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Exhibit 10.7
NC MERGER COMPANY
(TO BE MERGED WITH AND INTO
NEENAH CORPORATION)
NFC CASTINGS, INC.
$75,000,000
CREDIT AGREEMENT
April 30, 1997
CHASE SECURITIES INC.
AS ARRANGER
THE CHASE MANHATTAN BANK
AS ADMINISTRATIVE AGENT
[CHASE LOGO]
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Definitions........................................................... 1
SECTION 1.02. Terms Generally....................................................... 23
ARTICLE II
The Credits
SECTION 2.01. Commitments........................................................... 23
SECTION 2.02. Loans................................................................. 24
SECTION 2.03. Borrowing Procedure................................................... 25
SECTION 2.04. Evidence of Debt; Repayment of Loans.................................. 26
SECTION 2.05. Fees.................................................................. 26
SECTION 2.06. Interest of Loans..................................................... 27
SECTION 2.07. Default Interest...................................................... 27
SECTION 2.08. Alternate Rate of Interest............................................ 27
SECTION 2.09. Termination and Reduction of Commitments.............................. 28
SECTION 2.10. Conversion and Continuation of Borrowings............................. 28
SECTION 2.11. Repayment of Term Borrowings.......................................... 29
SECTION 2.12. Optional Prepayment................................................... 30
SECTION 2.13. Mandatory Prepayments................................................. 30
SECTION 2.14. Reserve Requirements; Change in Circumstances......................... 32
SECTION 2.15. Change in Legality.................................................... 33
SECTION 2.16. Indemnity............................................................. 34
SECTION 2.17. Pro Rata Treatment.................................................... 34
SECTION 2.18. Sharing of Setoffs.................................................... 34
SECTION 2.19. Payments.............................................................. 35
SECTION 2.20. Taxes................................................................. 35
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate.................................................... 36
SECTION 2.22. Letters of Credit..................................................... 37
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ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers.................................................. 40
SECTION 3.02. Authorization......................................................... 40
SECTION 3.03. Enforceability........................................................ 41
SECTION 3.04. Governmental Approvals................................................ 41
SECTION 3.05. Financial Statements.................................................. 41
SECTION 3.06. No Material Adverse Change............................................ 41
SECTION 3.07. Title to Properties; Possession Under Leases.......................... 41
SECTION 3.08. Subsidiaries.......................................................... 42
SECTION 3.09. Litigation; Compliance with Laws...................................... 42
SECTION 3.10. Agreements............................................................ 42
SECTION 3.11. Federal Reserve Regulations........................................... 42
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act............ 43
SECTION 3.13. Use of Proceeds....................................................... 43
SECTION 3.14. Tax Returns........................................................... 43
SECTION 3.15. No Material Misstatements............................................. 43
SECTION 3.16. ERISA................................................................. 43
SECTION 3.17. Environmental Matters................................................. 43
SECTION 3.18. Insurance............................................................. 44
SECTION 3.19. Security Documents.................................................... 44
SECTION 3.20. Location of Real Property and Leased Premises......................... 45
SECTION 3.21. Labor Matters......................................................... 45
SECTION 3.22. Solvency.............................................................. 45
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events..................................................... 46
SECTION 4.02. First Credit Event.................................................... 46
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Business and Properties.................................... 50
SECTION 5.02. Insurance............................................................. 51
SECTION 5.03. Obligations and Taxes................................................. 52
SECTION 5.04 Financial Statements, Reports, etc.................................... 52
SECTION 5.05. Litigation and Other Notices.......................................... 53
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SECTION 5.06. Maintaining Records; Access to Properties and Inspections............. 53
SECTION 5.07. Use of Proceeds....................................................... 53
SECTION 5.08. Compliance with Environmental Laws.................................... 53
SECTION 5.09. Preparation of Environmental Reports.................................. 54
SECTION 5.10. Audits................................................................ 54
SECTION 5.11. Further Assurances.................................................... 54
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness.......................................................... 55
SECTION 6.02. Liens................................................................. 55
SECTION 6.03. Sale and Lease-Back Transactions...................................... 57
SECTION 6.04. Investments, Loans and Advances....................................... 57
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions............. 58
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends....................................... 59
SECTION 6.07. Transactions with Affiliates.......................................... 60
SECTION 6.08. Business of Borrower and Subsidiaries................................. 60
SECTION 6.09. Other Indebtedness and Agreements..................................... 60
SECTION 6.10. Capital Expenditures.................................................. 60
SECTION 6.11. Consolidated Leverage Ratio........................................... 61
SECTION 6.12. Consolidated Net Worth................................................ 61
SECTION 6.13. Consolidated Interest Coverage Ratio.................................. 61
SECTION 6.14. Fiscal Year........................................................... 61
ARTICLE VII
Events of Default..................................................... 61
ARTICLE VIII
The Administrative Agent and the Collateral Agent..................... 63
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ARTICLE IX
Miscellaneous
SECTION 9.01. Notices............................................................... 65
SECTION 9.02. Survival of Agreement................................................. 66
SECTION 9.03. Binding Effect........................................................ 66
SECTION 9.04. Successors and Assigns................................................ 66
SECTION 9.05. Expenses; Indemnity................................................... 69
SECTION 9.06. Right of Setoff....................................................... 70
SECTION 9.07. Applicable Law........................................................ 70
SECTION 9.08. Waivers; Amendment.................................................... 70
SECTION 9.09. Interest Rate Limitation.............................................. 71
SECTION 9.10. Entire Agreement...................................................... 71
SECTION 9.11. WAIVER OF JURY TRIAL.................................................. 71
SECTION 9.12. Severability.......................................................... 71
SECTION 9.13. Counterparts.......................................................... 72
SECTION 9.14. Headings.............................................................. 72
SECTION 9.15. Jurisdiction; Consent to Service of Process........................... 72
SECTION 9.16. Confidentiality....................................................... 72
SECTION 9.17. Termination........................................................... 73
SCHEDULES:
Schedule 1.01(a) -- Subsidiary Guarantors
Schedule 1.01(b) -- Stockroom Items
Schedule 2.01 -- Lenders and Commitments
Schedule 3.07(d) -- Contractual Rights Regarding Mortgaged Property
Schedule 3.08 -- Subsidiaries
Schedule 3.09(a) -- Litigation
Schedule 3.09(c) -- Certificates of Occupancy
Schedule 3.10 -- Agreements and Instruments
Schedule 3.17 -- Environmental Matters
Schedule 3.18 -- Insurance
Schedule 3.19(d) -- Filing Offices-- Mortgages
Schedule 3.20(a) -- Mortgaged Properties
Schedule 3.20(b) -- Leased Properties
Schedule 4.02(a) -- Local Counsel
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.07 -- Transactions with Affiliates
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EXHIBITS:
Exhibit A -- Form of Administrative Questionnaire
Exhibit B -- Form of Assignment and Acceptance
Exhibit C -- Form of Borrowing Request
Exhibit D -- Form of Indemnity, Subrogation and Contribution Agreement
Exhibit E -- Form of Mortgages
Exhibit F -- Form of Parent Guarantee Agreement
Exhibit G -- Form of Pledge Agreement
Exhibit H -- Form of Security Agreement
Exhibit I -- Form of Subsidiary Guarantee Agreement
Exhibit J-1 -- Form of Opinion of Kirkland & Ellis
Exhibit J-2 -- Form of Opinion of Local Counsel
Exhibit K -- Form of Borrowing Base Certificate
Exhibit L -- Form of Tax Sharing Agreement
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CREDIT AGREEMENT dated as of April 30, 1997,
among NC MERGER COMPANY, a Wisconsin corporation (the
"Borrower"), NFC CASTINGS, INC., a Delaware corporation
("Holdings"), the Lenders (as defined in Article I), and
THE CHASE MANHATTAN BANK, a New York banking corporation,
as issuing bank (in such capacity, the "Issuing Bank"), as
administrative agent (in such capacity, the "Administrative
Agent") and as collateral agent (in such capacity, the
"Collateral Agent") for the Lenders.
Pursuant to the Merger Agreement (such term and each other capitalized
term used but not defined herein having the meaning given it in Article I), (a)
the Borrower will merge (the "Merger") with and into Neenah Corporation, a
Wisconsin corporation ("Neenah"), with Neenah being the surviving corporation in
the Merger, and (b) the then-outstanding capital stock of Neenah will be
converted into the right to receive aggregate consideration of $240,000,000 in
cash (the "Merger Consideration"), subject to adjustment as set forth in the
Merger Agreement. From and after the Merger, all references herein to the
Borrower shall mean and refer to Neenah, as the surviving corporation in the
Merger.
Holdings and the Borrower have requested the Lenders to extend credit
to the Borrower in the form of (a) Tranche A Term Loans on the Closing Date, in
an aggregate principal amount not in excess of $20,000,000, (b) Tranche B Term
Loans on the Closing Date, in an aggregate principal amount not in excess of
$25,000,000, and (c) Revolving Loans at any time and from time to time prior to
the Revolving Credit Maturity Date, in an aggregate principal amount at any time
outstanding not in excess of $30,000,000. Holdings and the Borrower have
requested the Issuing Bank to issue letters of credit, in an aggregate face
amount at any time outstanding not in excess of $15,000,000, to support payment
obligations incurred in the ordinary course of business by the Borrower and its
Subsidiaries. The proceeds of the Term Loans are to be used, together with the
proceeds of the Equity Contribution, the Senior Subordinated Notes and Revolving
Loans to be made to the Borrower on the Closing Date, solely to pay the Merger
Consideration and related fees, costs and expenses in connection with the
Transactions. The proceeds of the Revolving Loans (other than those used as
described in the immediately preceding sentence) are to be used solely for
general corporate purposes in the ordinary course of the Borrower's business.
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The Lenders are willing to extend such credit to the Borrower and the
Issuing Bank is willing to issue letters of credit for the account of the
Borrower on 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 shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Term Loan or ABR Revolving Loan.
"ABR Revolving Loan" shall mean any Revolving Loan bearing interest at
a rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ABR Term Borrowing" shall mean a Borrowing comprised of ABR Term
Loans.
"ABR Term Loan" shall mean any Term Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Account" shall mean any right to payment for goods sold or for
services rendered, whether or not it has been earned by performance.
"Account Debtor" shall mean, with respect to any Account, the obligor
with respect to such Account.
"ACP Holdings" shall mean ACP Holding Company, a Delaware corporation.
"ACP Merger" shall have the meaning assigned to such term in the
definition of the term "Change in Control".
"ACP Products" shall mean ACP Products, L.L.C., a Delaware limited
liability company.
"Adjusted LIBO Rate" shall mean, 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 the product of (a) the LIBO Rate
in effect for such Interest Period and (b) Statutory Reserves.
"Administrative Agent Fees" shall have the meaning assigned to such
term in Section 2.05(b).
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"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A.
"Affiliate" shall mean, when used 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.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount
of the Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such
day plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%. If for any reason the Administrative Agent shall have determined
(which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Base CD Rate or the Federal Funds Effective Rate or both
for any reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms of the definition
thereof, the Alternate Base Rate shall be determined without regard to clause
(b) or (c), or both, of the preceding sentence, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Prime Rate, the Base CD Rate or the
Federal Funds Effective Rate shall be effective on the effective date of such
change in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate,
respectively. The term "Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by the Administrative Agent as its prime
rate in effect at its principal office in New York City; each change in the
Prime Rate shall be effective on the date such change is publicly announced as
being effective. The term "Base CD Rate" shall mean the sum of (a) the product
of (i) the Three-Month Secondary CD Rate and (ii) Statutory Reserves and (b) the
Assessment Rate.
"Applicable Percentage" shall mean, for any day, with respect to any
Loan, or with respect to the Commitment Fees, as the case may be, the applicable
percentage set forth below under the caption "Eurodollar Spread--Tranche A Term
Loans and Revolving Loans", "Eurodollar Spread--Tranche B Term Loans", "ABR
Spread--Tranche A Term Loans and Revolving Loans",
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"ABR Spread--Tranche B Term Loans" or "Fee Percentage", as the case may
be, based upon the Consolidated Leverage Ratio as of the relevant date of
determination:
Eurodollar
Spread--
Tranche A
Term Eurodollar ABR Spread-- ABR
Consolidated Loans Spread-- Tranche A Term Spread--
Leverage and Revolving Tranche B Loans and Tranche B Fee
Ratio Loans Term Loans Revolving Loans Term Loans Percentage
- ----------------------------------------------------------------------------------------------------------------------------
Category 1 2.50% 3.00% 1.50% 2.00% .50%
Equal to or
greater than 4.00
to 1.00
- ----------------------------------------------------------------------------------------------------------------------------
Category 2 2.25% 3.00% 1.25% 2.00% .50%
Equal to or
greater than 3.75
to 1.00
- ----------------------------------------------------------------------------------------------------------------------------
Category 3 2.00% 3.00% 1.00% 2.00% .50%
Equal to or
greater than 3.50
to 1.00
- ----------------------------------------------------------------------------------------------------------------------------
Category 4 1.75% 3.00% .75% 2.00% .375%
Equal to or
greater than 3.00
to 1.00
- ----------------------------------------------------------------------------------------------------------------------------
Category 5 1.50% 3.00% .50% 2.00% .375%
Less than 3.00 to
1.00
- ----------------------------------------------------------------------------------------------------------------------------
Each change in the Applicable Percentage resulting from a change in the
Consolidated Leverage Ratio shall be effective with respect to all Loans,
Commitments and Letters of Credit outstanding on and after the date of delivery
to the Administrative Agent of the financial statements and certificates
required by Section 5.04(a) or (b) indicating such change until the date
immediately
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preceding the next date of delivery of such financial statements and
certificates indicating another such change. Notwithstanding the foregoing, (a)
at any time during which the Borrower has failed to deliver the financial
statements and certificates required by Section 5.04(a) or (b), or (b) at any
time after the occurrence and during the continuance of an Event of Default, the
Consolidated Leverage Ratio shall be deemed to be in Category 1 for purposes of
determining the Applicable Percentage.
"Approved Fund" shall mean, with respect to any Lender that is a fund
that invests in bank loans, any other fund that invests in bank loans and is
managed by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
"Assessment Rate" shall mean for any date the annual rate (rounded
upwards, if necessary, to the next 1/100 of 1%) most recently estimated by the
Administrative Agent as the then current net annual assessment rate that will be
employed in determining amounts payable by the Administrative Agent to the
Federal Deposit Insurance Corporation (or any successor thereto) for insurance
by such Corporation (or such successor) of time deposits made in dollars at the
Administrative Agent's domestic offices.
"Asset Sale" shall mean the sale, transfer or other disposition (by way
of merger or otherwise) by the Borrower or any of the Subsidiaries to any person
other than the Borrower or any Subsidiary Guarantor of (a) any capital stock of
any of the Subsidiaries (other than directors' qualifying shares) or (b) any
other assets of the Borrower or any of the Subsidiaries (other than (i)
inventory, excess, damaged, obsolete or worn out assets, scrap, Permitted
Investments and licenses of patterns developed for customers of the Borrower or
any Subsidiary, in each case disposed of in the ordinary course of business,
(ii) assets transferred for an aggregate purchase price not exceeding $3,000,000
in any fiscal year of the Borrower in connection with the replacement or upgrade
of a tangible asset of the Borrower or any Subsidiary Guarantor within 180 days
of such transfer, (iii) dispositions resulting in Casualty Proceeds or
Condemnation Proceeds or (iv) dispositions resulting in other insurance
settlements or condemnation awards not exceeding $100,000 in any fiscal year of
the Borrower), provided that neither (x) any asset sale or series of related
asset sales described in clause (b) above having a value not in excess of
$100,000 nor (y) any Equity Issuance shall be deemed an "Asset Sale" for
purposes of this Agreement.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower Tax Amount" shall mean, with respect to any fiscal quarter,
the amount paid by Holdings, the Borrower and the Subsidiaries to ACP Holdings
pursuant to the Tax Sharing Agreement, which amount shall not be greater than
the amount of taxes that would be required to be paid in cash by Holdings, the
Borrower and the Subsidiaries on a consolidated basis if Holdings, the Borrower
and the Subsidiaries were not consolidated with ACP Holdings and its other
subsidiaries for tax purposes.
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"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
"Borrowing Base" shall mean, with respect to the Borrower, at any date
of determination thereof, an amount equal to the sum, without duplication, of
(a) 85% of Eligible Accounts Receivable (or the lesser of (i) $500,000 or (ii)
50% of "Eligible Accounts Receivable" described in each of clause (e) and
(i)(i)(B) of the definition of the term "Eligible Accounts Receivable") at such
date, (b) 55% of the Eligible Inventory Value (or (i) the lesser of (A) $250,000
or (B) 25% of the Eligible Inventory Value of Eligible Inventory described in
the second proviso of clause (c) of the definition of the term "Eligible
Inventory" or (ii) the lesser of (A) $500,000 or (B) 25% of the Eligible
Inventory Value of Eligible Inventory consisting of stockroom items listed on
Schedule 1.01(b)) at such date, provided that the amount determined pursuant to
clause (b) shall at no time exceed 50% of the Borrowing Base and (c) during the
period from the Closing Date through the day following the Closing Date only,
$25,000,000. The Borrowing Base shall be computed monthly upon the delivery of a
Borrowing Base Certificate in accordance with Section 5.04(d). The Borrowing
Base at any time in effect shall be determined as set forth in the Borrowing
Base Certificate most recently delivered hereunder; provided that the
information contained in such Borrowing Base Certificate shall not be conclusive
in calculating the Borrowing Base and, after consultation with the Borrower, the
Administrative Agent shall be entitled to adjust the amounts and other
information contained therein to the extent that it believes in its reasonable
judgment that such adjustment is necessary and appropriate to cause the
Borrowing Base (as so adjusted) to reflect the standards set forth in the
definitions of the terms "Eligible Accounts Receivable" and "Eligible Inventory"
(determined as of the last day of the calendar month as to which such Borrowing
Base Certificate relates) and the Borrowing Base (as so adjusted) shall be the
Borrowing Base in effect from the date the Administrative Agent notifies the
Borrower that it has made any such adjustment until the next Borrowing Base
Certificate is delivered.
"Borrowing Base Certificate" shall have the meaning assigned to such
term in Section 5.04(d).
"Borrowing Request" shall mean a request by the Borrower in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit C.
"Business Day" shall mean any day other than a Saturday, Sunday or day
on which banks in New York City are authorized or required by law to close;
provided, however, that when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any person shall mean 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.
"Capital Stock" of any Person shall mean any and all shares, interests
(including membership and economic interests in a limited liability company),
rights to purchase, warrants,
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options, participations or other equivalents of or interests in (however
designated) equity of such Person, including any Preferred Stock, but excluding
any debt securities convertible into such equity prior to such conversion.
"Casualty" shall have the meaning set forth in each of the Mortgages.
"Casualty Proceeds" shall have the meaning set forth in each of the
Mortgages.
A "Change in Control" shall be deemed to have occurred if (a) prior to
the earlier to occur of the first fully distributed public offering of Voting
Stock of Holdings (or, in the event (i) Holdings shall merge with and into ACP
Holdings or the Borrower in a transaction permitted by Section 6.05 (a "Holdings
Merger"), ACP Holdings, or (ii) following a Holdings Merger, ACP Holdings shall
merge with and into ACP Products or the Borrower in a transaction permitted by
Section 6.05 (an "ACP Holdings Merger"), ACP Products), the Permitted Holders
shall cease to own directly or indirectly (including by way of direct or
indirect ownership of economic interests in ACP Products), beneficially or of
record, shares representing at least 51% on a fully diluted, as if converted,
basis of the aggregate ordinary voting power represented by the issued and
outstanding Voting Stock of Holdings (or, in the event of (i) a Holdings Merger,
ACP Holdings, or (ii) an ACP Holdings Merger, ACP Products), (b) after the first
fully distributed public offering of Voting Stock of Holdings (or, in the event
of (i) a Holdings Merger, ACP Holdings, or (ii) an ACP Holdings Merger, ACP
Products), the Permitted Holders shall cease to own directly or indirectly
(including by way of direct or indirect ownership of economic interests in ACP
Products), beneficially or of record, shares representing at least 25% on a
fully diluted, as if converted, basis of the aggregate ordinary voting power
represented by the issued and outstanding Voting Stock of Holdings (or, in the
event of (i) a Holdings Merger, ACP Holdings, or (ii) an ACP Holdings Merger,
ACP Products), (c) after the first fully distributed public offering of Voting
Stock of Holdings (or, in the event of (i) a Holdings Merger, ACP Holdings, or
(ii) an ACP Holdings Merger, ACP Products), any person or group (within the
meaning of Rule 13d-5 of the Securities Exchange Act of 1934 as in effect on the
date hereof) other than the Permitted Holders shall own directly or indirectly,
beneficially or of record, a percentage of the issued and outstanding Voting
Stock of Holdings (or, in the event of (i) a Holdings Merger, ACP Holdings, or
(ii) an ACP Holdings Merger, ACP Products) on a fully diluted, as if converted,
basis having ordinary voting power in excess of the percentage then owned,
directly or indirectly (including by way of direct or indirect ownership of
economic interests in ACP Products), beneficially and of record, on a fully
diluted, as if converted, basis, by the Permitted Holders; (d) a majority of the
seats (except in the case of any vacancy for 30 days or less resulting from the
death or resignation of any director of Holdings (or, in the event of (i) a
Holdings Merger, ACP Holdings, or (ii) an ACP Holdings Merger, ACP Products)) on
the board of directors of Holdings (or, in the event of (i) a Holdings Merger,
ACP Holdings, or (ii) an ACP Holdings Merger, ACP Products) shall at any time be
occupied by persons who were neither (i) nominated by the board of directors of
Holdings, ACP Holdings or ACP Products, as the case may be, nor (ii) appointed
by directors so nominated; (e) any change in control (or similar event, however
denominated) with respect to Holdings (or, in the event of (i) a Holdings
Merger, ACP Holdings, or (ii) an ACP Holdings Merger, ACP Products) or the
Borrower shall occur under and as defined in any indenture or agreement in
respect of Indebtedness to which any such person or any Subsidiary is a party;
or (f) Holdings (or in the event of (i) a Holdings Merger, ACP Holdings, or (ii)
an ACP Holdings
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Merger, ACP Products) shall cease to own, beneficially and of record, 100% of
the issued and outstanding Capital Stock of the Borrower.
"Citicorp" shall mean Citicorp, a Delaware corporation.
"Closing Date" shall mean the date of the first Credit Event.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean all the "Collateral" as defined in any Security
Document and shall also include the Mortgaged Properties.
"Commitment" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment and Term Loan Commitments.
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.05(a).
"Condemnation" shall have the meaning set forth in each of the
Mortgages.
"Condemnation Proceeds" shall have the meaning set forth in each of the
Mortgages.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated January 1997.
