1
EXHIBIT 10.7
EXECUTION COPY
- --------------------------------------------------------------------------------
CREDIT AGREEMENT
dated as of
September 30, 1997
As Amended and Restated as of May 31, 2000
among
HUNTSMAN PACKAGING CORPORATION,
as Borrower
ASPEN INDUSTRIAL, S.A. DE C.V.,
as Mexico Borrower
The Lenders Party Hereto,
Bankers Trust Company,
as Administrative Agent
and Collateral Agent
THE CHASE MANHATTAN BANK,
as Syndication Agent
and
The Bank of Nova Scotia,
as Documentation Agent
---------------------------
CHASE SECURITIES INC.,
as Arranger
- --------------------------------------------------------------------------------
2
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
-----------
SECTION 1.01.......................................................Defined Terms 2
SECTION 1.02..............................Classification of Loans and Borrowings 35
SECTION 1.03.....................................................Terms Generally 35
SECTION 1.04......Accounting Terms; GAAP; Treatment of Unrestricted Subsidiaries 35
ARTICLE II
The Credits
-----------
SECTION 2.01....................Commitments; Loans Outstanding on Effective Date 36
SECTION 2.02................................................Loans and Borrowings 36
SECTION 2.03.............................................Requests for Borrowings 38
SECTION 2.04.....................................................Swingline Loans 38
SECTION 2.05...................................................Letters of Credit 40
SECTION 2.06...............................................Funding of Borrowings 46
SECTION 2.07..................................................Interest Elections 47
SECTION 2.08............................Termination and Reduction of Commitments 49
SECTION 2.09................................Repayment of Loans; Evidence of Debt 50
SECTION 2.10..........................................Amortization of Term Loans 51
SECTION 2.11.................................................Prepayment of Loans 53
SECTION 2.12................................................................Fees 57
SECTION 2.13............................................................Interest 59
SECTION 2.14..........................................Alternate Rate of Interest 60
SECTION 2.15.....................................................Increased Costs 60
SECTION 2.16..............................................Break Funding Payments 62
SECTION 2.17...............................................................Taxes 62
SECTION 2.18..........Payments Generally; Pro Rata Treatment; Sharing of Setoffs 64
SECTION 2.19......................Mitigation Obligations; Replacement of Lenders 67
SECTION 2.20................................Extension of Revolving Maturity Date 68
i
3
ARTICLE III
Representations and Warranties
------------------------------
SECTION 3.01................................................Organization; Powers 68
SECTION 3.02.......................................Authorization; Enforceability 69
SECTION 3.03................................Governmental Approvals; No Conflicts 69
SECTION 3.04.....................Financial Condition; No Material Adverse Change 70
SECTION 3.05..........................................................Properties 70
SECTION 3.06................................Litigation and Environmental Matters 71
SECTION 3.07.................................Compliance with Laws and Agreements 72
SECTION 3.08...............................Investment and Holding Company Status 72
SECTION 3.09...............................................................Taxes 72
SECTION 3.10...............................................................ERISA 72
SECTION 3.11..........................................................Disclosure 72
SECTION 3.12........................................................Subsidiaries 73
SECTION 3.13...........................................................Insurance 73
SECTION 3.14.......................................................Labor Matters 73
SECTION 3.15............................................................Solvency 73
SECTION 3.16..................................................Security Documents 74
SECTION 3.17.........................................Federal Reserve Regulations 75
ARTICLE IV
Conditions
----------
SECTION 4.01......................................................Effective Date 75
SECTION 4.02...................................................Each Credit Event 80
ARTICLE V
Affirmative Covenants
---------------------
SECTION 5.01..........................Financial Statements and Other Information 81
SECTION 5.02..........................................Notices of Material Events 83
SECTION 5.03....................................Information Regarding Collateral 83
SECTION 5.04......................................Existence; Conduct of Business 84
SECTION 5.05..............................................Payment of Obligations 84
SECTION 5.06...........................................Maintenance of Properties 85
SECTION 5.07...........................................................Insurance 85
SECTION 5.08...........................................Casualty and Condemnation 86
SECTION 5.09......................Books and Records; Inspection and Audit Rights 86
SECTION 5.10................................................Compliance with Laws 87
ii
4
SECTION 5.11...............................Use of Proceeds and Letters of Credit 87
SECTION 5.12.............................................Additional Subsidiaries 87
SECTION 5.13..................................................Further Assurances 88
SECTION 5.14...............................................Interest Rate Hedging 89
ARTICLE VI
Negative Covenants
------------------
SECTION 6.01........................................................Indebtedness 89
SECTION 6.02...........................................Certain Equity Securities 91
SECTION 6.03...............................................................Liens 91
SECTION 6.04.................................................Fundamental Changes 93
SECTION 6.05...........Investments, Loans, Advances, Guarantees and Acquisitions 94
SECTION 6.06.........................................................Asset Sales 97
SECTION 6.07....................................Sale and Lease-Back Transactions 98
SECTION 6.08..................................................Hedging Agreements 98
SECTION 6.09......Restricted Payments; Certain Payments Payments of Indebtedness 99
SECTION 6.10........................................Transactions with Affiliates 100
SECTION 6.11..............................................Restrictive Agreements 100
SECTION 6.12.....................................Amendment of Material Documents 101
SECTION 6.13................................................Capital Expenditures 102
SECTION 6.14......................................................Leverage Ratio 103
SECTION 6.15.............................................Interest Coverage Ratio 103
SECTION 6.16..............................................Designated Senior Debt 103
ARTICLE VII
Events of Default............................104
-----------------
ARTICLE VIII
The Administrative Agent.........................107
------------------------
ARTICLE IX
Miscellaneous
-------------
iii
5
SECTION 9.01.............................................................Notices 110
SECTION 9.02.................................................Waivers; Amendments 111
SECTION 9.03..................................Expenses; Indemnity; Damage Waiver 112
SECTION 9.04..............................................Successors and Assigns 115
SECTION 9.05............................................................Survival 118
SECTION 9.06............................Counterparts; Integration; Effectiveness 119
SECTION 9.07........................................................Severability 119
SECTION 9.08.....................................................Right of Setoff 119
SECTION 9.09..........Governing Law; Jurisdiction; Consent to Service of Process 119
SECTION 9.10................................................WAIVER OF JURY TRIAL 120
SECTION 9.11............................................................Headings 121
SECTION 9.12.....................................................Confidentiality 121
SECTION 9.13............................................Conversion of Currencies 122
SECTION 9.14............................................Interest Rate Limitation 123
SECTION 9.15..........................................Release of Mexico Borrower 123
SECTION 9.16..............Effectiveness of the Amendment and Restatement;
Original Credit Agreement............................. 123
SCHEDULES:
Schedule 1.01(a) -- Mortgaged Properties
Schedule 1.01(b) -- Existing Letters of Credit
Schedule 1.01(c) -- Special Charges
Schedule 2.01 -- Commitments
Schedule 3.05 -- Owned or Leased Property
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 3.16(a) -- Actions to Pledge Stock of Foreign Subsidiaries
Schedule 3.16(d) -- Mortgage Filing Offices
Schedule 5.07 -- Insurance Levels
Schedule 6.01 -- Existing Indebtedness
Schedule 6.03 -- Existing Liens
Schedule 6.05 -- Existing Investments
Schedule 6.10 -- Affiliate Transactions
Schedule 6.11 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Forms of Opinion of Borrower's Counsel
iv
6
Exhibit B-2 -- Form of Opinion of Foreign Counsel
Exhibit B-3 -- Form of Opinion of Borrower's Utah Counsel
Exhibit B-4 -- Form of Opinion of Local Counsel
Exhibit C -- Form of Guarantee Agreement
Exhibit D -- Form of Indemnity, Subrogation and Contribution Agreement
Exhibit E -- Form of Pledge Agreement
Exhibit F -- Form of Security Agreement
v
7
CREDIT AGREEMENT dated as of September 30, 1997, as
amended and restated as of May 31, 2000 among HUNTSMAN
PACKAGING CORPORATION, a Utah corporation, ASPEN
INDUSTRIAL, S.A. DE C.V., a Mexico corporation, the LENDERS
party hereto, Bankers Trust Company, as Administrative
Agent and Collateral Agent, THE CHASE MANHATTAN BANK, as
Syndication Agent and The Bank of Nova Scotia, as
Documentation Agent.
The Borrower (such term and each other capitalized term used but
not defined in this preamble having the meaning assigned to such term in Article
I), has entered into a Recapitalization Agreement dated as of March 31, 2000
(the "Recapitalization Agreement") with Chase Domestic Investments, L.L.C.
("Investment L.L.C."), an affiliate of Chase Capital Partners (the "Sponsor"),
and the other parties thereto, pursuant to which (a) Investment L.L.C., together
with certain co-investors, will contribute, directly or indirectly, an aggregate
amount of not less than $165,600,000 in cash (the "Equity Contribution") to the
Borrower in exchange for the issuance to Investment L.L.C. of (i) the number of
shares of common stock of the Borrower specified in the Recapitalization
Agreement and (ii) the Investor Preferred Stock, (b) Investment L.L.C. will
acquire directly from The Christena Karen H. Durham Trust (the "Trust") and the
members of management that are effecting the Management Equity Rollover (as
defined below) the number of shares of common stock of the Borrower specified in
the Recapitalization Agreement in exchange for $99,700,000 (the "Investor Share
Purchase"), (c) the Borrower will redeem all of the shares of Borrower's common
stock not purchased pursuant to the Investor Share Purchase in exchange for a
redemption payment of approximately $314,000,000, subject to adjustment, other
than the common stock of the Borrower subject to the Trust Equity Rollover (as
defined below) and the Management Equity Rollover (the "Equity Redemption"), (d)
the Trust will continue its ownership of the number of shares of common stock of
the Borrower specified in the Recapitalization Agreement (the "Trust Equity
Rollover") and (e) certain members of management will continue ownership of the
number of shares of common stock of the
8
Borrower specified in the Recapitalization Agreement (the "Management Equity
Rollover").
In connection therewith, the Borrower desires to amend and restate
the terms and provisions of the Credit Agreement dated as of September 30, 1997,
as amended and restated as of May 14, 1998 (the "Original Credit Agreement"),
among the Borrower, the existing lenders thereunder and The Chase Manhattan
Bank, as the administrative agent thereunder, in the form hereof in order, among
other things, to permit the Recapitalization Transactions and the other
Transactions and to provide for the Loans.
The Lenders are willing to amend and restate the Original Credit
Agreement and are willing to extend credit to the Borrower and the Mexico
Borrower, in each case upon the terms and subject to the conditions set forth
herein. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means Bankers Trust Company, in its
capacity as administrative agent for the Lenders hereunder.
9
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified. For
purposes of Section 2.18(c), The Chase Manhattan Corporation shall not be deemed
an Affiliate of the Borrower.
"Alternate Base Rate" means, for any day, a rate per annum equal
to the greater of (a) the Prime Rate in effect on such day, and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Revolving
Lender, the percentage of the total Revolving Commitments represented by such
Lender's Revolving Commitment. If the Revolving Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
10
"Applicable Rate" means, for any day (a) with respect to a Tranche
B Term Loan, the applicable Tranche B Rate and (b) with respect to any ABR Loan
or Eurodollar Loan that is a Revolving Loan, a Mexico Term Loan or a Tranche A
Term Loan, or with respect to the commitment fees payable hereunder related to
the Revolving Commitments, as the case may be, the applicable rate per annum set
forth below under the caption "ABR Spread", "Eurodollar Spread" or "Commitment
Fee Rate", as the case may be, based upon the Leverage Ratio as of the most
recent determination date; provided that until the delivery to the
Administrative Agent, pursuant to Section 5.01(b), of the Borrower's
consolidated financial statements for the Borrower's fiscal year ending December
31, 2000, the "Applicable Rate" shall be the applicable rate per annum set forth
below in Category 1:
- ---------------------------------------------------------------------------------------------------------------------------------
Leverage Ratio ABR Spread Eurodollar Spread Commitment Fee Rate
- ---------------------------------------------------------------------------------------------------------------------------------
Category 1
----------
Greater than 4.25 to 1.00 1.50% 2.50% 0.500%
- ---------------------------------------------------------------------------------------------------------------------------------
Category 2
----------
Less than or equal to 4.25 to
1.00 but greater than 3.25 to 1.00 1.25% 2.25% 0.500%
- ---------------------------------------------------------------------------------------------------------------------------------
Category 3
----------
Less than or equal to 3.25 to
1.00 but greater than 2.25 to 1.00 1.00% 2.00% 0.500%
- ---------------------------------------------------------------------------------------------------------------------------------
Category 4
----------
Less than or equal to 2.25 to 1.00 0.75% 1.75% 0.375%
- ---------------------------------------------------------------------------------------------------------------------------------
For purposes of the foregoing, (a) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon the Borrower's consolidated financial statements delivered pursuant
to Section 5.01(a) or (b) and (b) each change in the Applicable Rate resulting
from a change in the Leverage Ratio shall be effective during the period
commencing on and including the third day after the date of delivery to the
Administrative Agent of such consolidated financial statements indicating such
change and ending on the date immediately preceding the effective date of the
next such change; provided that the Leverage Ratio shall be deemed to be in
Category 1 (i) at any time that an Event of Default has occurred and is
continuing or (ii) if the Borrower fails to deliver the consolidated financial
statements required to be delivered by it pursuant to Section 5.01(a)
11
or (b), during the period from the expiration of the time for delivery thereof
until such consolidated financial statements are delivered.
"Arranger" means Chase Securities Inc. as arranger for the Loans.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent
and the Borrower.
"Bank Hedge Agreement" means any Hedge Agreement required under
Section 5.14 or otherwise permitted by this Agreement that is entered into by
and between a Loan Party and any Hedge Bank.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" means Huntsman Packaging Corporation, a Utah
corporation.
"Borrower Amount" means, at any date, the sum of:
(a) the aggregate amount of Excess Cash Flow for all fiscal years
of the Borrower completed prior to such date for which financial
statements have been delivered pursuant to Section 5.01 (commencing with
the fiscal year ending December 31, 2000), less the sum of (i) all
prepayments of Term Borrowings required to be made pursuant to Section
2.11(c) and (ii) all reductions of Revolving Commitments required to be
made pursuant to Section 2.08(c) in respect of such Excess Cash Flow;
plus
(b) the aggregate Net Proceeds received by the Borrower after the
Effective Date and prior to such date in respect of Prepayment Events
described in clause (c) of the definition of "Prepayment Event", less the
sum of (i) all prepayments of Term Borrowings required to be made
pursuant to Section 2.11(b) in respect of such Net Proceeds, (ii) all
reductions of
12
Revolving Commitments required to be made pursuant to Section 2.08(c) in
respect of such Net Proceeds and (iii) any portion of such Net Proceeds
reserved for a Permitted Acquisition or for Capital Expenditures as
provided in clause (ii) of Section 2.11(e); minus
(c) the sum of all utilizations of the Borrower Amount pursuant to
any provisions of this Agreement permitting utilization of the Borrower
Amount.
Any provisions of this Agreement that permit an action to be taken by utilizing
the Borrower Amount shall be construed to permit such action only to the extent
that the Borrower Amount is a positive amount at that time.
"Borrowing" means (a) Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, or (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower or the Mexico
Borrower for a Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks generally are not open for dealings in dollar deposits in the London
interbank market. For purposes of this Agreement "Pioneer Day" as recognized in
the State of Utah shall not be a Business Day.
"Capital Expenditures" means, for any period, without duplication,
(a) the additions to property, plant and equipment and other capital
expenditures of the Borrower and its Restricted Subsidiaries that are (or would
be) set forth in a consolidated statement of cash flows of the Borrower and its
Restricted Subsidiaries for such period prepared in accordance with GAAP and (b)
Capital Lease Obligations incurred by the Borrower and its Restricted
Subsidiaries during such period.
13
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash Interest Expense" means, for any period, Consolidated
Interest Expense for such period excluding any portion thereof in respect of
interest not required to be paid in cash during such period or within one year
thereafter.
"CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq.
"Change in Control" means, at any time, (a) prior to an IPO, the
failure by the Control Group to collectively own and control at least a
sufficient amount of the outstanding voting capital stock of the Borrower, or
otherwise have the right, to elect, or cause the election of, at least a
majority of the Board of Directors of the Borrower; (b) after an IPO, the
acquisition of beneficial ownership, directly or indirectly, by any Person or
group (within the meaning of the Securities Exchange Act of 1934 and the rules
of the Securities and Exchange Commission thereunder as in effect on the
Effective Date) other than the Control Group, of shares representing more than
35% (or 40%, if such Person or group is the Trust) of the aggregate ordinary
voting power represented by the issued and outstanding capital stock of the
Borrower; (c) occupation of a majority of the seats (other than vacant seats) on
the board of directors of the Borrower by Persons who were neither (i) nominated
by members of the Control Group or the board of directors of the Borrower nor
(ii) appointed by directors so nominated; (d) prior to the date that all Mexico
Term Loans have been fully repaid, the Mexico Borrower ceases to be a Wholly
Owned Subsidiary; or (e) there shall occur a "Change of Control" as defined
under the New Senior Subordinated Documents or the Investor Preferred Stock. If,
at any time, any of the members of the Board of Directors of the Borrower shall
have more than
14
one vote per Person, then any determination of a majority of the Board of
Directors shall be based on a majority of the voting power of the members
thereof rather than a majority of the members or seats.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the Effective Date, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the Effective Date or (c) compliance by any Lender or the
Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such
Lender or by such Lender's or the Issuing Bank's holding company, if any) with
any request, guideline or directive (whether or not having the force of law) of
any Governmental Authority made or issued after the Effective Date.
"Class", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are Revolving
Loans, Mexico Term Loans, Tranche A Term Loans, Tranche B Term Loans or
Swingline Loans and, when used in reference to any Commitment, refers to whether
such Commitment is a Revolving Commitment, Mexico Term Commitment, Tranche A
Term Commitment or Tranche B Term Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" means any and all "Collateral", as defined in any
applicable Security Document.
"Collateral Agent" means Bankers Trust Company, in its capacity as
collateral agent for the Secured Parties under the Security Documents.
"Commitment" means a Revolving Commitment, Mexico Term Commitment,
Tranche A Term Commitment, Tranche B Term Commitment, or any combination thereof
(as the context requires).
"Consolidated EBITDA" means, for any period, Consolidated Net
Income for such period, plus, without duplication and to the extent deducted
from revenues in determining Consolidated Net Income, the sum of (a) the
15
aggregate amount of Consolidated Interest Expense for such period, (b) the
aggregate amount of letter of credit fees paid during such period, (c) the
aggregate amount of income tax expense for such period, (d) all amounts
attributable to depreciation, amortization and other non-cash charges or losses
for such period, (e) all extraordinary charges and losses during such period and
any Excluded Charges and Consulting Charges during such period, (f) non-cash
expenses resulting from the grant of stock options or other equity-related
incentives to any director, officer or employee of the Borrower or any
Restricted Subsidiary pursuant to a written plan or agreement, (g) all amounts
attributable to compensation expense related to long term incentive plan
payments, other bonuses (including stay bonuses) and severance payments incurred
in connection with the Transactions and (h) all non-recurring transaction and
financing expenses resulting from the Transactions and Permitted Acquisitions,
and minus, without duplication and to the extent added to revenues in
determining Consolidated Net Income for such period, all extraordinary gains
during such period, all as determined on a consolidated basis with respect to
the Borrower and the Restricted Subsidiaries in accordance with GAAP. If the
Borrower or any Restricted Subsidiary has made any Permitted Acquisition or any
sale, transfer, lease or other disposition of assets outside of the ordinary
course of business permitted by Section 6.06 during the relevant period for
determining Consolidated EBITDA, Consolidated EBITDA for the relevant period
shall be calculated after giving pro forma effect thereto, as if such Permitted
Acquisition or sale, transfer, lease or other disposition of assets (and any
related incurrence, repayment or assumption of Indebtedness, with any new
Indebtedness being deemed to be amortized over the relevant period in accordance
with its terms, and assuming that any Revolving Loans borrowed in connection
with such acquisition are repaid with excess cash balances when available) had
occurred on the first day of the relevant period for determining Consolidated
EBITDA. Any such pro forma calculations may include operating and other expense
reductions and other synergistic benefits for such period resulting from any
Permitted Acquisition that is being given pro forma effect to the extent that
such operating and other expense reductions and other synergistic benefits would
be permitted pursuant to Article XI of Regulation S-X under the Securities Act
of 1933.
16
"Consolidated Interest Expense" means, for any period, the
interest expense, both expensed and capitalized (including the interest
component in respect of Capital Lease Obligations), accrued by the Borrower and
the Restricted Subsidiaries during such period (net of payments made or received
under interest rate protection agreements and net of interest income),
determined on a consolidated basis in accordance with GAAP; provided that
"Consolidated Interest Expense" shall not include non-cash interest expense in
respect of the New Senior Subordinated Notes arising because (i) such Notes and
the Warrants were issued at a discount to their face value and (ii) a portion of
the issue price of such Notes and the Warrants is being allocated to the
Warrants.
"Consolidated Net Income" means, for any period, net income or
loss of the Borrower and its Restricted Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP, provided that there shall be
excluded (a) the income of any unconsolidated Subsidiary and any Person in which
any other Person (other than the Borrower or any of the Restricted Subsidiaries
or any director holding qualifying shares in compliance with applicable law or
any other third party holding a de minimus number of shares in order to comply
with other similar requirements) has a joint interest, except to the extent of
the amount of dividends or other distributions actually paid to the Borrower or
any of its Restricted Subsidiaries by such Person during such period, and (b)
the income (or loss) of any Person accrued prior to the date it becomes (or, for
pro forma purposes, is deemed to have become) a Restricted Subsidiary or is
merged into or consolidated with the Borrower or any of its Restricted
Subsidiaries or the date that Person's assets are acquired by the Borrower or
any of its Restricted Subsidiaries.
"Consulting Charges" means the non-recurring charges incurred or
to be incurred specified on Schedule 1.01(c), pursuant to the Agreement between
the Borrower and A.T. Kearney, Inc. dated as of February 22, 2000.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through
17
the ability to exercise voting power, by contract or otherwise. "Controlling"
and "Controlled" have meanings correlative thereto.
"Control Group" means collectively the Sponsor and all Persons
Controlled by the Sponsor.
"Debt Tender Offer" means the Tender Offer and Consent
Solicitation dated April 12, 2000, made by the Borrower (a) for the purchase of
all of the Existing Notes and (b) to obtain consents to amend the Existing Notes
Indenture, in accordance with the terms thereof.
"Default" means any event or condition that constitutes an Event
of Default or that upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Documentation Agent" means The Bank of Nova Scotia, in its
capacity as documentation agent for the Lenders hereunder.
"dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means the date on which the conditions specified
in Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws (including common law), rules,
regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices
or binding agreements issued, promulgated or entered into by or with any
Governmental Authority, relating in any way to the environment, preservation or
reclamation of natural resources, handling, treatment, storage, disposal,
Release or threatened Release of any Hazardous Material or to health and safety
matters.
"Environmental Liability" means any liability, obligation, claim,
action, suit, judgment or order, contingent or otherwise (including, but not
limited to, any liability for damages, natural resource damage, costs of
environmental remediation, administrative oversight costs, fines, penalties or
indemnities), of the Borrower or any Subsidiary directly or indirectly resulting
from or based
18
upon (a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Contribution" has the meaning set forth in the preamble to
this Agreement.
