in by
any Participant, or (ii) impose on the Letter of Credit Issuer or any
Participant any other conditions relating, directly or indirectly, to this
Agreement or any Letter of Credit; and the result of any of the foregoing is to
increase the cost to the Letter of Credit Issuer or any Participant of issuing,
maintaining or participating in any Letter of Credit, or reduce the amount of
any sum received or receivable by the Letter of Credit Issuer or any Participant
hereunder or reduce the rate of return on its capital with respect to Letters of
Credit (except for changes in the rate of tax on, or determined by reference to,
the net income or profits of the Letter of Credit Issuer or such Participant,
pursuant to the laws of the jurisdiction in which the Letter of Credit Issuer or
such Participant is organized or the jurisdiction in which the Letter of Credit
Issuer's or such Participant's principal office or applicable lending office is
located or any subdivision thereof or therein), then, within 15 days after
demand to the Borrower by the Letter of Credit Issuer or such Participant (a
copy of which demand shall be sent by the Letter of Credit Issuer or such
Participant to the Agent), the Borrower shall pay to the Letter of Credit Issuer
or such Participant such additional amount or amounts as will compensate the
Letter of Credit Issuer or such Participant for such increased cost or reduction
in the amount receivable or reduction on the rate of return on its capital. The
Letter of Credit Issuer or any Participant, upon determining that any additional
amounts will be payable pursuant to this Section 2.06, will give prompt written
notice thereof to the Borrower, which notice shall include a certificate
submitted to the Borrower by the Letter of Credit Issuer or such Participant (a
copy of which certificate shall be sent by the Letter of Credit Issuer or such
Participant to the Agent), setting forth in reasonable detail the basis for the
calculation of
19
such additional amount or amounts necessary to compensate the Letter of Credit
Issuer or such Participant. The certificate required to be delivered pursuant to
this Section 2.06 shall, if delivered in good faith and absent manifest error,
be final and conclusive and binding on the Borrower.
SECTION 3. FEES; COMMITMENTS
Section 3.01. Fees. (a) The Borrower agrees to pay to the Agent for
distribution to each Revolving Lender a commitment fee (the "Commitment Fee")
for the period from the Closing Date to and including the Revolving Loan
Maturity Date (or such earlier date as the Total Revolving Credit Commitment
shall have been terminated) computed at a rate for each day equal to the
Applicable Commitment Fee Rate for such day on the daily average Unutilized
Revolving Credit Commitment of such Lender. Accrued Commitment Fees shall be due
and payable quarterly in arrears on the last Business Day of each February, May,
August and November of each year, and on the Revolving Loan Maturity Date (or
upon such earlier date as the Total Revolving Credit Commitment is terminated).
Notwithstanding anything to the contrary contained in the immediately preceding
sentence, (i) the Commitment Fee shall be 1/2 of 1% per annum at any time when
an Event of Default shall exist and (ii) the Commitment Fee shall be 1/2 of 1%
per annum prior to the date which is six months after the Closing Date.
(b) The Borrower agrees to pay to the Agent for pro rata distribution to
each Revolving Lender (based upon such Lender's Revolving Percentage) a fee in
respect of each Letter of Credit issued hereunder (the "Letter of Credit Fee")
for the period from and including the date of issuance of such Letter of Credit
to and including the termination of such Letter of Credit, computed at a rate
per annum equal to the Applicable Eurodollar Rate Margin for Revolving Loans as
in effect from time to time on the daily Stated Amount of such Letter of Credit.
Accrued Letter of Credit Fees shall be due and payable quarterly in arrears on
the last Business Day of each February, May, August and November and upon the
first day on or after the termination of the Total Revolving Credit Commitment
upon which no Letters of Credit remain outstanding.
(c) The Borrower agrees to pay to the Agent for the account of the
Letter of Credit Issuer a fee in respect of each Letter of Credit (the "Facing
Fee"), for the period from and including the date of issuance of such Letter of
Credit to and including the termination of such Letter of Credit, computed at a
rate per annum equal to 1/8 of 1% per annum on the daily Stated Amount of such
Letter of Credit, provided, that in any event the minimum amount of the Facing
Fee payable in any 12 month period for each Letter of Credit shall be $500; it
being agreed that, on the date of issuance of any Letter of Credit and on each
anniversary thereof prior to the termination of such Letter of Credit, if $500
will exceed the amount of Facing Fees that will accrue with respect to such
Letter of Credit for the immediately succeeding 12 month period, the full $500
shall be payable on the date of issuance of such Letter of Credit and on each
such anniversary thereof prior to the termination of such Letter of Credit.
Except as otherwise provided in the proviso to the immediately preceding
sentence, accrued Facing Fees shall be due and payable quarterly in arrears on
the last Business Day of each February, May, August and November and upon the
20
first day on or after the termination of the Total Revolving Credit Commitment
upon which no Letters of Credit remain outstanding.
(d) The Borrower agrees to pay to the Letter of Credit Issuer, upon each
drawing under, issuance of, or amendment to, any Letter of Credit, such amount
as shall at the time of such event be the administrative charge which the Letter
of Credit Issuer is customarily charging in connection with such occurrence with
respect to letters of credit.
(e) The Borrower agrees to pay to the Agent, for its own account, such
other fees as shall have been agreed to by the Borrower and the Agent in that
certain fee letter between them dated December 21, 1997, as amended.
Section 3.02. Voluntary Reduction of Commitments. (a) Upon at least five
Business Days' prior written notice to the Agent at its Notice Office (which
notice the Agent shall promptly transmit to each of the Lenders), the Borrower
shall have the right, at any time or from time to time, without premium or
penalty, to terminate the Total Unutilized Revolving Credit Commitment in whole
or in part, in integral multiples of $1,000,000 in the case of partial
reductions to the Total Unutilized Revolving Credit Commitment, provided that
each such reduction shall apply proportionately to permanently reduce the
Revolving Credit Commitment of each Revolving Lender.
(b) As and to the extent provided in Section 12.12(b), the Borrower may,
upon five Business Days' prior written notice to the Agent at its Notice Office
(which notice the Agent shall promptly transmit to each of the Lenders), require
such Lender to assign its entire Revolving Credit Commitment and all Loans, Fees
and other amounts owing to such Lender to another Lender or Lenders (which would
agree to provide the consent refused by the assignor Lender) pursuant to
subsection 12.04(b), if such other Lender or Lenders consent to such assignment,
(at which time Annex I shall be deemed modified to reflect such changed
amounts), and at such time, such Lender shall no longer constitute a "Lender"
for purposes of this Agreement, except with respect to indemnifications under
this Agreement (including, without limitation, Sections 1.10, 1.11, 2.06, 4.04,
12.01 and 12.06), which shall survive as to such Lender.
Section 3.03. Mandatory Adjustments of Commitments, Etc. (a) The Total
Commitment shall terminate in its entirety on February 27, 1998 unless the
Closing Date has occurred on or before such date.
(b) Each of the Total A Term Loan Commitment, the Total B Term Loan
Commitment and the Total C Term Loan Commitment shall terminate in its entirety
on the Closing Date, after giving effect to the making of the respective Term
Loans on such date.
(c) The Total Revolving Credit Commitment (and the Revolving Credit
Commitment of each Revolving Lender) shall terminate in their entirety on the
earlier of (i) the date on which a Change of Control occurs and (ii) the
Revolving Loan Maturity Date.
21
(d) From and after payment in full of the Term Loans, on each date upon
which a mandatory repayment of Term Loans pursuant to Section 4.02.01.(c), (d),
(e), (f) or (g) would otherwise be required, the Total Revolving Credit
Commitment shall be permanently reduced by the amount, if any, required to be
applied pursuant to said Sections.
(e) Each reduction of the Total Revolving Credit Commitment pursuant to
this Section 3.03 shall apply proportionately to the Revolving Credit Commitment
of each Lender.
SECTION 4. PREPAYMENTS; PAYMENTS
Section 4.01. Voluntary Prepayments. The Borrower shall have the right to
prepay the Loans, without premium or penalty, in whole or in part at any time
and from time to time on the following terms and conditions: (i) the Borrower
shall give the Agent prior to 12:00 Noon (New York time) at its Notice Office
(x) at least one Business Day's prior irrevocable written notice (or telephonic
notice promptly confirmed in writing) of the Borrower's intent to prepay Base
Rate Loans (or same day notice in the case of Swingline Loans provided such
notice is given prior to 11:00 A.M. (New York time)) and (y) at least three
Business Days' prior irrevocable written notice (or telephonic notice promptly
confirmed in writing) of the Borrower's intent to prepay Eurodollar Rate Loans,
whether A Term Loans, B Term Loans, C Term Loans, Revolving Loans or Swingline
Loans shall be prepaid, the amount of such prepayment and the Types of Loans to
be prepaid and, in the case of Eurodollar Rate Loans, the specific Borrowing or
Borrowings pursuant to which such Eurodollar Rate Loans were made, which notice
the Agent shall promptly transmit to each of the Lenders; (ii) each prepayment
shall be in an aggregate principal amount of at least $500,000 (or $50,000 in
the case of Swingline Loans) and in increments of $100,000 (or $25,000 in the
case of Swingline Loans) in excess thereof, provided that if any partial
prepayment of Eurodollar Rate Loans made pursuant to any Borrowing shall reduce
the outstanding Eurodollar Rate Loans made pursuant to such Borrowing to an
amount less than the Minimum Borrowing Amount, then such Borrowing may not be
continued as a Borrowing of Eurodollar Rate Loans and any selection of an
Interest Period with respect thereto given by the Borrower shall have no force
or effect; (iii) each prepayment in respect of any Loans made pursuant to a
specific Borrowing shall be applied pro rata among such Loans, provided that at
the Borrower's election in connection with any prepayment of Revolving Loans
pursuant to this Section 4.01, such prepayment shall not be applied to any
Revolving Loans of a Defaulting Lender at any time when the aggregate amount of
Revolving Loans of any Non-Defaulting Lender exceeds such Non-Defaulting
Lender's Revolving Percentage of all Revolving Loans then outstanding; (iv) each
prepayment of Term Loans pursuant to this Section 4.01 must consist of a
prepayment of A Term Loans (in an amount equal to the A TL Percentage of such
prepayment), B Term Loans (in an amount equal to the B TL Percentage of such
prepayment) and C Term Loans (in an amount equal to the C TL Percentage of such
prepayment); (v) each prepayment of A Term Loans pursuant to this Section 4.01
shall reduce the then remaining Scheduled A Repayments on a pro rata basis
(based upon the then remaining principal amount of each such Scheduled A
Repayment); (vi) each prepayment of B Term Loans pursuant to this Section 4.01
shall reduce the then remaining Scheduled B Repayments on a pro rata basis
22
(based upon the then remaining principal amount of each such Scheduled B
Repayment); and (vii) each prepayment of C Term Loans pursuant to this Section
4.01 shall reduce the then remaining Scheduled C Repayments on
a pro rata basis (based upon the then remaining principal amount of each such
Scheduled C Repayment).
Section 4.02. Mandatory Prepayments and Repayments.
Section 4.02.01. Mandatory Prepayments and Repayments. (a) If on any date the
sum of (I) the aggregate outstanding principal amount of Revolving Loans and
Swingline Loans and (II) the aggregate amount of Letter of Credit Outstandings
exceeds the Total Revolving Credit Commitment as then in effect, the Borrower
shall repay on such date that principal amount of Swingline Loans, and if no
Swingline Loans are or remain outstanding, Revolving Loans, in an amount equal
to such excess. If, after giving effect to the prepayment of all outstanding
Swingline Loans and Revolving Loans, the aggregate amount of the Letter of
Credit Outstandings exceeds the Total Revolving Credit Commitment as then in
effect, the Borrower shall pay to the Agent at the Payment Office on such date
an amount of cash or Cash Equivalents equal to the amount of such excess (up to
a maximum amount equal to the Letter of Credit Outstandings at such time), such
cash or Cash Equivalents to be held as security for the obligations of the
Borrower hereunder in a cash collateral account established by the Agent.
(b) (i) The Borrower shall be required to repay the principal amount of
A Term Loans on each date set forth below in the amount set forth opposite such
date below (each such repayment, as the same may be reduced as provided in
Sections 4.01 and 4.02.02(b), a "Scheduled A Repayment"):
SCHEDULED A REPAYMENT DATE AMOUNT
the last Business Day in August, 1998 $2,500,000.00
the last Business Day in November, 1998 2,500,000.00
the last Business Day in February, 1999 2,500,000.00
the last Business Day in May, 1999 2,500,000.00
the last Business Day in August, 1999 2,500,000.00
the last Business Day in November, 1999 2,500,000.00
the last Business Day in February, 2000 3,750,000.00
the last Business Day in May, 2000 3,750,000.00
the last Business Day in August, 2000 3,750,000.00
the last Business Day in November, 2000 3,750,000.00
the last Business Day in February, 2001 5,000,000.00
the last Business Day in May, 2001 5,000,000.00
the last Business Day in August, 2001 5,000,000.00
the last Business Day in November, 2001 5,000,000.00
23
the last Business Day in February, 2002 6,250,000.00
the last Business Day in May, 2002 6,250,000.00
the last Business Day in August, 2002 6,250,000.00
the last Business Day in November, 2002 6,250,000.00
the last Business Day in February, 2003 6,250,000.00
the last Business Day in May, 2003 6,250,000.00
the last Business Day in August, 2003 6,250,000.00
A Term Loan Maturity Date (the last Business Day in November, 2003) 6,250,000.00
(ii) The Borrower shall be required to repay the principal amount of B
Term Loans on each date set forth below in the amount set forth opposite such
date below (each such repayment, as the same may be reduced as provided in
Sections 4.01 and 4.02.02(b), a "Scheduled B Repayment"):
SCHEDULED B REPAYMENT DATE AMOUNT
the last Business Day in November, 1998 $100,000.00
the last Business Day in November, 1999 150,000.00
the last Business Day in November, 2000 150,000.00
the last Business Day in November, 2001 150,000.00
the last Business Day in November, 2002 150,000.00
the last Business Day in November, 2003 150,000.00
the last Business Day in November, 2004 150,000.00
B Term Loan Maturity Date (the last Business Day in August, 2005) 49,000,000.00
(iii) The Borrower shall be required to repay the principal amount of C
Term Loans on each date set forth below in the amount set forth opposite such
date below (each such repayment, as the same may be reduced as provided in
Sections 4.01 and 4.02.02(b), a "Scheduled C Repayment"):
SCHEDULED C REPAYMENT DATE AMOUNT
the last Business Day in November, 1998 $100,000.00
the last Business Day in November, 1999 150,000.00
the last Business Day in November, 2000 150,000.00
the last Business Day in November, 2001 150,000.00
24
the last Business Day in November, 2002 150,000.00
the last Business Day in November, 2003 150,000.00
the last Business Day in November, 2004 150,000.00
the last Business Day in November, 2005 150,000.00
C Term Loan Maturity Date (the last Business Day 73,850,000.00
in August, 2006)
(c) On the Business Day after the date of receipt thereof by the
Borrower and/or any of its Subsidiaries of Cash Proceeds from any Asset Sale, an
amount equal to 100% of the Net Cash Proceeds from such Asset Sale shall be
applied as a mandatory repayment of principal of the Term Loans (with the A TL
Percentage of such amount to be applied as a repayment of the A Term Loans, the
B TL Percentage of such amount to be applied as a repayment of the B Term Loans
and the C TL Percentage of such amount to be applied as a repayment of the C
Term Loans, in each case subject to modification of such application as set
forth in Section 4.02.03), provided that with respect to no more than
$25,000,000 in the aggregate of such Net Cash Proceeds in any fiscal year of the
Borrower, such Net Cash Proceeds shall not be required to be so applied on such
date to the extent that no Default or Event of Default then exists and the
Borrower delivers a certificate to the Agent on or prior to such date stating
that such Net Cash Proceeds shall be used to purchase assets used or to be used
in the businesses referred to in Section 8.16, within 270 days following the
date of such Asset Sale (which certificate shall set forth the estimates of the
proceeds to be so expended), and provided further, that if all or any portion of
such Net Cash Proceeds not so applied to the repayment of Term Loans are not so
used within such 270 day period, such remaining portion shall be applied on the
last day of such period as a mandatory repayment of principal of outstanding
Term Loans as provided above in this Section 4.02.01(c).
(d) On the Business Day after the date of the receipt thereof by the
Borrower and/or any of its Subsidiaries, an amount equal to 100% of the cash
proceeds (net of underwriting discounts and commissions and other reasonable
costs associated therewith) of the incurrence of Indebtedness by the Borrower
and/or any of its Subsidiaries (other than Indebtedness permitted to be incurred
by Section 8.04 as such section is in effect on the date hereof) shall be
applied as a mandatory repayment of principal of the Term Loans (with the A TL
Percentage of such amount to be applied as a repayment of the A Term Loans, the
B TL Percentage of such amount to be applied as a repayment of the B Term Loans
and the C TL Percentage of such amount to be applied as a repayment of the C
Term Loans, in each case subject to modification of such application as set
forth in Section 4.02.03).
(e) On the Business Day after the date of the receipt thereof by the
Borrower and/or any of its Subsidiaries, an amount equal to 50% of the cash
proceeds (net of underwriting discounts and commissions and other reasonable
costs associated therewith) of the issuance or sale of equity securities by the
Borrower and/or any of its Subsidiaries shall be applied as a mandatory
repayment of principal of the Term Loans (with the A TL Percentage of such
amount to be applied as a repayment of the A Term Loans, the
25
B TL Percentage of such amount to be applied as a repayment of the B Term Loans
and the C TL Percentage of such amount to be applied as a repayment of the
C Term Loans, in each case subject to modification of such application as set
forth in Section 4.02.03).
(f) On each Excess Cash Payment Date, an amount equal to 60% of Excess
Cash Flow of the Borrower and its Subsidiaries for the most recent Excess Cash
Flow Period ending prior to such Excess Cash Payment Date shall be applied as a
mandatory repayment of principal of the Term Loans (with the A TL Percentage of
such amount to be applied as a repayment of the A Term Loans, the B TL
Percentage of such amount to be applied as a repayment of the B Term Loans and
the C TL Percentage of such amount to be applied as a repayment of the C Term
Loans, in each case subject to modification of such application as set forth in
Section 4.02.03).
(g) Within 10 days following each date on which the Borrower or any of
its Subsidiaries receives any proceeds from any Recovery Event, an amount equal
to 100% of the proceeds of such Recovery Event (net of reasonable costs and
taxes incurred in connection with such Recovery Event) shall be applied as a
mandatory repayment of principal of the Term Loans (with the A TL Percentage of
such amount to be applied as a repayment of the A Term Loans, the B TL
Percentage of such amount to be applied as a repayment of the B Term Loans and
the C TL Percentage of such amount to be applied as a repayment of the C Term
Loans, in each case subject to modification of such application as set forth in
Section 4.02.03), provided that so long as no Default or Event of Default then
exists and the requirements of the Security Documents have been satisfied, such
proceeds shall not be required to be so applied on such date to the extent that
the Borrower has delivered a certificate to the Agent on or prior to such date
stating that such proceeds shall be used to replace or restore any properties
or assets in respect of which such proceeds were paid within 360 days following
the date of the receipt of such proceeds (which certificate shall set forth the
estimates of the proceeds to be so expended), and provided further, that if all
or any portion of such proceeds not required to be applied to the repayment of
Term Loans pursuant to the preceding proviso are not so used within 360 days
after the date of the receipt of such proceeds, such remaining portion shall be
applied on the last day of such period as a mandatory repayment of principal of
the Term Loans as provided above in this Section 4.02.01(g).
(h) Notwithstanding anything to the contrary contained elsewhere in this
Agreement, (i) all then outstanding Swingline Loans shall be repaid in full on
the Swingline Expiry Date and (ii) all other then outstanding Loans of the
respective Facility shall be repaid in full on the Maturity Date for such
Facility.
Section 4.02.02. Application. (a) Any amount required to be applied to A Term
Loans, B Term Loans or C Term Loans, as the case may be, shall apply to the
repayment of the outstanding principal amount of A Term Loans, B Term Loans and
C Term Loans, respectively, of the respective Facility.
(b) All repayments of A Term Loans, B Term Loans and C Term Loans
pursuant to Section 4.02.01(c), (d), (e), (f) or (g) shall be applied to reduce
the then remaining
26
Scheduled Repayments of the respective Facility pro rata
based on the sum of the then remaining Scheduled Repayments of the respective
Facility.
(c) With respect to each repayment of Loans required by this Section
4.02, the Borrower may designate the Types of Loans which are to be repaid and
the specific Borrowing(s) under the affected Facility pursuant to which such
Borrowing(s) was/were made; provided that (i) Eurodollar Rate Loans made
pursuant to a specific Facility may be designated for repayment pursuant to this
Section 4.02 only on the last day of an Interest Period applicable thereto
unless all Eurodollar Rate Loans made pursuant to such Facility with Interest
Periods ending on such date of required prepayment and all Base Rate Loans made
pursuant to such Facility have been paid in full; (ii) if early repayment of
Eurodollar Rate Loans made pursuant to a single Borrowing shall reduce the
outstanding Loans made pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount, such Borrowing shall be immediately converted into
Base Rate Loans; and (iii) each repayment of any Loans made pursuant to a
Borrowing shall be applied pro rata among such Loans; provided that no repayment
pursuant to Section 4.02.01(a) shall be applied to any Revolving Loans of a
Defaulting Lender at any time when the aggregate amount of the Revolving Loans
of any Non-Defaulting Lender exceeds such Non-Defaulting Lender's Revolving
Percentage of Revolving Loans then outstanding. In the absence of a designation
by the Borrower as described in the preceding sentence, the Agent shall, subject
to the above, make such designation in its sole discretion.
Section 4.02.03. Waiver of Certain Mandatory Repayments by B Lenders and C
Lenders. Notwithstanding anything to the contrary contained in this Section 4.02
or elsewhere in this Agreement (including, without limitation, in Section
12.12), Lenders with outstanding B Term Loans (the "B Lenders") or outstanding C
Term Loans (the "C Lenders") may waive a mandatory repayment of such Loans
pursuant to Section 4.02.01(c), (d), (e), (f) and/or (g) (each such repayment, a
"Waivable Mandatory Repayment") upon the terms and provisions set forth in this
Section 4.02.03. The Borrower shall give to the Agent written irrevocable notice
of its intention to make a Waivable Mandatory Repayment at least five Business
Days prior to such repayment, which notice the Agent shall promptly forward to
all B Lenders and C Lenders (indicating in such notice the amount of such
repayment to be applied to each such Lender's outstanding Term Loans under such
Facilities). Any B Lender and C Lender may waive all or any part of any such
Waivable Mandatory Repayment. In the event any such B Lender or C Lender desires
to waive such Lender's right to receive any such Waivable Mandatory Repayment in
whole or in part, such Lender shall so advise the Agent no later than the close
of business two Business Days after the date of such notice from the Agent,
which notice shall also include the amount such Lender desires to receive in
respect of such repayment. If any Lender does not reply to the Agent within the
two Business Days, it will be deemed not to have waived any part of such
repayment. If any Lender does not specify an amount it wishes to receive, it
will be deemed to have accepted 100% of the total payment. In the event that any
such Lender waives all or part of such right to receive any such Waivable
Mandatory Repayment, the Agent shall apply 100% of the amount so waived by such
Lender to the A Term Loans in accordance with Section 4.02.02. From and after
payment in full of the A Term Loans and, if any B Lender or C Lender waives all
or any part of a Waivable Mandatory
27
Repayment, 100% of the principal amount of the Waivable Mandatory Repayment so
waived shall be applied to (i) permanently reduce the Total Revolving Credit
Commitment until the Total Revolving Credit Commitment is reduced to
$100,000,000 (the Borrower shall repay all the Revolving Loans in excess of such
Commitment as so reduced) and (ii) thereafter, repay the outstanding Revolving
Loans, if any, without reducing the Total Revolving Credit Commitment.
Section 4.03. Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement or any Note shall be made to
the Agent for the account of the Lender or Lenders entitled thereto no later
than 12:00 Noon (New York time) on the date when due and shall be made in U.S.
Dollars in immediately available funds at the Agent's Payment Office. Any
payments under this Agreement which are made later than 12:00 Noon (New York
time) shall be deemed to have been made on the next succeeding Business Day.
Whenever any payment to be made hereunder or under any Note shall be stated to
be due on a day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day and, with respect to payments of
principal, interest shall be payable at the applicable rate during such
extension.
Section 4.04. Net Payments. (a) All payments made by the Borrower hereunder
or under any Note will be made without presentment, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower and without setoff,
counterclaim or other defense or deduction of any nature. Except as provided in
Section 4.04(b), all such payments will be made free and clear of, and without
deduction or withholding for, any present or future taxes, levies, imposts,
duties, fees, assessments or other charges of whatever nature now or hereafter
imposed by any jurisdiction or by any political subdivision or taxing authority
thereof or therein with respect to such payments (but excluding, in the case of
each Lender and the Agent, except as provided in the second succeeding sentence,
any tax imposed on or measured by the net income or profits pursuant to the laws
of the jurisdiction in which such Lender or the Agent (as the case may be) is
organized or any subdivision thereof or therein and, in the case of each Lender,
any tax imposed on or measured by the net income or profits pursuant to the laws
of the jurisdiction in which the principal office or applicable lending office
of such Lender is located or any subdivision thereof or therein) and all
interest, penalties or similar liabilities with respect thereto (all such
non-excluded taxes, levies, imposts, duties, fees, assessments or other charges
being referred to collectively as "Taxes"). If any Taxes are so levied or
imposed, the Borrower agrees to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every payment of all amounts due
under this Agreement or under any Note, after withholding or deduction for or on
account of any Taxes, will not be less than the amount provided for herein or in
such Note. If any amounts are payable in respect of Taxes pursuant to the
preceding sentence, the Borrower agrees to reimburse each Lender, upon the
written request of such Lender, for taxes imposed on or measured by the net
income or profits of such Lender pursuant to the laws of the jurisdiction in
which such Lender is organized or the jurisdiction in which the principal office
or applicable lending office of such Lender is located or under the laws of any
political subdivision or taxing authority of any such jurisdiction in which such
Lender is organized or the jurisdiction in which such Lender is organized or the
jurisdiction in which the principal office or applicable
28
lending office of such Lender is located and for any withholding of taxes as
such Lender shall determine are payable by, or withheld from, such Lender in
respect of such amounts so paid to or on behalf of such Lender pursuant to the
preceding sentence and in respect of any amounts paid to or on behalf of such
Lender pursuant to this sentence. The Borrower will furnish to the Agent within
30 days after the date the payment of any Taxes is due pursuant to applicable
law certified copies of tax receipts evidencing such payment by the Borrower.
The Borrower agrees to indemnify and hold harmless each Lender, and reimburse
such Lender upon its written request, for the amount of any Taxes so levied or
imposed and paid by such Lender.
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) agrees to deliver to the Borrower
and the Agent on or prior to the Closing Date, or in the case of a Lender that
is an assignee or transferee of an interest under this Agreement pursuant to
Section 1.13 or 12.04 (unless the respective Lender was already a Lender
hereunder immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Lender, (i) two accurate and complete original
signed copies of Internal Revenue Service Form 4224 or 1001 (or successor forms)
certifying to such Lender's entitlement to a complete exemption from United
States withholding tax with respect to payments to be made under this Agreement
and under any Note, or (ii) if the Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form 1001 or 4224 pursuant to clause (i) above, (x) a certificate
substantially in the form of Exhibit E (any such certificate, a "Section
4.04(b)(ii) Certificate") and (y) two accurate and complete original signed
copies of Internal Revenue Service Form W-8 (or successor form) certifying to
such Lender's entitlement to a complete exemption from United States withholding
tax with respect to payments of interest to be made under this Agreement and
under any Note. In addition, each Lender agrees that from time to time after the
Closing Date, when a lapse in time or change in circumstances renders the
previous certification obsolete or inaccurate in any material respect, it will
deliver to the Borrower and the Agent two new accurate and complete original
signed copies of Internal Revenue Service Form 4224 or 1001, or Form W-8 and a
Section 4.04(b)(ii) Certificate, as the case may be, and such other forms as may
be required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or it shall immediately
notify the Borrower and the Agent of its inability to deliver any such Form or
Certificate, in which case such Lender shall not be required to deliver any such
Form or Certificate. Notwithstanding anything to the contrary contained in
Section 4.04(a), but subject to Section 12.04(b) and the immediately succeeding
sentence, (x) the Borrower shall be entitled, to the extent it is required to do
so by law, to deduct or withhold income or similar taxes imposed by the United
States (or any political subdivision or taxing authority thereof or therein)
from interest, fees or other amounts payable hereunder for the account of any
Lender which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent that
such Lender has not provided to the Borrower U.S. Internal Revenue Service Forms
that establish a complete exemption from such deduction or withholding and (y)
the Borrower shall not be obligated pursuant to Section 4.04(a) to gross-up
payments to be made to a Lender in respect of income or similar
29
taxes imposed by the United States if (I) such Lender has not provided to the
Borrower the Internal Revenue Service Forms or other certificates and documents
required to be provided to the Borrower pursuant to this Section 4.04(b) or (II)
in the case of a payment, other than interest, to a Lender described in clause
(ii) above, to the extent that such Forms do not establish a complete exemption
from withholding of such taxes. Notwithstanding anything to the contrary
contained in the preceding sentence or elsewhere in this Section 4.04 and
except as set forth in Section 12.04(b), the Borrower agrees to pay additional
amounts and to indemnify each Lender in the manner set forth in Section 4.04(a)
(without regard to the identity of the jurisdiction requiring the deduction or
withholding) in respect of any amounts deducted or withheld by it as described
in the immediately preceding sentence as a result of any changes after the
Closing Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of income or similar Taxes.