"Consolidated Capital Expenditures" shall mean, for any period, the sum
of (a) the aggregate of all expenditures (whether paid in cash or other
consideration or accrued as a liability) by the Borrower or any of the
Subsidiaries during such period that, in accordance with GAAP, are or should be
included in "additions to property, plant and equipment" or similar items
reflected in the consolidated statement of cash flows of the Borrower and the
Subsidiaries for such period (including the amount of assets leased in
connection with any Capital Lease Obligation), and (b) to the extent not
included pursuant to clause (a) above, the aggregate of all expenditures
(whether paid in cash or other consideration or accrued as a liability) by the
Borrower or any Subsidiary to acquire, by purchase or otherwise, the business,
property or fixed assets of, or stock or other evidence of beneficial ownership
of, any person (other than expenditures for Permitted Acquisitions); provided,
however, that, for purposes of Section 6.10 only, to the extent the Borrower or
a Subsidiary uses, within 180 days of the receipt thereof, (i) the proceeds of
the disposition of assets described in clause (b)(i), (ii) or (iv) of the
definition of the term "Asset Sale" or (ii) Casualty Proceeds or Condemnation
Proceeds to purchase, construct, repair, lease or replace any property, plant or
equipment, the amount of the related Consolidated Capital Expenditure shall be
reduced by the amount of such proceeds.
"Consolidated Current Assets" shall mean, as of any date of
determination, the total assets that would properly be classified as current
assets (other than cash and cash equivalents) of the Borrower and the
Subsidiaries as of such date, determined on a consolidated basis in accordance
with GAAP.
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"Consolidated Current Liabilities" shall mean, as of any date of
determination, the total liabilities (other than, without duplication, (a) the
current portion of long-term Indebtedness and (b) outstanding Revolving Loans)
that would properly be classified as current liabilities of the Borrower and the
Subsidiaries as of such date, determined on a consolidated basis in accordance
with GAAP.
"Consolidated EBITDA" shall mean, for any period, Consolidated Net
Income for such period, plus, to the extent deducted in computing such
Consolidated Net Income, (a) the sum of (i) all Federal, state, local and
foreign taxes, (ii) total interest expense and (iii) depreciation, depletion,
amortization of intangibles and other non-cash charges or non-cash losses
(including non-cash transaction expenses and the amortization of debt
discounts), minus, to the extent added in computing such Consolidated Net
Income, (b) the sum of (i) any interest income and (ii) any non-cash income or
non-cash gains, all as determined on a consolidated basis with respect to the
Borrower and the Subsidiaries in accordance with GAAP.
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio for such period of (a) Consolidated EBITDA to (b) Consolidated Interest
Expense; provided, however, that for purposes of determining the Consolidated
Interest Coverage Ratio for the four-fiscal-quarter periods ending on the last
day of the first, second and third quarters of the fiscal year ending March 31,
1998 (the "1998 Fiscal Year"), Consolidated EBITDA and Consolidated Interest
Expense shall be deemed to be (i) in the case of the four-fiscal-quarter period
ending on the last day of the first quarter of the 1998 Fiscal Year,
Consolidated EBITDA and Consolidated Interest Expense for the fiscal quarter
ending on such date, multiplied by 4, (ii) in the case of the
four-fiscal-quarter period ending on the last day of the second quarter of the
1998 Fiscal Year, Consolidated EBITDA and Consolidated Interest Expense for the
two-fiscal-quarter period ending on such date, multiplied by 2 and (iii) in the
case of the four-fiscal-quarter period ending on the last day of the third
quarter of the 1998 Fiscal Year, Consolidated EBITDA and Consolidated Interest
Expense for the three-fiscal-quarter period ending on such date, multiplied by
1-1/3.
"Consolidated Interest Expense" shall mean, for any period, the gross
interest expense of the Borrower and the Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP, including the portion of any
payments or accruals with respect to Capital Lease Obligations that are
allocable to interest expense in accordance with GAAP, but excluding (a) the
amortization of debt discounts and (b) the amortization of all fees (including
fees with respect to Interest Rate Protection Agreements) payable in connection
with the incurrence of Indebtedness to the extent included in interest expense
in accordance with GAAP (including fees and expenses in connection with the
Transactions not exceeding $10,000,000 in the aggregate). For purposes of the
foregoing, gross interest expense shall be determined after giving effect to any
net payments made or received by the Borrower or any Subsidiary with respect to
Interest Rate Protection Agreements.
"Consolidated Leverage Ratio" shall mean, as of any date of
determination, the ratio of (a) Total Debt on such date to (b) Consolidated
EBITDA for the period of four consecutive fiscal quarters ending on such date
(including the Consolidated EBITDA for such four fiscal quarters of any
Subsidiary acquired during such four fiscal quarters constituting a Permitted
Acquisition pursuant to Section 6.04(g)); provided, however, that for purposes
of determining the Consolidated
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Leverage Ratio for the four-fiscal-quarter periods ending on the last day of the
first, second and third quarters of the fiscal year ending March 31, 1998 (the
"1998 Fiscal Year"), Consolidated EBITDA shall be deemed to be (i) in the case
of the four-fiscal-quarter period ending on the last day of the first quarter of
the 1998 Fiscal Year, Consolidated EBITDA for the fiscal quarter ending on such
date, multiplied by 4, (ii) in the case of the four-fiscal-quarter period ending
on the last day of the second quarter of the 1998 Fiscal Year, Consolidated
EBITDA for the two-fiscal-quarter period ending on such date, multiplied by 2
and (iii) in the case of the four-fiscal-quarter period ending on the last day
of the third quarter of the 1998 Fiscal Year, Consolidated EBITDA for the
three-fiscal-quarter period ending on such date, multiplied by 1-1/3.
"Consolidated Net Income" shall mean, for any period, net income or
loss of the Borrower and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income of any person in which any other person (other than the
Borrower or any of the Subsidiaries or any director holding qualifying shares in
accordance with applicable law) has a joint interest, except to the extent of
the amount of dividends or other distributions actually paid to the Borrower or
any wholly owned Subsidiary by such person during such period, (b) the income
(or loss) of any person accrued prior to the date it becomes a Subsidiary of the
Borrower or is merged into or consolidated with the Borrower or any of the
Subsidiaries or the date that person's assets are acquired by the Borrower or
any of the Subsidiaries (except, in the case of any Subsidiary acquired during
such period constituting a Permitted Acquisition pursuant to Section 6.04(g),
which shall not be excluded for purposes of determining Consolidated EBITDA for
purposes of the Consolidated Leverage Ratio only), (c) the income of any
Subsidiary of the Borrower to the extent that the declaration or payment of
dividends or similar distributions by the Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary, (d) any after tax gains or losses attributable to
sales of assets out of the ordinary course of business and (e) (to the extent
not included in clauses (a) through (d) above) any non-cash extraordinary gains
or non-cash extraordinary losses.
"Consolidated Net Worth" shall mean, as of any date of determination,
the consolidated stockholder's equity of the Borrower and the Subsidiaries at
such date, as determined on a consolidated basis in accordance with GAAP;
provided, however, that common stock or preferred stock (a) with respect to
which no payments that would violate Section 6.06 are required to be made and
(b) that is redeemable not earlier than April 30, 2009 shall be included
regardless of its classification under GAAP.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Credit Event" shall have the meaning assigned to such term in Section
4.01.
"CVC" shall mean Citicorp Venture Capital, Ltd., a New York
corporation.
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"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"Eligible Accounts Receivable" shall mean at the time of any
determination thereof, an amount equal to the aggregate outstanding balance of
all Accounts of the Borrower as set forth in the aging reports of billed
Accounts for the Borrower that satisfy the following criteria at the time of
creation and continue to meet the same at the time of such determination:
(a) all payments on such Account are by the terms of such
Account due not later than 60 days after the original invoice date;
(b) such Account has been invoiced and is not, and not more
than 50% of the aggregate amount of Accounts from the same Account
Debtor and any Affiliates thereof are, unpaid for more than 90 days
(or, in the case of Account Debtors that are state or local
municipalities, 120 days) after the original invoice date as issued;
provided that the aggregate Accounts of any Account Debtor with
original invoice dates more recent than 90 days (or, in the case of
Account Debtors that are state or local municipalities, 120 days) prior
to the date of determination shall be reduced by the amount of net
credit balances of such Account Debtor the dates of which are earlier
than 90 days (or, in the case of Account Debtors that are state or
local municipalities, 120 days) prior to such date of determination;
(c) such Account is denominated in dollars;
(d) such Account arose from a completed, outright and lawful
sale and delivery of goods or from the completed performance and
acceptance of services by the Borrower or a Subsidiary Guarantor and
such Account did not arise from a progress billing or percentage of
completion invoice;
(e) such Account arose from a pattern (tooling) billing;
(f) such Account is owned solely by the Borrower or a
Subsidiary Guarantor, is subject to a valid and perfected first
priority security interest in favor of the Collateral Agent for the
benefit of Secured Parties pursuant to the Security Documents and is
not subject to any other Lien;
(g) such Account arose in the ordinary course of business of
the Borrower or a Subsidiary Guarantor and, to the best knowledge of
the Borrower and its Subsidiaries, no event of death, bankruptcy,
insolvency or inability to pay creditors generally of the Account
Debtor thereunder has occurred, and no notice thereof has been
received;
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(h) such Account complies in all material respects with the
requirements of all applicable laws and regulations, whether Federal,
state or local, including the Federal Truth in Lending Act and
Regulation Z of the Board;
(i) with respect to such Account, the Account Debtor (i) is a
United States person (or, if such person is not a United States person,
either (A) such Account is supported by a letter of credit approved by
the Administrative Agent in favor of the Borrower or a Subsidiary
Guarantor or (B) such person is a subsidiary of Dana Corporation, Eaton
Corporation or Rockwell International), (ii) is not an Affiliate of the
Borrower or an Affiliate of any of the Borrower's Subsidiaries or any
employee, officer, sales representative, agent, director or stockholder
of the Borrower or a Subsidiary Guarantor and (iii) is not the United
States of America or any department, agency or instrumentality thereof,
unless the Borrower or Subsidiary Guarantor duly assigns its rights to
payment of such Account to the Collateral Agent pursuant to the
Assignment of Claims Act of 1940, as amended, which assignment and
related documents and filings shall be in form and substance reasonably
satisfactory to the Collateral Agent;
(j) such Account constitutes an "account" or "chattel paper"
within the meaning of the Uniform Commercial Code of the state in which
the Account is located;
(k) such Account is in full force and effect and constitutes a
legal, valid and binding obligation of the Account Debtor enforceable
in accordance with its terms;
(l) the Account Debtor with respect to such Account has not
asserted that such Account is, and neither the Borrower nor any of its
Subsidiaries is aware of any basis upon which such Account could be,
subject to any claim or defense, deduction, credit or dispute.
Notwithstanding the foregoing, all Accounts of any single Account
Debtor (unless otherwise agreed to by the Required Lenders) and its
Affiliates which, in the aggregate, exceed 5% in the case of Accounts
arising from construction product line sales and 20% in the case of
Accounts arising from industrial product line sales of the total amount
of all Eligible Accounts Receivable at the time of any determination,
shall be deemed not to be Eligible Accounts Receivable to the extent of
such excess. The percentage limitation set forth in the preceding
sentence must be satisfied when applied to the amount of Eligible
Accounts Receivable after excluding all Accounts required to be
excluded by such percentage limitation;
(m) such Account does not arise from (i) the sale to the
obligor on a bill-and-hold, guaranteed sales, sale-or-return, sale on
approval, consignment, sample or trial basis, (ii) a sale subject to
any retainages or holdbacks of any type or (iii) any other sale made
pursuant to any other written agreement providing for repurchase or
return; provided that no amount owing in respect of such Account shall
be excluded pursuant to this clause solely as a result of customary
quality warranties or the general right to return goods provided by the
Borrower or a Subsidiary Guarantor;
(n) such Account is not the result of a chargeback, debit memo
or a reinvoice of a disputed Account;
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(o) such Account has not been adjusted to reflect the return
or rejection of, or any loss of or damage to, any of the inventory
giving rise to such Account; provided that amounts owing in respect of
such Account shall only be excluded to the extent of such adjustment;
(p) such Account (other than Accounts owed to Neenah
Transport, Inc.) does not include any material delivery, freight or
financing charges, late or other fees; provided that amounts owing in
respect of such Account shall only be excluded to the extent of such
charges or fees; and
(q) such Account may not be set off or charged against (i) any
adverse security deposit or other similar deposit made by or for the
benefit of the Account Debtor or (ii) any trade payable or similar
liability owing to the Account Debtor; provided that amounts owing in
respect of such Account shall only be excluded to the extent of such
set-off or charge against such adverse security deposit, trade payable
or other similar deposit or liability.
"Eligible Inventory" shall mean at the time of determination thereof,
without duplication, all inventory owned by the Borrower or a Subsidiary
Guarantor, to the extent that
(a) the Borrower or a Subsidiary Guarantor has good and
unencumbered title thereto (subject to the Lien of the Security
Documents);
(b) the Collateral Agent on behalf of the Secured Parties
possesses a valid first priority perfected security interest therein
pursuant to the Security Documents;
(c) such inventory is located at a storage or manufacturing
facility owned or leased by the Borrower or a Subsidiary Guarantor in
the United States; provided, however, that no inventory which is stored
at a facility leased by the Borrower or any Subsidiary Guarantor shall
be considered "Eligible Inventory" unless the Borrower or such
Subsidiary Guarantor, as the case may be, shall have obtained a waiver,
in form and substance satisfactory to the Administrative Agent, from
the lessor of such property of any statutory, contractual or common law
landlord's lien with respect to such leased property; provided further,
that no inventory which is located at a warehouse owned by an
independent sales representative will be considered "Eligible
Inventory" unless the Collateral Agent shall have obtained a written
agreement of such independent sales representative, in form and
substance satisfactory to the Administrative Agent, acknowledging the
Collateral Agent's rights and access to such inventory;
(d) such inventory consists of raw materials, work-in-process,
stockroom items listed on Schedule 1.01(b) and finished goods and is
not pattern, plant core, stockroom (except as set forth on Schedule
1.01(b)), in-plant core and supplies or packing materials used or
consumed in the business of the Borrower;
(e) such inventory is merchantable and is currently salable in
the normal course of the Borrower's business;
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(f) such inventory has not been consigned and does not
represent any goods sold pursuant to a "bill and hold" or "sale or
return" arrangement, or is otherwise in-transit to third parties; and
(g) such inventory does not represent discontinued, obsolete,
slow moving (aged more than 52 weeks) or defective stock.
"Eligible Inventory Value" shall mean at the time of any determination
thereof the lower of cost or market value determined on a first-in, first-out
basis (less any appropriate reserve for obsolete inventory so long as such
reserve is for inventory which is otherwise eligible) of the Eligible Inventory
at such time, in dollars, determined on a basis consistent with the current and
historical accounting practice of the Borrower.
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Environmental Claim" shall mean any written accusation, allegation,
notice of violation, claim, demand, order, directive, cost recovery action or
other cause of action by, or on behalf of, any Governmental Authority or any
person for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon (a) the existence, or
the continuation of the existence, of a Release (including sudden or non-sudden,
accidental or non-accidental Releases), (b) exposure to any Hazardous Material,
(c) the presence, use, handling, transportation, storage, treatment or disposal
of any Hazardous Material or (d) the violation or alleged violation of any
Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present and
future treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to health and safety
matters, including the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. Sections 9601 et seq. (collectively
"CERCLA"), the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42
U.S.C. Sections 6901 et seq., the Federal Water Pollution Control Act, as
amended by the Clean Water Act of 1977, 33 U.S.C. Sections 1251 et seq., the
Clean Air Act of 1970, as amended 42 U.S.C. Sections 7401 et seq., the Toxic
Substances Control Act of 1976, 15 U.S.C. Sections 2601 et seq., the
Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. Sections 651
et seq., the Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. Sections 11001 et seq., the Safe Drinking Water Act of 1974, as amended,
42 U.S.C. Sections 300(f) et seq., the Hazardous Materials Transportation Act,
49 U.S.C. Sections 5101 et seq., and any similar or implementing state or local
law, and all amendments or regulations promulgated under any of the foregoing.
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"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"Equity Contribution" shall mean (a) the cash equity contribution in an
aggregate amount of not less than $45,000,000 made indirectly by the Investors
to Holdings and (b) the cash common equity contribution in an equal amount made
by Holdings to the Borrower.
"Equity Issuance" shall mean any issuance or sale by Holdings (or, in
the event of (i) a Holdings Merger, ACP Holdings, or (ii) an ACP Holdings
Merger, ACP Products), the Borrower or any Subsidiary of any shares of capital
stock or other equity securities of any such person or any obligations
convertible into or exchangeable for, or giving any person a right, option or
warrant to acquire such securities or such convertible or exchangeable
obligations, except in each case for (a) any issuance or sale to Holdings (or,
in the event of (i) a Holdings Merger, ACP Holdings, or (ii) an ACP Holdings
Merger, ACP Products), the Borrower or any Subsidiary, (b) any issuance of
directors' qualifying shares, (c) sales or issuances of common stock to
management or key employees of Holdings (or, in the event of (i) a Holdings
Merger, ACP Holdings, or (ii) an ACP Holdings Merger, ACP Products), the
Borrower or any Subsidiary under any employee stock option or stock purchase
plan in existence from time to time to the extent that the proceeds from all
sales and issuances described in this clause (c) shall not exceed in the
aggregate $1,000,000 in any fiscal year, (d) any issuance of Capital Stock the
proceeds of which are substantially concurrently used to make Permitted
Acquisitions pursuant to Section 6.04(g) and (e) any issuance of Capital Stock
the proceeds of which are substantially concurrently used to make Consolidated
Capital Expenditures pursuant to Section 6.10.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"ERISA Affiliate" shall mean 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" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (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 any ERISA Affiliate of
any
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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 Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan" shall mean any Eurodollar Revolving Loan or
Eurodollar Term Loan.
"Eurodollar Revolving Loan" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Term Borrowing" shall mean a Borrowing comprised of
Eurodollar Term Loans.
"Eurodollar Term Loan" shall mean any Term Loan bearing interest at a
rate determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Excess Cash Flow" shall mean, for any fiscal year of the Borrower, the
excess of (a) the sum, without duplication, of (i) Consolidated EBITDA for such
fiscal year, (ii) extraordinary cash income of the Borrower and its consolidated
Subsidiaries, if any, during such fiscal year and not included in Consolidated
EBITDA and (iii) reductions to non-cash working capital of the Borrower and its
consolidated Subsidiaries for such fiscal year (i.e., the decrease, if any, in
Consolidated Current Assets minus Consolidated Current Liabilities from the
beginning to the end of such fiscal year); provided that such working capital as
of the first day of such fiscal year shall be determined on a pro forma basis
adjusted to give effect (as if such event had occurred on the first day of such
fiscal year) to each Permitted Acquisition made pursuant to Section 6.04(g)
during such fiscal year over (b) the sum, without duplication, of (i) the amount
of any cash income taxes payable by the Borrower and its consolidated
Subsidiaries with respect to such fiscal year, (ii) cash interest paid by the
Borrower and its consolidated Subsidiaries during such fiscal year, (iii)
Consolidated Capital Expenditures made in cash in accordance with Section 6.10
during such fiscal year, (iv) scheduled principal repayments of Indebtedness
made by the Borrower and its consolidated Subsidiaries during such fiscal year,
(v) optional and mandatory prepayments of the principal of Loans during such
fiscal year, but only to the extent that such prepayments by their terms cannot
be reborrowed or redrawn and do not occur in connection with a refinancing of
all or any portion of the Loans, (vi) extraordinary cash expenses paid by the
Borrower and its consolidated Subsidiaries, if any, during such fiscal year and
not included in Consolidated EBITDA and (vii) additions to non-cash working
capital for such fiscal year (i.e., the increase, if any, in Consolidated
Current Assets minus Consolidated Current Liabilities from the beginning to the
end of such fiscal year);provided that such working capital as of the first day
of such fiscal year shall be determined on a pro forma basis adjusted to give
effect (as if such event had occurred on the first day of such fiscal year) to
each Permitted Acquisition made pursuant to Section 6.04(g) during such fiscal
year provided, further, that, to the extent otherwise included therein, the Net
Cash Proceeds of Asset Sales, Equity Issuances and dispositions resulting in
Casualty Proceeds or Condemnation Proceeds shall be excluded from the
calculation of Excess Cash Flow.
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"Excluded Taxes" shall mean, 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 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 is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.21(a)), any withholding tax that is imposed on amounts
payable 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 2.20(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 with respect to such withholding tax
pursuant to Section 2.20(a).
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average of
the quotations for the day for such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.
"Fee Letter" shall mean the Fee Letter dated January 6, 1997, among
Holdings, 399 Venture Partners Inc. and The Chase Manhattan Bank.
"Fees" shall mean the Commitment Fees, the Administrative Agent's Fees,
the L/C Participation Fees and the Issuing Bank Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such
corporation.
"Foreign Lender" shall mean any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" shall mean generally accepted accounting principles applied on a
consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantee" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including
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any obligation of such person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (b) to purchase or lease property, securities
or services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness or (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; provided, however,
that the term "Guarantee" shall not include endorsements for collection or
deposit in the ordinary course of business.
"Guarantee Agreements" shall mean the Parent Guarantee Agreement and
the Subsidiary Guarantee Agreement.
"Guarantors" shall mean Holdings and the Subsidiary Guarantors.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes, hazardous or toxic substances or wastes, pollutants,
solid, liquid or gaseous wastes, including petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Holdings Merger" shall have the meaning assigned to such term in the
definition of the term "Change in Control".
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid (excluding trade accounts
payable and accrued obligations incurred in the ordinary course of business),
(d) all obligations of such person under conditional sale or other title
retention agreements relating to property or assets purchased by such person,
(e) all obligations of such person issued or assumed as the deferred purchase
price of property or services (excluding trade accounts payable and accrued
obligations incurred in the ordinary course of business), (f) all Indebtedness
of others of the type described in clauses (a) through (e) and (g) through (j)
of this definition 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 obligations
secured thereby have been assumed, (g) all Guarantees by such person of
Indebtedness of others, (h) all Capital Lease Obligations of such person, (i)
all obligations of such person in respect of interest rate protection
agreements, foreign currency exchange agreements or other interest or exchange
rate hedging arrangements and (j) all obligations of such person as an account
party in respect of letters of credit and bankers' acceptances. The Indebtedness
of any person shall include the Indebtedness of any partnership in which such
person is a general partner.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
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"Indemnity, Subrogation and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit D, among the Borrower, the Subsidiary Guarantors and the Collateral
Agent.
"Interest Payment Date" shall mean, with respect to any 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 that would have been an Interest Payment
Date had successive Interest Periods of three months' duration been applicable
to such Borrowing, and, in addition, the date of any prepayment of such
Borrowing or conversion of such Borrowing to a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the
Borrower may elect and (b) as to any ABR Borrowing, the period commencing on the
date of such Borrowing and ending on the earliest of (i) the next succeeding
March 31, June 30, September 30 or December 31, (ii) the Revolving Credit
Maturity Date, the Tranche A Maturity Date or the Tranche B Maturity Date, as
applicable, and (iii) the date such Borrowing is converted to a Borrowing of a
different Type in accordance with Section 2.10 or repaid or prepaid in
accordance with Section 2.11 or 2.12; provided, however, that 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, in the case of a
Eurodollar Borrowing only, 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. Interest shall accrue from and including the first day
of an Interest Period to but excluding the last day of such Interest Period.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or
similar agreement or arrangement designed to protect the Borrower or any
Subsidiary against fluctuations in interest rates, and not entered into for
speculation.
"Investors" shall mean CVC and certain other investors.
"Issuing Bank Fees" shall have the meaning assigned to such term in
Section 2.05(c).