"Equity Redemption" has the meaning set forth in the preamble to
this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or
19
any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from
the Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excess Cash Flow" means, for any period, the sum (without
duplication) of:
(a) Consolidated Net Income for such period, adjusted to exclude
any gains or losses attributable to Prepayment Events or dispositions
that would constitute Prepayment Events but for clauses (a)(i) through
(a) (iii) and clause (b) of the definition of the term "Prepayment
Event"; plus
(b) depreciation, amortization and other non-cash charges or
losses deducted in determining such Consolidated Net Income for such
period; plus
(c) the sum of (i) the amount, if any, by which Net Working
Capital decreased during such period plus (ii) the amount, if any, by
which the consolidated deferred revenues of the Borrower and its
consolidated Restricted Subsidiaries (not recorded as a current
liability) increased during such period plus (iii) the aggregate
principal amount of Capital Lease Obligations and other Indebtedness
incurred during such period to finance Capital Expenditures and the
investments referred to in clause (e) below, to the extent that mandatory
principal payments in respect of such Indebtedness would not be excluded
from clause (f) below when made; minus
(d) the sum of (i) any non-cash gains included in determining such
Consolidated Net Income for such
20
period plus (ii) the amount, if any, by which Net Working Capital
increased during such period plus (iii) the amount, if any, by which the
consolidated deferred revenues of the Borrower and its consolidated
Restricted Subsidiaries (not recorded as a current liability) decreased
during such period; minus
(e) the sum of (i) Capital Expenditures for such period, (ii) cash
consideration paid in respect of Permitted Acquisitions during such
period, including cash generated by the issuance of Indebtedness, and
(iii) investments made in cash, including cash generated by the issuance
of Indebtedness, pursuant to clause (h) of Section 6.05 during such
period; provided that amounts shall not be deducted pursuant to this
clause (e) in determining Excess Cash Flow to the extent that such
Capital Expenditures, Permitted Acquisitions or investments are made (A)
by utilizing the Borrower Amount, (B) by utilizing Net Proceeds of an
event that otherwise would be a "Prepayment Event" as provided in the
proviso to the definition of "Prepayment Event" or (C) in reliance upon
sub-clause (ii) of Section 2.11(e); minus
(f) the aggregate principal amount of Indebtedness repaid or
prepaid by the Borrower and its consolidated Restricted Subsidiaries
during such period, excluding (i) Indebtedness in respect of Revolving
Loans and Letters of Credit, (ii) Term Loans prepaid pursuant to Section
2.11(a), (b) or (c), (iii) repayments or prepayments of Indebtedness
financed by incurring other Indebtedness, to the extent that mandatory
principal payments in respect of such other Indebtedness would, pursuant
to this clause (f), be deducted in determining Excess Cash Flow when
made, (iv) Indebtedness referred to in clauses (iii), (iv) and (ix) of
Section 6.01 and (v) Indebtedness referred to in clauses (v), (vi) and
(viii) of Section 6.01, to the extent but only to the extent that such
Indebtedness was incurred by utilizing the Borrower Amount.
"Excluded Charges" means (a) the non-recurring charges incurred or
to be incurred in respect of the restructurings, plant closings or similar
actions that have
21
occurred or are expected to be taken in connection with the Borrower's
facilities specified in Schedule 1.01(c), and (b) any other such non-recurring
charges incurred in respect of any restructurings, plant closings or similar
actions during the eighteen month period commencing on the Effective Date,
provided that the cash portion of charges referred to in this clause (b) shall
be limited to $8,000,000.
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower or Mexico Borrower hereunder,
(a) income or franchise taxes imposed on (or measured by) its net income by the
United States of America, or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located, (b) any
branch profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which the Borrower or Mexico Borrower is
located, and (c) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Borrower under Section 2.19(b)), any withholding
tax that is imposed on amounts payable hereunder, other than any withholding tax
imposed by a Mexican taxing authority payable with respect to the Mexico Term
Loans, to such Foreign Lender at the time such Foreign Lender becomes a party to
this Agreement (or designates a new lending office) or is attributable to such
Foreign Lender's failure to comply with Section 2.17(e), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower or Mexico Borrower with respect to such withholding
tax pursuant to Section 2.17(a) and (d) in the case of a Mexico Lender (other
than an assignee pursuant to a request by the Borrower or the Mexico Borrower
under Section 2.19(b)), any Taxes that are imposed on amounts payable hereunder
to such Mexico Lender at the time such Mexico Lender becomes a party to this
Agreement (or designates a new lending office, or before such Mexico Lender
receives its first interest payment under this Agreement) to the extent that
such Taxes are imposed because such Mexico Lender (i) does not qualify for the
22
benefits (including interest and limitation on benefits provisions) of an
effective income tax treaty for the avoidance of double tax between its country
of residence and Mexico, (ii) is not duly registered as a foreign financial
institution with the Mexico Ministry of Finance and Public Credit, (iii) will
not be duly registered as a foreign financial institution with the Mexican
Ministry of Finance and Public Credit prior to the first interest payment date,
which in no event shall be sooner than 90 days after the Effective Date or, in
the case of an assignee, prior to the date 90 days following the date of the
related assignment and (iv) in the case of a Mexico Lender that is organized
under the laws of a United States jurisdiction, or whose applicable lending
office is located in the United States, such Lender is not a bank or insurance
company within the meaning of Article 11(2)(a)(i) of the income tax treaty
between the United States and Mexico.
"Existing Letters of Credit" means the letters of credit issued
under the Original Credit Agreement and outstanding as of the Effective Date,
which are listed on Schedule 1.01(b).
"Existing Notes" means the Borrower's 9c% Senior Subordinated
Notes due 2007 issued under the Existing Notes Indenture.
"Existing Notes Indenture" means the Indenture dated as of
September 30, 1997, among the Borrower, the guarantors named therein and The
Bank of New York, as trustee.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
23
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer, assistant treasurer or controller of the
Borrower.
"Foreign Assets" means the assets of or shares or other ownership
interests in the Foreign Subsidiaries.
"Foreign Lender" means (a) with respect to the Borrower, any
Lender that is organized under the laws of a jurisdiction other than the United
States of America, each State thereof and the District of Columbia, and (b) with
respect to the Mexico Borrower, any Lender that is organized under the laws of a
jurisdiction other than Mexico.
"Foreign Subsidiary" means any Subsidiary that is organized under
the laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"GAAP" means, subject to Section 1.04, generally accepted
accounting principles in the United States of America.
"Governmental Authority" means the government of the United States
of America, Mexico, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the
24
owner of such Indebtedness or other obligation of the payment thereof, (c) to
maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantee Agreement" means the amended and restated Guarantee
Agreement, substantially in the form of Exhibit C, made by the Borrower and the
Subsidiary Loan Parties in favor of the Administrative Agent for the benefit of
the Secured Parties.
"Hazardous Materials" means all explosive, radioactive, hazardous
or toxic substances, wastes or other pollutants, including petroleum or
petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes, and all
other substances or wastes of any nature regulated pursuant to any Environmental
Law, including any material listed as a hazardous substance under Section
101(14) of CERCLA.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Hedge Bank" means any Lender (or any Affiliate thereof) in its
capacity as a party to a Bank Hedge Agreement.
"Immaterial Subsidiaries" mean, at any date, Restricted
Subsidiaries affected by one or more events described in clause (h), (i), (j) or
(k) of Article VII that (a) have (in the aggregate) consolidated assets
representing less than 5% of the consolidated assets of the Borrower and its
Restricted Subsidiaries as of such date, determined in accordance with GAAP, and
(b) had (in the aggregate) consolidated revenues and consolidated net income, in
each case for the period of four consecutive
25
fiscal quarters of the Borrower most recently ended as of such date for which
financial statements have been delivered pursuant to Section 5.01, representing
less than 5% of the revenues and consolidated net income, respectively, of the
Borrower and its Restricted Subsidiaries for such period, determined in
accordance with GAAP; provided that all Restricted Subsidiaries affected by
events described in such clauses of Article VII shall be consolidated for
purposes of determining compliance with clauses (a) and (b) above.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding accounts payable incurred in the ordinary course of business that are
not overdue by more than 90 days, unless the payment thereof is being contested
in good faith) (it being understood that "deferred purchase price" in connection
with any purchase of property or assets shall include only that portion of the
purchase price which shall be deferred beyond the date on which the purchase is
actually consummated), (e) all Indebtedness of others secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on property owned or acquired by such Person, whether
or not the Indebtedness secured thereby has been assumed, (f) all Guarantees by
such Person of Indebtedness of others, (g) all Capital Lease Obligations of such
Person, (h) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty and (i)
all obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
26
therefor. Notwithstanding the foregoing, "Indebtedness" shall not include (i)
deferred taxes or (ii) unsecured indebtedness of the Borrower or any Subsidiary
to finance insurance premiums in a principal amount not in excess of the
casualty and other insurance premiums to be paid by the Borrower or any
Restricted Subsidiary for a three-year period beginning on the date of any
incurrence of such indebtedness.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement" means the
amended and restated Indemnity, Subrogation and Contribution Agreement,
substantially in the form of Exhibit D, among the Borrower, the Subsidiary Loan
Parties and the Administrative Agent.
"Interest Election Request" means a request by the Borrower or the
Mexico Borrower to convert or continue a Revolving Borrowing or Term Borrowing
in accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan
(including any Swingline Loan), the last day of each March, June, September and
December and (b) with respect to any Eurodollar Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurodollar Borrowing with an Interest Period of more than three
months' duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months' duration after the first day of such
Interest Period.
"Interest Period" means, with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period
27
that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter shall
be the effective date of the most recent conversion or continuation of such
Borrowing.
"Investment L.L.C." has the meaning set forth in the preamble to
this Agreement.
"Investor Preferred Stock" means the Series A Cumulative
Exchangeable Redeemable Preferred Stock of the Borrower issued on the Effective
Date having the terms specified in the Borrower's Third Amended and Restated
Articles of Incorporation as in effect on the Effective Date.
"Investor Share Purchase" has the meaning set forth in the
preamble to this Agreement.
"IPO" means the issuance by the Borrower of shares of its common
stock to the public pursuant to a bona fide underwritten public offering.
"Issuing Bank" means Bankers Trust Company, in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.05(i) and such other financial institutions as may become
Issuing Banks as provided in Section 2.05(i). The Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by Affiliates
of the Issuing Bank, subject to the consent of the Borrower which shall not be
unreasonably withheld, in which case the term "Issuing Bank" shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate. In
the event that there is more than one Issuing Bank at any time, references
herein and in the other Loan Documents to the Issuing Bank shall be deemed to
refer to the Issuing Bank in respect of the applicable Letter of Credit or to
all Issuing Banks, as the context requires. Notwithstanding the foregoing, each
institution listed in
28
Schedule 1.01(b) shall be deemed to be an Issuing Bank with respect to the
Existing Letters of Credit issued by it.
"Joint Venture" means, as to a Person, any corporation,
partnership or other legal entity or arrangement in which such Person has any
direct or indirect equity interest and that is not a subsidiary of such Person.
"LC Availability Period" means the period from and including the
Effective Date to but excluding the earlier of (a) the date that is five
Business Days prior to the Revolving Maturity Date and (b) the date of
termination of the Revolving Commitments.
"LC Disbursement" means a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Revolving Lender
at any time shall be its Applicable Percentage of the total LC Exposure at such
time.
"Lender Affiliate" means, (a) with respect to any Lender, (i) an
Affiliate of such Lender or (ii) any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
of its business and is administered or managed by a Lender or an Affiliate of
such Lender and (b) with respect to any Lender that is a fund which invests in
bank loans and similar extensions of credit, any other fund that invests in bank
loans and similar extensions of credit and is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context
29
otherwise requires, the term "Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant to
this Agreement. Each Existing Letter of Credit shall be deemed to constitute a
Letter of Credit issued hereunder on the Effective Date for all purposes of the
Loan Documents.
"Leverage Ratio" means, on any date, the ratio of (a) Total Debt
as of such date to (b) Consolidated EBITDA for the period of four consecutive
fiscal quarters of the Borrower ended on such date, all determined on a
consolidated basis in accordance with GAAP.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for
any Interest Period, the rate appearing on Page 3750 of the Telerate Service (or
on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 10:00 a.m., New York City time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
30
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement, the Guarantee Agreement,
the Indemnity, Subrogation and Contribution Agreement, the Security Documents
and each Bank Hedging Agreement.
"Loan Parties" means the Borrower, the Mexico Borrower and the
Subsidiary Loan Parties; provided that the Mexico Borrower shall not be a "Loan
Party" for purposes of Articles V and VI.
"Loan Transactions" means the execution, delivery and performance
by each Loan Party of the Loan Documents to which it is to be a party, the
borrowing of Loans, the use of the proceeds thereof and the issuance of Letters
of Credit hereunder.
"Loans" means the loans made by the Lenders to the Borrower or the
Mexico Borrower pursuant to this Agreement.
"Management Equity Rollover" has the meaning set forth in the
preamble to this Agreement.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" means a material adverse effect on (a)
the business, assets, results of operations or condition, financial or
otherwise, of the Borrower and the Restricted Subsidiaries, taken as a whole,
(b) the ability of the Loan Parties to perform any material obligations under
any Loan Document or (c) the rights of or benefits available to the Lenders
under any Loan Document.
"Material Indebtedness" means Indebtedness (other than the Loans
and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and its Restricted Subsidiaries
in an aggregate principal amount exceeding $10,000,000. For purposes of
determining Material Indebtedness, the "principal amount" of the obligations of
the Borrower or
31
any Restricted Subsidiary in respect of any Hedging Agreement at any time shall
be the maximum aggregate amount (giving effect to any netting agreements) that
the Borrower or such Restricted Subsidiary would be required to pay if such
Hedging Agreement were terminated at such time.
"Mexico Borrower" means Aspen Industrial, S.A. de C.V., a Mexico
corporation.
"Mexico Lender" means a Lender with a Mexico Term Commitment or an
outstanding Mexico Term Loan.
"Mexico Term Commitment" means, with respect to each Mexico
Lender, the commitment, if any, of such Mexico Lender to make Mexico Term Loans
on the Effective Date, expressed as an amount representing the maximum aggregate
principal amount of Mexico Term Loans to be made by such Mexico Lender
hereunder, as such Commitment may be (a) reduced from time to time pursuant to
Section 2.08 or (b) reduced or increased from time to time pursuant to
assignments by or to such Mexico Lender pursuant to Section 9.04. The initial
amount of each Mexico Lender's Mexico Term Commitment is set forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Mexico Lender
shall have assumed its Mexico Term Commitment, as applicable. The initial
aggregate amount of the Mexico Lenders' Mexico Term Commitments as of the
Effective Date is $40,000,000.
"Mexico Term Loan" has the meaning set forth in Section 2.01.
"Mexico Term Loan Maturity Date" means May 31, 2006.
"Moody's" means Moody's Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust, assignment of leases
and rents, leasehold mortgage or other security document, including any
amendment thereto, granting a Lien on any Mortgaged Property to secure the
Obligations. Each Mortgage shall be reasonably satisfactory in form and
substance to the Collateral Agent.
32
"Mortgaged Property" means, initially, each parcel of real
property and the improvements thereto owned by a Loan Party and identified on
Schedule 1.01(a), and includes each other parcel of real property and
improvements thereto with respect to which a Mortgage is granted pursuant to
Section 5.12 or 5.13.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event (a) the cash
proceeds received by the Borrower and the Restricted Subsidiaries in respect of
such event including (i) any cash received in respect of any non-cash proceeds
(excluding interest payments), but only as and when received, (ii) in the case
of a casualty, insurance proceeds, and (iii) in the case of a condemnation or
similar event, condemnation awards and similar payments, net of (b) the sum of
(i) all reasonable fees and out-of-pocket expenses paid by the Borrower and the
Restricted Subsidiaries to third parties (other than to the Borrower or a
Subsidiary) in connection with such event, (ii) in the case of a sale, transfer
or other disposition of an asset (including pursuant to a sale and leaseback
transaction or a casualty or other insured damage or condemnation or similar
proceeding), the amount of all payments required to be made by the Borrower and
the Restricted Subsidiaries as a result of such event to repay Indebtedness
(other than Loans) secured by such asset or otherwise subject to mandatory
prepayment as a result of such event (including in order to obtain any consent
required therefor), (iii) the amount of all taxes paid (or reasonably estimated
to be payable) by the Borrower and the Restricted Subsidiaries, and the amount
of any reserves established by the Borrower and the Restricted Subsidiaries to
fund contingent liabilities reasonably estimated to be payable, and that are
directly attributable to such event (as determined reasonably and in good faith
by the chief financial officer of the Borrower) and (iv) all distributions and
other payments required to be made to minority interest holders in Subsidiaries
or Joint Ventures as a result of such event (provided that such distribution or
payment is proportionate to such minority interest holders' share of net income
(or dividends and distribution made in respect of the capital stock or other
equity interests) of such
33
Subsidiary or Joint Venture as provided in the certificate of incorporation or
other governing documents of such Subsidiary or Joint Venture). In the case of
Net Proceeds denominated in a currency other than dollars, the amount of such
Net Proceeds shall be the dollar equivalent thereof based upon the exchange
rates prevailing at the time.
"Net Working Capital" means, at any date, (a) the consolidated
current assets of the Borrower and its consolidated Restricted Subsidiaries as
of such date (excluding cash and Permitted Investments) minus (b) the
consolidated current liabilities of the Borrower and its consolidated Restricted
Subsidiaries as of such date (excluding current liabilities in respect of
Indebtedness). Net Working Capital at any date may be a positive or negative
number. Net Working Capital increases when it becomes more positive or less
negative and decreases when it becomes less positive or more negative.
"New Senior Subordinated Note Documents" means the New Senior
Subordinated Notes, the indenture under which the New Senior Subordinated Notes
are issued, all other documents evidencing, guaranteeing or otherwise governing
the terms of the New Senior Subordinated Notes, the Warrants and the warrant
agreement under which the Warrants were issued.
"New Senior Subordinated Notes" means (i) the 13% Senior
Subordinated Notes due 2010 in an aggregate principal amount of $220,000,000
issued by the Borrower pursuant to the New Senior Subordinated Note Documents
(the "Initial Notes") and (ii) 13% senior subordinated notes with substantially
identical terms to the Initial Notes which are issued in exchange for the
Initial Notes following the issuance of the Initial Notes as contemplated by the
New Senior Subordinated Note Documents.
"Obligations" has the meaning assigned to such term in the
Security Agreement.
"Original Credit Agreement" has the meaning set forth in the
preamble to this Agreement.
"Other Taxes" means any and all current or future stamp or
documentary taxes or any other excise or property
34
taxes, charges or similar levies arising from any payment made under any Loan
Document or from the execution, delivery or enforcement of, or otherwise with
respect to, any Loan Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form of Annex
1 to the Security Agreement or any other form approved by the Collateral Agent.
"Permitted Acquisition" means any acquisition by the Borrower or a
Restricted Subsidiary of the Borrower of all or substantially all the assets of,
or all the shares of capital stock of or other equity interests in, a Person or
a division, line of business or other business unit of a Person if, immediately
after giving effect thereto, (a) no Default has occurred and is continuing or
would result therefrom, (b) all transactions related thereto are consummated in
all material respects in accordance with applicable laws, (c) each Subsidiary
formed for the purpose of or resulting from such acquisition shall be a
Restricted Subsidiary and all the capital stock of each such Subsidiary shall be
owned directly by the Borrower or a Restricted Subsidiary of the Borrower and
all actions required to be taken with respect to such acquired or newly formed
Subsidiary under Sections 5.12 and 5.13 have been taken, (d) the Borrower and
its Restricted Subsidiaries are in compliance, on a pro forma basis after giving
effect to such acquisition, with the covenants contained in Sections 6.13, 6.14
and 6.15 recomputed as at the last day of the most recently ended fiscal quarter
of the Borrower for which financial statements are available, as if such
acquisition (and any related incurrence or repayment of Indebtedness, with any
new Indebtedness being deemed to be amortized over the applicable testing period
in accordance with its terms, and assuming that any Revolving Loans borrowed in
connection with such acquisition are repaid with excess cash balances when
available) had occurred on the first day of each relevant period for testing
such compliance and (e) the Borrower has delivered to the Administrative Agent
an officers' certificate to the effect set forth in clauses (a), (b), (c) and
(d) above, together
35
with all relevant financial information for the Person or assets to be acquired.
"Permitted Encumbrances" means:
(a) Liens imposed by law for Taxes that are not yet due or are
being contested in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's,
processors', landlords', repairmen's and other like Liens imposed by law,
arising in the ordinary course of business and securing obligations that
are not overdue by more than 60 days or are being contested in compliance
with Section 5.05;
(c) pledges and deposits made in the ordinary course of business
in compliance with workers' compensation, unemployment insurance and
other social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary
course of business;
(e) judgment liens in respect of judgments that do not constitute
an Event of Default under clause (k) of Article VII;
(f) Liens of a collection bank arising in the ordinary course of
business under Section 4-208 of the Uniform Commercial Code in effect in
the relevant jurisdiction;
(g) Liens disclosed on title policies delivered to the
Administrative Agent prior to the Effective Date in respect of any
Mortgaged Property and easements, zoning restrictions, rights-of-way and
similar restrictions and encumbrances (including minor title and survey
defects) on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected
36
property or interfere with the ordinary conduct of business of the
Borrower or any Subsidiary; and
(h) Liens in respect of real property that become Mortgaged
Property after the Effective Date pursuant to Section 5.13 to the extent
such Lien is permitted by the applicable Mortgage and reasonably
acceptable to the Administrative Agent;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means (i) a marketable obligation,
maturing within two years after issuance thereof, issued or guaranteed by the
United States of America or an instrumentality or agency thereof, (ii) a
certificate of deposit or banker's acceptance, maturing within one year after
issuance thereof, issued by any Lender, or a national or state bank or trust
company or a European, Canadian or Japanese bank in each case having capital,
surplus and undivided profits of at least $100,000,000 and whose long-term
unsecured debt has a rating of "A" or better by S&P or A2 or better by Moody's
or the equivalent rating by any other nationally recognized rating agency
(provided that the aggregate face amount of all investments in certificates of
deposit or banker's acceptances issued by the principal offices of or branches
of such European or Japanese banks located outside the United States shall not
at any time exceed 33-1/3% of all investments described in this definition),
(iii) open market commercial paper, maturing within 270 days after issuance
thereof, which has a rating of A1 or better by S&P or P1 or better by Moody's,
or the equivalent rating by any other nationally recognized rating agency, (iv)
repurchase agreements and reverse repurchase agreements with a term not in
excess of one year with any financial institution which has been elected a
primary government securities dealer by the Federal Reserve Board or whose
securities are rated AA-or better by S&P or Aa3 or better by Moody's or the
equivalent rating by any other nationally recognized rating agency relating to
marketable direct obligations issued or unconditionally guaranteed by the United
States of America or any agency or instrumentality thereof and backed by the
full faith and credit of the United States of America, (v) "money market"
preferred stock maturing within
37
six months after issuance thereof or municipal bonds issued by a corporation
organized under the laws of any state of the United States, which has a rating
of "A" or better by S&P or Moody's or the equivalent rating by any other
nationally recognized rating agency, (vi) tax exempt floating rate option tender
bonds backed by letters of credit issued by a national or state bank whose
long-term unsecured debt has a rating of AA or better by S&P or Aa2 or better by
Moody's or the equivalent rating by any other nationally recognized rating
agency, (vii) "money market" funds that invest in the investments specified in
clauses (i) through (vi) above and (viii) demand deposit accounts with
commercial banks.