Section 4.05. Application After Event of Default. Notwithstanding any other
provisions of this Credit Agreement, after the occurrence and during the
continuance of an Event of Default, all amounts collected or received by the
Agent or any Lender on account of amounts outstanding under any of the Credit
Documents or in respect of the Collateral shall be paid over or delivered as
follows:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable attorneys' fees) of
the Agent in connection with enforcing the rights of the Lenders under
the Credit Documents and any protective advances made by the Agent with
respect to the Collateral under or pursuant to the terms of the Credit
Documents;
SECOND, to the payment of all reasonable costs and expenses
(including without limitation reasonable attorneys' fees and allocated
cost of in-house attorneys), of each of the Lenders in connection with
enforcing its rights under the Credit Documents;
THIRD, to the payment of all accrued fees and interest payable to
the Lenders, the Agent or the Letter of Credit Issuer hereunder;
FOURTH, to the payment of the outstanding principal amount of the
Loans and Unpaid Drawings under Letters of Credit, to the payment or
cash collateralization of the outstanding Letter of Credit Outstandings
and to any amounts owing under Interest Rate Protection Agreements with
any Lenders or any Affiliate thereof, pro rata as set forth below;
FIFTH, to all other obligations which shall have become due and
payable under the Credit Documents and not repaid pursuant to clauses
"FIRST" through "FOURTH" above; and
SIXTH, to the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
30
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (b) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans,
Letter of Credit Outstandings and obligations under Interest Rate Protection
Agreements held by such Lender bears to the aggregate then outstanding Loans,
Letter of Credit Outstandings and obligations under Interest Rate Protection
Agreements) of amounts available to be applied pursuant to clauses "SECOND,"
"THIRD," "FOURTH," and "FIFTH" above; and (c) to the extent that any amounts
available for distribution pursuant to clause "FOURTH" above are attributable to
the issued but undrawn amount of outstanding Letters of Credit, such amounts
shall be held by the Agent in a cash collateral account and applied (x) first,
to reimburse the Letter of Credit Issuer from time to time for any drawings
under such Letters of Credit and (y) then, following the expiration of all
Letters of Credit, to all other obligations of the types described in clauses
"FIRST" and "FIFTH" above in the manner provided in this Section 4.05.
SECTION 5. CONDITIONS PRECEDENT.
Section 5.01. Conditions to Closing Date and Credit Events on the Closing
Date. The obligation of each Lender to make each Loan to the Borrower hereunder,
the obligation of the Letter of Credit Issuer to issue each Letter of Credit
hereunder and of the Existing Letters of Credit becoming Letters of Credit
hereunder, in each case on the Closing Date, is subject, at the time of each
such Credit Event, to the satisfaction of the following conditions:
(a) Execution of Agreement; Notes. On or prior to the Closing Date, (i)
this Agreement shall have been executed and delivered to the Agent and (ii)
there shall have been delivered to the Agent for the account of each Lender the
appropriate A-Term Note, B-Term Note, C-Term Note and Revolving Note, if any,
and to ABN AMRO, the Swingline Note, in each case executed by the Borrower and
in the amount, maturity and as otherwise provided herein.
(b) Officer's Certificate. On the Closing Date, the Agent shall have
received a certificate dated such date signed by an appropriate officer of the
Borrower stating that all of the applicable conditions set forth in Sections
5.01(e), (f), (g) and 5.02(a) exist as of such date.
(c) Opinions of Counsel. On the Closing Date, the Agent shall have
received opinions, addressed to the Agent and each of the Lenders and dated the
Closing Date, from (i) Howard, Darby & Levin, counsel to the Credit Parties,
which opinion shall cover the matters contained in Exhibit F and (ii) subject to
Section 7.09(i), local and other counsel to the Credit Parties and/or the Agent
reasonably satisfactory to the Agent, which opinions shall cover such matters
incident to the transactions contemplated herein and in the other Credit
Documents as the Agent may request and shall be in form and substance reasonably
satisfactory to the Agent. In addition, on the Closing Date, the Agent shall
have received copies of the opinions delivered pursuant to the Merger Agreement,
which shall be in form and substance reasonably satisfactory to the Agent.
31
(d) Corporate Proceedings. (i) On the Closing Date, the Agent shall have
received from each Credit Party a certificate, dated the Closing Date, signed by
the chairman, a vice chairman, the president or any vice-president of such
Credit Party, and attested to by the secretary or any assistant secretary of
such Credit Party, in the form of Exhibit G with appropriate insertions or in
another form approved by the Agent and executed and attested by such officers
acceptable to the Agent, together with copies of the certificate of
incorporation and by-laws of such Credit Party and the resolutions of such
Credit Party referred to in such certificate and all of the foregoing (including
each such certificate of incorporation and by-laws) shall be reasonably
satisfactory to the Agent.
(ii) On the Closing Date, all corporate and legal proceedings and all
instruments and agreements in connection with the transactions contemplated by
this Agreement and the Merger Agreement and the other Documents to be
consummated on and as of the Closing Date shall be satisfactory in form and
substance to the Agent and the Required Lenders, and the Agent shall have
received all information and copies of all certificates, documents and papers,
including good standing certificates, bring-down certificates and any other
records of corporate proceedings and governmental approvals, if any, which the
Agent reasonably may have requested in connection therewith, such documents and
papers, where appropriate, to be certified by proper corporate or governmental
authorities.
(e) Adverse Changes Etc. Since November 30, 1997, nothing shall have
occurred that has had or could be expected to have a material adverse effect on
the rights or remedies of the Agent or the Lenders, or on the ability of the
Borrower to perform its respective obligations to the Agent, Letter of Credit
Issuer and the Lenders or which has, or could be expected to have, a Material
Adverse Effect. Since November 30, 1997, nothing shall have occurred that has
had or could be expected to have a material adverse effect on the business,
properties, assets, liabilities or financial condition of Holdings and its
Subsidiaries taken as a whole, except as set forth in Schedule 6.05.
(f) Litigation. On the Closing Date, there shall be no actions, suits
proceedings or investigations pending or threatened (i) with respect to this
Agreement or any other Document or (ii) which the Agent or the Agent and the
Required Lenders shall determine could reasonably be expected to (x) have a
Material Adverse Effect or (y) have a material adverse effect on the
Transaction, the rights or remedies of the Lenders or the Agent hereunder or
under any other Credit Document or on the ability of any Credit Party to perform
its respective obligations to the Lenders or the Agent hereunder or under any
other Credit Document or prospects of the Borrower or of the Borrower and its
Subsidiaries taken as a whole.
(g) Approvals. On or prior to the Closing Date, all necessary
governmental (domestic and foreign) and third party approvals in connection with
the Transaction, the transactions contemplated by the Documents and otherwise
referred to herein or therein shall have been obtained and remain in effect, and
all applicable waiting periods shall have expired without any action being taken
by any competent authority which restrains, prevents or imposes materially
adverse conditions upon the consummation of the Transaction, the transactions
contemplated by the Documents and otherwise referred to herein or therein.
32
Additionally, there shall not exist any judgment, order, injunction or other
restraint issued or filed or a hearing seeking injunctive relief or other
restraint pending or notified prohibiting or imposing materially adverse
conditions upon the consummation of the Transaction or the making of Loans or
the issuance of the Letters of Credit.
(h) Security Documents. (i) On the Closing Date, Holdings shall have
duly authorized, executed and delivered the Holdings Guaranty in the form of
Exhibit H (as modified, amended or supplemented from time to time in accordance
with the terms thereof and hereof, the "Holdings Guaranty") and each of the
Borrower's Domestic Subsidiaries (except Immaterial Subsidiaries), shall have
duly authorized, executed and delivered the Subsidiary Guaranty in the form of
Exhibit I (as modified, amended or supplemented from time to time in accordance
with the terms thereof and hereof, the "Subsidiary Guaranty").
(ii) On the Closing Date, Holdings shall have duly authorized, executed
and delivered the Holdings Pledge Agreement in the form of Exhibit J (as
modified, amended or supplemented from time to time in accordance with the terms
thereof and hereof, the "Holdings Pledge Agreement") and shall have delivered to
the Collateral Agent for the benefit of Secured Creditors, as pledgee
thereunder, all of the Pledged Securities referred to therein, accompanied by
executed and undated stock powers, and the Holdings Pledge Agreement shall be in
full force and effect. On the Closing Date, the Borrower, Eagle-Picher
Development Company, Inc. and Eagle-Picher Minerals, Inc. shall have duly
authorized, executed and delivered the Borrower and Subsidiary Pledge Agreement
in the form of Exhibit K (as modified, amended or supplemented from time to time
in accordance with the terms thereof and hereof, the "Borrower and Subsidiary
Pledge Agreement") and shall have delivered to the Collateral Agent for the
benefit of Secured Creditors, as pledgee thereunder, all of the Pledged
Securities referred to therein, accompanied by executed and undated stock
powers, and the Borrower and Subsidiary Pledge Agreement shall be in full force
and effect.
(iii) On the Closing Date, the Borrower and each of its Domestic
Subsidiaries (except Immaterial Subsidiaries), shall have duly authorized,
executed and delivered the Security Agreement in the form of Exhibit L (as
modified, amended or supplemented from time to time in accordance with the terms
thereof and hereof, the "Security Agreement") covering all of the Security
Agreement Collateral, together with:
(A) executed copies of Financing Statements (Form UCC-1) or
appropriate local equivalent in appropriate form for filing under the
UCC or appropriate local equivalent of each jurisdiction as may be
necessary to perfect the security interests purported to be created by
the Security Agreement;
(B) certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, each of a recent date listing all
effective financing statements that name the Borrower or any of its
Domestic Subsidiaries as debtor and that are filed in the jurisdictions
referred to in clause (A) above or as otherwise identified by the Agent,
together with copies of such financing statements that name the Borrower
or any of its Domestic Subsidiaries as debtor (none of which shall cover
the Collateral
33
except (x) those with respect to which appropriate termination
statements executed by the secured lender thereunder have been delivered
to the Agent and (y) to the extent evidencing Permitted Liens);
(C) evidence of the completion of all other recordings and
filings of, or with respect to, the Security Agreement as may be
necessary or, in the reasonable opinion of the Collateral Agent,
desirable, to perfect the security interests in the Security Agreement
Collateral purported to be created by the Security Agreement; and
(D) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable, to perfect the
security interests in the Security Agreement Collateral purported to be
created by the Security Agreement have been taken;
and the Security Agreement and such Financing Statements shall be in full force
and effect.
(i) Mortgages; Title Insurance; Surveys. (A) On the Closing Date, the
Collateral Agent shall have received fully executed counterparts of deeds of
trust, mortgages and similar documents in each case in form and substance
reasonably satisfactory to the Agent (as amended, modified or supplemented from
time to time in accordance with the terms thereof and hereof, each a "Mortgage"
and, collectively, the "Mortgages") with respect to each of the Mortgaged
Properties, subject to Section 7.09(j), and arrangements reasonably satisfactory
to the Agent shall be in place to provide that counterparts of such Mortgages
shall be recorded on or promptly after the Closing Date in all places to the
extent necessary or desirable, in the judgment of the Collateral Agent,
effectively to create a valid and enforceable first priority mortgage Lien,
subject to Permitted Liens, (but subject to Section 7.09(k)) on each such
Mortgaged Property in favor of the Collateral Agent (or such other trustee as
may be required or desired under local law) for the benefit of the Secured
Creditors.
(B) On the Closing Date, the Collateral Agent shall have received
mortgagee title insurance policies, which may be in the form of marked-up
countersigned commitments (the "Mortgage Policies"), with respect to each of the
Mortgaged Properties, subject to Section 7.09(i) issued by title insurers
satisfactory to the Agent (the "Title Insurers") in amounts equal to fair market
value thereof or otherwise reasonably satisfactory to the Agent and assuring the
Collateral Agent that the Mortgages referred to in paragraph (A) above are valid
and enforceable first priority mortgage Liens on the respective Mortgaged
Properties, free and clear of all defects and encumbrances except Permitted
Liens. Such Mortgage Policies shall be in form and substance satisfactory to the
Agent and (i) shall include (to the extent available in the respective
jurisdiction of each such Mortgaged Property) an endorsement for future advances
under this Agreement, the Notes and the Mortgages, and endorsements for such
other matters that the Agent in its discretion may request, (ii) shall not
include an exception for mechanics' liens, and (iii) shall provide for
affirmative insurance and such reinsurance (including direct access agreements)
as the Agent in its discretion may reasonably request.
34
(j) Existing Indebtedness Agreements; Shareholders' Agreements;
Management Agreements; and Leases. On or prior to the Closing Date, there shall
have been delivered to the Agent copies, certified as true and correct by an
appropriate officer of the Borrower, of:
(i) all agreements evidencing or relating to the Existing
Indebtedness that are to remain in effect after giving effect to the
consummation of the Transaction (collectively, the "Existing
Indebtedness Agreements");
(ii) all agreements entered into by the Borrower or any of its
Subsidiaries governing the terms and relative rights of its capital
stock, and any agreements entered into by shareholders relating to any
such entity with respect to their capital stock, in each case that are
to remain in effect after giving effect to the consummation of the
Transaction (collectively, the "Shareholders' Agreements");
(iii) any material agreements (or the forms thereof) with members
of, or with respect to, the management of the Borrower or any of its
Subsidiaries that are to remain in effect after giving effect to the
consummation of the Transaction (collectively, the "Management
Agreements");
(iv) Senior Subordinated Note Documents and documents relating to
the Holdings Preferred Stock and the Exchange Debentures; and
(v) all agreements relating to the material leases of the Borrower
and its Subsidiaries (collectively, the "Lease Agreements");
all of which Existing Indebtedness Agreements, Shareholders' Agreements,
Management Agreements, Senior Subordinated Note Documents and Lease Agreements
shall be in form and substance satisfactory to the Agent and shall be in full
force and effect on the Closing Date.
(k) Solvency Certificate; Evidence of Insurance. On the Closing Date,
the Agent shall have received:
(i) a solvency certificate from the Borrower, addressed to the
Agent and each of the Lenders and dated the Closing Date and certifying,
that, after giving effect to the Transaction and the incurrence of all
financings contemplated herein, the Borrower (on a stand alone basis)
and the Borrower and its Subsidiaries (taken as a whole) are not
insolvent and will not be rendered insolvent by the indebtedness
incurred in connection herewith, will not be left with unreasonably
small capital with which to engage in their respective businesses and
will not have incurred debts beyond their ability to pay such debts as
they mature and become due; and
(ii) evidence of insurance complying with the requirements of
Section 7.03 for the business and properties of the Borrower and its
Subsidiaries, in scope, form and substance reasonably satisfactory to
the Agent and naming the Collateral Agent as an additional insured
and/or loss payee, and stating that such insurance shall not be
35
cancelled or revised without at least 30 days' (or 10 days' in the case
of non-payment of premium) prior written notice by the insurer to the
Collateral Agent.
(l) Pro Forma Balance Sheet and Sources and Uses of Proceeds. On or
prior to the Closing Date, there shall have been delivered to the Agent, (i) an
unaudited pro forma consolidated balance sheet of the Borrower and its
Subsidiaries as of the Closing Date after giving effect to the Transaction and
prepared in accordance with GAAP, together with a related statement of
operations and (ii) a certificate of sources and uses of proceeds to be used to
consummate the Transaction which pro forma balance sheets and statement of
operations and certificates shall be reasonably satisfactory in form and
substance to the Agent and the Required Lenders.
(m) Projections. On or prior to the Closing Date, the Lenders shall have
received the financial projections (the "Projections"), which include the
projected results of the Borrower and its Subsidiaries for the five fiscal years
ending after the Closing Date.
(n) Existing Indebtedness. On the Closing Date and after giving effect
to the Transaction to be consummated on the Closing Date and the Loans incurred,
and the Letters of Credit issued, on the Closing Date, neither the Borrower nor
any of its Subsidiaries shall have any preferred stock or Indebtedness
outstanding except for the Obligations, the Senior Subordinated Notes and the
Existing Indebtedness of the Borrower. On and as of the Closing Date, all of the
Existing Indebtedness of the Borrower shall remain outstanding after giving
effect to the Transaction to be consummated on the Closing Date and the other
transactions contemplated hereby without any default or event of default
existing thereunder or arising as a result of the Transaction and the other
transactions contemplated hereby, and there shall not be any amendments or
modifications to the Existing Indebtedness Agreements other than as requested or
approved by the Agent or the Required Lenders. On and as of the Closing Date,
the Agent and the Required Lenders shall be satisfied with the amount of and the
terms and conditions of all Existing Indebtedness.
(o) Consummation of the Transaction. (i) On the Closing Date, the Merger
shall have been consummated in accordance with the Merger Documents and all
applicable laws, and each of the conditions precedent to the consummation of the
Merger (including, without limitation, the accuracy in all material respects of
the representations and warranties contained in the Merger Agreement) shall have
been satisfied and no material provision of the Merger Documents shall have been
waived, amended, supplemented or otherwise modified, except in each case with
the consent of the Agent and the Required Lenders, to the satisfaction of the
Agent and the Required Lenders. The aggregate consideration to be received by
the shareholder of the Borrower in connection with the Merger shall consist of
cash in the amount of $410,000,000 (plus interest thereon less transaction
expenses) as provided in the Merger Agreement.
36
(ii) On or prior to the Closing Date, the Borrower shall have received
(in the case of clauses (B) and (C) below, by contribution from Holdings) gross
cash proceeds of not less than:
(A) $219,639,200 from the issuance and sale of Senior
Subordinated Notes;
(B) $80,000,000 from the issuance and sale of Holdings Preferred
Stock; and
(C) $100,000,000 from the issuance and sale of Holdings Common
Stock,
in each case on the terms and conditions satisfactory to the Agent.
(iii) On or prior to the Closing Date, there shall have been delivered to
the Agent true and correct copies of all Documents entered into on or prior to
such date in connection with the Transaction, and all of the terms and
conditions of such Documents, as well as the structure of the Transaction and
the ownership interests in the Borrower prior to and after giving effect to the
Transaction, shall be in form and substance reasonably satisfactory to the Agent
and the Required Lenders.
(iv) On the Closing Date, the Agent shall have received evidence in form,
scope and substance reasonably satisfactory to it that the matters set forth in
Section 5.01(o)(i) and (ii) have been satisfied on such date.
(p) Payment of Fees. On the Closing Date, all costs, fees and expenses,
and all other compensation contemplated by this Agreement, due to the Agent or
the Lenders (including, without limitation, certain fees as agreed to between
the Agent and the Borrower in that certain fee letter between them dated
December 21, 1997, as amended and legal fees and expenses) shall have been paid
to the extent due and the Agent is hereby authorized to deduct and pay such
amounts from the disbursement of proceeds on the Closing Date.
(q) Indebtedness. All Indebtedness of the Credit Parties and their
Subsidiaries (other than Existing Indebtedness) shall be repaid in full and all
commitments and loans relating thereto shall have been terminated and
extinguished.
Section 5.02. Conditions to Each Credit Event. The occurrence of the
Closing Date and the obligation of each Lender to make Loans (including Loans
made on the Closing Date, but excluding Mandatory Borrowings made thereafter,
which shall be made as provided in Section 1.01.03), and the obligation of the
Letter of Credit Issuer to issue (or cause to be deemed issued hereunder) any
Letter of Credit, is subject, at the time of each such Credit Event (except as
hereinafter indicated), to the satisfaction of the following conditions:
(a) No Default; Representations and Warranties. At the time of each
Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein and in the other Credit Documents in
37
effect at such time shall be true and correct in all material respects with the
same effect as though such representations and warranties had been made on and
as of the date of such Credit Event, unless stated to relate to a specific
earlier date, in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date.
(b) Notice of Borrowing; Letter of Credit Request. The Agent shall have
received a Notice of Borrowing satisfying the requirements of Section 1.03 with
respect to each incurrence of Loans; and the Agent and the Letter of Credit
Issuer shall have received a Letter of Credit Request satisfying the
requirements of Section 2.03 with respect to each issuance of a Letter of
Credit.
The occurrence of the Closing Date and the acceptance of the benefits of
each Credit Event shall constitute a representation and warranty by each Credit
Party to the Agent and each of the Lenders that all of the applicable conditions
specified above shall have been satisfied or waived as of the date of such
Credit Event. All of the Notes, certificates, legal opinions and other documents
and papers referred to in this Section 5 unless otherwise specified, shall be
delivered to the Agent at its Notice Office for the account of each of the
Lenders and, except for the Notes, in sufficient counterparts for each of the
Lenders and shall be reasonably satisfactory in form and substance to the Agent
and the Required Lenders.
Section 5.03. Determinations under Section 5.01. For purposes of
determining compliance with the conditions specified in Section 5.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Closing Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Closing Date.
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
In order to induce the Lenders to enter into this Agreement and to make
the Loans, and issue or deemed issued hereunder (and participate in) the Letters
of Credit as provided herein, the Borrower makes the following representations,
warranties and agreements, in each case after giving effect to the consummation
of the Transaction on the Closing Date, all of which shall survive the execution
and delivery of this Agreement and the Notes and the making of the Loans and
issuance of the Letters of Credit, with the occurrence of the Closing Date and
the occurrence of each Credit Event on or after the Closing Date being deemed to
constitute a representation and warranty that the matters specified in this
Section 6 are true and correct in all material respects on and as of the Closing
Date and on the date of each such Credit Event (it being understood and agreed
that any representation or warranty which by its terms is made as of a specified
date shall be required to be true and correct in all material respects only as
of such specified date).
38
Section 6.01. Corporate Status. Each of the Credit Parties and its
Subsidiaries (i) is a duly organized and validly existing corporation in good
standing under the laws of the jurisdiction of its incorporation, (ii) has the
power and authority to own its property and assets and to transact the business
in which it is engaged and presently proposes to engage and (iii) is duly
qualified as a foreign corporation and in good standing in each jurisdiction
where the ownership, leasing or operation of property or the conduct of its
business requires such qualification except where the failure to be so qualified
could not reasonably be expected to have a material adverse effect on the
business, properties, assets, liabilities or financial condition of each of the
Credit Parties or of the Credit Parties and their Subsidiaries taken as a whole.
Section 6.02. Corporate Power and Authority. Each of the Credit Parties has
the corporate power and authority to execute, deliver and perform the terms and
provisions of each of the Credit Documents to which it is a party and has taken
all necessary corporate action to authorize the execution, delivery and
performance by it of each of such Credit Documents. Each of the Credit Parties
has duly executed and delivered each of the Credit Documents to which it is a
party, and each of such Credit Documents constitutes its legal, valid and
binding obligation enforceable in accordance with its terms, except to the
extent that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
Section 6.03. No Violation. Neither the execution, delivery or performance
by each of the Credit Parties of the Credit Documents to which it is a party,
nor compliance by it with the terms and provisions thereof, nor the consummation
of the transactions contemplated herein or therein (i) will contravene any
material provision of any law, statute, rule or regulation or any order, writ,
injunction or decree of any court or governmental instrumentality (including,
without limitation, the Confirmation Order and the Plan of Reorganization), (ii)
will conflict or be inconsistent with or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
(other than pursuant to the Security Documents) result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of the Credit Parties or any of their Subsidiaries pursuant
to the terms of any indenture, mortgage, deed of trust, credit agreement, loan
agreement or any other material agreement, contract or instrument to which any
of the Credit Parties or any of their Subsidiaries is a party or by which it or
any of its property or assets are bound or to which it may be subject (except
that, as of the Closing Date, the Borrower has not obtained certain consents
required in connection with the Merger, as set forth in Schedule 6.03) or (iii)
will violate any provision of the certificate of incorporation or by-laws (or
the equivalent charter documents) of the Credit Parties or any of their
Subsidiaries.
Section 6.04. Governmental Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made on or prior to the Closing Date and which
remain in full force and effect), or exemption by, any governmental or public
body or authority, or any subdivision thereof,
39
is required to authorize, or is required in connection with, (i) the execution,
delivery and performance of any Credit Document, (ii) the legality, validity,
binding effect or enforceability of any Credit Document or (iii) the
consummation of the Transaction.
Section 6.05. Financial Statements; Financial Conditions; Undisclosed
Liabilities, etc.
(a) The audited consolidated statements of financial condition of EPII
and its Subsidiaries at November 30, 1997, and the related consolidated
statements of income and retained earnings and cash flows of EPII and its
Subsidiaries for the fiscal year ended on such date, and heretofore
furnished to the Lenders present fairly in all material respects the
consolidated financial condition of EPII and its Subsidiaries at the date of
such statements of financial condition and the consolidated results of the
operations of EPII and its Subsidiaries at the date of such statements of
financial condition and the consolidated results of the operations of EPII and
its Subsidiaries for such fiscal year. All such financial statements have been
prepared in accordance with GAAP consistently applied (except as set forth in
the notes to such financial statements). Except as set forth in Schedule 6.05,
since November 30, 1997, there has been no material adverse change in the
business, property, assets, liabilities or financial condition of EPII or of
EPII and its Subsidiaries taken as a whole.
(b) Except as fully reflected in the financial statements delivered
pursuant to Section 6.05(a) and as specifically noted on Schedule 6.19 and the
Indebtedness incurred under this Agreement, there are as of the Closing Date no
material liabilities or obligations (excluding current obligations incurred in
the ordinary course of business) with respect to the Borrower or any of its
Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due), and the Borrower or any of its Subsidiaries
does not know of any basis for the assertion against the Borrower or any of its
Subsidiaries of any such liability or obligation which, either individually or
in aggregate, are or would be reasonably likely to be material to the Borrower
or to the Borrower and its Subsidiaries taken as a whole.
(c) On and as of the Closing Date, the Projections previously delivered
to the Agent and the Lenders are based on good faith estimates and assumptions
made by the management of the Borrower and its Subsidiaries and on the Closing
Date, such management believes that the Projections are reasonable and
attainable, it being recognized by the Lenders, however, that projections as to
future events are not to be viewed as facts and that the actual results during
the period or periods covered by the Projections probably will differ from the
projected results and that the differences may be material.
(d) On and as of the Closing Date, on a pro forma basis after giving
effect to the Transaction consummated on or prior to the Closing Date and to all
Indebtedness (including the Loans and the Letters of Credit) being incurred,
assumed or guaranteed in connection therewith, (a) the sum of the assets, at a
fair valuation, of the Borrower (on a stand-alone basis) and the Borrower and
its Subsidiaries (taken as a whole) will exceed the debts of the Borrower (on a
stand-alone basis) or the Borrower and its Subsidiaries (taken as a whole), as
applicable; (b) the Borrower (on a stand-alone basis) and the Borrower and its
Subsidiaries (taken as a whole) have not incurred and do not intend to, or
believe that they will, incur debts beyond their ability to pay such debts as
such debts mature; and (c) the Borrower (on
40
a stand-alone basis) and the Borrower and its Subsidiaries (taken as a whole)
will have sufficient capital and assets with which to conduct their businesses.
For purposes of this Section 6.05(d) "debt" means any liability on a claim, and
"claim" means (i) right to payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured; or (ii) right to
an equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
(e) The pro forma consolidated balance sheet of the Borrower and its
Subsidiaries as of the Closing Date and the related pro forma consolidated
statements of income for the fiscal three-month period ended on or about the
Closing Date (all of which financial statements have been certified by the chief
financial officer of the Borrower), copies of which have heretofore been
furnished to each Lender, reflect the pro forma financial position of the
Borrower and its Subsidiaries after giving effect to the Transaction, as if such
transaction had occurred on December 1, 1997 for such balance sheet and as of
December 1, 1997 for such income statements. Such financial statements are based
on available information and on assumptions that the Borrower believes are
reasonable.
Section 6.06. Litigation. Except as set forth in Schedule 6.06, there are
no actions, suits or proceedings pending or, to the best knowledge of the Credit
Parties and their Subsidiaries, threatened (i) with respect to any Credit
Document, (ii) with respect to any material Indebtedness of the Credit Parties
or any of their Subsidiaries, (iii) that could reasonably be expected to
materially and adversely affect the business, property, assets, liabilities or
financial condition of any of the Credit Parties or of the Credit Parties and
their Subsidiaries taken as a whole or (iv) that could reasonably be expected to
have a material adverse effect on the rights or remedies of the Agents or the
Lenders or on the ability of any Credit Party to perform its respective
obligations to the Agents or the Lenders hereunder and under the other Credit
Documents to which it is, or will be, a party. Additionally, to the best
knowledge of the Credit Parties and their Subsidiaries, there does not exist any
judgment, order or injunction prohibiting, or imposing material adverse
conditions upon, the occurrence of any Credit Event.
Section 6.07. True and Complete Disclosure. All factual information (taken
as a whole) contemporaneously furnished by or on behalf of the Credit Parties or
any of their Subsidiaries in writing to the Agent or any Lender (including,
without limitation, all information contained in the Confidential Information
Memorandum and in the Preliminary Offering Memorandum dated February 4, 1998
relating to the Senior Subordinated Notes and the Holdings Preferred Stock (to
the extent such information relates to the Credit Parties and their
Subsidiaries) and the Credit Documents but excluding the Projections and any
other forecasts and projections of financial information and results submitted
to the Agent or any Lender) for purposes of or in connection with this
Agreement, or any transaction contemplated herein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of any such
Persons in writing to the Agent or any Lender will be, true and accurate in all
material respects on the date as of which such information is dated or
41
certified and not incomplete by omitting to state any factnecessary to make such
information (taken as a whole) not misleading at such time in light of the
circumstances under which such information was provided.