"L/C Commitment" shall mean the commitment of the Issuing Bank to issue
Letters of Credit pursuant to Section 2.22.
"L/C Disbursement" shall mean a payment or disbursement made by the
Issuing Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate principal amount of all L/C Disbursements that have not yet been
reimbursed at such time. The L/C Exposure of any Revolving Credit Lender at any
time shall mean its Pro Rata Percentage of the aggregate L/C Exposure at such
time.
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"L/C Participation Fee" shall have the meaning assigned to such term in
Section 2.05(c).
"Lenders" shall mean (a) the financial institutions listed on Schedule
2.01 (other than any such financial institution that has ceased to be a party
hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance.
"Letter of Credit" shall mean any letter of credit issued pursuant to
Section 2.22.
"LIBO Rate" shall mean, 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 the Telerate 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 11:00 a.m., London 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
so available at such time for any reason, the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits approximately equal in principal amount to the Administrative Agent's
portion of such Eurodollar Borrowing and for a maturity comparable to such
Interest Period are offered to 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" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on 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 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" shall mean this Agreement, the Letters of Credit, the
Guarantee Agreements, the Security Documents and the Indemnity, Subrogation and
Contribution Agreement.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Loans" shall mean the Revolving Loans and the Term Loans.
"Management Investors" shall mean the officers, directors and employees
of ACP Holdings, ACP Products, Holdings, the Borrower or a Subsidiary of the
Borrower who acquire Voting Stock of ACP Holdings, ACP Products, Holdings or the
Borrower on or after the Closing Date.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
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"Material Adverse Effect" shall mean (a) a materially adverse effect on
the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and the Subsidiaries, taken as a whole, (b) material
impairment of the ability of the Borrower or any other Loan Party to perform any
of its obligations under any Loan Document to which it is or will be a party or
(c) material impairment of the rights of or benefits available to the Lenders
under any Loan Document.
"Merger" shall have the meaning given such term in the preamble.
"Merger Agreement" shall mean the Agreement and Plan of Reorganization
dated as of November 20, 1996, by and among Holdings, the Borrower and Neenah,
as the same may be amended, restated, modified or supplemented from time to time
prior to the date hereof or in accordance with Section 6.09(a).
"Merger Consideration" shall have the meaning set forth in the
Preamble.
"Mortgaged Properties" shall mean the owned real properties of the Loan
Parties specified on Schedule 3.20(a).
"Mortgages" shall mean the mortgages, deeds of trust, leasehold
mortgages, assignments of leases and rents, modifications and other security
documents delivered pursuant to clause (i) of Section 4.02(j) or pursuant to
Section 5.11, each substantially in the form of Exhibit E.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the
cash proceeds (including cash proceeds subsequently received (as and when
received) in respect of non-cash consideration initially received and including
all insurance settlements and condemnation awards in any fiscal year of the
Borrower in excess of $100,000), net of (i) selling expenses (including
reasonable broker's fees or commissions, legal fees, transfer and similar taxes
and the Borrower's good faith estimate of income taxes paid or payable in
connection with the receipt of such cash proceeds), (ii) amounts provided as a
reserve, in accordance with GAAP, against any liabilities under any
indemnification obligations associated with such Asset Sale (provided that, to
the extent and at the time any such amounts are released from such reserve, such
amounts shall constitute Net Cash Proceeds) and (iii) the principal amount,
premium or penalty, if any, interest and other amounts on any Indebtedness for
borrowed money which is secured by the asset sold in such Asset Sale and which
is repaid with such proceeds (other than any such Indebtedness assumed by the
purchaser of such asset) and (b) with respect to any Equity Issuance or any
other issuance or disposition of Indebtedness, the cash proceeds thereof, net of
all taxes and customary fees, commissions, costs and other expenses incurred in
connection therewith.
"Obligations" shall mean all obligations defined as "Obligations" in
the Guarantee Agreements and the Security Documents.
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"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"Parent Guarantee Agreement" shall mean the Parent Guarantee Agreement,
substantially in the form of Exhibit F, made by Holdings in favor of the
Collateral Agent for the benefit of the Secured Parties.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"Perfection Certificate" shall mean the Perfection Certificate
substantially in the form of Annex 2 to the Security Agreement.
"Permitted Acquisitions" shall mean acquisitions of not less than 100%
of the outstanding capital stock of any corporation, a division of any
corporation or any similar business unit (or of substantially all the assets and
business of any of the foregoing) engaged in a Related Business (each, an
"Acquisition") so long as (i) in the case of each such Acquisition of capital
stock, such Acquisition was not preceded by an unsolicited tender offer for such
capital stock by Holdings or any of its Affiliates and (ii) in the case of all
Acquisitions, the aggregate principal amount of the Revolving Loans at any time
outstanding used to finance the cash consideration paid in connection with all
such Acquisitions, to refinance Indebtedness in connection with all such
Acquisitions and to pay related fees and expenses, taken as a whole, does not
exceed the excess of (a) $20,000,000 over (b) the aggregate principal amount of
outstanding Revolving Loans used to finance Consolidated Capital Expenditures
pursuant to Section 6.10(d).
"Permitted Holders" shall mean (i) CVC and its Affiliates and Permitted
Transferees and (ii) the Management Investors and their Permitted Transferees.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from Standard &
Poor's Ratings Service or from Moody's Investors Service, Inc.;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within one year from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any
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State thereof that has a combined capital and surplus and undivided
profits of not less than $250,000,000;
(d) other investment instruments approved in writing by the
Required Lenders and offered by financial institutions which have a
combined capital and surplus and undivided profits of not less than
$250,000,000; and
(e) shares of funds registered under the Investment Company
Act of 1940, as amended, that have assets of at least $100,000,000 and
invest only in obligations described in clauses (a) through (d) above,
to the extent that such shares are rated by Moody's Investors Service,
Inc. or Standard & Poor's Ratings Service in one of the two highest
rating categories assigned by such agency for shares of such nature.
"Permitted Transferee" shall mean (a) with respect to CVC (i) Citicorp,
any direct or indirect wholly owned subsidiary of Citicorp, and any officer,
director or employee of CVC, Citicorp or any wholly owned subsidiary of
Citicorp, (ii) any spouse or lineal descendant (including by adoption and
stepchildren) of the officers, directors and employees referred to in clause
(a)(i) above or (iii) any trust, corporation or partnership 100% in interest of
the beneficiaries, stockholders or partners of which consists of one or more of
the persons described in clause (a)(i) or (ii) above and (b) with respect to any
officer or employee of ACP Products, ACP Holdings, Holdings, the Borrower or a
Subsidiary, (i) any spouse or lineal descendant (including by adoption and
stepchildren) of such officer or employee and (ii) any trust, corporation or
partnership 100% in interest of the beneficiaries, stockholders or partners of
which consists of such officer or employee, any of the persons described in
clause (b)(i) above or any combination thereof.
"person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or 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" shall mean the Pledge Agreement, substantially in
the form of Exhibit G, among the Borrower, Holdings, the Subsidiaries party
thereto and the Collateral Agent for the benefit of the Secured Parties.
"Preferred Stock" as applied to the Capital Stock of any corporation,
shall mean Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
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"Pro Rata Percentage" of any Revolving Credit Lender at any time shall
mean the percentage of the Total Revolving Credit Commitment represented by such
Lender's Revolving Credit Commitment.
"Register" shall have the meaning given such term in Section 9.04(d).
"Regulation G" shall mean Regulation G of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"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 Business" shall mean any business of the Borrower and its
Subsidiaries as conducted on the Closing Date and any business related,
ancillary or complementary thereto.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the environment.
"Remedial Action" shall mean (a) "remedial action" as such term is
defined in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions
required by any Governmental Authority or voluntarily undertaken to: (i)
cleanup, remove, treat, abate or in any other way address any Hazardous Material
in the environment; (ii) prevent the Release or threat of Release, or minimize
the further Release of any Hazardous Material so it does not migrate or endanger
or threaten to endanger public health, welfare or the environment; or (iii)
perform studies and investigations in connection with, or as a precondition to,
(i) or (ii) above.
"Required Lenders" shall mean, at any time, Lenders having Loans, L/C
Exposure and unused Revolving Credit and Term Loan Commitments representing at
least a majority of the sum of all Loans outstanding, L/C Exposure and unused
Revolving Credit and Term Loan Commitments at such time.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender,
the commitment of such Lender to make Revolving Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Revolving Credit Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to
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Section 2.09 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such Lender, plus the aggregate amount at such time of such
Lender's L/C Exposure.
"Revolving Credit Lender" shall mean a Lender with a Revolving Credit
Commitment.
"Revolving Credit Maturity Date" shall mean the fifth anniversary of
the Closing Date.
"Revolving Loans" shall mean the revolving loans made by the Lenders to
the Borrower pursuant to clause (c) of Section 2.01. Each Revolving Loan shall
be a Eurodollar Revolving Loan or an ABR Revolving Loan.
"Secured Parties" shall have the meaning assigned to such term in the
Security Agreement.
"Security Agreement" shall mean the Security Agreement, substantially
in the form of Exhibit H, between the Borrower, the Subsidiaries party thereto
and the Collateral Agent for the benefit of the Secured Parties.
"Security Documents" shall mean the Mortgages, the Security Agreement,
the Pledge Agreement and each of the security agreements, mortgages and other
instruments and documents executed and delivered pursuant to any of the
foregoing or pursuant to Section 5.12.
"Senior Subordinated Notes" shall mean the 11.125% Senior Subordinated
Notes due 2007 of the Borrower, issued on the Closing Date in an aggregate
principal amount of $150,000,000.
"Statutory Reserves" shall mean 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 and any other banking authority, domestic or foreign,
to which the Administrative Agent or any Lender (including any branch,
Affiliate, or other fronting office making or holding a Loan) is subject (a)
with respect to the Base CD Rate, for new negotiable nonpersonal time deposits
in dollars of over $100,000 with maturities approximately equal to three months,
and (b) with respect to the Adjusted LIBO Rate, for Eurocurrency Liabilities (as
defined in 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 Liabilities 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.
Statutory Reserves shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.
"subsidiary" shall mean, with respect to any person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary
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voting power or more than 50% of the general partnership interests are, at the
time any determination is being made, owned, controlled or held, or (b) that is,
at the time any determination is made, otherwise Controlled, by the parent or
one or more subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent.
"Subsidiary" shall mean any subsidiary of the Borrower.
"Subsidiary Guarantee Agreement" shall mean the Subsidiary Guarantee
Agreement, substantially in the form of Exhibit I, made by the Subsidiary
Guarantors in favor of the Collateral Agent for the benefit of the Secured
Parties.
"Subsidiary Guarantor" shall mean each Subsidiary listed on Schedule
1.01(a), and each other Subsidiary that is or becomes a party to a Subsidiary
Guarantee Agreement.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Tax Sharing Agreement" shall mean the Tax Sharing Agreement,
substantially in the form of Exhibit L, among ACP Holdings, Holdings and ACP
Holdings' other direct and indirect subsidiaries.
"Term Borrowing" shall mean a Borrowing comprised of Tranche A Term
Loans or Tranche B Term Loans.
"Term Loan Commitments" shall mean the Tranche A Commitments and the
Tranche B Commitments.
"Term Loan Repayment Dates" shall mean the Tranche A Term Loan
Repayment Dates and the Tranche B Term Loan Repayment Dates.
"Term Loans" shall mean the Tranche A Term Loans and the Tranche B Term
Loans.
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not be so reported
on such day or such next preceding Business Day, the average of the secondary
market quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 a.m., New York City time,
on such day (or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it.
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"Total Debt" shall mean, at any date and without duplication, the
aggregate amount of all Indebtedness of the Borrower and the Subsidiaries on a
consolidated basis at such date (other than any Indebtedness described in clause
(i) or (j) of the definition of the term "Indebtedness").
"Total Revolving Credit Commitment" shall mean, at any time, the
aggregate amount of the Revolving Credit Commitments, as in effect at such time.
"Tranche A Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche A Term Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Tranche A Commitment, as applicable, as the same may be (a) reduced
from time to time pursuant to Section 2.09 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
9.04.
"Tranche A Maturity Date" shall mean the fifth anniversary of the
Closing Date.
"Tranche A Term Borrowing" shall mean a Borrowing comprised of Tranche
A Term Loans.
"Tranche A Term Loan Repayment Date" shall have the meaning assigned to
such term in Section 2.11(a)(i).
"Tranche A Term Loans" shall mean the term loans made by the Lenders to
the Borrower pursuant to clause (a) of Section 2.01. Each Tranche A Term Loan
shall be either a Eurodollar Term Loan or an ABR Term Loan.
"Tranche B Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche B Term Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Tranche B Commitment, as applicable, as the same may be (a) reduced
from time to time pursuant to Section 2.09 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
9.04.
"Tranche B Maturity Date" shall mean the seventh anniversary of the
Closing Date.
"Tranche B Term Borrowing" shall mean a Borrowing comprised of Tranche
B Term Loans.
"Tranche B Term Loan Repayment Date" shall have the meaning assigned to
such term in Section 2.11(a)(ii).
"Tranche B Term Loans" shall mean the term loans made by the Lenders to
the Borrower pursuant to clause (b) of Section 2.01. Each Tranche B Term Loan
shall be either a Eurodollar Term Loan or an ABR Term Loan.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
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"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, the term "Rate" shall include
the Adjusted LIBO Rate and the Alternate Base Rate.
"Voting Stock" of a corporation shall mean all classes of Capital Stock
of such corporation then outstanding and normally entitled to vote in the
election of directors.
"wholly owned Subsidiary" of any person shall mean a subsidiary of such
person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the equity or 100% of the ordinary
voting power or 100% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held by such person or one or
more wholly owned subsidiaries of such person or by such person and one or more
wholly owned subsidiaries of such person.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both 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".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that for purposes of determining compliance
with the covenants contained in Article VI, except as otherwise provided herein,
all accounting terms herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP as in effect on
the date of this Agreement and applied on a basis consistent with the
application used in the financial statements referred to in Section 3.05(a)
(except to the extent that such financial statements accounted for inventory on
a last-in-first-out basis).
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, (a) to make a Tranche A Term Loan to the
Borrower on the Closing Date in a principal amount not to exceed its Tranche A
Commitment, (b) to make a Tranche B Term Loan to the Borrower on the
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Closing Date in a principal amount not to exceed its Tranche B Commitment, and
(c) to make Revolving Loans to the Borrower, at any time and from time to time
on or after the date hereof, and until the earlier of the Revolving Credit
Maturity Date and the termination of the Revolving Credit Commitment of such
Lender in accordance with the terms hereof, in an aggregate principal amount at
any time outstanding that will not result in (i) such Lender's Revolving Credit
Exposure exceeding (ii) the lesser of (x) such Lender's Revolving Credit
Commitment and (y) such Lender's Pro Rata Percentage of the Borrowing Base in
effect at such time. Within the limits set forth in clause (c) of the preceding
sentence and subject to the terms, conditions and limitations set forth herein,
the Borrower may borrow, pay or prepay and reborrow Revolving Loans. Amounts
paid or prepaid in respect of Term Loans may not be reborrowed.
SECTION 2.02. Loans. (a) Each Loan shall be made as part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their
applicable Commitments; provided, however, that the failure of any Lender to
make any Loan shall not in itself relieve any other Lender of its obligation to
lend hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to make any Loan required to be
made by such other Lender). Except for Loans deemed made pursuant to Section
2.02(f), the Loans comprising any Borrowing shall be in an aggregate principal
amount that is (i) an integral multiple of $500,000 and not less than $1,000,000
in the case of Eurodollar Loans, (ii) an integral multiple of $100,000 and not
less than $500,000 in the case of ABR Loans or (iii) in the case of ABR Loans,
equal to the remaining available balance of the applicable Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
pursuant to Section 2.03. Each Lender may at its option make any Eurodollar Loan
by 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 to repay such Loan in accordance with the terms of
this Agreement. Borrowings of more than one Type may be outstanding at the same
time; provided, however, that the Borrower shall not be entitled to request any
Borrowing that, if made, would result in more than seven Eurodollar Borrowings
outstanding hereunder at any time. For purposes of the foregoing, Borrowings
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Borrowings.
(c) Except with respect to Loans made pursuant to Section 2.02(f), each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to such account in New
York City as the Administrative Agent may designate not later than 11:00 a.m.,
New York City time, and the Administrative Agent shall by 12:00 (noon), New York
City time, credit the amounts so received to an account in the name of the
Borrower, maintained with the Administrative Agent and designated by the
Borrower in the applicable Borrowing Request or, if a Borrowing shall not occur
on such date because any condition precedent herein specified shall not have
been met, return the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has
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made such portion available to the Administrative Agent on the date of such
Borrowing in accordance with paragraph (c) above and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If the Administrative Agent shall have so made
funds available then, to the extent that such Lender shall not have made such
portion available to the Administrative Agent, such Lender and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing (in
lieu of interest which would otherwise become due to such Lender pursuant to
Section 2.06) and (ii) in the case of such Lender, a rate determined by the
Administrative Agent to represent its cost of overnight or short-term funds
(which determination shall be conclusive absent manifest error). If such Lender
shall repay to the Administrative Agent such corresponding amount, such amount
shall constitute such Lender's Loan as part of such Borrowing for purposes of
this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request a Borrowing pursuant to which the Interest
Period requested with respect thereto would end after the Revolving Credit
Maturity Date.
(f) If the Issuing Bank shall not have received from the Borrower the
payment required to be made by Section 2.22(e) within the time specified in such
Section, the Issuing Bank will promptly notify the Administrative Agent of the
L/C Disbursement and the Administrative Agent will promptly notify each
Revolving Credit Lender of such L/C Disbursement and its Pro Rata Percentage
thereof. Each Revolving Credit Lender shall pay by wire transfer of immediately
available funds to the Administrative Agent not later than 2:00 p.m., New York
City time, on such date (or, if such Revolving Credit Lender shall have received
such notice later than 12:00 (noon), New York City time, on any day, not later
than 10:00 a.m., New York City time, on the immediately following Business Day),
an amount equal to such Lender's Pro Rata Percentage of such L/C Disbursement
(it being understood that such amount shall be deemed to constitute an ABR
Revolving Loan of such Lender and such payment shall be deemed to have reduced
the L/C Exposure), and the Administrative Agent will promptly pay to the Issuing
Bank amounts so received by it from the Revolving Credit Lenders. The
Administrative Agent will promptly pay to the Issuing Bank any amounts received
by it from the Borrower pursuant to Section 2.22(e) prior to the time that any
Revolving Credit Lender makes any payment pursuant to this paragraph (f); any
such amounts received by the Administrative Agent thereafter will be promptly
remitted by the Administrative Agent to the Revolving Credit Lenders that shall
have made such payments and to the Issuing Bank, as their interests may appear.
If any Revolving Credit Lender shall not have made its Pro Rata Percentage of
such L/C Disbursement available to the Administrative Agent as provided above,
such Lender and the Borrower severally agree to pay interest on such amount, for
each day from and including the date such amount is required to be paid in
accordance with this paragraph to but excluding the date such amount is paid, to
the Administrative Agent for the account of the Issuing Bank at (i) in the case
of the Borrower, a rate per annum equal to the interest rate applicable to
Revolving Loans pursuant to Section 2.06(a) (in lieu of interest which would
otherwise become due to such Lender pursuant to Section 2.06), and (ii) in the
case of such
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Lender, for the first such day, the Federal Funds Effective Rate, and for each
day thereafter, the Alternate Base Rate.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing
(other than a deemed Borrowing pursuant to Section 2.02(f), as to which this
Section 2.03 shall not apply), the Borrower shall hand deliver or telecopy to
the Administrative Agent a duly completed Borrowing Request (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before a proposed Borrowing, and (b) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, on the Business Day of
a proposed Borrowing. Each Borrowing Request shall be irrevocable, shall be
signed by or on behalf of the Borrower and shall specify the following
information: (i) whether the Borrowing then being requested is to be a Term
Borrowing or a Revolving Credit Borrowing, and whether such Borrowing is to be a
Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which
shall be a Business Day), (iii) the number and location of the account to which
funds are to be disbursed (which shall be an account that complies with the
requirements of Section 2.02(c)); (iv) the amount of such Borrowing; and (v) if
such Borrowing is to be a Eurodollar Borrowing, the Interest Period with respect
thereto; provided, however, that, notwithstanding any contrary specification in
any Borrowing Request, each requested Borrowing shall comply with the
requirements set forth in Section 2.02. If no election as to the Type of
Borrowing is specified in any such notice, then the requested Borrowing shall be
an ABR Borrowing. If no Interest Period with respect to any Eurodollar Borrowing
is specified in any such notice, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration. The Administrative Agent
shall promptly advise the applicable Lenders of any notice given pursuant to
this Section 2.03 (and the contents thereof), and of each Lender's portion of
the requested Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender the principal amount of each Term Loan of such Lender as
provided in Section 2.11 and the then unpaid principal amount of each Revolving
Loan on the Revolving Credit Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the 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 to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower or any Guarantor and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(b) and (c) above shall be prima facie evidence of the existence and amounts of
the obligations therein recorded; provided, however, 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 obligations of the Borrower to repay
the Loans in accordance with their terms.
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(e) Notwithstanding any other provision of this Agreement, in the event
any Lender shall request and receive a promissory note payable to such Lender
and its registered assigns, the interests represented by such note shall at all
times (including after any assignment of all or part of such interests pursuant
to Section 9.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Lender,
through the Administrative Agent, on the Closing Date and on the last day of
March, June, September and December in each year and on each date on which any
Commitment of such Lender shall expire or be terminated as provided herein, a
commitment fee (a "Commitment Fee") equal to the Applicable Percentage set forth
under the heading "Fee Percentage" in the definition of the term "Applicable
Percentage" per annum in effect from time to time on the average daily unused
amount of the Commitments of such Lender during the preceding quarter (or other
period commencing with the date of acceptance by the Borrower of the Commitment
of such Lender or ending with the Revolving Credit Maturity Date or the date on
which the Commitments of such Lender shall expire or be terminated). All
Commitment Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days. The Commitment Fee due to each Lender shall
commence to accrue on the date of acceptance by the Borrower of the Commitment
of such Lender and shall cease to accrue on the date on which the Commitment of
such Lender shall expire or be terminated as provided herein. For purposes of
this Section 2.05, the unused amount of any Lender's Revolving Credit Commitment
on any date shall equal such Lender's Revolving Credit Commitment on such date
minus such Lender's outstanding Revolving Loans and L/C Exposure on such date.
(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, the administrative fees set forth in the Fee Letter at the times and in
the amounts specified therein (the "Administrative Agent Fees").
(c) The Borrower agrees to pay (i) to each Revolving Credit Lender,
through the Administrative Agent, on the last day of March, June, September and
December of each year and on the date on which the Revolving Credit Commitment
of such Lender shall be terminated as provided herein, a fee (an "L/C
Participation Fee") calculated on such Lender's Pro Rata Percentage of the
average daily aggregate L/C Exposure (excluding the portion thereof attributable
to unreimbursed L/C Disbursements) during the preceding quarter (or shorter
period commencing with the date hereof or ending with the Revolving Credit
Maturity Date or the date on which all Letters of Credit have been canceled or
have expired and the Revolving Credit Commitments of all Lenders shall have been
terminated) at a rate equal to the Applicable Percentage from time to time used
to determine the interest rate on Revolving Credit Borrowings comprised of
Eurodollar Loans pursuant to Section 2.06, and (ii) to the Issuing Bank with
respect to each Letter of Credit the standard fronting, issuance and drawing
fees specified from time to time by the Issuing Bank (the "Issuing Bank Fees").