"Permitted Mexico Indebtedness" means Indebtedness of the Mexico
Borrower for borrowed money that (a) is denominated in Mexico pesos, (b) is
supported by a Letter of Credit and (c) is in an aggregate principal amount not
exceeding $40,000,000 (based on exchange rates prevailing at the time such
Indebtedness is incurred).
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA, Section 412
of the Code or Section 302 of ERISA, and in respect of which the Borrower or any
ERISA Affiliate is (or, if such plan were terminated, would under Section 4069
of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pledge Agreement" means the amended and restated Pledge
Agreement, substantially in the form of Exhibit E, among the Borrower, the
Subsidiaries party thereto and the Collateral Agent for the benefit of the
Secured Parties.
"Prepayment Event" means:
(a) any sale, transfer or other disposition (including pursuant to
a sale and leaseback transaction) of any property or asset of the
Borrower or any Restricted Subsidiary, other than (i)
38
dispositions described in clauses (a), (b), (c), (d), (e) and (h) of
Section 6.06, (ii) dispositions to which clause (b) of this definition
applies, and (iii) other dispositions resulting in aggregate Net Proceeds
not exceeding $10,000,000 during any fiscal year of the Borrower; or
(b) any casualty or other insured damage to, or any taking under
power of eminent domain or by condemnation or similar proceeding of, any
property or asset of the Borrower or any Restricted Subsidiary, other
than such events resulting in aggregate Net Proceeds not exceeding
$10,000,000 during any fiscal year of the Borrower; or
(c) the issuance by the Borrower or any Restricted Subsidiary of
any equity securities, or the receipt by the Borrower or any Restricted
Subsidiary of any capital contribution, other than (i) any such issuance
of equity securities to, or receipt of any such capital contribution
from, the Borrower or a Restricted Subsidiary and (ii) the issuance by
the Borrower of equity securities to officers, directors and employees of
the Borrower and its Restricted Subsidiaries, in the case of this clause
(ii), resulting in aggregate Net Proceeds not exceeding $10,000,000
during any fiscal year of the Borrower; or
(d) the incurrence (i) by the Borrower or any Restricted
Subsidiary of any Indebtedness, other than Indebtedness permitted by
Section 6.01, or (ii) of any Permitted Mexico Indebtedness;
provided that, with respect to any event described in clause (a) or (b) above,
if the Borrower shall deliver a certificate of a Financial Officer to the
Administrative Agent at the time of such event (i) setting forth the Borrower's
or a Restricted Subsidiary's intent to use the Net Proceeds of such event to
repair the assets that are the subject of such event, or to use the Net Proceeds
to make acquisitions of assets or capital stock permitted by this Agreement to
be used in a line of business permitted under Section 6.04(b), in each case
within 365 days (or, in the case of a disposition of Foreign Assets, 545 days)
of receipt of such Net Proceeds and (ii) certifying that no
39
Default has occurred and is continuing, then such event shall not constitute a
Prepayment Event except to the extent the Net Proceeds therefrom are not so used
at the end of such 365-day or 545-day period, as applicable, at which time such
event shall be deemed a Prepayment Event with Net Proceeds equal to the Net
Proceeds so remaining unused; provided further that the provisions of the
foregoing exception allowing Net Proceeds to be used to finance Permitted
Acquisitions in Canada shall be subject to the requirement that all Subsidiaries
resulting from any such Permitted Acquisitions must be treated as Subsidiary
Loan Parties for purposes of this Agreement.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Bankers Trust Company as its prime rate in effect
at its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Qualified Preferred Stock" means, with respect to any Person, any
preferred capital stock or preferred equity interest that by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable or exercisable) or upon the happening of any event does not (a) (i)
mature or becomes mandatorily redeemable pursuant to a sinking fund obligation
or otherwise; (ii) become convertible or exchangeable at the option of the
holder thereof for Indebtedness or preferred stock that is not Qualified
Preferred Stock; or (iii) become redeemable at the option of the holder thereof
(other than as a result of a change of control event), in whole or in part, in
each case on or prior to the first anniversary of the Tranche B Term Loan
Maturity Date and (b) provide holders thereunder with rights upon the occurrence
of a "change of control" event or have other terms relating to "change of
control" events that are less favorable to the Lenders than the applicable terms
set forth in the Investor Preferred Stock. Notwithstanding anything to the
contrary, the Investor Preferred Stock shall be deemed to be Qualified Preferred
Stock.
"Recapitalization Agreement" has the meaning set forth in the
preamble to this Agreement.
40
"Recapitalization Documents" means the Recapitaliza-tion Agreement
and the other agreements and documents entered into pursuant thereto or in
connection therewith.
"Recapitalization Transactions" means the transactions
contemplated by the Recapitalization Agreement, including the Equity
Contribution, the Investor Share Purchase, the Equity Redemption, the Trust
Equity Rollover and the Management Equity Rollover.
"Register" has the meaning set forth in Section 9.04.
"Regulation U" shall mean Regulation U of the Board as from time
to time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time
to time in effect and all official rulings and interpretations thereunder or
thereof.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Release" means any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into or through the environment.
"Remaining Notes" means any Existing Notes that are not purchased
and canceled pursuant to the Debt Tender Offer.
"Required Lenders" means, at any time, Lenders having Revolving
Exposures, Term Loans and unused Commitments representing more than 50% of the
sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"Restatement Information Memorandum" means the Confidential
Information Memorandum dated April 2000 relating to the Borrower and the
Transactions.
41
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any shares of
any class of capital stock of the Borrower or any Restricted Subsidiary, or any
payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancelation or termination of any such shares of capital stock of
the Borrower or any Restricted Subsidiary or any option, warrant or other right
to acquire any such shares of capital stock of the Borrower or any Restricted
Subsidiary.
"Restricted Subsidiary" means any Subsidiary (including the Mexico
Borrower) that is not an Unrestricted Subsidiary.
"Revolving Availability Period" means the period from and
including the Effective Date to but excluding the earlier of the Revolving
Maturity Date and the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum aggregate amount of such Lender's Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Revolving Commitment is set forth on Schedule 2.01 (as of the
Effective Date), or in the Assignment and Acceptance pursuant to which such
Lender shall have assumed its Revolving Commitment, as applicable. The initial
aggregate amount of the Lenders' Revolving Commitments is $100,000,000.
"Revolving Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans and its LC Exposure and Swingline Exposure at such time.
42
"Revolving Lender" means a Lender with a Revolving Commitment or,
if the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"Revolving Loan" has the meaning set forth in Section 2.01.
"Revolving Maturity Date" means May 31, 2006.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw-Hill Companies, Inc.
"SEC" means the Securities and Exchange Commission.
"Secured Parties" shall have the meaning assigned to such term in
the Security Agreement.
"Security Agreement" means the amended and restated Security
Agreement, substantially in the form of Exhibit F, among the Borrower, the
Subsidiary Loan Parties and the Collateral Agent for the benefit of the Secured
Parties.
"Security Documents" means the Security Agreement, the Pledge
Agreement, the Mortgages and each other security agreement or other instrument
or document executed and delivered pursuant to Section 5.12 or 5.13 to secure
any of the Obligations.
"Senior Subordinated Notes" means the New Senior Subordinated
Notes and any Remaining Notes.
"Sponsor" has the meaning set forth in the preamble to this
Agreement.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject with respect to the Adjusted LIBO Rate, for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in
43
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"Stockholders Agreement" means the Stockholders Agreement dated as
of May 31, 2000, among Huntsman Packaging Corporation, a Utah corporation, and
the stockholders party thereto, which agreement was entered into as part of the
Transactions.
"subsidiary" means, with respect to any Person (the "parent") at
any date, any corporation, limited liability company, partnership, association
or other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or, in the case
of a partnership, more than 50% of the general partnership interests are, as of
such date, owned, controlled or held.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Loan Party" means any Restricted Subsidiary; provided
that a Foreign Subsidiary shall not be a Subsidiary Loan Party if the Borrower
would suffer adverse tax consequences if such Foreign Subsidiary were to be a
Subsidiary Loan Party.
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any
44
Revolving Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"Swingline Lender" means Bankers Trust Company, in its capacity as
lender of Swingline Loans hereunder.
"Swingline Loan" has the meaning set forth in Section 2.04.
"Syndication Agent" means The Chase Manhattan Bank, in its
capacity as syndication agent for the Lenders.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Commitment" means a Mexico Term Commitment, a Tranche A Term
Commitment or a Tranche B Term Commitment, or any combination thereof (as the
context requires).
"Term Loan Lender" means a Lender with a Term Commitment or an
outstanding Term Loan.
"Term Loans" means Mexico Term Loans, Tranche A Term Loans or
Tranche B Term Loans, or any combination thereof (as the context requires).
"Total Debt" means, as of any date of determination, without
duplication, the aggregate principal amount (or in the case of Indebtedness
(including the New Senior Subordinated Notes) issued at a discount to its par
value and/or issued together with a warrant or other equity security to which a
portion of the issue price is allocated, the accreted value) of Indebtedness of
the Borrower and the Restricted Subsidiaries outstanding as of such date,
determined on a consolidated basis in accordance with GAAP (other than the
Indebtedness of the type referred to in clause (h) of the definition of the term
"Indebtedness", except to the extent of any unreimbursed drawings thereunder).
"Tranche A Lender" means a Lender with a Tranche A Term Commitment
or an outstanding Tranche A Term Loan.
"Tranche A Term Commitment" means, with respect to each Lender,
the commitment, if any, of such Lender to
45
make Tranche A Term Loans on the Effective Date, expressed as an amount
representing the maximum aggregate principal amount of Tranche A Term Loans to
be made by such Lender hereunder, as such Commitment may be (a) reduced from
time to time pursuant to Section 2.08 or (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Tranche A Term Commitment is set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Tranche A Term Commitment, as applicable. The initial
aggregate amount of the Lenders' Tranche A Term Commitments as of the Effective
Date is $160,000,000.
"Tranche A Term Loan" has the meaning set forth in Section 2.01.
"Tranche A Term Loan Maturity Date" means May 31, 2006.
"Tranche B Lender" means a Lender with a Tranche B Term Commitment
or an outstanding Tranche B Term Loan.
"Tranche B Rate" means (a) 3.00% per annum, in the case of a
Eurodollar Loan, and (b) 2.00% per annum, in the case of an ABR Loan.
"Tranche B Term Commitment" means, with respect to each Lender,
the commitment, if any, of such Lender to make a Tranche B Term Loan hereunder
on the Effective Date, expressed as an amount representing the maximum principal
amount of the Tranche B Term Loan to be made by such Lender hereunder, as such
Commitment may be (a) reduced pursuant to Section 2.08 or (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Tranche B Term
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Tranche B Term Commitment,
as applicable. The initial aggregate amount of the Lenders' Tranche B Term
Commitments as of the Effective Date is $280,000,000.
"Tranche B Term Loan" has the meaning set forth in Section 2.01.
46
"Tranche B Term Loan Maturity Date" means May 31, 2008.
"Transactions" means the Recapitalization Transactions, the Loan
Transactions, the Debt Tender Offer and the issuance of the New Senior
Subordinated Notes and the Warrants.
"Transaction Costs" means the fees and expenses incurred by, or
required to be reimbursed or paid by, the Borrower and its Subsidiaries in
connection with the Recapitalization Transactions.
"Trust" has the meaning set forth in the preamble to this
Agreement.
"Trust Equity Rollover" has the meaning set forth in the preamble
to this Agreement.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"Unrestricted Subsidiary" means (a) Subsidiaries that constitute
Unrestricted Subsidiaries under the Original Credit Agreement as of the
Effective Date that are identified as such on Schedule 3.12, (b) any Subsidiary
organized after the Effective Date, for the purpose of acquiring the stock or
assets of another Person or for start-up ventures or activities and designated
as an Unrestricted Subsidiary by the Borrower by notice to the Administrative
Agent at or prior to the time of its organization and (c) any Subsidiary of any
Unrestricted Subsidiary. By notice to the Administrative Agent, the Borrower may
declare an Unrestricted Subsidiary to be a Restricted Subsidiary; provided that
(i) no Default has occurred and is continuing or would result from such
declaration and (ii) the representations and warranties of the Borrower herein
qualified as to materiality would be true and correct and those not so qualified
shall be true and correct in all material respects, in each case on and as of
the date of such declaration (after giving effect to
47
such declaration), except to the extent such representations and warranties
expressly relate to an earlier date in which case such representations and
warranties shall be true and correct as of such earlier date. The Borrower may
not declare a Restricted Subsidiary to be an Unrestricted Subsidiary.
"Warrants" means the warrants of the Borrower to acquire common
stock of the Borrower issued as units with the New Senior Subordinated Notes.
"Wholly Owned Subsidiary" means a Subsidiary of which securities
(except for directors' qualifying shares or other de minimus shares) or other
ownership interests representing 100% of the equity are at the time owned,
directly or indirectly, by the Borrower.
"Withdrawal Liability" means liability of the Borrower or any
ERISA Affiliate to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes
of this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time
48
to time amended, supplemented or otherwise modified (subject to any restrictions
on such amendments, supplements or modifications set forth herein), (b) any
reference herein to any Person shall be construed to include such Person's
successors and assigns, (c) the words "herein", "hereof" and "hereunder", and
words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (d) all references herein
to Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e)
the words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP; Treatment of Unrestricted
Subsidiaries. (a) Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
(b) Except as otherwise expressly provided herein, all accounting
and financial calculations and determinations hereunder shall be made without
consolidating the accounts of Unrestricted Subsidiaries with those of the
Borrower or any Restricted Subsidiary, notwithstanding that such treatment is
inconsistent with GAAP.
49
ARTICLE II
The Credits
SECTION 2.01. Commitments; Loans Outstanding on Effective Date.
Subject to the terms and conditions set forth herein, each Lender agrees (i) to
make a loan in dollars (a "Mexico Term Loan") to the Mexico Borrower on the
Effective Date in the principal amount of its Mexico Term Commitment, (ii) to
make a loan in dollars (a "Tranche A Term Loan") to the Borrower on the
Effective Date in the principal amount of its Tranche A Commitment, (iii) to
make a loan in dollars (a "Tranche B Term Loan") to the Borrower on the
Effective Date in the principal amount of its Tranche B Term Commitment and (iv)
to make loans in dollars ("Revolving Loans") to the Borrower from time to time
during the Revolving Availability Period in an aggregate principal amount that
will not result in such Lender's Revolving Exposure exceeding such Lender's
Revolving Commitment (after giving effect to the application of any proceeds
being applied contemporaneously with the advance of such Revolving Loans).
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Revolving Loans. The full
amount of the Term Commitments must be drawn in a single Borrowing on the
Effective Date. Amounts repaid or prepaid in respect of Term Loans may not be
reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than a
Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the
same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower or Mexico Borrower, as applicable, may request in accordance herewith.
Each Swingline Loan shall be an ABR Loan. Each Lender at its option may make any
Eurodollar Loan by
50
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower or Mexico Borrower, as applicable, to repay such Loan in
accordance with the terms of this Agreement and shall not result in any
increased costs under Section 2.15 or any obligation by the Borrower or Mexico
Borrower, as applicable, to make any payment under Section 2.17 in excess of the
amounts, if any, that such Lender would be entitled to claim under Section 2.15
or 2.17, as applicable, without giving effect to such change in lending office.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of $500,000 and not less than $1,000,000; provided that
an ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Revolving Commitments or that is equal to the
amount required to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(e). Each Swingline Loan shall be in an amount that
is an integral multiple of $10,000 and not less than $50,000. Borrowings of more
than one Type and Class may be outstanding at the same time; provided that there
shall not at any time be more than a total of 8 Eurodollar Borrowings
outstanding.
(d) Notwithstanding any other provision of this Agreement, neither
the Borrower nor the Mexico Borrower shall be entitled to request, or to elect
to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Revolving Maturity Date, Mexico Term Loan
Maturity Date, Tranche A Term Loan Maturity Date or Tranche B Term Loan Maturity
Date, as applicable.
51
SECTION 2.03. Requests for Borrowings. To request a Revolving
Borrowing or Term Borrowing, the Borrower or Mexico Borrower, as applicable,
shall notify the Administrative Agent of such request by telephone (a) in the
case of a Eurodollar Borrowing, not later than 12:00 noon, New York City time,
three Business Days before the date of the proposed Borrowing or (b) in the case
of an ABR Borrowing, not later than 1:00 p.m., New York City time, one Business
Day before the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the Borrower or Mexico
Borrower, as applicable. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving
Borrowing, a Mexico Term Borrowing, a Tranche A Term Borrowing or a
Tranche B Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) subject to Section 2.02, whether such Borrowing is to be an
ABR Borrowing or a Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(vi) the location and number of the account to which funds are to
be disbursed, which shall comply with the requirements of Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the Borrower
52
or Mexico Borrower, as applicable shall be deemed to have selected an Interest
Period of one month's duration. Promptly following receipt of a Borrowing
Request in accordance with this Section, the Administrative Agent shall advise
each Lender of the details thereof and of the amount of such Lender's Loan to be
made as part of the requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make loans
("Swingline Loans") to the Borrower from time to time during the Revolving
Availability Period, in an aggregate principal amount at any time outstanding
that will not result in (i) the aggregate principal amount of outstanding
Swingline Loans exceeding $5,000,000 or (ii) the sum of the total Revolving
Exposures exceeding the total Revolving Commitments; provided that the Swingline
Lender shall not be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. Within the foregoing limits and subject to the terms
and conditions set forth herein, the Borrower may borrow, prepay and reborrow
Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 (noon), New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e), by remittance to the Issuing Bank) by 2:00 p.m.,
New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
53
Business Day in all or a portion of the Swingline Loans outstanding. Such notice
shall specify the aggregate amount of Swingline Loans in which Revolving Lenders
will participate. Promptly upon receipt of such notice, the Administrative Agent
will give notice thereof to each Revolving Lender, specifying in such notice
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each
Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Administrative Agent, for the account of
the Swingline Lender, such Lender's Applicable Percentage of such Swingline Loan
or Loans. Each Revolving Lender acknowledges and agrees that its obligation to
acquire participations in Swingline Loans pursuant to this paragraph is absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Revolving
Lender shall comply with its obligation under this paragraph by making a wire
transfer to the Administrative Agent for the benefit of the Swingline Lender of
immediately available funds, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Revolving Lenders. The Administrative Agent shall notify
the Borrower of any participations in any Swingline Loan acquired pursuant to
this paragraph, and thereafter payments in respect of such Swingline Loan shall
be made to the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the Borrower (or other party on behalf of
the Borrower) in respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Revolving Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may appear. The
purchase of participations in a Swingline Loan pursuant to
54
this paragraph shall not relieve the Borrower of any default in the payment
thereof.
SECTION 2.05. Letters of Credit. (a) General. Subject to the terms
and conditions set forth herein, the Borrower may request the issuance of
Letters of Credit for its own account or the account of any Subsidiary Loan
Party (provided that the Borrower shall be a co-applicant with respect to each
Letter of Credit issued for the account of or in favor of such Subsidiary Loan
Party), in a form reasonably acceptable to the Administrative Agent and the
Issuing Bank, at any time and from time to time during the LC Availability
Period. All Letters of Credit shall be denominated in U.S. dollars. In the event
of any inconsistency between the terms and conditions of this Agreement and the
terms and conditions of any form of letter of credit application or other
agreement submitted by the Borrower to, or entered into by the Borrower with,
the Issuing Bank relating to any Letter of Credit, the terms and conditions of
this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the Issuing Bank, the Borrower
also shall submit a letter of credit application on the Issuing Bank's standard
form in connection with any request for a Letter of Credit. A Letter of Credit
shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of
55
Credit the Borrower shall be deemed to represent and warrant that), after giving
effect to such issuance, amendment, renewal or extension (i) the LC Exposure
shall not exceed $30,000,000 (plus an additional amount, not to exceed
$40,000,000, to support Permitted Mexico Indebtedness) and (ii) the total
Revolving Exposures shall not exceed the total Revolving Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after the
date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to
pay to the Administrative Agent, for the account of the Issuing Bank, such
Lender's Applicable Percentage of each LC Disbursement made by the Issuing Bank
and not reimbursed by the Borrower on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason. Each Lender acknowledges and agrees that its obligation
to acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
56
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the date that
such LC Disbursement is made, if the Borrower shall have received notice of such
LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if
such notice has not been received by the Borrower prior to such time on such
date, then not later than 12:00 noon, New York City time, on (i) the Business
Day that the Borrower receives such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that,
if the Borrower does not otherwise elect by notice to the Administrative Agent
to make such payment, the Borrower shall be deemed to have requested in
accordance with Section 2.03 (but without regard to the minimum borrowing
amounts specified in Section 2.02) that such LC Disbursement be financed with an
ABR Revolving Borrowing in an amount equal to such LC Disbursement, the
Administrative Agent shall notify the Revolving Lenders thereof, the Revolving
Lenders shall (subject to the conditions to borrowing herein) advance their
respective ABR Revolving Loans (which shall be applied to reimburse such LC
Disbursement) and, to the extent such ABR Revolving Loans are so advanced and
applied, the Borrower's obligation to make such payment shall be deemed
discharged as of the date due and replaced by the resulting ABR Revolving Loans.
If and to the extent that the Borrower's obligation to make such payment is not
fully discharged and replaced by ABR Revolving Loans as aforesaid (whether as a
result of the failure to satisfy any condition to borrowing or otherwise) and if
the Borrower otherwise fails to make such payment when due, the Administrative
Agent shall notify each Revolving Lender of the applicable LC Disbursement, the
payment then due from the Borrower in respect thereof and such Lender's
Applicable Percentage thereof. Promptly following receipt of such notice, each
Revolving Lender shall pay to the Administrative Agent its Applicable Percentage
of the payment then due from the Borrower, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06
57
shall apply, mutatis mutandis, to the payment obligations of the Revolving
Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank
the amounts so received by it from the Revolving Lenders. Promptly following
receipt by the Administrative Agent of any payment from the Borrower pursuant to
this paragraph, the Administrative Agent shall distribute such payment to the
Issuing Bank or, to the extent that Revolving Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders
and the Issuing Bank as their interests may appear. Any payment made by a
Revolving Lender pursuant to this paragraph to reimburse the Issuing Bank for
any LC Disbursement (other than the funding of ABR Revolving Loans as
contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse
LC Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. Neither
the Administrative Agent, the Lenders nor the Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other
58
communication under or relating to any Letter of Credit (including any document
required to make a drawing thereunder), any error in interpretation of technical
terms or any consequence arising from causes beyond the control of the Issuing
Bank; provided that nothing in this Section 2.05 shall be construed to excuse
the Issuing Bank from liability to the Borrower to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which are
hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by the Issuing Bank's failure to
exercise care when determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof. The parties hereto
expressly agree that, in the absence of gross negligence or wilful misconduct on
the part of the Issuing Bank, the Issuing Bank shall be deemed to have exercised
care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented that appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Revolving Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC
59
Disbursement is made, the unpaid amount thereof shall bear interest, for each
day from and including the date such LC Disbursement is made to but excluding
the date that the Borrower reimburses such LC Disbursement, at the rate per
annum then applicable to ABR Revolving Loans; provided that, if the Borrower
fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of
this Section, then Section 2.13(c) shall apply. Interest accrued pursuant to
this paragraph shall be for the account of the Issuing Bank, except that
interest accrued on and after the date of payment by any Revolving Lender
pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be
for the account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank; Additional Issuing Banks. The
Issuing Bank may be replaced at any time by written agreement among the
Borrower, the Administrative Agent, the replaced Issuing Bank and the successor
Issuing Bank. One or more Lenders may be appointed as additional Issuing Banks
by written agreement among the Borrower, the Administrative Agent (whose consent
will not be unreasonably withheld) and the Lender that is to be so appointed.
The Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Bank or any such additional Issuing Bank. At the time any such
replacement shall become effective, the Borrower shall pay all unpaid fees
accrued for the account of the replaced Issuing Bank pursuant to Section
2.12(b). From and after the effective date of any such replacement or addition,
as applicable, (i) the successor or additional Issuing Bank shall have all the
rights and obligations of the Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or such addition or to
any previous Issuing Bank, or to such successor or such addition and all
previous Issuing Banks, as the context shall require. After the replacement of
an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of an Issuing Bank
under this Agreement with respect to Letters of Credit issued by it prior to
such replacement, but shall not be required to issue additional Letters of
Credit. If at any time there is more than one Issuing Bank hereunder, the
60
Borrower may, in its discretion, select which Issuing Bank is to issue any
particular Letter of Credit.
(j) Cash Collateralization. If any Event of Default shall occur
and be continuing, on the Business Day that the Borrower receives notice from
the Administrative Agent or the Required Lenders (or, if the maturity of the
Loans has been accelerated, Revolving Lenders with LC Exposure representing
greater than 50% of the total LC Exposure) demanding the deposit of cash
collateral pursuant to this paragraph, the Borrower shall deposit in an account
with the Administrative Agent, in the name of the Administrative Agent and for
the benefit of the Lenders, an amount in cash equal to 105% of the LC Exposure
as of such date plus any accrued and unpaid interest thereon; provided that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (h) or (i) of Article VII. Each such
deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned
on the investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the Borrower's
risk and expense, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to reimburse the Issuing
Bank for LC Disbursements for which it has not been reimbursed and, to the
extent not so applied, shall be held for the satisfaction of the reimbursement
obligations of the Borrower for the LC Exposure at such time or, if the maturity
of the Loans has been accelerated (but subject to the consent of Revolving
Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy other obligations of the Borrower under this
Agreement. If the Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the
61
Borrower within three Business Days after all Events of Default have been cured
or waived.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make
each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Swingline Loans shall be made as
provided in Section 2.04. The Administrative Agent will make such Loans
available to the Borrower or, in the case of Mexico Term Loans, the Mexico
Borrower, by promptly crediting the amounts so received, in like funds, to an
account of the Borrower or, in the case of Mexico Term Loans, the Mexico
Borrower maintained with the Administrative Agent in New York City and
designated by the Borrower or, in the case of Mexico Term Loans, the Mexico
Borrower, in the applicable Borrowing Request; provided that ABR Revolving Loans
made to finance the reimbursement of an LC Disbursement as provided in Section
2.05(e) shall be remitted by the Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower or, in
the case of Mexico Term Loans, the Mexico Borrower, a corresponding amount. In
such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender and
the Borrower or, in the case of Mexico Term Loans, the Mexico Borrower,
severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the
date such amount is made available to the Borrower or, in the case of Mexico
Term Loans, the Mexico Borrower, to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance
62
with banking industry rules on interbank compensation or (ii) in the case of the
Borrower or, in the case of Mexico Term Loans, the Mexico Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing and
Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower or, in the case of a Mexico Term Loan, the Mexico Borrower may elect to
convert such Borrowing to a different Type or to continue such Borrowing and, in
the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as
provided in this Section. The Borrower or, in the case of a Mexico Term Loan,
the Mexico Borrower, may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate
Borrowing. This Section shall not apply to Swingline Borrowings, which may not
be converted or continued.
(b) To make an election pursuant to this Section, the Borrower or,
in the case of a Mexico Term Loan, the Mexico Borrower, shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing
Request would be required under Section 2.03 if the Borrower or, in the case of
a Mexico Term Loan, the Mexico Borrower, were requesting a Revolving Borrowing
of the Type resulting from such election to be made on the effective date of
such election. Each such telephonic Interest Election Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a form approved
by the Administrative Agent and signed by the Borrower or, in the case of a
Mexico Term Loan, the Mexico Borrower.
63
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02 and paragraph
(f) of this Section:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or
a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each Lender of the details thereof and of
such Lender's portion of each resulting Borrowing.
(e) If the Borrower or the Mexico Borrower, as applicable, fails
to deliver a timely Interest Election Request with respect to a Eurodollar
Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding
any contrary provision hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of
64
the Required Lenders, so notifies the Borrower, then, so long as an Event of
Default is continuing (i) no outstanding Borrowing may be converted to or
continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
(f) A Borrowing of any Class may not be converted to or continued
as a Eurodollar Borrowing if after giving effect thereto (i) the Interest Period
therefor would commence before and end after a date on which any principal of
the Loans of such Class is scheduled to be repaid and (ii) the sum of the
aggregate principal amount of outstanding Eurodollar Borrowings of such Class
with Interest Periods ending on or prior to such scheduled repayment date plus
the aggregate principal amount of outstanding ABR Borrowings of such Class would
be less than the aggregate principal amount of Loans of such Class required to
be repaid on such scheduled repayment date.
SECTION 2.08. Termination and Reduction of Commit- ments. (a)
Unless previously terminated, (i) the Mexico Term Commitments, Tranche A Term
Commitments and Tranche B Term Commitments shall terminate at 5:00 p.m., New
York City time, on the Effective Date and (ii) the Revolving Commitments shall
terminate on the Revolving Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Revolving Commitments; provided that (i) each reduction of the
Revolving Commitments shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.11,
the sum of the Revolving Exposures would exceed the total Revolving Commitments.
(c) If any prepayment of a Term Borrowing would be required
pursuant to Section 2.11(b) or (c) at a time when there are not any Term
Borrowings outstanding, then the Revolving Commitments shall be reduced at such
time in an amount equal to the prepayment that would be required if Term
Borrowings were outstanding at such time.
65
(d) The Borrower shall notify the Administrative Agent of any
election or requirement to terminate or reduce the Revolving Commitments under
paragraph (b) or (c) of this Section at least three Business Days prior to the
effective date of such termination or reduction, specifying such election or
requirement and the effective date thereof. Promptly following receipt of any
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Revolving Commitments
delivered by the Borrower under paragraph (b) of this Section may state that
such notice is conditioned upon the effectiveness of other borrowings or the
completion of the sale or issuance of stock of the Borrower or the sale of
assets of the Borrower, in which case such notice may be revoked by the Borrower
(by notice to the Administrative Agent on or prior to the specified effective
date) if such condition is not satisfied. Any termination or reduction of the
Commitments of any Class shall be permanent. Each reduction of the Commitments
of any Class shall be made ratably among the Lenders in accordance with their
respective Commitments of such Class.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan of such Lender on the Revolving Maturity Date, (ii) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Tranche A Term Loan and Tranche B Term Loan of such Lender as
provided in Section 2.10 and (iii) to the Administrative Agent for the account
of the Swingline Lender the then unpaid principal amount of each Swingline Loan
on the earlier of the Revolving Maturity Date and the first date after such
Swingline Loan is made that is the last day of March, June, September or
December and is at least two Business Days after such Swingline Loan is made.
The Mexico Borrower hereby unconditionally promises to pay to the Administrative
Agent for the account of each Lender the then unpaid principal amount of each
Mexico Term Loan of such Lender as provided in Section 2.10.
66
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower or
the Mexico Borrower, as applicable, to such Lender resulting from each Loan made
by such Lender, including the amounts of principal and interest payable and paid
to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower or the Mexico Borrower, as applicable, to each Lender hereunder and
(iii) the amount of any sum received by the Administrative Agent hereunder for
the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
or the Mexico Borrower, as applicable, to repay the Loans in accordance with the
terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower or the Mexico
Borrower, as applicable, shall prepare, execute and deliver to such Lender a
promissory note payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and in a customary form
approved by the Administrative Agent and the Borrower. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
67
SECTION 2.10. Amortization of Term Loans. (a) Subject to
adjustment pursuant to paragraph (e) of this Section, the Borrower shall repay
Tranche A Term Borrowings on each date set forth below in the aggregate
principal amount set forth opposite such date:
Date Amount
---- ------
September 30, 2001 $1,800,000
December 31, 2001 2,400,000
March 31, 2002 3,600,000
June 30, 2002 4,200,000
September 30, 2002 4,000,000
December 31, 2002 4,000,000
March 31, 2003 6,000,000
June 30, 2003 6,000,000
September 30, 2003 6,000,000
December 31, 2003 6,000,000
March 31, 2004 10,000,000
June 30, 2004 10,000,000
September 30, 2004 11,000,000
December 31, 2004 11,000,000
March 31, 2005 11,000,000
June 30, 2005 11,000,000
September 30, 2005 13,000,000
December 31, 2005 13,000,000
March 31, 2006 13,000,000
Tranche A Term Loan Maturity Date 13,000,000
----------
$160,000,000
(b) Subject to adjustment pursuant to paragraph (e) of this
Section, the Mexico Borrower shall repay Mexico Term Borrowings on each date set
forth below in the aggregate principal amount set forth opposite such date:
Date Amount
---- ------
September 30, 2001 $ 450,000
December 31, 2001 600,000
March 31, 2002 900,000
June 30, 2002 1,050,000
September 30, 2002 1,000,000
December 31, 2002 1,000,000
March 31, 2003 1,500,000
June 30, 2003 1,500,000
68
September 30, 2003 1,500,000
December 31, 2003 1,500,000
March 31, 2004 2,500,000
June 30, 2004 2,500,000
September 30, 2004 2,750,000
December 31, 2004 2,750,000
March 31, 2005 2,750,000
June 30, 2005 2,750,000
September 30, 2005 3,250,000
December 31, 2005 3,250,000
March 31, 2006 3,250,000
Mexico Term Loan Maturity Date 3,250,000
---------
$40,000,000
(c) Subject to adjustment pursuant to paragraph (e) of this
Section, the Borrower shall repay Tranche B Term Borrowings on each date set
forth below in the aggregate principal amount set forth opposite such date:
Date Amount
---- ------
June 30, 2001 $2,800,000
June 30, 2002 2,800,000
June 30, 2003 2,800,000
June 30, 2004 2,800,000
June 30, 2005 2,800,000
June 30, 2006 2,800,000
June 30, 2007 54,320,000
September 30, 2007 52,220,000
December 31, 2007 52,220,000
March 31, 2008 52,220,000
Tranche B Term Loan Maturity Date 52,220,000
------------
$280,000,000
(d) To the extent not previously paid, all Mexico Term Loans,
Tranche A Term Loans and Tranche B Term Loans shall be due and payable on the
Mexico Term Loan Maturity Date, Tranche A Term Loan Maturity Date or Tranche B
Term Loan Maturity Date, respectively.
(e) If the initial aggregate amount of the Lenders' Mexico Term
Commitments, Tranche A Term Commitments or Tranche B Term Commitments exceeds
the aggregate principal amount of Mexico Term Loans, Tranche A Term Loans or
Tranche B Term Loans, respectively, made on
69
the Effective Date, then the scheduled repayments of Mexico Term Borrowings,
Tranche A Term Borrowings or Tranche B Term Borrowings, as applicable, to be
made pursuant to this Section shall be reduced by an aggregate amount equal to
such excess in the chronological order in which such repayments are scheduled to
become due. Any prepayment of a Mexico Term Borrowing, Tranche A Term Borrowing
or Tranche B Term Borrowing shall be applied to reduce the subsequent scheduled
repayments of Borrowings of such Class to be made pursuant to this Section
ratably; provided, that any prepayment of Term Borrowings of any Class made
pursuant to Section 2.11(a) shall be applied, first, to reduce the next four
scheduled repayments of Term Borrowings (or the next scheduled repayment of
Tranche B Term Borrowings to the extent such prepayment occurs prior to June 30,
2007) of such Class to be made pursuant to this Section (other than those that
have been reduced to zero by operation of this paragraph) unless and until such
next four scheduled repayments (or the next scheduled repayment in the case of
Tranche B Term Borrowings to the extent such prepayment occurs prior to June 30,
2007) have been eliminated as a result of reductions hereunder and, second, to
reduce the remaining scheduled repayments of Term Borrowings of such Class to be
made pursuant to this Section ratably.
(f) Prior to any repayment of any Term Borrowings of any Class
hereunder, the Borrower shall select the Borrowing or Borrowings of such Class
to be repaid and shall notify the Administrative Agent by telephone (confirmed
by telecopy) of such selection not later than 11:00 a.m., New York City time,
three Business Days before the scheduled date of such repayment; provided that
each repayment of Term Borrowings of any Class shall be applied to repay any
outstanding ABR Term Borrowings of such Class before any other Borrowings of
such Class. Each repayment or prepayment of a Borrowing shall be applied ratably
to the Loans included in the repaid Borrowing. Repayments of Term Borrowings
shall be accompanied by accrued interest on the amount repaid.
SECTION 2.11. Prepayment of Loans. (a) The Borrower (or, in the
case of a Mexico Term Borrowing, the Mexico Borrower) shall have the right at
any time and from
70
time to time to prepay any Borrowing in whole or in part, subject to the
requirements of this Section.
(b) Subject to the provisions of Sections 2.11(e) and 5.08, in the
event and on each occasion that any Net Proceeds are received by or on behalf of
the Borrower or any Subsidiary in respect of any Prepayment Event, the Borrower
and the Mexico Borrower, as applicable, shall, within three Business Days after
such Net Proceeds are received, prepay Term Borrowings in an aggregate amount
equal to the entire amount of such Net Proceeds.
(c) Following the end of each fiscal year of the Borrower,
commencing with the fiscal year ending December 31, 2000, the Borrower and the
Mexico Borrower collectively shall prepay Term Borrowings in an aggregate amount
equal to the amount, if any, by which (i) 50% of Excess Cash Flow for such
fiscal year exceeds (ii) the aggregate amount of all prepayments actually made
pursuant to Section 2.11(a) since the date a prepayment was made pursuant to
this paragraph in respect of the immediately preceding fiscal year of the
Borrower (or would have been required to be made pursuant to this paragraph if
so required with respect to such immediately preceding fiscal year); provided,
however, that for the purposes of Section 2.11(c) the amount required to be
prepaid for purposes of the fiscal year ending December 31, 2000 shall be
determined based on the period from the Effective Date through December 31,
2000. Each prepayment pursuant to this paragraph shall be made on or before the
date that is three Business Days after the date on which financial statements
are delivered pursuant to Section 5.01 with respect to the fiscal year for which
Excess Cash Flow is being calculated (and in any event within 90 days after the
end of such fiscal year).
(d) If at any time the sum of the total Revolving Exposures
exceeds the total Revolving Commitments, the Borrower shall immediately prepay
Revolving Borrowings and Swingline Loans to the extent necessary to eliminate
such excess. If any such excess remains after all Revolving Borrowings and
Swingline Loans are prepaid, the Borrower shall deposit cash collateral pursuant
to Section 2.05(j) in an amount equal to such remaining excess.
71
(e) Notwithstanding the provisions of Section 2.11(b):
(i) in the case of a Prepayment Event described in clause (a) of
the definition of "Prepayment Event" consisting of a disposition by a
Foreign Subsidiary, the Borrower and the Mexico Borrower may, in lieu of
prepaying Term Borrowings, permit such Foreign Subsidiary to retain the
Net Proceeds of such disposition, in which case no prepayment shall be
required in respect of such Net Proceeds; provided that (A) the Borrower
notifies the Administrative Agent that it is exercising such option,
specifying the Prepayment Event and the amount of the prepayment, at or
prior to the time that the prepayment is required, (B) the Borrower is in
compliance with Sections 6.13, 6.14 and 6.15 before and after giving
effect to such Prepayment Event, (C) the aggregate Net Proceeds which are
not required to be prepaid pursuant to this clause (i) shall not exceed
$40,000,000 (on a cumulative basis) during the remaining term of this
Agreement subsequent to the Effective Date and (D) the Net Proceeds
relating to such Prepayment Event are not required to be used to repay or
prepay any other Indebtedness of the Borrower or any Subsidiary (after
the passage of time or otherwise);
(ii) in the case of a Prepayment Event described in clause (c) of
the definition of "Prepayment Event", the Borrower may, at its option,
notify the Administrative Agent that the Borrower intends to utilize all
or a specified portion of the Net Proceeds of such Prepayment Event to
finance a Permitted Acquisition or Capital Expenditures to be consummated
within 270 days after such Prepayment Event, in which case the Borrower
and the Mexico Borrower shall not be required to prepay Term Borrowings
pursuant to Section 2.11(b) to the extent of the Net Proceeds so
specified; provided that (A) the Borrower delivers such notice,
specifying the Prepayment Event and describing the anticipated Permitted
Acquisition or Capital Expenditures in reasonable detail, at or prior to
the time of such Prepayment Event, (B) no Default has occurred and is
continuing at the time of such Prepayment Event and (C) to the extent
such Net
72
Proceeds are not applied to finance such Permitted Acquisition or Capital
Expenditures within the 270-day period after such Prepayment Event, the
Borrower and the Mexico Borrower shall prepay Term Borrowings (at the
earlier of (1) expiration of such period, (2) the date of abandonment of
such Permitted Acquisition or Capital Expenditures or (3) the date of
consummation of such Permitted Acquisition) in an amount equal to such
Net Proceeds that are not so applied; and
(iii) in the case of a Prepayment Event described in clause (c) of
the definition of "Prepayment Event", if, as of the end of the most
recent fiscal quarter for which financial statements have been delivered
to the Administrative Agent pursuant to clause (a) or (b) of Section 5.01
prior to such Prepayment Event, the Leverage Ratio was less than 2.00 to
1.00, then no prepayment pursuant to Section 2.11(b) shall be required in
respect of such Prepayment Event.
(f) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the Borrower or the Mexico Borrower, as the case may be, shall select
the Borrowing or Borrowings to be prepaid and shall specify such selection in
the notice of such prepayment pursuant to paragraph (g) of this Section;
provided that each prepayment of Borrowings of any Class shall be applied to
prepay ABR Borrowings of such Class before any other Borrowings of such Class.
In the event of any optional or mandatory prepayment of Term Borrowings made at
a time when Term Borrowings of more than one Class remain outstanding, the
Borrower and the Mexico Borrower shall select Term Borrowings to be prepaid so
that the aggregate amount of such prepayment is allocated among the Mexico Term
Borrowings, Tranche A Term Borrowings and Tranche B Term Borrowings pro rata
based on the aggregate principal amount of outstanding Borrowings of each such
Class (a "Pro Rata Allocation"); provided that if such prepayment is a mandatory
prepayment pursuant to paragraph (b) or (c) of this Section, any Tranche B
Lender may elect, to the extent Term Borrowings of any other Class or Classes
remain outstanding on the prepayment date, by notice to the Administrative Agent
by telephone (confirmed by telecopy) at least one Business Day prior to the
prepayment date, to decline all or any portion of any prepayment of its Tranche
B Term Loans pursuant to this Section, in which case the
73
aggregate amount of the prepayment that would have been applied to prepay
Tranche B Term Borrowings but was so declined shall be applied to prepay Term
Borrowings of each other Class then outstanding pro rata based on the aggregate
principal amount of outstanding Borrowings of each such Class; and provided
further that if such prepayment is (i) a voluntary prepayment pursuant to
paragraph (a) of this Section, the Borrower and the Mexico Borrower may, in
their sole discretion, (x) select Term Borrowings to be prepaid so that the
amount of such prepayment allocated to the Tranche B Term Borrowings is less
than the amount that would be allocated to the Tranche B Term Borrowings under a
Pro Rata Allocation and/or (y) elect, by prior written notice given to the
Administrative Agent and the Tranche B Term Lenders, to afford the Tranche B
Term Lenders the right to decline to accept such prepayment, in which case the
Tranche B Term Lenders will be entitled to decline all or any portion of such
prepayment to the same extent, and subject to the same procedures that are
applicable to mandatory prepayments or (ii) by the Mexico Borrower, the Mexico
Borrower may, in its sole discretion, select Mexico Term Borrowings to be
prepaid so that the amount of such prepayment allocated to the other Term
Borrowings is less than the amount that would be allocated to the other Term
Borrowings under a Pro Rata Allocation.
(g) The Borrower (or, in the case of prepayment of a Mexico Term
Borrowing, the Mexico Borrower) shall notify the Administrative Agent (and, in
the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment; provided that, if a
notice of optional
74
prepayment is given in connection with a conditional notice of termination of
the Revolving Commitments as contemplated by Section 2.08, then such notice of
prepayment may be revoked if such notice of termination is revoked in accordance
with Section 2.08. Promptly following receipt of any such notice (other than a
notice relating solely to Swingline Loans), the Administrative Agent shall
advise the Lenders of the contents thereof. Each partial prepayment of any
Borrowing shall be in an amount such that the remaining amount of such Borrowing
not so prepaid would be permitted in the case of an advance of a Borrowing of
the same Type as provided in Section 2.02, except as necessary to apply fully
the required amount of a mandatory prepayment. Each prepayment of a Borrowing
shall be applied ratably to the Loans included in the prepaid Borrowing.
Prepayments shall be accompanied by accrued interest to the extent required by
Section 2.13.
SECTION 2.12. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee,
which shall accrue at the Applicable Rate on the average daily unused amount of
the Revolving Commitment of such Lender during the period from and including the
Effective Date to but excluding the date on which such Revolving Commitment
terminates. Accrued commitment fees with respect to each Revolving Commitment
shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which such Revolving Commitment
terminates, commencing on the first such date to occur after the date hereof.
All commitment fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first day
but excluding the last day). For purposes of computing commitment fees with
respect to Revolving Commitments, a Revolving Commitment of a Lender shall be
deemed to be used to the extent of the outstanding Revolving Loans and LC
Exposure of such Lender (and the Swingline Exposure of such Lender shall be
disregarded for such purpose).
(b) The Borrower agrees to pay (i) to the Administrative Agent for
the account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate as interest on Eurodollar
75
Revolving Loans on the average daily amount of such Lender's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date on which such Lender's Revolving Commitment terminates and the
date on which such Lender ceases to have any LC Exposure, and (ii) to the
Issuing Bank a fronting fee, which shall accrue at the rate or rates per annum
separately agreed upon between the Borrower and the Issuing Bank on the average
daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Revolving Commitments and the date on which there ceases to be any LC Exposure,
as well as the Issuing Bank's standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. Participation fees and fronting fees accrued through and
including the last day of March, June, September and December of each year shall
be payable on the third Business Day following such last day, commencing on the
first such date to occur after the Effective Date; provided that all such fees
shall be payable on the date on which the Revolving Commitments terminate and
any such fees accruing after the date on which the Revolving Commitments
terminate shall be payable on demand. Any other fees payable to the Issuing Bank
pursuant to this paragraph shall be payable within 10 days after demand. All
participation fees and fronting fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for
its own account, fees payable in the amounts and at the times separately agreed
upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders
76
entitled thereto. Fees paid shall not be refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR
Borrowing (including each Swingline Loan) shall bear interest at the Alternate
Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by the Borrower or the Mexico
Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, 2% plus the rate otherwise applicable to such Loan as
provided in the preceding paragraphs of this Section or (ii) in the case of any
other amount, 2% plus the rate applicable to ABR Revolving Loans as provided in
paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Revolving Commitments; provided that (A) interest
accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(B) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving
Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (C) in the
event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times
77
when the Alternate Base Rate is based on the Prime Rate shall be computed on the
basis of a year of 365 days (or 366 days in a leap year), and in each case shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO
Rate shall be determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means
do not exist for ascertaining the Adjusted LIBO Rate for such Interest
Period; or
(b) the Administrative Agent is advised by the Required Lenders
that the Adjusted LIBO Rate for such Interest Period will not adequately
and fairly reflect the cost to such Lenders (or Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (except any such
78
reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing
Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank,
as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change
in Law regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender's or the Issuing Bank's capital or on the
capital of such Lender's or the Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by the Issuing
Bank, to a level below that which such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or the Issuing Bank's
policies and the policies of such Lender's or the Issuing Bank's holding company
with respect to capital adequacy), then from time to time the Borrower will pay
to such Lender or the Issuing Bank, as the case may be, following receipt by the
Borrower of the certificate referred to in clause (c) below, such additional
amount or amounts as will compensate such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company for any such reduction suffered.
79
(c) A certificate of a Lender or the Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or the Issuing Bank or
its holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section (and setting forth the underlying calculations) shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender or the Issuing Bank, as the case may be, the amount shown
as due on any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank
to demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 180 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.16. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurodollar Revolving Loan or Eurodollar Term Loan on the
date specified in any notice delivered pursuant hereto (regardless of whether
such notice may be revoked under Section 2.11(g) and is revoked in accordance
therewith), or (d) the assignment of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto as a result of a request by the
Borrower (or, in the case of a Mexico Term Loan, the Mexico Borrower) pursuant
to Section 2.19, then, in any such event, the Borrower (or, in the case of a
Mexico Term Loan, the Mexico Borrower) shall compensate each Lender for the
80
loss, cost and expense attributable to such event. Such loss, cost or expense to
any Lender shall be deemed to include an amount reasonably determined by such
Lender to be the excess, if any, of (i) the amount of interest that would have
accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest that would accrue on such principal amount for such period at
the interest rate that such Lender would bid were it to bid, at the commencement
of such period, for dollar deposits of a comparable amount and period from other
banks in the Eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section (and setting forth the underlying calculations) shall be delivered to
the Borrower or the Mexico Borrower, as applicable, and shall be conclusive
absent manifest error. The Borrower or the Mexico Borrower, as applicable, shall
pay such Lender the amount shown as due on any such certificate within 10 days
after receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account of
any obligation of the Borrower or the Mexico Borrower hereunder or under any
other Loan Document shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided that if the Borrower or the
Mexico Borrower shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower or the Mexico
Borrower, as applicable, shall make such deductions and (iii) the Borrower or
the Mexico Borrower, as applicable, shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
81
(b) In addition, the Borrower and the Mexico Borrower shall pay
any Other Taxes to the relevant Governmental Authority in accordance with
applicable law.
(c) The Borrower, or, in the case of Indemnified Taxes or Other
Taxes attributable to obligations of the Mexico Borrower, the Mexico Borrower,
shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender
or the Issuing Bank, as the case may be, on or with respect to any payment by or
on account of any obligation of the Borrower or the Mexico Borrower, as
applicable, hereunder or under any other Loan Document (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability (and setting forth the underlying calculations) delivered to the
Borrower or the Mexico Borrower, as applicable, by a Lender or the Issuing Bank,
or by the Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by the Borrower or the Mexico Borrower to a Governmental
Authority, the Borrower or the Mexico Borrower, as applicable, shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any Foreign Lender and any Issuing Bank that is not a "United
States person" within the meaning of Section 7701(a)(30) of the Code (together
with the Foreign Lenders, the "Non-U.S. Lenders") shall, if such Non-U.S. Lender
is entitled to an exemption from or reduction of withholding Tax under the laws
of the jurisdiction in which the Borrower is located, or any treaty to which
such
82
jurisdiction is a party, with respect to payments under this Agreement, deliver
to the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate.
Notwithstanding any other provision of this Section 2.17, a Non-U.S. Lender
shall not be required to deliver any form pursuant to this Section 2.17(e) that
such Non-U.S. Lender is not legally able to deliver.
(f) If the Administrative Agent or a Lender (or transferee)
determines, in its reasonable discretion, that it has received a refund of any
Taxes or Other Taxes as to which it has been indemnified by the Borrower or the
Mexico Borrower, as applicable, or with respect to which the Borrower or the
Mexico Borrower, as applicable, has paid additional amounts pursuant to this
Section 2.17, it shall pay over such refund to the Borrower or the Mexico
Borrower, as applicable (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower or the Mexico Borrower, as applicable,
under this Section 2.17 with respect to the Taxes or Other Taxes giving rise to
such refund), net of all out-of-pocket expenses of the Administrative Agent or
such Lender (or transferee) and without interest (other than any interest paid
by the relevant Governmental Authority with respect to such refund); provided,
however, that the Borrower or the Mexico Borrower, as applicable, upon the
request of the Administrative Agent or such Lender (or transferee), agrees to
repay the amount paid over to the Borrower or the Mexico Borrower, as applicable
(plus any penalties, interest or other charges imposed by the relevant
Governmental Authority), to the Administrative Agent or such Lender (or
transferee) in the event the Administrative Agent or such Lender (or transferee)
is required to repay such refund to such Governmental Authority. Nothing
contained in this Section 2.17(f) shall require the Administrative Agent or any
Lender to make available its Tax returns (or any other information relating to
its Taxes which it deems confidential) to the Borrower, the Mexico Borrower or
any other Person.
83
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of
Setoffs. (a) Each of the Borrower and the Mexico Borrower shall make each
payment required to be made by it hereunder or under any other Loan Document
(whether of principal, interest, fees or reimbursement of LC Disbursements, or
of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to
12:00 noon, New York City time, on the date when due, in immediately available
funds, without setoff or counterclaim. Any amounts received after such time on
any date may, in the discretion of the Administrative Agent, be deemed to have
been received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative Agent at
its offices at One Bankers Trust Plaza, New York, New York 10006, except
payments to be made directly to the Issuing Bank or Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.15,
2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto and
payments pursuant to other Loan Documents shall be made to the Persons specified
therein. The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment under any Loan Document shall be due
on a day that is not a Business Day, the date for payment shall be extended to
the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
84
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Term Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Revolving Loans, Term Loans
and participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans; provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower or the Mexico Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements to any assignee or participant,
other than to the Borrower or any Subsidiary or Affiliate thereof (as to which
the provisions of this paragraph shall apply). The provisions of this paragraph
(c) shall apply to any payment or distribution received by any Lender in respect
of any principal of or interest on its Mexico Term Loans pursuant to an exercise
of remedies or otherwise during a period in which an Event of Default shall have
occurred and be continuing (including any distribution received in any
bankruptcy or similar proceeding) resulting in such Lender receiving a
disproportionately greater recovery to the extent necessary so that the benefit
of all such payments or distributions shall be shared as set forth in the
immediately preceding sentence. Each of the Borrower and the Mexico Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable
85
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower or the Mexico Borrower, as
applicable, rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower or the Mexico
Borrower, as applicable, in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower or the Mexico Borrower, as applicable, prior to the date on
which any payment is due to the Administrative Agent for the account of the
Lenders or the Issuing Bank hereunder that the Borrower or the Mexico Borrower,
as applicable, will not make such payment, the Administrative Agent may assume
that the Borrower or the Mexico Borrower, as applicable, has made such payment
on such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the Issuing Bank, as the case may be, the amount
due. In such event, if the Borrower or the Mexico Borrower, as applicable, has
not in fact made such payment, then each of the Lenders or the Issuing Bank, as
the case may be, severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or
9.03(c), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a)
If any Lender requests compensation under Section 2.15, or if the Borrower or
the
86
Mexico Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the reasonable judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as the
case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if
the Borrower or the Mexico Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 2.17, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that (i) the
Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Revolving Commitment is being assigned, the Issuing Bank and
Swingline Lender), which consent shall not unreasonably be withheld, (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements and Swingline
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower or the Mexico Borrower (in the case
of all other amounts) and (iii) in the case of any such assignment resulting
from a claim for compensation under Section 2.15 or payments required to be made
pursuant to Section 2.17, such assignment will result in a reduction in such
87
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
SECTION 2.20. Extension of Revolving Maturity Date. (a) The
Borrower may, by notice to the Administrative Agent and the Revolving Lenders
given not less than 30 and not more than 60 days prior to the Revolving Maturity
Date, request that the Revolving Lenders extend the Revolving Maturity Date for
an additional one year period. Each Revolving Lender shall, by notice to the
Borrower and the Administrative Agent given not later than the 10th Business Day
after the date of receipt of the Borrower's notice, advise the Borrower whether
or not such Lender agrees to such extension (and any Lender that does not so
advise the Borrower on or before such day shall be deemed to have advised the
Borrower that it will not agree to such extension). The approval of any such
extension shall be at the sole discretion of each Revolving Lender.
(b) If (and only if) all Revolving Lenders shall have agreed to
extend the Revolving Maturity Date as provided in paragraph (a) above, then the
Revolving Maturity Date shall be extended to May 31, 2007.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Borrower and its
Restricted Subsidiaries is duly organized, validly existing and, where
applicable, in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
88
SECTION 3.02. Authorization; Enforceability. The Transactions
entered into and to be entered into by each Loan Party are within such Loan
Party's corporate powers and have been duly authorized by all necessary
corporate and, if required, stockholder action. This Agreement has been duly
executed and delivered by the Borrower and the Mexico Borrower and constitutes,
and each other Loan Document to which any Loan Party is to be a party, when
executed and delivered by such Loan Party, will constitute, a legal, valid and
binding obligation of the Borrower, the Mexico Borrower or such Loan Party (as
the case may be), enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect or, if not obtained
or made, would not, individually or in the aggregate, be reasonably likely to
have a Material Adverse Effect and except filings necessary to perfect Liens
created under the Loan Documents, (b) will not violate any applicable law or
regulation or the charter, by-laws or other organizational documents of the
Borrower or any of its Restricted Subsidiaries or any order of any Governmental
Authority, except, with respect to any violation of applicable law or regulation
or any order of any Governmental Authority, to the extent any such violation
would not, individually or in the aggregate, be reasonably likely to have a
Material Adverse Effect, (c) will not violate or result in a default under any
material indenture, agreement or other instrument binding upon the Borrower or
any of its Restricted Subsidiaries or its assets, except to the extent any such
violation, default or right would not, individually or in the aggregate, be
reasonably likely to have a Material Adverse Effect, or give rise to a right
thereunder to require any payment to be made by the Borrower or any of its
Restricted Subsidiaries, and (d) will not result in the creation or
89
imposition of any Lien on any asset of the Borrower or any of its Restricted
Subsidiaries, except Liens created under the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a)
The Borrower has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, stockholders' equity and cash flows as of and
for the fiscal year ended December 31, 1999, reported on by Arthur Andersen LLP,
independent public accountants. Such financial statements present fairly, in all
material respects, the financial position and results of operations and cash
flows of the Borrower and its consolidated Subsidiaries, as of such dates and
for such periods in accordance with GAAP.
(b) The Borrower has heretofore made available to the Lenders its
pro forma consolidated balance sheet as of March 31, 2000, prepared giving
effect to the Transactions as if the Transactions had occurred on such date.
Such pro forma consolidated balance sheet (i) has been prepared in good faith
based on the same assumptions used to prepare the applicable pro forma financial
statements, which were simultaneously made available to the Lenders (which
assumptions are believed by the Borrower to be reasonable), (ii) is based on the
best information available to the Borrower after due inquiry, (iii) accurately
reflects all material adjustments necessary to give effect to the Transactions
and (iv) presents fairly, in all material respects, the pro forma financial
position of the Borrower and its consolidated Subsidiaries as of March 31, 2000,
as if the Transactions had occurred on such date; provided, however, that such
pro forma balance sheet did not reflect that (w) the New Senior Subordinated
Notes would be issued together with the Warrants, (x) such securities would be
issued at an aggregate discount of approximately $5,900,000, (y) approximately
$8,000,000 of the issue price of such securities would be allocated to the
Warrants and (z) approximately $5,900,000 of Revolving Loans would be borrowed
on the Effective Date in connection with the consummation of the Transactions.
(c) Since December 31, 1999, there has been no material adverse
change in the business, assets, results of
90
operations or condition, financial or otherwise of the Borrower and its
Restricted Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Borrower and its
Restricted Subsidiaries has good title to, or valid leasehold interests in, all
its real and personal property material to its business (including its Mortgaged
Properties), except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes and other Permitted Encumbrances.
(b) Each of the Borrower and its Restricted Subsidiaries owns, or
is licensed or otherwise permitted to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to the business of
the Borrower and its Restricted Subsidiaries, taken as a whole, and the use
thereof by the Borrower and its Restricted Subsidiaries does not infringe upon
the rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
(c) Schedule 3.05 sets forth the address of each real property
that is owned or leased by the Borrower or any of its Subsidiaries as of the
Effective Date.
(d) As of the Effective Date, neither the Borrower nor any of its
Subsidiaries has received notice of, or has knowledge of, any pending or
contemplated condemnation proceeding affecting any Mortgaged Property or any
sale or disposition thereof in lieu of condemnation. Neither any Mortgaged
Property nor any interest therein is subject to any right of first refusal,
option or other contractual right to purchase such Mortgaged Property or
interest therein held by any Person, other than the Borrower or any Restricted
Subsidiary.
SECTION 3.06. Litigation and Environmental Matters. (a) There are
no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
91
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect, (ii) that involve or arise
out of the Recapitalization and which could reasonably be expected, individually
or in the aggregate, to result in a Material Adverse Effect, or (iii) that
involve any of the Loan Documents or the Transactions.
(b) Except with respect to any matters that, individually or in
the aggregate, would not be reasonably likely to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv) knows of any basis for
any Environmental Liability.
SECTION 3.07. Compliance with Laws and Agreements. Each of the
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that
92
the failure to do so could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $12,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $12,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 3.11. Disclosure. The Borrower has disclosed to the
Lenders all agreements, instruments and corporate or other restrictions to which
the Borrower or any of its Subsidiaries is subject, and all other matters known
to any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. The Restatement Information
Memorandum and the other reports, financial statements, certificates and other
written information furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or any other Loan Document or delivered hereunder or thereunder (as
modified or supplemented by other information so furnished), when made or
delivered, did not contain any material misstatement of fact or omit to state
any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
93
SECTION 3.12. Subsidiaries. Schedule 3.12 sets forth the name of,
and the ownership interest of the Borrower in, each Subsidiary of the Borrower
and identifies each Subsidiary that is a Subsidiary Loan Party or an
Unrestricted Subsidiary, in each case as of the Effective Date.
SECTION 3.13. Insurance. Schedule 3.13 sets forth a description of
all insurance maintained by or on behalf of the Borrower and its Subsidiaries as
of the Effective Date. As of the Effective Date, all premiums that are due and
payable in respect of such insurance have been paid.
SECTION 3.14. Labor Matters. As of the Effective Date, there are
no strikes, lockouts or slowdowns against the Borrower or any Subsidiary pending
or, to the knowledge of the Borrower, threatened that could reasonably be
expected to result in a Material Adverse Effect. All material payments due from
the Borrower or any Restricted Subsidiary, or for which any claim may be made
against the Borrower or any Restricted Subsidiary, on account of wages and
employee health and welfare insurance and other benefits, have been paid or
accrued as a liability on the books of the Borrower or such Restricted
Subsidiary. The consummation of the Transactions will not give rise to any right
of termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which the Borrower or any Subsidiary is
bound.
SECTION 3.15. Solvency. Immediately after the consummation of the
Transactions to occur on the Effective Date and immediately following the making
of each Loan made on the Effective Date and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets of
each Loan Party, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of each Loan Party will be greater than the amount that will be
required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) each Loan Party will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts and
94
liabilities become absolute and matured; and (d) each Loan Party will not have
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be conducted
following the Effective Date.
SECTION 3.16. Security Documents. (a) The Pledge Agreement is
effective to create in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement) and, when such Collateral is
delivered to the Collateral Agent, the Pledge Agreement shall constitute a fully
perfected first priority Lien on, and security interest in, all right, title and
interest of the pledgor thereunder in such Collateral, in each case prior and
superior in right to any other Person; provided that the actions specified in
Schedule 3.16(a) are required to be taken in connection with the pledge of
capital stock of Foreign Subsidiaries.
(b) The Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Security
Agreement) and, when financing statements in appropriate form are filed in the
offices specified on Schedule 6 to the Perfection Certificate, the Security
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the grantors thereunder in such Collateral
(other than the Intellectual Property (as defined in the Security Agreement)),
in each case prior and superior in right to any other Person, other than with
respect to Liens expressly permitted by Section 6.03.
(c) When the Security Agreement (or a summary thereof) is filed in
the United States Patent and Trademark Office and the United States Copyright
Office, the Security Agreement shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in the
Intellectual Property (as defined in the Security Agreement) in which a security
interest may be perfected by filing, recording or registering a security
agreement, financing statement or analogous document in the United States Patent
and Trademark Office or the United
95
States Copyright Office, as applicable, in each case prior and superior in right
to any other Person (it being understood that subsequent recordings in the
United States Patent and Trademark Office and the United States Copyright Office
may be necessary to perfect a lien on registered trademarks, trademark
applications and copyrights acquired by the Loan Parties after the Effective
Date), other than with respect to Liens permitted by Section 6.03.
(d) The Mortgages are effective to create, subject to the
exceptions listed in each title insurance policy covering such Mortgage, in
favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a
legal, valid and enforceable Lien on all of the Loan Parties' right, title and
interest in and to the Mortgaged Properties thereunder and the proceeds thereof,
and when the Mortgages are filed in the offices specified on Schedule 3.16(d),
the Mortgages shall constitute a fully perfected Lien on, and security interest
in, all right, title and interest of the Loan Parties in such Mortgaged
Properties and the proceeds thereof, in each case prior and superior in right to
any other Person, other than with respect to the rights of Persons pursuant to
Liens expressly permitted by Section 6.03.
SECTION 3.17. Federal Reserve Regulations. (a) Neither the
Borrower nor any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit
will be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose that entails a violation of the
provisions of the Regulations of the Board, including Regulation U or X.
ARTICLE IV
Conditions
96
SECTION 4.01. Effective Date. The amendments to the Original
Credit Agreement effected hereby and the obligations of the Lenders to make the
Loans shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
from the Borrower, the Mexico Borrower and each Lender, either (i) a
counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent and the Syndication Agent shall have
received a favorable written opinion (addressed to the Administrative
Agent, the Syndication Agent and the Lenders and dated the Effective
Date) of each of (i) O'Sullivan Graev & Karabell, LLP, counsel for the
Borrower, substantially addressing the matters set forth in Exhibit B-1,
(ii) Kuri Brena, Sancrez Ugarte, Corcuera y Aznar, counsel for the Mexico
Borrower, substantially in the form of Exhibit B-2, (iii) Stoel Rives
LLP, Utah counsel for the Borrower, substantially in the form of Exhibit
B-3 and (iv) to the extent requested by the Administrative Agent, local
counsel in each jurisdiction where a Mortgaged Property is located,
substantially in a form agreed to by the Administrative Agent, and, in
the case of each such opinion required by this paragraph, covering such
other matters relating to the Loan Parties, the Loan Documents or the
Transactions as the Administrative Agent shall reasonably request. The
Borrower and the Mexico Borrower hereby request such counsel to deliver
such opinions.
(c) The Administrative Agent and the Syndication Agent shall have
received such documents and certificates as the Administrative Agent, the
Syndication Agent or their counsel may reasonably request relating to the
organization, existence and good standing of each Loan Party, the
authorization of the Transactions and any other legal matters relating
97
to the Loan Parties, the Loan Documents or the Transactions, all in form
and substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent and the Syndication Agent shall have
received a certificate, dated the Effective Date and signed by the
President, a Vice President or a Financial Officer of the Borrower,
confirming compliance with the conditions set forth in paragraphs (a) and
(b) of Section 4.02.
(e) The Administrative Agent and the Syndication Agent, as
applicable shall have received all fees and other amounts due and payable
on or prior to the Effective Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by any Loan Party hereunder or under any other Loan
Document.
(f) The Collateral Agent shall have received counterparts of the
Pledge Agreement signed on behalf of the Borrower and each Subsidiary
Loan Party, together with stock certificates representing all the
outstanding shares of capital stock of each Subsidiary owned by or on
behalf of any Loan Party as of the Effective Date after giving effect to
the Transactions (except that such delivery of stock certificates
representing shares of common stock of a Foreign Subsidiary that is not a
Subsidiary Loan Party may be limited to 65% of the outstanding shares of
common stock of such Foreign Subsidiary), promissory notes evidencing all
intercompany Indebtedness owed to any Loan Party by the Borrower or any
Subsidiary as of the Effective Date after giving effect to the
Transactions and stock powers and instruments of transfer, endorsed in
blank, with respect to such stock certificates and promissory notes. The
Collateral Agent shall have received evidence that all actions specified
in Schedule 3.16(a) shall have been taken.
(g) The Collateral Agent shall have received counterparts of the
Security Agreement signed on behalf of the Borrower and each Subsidiary
Loan Party, together with the following:
98
(i) all documents and instruments, including Uniform
Commercial Code financing statements, required by law or
reasonably requested by the Administrative Agent to be filed,
registered or recorded to create or perfect the Liens intended to
be created under the Security Agreement; and
(ii) a completed Perfection Certificate dated the Effective
Date and signed by an executive officer or Financial Officer of
the Borrower, together with all attachments contemplated thereby,
including the results of a search of the Uniform Commercial Code
(or equivalent) filings made with respect to the Loan Parties in
the jurisdictions contemplated by the Perfection Certificate
(other than jurisdictions in which a search was undertaken in the
name of such Loan Party in connection with the execution of the
Original Credit Agreement) and copies of the financing statements
(or similar documents) disclosed by such search and evidence
reasonably satisfactory to the Administrative Agent that the Liens
indicated by such financing statements (or similar documents) are
permitted by Section 6.03 or have been released.
(iii) counterparts of a Mortgage with respect to each
Mortgaged Property signed on behalf of the record owner of such
Mortgaged Property,
(iv) a policy or policies of title insurance issued by a
nationally recognized title insurance company, insuring the Lien
of each such Mortgage as a valid first Lien on the Mortgaged
Property described therein, free of any other Liens except as
permitted by Section 6.03, in form and substance reasonably
acceptable to the Collateral Agent, together with such
endorsements, coinsurance and reinsurance as the Collateral Agent
or the Required Lenders may reasonably request,
(v) copies of all existing surveys and such other
information and documents with respect to
99
the Mortgaged Properties as shall be necessary for the aforesaid
title insurance policies to be issued without a survey exception
and
(vi) such other customary documentation with respect to the
Mortgaged Properties as the Administrative Agent may reasonably
require; provided that with respect to any Mortgaged Property as
to which a Mortgage was recorded prior to the Effective Date, the
requirements of this paragraph shall be limited to such
supplements, amendments and bring-downs as the Collateral Agent
shall request.
(h) The Administrative Agent shall have received (i) counterparts
of the Guarantee Agreement signed on behalf of the Borrower and each
Subsidiary Loan Party and (ii) counterparts of the Indemnity, Subrogation
and Contribution Agreement signed on behalf of the Borrower and each
Subsidiary Loan Party.
(i) The Administrative Agent and the Syndication Agent shall have
received evidence satisfactory to it that the insurance required by
Section 5.07 is in effect.
(j) The Recapitalization Transactions shall be consummated in
accordance with applicable law, the Recapitalization Agreement (without
adverse amendment or waiver thereof not approved by the Lenders) and such
other agreements reasonably satisfactory to the Lenders. In connection
with the Recapitalization Transactions, Investment L.L.C. and certain
co-investors shall have purchased (i) common stock of the Borrower for a
purchase price of not less than $165,300,000 ($65,600,000 as part of the
Equity Contribution and $99,700,000 through the Investor Share Purchase)
and (ii) the Investor Preferred Stock and the warrants to be issued in
connection therewith for a purchase price of not less than $100,000,000
and such proceeds shall have been used in their entirety by the Borrower
to effect the Transactions.
(k) The Lenders shall be satisfied with the proposed capital
structure and ownership of the
100
Borrower and its Subsidiaries after consummation of the Transactions (it
being understood that the capital structure and ownership to the extent
described in the Restatement Information Memorandum are satisfactory).
(l) The Borrower shall have purchased all Existing Notes tendered
(and not withdrawn) pursuant to the Debt Tender Offer and if less than
all the outstanding Existing Notes shall have been so purchased, the
Existing Notes Indenture shall have been amended as provided in the Debt
Tender Offer (without adverse amendment or waiver thereof not approved by
the Lenders), all in accordance with applicable law.
(m) All principal, interest, fees and other amounts outstanding
under the Original Credit Agreement shall have been repaid in full.
(n) After giving effect to the Transactions, the Borrower and its
Subsidiaries shall not have any outstanding Indebtedness or preferred
stock other than (i) the Loans, (ii) the New Senior Subordinated Notes,
(iii) any Remaining Notes, (iv) Indebtedness listed on Schedule 6.01 and
(v) the Investor Preferred Stock. The Lenders shall be satisfied in all
respects with the terms of the Investor Preferred Stock.
(o) The Borrower shall have received gross cash proceeds from the
issuance of the New Senior Subordinated Notes and the Warrants in a
public offering or Rule 144A offering, in an aggregate amount equal to
$214,055,600 less the aggregate principal amount of any Remaining Notes.
The terms of the New Senior Subordinated Documents shall be satisfactory
in all respects to the Lenders (it being understood that the terms
specified in the offering memorandum related to the New Senior
Subordinated Notes and the Warrants dated May 25, 2000 are satisfactory).
(p) All material consents and approvals required to be obtained
from any Governmental Authority or other Person in connection with the
Transactions shall have been obtained, all applicable waiting periods and
appeal periods shall have expired, in each case without the imposition of
any burdensome conditions,
101
and there shall be no action by any Governmental Authority, actual or
threatened, that would restrain, prevent or impose burdensome conditions
on the Transactions.
(q) There shall be no litigation or administrative proceeding that
would have a Material Adverse Effect, or a material adverse effect on the
ability of the parties to consummate the Transactions or the other
transactions contemplated hereby.
(r) The consummation of the Transactions shall not (a) violate any
applicable law, statute, rule or regulation or (b) conflict with, or
result in a default or event of default under, any material indenture or
other agreement of the Borrower or any of their subsidiaries.
Notwithstanding the foregoing, the amendments to the Original Credit Agreement
that would be effected hereby and the obligations of the Lenders to make the
Loans shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 9.02) at or prior to 6:00 p.m., New
York City time, on May 31, 2000 (and, in the event such conditions are not so
satisfied or waived, the Original Credit Agreement shall remain in effect
without giving effect to any amendments thereto contemplated hereby). The
Administrative Agent shall notify the Borrower and the Lenders of the Effective
Date, and such notice shall be conclusive and binding.
SECTION 4.02. Each Credit Event. The obligation of each Lender to
make a Loan on the occasion of any Borrowing, and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to the satisfaction of
the following conditions:
(a) The representations and warranties of each Loan Party set
forth in the Loan Documents qualified as to materiality shall be true and
correct and those not so qualified shall be true and correct in all
material respects on and as of the date of such Borrowing or the date of
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, except to the extent such representations and
102
warranties expressly relate to an earlier date in which case such
representations and warranties shall be true and correct as of such
earlier date.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default shall have occurred and be
continuing.
The making of any Loan on the occasion of each Borrowing and each issuance,
amendment, renewal or extension of a Letter of Credit shall be deemed to
constitute a representation and warranty by the Borrower on the date thereof as
to the matters specified in paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the
Borrower, its audited consolidated balance sheet and related statements
of operations, stockholders' equity and cash flows as of the end of and
for such year, setting forth in each case in comparative form the figures
for the previous fiscal year, all reported on by Arthur Andersen LLP or
other independent public accountants of recognized national standing
(without a "going concern" or like qualification or exception and without
any qualification or exception as to the scope of such audit other than
as to Unrestricted Subsidiaries) to
103
the effect that such consolidated financial statements present fairly in
all material respects the financial condition and results of operations
of the Borrower and its consolidated Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, its consolidated balance
sheet and related statements of operations, stockholders' equity and cash
flows as of the end of and for such fiscal quarter and the then elapsed
portion of the fiscal year, setting forth in each case in comparative
form the figures for the corresponding period or periods of (or, in the
case of the balance sheet, as of the end of) the previous fiscal year,
all certified by one of its Financial Officers as presenting fairly in
all material respects the financial condition and results of operations
of the Borrower and its consolidated Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Borrower (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations with respect to compliance with Sections
6.09, 6.13, 6.14 and 6.15, (iii) setting forth a reasonably detailed
calculation of the Borrower Amount, (iv) stating whether any change in
GAAP or in the application thereof has occurred since the date of the
Borrower's audited financial statements referred to in Section 3.04 and,
if any such change has occurred, specifying the effect of such change on
the financial statements accompanying such certificate and (v) if any
Unrestricted Subsidiary exists (or existed at any time during the period
covered by such financial statements), attaching consolidating balance
sheets and income statements as of the same dates and covering the same
104
periods, certified as to the fair presentation thereof in accordance with
GAAP as provided in Section 5.01(b);
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during
the course of their examination of such financial statements of any
Default (which certificate may be limited to the extent required by
accounting rules or guidelines);
(e) not later than 30 days following the commencement of each
fiscal year of the Borrower, a detailed consolidated budget for such
fiscal year (including a projected consolidated balance sheet and related
statements of projected operations and cash flow as of the end of and for
such fiscal year) and, promptly when available, any significant revisions
of such budget;
(f) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials
filed by the Borrower or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange,
as the case may be; and
(g) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any Subsidiary, or compliance with the terms
of any Loan Document, as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.02. Notices of Material Events. The Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
105
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or, to the
knowledge of an executive officer or a Financial Officer of the Borrower,
affecting the Borrower or any Affiliate thereof that would reasonably be
expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, would reasonably be expected
to result in liability of the Borrower and its Subsidiaries in an
aggregate amount exceeding $10,000,000; and
(d) any other development that results in, or would reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Information Regarding Collateral. The Borrower
and/or the Mexico Borrower will furnish to the Administrative Agent prompt
written notice of any change (i) in any Loan Party's corporate name or in any
trade name used to identify it in the conduct of its business or in the
ownership of its properties, including any such change arising as a result of
Section 6.10 of the Recapitalization Agreement, (ii) in the location of any Loan
Party's chief executive office, its principal place of business, any office in
which it maintains books or records relating to Collateral owned by it or any
office or facility at which Collateral owned by it having an aggregate fair
value in excess of $100,000 is located (including the establishment of any such
new office or facility), (iii) in any Loan Party's identity or corporate
structure, (iv) in any Loan Party's Federal Taxpayer Identification Number or
(v) in any Loan Party's jurisdiction of incorporation. The Borrower agrees not
to effect or permit any change referred to in the preceding sentence unless all
filings have been made under the Uniform Commercial Code or otherwise that are
required in order for the Administrative Agent to
106
continue at all times following such change to have a valid, legal and perfected
security interest in all the Collateral; provided that the Administrative Agent
shall take any action reasonably requested by the Borrower to maintain a valid,
legal and perfected security interest in all the Collateral.
SECTION 5.04. Existence; Conduct of Business. The Borrower will,
and will cause each of its Restricted Subsidiaries to, do or cause to be done
all things necessary to preserve, renew and keep in full force and effect its
legal existence and the rights, licenses, permits, privileges, franchises,
patents, copyrights, trademarks and trade names material to the conduct of the
business of the Borrower and its Restricted Subsidiaries, taken as a whole;
provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.04.
SECTION 5.05. Payment of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, pay (i) all material Taxes and other charges
of any Governmental Authority imposed on it or any of its properties or assets
or in respect of any of its franchises, business, income or property before any
material penalty or interest accrues thereon and (ii) all claims (including
claims for labor, services, materials and supplies) for sums that have become
due and payable and that by law have or may become a Lien (other than a Lien
permitted under Section 6.03) upon any of the property or assets of the Borrower
or any of its Subsidiaries, prior to the time when any penalty or fine shall be
incurred with respect thereto, except where (a) the validity or amount thereof
is being contested in good faith by appropriate procedures or proceedings, (b)
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP, (c) such contest effectively
suspends collection of the contested obligation and the enforcement of any Lien
securing such obligation and (d) the failure to make payment pending such
contest would not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.06. Maintenance of Properties. The Borrower will, and
will cause each of its Restricted
107
Subsidiaries to, keep and maintain all property material to the conduct of the
business of the Borrower and its Restricted Subsidiaries taken as a whole in
good working order and condition, ordinary wear and tear excepted.
SECTION 5.07. Insurance. The Borrower will, and will cause each of
its Restricted Subsidiaries to, maintain insurance with respect to its material
properties and business against loss or damage of the kinds customarily insured
against by Persons engaged in the same or similar business, of such types and in
such amounts as are customarily carried under similar circumstances by such
other Persons. Such insurance shall be maintained with financially sound and
reputable insurers, except that a portion of such insurance program (not to
exceed that which is customary in the case of companies engaged in the same or
similar business or having similar properties similarly situated) may be
effected through self-insurance, provided adequate reserves therefor, in
accordance with GAAP, are maintained. All insurance policies or certificates (or
certified copies thereof) with respect to such insurance (A) shall be endorsed
to the Collateral Agent's reasonable satisfaction for the benefit of the Lenders
(including, without limitation, by naming the Collateral Agent as loss payee or
additional insured, as appropriate); and (B) shall state that such insurance
policy shall not be canceled or revised without thirty days' prior written
notice thereof by the insurer to the Administrative Agent and (iii) furnish to
the Administrative Agent, on the Effective Date and on the date of delivery of
each annual financial statement, full information as to the insurance carried.
At any time that insurance at levels described in Schedule 5.07 is not being
maintained by or on behalf of the Borrower or any of its Restricted
Subsidiaries, the Borrower will notify the Lenders in writing within two
Business Days thereof and, if thereafter notified by the Administrative Agent or
the Required Lenders to do so, the Borrower or any such Restricted Subsidiary,
as the case may be, shall obtain insurance at such levels at least equal to
those set forth on Schedule 5.07, provided that such insurance can be obtained
at commercially reasonable rates.
SECTION 5.08. Casualty and Condemnation. (a) The Borrower will
furnish to the Administrative Agent and the Lenders prompt written notice of any
casualty or other
108
insured damage to any portion of any Collateral or the commencement of any
action or proceeding for the taking of any Collateral or any part thereof or
interest therein under power of eminent domain or by condemnation or similar
proceeding, where the fair market value of the Collateral so affected in
connection with any such casualty event or condemnation is at least $1,000,000.
(b) If any event described in paragraph (a) of this Section
results in Net Proceeds (whether in the form of insurance proceeds, condemnation
award or otherwise), the Collateral Agent is authorized to collect such Net
Proceeds and, if received by the Borrower or any Subsidiary, such Net Proceeds
shall be paid over to the Collateral Agent; provided that (i) if the aggregate
Net Proceeds in respect of such event (other than proceeds of business
interruption insurance) are less than $5,000,000, such Net Proceeds shall be
paid over to the Borrower unless a Default has occurred and is continuing, and
(ii) all proceeds of business interruption insurance shall be paid over to the
Borrower unless a Default has occurred and is continuing. All such Net Proceeds
retained by or paid over to the Collateral Agent shall be held by the Collateral
Agent and released from time to time to pay the costs of repairing, restoring or
replacing the affected property or funding expenditures for assets in any
business permitted under Section 6.04(b), in each case in accordance with the
terms of the applicable Security Document, subject to the provisions of the
applicable Security Document regarding application of such Net Proceeds during a
Default.
(c) If any Net Proceeds retained by or paid over to the Collateral
Agent as provided above continue to be held by the Collateral Agent on the date
that is 365 days after the receipt of such Net Proceeds, then such Net Proceeds
shall be applied to prepay Term Borrowings as provided in Section 2.11(b),
subject to Section 2.11(e).
SECTION 5.09. Books and Records; Inspection and Audit Rights. 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 are made in all
material respects of all dealings and transactions in relation to its business
and activities. The Borrower will, and will cause each of its Subsidiaries to,
permit
109
any representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants (and the Borrower
shall be provided the opportunity to participate in any such discussions with
such independent accountants), all at such reasonable times and as often as
reasonably requested.
SECTION 5.10. Compliance with Laws. The Borrower will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property, including
Environmental Laws except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.11. Use of Proceeds and Letters of Credit. The proceeds
of the Term Loans will be used solely to (a) effect the Equity Redemption, (b)
purchase any Existing Notes tendered (and not withdrawn) pursuant to the Debt
Tender Offer, including any premium associated therewith, (c) pay the
Transaction Costs and (d) repay the outstanding loans under the Original Credit
Agreement. The proceeds of the Revolving Loans and Swingline Loans will be used
on the Effective Date to fund a portion of the items described in the
immediately preceding sentence and thereafter solely for general corporate
purposes, including (i) Permitted Acquisitions and (ii) the purchase of
Remaining Notes from time to time following the Effective Date at prices not
exceeding the price payable pursuant to the Debt Tender Offer. No part of the
proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Board,
including Regulations U and X. Letters of Credit will be issued only for general
corporate purposes.
SECTION 5.12. Additional Subsidiaries. If any additional
Subsidiary is formed or acquired after the Effective Date, the Borrower will
notify the Administrative Agent and the Lenders thereof and (a) if such
Subsidiary is a Subsidiary Loan Party, the Borrower will cause such Subsidiary
to become a party to the Guarantee Agreement, the Indemnity, Subrogation and
Contribution Agreement and
110
each applicable Security Document in the manner provided therein within three
Business Days after such Subsidiary is formed or acquired and promptly take such
actions to create and perfect Liens on such Subsidiary's assets to secure the
Obligations as the Administrative Agent or the Required Lenders shall reasonably
request and (b) if such Subsidiary is a Restricted Subsidiary and any shares of
capital stock or Indebtedness of such Subsidiary are owned by or on behalf of
any Loan Party, the Borrower will cause such shares and promissory notes
evidencing such Indebtedness to be pledged pursuant to the Pledge Agreement
within three Business Days after such Subsidiary is formed or acquired (except
that, if such Subsidiary is a Foreign Subsidiary and is not a Subsidiary Loan
Party, shares of common stock of such Subsidiary that are owned by or on behalf
of the Borrower or a Subsidiary Loan Party and that are to be pledged pursuant
to the Pledge Agreement may be limited to 65% of the outstanding shares of
common stock of such Subsidiary).
SECTION 5.13. Further Assurances. (a) The Borrower will, and will
cause each Subsidiary Loan Party to, execute any and all further documents,
financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture
filings, mortgages, deeds of trust and other documents), that may be required
under any applicable law, or which the Administrative Agent or the Required
Lenders may reasonably request, to effectuate the transactions contemplated by
the Loan Documents or to grant, preserve, protect or perfect the Liens created
or intended to be created by the Security Documents or the validity or priority
of any such Lien, all at the expense of the Loan Parties. The Borrower also
agrees to provide to the Administrative Agent, from time to time upon request,
evidence reasonably satisfactory to the Administrative Agent as to the
perfection and priority of the Liens created or intended to be created by the
Security Documents.
(b) If any material assets (including any real property or
improvements thereto or any interest therein) are acquired by the Borrower or
any Subsidiary Loan Party after the Effective Date (other than assets
constituting Collateral under the Security Agreement that become subject
111
to the Lien of the Security Agreement upon acquisition thereof), the Borrower
will notify the Administrative Agent and the Lenders thereof, and, if requested
by the Administrative Agent or the Required Lenders, the Borrower will cause
such assets to be subjected to a Lien securing the Obligations and will take,
and cause the Subsidiary Loan Parties to take, such actions as shall be
necessary or reasonably requested by the Administrative Agent to grant and
perfect such Liens, including actions described in paragraph (a) of this
Section, all at the expense of the Loan Parties, provided that the following
property shall not be covered by this Section 5.13(b): (i) intellectual property
a security interest in which would require filings or recordations under laws
other than the laws of the United States or any jurisdiction thereof, (ii) owned
real estate or leasehold interests with an aggregate fair market value of less
than $10,000,000, (iii) any other items of tangible personal property with, in
each case, a fair market value of less than $500,000 and (iv) items explicitly
excluded by exceptions in the Security Agreement, the Pledge Agreement or any
other Security Document.
SECTION 5.14. Interest Rate Hedging. The Borrower will enter into
prior to December 31, 2000, and thereafter to maintain for successive periods of
not less than three years, Bank Hedge Agreements, the effect of which shall be
to ensure that at least 50% of the sum of (a) the outstanding Term Loans and (b)
the outstanding Senior Subordinated Notes of the Borrower and its consolidated
Subsidiaries is effectively subject to a fixed rate of interest.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been paid in
full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees with
the Lenders that:
112
SECTION 6.01. Indebtedness. The Borrower will not, and will not
permit any Restricted Subsidiary to, create, incur, assume or permit to exist
any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Effective Date and set forth in
Schedule 6.01 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof;
(iii) Indebtedness of the Borrower to any Restricted Subsidiary
and of any Restricted Subsidiary to the Borrower or any other Restricted
Subsidiary; provided that Indebtedness of any Restricted Subsidiary that
is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be
subject to Section 6.05;
(iv) Guarantees by the Borrower of Indebtedness of any Restricted
Subsidiary, Joint Venture or Unrestricted Subsidiary and by any
Restricted Subsidiary of Indebtedness of the Borrower, any other
Restricted Subsidiary, any Joint Venture or any Unrestricted Subsidiary;
provided that (i) Guarantees by the Borrower or any Subsidiary Loan Party
of Indebtedness of any Restricted Subsidiary that is not a Loan Party,
and Guarantees by the Borrower or any Restricted Subsidiary of
Indebtedness of a Joint Venture or an Unrestricted Subsidiary, in each
case shall be subject to Section 6.05 and (ii) any Guarantee of the
Senior Subordinated Notes by a Restricted Subsidiary shall be
subordinated on the same terms as the Senior Subordinated Notes and shall
be given only by a Restricted Subsidiary that is a Subsidiary Loan Party
that is a party to the Guarantee Agreement;
(v) Indebtedness of the Borrower or any Restricted Subsidiary
incurred to finance the acquisition, construction or improvement of any
fixed or capital assets, including Capital Lease Obligations
113
and any Indebtedness assumed in connection with the acquisition of any
such assets or secured by a Lien on any such assets prior to the
acquisition thereof, including Capital Lease Obligations incurred
pursuant to transactions permitted by Section 6.07, and extensions,
renewals and replacements of any such Indebtedness that do not increase
the outstanding principal amount thereof; provided that (A) such
Indebtedness is incurred prior to or within 120 days after such
acquisition or the completion of such construction or improvement and (B)
the aggregate principal amount of Indebtedness permitted by this clause
(v) and clause (vi) below shall not exceed $25,000,000 at any time
outstanding;
(vi) Indebtedness of any Person that becomes a Restricted
Subsidiary after the Effective Date and extensions, renewals and
replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; provided that (A) such Indebtedness
exists at the time such Person becomes a Restricted Subsidiary and is not
created in contemplation of or in connection with such Person becoming a
Restricted Subsidiary and (B) the aggregate principal amount of
Indebtedness permitted by this clause (vi) and clause (v) above shall not
exceed $25,000,000 at any time outstanding;
(vii) the New Senior Subordinated Notes in an aggregate principal
amount not exceeding the principal amount thereof issued on or prior to
the Effective Date and any Remaining Notes;
(viii) unsecured Indebtedness representing the deferred purchase
price for Permitted Acquisitions; provided that (a) no Restricted
Subsidiary shall be liable (pursuant to a Guarantee or otherwise) for any
such Indebtedness incurred in connection with any Permitted Acquisition
other than any Restricted Subsidiary resulting from such Permitted
Acquisition, (b) any financial covenants relating to such Indebtedness
shall be no more restrictive to the Borrower and its Subsidiaries than,
and the other material terms with respect to such Indebtedness shall be
no more restrictive to the Borrower and its
114
Restricted Subsidiaries, taken as a whole, than, the equivalent such
covenants and terms contained in this Agreement and (c) the aggregate
principal amount of Indebtedness permitted by this clause (viii) shall
not exceed $15,000,000 at any time outstanding;
(ix) Indebtedness with respect to surety, appeal and performance
bonds obtained by the Borrower or any of its Restricted Subsidiaries in
the ordinary course of business;
(x) other Indebtedness (including borrowings under overdraft
facilities) in an aggregate principal amount not exceeding $15,000,000 at
any time outstanding; provided that (a) the aggregate principal amount of
Indebtedness of the Borrower's Restricted Subsidiaries permitted by this
clause (x) shall not exceed $10,000,000 at any time outstanding and (b)
all such Indebtedness shall be unsecured, except that overdraft
facilities may be secured to the extent permitted by clause (f) of
Section 6.03; and
(xi) Permitted Mexico Indebtedness.
SECTION 6.02. Certain Equity Securities. The Borrower will not,
nor will it permit any Restricted Subsidiary to, issue any preferred stock
(other than Qualified Preferred Stock) or be or become liable in respect of any
obligation (contingent or otherwise) to purchase, redeem, retire, acquire or
make any other payment in respect of any shares of capital stock of the Borrower
or any Restricted Subsidiary or any option, warrant or other right to acquire
any such shares of capital stock, except for (i) the warrants issued in
connection with the Investor Preferred Stock, (ii) the Warrants and (iii)
actions otherwise permitted under Section 6.09.
SECTION 6.03. Liens. The Borrower will not, and will not permit
any Restricted Subsidiary to, create, incur, assume or permit to exist any Lien
on any property or asset now owned or hereafter acquired by it, or assign or
sell any income or revenues (including accounts receivable) or rights in respect
of any thereof, except:
(a) Liens created under the Loan Documents;
115
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of the Borrower or any
Restricted Subsidiary existing on the Effective Date and set forth in
Schedule 6.03; provided that (i) such Lien shall not apply to any other
property or asset of the Borrower or any Restricted Subsidiary, except
assets financed by the same financing source and (ii) such Lien shall
secure only those obligations that it secures on the Effective Date and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(d) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the
Effective Date prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary, as
the case may be, (ii) such Lien shall not apply to any other property or
assets of the Borrower or any Restricted Subsidiary, except assets
financed by the same financing source and (iii) such Lien shall secure
only those obligations that it secures on the date of such acquisition or
the date such Person becomes a Subsidiary, as the case may be and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(e) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Restricted Subsidiary; provided that (i)
such Liens secure Indebtedness permitted by clause (v) of Section 6.01,
(ii) such Liens and the Indebtedness secured thereby are incurred prior
to or within 120 days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby does
not exceed 100% of the cost of acquiring, constructing or improving such
fixed or capital assets and other fixed or capital assets being financed
by the same financing source and (iv) such
116
security interests shall not apply to any other property or assets of the
Borrower or any Restricted Subsidiary other than (A) property directly
related to such fixed or capital assets and of a type customarily covered
by such Liens, except that such security interests may not apply to any
accounts receivable or inventory and (B) other assets then being financed
by the same financing source;
(f) Liens securing Indebtedness under (i) the Borrower's domestic
overdraft facilities in an amount not exceeding $10,000,000 and (ii)
foreign overdraft facilities of Foreign Subsidiaries in an amount not
exceeding $10,000,000; provided that Liens permitted by clause (ii) shall
apply only to properties and assets of Foreign Subsidiaries;
(g) leases and subleases of real property and tangible personal
property and licenses and sublicenses of intellectual property rights, in
each case granted in the ordinary course of business and not interfering
individually or in the aggregate (with all such licenses and subleases
being taken as a whole) in any material respect with the conduct of the
business of the Borrower and the Subsidiaries; and
(h) Liens to secure compensation and indemnity obligations to the
trustee under the indenture for the New Senior Subordinated Notes and the
warrant agent under the warrant agreement for the Warrants.
SECTION 6.04. Fundamental Changes. (a) The Borrower will not and
will not permit any Restricted Subsidiary to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Default shall have occurred and be continuing (i)
any Restricted Subsidiary may merge into the Borrower in a transaction in which
the Borrower is the surviving corporation, (ii) any Restricted Subsidiary may
merge into any Subsidiary Loan Party in a transaction in which the surviving
entity is a Subsidiary Loan Party, (iii) any Restricted Subsidiary that is not a
Loan Party may merge into any Restricted Subsidiary that is not a Loan Party,
117
(iv) any Subsidiary may merge into any other Person that becomes a Subsidiary
Loan Party in connection with a Permitted Acquisition, (v) any Restricted
Subsidiary may liquidate or dissolve if the Borrower determines in good faith
that such liquidation or dissolution is in the best interests of the Borrower
and is not materially disadvantageous to the Lenders; provided that any such
merger involving a Person that is not a Wholly Owned Subsidiary immediately
prior to such merger shall not be permitted unless also permitted by Section
6.05 and (vi) the Borrower may merge with an Affiliate incorporated under the
laws of the State of Delaware solely for the purpose of incorporating or
organizing the Borrower under the laws of the State of Delaware.
(b) The Borrower will not, and will not permit any of its
Restricted Subsidiaries to, engage to any material extent in any business other
than businesses of the type conducted by the Borrower and its Subsidiaries on
the Effective Date and businesses reasonably related, ancillary or complementary
thereto.
SECTION 6.05. Investments, Loans, Advances, Guarantees and
Acquisitions. The Borrower will not, and will not permit any of its Restricted
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a Wholly Owned Subsidiary prior to such merger) any
capital stock, evidences of indebtedness or other securities (including any
option, warrant or other security granting the right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment in, any other Person,
or purchase or otherwise acquire (in one transaction or a series of
transactions) any assets of any other Person constituting a business unit,
except:
(a) Permitted Investments;
(b) investments set forth on Schedule 6.05, to the extent such
investments would not be permitted under any other clause of this
Section;
(c) investments by the Borrower and its Restricted Subsidiaries in
the capital stock of
118
Restricted Subsidiaries; provided that (i) any such shares of capital
stock owned by a Loan Party shall be pledged pursuant to the Pledge
Agreement (subject to the limitations applicable to common stock of a
Foreign Subsidiary that is not a Subsidiary Loan Party, referred to in
Section 5.12) and (ii) the amount of such investments by the Loan Parties
in Restricted Subsidiaries that are not Loan Parties, plus the amount of
all loans and advances referred to in clause (d) below that are made by
Loan Parties to Restricted Subsidiaries that are not Loan Parties, plus
the amount of Indebtedness referred to in clause (e) below of Restricted
Subsidiaries that are not Loan Parties that is Guaranteed by any Loan
Party, shall not exceed $10,000,000 in the aggregate at any time
outstanding; provided further that (A) investments in, loans and advances
to, and Guarantees of Indebtedness of, the Mexico Borrower and its
subsidiaries shall be permitted without regard to the limitations of
clause (ii) of the foregoing proviso, provided that the aggregate amount
thereof at any time outstanding in reliance upon this clause (A) shall
not exceed $15,000,000, in addition to any amounts permitted as
investments in, loans and advances to, and Guarantees of Indebtedness of,
the Mexico Borrower and its subsidiaries pursuant to clause (ii) of the
foregoing proviso, and (B) the Mexico Term Loans and Guarantees thereof
shall be disregarded for purposes of determining compliance with the
foregoing limitations;
(d) loans or advances made by the Borrower to any Restricted
Subsidiary and made by any Restricted Subsidiary to the Borrower or any
other Restricted Subsidiary; provided that any such loans and advances
made by a Loan Party shall be evidenced by a promissory note pledged
pursuant to the Pledge Agreement and the amount of all such loans and
advances by Loan Parties to Subsidiaries that are not Loan Parties shall
not exceed the limitations set forth in clause (c) above;
(e) Guarantees constituting Indebtedness permitted by Section
6.01; provided that (i) the amount of Indebtedness (other than the Mexico
Term Loans) of Restricted Subsidiaries that are not Loan
119
Parties that is Guaranteed by any Loan Party shall not exceed $10,000,000
in the aggregate at any time outstanding and (ii) the amount of
Indebtedness of Joint Ventures and Unrestricted Subsidiaries that is
Guaranteed by the Borrower or any Restricted Subsidiary shall be subject
to the limitations of clause (i) below;
(f) Guarantees by the Borrower or any Restricted Subsidiary of the
obligations (other than Indebtedness) of the Borrower or any Restricted
Subsidiary, which obligations are permitted by this Agreement;
(g) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers, in each case in the ordinary course of
business;
(h) the Permitted Acquisitions; provided that at the time of and
after giving effect to the consummation of any Permitted Acquisition the
sum of the unused Revolving Commitments and the Borrower's and Restricted
Subsidiaries' Permitted Investments and cash balances shall not be less
than $15,000,000;
(i) investments in Joint Ventures and Unrestricted Subsidiaries in
an aggregate amount, on a cumulative basis subsequent to the Effective
Date, not exceeding the sum of (i) $25,000,000, plus (ii) the aggregate
amount of dividends, interest, principal payments and returns of capital
received after the Effective Date by the Borrower and its Restricted
Subsidiaries in respect of investments made under this clause (i), plus
(iii) the unutilized portion of the Borrower Amount as of the date of
investment, provided that (A) the aggregate amount invested in Joint
Ventures and in Unrestricted Subsidiaries subsequent to the Effective
Date (excluding amounts invested in reliance upon clause (ii) above)
shall not at any time exceed $50,000,000, (B) if an Unrestricted
Subsidiary is declared to be a Restricted Subsidiary, compliance with the
foregoing limitations shall thereafter be
120
determined as though such Subsidiary had never been an Unrestricted
Subsidiary and (C) for purposes of determining compliance with the
foregoing limitations, any Guarantee by the Borrower or any Restricted
Subsidiary of Indebtedness or other monetary obligations of a Joint
Venture or Unrestricted Subsidiary shall be deemed to constitute an
investment therein in an amount equal to the Indebtedness or other
monetary obligations so Guaranteed;
(j) loans or advances to employees, officers, directors or
consultants of the Borrower and the Subsidiaries in their capacity as
such, for the purpose of acquiring capital stock of the Borrower;
(k) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as
expenses for accounting purposes and that are made in the ordinary course
of business;
(l) investments of any Person existing at the time such Person
becomes a Restricted Subsidiary or at the time such Person merges or
consolidates with the Borrower or any of its Restricted Subsidiaries, in
either case in compliance with the terms of this Agreement, provided that
such investments were not made by such Person in connection with, or in
anticipation or contemplation of, such Person becoming a Restricted
Subsidiary or such merger or consolidation;
(m) Hedging Agreements entered into in the ordinary course of
business;
(n) other loans, advances and investments not in excess of
$15,000,000 outstanding at any time; and
(o) notes or other evidence of Indebtedness acquired as
consideration in connection with a sale, transfer, lease or other
disposition of any asset by the Borrower or any of the Restricted
Subsidiaries.
SECTION 6.06. Asset Sales. The Borrower will not, and will not
permit any of its Restricted Subsidiaries
121
to, sell, transfer, lease or otherwise dispose of any asset, including any
capital stock (other than any such sale, transfer, lease or other disposition
resulting from any casualty or condemnation of any assets of the Borrower or any
of its Subsidiaries), nor will the Borrower permit any of its Restricted
Subsidiaries to issue any additional shares of its capital stock or other
ownership interest in such Restricted Subsidiary, except:
(a) sales of inventory, used or surplus tangible property and
Permitted Investments in the ordinary course of business;
(b) sales, transfers, issuances and dispositions to the Borrower
or a Restricted Subsidiary; provided that any such sales, transfers or
dispositions involving a Restricted Subsidiary that is not a Loan Party
shall be made in compliance with Section 6.10;
(c) leases and licenses entered into in the ordinary course of
business;
(d) sales in connection with sale-leasebacks permitted under
Section 6.07;
(e) sales of investments referred to in clauses (a), (b), (g),
(i), (m), (n) and (o) of Section 6.05;
(f) sales, transfers and dispositions of assets (other than
capital stock of a Subsidiary) that are not permitted by any other clause
of this Section; provided that the aggregate fair market value of all
assets sold, transferred or otherwise disposed of in reliance upon this
clause (f) shall not, in the aggregate, exceed $50,000,000 during the
term of this Agreement; and
(g) sales, transfers and dispositions of Foreign Assets; and
(h) transfers and dispositions constituting investments permitted
under Section 6.05;
provided that all sales, transfers, leases and other dispositions permitted
hereby (other than those permitted
122
by clause (b) above) shall be made for an amount not less than fair value (as
determined in good faith by the Board of Directors of the Borrower), or, in the
case of clause (d) above, for an amount, if less, equal to the aggregate cost
expended for the property that is the subject of such sale-leaseback (except
that those permitted by clause (a) above shall be made on terms that are
customary in the ordinary course) and for consideration at least 80% of which is
(i) cash, (ii) in the form of properties or assets to be owned by the Borrower
or any Subsidiary Loan Party for use in a business permitted by this Agreement
or (iii) voting capital stock in one or more Persons engaged in a Permitted
Business that are or are to become Subsidiary Loan Parties in connection with
such transaction (provided that, in the case of clauses (ii) and (iii), the
applicable transaction involves a Permitted Acquisition). For purposes of this
Section 6.06, the following shall be deemed to be cash: (a) the assumption of
any liabilities of the Borrower or any Restricted Subsidiary with respect to,
and the release of the Borrower or such Restricted Subsidiary from all liability
in respect of, any Indebtedness of the Borrower or the Restricted Subsidiaries
permitted hereunder (in the amount of such Indebtedness) in connection with a
sale, transfer, lease or other disposition permitted under Section 6.06 and (b)
securities received by the Borrower or any Restricted Subsidiary from the
transferee that are immediately convertible into cash without breach of their
terms or the agreement pursuant to which they were purchased and that are
promptly converted by the Borrower or such Restricted Subsidiary into cash.
SECTION 6.07. Sale and Lease-Back Transactions. The Borrower will
not, and will not permit any Restricted Subsidiary to, enter into any
arrangement, directly or indirectly, with any Person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred, except for any such sale of
fixed or capital assets that is consummated within 120 days after the date the
Borrower or such Restricted Subsidiary acquires or finishes construction of such
fixed or capital asset.
123
SECTION 6.08. Hedging Agreements. The Borrower will not, and will
not permit any of its Restricted Subsidiaries to, enter into any Hedging
Agreement, other than Hedging Agreements entered into in the ordinary course of
business to hedge or mitigate risks to which the Borrower or any Restricted
Subsidiary is or expects to be exposed in the conduct of its business or the
management of its liabilities.
SECTION 6.09. Restricted Payments; Certain Payments of
Indebtedness. (a) The Borrower will not, and will not permit any Restricted
Subsidiary to, declare or make, or agree to pay or make, directly or indirectly,
any Restricted Payment, except (i) Wholly Owned Subsidiaries may declare and pay
dividends with respect to their capital stock and Restricted Subsidiaries that
are not Wholly Owned Subsidiaries may declare and pay dividends ratably with
respect to their capital stock, (ii) the Borrower may make payments of purchase
price adjustments to shareholders or former shareholders of the Borrower in
accordance with the Recapitalization Agreement (as in effect on the Effective
Date), (iii) the Borrower may, subject to Section 6.02, make dividends
consisting solely of shares of its capital stock and (iv) the Borrower may make
Restricted Payments to management or employees of the Borrower and its
Subsidiaries or their Permitted Transferees (as defined in the Stockholders
Agreement) during any fiscal year in amount not to exceed the amount set forth
below opposite such year, pursuant to and in accordance with the Stockholders
Agreement, employment agreements, stock option plans or agreements or other
benefit plans or agreements:
Year Ending December 31 Amount
- ----------------------- ------
2000 $10,000,000
2001 $12,000,000
2002 $14,000,000
2003 $16,000,000
2004 $18,000,000
2005 and each fiscal year thereafter $20,000,000
124
(b) The Borrower will not, and will not permit any Subsidiary to,
make or agree to pay or make, directly or indirectly, any payment or other
distribution (whether in cash, securities or other property) of or in respect of
principal of or interest on any Senior Subordinated Note, or any payment or
other distribution (whether in cash, securities or other property), including
any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of any Senior Subordinated
Note, except (i) payment of regularly scheduled interest payments as and when
due in respect of the Senior Subordinated Notes and (ii) purchases of any
Remaining Notes from time to time following the Effective Date at prices not
exceeding the price payable pursuant to the Debt Tender Offer, including
pursuant to a change of control offer pursuant to the Existing Indenture arising
as a result of the Transactions.
SECTION 6.10. Transactions with Affiliates. The Borrower will not,
and will not permit any Restricted Subsidiary to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates (including any Subsidiary), except (a) transactions in the
ordinary course of business that are at prices and on terms and conditions not
less favorable to the Borrower or such Restricted Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties (as determined in
good faith by members of the Board of Directors of the Borrower having a
majority of the voting power held by all disinterested members of the Board of
Directors of the Borrower), (b) transactions between or among the Borrower and
the Subsidiary Loan Parties not involving any other Affiliate (except to the
extent the involvement with the other Affiliate otherwise complies with this
Section 6.10), (c) any Restricted Payment permitted by Section 6.09, and (d)
transactions expressly contemplated by Schedule 6.10.
SECTION 6.11. Restrictive Agreements. The Borrower will not and
will not permit any Restricted Subsidiary to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of the
Borrower or any Restricted Subsidiary to
125
create, incur or permit to exist any Lien upon any of its property or assets, or
(b) the ability of any Restricted Subsidiary to pay dividends or other
distributions with respect to any shares of its capital stock (it being
understood that the priority of any preferred stock in receiving dividends or
liquidating distributions prior to dividends or liquidating distributions being
paid on common stock shall not be deemed a restriction on the ability to make
distributions on capital stock) or to make or repay loans or advances to the
Borrower or any other Restricted Subsidiary (it being understood that the
subordination of loans or advances made to the Borrower or any Restricted
Subsidiary to other Indebtedness incurred by the Borrower or such Restricted
Subsidiary shall not be deemed a restriction on the ability to make loans or
advances) or to Guarantee Indebtedness of the Borrower or any other Restricted
Subsidiary; provided that (i) the foregoing shall not apply to restrictions and
conditions imposed by law or by any Loan Document, (ii) the foregoing shall not
apply to restrictions and conditions existing on the Effective Date identified
on Schedule 6.11, (iii) the foregoing shall not apply to any restriction or
condition with respect to a Restricted Subsidiary pursuant to an agreement
relating to any capital stock or Indebtedness of such Restricted Subsidiary, in
each case incurred by such Restricted Subsidiary prior to the date on which such
Restricted Subsidiary was acquired by the Borrower (other than capital stock or
Indebtedness incurred as consideration in, in contemplation of, or to provide
all or any portion of the funds or credit support utilized to consummate the
transaction or series of related transactions pursuant to which such Restricted
Subsidiary became a Restricted Subsidiary or was otherwise acquired by the
Borrower) and outstanding on such date; (iv) the foregoing shall not apply to
any restriction or condition pursuant to an agreement refinancing an agreement
referred to in clause (i), (ii) or (iii) or this clause (iv) or contained in any
amendment to an agreement referred to in clause (i), (ii) or (iii) or this
clause (iv); provided, however, that the conditions and restrictions contained
in any such refinancing agreement or amendment are no more restrictive, taken as
a whole, than the encumbrances and restrictions contained in the applicable
predecessor agreement; (v) the foregoing shall not apply to customary
restrictions and conditions contained in agreements
126
relating to the sale of a Subsidiary or assets pending such sale, provided such
restrictions and conditions apply only to the Subsidiary or assets that are to
be sold and such sale is permitted hereunder, (vi) clause (a) of the foregoing
shall not apply to restrictions or conditions imposed by any agreement relating
to secured Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness,
(vii) clause (a) of the foregoing shall not apply to customary provisions in
contracts restricting the assignment thereof, or the subletting, assignment or
transfer of any property or asset that is subject to a lease, license or similar
contract; (viii) the foregoing shall not apply to restrictions imposed by any
agreement relating to Indebtedness of a Foreign Subsidiary that applies only to
such Foreign Subsidiary and its assets (including its subsidiaries); (ix) the
foregoing shall not apply to customary provisions in Joint Venture agreements
and other similar agreements entered into in the ordinary course of business;
and (x) the foregoing shall not apply to net worth provisions in lease and other
agreements entered into by the Borrower or any Restricted Subsidiary in the
ordinary course of business.
SECTION 6.12. Amendment of Material Documents. The Borrower will
not, and will not permit any Restricted Subsidiary to, amend, modify or waive
any of its rights under (a) its certificate of incorporation, by-laws or other
organizational documents, including the terms related to the Investor Preferred
Stock (other than amendments and modifications that are not adverse to the
interests of the Lenders and do not impair the exercise of remedies under any
Security Document) or (b) the New Senior Subordinated Notes, any New Senior
Subordinated Note Document or, so long as any Remaining Notes are outstanding,
the Existing Notes Indenture (other than amendments to the Existing Notes
Indenture to be made on the Effective Date as contemplated by the Debt Tender
Offer and other amendments and modifications that are not adverse to the
interests of the Lenders and do not impair the exercise of remedies under any
Security Document).
SECTION 6.13. Capital Expenditures. The Borrower will not make,
and will not permit its Restricted Subsidiaries to make, Capital Expenditures
other than
127
Capital Expenditures made by the Borrower and its Restricted Subsidiaries in any
fiscal year of the Borrower in an aggregate amount not exceeding (a) with
respect to (i) the fiscal year ending on December 31, 2000, $60,000,000 and (ii)
each fiscal year thereafter, $50,000,000 (in either case, the "Permitted
Amount") plus, for each fiscal year following the Effective Date (commencing
with the 2001 fiscal year), an amount equal to the excess, if any, of the
Permitted Amount for the immediately preceding fiscal year over the aggregate
amount of Capital Expenditures made in the immediately preceding fiscal year,
plus (b) amounts available from time to time to be invested in Joint Ventures
and Unrestricted Subsidiaries under clause (i) of Section 6.05, provided that
(i) to the extent that Capital Expenditures are made in reliance upon clause (b)
above, amounts available to be invested in Joint Ventures and Unrestricted
Subsidiaries under clause (i) of Section 6.05 shall be deemed utilized
thereunder for purposes of determining compliance therewith, and (ii) the
Borrower and its Restricted Subsidiaries may make Capital Expenditures in any
fiscal year exceeding the amount otherwise permitted for such fiscal year
pursuant to the foregoing provisions of this Section, provided that the
aggregate amount of Capital Expenditures made in reliance upon this clause (ii),
on a cumulative basis, shall not exceed $30,000,000. The foregoing limitations
shall not apply to (x) expenditures with proceeds resulting from sales of assets
or capital stock or equity issuances or from casualty or condemnation events, in
each case to the extent such expenditures are permitted under this Agreement and
(y) Permitted Acquisitions.
(b) In the event that the Borrower or any Subsidiary makes any
Capital Expenditures in connection with the construction or acquisition of any
fixed or capital asset and the Borrower or any of its Subsidiaries consummates a
sale and lease-back transaction with respect to such fixed or capital asset
within 120 days after the completion of the construction or acquisition of such
fixed or capital asset, the amount of Capital Expenditures set forth in
paragraph (a) for the fiscal year of the Borrower in which the Borrower or its
Restricted Subsidiaries receive the Net Proceeds from such sale and lease-back
transaction shall be increased by an amount equal to the
128
lesser of (A) the amount of such Net Proceeds or (B) the amount of Capital
Expenditures made with respect to such fixed or capital asset during the same
and all prior fiscal years ending on or after December 31, 2000.
SECTION 6.14. Leverage Ratio. The Borrower will not permit the
Leverage Ratio as of the last day of any fiscal quarter during any period set
forth below (inclusive of the specified first and last day of such period) to be
in excess of the ratio set forth below opposite such period:
Period Ratio
------ -----
September 30, 2000 through December 30, 2000 5.50 to 1.00
December 31, 2000 through March 30, 2001 5.00 to 1.00
March 31, 2001 through June 29, 2001 4.90 to 1.00
June 30, 2001 through September 29, 2001 4.75 to 1.00
September 30, 2001 through December 30, 2001 4.50 to 1.00
December 31, 2001 through March 30, 2002 4.25 to 1.00
March 31, 2002 through June 29, 2002 4.00 to 1.00
June 30, 2002 through December 30, 2002 3.75 to 1.00
December 31, 2002 and thereafter 3.50 to 1.00
SECTION 6.15. Interest Coverage Ratio. The Borrower will not
permit the ratio of Consolidated EBITDA to Cash Interest Expense for any period
of four consecutive fiscal quarters ending during any period set forth below
(inclusive of the specified first and last day of such period) to be less than
the ratio set forth below opposite such period:
Period Ratio
------ -----
September 30, 2000 through March 30, 2001 1.75 to 1.00
March 31, 2001 through September 29, 2001 2.00 to 1.00
September 30, 2001 through June 29, 2002 2.25 to 1.00
June 30, 2002 through December 30, 2002 2.50 to 1.00
December 31, 2002 and thereafter 2.75 to 1.00
SECTION 6.16. Designated Senior Debt. The Borrower shall not
designate any Indebtedness (other than indebtedness under the Loan Documents) as
"Designated Senior Debt" for purposes of and as defined in the New Senior
Subordinated Note Documents.
129
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower or the Mexico Borrower shall fail to pay any
principal of any Loan or any reimbursement obligation in respect of any
LC Disbursement when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment thereof
or otherwise;
(b) the Borrower or the Mexico Borrower shall fail to pay any
interest on any Loan or any fee or any other amount (other than an amount
referred to in clause (a) of this Article) payable under this Agreement
or any other Loan Document, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period of three
Business Days;
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with any
Loan Document or any amendment or modification thereof or waiver
thereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with any Loan Document or
any amendment or modification thereof or waiver thereunder, shall have
been incorrect in any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.04 (with respect to
the existence of the Borrower), 5.11 or 5.14 or in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such
130
failure shall continue unremedied for a period of 30 days after notice
thereof from the Administrative Agent to the Borrower (which notice will
be given at the request of any Lender);
(f) the Borrower or any Restricted Subsidiary shall fail to make
any payment (whether of principal or interest and regardless of amount)
in respect of any Material Indebtedness, when and as the same shall
become due and payable, including any applicable grace period;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice) the holder or holders
of any Material Indebtedness or any trustee or agent on its or their
behalf to cause any Material Indebtedness to become due, or to require
the prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled maturity; provided that this clause (g) shall not apply to
secured Indebtedness that becomes due as a result of the voluntary sale,
transfer or other disposition (including as a result of a casualty or
condemnation event) of the property or assets securing such Indebtedness
in a manner not prohibited by this Agreement;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower or any Restricted Subsidiary (other
than Immaterial Subsidiaries) or its debts, or of a substantial part of
its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for the Borrower or any Restricted Subsidiary (other
than Immaterial Subsidiaries) or for a substantial part of its assets,
and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any
of the foregoing shall be entered;
131
(i) the Borrower or any Restricted Subsidiary (other than
Immaterial Subsidiaries) shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization or other relief
under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (h) of this Article, (iii)
apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower
or any Restricted Subsidiary (other than Immaterial Subsidiaries) or for
a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any proceeding
described in clause (h) of this Article, (v) make a general assignment
for the benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;
(j) the Borrower or any Restricted Subsidiary (other than
Immaterial Subsidiaries) shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $10,000,000 (net of amounts covered by insurance as
to which the insurer has not denied liability) shall be rendered against
the Borrower, any Restricted Subsidiary (other than Immaterial
Subsidiaries) or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by
a judgment creditor to attach or levy upon any assets of the Borrower or
any Restricted Subsidiary (other than Immaterial Subsidiaries) to enforce
any such judgment;
(l) an ERISA Event shall have occurred that, in the reasonable
opinion of the Required Lenders, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in
liability of the Borrower and its Subsidiaries in an
132
aggregate amount exceeding (i) $7,000,000 in any year or (ii) $10,000,000
for all periods;
(m) any Lien purported to be created under any Security Document
shall cease to be, or shall be asserted by any Loan Party not to be, a
valid and perfected Lien on any Collateral, with the priority required by
the Loan Documents, except (i) as a result of the sale or other
disposition of the applicable Collateral in a transaction permitted under
the Loan Documents, (ii) as a result of (x) the Collateral Agent's
failure to take any action reasonably requested by the Borrower in order
to maintain a valid and perfected Lien on any Collateral or (y) any
action taken by the Collateral Agent to release any Lien on any
Collateral or (iii) Liens on any item of Collateral with a fair market
value not exceeding $500,000; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
or the Mexico Borrower described in clause (h) or (i) of this Article), and at
any time thereafter during the continuance of such event, the Administrative
Agent may, and at the request of the Required Lenders shall, by notice to the
Borrower and the Mexico Borrower, take either or both of the following actions,
at the same or different times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable (the "remaining Loans") may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations (other than any remaining Loans) of
the Borrower and the Mexico Borrower accrued hereunder, shall become due and
payable immediately, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower and the Mexico Borrower;
and in case of any event with respect to the Borrower or the Mexico Borrower
described in clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal
133
of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower and the
Mexico Borrower.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms of the Loan Documents,
together with such actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.02), and (c) except as
expressly set forth in the Loan Documents, the
134
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that is communicated to or obtained by the bank serving
as Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall not be deemed to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
delivered thereunder or in connection therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document, (iv) the validity, enforceability, effectiveness or
genuineness of any Loan Document or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article IV or elsewhere in
any Loan Document, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower or the Mexico Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
135
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of each Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor to the
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Bank and the Borrower.
Upon any such resignation, the Required Lenders shall have the right, with the
consent of the Borrower (such consent not to be unreasonably withheld), to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent that shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall he discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 9.03 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while it was acting as Administrative
Agent.
136
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
The provisions of this Article shall apply to the Collateral Agent
as though named herein as the Administrative Agent.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower or the Mexico Borrower, to it at 500
Huntsman Way, Salt Lake City 84108, Attention of Scott K. Sorensen
(Telecopy No. (801) 584-5783), with a copy to Ronald G. Moffitt (Telecopy
No. (801) 584-5783);
(b) if to the Administrative Agent or the Collateral Agent, to
Bankers Trust Company, One Bankers Trust Plaza, New York, New York 10006,
Attention of Maria Pina (Telecopy No. (212) 250-2340);
(c) if to the Issuing Bank, to Bankers Trust Company, One Bankers
Trust Plaza, New York, New York
137
10006, Attention of Maria Pina (Telecopy No. (212) 250-2340);
(d) if to the Swingline Lender, to Bankers Trust Company, One
Bankers Trust Plaza, New York, New York 10006, Attention of Maria Pina
(Telecopy No. (212) 250-2340;
(e) if to the Syndication Agent, to The Chase Manhattan Bank, Loan
and Agency Services Group, One Chase Manhattan Plaza, 8th Floor, New
York, New York 10081, Attention of Janet Belden (Telecopy No. (212)
552-5658), with a copy to The Chase Manhattan Bank, 270 Park Avenue, New
York, New York 10017, Attention of Peter Dedousis (Telecopy No. (212)
270-1355); and
(f) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing
Bank and the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of any Loan Document or consent to any departure by
any Loan Party therefrom shall in any event be effective unless the same shall
be permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
138
given. Without limiting the generality of the foregoing, the making of a Loan or
issuance or a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or the
Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or, in the case of any
other Loan Document, pursuant to an agreement or agreements in writing entered
into by the Administrative Agent or Collateral Agent, as applicable, and the
Loan Party or Loan Parties that are parties thereto, in each case with the
consent of the Required Lenders; provided that no such agreement shall (i)
increase the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan or LC
Disbursement, or any interest thereon, or any fees payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date
of expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.18(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender, (v) change any of the provisions of this Section or the
definition of the term "Required Lenders" or any other provision of any Loan
Document specifying the number or percentage of Lenders (or Lenders of any
Class) required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender (or each Lender of such Class, as the case may be), (vi) release any
Subsidiary Loan Party from its Guarantee under the Guarantee Agreement (except
as expressly provided in the Guarantee Agreement), or limit its liability in
respect of such Guarantee, without the written consent of each Lender, (vii)
release all or any substantial part of the Collateral from the Liens of the
Security Documents (except as
139
expressly provided therein), without the written consent of each Lender or
(viii) change any provisions of any Loan Document in a manner that by its terms
adversely affects the rights in respect of payments due to Lenders holding Loans
of any Class differently than those holding Loans of any other Class, without
the written consent of Lenders holding a majority in interest of the outstanding
Loans and unused Commitments of each affected Class; provided further that (A)
no such agreement shall amend, modify or otherwise affect the rights or duties
of the Administrative Agent, the Collateral Agent, the Issuing Bank or the
Swingline Lender without the prior written consent of the Administrative Agent,
the Collateral Agent, the Issuing Bank or the Swingline Lender, as the case may
be, and (B) any waiver, amendment or modification of this Agreement that by its
terms affects the rights or duties under this Agreement of the Revolving Lenders
(but not the Term Loan Lenders) or the Term Loan Lenders (but not the Revolving
Lenders) may be effected by an agreement or agreements in writing entered into
by the Borrower and the percentage in interest of the affected Class of Lenders
that would be required to consent thereto under this Section if such Class of
Lenders were the only Class of Lenders hereunder at the time.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Collateral Agent, the Syndication Agent, the
Documentation Agent, the Arranger and their respective Affiliates (other than
the Sponsor or any Person Controlled by the Sponsor), including the reasonable
fees, charges and disbursements of counsel for the Administrative Agent, the
Collateral Agent, the Syndication Agent, the Documentation Agent and the
Arranger, in connection with the syndication of the credit facilities provided
for herein, the preparation and administration of the Loan Documents or any
amendments, modifications or waivers of the provisions thereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, the Collateral Agent, the Issuing
140
Bank, the Syndication Agent, the Documentation Agent, the Arranger or any
Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Collateral Agent, the Issuing Bank, the Syndication
Agent, the Documentation Agent, the Arranger or any Lender, in connection with
the enforcement or protection of its rights in connection with the Loan
Documents, including its rights under this Section, or in connection with the
Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, the
Collateral Agent, the Issuing Bank, the Syndication Agent, the Documentation
Agent, the Arranger and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee") against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of any Loan Document or any other agreement or instrument
contemplated hereby, the performance by the parties to the Loan Documents of
their respective obligations thereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit
or the use of the proceeds therefrom (including any refusal by the Issuing Bank
to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or Release of
Hazardous Materials on or from any Mortgaged Property or any other property
currently or formerly owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
141
available to the extent that such losses, claims, damages, liabilities or
related expenses resulted from the gross negligence or wilful misconduct of such
Indemnitee or any Affiliate of such Indemnitee (or of any officer, director,
employee, advisor or agent of such Indemnitee or any such Indemnitee's
Affiliates) or to the extent such damages constitute special, indirect or
consequential damages (as opposed to direct or actual damages), and provided,
further, that, for purposes of the foregoing proviso, The Chase Manhattan Bank
and its Affiliates (other than the Sponsor and any Persons Controlled by the
Sponsor) shall not be deemed to be Affiliates of the Sponsor or any Person
Controlled by the Sponsor.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent, the Collateral Agent, the
Issuing Bank, the Syndication Agent, the Documentation Agent, the Arranger or
the Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, the Collateral Agent, the
Issuing Bank, the Syndication Agent, the Documentation Agent, the Arranger or
the Swingline Lender, as the case may be, such Lender's pro rata share
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent, the
Collateral Agent, the Issuing Bank or the Swingline Lender in its capacity as
such. For purposes hereof, a Lender's "pro rata share" shall be determined based
upon its share of the sum of the total Revolving Exposures, outstanding Term
Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, neither the
Borrower nor the Mexico Borrower shall assert, and each hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or
Letter of Credit or the use of the proceeds thereof.
142
(e) All amounts due under this Section shall be payable promptly
after written demand therefor. The Mexico Borrower shall be jointly liable with
the Borrower for all expense reimbursement and indemnification obligations under
this Section that relate to or arise out of the Mexico Term Loans or the Mexico
Borrower.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that
neither the Borrower nor the Mexico Borrower may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower or the
Mexico Borrower without such consent shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Collateral Agent, the Issuing
Bank and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment to a Lender or a Lender Affiliate, each
of the Borrower (only so long as an Event of Default shall not have occurred and
be continuing) and the Administrative Agent (and, in the case of an assignment
of all or a portion of a Revolving Commitment or any Lender's obligations in
respect of its LC Exposure or Swingline Exposure, the Issuing Bank and the
Swingline Lender) must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld), (ii) except in the case of
an assignment to a Lender or a Lender Affiliate or an assignment of the entire
remaining amount of the assigning Lender's Commitment or Loans, the amount of
the Commitment or Loans of the
143
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement, except that this
clause (iii) shall not be construed to prohibit the assignment of a
proportionate part of all the assigning Lender's rights and obligations in
respect of one or more Classes of Commitments or Loans, (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,500;
provided, however, that, in the case of contemporaneous assignments by a Lender
to more than one fund managed by the same investment advisor, only a single
$3,500 fee shall be payable for all such contemporaneous assignments, and (v)
the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent and the Borrower an Administrative Questionnaire; and provided further
that any consent of the Borrower otherwise required under this paragraph shall
not be required if an Event of Default under clause (h) or (i) of Article VII
has occurred and is continuing. Subject to acceptance and recording thereof
pursuant to paragraph (d) of this Section, from and after the effective date
specified in each Assignment and Acceptance the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15, 2.16, 2.17, 9.03 and 9.13). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this paragraph shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (e) of this Section.
144
(c) The Administrative Agent, acting for this purpose as an agent
of the Borrower and the Mexico Borrower shall maintain at one of its offices in
The City of New York a copy of each Assignment and Acceptance delivered to it
and a register for the recordation of the names and addresses of the Lenders,
and the Commitment of, and principal amount of the Loans and LC Disbursements
owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive (absent manifest
error), and the Borrower, the Mexico Borrower, the Administrative Agent, the
Issuing Bank and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Mexico Borrower, the Administrative Agent, the Issuing Bank or the Swingline
Lender, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans owing
to it); provided that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrower,
the Mexico Borrower, the Administrative Agent, the Issuing
145
Bank and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement including with respect to any withholding Taxes or any filing or
reporting requirements relating to such Participant. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce the Loan Documents and to approve
any amendment, modification or waiver of any provision of the Loan Documents;
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (f) of this Section, the Borrower
and the Mexico Borrower agree that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.18(c) as though it were a
Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the Loans or Commitments with respect to
which such participation has been sold to such Participant, unless this
restriction is waived by the Borrower. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 2.17
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower and the Mexico
Borrower, to comply with Section 2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations
146
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
SECTION 9.05. Survival. All covenants, agreements, representations
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, the
Collateral Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.15, 2.16, 2.17, 9.03 and 9.13 and
Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Document and any separate letter agreements with respect to fees
payable to the Administrative Agent or the Issuing Bank constitute the entire
contract among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written, relating to
the subject matter hereof. Except as provided in Section 4.01, this Agreement
shall become effective when it shall have been executed by the Administrative
Agent and when the Administrative Agent shall have received
147
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower or the Mexico Borrower against any of and all the obligations of the
Borrower or the Mexico Borrower now or hereafter existing under this Agreement
or any other Loan Document held by such Lender, irrespective of whether or not
such Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff) that
such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each of the Borrower and the Mexico Borrower hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the
148
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to any Loan Document, or for recognition or enforcement of any
judgment, and each of parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
or any other Loan Document against the Borrower or the Mexico Borrower or its
properties in the courts of any jurisdiction.
(c) Each of the Borrower and the Mexico Borrower hereby
irrevocably and unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this
Agreement or any other Loan Document in any court referred to in paragraph (b)
of this Section. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
149
OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent,
the Collateral Agent, the Syndication Agent, the Documentation Agent, the
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' investment advisors, directors, officers, employees and
agents, including accountants, legal counsel and other advisors (the
"Representatives") and any direct or indirect contractual counterparty in swap
agreements entered into in connection with a Lender's outstanding Loans from
time to time or to such contractual counterparty's professional advisor (it
being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential and, in the case of any such contractual
counterparty or its professional advisor, such persons shall agree in writing to
be bound by the provisions of this Section 9.12), (b) to the extent requested or
demanded by any Governmental Authority or any self-regulatory organization
(including the National Association of Insurance Commissioners or other similar
organization), (c) to the extent required by applicable laws or regulations or
by any subpoena, order or similar legal process; provided that, to the extent
reasonably practicable and not prohibited by applicable laws or regulations or
by any judicial or administrative order, such Person will provide the Borrower
with prior notice of
150
such disclosure, (d) any nationally recognized rating agency that requires
access to information about a Lender's investment portfolio in connection with
ratings issued with respect to such Lender, (e) to any other party to this
Agreement, (f) in connection with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Agreement or any other Loan Document
or the enforcement of rights hereunder or thereunder, (g) subject to an
agreement containing provisions substantially the same as those of this Section,
to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, or (ii)
any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (h) with
the consent of the Borrower or (i) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent, the Collateral Agent, the Issuing
Bank or any Lender on a nonconfidential basis from a source other than the
Borrower, any Subsidiary or any of their Representatives that is not known to
such Person to be subject to any obligation of confidentiality to the Borrower
or any Subsidiary. For the purposes of this Section, "Information" means all
information received from the Borrower, any Subsidiary or any of their
Representatives relating to the Borrower, the Subsidiaries or their businesses,
other than any such information that is available to the Administrative Agent,
the Collateral Agent, the Issuing Bank or any Lender on a nonconfidential basis
prior to disclosure by the Borrower. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 9.13. Conversion of Currencies. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto agrees, to
the fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant
151
jurisdiction the first currency could be purchased with such other currency on
the Business Day immediately preceding the day on which final judgment is given.
(b) The obligations of the Borrower and the Mexico Borrower in
respect of any sum due to any party hereto or any holder of the obligations
owing hereunder (the "Applicable Creditor") shall, notwithstanding any judgment
in a currency (the "Judgment Currency") other than the currency in which such
sum is stated to be due hereunder (the "Agreement Currency"), be discharged only
to the extent that, on the Business Day following receipt by the Applicable
Creditor of any sum adjudged to be so due in the Judgment Currency, the
Applicable Creditor may in accordance with normal banking procedures in the
relevant jurisdiction purchase the Agreement Currency with the Judgment
Currency; if the amount of the Agreement Currency so purchased is less than the
sum originally due to the Applicable Creditor in the Agreement Currency, each of
the Borrower and the Mexico Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Applicable Creditor against
such loss. The obligations of the Borrower and the Mexico Borrower contained in
this Section 9.13 shall survive the termination of this Agreement and the
payment of all other amounts owing hereunder.
SECTION 9.14. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts that are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") that may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with
152
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
SECTION 9.15. Release of Mexico Borrower. If the Mexico Borrower
incurs Permitted Mexico Indebtedness, then, at the option of the Borrower, the
Borrower may assume all or a portion of the obligations of the Mexico Borrower
in respect of the Mexico Term Loans and become the borrower thereof for all
purposes of the Loan Documents. Any such assumption shall be effected pursuant
to an instrument reasonably satisfactory to the Administrative Agent, but
otherwise shall not require the consent of any Lender. Upon the effectiveness of
an assumption made in accordance with this Section, the Mexico Borrower shall be
released from all liability under this Agreement in respect of the obligations
so assumed by the Borrower.
SECTION 9.16. Effectiveness of the Amendment and Restatement;
Original Credit Agreement. This Agreement shall become effective on the
Effective Date, and thereafter shall be binding upon and inure to the benefit of
the parties hereto and the parties to the Original Credit Agreement and their
respective successors and assigns. Until this Agreement becomes effective, the
Original Credit Agreement shall remain in full force and effect and shall not be
affected hereby. After the Effective Date, all obligations of the Borrower and
the Mexico Borrower under the Original Credit Agreement shall become obligations
of the Borrower and the Mexico Borrower hereunder, secured by the Liens granted
under the Security Documents, and the provisions of the Original Credit
Agreement shall be superseded by the provisions hereof. Except as otherwise
expressly stated hereunder, the term of this
153
Agreement is for all purposes deemed to have commenced on the Effective Date.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
HUNTSMAN PACKAGING CORPORATION,
by
/s/ SCOTT K. SORENSEN
-------------------------------
Name: Scott K. Sorensen
Title: Executive Vice President
and Chief Financial
Officer
ASPEN INDUSTRIAL, S.A. DE C.V.,
by
/s/ SCOTT K. SORENSEN
-------------------------------
Name: Scott K. Sorensen
Title: Executive Vice President
and Chief Financial
Officer
BANKERS TRUST COMPANY,
individually and as
Administrative Agent,
by /s/ ROBERT R. TELESCA
-------------------------------
Name: Robert R. Telesca
Title: Assistant Vice President
THE CHASE MANHATTAN BANK, as
Syndication Agent,
by /s/ THOMAS H. KOZLARK
-------------------------------
Name: Thomas H. Kozlark
Title: Vice President
154
THE BANK OF NOVA SCOTIA,
individually and as
Documentation Agent,
by /s/ F.C.H. ASHBY
-------------------------
Name: F.C.H. Ashby
Title: Senior Manager Loan
Operations
THE BANK OF NEW YORK
By /s/ MEHRASA RAYGANI
-------------------------
Name: Mehrasa Raygani
Title: Assistant Vice President
THE CHASE MANHATTAN CORPORATION
By /s/ LOUIS M. MORRELL
-------------------------
Name: Louis M. Morrell
Title: Managing Agents
ERSTE BANK
By /s/ ARCINEE HOVANESSIAN
-------------------------
Name: Arcinee Hovanessian
Title: Vice President
Erste Bank New York
Branch
FIRSTRUST BANK,
By /s/ KENT D. NELSON
-------------------------
Name: Kent D. Nelson
Title: Vice President & Group
Manager
FIRST SECURITY BANK, N.A., as
Managing Agent,
By /s/ STEVEN M. KOHLER
-------------------------
Name: Steven M. Kohler
Title: Vice President
THE FUJI BANK, LIMITED
By /s/ MASAHITO FUKUDA
-------------------------
Name: Masahito Fukuda
Title: Senior Vice President
GALAXY CLO 1999-1, LTD
By: SAI Investment Adviser Inc.
It's Collateral Manager
By /s/ DEBORAH A. GERO
-------------------------
Name: Deborah A. Gero
Title: Authorized Agent
155
METROPOLITAN LIFE INSURANCE
COMPANY,
By /s/ JAMES R. DINGLER
-------------------------
Name: James R. Dingler
Title: Director
THE MITSUBISHI TRUST AND BANKING
CORPORATION, as Managing Agent,
By /s/ TOSHIHIRO HAYASHI
-------------------------
Name: Toshihiro Hayashi
Title: Senior Vice President
MUIRFIELD TRADING LLC
By /s/ ASHLEY R. HAMILTON
-------------------------
Name: Ashley R. Hamilton
Title: Asst. Vice President
NATIONAL CITY BANK
By /s/ LISA B. LISI
-------------------------
Name: Lisa B. Lisi
Title: Vice President
National City Bank
OPPENHEIMER FUNDS, INC.,
By /s/ SCOTT FARRAR
-------------------------
Name: Scott Farrar
Title: Vice President
PPM SPYGLASS FUNDING TRUST
as Lender
BY /s/ ASHLEY R. HAMILTON
-------------------------
Ashley R. Hamilton
Authorized Agent
U.S. BANK NATIONAL ASSOCIATION,
as Managing Agent,
By /s/ SCOTT J. BELL
-------------------------
Name: Scott J. Bell
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Co-Agent,
By /s/ SCOTT J. BELL
-------------------------
Name: Scott J. Bell
Title: Vice President
WEBSTER BANK,
By /s/ JOHN GILSENAN
-------------------------
Name: John Gilsenan
Title: Vice President
WINGED FOOT FUNDING TRUST,
as Lender
/s/ ASHLEY R. HAMILTON
-------------------------
Ashley R. Hamilton
Authorized Agent
ZIONS FIRST NATIONAL BANK,
By /s/ DAVID S. MATHIS
-------------------------
Name: David S. Mathis
Title: Vice President
FIRSTRUST BANK
By: /s/ KENT D. NELSON
-------------------------
Name: Kent D. Nelson
Title: Vice President & Group
Manager
156
Stein Roe Floating Rate Limited
Liability Company
By /s/ JAMES R. FELLOWS
-------------------------
Name: James R. Fellows
Title: Senior Vice President
LIBERTY - STEIN ROE ADVISOR FLOATING
RATE ADVANTAGE FUND, by Stein Roe &
Farnham Incorporated, as Advisor
By /s/ JAMES R. FELLOWS
-------------------------
Name: James R. Fellows
Title: Sr. Vice President &
Portfolio Manager
FIRST UNION NATIONAL BANK,
By /s/ J. ANDREW PHEIPS
-------------------------
Name: J. Andrew Pheips
Title: Vice President
FRANKLIN FLOATING RATE TRUST
By /s/ CHAUNCEY LUFKIN
-------------------------
Name: Chauncey Lufkin
Title: Vice President
NUVEEN SENIOR INCOME FUND
BY: NUVEEN SENIOR LOAN ASSET
MANAGEMENT INC.
By /s/ LISA M. MINCHESKI
-------------------------
Name: Lisa M. Mincheski
Title: Managing Director