Section 6.08. Use of Proceeds; Margin Regulations.
(a) All proceeds of Loans shall be used by the Borrower (i) to repay all
Indebtedness of EPII and its Subsidiaries (except Existing Indebtedness) as
required by Section 5.01(q), (ii) to effectuate the Merger (including the
purchase of the common stock of EPII), (iii) to pay the transaction costs of the
Merger and (iv) for working capital and general corporate purposes (excluding
acquisitions) of the Borrower and its Subsidiaries.
(b) No part of the proceeds of any Loan will be used by the Borrower or
any Subsidiary thereof to purchase or carry any Margin Stock or to extend credit
to others for the purpose of purchasing or carrying any Margin Stock. Neither
the making of any Loan nor the use of the proceeds thereof will violate or be
inconsistent with the provisions of Regulations G, T, U or X of the Board of
Governors of the Federal Reserve System.
Section 6.09. Tax Returns and Payments. Each of the Borrower and each of
its Subsidiaries has timely filed or caused to be timely filed, on the due dates
thereof or pursuant to applicable extensions thereof, with the appropriate
taxing authority, all Federal, state and other material returns, statements,
forms and reports for taxes (the "Returns") required to be filed by, or with
respect to the income, properties or operations of, the Borrower and/or any of
its Subsidiaries. The Returns accurately reflect all liability for taxes of the
Borrower and its Subsidiaries for the periods covered thereby. Each of the
Borrower and each of its Subsidiaries has paid all taxes payable by them other
than taxes which are not delinquent, and other than those contested in good
faith and for which adequate reserves have been established in accordance with
GAAP. Except as disclosed in the financial statements referred to in Section
6.05(a) or Schedule 6.05, there is no material action, suit, proceeding,
investigation, audit, or claim now pending or, to the best knowledge of the
Borrower and its Subsidiaries, threatened by any authority rewarding any taxes
relating to the Borrower or any of its Subsidiaries. United States Federal
income tax returns of EPII and its Subsidiaries have been examined and closed
through the fiscal year ended November 30, 1993.
As of the Closing Date neither the Borrower nor any of its Subsidiaries
has entered into an agreement or waiver or been requested to enter into an
agreement or waiver extending any statute of limitations relating to the payment
or collection of material taxes of the Borrower or any of its Subsidiaries, or
is aware of any circumstances that would cause the taxable years or other
taxable periods of the Borrower or any of its Subsidiaries not to be subject to
the normally applicable statute of limitations. Neither the Borrower nor any of
its Subsidiaries has provided, with respect to themselves or property held by
them, any consent under Section 341 of the Code. To the best knowledge of the
Borrower and its Subsidiaries, neither the Borrower nor any of its Subsidiaries
has incurred, or will incur, any material tax liability in connection with the
Transaction and the other transactions contemplated hereby.
42
Section 6.10. Compliance with ERISA. Each Plan is in substantial compliance
with ERISA and the Code; except as set forth on Schedule 6.10, no Reportable
Event has occurred with respect to a Plan as a result of which the Borrower or
any Subsidiary or any ERISA Affiliate has incurred or will under existing
circumstances incur material liability under ERISA; no Plan is insolvent or in
reorganization; no Plan has an Unfunded Current Liability giving rise to a lien
under ERISA or the Code, and no Plan has an accumulated or waived funding
deficiency, has permitted decrease in its funding standard account or has
applied for a waiver of the minimum funding standard or an extension of any
amortization period within the meaning of Section 412 of the Code; all
contributions required to be made with respect to a Plan have been timely made;
neither the Borrower nor any Subsidiary of the Borrower nor any ERISA Affiliate
has incurred any material liability to or on account of a Plan pursuant to
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of
ERISA or Section 401(a)(29), 4971, 4975 or 4980 of the Code or expects to incur
any material liability (including any indirect, contingent or secondary
liability) under any of the foregoing Sections with respect to any Plan; no
proceedings have been instituted to terminate, or to appoint a trustee to
administer, any Plan other than pursuant to Section 4041(b) of ERISA; no
condition exists which presents a material risk to the Borrower or any
Subsidiary of the Borrower or any ERISA Affiliate of incurring a material
liability to or on account of a Plan pursuant to the foregoing provisions of
ERISA and the Code; using actuarial assumptions and computation methods
consistent with subpart 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of the Borrower and its Subsidiaries and its ERISA Affiliates to all
Plans which are multiemployer plans (as defined in Section 4001(a)(3) of ERISA)
in the event of a complete withdrawal therefrom, as of the close of the most
recent fiscal year of each such Plan ended prior to the date of the most recent
Credit Event, would not result in a Material Adverse Effect, no lien imposed
under the Code or ERISA on the assets of the Borrower or any Subsidiary of the
Borrower or any ERISA Affiliate exists or under existing circumstances, will
arise on account of any Plan; and except as set forth on Schedule 6.10, each of
the Borrower and its Subsidiaries may cease contributions to or terminate any
employee benefit plan maintained by them which provides benefits to retired
employees or other former employees without incurring any material liability;
and except as set forth on Schedule 6.10, the Borrower and its Subsidiaries do
not maintain or contribute to any material Retiree Welfare Plan or Foreign
Pension Plan.
Section 6.11. Subsidiaries. Schedule 6.11 correctly sets forth, as of the
Closing Date, each Subsidiary of the Borrower and the percentage ownership
(direct and indirect) of the Borrower in each class of capital stock of each of
its Subsidiaries and also identifies the direct owner thereof.
Section 6.12. Compliance with Statutes, etc. Except as set forth in
Schedule 6.13, the Borrower and each of its Subsidiaries is, to its best
knowledge, in compliance with all applicable statutes, regulations and orders
of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of their businesses and the
ownership of their property, except such noncompliances as could not reasonably
be expected to have, either individually or in the aggregate, a Material Adverse
Effect.
43
Section 6.13. Environmental Matters. Except as set forth in Schedule 6.13
and except to the extent that the aggregate effect of all failures and
noncompliances of the types described below in this Section 6.13 could not
reasonably be expected to have a Material Adverse Effect:
(a) Each of the Borrower and each of its Subsidiaries is in
compliance with all applicable Environmental Laws and the requirements
of any permits issued under such Environmental Laws. There are no
pending or, to the best knowledge of the Borrower and its Subsidiaries
after due inquiry, threatened Environmental Claims, including any such
claims (regardless of materiality) for liabilities under CERCLA relating
to the disposal of Hazardous Materials since January 7, 1991, against
the Borrower or any of its Subsidiaries or any Real Property owned or
operated by the Borrower or any of its Subsidiaries. There are no facts,
circumstances, conditions or occurrences on any Real Property owned or
operated by the Borrower or any of its Subsidiaries that, to the best
knowledge of the Borrower and its Subsidiaries after due inquiry, could
reasonably be expected (i) to form the basis of an Environmental Claim
against the Borrower or any of its Subsidiaries or any such Real
Property, or (ii) to cause any such Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability of such
Real Property by the Borrower or any of its Subsidiaries under any
applicable Environmental Law.
(b) Hazardous Materials have not been generated, used, treated or
stored on, or transported to or from, any Real Property owned or
operated by the Borrower or any of its Subsidiaries where such
generation, use, treatment or storage has violated, is in violation of,
or to the best knowledge of the Borrower and its Subsidiaries after due
inquiry may be in violation of any Environmental Law. Hazardous
Materials have not been Released on or from any Real Property owned or
operated by the Borrower or any of its Subsidiaries where such Release,
individually, may reasonably be expected to require in excess of $50,000
in response costs under any applicable Environmental Law.
(c) The Real Property owned or operated by the Borrower or any of
its Subsidiaries does not contain: (i) underground storage tanks, (ii)
any landfills or dumps, (iii) hazardous waste treatment, storage, or
disposal facilities as defined pursuant to RCRA or any comparable state
law, or (iv) a site on or nominated for the National Priority List
promulgated pursuant to CERCLA or any analogous state remedial priority
list promulgated or published pursuant to any comparable state law.
Section 6.14. Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
Section 6.15. Public Utility Holding Company Act. Neither the Borrower nor
any of its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding
44
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
Section 6.16. Patents, Licenses, Franchises and Formulas. Each of the
Borrower and each of its Subsidiaries owns all the patents, trademarks, permits,
service marks, trade names, copyrights, franchises and formulas, or rights with
respect to the foregoing, or each has obtained licenses of all other rights of
whatever nature necessary for the present conduct of its businesses, in each
case without any known conflict with the rights of others which, or the failure
to obtain which, as the case may be, could reasonably be expected to result in a
Material Adverse Effect.
Section 6.17. Properties. All Real Property owned by the Borrower or any of
its Subsidiaries and all material Leaseholds leased by the Borrower or any of
its Subsidiaries, in each case as of the Closing Date and after giving effect to
the Transaction, and the nature of the interest therein, is correctly set forth
in Schedule 6.17. Each of the Borrower and each of its Subsidiaries has good and
marketable title to, or a validly subsisting leasehold interest in, all material
properties owned or leased by it, including all Real Property reflected in
Schedule 6.17, free and clear of all Liens, other than Permitted Liens.
Section 6.18. Labor Relations. To the best knowledge of the Borrower and
its Subsidiaries, neither the Borrower nor any of its Subsidiaries is engaged in
any unfair labor practice that could reasonably be expected to have a Material
Adverse Effect. There is (i) no unfair labor practice complaint pending against
the Borrower or any of its Subsidiaries or, to the best knowledge of the
Borrower and its Subsidiaries, threatened against any of them, before the
National Labor Relations Board, and no material grievance or arbitration
proceeding arising out of or under any collective bargaining agreement is so
pending against the Borrower or any of its Subsidiaries or, to the best
knowledge of the Borrower and its Subsidiaries, threatened against any of them,
(ii) no strike, labor dispute, slowdown or stoppage pending against the Borrower
or any of its Subsidiaries or, to the best knowledge of the Borrower and its
Subsidiaries, threatened against the Borrower or any of its Subsidiaries and
(iii) to the best knowledge of the Borrower and its Subsidiaries, no union
representation proceeding is pending with respect to the employees of the
Borrower or any of its Subsidiaries and no union organizing activities are
taking place, except (with respect to any matter specified in clause (i), (ii)
or (iii) above, either individually or in the aggregate) such as could not
reasonably be expected to have a Material Adverse Effect.
Section 6.19. Indebtedness. Schedule 6.19 sets forth a true and complete
list of all Indebtedness of the Borrower and its Subsidiaries as of the Closing
Date and which is to remain outstanding after giving effect to the Transaction
and the incurrence of the Loans on such date (excluding the Loans and the
Letters of Credit, all such non-excluded Indebtedness, the "Existing
Indebtedness"), in each case showing the aggregate principal amount thereof and
the name of the respective borrower and any other entity which directly or
indirectly guaranteed such Indebtedness.
Section 6.20. Security Interests. On and after the Closing Date, each of
the Security Documents (to the extent so provided therein) creates (or after the
execution and delivery
45
thereof will create), as security for the Obligations, a valid and enforceable
perfected security interest in and Lien on all of the Collateral subject
thereto, superior to and prior to the rights of all third Persons, and subject
to no other Liens (except that the Security Agreement Collateral, the Mortgaged
Properties and the Collateral covered by the Additional Security Documents may
be subject to Permitted Liens relating thereto), in favor of the Collateral
Agent for the benefit of Secured Creditors. No filings or recordings are
required in order to perfect the security interests created under any Security
Document except for filings or recordings required in connection with any such
Security Document which shall have been made on or prior to the Closing Date as
contemplated by Section 5.01(h)(iii) or on or prior to the execution and
delivery thereof as contemplated by Sections 7.09, 7.11 and 8.14 or which shall
be made on or promptly after the Closing Date as contemplated by Section
5.01(i).
Section 6.21. Representations and Warranties in Other Documents. All
representations and warranties of the Credit Parties set forth in the other
Documents were true and correct in all material respects as of the time such
representations and warranties were made and shall be true and correct in all
material respects as of the Closing Date as if such representations and
warranties were made on and as of such date, unless stated to relate to a
specific earlier date, in which case such representations and warranties shall
be true and correct in all material respects as of such earlier date, and, the
Borrower has no knowledge that any of the representations and warranties of the
other parties set forth in the other Documents, were untrue or incorrect in any
material respect as of the time such representations and warranties were made
and as of the Closing Date as if such representations and warranties were made
on and as of such date, unless stated to relate to a specific earlier date, in
which case such representations and warranties shall be true and correct in all
material respects as of such earlier date.
Section 6.22. Transaction. At the time of consummation thereof, the
Transaction shall have been consummated in accordance with the terms of the
respective Documents and all applicable laws, in effect at such time. All
applicable waiting periods with respect thereto have or, prior to the time when
required, will have, expired without, in all such cases, any action being taken
by any competent authority which restrains, prevents, or imposes material
adverse conditions upon the Transaction. Additionally, there does not exist any
judgment, order or injunction prohibiting or imposing material adverse
conditions upon the Transaction, or the occurrence of any Credit Event or the
performance by any Credit Party of its obligations under the Documents and all
applicable laws.
Section 6.23. Capitalization. On the Closing Date and after giving effect
to the Transaction, the authorized and issued capital stock of the Borrower and
its Subsidiaries shall be as set forth on Schedule 6.23. All outstanding shares
of capital stock of the Borrower have been duly and validly issued, and are
fully paid and nonassessable. The Borrower and its Subsidiaries do not have
outstanding any securities convertible into or exchangeable for its capital
stock or outstanding any rights to subscribe for or to purchase, or any options
for the purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to,
its capital stock, except as set forth on Schedule 6.23.
46
Section 6.24. Senior Subordinated Notes. The applicable subordination
provisions contained in the Senior Subordinated Note Documents are enforceable
against the Borrower, each Guarantor and the holders thereof, and all
Obligations and Guaranteed Obligations are within the definition of "Senior
Indebtedness" included in such subordination provisions. This Agreement is the
"New Credit Agreement" under the Senior Subordinated Note Indenture.
SECTION 7. AFFIRMATIVE COVENANTS.
The Borrower covenants and agrees that on and after the Closing Date and
until the Total Commitment and all Letters of Credit have terminated, and the
Loans, any Unpaid Drawings and the Notes, together with interest, Fees and all
other obligations incurred hereunder and thereunder, are paid in full:
Section 7.01. Information Covenants. The Borrower will furnish to the Agent
with sufficient copies for each Lender (upon receipt thereof, the Agent shall
distribute to each Lender):
(a) Monthly Reports. Within 45 days after the end of each fiscal
month of the Borrower, the consolidated balance sheet of the Borrower
and its Subsidiaries as at the end of such fiscal month and the related
consolidated statements of income and retained earnings and of cash
flows for such fiscal month and for the elapsed portion of the fiscal
year ended with the last day of such fiscal month, in each case setting
forth comparative figures for the corresponding fiscal month in the
prior fiscal year and comparable budgeted figures for such fiscal month,
all of which shall be certified by the chief financial officer or other
Authorized Officer of the Borrower, subject to normal year-end audit
adjustments and the absence of footnotes.
(b) Quarterly Financial Statements. (i) Within 45 days after the
close of each quarterly accounting period in each fiscal year of the
Borrower, the consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such quarterly accounting period and the
related consolidated statements of income and retained earnings and of
cash flows for such quarterly accounting period and for the elapsed
portion of the fiscal year ended with the last day of such quarterly
accounting period, in each case setting forth comparative figures for
the related periods in the prior fiscal year, all of which shall be in
reasonable detail and certified by the chief financial officer or other
Authorized Officer of the Borrower that they fairly present in all
material respects the financial condition of the Borrower and its
Subsidiaries as of the dates indicated and the results of their
operations and changes in their cash flows for the periods indicated,
subject to normal year-end audit adjustments and the absence of
footnotes.
(ii) Within 45 days after the close of each quarterly accounting
period in each fiscal year of the Borrower, a certificate setting forth
the calculations necessary to support compliance with Sections 8.07,
8.08, 8.09 and 8.10 for such quarterly accounting period and for the
elapsed portion of the fiscal year ended with the last day
47
of such quarterly accounting period; all of which shall be in reasonable
detail and certified by the chief financial officer or other Authorized
Officer of the Borrower.
(c) Annual Financial Statements. (i) Within 90 days after the
close of each fiscal year of the Borrower, the consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of such fiscal
year and the related consolidated statements of income and retained
earnings and of cash flows for such fiscal year, in each case setting
forth comparative figures for the preceding fiscal year and comparable
budgeted figures for such fiscal year and certified by independent
certified public accountants of recognized national standing acceptable
to the Agent, in each case to the effect that such statements fairly
present the financial condition of the Borrower and its Subsidiaries as
of the dates indicated and the results of their operations and changes
in cash flows, together with a certificate of such accounting firm
stating that in the course of its regular audit of the business of the
Borrower and its Subsidiaries, which audit was conducted in accordance
with generally accepted auditing standards, no Default or Event of
Default which has occurred and is continuing has come to their attention
or, if such a Default or an Event of Default has come to their attention
a statement as to the nature thereof. The certificate of the accountant
shall be free from qualifications.
(ii) Within 90 days after the close of each fiscal year of the
Borrower, a Certificate setting forth the calculations necessary to
support compliance with Sections 8.07, 8.08, 8.09 and 8.10 for such
fiscal year; all of which shall be in reasonable detail and certified by
the chief financial officer or other Authorized Officer of the Borrower
that they fairly present the information contained therein for the
periods indicated.
(d) Budgets. As promptly as same are approved by the Board of
Directors of the Borrower, but in any event within 45 days after the
first day of each fiscal year of the Borrower, a budget in form
satisfactory to the Agent (including, without limitation, a breakdown of
the projected results of each line of business of the Borrower and its
Subsidiaries, and budgeted statements of income, and sources and uses of
cash and balance sheets for the Borrower and its Subsidiaries taken as a
whole) of the Borrower and its Subsidiaries in reasonable detail for
each of the four fiscal quarters of such fiscal year and for the
immediately succeeding fiscal year taken as a whole, in each case as
customarily prepared by management for its internal use setting forth,
with appropriate discussion, the principal assumptions upon which such
budgets are based. Together with each delivery of financial statements
pursuant to Section 7.01(a), (b) and (c), a comparison of the current
year to date financial results (other than in respect of the balance
sheets included therein) against the budgets required to be submitted
pursuant to this clause (d) shall be presented.
(e) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Section 7.01(a), (b) and (c), (i) a
certificate of the chief financial officer of the Borrower to the effect
that, no Default or Event of Default has occurred and is continuing or,
if any Default or Event of Default does exist,
48
specifying the nature and extent thereof, and (ii) a narrative
discussion and analysis of the financial condition and results of
operations of the Borrower and its Subsidiaries for the period covered
by such financial statements. In addition, at the time of the delivery
of the financial statements provided for in Section 7.01(c)(i), a
certificate of the chief financial officer or other Authorized Officer
of the Borrower setting forth (i) the amount of, and calculations
required to establish the amount of, Excess Cash Flow for the Excess
Cash Flow Period ending on the last day of the respective fiscal year
and (ii) the calculations required to establish whether the Borrower was
in compliance with Section 4.02.01(f) for the respective fiscal year.
(f) Notice of Default or Litigation. Promptly, and in any event
within five Business Days (or three Business Days with respect to an
event described in clause (i) below) after any officer of the Borrower
obtains knowledge thereof, notice of (i) the occurrence of any event
which constitutes a Default or an Event of Default, which notice
shall specify the nature thereof, the period of existence thereof and
what action the Borrower proposes to take with respect thereto, (ii) the
commencement of, or threat of, or any significant development in, any
litigation or governmental proceeding pending against the Borrower or
any of its Subsidiaries (x) in which the amount involved is $5,000,000
or more, (y) which is likely to have a Material Adverse Effect, or a
material adverse effect on the ability of any Credit Party to perform
its respective obligations hereunder or under any other Credit Document
or (z) with respect to any Credit Document, and (iii) the commencement
of, or any significant development of (x) any action affecting the
Confirmation Order, the Plan of Reorganization or the Permanent
Injunction to the extent that such action materially and adversely
affects the Transaction or (y) any material claim by the Borrower
against the PI Trust under the Merger Agreement.
(g) Management Letters. Promptly after the Borrower's receipt
thereof, a copy of each report or any "management letter" submitted to
the Borrower or any of its Subsidiaries by its certified public
accountants and the management's responses thereto.
(h) Other Reports and Filings. Promptly, copies of all financial
information, proxy materials and other material information,
certificates and reports, if any, which the Borrower or any of its
Subsidiaries (x) has filed with the Securities and Exchange Commission
or any governmental agencies substituted therefor (the "SEC") or any
comparable agency outside of the United States or (y) has delivered to
holders of, or to any agent or trustee with respect to, Indebtedness of
the Borrower or any of its Subsidiaries in their capacity as such a
holder, agent or trustee to the extent that the aggregate principal
amount of such Indebtedness exceeds (or upon the utilization of any
unused commitments may exceed) $5,000,000.
(i) Environmental Matters. Promptly upon, and in any event within
ten Business Days after any officer of the Borrower obtains knowledge
thereof, notice of one or more of the following environmental matters
which individually, or in the aggregate, may reasonably be expected to
have a Material Adverse Effect:
49
(i) any notice of Environmental Claim against the
Borrower or any of its Subsidiaries or any Real Property owned or
operated by the Borrower or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any
Real Property owned or operated by the Borrower or any of its
Subsidiaries that (a) results in noncompliance by the Borrower or
any of its Subsidiaries with any applicable Environmental Law or
(b) could reasonably be expected to form the basis of an
Environmental Claim against the Borrower or any of its
Subsidiaries or any such Real Property;
(iii) any condition or occurrence on any Real Property
owned or operated by the Borrower or any of its Subsidiaries that
could reasonably be expected to cause such Real Property to be
subject to any restrictions on the ownership, occupancy, use or
transferability by the Borrower or any of its Subsidiaries of
such Real Property under any Environmental Law; and
(iv) any removal or remedial actions to be taken in
response to the actual or alleged presence of any Hazardous
Material on any Real Property owned or operated by the Borrower
or any of its Subsidiaries as required by any Environmental Law
or any governmental or other administrative agency.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial
action and the Borrowers' or such Subsidiary's response thereto. In
addition, the Borrower agrees to provide the Lenders with copies of all
material written communications by the Borrower or any of its
Subsidiaries with any Person, government or governmental agency relating
to any of the matters set forth in clauses (i)-(iv) above, and such
detailed reports relating to any of the matters set forth in clauses
(i)-(iv) above as may reasonably be requested by the Agent or the
Required Lenders.
(j) promptly after entering into any tax sharing or tax
allocation agreements by the Borrower or any of its Subsidiaries, copies
of such agreements.
(k) Other Information. From time to time, such other information
or documents (financial or otherwise) of any Credit Party as any Lender
may reasonably request.
Section 7.02. Books, Records and Inspections. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries in conformity with GAAP and all
requirements of applicable law shall be made of all dealings and transactions in
relation to its business and activities. The Borrower will, and will cause each
of its Subsidiaries to, permit officers and designated representatives and
agents of the Agent or any Lender, to visit and inspect any of the properties of
the Borrower or such Subsidiary, and to examine the books of account of the
Borrower or such Subsidiary and discuss the affairs, finances and accounts of
the Borrower or such Subsidiary
50
with, and be advised as to the same by, its and their officers and independent
accountants, all at such reasonable times and intervals, during reasonable
business hours and to such reasonable extent as the Agent or any
Lender may request provided, that all such visits and inspections shall be
coordinated through the Agent with consultation with the Borrower.
Section 7.03. Maintenance of Property, Insurance, Environmental Matters,
etc. (a) The Borrower will, and will cause each of its Subsidiaries to, (i)
ensure that its material properties and equipment used in its business are kept
in good repair, working order and condition, normal wear and tear and damage by
casualty excepted, and, subject to Section 8.07, that from time to time there
are made in such properties and equipment all needful and proper repairs,
renewals, replacements, extensions, additions, betterments and improvements
thereto, to the extent and in the manner useful or customary for companies in
similar businesses and (ii) maintain in full force and effect with financially
sound and reputable insurance companies insurance which provides substantially
the same (or greater) coverage and against at least such risks as is in
accordance with industry practice, and shall furnish to the Agent upon written
request full information as to the insurance so carried. The Borrower shall, and
shall cause each of its Subsidiaries to, in any event maintain insurance on the
Collateral to the extent required by the Security Documents. The Borrower shall
assert its rights against the PI Trust as to these matters purported to be
indemnified by the PI Trust under the terms of the Merger Agreement.
(b) Without limiting the generality of this Section 7.03, the Borrower
and its Subsidiaries: (i) shall maintain all Real Property in compliance in all
material respects with any applicable Environmental Laws; (ii) shall obtain and
maintain in full force and effect all governmental approvals required for its
operations at or on its properties by any applicable Environmental Laws; (iii)
shall cure as soon as reasonably practicable any violation of applicable
Environmental Laws with respect to any of its properties which individually or
in the aggregate may reasonably be expected to have a Material Adverse Effect;
(iv) shall not, and shall not permit any other Person to, own or operate on any
of its properties any landfill or dump or hazardous waste treatment, storage or
disposal facility as defined pursuant to the RCRA, or any comparable state law
except for those facilities or landfills owned as of the Closing Date as set
forth in Schedule 6.13; and (v) shall not use, generate, treat, store, release
or dispose of Hazardous Materials at or on any of the Real Property except in
the ordinary course of its business and in compliance with all Environmental
Laws. With respect to any Release of Hazardous Materials, the Borrower and its
Subsidiaries shall conduct any necessary or required investigation, study,
sampling and testing, and undertake any cleanup, removal, remedial or other
response action necessary to remove, cleanup or abate any material quantity of
Hazardous Materials released at or on any of its properties as required by any
applicable Environmental Law.
Section 7.04. Corporate Franchises. The Borrower will, and will cause each
of its Subsidiaries to, do or cause to be done, all things necessary to preserve
and keep in full force and effect its existence and its material rights,
franchises, authority to do business, licenses and patents; provided, however,
that nothing in this Section 7.04 shall prevent (i) sales of assets by the
Borrower or any of its Subsidiaries in accordance with Section 8.02, (ii) the
dissolution or liquidation of any Subsidiary of the Borrower or the merger or
consolidation
51
between or among the Subsidiaries of the Borrower, in each case in accordance
with Section 8.02 or (iii) the withdrawal by the Borrower or any of its
Subsidiaries of its qualification to do business as a foreign corporation in
any jurisdiction where such withdrawal could not reasonably be expected to have
a Material Adverse Effect.
Section 7.05. Compliance with Statutes, etc. The Borrower will, and will
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including, without limitation, all
Environmental Laws applicable to the ownership or use of Real Property now or
hereafter owned or operated by the Borrower or any of its Subsidiaries),
non-compliance of which could have a Material Adverse Effect or could result in
a Lien upon any of the Borrower's or any of its Subsidiaries' property.
Section 7.06. ERISA. As soon as possible and, in any event, within 10 days
after the Borrower or any Subsidiary of the Borrower or any ERISA Affiliate
knows or has reason to know of the occurrence of any of the following, the
Borrower will deliver to each of the Lenders a certificate of the chief
financial officer of the Borrower setting forth details as to such occurrence
and the action, if any, that the Borrower, such Subsidiary or such ERISA
Affiliate is required or proposes to take, together with any notices required or
proposed to be given to or filed with or by the Borrower, the Subsidiary, the
ERISA Affiliate, the PBGC, a Plan participant or the Plan administrator with
respect thereto: that a Reportable Event has occurred; that an accumulated
funding deficiency has been incurred or an application may be or has been made
to the Secretary of the Treasury for a waiver or modification of the minimum
funding standard (including any required installment payments) or an extension
of any amortization period under Section 412 of the Code with respect to a Plan;
that a contribution required to be made to a Plan, Multiemployer Plan or Foreign
Pension Plan has not been timely made; that a Plan has been or may be
terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA other than a termination pursuant to Section 4041(b) of ERISA; that a Plan
has an Unfunded Current Liability giving rise to a lien under ERISA or the Code;
that proceedings may be or have been instituted to terminate or appoint a
trustee to administer a Plan; that a proceeding has been instituted pursuant to
Section 515 of ERISA to collect a delinquent contribution to a Plan; that the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate will or may
incur any material liability (including any indirect, contingent or secondary
liability) to or on account of the termination of or withdrawal from a Plan or
Multiemployer Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of
ERISA or with respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of
the Code or Section 409, 502(i) or 502(l) or ERISA; or that the Borrower or any
Subsidiary of the Borrower has incurred any material liability pursuant to any
employee welfare benefit plan (as defined in Section 3(1) of ERISA) that
provides benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA or applicable state or foreign law or as
disclosed on Schedule 6.10). At the request of any Lender, the Borrower will
deliver to such Lender a complete copy of the annual report (Form 5500) of each
Plan required to be filed with the Internal Revenue Service. In addition to any
certificates or notices delivered to the Lenders pursuant to the first sentence
hereof, copies of annual reports and any notices received by the
52
Borrower or any Subsidiary of the Borrower or any ERISA Affiliate with respect
to any Plan or Foreign Pension Plan shall be delivered to the Lenders no later
than 10 days after the date such report has been filed with the Internal Revenue
Service or received by the Borrower or the Subsidiary or the ERISA Affiliate.
Section 7.07. Performance of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, perform all of its material obligations under the
terms of each mortgage, indenture, security agreement and other material
agreements by which it is bound.
Section 7.08. Payment of Taxes. The Borrower will, and will cause each of
its Subsidiaries to, pay and discharge, all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits, or upon any
properties belonging to it, prior to the date on which any penalties attach
thereto, and all lawful claims for sums that have become due and payable;
provided, however, that neither the Borrower nor any of its Subsidiaries shall
be required to pay or discharge any such tax, assessment, charge, levy or claim
that is being contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until any Lien (other than
Permitted Liens described in Section 8.01(i)) resulting therefrom attaches to
its property.
Section 7.09. Collateral, Additional Security; Further Assurance.
(a) The Borrower agrees that all Obligations and any other obligations
and liabilities of the Borrower to the Agents, the Lenders and the Letter of
Credit Issuer shall be secured by (A) valid, perfected and enforceable liens in
all right, title and interest of Holdings, of the Borrower and of each Domestic
Subsidiary (except Immaterial Subsidiaries) of the Borrower in all capital stock
of the Borrower and each Domestic Subsidiary (except Immaterial Subsidiaries) of
the Borrower and, subject to Section 7.11, in 65% of Voting Equity and 100% of
Non-Voting Equity of each First Tier Foreign Subsidiary (except Immaterial
Subsidiaries) of the Borrower, whether now owned or hereafter acquired, and all
proceeds thereof and (B) valid, perfected (subject to the proviso appearing at
the end of this sentence) and enforceable liens in all right, title and interest
of the Borrower and of each Domestic Subsidiary (except Immaterial Subsidiaries)
of the Borrower in all cash and cash equivalents, accounts, chattel paper,
general intangibles, instruments, investment property, documents, inventory,
equipment and real property (subject to Section 7.09(j) below) of every kind and
description, whether now owned or hereafter acquired, (including, without
limitation, the Real Property located in Kalkaska, Michigan and Manchester,
Tennessee that is described in Schedule 6.17 upon release of the security
documents now encumbering such Real Property or acquisition of the fee interest
therein by the Borrower or any Affiliate thereof), and all proceeds thereof,
including, without limitation, all rights under any leases of goods (except for
real property located outside of the United States); provided, however, that
until a Default or an Event of Default has occurred and is continuing and
thereafter until otherwise required by the Required Lenders or the Agent, (i)
liens on cash or deposit accounts maintained with Persons other than the Lenders
need not be perfected, (ii) liens need not be perfected on note receivables
having a fair market value of less than $5,000,000 in the aggregate, (iii)
liens on investment property (other than the capital stock of the Borrower and
each Domestic Subsidiary (except Immaterial Subsidiaries) of the Borrower) which
cannot be perfected by the filing of a financing statement need not be
perfected, (iv) liens on
53
vehicles which are subject to a certificate of title law need not be noted on
the certificate of title, (v) liens on inventory and equipment located at job
sites outside of the United States of America in the ordinary course of business
need not be perfected and (vi) liens on government contracts need not be
perfected. The liens in the Collateral shall be granted by the Borrower and
Domestic Subsidiaries (except Immaterial Subsidiaries) to the Agent for the
ratable account of the Lenders and shall be valid and perfected first liens
subject, however, to the proviso appearing at the end of the immediately
preceding sentence, Section 7.09(k) below and the Permitted Liens.
Notwithstanding anything to the contrary contained herein, in no event will any
of the Collateral described above be deemed to include (i) any interests in any
leases or licenses to use real or personal property under which the Borrower or
any Domestic Subsidiary of the Borrower is lessee or licensee and a Person other
than the Borrower or an Affiliate of the Borrower is lessor or licensor to the
extent the granting of a security interest or lien therein is prohibited by the
agreement(s) pursuant to which such property is leased and such prohibition has
not been or is not waived or the consent of the applicable party has not been or
is not obtained, or (ii) any interest in any joint venture or in any contract,
contract right, or other similar general intangible if the granting of a lien
therein is prohibited by the terms of the written agreement creating such joint
venture or creating or evidencing such contract, contract right, or similar
general intangible; provided further, that (x) notwithstanding anything set
forth in clause (ii) above to the contrary, to the extent not prohibited by law,
the Agent has and shall at all times have a security interest in all rights to
payments of money due or to become due under any joint venture, contract,
contract right, or similar general intangible and all other proceeds thereof and
(y) if and when the prohibition which prevents the granting of a security
interest in any such property is removed, terminated or otherwise becomes
unenforceable as a matter of law, the Agent will be deemed to have, and at all
times to have had, a security interest in such property, and the Collateral will
be deemed to include, and at all times to have included, such property.
(b) The Borrower will, and will cause each of its Domestic Subsidiaries
(and subject to Section 7.11, each of its Foreign Subsidiaries) (except
Immaterial Subsidiaries) to, grant to the Collateral Agent for the benefit of
Secured Creditors security interests and mortgages in such assets and properties
of the Borrower and its Subsidiaries (to the extent described in Section
7.09(a)) as are not covered by the original Security Documents, and as may be
requested from time to time by the Agent or the Required Lenders subject to
applicable law. All such security interests and mortgages shall be granted
pursuant to documentation satisfactory in form and substance to the Agent and
substantially in the same form as the original Security Documents (collectively,
the "Additional Security Documents") and shall constitute valid and enforceable
perfected security interests and mortgages superior to and prior to the rights
of all third Persons and subject to no other Liens except for Permitted Liens.
The Additional Security Documents or instruments related thereto shall have been
duly recorded or filed in such manner and in such places as are required by law
to establish, perfect, preserve and protect the Liens in favor of the Collateral
Agent required to be granted pursuant to the Additional Security Documents and
all taxes, fees and other charges payable in connection therewith shall have
been paid in full.
54
(c) The Borrower shall cause to be delivered to the Collateral Agent
surveys in form and substance reasonably satisfactory to the Collateral Agent of
each Mortgaged Property, dated a recent date reasonably acceptable to the
Collateral Agent, accompanied by a certificate in the form of Exhibit O or
otherwise certified in a manner reasonably satisfactory to the Collateral Agent
by a licensed professional surveyor reasonably satisfactory to the Collateral
Agent. Each of the licensed surveyors selected in good faith by Bock & Clark
shall be deemed acceptable to the Collateral Agent.
(d) The Borrower shall cause to be delivered to the Collateral Agent
endorsements to the Mortgage Policies which shall (i) delete any exceptions for
matters that would be disclosed by a survey of the property, (ii) provide
coverage over any exceptions raised by the Title Insurers as a result of review
of the surveys of the property in form and substance acceptable to Agent, and
(iii) include such affirmative coverages and specific endorsements as are not
available as of the Closing Date because of the unavailability of surveys or as
Agent shall otherwise request, including, without limitation, comprehensive
endorsements, 3.1 zoning endorsements (modified to include parking and loading
docks), access endorsements and location endorsements, to the extent available
under applicable laws and regulations.
(e) The Borrower shall cause to be delivered to the Agent such estoppel
letters, landlord waiver letters, no-disturbance letters and similar assurances
as may have been requested (and not waived) by the Agent with respect to
Mortgaged Properties that are Leaseholds, which letters shall be in form and
substance reasonably satisfactory to the Agent.
(f) The Borrower will, and will cause each of its Subsidiaries to, at
the expense of the Borrower, make, execute, endorse, acknowledge, file and/or
deliver to the Collateral Agent from time to time such vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates, real property surveys, reports
and other assurances or instruments and take such further steps relating to the
Collateral covered by any of the Security Documents as the Collateral Agent may
reasonably require. Furthermore, the Borrower shall cause to be delivered to the
Collateral Agent such opinions of counsel, title insurance and other related
documents as may be reasonably requested by the Agent to assure themselves that
this Section 7.09 has been complied with.
(g) If the Agent or the Required Lenders determine that they are
required by law or regulation to have appraisals prepared in respect of the Real
Property of the Borrower and its Subsidiaries constituting Collateral, the
Borrower shall pay, at the Agent's request, any costs and expenses incurred or
to be incurred by the Agent in obtaining appraisals which satisfy the applicable
requirements of the Real Estate Appraisal Reform Amendments of the Financial
Institution Reform, Recovery and Enforcement Act of 1989 and which shall be in
form and substance satisfactory to the Agent.
(h) The Borrower agrees that all Obligations and any other obligations
and liabilities of the Borrower hereunder and under the other Credit Documents
shall at all times be jointly and severally guaranteed by each Guarantor
pursuant to the Holdings Guaranty or
55
the Subsidiary Guaranty, as the case may be. In the event any Domestic
Subsidiary (except Immaterial Subsidiary) of the Borrower is hereafter formed or
acquired, the Borrower shall cause such Domestic Subsidiary to execute an
assumption and supplement to the Subsidiary Guaranty pursuant to which such
Domestic Subsidiary joins in and becomes obligated as a guarantor thereunder,
which assumption and supplement shall be in form and substance satisfactory to
the Agent, and the Borrower shall also cause such Domestic Subsidiary to
execute an assumption and supplement to the Security Agreement granting the
Agent for the benefit of the Lenders a security interest in and lien on the
assets of such Domestic Subsidiary as collateral security for the Obligations
and any other obligations and liabilities of the Borrower under the Credit
Documents, together with such other instruments, documents, certificates and
opinions reasonably required by the Agent in connection therewith. In addition
the Borrower shall, or shall cause its Subsidiary (which owns capital stock of
such Domestic Subsidiary) to, execute an assumption and supplemental pledge
agreement to pledge all capital stock of such Domestic Subsidiary owned by the
Borrower or such Subsidiary, as the case may be.
(i) If on the Closing Date the Borrower does not deliver one or more
opinions of local counsel with respect to real property matters or Mortgage
Policies as contemplated by Sections 5.01(c) and 5.01(i)(B) for reasons other
than those within Borrower's reasonable control, which reasons within Borrower's
reasonable control shall include, but not be limited to, the Borrower's failure
to deliver title affidavits or indemnities or corporate documents (such as, but
not limited to, good standing certificates and certified resolutions), or
Borrower's failure to pay premiums or fees or to make deposits required by a
Title Insurer (but not including, solely for the purpose of this sentence,
deposits on account of Liens other than Permitted Liens which may be released
after the Closing Date in accordance with Section 7.09(k)), then the delivery of
the same shall not be a condition precedent under Section 5.01 but a covenant of
the Borrower as hereinafter set forth. Borrower agrees and acknowledges that
closing of the transactions contemplated hereby without receipt of such items
as are described above prior thereto does not constitute a waiver of the
Borrower's obligation to deliver such items as set forth above.
(j) If on the Closing Date any of the Mortgages to be delivered in
connection with Mortgaged Properties in which the Borrower or a Credit Party
holds a Leasehold as set forth in Schedule 6.17 has not been executed and
delivered in recordable form, then the execution and delivery of same shall not
be a condition precedent under Section 5.01 but a covenant of the Borrower as
hereinafter set forth. Borrower agrees and acknowledges that closing of the
transactions contemplated hereby without execution and delivery of such
Mortgages prior thereto does not constitute a waiver of the Borrower's
obligation to execute and deliver such Mortgages.
(k) If on the Closing Date any of the Mortgaged Properties is subject to
a Lien which is not a Permitted Lien, but such Lien or Liens do not have a
material adverse effect, singly or in the aggregate, on the business,
properties, assets, liabilities or financial condition of the Borrower or the
Credit Party granting the lien on such Mortgaged Property, then the release of
same shall not be a condition precedent under Section 5.01 but a covenant of the
Borrower as hereinafter set forth. Borrower agrees and acknowledges that closing
of the
56
transactions contemplated hereby without release of such Liens as are
described above prior thereto does not constitute a waiver of the Borrower's
obligation to release such Liens.
(l) The Borrower agrees to use all reasonable efforts in order that each
action required above by this Section 7.09 shall be completed within 90 days
after such action is either requested to be taken by the Agent or the Required
Lenders or required to be taken by the Borrower and its Subsidiaries pursuant to
the terms of this Section 7.09 and agrees that each such action shall in all
events be completed within 150 days of such request or requirement.
Section 7.10. Interest Rate Protection. On or prior to the Closing Date at
least 50% of the sum of outstanding Term Loans of the Borrower shall be subject
to Interest Rate Protection Agreements, satisfactory to the Agent, with a term
of at least 3 years from the Closing Date, or shall be subject to a fixed or
maximum interest rate (with a term of at least 3 years from the Closing Date)
acceptable to the Agent.
Section 7.11. Foreign Subsidiaries Security. If following a change in the
relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for the
Borrower reasonably acceptable to the Agent does not within 30 days after a
request from the Agent or the Required Lenders deliver evidence, in form and
substance mutually satisfactory to the Agent and the Borrower, with respect to
any Foreign Subsidiary of the Borrower which has not already had all of its
stock pledged pursuant to the Pledge Agreement that (i) a pledge (x) of 65% or
more of the total combined voting power of all classes of capital stock of such
Foreign Subsidiary entitled to vote, and (y) of any promissory note issued by
such Foreign Subsidiary to the Borrower or any of its Domestic Subsidiaries,
(ii) the entering into by such Foreign Subsidiary of a security agreement in
substantially the form of the Security Agreement and (iii) the entering into by
such Foreign Subsidiary of a guaranty in substantially the form of the
Subsidiary Guaranty, in any such case would cause the undistributed earnings of
such Foreign Subsidiary as determined for Federal income tax purposes to be
treated as a deemed dividend to such Foreign Subsidiary's United States parent
for Federal income tax purposes, then in the case of a failure to deliver the
evidence described in clause (i) above, that portion of such Foreign
Subsidiary's outstanding capital stock or any promissory notes so issued by such
Foreign Subsidiary, in each case not theretofore pledged pursuant to the Pledge
Agreement shall be pledged to the Collateral Agent for the benefit of the
Secured Creditors pursuant to the Pledge Agreement (or another pledge agreement
in substantially similar form, if needed), and in the case of a failure to
deliver the evidence described in clause (ii) above, such Foreign Subsidiary
shall execute and deliver the Security Agreement (or another security agreement
in substantially similar form, if needed), granting the Secured Creditors a
security interest in all of such Foreign subsidiary's assets and securing the
Obligations of the Borrower under the Credit Documents and under any Interest
Rate Protection Agreement and, in the event the Subsidiary Guaranty shall have
been executed by such Foreign Subsidiary, the obligations of such Foreign
Subsidiary thereunder, and in the case of a failure to deliver the evidence
described in clause (iii) above, such Foreign Subsidiary shall execute and
deliver the Subsidiary Guaranty (or another guaranty in substantially similar
form, if needed), guaranteeing the Obligations
57
of the Borrower under the Credit Documents and under any Interest Rate
Protection Agreement, in each case to the extent that the entering into such
Security Agreement or Subsidiary Guaranty is permitted by the laws of the
respective foreign jurisdiction and is not restricted by any contract or
agreement to which such Foreign Subsidiary is a party (to the extent such
restriction is not insistent with this Agreement) and with all documents
delivered pursuant to this Section 7.11 to be in form and substance reasonably
satisfactory to the Agent. Notwithstanding the foregoing, the Borrower shall
cause (i) any Voting Equity and Non-Voting Equity of any Foreign Subsidiary to
be pledged to the Collateral Agent for the benefit of Secured Creditors, (ii)
any Foreign Subsidiary to execute the Subsidiary Guaranty and (iii) any Foreign
Subsidiary to execute the Security Agreement, in each case to the extent such
action does not create any undesirable liability, tax or compliance issues under
the laws of the United States or the jurisdiction of organization of such
Foreign Subsidiary is not restricted by any contract or agreement to which such
Foreign Subsidiary is a party (to the extent such restriction is not
inconsistent with this Agreement) (including, without limitation, actual
dividends being paid by any Foreign Subsidiary to the Borrower).
SECTION 8. NEGATIVE COVENANTS.
The Borrower covenants and agrees that on and after the Closing Date and
until the Total Commitment and all Letters of Credit have terminated, and the
Loans, any Unpaid Drawings and the Notes, together with interest, Fees and all
other obligations incurred hereunder and thereunder, are paid in full:
Section 8.01. Liens. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
the Borrower or any of its Subsidiaries, whether now owned or hereafter
acquired, or sell any such property or assets subject to an understanding or
agreement, contingent or otherwise, to repurchase such property or assets, or
assign any right to receive income or permit the filing of any financing
statement under the UCC or any other similar notice of Lien under any similar
recording or notice statute; provided that the provisions of this Section 8.01
shall not prevent the creation, incurrence, assumption or existence of the
following (the Liens described below, the "Permitted Liens"):
(i) inchoate Liens for taxes, governmental assessments, charges
or levies in the nature of taxes not yet due and payable, or Liens for
taxes, governmental assessments, charges or levies and in the nature of
taxes being contested in good faith and by appropriate proceedings which
proceedings have the effect of preventing the forfeiture or sale of the
property and for which adequate reserves (in the good faith judgment of
the management of the Borrower) have been established in accordance with
GAAP;
(ii) Liens in respect of property or assets of the Borrower or
any of its Subsidiaries imposed by law, which were incurred in the
ordinary course of business and do not secure Indebtedness for borrowed
money, such as carriers', warehousemen's, materialmen's, repairmen's and
mechanic's Liens and other similar
58
Liens arising in the ordinary course of business, and (x) which do not
in the aggregate materially detract from the value of such property or
assets or materially impair the use thereof in the operation of the
business of the Borrower and its Subsidiaries or (y) which are being
contested in good faith by appropriate proceedings, which proceedings
have the effect of preventing the forfeiture or sale of the property or
assets subject to any such Lien;
(iii) Liens in existence on the Closing Date which are listed,
and the property subject thereto described, in Schedule 8.01 including
securing any refinancing of the Indebtedness secured, provided that the
aggregate principal amount of the Indebtedness, if any, secured by such
Lien does not increase from that amount outstanding on the Closing Date
and Lien does not extend to any other property;
(iv) Permitted Encumbrances;
(v) Liens incurred or deposits made (x) in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, government contracts, performance and return-of-money bonds and
other similar obligations incurred in the ordinary course of business
(exclusive of obligations in respect of the payment for borrowed money);
and (y) to secure the performance of leases of Real Property, to the
extent incurred or made in the ordinary course of business;
(vi) Liens created by or pursuant to this Agreement and the
Security Documents;
(vii) Liens arising under Capitalized Leases to the extent
permitted by this Agreement, provided that (x) such Liens only serve
to secure the payment of Indebtedness arising under such Capitalized
Leases, (y) the Lien encumbering the asset giving rise to the
Capitalized Lease does not encumber any other asset of the Borrower or
any of its Subsidiaries and (z) the aggregate principal amount of
Indebtedness secured by Liens under this clause (vii) does not exceed
$25,000,000 at any time outstanding;
(viii) statutory and common law landlord's liens under leases to
which the Borrower or any of its Subsidiaries is a party;
(ix) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances
arising after the Closing Date and not interfering in any material
respect with the ordinary conduct of the business of the Borrower or any
of its Subsidiaries; and
(x) Non-Recourse Purchase Money Security Interests, securing
Indebtedness permitted by Section 8.04(viii).
59
Section 8.02. Consolidation, Merger, Sale of Assets, etc. The Borrower will
not, and will not permit any of its Subsidiaries to, wind up, liquidate or
dissolve its affairs or enter into any transaction of merger or consolidation,
or convey, sell, lease or otherwise dispose of (or agree to do any of the
foregoing at any future time) all or any part of its property or assets, or
enter into any sale-leaseback transactions, or purchase or otherwise acquire (in
one or a series of related transactions) any part of the property or assets
(other than purchases or other acquisitions of inventory, materials and
equipment in the ordinary course of business) of any Person, except that:
(i) the Transaction may be consummated;
(ii) the Borrower and its Subsidiaries may sell and lease
inventory, materials and equipment in the ordinary course of business;
(iii) the Borrower and its Subsidiaries may sell or otherwise
dispose of any assets which, in the reasonable judgment of such Person,
have become uneconomic, obsolete or worn out;
(iv) the Borrower and its Subsidiaries may sell assets, provided
that (I) the aggregate sale proceeds from all assets subject to such
sales pursuant to this clause (iv) (other than in the ordinary course of
business, the Net Cash Proceeds of which are not required to be applied
to the making of mandatory prepayments pursuant to Section 4.02.01(c))
shall not exceed $25,000,000 in any fiscal year of the Borrowers and
(II) the Net Cash Proceeds from sales described in (I) above are either
applied to repay Term Loans as provided in Section 4.02.01(c) or
reinvested in replacement assets to the extent permitted by Section
4.02.01(c);
(v) the Borrower and its Subsidiaries may sell or exchange any
item of equipment, so long as the purpose of each such sale or exchange
is to acquire (and results within 90 days before or after such sale or
exchange in the acquisition of) replacement items of equipment which are
functional equivalent of the item of equipment so sold or exchanged;
(vi) any Subsidiary of the Borrower may be merged or consolidated
with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any one or more
Wholly-Owned Subsidiary of the Borrower (provided that the Wholly-Owned
Subsidiary or Subsidiaries shall be the continuing or surviving
corporation) or the Borrower may merge with and into a Wholly-Owned
Domestic Subsidiary of Holdings which was created solely for the purpose
of changing the Borrower's jurisdiction of incorporation to another
State of the United States; and
(vii) any Wholly-Owned Subsidiary of the Borrower may sell,
lease, transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or any other
Wholly-Owned Domestic Subsidiary of the Borrower.
60
provided, however, that during the existence of any Default or Event of Default,
any sale, transfer, lease, or other disposition of any such property will be
subject to the terms of the relevant Security Documents relating to the
permitted disposition thereof. So long as no Default or Event of Default has
occurred and is continuing or would arise as a result thereof, upon the written
request of the Borrower, the Agent shall release its Lien on any property sold
pursuant to the foregoing provisions.
Section 8.03. Dividends and Payment under Related Party Agreement. The
Borrower will not authorize, declare, pay or make, or permit any of its
Subsidiaries to authorize, declare, pay or make (a) any Dividends, except that
any Subsidiary of the Borrower may pay Dividends to the Borrower or any
Wholly-Owned Subsidiary of the Borrower and (b) any payment under any Related
Party Agreement to the extent such payment is prohibited by the Senior
Subordinated Note Documents, the Holdings Preferred Stock or the Exchange
Debenture Documents. The foregoing does not prohibit (i) the Borrower's payments
of up to $1,750,000 to Granaria Holdings or any of its Affiliates in the
aggregate in any fiscal year of the Borrower pursuant to any Related Party
Agreement entered into between Granaria Holdings or any of its Affiliates and
the Borrower or its Subsidiaries to provide management and similar services to
such Persons; (ii) during any period in which Holdings files consolidated income
tax returns that include the Borrower, the Borrower's payments to Holdings in
amounts not in excess of the amount that the Borrower would have paid if it had
filed consolidated tax returns on a separate-company basis, solely in amounts
and at the times necessary to permit Holdings to pay its consolidated income
taxes; and (iii) commencing September 1, 2003, and semi-annually thereafter on
each March 1 and September 1, the Borrower's payments of Dividends to Holdings
in an amount equal to, and for the express purpose of paying, (x) the regularly
scheduled cash dividend payments required to be paid by Holdings under the
Holdings Preferred Stock as in effect on the Closing Date or (y) any regularly
scheduled cash interest payments required to be paid by Holdings under the
Exchange Debentures as in effect on the Closing Date.
Section 8.04. Indebtedness. The Borrower will not, and will not permit any
of its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except;
(i) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents and Existing Indebtedness;
(ii) surety and appeal bonds, performance and return-of-money
bonds and other similar obligations incurred in the ordinary course of
business (exclusive of obligations in respect of the payment for
borrowed money) and accrued expenses incurred in the ordinary course of
business;
(iii) Indebtedness arising under Capitalized Leases to the extent
permitted pursuant to Section 8.01(vii);
(iv) Indebtedness under Interest Rate Protection Agreements
relating to Indebtedness otherwise permitted under this Section 8.04;
61
(v) intercompany Indebtedness among the Borrower and its
Subsidiaries to the extent permitted by Section 8.05(iii);
(vi) Indebtedness of the Borrower and the Subsidiary Guarantors
incurred under one or more Senior Subordinated Note Indentures and
Senior Subordinated Notes and the other Senior Subordinated Note
Documents delivered in connection therewith so long as (A) all of the
terms and conditions (and the documentation) in connection therewith
(including, without limitation, the issuer, amortization, maturities,
interest rates, limitations on cash interest payable, covenants,
defaults, remedies, sinking fund provisions, subordination provisions
and other terms) taken as a whole, are not materially less favorable to
the Borrower, and the subordination provisions thereof are not less
favorable to the Lenders, than those set forth in the Senior
Subordinated Note Indenture as in effect on the Closing Date and (B) the
aggregate principal amount of outstanding Senior Subordinated Notes
under the Senior Subordinated Note Indenture shall not exceed
$220,000,000, minus the aggregate principal amount of all repayments
thereof at any time;
(vii) Indebtedness of Foreign Subsidiaries in the aggregate
amount at any time outstanding not exceeding $25,000,000; and
(viii) Indebtedness secured by Non-Recourse Purchase Money
Security Interests which has not been designated Senior Indebtedness
under the Senior Subordinated Note Documents provided that the aggregate
principal amount of such Indebtedness does not exceed $25,000,000 at any
time outstanding.
Section 8.05. Advances, Investments and Loans. The Borrower will not, and
will not permit any of its Subsidiaries to, directly or indirectly, lend money
or credit or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any other Person, or enter into any partnerships or joint
ventures, or purchase or own a futures contract or otherwise become liable for
the purchase or sale of currency or other commodities at a future date in the
nature of a futures contract, except that the following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold
receivables owing to them, if created or acquired in the ordinary course
of business and payable or dischargeable in accordance with customary
trade terms;
(ii) the Borrower and its Subsidiaries may acquire and hold cash
and Cash Equivalents;
(iii) the Borrower may make intercompany loans and advances to
its Wholly-Owned Subsidiaries, and any Subsidiary of the Borrower may
make intercompany loans and advances to the Borrower, to the
Subsidiaries of such Subsidiary or to any Wholly-Owned Subsidiary of the
Borrower (collectively, "Intercompany Loans") (I) for working capital
purposes in the ordinary course of business, or (II) to consolidate cash
management activities of the Borrower and its Subsidiaries in the
62
ordinary course of business, provided that each party to the
Intercompany Loans shall execute the Subordination Agreement in the form
of Exhibit M;
(iv) the Borrower and its Subsidiaries may enter into Interest
Rate Protection Agreements with respect to Indebtedness otherwise
permitted to be incurred by the Borrower or its Subsidiaries, as the
case may be, by this Agreement;
(v) the Borrower and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business;
(vi) loans and advances by the Borrower and its Subsidiaries to
employees of the Borrower and its Subsidiaries for moving and travel
expenses and other similar expenses, in each case incurred in the
ordinary course of business, in an aggregate outstanding principal
amount not to exceed $1,000,000 at any time (determined without regard
to any write-downs or write-offs of such loans and advances), shall be
permitted;
(vii) the Borrower may own existing investment in joint venture
interests as described in Schedule 8.05; and
(viii) loans by the Borrower to Fabricon Products, Inc. in an
aggregate amount not exceeding $500,000 at any one time outstanding.
Section 8.06. Transactions with Affiliates. The Borrower will not, and will
not permit any of its Subsidiaries to, enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate of the Borrower or any of its Subsidiaries, other than on terms
and conditions substantially as favorable to the Borrower or such Subsidiary as
would be obtainable by the Borrower or such Subsidiary at the time in a
comparable arm's-length transaction with a Person other than an Affiliate,
except that (i) loans and advances may be incurred and made to the extent
permitted by Sections 8.04 and 8.05; (ii) the Borrower and its Subsidiaries may
effect intercompany transactions and transfers of goods and services in the
ordinary course of business and in conformity with the business practices in
effect on the Closing Date and as otherwise permitted pursuant to Section 8.02;
(iii) the Borrower may pay, on behalf of Holdings, ministerial administrative
and operating fees and expenses in the ordinary course to Persons other than to
Affiliates of Holdings or the Borrower, provided that the aggregate amount
thereof in any fiscal year of the Borrower does not exceed $750,000, (iv) the
Borrower may make Specified Transaction Payments, (v) the Borrower may pay up
to $1,750,000 to Granaria Holding or any of its Affiliates in the aggregate in
any fiscal year of the Borrower pursuant to any Related Party Agreement entered
into between Granaria Holdings or any of its Affiliates and the Borrower or its
subsidiaries to provide management and similar service to such Persons and (vi)
commencing September 1, 2003, the Borrower may pay dividends to Holdings in an
amount equal to (x) any regularly scheduled cash dividend payments
63
required to be paid by Holdings under the Holdings Preferred Stock as in effect
on the Closing Date or (y) any regularly scheduled cash interest payments
required to be paid by the Holdings under the Exchange Debentures as in effect
on the Closing Date.
Section 8.07. Capital Expenditures. (a) The Borrower will not, and will not
permit any of its Subsidiaries to, make or become obligated to make any Capital
Expenditures, except that during any fiscal year the Borrower and its
Subsidiaries may make and become obligated to make Capital Expenditures so long
as the aggregate amount of such Capital Expenditures does not exceed in any
fiscal year $40,000,000.
(b) Notwithstanding the foregoing, in the event that the amount of
Capital Expenditures permitted to be made by the Borrower and its Subsidiaries
pursuant to clause (a) above in any fiscal year is greater than the amount of
such Capital Expenditures made by the Borrower and its Subsidiaries during such
fiscal year, such excess (the "Rollover Amount") may be carried forward and
utilized to make Capital Expenditures (in addition to the amount permitted in
clause (a) above) in the succeeding two fiscal years so long as no Default or
Event of Default has occurred and is continuing or would result therefrom.