All L/C Participation Fees and Issuing Bank Fees shall be computed on the basis
of the actual number of days elapsed in a year of 360 days.
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the
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Issuing Bank Fees shall be paid directly to the Issuing Bank. Once paid, none of
the Fees shall be refundable under any circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
Section 2.07, the Loans comprising each ABR Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 365
or 366 days, as the case may be, when the Alternate Base Rate is determined by
reference to the Prime Rate and over a year of 360 days at all other times) at a
rate per annum equal to the Alternate Base Rate plus the Applicable Percentage
in effect from time to time.
(b) Subject to the provisions of Section 2.07, the Loans comprising
each Eurodollar Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum equal
to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Percentage in effect from time to time.
(c) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest
Period or day within an Interest Period, as the case may be, shall be determined
by the Administrative Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, or under any other Loan Document,
the Borrower shall on demand from time to time pay interest, to the extent
permitted by law, on such defaulted amount to but excluding the date of actual
payment (after as well as before judgment) (a) in the case of overdue principal,
at the rate otherwise applicable to such Loan pursuant to Section 2.06 plus
2.00% per annum and (b) in all other cases, at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 365 or 366 days, as
the case may be, when determined by reference to the Prime Rate and over a year
of 360 days at all other times) equal to the sum of the Alternate Base Rate plus
2.00%.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined in good faith that dollar deposits in the principal amounts of the
Loans comprising such Borrowing are not generally available in the London
interbank market, or that the rates at which such dollar deposits are being
offered will not adequately and fairly reflect the cost to any Lender of making
or maintaining its Eurodollar Loan during such Interest Period, or that
reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the
Administrative Agent shall, as soon as practicable thereafter, but, in any
event, prior to the commencement of any Interest Period, give written or
telecopy notice of such determination to the Borrower and the Lenders. In the
event of any such determination, until the Administrative Agent shall have
advised the Borrower and the Lenders that the circumstances giving rise to such
notice no longer exist, any request by the Borrower for a Eurodollar Borrowing
pursuant to Section 2.03 or 2.10 shall be deemed to be a request for an ABR
Borrowing. Each determination by the Administrative Agent hereunder shall be
conclusive absent manifest error.
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SECTION 2.09. Termination and Reduction of Commitments. (a) The Term
Loan Commitments shall automatically terminate at 5:00 p.m., New York City time,
on the Closing Date. The Revolving Credit Commitments and the L/C Commitment
shall automatically terminate on the Revolving Credit Maturity Date.
Notwithstanding the foregoing, all the Commitments shall automatically terminate
at 5:00 p.m., New York City time, on April 30, 1997, if the initial Credit Event
shall not have occurred by such time.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce, in
each case, without premium or penalty, the Term Loan Commitments or the
Revolving Credit Commitments; provided, however, that (i) each partial reduction
of the Term Loan Commitments or the Revolving Credit Commitments shall be in an
integral multiple of $500,000 and in a minimum amount of $1,000,000 and (ii) the
Total Revolving Credit Commitment shall not be reduced to an amount that is less
than the Aggregate Revolving Credit Exposure at the time.
(c) Each reduction in the Term Loan Commitments or the Revolving Credit
Commitments hereunder shall be made ratably among the Lenders in accordance with
their respective applicable Commitments. The Borrower shall pay to the
Administrative Agent for the account of the applicable Lenders, on the date of
each termination or reduction, the unpaid Commitment Fees on the amount of the
Commitments so terminated or reduced accrued to but excluding the date of such
termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 11:00 a.m., New York City time, on the
Business Day of conversion, to convert any Eurodollar Borrowing into an ABR
Borrowing, (b) not later than 10:00 a.m., New York City time, three Business
Days prior to conversion or continuation, to convert any ABR Borrowing into a
Eurodollar Borrowing or to continue any Eurodollar Borrowing as a Eurodollar
Borrowing for an additional Interest Period, and (c) not later than 10:00 a.m.,
New York City time, three Business Days prior to conversion, to convert the
Interest Period with respect to any Eurodollar Borrowing to another permissible
Interest Period, subject in each case to the following:
(i) each conversion or continuation shall be made pro rata
among the Lenders in accordance with the respective principal amounts
of the Loans comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting
Borrowing shall satisfy the limitations specified in Sections 2.02(a)
and 2.02(b) regarding the principal amount and maximum number of
Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the
new Loan of such Lender resulting from such conversion and reducing the
Loan (or portion thereof) of such Lender being converted by an
equivalent principal amount; accrued and unpaid interest on any
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Eurodollar Loan (or portion thereof) being converted shall be paid by
the Borrower at the time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time other
than the end of the Interest Period applicable thereto, the Borrower
shall pay, upon demand, any amounts due to the Lenders pursuant to
Section 2.16;
(v) any portion of a Borrowing maturing or required to be repaid
in less than one month may not be converted into or continued as a
Eurodollar Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be
converted into or continued as a Eurodollar Borrowing by reason of the
immediately preceding clause shall be automatically converted at the
end of the Interest Period in effect for such Borrowing into an ABR
Borrowing;
(vii) no Interest Period may be selected for any Eurodollar Term
Borrowing that would end later than a Term Loan Repayment Date
occurring on or after the first day of such Interest Period if, after
giving effect to such selection, the aggregate outstanding amount of
the sum of (A) the Eurodollar Term Borrowings with Interest Periods
ending on or prior to such Term Loan Repayment Date and (B) the ABR
Term Borrowings would not be at least equal to the principal amount of
Term Borrowings to be paid on such Term Loan Repayment Date; and
(viii) upon notice to the Borrower from the Administrative Agent
given at the request of the Required Lenders, after the occurrence and
during the continuance of a Default or Event of Default, no outstanding
Loan may be converted into, or continued as, a Eurodollar Loan.
Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the Borrower requests be converted or continued, (ii) whether
such Borrowing is to be converted to or continued as a Eurodollar Borrowing or
an ABR Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.10 and of each Lender's portion of any converted or
continued Borrowing. If the Borrower shall not have given notice in accordance
with this Section 2.10 to continue any Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this
Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be continued into a new Interest Period as an ABR Borrowing.
SECTION 2.11. Repayment of Term Borrowings. (a) (i) The Borrower shall
pay to the Administrative Agent, for the account of the Lenders, on each March
31, June 30, September 30
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and December 31 and on the Tranche A Maturity Date, or if any such date is not a
Business Day, on the next succeeding Business Day (each such date being a
"Tranche A Term Loan Repayment Date"), commencing September 30, 1997, a
principal amount of the Tranche A Term Loans (as adjusted from time to time
pursuant to Sections 2.11(b), 2.12 and 2.13(h)) equal to $1,000,000, together in
each case with accrued and unpaid interest on the principal amount thereof to be
paid to but excluding the date of such payment.
(ii) The Borrower shall pay to the Administrative Agent, for the
account of the Lenders, on each March 31, June 30, September 30 and December 31
and on the Tranche B Maturity Date or, if any such date is not a Business Day,
on the next succeeding Business Day (each such date being a "Tranche B Term Loan
Repayment Date"), commencing September 30, 1997, a principal amount of the
Tranche B Term Loans (as adjusted from time to time pursuant to Sections
2.11(b), 2.12 and 2.13(h)) equal to (A) $250,000 on each Tranche B Term Loan
Repayment Date on or prior to June 30, 2002 and (B) $2,500,000 on each Tranche B
Term Loan Repayment Date thereafter, together in each case with accrued and
unpaid interest on the principal amount thereof to be paid to but excluding the
date of such payment.
(b) In the event and on each occasion that any Term Loan Commitments
shall be reduced or shall expire or terminate other than as a result of the
making of a Term Loan, the installments payable on each Term Loan Repayment Date
shall be reduced pro rata by an aggregate amount equal to the amount of such
reduction, expiration or termination.
(c) To the extent not previously paid, all Tranche A Term Loans and
Tranche B Term Loans shall be due and payable on the Tranche A Maturity Date and
Tranche B Maturity Date, respectively, together with accrued and unpaid interest
on the principal amount to be paid to but excluding the date of payment.
(d) All repayments pursuant to this Section 2.11 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.12. Optional Prepayment. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing, in whole or in
part, upon at least three Business Days' prior written or telecopy notice (or
telephone notice promptly confirmed by written or telecopy notice) in the case
of Eurodollar Loans, or prior written or telecopy notice (or telephone notice
promptly confirmed by written or telecopy notice) on or prior to the date of
prepayment in the case of ABR Loans, to the Administrative Agent before 11:00
a.m., New York City time; provided, however, that each partial prepayment shall
be in an amount that is an integral multiple of $500,000 and not less than
$1,000,000.
(b) Optional prepayments of Term Loans shall be allocated pro rata
between the then-outstanding Tranche A Term Loans and Tranche B Term Loans and
applied pro rata against the remaining scheduled installments of principal due
in respect of the Tranche A Term Loans and Tranche B Term Loans under Sections
2.11(a)(i) and (ii), respectively.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the
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Borrower to prepay such Borrowing by the amount stated therein on the date
stated therein. All prepayments under this Section 2.12 shall be subject to
Section 2.16 but otherwise without premium or penalty. All prepayments under
this Section 2.12 shall be accompanied by accrued but unpaid interest on the
principal amount being prepaid to the date of payment.
SECTION 2.13. Mandatory Prepayments. (a) In the event of any
termination of all the Revolving Credit Commitments, the Borrower shall repay or
prepay all its outstanding Revolving Credit Borrowings on the date of such
termination. In the event of any partial reduction of the Revolving Credit
Commitments, then (i) at or prior to the effective date of such reduction, the
Administrative Agent shall notify the Borrower and the Revolving Credit Lenders
of the Aggregate Revolving Credit Exposure after giving effect thereto and (ii)
if the Aggregate Revolving Credit Exposure would exceed the Total Revolving
Credit Commitment after giving effect to such reduction or termination, then the
Borrower shall, on the date of such reduction or termination, repay or prepay
Revolving Credit Borrowings in an amount sufficient to eliminate such excess.
(b) If on any date the Aggregate Revolving Credit Exposure shall exceed
the Borrowing Base in effect at such time, the Borrower shall on such date apply
an amount equal to such excess first, to prepay the then outstanding Revolving
Loans (if any) and second, to the extent of any remaining excess (after the
prepayment of Revolving Loans), to replace outstanding Letters of Credit and/or
deposit an amount in cash in a cash collateral account established with the
Collateral Agent for the benefit of the Secured Parties.
(c) Not later than the third Business Day following the completion of
any Asset Sale, the Borrower shall apply 100% of the Net Cash Proceeds received
with respect thereto to prepay outstanding Term Loans in accordance with Section
2.13(h).
(d) In the event and on each occasion that an Equity Issuance occurs,
the Borrower shall, substantially simultaneously with (and in any event not
later than the third Business Day next following) the occurrence of such Equity
Issuance, apply 100% of the Net Cash Proceeds therefrom to prepay outstanding
Term Loans in accordance with Section 2.13(h).
(e) No later than the earlier of (i) 90 days after the end of each
fiscal year of the Borrower, commencing with the fiscal year ending on March 31,
1998, and (ii) the date on which the financial statements with respect to such
period are delivered pursuant to Section 5.04(a), the Borrower shall prepay
outstanding Term Loans in accordance with Section 2.13(h) in an aggregate
principal amount equal to 50% of Excess Cash Flow for the fiscal year then
ended.
(f) In the event that any Loan Party or any subsidiary of a Loan Party
shall receive Net Cash Proceeds from the issuance or other disposition of
Indebtedness for money borrowed of any Loan Party or any subsidiary of a Loan
Party (other than Indebtedness for money borrowed permitted pursuant to Section
6.01), the Borrower shall, substantially simultaneously with (and in any event
not later than the third Business Day next following) the receipt of such Net
Cash Proceeds by such Loan Party or such subsidiary, apply an amount equal to
100% of such Net Cash Proceeds to prepay outstanding Term Loans in accordance
with Section 2.13(h).
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(g) In the event that there shall occur any Casualty or Condemnation
and, pursuant to the applicable Mortgage, the Casualty Proceeds or Condemnation
Proceeds, as the case may be, are required to be used to prepay the Term Loans,
then the Borrower shall apply an amount equal to 100% of such Casualty Proceeds
or Condemnation Proceeds, as the case may be, to prepay outstanding Term Loans
in accordance with Section 2.13(h).
(h) Mandatory prepayments of outstanding Term Loans under this
Agreement shall be allocated pro rata between the then-outstanding Tranche A
Term Loans and Tranche B Term Loans, and, subject to paragraph (k) below,
applied pro rata against the remaining scheduled installments of principal due
in respect of Tranche A Term Loans and Tranche B Term Loans under Sections
2.11(a)(i) and (ii), respectively.
(i) The Borrower shall deliver to the Administrative Agent, at the time
of each prepayment required under this Section 2.13, (i) a certificate signed by
a Financial Officer of the Borrower setting forth in reasonable detail the
calculation of the amount of such prepayment and (ii) to the extent practicable,
at least three days prior written notice of such prepayment. Each notice of
prepayment shall specify the prepayment date, the Type of each Loan being
prepaid and the principal amount of each Loan (or portion thereof) to be
prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject
to Section 2.16, but shall otherwise be without premium or penalty.
(j) Amounts to be applied pursuant to this Section 2.13 to the
prepayment of Term Loans and Revolving Loans shall be applied, as applicable,
first to reduce outstanding ABR Term Loans and ABR Revolving Loans. Any amounts
remaining after each such application shall, at the option of the Borrower, be
applied to prepay Eurodollar Term Loans or Eurodollar Revolving Loans, as the
case may be, immediately and/or shall be deposited in the Prepayment Account (as
defined below). The Administrative Agent shall apply any cash deposited in the
Prepayment Account (i) allocable to Term Loans to prepay Eurodollar Term Loans
and (ii) allocable to Revolving Loans to prepay Eurodollar Revolving Loans, in
each case on the last day of their respective Interest Periods (or, at the
direction of the Borrower, on any earlier date) until all outstanding Term Loans
or Revolving Loans, as the case may be, have been prepaid or until all the
allocable cash on deposit with respect to such Loans has been exhausted. For
purposes of this Agreement, the term "Prepayment Account" shall mean an account
established by the Borrower with the Administrative Agent and over which the
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal for application in accordance with this paragraph
(j). The Administrative Agent will, at the request of the Borrower, invest
amounts on deposit in the Prepayment Account in Permitted Investments that
mature prior to the last day of the applicable Interest Periods of the
Eurodollar Term Borrowings or Euro dollar Revolving Borrowings to be prepaid, as
the case may be; provided, however, that (i) the Administrative Agent shall not
be required to make any investment that, in its sole judgment, would require or
cause the Administrative Agent to be in, or would result in any, violation of
any law, statute, rule or regulation and (ii) the Administrative Agent shall
have no obligation to invest amounts on deposit in the Prepayment Account if an
Event of Default shall have occurred and be continuing. The Borrower shall
indemnify the Administrative Agent for any losses relating to the investments so
that the amount available to prepay Eurodollar Borrowings on the last day of the
applicable Interest Period is not less than the amount that would have been
available had no investments been made pursuant thereto. Other than any interest
earned on such investments, the Prepayment Account shall not bear interest.
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Interest or profits, if any, on such investments shall be deposited in the
Prepayment Account and reinvested and disbursed as specified above. If the
maturity of the Loans has been accelerated pursuant to Article VII, the
Administrative Agent may, in its sole discretion, apply all amounts on deposit
in the Prepayment Account to satisfy any of the Obligations. The Borrower hereby
grants to the Administrative Agent, for its benefit and the benefit of the
Issuing Bank and the Lenders, a security interest in the Prepayment Account to
secure the Obligations.
(k) Any Tranche B Lender may elect, by notice to the Administrative
Agent in writing (or by telephone or telecopy promptly confirmed in writing) at
least one Business Day prior to any prepayment of Tranche B Term Loans required
to be made by the Borrower for the account of such Lender pursuant to Section
2.13(c), (d), (e), (f) or (g), to cause all or a portion of such prepayment to
be applied instead to prepay Tranche A Term Loans in accordance with paragraph
(h) above.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender or the Issuing
Bank of the principal of or interest on any Eurodollar Loan made by such Lender
or any Fees or other amounts payable hereunder (other than changes in respect of
taxes imposed on the overall net income of such Lender or the Issuing Bank by
the jurisdiction in which such Lender or the Issuing Bank has its principal
office or lending office or by any political subdivision or taxing authority
therein), or shall 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 or the Issuing Bank (except any such
reserve requirement which is reflected in the Adjusted LIBO Rate) or shall
impose on such 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 or the Issuing Bank of
making or maintaining any Eurodollar Loan or increase the cost to any Lender of
issuing or maintaining any Letter of Credit or purchasing or maintaining a
participation therein 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) by an amount reasonably deemed by such Lender or the Issuing Bank to
be material, then the Borrower will pay to such Lender or the Issuing Bank, as
the case may be, upon demand 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 shall have determined that the
adoption after the date hereof of any law, rule, regulation, agreement or
guideline regarding capital adequacy, or any change after the date hereof in any
such law, rule, regulation, agreement or guideline (whether such law, rule,
regulation, agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or the Issuing Bank or any Lender's or the
Issuing Bank's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Governmental
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Authority 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 or participations in Letters of Credit purchased by such Lender
pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant
hereto 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
applicability, adoption, change or compliance (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) by an amount
reasonably deemed by such Lender or the Issuing Bank to be material, then from
time to time the Borrower shall 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 or such Lender's or the Issuing Bank's holding company for any
such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts reasonably determined by such Lender or Issuing Bank to be
necessary to compensate such Lender or the Issuing Bank or its holding company,
as applicable, as specified in paragraph (a) or (b) above shall be delivered to
the Borrower and shall be conclusive absent manifest error. The Borrower shall
pay such Lender or the Issuing Bank the amount shown as due on any such
certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation. The
protection of this Section shall be available to each Lender and the Issuing
Bank regardless of any possible contention of the invalidity or inapplicability
of the law, rule, regulation, agreement, guideline or other change or condition
that shall have occurred or been imposed.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other
provision of this Agreement, if, after the date hereof, any change in any law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not
thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods and
ABR Loans will not thereafter (for such duration) be converted into
Eurodollar Loans), whereupon any request for a Eurodollar Borrowing (or
to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a
Eurodollar Borrowing for an additional Interest Period) shall, as to
such Lender only, be deemed a request for an ABR Loan (or a request to
continue an ABR Loan as such for an additional Interest Period or to
convert a Eurodollar Loan into an ABR Loan, as the case may be), unless
such declaration shall be subsequently withdrawn; and
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(ii) such Lender may require that all outstanding Eurodollar
Loans made by it be converted to ABR Loans, in which event all such
Eurodollar Loans shall be automatically converted to ABR Loans as of
the effective date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender
against any loss or expense that such Lender may sustain or incur as a
consequence of (a) any event, other than a default by such Lender in the
performance of its obligations hereunder, which results in (i) such Lender
receiving or being deemed to receive any amount on account of the principal of
any Eurodollar Loan prior to the end of the Interest Period in effect therefor,
(ii) the conversion of any Eurodollar Loan to an ABR Loan, or the conversion of
the Interest Period with respect to any Eurodollar Loan, in each case other than
on the last day of the Interest Period in effect therefor, or (iii) any
Eurodollar Loan to be made by such Lender (including any Eurodollar Loan to be
made pursuant to a conversion or continuation under Section 2.10) not being made
after notice of such Loan shall have been given by the Borrower hereunder (any
of the events referred to in this clause (a) being called a "Breakage Event") or
(b) any default in the making of any payment or prepayment required to be made
hereunder. In the case of any Breakage Event, such loss shall include an amount
equal to the excess, as reasonably determined by such Lender, of (i) its cost of
obtaining funds for the Eurodollar Loan that is the subject of such Breakage
Event for the period from the date of such Breakage Event to the last day of the
Interest Period in effect (or that would have been in effect) for such Loan over
(ii) the amount of interest likely to be realized by such Lender in redeploying
the funds released or not utilized by reason of such Breakage Event for such
period. A certificate of any Lender setting forth any amount or amounts which
such Lender is entitled to receive pursuant to this Section 2.16 shall be
delivered to the Borrower and shall be conclusive absent manifest error.
SECTION 2.17. Pro Rata Treatment. Except as required under Sections
2.13(j), 2.14, 2.15 or 2.20, each Borrowing, each payment or prepayment of
principal of any Borrowing, each payment of interest on the Loans, each payment
of the Commitment Fees, each reduction of the Term Loan Commitments or the
Revolving Credit Commitments and each conversion of any Borrowing to or
continuation of any Borrowing as a Borrowing of any Type shall be allocated pro
rata among the Lenders in accordance with their respective applicable
Commitments (or, if such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of their outstanding Loans).
Each Lender agrees that in computing such Lender's portion
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of any Borrowing to be made hereunder, the Administrative Agent may, in its
discretion, round each Lender's percentage of such Borrowing to the next higher
or lower whole dollar amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Loan or Loans or L/C Disbursement as a result of which the unpaid principal
portion of its Tranche A Term Loans, Tranche B Term Loans, Revolving Loans or
participations in L/C Disbursements shall be proportionately less than the
unpaid principal portion of the Tranche A Term Loans, Tranche B Term Loans,
Revolving Loans or participations in L/C Disbursements of any other Lender, it
shall be deemed simultaneously to have purchased from such other Lender at face
value, and shall promptly pay to such other Lender the purchase price for, a
participation in the Tranche A Term Loans, Tranche B Term Loans, Revolving Loans
or L/C Exposure, as the case may be of such other Lender, so that the aggregate
unpaid principal amount of the Tranche A Term Loans, Tranche B Term Loans,
Revolving Loans and L/C Exposure and participations in Tranche A Term Loans,
Tranche B Term Loans, Revolving Loans and L/C Exposure held by each Lender shall
be in the same proportion to the aggregate unpaid principal amount of all
Tranche A Term Loans, Tranche B Term Loans, Revolving Loans and L/C Exposure
then outstanding as the principal amount of its Tranche A Term Loans, Tranche B
Term Loans, Revolving Loans and L/C Exposure prior to such exercise of banker's
lien, setoff or counterclaim or other event was to the principal amount of all
Tranche A Term Loans, Tranche B Term Loans, Revolving Loans and L/C Exposure
outstanding prior to such exercise of banker's lien, setoff or counterclaim or
other event; provided, however, that if any such purchase or purchases or
adjustments shall be made pursuant to this Section 2.18 and the payment giving
rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustment restored without interest. The Borrower and
Holdings expressly consent to the foregoing arrangements and agree that any
Lender holding a participation in a Term Loan, Revolving Loan or L/C
Disbursement deemed to have been so purchased may exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any and all moneys owing
by the Borrower and Holdings to such Lender by reason thereof as fully as if
such Lender had made a Loan directly to the Borrower in the amount of such
participation.
SECTION 2.19. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement or
any Fees or other amounts) hereunder and under any other Loan Document not later
than 1:00 p.m., New York City time, on the date when due in immediately
available dollars, without setoff, defense or counterclaim. Each such payment
(other than Issuing Bank Fees, which shall be paid directly to the Issuing Bank)
shall be made to the Administrative Agent at its offices at 270 Park Avenue, New
York, New York by wire transfer.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the
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next succeeding Business Day, and such extension of time shall in such case be
included in the computation of interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that, if the
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 shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The 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 hereunder (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 delivered to the Borrower 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 to a Governmental Authority, the Borrower 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 that is entitled to an exemption from or
reduction of withholding tax under the Code and the law of the jurisdiction in
which the Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall 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.
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate. (a) In the event (i) any Lender or the Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or
the Issuing Bank delivers a notice described in Section 2.15 or (iii) the
Borrower is required to pay any additional amount to any
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Lender or the Issuing Bank or any Governmental Authority on account of any
Lender or the Issuing Bank pursuant to Section 2.20, the Borrower may, at its
sole expense and effort (including with respect to the processing and
recordation fee referred to in Section 9.04(b)), upon notice to such Lender or
the Issuing Bank and the Administrative Agent, require such Lender or the
Issuing Bank to transfer and assign, without recourse (in accordance with and
subject to the restrictions contained in Section 9.04), all of its interests,
rights and obligations under this Agreement to an assignee that shall assume
such assigned obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (x) such assignment shall not conflict
with any law, rule or regulation or order of any court or other Governmental
Authority having jurisdiction, (y) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Credit
Commitment is being assigned, of the Issuing Bank), which consent shall not
unreasonably be withheld, and (z) the Borrower or such assignee shall have paid
to the affected Lender or the Issuing Bank in immediately available funds an
amount equal to the sum of the principal of and interest accrued to the date of
such payment on the outstanding Loans or L/C Disbursements of such Lender or the
Issuing Bank, respectively, plus all Fees and other amounts accrued for the
account of such Lender or the Issuing Bank hereunder (including any amounts
under Section 2.14 and Section 2.16); provided further that, if prior to any
such transfer and assignment the circumstances or event that resulted in such
Lender's or the Issuing Bank's claim for compensation under Section 2.14 or
notice under Section 2.15 or the amounts paid pursuant to Section 2.20, as the
case may be, cease to cause such Lender or the Issuing Bank to suffer increased
costs or reductions in amounts received or receivable or reduction in return on
capital, or cease to have the consequences specified in Section 2.15, or cease
to result in amounts being payable under Section 2.20, as the case may be
(including as a result of any action taken by such Lender or the Issuing Bank
pursuant to paragraph (b) below), or if such Lender or the Issuing Bank shall
waive its right to claim further compensation under Section 2.14 in respect of
such circumstances or event or shall withdraw its notice under Section 2.15 or
shall waive its right to further payments under Section 2.20 in respect of such
circumstances or event, as the case may be, then such Lender or the Issuing Bank
shall not thereafter be required to make any such transfer and assignment
hereunder.
(b) If (i) any Lender or the Issuing Bank shall request compensation
under Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice
described in Section 2.15 or (iii) the Borrower is required to pay any
additional amount to any Lender or the Issuing Bank or any Governmental
Authority on account of any Lender or the Issuing Bank, pursuant to Section
2.20, then such Lender or the Issuing Bank shall use reasonable efforts (which
shall not require such Lender or the Issuing Bank to incur an unreimbursed loss
or unreimbursed cost or expense or otherwise take any action inconsistent with
its internal policies or legal or regulatory restrictions or suffer any
disadvantage or burden deemed by it to be significant) (x) to file any
certificate or document reasonably requested in writing by the Borrower or (y)
to assign its rights and delegate and transfer its obligations hereunder to
another of its offices, branches or affiliates, if such filing or assignment
would reduce its claims for compensation under Section 2.14 or enable it to
withdraw its notice pursuant to Section 2.15 or would reduce amounts payable
pursuant to Section 2.20, as the case may be, in the future. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender or the
Issuing Bank in connection with any such filing or assignment, delegation and
transfer.
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SECTION 2.22. Letters of Credit. (a) General. The Borrower may request
the issuance of a Letter of Credit for its own account or the account of any
Subsidiary Guarantor, in a form reasonably acceptable to the Administrative
Agent and the Issuing Bank, at any time and from time to time while the
Revolving Credit Commitments remain in effect. This Section shall not be
construed to impose an obligation upon the Issuing Bank to issue any Letter of
Credit that is inconsistent with the terms and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. In order to request the issuance of a Letter of Credit (or to amend,
renew or extend an existing Letter of Credit), the Borrower shall hand deliver
or telecopy 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, the date of issuance, amendment,
renewal or extension, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) below), 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 such 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 Credit the Borrower shall be
deemed to represent and warrant that, after giving effect to such issuance,
amendment, renewal or extension (A) the L/C Exposure shall not exceed
$15,000,000 and (B) the Aggregate Revolving Credit Exposure shall not exceed the
lesser of (x) the Total Revolving Credit Commitment and (y) the Borrowing Base
in effect at such time.
(c) Expiration Date. Each Letter of Credit shall expire at the close of
business on the earlier of the date one year after the date of the issuance of
such Letter of Credit and the date that is five Business Days prior to the
Revolving Credit Maturity Date, unless such Letter of Credit expires by its
terms on an earlier date.
(d) Participations. By the issuance of a Letter of Credit and without
any further action on the part of the Issuing Bank or the Lenders, the Issuing
Bank hereby grants to each Revolving Credit Lender, and each such Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Pro Rata Percentage of the aggregate amount available to be
drawn under such Letter of Credit, effective upon the issuance of such Letter of
Credit. In consideration and in furtherance of the foregoing, each Revolving
Credit Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, such Lender's Pro
Rata Percentage of each L/C Disbursement made by the Issuing Bank and not
reimbursed by the Borrower (or, if applicable, another party pursuant to its
obligations under any other Loan Document) forthwith on the date due as provided
in Section 2.02(f). Each Revolving Credit 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 the occurrence and continuance of a
Default or an Event of Default, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit, the Borrower shall pay or cause to be paid to
the Administrative Agent an
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amount equal to such L/C Disbursement not later than 2:00 p.m. on the Business
Day the Borrower shall have received notice from the Issuing Bank that payment
of such draft will be made, or, if the Borrower shall have received such notice
later than 10:00 a.m., New York City time, on any Business Day, not later than
10:00 a.m., New York City time, on the immediately following Business Day.
(f) Obligations Absolute. The Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above 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 any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or any Loan
Document;
(iii) the existence of any claim, setoff, defense or other
right that the Borrower, any other party guaranteeing, or otherwise
obligated with, the Borrower, any Subsidiary or other Affiliate thereof
or any other person may at any time have against the beneficiary under
any Letter of Credit, the Issuing Bank, the Administrative Agent or any
Lender or any other person, whether in connection with this Agreement,
any other Loan Document or any other related or unrelated agreement or
transaction;
(iv) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(v) 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; and
(vi) any other act or omission to act or delay of any kind of
the Issuing Bank, the Lenders, the Administrative Agent or any other
person or 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 the
Borrower's obligations hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of the
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or wilful misconduct of the Issuing Bank. However, the
foregoing shall not 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 gross negligence or wilful misconduct in determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof; it is understood that the Issuing Bank may accept documents that
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appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary and, in
making any payment under any Letter of Credit (i) the Issuing Bank's exclusive
reliance on the documents presented to it under such Letter of Credit as to any
and all matters set forth therein, including reliance on the amount of any draft
presented under such Letter of Credit, whether or not the amount due to the
beneficiary thereunder equals the amount of such draft and whether or not any
document presented pursuant to such Letter of Credit proves to be insufficient
in any respect, if such document on its face appears to be in order, and whether
or not any other statement or any other document presented pursuant to such
Letter of Credit proves to be forged or invalid or any statement therein proves
to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance
in any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute wilful
misconduct or gross negligence of the Issuing Bank.
(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 as promptly as possible
give telephonic notification, confirmed by telecopy, to the Administrative Agent
and the Borrower of such demand for payment and whether the Issuing Bank has
made or will make an L/C 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 Credit Lenders with
respect to any such L/C Disbursement. The Administrative Agent shall promptly
give each Revolving Credit Lender notice thereof.
(h) Interim Interest. If the Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, then, unless the Borrower shall
reimburse such L/C Disbursement in full on such date, the unpaid amount thereof
shall bear interest for the account of the Issuing Bank, for each day from and
including the date of such L/C Disbursement, to but excluding the earlier of the
date of payment by the Borrower or the date on which interest shall commence to
accrue thereon as provided in Section 2.02(f), at the rate per annum that would
apply to such amount if such amount were an ABR Loan.
(i) Resignation or Removal of the Issuing Bank. The Issuing Bank may
resign at any time by giving 180 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower, and may be removed at any
time by the Borrower by notice to the Issuing Bank, the Administrative Agent and
the Lenders. Subject to the next succeeding paragraph, upon the acceptance of
any appointment as the Issuing Bank hereunder by a Lender that shall agree to
serve as successor Issuing Bank, such successor shall succeed to and become
vested with all the interests, rights and obligations of the retiring Issuing
Bank and the retiring Issuing Bank shall be discharged from its obligations to
issue additional Letters of Credit hereunder, without affecting its rights and
obligations with respect to Letters of Credit previously issued by it. At the
time such removal or resignation shall become effective, the Borrower shall pay
all accrued and unpaid fees pursuant to Section 2.05(c)(ii). The acceptance of
any appointment as the Issuing Bank hereunder by a successor Lender shall be
evidenced by an agreement entered into by such successor, in a form satisfactory
to the Borrower and the Administrative Agent, and, from and after the effective
date of such agreement, (i) such successor Lender shall have all the rights and
obligations of the previous Issuing Bank under this Agreement and the other Loan
Documents and (ii) references herein and in the other Loan Documents to the term
"Issuing Bank" shall be deemed to refer to
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such successor or to any previous Issuing Bank, or to such successor and all
previous Issuing Banks, as the context shall require. After the resignation or
removal of the Issuing Bank hereunder, the retiring Issuing Bank shall remain a
party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement and the other Loan Documents with respect to
Letters of Credit issued by it prior to such resignation or removal, but shall
not be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day it receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Credit Lenders holding participations in
outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Letters of Credit) thereof and of the amount
to be deposited, deposit in an account with the Collateral Agent, for the
benefit of the Revolving Credit Lenders, an amount in cash equal to the L/C
Exposure as of such date. Such deposit shall be held by the Collateral Agent as
collateral for the payment and performance of the Obligations. The Collateral
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 in Permitted Investments, which investments shall be
made at the option and sole discretion of the Collateral Agent, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall (i) automatically be
applied by the Administrative Agent to reimburse the Issuing Bank for L/C
Disbursements for which it has not been reimbursed, (ii) be held for the
satisfaction of the reimbursement obligations of the Borrower for the L/C
Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Credit Lenders holding
participations in outstanding Letters of Credit representing greater than 50% of
the aggregate undrawn amount of all outstanding Letters of Credit), be applied
to satisfy the Obligations. 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
Borrower within three Business Days after all Events of Default have been cured
or waived.
ARTICLE III
Representations and Warranties
Each of Holdings and the Borrower represents and warrants to the
Administrative Agent, the Collateral Agent, the Issuing Bank and each of the
Lenders that:
SECTION 3.01. Organization; Powers. Each of Holdings, the Borrower and
each of the Subsidiaries (a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, (b)
has all requisite power and authority to own its property and assets and to
carry on its business as now conducted and as proposed to be conducted, (c) is
qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required, except where the failure so to qualify
could not reasonably be expected to result in a Material Adverse Effect, and (d)
has the corporate power and authority to execute,
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deliver and perform its obligations under each of the Loan Documents and each
other agreement or instrument contemplated hereby to which it is or will be a
party and, in the case of the Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance by
each Loan Party of each of the Loan Documents and the borrowings hereunder and
the consummation of the Merger, the financing therefor, the payment by the
Borrower to former shareholders of Neenah of an aggregate amount not exceeding
$11,400,000 and the other transactions contemplated hereby and by the Merger
Agreement (collectively, the "Transactions") (a) have been duly authorized by
all requisite corporate and, if required, stockholder action and (b) will not
(i) violate (A) any provision of law, statute, rule or regulation, or of the
certificate or articles of incorporation or other constitutive documents or
by-laws of Holdings, the Borrower or any Subsidiary, (B) any order of any
Governmental Authority or (C) any provision of any material indenture, agreement
or other instrument to which Holdings, the Borrower or any Subsidiary is a party
or by which any of them or any of their property is or may be bound, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under, or give rise to any right to accelerate
or to require the prepayment, repurchase or redemption of any obligation under
any such indenture, agreement or other instrument or (iii) result in the
creation or imposition of any Lien upon or with respect to any property or
assets now owned or hereafter acquired by Holdings, the Borrower or any
Subsidiary (other than any Lien created hereunder or under the Security
Documents).
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by Holdings and the Borrower and constitutes, and each other Loan
Document when executed and delivered by the each Loan party thereto will
constitute, a legal, valid and binding obligation of such Loan Party enforceable
against such Loan Party in accordance with its terms, subject to the effects of
applicable bankruptcy, insolvency, moratorium, reorganization or similar laws
affecting creditors' rights generally and equitable principles of general
applicability (regardless of whether such enforceability is considered in a
proceeding at law or in equity).
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except for
(a) the filing of Uniform Commercial Code financing statements and filings with
the United States Patent and Trademark Office and the United States Copyright
Office, (b) recordation of the Mortgages and (c) such as have been made or
obtained and are in full force and effect.
SECTION 3.05. Financial Statements. (a) The Borrower has heretofore
furnished to the Lenders the consolidated balance sheets and statements of
income and cash flows of Neenah (i) as of and for the fiscal year ended March
31, 1996, audited by and accompanied by the opinion of Ernst & Young LLP,
independent public accountants, and (ii) as of and for the fiscal quarter and
the portion of the fiscal year ended December 31, 1996, certified by its chief
financial officer. Such financial statements present fairly the financial
condition and results of operations and cash flows of Neenah and its
consolidated Subsidiaries as of such dates and for such periods. Such balance
sheets and the notes thereto disclose all material liabilities, direct or
contingent, of Neenah
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and its consolidated Subsidiaries as of the dates thereof. Such financial
statements were prepared in accordance with GAAP applied on a consistent basis.
(b) The Borrower has heretofore delivered to the Lenders its unaudited
pro forma consolidated balance sheet and statements of income and changes in
financial condition as of March 31, 1997, prepared giving effect to the
Transactions as if they had occurred on such date. Such pro forma balance sheet
and other financial statements have been prepared in good faith by the Borrower,
based on the assumptions used to prepare the pro forma financial information
contained in the Confidential Information Memorandum (which assumptions are
believed by the Borrower on the date hereof and on the Closing Date to be
reasonable), is based on the best information available to the Borrower as of
the date of delivery thereof, accurately reflects all adjustments required to be
made to give effect to the Transactions and presents fairly on a pro forma basis
the estimated consolidated financial position of the Borrower and its
consolidated Subsidiaries as of such date, assuming that the Transactions had
actually occurred at such date.
SECTION 3.06. No Material Adverse Change. There has been no material
adverse change in the business, assets, operations, prospects, condition,
financial or otherwise, or material agreements of the Borrower and the
Subsidiaries, taken as a whole, since March 31, 1996.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of
Holdings, the Borrower and the Subsidiaries has good and marketable title to, or
valid leasehold interests in, all its material properties and assets (including
all Mortgaged Property), 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 and assets for their intended purposes. All such material
properties and assets are free and clear of Liens, other than Liens expressly
permitted by Section 6.02.
(b) Each of Holdings, the Borrower and the Subsidiaries has complied
with all obligations under all material leases to which it is a party and all
such leases are in full force and effect. Each of Holdings, the Borrower and the
Subsidiaries enjoys peaceful and undisturbed possession under all such material
leases.
(c) Neither Holdings nor the Borrower has received any notice of, nor
has any knowledge of, any pending or contemplated condemnation proceeding
materially and adversely affecting the Mortgaged Properties or any sale or
disposition thereof in lieu of condemnation.
(d) Except as set forth on Schedule 3.07(d), none of Holdings, the
Borrower or any of the Subsidiaries is obligated under any right of first
refusal, option or other contractual right to sell, assign or otherwise dispose
of any Mortgaged Property or any interest therein.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing
Date a list of all Subsidiaries and the percentage ownership interest of the
Borrower therein. The shares of capital stock or other ownership interests so
indicated on Schedule 3.08 are fully paid and non-assessable and are owned by
the Borrower, directly or indirectly, free and clear of all Liens (other than
Liens in favor of the Collateral Agent, created under the Security Documents).
Holdings owns 100% of the issued and outstanding capital stock of the Borrower,
free and clear of all Liens (other than Liens in favor of the Collateral Agent,
created under the Security Documents).
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SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth
on Schedule 3.09, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of Holdings or the Borrower, threatened against or affecting Holdings
or the Borrower or any Subsidiary or any business, property or rights of any
such person (i) that involve any Loan Document or the Transactions or (ii) as to
which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect.
(b) None of Holdings, the Borrower or any of the Subsidiaries or any of
their respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any law, rule or regulation (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permits) or any
restrictions of record or agreements affecting the Mortgaged Property, or is in
default with respect to any judgment, writ, injunction, decree or order of any
Governmental Authority, where such violation or default could reasonably be
expected to result in a Material Adverse Effect.
(c) Except as set forth on Schedule 3.09(c), certificates of occupancy
and permits to the extent required by law are in effect for each Mortgaged
Property as currently constructed, and true and complete copies of such
certificates of occupancy have been delivered to the Collateral Agent as
mortgagee with respect to each Mortgaged Property.
SECTION 3.10. Agreements. (a) Except as set forth on Schedule 3.10,
none of Holdings, the Borrower or any of the Subsidiaries is a party to any
agreement or instrument or subject to any corporate restriction that has
resulted or could reasonably be expected to result in a Material Adverse Effect.
(b) None of Holdings, the Borrower or any of the Subsidiaries is in
default in any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) None of Holdings, the
Borrower or 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, or that is inconsistent
with, the provisions of the Regulations of the Board, including Regulation G, U
or X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act. None of Holdings, the Borrower or any Subsidiary 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.
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SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of
the Loans and will request the issuance of Letters of Credit only for the
purposes specified in the preamble to this Agreement.
SECTION 3.14. Tax Returns. Each of the Holdings, the Borrower and the
Subsidiaries has filed or caused to be filed all Federal, material state,
material local and material foreign tax returns or materials required to have
been filed by it and has paid or caused to be paid all taxes shown on such
returns to be due and payable by it and all assessments received by it, except
taxes that are being contested in good faith by appropriate proceedings and for
which Holdings, the Borrower or such Subsidiary, as applicable, shall have set
aside on its books adequate reserves.
SECTION 3.15. No Material Misstatements. None of (a) the Confidential
Information Memorandum or (b) any other information, report, financial
statement, exhibit or schedule furnished by or on behalf of Holdings or the
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto contained, contains or will contain any material misstatement of fact or
omitted, omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were, are
or will be made, not misleading; provided that to the extent any such
information, report, financial statement, exhibit or schedule was based upon or
constitutes a forecast or projection, each of Holdings and the Borrower
represents only that it acted in good faith and utilized reasonable assumptions
and due care in the preparation of such information, report, financial
statement, exhibit or schedule.
SECTION 3.16. 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 all Plans in the aggregate (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 $2,000,000 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
$4,000,000 the fair market value of the assets of all such underfunded Plans.
SECTION 3.17. Environmental Matters. Except as set forth in Schedule
3.17:
(a) The properties owned or operated by Holdings, the Borrower and the
Subsidiaries (the "Properties") do not contain any Hazardous Materials in
amounts or concentrations which (i) constitute, or constituted a violation of,
(ii) require Remedial Action under, or (iii) could give rise to liability under,
Environmental Laws, which violations, Remedial Actions and liabilities, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;
(b) The Properties and all operations of the Borrower and the
Subsidiaries are in compliance, and in the last seven years have been in
compliance, with all Environmental Laws and all necessary Environmental Permits
have been obtained and are in effect, except to the extent that
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such non-compliance or failure to obtain any necessary permits, in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect;
(c) There have been no Releases or threatened Releases at, from, under
or proximate to the Properties or otherwise in connection with the operations of
the Borrower or the Subsidiaries, which Releases or threatened Releases, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;
(d) None of Holdings, the Borrower or any of the Subsidiaries has
received any notice of an Environmental Claim in connection with the Properties
or the operations of the Borrower or the Subsidiaries or with regard to any
person whose liabilities for environmental matters Holdings, the Borrower or the
Subsidiaries has retained or assumed, in whole or in part, contractually, by
operation of law or otherwise, which, in the aggregate, could reasonably be
expected to result in a Material Adverse Effect, nor do Holdings, the Borrower
or the Subsidiaries have reason to believe that any such notice will be received
or is being threatened; and
(e) Hazardous Materials have not been transported from the Properties,
nor have Hazardous Materials been generated, treated, stored or disposed of at,
on or under any of the Properties in a manner that could reasonably be expected
to give rise to liability under any Environmental Law, nor have the Borrower or
the Subsidiaries retained or assumed any liability, contractually, by operation
of law or otherwise, with respect to the generation, treatment, storage or
disposal of Hazardous Materials, which transportation, generation, treatment,
storage or disposal, or retained or assumed liabilities, in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and
correct description of all insurance maintained by the Borrower or by the
Borrower for its Subsidiaries as of the date hereof and the Closing Date. As of
each such date, such insurance is in full force and effect and all premiums have
been duly paid. The Borrower and its Subsidiaries have insurance in such amounts
and covering such risks and liabilities as are in accordance with normal
industry practice.
SECTION 3.19. 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 the Collateral is
delivered to the Collateral Agent and for so long as the Collateral Agent
continues to hold such Collateral, the Pledge Agreement shall constitute a fully
perfected first priority Lien on, and security interest in, all right, title and
interest of the pledgors thereunder in such Collateral, in each case prior and
superior in right to any other person.
(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
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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 6.02.
(c) When the Security Agreement 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 grantors thereunder in the Intellectual
Property (as defined in the Security Agreement), 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 grantors after the date hereof).
(d) The Mortgages are effective to create 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 Property thereunder and the proceeds thereof, and when the
Mortgages are filed in the offices specified on Schedule 3.19(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 Property 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 6.02.
SECTION 3.20. Location of Real Property and Leased Premises. (a)
Schedule 3.20(a) lists completely and correctly as of the Closing Date all real
property owned by the Borrower and the Subsidiaries and the addresses thereof.
The Borrower and the Subsidiaries own in fee all the real property set forth on
Schedule 3.20(a).
(b) Schedule 3.20(b) lists completely and correctly as of the Closing
Date all real property leased by the Borrower and the Subsidiaries and the
addresses thereof. The Borrower and such Subsidiaries have valid leasehold
interests in all the real property set forth on Schedule 3.20(b)
SECTION 3.21. Labor Matters. As of the date hereof and the Closing
Date, there are no strikes, lockouts or slowdowns against Holdings, the Borrower
or any Subsidiary pending or, to the knowledge of Holdings or the Borrower,
threatened. The hours worked by and payments made to employees of Holdings, the
Borrower and the Subsidiaries have not been in material violation of the Fair
Labor Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters. All payments due from Holdings, the Borrower or any
Subsidiary, or for which any claim may be made against Holdings, the Borrower or
any 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
Holdings, the Borrower or such 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 Holdings,
the Borrower or any Subsidiary is bound.