(c) Notwithstanding the foregoing, the Borrower and its Subsidiaries may
make Capital Expenditures (which Capital Expenditures will not be included in
any determination under the foregoing clause (a)) with any proceeds received by
the Borrower or any of its Subsidiaries from any Recovery Event so long as such
Capital Expenditures are to replace or restore any properties or assets in
respect of which such proceeds were paid within 360 days following the date of
the receipt of such proceeds to the extent such proceeds are not required to be
applied to repay Term Loans pursuant to Section 4.02.01(g).
64
Section 8.08. Interest Coverage Ratio. The Borrower will not permit the
Interest Coverage Ratio for any Test Period ending on a date set forth below to
be less than the ratio set forth opposite such date:
DATE RATIO
February 28, 1998 1.85:1.00
May 31, 1998 1.85:1.00
August 31, 1998 1.85:1.00
November 30, 1998 1.85:1.00
February 28, 1999 1.85:1.00
May 31, 1999 1.85:1.00
August 31, 1999 1.85:1.00
November 30, 1999 1.85:1.00
February 29, 2000 2.25:1.00
May 31, 2000 2.25:1.00
August 31, 2000 2.25:1.00
November 30, 2000 2.25:1.00
February 28, 2001 2.50:1.00
May 31, 2001 2.50:1.00
August 31, 2001 2.50:1.00
November 30, 2001 2.50:1.00
thereafter 3.00:1.00
Section 8.09. Leverage Ratio. The Borrower will not permit the Leverage
Ratio on the last day of any fiscal quarter ending on or about any date set
forth below to be more than the ratio set forth opposite such date:
PERIOD RATIO
February 28, 1998 5.60:1.00
May 31, 1998 5.60:1.00
August 31, 1998 5.60:1.00
November 30, 1998 5.60:1.00
February 28, 1999 5.60:1.00
May 31, 1999 5.60:1.00
August 31, 1999 5.60:1.00
November 30, 1999 5.60:1.00
February 29, 2000 4.50:1.00
May 31, 2000 4.50:1.00
August 31, 2000 4.50:1.00
November 30, 2000 4.50:1.00
February 28, 2001 3.50:1.00
May 31, 2001 3.50:1.00
August 31, 2001 3.50:1.00
November 30, 2001 3.50:1.00
thereafter 3.50:1.00
65
Section 8.10. Fixed Charge Coverage Ratio. The Borrower will not permit the
Fixed Charge Coverage Ratio for any Test Period ending on a date set forth below
to be less than the ratio set forth opposite such date:
DATE RATIO
February 28, 1998 1.50:1.00
May 31, 1998 1.50:1.00
August 31, 1998 1.50:1.00
November 30, 1998 1.50:1.00
February 28, 1999 1.50:1.00
May 31, 1999 1.50:1.00
August 31, 1999 1.50:1.00
November 30, 1999 1.50:1.00
February 29, 2000 1.75:1.00
May 31, 2000 1.75:1.00
August 31, 2000 1.75:1.00
November 30, 2000 1.75:1.00
February 28, 2001 1.75:1.00
May 31, 2001 1.75:1.00
August 31, 2001 1.75:1.00
November 30, 2001 1.75:1.00
thereafter 1.75:1.00
Section 8.11. Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain
Other Agreements; Issuances of Capital Stock; etc. The Borrower will not, and
will not permit any of its Subsidiaries to:
(i) make (or give any notice in respect of) any voluntary or
optional payment or prepayment on or redemption or purchase or
defeasance or acquisition for value of (including, without limitation,
by way of depositing with the trustee with respect thereto or any other
Person money or securities before due for the purpose of paying when
due) any Indebtedness (except for Indebtedness under the Credit
Documents) including, without limitation, Senior Subordinated Notes or
Exchange Debentures; provided that any Foreign Subsidiary may prepay any
Indebtedness of such Foreign Subsidiary;
(ii) make (or give any notice in respect of) any prepayment or
redemption or acquisition for value or purchase or defeasance as a
result of any asset sale, change of control or similar event (including,
without limitation, by way of depositing with the trustee with respect
thereto or any other Person money or securities or other property before
due for the purpose of paying when due) with respect to any Senior
Subordinated Note or Exchange Debenture;
66
(iii) amend or modify, or permit the amendment or modification of,
any provision of any Senior Subordinated Note Document which is in any
way adverse to the interests of Lenders; and
(iv) amend, modify or change in any way adverse to the interests
of the Lenders, any Tax Allocation Agreement, any Management Agreement,
any Merger Document, the Confirmation Order, the Plan of Reorganization,
the Trust Agreement relating to the PI Trust, its certificate of
incorporation (including, without limitation, by the filing or
modification of any certificate of designation) or by-laws, or any
agreement entered into by it, with respect to its capital stock
(including any Shareholders' Agreement), or enter into any new agreement
with respect to its capital stock which in any way could be adverse to
the interests of the Lenders.
Section 8.12.Limitation on Restrictions on Subsidiary Dividends and Other
Distributions. The Borrower will not, and it will not permit any of its
Subsidiaries (except for Foreign Subsidiaries with respect to clause (a) below)
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any such
Subsidiary to (a) pay dividends or make any other distributions on its capital
stock or any other interest or participation in its profits, owned by the
Borrower or any Subsidiary of the Borrower or pay or repay any Indebtedness
owed to the Borrower or any Subsidiary of the Borrower, (b) make loans or
advances to the Borrower or any Subsidiary of the Borrower, (c) transfer any of
its properties or assets to the Borrower or any Subsidiary of the Borrower or
(d) encumber or pledge any of its assets, except for Permitted Liens.
Section 8.13. Limitation on Issuances of Capital Stock by Subsidiaries. The
Borrower will not permit any of its Subsidiaries to issue any capital stock
(including by way of sales of treasury stock) or any options or warrants to
purchase, or securities convertible into, capital stock, except for transfers
and replacements of then outstanding shares of capital stock.
Section 8.14. Limitation on the Creation of Subsidiaries. Notwithstanding
anything to the contrary contained in this Agreement, the Borrower will not, and
will not permit any of its Subsidiaries to, establish, create or acquire after
the Closing Date any Subsidiary; provided that the Borrower and its Wholly-Owned
Subsidiaries shall be permitted to establish or create Wholly-Owned Subsidiaries
so long as (i) at least 30 days' prior written notice thereof is given to the
Agent, (ii) the capital stock or any other equity interest in such new
Subsidiary is pledged (or a security interest is granted therein) pursuant to,
and to the extent required by, the Borrower and Subsidiary Pledge Agreement or
the Security Agreement, as the case may be, and the certificates representing
such stock, together with stock powers duly executed in blank, or such equity
interest are delivered to the Collateral Agent, (iii) such new Subsidiary (other
than a Foreign Subsidiary except to the extent otherwise required pursuant to
Section 7.11) executes a counterpart of the Subsidiary Guaranty, the Borrower
and Subsidiary Pledge Agreement (if it has any Subsidiaries) and the Security
Agreement, and (iv) to the extent requested by the Agent, the Collateral Agent
or the Required Lenders, takes all actions required pursuant to Section 7.09. In
addition, the Borrower shall cause each new Wholly-Owned Subsidiary to execute
and deliver, or
67
cause to be executed and delivered, all other relevant documentation of the
type described in Section 5 as such new Subsidiary would have had to deliver if
such new Subsidiary were a Credit Party on the Closing Date.
Section 8.15. Maintenance of Corporate Separateness; etc.
The Borrower will not, and will not permit any of its Subsidiaries to, (a)
fail to satisfy customary corporate formalities, including, without limitation,
(i) the holding of regular board of directors' and shareholders' meetings, (ii)
the maintenance of separate corporate offices and records and (iii) the
maintenance of separate bank accounts in its own name; (b) fail to act solely in
its own corporate name and through its authorized officers and agents; (c)
except in connection with the Borrower's cash management system, commingle any
money or other assets of the Borrower or any of its Subsidiaries with any money
or other assets of each other; or (d) take any action, or conduct its affairs in
a manner, which could reasonably be expected to result in the separate corporate
existence of the Borrower and each of its Subsidiaries being ignored, or the
assets and liabilities of the Borrower or any of its Subsidiaries being
substantively consolidated with those of each other in a bankruptcy,
reorganization or other insolvency proceeding.
Section 8.16. Business. The Borrower will not, and will not permit any of
its Subsidiaries to, engage (directly or indirectly) in any business other than
the business in which it is engaged on the Closing Date, reasonable extensions
and expansions thereof and such business as may be incidental or related to such
extension and expansions.
SECTION 9. EVENTS OF DEFAULT.
Upon the occurrence of any of the following specified events (each an
"Event of Default"):
Section 9.01. Payments. The Borrower shall (i) default in the payment when
due of any payment of principal of the Loans or Notes or (ii) default, and such
default shall continue unremedied for at least two Business Days, of any payment
of interest on the Loans or Notes, of any Unpaid Drawing or any Fees or any
other amounts owing by it hereunder or any other Credit Document; or
Section 9.02. Representations, etc. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document or in
any statement or certificate delivered pursuant hereto or thereto shall prove to
be untrue in any material respect, or any other factual information (taken as a
whole) furnished on behalf of the Borrower or any of its Subsidiaries in writing
to any Lender shall prove to be untrue in any material respect on the date as of
which made or deemed made; or
Section 9.03. Covenants. The Borrower shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Sections 7 or 8 or (ii) default in the due performance or observance by it of
any term, covenant or agreement (other than those referred to in Sections 9.01
and 9.02 and clause (i) of this Section 9.03)
68
contained in this Agreement and such default shall continue unremedied for a
period of 30 days after written notice to the Borrower by the Agent or the
Required Lenders; or
Section 9.04. Default under Other Agreements. (i) Holdings, the Borrower or
any of its Subsidiaries shall (x) default in any payment of any Indebtedness of
$5,000,000 or more (other than the Obligations) beyond the period of grace, if
any, provided in the instrument or agreement under which such Indebtedness was
created or (y) default in the observance or performance of any agreement or
condition relating to any Indebtedness of $5,000,000 or more (other than the
Obligations) 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 (or a trustee or agent on behalf of such
holder or holders) to cause (determined without regard to whether any notice is
required), any such Indebtedness to become due prior to its stated maturity or
(ii) any Indebtedness of $5,000,000 or more (other than Obligations) of
Holdings, the Borrower or any of its Subsidiaries shall be declared to be due
and payable, or required to be prepaid or purchased pursuant to put provisions,
prior to the stated maturity thereof; or
Section 9.05. Bankruptcy, etc. Holdings, the Borrower or any of its
Subsidiaries shall commence a voluntary case concerning itself under Title 11 of
the United States Code entitled "Bankruptcy," as now or hereafter in effect, or
any successor thereto or any similar laws under any foreign jurisdiction (the
"Bankruptcy Code"); or an involuntary case is commenced against Holdings, the
Borrower or any of its Subsidiaries, and the petition is not controverted within
10 days, or is not dismissed within 60 days, after commencement of the case; or
a custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or substantially all of the property of Holdings, the Borrower or
any of its Subsidiaries, or Holdings, the Borrower or any of its Subsidiaries
commences any other proceeding under any reorganization, bankruptcy,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to Holdings, the Borrower or any of its Subsidiaries, or there
is commenced against Holdings, the Borrower or any of its Subsidiaries any such
proceeding which remains undismissed for a period of 60 days, or Holdings, the
Borrower or any of its Subsidiaries is adjudicated insolvent or bankrupt; or any
order of relief or other order approving any such case or proceeding is entered;
or Holdings, the Borrower or any of its Subsidiaries suffers any appointment of
any custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 60 days; or Holdings, the
Borrower or any of its Subsidiaries makes a general assignment for the benefit
of creditors; or any corporate action is taken by Holdings, the Borrower or any
of its Subsidiaries for the purpose of effecting any of the foregoing; or
Section 9.06. ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof or a waiver of such standard
or extension of any amortization period is sought or granted under Section 412
of the Code, any Plan shall have had or will have a trustee appointed to
administer such Plan, any Plan is, shall have been or will be terminated or be
the subject of termination proceedings under ERISA, any Plan shall have an
Unfunded Current Liability giving rise to a lien under ERISA
69
or the Code, a contribution required to be made to a Plan or a Foreign Pension
Plan has not been timely made, the Borrower or any Subsidiary of the Borrower or
any ERISA Affiliate has incurred or will incur a liability to or on account of
a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201,
4204 or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or 4980 of the Code, or
the Borrower or any Subsidiary of the Borrower has incurred or will incur
liabilities pursuant to one or more employee welfare benefit plans (as defined
in Section 3(1) of ERISA) that provide benefits to retired employees or other
former employees (other than as required by Section 601 of ERISA or as disclosed
on Schedule 6.10); (b) there shall result from any such event or events the
imposition of a lien, the granting of a security interest, or a liability; and
(c) which lien, security interest or liability, in the opinion of the Required
Lenders, could reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or of the Borrower and its Subsidiaries
taken as a whole; or
Section 9.07. Security Documents. (a) Except in the event of the Collateral
Agent's failure to file continuation statements, any Security Document shall
cease to be in full force and effect in any material respect, or shall cease to
give the Collateral Agent the Liens, rights, powers and privileges purported to
be created thereby in favor of the Collateral Agent for the benefit of Secured
Creditors (including, without limitation, a perfected security interest
(purported to be created thereby) in, and Lien on, all of the Collateral) in any
material respect, or (b) any Credit Party shall default in the due performance
or observance of any term, covenant or agreement on its part to be performed or
observed pursuant to any such Security Document and such default shall continue
unremedied for a period of 30 days; or
Section 9.08. Guaranties. The Guaranties or any provision thereof shall
cease to be in full force and effect in any material respect, or any Guarantor
or any Person acting by or on behalf of such Guarantor shall deny, disaffirm or
repudiate such Guarantor's obligations under any Guaranty or any Guarantor shall
default in the due performance or observance of any term, covenant or agreement
on its part to be performed or observed pursuant to any Guaranty or any "Event
of Default" with respect to the Holdings Guaranty shall occur; or
Section 9.09. Judgments. One or more final, non-appealable judgments or
decrees shall be entered against Holdings, the Borrower or any of its
Subsidiaries involving in the aggregate for Holdings, the Borrower and its
Subsidiaries a liability (not paid or fully covered by insurance) of $5,000,000
or more, and all such judgments or decrees shall not have been satisfied,
stayed, annulled or rescinded within 60 days from the entry thereof; or
Section 9.10. Change in Control. A Change of Control shall occur; or
Section 9.11. Matters Regarding the Permanent Injunction. The Permanent
Injunction shall be stayed, voided, vacated or reversed or modified in any
material respect which results in the Borrower becoming subject to asbestos or
lead related claims that were otherwise enjoined as to the Borrower:
70
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Agent shall upon the written request of the
Required Lenders, by written notice to the Borrower, take any or all of the
following actions, without prejudice to the rights of the Agent, any Lender or
the holder of any Note to enforce its claims against any Guarantor or the
Borrower (provided, that, if an Event of Default specified in Section 9.05 shall
occur with respect to Holdings, the Borrower or a Subsidiary Guarantor, the
result which would occur upon the giving of written notice by the Agent to the
Borrower as specified in clauses (i), (ii) and (vi) below shall occur
automatically without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon the Commitment of each Lender shall forthwith
terminate immediately and any Commitment Fee shall forthwith become due and
payable without any other notice of any kind; (ii) declare the principal of and
any accrued interest in respect of all Loans and the Notes and all Obligations
owing hereunder (including Unpaid Drawings) to be, whereupon the same shall
become, forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower; (iii)
enforce, as Collateral Agent (or direct the Collateral Agent to enforce), any or
all of the Liens and security interests created pursuant to the Security
Documents; (iv) terminate any Letter of Credit which may be terminated in
accordance with its terms; (v) direct the Borrower to pay (and the Borrower
agrees that upon receipt of such notice, or upon the occurrence of an Event of
Default specified in Section 9.05, it will pay) to the Agent at its Payment
Office such additional amounts of cash, to be held as security for the
Borrower's reimbursement obligations for Drawings that may subsequently occur
under outstanding Letters of Credit hereunder, equal to the aggregate Stated
Amount of all Letters of Credit issued and then outstanding; and (vi) apply any
cash collateral as provided in Section 4.02.01(a).
SECTION 10. DEFINITIONS AND ACCOUNTING TERMS.
Section 10.01. Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"ABN AMRO" shall mean ABN AMRO Bank N.V. in its individual capacity.
"A Term Loan" shall have the meaning provided in Section 1.01.01(a).
"A Term Loan Commitment" shall mean, with respect to each Lender, the
amount set forth opposite such Lender's name in Annex I directly below the
column entitled "A Term Loan Commitment," as the same may be terminated or
reduced pursuant to Section 3.03 and/or Section 9.
"A Term Loan Facility" shall mean the Facility evidenced by the Total A
Term Loan Commitment.
"A Term Loan Maturity Date" shall mean the last Business Day in
November, 2003.
"A-Term Note" shall have the meaning provided in Section 1.05(a).
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"A TL Percentage" shall mean, at any time, (i) prior to the disbursement
of the A Term Loans, a fraction (expressed as a percentage) the numerator of
which is the amount of the Total A Term Loan Commitment at such time and the
denominator of which is the amount of the Total Term Loan Commitment at such
time and (ii) after the disbursement of the A Term Loan, a fraction (expressed
as a percentage) the numerator of which is equal to the sum of the aggregate
principal amount of all A Term Loans outstanding at such time and the
denominator of which is equal to the sum of the aggregate principal amount of
all Term Loans outstanding at such time.
"Additional Security Documents" shall have the meaning provided in
Section 7.09(b).
"Affiliate" shall mean, with respect to any Person, any other Person (i)
directly or indirectly controlling (including, but not limited to, all directors
and officers of such Person), controlled by, or under direct or indirect common
control with, such Person or (ii) that directly or indirectly owns more than 5%
of the voting securities of such Person. A Person shall be deemed to control a
corporation if such Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of, such
corporation, whether through the ownership of voting securities, by contract or
otherwise. Notwithstanding the foregoing, none of the Lenders or any of their
respective affiliates shall be deemed to be Affiliates of the Holdings, the
Borrower or any of their Subsidiaries.
"Agent" shall mean ABN AMRO Bank N.V., in its capacity as Agent for the
Lenders hereunder, and shall include any successor to the Agent appointed
pursuant to Section 11.09.
"Agents" shall mean the Agent, the Documentation Agent, the Syndication
Agent and the Collateral Agent.
"Agreement" shall mean this Credit Agreement, as modified, supplemented,
amended, restated, extended, renewed or replaced from time to time.
"Applicable Base Rate Margin" shall mean initially (i) in the case of A
Term Loans, Revolving Loans and Swingline Loans, 1.25%, (ii) in the case of B
Term Loans, 1.625% and (iii) in the case of C Term Loans, 1.875%; provided that
from and after the day that is six months after the Closing Date, the Applicable
Base Rate Margin will be determined pursuant to the Pricing Grid.
"Applicable Commitment Fee Rate" shall mean initially 0.50% and from and
after the day that is six months after the Closing Date, the Applicable
Commitment Fee Rate will be determined pursuant to the Pricing Grid.
"Applicable Eurodollar Rate Margin" shall mean initially (i) in the case
of A Term Loans and Revolving Loans, 2.25%, (ii) in the case of B Term Loans,
2.625% and (iii) in the case of C Term Loans, 2.875%; provided that from and
after the day that is six months after the Closing Date, the Applicable
Eurodollar Rate Margin will be determined pursuant to the Pricing Grid.
72
"Approved Lender" shall have the meaning provided in the definition of
"Cash Equivalents."
"Asset Sale" shall mean any sale, transfer or other disposition by the
Borrower or any of its Subsidiaries to any Person other than the Borrower or any
Wholly-Owned Subsidiary of the Borrower of any asset (including, without
limitation, any capital stock or other securities of another Person, but
excluding the sale by such Person of its own capital stock) of the Borrower or
any such Subsidiary other than (i) sales, transfers or other dispositions of
inventory made in the ordinary course of business and (ii) sales of assets
pursuant to Sections 8.02(ii), (iii), (v) and (vii).
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit N (appropriately
completed).
"Authorized Officer" shall mean any officer of the Borrower designated
as such in writing to the Agent by the Borrower, in each case to the extent
reasonably acceptable to the Agent.
"B Lenders" shall have the meaning provided in Section 4.02.03.
"B Term Loan" shall have the meaning provided in Section 1.01.01(b).
"B Term Loan Commitment" shall mean, with respect to each Lender, the
amount set forth opposite such Lender's name in Annex I directly below the
column entitled "B Term Loan Commitment," as the same may be terminated pursuant
to Section 3.03 and/or Section 9.
"B Term Loan Facility" shall mean the Facility evidenced by the Total B
Term Loan Commitment.
"B Term Loan Maturity Date" shall mean the last Business Day in August,
2005.
"B-Term Note" shall have the meaning provided in Section 1.05(a).
"B TL Percentage" shall mean, at any time, (i) prior to the disbursement
of the B Term Loans, a fraction (expressed as a percentage) the numerator of
which is the amount of the Total B Term Loan Commitment at such time and the
denominator of which is the amount of the Total Term Loan Commitment at such
time and (ii) after the disbursement of the B Term Loan, a fraction (expressed
as a percentage) the numerator of which is equal to the aggregate principal
amount of all B Term Loans outstanding at such time and the denominator of which
is equal to the sum of the aggregate principal amount of all Term Loans
outstanding at such time.
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
73
"Base Rate" at any time shall mean the higher of (x) the rate which is
1/2 of 1% in excess of the Federal Funds Rate and (y) the Prime Rate as in
effect at such time.
"Base Rate Loans" shall mean (i) any Loan designated as such by the
Borrower at the time of the incurrence thereof or conversion thereto and (ii)
all Swingline Loans.
"Borrower" shall mean E-P Acquisition, Inc., a Delaware corporation, and
its successor Eagle-Picher Industries, Inc., an Ohio corporation, as survivor of
the Merger.
"Borrower Stock Release Date" shall mean the date of receipt by the
Agent of a written request by the Borrower to release the pledge of all of the
Borrower's capital stock pledged pursuant to the Holdings Pledge Agreement
following the date on which the Leverage Ratio is less than 3.0 to 1.0.
"Borrowing" shall mean (i) the incurrence by the Borrower of one Type of
Loan pursuant to a single Facility from all of the Lenders having Commitments
with respect to such Facility on a pro rata basis on a given date (or resulting
from a conversion or conversions on such date) having in the case of Eurodollar
Rate Loans the same Interest Period, provided that Base Rate Loans incurred
pursuant to Section 1.10(b) shall be considered part of the related Borrowing of
Eurodollar Rate Loans and (ii) the borrowing by the Borrower of Swingline Loans
from ABN AMRO on a given date.
"Business Day" shall mean (i) for all purposes other than as covered by
clause (ii) below, any day except Saturday, Sunday and any day which shall be in
New York City or City of Chicago a legal holiday or a day on which banking
institutions are authorized or required by law or other government action to
close and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Rate Loans, any day
which is a Business Day described in clause (i) above and which is also a day
for trading by and between banks in U.S. Dollar deposits in the London interbank
Eurodollar market.
"CERCLA" shall mean Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"C Lenders" shall have the meaning provided in Section 4.02.03.
"C Term Loan" shall have the meaning provided in Section 1.01.01(c).
"C Term Loan Commitment" shall mean, with respect to each Lender, the
amount set forth opposite such Lender's name in Annex I directly below the
column entitled "C Term Loan Commitment," as the same may be terminated pursuant
to Section 3.03 and/or Section 9.
"C Term Loan Facility" shall mean the Facility evidenced by the Total C
Term Loan Commitment.
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"C Term Loan Maturity Date" shall mean the last Business Day in August,
2006.
"C-Term Note" shall have the meaning provided in Section 1.05(a).
"C TL Percentage" shall mean, at any time, (i) prior to the disbursement
of the C Term Loans, a fraction (expressed as a percentage) the numerator of
which is the amount of the Total C Term Loan Commitment at such time and the
denominator of which is the amount of the Total Term Loan Commitment at such
time and (ii) after the disbursement of the C Term Loan, a fraction (expressed
as a percentage) the numerator of which is equal to the aggregate principal
amount of all C Term Loans outstanding at such time and the denominator of which
is equal to the sum of the aggregate principal amount of all Term Loans
outstanding at such time.
"Capital Expenditures" shall mean any expenditure for fixed or capital
assets (including, without limitation, expenditures for maintenance and repairs
which are capitalized in accordance with GAAP and Capitalized Lease
Obligations).
"Capital Lease," as applied to any Person, shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Capitalized Lease Obligations" shall mean all obligations under Capital
Leases of the Borrower or any of its Subsidiaries in each case taken at the
amount thereof accounted for as liabilities in accordance with GAAP.
"Cash Equivalents" shall mean, as to any Person, (i) securities issued
or directly and fully guaranteed or insured by the United States or any agency
or instrumentality thereof (provided that the full faith and credit of the
United States is pledged in support thereof) from the date of acquisition having
maturities of not more than one year, (ii) U.S. Dollar denominated time deposits
and certificates of deposit of (x) any Lender or (y) any bank, or holding
company of such bank, whose short-term commercial paper rating or that of its
parent company from S&P is at least A-1 or the equivalent thereof or from
Moody's is at least P-1 or the equivalent thereof (any such bank or Lender, an
"Approved Lender"), in each case with maturities of not more than one year from
the date of acquisition, (iii) commercial paper issued by any Approved Lender or
by the parent company of any Approved Lender and commercial paper issued by, or
guaranteed by, any industrial or financial company with a short-term commercial
paper rating of at least A-1 or the equivalent thereof by S&P or at least P-1 or
the equivalent thereof by Moody's, or guaranteed by any industrial company with
a long term unsecured debt rating of at least A or A2, or the equivalent of each
thereof, from S&P or Moody's, as the case may be, and in each case maturing
within one year after the date of acquisition, (iv) marketable direct
obligations issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof maturing
within one year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either S&P or
Moody's, (v) investments in money market funds substantially all the assets of
which are comprised of securities of the types described in
75
clauses (i) through (iv) above and (vi) time deposits and certificates of
deposit of any commercial bank of recognized standing having capital and surplus
in excess of the local currency equivalent of $100,000,000 incorporated in a
country where the Borrower has one or more locally operating Subsidiaries, and
that is, as of the date hereof, providing banking services to the Borrower or
any of its Subsidiaries.
"Cash Proceeds" shall mean, with respect to any Asset Sale, the
aggregate cash payments (including any cash received by way of deferred payment,
but only as and when so received) received by the Borrower and/or any of its
Subsidiaries from such Asset Sale.
"Change of Control" shall mean (x) (i) any "Person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Exchange Act), excluding
Holdings and any employee benefit or stock ownership plan of the Borrower, is or
shall become the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5
under the Exchange Act), directly or indirectly, of 10% or more on a fully
diluted basis of the voting and economic interests of the Borrower or shall have
the right to elect a majority of the directors of the Borrower or (ii) the Board
of Directors of the Borrower shall cease to consist of a majority of Continuing
Directors and (y) the occurrence of any Change of Control (as defined in the
Senior Subordinated Note Documents) or any Change of Control as defined in the
Certificate of Designation for the Holdings Preferred Stock or in the Exchange
Debenture Documents.
"Closing Date" shall mean the day (which shall be a Business Day)
specified by the Borrower on which all of the conditions specified in Section 5
as conditions precedent to the Closing Date are fulfilled or waived pursuant to
this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the date of this
Agreement, and to any subsequent provisions of the Code amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" shall mean all properties, rights, interests and privileges
from time to time subject to the Liens and security interests granted to the
Collateral Agent for the benefit of the Secured Creditors by the Security
Documents.
"Collateral Agent" shall mean the Agent (or any replacement thereof with
the consent of the Required Lenders) acting as collateral agent for the Secured
Creditors.
"Commitment" shall mean, with respect to each Lender, such Lender's A
Term Loan Commitment, B Term Loan Commitment, C Term Loan Commitment and/or
Revolving Credit Commitment.
"Commitment Fee" shall have the meaning provided in Section 3.01(a)
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum dated January 1998 relating to the Facilities.
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"Confirmation Order" shall mean the order of the United States District
court for the Southern District of Ohio, Western Division, confirming the Plan
of Reorganization.
"Consolidated Current Assets" shall mean, at any time, the current
assets (other than cash, Cash Equivalents and deferred income taxes to the
extent included in current assets) of the Borrower and its Subsidiaries at such
time determined on a consolidated basis.
"Consolidated Current Liabilities" shall mean, at any time, the current
liabilities of the Borrower and its Subsidiaries determined on a consolidated
basis, but excluding deferred income taxes and the current portion of and
accrued but unpaid interest on any Indebtedness under this Agreement and any
other long-term Indebtedness which would otherwise be included therein.
"Consolidated Debt" shall mean, at any time, all Indebtedness of the
Borrower and its Subsidiaries determined on a consolidated basis which would be
reflected on a consolidated balance sheet at such time in accordance with GAAP.
"Consolidated EBIT" shall mean, for any period, Consolidated Net Income
of the Borrower and its Subsidiaries, before total interest expense (whether
cash or non-cash) and provisions for taxes based on income, and determined (i)
without giving effect to any extraordinary gains or losses but with giving
effect to gains or losses from sales of assets sold in the ordinary course of
business, (ii) without giving effect to any impact from the LIFO method of
inventory accounting, (iii) without giving effect to any noncash charge (other
than depreciation or amortization) deducted in determining Consolidated Net
Income for such period, including non-cash charges related to the issuance by
the Borrower or any of its Subsidiaries of stock, warrants or options to
management (or any exercise of any such warrants or options), (iv) without
giving effect to any compensation expense incurred in connection with the Merger
and (v) without giving effect to nonrecurring charges, noncash charges or
documented cash charges, in each case deducted in determining Consolidated Net
Income for such period and related to the Transaction (including for example,
one-time expenses associated with the integration of corporate systems,
temporary service fees and training, moving, relocation and other costs in
connection with the Merger), in each case, to the extent such amounts have not
been added back in determining Consolidated Net Income.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT,
adjusted by adding thereto the amount of all depreciation expense and
amortization expense that were deducted in determining Consolidated EBIT for
such period.
"Consolidated Fixed Charges" shall mean, for any period, the sum of (i)
the aggregate amount of payments scheduled to be made by the Borrower and its
Subsidiaries during such period in respect of principal on all Indebtedness
(whether at maturity, as a result of mandatory sinking fund redemption,
mandatory prepayment, acceleration or otherwise), on a consolidated basis, plus
(ii) Consolidated Interest Expense for such period, plus (iii) taxes to the
extent paid or payable in cash during such period plus (iv) any dividends paid
by the Borrower pursuant to Section 8.03(iii) during such period.
77
"Consolidated Interest Expense" shall mean, for any period, total
interest expense (including amounts properly attributable to interest with
respect to capital leases in accordance with GAAP and amortization of debt
discount and debt issuance costs) of the Borrower and its Subsidiaries on a
consolidated basis for such period with respect to all outstanding Indebtedness
of the Borrower and its Subsidiaries, including, without limitation, all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing and net costs or benefits under
Interest Rate Protection Agreements, but excluding, however, amortization of
original issue discount, any payments made to obtain any Interest Rate
Protection Agreement, deferred financing costs and any interest expense on
deferred compensation arrangements and any other non-cash interest to the extent
included in total interest expense.
"Consolidated Net Income" shall mean, for any period, the consolidated
net income (or loss) of the Borrower and its Subsidiaries for such period;
provided that, (i) to the extent deducted in determining consolidated net income
for such period and not otherwise added back, the amount of expenses in respect
of Specified Transaction Payments attributable to such period shall be added
back in determining Consolidated Net Income for such period, and (ii) to the
extent not otherwise deducted in determining such consolidated net income for
any period, all payments made to Holdings pursuant to the Tax Sharing Agreement
or otherwise in respect of taxes for such period shall be deducted from the
consolidated net income of the Borrower and (iii) any non-cash loss during the
Borrower's fiscal year ending on November 30, 1998 reflecting the decrease in
deferred tax assets resulting from the Merger and transactions consummated in
connection therewith shall be excluded in determining consolidated net income.
"Contingent Obligation" shall mean, without duplication, as to any
Person, any obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (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
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the holder of such primary obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
78
"Continuing Directors" shall mean the directors of the Borrower on the
Closing Date after giving effect to the Transaction and each other director, if
such director's nomination for election to the Board of Directors of the
Borrower is recommended by a majority of the then Continuing Directors.
"Credit Documents" shall mean this Agreement, and once executed and
delivered pursuant to the terms of this Agreement, each Note, each Letter of
Credit Request, each Notice of Borrowing, each Notice of Conversion, each Letter
of Credit, the Guaranties and each Security Document.
"Credit Event" shall mean (i) the occurrence of the Closing Date and
(ii) the making of any Loan (other than a Loan made pursuant to a Mandatory
Borrowing) or the issuance of any Letter of Credit or the deemed issuance of any
Existing Letter of Credit under this Agreement.
"Credit Party" shall mean, the Borrower and each Guarantor.
"Creditors" shall mean and include the Agent, each Lender and each Other
Creditor.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a Lender
Default is in effect.
"Dividend" with respect to any Person shall mean that such Person has
declared or paid any dividend or returned any capital to its stockholders or
authorized or made any other distribution, payment or delivery of property
(other than common stock of the Borrower) or cash to its stockholders as such,
or redeemed, retired, purchased, or otherwise acquired, directly or indirectly,
for consideration, any shares of any class of its capital stock outstanding on
or after the Closing Date (or any options or warrants issued by such Person with
respect to its capital stock), or set aside any funds for any of the foregoing
purposes, or shall have permitted any of its Subsidiaries to purchase or
otherwise acquire for a consideration any shares of any class of the capital
stock of such Person outstanding on or after the Closing Date (or any options or
warrants issued by such Person with respect to its capital stock). Without
limiting the foregoing, "Dividends" with respect to any Person shall also
include all payments made or required to be made by such Person with respect to
any stock appreciation rights plans, equity incentive or achievement plans or
any similar plans or the setting aside of any funds for the foregoing purposes.
"Documentation Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Documents" shall mean the Credit Documents, the Merger Documents and
the Senior Subordinated Note Documents.
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"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States (expressed in dollars).
"Domestic Subsidiary" shall mean each Subsidiary of the Borrower
incorporated or organized in the United States or any State or territory
thereof.
"Drawing" shall have the meaning provided in Section 2.05(b).
"Early Mandatory Redemption Event" shall mean any Early Mandatory
Redemption Event as defined in the Certificate of Designation of Holdings with
respect to Holdings Preferred Stock.
"Effective Date" shall have the meaning provided in Section 12.10.
"Eligible Transferee" shall mean and include a commercial bank,
financial institution or other "accredited investor" (as defined in Regulation D
of the Securities Act).
"Environmental Claims" shall mean any and all administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices of
non-compliance or violation, investigations or proceedings relating in any way
to any violation (or alleged violation) by the Borrower or any of its
Subsidiaries under any Environmental Law (hereafter "Claims") or any permit
issued under any such law, including, without limitation, (a) any and all Claims
by governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from alleged
injury or threat of injury to health (other than product liability claims),
safety or the environment.
"Environmental Law" shall mean any federal, state or local statute, law,
rule, regulation, ordinance, code, policy or rule of common law now or hereafter
in effect and in each case as amended, and any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent,
decree or judgment, relating to the environment, public health and safety,
employee health and safety, or Hazardous Materials.
"EPAI" shall mean E-P Acquisition, Inc., a Delaware corporation.
"EPII" shall have the meaning provided in the second "Whereas" clause of
this Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect at the date
of this Agreement and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
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"ERISA Affiliate" shall mean each person (as defined in Section 3(9) of
ERISA) which together with the Borrower or any of its Subsidiaries would be
deemed to be a "single employer" (i) within the meaning of Section 414(b), (c),
(m) and (o) of the Code or (ii) as a result of the Borrower or any of its
Subsidiaries being or having been a general partner of such person.
"Eurodollar Rate" shall mean for an Interest Period for a Borrowing of
Eurodollar Loans, (I)(a) the LIBOR Index Rate for such Interest Period, if such
rate is available, and (b) if the LIBOR Index Rate cannot be determined, the
arithmetic average of the rates of interest per annum (rounded upwards, if
necessary, to the nearest 1/100% of 1%) at which deposits in U.S. Dollars in
immediately available funds are offered to the Agent at 11:00 a.m. (London,
England time) two (2) Business Days before the beginning of such Interest Period
by three (3) or more major banks in the interbank eurodollar market selected by
the Agent for delivery on the first day of and for a period equal to such
Interest Period and in an amount equal or comparable to the principal amount of
the Eurodollar Rate Loan schedule to be made by the Agent as part of such
Borrowing, divided (and rounded upwards to the nearest 1/100 of 1%) by (II) a
percentage equal to 100% minus the then stated maximum rate of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves required by applicable law) applicable
to any member bank of the Federal Reserve System in respect of Eurocurrency
funding or liabilities as defined in Regulation D (or any successor category of
liabilities under Regulation D).
"Eurodollar Rate Loan" shall mean any Loan designated as such by the
Borrower at the time of the incurrence thereof or conversion thereto.
"Event of Default" shall have the meaning provided in Section 9.
"Excess Cash Flow" shall mean, for any period cash flows from operating
activities, as defined by GAAP, minus an amount equal to the sum of (i) all
Capital Expenditures (other than Capital Expenditures made pursuant to Section
8.07(c) made during such period that are not financed by Indebtedness (including
Capitalized Lease Obligations but excluding Loans hereunder), (ii) the aggregate
principal (and interest to the extent not deducted in the calculation of cash
flows) amount of permanent principal payments of Indebtedness for borrowed money
of the Borrower and its Subsidiaries (other than repayments of Loans, provided
that repayments of Loans shall be deducted in determining Excess Cash Flow if
such repayments were (x) required as a result of a Scheduled A Repayment, a
Scheduled B Repayment or a Scheduled C Repayment under Section 4.02.01(b) or (y)
made as a voluntary prepayment with internally generated funds (but in the case
of a voluntary prepayment of Revolving Loans, only to the extent accompanied by
a voluntary reduction to the Total Revolving Credit Commitment)), and (iii) the
amount of unusual or non-recurring charges that decreased Working Capital during
such period.
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"Excess Cash Flow Period" shall mean each fiscal year of the Borrower
commencing with the fiscal year ending November 30, 1998.
"Excess Cash Payment Date" shall mean the date occurring 90 days after
the last day of a fiscal year of the Borrower (beginning with its fiscal year
ending November 30, 1998).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Exchange Debentures" shall mean the 11 3/4% Exchange Debentures due
2008 of Holdings.
"Exchange Debenture Documents" shall mean and include each of the
Exchange Debenture Indenture and the Exchange Debentures, as the same may be
entered into, modified, supplemented or amended from time to time pursuant to
the terms hereof and thereof.
"Exchange Debenture Indenture" shall mean the Indenture between Holdings
and a banking corporation chosen by Holdings to act as trustee thereunder in
substantially the form described in the Offering Memorandum dated February 20,
1998 with respect thereto and as approved by Holdings and on file with the
office of the Secretary of Holdings on the Closing Date, as the same may be
entered into, modified, supplemented or amended from time to time in
accordance with the terms hereof and thereof.
"Existing Indebtedness" shall have the meaning provided in Section 6.19.
"Existing Indebtedness Agreements" shall have the meaning provided in
Section 5.01(j)(i).
"Existing Letters of Credit" shall mean each letter of credit set forth
in Schedule 2.01.
"Facility" shall mean any of the credit facilities established under
this Agreement, i.e., the A Term Loan Facility, the B Term Loan Facility, the C
Term Loan Facility or the Revolving Credit Facility.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Rate" shall mean for any period, a fluctuating interest
rate (equal for each day during such period to the weighted average of the rates
on overnight Federal Funds transactions with members of the Federal Reserve
System arranged by Federal Funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal Funds brokers of
recognized standing selected by the Agent.
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"Fees" shall mean all amounts payable pursuant to or referred to in
Section 3.01.
"First Tier Foreign Subsidiary" shall mean, at any date of
determination, each Foreign Subsidiary in which any one or more of the Borrower
and its Domestic Subsidiaries owns directly more than 50%, in the aggregate, of
the voting stock of such Subsidiary.
"Fixed Charge Coverage Ratio" shall mean, at any time, the ratio of
Consolidated EBITDA for the Test Period last ended to Consolidated Fixed Charges
for the Test Period last ended.
"Foreign Pension Plan" shall mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by the Borrower or any one or
more of its Subsidiaries primarily for the benefit of employees of the Borrower
or such Subsidiaries residing outside the United States of America, which plan,
fund or other similar program provides, or results in, retirement income, a
deferral of income in contemplation of retirement or payments to be made upon
termination of employment, and which plan is not subject to ERISA.
"Foreign Subsidiary" shall mean each Subsidiary of the Borrower other
than a Domestic Subsidiary.
"GAAP" shall mean generally accepted accounting principles and practices
in the United States of America as promulgated by Financial Accounting Standards
Board and as in effect from time to time and consistently applied; it being
understood and agreed that determinations in accordance with GAAP for purposes
of Section 8, including defined terms as used therein, are subject (to the
extent provided therein) to Section 12.07(a).
"Granaria Holdings" means Granaria Holdings N.V., a Dutch corporation,
and its successors.
"Guaranteed Creditors" shall mean and include each of the Agent, the
Collateral Agent, the Lenders and each party (other than any Credit Party) party
to an Interest Rate Protection Agreement to the extent that such party
constitutes a Secured Creditor under the Security Documents.
"Guaranteed Obligations" shall mean (i) the principal and interest on
each Note issued by the Borrower to each Lender, and Loans made, under this
Agreement and all reimbursement obligations and Unpaid Drawings with respect to
Letters of Credit, together with all the other obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities (including, without
limitation, indemnities,
83
fees and interest thereon) of the Borrower to such Lender, the Agents now
existing or hereafter incurred under, arising out of or in connection with this
Agreement or any other Credit Document and the due performance of and compliance
with, by any Credit Party, all the terms, conditions and agreements contained in
each of the Credit Documents to which it is a party, (ii) all obligations
(including obligations which, but for the automatic stay under Section 362(a) of
the Bankruptcy Code, would become due) and liabilities of the Borrower owing
under any Interest Rate Protection Agreement entered into by the Borrower with
any Lender or any affiliate thereof (even if such Lender subsequently ceases to
be a Lender under this Agreement for any reason) so long as such Lender or
affiliate participates in such Interest Rate Protection Agreement, and their
subsequent assigns, if any, whether now in existence or hereafter arising, and
the due performance of and compliance with all terms, conditions and agreements
contained therein and (iii) any other obligations or liabilities of any Credit
Party under the Credit Documents guaranteed under the Guaranties.
"Guarantor" shall mean each of Holdings and the Subsidiary Guarantors.
"Guaranty" shall mean each of the Holdings Guaranty and the Subsidiary
Guaranty (collectively, the "Guaranties").
"Hazardous Materials" shall mean (a) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; and (b) any chemicals, materials or substances defined as or included
in the definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "restricted hazardous materials," "extremely hazardous wastes,"
"restrictive hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants" or "pollutants," or words of similar meaning and regulatory
effect under any applicable Environmental Law.
"Holdings" shall mean Eagle-Picher Holdings, Inc., a Delaware
corporation.
"Holdings Common Stock" shall mean common stock of Holdings.
"Holdings Guaranty" shall have the meaning provided in Section
5.01(h)(i).
"Holdings Pledge Agreement" shall have the meaning provided in Section
5.01(h)(ii).
"Holdings Preferred Stock" shall mean 11 3/4% Cumulative Redeemable
Exchangeable Preferred Stock of Holdings.
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"Immaterial Subsidiary" shall mean (i) any Subsidiary of the Borrower
which does not own assets in excess of $50,000, (ii) any Name Holder Subsidiary
(iii) Eagle-Picher, Inc., a Virgin Island foreign sales corporation; provided,
however, that Immaterial Subsidiaries shall not include any Subsidiary of the
Borrower which is a guarantor of Indebtedness with respect to the Senior
Subordinated Notes.
"Indebtedness" shall mean, as to any Person, without duplication, (i)
all indebtedness (including principal, interest, fees and charges) of such
Person for borrowed money or for the deferred purchase price of property or
services, but excluding current trade accounts payable incurred in the ordinary
course of business, (ii) the maximum amount available to be drawn under all
letters of credit issued for the account of such Person and all unpaid drawings
in respect of such letters of credit, (iii) all Indebtedness of the types
described in clause (i), (ii), (iv), (v), (vi) or (vii) of this definition
secured by any Lien on any property owned by such Person, whether or not such
Indebtedness has been assumed by such Person, (iv) the aggregate amount required
to be capitalized under leases under which such Person is the lessee, (v) all
obligations of such Person to pay a specified purchase price for goods or
services, whether or not delivered or accepted, i.e., take-or-pay and similar
obligations, (vi) all Contingent Obligations of such Person and (vii) all
obligations under any Interest Rate Protection Agreement.
"Intercompany Loan" shall have the meaning provided in Section 8.05.
"Interest Coverage Ratio" for any period shall mean the ratio of
Consolidated EBITDA to Consolidated Interest Expense for such period.
"Interest Determination Date" shall mean, with respect to any Eurodollar
Rate Loan, the second Business Day prior to the commencement of any Interest
Period relating to such Eurodollar Rate Loan.
"Interest Period" shall have the meaning provided in Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest collar agreement, interest rate
hedging agreement, interest rate futures agreement or other similar agreement or
arrangement.
"Judgment Currency" shall have the meaning provided in Section 12.17(a).
"Judgment Currency Conversion Date" shall have the meaning provided in
Section 12.17(a).
85
"L/C Supportable Indebtedness" shall mean (i) obligations of the
Borrower or any of its Subsidiaries incurred in the ordinary course of business
with respect to insurance obligations and workers' compensation, surety bonds
and other similar statutory obligations and (ii) such other obligations of the
Borrower or any of its Subsidiaries as are reasonably acceptable to the Agent
and the Letter of Credit Issuer and otherwise permitted to exist pursuant to the
terms of this Agreement.
"Lease Agreements" shall have the meaning provided in Section
5.01(j)(v).
"Leasehold" of any Person shall mean all of the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Lender" shall mean each financial institution listed in Annex I, as
well as any Person which becomes a "Lender" hereunder pursuant to Section 12.04.
"Lender Default" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any Borrowing (including
any Mandatory Borrowing) or to fund its portion of any unreimbursed payment
under Section 2.04(c) or (ii) a Lender having notified in writing the Borrower
and/or the Agent that it does not intend to comply with its obligations under
Section 1.01.01 or 1.01.03 or Section 2.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(b).
"Letter of Credit Issuer" shall mean (i) with respect to any Existing
Letters of Credit, a bank identified as a letter of credit issuer for such
Existing Letter of Credit in Schedule 2.01; (ii) with respect to the Letters of
Credit issued on or after the Closing Date, ABN AMRO or any Revolving Lender
designated as such pursuant to the last paragraph of Section 2.01(a).
"Letter of Credit Outstandings" shall mean, at any time, the sum of (i)
the aggregate Stated Amount of all outstanding Letters of Credit and (ii) the
aggregate amount of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning provided in Section
2.03(a).
"Leverage Ratio" shall mean, at any time, the ratio of Consolidated Debt
at such time to Consolidated EBITDA for the Test Period last ended.
86
"LIBOR Index Rate" shall mean, for any Interest Period, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100% of 1%) for deposits
in U.S. Dollars for a period equal to such Interest Period, which appears on the
Telerate Page 3750 as of 11:00 a.m. (London, England time) on the day two (2)
Business Days before the commencement of such Interest Period.
"Lien" shall mean any mortgage, pledge, hypothecation, security
interest, encumbrance, lien (statutory or other), or security agreement of any
kind or nature whatsoever (including, without limitation, any agreement to give
any of the foregoing any conditional sale or other title retention agreement any
financing or similar statement or notice filed under the UCC or any similar
recording or notice and any lease having substantially the same effect as any of
the foregoing and any assignment or deposit arrangement in the nature of a
security device).
"Loan" shall mean each and every Loan made by any Lender hereunder,
including A Term Loans, B Term Loans, C Term Loans, Revolving Loans or Swingline
Loans.
"Majority Lenders" of any Facility shall mean those Non-Defaulting
Lenders which would constitute the Required Lenders under, and as defined in,
this Agreement if all outstanding Obligations of the other Facilities under this
Agreement were repaid in full and all Commitments with respect thereto were
terminated.
"Management Agreements" shall have the meaning provided in Section
5.01(j)(iii).
"Mandatory Borrowing" shall have the meaning provided in
Section 1.01.03.
"Mandatory Redemption Event" shall mean "Mandatory Redemption Event" as
defined in Holdings' certificate of designation with respect to the Holdings
Preferred Stock.
"Margin Adjustment Period" shall mean on a date (a) with respect to the
first such period, the period which shall commence 6 months from the Closing
Date and which shall end on the earlier of (i) the date of actual delivery of
the next financial statements pursuant to Section 7.01(b)(i) or (c)(i), as the
case may be, and (ii) the latest date on which the next financial statements are
required to be delivered pursuant to Section 7.01(b)(i) or (c)(i), as the case
may be and (b) thereafter, with respect to each succeeding period, each period
which shall commence on a date on which the financial statements are delivered
pursuant to Section 7.01(b)(i) or (c)(i), as the case may be, and which shall
end on the earlier of (i) the date of actual delivery of the next financial
statements pursuant to Section 7.01(b)(i) or (c)(i), as the case may be, and
(ii) the latest date on which the next financial statements are required to be
delivered pursuant to Section 7.01(b)(i) or (c)(i), as the case may be.
87
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean a material adverse effect on the
business, properties, assets, liabilities or financial condition of the Borrower
or of the Borrower and its Subsidiaries taken as a whole.
"Maturity Date" with respect to any Facility shall mean either the A
Term Loan Maturity Date, the B Term Loan Maturity Date, the C Term Loan Maturity
Date or the Revolving Loan Maturity Date, as the case may be.
"Maximum Swingline Amount" shall mean $10,000,000.
"Merger" shall mean the merger of EPAI with and into EPII pursuant to
the Merger Agreement.
"Merger Agreement" shall mean the Merger Agreement dated as of December
23, 1997 among the PI Trust, EPII, the Holdings and EPAI.
"Merger Documents" shall mean the Merger Agreement and all other
agreements and documents relating to the Merger.
"Minimum Borrowing Amount" shall mean (i) for Term Loans, $5,000,000;
(ii) for Revolving Loans, $2,500,000; and (iii) for Swingline Loans, $100,000
and in each case integral multiples thereof.
"Moody's" shall mean Moody's Investors Service, Inc.
"Mortgage" shall have the meaning provided in Section 5.01(i)(A).
"Mortgage Policies" shall have the meaning provided in Section
5.01(i)(B).
"Mortgaged Properties" shall mean and include the Real Properties owned
or leased by the Borrower and its Domestic Subsidiaries to the extent designated
as such on Schedule 6.17.
"Multiemployer Plan" shall mean any multiemployer plan (within the
meaning of section 4001(a)(3) of ERISA) to which the Borrower or any of its
Subsidiaries has any liability or contributes (or has at any time within the
past five years contributed to or had any liability to contribute).
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"Name Holder Subsidiary" shall mean any Subsidiary of the Borrower or
any of its Subsidiaries incorporated and existing solely for the purpose of
reserving the corporate name of such Subsidiary and which does not conduct any
business or hold any assets; provided that such Subsidiary may own another Name
Holder Subsidiary.
"Net Cash Proceeds" shall mean, with respect to any Asset Sale, the Cash
Proceeds resulting therefrom net of (a) reasonable cash expenses of sale
(including brokerage fees, if any, transfer taxes and payment of principal,
premium and interest of Indebtedness other than the Loans required to be repaid
as a result of such Asset Sale) and (b) incremental income taxes paid or payable
as a result thereof.
"1996 Credit Agreement" shall mean $60,000,000 Revolving Credit Facility
Credit Agreement (dated as of November 29, 1996) by and among EPII, certain of
its subsidiaries, the bank's party thereto and PNC Bank, Ohio, National
Association, as agent, as amended.
"Non-Defaulting Lender" shall mean each Lender other than a Defaulting
Lender.
"Non-Recourse Purchase Money Indebtedness" shall mean Indebtedness of
the Borrower or any of its Subsidiaries incurred (a) to finance the purchase of
any assets of the Borrower or any of its Subsidiaries within 90 days of such
purchase, (b) to the extent the amount of Indebtedness thereunder does not
exceed 100% of the purchase cost of such assets, (c) to the extent the purchase
cost of such assets is or should be included in "additions to property, plant
and equipment" in accordance with GAAP, and (d) to the extent that such
Indebtedness is non-recourse to the Borrower or any of its Subsidiaries or any
of their respective assets other than the assets so purchased.
"Non-Recourse Purchase Money Security Interest" shall mean a Lien on
assets of the Borrower or any of its subsidiaries to secure Non-Recourse
Purchase Money Indebtedness with which such assets were purchased.
"Non-Voting Equity" shall mean issued and outstanding shares of each
class of capital stock or other ownership interest not entitled to vote (within
the meaning of Tres. Reg., Section 1.956-2(c)(2).
"Note" shall mean each A Term Note, each B Term Note, each C Term Note,
each Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Conversion" shall have the meaning provided in Section 1.06.
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"Notice Office" shall mean the office of the Agent located at 1325
Avenue of the Americas, New York, New York 10019, Attention: Agency Services,
or such other office as the Agent may hereafter designate in writing as such to
the other parties hereto.
"Obligation Currency" shall have the meaning provided in Section
12.17(a).
"Obligations" shall mean all amounts, direct or indirect, contingent or
absolute, of every type or description, and at any time existing, owing to the
Agent or any Lender pursuant to the terms of this Agreement or any other Credit
Document.
"Participant" shall have the meaning provided in Section 2.04(a).
"Payment Office" shall mean the office of the Agent located at
1325 Avenue of the Americas, New York, New York 10019, or such other office as
the Agent may hereafter designate in writing as such to the other parties
hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA or any successor thereto.
"Permanent Injunction" shall mean the order included in the Confirmation
Order permanently staying, restraining and enjoining any entity from taking any
actions with respect to asbestos or lead personal injury claims against EPII and
certain of its Subsidiaries designated as "Debtors" in such order.
"Permitted Encumbrances" shall mean (i) those liens, encumbrances and
other matters affecting title to any Mortgaged Property listed in the Mortgage
Policies in respect thereof as of the Closing Date and found reasonably
acceptable by the Collateral Agent, (ii) as to any particular Mortgaged Property
at any time, such additional easements, encroachments, covenants, rights of way,
minor defects, irregularities or encumbrances on title which do not, in the
reasonable opinion of the Collateral Agent, materially impair such Mortgaged
Property for the purpose for which it is held by the mortgagor thereof, or the
lien held by the Collateral Agent for the benefit of Secured Creditors, (iii)
applicable laws, ordinances, regulations, including without limitation, zoning
and other municipal ordinances which are not violated in any material respect by
the existing improvements and the present use made by the mortgagor thereof of
the Premises (as defined in the respective Mortgage), (iv) general real estate
taxes and assessments not yet delinquent, and (v) such other items as the Agent
may consent to.
"Permitted Holdings Transactions" means (i) the execution, delivery and
performance by Holdings of its obligations under, (x) any guarantees by Holdings
of Obligations of the Borrower and/or its Subsidiaries with respect to this
Agreement and/or the Notes and obligations of the
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Borrowers under Interest Rate Protection Agreements and the pledge of capital
stock of the Borrower as collateral for its obligations under any such
guarantee, and the guarantee by Holdings of any other Indebtedness of the
Borrower and/or its Subsidiaries which such Indebtedness is permitted to be
incurred under this Agreement, (y) the Tax Sharing Agreement (ii) the
establishment of a wholly-owned Subsidiary (other than a Subsidiary of the
Company) for use as a vehicle for the consummation of an acquisition where all
or a substantial part of the consideration thereof is common stock of Holdings,
provided that (A) any such Subsidiary shall become a direct or indirect
Wholly-Owned Subsidiary of the Borrower within 60 days after the consummation of
such acquisition and (B) immediately after giving effect to such acquisition, no
Mandatory Redemption Event, Default or Event of Default shall have occurred,
(iii) any investment in the Borrower, (iv) payments with respect to the Holdings
Preferred Stock and the Exchange Debenture and any Restricted Payment that is
permitted in accordance with the "Limitations on Restricted Payments" covenant,
and (v) the performance of ministerial activities and payment of taxes and
administrative fees necessary for the Borrower and its Subsidiaries.
"Permitted Liens" shall have the meaning provided in Section 8.01.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company association, trust or other enterprise or
any government or political subdivision or any agency, department or
instrumentality thereof.
"PI Trust" shall mean the personal injury trust established pursuant to
the Plan of Reorganization.
"Plan" shall mean any multiemployer or single-employer plan (as each
such term is defined in Section 4001 of ERISA) subject to Title IV of ERISA,
which is maintained or contributed to by (or to which there is an obligation to
contribute to) the Borrower or a Subsidiary of the Borrower or an ERISA
Affiliate, and each such plan for the five-year period immediately following the
latest date on which the Borrower or a Subsidiary of the Borrower or an ERISA
Affiliate maintained, contributed to or had an obligation to contribute to such
plan.
"Plan of Reorganization" shall mean the plan or reorganization relating
to EPII issued by the United States Bankruptcy Court, Southern District of Ohio,
Western Division.
"Pledge Agreement" shall have the meaning provided in Section
5.01(h)(ii).
"Pledge Agreement Collateral" shall mean all "Collateral" as defined in
the Pledge Agreement.
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"Pledged Securities" shall mean all the Pledged Securities as defined in
the Pledge Agreement.
"Pricing Grid" shall mean the pricing grid attached hereto as Annex II.
"Prime Rate" shall mean the rate which ABN AMRO announces from time to
time as its prime lending rate for U.S. Dollar loans, the Prime Rate to change
when and as such prime lending rate changes. The Prime Rate is a reference rate
and does not necessarily represent the lowest or best rate actually charged to
any customer. ABN AMRO may make commercial loans or other loans at rates of
interest at, above or below the Prime Rate.
"Projections" shall have the meaning provided in Section 5.01(m).
"RCRA" shall mean Resource Conservation and Recovery Act, as amended.
"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures, including
leaseholds.
"Recovery Event" shall mean the receipt by the Borrower or any of its
Subsidiaries of any insurance or condemnation proceeds payable (i) by reason of
theft, physical destruction or damage or any other similar event with respect to
any properties or assets of the Borrower or any of its Subsidiaries, (ii) by
reason of any condemnation, taking, seizing or similar event with respect to any
properties or assets of the Borrower or any of its Subsidiaries and (iii) under
any policy of insurance required to be maintained under Section 7.03.
"Register" shall have the meaning provided in Section 12.16.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
"Regulation G" shall mean Regulation G of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or any portion thereof.
"Regulation T" shall mean Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or any portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
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"Regulation X" shall mean Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or any portion thereof.
"Related Fund" shall mean, with respect to any Lender that is a fund
that invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Related Party Agreement" shall mean any management or advisory
agreements or other arrangements with any Affiliate of the Borrower or with any
other direct or indirect holder of more than 10% of any class of the Borrower's
or Holdings, capital stock (except, in any such case, Holdings, the Borrower or
any Subsidiary).
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing or
migration into the environment.
"Replaced Lender" shall have the meaning provided in Section 1.13(a).
"Replacement Lender" shall have the meaning provided in Section 1.13(a).
"Reportable Event" shall mean an event described in Section 4043(b) of
ERISA with respect to a Plan as to which the 30-day notice requirement has not
been waived by the PBGC.
"Required Lenders" shall mean collectively Non-Defaulting Lenders the
sum of whose outstanding Term Loans, Term Loan Commitments, Revolving Credit
Commitments (or, if after the Total Revolving Credit Commitment has been
terminated, outstanding Revolving Loans and Revolving Percentages of outstanding
Swingline Loans and Letter of Credit Outstandings) constitute greater than 50%
of the sum of (i) the total outstanding Term Loans of Non-Defaulting Lenders, or
the Total Term Loan Commitment then in effect and (ii) the Total Revolving
Credit Commitment less the aggregate Revolving Credit Commitments of Defaulting
Lenders (or, if after the Total Revolving Credit Commitment has been terminated,
the total outstanding Revolving Loans of Non-Defaulting Lenders and the
aggregate Revolving Percentages of all Non-Defaulting Lenders of the total
outstanding Swingline Loans and Letter of Credit Outstandings at such time).
"Retiree Welfare Plan" shall mean any employee welfare benefit plan
(within the meaning of section 3(1) of ERISA) which provides benefits to retired
or other former employees of the Borrower or any of its Subsidiaries (other than
continuation of group health plan coverage under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended, or pursuant to applicable state or
foreign law).
"Returns" shall have the meaning provided in Section 6.09.
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"Revolving Credit Commitment" shall mean, with respect to each Lender,
the amount set forth opposite such Lender's name in Annex I directly below the
column entitled "Revolving Credit Commitment," as the same may be reduced from
time to time pursuant to Section 3.02, Section 3.03 and/or Section 9.
"Revolving Credit Facility" shall mean the Facility evidenced by the
Total Revolving Credit Commitment.
"Revolving Lender" shall mean at any time each Lender with a Revolving
Credit Commitment or with outstanding Revolving Loans.
"Revolving Loan" shall have the meaning provided in Section 1.01.01(d).
"Revolving Loan Maturity Date" shall mean the last Business Day in
February, 2004.
"Revolving Note" shall have the meaning provided in Section 1.05(a).
"Revolving Percentage" shall mean at any time for each Revolving Lender,
with respect to Revolving Loans, Swingline Loans and Letters of Credit, the
percentage obtained by dividing such Revolving Lender's Revolving Credit
Commitment by the Total Revolving Credit Commitment, provided that if the Total
Revolving Credit Commitment has been terminated, the Revolving Percentage of
each Revolving Lender shall be determined by dividing such Revolving Lender's
Revolving Credit Commitment immediately prior to such termination by the Total
Revolving Credit Commitment immediately prior to such termination.
"Rollover Amount" shall have the meaning provided in Section 8.07(b).
"Scheduled A Repayment" shall have the meaning provided in Section
4.02.01(b)(i).
"Scheduled B Repayment" shall have the meaning provided in Section
4.02.01(b)(ii).
"Scheduled C Repayment" shall have the meaning provided in Section
4.02.01(b)(iii).
"Scheduled Repayment" shall mean any Scheduled A Repayment, any
Scheduled B Repayment or any Scheduled C Repayment.
"SEC" shall have the meaning provided in Section 7.01(h).
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b).
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"Secured Creditors" shall have the meaning provided in the Security
Documents.
"Securities Act" shall mean the Securities Act of 1933, as amended and
the rules and regulations promulgated thereunder.
"Security Agreement" shall have the meaning provided in Section
5.01(h)(iii).
"Security Agreement Collateral" shall mean all "Collateral" as defined
in the Security Agreement.
"Security Documents" shall mean and include the Security Agreement, each
Pledge Agreement, each Mortgage, and each Additional Security Document, if any.
"Senior Subordinated Note Documents" shall mean and include each of the
Senior Subordinated Note Indenture and the Senior Subordinated Notes, as the
same may be entered into, modified, supplemented or amended from time to time
pursuant to the terms hereof and thereof.
"Senior Subordinated Note Indenture" shall mean the Indenture dated as
of February 24, 1998 among the Borrower, the guarantors named therein and The
Bank of New York, as trustee, and any other Indentures that may be entered into
by and between the Borrower and the trustee for the holders of the Senior
Subordinated Notes or the purchaser of the Senior Subordinated Notes, as
applicable, in the form referred to in, or having the terms permitted by,
Section 8.04(vi), as the same may be entered into, modified, supplemented or
amended from time to time in accordance with the terms hereof and thereof.
"Senior Subordinated Notes" shall mean the 9 3/8% Senior Subordinated
Notes due 2008 of the Borrower and any other senior subordinated notes of the
Borrower that may be issued pursuant to a Senior Subordinated Note Indenture and
as the same may be modified, supplemented or amended from time to time pursuant
to the terms hereof and thereof.
"Shareholder's Agreements" shall have the meaning provided in Section
5.01(j)(ii).
"Specified Transaction Payments" means the following payments made to or
for the benefit of present or future officers and employees of the Borrower and
its Affiliates, or to Granaria Holdings and its Affiliates, in each case in
connection with the Transaction and on terms (including without limitation the
amount thereof) substantially as described in the Offering Memorandum, but only
to the extent that the aggregate amount thereof does not exceed $43.2 million
for all periods from and after the Closing Date: (i) payments to finance or
refinance the purchase by such officers and employees (or a trust for their
benefit) of capital stock of Holdings
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or its parent company, the grant or vesting of any award of such capital stock
and the payment by such officers and employees of income taxes in respect
thereof, (ii) stay put and other incentive bonuses, (iii) severance payments and
(iv) transaction fees paid to Granaria Holdings.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
McGraw Hill, Inc.
"Stated Amount" of each Letter of Credit shall mean at any time the
maximum amount available to be drawn thereunder at such time, determined without
regard to whether any conditions to drawing could then be met.
"Subsidiary" shall mean, as to any Person, (i) any corporation more than
50% of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Subsidiaries of
such Person has more than a 50% equity interest at the time.
"Subsidiary Guarantor" shall mean each Subsidiary of the Borrower (other
than a Foreign Subsidiary except to the extent otherwise provided in Section
7.11) (except Immaterial Subsidiaries) that is or becomes a party to the
Subsidiary Guaranty.
"Subsidiary Guaranty" shall have the meaning provided in Section
5.01(h)(i)
"Swingline Expiry Date" shall mean the date which is two Business Days
prior to the Revolving Loan Maturity Date.
"Swingline Lender" shall mean ABN AMRO Bank N.V., in its capacity as a
Swingline Lender, or any Lender acting in replacement thereof with the consent
of the Borrower.
"Swingline Loan" shall have the meaning provided in Section 1.01.02.
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Syndication Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Tax Sharing Agreement" means any tax sharing agreement or arrangement
entered or to be entered into by Holdings, the Borrower and its Subsidiaries,
providing for payments by or to
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Holdings, the Borrower and its Subsidiaries that, in each case, are not in
excess of the tax liabilities that would have been payable by such Person on a
stand-alone basis.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Telerate Page 3750" shall mean the display designated as Page 3750 on
the Telerate Service (or such other page as may replace Page 3750 on that
service or such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying British
Bankers' Association Interest Settlement Rates for U.S. Dollar deposits).
"Term Loan" shall mean each A Term Loan, each B Term Loan and each C
Term Loan.
"Term Loan Commitment" shall mean, with respect to each Lender at any
time, the sum of the A Term Loan Commitment, the B Term Loan Commitment and the
C Term Loan Commitment of such Lender at such time.
"Test Period" shall mean the four consecutive fiscal quarters of the
Borrower then last ended, in each case taken as one accounting period.
"Title Insurers" shall have the meaning provided in Section 5.01(i)(B).
"Total A Term Loan Commitment" shall mean the sum of the A Term Loan
Commitments of each of the Lenders.
"Total B Term Loan Commitment" shall mean the sum of the B Term Loan
Commitments of each of the Lenders.
"Total C Term Loan Commitment" shall mean the sum of the C Term Loan
Commitment of each of the Lenders.
"Total Commitment" shall mean the sum of the Total Term Loan Commitment
and the Total Revolving Credit Commitment
"Total Revolving Credit Commitment" shall mean the sum of the Revolving
Credit Commitments of each of the Lenders.
"Total Term Loan Commitment" shall mean the sum of the Total A Term Loan
Commitment, the Total B Term Loan Commitment and the Total C Term Loan
Commitment.
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"Total Unutilized Revolving Credit Commitment" shall mean, at any time,
(i) the Total Revolving Credit Commitment at such time less (ii) the sum of the
aggregate principal amount of all Revolving Loans and Swingline Loans
outstanding at such time plus the Letter of Credit Outstandings at such time.
"Transaction" shall mean, collectively, (i) the Merger, (ii) the
incurrence of Loans and the issuance or deemed issuance of Letters of Credit on
the Closing Date, (iii) the issuance and sale of the Senior Subordinated Notes,
(iv) the refinancing on the Closing Date of substantially all Indebtedness of
the Borrower and its Subsidiaries (other than the Senior Subordinated Notes and
the Existing Indebtedness) and (v) the payment of fees and expenses in
connection with the foregoing.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, i.e., a Base Rate Loan or a Eurodollar Rate
Loan.
"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan means the amount, if any, by
which the actuarial present value of the accumulated plan benefits under the
Plan as of the close of its most recent plan year exceeds the fair market value
of the assets allocable thereto, each determined in accordance with Statement of
Financial Accounting Standards No. 35, based upon the actuarial assumptions used
by the Plan's actuary in the most recent annual valuation of such Plan.
"United States" and "U.S." shall each mean the United States of America.
"Unpaid Drawings" shall have the meaning provided in Section 2.05(a).
"U.S. Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States of America.
"Unutilized Revolving Credit Commitment" of any Lender at any time shall
mean the Revolving Credit Commitment of such Lender at such time less the sum of
(i) the aggregate principal amount of Revolving Loans made by such Lender and
then outstanding and (ii) such Lender's Percentage of the Letter of Credit
Outstandings at such time.
"Voting Equity" shall mean the issued and outstanding shares of each
class of capital stock or other ownership interests entitled to vote (within the
meaning of Treas. Reg. Section 1.956-2(c)(2).
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"Waivable Mandatory Repayment" shall have the meaning provided in
Section 4.02.03.
"Wholly-Owned Domestic Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person which is a Domestic Subsidiary.
"Wholly-Owned Foreign Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person which is a Foreign Subsidiary.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying shares
and/or other nominal amounts of shares required to be held other than by such
Person under applicable law) is at the time owned by such Person and/or one or
more Wholly-Owned Subsidiaries of such Person and (ii) any partnership,
association, joint venture or other entity in which such Person and/or one or
more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such
time.
"Working Capital" shall mean the excess of Consolidated Current Assets
minus Consolidated Current Liabilities.
"Written" (whether lower or upper case) or "in writing" shall mean any
form of written communication or a communication by means of telex, facsimile
device, telegraph or cable.
Section 10.02. Principles of Construction. (a) All references to sections,
schedules and exhibits are to sections, schedules and exhibits in or to this
Agreement unless otherwise specified.
(b) All accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting principles in the
United Sates in conformity with those used in the preparation of the financial
statements referred to in Section 6.05(a).
SECTION 11. THE AGENT.
Section 11.01. Appointment. The Lenders hereby designate ABN AMRO as Agent
to act as specified herein and in the other Credit Documents. Each Lender hereby
irrevocably authorizes, and each holder of any Note by the acceptance of such
Note shall be deemed irrevocably to authorize, the Agent to take such action on
its behalf under the provisions of this Agreement, the other Credit Documents
and any other instruments and agreements referred to herein or therein and to
exercise such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto. The Agent
may perform any of its duties hereunder by or through its respective officers,
directors, agents, employees or affiliates.
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Section 11.02. Nature of Duties. Notwithstanding any provision to the
contrary elsewhere in this Agreement or in any other Credit Document, the Agent
shall not have any duties or responsibilities except those expressly set forth
in this Agreement and the other Credit Documents. Neither the Agent nor any of
its respective officers, directors, agents, employees or affiliates shall be
liable for any action taken or omitted by it or them hereunder or under any
other Credit Document or in connection herewith or therewith, unless caused by
its or their gross negligence or willful misconduct. The duties of the Agent
shall be mechanical and administrative in nature; the Agent shall not have by
reason of this Agreement or any other Credit Documents a fiduciary relationship
in respect of any Lender or the holder of any Note; and nothing in this
Agreement or any other Credit Document, expressed or implied, is intended to or
shall be so construed as to impose upon the Agent any obligations in respect of
this Agreement or any other Credit Document except as expressly set forth herein
or therein.
Section 11.03. Lack of Reliance on the Agent. Independently and without
reliance upon the Agent, each Lender and the holder of each Note, to the extent
it deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of the Credit
Parties in connection with the making and the continuance of the Loans and the
taking or not taking of any action in connection herewith and (ii) its own
appraisal of the creditworthiness of the Credit Parties and, except as expressly
provided in this Agreement, the Agent shall not have any duty or responsibility,
either initially or on a continuing basis, to provide any Lender or the holder
of any Note with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or
times thereafter. The Agent shall not be responsible to any Lender or the holder
of any Note for any recitals, statements, information, representations or
warranties herein or in any document, certificate or other writing delivered in
connection herewith or for the execution, effectiveness, genuineness, validity,
enforceability, perfection, collectibility, priority or sufficiency of this
Agreement or any other Credit Document or the financial condition of the
Borrower and its Subsidiaries or be required to make any inquiry concerning
either the performance or observance of any of the terms, provisions or
conditions of this Agreement or any other Credit Document, or the financial
condition of the Borrower and its Subsidiaries or the existence or possible
existence of any Default or Event of Default.
Section 11.04. Certain Rights of the Agent. If the Agent shall request
instructions from the Required Lenders with respect to any act or action
(including failure to act) in connection with the Agreement or any Credit
Document, the Agent shall be entitled to refrain from such act or taking such
action unless and until the Agent shall have received instructions from the
Required Lenders; and the Agent shall not incur liability to any Person by
reason of so refraining. Without limiting the foregoing, no Lender or the holder
of any Note shall have any right of action whatsoever against the Agent as a
result of the Agent acting or refraining from acting hereunder or under any
other Credit Document in accordance with the instructions of the Required
Lenders.
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Section 11.05. Reliance. The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
any Person that the Agent believed to be the proper Person, and, without respect
to all legal matters pertaining to this Agreement and any other Credit Document
and its duties hereunder and thereunder, upon advice of counsel selected by the
Agent.
Section 11.06. Indemnification. In the event the Agents or Letter of Credit
Issuer, as applicable, is not reimbursed and indemnified by the Borrower, the
Lenders will reimburse and indemnify (but only to the extent required to be
reimbursed or indemnified by the Borrower) the Agents, or Letter of Credit
Issuer, as applicable, in proportion to their respective "percentages" as used
in determining the Required Lenders, for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements of whatsoever kind or nature which may be imposed on,
asserted against or incurred by the Agents or Letter of Credit Issuer, as
applicable, in performing their respective duties as Agents or Letter of Credit
Issuer, as applicable, hereunder or under any other Credit Document, in any way
relating to or arising out of this Agreement or any other Credit Document;
provided that no Lender shall be liable to the Agents or Letter of Credit
Issuer, as applicable, for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agents, or Letter of Credit Issuer, as applicable, gross
negligence or willful misconduct or any fees owing under Section 3.01(e).
Section 11.07. The Agents in Their Individual Capacity. With respect to its
obligation to make Loans and issue Letters of Credit under this Agreement, the
Agents shall have the rights and powers specified herein for a "Lender" and may
exercise the same rights and powers as though it were not performing the duties
specified herein; and the term "Lenders," "Required Lenders," "holders of Notes"
or any similar terms shall, unless the context clearly otherwise indicates,
include the Agents in their individual capacity. The Agents and its affiliates
may accept deposits from, lend money to, and generally engaged in any kind of
banking, trust, debt, equity or other business with any Credit Party or any
Subsidiary or Affiliate of any Credit Party as if they were not performing the
duties specified herein, and may accept fees and other consideration from the
Borrower for services in connection with this Agreement and otherwise without
having to account for the same to the Lenders.
Section 11.08. Holders. The Agent shall deem and treat the payee of any
Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment, transfer or endorsement thereof, as the case may be,
shall have been filed with the Agent. Any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is the holder of any Note shall be conclusive and binding on any
subsequent
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holder, transferee, assignee or endorsee, as the case may be, of such Note or of
any Note or Notes issued in exchange therefor.
Section 11.09. Resignation or Removal of the Agent. (a) The Agent may
resign from the performance of all its functions and duties hereunder and/or
under the other Credit Documents at any time by giving 15 Business Days' prior
written notice to the Borrower and the Lenders, and the Agent may be removed at
any time by written notice of removal from the Required Lenders to the Agent and
the Borrower. Such resignation or removal shall take effect upon the appointment
of a successor Agent pursuant to clauses (b) and (c) below or as otherwise
provided below.
(b) Upon any such notice of resignation or removal, the Required Lenders
shall appoint a successor Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to the Borrower.
(c) If a successor Agent shall not have been so appointed within such 15
Business Day period, the Agent, with the consent of the Borrower, shall (or the
Borrower, with the consent of the Required Lenders, may) then appoint a
commercial bank or trust company with capital and surplus of not less than
$500,000,000 as successor Agent who shall serve as Agent hereunder or thereunder
until such time, if any, as the Required Lenders appoint a successor Agent as
provided above.
(d) If no successor Agent has been appointed pursuant to clause (b) or
(c) above by the 20th Business Day after the date such notice of resignation was
given by the Agent or the date of removal by the Required Lenders, the Agent's
resignation or removal shall become effective and the Lenders shall thereafter
perform all the duties of the Agent hereunder and/or under any other Credit
Document until such time, if any, as the Required Lenders appoint a successor
Agent as provided above.
Section 11.10. Release of Collateral. As promptly as practicable after the
Borrower Stock Release Date, the Agent shall, and shall instruct the Collateral
Agent to, take all necessary actions to release the Liens on the Borrower's
capital stock created by the Pledge Agreement executed by Holdings.
SECTION 12. MISCELLANEOUS.
Section 12.01. Payment of Expenses, Etc. The Borrower shall: (i) whether or
not the transactions contemplated herein are consummated, pay all reasonable
out-of-pocket costs and expenses of the Agent (including, without limitation,
the reasonable fees and disbursements of Chapman and Cutler and (to the extent
retained in connection with the due diligence investigation
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of and collateral arrangements relating to Real Property of the Borrower and its
Subsidiaries) local counsel, subject to the cap as agreed by the Borrower and
the Agent in a certain letter agreement) in connection with the negotiation,
preparation, execution and delivery of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein and
any amendment, waiver or consent relating hereto or thereto, of the Agent in
connection with its syndication efforts with respect to this Agreement and of
the Agent and, following an Event of Default, each of the Lenders in connection
with the enforcement of this Agreement and the other Credit Documents and the
documents and instruments referred to herein and therein (including, without
limitation, the reasonable fees and disbursements of counsel for the Agent and,
following an Event of Default, for each of the Lenders); (ii) pay and hold each
of the Lenders harmless from and against any and all present and future stamp,
excise and other similar taxes with respect to the foregoing matters and save
each of the Lenders harmless from and against any and all liabilities with
respect to or resulting from any delay or omission (other than to the extent
attributable to such Lender) to pay such taxes; and (iii) indemnify the Agent
and each Lender, and each of their respective officers, directors, trustees
employees, representatives and agents from and hold each of them harmless
against any and all liabilities, obligations (including removal or remedial
actions), losses, damages, penalties, claims, actions, judgments, suits, costs,
expenses and disbursements (including reasonable attorneys' and consultants'
fees and disbursements) incurred by, imposed on or assessed against any of them
as a result of, or arising out of, or in any way related to, or by reason of,
(a) any investigation, litigation or other proceeding (whether or not the Agent
or any Lender is a party thereto) related to the entering into and/or
performance of this Agreement or any other Credit Document or the use of any
Letter of Credit or the proceeds of any Loans hereunder or the consummation of
any transactions contemplated herein or in any other Credit Document or the
exercise of any of their rights or remedies provided herein or in the other
Credit Documents, or (b) the actual or alleged presence of Hazardous Materials
in the air, surface water or groundwater or on the surface or subsurface of any
Real Property owned or at any time operated by any Credit Party or any of its
Subsidiaries, the generation, storage, transportation, handling or disposal of
Hazardous Materials at any location, whether or not owned or operated by any
Credit Party or any of its Subsidiaries, the non-compliance of any Real Property
with foreign, federal, state and local laws, regulations, and ordinances
(including applicable permits thereunder) applicable to any Real Property, or
any Environmental Claim asserted against any Credit Party, any of its
Subsidiaries or any Real Property owned or at any time operated by any Credit
Party or any of its Subsidiaries, including, in each case, without limitation,
the reasonable fees and disbursements of counsel and other consultants incurred
in connection with any such investigation, litigation or other proceeding (but
excluding any losses, liabilities, claims, damages or expenses to the extent
incurred by reason of the gross negligence or willful misconduct of the Person
to be indemnified). To the extent that the undertaking to indemnify, pay or hold
harmless the Agent or any Lender set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the
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Borrower shall make the maximum contribution to the payment and satisfaction of
each of the indemnified liabilities which is permissible under applicable law.
Section 12.02. Right of Setoff. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, each Lender is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to the Borrower or any of its Subsidiaries
or to any other Person, any such notice being hereby expressly waived, to set
off and to appropriate and apply any and all deposits (matured or unmatured and
whatever currencies denominated) and any other Indebtedness at any time held or
owing by such Lender (including, without limitation, by branches and agencies of
such Lender wherever located) to or for the credit or the account of any Credit
Party or any of its Subsidiaries against and on account of the Obligations and
liabilities of any Credit Party or any of its Subsidiaries to such Lender under
this Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations purchased by such Lender pursuant to
Section 12.06(b), and all other claims of any nature or description arising out
of or connected with this Agreement or any other Credit Document, irrespective
of whether or not such Lender shall have made any demand hereunder and although
said Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured. Notwithstanding anything to the contrary contained in this Section
12.02, no Lender shall exercise any such right of set-off without the prior
consent of the Agent or the Required Lenders so long as the Obligations shall be
secured by any Real Property located in the State of California, it being
understood and agreed, however, that this sentence is for the sole benefit of
the Lenders and may be amended, modified or waived in any respect by the
Required Lenders without the requirement of prior notice to or consent by any
Credit Party and does not constitute a waiver of any rights against any Credit
Party or against any Collateral.
Section 12.03. Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to the Borrower, at
the Borrower's address or telecopier number specified opposite its signature
below (with a copy to, in the case of a notice of Event of Default, Michael
Hopkins, Esq., Howard Darby & Levin, 1330 Avenue of the Americas, New York, New
York 10019); if to any other Credit Party, at such Credit Party's address or
telecopier number specified opposite in Annex III; if to any Lender, at its
address specified or telecopier number opposite its signature below; and if to
the Agent, at its Notice Office; or, as to any Borrower or the Agent, at such
other address or telecopier number as shall be designated by such party in a
written notice to the other parties hereto and, as to each Lender, at such other
address or telecopier number as shall be designated by such Lender in a written
notice to the Borrower and the Agent. Each such notice or other communication
shall be effective (i) if given by telecopier, when such telecopy is transmitted
to the telecopier number specified in this Section and a confirmation of such
telecopy
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has been received by the sender, (ii) if given by mail, five (5) days after such
communication is deposited in the mail, certified or registered with return
receipt requested, addressed as aforesaid or (iii) if given by any other means,
when delivered at the addresses specified in this Section, except that notices
and communications to the Agent shall not be effective until received by the
Agent.
Section 12.04. Benefit of Agreement, Etc. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided, however, the Borrower
may not assign or transfer any of its rights, obligations or interest hereunder
or under any other Credit Document without the prior written consent of the
Lenders. Any Lender may at any time transfer, assign or grant participations in
its rights hereunder, provided such Lender shall remain a "Lender" for all
purposes hereunder (and may not transfer or assign all or any portion of its
Commitments hereunder except as provided in Section 12.04(b)) and the
transferee, assignee or participant, as the case may be, shall not constitute a
"Lender" hereunder and, provided, further, that no Lender shall transfer or
grant any participation under which the participant shall have rights to approve
any amendment to or waiver of this Agreement or any other Credit Document except
to the extent such amendment or waiver would (i) extend the final scheduled
maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is
not extended beyond the Revolving Loan Maturity Date) in which such participant
is participating, or reduce the rate or extend the time of payment of interest
or Fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount thereof,
or increase the amount of the participant's participation over the amount
thereof then in effect (it being understood that a waiver of any Default or
Event of Default or of a mandatory reduction in the Total Commitment shall not
constitute a change in the terms of such participation, and that an increase in
any Commitment or Loan shall be permitted without the consent of any participant
if the participant's participation is not increased as a result thereof), (ii)
consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement or (iii) release all or substantially all of
the Collateral under all of the Security Documents (except as expressly provided
in the Credit Documents) supporting the Loans hereunder in which such
participant is participating. In the case of any such participation, the
participant shall not have any rights under this Agreement or any of the other
Credit Documents (the participant's rights against such Lender in respect of
such participation to be those set forth in the agreement executed by such
Lender in favor of the participant relating thereto) and all amounts payable by
the Borrower hereunder shall be determined as if such Lender had not sold such
participation.
(b) Notwithstanding the foregoing, any Lender (or any Lender together
with one or more other Lenders) may (x) assign all or a portion of its Revolving
Credit Commitment (and related outstanding Obligations hereunder) and/or its
outstanding Term Loans to its parent company and/or any affiliate of such Lender
which is at least 50% owned by such Lender or its
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parent company or to one or more Lenders or to a Related Fund or (y) assign all,
or if less than all, a portion equal to at least $5,000,000 (or at least
$1,000,000 in the case of any assignment by ABN AMRO prior to March __, 1998) in
the aggregate for the assigning Lender or assigning Lenders, of such Revolving
Credit Commitments and/or its outstanding Term Loans (and related outstanding
Obligations) hereunder to one or more Eligible Transferees, each of which
assignees shall become a party to this Agreement as a Lender by execution of an
Assignment and Assumption Agreement, provided that (i) at such time Annex I
shall be deemed modified to reflect the Commitments (and/or outstanding Term
Loans, as the case may be) of such new Lender and of the existing Lenders, (ii)
upon surrender of the old Notes, new Notes will be issued, at the Borrower's
expense, to such new Lender and to the assigning Lender to the extent it is
retaining any Commitments or Loans, such new Notes to be in conformity with the
requirements of Section 1.05 (with appropriate modifications) to the extent
needed to reflect the revised Commitments (and/or outstanding Term Loans, as the
case may be), (iii) the consent of the Agent, Letter of Credit Issuers and, so
long as no Event of Default has occurred and is continuing, the consent of the
Borrower, shall be required in connection with any such assignment pursuant to
clause (y) above (which consents shall not be unreasonably withheld) and (iv)
the Agent shall receive at the time of each such assignment, from the assigning
or assignee Lender, the payment of a non-refundable assignment fee of $3,500
and, provided, further, that such transfer or assignment will not be effective
until recorded by the Agent on the Register pursuant to Section 12.16. To the
extent of any assignment pursuant to this Section 12.04(b), the assigning Lender
shall be relieved of its obligations hereunder with respect to its assigned
Commitments and/or Loans but shall continue to be entitled to the benefit of all
indemnities hereunder with respect to matters arising out of the prior
involvement of such assignor as a Lender hereunder. At the time of each
assignment pursuant to this Section 12.04(b) to a Person which is not already a
Lender hereunder and which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the
respective assignee Lender shall provide to the Borrower and the Agent the
appropriate Internal Revenue Service Forms (and, if applicable a Section
4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent that an
assignment of all or any portion of a Lender's Commitments and related
outstanding Obligations pursuant to Section 1.13 or this Section 12.04(b) would,
at the time of such assignment, result in increased costs under Section 1.10,
1.11 or 2.06 from those being charged by the respective assigning Lender prior
to such assignment, then the Borrower shall not be obligated to pay such
increased costs (although the Borrower shall be obligated to pay any other
increased costs of the type described above resulting from changes after the
date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any Lender from
pledging its Loans and Notes hereunder to a Federal Reserve Bank in support of
borrowings made by such Lender from such Federal Reserve Bank, and any Lender
that is a fund that invests in bank loans may, without the consent of the Agent
or Borrower, pledge all or any portion of its interest, rights
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and obligations to any trustee or any other representative of holders of
obligations owed or securities issued by such investment fund as security for
such obligations or securities.
Section 12.05. No Waiver; Remedies Cumulative. No failure or delay on the
part of the Agent or any Lender or any holder of any Note in exercising any
right, power or privilege hereunder or under any other Credit Document and no
course of dealing between any Credit Party and the Agents or any Lender or any
Letter of Credit Issuer or the holder of any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights, powers and remedies herein or in any other
Credit Document expressly provided are cumulative and not exclusive of any
rights, powers or remedies which the Agents or any Lender or any Letter of
Credit Issuer or the holder of any Note would otherwise have. No notice to or
demand on any Credit Party in any case shall entitle any Credit Party to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Agents or any Lender or any Letter of
Credit Issuer or the holder of any Note to any other to further action in any
circumstances without notice or demand.
Section 12.06. Payments Pro Rata. (a) Except as otherwise provided in this
Agreement, the Agent agrees that promptly after its receipt of each payment from
or on behalf of any Credit Party in respect of any Obligations hereunder, it
shall distribute such payment to the Lenders or the Letter of Credit Issuers, as
the case may be, (other than any Lender that has consented in writing to waive
its pro rata share of any such payment) pro rata based upon their respective
shares, if any, of the Obligations with respect to which such payment was
received.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings, Commitment Fees or Letter of Credit Fees, of a
sum which with respect to the related sum or sums received by other Lenders is
in a greater proportion than the total of such Obligation then owed and due to
such Lender bears to the total of such Obligation then owed and due to all of
the Lenders immediately prior to such receipt, then such Lender receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Lenders an interest in the Obligations of the respective Credit Party to
such Lenders in such amount as shall result in a proportional participation by
all the Lenders in such amount; provided that if all or any portion of such
excess amount is thereafter recovered from such Lender, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
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Section 12.07. Calculations; Computations. (a) The financial statements to
be furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Borrower to the Lenders); provided that, except as otherwise specifically
provided herein, all computations determining compliance with Sections 8.07
through 8.10, shall utilize accounting principles and policies in conformity
with those used to prepare the historical financial statements delivered to the
Lenders pursuant to Section 6.05(a).
(b) Except as otherwise provided herein, all computations of interests,
Commitment Fees and other Fees hereunder shall be made on the basis of a year of
360 days (or 365 or 366 days, as the case may be, in case of Base Rate Loans
based on the Prime Rate) for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest,
Commitment Fees or other Fees are payable.
(c) For purposes of determining compliance with the dollar amounts set
forth in Section 8 and determining the Applicable Margin (to the extent based on
the Leverage Ratio), the dollar equivalent of any Indebtedness or other
obligation incurred in a currency other than Dollars shall be the dollar
equivalent thereof as in effect on the last Business Day of the then most
recently ended fiscal quarter of the Borrower and such dollar equivalent shall
remain in effect until same is recalculated as of the last Business Day of the
immediately succeeding fiscal quarter, and with such dollar equivalent to mean,
at any time of determination thereof, the amount of Dollars which could be
purchased with the amount of currency involved in such computation at the spot
exchange rate therefor as published in the New York edition of The Wall Street
Journal on the date one Business Day subsequent to the date of any determination
of such dollar equivalent, provided that if the New York edition of The Wall
Street Journal is not published on such date, reference shall be made to such
rate as set forth in most recently published New York edition of The Wall Street
Journal, and provided further, that if any time the New York edition of The Wall
Street Journal ceases to publish such exchange rates, the Dollar Equivalent
shall be the amount of Dollars which could be purchased with the amount of
currency involved in such computation at the spot rate therefor as quoted by the
Agent at approximately 11:00 a.m. (London time) on the date two Business Days
prior to the date of any determination thereof for purchase on such date.
Notwithstanding the foregoing, for purposes of determining compliance with
Section 8.04 (vii), the Borrower shall be deemed in compliance with such Section
as long as at the time of incurrence of any Indebtedness by Foreign Subsidiaries
in a currency other than Dollars, the Dollar equivalent (calculated as provided
above) of the sum of (i) such Indebtedness plus (ii) then outstanding
Indebtedness of Foreign Subsidiaries shall not exceed the Dollar amount set
forth in such Section.
Section 12.08. Governing Law; Submission to Jurisdiction; Venture; Waiver
of Jury Trial. (a) This Agreement and the other Credit Documents and the rights
and obligations of the parties hereunder and thereunder shall be construed in
accordance with and be governed by the law of the
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State of New York. Any legal action or proceeding with respect to this Agreement
or any other Credit Document may be brought in the courts of the State of New
York or the United States for the Southern District of New York, and, by
execution and delivery of this Agreement, each Credit Party hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Each Credit Party
hereby further irrevocably waives any claim that any such courts lack
jurisdiction over such Credit Party, and agrees not to plead or claim, in any
legal action or proceeding with respect to this Agreement or any other Credit
Document brought in any of the aforesaid courts, that any such court lacks
jurisdiction over such Credit Party. Each Subsidiary hereby irrevocably
designates, appoints and empowers the Borrower, with offices on the date hereof
at 250 East Fifth Street, Cincinnati, Ohio 45202 as its designee, appointee and
agent to receive, accept and acknowledge for and on its behalf, and in respect
of its property, service of any and all legal process, summons, notices and
documents which may be served in any such action or proceeding. If for any
reason the Borrower shall cease to be available to act as such, each Subsidiary
agrees to designate a new designee, appointee and agent in New York City on the
terms and for the purposes of this provision satisfactory to the Agent under
this Agreement. Each Credit Party further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified mail, postage
prepaid, to such Credit Party at its address set forth opposite its signature
below, such service to become effective 30 days after such mailing. Each Credit
Party hereby irrevocably waives any objection to such service of process and
further irrevocably waives and agrees not to plead or claim in any action or
proceeding commenced hereunder or under any other Credit Document that service
of process was in any way invalid or ineffective. Nothing herein shall affect
the right of the Agents under this Agreement, any Lender, any Letter of Credit
Issuer or the holder of any Note to serve process in any other manner permitted
by law or to commence legal proceedings or otherwise proceed against any Credit
Party in any other jurisdiction.
(b) Each Credit Party hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
(c) The Borrower hereby agrees with each other Credit Party, the Agent
and each Lender that the Borrower irrevocably accepts such appointment as agent
as set forth in clause (a) of this Section 12.08 and agrees that the Borrower
(i) shall inform the Agent promptly in writing of any change of its address,
(ii) shall notify the Agent of any termination of any of the agency
relationships created by clause (a) of this Section 12.08, (iii) shall perform
its obligations as such
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Agent in accordance with the provisions of clause (a) of this Section 12.08 and
(iv) shall forward promptly to each Subsidiary any legal process received by the
Borrower in its capacity as process agent. As process agent, the Borrower agrees
to discharge the above-mentioned obligations and will not refuse fulfillment of
such obligations under clause (a) of this Section 12.08. In addition, the
Borrower agrees that it shall maintain its qualification to do business in the
State of New York and shall at all times have a registered agent in New York to
receive service of process.
(d) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
Section 12.09. Counterparts. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Agent.
Section 12.10. Effectiveness. This Agreement shall become effective on the
date (the "Effective Date") on which each Credit Party, each of the Lenders and
the Agent shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered the same to the Agent at its Notice
Office or, in the case of the Lenders, shall have given to the Agent telephonic
(confirmed in writing), written, telex or facsimile notice (actually received)
at such office that the same has been signed and mailed to it. The Agent will
give each Borrower and each Lender prompt written notice of the occurrence of
the Effective Date.
Section 12.11. Headings Descriptive. The headings of the several sections
and subsections of this Agreement are inserted for convenience only and shall
not in any way affect the meaning or construction of any provision of this
Agreement.
Section 12.12. Amendment or Waiver; etc. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the Borrower and the Required Lenders, provided that no
such change, waiver, discharge or termination shall, without the consent of each
Lender (with Obligations being directly affected in the case of following clause
(i)), (i) extend the final scheduled maturity of any Loan or Note, amend, modify
or waive any Scheduled Repayment, or extend the stated maturity of any Letter of
Credit beyond the applicable Maturity Date, or reduce the rate or extend the
time of payment of interest or Fees thereon, or reduce the principal amount
thereof (except to the extent repaid in cash), (ii) amend, modify or waive any
provision of this Section 12.12, (iii) reduce the percentage specified in the
definition of Required Lenders,
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(iv) release any Guarantor from its obligations under any Guaranty or release
any material portion of Collateral or amend the definition of Borrower Stock
Release Date or (v) consent to the assignment or transfer by the Borrower of any
of its rights and obligations under this Agreement; provided further, that no
such change, waiver, discharge or termination shall (u) increase the Commitments
of any Lender over the amount thereof then in effect without the consent of such
Lender (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or Events of Default or of a mandatory reduction
in the Total Commitment shall not constitute an increase of the Commitment of a
Lender and an increase in the available portion of any Commitment of any Lender
shall not constitute an increase in the Commitment of such Lender), (v) without
the consent of the Swingline Lender or the Letter of Credit Issuers, as the case
may be, amend, modify or waive any provision of Section 2 or alter its rights or
obligations with respect to Letters of Credit or Swingline Loans, as the case
may be, (w) without the consent of the Agent, amend, modify or waive any
provision of Section 11 as same applies to the Agent or any other provision as
same relates to the rights or obligations of the Agent, (x) without the consent
of the Collateral Agent, amend, modify or waive any provision relating to the
rights or obligations of the Collateral Agent, (y) without the consent of the
Majority Lenders of each Facility which is being allocated a lesser prepayment
or commitment reduction, alter the required application of any prepayments, as
between the various Facilities pursuant to Section 4.02.01(c), (d), (e), (f) or
(g) (although the Required Lenders may waive, in whole or in part, any such
prepayment or commitment reduction so long as the application, as amongst the
various Facilities, of any such prepayment or commitment reduction which is
still required to be made is not altered), (z) without the consent of the
Majority Lenders of the respective Facility, amend the definition of Majority
Lenders or amend, modify or waive the order of the application of any payment or
prepayment or (aa) without the consent of the Majority Lenders of the B Term
Loan Facility and the Majority Lenders of the C Term Loan Facility, amend
Section 4.02.03. If the Borrower requests a waiver of the terms of Section 8.02
and other related provisions of this Agreement in connection with the purchase
or other acquisition of any part of the property or assets of any Person, the
Agent and the Lenders shall use its best efforts to respond to such request
within 21 days of such request.
(b) If, in connection with any proposed change, waiver, discharge or
termination with respect to any of the provisions of this Agreement as
contemplated by clauses (i) through (v), inclusive, of the first proviso to
Section 12.12(a), the consent of the Required Lenders is obtained but the
consent of one or more of such other Lenders whose consent is required is not
obtained, then the Borrower shall have the right, so long as all non-consenting
Lenders whose individual consent is required are treated as described below, to
replace each such non-consenting Lender or Lenders with one or more Replacement
Lenders pursuant to Section 1.13 so long as at the time of such replacement,
each such Replacement Lender consents to the proposed change, waiver, discharge
or termination, provided, that in any event the Borrower shall not have the
right to
111
replace a Lender solely as a result of the exercise of such Lender's rights (and
the withholding of any required consent by such Lender) pursuant to the second
proviso to Section 12.12(a).
Section 12.13. Survival. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 2.06, 4.04, 12.01 and 12.06 shall
survive the execution, delivery and termination of this Agreement and the Notes
and the making, repayment and assignment of the Loans.
Section 12.14. Domicile of Loans. Each Lender may transfer and carry its
Loans at, to or for the account of any office, Subsidiary or Affiliate of such
Lender. Notwithstanding anything to the contrary contained herein, to the extent
that a transfer of Loans pursuant to this Section 12.14 would, at the time of
such transfer, result in increased costs under Section 1.10, 1.11, 2.06 or 4.04
from those being charged by the respective Lender prior to such transfer, then
the Borrower shall not be obligated to pay such increased costs (although the
Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
transfer).
Section 12.15. Confidentiality. (a) Subject to the provisions of clause (b)
of this Section 12.15, each Lender agrees that it will use its reasonable
efforts not to disclose without the prior consent of the Borrower (other than to
its employees, auditors, advisors or counsel or to another Lender if the Lender
or such Lender's holding or parent company in its sole discretion determines
that any such party should have access to such information, provided such
Persons shall be subject to the provisions of this Section 12.15 to the same
extent as such Lender) any information with respect to the Borrower or any of
its Subsidiaries which is now or in the future furnished pursuant to this
Agreement or any other Credit Document and which is designated by the Borrower
to the Lenders in writing as confidential (for purposes of this Section, all
information and notices provided by the Borrower pursuant to Section 7.01(i)
shall hereby be designated as confidential), provided that any Lender may
disclose any such information (a) as has become generally available to the
public, (b) as may be required or appropriate in any report, statement or
testimony submitted to any municipal, state or Federal regulatory body having or
claiming to have jurisdiction over such Lender or to the Federal Reserve Board
or the Federal Deposit Insurance Corporation or similar organizations (whether
in the United States or elsewhere) or their successors or to the National
Association of Insurance Commissioners, (c) as may be required or appropriate in
response to any summons or subpoena or in connection with any litigation, (d) in
order to comply with any law, order, regulation or ruling applicable to such
Lender, (e) to the National Association of Insurance Commissioners or any
similar organization or any nationally recognized rating agency that requires
access to information about such Lender's investment portfolio in connection
with ratings issued with respect to such Lender, (f) to any prospective or
actual transferee or participant in connection with any contemplated transfer or
participation of any of the Notes, Commitments and/or Loans or any interest
therein by such
112
Lender, provided, that such prospective transferee agrees to abide by the
provisions contained in this Section and (g) to any direct or indirect
contractual counterparty in swap agreements or such contractual counterparty's
professional advisor (so long as such contractual counterparty or professional
advisor to such contractual counterparty agrees to be bound by the provisions
of this Section 12.15).
(b) The Borrower hereby acknowledges and agrees that each Lender may
share with any of its affiliates any information related to any Credit Party or
any of its Subsidiaries (including, without limitation, any nonpublic customer
information regarding the creditworthiness of the Borrower and its Subsidiaries,
provided such Persons shall be subject to the provisions of this Section 12.15
to the same extent as such Lender).
Section 12.16. Register. The Borrower hereby designates the Agent to serve
as the Borrower's agent, solely for purposes of this Section 12.16, to maintain
a register (the "Register") on which it will record the names and addresses of
the Lenders and the Commitments from time to time of each of the Lenders, the
Loans made by each of the Lenders and each repayment in respect of the principal
amount of the Loans of each Lender. Failure to make any such recordation, or any
error in such recordation shall not affect the Borrower's obligations in respect
of such Loans. With respect to any Lender, the transfer of the Commitment of
such Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitment shall not be effective until such transfer is
recorded on the Register maintained by the Agent with respect to ownership of
such Commitment and Loans and prior to such recordation all amounts owing to the
transferor with respect to such Commitment and Loans shall remain owing to the
transferor. The registration of assignment or transfer of all or part of any
Commitments and Loans shall be recorded by the Agent on the Register only upon
the acceptance by the Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 12.04(b). Coincident with the delivery
of such an Assignment and Assumption Agreement to the Agent for acceptance and
registration of assignment or transfer of all or part of a Loan, or as soon
thereafter as practicable, the assigning or transferor Lender shall surrender
the Note evidencing such Loan, and thereupon one or more new Notes in the same
aggregate principal amount shall be issued to the assigning or transferor Lender
and/or the new Lender. The Borrower agrees to indemnify the Agent from and
against any and all losses, claims, damages and liabilities of whatsoever nature
which may be imposed on, asserted against or incurred by the Agent in performing
its duties under this Section 12.16.
Section 12.17. Judgment Currency. (a) The Borrower's obligation hereunder
and under the other Credit Documents to make payments in Dollars (the
"Obligation Currency") shall not be discharged or satisfied by any tender or
recovery pursuant to any judgment expressed in or converted into any currency
other than the Obligation Currency, except to the extent that such tender or
recovery results in the effective receipt by the Agent or the respective Lender
of the full amount of the Obligation Currency expressed to be payable to the
Agent or such Lender under this Agreement or the other Credit Documents. If for
the purpose of obtaining or enforcing judgment against the Borrower in any court
or in any jurisdiction, it becomes necessary to convert
113
into or from any currency other than the Obligation Currency (such other
currency being hereinafter referred to as the "Judgment Currency") an amount due
in the Obligation Currency, the conversion shall be made, at the rate of
exchange (as quoted by the Agent or if the Agent does not quote a rate of
exchange on such currency, by a known dealer in such currency designated by the
Agent) determined, in each case, as of the day immediately preceding the day on
which the judgment is given (such Business Day being hereinafter referred to as
the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, the Borrower covenants and agrees to pay, or cause to be paid, such
additional amounts, if any (but in any event not a lesser amount) as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate or exchange prevailing on the Judgment Currency Conversion
Date.
(c) For purposes of determining any rate of exchange for this Section
12.17, such amounts shall include any premium and costs payable in connection
with the purchase of the Obligation Currency.
Section 12.18. Integration. This Agreement and the other Credit Documents
represent the entire agreement of the Credit Parties, the Agents and the Lenders
with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by any Credit Party, any
Agent or any Lender relative to subject matter hereof or thereof not expressly
set forth or referred to herein or in the other Credit Documents.
114
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Agreement as of the date first above
written.
E-P ACQUISITION, INC.
By /s/ JOEL P. WYLER
-------------------------------
Name: Joel P. Wyler
------------------------
Title: President
------------------------
Address:
Suite 500
- -------------------------
250 E. Fifth Street
- -------------------------
Cincinnati, Ohio 45202
- -------------------------
Attention: President
---------------------
Telephone: 513-721-7010
---------------------
Telecopy: 513-721-2431
---------------------
115
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Agreement as of the date first above
written.
E-P ACQUISITION, INC.
By /s/ Joel P. Wyler
--------------------------
Name: Joel P. Wyler
Title: President
Address: Suite 500
250 E. Fifth Street
Cincinnati, Ohio 45202
Attention: President
Telephone: 513-721-7010
Telecopy: 513-721-2431
ABN AMRO BANK N.V., individually and as
Agent
By /s/ Gregory D. Amoroso
--------------------------
Name: Gregory D. Amoroso
Title: Group Vice President
By /s/ Paul Widuch
--------------------------
Name: Paul Widuch
Title: Group Vice President
Address: 1325 Avenue of the Americas
9th Floor
New York, NY 10019
Attention: Agency Services
Telephone: (212) 314-1705
Telecopy: (212) 314-1709
PNC BANK, NATIONAL ASSOCIATION
By /s/ Bruce A. Kintner
--------------------------
Name: Bruce A. Kintner
Title: Vice President
Address: 201-East Fifth Street
3rd Floor
Cincinnati, OH 45202
Attention: Sandy Wilson
Telephone: (513) 651 -8984
Telecopy: (513) 651 -8951
DLJ CAPITAL FUNDING, INC.
By /s/ Stephen P. Hickey
--------------------------
Name: Stephen P. Hickey
Title: Managing Director
Address: Newport Tower
525 Washington Blvd.
Jersey City, NJ 07310
Attention: Ed Vowinkel
Telephone: (201) 610-1971
Telecopy: (201) 610-1965
THE BANK OF NOVA SCOCIA
By /s/ F.C.H. Ashby
---------------------------
Name: F.C.H. Ashby
Title: Senior Manager Loan Operations
Address: 600 Peachtree Street
Suite 2700
Atlanta, GA 30308
Attention: Shannon Dancila
Telephone: 404-888-1540
Telecopy: (404) 888-8998
BANK OF TOKYO - MITSUBISHI TRUST
COMPANY
By /s/ David C. McLaughlin
--------------------------
Name: David C. McLaughlin
Title: Vice President
Address: 1251 Avenue of the Americas
New York, NY 10020-1104
Attention: David McLaughlin, Vice President
Telephone: (212) 782-4331
Telecopy: (212) 782-4981
BANK ONE, NA
By /s/ Michael T. Vea
--------------------------
Name: Michael T. Vea
Title: President
Address: 500 Throckmorton
Fort Worth, TX
Attention: Margie Bryant
Telephone: (817) 884-4187
Telecopy: (817) 884-4651
COMERICA BANK
By /s/ Nicholas G. Mester
---------------------------
Name: Nicholas G. Mester
Title: Account Representative
Address: Mail Code 3265
500 Woodward Avenue
Detroit, MI 48226
Attention: Nick Mester
Telephone: (313) 222-9168
Telecopy: (313) 222-3776
CREDIT AGRICOLE INDOSUEZ
By /s/ W. Leroy Startz
-------------------------
Name: W. Leroy Startz
Title: First Vice President
By /s/ David Bouhl
-------------------------
Name: David Bouhl, EVP
Title: Head of Corporate Banking
Chicago
Address: 55 E. Monroe Street
Suite 4700
Chicago, IL 60603
Attention: Jerome Leblond
Telephone: (312) 917-7569
Telecopy: (312) 372-3724
CREDITANSTALT CORPORATE FINANCE, INC.
By /s/ Richard P. Buckanavage
----------------------------
Name: Richard P. Buckanavage
Title: Vice President
By /s/ Maura K. Connor
--------------------------
Name: Maura K. Connor
Title: Senior Associate
Address: 2 Greenwich Plaza
Greenwich, CT 06830
Attention: Jennifer Poccia
Telephone: (203) 861 -6423
Telecopy: (203) 861 -6594
Attention: Karen Marcella
Telephone: (203) 861 -6421
Telecopy: (203) 861 -6594
NBD BANK, N.A.
By /s/ Scott A. Dvornik
--------------------------
Name: Scott A. Dvornik
Title: Vice President
Address: 1 Indiana Square
Suite 7031
Indianapolis, IN 46266
Attention: Nina Windell
Telephone: (317) 266-7736
Telecopy: (317) 266-4163
PROVIDENT BANK
By /s/ Richard E. Wirthlin
--------------------------
Name: Richard E. Wirthlin
Title: Vice President
Address: One East 4th Street
5th Floor
Cincinnati, OH 45202
Attention: Richard E. Wirthlin
Telephone: (513) 579-2022
Telecopy: (513) 579-2201
ARAB BANKING CORPORATION (B.S.C.)
By /s/ Sheldon Tilney
--------------------------------------
Name: Sheldon Tilney
Title: Deputy General manager
Address: 277 Park Avenue
32nd Floor
New York, NY 10172-3299
Attention: Louise Bilbro
Telephone: (212) 583-4758
Telecopy: (212) 583-0932/0921
THE BANK OF NEW YORK
By Edward J. Dougherty
-------------------------------
Name: Edward J. Dougherty III
Title: Vice President
U.S. Commercial Banking
Address: One Wall Street
22nd Floor
New York, NY 10286
Attention: Edward J. Dougherty
Telephone: (212) 635-7842
Telecopy: (212) 635-6434
COMPAGNIE FINANCIERE de CIC et de
1'UNION EUROPEENNE
By /s/ Anthony Rock
-----------------------------------
Name: Anthony Rock
Title: Vice President
By /s/ Brian O'Leary
-----------------------------------
Name: Brian O'Leary
Title: Vice President
Address: 520 Madison Avenue
37th Floor
New York, NY 10022
Attention: Anthony Rock
Telephone: (212) 715-4666
Telecopy: (212) 715-4535
FIFTH THIRD BANK
By /s/ Kevin CM. Jones
-----------------------------------
Name: Kevin CM. Jones
Title: Assistant Vice President
Address: 38 Fountain Square Plaza
MD# 109054
Cincinnati, OH 45263
Attention: Kevin CM. Jones, Assistant Vice President
Telephone: (513) 744-8662
Telecopy: (513) 579-5226
HARRIS TRUST AND SAVINGS BANK
By /s/ W.A. McDonnell
--------------------------------
Name: W.A. McDonnell
Title: Vice President
(312) 461-5244
Address: 111 West Monroe Street
Chicago, IL 60603
Attention: Jennifer Miles-Muller
Telephone: (312) 461-1516
Telecopy: (312) 293-5041
IMPERIAL BANK
By /s/ John F. Farrace
--------------------------------
Name: John F. Farrace
Title: Vice President
Address: 9920 South La Cienega Blvd.
14th Floor
Inglewood, CA 90301
Attention: Judy Varner
Telephone: (310) 417-5721
Telecopy: (310) 417-5997
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By /s/ Beatrice E. Kossodo
-------------------------------
Name: Beatrice E. Kossodo
Title: Senior Vice President
Address: 520 Madison Avenue
26th Floor
New York, NY 10022
Attention: Mildred Chiu
Telephone: (212) 891-8256
Telecopy: (212) 755-2349 or 486-0970
STAR BANK, NATIONAL ASSOCIATION
By /s/ William J. Goodwin
-------------------------------
Name: William J. Goodwin
Title: Senior Vice President
Address: 425 Walnut Street, 8th Floor
Mail Location 9150
Cincinnati, OH 45201-1038
Attention: Cathy Siegel
Telephone: (513) 632-4032
Telecopy: (513) 632-2965
THE SUMITOMO BANK, LIMITED, CHICAGO
BRANCH
By /s/ Ken-Ichiro Kobayashi
--------------------------------------
Name: Ken-Ichiro Kobayashi
Title: Joint General Manager
Address: 233 S. Wacker Drive
Suite 4800
Chicago, IL 60606-6448
Attention: Gary Rabishaw
Telephone: (312) 879-7697
Telecopy: (312) 876-6436
MASSACHUSETTS MUTUAL LIFE INSURANCE CO.
By /s/ John B. Wheeler
------------------------------
Name: John B. Wheeler
Title: Manager Director
Address: 1295 State Street
Springfield, MA 01111
Attention: Laura Hamel
Telephone: (413) 744-3978
Telecopy: (413) 744-7922
MASSMUTUAL HIGH YIELD PARTNERS LLC
By: HYP Management, Inc. as Managing
Member
By /s/ Michael P. Hermsen
----------------------------------
Name: Michael P. Hermsen
Title: Vice President
Address: 1295 State Street
Springfield, MA 01111
Attention: Laura Hamel
Telephone: (413) 744-3978
Telecopy: (413)744-7922
VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By /s/ Jeffrey W. Maillet
----------------------------------
Name: Jeffrey W. Maillet
Title: Senior Vice President & Director
Address: 1 Parkview Plaza
Oakbrook Terrace, IL 60181
Attention: Brian Murphy
Telephone: (630) 684-6479
Telecopy: (630) 684-6740/6741
Address: State Street Bank & Trust
P.O. Box 778
Boston, MA 02102
Attention: Sean Emerson
Telephone: (617) 664-5481
Telecopy: (617) 664-5366/5367
KZH-CRESCENT-2 CORPORATION
By /s/ Virginia Conway
----------------------------------
Name: Virginia Conway
Title: Authorized Agent
Address: KZH-Crescent-2 Corporation
c/o The Chase Manhattan Bank
450 West 33rd Street - 15th Floor
New York, New York 10001
Attention: Virginia Conway
Telephone: (212) 946-7575
Telecopy: (212) 946-7776
PRIME INCOME TRUST
By /s/ Rajesh K. Gupta
----------------------------------
Name: Rajesh K. Gupta
Title: Senior Vice President
Address: c/o Dean Witter Intercapital, Inc.
72nd Floor
Two World Trade Center
New York, NY 10048
Attention: April Chrysostomas
Telephone: (212) 392-5709
Telecopy: (212) 392-5345
ARCHIMEDES FUNDING, L.L.C.
By: ING CAPITAL ADVISORS, INC.
as Collateral Manager
By: /S/ MICHAEL D. HATLEY
____________________________________
Name: Michael D. Hatley
Title: Vice President & Portfolio
Manager
Address: c/o ING Capital Advisors, Inc.
333 S. Grande Ave., Suite #4250
Los Angeles, CA 90071
Attention: Lenore Crummey-Benoit
Telephone: (213) 346-3976
Telecopy: (213) 626-6552
KZH-ING-2 CORPORATION
By /S/ ANDREW J. TAYLOR
____________________________________
Name: Andrew J. Taylor
Title: Authorized Agent
Address: KZH-ING-2 Corporation
c/o The Chase Manhattan Bank
450 West 33rd Street -- 15th Floor
New York, New York 10001
Attention: Virginia Conway
Telephone: (212) 946-7575
Telecopy: (212) 946-7776
OCTAGON CREDIT INVESTORS LOAN PORTFOLIO
(A UNIT OF THE CHASE MANHATTAN BANK)
By: /S/ JAMES P. FERGUSON
____________________________________
James P. Ferguson
Managing Director
Address:
380 Madison Avenue-12th Fl.
New York, NY 10017
Phone: 212/622-3070
Fax: 212/622-3797
DELANO COMPANY
By PACIFIC INVESTMENT MANAGEMENT
COMPANY, as its Investment Advisor.
By /S/ RAYMOND KENNEDY
____________________________________
Name: Raymond Kennedy
Title: Vice President
Address: Delano Company
c/o Pacific Investment Management Co.
840 Newport Center Drive
Newport Beach, CA 92658
Attention: Jason R. Rosiak
Telephone: (714) 640-3407
Telecopy: (714) 720-8586
ROYALTON COMPANY
By PACIFIC INVESTMENT MANAGEMENT
COMPANY, as its Investment Advisor.
By /S/ RAYMOND KENNEDY
__________________________________
Name: Raymond Kennedy
Title: Vice President
Address: Royalton Company
c/o Pacific Investment Management Co.
840 Newport Center Drive
Newport Beach, CA 92658
Attention: Jason R. Rosiak
Telephone: (714) 640-3407
Telecopy: (714) 720-8586
ALLSTATE INSURANCE COMPANY
BY /S/ PATRICIA W. WILSON
____________________________________
Name: Patricia W. Wilson
Title: Authorized Signatories
By /S/ DANIEL C. LEIMBACH
____________________________________
Name: Daniel C. Leimbach
Title: Authorized Signatories
Address: 3075 Sanders Road
Suite G4A
Northbrook, IL 60062-7127
Attention: Mary Counley
Telephone: (847) 402-7048
Telecopy: (847) 326-5040