SECTION 3.22. Solvency. (a) Immediately after the consummation of the
Transactions to occur on the Closing Date and immediately following the making
of each Loan made on the Closing Date and after giving effect to the application
of the proceeds of such Loans, (i) the fair
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value of the assets of each Loan Party, at a fair valuation, will exceed its
debts and liabilities, subordinated, contingent or otherwise; (ii) 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; (iii) each Loan Party will be
able to pay its debts and liabilities, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured; and (iv) 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 Closing Date.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Bank to
issue Letters of Credit hereunder are subject to the satisfaction of the
following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing,
including on the date of each issuance of a Letter of Credit (each such event
being called a "Credit Event"):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 (or such notice shall have been deemed
given in accordance with Section 2.03) or, in the case of the issuance of a
Letter of Credit, the Issuing Bank and the Administrative Agent shall have
received a notice requesting the issuance of such Letter of Credit as required
by Section 2.22(b).
(b) Except in the case of a Borrowing that does not increase the
aggregate principal amount of Loans outstanding of any Lender, the
representations and warranties set forth in Article III hereof shall be true and
correct in all material respects on and as of the date of such Credit Event with
the same effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date.
(c) No Event of Default or Default shall have occurred and be
continuing.
Each Credit Event shall be deemed to constitute a representation and warranty by
the Borrower and Holdings on the date of such Credit Event as to the matters
specified in paragraphs (b) (except as aforesaid) and (c) of this Section 4.01.
SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of
itself, the Lenders and the Issuing Bank, a favorable written opinion
of (i) Kirkland & Ellis, counsel for Holdings and the Borrower,
substantially to the effect set forth in Exhibit J-1, and (ii) each
local counsel listed on Schedule 4.02(a), substantially to the effect
set forth in Exhibit J-2,
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in each case (A) dated the Closing Date, (B) addressed to the Issuing
Bank, the Administrative Agent and the Lenders, and (C) covering such
other matters relating to the Loan Documents and the Transactions as
the Administrative Agent shall reasonably request, and Holdings and the
Borrower hereby request such counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the
Borrowings and extensions of credit hereunder and the other Loan
Documents shall be satisfactory to the Lenders, to the Issuing Bank and
to Cravath, Swaine & Moore, counsel for the Administrative Agent.
(c) The Administrative Agent shall have received (i) a copy of
the certificate or articles of incorporation, including all amendments
thereto, of each Loan Party, certified as of a recent date by the
Secretary of State of the state of its organization, and a certificate
as to the good standing of each Loan Party as of a recent date, from
such Secretary of State (or, in lieu of such certificate as to good
standing for each Loan Party incorporated in the State of Wisconsin, a
certificate of status from the Wisconsin Department of Financial
Institutions as to such Loan Party's existence); (ii) a certificate of
the Secretary or Assistant Secretary of each Loan Party dated the
Closing Date and certifying (A) that attached thereto is a true and
complete copy of the by-laws of such Loan Party as in effect on the
Closing Date and at all times since a date prior to the date of the
resolutions described in clause (B) below, (B) that attached thereto is
a true and complete copy of resolutions duly adopted by the Board of
Directors of such Loan Party authorizing the execution, delivery and
performance of the Loan Documents to which such person is a party and,
in the case of the Borrower, the borrowings hereunder, and that such
resolutions have not been modified, rescinded or amended and are in
full force and effect, (C) that the certificate or articles of
incorporation of such Loan Party have not been amended since the date
of the last amendment thereto shown on the certificate of good standing
furnished pursuant to clause (i) above, and (D) as to the incumbency
and specimen signature of each officer executing any Loan Document or
any other document delivered in connection herewith on behalf of such
Loan Party; (iii) a certificate of another officer as to the incumbency
and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to (ii) above; and (iv) such other
documents as the Lenders, the Issuing Bank or Cravath, Swaine & Moore,
counsel for the Administrative Agent, may reasonably request.
(d) The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Financial Officer
of the Borrower, confirming compliance with the conditions precedent
set forth in paragraphs (b) and (c) of Section 4.01.
(e) The Administrative Agent shall have received all Fees and
other amounts due and payable on or prior to the Closing Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder or under any other Loan Document.
(f) The Pledge Agreement shall have been duly executed by the
parties thereto and delivered to the Collateral Agent and shall be in
full force and effect, and all the
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outstanding Capital Stock of the Borrower and the Subsidiaries shall
have been duly and validly pledged thereunder to the Collateral Agent
for the ratable benefit of the Secured Parties and certificates
representing such shares, accompanied by instruments of transfer and
stock powers endorsed in blank, shall be in the actual possession of
the Collateral Agent; provided that, to the extent to do so would cause
adverse tax consequence to the Borrower, (i) neither the Borrower nor
any Domestic Subsidiary shall be required to pledge more than 65% of
the capital stock of any Foreign Subsidiary and (ii) no Foreign
Subsidiary shall be required to pledge the capital stock of any of its
Foreign Subsidiaries.
(g) The Security Agreement shall have been duly executed by
the Loan Parties party thereto and shall have been delivered to the
Collateral Agent and shall be in full force and effect on such date and
each document (including each Uniform Commercial Code financing
statement) required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded in order to
create in favor of the Collateral Agent for the benefit of the Secured
Parties a valid, legal and perfected first-priority security interest
in and lien on the Collateral (subject to any Lien expressly permitted
by Section 6.02) described in such agreement shall have been delivered
to the Collateral Agent.
(h) The Collateral Agent shall have received the results of a
search of the Uniform Commercial Code (or equivalent filings) filings
made with respect to the Loan Parties in the states (or other
jurisdictions) in which the chief executive office of each such person
is located, any offices of such persons in which records have been kept
relating to Accounts and the other jurisdictions in which Uniform
Commercial Code filings (or equivalent filings) are to be made pursuant
to the preceding paragraph, together with copies of the financing
statements (or similar documents) disclosed by such search, and
accompanied by evidence satisfactory to the Collateral Agent that the
Liens indicated in any such financing statement (or similar document)
would be permitted under Section 6.02 or have been released.
(i) The Collateral Agent shall have received a Perfection
Certificate with respect to the Loan Parties dated the Closing Date and
duly executed by a Responsible Officer of the Borrower.
(j) Each of the Security Documents, in form and substance
satisfactory to the Lenders, relating to each of the Mortgaged
Properties shall have been duly executed by the parties thereto and
delivered to the Collateral Agent and shall be in full force and
effect, (ii) each of such Mortgaged Properties shall not be subject to
any Lien other than those permitted under Section 6.02, (iii) each of
such Security Documents shall have been filed and recorded in the
recording office as specified on Schedule 3.19(d) (or a lender's marked
and redated title commitment for title insurance, in form and substance
acceptable to the Collateral Agent, insuring such Security Document as
a first lien on such Mortgaged Property (subject to any Lien permitted
by Section 6.02) shall have been received by the Collateral Agent) and,
in connection therewith, the Collateral Agent shall have received
evidence satisfactory to it of the title company's agreement to record
or file such Security Documents, as applicable, and (iv) the Collateral
Agent shall have received such other
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documents, including a policy or policies of title insurance issued by
a nationally recognized title insurance company, together with such
endorsements, coinsurance and reinsurance as may be requested by the
Collateral Agent and the Lenders, insuring the Mortgages as valid first
liens on the Mortgaged Properties, free of Liens other than those
permitted under Section 6.02, together with such surveys, abstracts,
appraisals and legal opinions required to be furnished pursuant to the
terms of the Mortgages or as reasonably requested by the Collateral
Agent or the Lenders.
(k) Each of the Parent Guarantee Agreement, the Subsidiary
Guarantee Agreement, the Indemnity, Subrogation and Contribution
Agreement and the Tax Sharing Agreement shall have been duly executed
by the parties thereto, shall have been delivered to the Collateral
Agent and shall be in full force and effect.
(l) The Administrative Agent shall have received a Borrowing
Base Certificate dated the Closing Date and executed by a Financial
Officer of the Borrower.
(m) The Administrative Agent shall have received a copy of, or
a certificate as to coverage under, the insurance policies required by
Section 5.02 and the applicable provisions of the Security Documents,
each of which shall be endorsed or otherwise amended to include a
"standard" or "New York" lender's loss payable endorsement and to name
the Collateral Agent as additional insured, in form and substance
satisfactory to the Administrative Agent.
(n) The Lenders shall be reasonably satisfied as to the amount
and nature of any environmental and employee health and safety
exposures to which the Borrower and the Subsidiaries may be subject and
the plans of the Borrower with respect thereto, after giving effect to
the Transactions and the consummation of the other transactions
contemplated hereby.
(o) The Lenders shall have received (i) appraisals,
satisfactory in form and substance to the Lenders, from MB Valuation
Services, Inc. or another firm acceptable to the Lenders, of the real
property, personal property and other assets of the Borrower, and (ii)
an audit, reasonably satisfactory in form and substance to the Lenders,
of the Accounts and inventory of the Borrower and the Subsidiaries, in
each case after giving effect to the Transactions and the consummation
of the other transactions contemplated hereby.
(p) The Administrative Agent shall have received an
environmental assessment report in form, scope and substance reasonably
satisfactory to the Lenders, from Strata Environmental, as to any
environmental hazards, liabilities or Remedial Action to which the
Borrower or any of the Subsidiaries may be subject and the Lenders
shall be reasonably satisfied with the nature and cost of any such
hazards, liabilities or Remedial Action and with the Borrower's plans
with respect thereto.
(q) The Equity Contribution shall have been made or shall be
made simultaneously with the making of the initial Credit Event, and
the Administrative Agent
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shall be satisfied with the portion of the Equity Contribution
contributed by each of the Investors.
(r) The Borrower shall have received gross proceeds from the
issuance of the Senior Subordinated Notes in the aggregate amount of
not less than $150,000,000, and the terms and conditions of the Senior
Subordinated Notes (including, without limitation, the interest rate,
maturity, covenants, subordination provisions and events of default)
shall be satisfactory in all respects to the Lenders.
(s) (i) The Merger shall have been consummated, or shall be
consummated simultaneously with the initial Credit Event, in accordance
with applicable law and the Merger Agreement, without giving effect to
any material waiver or amendment of the Merger Agreement not approved
in writing by the Lenders, and (ii) the Lenders shall (A) be reasonably
satisfied with the capitalization, structure and equity ownership of
the Borrower and its Subsidiaries and (B) be reasonably satisfied that
the aggregate level of fees and expenses to be paid in connection with
the Merger, the financing therefor and the other transactions
contemplated hereby shall not exceed $10,000,000.
(t) (i) After giving effect to the Merger and the other
transactions contemplated hereby, the Borrower and its Subsidiaries
shall have outstanding no Indebtedness or preferred stock other than
(A) the extensions of credit under this Agreement, (B) the Senior
Subordinated Notes and (C) the Indebtedness listed on Schedule 6.01 and
(ii) the Administrative Agent shall have received evidence satisfactory
to it that all Indebtedness pursuant to (A) the Credit Agreement dated
as of December 31, 1994, as amended, between Bank One, Milwaukee, N.A.
and Neenah, Neenah Foundry Company, Hartley Controls Corporation and
Neenah Transport, Inc. shall have been repaid in full, any commitments
thereunder shall have been terminated and all Liens with respect
thereto shall have been released, (B) the outstanding letters of credit
in an aggregate amount of $1,000,000 to secure worker's compensation
and other obligations shall have been replaced with Letters of Credit
and (C) the outstanding standby letter of credit dated October 1, 1995
issued by Bank One Appleton, NA for the benefit of ANR Pipeline and/or
affiliated companies and/or subsidiaries and shall have been replaced
with Letters of Credit.
(u) The Lenders shall have received the pro forma consolidated
financial statements described in Section 3.05(b), which shall be
reasonably satisfactory to the Lenders and shall not be materially
inconsistent with the forecasts previously provided to the Lenders.
(v) The Lenders shall have received a solvency letter from
Gordian Group, L.P. in form and substance reasonably satisfactory to
the Lenders, as to the solvency of the Borrower and its Subsidiaries on
a consolidated basis after giving effect to the Merger, the initial
Credit Event and the consummation of the other Transactions.
(w) All requisite material Governmental Authorities and third
parties shall have approved or consented to the Merger and the other
transactions contemplated hereby to
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the extent required, all applicable appeal periods shall have expired
and there shall be no governmental or judicial action, actual or
threatened, that has or could have a reasonable likelihood of
restraining, preventing or imposing burdensome conditions on the Merger
or the other transactions contemplated hereby, including, without
limitation, the consent of Bank One Leasing Corporation pursuant to the
Master Lease Agreement between Neenah Foundry Co. and Bank One Leasing
Corporation dated December 14, 1992.
(x) The Administrative Agent shall have received the financial
statements of the Borrower and its Subsidiaries described in Section
3.05(a)(ii), which financial statements shall not be materially
inconsistent with the forecasts for such period previously provided to
the Lenders.
(y) The Administrative Agent shall be reasonably satisfied
with all of the Borrower's material agreements with its customers.
(z) The Lenders shall be reasonably satisfied with the
sufficiency of amounts available hereunder to meet the ongoing working
capital requirements of the Borrower and its Subsidiaries following the
Merger and the consummation of the other transactions contemplated
hereby.
(aa) The Administrative Agent shall have received the
landlord's waivers described in the proviso of the definition of the
term "Eligible Inventory".
(bb) Upon the effectiveness of the Merger, Neenah Transport,
Inc. shall have notified Ryder Truck Rental, Inc. of the Merger
pursuant to the Truck Lease and Services Agreement between Ryder Truck
Rental, Inc. and Neenah Transport, Inc. dated March 12, 1992.
ARTICLE V
Affirmative Covenants
Each of Holdings and the Borrower covenants and agrees with each Lender
that until the Commitments have been terminated and the principal of and
interest on each Loan, all Fees and all other expenses or amounts payable under
any Loan Document (other than wholly contingent indemnification obligations)
shall have been paid in full and all Letters of Credit have been canceled or
have expired and all amounts drawn thereunder have been reimbursed in full or
cash collateralized to the satisfaction of the Administrative Agent and the
Issuing Bank, unless the Required Lenders shall otherwise consent in writing,
each of Holdings and the Borrower will, and will cause each of the Subsidiaries
to:
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SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.05.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect in all material respects the
rights, licenses, permits, franchises, authorizations, patents, copyrights,
trademarks and trade names material to the conduct of its business; maintain and
operate such business in substantially the manner in which it is presently
conducted and operated; comply in all material respects with all applicable
laws, rules, regulations (including any zoning, building, Environmental Law,
ordinance, code or approval or any building permits or any restrictions of
record or agreements affecting the Mortgaged Properties) and decrees and orders
of any Governmental Authority, whether now in effect or hereafter enacted,
except where such non-compliance could not reasonably be expected to result in a
Material Adverse Effect; and, except in the case of sales of assets permitted
pursuant to Section 6.05, at all times maintain and preserve all property
material to the conduct of such business and keep, in all material respects,
such property in good repair, working order and condition, normal wear and tear
excepted, and from time to time make, or cause to be made, all needful and
proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may be
properly conducted at all times.
SECTION 5.02. Insurance. In the case of the Borrower and each
Subsidiary:
(a) Keep its insurable properties adequately insured at all
times by financially sound and reputable insurers; and maintain such
other insurance, to such extent and against such risks, including fire
and other risks insured against by extended coverage, in each case as
is customary with companies in the same or similar businesses operating
in the same or similar locations, including public liability insurance
against claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use of any
properties owned, occupied or controlled by it; and maintain such other
insurance as may be required by law.
(b) Cause all such policies to be endorsed or otherwise
amended to include a "standard" or "New York" lender's loss payable
endorsement, in form and substance satisfactory to the Administrative
Agent and the Collateral Agent, which endorsement shall provide that,
from and after the Closing Date, if the insurance carrier shall have
received written notice from the Administrative Agent or the Collateral
Agent of the occurrence of an Event of Default, the insurance carrier
shall, during the continuance of such Event of Default, pay all
proceeds otherwise payable to the Borrower or the Loan Parties under
such policies directly to the Collateral Agent; cause all such policies
to provide that neither the Borrower, the Administrative Agent, the
Collateral Agent nor any other party shall be a coinsurer thereunder
and to contain a "Replacement Cost Endorsement", without any deduction
for depreciation, and such other provisions as the Administrative Agent
or the Collateral Agent may reasonably require from time to time to
protect their interests; deliver original or certified copies of all
such policies to the Collateral Agent; cause each such policy to
provide that it shall not be canceled, modified or not renewed (i) by
reason of nonpayment of premium upon not less than 10 days' prior
written notice thereof by the
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insurer to the Administrative Agent and the Collateral Agent (giving the
Administrative Agent and the Collateral Agent the right to cure defaults
in the payment of premiums) or (ii) for any other reason upon not less
than 30 days' prior written notice thereof by the insurer to the
Administrative Agent and the Collateral Agent; deliver to the
Administrative Agent and the Collateral Agent, prior to the cancellation,
modification or nonrenewal of any such policy of insurance, a copy of a
renewal or replacement policy (or other evidence of renewal of a policy
previously delivered to the Administrative Agent and the Collateral Agent)
together with evidence satisfactory to the Administrative Agent and the
Collateral Agent of payment of the premium therefor.
(c) If at any time the area in which the Premises (as defined in the
Mortgages) are located is designated (i) a "flood hazard area" in any
Flood Insurance Rate Map published by the Federal Emergency Management
Agency (or any successor agency), obtain flood insurance in such total
amount as the Administrative Agent, the Collateral Agent or the Required
Lenders may from time to time require, and otherwise comply with the
National Flood Insurance Program as set forth in the Flood Disaster
Protection Act of 1973, as it may be amended from time to time, or (ii) a
"Zone 1" area, obtain earthquake insurance in such total amount as the
Administrative Agent, the Collateral Agent or the Required Lenders may
from time to time require.
(d) With respect to any Mortgaged Property, carry and maintain
comprehensive general liability insurance including the "broad form CGL
endorsement" and coverage on an occurrence basis against claims made for
personal injury (including bodily injury, death and property damage) and
umbrella liability insurance against any and all claims, in no event for a
combined single limit of less than $25,000,000, naming the Collateral
Agent as an additional insured, on forms satisfactory to the Collateral
Agent.
(e) Notify the Administrative Agent and the Collateral Agent
immediately whenever any separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained
under this Section 5.02 is taken out by the Borrower; and promptly deliver
to the Administrative Agent and the Collateral Agent a duplicate original
copy of such policy or policies.
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and other
obligations promptly and in accordance with their terms and pay and discharge
promptly when due all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise that, if unpaid, might
give rise to a Lien upon such properties or any part thereof; provided, however,
that such payment and discharge shall not be required with respect to any such
tax, assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Borrower
shall have set aside on its books adequate reserves with respect thereto in
accordance with GAAP and such contest operates to suspend collection of the
contested obligation, tax, assessment or charge and enforcement of a Lien and,
in the case of a Mortgaged Property, there is no risk of forfeiture of such
property.
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SECTION 5.04. Financial Statements, Reports, etc. In the case of the
Borrower, furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year, its
consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows showing the financial condition of the
Borrower and its consolidated Subsidiaries as of the close of such fiscal
year and the results of its operations and the operations of such
Subsidiaries during such year, all audited by Ernst & Young LLP or other
independent public accountants of recognized national standing acceptable
to the Required Lenders and accompanied by an opinion of such accountants
(which shall not be qualified in any material respect) to the effect that
such consolidated financial statements fairly present 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, its consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows showing the
financial condition of the Borrower and its consolidated Subsidiaries as
of the close of such fiscal quarter and the results of its operations and
the operations of such Subsidiaries during such fiscal quarter and the
then elapsed portion of the fiscal year, all certified by one of its
Financial Officers as fairly presenting 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;
(c) concurrently with any delivery of financial statements under
sub-paragraph (a) or (b) above, a letter of the accounting firm or
certificate of the Financial Officer reporting on or certifying such
statements (which letter, when furnished by an accounting firm, may be
limited to accounting matters and disclaim responsibility for legal
interpretations) reporting that they are unaware that any Event of Default
has occurred, in the case of the accounting firm, or certifying that no
Event of Default or Default has occurred, in the case of the Financial
Officer, or, if such an Event of Default or Default has occurred,
specifying the nature and extent thereof and any corrective action taken
or proposed to be taken with respect thereto;
(d) within 20 days after the end of each calendar month a
certificate in the form of Exhibit K (a "Borrowing Base Certificate")
showing the Borrowing Base as of the close of business on the last day of
such calendar month, each such Certificate to be certified as complete and
correct on behalf of the Borrower by a Financial Officer of the Borrower;
(e) 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, or
distributed to its shareholders, as the case may be; and
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(f) prior to the beginning of each fiscal year, a copy of the budget
for its consolidated balance sheet and related statements of income and
cash flows for each quarter of such fiscal year; and
(g) promptly, from time to time, 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 5.05. Litigation and Other Notices. Furnish to the Administrative
Agent, the Issuing Bank and each Lender prompt written notice of the following:
(a) the occurrence of any Event of Default or Default, specifying
the nature and extent thereof and the corrective action (if any) taken or
proposed to be taken with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority, against the Borrower or any Affiliate thereof that could
reasonably be expected to result in a Material Adverse Effect; and
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate
amount exceeding $1,000,000; and
(d) any development that has resulted in, or could reasonably be
expected to result in, a Material Adverse Effect.
SECTION 5.06. Maintaining Records; Access to Properties and Inspections.
Keep proper books of record and account in which full, true and correct entries
in conformity with GAAP and all requirements of law are made of all dealings and
transactions in relation to its business and activities. Each Loan Party will,
and will cause each of its Subsidiaries to, permit any representatives
designated by the Administrative Agent or any Lender to visit and inspect the
financial records and the properties of Holdings, the Borrower or any Subsidiary
at reasonable times and upon reasonable notice and as often as reasonably
requested and to make extracts from and copies of such financial records, and
permit any representatives designated by the Administrative Agent or any Lender
to discuss the affairs, finances and condition of Holdings, the Borrower or any
Subsidiary with the officers thereof and independent accountants therefor;
provided, however, that, unless a Default or Event of Default shall have
occurred and be continuing, in no event shall the Administrative Agent or any
Lender or any of their respective designees contact any customer or supplier of
the Borrower or any Subsidiary regarding this Agreement and the Indebtedness
hereunder without the prior consent of the Borrower.
SECTION 5.07. Use of Proceeds. Use the proceeds of the Loans and request
the issuance of Letters of Credit only for the purposes set forth in the
preamble to this Agreement.
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SECTION 5.08. Compliance with Environmental Laws. Except for any
non-compliance that could not reasonably be expected to result in a Material
Adverse Effect, comply, and cause all lessees and other persons occupying its
Properties to comply, with all Environmental Laws and Environmental Permits
applicable to its operations and Properties; obtain and renew all Environmental
Permits necessary for its operations and Properties; and conduct any Remedial
Action in accordance with Environmental Laws; provided, however, that none of
Holdings, the Borrower or any of the Subsidiaries shall be required to undertake
any Remedial Action to the extent that its obligation to do so is being
contested in good faith and by proper proceedings and appropriate reserves are
being maintained with respect to such circumstances.
SECTION 5.09. Preparation of Environmental Reports. If a Default caused by
reason of a breach of Section 3.17 or 5.08 shall have occurred and be
continuing, at the request of the Required Lenders through the Administrative
Agent, provide to the Lenders within 45 days after such request, at the expense
of the Borrower, an environmental site assessment report for the Properties
which are the subject of such default prepared by an environmental consulting
firm acceptable to the Administrative Agent and indicating the presence or
absence of Hazardous Materials and the estimated cost of any compliance or
Remedial Action in connection with such Properties.
SECTION 5.10. Audits. From time to time (but not more than once per fiscal
year of the Borrower unless a Default or Event of Default shall have occurred
and be continuing) during normal business hours upon reasonable notice from the
Collateral Agent or the Required Lenders through the Administrative Agent,
permit the Collateral Agent or the Lenders or professionals (including
investment bankers, consultants, accountants, lawyers and appraisers) retained
by the Collateral Agent or the Lenders to conduct evaluations and appraisals of
(a) the Borrower's practices in the computation of the Borrowing Base and (b)
the assets included in the Borrowing Base, and pay the reasonable fees and
expenses of such professionals.
SECTION 5.11. Further Assurances. Execute any and all further documents,
financing statements, agreements and instruments, and take all further action
(including filing Uniform Commercial Code and other financing statements,
mortgages and deeds of trust) that may be required under applicable law, or that
the Required Lenders, the Administrative Agent or the Collateral Agent may
reasonably request, in order to effectuate the transactions contemplated by the
Loan Documents and in order to grant, preserve, protect and perfect the validity
and first priority of the security interests created or intended to be created
by the Security Documents. The Borrower will cause any subsequently acquired or
organized Domestic Subsidiary to execute a Subsidiary Guarantee Agreement,
Indemnity Subrogation and Contribution Agreement and each applicable Security
Document in favor of the Collateral Agent. In addition, from time to time, the
Borrower will, at its cost and expense, promptly secure the Obligations by
pledging or creating, or causing to be pledged or created, perfected security
interests with respect to such of its assets and properties as the
Administrative Agent or the Required Lenders shall designate (it being
understood that it is the intent of the parties that the Obligations shall be
secured by, among other things, substantially all the assets of the Borrower
(including real and other properties acquired subsequent to the Closing Date)).
Such security interests and Liens will be created under the Security Documents
and other security agreements, mortgages, deeds of trust and other instruments
and documents in form and substance satisfactory to the Collateral Agent, and
the Borrower shall
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deliver or cause to be delivered to the Lenders all such instruments and
documents (including legal opinions, title insurance policies and lien searches)
as the Collateral Agent shall reasonably request to evidence compliance with
this Section. The Borrower agrees to provide such evidence as the Collateral
Agent shall reasonably request as to the perfection and priority status of each
such security interest and Lien.
ARTICLE VI
Negative Covenants
Each of Holdings and the Borrower covenants and agrees with each Lender
that, until the Commitments have been terminated and the principal of and
interest on each Loan, all Fees and all other expenses or amounts payable under
any Loan Document (other than wholly contingent indemnification obligations)
have been paid in full and all Letters of Credit have been canceled or have
expired and all amounts drawn thereunder have been reimbursed in full or cash
collateralized to the satisfaction of the Administrative Agent and the Issuing
Bank, unless the Required Lenders shall otherwise consent in writing, neither
Holdings nor the Borrower will, nor will they cause or permit any of the
Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness for borrowed money existing on the date hereof and
set forth in Schedule 6.01;
(b) Indebtedness created hereunder and under the other Loan
Documents;
(c) the Senior Subordinated Notes;
(d) Indebtedness consisting of purchase money Indebtedness or
Capital Lease Obligations incurred in the ordinary course of business
after the Closing Date to finance Consolidated Capital Expenditures,
provided that (i) a description of the assets financed thereby shall have
been furnished to the Administrative Agent for any assets for which the
purchase price is greater than $1,000,000 and (ii) the aggregate principal
amount of any Indebtedness or Capital Lease Obligations incurred pursuant
to this paragraph (d) outstanding at any time shall not exceed $5,000,000;
(e) intercompany loans and advances permitted by Section 6.04(c);
(f) Indebtedness of the Borrower or any Subsidiary to Holdings,
provided that such Indebtedness (i) is subordinated to the prior payment
in full of the Obligations on terms satisfactory to the Administrative
Agent and (ii) is evidenced by an intercompany note pledged by Holdings to
the Collateral Agent pursuant to the Pledge Agreement for the benefit of
the Secured Parties;
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(g) ordinary course Interest Rate Protection Agreements and ordinary
course, non-speculative foreign exchange and commodity protection
agreements;
(h) Indebtedness arising out of judgments or awards (other than any
judgment that is described in clause (i) of Article VII and constitutes a
Default or Event of Default thereunder) in respect of which the Borrower
shall in good faith be prosecuting an appeal or proceedings for review and
in respect of which it shall have secured a subsisting stay of execution
pending such appeal or proceedings for review, provided the Borrower shall
have set aside on its books adequate reserves, in accordance with GAAP,
with respect to such judgment or award;
(i) Indebtedness under performance bonds in an aggregate principal
amount at any time outstanding not exceeding $2,000,000; and
(j) additional unsecured Indebtedness in an aggregate amount at any
time outstanding not exceeding $15,000,000.
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien on
any property or assets (including stock or other securities of any person,
including any Subsidiary) now owned or hereafter acquired by it or on any income
or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower and its Subsidiaries
existing on the date hereof and set forth in Schedule 6.02; provided that
such Liens shall secure only those obligations which they secure on the
date hereof;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary; provided that (i)
such Lien is not created in contemplation of or in connection with such
acquisition (except as permitted pursuant to Section 6.02(i)), (ii) such
Lien does not apply to any other property or assets of the Borrower or any
Subsidiary and (iii) such Lien does not (A) materially interfere with the
use, occupancy and operation of any Mortgaged Property, (B) materially
reduce the fair market value of such Mortgaged Property but for such Lien
or (C) result in any material increase in the cost of operating, occupying
or owning or leasing such Mortgaged Property;
(d) Liens for taxes not yet due or which are being contested in
compliance with Section 5.03;
(e) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising, in the case of such other like
Liens, in the ordinary course of business and securing obligations that
are not due and payable or which are being contested in compliance with
Section 5.03;
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(f) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other
social security laws or regulations;
(g) deposits to secure the performance of bids, trade contracts
(other than for Indebtedness), leases (other than Capital Lease
Obligations), statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary
course of business;
(h) zoning restrictions, easements, rights-of-way, restrictions on
use of real property and other similar encumbrances incurred, in the case
of such other similar encumbrances, in the ordinary course of business
which, in the aggregate, are not substantial in amount and do not
materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the business of the Borrower or any
of its Subsidiaries;
(i) purchase money security interests in real property, improvements
thereto or equipment hereafter acquired (or, in the case of improvements,
constructed) by the Borrower or any Subsidiary; provided that (i) such
security interests secure Indebtedness permitted by Section 6.01(d), (ii)
such security interests are incurred, and the Indebtedness secured thereby
is created, within 90 days after such acquisition (or construction), (iii)
the Indebtedness secured thereby does not exceed 85% of the lesser of the
cost or the fair market value of such real property, improvements or
equipment at the time of such acquisition (or construction) (or if such
Indebtedness exceeds such 85% limit, such Indebtedness is non-recourse to
Holdings, the Borrower and the Subsidiaries) and (iv) such security
interests do not apply to any other property or assets of the Borrower or
any Subsidiary;
(j) any Lien disclosed on the marked and redated title insurance
commitments delivered to the Collateral Agent on the Closing Date;
(k) Liens arising out of judgments or awards (other than any
judgment that is described in clause (i) of Article VII and constitutes a
Default or Event of Default thereunder) in respect of which the Borrower
shall in good faith be prosecuting an appeal or proceedings for review and
in respect of which it shall have secured a subsisting stay of execution
pending such appeal or proceedings for review, provided the Borrower shall
have set aside on its books adequate reserves, in accordance with GAAP,
with respect to such judgment or award; and
(l) additional Liens on property or assets securing obligations
(other than Indebtedness for borrowed money) not exceeding $250,000 at any
time, provided that, to the extent any such Lien applies to any Collateral
(as defined in any such Security Document), such Lien does not have
priority over the Liens created under the Security Documents.
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SECTION 6.03. Sale and Lease-Back Transactions. 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.
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or acquire
any capital stock, evidences of indebtedness or other securities of, make or
permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person, except:
(a) investments by the Borrower existing on the date hereof in the
capital stock of the Subsidiaries and additional investments by Holdings
in the Capital Stock of the Borrower or by the Borrower in the Capital
Stock of the Subsidiary Guarantors;
(b) Permitted Investments;
(c) investments, loans or advances made by any Loan Party to the
Borrower or any Subsidiary, provided that any such loans or advances are
evidenced by an intercompany note pledged to the Collateral Agent pursuant
to the Pledge Agreement for the benefit of the Secured Parties;
(d) investments consisting of non-cash consideration received in
connection with a sale of assets permitted by Section 6.05(b);
(e) loans and advances to employees and officers of the Borrower or
any of the Subsidiaries for travel, entertainment and relocation expenses
in the ordinary course of business in an aggregate principal amount
outstanding at any one time not to exceed $250,000;
(f) loans and advances in an aggregate principal amount outstanding
at any one time not to exceed $250,000 to management and other employees
of the Borrower, the proceeds of which are used in their entirety to
purchase capital stock of Holdings and other investments pursuant to
retirement savings programs;
(g) the Borrower may make any Permitted Acquisition; provided that
(i) the aggregate purchase price of all such Permitted Acquisitions does
not exceed $50,000,000 and (ii) the Borrower shall have delivered to the
Administrative Agent a certificate certifying that at the time of and
immediately after giving effect to such Permitted Acquisition, (A) no
Event of Default or Default shall have occurred and be continuing, (B) the
Consolidated Leverage Ratio on a pro forma basis (including
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as adjusted to reduce or exclude any identified costs that will be reduced
or will cease to be incurred after such Permitted Acquisition) as of the
last day of the most recent fiscal quarter adjusted to give effect (as if
such event had occurred on the first day of the four fiscal quarter period
ended on such last day) to such Permitted Acquisition and the financing
therefor shall be less than 5.00 to 1.00 and (C) the Borrower shall be in
compliance on a pro forma basis (including as adjusted to reduce or
exclude any identified costs that will be reduced or will cease to be
incurred after such Permitted Acquisition) with the covenants set forth in
Sections 6.11, 6.12 and 6.13, in each case as of the last day of the most
recent fiscal quarter adjusted to give effect (as if such event had
occurred on the first day of the four fiscal quarter period ended on such
last day) to such Permitted Acquisition and the financing therefor, and
the adjustments and calculations set forth in such certificate shall be
based on assumptions and otherwise in form and substance satisfactory to
the Administrative Agent;
(h) Consolidated Capital Expenditures permitted pursuant to Section
6.10;
(i) Accounts; and
(j) ordinary course Interest Rate Protection Agreements and ordinary
course, non-speculative foreign exchange and commodity protection
agreements.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions.
(a) Merge into or consolidate with any other person, or permit any other person
to merge into or consolidate with it, or sell, transfer, lease or otherwise
dispose of (in one transaction or in a series of transactions) all or any
substantial part of its assets (whether now owned or hereafter acquired) or any
capital stock of any Subsidiary, or purchase, lease or otherwise acquire (in one
transaction or a series of transactions) all or any substantial part of the
assets of any other person, except that (i) the Borrower may consummate the
Merger, (ii) the Borrower and any Subsidiary may purchase and sell inventory and
scrap, obsolete, excess and worn out assets in the ordinary course of business,
(iii) if at the time thereof and immediately after giving effect thereto no
Event of Default or Default shall have occurred and be continuing (w) any wholly
owned Subsidiary may merge into the Borrower in a transaction in which the
Borrower is the surviving corporation, (x) any wholly owned Subsidiary may merge
into or consolidate with any other wholly owned Domestic Subsidiary in a
transaction in which the surviving entity is a wholly owned Domestic Subsidiary
and no person other than the Borrower or a wholly owned Domestic Subsidiary
receives any consideration, (y) Holdings may merge into ACP Holdings or the
Borrower in a transaction in which the Borrower is the surviving corporation (in
the case of any such merger of Holdings into the Borrower) so long as
concurrently with any merger of Holdings with and into the Borrower, or any
merger of Holdings with and into ACP Holdings in which Holdings is not the
surviving corporation, ACP Holdings assumes all the obligations of Holdings
under this Agreement and the other Loan Documents (including entering into a
supplement to the Pledge Agreement to pledge 100% of the Capital Stock of the
Borrower to the Collateral Agent for the benefit of the Secured Parties) and (z)
following any merger described in clause (y), ACP Holdings may merge into ACP
Products or the Borrower in a transaction in which the Borrower is the surviving
corporation (in the case of any such merger of ACP Holdings into the Borrower)
so long as concurrently with any merger of ACP Holdings with and into the
Borrower, or any merger of ACP Holdings with and into ACP Products in which ACP
Holdings is not the surviving corporation, ACP Products assumes all the
obligations of ACP Holdings under this Agreement and the other Loan Documents
(including entering into a supplement to the Pledge Agreement to pledge 100% of
the Capital Stock of the Borrower to the Collateral Agent for the benefit of the
Secured Parties), (iv) the Borrower and any Subsidiary may make Permitted
Acquisitions permitted by Section 6.04(g) and (v) the
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Borrower and any Subsidiary may make Consolidated Capital Expenditures permitted
by Section 6.10.
(b) Neither the Borrower nor any Subsidiary shall engage in any Asset Sale
otherwise permitted under paragraph (a) above unless (i) such Asset Sale is for
consideration at least 85% of which is cash, (ii) such consideration is at least
equal to the fair market value (as determined in good faith by the Borrower's
board of directors) of the assets being sold, transferred, leased or disposed of
and (iii) the fair market value (as determined in good faith by the Borrower's
board of directors) of all assets sold, transferred, leased or disposed of
pursuant to this paragraph (b) shall not exceed (i) $1,000,000 in any fiscal
year or (ii) $5,000,000 in the aggregate.
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends. (a) Declare or pay, directly or indirectly, any
dividend or make any other distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, with respect to
any shares of its Capital Stock or directly or indirectly redeem, purchase,
retire or otherwise acquire for value (or permit any Subsidiary to purchase or
acquire) any shares of any class of its Capital Stock or set aside any amount
for any such purpose; provided, however, that
(i) any Subsidiary may declare and pay dividends or make other
distributions to the Borrower;
(ii) the Borrower may declare and pay dividends or make other
distributions to Holdings (A) to pay the Borrower Tax Amount required to
be paid by Holdings and (B) to fund payments to be made by Holdings as
permitted by clause (iv) below in an aggregate amount not to exceed the
amounts of such payments;
(iii) so long as no Default or Event of Default shall have occurred
and be continuing, the Borrower may declare and pay dividends or make
other distributions to Holdings to pay the actual operating costs of
Holdings and ACP Holdings in an aggregate amount not exceeding $250,000 in
any fiscal year of the Borrower;
(iv) Holdings may, or Holdings may declare and pay dividends or make
other distributions to ACP Holdings to permit ACP Holdings or ACP Products
to, purchase, redeem, retire or otherwise acquire (A) shares of its
Capital Stock, or options or warrants to purchase shares of its Capital
Stock, held by officers, directors or employees of Holdings, the Borrower
or any Subsidiary pursuant to a compensation plan or arrangement in
connection with the death, disability or termination of employment of any
such officer, director or employee or (B) shares of its capital stock
owned by any officer, director or employee of Holdings, the Borrower or
any Subsidiary pursuant to the exercise of options or warrants to purchase
such Capital Stock by such officer, director or employee or to pay taxes
incurred in connection with such exercise of options or warrants in an
aggregate amount for all such transactions described in clauses (A) and
(B) not exceeding the sum of (x) $2,000,000 plus (y) the proceeds of any
substantially concurrent issuance of Capital Stock of ACP Products, ACP
Holdings or Holdings to any officer, director or employee of Holdings, the
Borrower or any Subsidiary;
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(v) Holdings may declare and pay dividends or make other
distributions to ACP Holdings to pay the Borrower Tax Amount required to
be paid by ACP Holdings; and
(vi) so long as no Default or Event of Default shall have occurred
and be continuing, Holdings may declare and pay dividends or make other
distributions to ACP Holdings, out of the proceeds of dividends or
distributions received by Holdings pursuant to clause (iii) above, to pay
ACP Holdings' actual operating costs.
(b) Permit its subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such subsidiary to (i) pay any dividends or
make any other distributions on its capital stock or any other interest or (ii)
make or repay any loans or advances to the Borrower or the parent of such
subsidiary.
SECTION 6.07. Transactions with Affiliates. Except as set forth on
Schedule 6.07, sell or transfer any property or assets to, or purchase or
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except that the Borrower or any
Subsidiary may engage in (a) any of the foregoing transactions in the ordinary
course of business at prices and on terms and conditions not less favorable to
the Borrower or such Subsidiary than could be obtained on an arm's-length basis
from unrelated third parties, (b) the transactions permitted pursuant to
Sections 6.05 and 6.06, and (c) the Transactions.
SECTION 6.08. Business of Borrower and Subsidiaries. Engage at any time in
any business or business activity other than Related Businesses.
SECTION 6.09. Other Indebtedness and Agreements. (a) Permit any waiver,
supplement, modification, amendment, termination or release of (i) the Merger
Agreement or the Tax Sharing Agreement or (ii) any indenture, instrument or
agreement pursuant to which any Indebtedness or preferred stock of the Borrower
or any Subsidiary is outstanding in an aggregate outstanding principal amount in
excess of $1,000,000, or modify its charter or by-laws, in each case to the
extent that any such waiver, supplement, modification, amendment, termination or
release would be adverse to the Lenders in any material respect.
(b) (i) Make any distribution, whether in cash, property, securities or a
combination thereof, other than regular scheduled payments of principal and
interest as and when due (to the extent not prohibited by applicable
subordination provisions), in respect of, or pay, or offer or commit to pay, or
directly or indirectly redeem, repurchase, retire or otherwise acquire for
consideration, or set apart any sum for the aforesaid purposes, any Indebtedness
for borrowed money of the Borrower or any Subsidiary in an outstanding principal
amount exceeding $1,000,000 or (ii) pay in cash any amount in respect of such
Indebtedness that may at the obligor's option be paid in kind or in other
securities.
(c) Notwithstanding anything contained in this Section 6.09 to the
contrary, (i) the Borrower shall be permitted to exchange the Senior
Subordinated Notes for substantially identical notes in accordance with the
Exchange and Registration Rights Agreement dated as of April 30, 1997, relating
to the Senior Subordinated Notes.
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SECTION 6.10. Capital Expenditures. Permit the aggregate amount of
Consolidated Capital Expenditures (other than Consolidated Capital Expenditures
for patterns and Permitted Acquisitions permitted by Section 6.04(g)) made by
the Borrower and the Subsidiaries, taken as a whole, in any fiscal year to
exceed the sum of (a) $7,000,000, (b) the proceeds of any Equity Issuance made
during such fiscal year and substantially concurrently used to fund Consolidated
Capital Expenditures, (c) following a prepayment of Term Loans pursuant to
Section 2.13(e) during such fiscal year, the amount of Excess Cash Flow for the
previous fiscal year of the Borrower not required to be used to prepay Term
Loans pursuant to Section 2.13(e) and (d) other Consolidated Capital
Expenditures not covered by clauses (a) through (c) above financed by Revolving
Loans, so long as the aggregate principal amount of such Revolving Loans at any
time outstanding used to finance all such Consolidated Capital Expenditures
pursuant to this clause (d) does not exceed the excess of (A) $20,000,000 over
(B) the aggregate principal amount of outstanding Revolving Loans used to
finance Permitted Acquisitions pursuant to Section 6.04(g); provided, however,
that the amount of Consolidated Capital Expenditures in any fiscal year of the
Borrower permitted to be incurred pursuant to clause (a) above shall be
increased by an amount equal to the amount of unused Consolidated Capital
Expenditures permitted to be incurred pursuant to clause (a) above for the
immediately preceding fiscal year of the Borrower (without giving effect to this
proviso).
SECTION 6.11. Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio as of the end of any fiscal quarter falling in any period set
forth below to be in excess of the ratio set forth below for such period.
Period Ratio
------ -----
July 1, 1997 through March 31, 1998 6.00 to 1.00
April 1, 1998 through March 31, 1999 5.75 to 1.00
April 1, 1999 through March 31, 2000 5.50 to 1.00
April 1, 2000 through March 31, 2001 5.25 to 1.00
Thereafter 5.00 to 1.00
SECTION 6.12. Consolidated Net Worth. Permit Consolidated Net Worth (a) on
the Closing Date, to be less than $35,000,000 or (b) on the last day of any
fiscal quarter, to be less than the sum of (i) $35,000,000 plus (ii) 50% of the
cumulative amount of positive Consolidated Net Income for each fiscal year
ending after the Closing Date.
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SECTION 6.13. Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio as of the end of any fiscal quarter falling
in any period set forth below to be less than the ratio set forth below for such
period.
Period Ratio
------ -----
July 1, 1997 through March 31, 1998 1.55 to 1.00
April 1, 1998 through March 31, 1999 1.65 to 1.00
April 1, 1999 through March 31, 2000 1.75 to 1.00
April 1, 2000 through March 31, 2001 1.85 to 1.00
April 1, 2001 through March 31, 2002 1.95 to 1.00
Thereafter 2.00 to 1.00
SECTION 6.14. Fiscal Year. Permit the fiscal year of the Borrower to
end on a day other than March 31; provided, however, that the Borrower may, upon
written notice to the Administrative Agent, change the fiscal year specified
above to any other fiscal year reasonably acceptable to the Administrative
Agent, in which case the Borrower and the Administrative Agent will, and are
hereby authorized by the Lenders to, make any adjustments to this Agreement that
are necessary in order to reflect such change in fiscal year.
ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings or issuances of
Letters of Credit hereunder, or any representation, warranty, statement or
information contained in any report, certificate, financial statement or
other instrument furnished in connection with or pursuant to any Loan
Document, shall prove to have been false or misleading in any material
respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any
Loan or the reimbursement with respect to any L/C 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 by acceleration thereof or
otherwise;
(c) default shall be made in the payment of any interest on any Loan
or any Fee or L/C Disbursement or any other amount (other than an amount
referred to in (b) above) due under any Loan Document, when and as the
same shall become due and payable, and such default shall continue
unremedied for a period of five Business Days;
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(d) default shall be made in the due observance or performance by
Holdings, the Borrower or any Subsidiary of any covenant, condition or
agreement contained in Section 5.01(a), 5.05 or 5.07 or in Article VI;
(e) default shall be made in the due observance or performance by
Holdings, the Borrower or any Subsidiary of any covenant, condition or
agreement contained in any Loan Document (other than those specified in
(b), (c) or (d) above) and such default shall continue unremedied for a
period of 30 days after notice thereof from the Administrative Agent or
any Lender to the Borrower;
(f) Holdings, the Borrower or any Subsidiary shall (i) fail to pay
any principal or interest, regardless of amount, due in respect of any
Indebtedness in a principal amount in excess of $1,750,000, when and as
the same shall become due and payable, or (ii) fail to observe or perform
any other term, covenant, condition or agreement contained in any
agreement or instrument evidencing or governing any such Indebtedness if
the effect of any failure referred to in this clause (ii) is to cause, or
to permit the holder or holders of such Indebtedness or a trustee on its
or their behalf (with or without the giving of notice, the lapse of time
or both) to cause, such Indebtedness to become due prior to its stated
maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of Holdings, the Borrower or any Subsidiary, or of a
substantial part of the property or assets of Holdings, the Borrower or a
Subsidiary, under Title 11 of the United States Code, as now constituted
or hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for Holdings, the Borrower or any Subsidiary or for a substantial
part of the property or assets of Holdings, the Borrower or a Subsidiary
or (iii) the winding-up or liquidation of Holdings, the Borrower or any
Subsidiary; and 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;
(h) Holdings, the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11
of the United States Code, as now constituted or hereafter amended, or any
other Federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or the filing of any
petition described in (g) above, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for Holdings, the Borrower or any Subsidiary or for a
substantial part of the property or assets of Holdings, the Borrower or
any Subsidiary, (iv) file an answer admitting the material allegations of
a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its debts as they become
due or (vii) take any action for the purpose of effecting any of the
foregoing;
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(i) one or more judgments for the payment of money in an aggregate
amount in excess of $1,750,000, which amount is not covered by insurance
(provided that in the event such a judgment is covered by insurance, the
Administrative Agent is provided with satisfactory evidence that the
insurance provider will provide the coverage relating thereto) shall be
rendered against Holdings, the Borrower, any Subsidiary 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 levy upon
assets or properties of Holdings, the Borrower or any Subsidiary to
enforce any such judgment;
(j) an ERISA Event shall have occurred that, in the 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 aggregate amount exceeding (i)
$1,000,000 in any year or (ii) $5,000,000 for all periods; or
(k) any security interest purported to be created by any Security
Document shall cease to be, or shall be asserted by the Borrower or any
other Loan Party not to be, a valid, perfected, first priority (except as
otherwise expressly provided in this Agreement or such Security Document)
security interest in the securities, assets or properties covered thereby,
except to the extent that any such loss of perfection or priority results
from the failure of the Collateral Agent to maintain possession of
certificates representing securities pledged under the Pledge Agreement or
to continue previously filed financing statements prior to the expiration
thereof and except to the extent that such loss is covered by a lender's
title insurance policy and the related insurer promptly after such loss
shall have acknowledged in writing that such loss is covered by such title
insurance policy; or
(l) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), 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, take either or both of
the following actions, at the same or different times: (i) terminate forthwith
the Commitments and (ii) declare the Loans then outstanding to be forthwith due
and payable in whole or in part, whereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder
and under any other Loan Document, shall become forthwith due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by the Borrower, anything contained herein or
in any other Loan Document to the contrary notwithstanding; and in any event
with respect to the Borrower described in paragraph (g) or (h) above, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued Fees
and all other liabilities of the Borrower accrued hereunder and under any other
Loan Document, shall automatically become due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrower, anything contained herein or in any other Loan
Document to the contrary notwithstanding.
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ARTICLE VIII
The Administrative Agent and the Collateral Agent
In order to expedite the transactions contemplated by this Agreement, The
Chase Manhattan Bank is hereby appointed to act as Administrative Agent and
Collateral Agent on behalf of the Lenders and the Issuing Bank (for purposes of
this Article VIII, the Administrative Agent and the Collateral Agent are
referred to collectively as the "Agents"). Each of the Lenders and each assignee
of any such Lender, hereby irrevocably authorizes the Agents to take such
actions on behalf of such Lender or assignee or the Issuing Bank and to exercise
such powers as are specifically delegated to the Agents by the terms and
provisions hereof and of the other Loan Documents, together with such actions
and powers as are reasonably incidental thereto. The Administrative Agent is
hereby expressly authorized by the Lenders and the Issuing Bank, without hereby
limiting any implied authority, (a) to receive on behalf of the Lenders and the
Issuing Bank all payments of principal of and interest on the Loans, all
payments in respect of L/C Disbursements and all other amounts due to the
Lenders hereunder, and promptly to distribute to each Lender or the Issuing Bank
its proper share of each payment so received; (b) to give notice on behalf of
each of the Lenders to the Borrower of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by the
Borrower or any other Loan Party pursuant to this Agreement or the other Loan
Documents as received by the Administrative Agent. Without limiting the
generality of the foregoing, the Agents are hereby expressly authorized to
execute any and all documents (including releases) with respect to the
Collateral and the rights of the Secured Parties with respect thereto, as
contemplated by and in accordance with the provisions of this Agreement and the
Security Documents.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall not be responsible
to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents, instruments or
agreements. The Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons. Neither the Agents nor any of their respective directors, officers,
employees or agents shall have any responsibility in their capacity as such to
the Borrower or any other Loan Party on account of the failure of or delay in
performance or breach by any Lender or the Issuing Bank of any of its
obligations hereunder or to any Lender or the Issuing Bank on account of the
failure of or delay
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in performance or breach by any other Lender or the Issuing Bank or the Borrower
or any other Loan Party of any of their respective obligations hereunder or
under any other Loan Document or in connection herewith or therewith. Each of
the Agents may execute any and all duties hereunder by or through agents or
employees and shall be entitled to rely upon the advice of legal counsel
selected by it with respect to all matters arising hereunder and shall not be
liable for any action taken or suffered in good faith by it in accordance with
the advice of such counsel.
The Lenders hereby acknowledge that neither Agent shall be under any duty
to take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement unless it shall be requested in writing to do so by
the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as provided
below, either Agent may resign at any time by notifying the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor, subject to the Borrower's approval, not to be
unreasonably withheld, so long as no Default or Event of Default shall have
occurred and be continuing. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders, appoint a successor Agent which shall be a bank with
an office in New York, New York, having a combined capital and surplus of at
least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any
appointment as Agent hereunder by a successor bank, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Agent and the retiring Agent shall be discharged from its duties and
obligations hereunder. After the Agent's resignation hereunder, the provisions
of this Article and Section 9.05 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with Holdings, the Borrower or any
Subsidiary or other Affiliate thereof as if it were not an Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in the amount
of its pro rata share (based on its Commitments hereunder) of any expenses
incurred for the benefit of the Lenders by the Agents, including counsel fees
and compensation of agents and employees paid for services rendered on behalf of
the Lenders, that shall not have been reimbursed by the Borrower and (b) to
indemnify and hold harmless each Agent and any of its directors, officers,
employees or agents, on demand, in the amount of such pro rata share, from and
against any and all liabilities, taxes, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by or asserted against it in
its capacity as Agent, or any of them in any way relating to or arising out of
this Agreement or any other Loan Document or any action taken or omitted by it
or any of them under this Agreement or any other Loan Document, to the extent
the same shall not have been reimbursed by the Borrower or any other Loan Party,
provided that no Lender shall be liable to an Agent or any such other
indemnified person for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
are determined by
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a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such Agent or any of
its directors, officers, employees or agents. Each Revolving Credit Lender
agrees to reimburse and indemnify the Issuing Bank to the same extent and
subject to the same limitations as provided for the Agents in the preceding
sentence.
Each Lender acknowledges that it has, independently and without reliance
upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any
document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, or sent by telecopy, as follows:
(a) if to the Borrower or Holdings, to it at 2121 Brooks Avenue,
Neenah, WI 54956, Attention of President or Chief Financial Officer
(Telecopy No. (414) 729-3633) with copies to (which shall not constitute
notice to the Borrower) Citicorp Venture Capital, Ltd., 399 Park Avenue,
14th Floor, Zone 4, New York, NY 10043, Attention of Mr. David F. Thomas
and Mr. John D. Weber (Telecopy No. (212) 888-2940) and Kirkland & Ellis,
Citicorp Center, 153 East 53rd Street, New York, NY 10022, Attention of
Kirk A. Radke, Esq. (Telecopy No. (212) 446-4900);
(b) if to the Administrative 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, One Chase Manhattan
Plaza, 5th Floor, New York, New York 10081, Attention of James H. Ramage
(Telecopy No. (212) 552-5555); and
(c) if to a Lender, to it at its address (or telecopy number) set
forth on Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party 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 if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch
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by certified or registered mail if mailed, in each case delivered, sent or
mailed (properly addressed) to such party as provided in this Section 9.01 or in
accordance with the latest unrevoked direction from such party given in
accordance with this Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower or Holdings herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and the Issuing Bank and shall survive the
making by the Lenders of the Loans and the issuance of Letters of Credit by the
Issuing Bank, regardless of any investigation made by the Lenders or the Issuing
Bank or on their behalf, 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 then due and payable under this Agreement or any other Loan Document is
outstanding and unpaid (other than wholly-contingent indemnification
obligations) or any Letter of Credit is outstanding and so long as the
Commitments have not been terminated. The provisions of Sections 2.14, 2.16,
2.20 and 9.05 shall remain operative and in full force and effect regardless of
the expiration of the term of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Loans, the
expiration of the Commitments, the expiration of any Letter of Credit, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Loan Document, or any investigation made by or on behalf of the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank.
SECTION 9.03. Binding Effect. This Agreement shall become effective when
it shall have been executed by the Borrower, Holdings and the Administrative
Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective permitted successors and assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the permitted successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the Borrower, Holdings, the Administrative
Agent, the Issuing Bank or the Lenders that are contained in this Agreement
shall bind and inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or an
Affiliate of, or an Approved Fund with respect to, such Lender, (x) the Borrower
and the Administrative Agent (and, in the case of any assignment of a Revolving
Credit Commitment, the Issuing Bank) must give their prior written consent to
such assignment (which consent shall not be unreasonably withheld) and (y) the
amount of the Commitment of the 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 (or, if less, the entire remaining amount of such Lender's
Commitment), (ii) the parties to each such assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500 and (iii) the assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon
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acceptance and recording pursuant to paragraph (e) of this Section 9.04, from
and after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five Business Days after the execution thereof,
(A) 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 (B) 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 or the remaining portion of an
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 2.14, 2.16, 2.20 and 9.05, as well as to any Fees accrued
for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Term Loan Commitment and Revolving Credit Commitment, and the outstanding
balances of its Term Loans and Revolving Loans, in each case without giving
effect to assignments thereof which have not become effective, are as set forth
in such Assignment and Acceptance, (ii) except as set forth in (i) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of the Borrower or any Subsidiary or the
performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements referred
to in Section 3.05(a) or delivered pursuant to Section 5.04 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the Administrative Agent,
the Collateral Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (vi) such assignee appoints and authorizes the Administrative
Agent and the Collateral Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Administrative
Agent and the Collateral Agent, respectively, by the terms hereof, together with
such powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all the obligations which by
the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of the
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 owing to, each Lender pursuant to the
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terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive and the Borrower, the Administrative Agent, the Issuing
Bank, the Collateral Agent 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,
the Collateral Agent and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrower, the Issuing
Bank and the Administrative Agent to such assignment, the Administrative Agent
shall (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Lenders and the Issuing Bank. No assignment shall be effective unless it has
been recorded in the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the Issuing Bank
or the Administrative Agent sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided, however, 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, (iii) the participating
banks or other entities shall be entitled to the benefit of the cost protection
provisions contained in Sections 2.14, 2.16 and 2.20 to the same extent as if
they were Lenders and (iv) the Borrower, the Administrative Agent, the Issuing
Bank and the Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement,
and such Lender shall retain the sole right to enforce the obligations of the
Borrower relating to the Loans or L/C Disbursements and to approve any
amendment, modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers decreasing any fees payable hereunder or
the amount of principal of or the rate at which interest is payable on the
Loans, extending any scheduled principal payment date or date fixed for the
payment of interest on the Loans or increasing or extending the Commitments).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.16.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank to secure extensions of credit by
such Federal Reserve Bank to such Lender; provided that no such assignment shall
release a Lender from any of its obligations
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hereunder or substitute any such Bank for such Lender as a party hereto. In
order to facilitate such an assignment to a Federal Reserve Bank, the Borrower
shall, at the request of the assigning Lender, duly execute and deliver to the
assigning Lender a promissory note or notes evidencing the Loans made to the
Borrower by the assigning Lender hereunder.
(i) Neither Holdings nor the Borrower shall assign or delegate any of its
rights or duties hereunder without the prior written consent of the
Administrative Agent, the Issuing Bank and each Lender, and any attempted
assignment without such consent shall be null and void.
(j) In the event that Standard & Poor's Ratings Group, Moody's Investors
Service, Inc., and Thompson's BankWatch (or InsuranceWatch Ratings Service, in
the case of Lenders that are insurance companies (or Best's Insurance Reports,
if such insurance company is not rated by Insurance Watch Ratings Service))
shall, after the date that any Lender becomes a Revolving Credit Lender,
downgrade the long-term certificate deposit ratings of such Lender, and the
resulting ratings shall be below BBB-, Baa3 and C (or BB, in the case of a
Lender that is an insurance company (or B, in the case of an insurance company
not rated by InsuranceWatch Ratings Service)), then the Issuing Bank shall have
the right, but not the obligation, at its own expense, upon notice to such
Lender and the Administrative Agent, to replace (or to request the Borrower to
use its reasonable efforts to replace) such Lender with an assignee (in
accordance with and subject to the restrictions contained in paragraph (b)
above), and such Lender hereby agrees to transfer and assign without recourse
(in accordance with and subject to the restrictions contained in paragraph (b)
above) all its interests, rights and obligations in respect of its Revolving
Credit Commitment to such assignee; provided, however, that (i) no such
assignment shall conflict with any law, rule and regulation or order of any
Governmental Authority and (ii) the Issuing Bank or such assignee, as the case
may be, shall pay to such Lender in immediately available funds on the date of
such assignment the principal of and interest accrued to the date of payment on
the Loans made by such Lender hereunder and all other amounts accrued for such
Lender's account or owed to it hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower and Holdings agree,
jointly and severally, to pay all out-of-pocket expenses incurred by the
Administrative Agent, the Collateral Agent and the Issuing Bank in connection
with the syndication of the credit facilities provided for herein and the
preparation and administration of this Agreement and the other Loan Documents or
in connection with any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions hereby or thereby
contemplated shall be consummated) or incurred by the Administrative Agent, the
Collateral Agent or any Lender in connection with the enforcement or protection
of its rights in connection with this Agreement and the other Loan Documents or
in connection with the Loans made or Letters of Credit issued hereunder,
including the reasonable fees, charges and disbursements of Cravath, Swaine &
Moore, counsel for the Administrative Agent and the Collateral Agent, and, in
connection with any such enforcement or protection, the reasonable fees, charges
and disbursements of any other counsel for the Administrative Agent, the
Collateral Agent or any Lender.
(b) The Borrower and Holdings agree, jointly and severally, to indemnify
the Administrative Agent, the Collateral Agent, each Lender and the Issuing
Bank, each Affiliate of any of the foregoing persons and each of their
respective directors, officers, employees and agents
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(each such person being called an "Indemnitee") against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees, charges and disbursements,
incurred by or asserted against any Indemnitee arising out of, in any way
connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their respective obligations
thereunder or the consummation of the Transactions and the other transactions
contemplated thereby, (ii) the use of the proceeds of the Loans or issuance of
Letters of Credit, (iii) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnitee is a party
thereto, or (iv) any actual or alleged presence or Release of Hazardous
Materials on any property owned or operated by the Borrower or any of the
Subsidiaries, or any Environmental Claim related in any way to the Borrower or
the Subsidiaries; provided that such indemnity shall not, as to any Indemnitee,
be available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or wilful
misconduct of any Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the expiration of the Commitments, the expiration of any Letter of
Credit, the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation made by or on behalf
of the Administrative Agent, the Collateral Agent, any Lender or the Issuing
Bank. All amounts due under this Section 9.05 shall be payable on written demand
therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time to
time, except to the extent prohibited 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 indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower or Holdings against any of and all the
obligations of the Borrower or Holdings now or hereafter existing under this
Agreement and other Loan Documents held by such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or such other
Loan Document and although such obligations may be unmatured. The rights of each
Lender under this Section 9.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF
COMMERCE, PUBLICATION NO. 500 (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT
GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.
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SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank in
exercising any power or right 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 Collateral 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 this Agreement or any other Loan Document or consent to any
departure by the Borrower or any other Loan Party therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on the Borrower or Holdings in
any case shall entitle the Borrower or Holdings to any other or further notice
or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower, Holdings and the Required Lenders; provided, however, that
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan or any date for reimbursement of an L/C Disbursement,
or waive or excuse any such payment or any part thereof, or decrease the rate of
interest on any Loan or L/C Disbursement, without the prior written consent of
each Lender affected thereby, (ii) change or extend the Commitment or decrease
or extend the date for payment of the Commitment Fees of any Lender without the
prior written consent of such Lender, (iii) amend or modify the provisions of
Section 2.17 or 9.04(i), the provisions of this Section, the definition of the
term "Required Lenders" or release any Guarantor or all or any substantial part
of the Collateral, without the prior written consent of each Lender, (iv) change
the allocation between Tranche A Term Loans and Tranche B Term Loans of any
prepayment pursuant to Section 2.12 or 2.13 without the prior written consent of
(A) Lenders holding Tranche A Term Loans representing more than 50% of the
aggregate outstanding principal amount of the Tranche A Term Loans and (B)
Lenders holding Tranche B Term Loans representing more than 50% of the aggregate
outstanding principal amount of the Tranche B Term Loans, (v) decrease the
principal amount of, or extend the date for payment of, any prepayment of (A)
Tranche A Term Loans or (B) Tranche B Term Loans, in each case required pursuant
to Section 2.13 without the prior written consent of (x) Lenders holding Tranche
A Term Loans representing more than 50% of the aggregate outstanding principal
amount of the Tranche A Term Loans or (y) Lenders holding Tranche B Term Loans
representing more than 50% of the aggregate outstanding principal amount of the
Tranche B Term Loans, respectively, or (vi) amend Section 2.13(k) without the
prior written consent of Lenders holding Tranche B Term Loans representing more
than 50% of the aggregate outstanding principal amount of the Tranche B Term
Loans; provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, the Collateral Agent or
the Issuing Bank hereunder or under any other Loan Document without the prior
written consent of the Administrative Agent, the Collateral Agent or the Issuing
Bank.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement,
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together with all fees, charges and other amounts which are treated as interest
on such Loan or participation in such L/C Disbursement under applicable law
(collectively the "Charges"), shall exceed the maximum lawful rate (the "Maximum
Rate") which may be contracted for, charged, taken, received or reserved by the
Lender holding such Loan or participation in accordance with applicable law, the
rate of interest payable in respect of such Loan or participation 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 or participation but were not payable as a
result of the operation of this Section 9.09 shall be cumulated and the interest
and Charges payable to such Lender in respect of other Loans or participations
or periods shall be increased (but not above the Maximum Rate therefor) until
such cumulated amount, together with interest thereon at the Federal Funds
Effective Rate to the date of repayment, shall have been received by such
Lender.
SECTION 9.10. Entire Agreement. This Agreement, the Fee Letter and the
other Loan Documents constitute the entire contract between the parties relative
to the subject matter hereof. Any other previous agreement among the parties
with respect to the subject matter hereof (including, following the Closing
Date, the Commitment Letter dated January 6, 1997 among the Administrative
Agent, Chase Securities Inc., 399 Venture Partners Inc. and Holdings) is
superseded by this Agreement and the other Loan Documents and shall be
terminated on the Closing Date. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any party other than
the parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. 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 RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
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 AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the provisions
contained in this Agreement or in any other Loan Document should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
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SECTION 9.13. Counterparts. 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, and shall become effective as provided in Section 9.03.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. 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 are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each of
Holdings and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the 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 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 the other Loan Documents against the Borrower, Holdings or their
respective properties in the courts of any jurisdiction.
(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which 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
the other Loan Documents in any New York State or Federal court. 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.
(c) 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 will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.16. Confidentiality. The Administrative Agent, the Collateral
Agent, the Issuing Bank and each of the Lenders agrees to keep confidential (and
to use its best efforts to cause its respective agents and representatives to
keep confidential) the Information (as defined below) and all copies thereof,
extracts therefrom and analyses or other materials based thereon, except that
the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender
shall be permitted to disclose Information (a) to such of its respective
officers, directors, employees, agents, affiliates and representatives as need
to know such Information, (b) to the extent requested by any regulatory
authority, (c) to the extent otherwise required by applicable laws and
regulations or by any subpoena or similar legal process, (d) in connection with
any suit, action or proceeding relating to the enforcement of its rights
hereunder or under the other Loan Documents or (e) to the
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extent such Information (i) becomes publicly available other than as a result of
a breach of this Section 9.16 or (ii) becomes available to the Administrative
Agent, the Issuing Bank, any Lender or the Collateral Agent on a nonconfidential
basis from a source other than the Borrower or Holdings. For the purposes of
this Section, "Information" shall mean all financial statements, certificates,
reports, agreements and information (including all analyses, compilations and
studies prepared by the Administrative Agent, the Collateral Agent, the Issuing
Bank or any Lender based on any of the foregoing) heretofore or hereafter
received from the Borrower or Holdings or any of their respective Affiliates and
related to the Borrower or Holdings, any shareholder or Affiliate of the
Borrower or Holdings or any employee, customer or supplier of the Borrower or
Holdings, other than any of the foregoing that were available to the
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to its disclosure thereto by the Borrower or
Holdings, and which are in the case of Information provided after the date
hereof, clearly identified at the time of delivery as confidential. The
provisions of this Section 9.16 shall remain operative and in full force and
effect regardless of the expiration and term of this Agreement.
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SECTION 9.17. Termination. Subject to the last sentence of Section 9.02,
this Agreement and the other Loan Documents shall terminate when all the
Obligations have been indefeasibly paid in full, the Lenders have no further
commitment to lend, the L/C Exposure has been reduced to zero and the Issuing
Bank has no further commitment to issue Letters of Credit under this Agreement,
at which time the Collateral Agent shall execute and deliver to the Borrower,
Holdings and the Subsidiary Guarantors all Uniform Commercial Code termination
statements and similar documents which the Borrower, Holdings and the Subsidiary
Guarantors shall reasonably request to evidence such termination.
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.
NC MERGER COMPANY,
by_____________________________
Name:
Title:
NFC CASTINGS, INC.,
by______________________________
Name:
Title:
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THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
Collateral Agent and Issuing Bank,
by______________________________
Name:
Title:
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BANK ONE, WISCONSIN,
by______________________________
Name:
Title:
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BHF BANK AKTIENGESELLSCHAFT,
by______________________________
Name:
Title:
by______________________________
Name:
Title:
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BANKBOSTON, N.A.
by______________________________
Name:
Title:
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THE FIRST NATIONAL BANK OF CHICAGO,
by______________________________
Name:
Title:
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95
FIRST SOURCE FINANCIAL LLP,
By First Source Financial Inc.,
its manager
by: ________________________________
Name:
Title:
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HELLER FINANCIAL, INC.,
by_______________________________
Name:
Title:
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NATIONAL CITY BANK,
by_______________________________
Name:
Title:
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98
PNC BANK, NATIONAL ASSOCIATION,
by______________________________
Name:
Title:
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SENIOR HIGH INCOME PORTFOLIO, INC.,
by______________________________
Name:
Title:
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VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST,
by______________________________
Name:
Title: