1
EXHIBIT 10.1
================================================================================
HEDSTROM HOLDINGS, INC.
HEDSTROM CORPORATION
-------------------------
$180,000,000
CREDIT AGREEMENT
dated as of June 12, 1997
-------------------------
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent,
SOCIETE GENERALE,
as Documentation Agent,
and
UBS SECURITIES LLC,
as Syndication Agent
================================================================================
2
TABLE OF CONTENTS
Page
SECTION I. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1. Defined Terms . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Other Definitional Provisions . . . . . . . . . . . . . . 22
SECTION II. AMOUNT AND TERMS OF TRANCHE A LOAN COMMITMENTS . . . . . . . . 22
2.1. Tranche A Term Loans . . . . . . . . . . . . . . . . . . . 22
2.2. Procedure for Tranche A Loan Borrowing . . . . . . . . . . 22
2.3. Amortization of Tranche A Loans . . . . . . . . . . . . . 23
2.4. Use of Proceeds of Tranche A Loans . . . . . . . . . . . . 23
SECTION III. AMOUNT AND TERMS OF TRANCHE B LOAN COMMITMENTS . . . . . . . 24
3.1. Tranche B Term Loans . . . . . . . . . . . . . . . . . . . 24
3.2. Procedure for Tranche B Loan Borrowing . . . . . . . . . . 24
3.3. Amortization of Tranche B Loans . . . . . . . . . . . . . 24
3.4. Use of Proceeds of Tranche B Loans . . . . . . . . . . . . 25
SECTION IV. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS . . . . . . . 25
4.1. Revolving Credit Commitments . . . . . . . . . . . . . . . 25
4.2. Procedure for Revolving Credit Borrowing . . . . . . . . . 25
4.3. Use of Proceeds of Revolving Credit Loans . . . . . . . . 26
SECTION V. AMOUNT AND TERMS OF LETTER OF CREDIT SUB-FACILITY . . . . . . . 26
5.1. L/C Commitment . . . . . . . . . . . . . . . . . . . . . . 26
5.2. Procedure for Issuance, Amendments and Terminations of
Letters of Credit . . . . . . . . . . . . . . . . . . . . 27
5.3. Fees, Commissions and Other Charges . . . . . . . . . . . 27
5.4. L/C Participations . . . . . . . . . . . . . . . . . . . . 28
5.5. Reimbursement Obligation of the Borrower . . . . . . . . . 29
5.6. Obligations Absolute . . . . . . . . . . . . . . . . . . . 29
5.7. Letter of Credit Payments . . . . . . . . . . . . . . . . 30
5.8. Application . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION VI. AMOUNT AND TERMS OF SWING LINE SUB-FACILITY . . . . . . . . . 30
6.1. Swing Line Commitments . . . . . . . . . . . . . . . . . . 30
6.2. Procedure for Swing Line Loan Borrowing . . . . . . . . . 30
6.3. Refunding of Swing Line Loans . . . . . . . . . . . . . . 30
6.4. Unconditional Obligation to Refund Swing Line Loans . . . 31
6.5. Use of Proceeds of Swing Line Loans . . . . . . . . . . . 32
SECTION VII. PROVISIONS RELATING TO THE EXTENSIONS OF CREDIT;
FEES AND PAYMENTS . . . . . . . . . . . . . . . . . . . . 32
7.1. Repayment of Loans; Evidence of Debt . . . . . . . . . . . 32
7.2. Commitment Fee . . . . . . . . . . . . . . . . . . . . . . 33
7.3. Optional Prepayments . . . . . . . . . . . . . . . . . . . 33
7.4. Optional Termination or Reduction of Aggregate
Revolving Credit Commitment . . . . . . . . . . . . . . . 34
7.5. Mandatory Reduction of Commitments and Prepayments . . . . 34
3
Page
----
7.6. Conversion and Continuation Options . . . . . . . . . . . 36
7.7. Minimum Amounts and Maximum Number of Tranches . . . . . . 36
7.8. Interest Rates and Payment Dates . . . . . . . . . . . . . 37
7.9. Computation of Interest and Fees . . . . . . . . . . . . . 37
7.10. Inability to Determine Interest Rate . . . . . . . . . . . 37
7.11. Pro Rata Treatment and Payments . . . . . . . . . . . . . 38
7.12. Illegality . . . . . . . . . . . . . . . . . . . . . . . . 39
7.13. Requirements of Law . . . . . . . . . . . . . . . . . . . 40
7.14. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.15. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . 42
7.16. Certain Fees . . . . . . . . . . . . . . . . . . . . . . . 43
7.17. Change of Lending Office . . . . . . . . . . . . . . . . . 43
7.18. Replacement of Lenders . . . . . . . . . . . . . . . . . . 43
SECTION VIII. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . 44
8.1. Financial Condition . . . . . . . . . . . . . . . . . . . 44
8.2. No Change . . . . . . . . . . . . . . . . . . . . . . . . 45
8.3. Corporate Existence; Compliance with Law . . . . . . . . . 45
8.4. Corporate Power; Authorization; Enforceable
Obligations . . . . . . . . . . . . . . . . . . . . . . . 45
8.5. No Legal Bar . . . . . . . . . . . . . . . . . . . . . . . 46
8.6. No Material Litigation . . . . . . . . . . . . . . . . . . 46
8.7. No Default . . . . . . . . . . . . . . . . . . . . . . . . 46
8.8. Ownership of Property; Liens . . . . . . . . . . . . . . . 46
8.9. Intellectual Property . . . . . . . . . . . . . . . . . . 46
8.10. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 46
8.11. Federal Regulations . . . . . . . . . . . . . . . . . . . 47
8.12. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . 47
8.13. Investment Company Act; Other Regulations . . . . . . . . 47
8.14. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . 47
8.15. Environmental Matters . . . . . . . . . . . . . . . . . . 48
8.16. Security Documents . . . . . . . . . . . . . . . . . . . . 48
8.17. Accuracy and Completeness of Information . . . . . . . . . 49
8.18. Acquisition Documents . . . . . . . . . . . . . . . . . . 49
8.19. Representations and Warranties in respect of the
Collateral . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION IX. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . 51
9.1. Conditions to Initial Loans . . . . . . . . . . . . . . . 51
9.2. Conditions to Each Loan . . . . . . . . . . . . . . . . . 55
SECTION X. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . 55
10.1. Financial Statements . . . . . . . . . . . . . . . . . . . 55
10.2. Certificates; Other Information . . . . . . . . . . . . . 56
10.3. Payment of Obligations . . . . . . . . . . . . . . . . . . 57
10.4. Conduct of Business and Maintenance of Existence . . . . . 57
10.5. Maintenance of Property; Insurance . . . . . . . . . . . . 58
10.6. Inspection of Property; Books and Records; Discussions . . 58
10.7. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 58
10.8. Environmental Laws . . . . . . . . . . . . . . . . . . . . 60
- ii -
4
Page
----
10.9. Further Assurances . . . . . . . . . . . . . . . . . . . . 60
10.10. Additional Collateral . . . . . . . . . . . . . . . . . . 60
10.11. Consummation of Merger . . . . . . . . . . . . . . . . . . 61
10.12. Covenants in respect of the Collateral . . . . . . . . . . 61
SECTION XI. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . 62
11.1. Financial Condition Covenants . . . . . . . . . . . . . . 62
11.2. Limitation on Indebtedness . . . . . . . . . . . . . . . . 63
11.3. Limitation on Liens . . . . . . . . . . . . . . . . . . . 65
11.4. Limitation on Guarantee Obligations . . . . . . . . . . . 67
11.5. Limitation on Fundamental Changes . . . . . . . . . . . . 68
11.6. Limitation on Sale of Assets . . . . . . . . . . . . . . . 68
11.7. Intentionally Deleted . . . . . . . . . . . . . . . . . . 69
11.8. Limitation on Dividends . . . . . . . . . . . . . . . . . 69
11.9. Limitation on Capital Expenditures . . . . . . . . . . . . 70
11.10. Limitation on Investments, Loans and Advances . . . . . . 70
11.11. Limitation on Transactions with Affiliates . . . . . . . . 72
11.12. Limitation on Sales and Leasebacks . . . . . . . . . . . . 73
11.13. Limitation on Changes in Fiscal Year . . . . . . . . . . . 73
11.14. Limitation on Negative Pledge Clauses . . . . . . . . . . 73
11.15. Limitation on Lines of Business . . . . . . . . . . . . . 73
11.16. Limitation on Modification of Agreements and Payments
on Account of Debt . . . . . . . . . . . . . . . . . . . 73
11.17. Rights under Acquisition Documents . . . . . . . . . . . . 74
11.18. Maintenance of Corporate Separateness . . . . . . . . . . 74
11.19. Limitation on Activities of the Parent . . . . . . . . . . 74
SECTION XII. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . 75
SECTION XIII. THE ADMINISTRATIVE AGENT; DOCUMENTATION
AGENT AND SYNDICATION AGENT . . . . . . . . . . . . . . . . 78
13.1. Appointment . . . . . . . . . . . . . . . . . . . . . . . 78
13.2. Delegation of Duties . . . . . . . . . . . . . . . . . . . 78
13.3. Exculpatory Provisions . . . . . . . . . . . . . . . . . . 78
13.4. Reliance by Administrative Agent . . . . . . . . . . . . . 78
13.5. Notice of Default . . . . . . . . . . . . . . . . . . . . 79
13.6. Non-Reliance on Administrative Agent and Other Lenders . . 79
13.7. Indemnification . . . . . . . . . . . . . . . . . . . . . 79
13.8. Administrative Agent in Its Individual Capacity . . . . . 80
13.9. Successor Administrative Agent . . . . . . . . . . . . . . 80
13.10. Documentation Agent and Syndicate Agent . . . . . . . . . 80
SECTION XIV. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 80
14.1. Amendments and Waivers . . . . . . . . . . . . . . . . . . 80
14.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 81
14.3. No Waiver; Cumulative Remedies . . . . . . . . . . . . . . 82
14.4. Survival of Representations and Warranties . . . . . . . . 82
14.5. Payment of Expenses and Taxes . . . . . . . . . . . . . . 82
14.6. Successors and Assigns; Participations and Assignments . . 83
- iii -
5
Page
----
14.7. Adjustments; Set-off . . . . . . . . . . . . . . . . . . . 85
14.8. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 86
14.9. Severability . . . . . . . . . . . . . . . . . . . . . . . 86
14.10. Integration . . . . . . . . . . . . . . . . . . . . . . . 86
14.11. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . 86
14.12. Submission To Jurisdiction; Waivers . . . . . . . . . . . 86
14.13. Acknowledgements . . . . . . . . . . . . . . . . . . . . . 87
14.14. WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . . . . . 87
14.15. Confidentiality . . . . . . . . . . . . . . . . . . . . . 87
SCHEDULES
Schedule 1.1A Lenders; Addresses; Commitments
Schedule 1.1B Mortgaged Properties
Schedule 5.2 Existing Letters of Credit
Schedule 8.4 Consents and Authorizations
Schedule 8.15 Subsidiaries
Schedule 8.16(a) UCC Filings and Other Actions
Schedule 8.16(c) Mortgage Filing Jurisdictions
Schedule 8.19(b) Chief Executive Office
Schedule 8.19(c) Locations of Inventory and Equipment
Schedule 8.19(f) Intellectual Property
Schedule 9.1(h) Additional Legal Counsel
Schedule 11.2(d) Existing Indebtedness
Schedule 11.3(f) Existing Liens
Schedule 11.4(a) Existing Guarantee Obligations
Schedule 11.10(f) Investments
EXHIBITS
Exhibit A Form of Tranche A Note
Exhibit B Form of Tranche B Note
Exhibit C Form of Revolving Credit Note
Exhibit D Form of Swing Line Note
Exhibit E Form of Master Guarantee and Collateral Agreement
Exhibit F Form of Mortgage
Exhibit G-1 Form of Opinion of Weil, Gotshal & Manges, LLP
Exhibit G-2 Form of Opinion of U.K. Counsel
Exhibit G-3 Form of Opinion of Canadian Counsel
Exhibit H Form of Assignment and Acceptance
Exhibit I-1 Form of Notice of Borrowing (Drawings)
Exhibit I-2 Form of Notice of Borrowing (Conversions)
Exhibit I-3 Form of Notice of Borrowing (Continuations)
Exhibit J Form of Borrowing Base Certificate
- iv -
6
CREDIT AGREEMENT, dated as of June 12, 1997, among:
(a) HEDSTROM CORPORATION, a Delaware corporation (the "Borrower");
(b) HEDSTROM HOLDINGS, INC., a Delaware corporation (the "Parent");
(c) the Lenders (as hereinafter defined) from time to time parties hereto;
(d) SOCIETE GENERALE, as documentation agent (in such capacity, the
"Documentation Agent") for the Lenders;
(e) UBS SECURITIES LLC, as syndication agent (in such capacity, the
"Syndication Agent") for the Lenders; and
(f) CREDIT SUISSE FIRST BOSTON, as administrative agent (in such capacity,
the "Administrative Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, HC Acquisition Corp., a Delaware corporation and a wholly
owned Subsidiary of the Borrower ("AcquisitionCo"), intends to acquire all of
the issued and outstanding common stock of ERO, Inc., a Delaware corporation
("ERO"), pursuant to the Agreement and Plan of Merger, dated as of April 10,
1997 (the "Merger Agreement"), among the Borrower, AcquisitionCo and ERO for
aggregate consideration of approximately $200,000,000;
WHEREAS, such acquisition shall take the form of a tender offer by
AcquisitionCo for all of the issued and outstanding shares of common stock of
ERO (all of such common stock collectively, the "Shares") at a price of $11.25
per share (the "Tender Offer") and the purchase of the Shares tendered pursuant
to the Tender Offer and not validly withdrawn (the "Tendered Shares");
WHEREAS, as promptly as is practicable following the consummation of
the Tender Offer and the acquisition of the Tendered Shares (which includes
options in connection with the Tender Offer), AcquisitionCo shall be merged
with and into ERO, such that ERO shall survive as a wholly owned direct
Subsidiary of the Borrower (the "Merger"; collectively with the Tender Offer,
the "Acquisition");
WHEREAS, the Borrower has requested that the Lenders make Loans and
other extensions of credit available to it in order to finance the Acquisition
and to provide funds for other general corporate purposes of the Borrower; and
WHEREAS, the Lenders are willing to make such Loans and other
extensions of credit available to the Borrower only upon the terms and subject
to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the parties hereto hereby agree as follows:
SECTION I. DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
7
2
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime
Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. "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. The Prime Rate is not intended to be the lowest rate
of interest charged by the Administrative Agent in connection with
extensions of credit to debtors. "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 which is a Business Day, the average of the
quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it. Any change in the ABR due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective as of
the opening of business on the effective day of such change in the Prime
Rate or the Federal Funds Effective Rate, respectively.
"ABR Loans": Loans (including, without limitation, Swing Line
Loans) the rate of interest applicable to which is based upon the ABR.
"Accounting Changes": as defined in the definition of GAAP.
"Acquisition": as defined in the recitals hereto.
"AcquisitionCo": as defined in the recitals hereto.
"Acquisition Documents": the collective reference to the Tender
Offer Documents, the Merger Agreement and all other documents and
information sent by the Borrower or any of its Subsidiaries or ERO to the
shareholders of ERO or filed with the SEC in connection with the Tender
Offer and the Merger.
"Adjusted Consolidated Working Capital": at any time, the amount
equal to Consolidated Current Assets (but excluding therefrom all cash
and Cash Equivalents) minus Consolidated Current Liabilities.
"Administrative Agent": as defined in the preamble hereto.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 51% or more of the securities
having ordinary voting power for the election of directors of such Person
or (b) direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise.
"Aggregate Outstanding Extensions of Credit": as to any Revolving
Credit Lender at any time, an amount equal to the sum of (a) the
aggregate outstanding principal amount of all Revolving Credit Loans made
by such Revolving Credit Lender and (b) such Revolving Credit Lender's
Revolving Credit Commitment Percentage of the L/C Obligations and Swing
Line Loans then
8
3
outstanding; provided that, only for purposes of calculating the
commitment fee owing pursuant to subsection 7.2, the aggregate amount of
Swing Line Loans then outstanding shall be deemed to be held entirely by
the Swing Line Lender and not by any other Lender.
"Aggregate Revolving Credit Commitment": $70,000,000, as such
amount may be reduced from time to time pursuant to this Agreement.
"Aggregate Tranche A Commitment": $75,000,000, as such amount may
be reduced from time to time pursuant to this Agreement.
"Aggregate Tranche B Commitment": $35,000,000, as such amount may
be reduced from time to time pursuant to this Agreement.
"Agreement": this Credit Agreement, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Applicable Margin": with respect to (a) Tranche B Loans, (i) 3%
per annum, in the case of Eurodollar Loans and (ii) 2% per annum, in the
case of ABR Loans and (b) with respect to Tranche A Loans and Revolving
Credit Loans:
(i) for each day prior to the date upon which the
Administrative Agent receives the financial statements required to
be delivered pursuant to subsection 10.1 for the first complete
fiscal quarter to occur after the Closing Date, (A) 2-1/2% per
annum, in the case of Eurodollar Loans and (B) 1-1/2% per annum, in
the case of ABR Loans; and
(ii) for each day thereafter, the rate per annum set
forth under the relevant column heading below opposite the Leverage
Ratio then in effect:
- --------------------------------------------------------------------------------
Applicable Margin
-----------------------------
Eurodollar
Leverage Ratio ABR Loans Loans
- --------------------------------------------------------------------------------
Greater than or equal to 5.0 to 1.00 1.50% 2.50%
- --------------------------------------------------------------------------------
Less than 5.0 to 1.0, but greater than or 1.25% 2.25%
equal to 4.5 to 1.0
- --------------------------------------------------------------------------------
Less than 4.5 to 1.0, but greater than or 1.00% 2.00%
equal to 4.0 to 1.0
- --------------------------------------------------------------------------------
Less than 4.0 to 1.0, but greater than or .75% 1.75%
equal to 3.5 to 1.0
- --------------------------------------------------------------------------------
Less than 3.5 to 1.0, but greater than or .50% 1.50%
equal to 3.0 to 1.0
- --------------------------------------------------------------------------------
Less than 3.0 to 1.0 .25% 1.25%
- --------------------------------------------------------------------------------
; provided that (for purposes of this clause (b)(ii) only), any change in
the interest rate on a Loan resulting from a change in the Leverage Ratio
of the Borrower and its Subsidiaries shall
9
4
become effective as of the opening of business on the date which is the
earlier of (A) the date upon which the Administrative Agent receives the
financial statements required to be delivered pursuant to subsection 10.1
which evidence such change in the Leverage Ratio and (B) the date upon
which such financial statements are required to be delivered pursuant to
subsection 10.1; provided, further, that, in the event that the financial
statements required to be delivered pursuant to subsection 10.1(a) or
(b), as applicable, are not delivered when due (after giving effect to
the applicable cure period), then during the period from the date upon
which such financial statements were required to be delivered until the
date upon which they actually are delivered, the Leverage Ratio shall be
deemed for purposes of this definition to be greater than or equal to 5.0
to 1.0; and provided, further, however, that the "Applicable Margin" from
time to time for Swing Line Loans shall be the same as the "Applicable
Margin" then in effect for ABR Loans.
"Application": an application, in such form as the relevant Issuing
Lender may specify from time to time, requesting such Issuing Lender to
open a Letter of Credit.
"Asset Swap": any substantially concurrent purchase and sale, or
exchange, of equipment used or usable in the business of the Borrower and
its Subsidiaries.
"Assignee": as defined in subsection 14.6(c).
"Available Revolving Credit Commitment": as to any Revolving Credit
Lender, at any time, an amount equal to the excess, if any, of (a) such
Revolving Credit Lender's Revolving Credit Commitment over (b) such
Revolving Credit Lender's Aggregate Outstanding Extensions of Credit.
"Borrower": as defined in the preamble hereto.
"Borrowing Base": as of the time any determination thereof is to be
made, the sum of (i) 50% of Eligible Inventory and (ii) 85% of the
Eligible Receivables, each as reported in the most recent Borrowing Base
Certificate delivered to the Administrative Agent.
"Borrowing Base Certificate": a certificate, in the form attached
hereto as Exhibit J, including with such changes as the Administrative
Agent may from time to time reasonably request for the purpose of
monitoring the Borrowing Base.
"Borrowing Date": any Business Day specified in a Notice of
Borrowing pursuant to subsection 2.2, 3.2, 4.2, 5.5 or 6.2 as a date on
which the Borrower requests the Lenders to make Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law
to close; provided, however, that, with respect to matters relating to
Eurodollar Loans, any day on which commercial banks in London, England
are authorized or required by law to close also shall not constitute a
"Business Day".
"Canadian Subsidiary Equivalent Outstandings": as defined in
subsection 11.2(p).
"Capital Expenditures": expenditures (including, without
limitation, obligations created under Financing Leases and purchase money
Indebtedness in the year in which created
10
5
but excluding payments made thereon) of Borrower and its Subsidiaries in
respect of the purchase or other acquisition of fixed or capital assets
(excluding any such asset acquired (w) in connection with normal
replacement and maintenance programs properly expensed in accordance with
GAAP, (x) with the proceeds of any casualty insurance or condemnation
award (with such expenditures to be made, to the extent subsection 7.5(i)
is applicable, in accordance with subsection 7.5(d)), (y) with the cash
proceeds of any asset sale made pursuant to subsections 11.6(a), (c), (j)
or (l) applied or contractually committed to be applied within 180 days
from receipt of such proceeds and (z) in any Permitted Acquisition).
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"Cash Equivalents": (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured
by the United States Government or any agency thereof, (b) certificates
of deposit and eurodollar time deposits with maturities of one year or
less from the date of acquisition and overnight bank deposits of any
Lender or of any commercial bank having capital and surplus in excess of
$250,000,000, (c) repurchase obligations of any Lender or of any
commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 90 days with respect to
securities issued or fully guaranteed or insured by the United States
Government, (d) commercial paper of an issuer rated at least A-2 by
Standard and Poor's Rating Group ("S&P") or P-2 by Moody's Investors
Service, Inc. ("Moody's") or carrying an equivalent rating by a
nationally recognized rating agency if both of the two named rating
agencies cease publishing ratings of investments, (e) securities with
maturities of one year or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the United
States, by any political subdivision or taxing authority of any such
state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be)
are rated at least A by S&P or A by Moody's or carrying an equivalent
rating by a nationally recognized rating agency if both of the two named
rating agencies cease publishing ratings of investments, (f) securities
with maturities of one year or less from the date of acquisition backed
by standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (b) of this definition or (g)
shares of money market mutual or similar funds which invest exclusively
in assets satisfying the requirements of clauses (a) through (f) of this
definition.
"Change of Control": the earlier to occur of (A) Hicks, Muse, Tate
& Furst Incorporated, Arnold E. Ditri, their principals and their
Affiliates and management ("HMTFI") shall cease to have the power,
directly or indirectly, to vote or direct the voting of securities having
a majority of the ordinary voting power for the election of directors of
Parent, provided that the occurrence of the foregoing event shall not be
deemed a Change of Control if (a) at any time prior to the consummation
of an Initial Public Offering, and for any reason whatever, (i) HMTFI
otherwise has the right to designate (and does so designate) a majority
of the board of directors of Parent or (ii) HMTFI and their employees,
directors and officers (the "HMTFI Group") own of record and beneficially
an amount of common stock of Parent equal to at least 50% of the amount
of common stock of Parent owned by the HMTFI Group of record and
beneficially as of the Closing Date and such ownership by the HMTFI Group
represents the largest single block of voting securities of Parent held
by any Person or
11
6
related group for purposes of Section 13(d) of the Exchange Act, or (b)
at any time after the consummation of an Initial Public Offering, and for
any reason whatever, (i) no "Person" or "group" (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act), excluding the HMTFI
Group, shall have become the "beneficial owner" (as defined in Rules
13(d)-3 and 13(d)-5 under such Act), directly or indirectly of more than
the greater of (x) 15% of the shares outstanding or (y) the percentage of
the then outstanding voting stock of Parent owned by the HMTFI Group and
(ii) the board of directors of Parent shall consist of a majority of
Continuing Directors, and (B) of a Change of Control as defined in any
document pertaining to the Senior Discount Notes or the Senior
Subordinated Notes.
"Chattel Paper": as defined in the Master Guarantee and Collateral
Agreement.
"Clean-Down Amount": the amount equal to $10,000,000 for fiscal
years 1998 and 1999 and $15,000,000 for each fiscal year thereafter.
"Closing Date": the date on which the conditions precedent set
forth in subsection 9.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all assets of the Credit Parties, now owned or
hereinafter acquired, upon which a Lien is purported to be created by any
Security Document; provided that for purposes of subsections 8.19 and
10.12 such term shall have the meaning provided for in the Master
Guarantee and Collateral Agreement.
"Commitment": as to any Lender, its Tranche A Commitment, Tranche B
Commitment or Revolving Credit Commitment, as the context shall require;
as to all Lenders, the "Commitments".
"Commitment Percentage": as to any Lender at any time, its Tranche
A Commitment Percentage, its Tranche B Commitment Percentage or its
Revolving Credit Commitment Percentage, as the context shall require.
"Commitment Period": the period from and including the date hereof
to but not including the Termination Date or such earlier date on which
the Aggregate Revolving Credit Commitment shall terminate as provided
herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Borrower and which is treated as a single employer under Section 414 of
the Code.
"Consolidated Current Assets": at any time, the consolidated
current assets (other than cash and Cash Equivalents) of the Borrower and
its Subsidiaries on a consolidated basis in accordance with GAAP.
"Consolidated Current Liabilities": at any time, the consolidated
current liabilities of the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP, but excluding (a) the current
portion of any Indebtedness under this Agreement and any other long-term
Indebtedness which would otherwise be included therein, (b) accrued but
unpaid
12
7
interest with respect to the Indebtedness described in clause (a), and
(c) accrued income tax expense.
"Consolidated EBITDA": for any period, with respect to any Person,
Consolidated Net Income of such Person for such period (A) plus, without
duplication and to the extent reflected as a charge in the statement of
such Consolidated Net Income for such period, the sum of (i) total income
and franchise tax expense, (ii) interest expense, amortization or
writeoff of debt discount and debt issuance costs and commissions and
discounts and other fees and charges associated with Indebtedness, (iii)
depreciation and amortization expense, (iv) amortization of intangibles
(including, but not limited to, goodwill), (v) other noncash charges and
(vi) any extraordinary expenses or losses (including losses on sales of
assets other than inventory sold in the ordinary course of business) and
(B) minus, without duplication, (i) any extraordinary income or gains
(including gains on the sales of assets, other than inventory sold in the
ordinary course of business) other than any income from discontinued
operations and (ii) noncash income included in Consolidated Net Income,
all as determined on a consolidated basis.
"Consolidated Interest Coverage Ratio:" as defined in subsection
11.1(a).
"Consolidated Interest Expense": for any period, total cash
interest expense (including that attributable to Financing Leases), net
of interest income, of the Borrower and its Subsidiaries for such period
with respect to all outstanding Indebtedness (including, without
limitation, all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptances and net costs
under Interest Rate Agreements to the extent such net costs are allocable
to such period in accordance with GAAP).
"Consolidated Net Income": for any period, the consolidated net
after tax income (or loss) of the Borrower and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Total Indebtedness": at a particular date, with
respect to the Borrower and its Subsidiaries, the difference between (a)
the aggregate principal amount of Indebtedness under this Agreement,
Financing Leases, purchase money Indebtedness, the Senior Subordinated
Notes, and any other Indebtedness for borrowed money of the Borrower and
its Subsidiaries at such date in conformity with GAAP and (b) the
unencumbered cash and Cash Equivalent balances of the Borrower and its
Subsidiaries on such date; provided that, for purposes of the calculation
of Revolving Credit Loans under clause (a), the amount of Revolving
Credit Loans deemed outstanding on such date shall equal; (i) in the case
of the fiscal quarter ended September 30, 1997 (A) the sum of (w)
$6,600,000, plus (x) $8,500,000, plus (y) the total aggregate principal
amount of Revolving Credit Loans outstanding as of the last day of the
fiscal quarter of the Borrower ending June 30, 1997, plus (z) the sum of
the total aggregate principal amount of Revolving Credit Loans
outstanding on July 31, 1997, August 31, 1997 and September 30, 1997,
divided by three; divided by (B) four; (ii) in the case of the fiscal
quarter ended on December 31, 1997, (A) the sum of (x) $8,600,000, plus
(y) the total aggregate principal amount of Revolving Credit Loans
outstanding as of the last day of the fiscal quarter of the Borrower
ending June 30, 1997, plus (z) the sum of the aggregate principal amount
of the Revolving Credit Loans outstanding as of each of the months ended
July through December 1997 divided by six; divided by (b) three; (iii) in
the case of the fiscal quarter ended March 31, 1998, (A) the sum of (y)
the total aggregate principal amount of Revolving Credit Loans
outstanding as of the last day of the fiscal quarter
13
8
of the Borrower ending June 30, 1997 plus (z) the sum of the aggregate
principal amount of the Revolving Credit Loans outstanding as of each of
the months ended July 1996 through March 1997 divided by nine; divided by
(b) two; and (iv) in the case of any fiscal quarter ended June 30, 1998
and thereafter, (A) the sum of the total aggregate principal amount of
the Revolving Credit Loans outstanding as of the month ended on such date
and for each of the prior eleven fiscal months, divided by (B) twelve.
"Consolidated Working Capital": the excess of Consolidated Current
Assets over Consolidated Current Liabilities.
"Continuing Directors": the directors of the Parent holding office
on the date which is six months prior to the consummation of an Initial
Public Offering and each other director whose nomination for election to
the Board of Directors of the Parent has been recommended by a majority
of the Continuing Directors then serving as such.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Contributed Equity": (a) the proceeds of any capital contribution
made to the Borrower (or to the Parent and in turn contributed to the
Borrower) by any member of the HMTFI Group and (b) the proceeds of any
other private placement of Capital Stock of the Borrower (or of the
Parent and in turn contributed to the Borrower) consummated after the
Closing Date, provided that the aggregate amount of proceeds of sales of
Capital Stock to Persons other than members of the HMTFI Group that may
be included in "Contributed Equity" pursuant to this clause (b) shall not
exceed $10,000,000 during the term of this Agreement.
"Credit Documents": this Agreement, the Notes and the Applications
and the Security Documents.
"Credit Parties": the Borrower, the Parent and each Subsidiary
which is a party to a Credit Document.
"Default": any of the events specified in Section 12, whether or
not any requirement for the giving of notice, the lapse of time, or both,
or any other condition, has been satisfied.
"Documentation Agent": as defined in the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the United States.
"Domestic Subsidiary": any Subsidiary organized under the laws of
any jurisdiction within the United States.
"Eligible Inventory": the total dollar value (valued at the lower
of cost (determined on a first in-first out basis) or market value) of
the inventory of Borrower and its Domestic Subsidiaries, which conforms
to the representations and warranties contained in subsection 8.19, which
inventory constitutes raw materials, work-in-progress or finished goods
and which is not excess, obsolete or unmerchantable, less (i) any
supplies (other than raw materials and spare parts owned by the Borrower
and reflected in its balance sheet), (ii) goods
14
9
returned or rejected by customers, (iii) goods to be returned to
suppliers, (iv) inventory subject to any Lien other than landlords' liens
and the Liens created under the Security Documents (including goods
subject to Liens arising out of conditional sales, title retention,
consignment or similar arrangements) or (v) any obsolescence reserves
maintained by the Borrower and its Domestic Subsidiaries.
"Eligible Receivables": the total face amount of the receivables of
Borrower and its Domestic Subsidiaries which conform to the
representations and warranties contained in subsection 8.19, and at all
times continue to be acceptable to the Administrative Agent in its
reasonable judgment (provided that any changes shall only be effective on
a prospective basis after 15 days' prior written notice) less any
returns, discounts, claims, credits and allowances of any nature (whether
issued, owing, granted or outstanding) and amounts in respect of
receivables subject to the Federal Assignment of Claims Act in an amount
in excess of $3,000,000 and less reserves (including reserves for
receivables which have not been paid in full within 90 days after the due
date thereof or which amounts have been disputed by the account debtor)
for any other matter affecting the creditworthiness of account debtors
with respect to the receivables.
"Environmental Laws": any applicable foreign, Federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority or other
Requirements of Law (including common law) regulating, relating to or
imposing liability or standards of conduct concerning protection of human
health or the environment, as now or may at any time hereafter be in
effect.
"Equipment": as defined in the Master Guarantee and Collateral
Agreement.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERO": as defined in the recitals hereto.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board of Governors of
the Federal Reserve System or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of such Board) maintained by a
member bank of such System.
"Eurodollar Base Rate": the rate per annum determined by the
Administrative Agent at approximately 11:00 a.m. (London time) on the
date which is two Business Days prior to the beginning of the relevant
Interest Period (as specified in the applicable Notice of Borrowing) by
reference to the "British Bankers' Association Interest Settlement Rates"
for deposits in Dollars (as set forth by any service selected by the
Administrative Agent which has been nominated by the British Bankers'
Association as an authorized information vendor for the purpose of
displaying such rates) for a period equal to such Interest Period
(rounded, if necessary, upward to the nearest whole multiple of 1/16th of
1%); provided that, to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition,
the "Eurodollar Base Rate" shall be the interest rate per annum
determined by the
15
10
Administrative Agent to be the average (rounded, if necessary, upward to
the nearest whole multiple of 1/16th of 1% per annum, if such average is
not such a multiple) of the rates per annum at which deposits in Dollars
are offered for such relevant Interest Period to major banks in the
London interbank market in London, England by the Reference Banks at
approximately 11:00 a.m. (London time) on the date which is two Business
Days prior to the beginning of such Interest Period. If any of the
Reference Banks shall be unable or shall otherwise fail to supply such
rates to the Administrative Agent upon its request, the rate of interest
shall, subject to the provisions of subsection 7.10, be determined on the
basis of the quotations of the remaining Reference Banks or Reference
Bank. Any change in the Eurocurrency Base Rate resulting from a change
in the Eurocurrency Reserve Requirements shall become effective on the
opening of business on the day in which such change became effective.
"Eurodollar Loans": Loans the rate of interest applicable to which
is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 12,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the
excess, if any, of (a) the sum, without duplication, of (i) Consolidated
EBITDA for such fiscal year, (ii) decreases in Consolidated Working
Capital for such fiscal year, (iii) the amount of any refund received by
the Borrower and its Subsidiaries during such fiscal year on taxes paid
by the Borrower and its Subsidiaries, (iv) cash dividends, cash interest
and other similar cash payments received by the Borrower during such
fiscal year in respect of investments to the extent not included in
Consolidated Net Income to determine Consolidated EBITDA for such fiscal
year, and (v) extraordinary cash gains to the extent subtracted or
otherwise not included in Consolidated Net Income to determine
Consolidated EBITDA for such fiscal year over (b) the sum, without
duplication, of (i) the aggregate amount actually paid by the Borrower
and its Subsidiaries in cash during such fiscal year on account of
Capital Expenditures (excluding (x) the principal amount of Indebtedness
incurred in connection with such expenditures and (y) any such
expenditures made pursuant to subsection 11.9(b) except, in the case of
this clause (y), to the extent that the amounts used to make such
expenditures were included in determining Consolidated EBITDA for such
fiscal year), (ii) the aggregate amount of all prepayments of Revolving
Credit Loans and Swing Line Loans during such fiscal year to the extent
accompanying permanent optional reductions of the Revolving Credit
Commitments and all optional prepayments of the Term Loans during such
fiscal year, (iii) the aggregate amount of all regularly scheduled
principal payments of long-term Indebtedness (including, without
limitation, the Term Loans) of the Borrower and its Subsidiaries made
during such fiscal year (other than in respect of any revolving credit
facility to the extent there is not an equivalent permanent reduction in
commitments thereunder), (iv) increases in Consolidated Working Capital
for such fiscal year, (v) cash interest expense of the Borrower and its
16
11
Subsidiaries for such fiscal year, (vi) cash taxes actually paid in such
fiscal year or to be paid in the subsequent fiscal year on account of
such fiscal year to the extent added to Consolidated Net Income to
determine Consolidated EBITDA for such fiscal year, (vii) the amount of
all loans and advances made in such fiscal year pursuant to subsection
11.10(c) (net of any repayments of such loans and advances made during
such fiscal year), (viii) the amount of all investments made in such
fiscal year pursuant to subsection 11.10(k) or (l) (to the extent such
investment is not in cash or Cash Equivalents), (ix) the amount of all
deposits required to be made by the Borrower or any of its Subsidiaries
during such fiscal year in connection with investments made pursuant to
subsection 11.10(i) (net of any amounts returned in respect of such
deposits during such fiscal year), (x) dividends paid by the Borrower
during such fiscal year in accordance with subsection 11.8 to the extent
not subtracted in the determination of Consolidated Net Income of the
Borrower for such fiscal year, (xi) previously expensed royalty payments
made during such fiscal year to the extent not subtracted in the
determination of Consolidated Net Income of the Borrower for such fiscal
year, and (xii) extraordinary cash losses to the extent added to
Consolidated Net Income to determine Consolidated EBITDA for such fiscal
year; provided that there shall be excluded from the calculation of
Excess Cash Flow the income or (loss) of any Person earned or accrued, as
the case may be, prior to the date it becomes a Subsidiary of the
Borrower or is merged into or consolidated with the Borrower and its
Subsidiaries.
"Exchange Act": the Securities Exchange Act of 1934, as amended.
"Existing Credit Agreement": the Credit Agreement, dated as of
October 27, 1995, among Hedstrom Holdings, Inc., Hedstrom Corporation,
the banks and other financial institutions parties thereto and Bankers
Trust Company, as agent, as the same may be amended, supplemented or
otherwise modified from time to time.
"Farm Products": as defined in the Master Guarantee and Collateral
Agreement.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Foreign Pledge Agreement": each pledge agreement (or analogous
document), which pledge agreement (or analogous document) shall be in
form and substance reasonably satisfactory to the Administrative Agent,
pursuant to which the Borrower or any of its Domestic Subsidiaries
purports to grant a Lien on 65% of the Capital Stock of any Foreign
Subsidiary, as the same may be amended, supplemented or otherwise
modified from time to time.
"Foreign Subsidiary": any Subsidiary organized under the laws of
any jurisdiction outside the United States.
"GAAP": generally accepted accounting principles in the United
States as in effect from time to time set forth in the opinions and
pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board and the rules
and regulations of the SEC (or any agency with similar functions), or in
such other statements by such other entity as may be in general use by
significant segments of the accounting profession, which are applicable
to the circumstances of Borrower as of the date of determination except
that for
17
12
purposes of subsection 11.1, GAAP shall be determined on the basis of
such principles in effect on the date hereof and consistent with those
used in the preparation of the financial statements referred to in
subsections 8.1(a) and (b), as the case may be. In the event that any
"Accounting Change" (as defined below) shall occur and such change
results in a change in the method of calculation of financial covenants,
standards or terms in this Agreement, then the Borrower and the
Administrative Agent agree to enter into negotiations in order to amend
such provisions of this Agreement so as to equitably reflect such
Accounting Changes with the desired result that the criteria for
evaluating Borrower's financial condition shall be the same after such
Accounting Changes as if such Accounting Changes had not been made.
Until such time as such an amendment shall have been executed and
delivered by the Borrower, the Administrative Agent and the Required
Lenders, all financial covenants, standards and terms in this Agreement
shall continue to be calculated or construed as if such Accounting
Changes had not occurred. "Accounting Changes" means: changes in
accounting principles required by the promulgation of any rule,
regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants
or, if applicable, the SEC (or any agency with similar functions).
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in either
case guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations (the "primary obligations") of any other
third Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (A) for the purchase
or payment of any such primary obligation or (B) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain
the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation or (iv) otherwise to
assure or hold harmless the owner of any such primary obligation against
loss in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the
lower of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee Obligation is made
and (b) the maximum amount for which such guaranteeing person may be
liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for
which such guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee Obligation shall
be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"Guarantor": any Person (other than the Borrower) executing the
Master Guarantee and Collateral Agreement.
18
13
"HMTFI": as defined in the definition of "Change of Control".
"Indebtedness": of any Person at any date, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of
property or services (other than current trade liabilities incurred in
the ordinary course of business and payable in accordance with customary
practices and accrued expenses incurred in the ordinary course of
business), (b) any other indebtedness of such Person which is evidenced
by a note, bond, debenture or similar instrument, (c) all obligations of
such Person under Financing Leases, (d) all obligations of such Person in
respect of acceptances issued or created for the account of such Person
and (e) all liabilities secured by any Lien on any property owned by such
Person even though such Person has not assumed or otherwise become liable
for the payment thereof; provided, however, that the amount of such
Indebtedness of any Person described in this clause (e) shall, for
purposes of this Agreement, be deemed to be equal to the lesser of (i)
the aggregate unpaid amount of such Indebtedness and (ii) the fair market
value of the property or asset encumbered, as determined by such Person
in good faith. Whenever the term Indebtedness is used with respect to
any Person and its Subsidiaries, it shall mean without duplication.
"Initial Public Offering": an underwritten public offering of
common stock of the Borrower or any Affiliate thereof which has as its
sole material asset its equity interest in the Borrower pursuant to a
registration statement which is filed with the SEC in accordance with the
Securities Act of 1933 (as amended); provided, however, that the net
proceeds of such underwritten public offering are (to the extent not
directly paid to the Borrower) contributed to the Borrower.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Instrument": as defined in the Master Guarantee and Collateral
Agreement.
"Intellectual Property": as defined in the Master Guarantee and
Collateral Agreement.
"Interest Payment Date": (a) as to any ABR Loan, the last Business
Day of each March, June, September and December, (b) as to any Eurodollar
Loan having an Interest Period of three months or less, the last day of
such Interest Period and (c) as to any Eurodollar Loan having an Interest
Period longer than three months, each day which is three months, or a
whole multiple thereof, after the first day of such Interest Period (or,
if such day is not a Business Day, the next succeeding Business Day) and
the last day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing
or conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three or six months or, to the
extent available to all Lenders, nine or twelve months thereafter,
as selected by the Borrower in its Notice of Borrowing given with
respect thereto; and
19
14
(b) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six months or, to the
extent available to all Lenders, nine or twelve months thereafter,
as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the
last day of the then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month
in which event such Interest Period shall end on the immediately
preceding Business Day;
(2) any Interest Period that would otherwise extend beyond the
Termination Date or beyond the date final payment is due on the
relevant Tranche A Loan or Tranche B Loan (as the case may be) shall
end on the Termination Date or such date of final payment, as the
case may be;
(3) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(4) no Interest Period with respect to any tranche or class of
the Term Loans shall extend beyond any date upon which repayment of
principal thereof is required to be made if, after giving effect to
the selection of such Interest Period, the aggregate principal
amount of such tranche or class of Term Loans with Interest Periods
ending after such date would exceed the aggregate principal amount
of such tranche or class of Term Loans permitted to be outstanding
after such scheduled repayment;
"Interest Rate Agreement" any interest rate swap, option, cap,
collar or insurance agreement, any commodity or currency future or any
other interest rate, commodity or currency hedge agreement or arrangement
which is designed to provide protection against fluctuations in interest
rates, commodity prices or currency exchange rates, and any renewals
thereof or substitutions therefor.
"Inventory": as defined in the Master Guarantee and Collateral
Agreement.
"Investment": as defined in subsection 11.10.
"Issuing Lender": with respect to any Letter of Credit, Credit
Suisse First Boston or any other Lender appointed by Borrower and
approved by the Administrative Agent (such approval not to be
unreasonably withheld) (provided that such other Lender agrees to serve
in the capacity of Issuing Lender), in its capacity as issuer thereof.
"L/C Commitment": $10,000,000.
20
15
"L/C Fee Payment Date": the last Business Day of each March, June,
September, and December.
"L/C Obligations": at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters
of Credit which have not then been reimbursed pursuant to subsection 5.5.
"L/C Participants": with respect to any Letter of Credit, the
collective reference to all the Revolving Credit Lenders other than the
Issuing Lender with respect to such Letter of Credit.
"Lenders": the collective reference to the Tranche A Lenders, the
Tranche B Lenders, the Revolving Credit Lenders and the Swing Line
Lender.
"Letters of Credit": as defined in subsection 5.1(a).
"Leverage Ratio": at any date of determination, the ratio of the
Consolidated Total Indebtedness of the Borrower and its Subsidiaries on
such date to Consolidated EBITDA for the period of four fiscal quarters
of the Borrower ending most recently prior to or on such date.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention
agreement and any Financing Lease having substantially the same economic
effect as any of the foregoing).
"Loan": any Tranche A Loan, Tranche B Loan or Revolving Credit Loan
(including, without limitation, any Swing Line Loan), as the context
shall require.
"Master Guarantee and Collateral Agreement": the Master Guarantee
and Collateral Agreement, to be executed by Parent, Borrower and their
Subsidiaries substantially in the form of Exhibit E, as amended,
supplemented or otherwise modified from time to time.
"Material Adverse Effect": a material adverse effect on (a) the
Transactions, (b) the business, assets, property, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries (after
giving effect to the Acquisition) taken as a whole or (c) the validity or
enforceability of this Agreement or any of the other Credit Documents or
the rights or remedies of the Administrative Agent or the Lenders
hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, defined or
regulated as such in or under any Environmental Law, including, without
limitation, friable asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Merger": as defined in the recitals hereto.
21
16
"Merger Agreement": as defined in the recitals hereto.
"Mortgage": each Mortgage to be executed and delivered by a Credit
Party and covering Mortgaged Property, substantially in the form of
Exhibit F, as the same may be amended, supplemented or otherwise modified
from time to time.
"Mortgaged Properties": the real properties listed on Schedule
1.1B, as to which the Administrative Agent for the benefit of the Lenders
shall be granted a Lien pursuant to the Mortgages.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Proceeds": with respect to any Net Proceeds Event, (a) the
gross cash consideration, and all cash proceeds (as and when received) of
non-cash consideration (including, without limitation, any such cash
proceeds in the nature of principal and interest payments on account of
promissory notes or similar obligations), received by the Borrower and
its Subsidiaries in connection with such Net Proceeds Event, minus (b)
the sum, without duplication, of (i) any taxes which are paid or actually
payable to any federal, state, local or foreign taxing authority by the
Borrower and its Subsidiaries and are directly attributable to the
receipt of such Net Proceeds, (ii) the amount of fees and commissions
(including reasonable investment banking fees payable to Persons other
than Affiliates of the Borrower), legal, notarial, accounting,
consulting, survey, title and recording tax expenses, underwriting
discounts and commissions and other costs and expenses directly incident
to such Net Proceeds Event which are paid or payable by the Borrower and
its Subsidiaries, (iii) the amount of such net cash proceeds which are
attributable to (and payable to) minority interests, (iv) the amount of
any reserve reasonably maintained by the Borrower and its Subsidiaries
with respect to indemnification obligations owing pursuant to the
definitive documentation pursuant to which the Net Proceeds Event is
consummated (with any unused portion of such reserve to constitute Net
Proceeds on the date upon which the indemnification obligations
terminate) and (v) the amount of Indebtedness (other than intercompany
Indebtedness), if any, which is required to be repaid at the time of or
as a result of such Net Proceeds Event out of the proceeds thereof.
"Net Proceeds Event": (a) the incurrence by the Borrower or any of
its Subsidiaries of any Indebtedness (other than Indebtedness permitted
pursuant to subsection 11.2);
(b) the issuance or sale of any equity securities by the Borrower
or any of its Subsidiaries to any Person, other than Permitted Issuances
or pursuant to Contributed Equity;
(c) the sale, transfer or other disposition by the Borrower or any
of its Subsidiaries of any real or personal, tangible or intangible,
property (including, without limitation, any Capital Stock) of the
Borrower or such Subsidiary to any Person (other than to the Borrower or
any of its Subsidiaries) other than as permitted by subsection 11.6
(other than clause (k) thereof); and
(d) the recovery by the Borrower of amounts in respect of a
property condemnation or owing to it under property insurance policies,
in each case, in excess of $1,000,000.
"Nonconsenting Lender": as defined in subsection 7.18.
22
17
"Non-Excluded Taxes": as defined in subsection 7.14(a).
"Non-Funding Lender": as defined in subsection 7.11(b).
"Note": a Tranche A Note, a Tranche B Note, a Revolving Credit Note
or a Swing Line Note, as the context shall require.
"Notice of Borrowing": (i) with respect to (a) any borrowing of
Loans, a Notice of Borrowing (Drawings), substantially in the form of
Exhibit I-1, (b) any conversion of Loans, a Notice of Borrowing
(Conversions), substantially in the form of Exhibit I-2 and (c) any
continuation of Eurodollar Loans, a Notice of Borrowing (Continuations),
substantially in the form of Exhibit I-3 or (ii) telephonic notice of any
such borrowing, conversion or continuation promptly confirmed in writing
(in a form reasonably acceptable to the Administrative Agent).
"Obligations": as defined in the Master Guarantee and Collateral
Agreement.
"Offer to Purchase": the Offer to Purchase, dated as of April 13,
1997, of AcquisitionCo relating to the Tender Offer, as amended,
supplemented or modified to the date hereof and as the same may be
further amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof;
"Parent": as defined in the preamble hereto.
"Participant": as defined in subsection 14.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Acquisition": the acquisition by a Subsidiary of Parent
of a business related to Parent's and its Subsidiaries' business as
approved by the board of directors of Parent.
"Permitted Issuance": (a) the issuance by Parent of shares of
Capital Stock as dividends on issued and outstanding Capital Stock of the
same class of Parent or pursuant to any dividend reinvestment plan, (b)
the issuance by Parent of options or other equity securities of Parent to
outside directors, members of management or employees of Parent or any
Subsidiary of Parent, (c) the issuance of securities as interest or
dividends on pay-in-kind debt or preferred equity securities permitted
hereunder and under the other Credit Documents, (d) the issuance to
Parent or any Subsidiary (or any director, with respect to directors'
qualifying shares) by any of its Subsidiaries of any of their respective
Capital Stock, in each case with respect to this clause (d) to the extent
such Capital Stock is pledged to the Administrative Agent pursuant to the
applicable Security Document (provided that (i) only 65% of the voting
Capital Stock of any direct Foreign Subsidiary of the Borrower is
required to be so pledged and (ii) no voting Capital Stock of any
indirect Foreign Subsidiary of the Borrower is required to be so pledged
unless such Foreign Subsidiary is also a Subsidiary of a Domestic
Subsidiary of Borrower, in which case subsection 10.10 shall be complied
with), (e) cash payments made in lieu of issuing fractional shares of
Parent's Capital Stock in an aggregate amount not to exceed $250,000, (f)
the issuance of Capital Stock the proceeds of which are used to make
payments on or redemptions of the Seller Subordinated Notes, (g) the
23
18
issuance by the Parent of shares of its common stock in connection with a
Permitted Acquisition and (h) Contributed Equity.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pro Forma Balance Sheet": as defined in subsection 8.1(e).
"Properties": as defined in subsection 8.16(a).
"Receivable": as defined in the Master Guarantee and Collateral
Agreement.
"Reference Banks": Credit Suisse First Boston, Societe Generale and
Union Bank of Switzerland, New York Branch. If any Reference Bank shall
for any reason no longer have a Commitment or any Loans, such Reference
Bank shall thereupon cease to be a Reference Bank and the Administrative
Agent (after consultation with the Borrower) shall, by notice to the
Borrower and the Lenders, designate another Lender as a Reference Bank.
Each Reference Bank shall use its best efforts to furnish quotations of
rates to the Administrative Agent as contemplated hereby.
"Refunded Swing Line Loans": as defined in subsection 6.3(a).
"Register": as defined in subsection 14.6(d).
"Regulation G": Regulation G of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to subsection 5.5 for amounts drawn
under Letters of Credit issued by it.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c)
of ERISA, if applicable, other than those events as to which the thirty
day notice period is waived under subsections .21, .22, .23, .27, .29,
.31 or .32 of PBGC Reg. Section 4063.
"Required Lenders": at any time, Lenders having Commitment
Percentages which aggregate more than 50% of the sum of the Aggregate
Tranche A Commitment, the Aggregate Tranche B Commitment and the
Aggregate Revolving Credit Commitment then in effect.
24
19
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer": as to any Person, the chief executive
officer, the president, the chief financial officer, any vice president,
the secretary, any assistant secretary, the treasurer or any assistant
treasurer of such Person, in each case, to the extent such officer is
duly authorized to take the action in respect of which such defined term
is used.
"Restricted Payments": as defined in subsection 11.8.
"Revolving Credit Commitment": as to any Revolving Credit Lender,
its obligation to make Revolving Credit Loans to and/or issue or
participate in Swing Line Loans and/or Letters of Credit issued on behalf
of the Borrower hereunder in an aggregate principal and/or face amount at
any one time outstanding not to exceed the amount set forth opposite such
Revolving Credit Lender's name on Schedule I under the heading "Revolving
Credit Commitment".
"Revolving Credit Commitment Percentage": as to any Revolving
Credit Lender at any time, the percentage which such Revolving Credit
Lender's Revolving Credit Commitment then constitutes of the Aggregate
Revolving Credit Commitment (or, at any time after the Aggregate
Revolving Credit Commitment shall have expired or terminated, the
percentage which the aggregate principal amount of such Revolving Credit
Lender's Revolving Credit Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Credit Loans then
outstanding).
"Revolving Credit Lenders": each bank or other financial
institution holding a Revolving Credit Commitment hereunder (or, after
the last day of the Commitment Period and subject to the provisions of
subsection 14.6(d), holding any Revolving Credit Loans or participating
interests in Letters of Credit or Swing Line Loans hereunder).
"Revolving Credit Loans": as defined in subsection 4.1(a).
"Revolving Credit Note": as defined in subsection 7.1(e).
"SEC": the Securities and Exchange Commission and any successor or
analogous Governmental Authority.
"Security Documents": the collective reference to the Master
Guarantee and Collateral Agreement, each Mortgage, the Foreign Pledge
Agreements and all other security documents hereafter delivered to the
Administrative Agent granting a Lien on any asset or assets of any Person
to secure the obligations and liabilities of the Borrower hereunder and
under any of the other Credit Documents or to secure any guarantee of any
such obligations and liabilities.
"Seller Subordinated Notes": means the Subordinated Note dated as of
October 27, 1995 issued by Parent to sellers party to the Stock Purchase
Agreement dated as of October 27, 1995 among Parent, Arnold E. Ditri,
Alastair H. McKelvie, John H. Hurshman, The
25
20
Fidelity Investment Charitable Gift Trust and Hicks, Muse, Tate & Furst
Equity Fund III, L.P. in an original principal amount of $2,500,000.
"Senior Discount Notes": the 12% Senior Discount Notes Due 2009
issued and sold by the Parent pursuant to the Indenture, dated as of June
12, 1997, with United States Trust Company of New York, as trustee, as
the same may be amended, supplemented or otherwise modified from time to
time in accordance with the terms of this Agreement.
"Senior Subordinated Notes": the 10% Senior Subordinated Notes Due
2007 issued and sold by the Borrower pursuant to the Indenture, dated as
of June 12, 1997, with IBJ Schroder Bank and Trust Company, as trustee,
as the same may be amended, supplemented or otherwise modified from time
to time in accordance with the terms of this Agreement.
"Shares": as defined in the recitals hereto.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Specified Loans": as defined in subsection 4.3.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Parent.
"Swing Line Commitment": at any date, the obligation of the Swing
Line Lender to make Swing Line Loans pursuant to subsection 6.1 in the
amount referred to therein.
"Swing Line Lender": Credit Suisse First Boston.
"Swing Line Loans": as defined in subsection 6.1(a).
"Swing Line Note": as defined in subsection 7.1(e).
"Syndication Agent": as defined in the preamble hereto.
"Tender Offer": as defined in the recitals hereto.
"Tender Offer Documents" shall be the collective reference to (a)
the tender offer statement on Schedule 14D-1, dated April 17, 1997, filed
by AcquisitionCo with the SEC pursuant to Section 14(d)(1) of the
Exchange Act, together with all exhibits thereto, including the Offer to
Purchase, the solicitation/recommendation statement on Schedule 14D-9,
dated April 17, 1997, filed by ERO pursuant to Section 14(d)(4) of the
Exchange Act, in each case, as amended, supplemented or otherwise
modified from time to time, and (b) the Offer to Purchase.
26
21
"Tendered Shares": as defined in the recitals hereto.
"Termination Date": June 30, 2003.
"Term Loans": collectively, the Tranche A Loans and the Tranche B
Loans.
"Title Insurance Company": as defined in subsection 9.1(l).
"Tranche": the collective reference to Eurodollar Loans the then
current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall
originally have been made on the same day); Tranches may be identified as
"Eurodollar Tranches".
"Tranche A Commitment": as to any Tranche A Lender, its obligation
to make its Tranche A Loan to the Borrower hereunder in an aggregate
principal not to exceed the amount set forth opposite such Lender's name
on Schedule 1.1A under the heading "Tranche A Commitment".
"Tranche A Commitment Percentage": as to any Tranche A Lender at
any time, the percentage which such Tranche A Lender's Tranche A
Commitment then constitutes of the Aggregate Tranche A Commitment (or, at
any time after the Closing Date, the percentage which the aggregate
principal amount of such Tranche A Lender's Tranche A Loans then
outstanding constitutes of the aggregate principal amount of the Tranche
A Loans then outstanding).
"Tranche A Lender": each bank or other financial institution
holding a Tranche A Commitment hereunder (or, after the Closing Date and
subject to the provisions of subsection 14.6(c), holding any Tranche A
Loans hereunder).
"Tranche A Loan": as defined in subsection 2.1.
"Tranche A Note": as defined in subsection 7.1(e).
"Tranche B Commitment": as to any Tranche B Lender, its obligation
to make its Tranche B Loan to the Borrower hereunder in an aggregate
principal not to exceed the amount set forth opposite such Lender's name
on Schedule 1.1A under the heading "Tranche B Commitment".
"Tranche B Commitment Percentage": as to any Tranche B Lender at
any time, the percentage which such Tranche B Lender's Tranche B
Commitment then constitutes of the Aggregate Tranche B Commitment (or, at
any time after the Closing Date, the percentage which the aggregate
principal amount of such Tranche B Lender's Tranche B Loans then
outstanding constitutes of the aggregate principal amount of the Tranche
B Loans then outstanding).
"Tranche B Lenders": each bank or other financial institution
holding a Tranche B Commitment hereunder (or, after the Closing Date and
subject to the provisions of subsection 14.6(c), holding any Tranche B
Loans hereunder).
"Tranche B Loan": as defined in subsection 3.1.
27
22
"Tranche B Note": as defined in subsection 7.1(e).
"Transactions": collectively, the Acquisition and the issuance of
the Senior Discount Notes and the Senior Subordinated Notes.
"Transferee": as defined in subsection 14.6(f).
"Type": as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication
No. 500, as the same may be amended from time to time.
"United States": the United States of America.
"U.S. Tax Compliance Certificate": as defined in subsection
7.14(b)(ii).
1.2. Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any Notes or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Borrower and its Subsidiaries not defined in subsection 1.1 and accounting
terms partly defined in subsection 1.1, to the extent not defined, shall have
the respective meanings given to them under GAAP and any reference to fiscal
quarters shall mean to the fiscal quarters of the Borrower determined in a
consistent manner during the duration of this Agreement and shall mean the
fiscal quarter on or nearest to any date set forth herein for such fiscal
quarter end.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION II. AMOUNT AND TERMS OF TRANCHE A LOAN COMMITMENTS
2.1. Tranche A Term Loans. Subject to the terms and conditions
hereof, each Tranche A Lender severally agrees to make a term loan (a "Tranche
A Loan") to the Borrower on the Closing Date in an amount not to exceed the
amount of the Tranche A Commitment of such Tranche A Lender then in effect.
The Tranche A Loans may from time to time be (a) Eurodollar Loans, (b) ABR
Loans or (c) a combination thereof, as determined by the Borrower and notified
to the Administrative Agent in accordance with subsections 2.2 and 7.6;
provided that the Tranche A Loans to be made on the Closing Date initially
shall be made as ABR Loans.
2.2. Procedure for Tranche A Loan Borrowing. The Borrower shall
give the Administrative Agent an irrevocable Notice of Borrowing (which notice
must be received by the
28
23
Administrative Agent prior to 11:00 A.M., New York City time, one Business Day
prior to the Closing Date) requesting that the Tranche A Lenders make the
Tranche A Loans on the Closing Date and specifying the amount to be borrowed.
Upon receipt of such Notice of Borrowing, the Administrative Agent shall
promptly notify each Tranche A Lender thereof. Each Tranche A Lender will make
the amount of its pro rata share of the Tranche A Loans available to the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in subsection 14.2 prior to 11:00 A.M., New York
City time, on the Closing Date in funds immediately available to the
Administrative Agent. Such Tranche A Loans will then be made available to the
Borrower by the Administrative Agent transferring to the account directed by
the Borrower (which account need not be maintained by the Administrative Agent)
with the aggregate of the amounts made available to the Administrative Agent by
the Tranche A Lenders and in like funds as received by the Administrative
Agent.
2.3. Amortization of Tranche A Loans. (a) The Borrower shall
repay the Tranche A Loans on each date set forth below by the amount set forth
below opposite such date:
Period Amount
------ ------
December 31, 1997 $1,000,000
March 31, 1998 3,000,000
June 30, 1998 750,000
September 30, 1998 3,000,000
December 31, 1998 750,000
March 31, 1999 4,000,000
June 30, 1999 1,000,000
September 30, 1999 4,000,000
December 31, 1999 1,000,000
March 31, 2000 5,000,000
June 30, 2000 1,250,000
September 30, 2000 5,000,000
December 31, 2000 1,250,000
March 31, 2001 6,000,000
June 30, 2001 1,500,000
September 30, 2001 6,000,000
December 31, 2001 1,500,000
March 31, 2002 8,000,000
June 30, 2002 2,000,000
September 30, 2002 8,000,000
December 31, 2002 2,000,000
March 31, 2003 7,200,000
June 30, 2003 1,800,000
(b) The Borrower shall repay any then outstanding Tranche A Loans
on the Termination Date.
2.4. Use of Proceeds of Tranche A Loans. The proceeds of the
Tranche A Loans shall be utilized by the Borrower only (a) to finance the
purchase by AcquisitionCo of the Tendered Shares, (b) to finance the Merger,
(c) to refinance outstanding Indebtedness of the Borrower and its Subsidiaries
(including, without limitation, ERO) and (d) to pay any fees and expenses
relating thereto.
29
24
SECTION III. AMOUNT AND TERMS OF TRANCHE B LOAN COMMITMENTS
3.1. Tranche B Term Loans. Subject to the terms and conditions
hereof, each Tranche B Lender severally agrees to make a term loan (a "Tranche
B Loan") to the Borrower on the Closing Date in an amount not to exceed the
amount of the Tranche B Commitment of such Tranche B Lender then in effect.
The Tranche B Loans may from time to time be (a) Eurodollar Loans, (b) ABR
Loans or (c) a combination thereof, as determined by the Borrower and notified
to the Administrative Agent in accordance with subsections 3.2 and 7.6;
provided that the Tranche B Loans to be made on the Closing Date initially
shall be made as ABR Loans.
3.2. Procedure for Tranche B Loan Borrowing. The Borrower shall
give the Administrative Agent its irrevocable Notice of Borrowing (which notice
must be received by the Administrative Agent prior to 11:00 A.M., New York City
time, one Business Day prior to the Closing Date) requesting that the Tranche B
Lenders make the Tranche B Loans on the requested Borrowing Date and specifying
the amount to be borrowed. Upon receipt of such Notice of Borrowing, the
Administrative Agent shall promptly notify each Tranche B Lender thereof. Each
Tranche B Lender will make the amount of its pro rata share of the Tranche B
Loans available to the Administrative Agent for the account of the Borrower at
the office of the Administrative Agent specified in subsection 14.2 prior to
11:00 A.M., New York City time, on the Closing Date in funds immediately
available to the Administrative Agent. Such Tranche B Loans will then be made
available to the Borrower by the Administrative Agent transferring to the
account directed by the Borrower (which account need not be maintained by the
Administrative Agent) with the aggregate of the amounts made available to the
Administrative Agent by the Tranche B Lenders and in like funds as received by
the Administrative Agent.
3.3. Amortization of Tranche B Loans. (a) The Borrower shall
repay the Tranche B Loans on each date set forth below by the amount set forth
below opposite such date:
Period Amount
------ ------
December 31, 1997 $125,000
March 31, 1998 125,000
June 30, 1998 125,000
September 30, 1998 125,000
December 31, 1998 125,000
March 31, 1999 125,000
June 30, 1999 125,000
September 30, 1999 125,000
December 31, 1999 125,000
March 31, 2000 125,000
June 30, 2000 125,000
September 30, 2000 125,000
December 31, 2000 125,000
March 31, 2001 125,000
June 30, 2001 125,000
September 30, 2001 125,000
December 31, 2001 125,000
March 31, 2002 125,000
June 30, 2002 125,000
September 30, 2002 125,000
December 31, 2002 125,000
30
25
Period Amount
------ ------
March 31, 2003 5,000,000
June 30, 2003 1,250,000
September 30, 2003 5,000,000
December 31, 2003 1,250,000
March 31, 2004 5,400,000
June 30, 2004 1,350,000
September 30, 2004 5,400,000
December 31, 2004 1,350,000
March 31, 2005 5,100,000
June 30, 2005 1,275,000
(b) The Borrower shall repay any then outstanding Tranche B Loans
on June 30, 2005.
3.4. Use of Proceeds of Tranche B Loans. The proceeds of the
Tranche B Loans shall be utilized by the Borrower only (a) to finance the
purchase by AcquisitionCo of the Tendered Shares, (b) to finance the Merger,
(c) to refinance outstanding Indebtedness of the Borrower and its Subsidiaries
(including, without limitation, ERO) and (d) to pay any fees and expenses
relating thereto.
SECTION IV. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS
4.1. Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans ("Revolving Credit Loans") to the Borrower from time to
time during the Commitment Period in an aggregate principal amount at any one
time outstanding which when added to such Revolving Credit Lender's Revolving
Credit Commitment Percentage of the then outstanding L/C Obligations and Swing
Line Loans does not exceed the amount of such Revolving Credit Lender's
Revolving Credit Commitment; provided that, after giving effect to the making
of such Revolving Credit Loan, (i) the Aggregate Outstanding Extensions of
Credit of all Revolving Credit Lenders shall not exceed the lesser of (x) the
Aggregate Revolving Credit Commitment then in effect and (y) the Borrowing Base
then in effect and (ii) the sum of (A) the Aggregate Outstanding Extensions of
Credit of all the Revolving Credit Lenders and (B) the Canadian Subsidiary
Equivalent Outstandings shall not exceed the Aggregate Revolving Credit
Commitment. During the Commitment Period the Borrower may use the Aggregate
Revolving Credit Commitment by borrowing, prepaying the Revolving Credit Loans
in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the Borrower and notified to the Administrative Agent in accordance with
subsections 4.2 and 7.6, provided that (x) no Revolving Credit Loan shall have
an Interest Period which ends after the Termination Date and (y) any Revolving
Credit Loans to be made on the Closing Date initially shall be made as ABR
Loans.
4.2. Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Aggregate Revolving Credit Commitment during the Commitment
Period on any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable Notice of Borrowing (which notice must be
received by the Administrative Agent prior to 11:00 A.M., New York City time,
(a) three Business Days prior to the requested Borrowing Date, if all or any
part of the
31
26
requested Revolving Credit Loans are to be initially Eurodollar Loans or (b) on
the requested Borrowing Date, otherwise), specifying (i) the amount to be
borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is to
be of Eurodollar Loans, ABR Loans or a combination thereof and (iv) if the
borrowing is to be entirely or partly of Eurodollar Loans, the amount of such
Type of Loan and the length of the initial Interest Period therefor. Each
borrowing under the Aggregate Revolving Credit Commitment (other than any
borrowing of Swing Line Loans or of Revolving Credit Loans the proceeds of
which are used to refund Swing Line Loans) shall be in an amount equal to (x)
in the case of ABR Loans, $1,000,000 or a whole multiple of $100,000 in excess
thereof (or, if the then Available Revolving Credit Commitments are less than
$1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans,
$2,000,000 or a whole multiple of $250,000 in excess thereof. Upon receipt of
any such notice from the Borrower, the Administrative Agent shall promptly
notify each Revolving Credit Lender thereof. Each Revolving Credit Lender will
make the amount of its pro rata share of each borrowing available to the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in subsection 14.2 prior to 11:00 A.M., New York
City time, in the case of Eurodollar Loans and 2:00 P.M., New York City time,
in the case of ABR Loans, on the Borrowing Date requested by the Borrower in
funds immediately available to the Administrative Agent. Such borrowing will
then be made available to the Borrower by the Administrative Agent crediting
the account of the Borrower on the books of such office with the aggregate of
the amounts made available to the Administrative Agent by the Revolving Credit
Lenders and in like funds as received by the Administrative Agent.
4.3. Use of Proceeds of Revolving Credit Loans. The proceeds of
the Revolving Credit Loans shall be utilized by the Borrower only for working
capital and general corporate purposes, including, without limitation, to
finance the purchase price for the Acquisition and the fees and expenses
relating thereto; provided that upon the acquisition by AcquisitionCo of at
least 75% of the issued and outstanding Capital Stock of ERO, the Borrower may
make loans (to the extent such loans are funded with Loans under this
Agreement, the "Specified Loans") to ERO for the purpose of financing the
working capital needs of ERO pending the consummation of the Merger.
SECTION V. AMOUNT AND TERMS OF LETTER OF CREDIT SUB-FACILITY
5.1. L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other
Revolving Credit Lenders set forth in subsection 5.4(a), agrees to issue
letters of credit ("Letters of Credit") for the account of the Borrower and its
Subsidiaries on any Business Day during the Commitment Period in such form as
may be approved from time to time by the Issuing Lender; provided that the
Issuing Lender shall have no obligation to issue any Letter of Credit if, after
giving effect to such issuance, (i) the L/C Obligations would exceed the L/C
Commitment, (ii) the Available Revolving Credit Commitment of any Revolving
Credit Lender would be less than zero, (iii) the Aggregate Outstanding
Extensions of Credit of all Revolving Credit Lenders would exceed the lesser of
(A) the Aggregate Revolving Credit Commitment then in effect and (B) the
Borrowing Base then in effect or (iv) the sum of (A) the Aggregate Outstanding
Extensions of Credit of all the Revolving Credit Lenders and (B) the Canadian
Subsidiary Equivalent Outstandings would exceed the Aggregate Revolving Credit
Commitment.
(b) Each Letter of Credit shall (i) be denominated in Dollars, (ii)
be (x) a standby letter of credit issued to support obligations of the Borrower
or any of its Subsidiaries, contingent or otherwise, or to finance the working
capital and business needs of the Borrower or any of its Subsidiaries in the
ordinary course of business or (y) a commercial letter of credit issued in
respect of the purchase of goods or services by the Borrower or any of its
Subsidiaries in the ordinary course of
32
27
business and (iii) expire no later than the earlier of (x) the date that is 12
months after the date of its issuance and (y) five Business Days prior to the
Termination Date; provided that any Letter of Credit with an expiration date
occurring up to twelve months after such Letter of Credit's date of issuance
may be automatically renewable for subsequent 12-month periods (but in no event
to a date which is later than five Business Days prior to the Termination
Date).
(c) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of New
York.
(d) The Issuing Lender shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
5.2. Procedure for Issuance, Amendments and Terminations of Letters
of Credit. The Borrower may request that the Issuing Lender issue a Letter of
Credit at any time during the Commitment Period by delivering to the Issuing
Lender (with a copy to the Administrative Agent) at its address for notices
specified in subsection 14.2 an Application therefor, completed to the
satisfaction of the Issuing Lender, and such other certificates, documents and
other papers and information as the Issuing Lender may reasonably request.
Upon receipt of any Application, the Issuing Lender will process such
Application and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary
procedures and shall promptly issue the Letter of Credit requested thereby (but
in no event shall the Issuing Lender be required to issue any Letter of Credit
earlier than three Business Days after its receipt of the Application therefor
and all such other certificates, documents and other papers and information
relating thereto) by issuing the original of such Letter of Credit to the
beneficiary thereof or as otherwise may be agreed by the Issuing Lender and the
Borrower. The Issuing Lender shall furnish a copy of such Letter of Credit to
the Borrower and the Administrative Agent promptly following the issuance
thereof. The Issuing Lender shall also furnish to the Administrative Agent a
copy of any amendment or extension of any Letter of Credit promptly after such
amendment or extension. The letters of credit identified on Schedule 5.2 shall
at all times on and after the Closing Date be deemed to be a "Letter of Credit"
or "Letters of Credit' for all purposes of this Agreement and the other Credit
Documents, and, in each case, The First National Bank of Chicago shall be the
"Issuing Lender" in respect thereof.
5.3. Fees, Commissions and Other Charges. (a) The Borrower shall
pay to the Administrative Agent, for the account of the Issuing Lender and the
L/C Participants, a letter of credit fee with respect to each Letter of Credit,
computed for the period from and including the date of issuance of such Letter
of Credit to the expiration date of such Letter of Credit, at a rate per annum
equal to the Applicable Margin then in effect for Revolving Credit Loans which
are Eurodollar Loans (calculated on the basis of the actual number of days
elapsed over a 360-day year) of the aggregate face amount of Letters of Credit
outstanding (of which 1/4 of 1% of such aggregate face amount shall be for the
account of the Issuing Lender and the remainder of such amount shall be for the
ratable account of the Issuing Lender and the L/C Participations). Such fee
shall be payable to the Administrative Agent, for the ratable account of the
Revolving Credit Lenders, in arrears on each L/C Fee Payment Date and on the
Termination Date.
(b) In addition to the foregoing fees and commissions, the Borrower
shall pay or reimburse the Issuing Lender for such normal and customary costs
and expenses as are incurred or charged by such Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit issued by it.
33
28
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the relevant Issuing Lender and the L/C Participants all
fees and commissions received by the Administrative Agent for their respective
accounts pursuant to this subsection.
5.4. L/C Participations. (a) The Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
the Issuing Lender, on the terms and conditions hereinafter stated, for such
L/C Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Commitment Percentage from time to time in
effect in the Issuing Lender's obligations and rights under each Letter of
Credit issued hereunder and the amount of each draft paid by the Issuing Lender
thereunder. Each L/C Participant unconditionally and irrevocably agrees with
the Issuing Lender that, if a draft is paid under any Letter of Credit for
which the Issuing Lender is not reimbursed in full by the Borrower in
accordance with the terms of this Agreement, such L/C Participant shall pay to
the Administrative Agent for the account of the Issuing Lender upon demand at
the Administrative Agent's address for notices specified in subsection 14.2 an
amount equal to such L/C Participant's then Revolving Credit Commitment
Percentage of the amount of such draft, or any part thereof, which is not so
reimbursed; provided that, if such demand is made prior to 12:00 Noon, New York
City time, on a Business Day, such L/C Participant shall make such payment to
the Administrative Agent for the account of the Issuing Lender prior to the end
of such Business Day and otherwise such L/C Participant shall make such payment
on the next succeeding Business Day.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to subsection 5.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Lender under any Letter of Credit is
paid to the Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand
by the Administrative Agent (upon the request of the Issuing Lender) an amount
equal to the product of (i) such amount, times (ii) the daily average Federal
Funds Effective Rate, as quoted by the Administrative Agent, during the period
from and including the date such payment is required to the date on which such
payment is immediately available to the Issuing Lender, times (iii) a fraction
the numerator of which is the number of days that elapse during such period and
the denominator of which is 360. If any such amount required to be paid by any
L/C Participant pursuant to paragraph 5.4(a) is not in fact made available to
the Issuing Lender by such L/C Participant within three Business Days after the
date such payment is due, the Issuing Lender shall be entitled to recover from
such L/C Participant, on demand by the Administrative Agent (upon the request
of the Issuing Lender), such amount with interest thereon calculated from such
due date to the date on which payment is immediately available to the Issuing
Lender at the rate per annum applicable to ABR Loans hereunder. A certificate
of the Issuing Lender submitted to any L/C Participant by the Administrative
Agent with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit issued by it and has received from any L/C
Participant its pro rata share of such payment in accordance with subsection
5.4(a), the Issuing Lender receives any payment related to such Letter of
Credit (whether directly from the Borrower or otherwise, including proceeds of
collateral applied thereto by the Issuing Lender), or any payment of interest
on account thereof, the Issuing Lender will promptly pay to the Administrative
Agent for distribution to such L/C Participant its pro rata share thereof;
provided that in the event that any such payment received by the Issuing Lender
and distributed to the L/C Participants shall be required to be returned by the
Issuing Lender,
34
29
each such L/C Participant shall pay to the Administrative Agent for
distribution to the Issuing Lender the portion thereof previously distributed
by the Administrative Agent to it.
5.5. Reimbursement Obligation of the Borrower. (a) The Borrower
agrees to reimburse the Issuing Lender by 2:00 P.M., New York City time, on the
same Business Day on which a draft is presented under any Letter of Credit
issued by such Issuing Lender and paid by such Issuing Lender, provided that
such Issuing Lender provides notice to the Borrower (with a copy to the
Administrative Agent) prior to 10:30 A.M., New York City time, on such Business
Day and otherwise the Borrower will reimburse the Issuing Lender on the next
succeeding Business Day (with one day's interest at the rate provided for in
subsection 5.5(c)); provided, further, that the failure to provide such notice
shall not affect the Borrower's absolute and unconditional obligation to
reimburse the Issuing Lender for any draft paid under any Letter of Credit
issued by it. The Issuing Lender shall provide notice to the Borrower on such
Business Day as a draft is presented and paid by the Issuing Lender indicating
the amount of (i) such draft so paid and (ii) any taxes, fees, charges or other
costs or expenses incurred by the Issuing Lender in connection with such
payment. Each such payment shall be made to the Issuing Lender at its address
for notices specified in subsection 14.2 in lawful money of the United States
and in immediately available funds.
(b) Interest shall be payable on any and all amounts remaining
unpaid by the Borrower under this subsection from the date such amounts become
payable until payment in full at the rate which would be payable on any
outstanding Revolving Credit Loans that are ABR Loans.
(c) Each drawing under any Letter of Credit shall constitute a
request by the Borrower to the Administrative Agent for a borrowing pursuant to
subsection 4.2 of ABR Loans in the amount of such drawing. The Borrowing Date
with respect to such borrowing shall be the date of such drawing.
5.6. Obligations Absolute. (a) The Borrower's obligations under
subsection 5.5(a) shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Borrower may have or have had against the Issuing Lender, any
L/C Participant or any beneficiary of a Letter of Credit.
(b) The Borrower also agrees with the Issuing Lender that the
Issuing Lender shall not be responsible for, and the Borrower's Reimbursement
Obligations under subsection 5.5(a) shall not be affected by, among other
things, (i) the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or (ii) any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or (iii) any claims whatsoever of the Borrower
against any beneficiary of such Letter of Credit or any such transferee except
to the extent resulting from the gross negligence or willful misconduct of the
Issuing Lender.
(c) Neither the Issuing Lender with respect to any Letter of Credit
nor any L/C Participant with respect thereto shall be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with such Letter of
Credit, except for errors or omissions caused by such Issuing Lender's gross
negligence or willful misconduct.
(d) The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit issued by it or
the related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards of
35
30
care specified in the Uniform Commercial Code of the State of New York, shall
be binding on the Borrower and shall not result in any liability of such
Issuing Lender or any L/C Participant to the Borrower.
5.7. Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the responsibility of the Issuing
Lender thereof to the Borrower in connection with such draft shall, in addition
to any payment obligation expressly provided for in such Letter of Credit, be
limited to determining that the documents (including each draft) delivered
under such Letter of Credit in connection with such presentment are in
conformity with such Letter of Credit.
5.8. Application. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 5, the provisions of this Section 5 shall apply.
SECTION VI. AMOUNT AND TERMS OF SWING LINE SUB-FACILITY
6.1. Swing Line Commitments. (a) Subject to the terms and
conditions hereof, the Swing Line Lender agrees to make swing line loans (the
"Swing Line Loans") to the Borrower on any Business Day from time to time
during the Commitment Period in an aggregate principal amount not to exceed
$10,000,000 at any one time outstanding; provided that, after giving effect to
the making of such Swing Line Loan, (i) the Aggregate Outstanding Extensions of
Credit of all Revolving Credit Lenders shall not exceed the lesser of (x) the
Aggregate Revolving Credit Commitment then in effect and (y) the Borrowing Base
then in effect and (ii) the sum of (A) the Aggregate Outstanding Extensions of
Credit of all the Revolving Credit Lenders and (B) the Canadian Subsidiary
Equivalent Outstandings shall not exceed the Aggregate Revolving Credit
Commitment. Amounts borrowed under this subsection 6.1 may be repaid and, to
but excluding the Termination Date, reborrowed.
(b) All Swing Line Loans shall be made and maintained as ABR Loans
and, notwithstanding the provisions of subsection 7.6, shall not be entitled to
be converted into Eurodollar Loans; provided that nothing contained in this
subsection 6.1 shall prohibit the conversion into Eurodollar Loans of any
Revolving Credit Loans the proceeds of which are utilized to refund Swing Line
Loans.
6.2. Procedure for Swing Line Loan Borrowing. The Borrower may
borrow under the Swing Line Commitment during the Commitment Period on any
Business Day; provided that the Borrower shall give the Administrative Agent
irrevocable Notice of Borrowing (which notice must be received by the
Administrative Agent prior to 12:30 P.M., New York City time), on the requested
borrowing date (which shall be a Business Day) specifying the amount of each
requested Swing Line Loan, which shall be in a minimum amount of $250,000 or a
multiple of $100,000 in excess thereof. Upon receipt of any such notice from
the Borrower, the Administrative Agent shall promptly notify the Swing Line
Lender thereof. The Swing Line Lender will make the amount of its Swing Line
Loan available to the Administrative Agent for the account of the Borrower at
the office of the Administrative Agent in such manner as may be agreed upon by
the Swing Line Lender and the Borrower prior to 3:30 P.M., New York City time,
on the Borrowing Date requested by the Borrower.
6.3. Refunding of Swing Line Loans. (a) The Administrative Agent,
at any time in its sole and absolute discretion, may (or, upon the request of
the Swing Line Lender, shall) on behalf of the Borrower (which hereby
irrevocably directs the Administrative Agent to act on its behalf)
36
31
request that each Revolving Credit Lender make a Revolving Credit Loan in an
amount equal to such Revolving Credit Lender's Commitment Percentage of the
then outstanding principal amount of Swing Line Loans (the "Refunded Swing Line
Loans") on the date such notice is given (regardless of whether the Refunded
Swing Line Loans comply with the minimum borrowing provisions of subsection
4.2). In the event that the Swing Line Lender makes its request for refunding
of the Swing Line Loans, each Revolving Credit Lender shall make the proceeds
of its Revolving Credit Loan available in immediately available funds to the
Administrative Agent, for the benefit of the Swing Line Lender, at the office
of the Administrative Agent specified in subsection 14.2 prior to 11:00 A.M.,
New York City time, on the first Business Day following such request (or, if
such request is made prior to 10:00 A.M., New York City time, on any date, then
the proceeds of such Revolving Credit Loans shall instead be so made available
to the Administrative Agent prior to 2:00 P.M., New York City time, on the date
of such request); provided that in the event that any of the events described
in Section 12(f)(i) or (ii) shall have occurred and be continuing, the
Revolving Credit Lenders shall not make such Revolving Credit Loans and the
provisions of subsection 6.3(b) shall apply.
(b) If, prior to the making of a Revolving Credit Loan pursuant to
subsection 6.3(a), one of the events described in Section 12(f)(i) or (ii)
shall have occurred and be continuing, each Revolving Credit Lender will, on
the date such Revolving Credit Loan was to have been made, purchase from the
Swing Line Lender an undivided participating interest in the Swing Line Loan to
be refunded in an amount equal to its Commitment Percentage of such Swing Line
Loan to be refunded. Each Revolving Credit Lender will immediately transfer to
the Administrative Agent, in immediately available funds, the amount of its
participation.
(c) Whenever, at any time after the Swing Line Lender has received
from any Revolving Credit Lender such Lender's participating interest in a
Swing Line Loan to be refunded pursuant to subsection 6.3(b), the Swing Line
Lender receives any payment on account thereof, the Swing Line Lender will pay
to the Administrative Agent for distribution to such Revolving Credit Lender
its participating interest in such amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Lender's
participating interest was outstanding and funded) in like funds as received;
provided that in the event that such payment received by the Swing Line Lender
is required to be returned, such Revolving Credit Lender will return to the
Swing Line Lender any portion thereof previously distributed by the Swing Line
Lender through the Administrative Agent to it in like funds as such payment is
required to be returned by the Swing Line Lender.
6.4. Unconditional Obligation to Refund Swing Line Loans. (a) Each
Revolving Lender's obligation to make Revolving Credit Loans and to purchase
participating interests in accordance with subsections 6.3(a) and (b) above
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any set-off, counterclaim,
recoupment, defense or other right which such Revolving Credit Lender may have
against the Swing Line Lender, the Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of any Default or Event of
Default; (iii) any adverse change in the condition (financial or otherwise) of
the Borrower or any other Person; (iv) any breach of this Agreement by the
Borrower or any other Person; (v) any inability of the Borrower to satisfy the
conditions precedent to borrowing set forth in this Agreement on the date upon
which such Revolving Credit Loan is to be made or participating interest is to
be purchased or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. If any Revolving Credit Lender
does not make available to the Administrative Agent the amount required
pursuant to subsections 6.3(a) and (b) above, as the case may be, the
Administrative Agent shall be entitled to recover such amount on demand from
such
37
32
Revolving Credit Lender, together with interest thereon for each day from the
date of non-payment until such amount is paid in full at the Federal Funds
Effective Rate for the first two Business Days and at the rate applicable to
ABR Loans thereafter.
6.5. Use of Proceeds of Swing Line Loans. The proceeds of Swing
Line Loans hereunder shall be used by the Borrower for any purpose for which
the proceeds of Revolving Credit Loans may be used.
SECTION VII. PROVISIONS RELATING TO THE EXTENSIONS OF CREDIT; FEES
AND PAYMENTS
7.1. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each applicable Lender (i) the then unpaid principal amount of each
Revolving Credit Loan and the then unpaid principal amount of each Swing Line
Loan on the Termination Date (or such earlier date on which the Revolving
Credit Loans become due and payable pursuant to Section 12), (ii) the principal
amount of the Tranche A Loans on the dates and in the amounts set forth in
subsection 2.3 (or the then unpaid principal amount of such Tranche A Loan, on
the date that the Tranche A Loans become due and payable pursuant to Section
12) and (iii) the principal amount of the Tranche B Loan on the dates and in
the amounts set forth in subsection 3.3 (or the then unpaid principal amount of
such Tranche B Loan, on the date that the Tranche B Loans become due and
payable pursuant to Section 12). The Borrower hereby further agrees to pay
interest on the unpaid principal amount of the Loans from time to time
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in subsection 7.8.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant
to subsection 14.6(d), and a subaccount therein for each Lender, in which shall
be recorded (i) the amount of each Loan made hereunder and any Note evidencing
such Loan, the Type thereof and each 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) both the amount of
any sum received by the Administrative Agent hereunder from the Borrower and
each applicable Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 7.1(b) shall, in the absence of
manifest error and to the extent permitted by applicable law, be prima facie
evidence of the existence and amounts of the obligations of the Borrower
therein recorded; provided, however, that the failure of any Lender or the
Administrative Agent to maintain the Register or any such account, or any error
therein, shall not in any manner affect the obligation of the Borrower to repay
(with applicable interest) the Loans made to the Borrower by such Lender in
accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon request of any Lender through
the Administrative Agent, the Borrower will execute and deliver to such Lender
(i) in the case of a Tranche A Lender, a promissory note of the Borrower
evidencing the Tranche A Loan of such Tranche A Lender,
38
33
substantially in the form of Exhibit A with appropriate insertions as to date
and principal amount (a "Tranche A Note"), (ii) in the case of a Tranche B
Lender, a promissory note of the Borrower evidencing the Tranche B Loan of such
Tranche B Lender, substantially in the form of Exhibit B with appropriate
insertions as to date and principal amount (a "Tranche B Note"), (iii) in the
case of a Revolving Credit Lender, a promissory note of the Borrower evidencing
the Revolving Credit Loans of such Revolving Credit Lender, substantially in
the form of Exhibit C with appropriate insertions as to date and principal
amount (a "Revolving Credit Note") and (iv) in the case of the Swing Line
Lender, a promissory note of the Borrower evidencing the Swing Line Loans,
substantially in the form of Exhibit D with appropriate insertions as to date
and principal amount (a "Swing Line Note"). A Note and the Loan evidenced
thereby may be assigned or otherwise transferred in whole or in part only by
registration of such assignment or transfer of such Note and the Loan evidenced
thereby in the Register (and each Note shall expressly so provide). Any
assignment or transfer of all or part of a Loan evidenced by a Note shall be
registered in the Register only upon surrender for registration of assignment
or transfer of the Note evidencing such Loan, accompanied by an Assignment and
Acceptance substantially in the form of Exhibit H, duly executed by the
Assignor thereof, and thereupon one or more new Notes shall be issued to the
designated Assignee and the old Note shall be returned by the Administrative
Agent to the Borrower marked "cancelled." No assignment of a Note and the Note
evidenced thereby shall be effective unless it shall have been recorded in the
Register by the Administrative Agent as provided in this subsection 7.1(e).
7.2. Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the first day of the
Commitment Period to but excluding the Termination Date, computed at the rate
equal to 1/2 of 1% per annum (or, in the event that the Applicable Margin
applicable to Revolving Credit Loans is, in the case of Eurodollar Loans, equal
to or less than 1.75% and, in the case of ABR Loans, equal to or less than
0.75%, 3/8 of 1% per annum) on the average daily amount of the Available
Revolving Credit Commitment of such Revolving Credit Lender during the period
for which payment is made, payable quarterly in arrears on the last Business
Day of each March, June, September and December and on the Termination Date or
such earlier date as the Aggregate Revolving Credit Commitment shall terminate
as provided herein, commencing on the first of such dates to occur after the
date hereof.
7.3. Optional Prepayments. (a) The Borrower may at any time and
from time to time prepay the Loans, in whole or in part, without premium or
penalty, upon at least three Business Days' (or, in the case of prepayments of
ABR Loans, on at least the same Business Day) irrevocable notice to the
Administrative Agent (which notice must be received by the Administrative Agent
prior to 10:00 A.M., New York City time, on the date upon which such notice is
due), specifying whether such prepayment is to be applied to the Revolving
Credit Loans or the other Loans hereunder and, in any event, the date and
amount of prepayment and whether the prepayment is of Eurodollar Loans, ABR
Loans or a combination thereof, and, if of a combination thereof, the amount
allocable to each. Upon receipt of any such notice the Administrative Agent
shall promptly notify each affected Lender thereof. If any such notice is
given, the amount specified in such notice shall be due and payable on the date
specified therein, together with any amounts payable pursuant to subsection
7.15 and, except in the case of prepayments of Revolving Credit Loans
(including Swing Line Loans) which are ABR Loans, accrued interest to such date
on the amount prepaid. Partial prepayments of the Tranche A Loans and the
Tranche B Loans may be applied, in the discretion of the Borrower, to the
immediately succeeding originally scheduled installments of the Tranche A Loans
and Tranche B Loans (if not previously prepaid), or, otherwise, such
prepayments shall be applied ratably to the remaining installments of principal
thereof (based upon the number of installments remaining), such that the amount
to be applied to each such remaining installment shall be the amount equal to
the aggregate
39
34
amount to be applied to repay the Tranche A Loans or the Tranche B Loans (as
the case may be) divided by the number of scheduled installments of such Loans
which remain outstanding; provided that, in the event that the amount to be so
applied to any remaining installment exceeds the amount of such installment,
such excess amount shall be applied to the remaining installments of such Loans
ratably (based upon the number of installments thereof which remain). Amounts
prepaid on account of the Tranche A Loans and the Tranche B Loans may not be
reborrowed. Partial prepayments shall be in an aggregate principal amount of
$500,000 (or $2,000,000 in the case of Eurodollar Loans) or a whole multiple of
$100,000 (or $250,000 in the case of Eurodollar Loans) in excess thereof;
provided that partial prepayments of Swing Line Loans shall be in an aggregate
principal amount of $100,000 or a whole multiple in excess thereof.
Notwithstanding anything to the contrary contained herein, any optional
prepayment of the Tranche A Loans or the Tranche B Loans shall be accompanied
by a prepayment of the other in the amount necessary to cause the Tranche A
Loans and the Tranche B Loans to be ratably prepaid.
(b) The Borrower may at any time and from time to time prepay, in
whole or in part and without premium or penalty, any Swing Line Loans then
owing by it on any Business Day; provided that such Borrower has given
irrevocable notice to the Administrative Agent not later than 1:00 P.M., New
York City time, on the date of such prepayment.
7.4. Optional Termination or Reduction of Aggregate Revolving
Credit Commitment. The Borrower shall have the right, upon not less than three
Business Days' notice to the Administrative Agent, to terminate the Aggregate
Revolving Credit Commitment or, from time to time, to reduce the amount
thereof; provided that no such termination or reduction shall be permitted if,
after giving effect thereto and to any prepayments of the Revolving Credit
Loans and Swing Line Loans made on the effective date thereof, the aggregate
principal amount of the Revolving Credit Loans and Swing Line Loans then
outstanding, when added to the then outstanding L/C Obligations, would exceed
the Aggregate Revolving Credit Commitment then in effect. Any such reduction
shall be in an amount equal to $1,000,000 or a whole multiple of $250,000 in
excess thereof and shall reduce permanently the Aggregate Revolving Credit
Commitment then in effect. Upon termination of the Aggregate Revolving Credit
Commitment, L/C Obligations then outstanding which have been fully cash
collateralized (or supported by a letter of credit from an issuer reasonably
satisfactory to the Administrative Agent) shall no longer be considered an L/C
Obligation for purposes of this Agreement and any participating interest
heretofore granted by the Issuing Lender to the Revolving Credit Lenders shall
be deemed terminated, but the fees payable under subsection 5.3 shall continue
to accrue to the Issuing Lender with respect to the Letters of Credit until the
expiry or termination thereof.
7.5. Mandatory Reduction of Commitments and Prepayments. (a) The
Aggregate Revolving Credit Commitment shall terminate on the Termination Date.
(b) In the event that the Aggregate Outstanding Extensions of
Credit of all Lenders at any date exceed the Borrowing Base then in effect, the
Borrower shall immediately repay the Aggregate Outstanding Extensions of Credit
by the amount of such excess, with such prepayment being applied, first, to the
then outstanding Swing Line Loans, second, to the then outstanding Revolving
Credit Loans and, third, to cash collateralize the then outstanding L/C
Obligations.
(c) If the Aggregate Outstanding Extensions of Credit of all
Lenders shall at any time exceed the Aggregate Revolving Credit Commitment then
in effect (including, without limitation, as a result of any reduction or
termination of the Aggregate Revolving Credit Commitment pursuant to subsection
7.4 or this subsection 7.5), the Borrower shall immediately repay the Aggregate
40
35
Outstanding Extensions of Credit by the amount of such excess, with such
prepayment being applied, first, to the then outstanding Swing Line Loans,
second, to the then outstanding Revolving Credit Loans and, third, to cash
collateralize the then outstanding L/C Obligations.
(d) The Borrower shall, as promptly as is practicable (and, in any
event, within five Business Days following the receipt thereof), repay the
Loans and reduce the Commitments by the amount equal to the aggregate amount of
Net Proceeds received from any Net Proceeds Event; provided that no such
repayment and reduction shall be due pursuant to this subsection 7.5(d) with
respect to any Net Proceeds Event on account of the recovery by the Borrower of
amounts owing to it under property insurance policies or received as a
condemnation award to the extent provided for in subsection 7.5(i). Any
repayment of Loans and reduction of Commitments required by this subsection
7.5(d) shall be made in accordance with the provisions of subsection 7.5(g).
(e) The Borrower shall repay the Loans and reduce the Commitments
within one Business Day following delivery of the certificate referenced in
subsection 10.2(b) (commencing with the certificate covering the fiscal year
ending on December 31, 1998) by the amount equal to 75% (or 50% if the Leverage
Ratio as of the last day of such fiscal year is less than 4.0 to 1.0) of Excess
Cash Flow for the fiscal year covered by such certificate, with any such
repayment of Loans and reduction of Commitments being made in accordance with
the provisions of subsection 7.5(g).
(f) The Borrower shall repay the Swing Line Loans and (to the
extent necessary) the Revolving Credit Loans to cause the aggregate outstanding
principal amount of such Loans (less the amount of cash and Cash Equivalents on
each day during the Clean-Down Period (as defined below) in an amount not to
exceed $750,000 on any day as certified by the Borrower to the Administrative
Agent) to be not more than the Clean-Down Amount for a period of 30 days during
a 35-day period (the "Clean-Down Period") in each fiscal year (provided that
the first day of a Clean-Down Period in any fiscal year shall not fall within
60 days of the last day of the Clean-Down Period for the preceding fiscal
year).
(g) Any payments of the Loans and reductions of the Commitments
made pursuant to subsection 7.5(d) or (e) shall be applied, first, to the
prepayment of the Tranche A Loans and the Tranche B Loans (with such prepayment
being applied (x) ratably between the Tranche A Loans and the Tranche B Loans
and (y) among the then outstanding installments of each in the order described
with respect to voluntary prepayments pursuant to subsection 7.3(a)) and,
second, to reduce the Aggregate Revolving Credit Commitment then in effect.
Unless the Borrower otherwise elects, the application of prepayments made
pursuant to this subsection 7.5 shall be made, first, to ABR Loans and, second,
to Eurodollar Loans.
(h) Notwithstanding anything to the contrary contained herein, in
the event that the Borrower would incur costs pursuant to subsection 7.15 as a
result of any payment due as a result of any prepayment to be made pursuant to
this subsection 7.5, the Borrower, at its option, may deposit the amount of
such payment with the Administrative Agent, for the benefit of the Lenders who
would have received such payment, in a cash collateral account, until the end
of the applicable Interest Period at which time such payment shall be made.
The Borrower hereby grants to the Administrative Agent, for the benefit of such
Lenders, a security interest in all amounts in which the Borrower has any
right, title or interest which are from time to time on deposit in such cash
collateral account and expressly waives all rights (which rights the Borrower
hereby acknowledges and agrees are vested exclusively in the Administrative
Agent) to exercise dominion or control over any such amounts.
41
36
(i) If at any time the Borrower or any Subsidiary shall receive any
cash proceeds of any casualty or condemnation in excess of $1,000,000 pursuant
to subsection 11.6(j), such proceeds shall be deposited with the Administrative
Agent who shall hold such proceeds in a cash collateral account satisfactory to
it. From time to time upon request, the Administrative Agent will release such
proceeds to the Borrower or such Subsidiary, as necessary, to pay for
replacement or rebuilding of the assets lost or condemned. If such assets are
not replaced or rebuilt within one (1) year (subject to reasonable extension
for force majeure or weather delays) following the condemnation or casualty or
if the Borrower fails to notify the Administrative Agent in writing on or
before 180 days after such casualty or condemnation that the Borrower shall
commence the replacement or rebuilding of such asset, then, in either case, the
Administrative Agent may apply any amounts in the cash collateral account to
the ratable repayment of the Loans and reduction of Commitments as Net Cash
Proceeds in accordance with subsection 7.5(g).
7.6. Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to ABR Loans by delivering
to the Administrative Agent an irrevocable Notice of Borrowing by 11:00 A.M.,
New York City time, at least one Business Day prior to the requested date of
conversion; provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert ABR Loans to Eurodollar Loans by
delivering to the Administrative Agent an irrevocable Notice of Borrowing by
11:00 A.M., New York City time, at least three Business Days' prior to the
requested conversion date. Any such Notice of Borrowing with respect to a
conversion to Eurodollar Loans shall specify the length of the initial Interest
Period or Interest Periods therefor. Upon receipt of any such Notice of
Borrowing, the Administrative Agent shall promptly notify each Lender thereof.
All or any part of outstanding Eurodollar Loans and ABR Loans may be converted
as provided herein, provided that (i) no Loan may be converted into a
Eurodollar Loan when any Event of Default has occurred and is continuing and
the Administrative Agent has or the Required Lenders have determined that such
a conversion is not appropriate, (ii) no Revolving Credit Loan may be converted
into a Eurodollar Loan after the date that is one month prior to the
Termination Date and (iii) no Tranche A Loan or Tranche B Loan (as the case may
be) may be converted into a Eurodollar Loan after the date that is one month
prior to the date of the final installment of principal thereof.
Notwithstanding anything to the contrary contained herein, Swing Line Loans
shall at all times be maintained as ABR Loans and shall not be converted to
Eurodollar Loans hereunder.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower delivering to the Administrative Agent an irrevocable Notice of
Borrowing, in accordance with the applicable provisions of the term "Interest
Period" set forth in subsection 1.1, setting forth (among other things) the
length of the next Interest Period to be applicable to such Loans, provided
that (i) no Loan may be continued as a Eurodollar Loan when any Event of
Default has occurred and is continuing and the Administrative Agent has or the
Required Lenders have determined that such a continuation is not appropriate,
(ii) no Revolving Credit Loan may be continued as a Eurodollar Loan after the
date that is one month prior to the Termination Date and (iii) no Tranche A
Loan or Tranche B Loan (as the case may be) may be continued as a Eurodollar
Loan after the date that is one month prior to the date of the final
installment of principal thereof and provided, further, that if the Borrower
shall fail to give such notice or if such continuation is not permitted such
Loans shall be automatically converted to ABR Loans on the last day of such
then expiring Interest Period. Upon receipt of any such Notice of Borrowing,
the Administrative Agent shall promptly notify each Lender thereof.
42
37
7.7. Minimum Amounts and Maximum Number of Tranches. All
borrowings, conversions and continuations of Loans hereunder and all selections
of Interest Periods hereunder shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate principal
amount of the Loans comprising each Eurodollar Tranche shall be equal to
$2,000,000 or a whole multiple of $250,000 in excess thereof. In no event
shall there be more than 10 Eurodollar Tranches outstanding at any time.
7.8. Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
day plus the Applicable Margin with respect thereto.
(b) Each ABR Loan (including, without limitation, each Swing Line
Loan) shall bear interest at a rate per annum equal to the ABR plus the
Applicable Margin with respect thereto.
(c) Upon the occurrence and during the continuance of any Event of
Default specified in Section 12(a), the principal of the Loans and any overdue
interest, commitment fee or other amount shall bear interest at a rate per
annum which is (x) in the case of principal, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this subsection plus
2% or (y) in the case of any such overdue interest, commitment fee or other
amount, the rate described in paragraph (b) of this subsection plus 2%, in each
case from the date of such non-payment until such overdue principal, interest,
commitment fee or other amount is paid in full (as well after as before
judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
7.9. Computation of Interest and Fees. (a) Commitment fees and,
whenever it is calculated on the basis of the Prime Rate, interest shall be
calculated on the basis of a 365- (or 366-, as the case may be) day year for
the actual days elapsed; and, otherwise, interest shall be calculated on the
basis of a 360-day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower and the affected Lenders of
each determination of a Eurodollar Rate. The Administrative Agent shall as
soon as practicable notify the Borrower and the affected Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to subsection 7.9(a).
7.10. Inability to Determine Interest Rate. If prior to the first
day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination, absent manifest error, shall be conclusive and binding
upon the Borrower) that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, or
43
38
(b) the Administrative Agent shall have received notice from the
Lenders holding 66-2/3% of the Commitments to provide the Loans to which
such Interest Period is applicable that the Eurodollar Rate determined or
to be determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such
Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to
the Borrower and the affected Lenders as soon as practicable thereafter. If
such notice is given (x) any Eurodollar Loans requested to be made on the first
day of such Interest Period shall be made as ABR Loans, (y) any Loans that were
to have been converted on the first day of such Interest Period to Eurodollar
Loans shall be converted to or continued as ABR Loans and (z) any outstanding
Eurodollar Loans shall be converted on the last day of the Interest Period
applicable thereto to ABR Loans. Until such notice has been withdrawn by the
Administrative Agent (which the Administrative Agent agrees to do when the
circumstances that prompted the delivery of such notice no longer exist), no
further Eurodollar Loans under such Commitments shall be made or continued as
such nor shall the Borrower have the right to convert ABR Loans to Eurodollar
Loans.
7.11. Pro Rata Treatment and Payments. (a) Each borrowing (other
than a borrowing of Swing Line Loans) by the Borrower from the Lenders
hereunder, each payment by the Borrower on account of any commitment fee
hereunder and any reduction of the Commitments of the Lenders shall be made pro
rata according to the respective relevant Commitment Percentages of the
Lenders. Each payment (including each prepayment) by the Borrower on account
of principal of and (subject to the provisions of subsection 7.12) interest on
the Loans (other than the Swing Line Loans) shall be made pro rata according to
the respective outstanding principal amounts of such Loans then held by the
Lenders. Except as otherwise set forth herein, all payments (including
prepayments) to be made by the Borrower hereunder, whether on account of
principal, interest, fees or otherwise, shall be made without set off or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the
due date thereof to the Administrative Agent, for the account of the applicable
Lenders, at the Administrative Agent's office specified in subsection 14.2, in
Dollars and in immediately available funds. The Administrative Agent shall
distribute such payments to the Lenders holding obligations on account of which
such amounts were paid promptly upon receipt in like funds as received. If any
payment hereunder becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day (except, in
the case of Eurodollar Loans, as otherwise provided in the definition of
Interest Period), and, with respect to payments of principal, interest thereon
shall be payable at the then applicable rate during such extension.
(b) If any Revolving Credit Lender (a "Non-Funding Lender") has (x)
failed to make a Revolving Credit Loan required to be made by it hereunder, and
the Administrative Agent has determined that such Revolving Credit Lender is
not likely to make such Revolving Credit Loan or (y) given notice to the
Borrower or the Administrative Agent that it will not make, or that it has
disaffirmed or repudiated any obligation to make, any Revolving Credit Loans,
in each case, by reason of the provisions of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989 or otherwise, any payment made on account
of the principal of the Revolving Credit Loans outstanding shall be made as
follows:
(i) in the case of any such payment made on any date when
and to the extent that, in the determination of the Administrative Agent,
the Borrower would be able, under the terms and conditions hereof, to
reborrow the amount of such payment under the Revolving Credit
Commitments and to satisfy any applicable conditions precedent set forth
in subsection
44
39
9.2 to such reborrowing, such payment shall be made on account of the
outstanding Revolving Credit Loan held by the Revolving Credit Lenders
other than the Non-Funding Lender pro rata according to the respective
outstanding principal amounts of the Revolving Credit Loan of such
Revolving Credit Lenders;
(ii) otherwise, such payment shall be made on account of
the outstanding Revolving Credit Loans held by the Revolving Credit
Lenders pro rata according to the respective outstanding principal
amounts of such Loans; and
(iii) any payment made on account of interest on the
Revolving Credit Loans shall be made pro rata according to the respective
amounts of accrued and unpaid interest due and payable on such Loans with
respect to which such payment is being made.
The Borrower agrees to give the Administrative Agent such assistance in making
any determination pursuant to this paragraph as the Administrative Agent may
reasonably request. Any such determination by the Administrative Agent shall
be conclusive and binding on the Lenders.
(c) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its relevant Commitment Percentage of such
borrowing available to the Administrative Agent, the Administrative Agent may
assume that such Lender is making such amount available to the Administrative
Agent, and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. If such amount is not made
available to the Administrative Agent by the required time on the Borrowing
Date therefor, such Lender shall pay to the Administrative Agent, on demand,
such amount with interest thereon at a rate equal to the daily average Federal
Funds Effective Rate for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this subsection 7.11 shall be conclusive in the absence of manifest
error. If such Lender's relevant Commitment Percentage of such borrowing is
not made available to the Administrative Agent by such Lender within three
Business Days of such Borrowing Date, the Administrative Agent shall also be
entitled to recover such amount with interest thereon at the rate per annum
applicable to ABR Loans hereunder, on demand, from the Borrower. The failure
of any Lender to make any Loan to be made by it shall not relieve any other
Lender of its obligation to make its Loan on such Borrowing Date, but no Lender
shall be responsible for the failure of any other Lender to make the Loan to be
made by such other Lender on such Borrowing Date.
(d) Notwithstanding anything to the contrary contained herein, in
the event that the Administrative Agent shall make any payment to a Lender on
account of amounts owing to such Lender by the Borrower hereunder and the
Administrative Agent either (i) shall not receive the corresponding amount from
the Borrower or (ii) shall be required to be return such amount to the
Borrower, such Lender shall (upon the request of the Administrative Agent)
promptly return to the Administrative Agent the amount of such payment.
7.12. Illegality. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert ABR Loans to Eurodollar Loans shall
forthwith be cancelled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to
45
40
ABR Loans on the respective last days of the then current Interest Periods with
respect to such Loans or within such earlier period as required by law. If any
such conversion of a Eurodollar Loan occurs on a day which is not the last day
of the then current Interest Period with respect thereto, the Borrower shall
pay to such Lender such amounts, if any, as may be required pursuant to
subsection 7.15. If circumstances subsequently change so that any affected
Lender shall determine that it is no longer so affected, such Lender will
promptly notify the Borrower and the Administrative Agent, and upon receipt of
such notice, the obligations of such Lender to make or continue Eurodollar
Loans or to convert ABR Loans into Eurodollar Loans shall be reinstated.
7.13. Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note, any Letter of
Credit, any Application or any Eurodollar Loan made by it, or change the
basis of taxation of payments to such Lender in respect thereof (except
for Non- Excluded Taxes covered by subsection 7.14 and the establishment
of a tax based on the net income of such Lender or changes in the rate of
tax on the net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not otherwise
included in the determination of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting
into, continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender
such additional amount or amounts as will compensate such Lender for such
increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under any Letter of Credit to a
level below that which such Lender or such corporation could have achieved but
for such adoption, change or compliance (taking into consideration such
Lender's or such corporation's policies with respect to capital adequacy) by an
amount deemed by such Lender to be material, then from time to time, the
Borrower shall promptly pay to such Lender such additional amount or amounts as
will compensate such Lender for such reduction.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection, it shall promptly notify (in any event no later
than ninety (90) days after such Lender
46
41
becomes entitled to make such claim) the Borrower (through the Administrative
Agent) of the event by reason of which it has become so entitled. A
certificate as to any additional amounts payable pursuant to this subsection
submitted by such Lender to the Borrower (through the Administrative Agent)
shall be conclusive in the absence of manifest error. If the Borrower notifies
the Administrative Agent within five Business Days after any Lender notifies
the Borrower of any increased cost pursuant to the foregoing provisions of this
subsection 7.13, the Borrower may convert all Eurodollar Loans of such Lender
then outstanding into ABR Loans if an ABR option is available in accordance
with subsection 7.6 and, additionally reimburse such Lender for any cost in
accordance with subsection 7.15. The agreements in this subsection shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder for a period of nine (9) months following such
termination and repayment.
7.14. Taxes. (a) All payments made by the Borrower under this
Agreement and any Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding net income taxes and franchise taxes
imposed in lieu of net income taxes. If any such non-excluded taxes, levies,
imposts, duties, charges, fees deductions or withholdings ("Non-Excluded
Taxes") are required to be withheld from any amounts payable to the
Administrative Agent or any Lender hereunder or under any Note, the amounts so
payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, provided
that the Borrower shall not be required to increase any such amounts payable to
any Lender that is not organized under the laws of the United States or a state
thereof ("Non-U.S. Lender") with respect to any Non-Excluded Taxes (i) that are
attributable to such Non-U.S. Lender's failure to comply with the requirements
of paragraphs (b) or (c) of this subsection or (ii) that are United States
withholding taxes imposed on amounts payable to such Lender at the time the
Lender becomes a party to this Agreement, except to the extent that such
Lender's assignor was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such Non-Excluded Taxes
pursuant to section 2.17(a). Whenever any Non-Excluded Taxes are payable by
the Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for its own account or for the account of such Lender, as
the case may be, a certified copy of an original official receipt received by
the Borrower showing payment thereof. If the Borrower fails to pay any Non-
Excluded Taxes when due to the appropriate taxing authority or fails to remit
to the Administrative Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder for a
period of nine (9) months thereafter.
(b) Each Non-U.S. Lender shall:
(i) (x) deliver to the Borrower and the Administrative
Agent (A) two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, or successor applicable form, as the case may
be, and (B) an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be;
(y) deliver to the Borrower and the Administrative Agent
two further copies of any such form or certification on or before the
date that any such form or certification expires
47
42
or becomes obsolete and after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the
Borrower; and
(z) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower or the Administrative Agent;
(ii) in the case of any such Lender that is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Code and that does not
comply with subparagraph (i) of this subsection 7.14(b), (x) represent to
the Borrower (for the benefit of the Borrower and the Administrative
Agent) that it is not a bank within the meaning of Section 881(c)(3)(A)
of the Code, (y) deliver to the Borrower on or before the date of any
payment by the Borrower, with a copy to the Administrative Agent, (A) a
certificate stating that such Lender (1) is not a "bank" under Section
881(c)(3)(A) of the Code, is not subject to regulatory or other legal
requirements as a bank in any jurisdiction, and has not been treated as a
bank for purposes of any tax, securities law or other filing or
submissions made to any Governmental Authority, any application made to a
rating agency or qualification for any exemption from tax, securities law
or other legal requirements, (2) is not a 10 percent shareholder within
the meaning of Section 881(c)(3)(B) of the Code and (3) is not a
controlled foreign corporation receiving interest from a related person
within the meaning of Section 881(c)(3)(C) of the Code (any such
certificate a "U.S. Tax Compliance Certificate") and (B) two duly
completed copies of Internal Revenue Service Form W-8, or successor
applicable form, certifying to exemption from U.S. withholding tax under
the provisions of Section 881(c) of the Code with respect to payments to
be made under this Agreement and any Notes (and to deliver to the
Borrower and the Administrative Agent two further copies of Form W-8 on
or before the date it expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recently provided
form and, if necessary, obtain any extension of time reasonably requested
by the Borrower or the Administrative Agent for filing and completing
such forms), and (z) agree, to the extent legally entitled to do so, upon
reasonable request by the Borrower, to provide to the Borrower (for the
benefit of the Borrower and the Administrative Agent) such other forms as
may be reasonably required in order to establish the legal entitlement of
such Lender to an exemption from withholding with respect to payments
under this Agreement and any Notes;
unless in any such case any change in treaty, law or regulation has occurred
prior to the date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent such Lender from
duly completing and delivering any such form with respect to it and such Lender
so advises the Borrower and the Administrative Agent. Such Lender shall
certify in the case of a Form W-8 or W-9, that it is entitled to an exemption
from United States backup withholding tax. Each Person that shall become a
Lender or a Participant pursuant to subsection 14.6 shall, upon the
effectiveness of the related transfer, be required to provide all of the forms
and statements required pursuant to this subsection, provided that in the case
of a Participant such Participant shall furnish all such required forms and
statements to the Lender from which the related participation shall have been
purchased.
(c) Each Lender shall, upon request by the Borrower, deliver to
the Borrower or the applicable Governmental Authority, as the case may be, any
form or certificate required in order that any payment by the Borrower under
this Agreement or any Notes may be made free and clear of, and without
deduction or withholding for or on account of any Non-Excluded Taxes (or to
allow any such deduction or withholding at a reduced rate) imposed on such
payment under the laws of any jurisdiction, provided that such Lender is
legally entitled to complete, execute and deliver such form
48
43
or certificate and such completion, execution or submission would not
materially prejudice the legal position of such Lender.
7.15. Indemnity. The Borrower agrees to indemnify each Lender and
to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the excess, if
any, of (i) the amount of interest which would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to
the last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Applicable Margin included
therein, if any) over (ii) the amount of interest (as reasonably determined by
such Lender) which would have accrued to such Lender on such amount by placing
such amount on deposit for a comparable period with leading banks in the
interbank eurodollar market. This covenant shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder for a period of nine (9) months thereafter.
7.16. Certain Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, a non-refundable administrative
agent's fee in an amount previously agreed to with the Administrative Agent,
payable in the manner and on the dates so previously agreed.
7.17. Change of Lending Office. Each Lender agrees that if it
makes any demand for payment under subsection 7.12 or 7.14(a), or if any
adoption or change of the type described in subsection 7.13 shall occur with
respect to it, it will use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions and so long as such efforts would
not be disadvantageous to it, as determined in its sole discretion) to
designate a different lending office if the making of such a designation would
reduce or obviate the need for the Borrower to make payments under subsection
7.12 or 7.14(a), or would eliminate or reduce the effect of any adoption or
change described in subsection 7.13.
7.18. Replacement of Lenders. If, at any time (a) the Borrower
becomes obligated to pay additional amounts described in subsections 7.12, 7.13
or 7.14 as a result of any conditions described in such subsections or any
Lender ceases to make Eurodollar Loans pursuant to Section 7.12, (b) any Lender
becomes insolvent and its assets become subject to a receiver, liquidator,
trustee, custodian or other Person having similar powers, (c) any Lender
becomes a "Nonconsenting Lender" (as defined below in this subsection 7.18) or
(d) any Lender becomes a Non-Funding Lender, then the Borrower may, on ten
Business Days prior written notice to the Administrative Agent and such Lender,
replace such Lender by causing such Lender to (and such Lender shall) assign
pursuant to subsection 14.6(c) all of its rights and obligations under this
Agreement to a Lender or other entity selected by the Borrower and reasonably
acceptable to the Administrative Agent for a purchase price equal to the
outstanding principal amount of such Lenders Loans and all accrued interest and
fees and other amount payable hereunder; provided that (i) the Borrower shall
have no right to replace the Administrative Agent, (ii) neither the
Administrative Agent nor any Lender shall have any obligation to the Borrower
to find a replacement Lender or other such entity, (iii) in the event of
replacement of a Nonconsenting Lender or a Lender to which the Borrower
49
44
becomes obligated to pay additional amounts pursuant to clause (a) of this
subsection, in order for the Borrower to be entitled to replace such a Lender,
such replacement must take place no later than 180 days after (A) the date the
Nonconsenting Lender shall have notified the Borrower and the Administrative
Agent of its failure to agree to any requested consent, waiver or amendment or
(B) the Lender shall have demanded payment of additional amounts under one of
the subsections described in clause (a) of this subsection, as the case may be
and (iv) in no event shall the Lender hereby replaced be required to pay or
surrender to such replacement Lender or other entity any of the fees received
by such Lender hereby replaced pursuant to this Agreement. In the case of a
replacement of a Lender to which the Borrower becomes obligated to pay
additional amounts pursuant to clause (a) of this subsection, the Borrower
shall pay such additional amounts to such Lender prior to such Lender being
replaced and the payment of such additional amounts shall be a condition to the
replacement of such Lender. In the event that (x) the Borrower or the
Administrative Agent has requested the Lenders to consent to a departure or
waiver of any provisions of the Credit Documents or to agree to any amendment
thereto, (y) the consent, waiver or amendment in question requires the consent
of all Lenders and (z) the Required Lenders have agreed to such consent, waiver
or amendment, then any such Lender who does not agree to such consent, waiver
or amendment shall be deemed a "Nonconsenting Lender". The Borrower's right to
replace a Non-Funding Lender pursuant to this subsection 7.18 is in addition
to, and not in lieu of, all other rights and remedies available to the Borrower
against such Non-Funding Lender under this Agreement, at law, in equity or by
statute.
SECTION VIII. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent, each Issuing Lender and the
Lenders to enter into this Agreement and to make the Loans and issue or
participate in the Letters of Credit, the Borrower hereby represents and
warrants to the Administrative Agent, each Issuing Lender and each Lender that:
8.1. Financial Condition. (a) The consolidated balance sheet of
the Parent and its consolidated Subsidiary as at July 31, 1996 and the related
consolidated statements of income and of cash flows for the fiscal year ended
on such date, reported on by Arthur Andersen LLP, copies of which have
heretofore been furnished to each Lender, are complete and correct and present
fairly in all material respects the consolidated financial condition of the
Borrower and its consolidated Subsidiary as at such date, and the consolidated
results of their operations and their consolidated cash flows for the fiscal
year then ended. The unaudited consolidated balance sheet of the Borrower and
its consolidated Subsidiary as at March 31, 1997 and the related unaudited
consolidated statements of income and of cash flows for the three-month period
ended on such date, certified by a Responsible Officer, copies of which have
heretofore been furnished to each Lender, are complete and correct and present
fairly in all material respects the consolidated financial condition of the
Borrower and its consolidated Subsidiary as at such date, and the consolidated
results of their operations and their consolidated cash flows for the three-
month period then ended (subject to normal year-end audit adjustments and the
absence of footnotes). All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by such
accountants and as disclosed therein).
(b) To the knowledge of the Borrower, the consolidated balance
sheet of ERO and its consolidated Subsidiaries as at December 31, 1996 and the
related consolidated statements of income and of cash flows for the fiscal year
ended on such date, reported on by Price Waterhouse LLP, copies of which have
heretofore been furnished to each Lender, are complete and correct and present
fairly in all material respects the consolidated financial condition of ERO and
its consolidated
50
45
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the fiscal year then ended. To the
knowledge of the Borrower, the unaudited consolidated balance sheet of ERO and
its consolidated Subsidiaries as at March 31, 1997 and the related unaudited
consolidated statements of income and of cash flows for the three-month period
ended on such date, copies of which have heretofore been furnished to each
Lender, are complete and correct and present fairly in all material respects
the consolidated financial condition of ERO and its consolidated Subsidiaries
as at such date, and the consolidated results of their operations and their
consolidated cash flows for the three-month period then ended (subject to
normal year-end audit adjustments and the absence of footnotes). All such
financial statements, including the related schedules and notes thereto, have
been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by such accountants and as disclosed
therein).
(c) None of the Borrower, ERO or any of their respective
consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any material Guarantee Obligation, contingent liability or
liability for taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any interest rate or foreign
currency swap or exchange transaction, which is not reflected in the foregoing
statements or in the notes thereto and which, to the knowledge of Borrower, has
any reasonable likelihood of resulting in a material loss or cost.
(d) During the period from December 31, 1996 to and including the
date hereof, there has been no sale, transfer or other disposition by the
Borrower, ERO or any of their respective consolidated Subsidiaries of any
material part of its business or property and no purchase or other acquisition
of any business or property (including any capital stock of any other Person)
material in relation to the consolidated financial condition of the Borrower
and its consolidated Subsidiaries at December 31, 1996, other than (in each
such case) the Acquisition.
(e) The unaudited consolidated pro forma balance sheet of the
Borrower and its consolidated Subsidiaries as of December 31, 1996, certified
by a Responsible Officer of the Borrower (the "Pro Forma Balance Sheet"),
copies of which have been furnished to each Lender, is the unaudited balance
sheet of the Borrower and its consolidated Subsidiaries, adjusted to give
effect (as if such events had occurred on such date) to the Acquisition and the
other transactions contemplated hereby to occur on or prior to the Closing
Date. The Pro Forma Balance Sheet, together with the notes thereto, were
prepared based on good faith assumptions in accordance with GAAP and are based
on the best information available to the Borrower as of the date of delivery
thereof.
8.2. No Change. Since December 31, 1996, there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
8.3. Corporate Existence; Compliance with Law. Each Credit Party
(a) is duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization, (b) has the corporate power and
authority, and the legal right, to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification and (d) is in compliance with all Requirements of Law except to
the extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
51
46
8.4. Corporate Power; Authorization; Enforceable Obligations. Each
Credit Party has the corporate power and authority, and the legal right, to
make, deliver and perform the Credit Documents to which it is a party and, in
the case of the Borrower, to borrow hereunder and has taken all necessary
corporate action to authorize the borrowings on the terms and conditions of
this Agreement and any Notes or Applications and to authorize the execution,
delivery and performance of the Credit Documents to which it is a party. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the Acquisition or the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of the Credit
Documents to which the Borrower and each other Credit Party is a party, except
for: (i) those set forth on Schedule 8.4, each of which have been or will be
made or taken and are or will be in full force and effect, (ii) consents under
immaterial Contractual Obligations or (iii) those referred to in subsection
8.16. This Agreement has been, and each other Credit Document to which it is a
party will be, duly executed and delivered on behalf of the Borrower and each
other Credit Party. This Agreement constitutes, and each other Credit Document
to which it is a party when executed and delivered will constitute, a legal,
valid and binding obligation of the Borrower and each other Credit Party
enforceable against the Borrower and each other Credit Party, as the case may
be, in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
8.5. No Legal Bar. The execution, delivery and performance of each
Credit Document, the incurrence or issuance of and use of the proceeds of the
Loans and of drawings under the Letters of Credit and the transactions
contemplated by the Credit Documents (a) will not violate any Requirement of
Law or any material Contractual Obligation applicable to or binding upon any
Credit Party or any of their Subsidiaries and (b) will not result in the
creation or imposition of any Lien on any of its properties or assets pursuant
to any Requirement of Law applicable to it, as the case may be, or any of its
material Contractual Obligations, except for the Liens arising under the
Security Documents and Liens permitted under subsection 11.3.
8.6. No Material Litigation. No litigation by, investigation by,
or proceeding of or before any arbitrator or any Governmental Authority is
pending or, to the knowledge of the Borrower, threatened by or against any
Credit Party or any of their respective Subsidiaries or against any of its or
their respective properties or revenues with respect to (a) any Credit Document
or any of the transactions contemplated hereby or thereby, (b) with respect to
any Acquisition Document or any transactions contemplated thereby which affect
any material provisions or any material transaction contemplated thereby, or
(c) which could reasonably be expected to have a Material Adverse Effect. All
applicable waiting periods have expired without any action being taken or
threatened by any Governmental Authority which would restrain, prevent or
otherwise impose material adverse conditions on the transactions contemplated
hereby or thereby or which would be reasonably likely to have a Material
Adverse Effect.
8.7. No Default. None of the Credit Parties or any of their
respective Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect which could reasonably be expected to
have a Material Adverse Effect. No Default or Event of Default has occurred
and is continuing.
8.8. Ownership of Property; Liens. Each of the Borrower and its
Subsidiaries has good record and indefeasible title in fee simple to, or a
valid leasehold interest in, all its material real
52
47
property, and good title to, or a valid leasehold interest in, all its other
material property, and none of such property is subject to any Lien except as
permitted by subsection 11.3.
8.9. Intellectual Property. The Borrower and each of its
Subsidiaries owns, or is licensed to use, all Intellectual Property necessary
for the conduct of its business as currently conducted except for those the
failure to own or license which could not reasonably be expected to have a
Material Adverse Effect. To Borrower's knowledge, no claim has been asserted
and is pending by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor does the Borrower know of any valid basis for any such claim
which could reasonably be expected to have a Material Adverse Effect. The use
of such Intellectual Property by the Borrower and its Subsidiaries does not
infringe on the rights of any Person, except for such claims and infringements
that, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
8.10. Taxes. Each of the Borrower and its Subsidiaries has filed
or caused to be filed all material tax returns which, to the knowledge of the
Borrower, are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other material taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than (1) any such
taxes, assessments, fees or other charges the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be), and (ii) taxes,
assessments, fees or other charges imposed by any Governmental Authority, with
respect to which the failure to make payments could not, by reason of the
amount thereof or of remedies available to such Governmental Authorities,
reasonably be expected to have a Material Adverse Effect); no tax Lien has been
filed, and, to the knowledge of the Borrower, no claim is being asserted, with
respect to any such material tax, fee or other charge, other than those being
contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been prepared on the books of the Credit
Parties or their Subsidiaries, as the case may be.
8.11. Federal Regulations. No part of the proceeds of any Loans
will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation G or
Regulation U of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form G-1 or FR Form U-1 referred to in said Regulation G or
Regulation U, as the case may be.
8.12. ERISA. Except where the liability, individually or in the
aggregate, which could reasonably be expected to result has not had, or could
not reasonably be expected to have, a Material Adverse Effect: (i) neither a
Reportable Event nor an "accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Single Employer Plan, (ii) each Plan has
complied with the applicable provisions of ERISA and the Code (except that with
respect to any Multiemployer Plan, this representation is only made to the
knowledge of the Borrower), (iii) no termination of a Single Employer Plan has
occurred, and no Lien in favor of the PBGC or a Single Employer Plan has
arisen, during such five-year period, (iv) the present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to the
date on which this representation is made or deemed made, exceed the value of
the assets of such Plan
53
48
allocable to such accrued benefits by any material amount, (v) neither the
Borrower nor any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan which has resulted in material
liability, and, to the knowledge of the Borrower, neither the Borrower nor any
Commonly Controlled Entity would become subject to any liability under ERISA if
the Borrower or any such Commonly Controlled Entity were to withdraw completely
from all Multiemployer Plans as of the valuation date most closely preceding
the date on which this representation is made or deemed made in the amount
which could be reasonably expected to have a Material Adverse Effect, and (vi)
no such Multiemployer Plan is in Reorganization or Insolvent.
8.13. Investment Company Act; Other Regulations. The Borrower is
not an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
The Borrower is not subject to regulation under any Requirement of Law (other
than Regulation X of the Board of Governors of the Federal Reserve System)
which limits its ability to incur Indebtedness.
8.14. Subsidiaries. On the Closing Date, the Subsidiaries of the
Borrower and their jurisdiction of incorporation are as set forth on Schedule
8.15. The Parent owns not less than 100% of the issued and outstanding Capital
Stock of the Borrower and has no other Subsidiaries.
8.15. Environmental Matters. Except to the extent that the facts
and circumstances giving rise to all such failures to be so true and correct
are not, in the aggregate, reasonably likely to result in a Material Adverse
Effect:
(a) The facilities and properties currently or formerly owned,
leased or operated by the Borrower or any of its Subsidiaries (the
"Properties") do not contain, and have not previously contained, any
Materials of Environmental Concern in amounts or concentrations which (i)
constitute or constituted a violation of, (ii) could reasonably be
expected to give rise to liability under, any Environmental Law, (iii)
which could materially interfere with the continued operation of the
Properties or (iv) materially impair the fair saleable value thereof.
(b) The Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, in all
material respects with all applicable Environmental Laws.
(c) Neither the Borrower nor any of its Subsidiaries has received
any notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the business,
nor does the Borrower have knowledge or reason to believe that any such
notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a
location which could reasonably be expected to give rise to liability
under, any Environmental Law, nor have any Materials of Environmental
Concern been generated, treated, stored or disposed of at, on or under
any of the Properties in violation of, or in a manner that could
reasonably be expected to give rise to liability under, any applicable
Environmental Law.
(e) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will be
named as a party with respect to the Properties or
54
49
the Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with
respect to the Properties or the business.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or
related to the operations of the Borrower or any Subsidiary in connection
with the Properties or otherwise in connection with the Business, in
violation of or in amounts or in a manner that could reasonably give rise
to liability under Environmental Laws.
8.16. Security Documents. (a) The Master Guarantee and Collateral
Agreement is effective to create in favor of the Administrative Agent, for the
benefit of the Lenders, a legal, valid and enforceable security interest in the
Collateral described therein and proceeds thereof. In the case of the Pledged
Stock described therein, when stock certificates representing such Pledged
Stock are delivered to the Administrative Agent, and in the case of the other
Collateral described therein, when financing statements in appropriate form are
filed in the offices specified on Schedule 8.16(a) thereto, the Master
Guarantee and Collateral Agreement shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the Credit Parties
in such Collateral and the proceeds thereof, as security for the Obligations
(as defined in the Master Guarantee and Collateral Agreement), in each case
prior and superior in right to any other Person subject, except in the case of
such Pledged Stock, to Liens permitted by subsection 11.3.
(b) Upon execution and delivery thereof by the parties thereto,
each Foreign Pledge Agreement will be effective to create in favor of the
Administrative Agent, for the ratable benefit of the Lenders, a legal, valid
and enforceable security interest in not less than 65% of the Capital Stock of
each Foreign Subsidiary which is directly owned by a Domestic Subsidiary and,
when the actions (if any) specified in the legal opinion delivered in
connection with such Foreign Pledge Agreement have been duly taken, the
security interests granted pursuant thereto shall constitute a perfected first
lien on, and security interest in, all right, title and interest of the pledgor
party thereto in such Capital Stock.
(c) Each of the Mortgages, when executed and delivered by the
relevant Credit Party, shall be effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and proceeds
thereof, and when the Mortgages are filed in the offices specified on Schedule
8.16(c), each such Mortgage shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Credit Parties in
the Mortgaged Properties and the proceeds thereof, as security for the
Obligations (as defined in the relevant Mortgage), in each case prior and
superior in right to any other Person, other than with respect to Liens
permitted by subsection 11.3.
8.17. Accuracy and Completeness of Information. No information,
financial statement, report, certificate or other document prepared or
furnished by or on behalf of any Credit Party to the Administrative Agent or
any Lender in connection with this Agreement, any other Credit Document, or any
of the Acquisition Documents (but excluding all projections and pro forma
financial statements which shall have been prepared in good faith and based
upon reasonable assumptions) contains any untrue statement of a material fact
or omits to state any material fact necessary to make the statements herein or
therein not misleading. As of the Closing Date, there is no fact known to the
Borrower (other than general economic conditions, which conditions are commonly
known and affect businesses generally) which has, or which could reasonably be
expected to have, in the reasonable judgment of the Borrower, a Material
Adverse Effect.
55
50
8.18. Acquisition Documents. The Administrative Agent and each
Lender has received complete and correct copies of each of the Acquisition
Documents (including, without limitation, all exhibits, schedules and
disclosure letters referred to therein or delivered pursuant thereto) and all
amendments thereto, waivers relating thereto and other side letters or
agreements affecting the terms thereof. None of the Acquisition Documents will
have been amended, supplemented or otherwise modified (including waivers) since
the date hereof, except (a) amendments, supplements and other modifications
(including waivers) to the Acquisition Documents which (i) do not increase the
price paid for the Shares, (ii) do not affect the material conditions to
AcquisitionCo's obligation to purchase the Shares or (iii) would not adversely
affect the Lenders or (b) as approved by the Administrative Agent. Each
Acquisition Document to which the Borrower or any of its Subsidiaries is a
party has been duly executed and delivered by the Borrower or such Subsidiary,
as the case may be, and to the best knowledge of the Borrower and each of its
Subsidiaries, each Acquisition Document has been duly executed and delivered by
the parties thereto other than the Borrower and its Subsidiaries, is in full
force and effect and is enforceable against the parties thereto. The
representations and warranties of the Borrower and each of its Subsidiaries
contained in each Acquisition Document to which the Borrower or such
Subsidiary, as the case may be, is a party is true and correct in all material
respects. To the knowledge of the Borrower and each of its Subsidiaries, the
representations and warranties of each other party to each Acquisition Document
contained therein is correct in all material respects.
8.19. Representations and Warranties in respect of the Collateral.
(a) Except for the security interest granted to the Administrative Agent for
the ratable benefit of the Lenders pursuant to the Master Guarantee and
Collateral Agreement and the other Liens permitted to exist on the Collateral
by subsection 11.3, each Credit Party owns each item of the Collateral free and
clear of any and all Liens or claims of others. No financing statement or
other public notice with respect to all or any part of the Collateral is on
file or of record in any public office, except such as have been filed in favor
of the Administrative Agent, for the ratable benefit of the Lenders, pursuant
to the Master Guarantee and Collateral Agreement or as are permitted by
subsection 11.3.
(b) On the date hereof, each Credit Party's jurisdiction of
organization and the location of its chief executive office or sole place of
business are specified on Schedule 8.19(b).
(c) On the date hereof, the Inventory and the Equipment (other than
mobile goods) are kept at the locations listed on Schedule 8.19(c).
(d) None of the Collateral constitutes, or is the Proceeds of, Farm
Products.
(e) No amount payable to a Credit Party under or in connection with
any Receivable is evidenced by any Instrument or Chattel Paper in excess of
$1,000,000 which has not been delivered to the Administrative Agent.
(f) (i) Schedule 8.19(f) lists all Intellectual Property owned by
a Credit Party in its own name on the date hereof.
(ii) To the best of a Credit Party's knowledge, all material
Intellectual Property is on the date hereof valid, subsisting, unexpired
and enforceable and has not been abandoned.
(iii) Except as set forth in Schedule 8.19(f), none of the
Intellectual Property is on the date hereof the subject of any licensing
or franchise agreement on the date hereof.
56
51
(iv) No holding, decision or judgment has been rendered by any
Governmental Authority which would limit, cancel or question the validity
of, or such Credit Party's rights in, any Intellectual Property in any
respect that could reasonably be expected to have a Material Adverse
Effect.
(v) No action or proceeding is pending on the date hereof (i)
seeking to limit, cancel or question the validity of any material
Intellectual Property, or (ii) which, if adversely determined, would have
a material adverse effect on the value of any Intellectual Property.
SECTION IX. CONDITIONS PRECEDENT
9.1. Conditions to Initial Loans. The agreement of each Lender to
make the initial Loans and other extensions of credit requested to be made by
it is subject to the satisfaction, immediately prior to or concurrently with
the making of such Loan or other extension of credit (and, in any event, on or
prior to June 30, 1997), of the following conditions precedent:
(a) Credit Documents. The Administrative Agent shall have received
(i) this Agreement, (ii) the Master Guarantee and Collateral Agreement,
(iii) each of the Foreign Pledge Agreements, and (iv) each Mortgage, in
each case executed and delivered by a Responsible Officer of the parties
thereto.
(b) Related Agreements. The Administrative Agent shall have
received, with a copy for each Lender, true and correct copies, certified
as to authenticity by the Borrower, of each of (i) the Acquisition
Documents and (ii) such other documents or instruments as may be
reasonably requested by the Administrative Agent.
(c) Corporate Proceedings of the Credit Parties. The
Administrative Agent shall have received, with a copy for each Lender, a
copy of the resolutions, in form and substance reasonably satisfactory to
the Administrative Agent, of the Board of Directors of each of the Credit
Parties authorizing (i) the execution, delivery and performance of this
Agreement and the other Credit Documents to which it is a party, (ii) the
borrowings contemplated hereunder (in the case of the Borrower) and (iii)
the granting by it of the Liens created pursuant to the Security
Documents, certified by the Secretary or an Assistant Secretary of such
Person as of the Closing Date, which certificate shall be in form and
substance reasonably satisfactory to the Administrative Agent and shall
state that the resolutions thereby certified have not been amended,
modified, revoked or rescinded.
(d) Incumbency Certificates. The Administrative Agent shall have
received, with copy for each Lender, a certificate of each of the Credit
Parties, dated the Closing Date, as to the incumbency and signature of
the officers of such Person executing any Credit Document reasonably
satisfactory in form and substance to the Administrative Agent.
(e) Corporate Documents. The Administrative Agent shall have
received, with a copy for each Lender, true and complete copies of the
certificate of incorporation and by-laws of each Credit Party, certified
as of the Closing Date as complete and correct copies thereof by the
Secretary or an Assistant Secretary of the Borrower.
57
52
(f) Corporate Structure. The Administrative Agent and the Lenders
shall be reasonably satisfied with the corporate, capital and legal
structure of the Borrower and its Subsidiaries described therein.
(g) Fees. The Administrative Agent shall have received all fees
and other amounts due and payable on or prior to the Closing Date,
including, (i) to the extent invoiced a reasonable time prior to the
Closing Date, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower and its Subsidiaries
hereunder or under any other Loan Document and (ii) referred to in the
Fee Letter dated April 10, 1997.
(h) Legal Opinions. The Administrative Agent shall have received,
with a copy for each Lender, the following executed legal opinions:
(i) the executed legal opinion of Weil, Gotshal &
Manges LLP, counsel to the Borrower and the other Credit Parties,
substantially in the form of Exhibit G-1;
(ii) the executed legal opinion of Allen & Overy, U.K.
counsel to the Administrative Agent and the Lenders, substantially
in the form of Exhibit G-2;
(iii) the executed legal opinion of Stewart McKelvey
Stirling Scales, Canadian counsel to the Administrative Agent and
the Lenders, substantially in the form of Exhibit G-3; and
(iv) the executed legal opinions of counsel in respect
of the Mortgages described on Schedule 9.1(h), which opinions shall
be in form and substance reasonably acceptable to the Administrative
Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent
may reasonably require.
(i) Pledged Stock; Stock Powers; Pledged Notes. The Administrative
Agent shall have received the certificates representing the shares
pledged pursuant to each of the Collateral Agreements, together with an
undated stock power for each such certificate executed in blank by a
Responsible Officer of the pledgor thereof. The Administrative Agent
shall have received a shareholder resolution reasonably satisfactory to
it in respect of the pledged Capital Stock of Subsidiaries of the
Borrower organized in the U.K.
(j) Actions to Perfect Liens. The Administrative Agent shall have
received evidence in form and substance reasonably satisfactory to it
that all filings, recordings, registrations and other actions, including,
without limitation, the filing of duly executed financing statements on
form UCC-1, necessary or, in the opinion of the Administrative Agent,
desirable to perfect the Liens created by the Security Documents shall
have been completed or arrangements reasonably satisfactory to
Administrative Agent have been made therefor.
(k) Surveys. The Administrative Agent shall have received, and the
title insurance company issuing the policy referred to in subsection
9.1(l) (the "Title Insurance Company") shall have received, maps or plats
of an as-built survey of the sites of the property covered by each
Mortgage certified to the Administrative Agent and the Title Insurance
Company in a manner reasonably satisfactory to them, dated a date
reasonably satisfactory to the Administrative Agent and the Title
Insurance Company by an independent professional
58
53
licensed land surveyor reasonably satisfactory to the Administrative
Agent and the Title Insurance Company, which maps or plats and the
surveys on which they are based shall be made in accordance with the
Minimum Standard Detail Requirements for Land Title Surveys jointly
established and adopted by the American Land Title Association and the
American Congress on Surveying and Mapping in 1992, and, without limiting
the generality of the foregoing, there shall be surveyed and shown on
such maps, plats or surveys the following: (i) the locations on such
sites of all the buildings, structures and other improvements and the
established building setback lines; (ii) the lines of streets abutting
the sites thereof; (iii) all visible and/or recorded access and other
visible and/or recorded easements appurtenant to the sites; (iv) all
roadways, paths, driveways, easements, encroachments and overhanging
projections and similar encumbrances affecting the site, whether
recorded, apparent from a physical inspection of the sites or otherwise
known to the surveyor; (v) any encroachments on any adjoining property by
the building structures and improvements on the sites; and (vi) if the
site is described as being on a filed map, a legend relating the survey
to said map.
(l) Title Insurance Policy. The Administrative Agent shall have
received in respect of each parcel covered by each Mortgage a mortgagee's
title policy (or policies) or marked up unconditional binder for such
insurance dated the Closing Date. Each such policy shall (i) be in an
amount reasonably satisfactory to the Administrative Agent (not to exceed
the value thereof); (ii) insure that each Mortgage creates a valid first
Lien on such parcel free and clear of all defects and encumbrances,
except such as permitted hereby and as may be disclosed therein; (iii)
name the Administrative Agent for the benefit of the Lenders as the
insured thereunder; (iv) be in the form of ALTA Loan Policy - 1970
(Amended 10/17/70) or in an equivalent form available in the state where
such parcel is located; (v) contain such endorsements and affirmative
coverage as the Administrative Agent may reasonably request and (vi) be
issued by Commonwealth Land Title Company or other title companies
reasonably satisfactory to the Administrative Agent (including any such
title companies acting as co-insurers or reinsurers, at the option of the
Administrative Agent) (each, a "Title Insurance Company"). The
Administrative Agent shall have received evidence satisfactory to it that
all premiums in respect of each such policy, and all charges for mortgage
recording tax, if any, have been paid.
(m) Flood Insurance. If requested by the Administrative Agent, the
Administrative Agent shall have received (i) a policy of flood insurance
which (A) covers any parcel of improved real property which is encumbered
by a Mortgage located in an area that has been identified by the
Secretary of Housing and Urban Development as an area having special
flood hazards, (B) is written in an amount not less than the outstanding
principal amount of the indebtedness secured by a Mortgage which is
reasonably allocable to such real property or the maximum limit of
coverage made available with respect to the particular type of property
under the National Flood Insurance Act of 1968, whichever is less, and
(C) has a term ending not earlier than the maturity of the indebtedness
secured by such Mortgage and (ii) confirmation that the Borrower has
received the notice required pursuant to Section 208(e)(3) of Regulation
H of the Board of Governors of the Federal Reserve System.
(n) Copies of Documents. The Administrative Agent shall have
received a copy of all recorded documents listed as exceptions to title
in, the title policy or policies referred to in subsection 9.1(l) and a
copy of all other documents affecting the property covered by a Mortgage.
59
54
(o) Lien Searches. The Administrative Agent shall have received
the results of a recent search by a Person reasonably satisfactory to the
Administrative Agent, of the Uniform Commercial Code, judgement and tax
lien filings which may have been filed with respect to personal property
of the Borrower and its Domestic Subsidiaries, and the results of such
search shall be reasonably satisfactory to the Administrative Agent.
(p) Receipt of Capital. The Administrative Agent shall have
received a certificate of a Responsible Officer, dated the Closing Date,
stating that (i) the Parent has issued and sold at least $25,000,000 in
gross proceeds from the Senior Discount Notes (which Senior Discount
Notes shall be in form and substance reasonably satisfactory to the
Lenders) and the gross proceeds thereof have been contributed to the
Borrower, (ii) the Borrower has issued and sold at least $110,000,000 of
Senior Subordinated Notes (which Senior Subordinated Notes shall be in
form and substance reasonably satisfactory to the Lenders), (iii) the
Borrower has received cash capital contributions from the Parent in an
amount which is not less than $40,000,000, and (iv) the fees and expenses
incurred in connection with the Acquisition will not exceed $21,000,000
in the aggregate.
(q) Consents, Licenses and Approvals. The Borrower and its
Subsidiaries shall have obtained all consents and approvals of
Governmental Authorities and third parties necessary or reasonably
advisable in connection with the Acquisition, the Loans and other
extensions of credit hereunder and the continuing operations of the
Borrower and its Subsidiaries (after giving effect to the Acquisition),
including, without limitation, in respect of the Seller Subordinated
Notes; all such consents and approvals shall be in full force and effect
and all applicable appeal and waiting periods shall have expired without
any governmental or judicial action being taken or threatened that has
had or would be reasonably likely to have a Material Adverse Effect.
(r) The Acquisition. The Administrative Agent and the Lenders
shall be satisfied that (i) the Merger Agreement and all related
documentation shall have been duly executed and delivered by the parties
thereto in form and substance reasonably satisfactory to the
Administrative Agent and the Lenders, (ii) the Acquisition Documents
shall not have been amended, supplemented, waived or otherwise modified
in any material respect, except as contemplated by subsection 8.18, (iii)
the obligations of the parties thereto to be performed at or prior to the
purchase of the Tendered Shares (other than the payment of the purchase
price for the Tendered Shares) shall have been performed or complied with
by the Borrower, AcquisitionCo and ERO, except where the failure so to
comply or perform could not reasonably be expected to have a Material
Adverse Effect, (iv) the Board of Directors of ERO shall have approved
and/or recommended the Acquisition to the shareholders of ERO and (v) the
Tender Offer shall have been, or substantially simultaneously with the
funding hereof, shall be, consummated.
(s) Tender Offer. The material conditions to the Tender Offer
specified in the Offer to Purchase (as in effect on the date hereof)
shall have been and shall continue to be satisfied in all material
respects without amendment, supplement or waiver thereof, except as
contemplated by subsection 8.18;
(t) Tender of Minimum Shares. The Administrative Agent shall have
received evidence reasonably satisfactory to it that the portion of the
Shares beneficially owned by AcquisitionCo, together with the portion of
the Shares accepted for payment pursuant to the Tender Offer, is not less
than the amount necessary to permit the Merger to be consummated
60
55
without the affirmative vote of any shareholders other than the Borrower
and its Subsidiaries and there shall not have been a material change in
the number of Shares since the date of the Merger Agreement;
(u) Maximum Purchase Price. The Administrative agent shall have
received evidence reasonably satisfactory to it that the price per Share
paid by AcquisitionCo for the Tendered Shares is not in excess of $11.25;
and
(v) Borrowing Base Certificate. The Administrative Agent shall
have received a Borrowing Base Certificate, as of May 31, 1997, dated the
Closing Date and certified by a Responsible Officer of the Borrower.
(w) Existing Credit Agreement. All commitments to provide
extensions of credit under the Existing Credit Agreement shall have been
terminated, all amounts due and payable thereunder shall have been paid
in full, all Liens on assets of the Parent and its Subsidiaries securing
the Existing Credit Agreement shall have been released and all guarantees
of the Existing Credit Agreement provided by the Parent and its
Subsidiaries shall have been terminated, in each case, pursuant to
documentation satisfactory to the Administrative Agent.
(x) Solvency Opinion. The Administrative Agent shall have received
an opinion from Corporate Valuation Advisors with respect to the solvency
of the Borrower and its Subsidiaries (after giving effect to the
consummation of the Acquisition and the financings and other transactions
contemplated hereby) and a related on-going concern valuation, which
opinion and valuation shall be reasonably satisfactory in form and
substance to the Lenders.
9.2. Conditions to Each Loan. The agreement of each Lender to make
any Loan or other extension of credit requested to be made by it on any date
(including, without limitation, any Loan or other extension of credit to be
made on the Closing Date) is subject to the satisfaction of the following
conditions precedent:
(a) Representations and Warranties. Each of the representations
and warranties made by the Borrower and the other Credit Parties in or
pursuant to the Credit Documents shall be true and correct in all
material respects on and as of such date as if made on and as of such
date, except for any representation and warranty which is expressly made
as of an earlier date, which representation and warranty shall have been
true and correct in all material respects as of such earlier date.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Loans and
other extensions of credit requested to be made on such date.
(c) Borrowing Base. After giving effect to the extension of credit
requested to be made on such date, the Aggregate Outstanding Extensions
of Credit owing to all Lenders will not exceed the Borrowing Base then in
effect.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained
in this subsection have been satisfied.
61
56
SECTION X. AFFIRMATIVE COVENANTS
The Parent and the Borrower hereby agree that, so long as any
Commitments remain in effect or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Credit Document, the Parent
shall and (except in the case of delivery of financial information, reports and
notices) shall cause each of its Subsidiaries to:
10.1. Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 105 days after
the end of each fiscal year of the Borrower, a copy of the consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the
end of such year and the related consolidated statements of income and
retained earnings and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year except in the
case of the financial statements for the fiscal years ending December 31,
1997 and December 31, 1998, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope of
the audit, by Arthur Andersen LLP or other independent certified public
accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and retained
earnings and of cash flows of the Borrower and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through
the end of such quarter, setting forth in each case in comparative form
the figures for the previous year commencing with the fiscal quarter
ended September 30, 1998, certified by a Responsible Officer as being
fairly stated in all material respects (subject to normal year-end audit
adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
10.2. Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 10.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default relating to the covenants
contained in subsection 11.1, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 10.1(a) and (b), a certificate of a
Responsible Officer stating that, to the best of such Officer's
knowledge, during such period (i) no Subsidiary has been formed or
acquired (or, if any such Subsidiary has been formed or acquired, the
Borrower has complied with the requirements of subsection 10.10 with
respect thereto), (ii) neither the Borrower nor any of its Subsidiaries
has changed its name, its principal place of business, its chief
executive office or the location of any material item of tangible
Collateral without complying with the requirements of this Agreement and
(iii) each of the Borrower and its Subsidiaries has
62
57
observed or performed all of its covenants and other agreements, and
satisfied every condition, contained in this Agreement and the other
Credit Documents to be observed, performed or satisfied by it (and
including therein a reasonably detailed calculation of the Leverage Ratio
as of the last day of such period), in all material respects and that
such Responsible Officer has obtained no knowledge of any Default or
Event of Default except as specified in such certificate; in the case of
any such certificate delivered with respect to the financial statements
referred to in subsection 10.1(a), such certificate also shall contained
a reasonably detailed calculation of the amount of Excess Cash Flow for
the relevant fiscal year;
(c) not later than 30 days (or 45 days in respect of the months of
June, July and August of 1997) after the end of each fiscal month of the
Borrower (other than the third, sixth, ninth and twelfth such months), a
copy of the unaudited, internal, consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such month
and the related unaudited, internal, consolidated statements of income
and retained earnings and of cash flows of the Borrower and its
consolidated Subsidiaries for such month, certified by a Responsible
Officer as being fairly stated in all material respects (subject to
normal year-end audit adjustments);
(d) not later than forty-five days after the commencement of each
fiscal year of the Borrower, a copy of the projections by the Borrower of
the operating budget and cash flow budget of the Borrower and its
Subsidiaries for such fiscal year, such projections to be accompanied by
a certificate of a Responsible Officer to the effect that such
projections have been prepared in good faith based on reasonable
assumptions and that such Responsible Officer has no reason to believe
they are incorrect or misleading in any material respect, it being
recognized by the Lenders that such financial information as it relates
to future events is not to be viewed as fact and that actual results
during the period or periods covered by such financial information may
differ from the projected results set forth therein by a material amount;
(e) within five days after the same are sent, copies of all
financial statements and reports which the Borrower sends to its
stockholders, and within five days after the same are filed, copies of
all financial statements and reports which the Borrower may make to, or
file with, the SEC or any successor or analogous Governmental Authority;
(f) within 15 days after the end of each calendar month, a
Borrowing Base Certificate, certified by a Responsible Officer of the
Borrower as being true and accurate in all material respects as of such
end of such prior calendar month; and
(g) promptly, such additional financial and other information as
any Lender may from time to time reasonably request.
10.3. Payment of Obligations. Pay, discharge or otherwise satisfy
at or before maturity or before they become delinquent, as the case may be, all
its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or its Subsidiaries, as the case may be;
provided that notwithstanding the foregoing, Parent and each of its
Subsidiaries shall have the right to pay any such obligation and in good faith
contest, by proper legal actions or proceedings, the validity or amount of such
claims.
63
58
10.4. Conduct of Business and Maintenance of Existence. Except as
provided in subsection 11.5, continue to engage in business of the same general
type as now conducted by it and preserve, renew and keep in full force and
effect its corporate existence and take all reasonable action to maintain all
rights, privileges and franchises necessary or desirable in the normal conduct
of its business except if (i) in the reasonable business judgment of Parent or
such Subsidiary, as the case may be, it is in its best economic interest not to
preserve and maintain such rights or franchises, or (ii) such failure to
preserve and maintain such privileges, rights or franchises would not material
adversely affect the rights of the Lenders under the Credit Documents or the
value of the Collateral, as otherwise permitted pursuant to subsection 11.5;
comply with all Contractual Obligations and Requirements of Law except to the
extent that failure to comply therewith could not, in the aggregate, be
reasonably expected to have a Material Adverse Effect.
10.5. Maintenance of Property; Insurance. (a) Keep all property
useful and necessary in its business in good working order and condition;
maintain with financially sound and reputable insurance companies insurance
(including, without limitation, for any of the Mortgaged Properties located in
an area identified as a special flood hazard area by the Federal Emergency
Management Agency or other applicable agency, insurance that is written in an
amount not less than the outstanding principal amount of the indebtedness
secured by a Mortgage which is reasonably allocable to such real property or
the maximum limit of coverage made available with respect to the particular
type of property under the National Flood Insurance Act of 1968, whichever is
less) on all its property in at least such amounts and against at least such
risks as are usually insured against in the same general area by companies
engaged in the same or a similar business or otherwise reasonably requested by
the Administrative Agent; and furnish to each Lender, upon written request,
full information as to the insurance carried except to the extent that the
failure to do any of the foregoing with respect to any such property could not
reasonably be expected to materially adversely affect the value or usefulness
of such property.
(b) With respect to Inventory and Equipment (i) maintain, with
financially sound and reputable companies, insurance policies insuring the
Inventory and Equipment against loss by fire, explosion, theft and such other
casualties as may be reasonably satisfactory to the Administrative Agent and
(ii) insuring the Borrower, its Domestic Subsidiaries or Parent, as the case
may be, the Administrative Agent and the Lenders, against liability for
personal injury and property damage relating to such Inventory and Equipment,
such policies to be in such form and amounts and having such coverage as may be
reasonably satisfactory to the Administrative Agent and the Lenders.
(c) All such insurance shall (i) provide that no cancellation,
material reduction in amount or material change in coverage thereof shall be
effective until at least thirty (30) days after receipt by the Administrative
Agent of written notice thereof and (ii) if reasonably requested by the
Administrative Agent, include a breach of warranty clause. All such (i)
property insurance shall be payable to the Administrative Agent as loss payee
under a "standard" or "New York" loss payee clause for the benefit of the
Administrative Agent and the Lenders and (ii) liability insurance shall name
the Administrative Agent as an additional insured for the benefit of the
Administrative Agent and the Lenders.
10.6. Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records upon reasonable
advance notice and at any reasonable time on any Business Day and as often as
may reasonably be desired and to discuss
64
59
the business, operations, properties and financial and other condition of the
Borrower and its Subsidiaries with officers and employees of the Borrower and
its Subsidiaries and with its independent certified public accountants;
provided that the Administrative Agent or such Lender shall notify the Borrower
prior to any contact with such accountants and give Borrower the opportunity to
participate in such discussions.
10.7. Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the
Borrower or any of its Subsidiaries and any Governmental Authority, which
in either case, if not cured or if adversely determined, as the case may
be, could reasonably be expected to have a Material Adverse Effect;
(c) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any Single Employer Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or
a Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of
proceedings or the taking of any other action by the PBGC, the Borrower
or any Commonly Controlled Entity, or any Multiemployer Plan, with
respect to the withdrawal from, or the terminating, Reorganization or
Insolvency of, any Single Employer Plan or Multiemployer Plan;
(d) Such Credit Party will advise the Administrative Agent and the
Lenders promptly, in reasonable detail, of:
(i) any Lien (other than Liens permitted by subsection 11.3)
on any of the Collateral which would adversely affect the ability of the
Administrative Agent to exercise any of its remedies pursuant to the
Master Guarantee and Collateral Agreement; or
(ii) of the occurrence of any other event which could
reasonably be expected to have a material adverse effect on the aggregate
value of the Collateral or on the security interests created pursuant to
the Master Guarantee and Collateral Agreement;
(e) Such Credit Party will notify the Administrative Agent and the
Lenders immediately if it knows, or has reason to know, that any
application or registration relating to any material Intellectual
Property may become forfeited, abandoned or dedicated to the public, or
of any adverse determination or development (including, without
limitation, the institution of, or any such determination or development
in, any proceeding in the United States Patent and Trademark Office, the
United States Copyright Office or any court or tribunal in any country)
regarding such Credit Party's ownership of, or the validity of, any
material Intellectual Property or such Credit Party's right to register
the same or to own and maintain the same;
(f) Whenever such Credit Party, either by itself or through any
agent, employee, licensee or designee, shall file an application for the
registration of any Intellectual Property with the United States Patent
and Trademark Office, the United States Copyright Office or
65
60
any similar office or agency in any other country or any political
subdivision thereof, such Credit Party shall report such filing to the
Administrative Agent within five Business Days after the last day of the
fiscal quarter in which such filing occurs and such Credit Party shall
execute and deliver, and have recorded, any and all agreements,
instruments, documents, and papers as are necessary or as the
Administrative Agent may reasonably request to evidence the
Administrative Agent's and the Lenders' security interest in any
Copyright, Patent or Trademark and the goodwill and general intangibles
of such Credit Party relating thereto or represented thereby;
(g) reasonably promptly upon obtaining knowledge of the institution
of any proceedings for the condemnation of any of the Mortgaged
Properties or any portion thereof (the value of which exceeds
$1,000,000), the Borrower will notify the Administrative Agent of the
pendency of such proceedings;and
(h) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto.
10.8. Environmental Laws. Except to the extent the failure to do
so could not reasonably be expected to have a Material Adverse Effect: (a)
comply in all material respects with, and will use its reasonable efforts to
ensure compliance in all material respects by all tenants and subtenants, if
any, with, all applicable Environmental Laws; and
(b) conduct and complete (or cause to be conducted and completed)
all investigations, studies, sampling and testing, and all remedial, removal
and other actions required under Environmental Laws and in a timely fashion
comply in all material respects with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws, except to the extent
that the same are being contested in good faith by appropriate proceedings and
the pendency of such proceedings could not be reasonably expected to have a
Material Adverse Effect.
10.9. Further Assurances. Upon the reasonable request of the
Administrative Agent, promptly perform or cause to be performed any and all
acts and execute or cause to be executed any and all documents (including,
without limitation, financing statements and continuation statements) for
filing under the provisions of the Uniform Commercial Code or any other
Requirement of Law which are necessary or advisable to maintain in favor of the
Administrative Agent, for the benefit of the Lenders, Liens on the Collateral
that are duly perfected in accordance with all applicable Requirements of Law.
10.10. Additional Collateral. (a) With respect to any assets
(with a fair market value in excess of $1,000,000, provided that the Lenders
may at any time request that the Borrower comply with the requirements of this
subsection 10.10 (a) with respect to any assets (other than real property with
a fair market value less than $1,000,000) having a lesser fair market value)
acquired or created after the Closing Date by the Borrower or any of its
Domestic Subsidiaries that are intended to be subject to the Lien created by
any of the Security Documents but which are not so subject (other than (x) any
assets described in paragraph (b) or (c) of this subsection, (y) property
subject to a lien permitted by subsections 11.3(g) and (h) or 11.14(b) and (z)
immaterial assets a Lien on which cannot be perfected by filing UCC-1 financing
statements or by filings in the United States Patent and
66
61
Trademark Office), promptly (and in any event within 30 days after the creation
or acquisition thereof): (i) execute and deliver to the Administrative Agent
such amendments to the relevant Security Documents or such other documents as
the Administrative Agent shall deem necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a Lien on such assets,
(ii) take all actions necessary or advisable to cause such Lien to be duly
perfected in accordance with all applicable Requirements of Law, including,
without limitation, the filing of financing statements in such jurisdictions as
may be reasonably requested by the Administrative Agent, and (iii) if requested
by the Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described in clauses (i) and (ii) immediately
preceding, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent; provided, however, that,
with respect to any Intellectual Property (each such term, as defined in the
Master Guarantee and Collateral Agreement) acquired or created by the Borrower
or any of its Domestic Subsidiaries after the Closing Date, the foregoing
documentation need only be provided within 10 Business Days following the last
day of the fiscal quarter of the Borrower in which such Intellectual Property
was so acquired or created.
(b) With respect to any Person that, subsequent to the Closing
Date, becomes a Domestic Subsidiary, promptly upon the request of the
Administrative Agent: (i) execute and deliver to the Administrative Agent, for
the benefit of the Lenders, a new pledge agreement or such amendments to the
Master Guarantee and Collateral Agreement as the Administrative Agent shall
deem necessary or advisable to grant to the Administrative Agent, for the
benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is
owned by the Borrower or any of its Domestic Subsidiaries, (ii) deliver to the
Administrative Agent the certificates representing such Capital Stock, together
with undated stock powers executed and delivered in blank by a Responsible
Officer of the Borrower or such Domestic Subsidiary, as the case may be, (iii)
cause such new Subsidiary (A) to become a party to the Master Guarantee and
Collateral Agreement, pursuant to documentation which is in form and substance
reasonably satisfactory to the Administrative Agent, and (B) to take all
actions necessary or advisable to cause the Lien created by the Master
Guarantee and Collateral Agreement to be duly perfected in accordance with all
applicable Requirements of Law, including, without limitation, the filing of
financing statements in such jurisdictions as may be reasonably requested by
the Administrative Agent and (iv) if requested by the Administrative Agent,
deliver to the Administrative Agent legal opinions relating to the matters
described in clauses (i), (ii) and (iii) immediately preceding, which opinions
shall be in form and substance, and from counsel, reasonably satisfactory to
the Administrative Agent.
(c) With respect to any Person that, subsequent to the Closing
Date, becomes a Foreign Subsidiary and which has Capital Stock which is owned
directly by the Borrower or a Domestic Subsidiary, promptly upon the request of
the Administrative Agent: (i) execute and deliver to the Administrative Agent
a new Foreign Pledge Agreement or such amendments to the relevant Foreign
Pledge Agreement as the Administrative Agent shall deem necessary or advisable
to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on
the Capital Stock of such Subsidiary which is owned by the Borrower or any of
its Subsidiaries (provided that in no event shall more than 65% of the Capital
Stock of any such Subsidiary be required to be so pledged), (ii) to the extent
reasonably deemed advisable by the Administrative Agent, deliver to the
Administrative Agent any certificates representing such Capital Stock, together
with undated stock powers executed and delivered in blank by a Responsible
Officer of the Borrower or such Subsidiary, as the case may be, (iii) take or
cause to be taken all such other actions under the law of the jurisdiction of
organization of such Foreign Subsidiary as may be necessary or advisable to
perfect such Lien on such Capital Stock and (iv) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described in clauses (i) through (iii) immediately
preceding, which
67
62
opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
10.11. Consummation of Merger. The Borrower shall cause the Merger
to be consummated in accordance with the terms of the Acquisition Documents and
applicable Requirements of Law as soon as is practicable following the
consummation of the Tender Offer, and to comply in all material respects with
the obligations of the Borrower and AcquisitionCo under the Acquisition
Documents.
10.12. Covenants in respect of the Collateral. (a) If any amount
in excess of $1,000,000 payable under or in connection with any of the
Collateral shall be or become evidenced by any Instrument or Chattel Paper,
such Instrument or Chattel Paper shall be immediately delivered to the
Administrative Agent, duly indorsed in a manner satisfactory to the
Administrative Agent, to be held as Collateral pursuant to the Master Guarantee
and Collateral Agreement.
(b) Such Credit Party will not:
(i) permit any of the Inventory or Equipment to be kept at a
location other than as listed on Schedule 8.19(c) (other than temporary
relocations of Equipment in connection with repairs thereto);
(ii) change the location of its chief executive office or
sole place of business from that referred to on Schedule 8.19(b); or
(iii) change its name, identity or corporate structure to
such an extent that any financing statement filed by the Administrative
Agent in connection with the Master Guarantee and Collateral Agreement
would become misleading;
except to the extent that such Credit Party shall have given to the
Administrative Agent 15 days' prior written notice thereof and taken such
action as is necessary or as the Administrative Agent reasonably shall have
requested to maintain the perfection and the priority of the Liens and security
interests granted pursuant to the Master Guarantee and Collateral Agreement.
SECTION XI. NEGATIVE COVENANTS
The Parent and the Borrower hereby agree that, so long as any
Commitments remain in effect or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Credit Document, the Parent
shall not, and (except with respect to subsection 11.1) shall not permit any of
its Subsidiaries to, directly or indirectly:
11.1. Financial Condition Covenants.
(a) Minimum Interest Coverage Ratio. Permit the ratio (the
"Consolidated Interest Coverage Ratio") of (i) Borrower's Consolidated
EBITDA for any period (commencing with respect to the fiscal quarter
ended on or about September 30, 1997) of four consecutive fiscal quarters
ending as of the end of any of the fiscal periods set forth below to (ii)
Borrower's Consolidated Interest Expense for such period, to be less than
the ratio set forth opposite such period below:
68
63
Period Ratio
------ -----
Third Fiscal Quarter 1997 1.7 to 1.00
Fourth Fiscal Quarter 1997 1.8 to 1.00
First Fiscal Quarter 1998 1.8 to 1.00
Second Fiscal Quarter 1998 1.9 to 1.00
Third Fiscal Quarter 1998 2.0 to 1.00
Fourth Fiscal Quarter 1998 2.15 to 1.00
First Fiscal Quarter 1999 2.25 to 1.00
Second Fiscal Quarter 1999 2.30 to 1.00
Third Fiscal Quarter 1999 2.35 to 1.00
Fourth Fiscal Quarter 1999 2.45 to 1.00
First Fiscal Quarter 2000 2.55 to 1.00
Second Fiscal Quarter 2000 2.65 to 1.00
Third Fiscal Quarter 2000 2.75 to 1.00
Fourth Fiscal Quarter 2000 2.85 to 1.00
First Fiscal Quarter 2001 2.95 to 1.00
Second Fiscal Quarter 2001 3.05 to 1.00
Third Fiscal Quarter 2001 3.15 to 1.00
Fourth Fiscal Quarter 2001 3.30 to 1.00
First Fiscal Quarter 2002 3.40 to 1.00
Second Fiscal Quarter 2002 - thereafter 3.50 to 1.00
69
64
(b) Maximum Leverage Ratio. Permit the Leverage Ratio as of the
end of any of the fiscal periods set forth below to be more than the
ratio set forth below opposite such period:
Period Ratio
------ -----
Third Fiscal Quarter 1997 5.85 to 1.00
Fourth Fiscal Quarter 1997 5.50 to 1.00
First Fiscal Quarter 1998 5.50 to 1.00
Second Fiscal Quarter 1998 5.20 to 1.00
Third Fiscal Quarter 1998 5.00 to 1.00
Fourth Fiscal Quarter 1998 4.65 to 1.00
First Fiscal Quarter 1999 4.40 to 1.00
Second Fiscal Quarter 1999 4.30 to 1.00
Third Fiscal Quarter 1999 4.20 to 1.00
Fourth Fiscal Quarter 1999 4.00 to 1.00
First Fiscal Quarter 2000 3.80 to 1.00
Second Fiscal Quarter 2000 3.70 to 1.00
Third Fiscal Quarter 2000 3.60 to 1.00
Fourth Fiscal Quarter 2000 3.40 to 1.00
First Fiscal Quarter 2001 3.30 to 1.00
Second Fiscal Quarter 2001 3.20 to 1.00
Third Fiscal Quarter 2001 3.10 to 1.00
Fourth Fiscal Quarter 2001 2.90 to 1.00
First Fiscal Quarter 2002 2.80 to 1.00
Second Fiscal Quarter 2002 2.70 to 1.00
Third Fiscal Quarter 2002 2.60 to 1.00
Fourth Fiscal Quarter 2002 - thereafter 2.40 to 1.00
Notwithstanding anything to the contrary herein, for the purposes of
determining the Leverage Ratio and the Consolidated Interest Coverage Ratio for
the periods ending on or about September 30, 1997 and December 31, 1997, (i)
Consolidated EBITDA for the relevant period shall be deemed to equal actual
Consolidated EBITDA for such period (commencing with the period ended on or
about June 30, 1997) plus $20,000,000 and $7,500,000, respectively; and (ii)
Consolidated Interest Expense for the relevant period shall be deemed to equal
actual Consolidated Interest Expense for such period (since on or about July 1,
1997) multiplied by 4, 2 and 4/3, respectively.
11.2. Limitation on Indebtedness. Create, incur, assume or suffer
to exist any Indebtedness, except:
(a) Indebtedness of the Credit Parties under the Credit Documents;
(b) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary in respect of
intercompany loans and transfers of goods;
(c) Indebtedness of the Borrower or any of its Subsidiaries (i) in
respect of obligations under Financing Leases as permitted by subsection
11.9 and (ii) in respect of purchase money obligations in an amount not
to exceed $5,000,000;
70
65
(d) Indebtedness outstanding on the date hereof and listed on
Schedule 11.2(d) and any refinancings, refundings, renewals or extensions
thereof which do not materially increase the aggregate principal amount
thereof or interest due thereon ;
(e) Indebtedness of a corporation which becomes a Subsidiary after
the date hereof, provided that (i) such indebtedness existed at the time
such corporation became a Subsidiary and was not created in anticipation
thereof and (ii) immediately after giving effect to the acquisition of
such corporation by the Borrower no Default or Event of Default shall
have occurred and be continuing;
(f) Indebtedness of the Borrower or its Subsidiaries on account of
industrial revenue bonds in an aggregate principal amount not to exceed
$3,500,000 at any one time outstanding; provided that neither the Parent
nor any Subsidiary thereof shall, directly or indirectly, guarantee such
Indebtedness;
(g) Indebtedness of the Borrower and its Subsidiaries under
Interest Rate Agreements entered into in the ordinary course of business
for nonspeculative purposes;
(h) Indebtedness of the Borrower on account of the Senior
Subordinated Notes;
(i) additional Indebtedness of the Borrower and its Subsidiaries
not exceeding $5,000,000 in aggregate principal amount at any one time
outstanding;
(j) Indebtedness resulting from the endorsement of negotiable
instruments in the ordinary course of business;
(k) Indebtedness of the Credit Parties subject to Liens permitted
under subsection 11.3(a), (b), (c) and (d);
(l) Indebtedness incurred in connection with the sale of the
accounts receivable of Parent and its Subsidiaries in connection with the
trade receivables financing transaction otherwise permitted under
subsection 11.6(k);
(m) unsecured Indebtedness of the Subsidiaries of Parent to the
seller in any Permitted Acquisition in an aggregate principal amount
outstanding at any time not to exceed $5,000,000;
(n) Indebtedness of Parent pursuant to (i) the Seller Subordinated
Note in an original principal amount of $2,500,000 (it being understood
and agreed that neither Parent nor any Subsidiary of Parent shall be
permitted to directly or indirectly guarantee the Seller Subordinated
Note) or (ii) the Senior Discount Notes;
(o) upon the earlier to occur of (i) the Termination Date and (ii)
or the date on which the Aggregate Revolving Credit Commitments are
terminated pursuant to subsection 7.5, Indebtedness of the Borrower and
its Subsidiaries in respect of an unsecured revolving credit facility in
an aggregate principal amount not to exceed $70,000,000, provided that
the Borrower shall have repaid all Revolving Credit Loans and L/C
Obligations in accordance with the terms of this Agreement and that there
are no Letters of Credit outstanding at such time;
71
66
(p) Indebtedness in respect of a revolving credit facility for the
purpose of funding the working capital needs in the ordinary course of
business of any Subsidiaries of the Borrower organized in Canada in
Canadian dollars; provided that (i) the U.S.$ equivalent (determined in
good faith by the Borrower) of the aggregate outstanding principal amount
thereof (the "Canadian Subsidiary Equivalent Outstandings") shall not
exceed $20,000,000 at any one time and (ii) on the date of any incurrence
thereof, after giving effect thereto, the sum of the Canadian Subsidiary
Equivalent Outstandings and the Aggregate Outstanding Extensions of
Credit of all Revolving Credit Lenders shall not exceed the Aggregate
Revolving Credit Commitment; and
(q) Indebtedness incurred by Parent and/or the Borrower on terms
and conditions reasonably satisfactory to the Required Lenders so long as
the proceeds thereof are simultaneously used to make payments on the
Seller Subordinated Notes.
11.3. Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings, provided that adequate reserves
with respect thereto are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP (or, in the
case of Foreign Subsidiaries, generally accepted accounting principles in
effect from time to time in their respective jurisdictions of
incorporation);
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, landlord's or other like Liens arising in the ordinary
course of business which are not overdue for a period of more than 60
days or which are being contested in good faith by appropriate
proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or
self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances (i) incurred in the ordinary course of business of the
Borrower or its Subsidiaries which, in the aggregate, are not substantial
in amount and which do not in any case materially detract from the value
of the property subject thereto or materially interfere with the ordinary
conduct of the business of the Borrower or such Subsidiary and (ii) which
are set forth in the marked up commitments for title insurance or title
policies delivered to the Administrative Agent on the Closing Date or
thereafter;
(f) Liens in existence on the date hereof listed on Schedule
11.3(f) securing Indebtedness permitted by subsection 11.2(d), provided
that no such Lien is spread to cover any additional property (other than
after acquired title in or on such property and proceeds of the existing
collateral in accordance with the instrument creating such Lien) after
the Closing Date and that the amount of Indebtedness secured thereby is
not increased, except pursuant to the instrument creating such Lien
(without any modification thereof) except as set forth in subsection
11.2(d);
72
67
(g) Liens securing Indebtedness of the Borrower and its
Subsidiaries permitted by subsection 11.2(c) in respect of Financing
Leases and purchase money Liens incurred solely for the purpose of
financing the acquisition of such property, and Liens existing on such
property at the time of its acquisition;
(h) Liens on property at the time of its acquisition or existing on
property or assets of a Person which becomes a Subsidiary after the date
hereof securing Indebtedness permitted by subsection 11.2(e), provided
that (i) such Liens existed at the time of such acquisition or at the
time such Person became a Subsidiary and were not created in anticipation
thereof, (ii) any such Lien is not spread to cover any additional
property or assets, including property or assets of such corporation
after the time such corporation becomes a Subsidiary, and (iii) the
amount of Indebtedness secured thereby is not increased except as
permitted by this Agreement;
(i) Liens created pursuant to the Security Documents;
(j) Liens arising from precautionary UCC financing statement
filings regarding operating leases or consignment arrangements entered
into by the Borrower and its Subsidiaries in the ordinary course of
business;
(k) Liens in favor of banking institutions arising as a matter of
law and encumbering the deposits (including the right of setoff) held by
such banking institutions in the ordinary course of business and which
are within the general parameters customary in the banking industry;
(l) Liens in favor of customs and revenue authorities arising as a
matter of law to secure the payment of customs duties in connection with
the importation of goods by the Borrower or its Subsidiaries;
(m) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to the Borrower and all Subsidiaries)
$1,000,000 in aggregate amount at any time outstanding;
(n) Liens on property of Parent or any of its Subsidiaries in favor
of landlords securing licenses, subleases or leases permitted hereunder;
(o) licenses, leases and subleases permitted hereunder granted to
others not interfering in any material respect in the business of Parent
or any of its Subsidiaries;
(p) attachment or judgment Liens (other than judgment Liens paid or
fully covered by insurance) which are not outstanding for more than sixty
(60) days in an aggregate amount outstanding at any one time not in
excess of $5,000,000;
(q) Liens arising from the sale of accounts receivable of
Subsidiaries of Parent in connection with a trade receivables financing
transaction otherwise permitted under subsection 11.6(k);
(r) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by
the Borrower or any of its Subsidiaries in
73
68
the ordinary course of business in accordance with the past practices of
the Borrower and its Subsidiaries;
(s) deposits to secure statutory obligations in the form of excise
taxes;
(t) Liens arising out of barter transactions or arrangements for
the sale or purchase of goods or services entered into by the Borrower or
any of its Subsidiaries in the ordinary course of business in accordance
with the past practices of the Borrower and its Subsidiaries; and
(u) Liens securing Indebtedness permitted by subsection 11.2(p) on
the assets of the debtor in respect thereof.
11.4. Limitation on Guarantee Obligations. Create, incur, assume
or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the date hereof and
listed on Schedule 11.4(a) and extensions, renewals and replacements
thereof, provided that no such extension, renewal or replacement shall
materially (i) increase the principal amount of such Indebtedness
guaranteed by such Person or (ii) amend or modify the subordination
provisions, if any, contained in such guarantee in a manner adverse to
the Lenders.
(b) Guarantee Obligations incurred after the date hereof in an
aggregate amount not to exceed $1,000,000 at any one time outstanding;
(c) indemnities and guarantees (other than guarantees of
Indebtedness (other than Indebtedness of Subsidiaries of the Parent
permitted hereunder)) made in the ordinary course of business of the
Parent and its Subsidiaries, provided such indemnities or guarantees
could not individually or in the aggregate have a Material Adverse
Effect;
(d) the Master Guarantee and Collateral Agreement;
(e) indemnities of the Parent and its Subsidiaries in favor of the
companies issuing title insurance policies insuring the title to any
property to induce such issuance;
(f) surety bonds issued in respect of the type of obligations
described in subsection 11.3(d);
(g) indemnities made in the Credit Documents, the Acquisition
Documents and in the monitoring and oversight agreement and the financial
advisory agreement described in subsection 11.8(a)(iv) and in the
corporate charter and/or bylaws of Parent or any of its Subsidiaries; and
(h) unsecured senior guarantee of Parent and the unsecured senior
subordinated guarantee of the Subsidiaries of Borrower, in each case,
under the Senior Subordinated Notes.
11.5. Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all of its property,
business or assets, or make any material change in its present method of
conducting business, except:
74
69
(a) any Subsidiary of the Borrower may be merged or consolidated
with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any one or more
wholly owned Subsidiaries of the Borrower (provided that the wholly owned
Subsidiary or Subsidiaries shall be the continuing or surviving
corporation); and
(b) any Subsidiary of the Borrower may sell, lease, transfer or
otherwise dispose of all or substantially all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or any wholly owned
Subsidiary of the Borrower or liquidate or dissolve if, in connection
therewith, all of its assets are transferred to a Credit Party (other
than the Parent).
11.6. Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person other than the
Borrower or any wholly owned Subsidiary, except:
(a) the sale or other disposition of obsolete or worn out property
in the ordinary course of business or property that is no longer useful
in the conduct of the business of the Borrower and its Subsidiaries;
(b) the sale, transfer or exchange of inventory in the ordinary
course of business of the Borrower or its Subsidiaries;
(c) the sale or other disposition of any property (other than
assets described in clauses (a) and (b) above) in the ordinary course of
business of the Borrower or its Subsidiaries, provided that the aggregate
book value of all assets so sold or disposed of shall not exceed
$4,000,000 in any fiscal year and $12,000,000 in the aggregate for the
duration of this Agreement;
(d) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business of the Borrower or its
Subsidiaries in connection with the compromise or collection thereof;
(e) licenses or sublicenses by Parent and its Subsidiaries of
software, trademarks and other intellectual property and general
intangibles and leases, licenses or subleases of other property in the
ordinary course of business and which do not materially interfere with
the business of Parent or any Subsidiary.
(f) Hedstrom (U.K.) Limited, an English corporation with
Registration Number 2721630, may sell accounts receivable pursuant to
that certain Factoring Deed, dated March 9, 1993, among Hedstrom (U.K.)
Limited, Hedstrom Corporation and Barclays Commercial Services Limited
(and any replacement facility at a similar amount and on substantially
similar terms);
(g) as permitted by subsection 11.5(b);
(h) intercompany sales or transfers of assets to the Borrower and
its Subsidiaries made in the ordinary course of business of the Borrower
or its Subsidiaries;
75
70
(i) any consignment arrangements or similar arrangements for the
sale of assets in the ordinary course of business of the Borrower or its
Subsidiaries;
(j) transfers resulting from any casualty or condemnation of
property or assets;
(k) the sale of the accounts receivable of Subsidiaries of Parent
in connection with the trade receivable financing transaction reasonably
acceptable to the Administrative Agent; provided that all of the Net
Proceeds of each such sale are applied to the mandatory prepayment of the
Tranche A Loans and the Tranche B Loans as required by subsection 7.5(g);
and
(l) Asset Swaps by the Borrower or its Subsidiaries with respect to
assets with an aggregate fair market value not to exceed $1,000,000 per
fiscal year.
Any Collateral which is sold, transferred or otherwise conveyed pursuant to
this subsection 11.6 to a Person other than the Parent and its Subsidiaries
shall, upon the consummation of such sale in accordance with the terms of this
Agreement and the other Credit Documents, be released from the Liens granted
pursuant to the Security Documents and each Lender hereby authorizes and
instructs the Administrative Agent to take such action as the Borrower
reasonably may request to evidence such release.
11.7. Intentionally Deleted.
11.8. Limitation on Dividends. Declare or pay any dividend (other
than dividends payable solely in common stock of Parent or the Borrower) on, or
make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of Capital Stock of Parent or the
Borrower or any warrants or options to purchase any such Capital Stock, whether
now or hereafter outstanding, or make any other distribution in respect
thereof, either directly or indirectly, whether in cash or property or in
obligations of the Borrower or any Subsidiary (such declarations, payments,
setting apart, purchases, redemptions, defeasances, retirements, acquisitions
and distributions being herein called "Restricted Payments"), except that:
(a) the Borrower may make Restricted Payments to Parent, so long as
(except with respect to clause (iii) below or with respect to clause (iv)
below such a Restricted Payment may be made except when an Event of
Default which relates to a payment default pursuant to Section 12(a) has
occurred and is continuing) no Event of Default has occurred or is
continuing after giving effect to such Restricted Payment:
(i) the proceeds of which shall be used to pay the
reasonable overhead of Parent (including out of pocket expenses for
administrative, legal and accounting services or to pay franchise
fees or similar costs) in an amount not to exceed $1,000,000 per
year;
(ii) payments, the proceeds of which will be used to
repurchase the Capital Stock or other securities of Parent from
outside directors, employees or members of management of Parent or
any Subsidiary, at a price not in excess of fair market value, in an
aggregate amount not in excess of $2,500,000 in any fiscal year of
the Borrower and $5,000,000 in the aggregate for the duration of
this Agreement,
76
71
net of the proceeds received by the Borrower as a result of any
resales of any such Capital Stock or other securities;
(iii) payments, the proceeds of which will be used to pay
taxes of Parent as part of a consolidated group;
(iv) payments, the proceeds of which will be used to pay
management fees to Hicks Muse & Co. Partners, L.P. in accordance
with the terms of its monitoring and oversight agreement and the
financial advisory agreement;
(v) if such Restricted Payment is a purchase of Capital
Stock or a distribution to Parent to permit Parent to purchase its
Capital Stock, in either case, made in order to fulfil the
obligations of Parent, the Borrower or any Subsidiary under an
employee stock purchase plan or similar plan covering employees of
Parent or any Subsidiary as from time to time in effect in an
aggregate net amount not to exceed $1,000,000; and
(vi) payments, the proceeds of which will be used to
make payments on the Senior Discount Notes or Seller Subordinated
Notes if permitted hereunder, including, but not limited to,
prepayments or repurchases of the Seller Subordinated Notes or the
Senior Discount Notes permitted by subsection 11.16(b).
(b) any Subsidiary of the Borrower may make Restricted Payments to
the Borrower or to its Subsidiaries;
(c) Permitted Issuances may be made.
11.9. Limitation on Capital Expenditures. Make or commit to make
(by way of the acquisition of securities of a Person or otherwise) any Capital
Expenditure except for:
(a) expenditures in the ordinary course of business of the Borrower
or its Subsidiaries not exceeding, in the aggregate for the Borrower and
its Subsidiaries, $10,000,000 during any fiscal year of the Borrower;
provided that up to $4,000,000 of such amount which is not so expended in
the fiscal year for which it is permitted above may be carried-over to
increase the amount permitted for the next fiscal year of the Borrower;
and
(b) in addition to the Capital Expenditures permitted pursuant to
paragraph (a) of this subsection, to the extent such proceeds are not
otherwise utilized pursuant to subsection 11.10(k) or (m) or 11.16(b),
the Borrower and its Subsidiaries may make additional Capital
Expenditures (which shall not be counted in the limitations set forth in
paragraph (a) of this subsection 11.9) consisting of the investment of
(i) Excess Cash Flow generated during the prior fiscal years of this
Agreement and not required to be applied pursuant to subsection 7.5(e)
and (ii) the proceeds of Contributed Equity.
11.10. Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment (collectively, an
"Investment") in, any Person, except :
77
72
(a) extensions of trade credit by the Borrower or its Subsidiaries
in the ordinary course of business;
(b) the Acquisition;
(c) loans and advances to directors, officers and employees of the
Parent or its Subsidiaries in an aggregate amount for the Borrower and
its Subsidiaries not to exceed $1,000,000 at any one time outstanding;
and
(d) Investments by Parent and its Subsidiaries in, and loans,
advances and capital contributions by Parent to, its Subsidiaries
(including any reasonable investment or capital contribution in
connection with the formation of such Subsidiary) and investments by such
Subsidiaries in, and loans, advances and capital contributions by
Subsidiaries to, the Borrower and other Subsidiaries; provided that (i)
the Borrower and its Subsidiaries (other than Subsidiaries of ERO) shall
not be permitted to make any investments in, or loans, advances or
capital contributions to, ERO and its Subsidiaries until such time as the
Borrower has purchased not more than 75% of the issued and outstanding
Capital Stock of ERO pursuant to the Tender Offer and (ii) to the extent
the Subsidiary into which any such an investment is made is not a Credit
Party, such investment shall be limited to the reasonable capitalization
of a Subsidiary organized in connection with a trade receivable financing
transaction permitted by subsection 11.6(k);
(e) Investments by the Credit Parties in cash or Cash Equivalents;
(f) Investments in existence on the date hereof and listed on
Schedule 11.10(f) and any extensions, renewals, modifications or
restatements or replacements thereof provided that no such extensions,
renewal, modification, restatement or replacement shall increase the
amount of the original loan, advance or investment;
(g) promissory notes and other noncash consideration received by
the Borrower and its Subsidiaries in connection with asset sales
permitted by subsection 11.6;
(h) Investments permitted by subsections 11.4, 11.8 and 11.9;
(i) Investments by the Borrower and its Subsidiaries in Interest
Rate Agreements entered into in the ordinary course of business for
nonspeculative purposes;
(j) Investments (including debt obligations and Capital Stock) by
Parent and its Subsidiaries received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising
in the ordinary course of business;
(k) so long as after giving effect thereto no Default or Event of
Default shall have occurred and be continuing, Investments after the
Closing Date by Subsidiaries of Parent resulting from Permitted
Acquisitions in an aggregate amount (which may include Indebtedness
permitted by subsection 11.2(m)) not to exceed the sum of (A) $5,000,000,
(B) the amount of common stock of Parent issued subsequent to the
Effective Date in connection with Permitted Acquisitions, (C) the portion
of Excess Cash Flow for all prior fiscal years ended during the term of
this Agreement not required to be prepaid pursuant to subsection 7.5(e)
and (D) the proceeds of Contributed Equity, in the case of clauses (C)
and (D), to the
78
73
extent said amounts have not been utilized for other purposes permitted
by subsection 11.9(b), 11.10(m) or 11.16(b), provided, that (i) such
actions as may be required or reasonably requested to ensure that the
Administrative Agent, for the ratable benefit of the Lenders, has a
perfected first priority security interest in any assets acquired,
subject to Liens permitted by subsection 11.3, shall have been taken and
(ii) (I) on a pro forma basis for the period of four consecutive fiscal
quarters most recently ended (assuming the consummation of such Permitted
Acquisition and the incurrence or assumption of any Indebtedness in
connection therewith occurred on the first day of such period of four
consecutive fiscal quarters), the Borrower shall be in compliance with
the covenants contained in subsection 11.1 and (II) the Administrative
Agent shall have received calculations in reasonable detail reasonably
satisfactory to it showing compliance with the requirements of this
clause (ii) certified by a Responsible Officer of the Borrower;
(l) in addition to the foregoing, Investments by Subsidiaries of
Parent in an aggregate amount not to exceed $3,000,000 (at cost, without
regard to any write up or write down thereof) at any one time
outstanding; and
(m) in addition to the Investments permitted pursuant to this
subsection 11.10, to the extent such proceeds are not otherwise utilized
pursuant to subsection 11.9(b) or 11.10(k), the Subsidiaries of Parent
may make additional Investments (which shall not be counted in the
limitations set forth above) as follows: (i) Investments consisting of
the investment of Net Proceeds not required to be applied to prepay the
Tranche A Loans or Tranche B Loans pursuant to subsection 7.5, including
(x) with respect to the investment of proceeds of the insurance and
condemnation proceeds not required to prepay the Tranche A Loans or
Tranche B Loans pursuant to subsection 7.5 and (y) with respect to the
investment of proceeds of the sale of assets which are permitted pursuant
to subsection 11.6; (ii) to the extent said proceeds are not otherwise
utilized pursuant to subsection 11.9(b), 11.10(k) or 11.16(b),
Investments consisting of the investment of Excess Cash Flow for all
prior fiscal years ended during the term of this Agreement and not
required to be applied pursuant to subsection 7.5(e) and (iii)
Investments of the proceeds of Contributed Equity.
11.11. Limitation on Transactions with Affiliates. (a) Enter into
any transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (i) otherwise permitted under this Agreement, (ii) (x) in
the ordinary course of the Parent or any Subsidiary's business and (y) upon
fair and reasonable terms no less favorable to the Parent or such Subsidiary,
as the case may be, than it would obtain in a comparable arm's length
transaction with a Person which is not an Affiliate.
(b) In addition, notwithstanding the foregoing, Parent and its
Subsidiaries shall be entitled to make the following payments and/or to enter
into the following transactions:
(i) the payment of reasonable and customary fees and
reimbursement of expenses payable to directors of Parent;
(ii) the payment to Hicks Muse & Co. Partners, L.P. of fees
and expenses pursuant to a monitoring and oversight agreement and a
financial advisory agreement approved by the board of directors of
Parent; and
79
74
(iii) the employment arrangements with respect to the
procurement of services of directors, officers and employees in the
ordinary course of business and the payment of reasonable fees in
connection therewith.
11.12. Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by Parent or any of its
Subsidiaries of real or personal property which has been or is to be sold or
transferred by Parent or such Subsidiary to such Person or to any other Person
to whom funds have been or are to be advanced by such Person on the security of
such property or rental obligations of the Borrower or such Subsidiary;
provided that this subsection 11.12 shall not prohibit any sale and leaseback
resulting from the incurrence of any lease in respect of any capital asset
entered into within 120 days of the acquisition of such capital asset for the
purpose of providing permanent financing of such capital asset.
11.13. Limitation on Changes in Fiscal Year and Reporting Policy.
(i) Permit the fiscal year of the Borrower to end on a day other than December
31 or (ii) change its reporting policy for determining the duration and end
date for its fiscal quarters; provided Parent may change such fiscal year or
reporting policy upon the approval of the Administrative Agent.
11.14. Limitation on Negative Pledge Clauses. Enter into with any
Person any agreement, other than (a) this Agreement and the other Credit
Documents and (b) any industrial revenue bonds, purchase money mortgages or
Financing Leases permitted by this Agreement (in which cases, any prohibition
or limitation shall only be effective against the assets financed thereby)
which prohibits or limits the ability of the Borrower or any of its
Subsidiaries to create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired.
11.15. Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for those businesses in which
the Borrower and its Subsidiaries are engaged on the date of this Agreement or
which are reasonably related thereto.
11.16. Limitation on Modification of Agreements and Payments on
Account of Debt. (a) Amend, waive, supplement or otherwise modify in any
material respect any agreement governing the Senior Discount Notes, the Senior
Subordinated Notes or the Seller Subordinated Notes:
(i) which amends or modifies the subordination provisions
contained therein;
(ii) which shortens the fixed maturity, or increases the rate
or shortens the time of payment of interest on, or increases the amount
or shortens the time of payment of any principal or premium payable
whether at maturity, at a date fixed for prepayment or by acceleration or
otherwise of such Indebtedness, or increases the amount of, or
accelerates the time of payment of, any fees payable in connection
therewith;
(iii) which relates to the affirmative or negative
covenants, events of default or remedies under the documents or
instruments evidencing such Indebtedness and the effect of which is to
subject the Borrower or any of its Subsidiaries, to any more onerous or
more restrictive provisions; or
(iv) which otherwise adversely affects the interests of the
Lenders as senior creditors or the interests of the Lenders under this
Agreement or any other Credit Document in any respect.
80
75
(b) Make any optional prepayment of, or otherwise repurchase, any
of the Senior Discount Notes, the Senior Subordinated Notes or the Seller
Subordinated Notes, except (i) mandatory payments of interest, fees and
expenses required by the terms of the Senior Discount Notes, (ii) so long as no
Default or Event of Default shall have occurred and be continuing, prepayments
or repurchases of the Seller Subordinated Notes with the proceeds of
Contributed Equity or Excess Cash Flow for all prior fiscal years ended during
the term of this Agreement (to the extent not required to be applied pursuant
to subsection 7.5(e) or utilized pursuant to subsection 11.9(b), 11.10(k) or
(m) or clause (iii) of this subsection 11.16(b)) or (iii) so long as no Default
or Event of Default shall have occurred and be continuing, prepayments or
repurchases of the Senior Discount Notes or the Senior Subordinated Notes with
the proceeds of Contributed Equity (to the extent not utilized pursuant to
subsections 11.9(b), 11.10(k) or (m) or clause (ii) of this subsection
11.16(b)), provided that after giving pro forma effect to the sale of common
stock in connection with such Contributed Equity and such prepayment or
repurchase as if such events had occurred on the last day of the most recently
ended fiscal quarter, the Leverage Ratio would have been less than or equal to
4.0 to 1.0.
11.17. Rights under Acquisition Documents. Parent will not, and
will not permit any of its Subsidiaries to, amend, supplement or otherwise
modify (including any waiver thereof) the Acquisition Documents, except (a)
amendments, supplements or other modifications to the terms and conditions of
the indemnities and licenses furnished pursuant thereto such that after giving
effect to such amendment, supplements or other modification such indemnities or
licenses shall not be materially less favorable to the interests of Parent and
its Subsidiaries and (b) otherwise, such amendments, supplements or other
modifications (including waivers) to the Acquisition Documents which could not
reasonably be expected to have a Material Adverse Effect.
11.18. Maintenance of Corporate Separateness. The Parent and the
Borrower will not, and will not permit any of their Subsidiaries to, (a) fail
to satisfy customary corporate formalities, including, without limitation, (i)
the holding of regular board of directors' and shareholders' meetings, (ii) the
maintenance of separate corporate records and (iii) the maintenance of separate
bank accounts in its own name; (b) fail to act solely in its own corporate name
and through its authorized officers and agents; (c) commingle any money or
other assets of the Borrower or any of its Subsidiaries with any money or other
assets of the Parent; or (d) take any action, or conduct its affairs in a
manner, which could reasonably be expected to result in the separate corporate
existence of each of the Parent and each of its Subsidiaries from being ignored
or the assets and liabilities of the Borrower or any of its Subsidiaries being
substantively consolidated with those of the Parent in a bankruptcy,
reorganization or other insolvency proceeding.
11.19. Limitation on Activities of the Parent. The Parent shall
not, except to the extent explicitly permitted by this Section 11: (a)
conduct, transact or otherwise engage in, or commit to conduct, transact or
otherwise engage in, any business or operations other than those incidental to
(i) its ownership of the Capital Stock of the Borrower, (ii) the issuance of
the Senior Discount Notes, the Seller Subordinated Notes or its common stock
(or warrants or options in respect thereof) pursuant to a Permitted Issuance or
(iii) its performance of the Credit Documents to which it is a party, (b)
incur, create, assume or suffer to exist any Indebtedness or other liabilities
or financial obligations, except (i) nonconsensual obligations imposed by
operation of law, (ii) pursuant to the Credit Documents to which it is a party,
(iii) obligations with respect to its Capital Stock (other than any such
obligations constituting Indebtedness), (iv) the Senior Discount Notes and (v)
the Seller Subordinated Notes, (c) own, lease, manage or otherwise operate any
properties or assets (including cash and Cash Equivalents) other than the
ownership of shares of Capital Stock of the Borrower or (d) make any Restricted
Payments.
81
76
SECTION XII. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan when
due in accordance with the terms thereof or hereof; or the Borrower shall
fail to pay any interest on any Loan, or any other amount payable
hereunder, within five days after any such interest or other amount
becomes due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Credit Party herein or in any other Credit Document
or which is contained in any certificate, document or financial or other
statement furnished by it at any time under or in connection with this
Agreement or any such other Credit Document shall prove to have been
incorrect in any material respect on or as of the date made or deemed
made; or
(c) The Borrower or any other Credit Party shall default in the
observance or performance of any agreement contained in subsection
10.12(b), Section 11 or subsection 5.5(b) of the Master Guarantee and
Collateral Agreement; or
(d) The Borrower or any other Credit Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Credit Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default (to the
extent that it is susceptible to remedy) shall continue unremedied for a
period of 30 days; or
(e) The Borrower or any other Credit Party shall (i) default in any
payment of principal of or interest of any Indebtedness (other than the
Loans) or in the payment of any Guarantee Obligation (other than
guarantees pursuant to the Credit Documents), beyond the period of grace,
if any, provided in the instrument or agreement under which such
Indebtedness or Guarantee Obligation was created; or (ii) default in the
observance or performance of any other agreement or condition relating to
any such Indebtedness or Guarantee Obligation or contained in any
instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default
or other event or condition is to cause, or to permit the holder or
holders of such Indebtedness or beneficiary or beneficiaries of such
Guarantee Obligation (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause, with the giving of
notice if required, such Indebtedness to become due prior to its stated
maturity or such Guarantee Obligation to become payable; provided,
however, that no Default or Event of Default shall exist under this
paragraph unless the aggregate amount of Indebtedness and/or Guarantee
Obligations in respect of which any default or other event or condition
referred to in this paragraph shall have occurred shall be equal to at
least $5,000,000; or
(f) (i) The Borrower or any other Credit Party shall commence any
case, proceeding or other action (A) under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order
for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for
it or for all or any
82
77
substantial part of its assets, or the Borrower or any other Credit Party
shall make a general assignment for the benefit of its creditors; or (ii)
there shall be commenced against the Borrower or any other Credit Party
any case, proceeding or other action of a nature referred to in clause
(i) above which (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed, undischarged
or unbonded for a period of 60 days; or (iii) there shall be commenced
against the Borrower or any other Credit Party any case, proceeding or
other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its
assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) the Borrower or any
other Credit Party shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set
forth in clause (i), (ii), or (iii) above; or (v) the Borrower or any
other Credit Party shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving
any Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to
any Plan or any Lien in favor of the PBGC or a Plan shall arise on the
assets of the Borrower or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable
Event or commencement of proceedings or appointment of a trustee is, in
the reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA,
(v) the Borrower or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other similar event
or condition (other than the payment of benefits in the ordinary course)
shall occur or exist with respect to a Plan; and in each case in clauses
(i) through (vi) above, such event or condition, together with all other
such events or conditions, if any, could reasonably be expected to result
in a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against any
Credit Party involving in the aggregate a liability (not paid or fully
covered by insurance) of $5,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 60 days from the entry thereof; or
(i) Any of the Security Documents (or any material provisions of
any Security Document) shall cease, for any reason, to be in full force
and effect (unless released by the Administrative Agent, at the direction
of the Required Lenders or as otherwise permitted under this Agreement)
or shall be declared null and void (and, if such invalidity is such so as
to be amenable to cure without materially disadvantaging the position of
the Administrative Agent and the Lenders, the Credit Party shall have
failed to cure such invalidity within thirty (30) days after notice from
the Administrative Agent or such shorter time period as is specified by
the Administrative Agent in such notice and is reasonable in the
circumstances), or the validity or enforceability thereof shall be
contested by any Credit Party, or any of the Liens intended to be created
by the Security Documents shall cease to be or shall not be a valid and
perfected Lien having the priority contemplated thereby (and, if such
invalidity is such so as to be amenable to cure without materially
disadvantaging the position of the
83
78
Administrative Agent and the Lenders, as secured parties thereunder, the
Credit Party shall have failed to cure such invalidity within thirty (30)
days after notice from the Administrative Agent or such shorter time
period as specified by the Administrative Agent in such notice and is
reasonable in the circumstances); or
(j) The Parent shall have any material liabilities (other than
liabilities on account of the Parent Guarantee and Collateral Agreement
and the Senior Discount Notes) or any material assets (other than its
equity interest in the Borrower);
(k) Any agreement governing the Senior Discount Notes or the Senior
Subordinated Notes shall be amended, supplemented or otherwise modified
in any respect which could have an adverse effect on the rights and
interests of the Administrative Agent or the Lenders; or
(l) Any Change of Control shall occur;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section, automatically the
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement (including,
without limitation, all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) shall immediately become due and payable,
and (B) if such event is any other Event of Default, either or both of the
following actions may be taken: (i) with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Commitments
to be terminated forthwith, whereupon the Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement (including, without limitation, all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit
shall have presented the documents required thereunder) to be due and payable
forthwith, whereupon the same shall immediately become due and payable.
As to all Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to the
preceding paragraph, the Borrower shall at such time deposit in a cash
collateral account opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. The
Borrower hereby grants to the Administrative Agent, for the benefit of the
Issuing Lender and the L/C Participants, a security interest in such cash
collateral to secure all obligations of the Borrower under this Agreement and
the other Loan Documents. Any amounts held in such cash collateral account
shall be applied by the Administrative Agent to the payment of drafts drawn
under such Letters of Credit, and the unused portion thereof after all such
Letters of Credit shall have expired or been fully drawn upon, if any, shall be
applied to repay other obligations of the Borrower hereunder and under the
Notes. After all such Letters of Credit shall have expired or been fully drawn
upon, all Reimbursement Obligations shall have been satisfied and all other
obligations of the Borrower hereunder and under the Notes shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned
to the Borrower. The Borrower shall execute and deliver to the Administrative
Agent, for the account of the Issuing Lender and the L/C Participants, such
further documents and instruments as the Administrative Agent may request to
evidence the creation and perfection of the within security interest in such
cash collateral account.
84
79
Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION XIII. THE ADMINISTRATIVE AGENT; DOCUMENTATION AGENT AND
SYNDICATION AGENT
13.1. Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Credit Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Credit
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the
other Credit Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere
in this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Credit Document or otherwise exist against the
Administrative Agent.
13.2. Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement and the other Credit Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent
shall not be responsible for the negligence or misconduct of any agent or
attorneys in-fact selected by it with reasonable care.
13.3. Exculpatory Provisions. Neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Credit Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Credit Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent under or in connection with,
this Agreement or any other Credit Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Credit Document or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be
under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Credit Document, or to inspect the properties,
books or records of the Borrower.
13.4. Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified
85
80
in failing or refusing to take any action under this Agreement or any other
Credit Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Credit
Documents in accordance with a request of the Required Lenders (or such larger
number of Lenders as may be explicitly required hereunder), and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Loans.
13.5. Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders.
13.6. Non-Reliance on Administrative Agent and Other Lenders. Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to
make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Credit Documents, and to make such investigation
as it deems necessary to inform itself as to the business, operations,
property, financial and other condition and creditworthiness of the Borrower.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of the Borrower which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
13.7. Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Commitment Percentages in effect on the
date on which indemnification is sought, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment
86
81
of the Loans) be imposed on, incurred by or asserted against the Administrative
Agent in any way relating to or arising out of, the Commitments, this
Agreement, any of the other Credit Documents or any documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or willful
misconduct. The agreements in this subsection shall survive the payment of the
Loans and all other amounts payable hereunder.
13.8. Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Credit Documents. With respect to the Loans made by it, the
Administrative Agent shall have the same rights and powers under this Agreement
and the other Credit Documents as any Lender and may exercise the same as
though it were not the Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual capacity.
13.9. Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as "Administrative Agent" under this
Agreement and the other Credit Documents, then the Required Lenders shall
appoint from among the Lenders a successor Administrative Agent for the
Lenders, which successor Administrative Agent (provided that, to the extent
that no Default or Event of Default is continuing at the time of such
appointment, such Administrative Agent shall have been approved by the
Borrower), shall succeed to the rights, powers and duties of the Administrative
Agent hereunder. Effective upon such appointment and approval, the term
"Administrative Agent" shall mean such successor Administrative Agent, and the
former Administrative Agent's rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Section 13 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Credit Documents.
13.10. Documentation Agent and Syndicate Agent. The Documentation
Agent and the Syndication Agent shall have no duties or liabilities under the
Credit Documents in such capacities.
SECTION XIV. MISCELLANEOUS
14.1. Amendments and Waivers. Neither this Agreement nor any other
Credit Document, nor any terms hereof or thereof may be amended, supplemented
or modified except in accordance with the provisions of this subsection. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with the Borrower
written amendments, supplements or modifications hereto and to the other Credit
Documents for the purpose of adding any provisions to this Agreement or the
other
87
82
Credit Documents or changing in any manner the rights of the Lenders or of the
Borrower hereunder or thereunder or (b) waive, on such terms and conditions as
the Required Lenders or the Administrative Agent, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the
other Credit Documents or any Default or Event of Default and its consequences;
provided that no such waiver and no such amendment, supplement or modification
shall:
(i) without the consent of each Lender directly affected
thereby, (A) reduce the amount or extend the scheduled date of maturity
of any Loan or of any installment thereof, (B) reduce the stated rate of
any interest or fee payable hereunder or extend the scheduled date of any
payment thereof or (C) increase the amount or extend the expiration date
of any Lender's Commitments;
(ii) without the written consent of all the Lenders, (A)
amend, modify or waive any provision of this subsection, (B) reduce the
percentage specified in the definition of Required Lenders, (C) increase
the percentages set forth as the advance rates in the definition of
"Borrowing Base" contained in subsection 1.1, (D) consent to the
assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Credit Documents or (E)
release all or substantially all of the Collateral or guarantees of the
obligations of the Credit Parties pursuant to the Credit Documents;
(iii) without the prior written consent of the Issuing Lender
with respect thereto, amend, supplement or otherwise modify any
provisions of Section 3 or any other provision directly applicable to any
Letter of Credit;
(iv) amend, modify or waive any provision of Section 6 or any
other provision of this Agreement governing the rights or obligations of
the Swing Line Lender without the written consent of the Swing Line
Lender; or
(v) amend, modify or waive any provision of Section 13
without the written consent of the then Administrative Agent.
Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Borrower, the
Lenders, the Administrative Agent and all future holders of the Loans. In the
case of any waiver, the Borrower, the Lenders and the Administrative Agent
shall be restored to their former positions and rights hereunder and under the
other Credit Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.
14.2. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three days after being
deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows in the case of the Borrower, the Issuing Agent and the Administrative
Agent, and as set forth in the case of the other parties hereto, or to such
other address as may be hereafter notified by the respective parties hereto:
The Borrower: Hedstrom Corporation
585 Slawin Court
Mount Prospect, Illinois 60056-2183
Attention: David F. Crowley
Phone: (847) 803-9200
Fax: (847) 803-1971
88
83
with a copy to: Hedstrom Corporation
Box 432 Sunnyside Road
Bedford, Pennsylvania 15522
Attention: David F. Crowley
Phone: (814) 623-9041
Fax: (814) 623-2651
with a copy to: Hicks, Muse, Tate & Furst
Incorporated
200 Crescent Court
Suite 1600
Dallas, Texas 75201
Attention: Lawrence D. Stuart, Jr.
Phone: (214) 740-7300
Fax: (214) 740-7313
with a copy to: Hicks, Muse, Tate & Furst
Incorporated
1325 Avenue of the Americas
New York, New York 10019
Attention: Alan B. Menkes
Phone: (212) 424-4200
Fax: (212) 424-1450
The Administrative Agent Credit Suisse First Boston
and the Issuing Lender: 11 Madison Avenue
New York, New York 10010
Attention: Lisa Perrotto
Phone: (212) 325-9934
Fax: (212) 325-8304
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.2, 3.2, 4.2, 5.2, 6.2, 7.3, 7.4, 7.6 or
7.11(b) shall not be effective until received.
14.3. No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Administrative Agent or any Lender,
any right, remedy, power or privilege hereunder or under the other Credit
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power
or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
14.4. Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Credit Documents
and in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
89
84
14.5. Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all its out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement and the
other Credit Documents and any other documents prepared in connection herewith
or therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and disbursements of counsel to the Administrative Agent, (b) to pay or
reimburse each Lender and the Administrative Agent for all its reasonable out
of pocket costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Credit Documents and
any such other documents, including, without limitation, the reasonable fees
and disbursements of counsel to the Administrative Agent and after the
occurrence and during the continuance of an Event of Default a single counsel
to the Lenders collectively and of additional counsel to the Administrative
Agent, (c) to pay, indemnify, and hold each Lender and the Administrative
Agent, the Documentation Agent and the Syndication Agent harmless from, any and
all recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other similar taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the other
Credit Documents and any such other documents and (d) to pay, indemnify, and
hold each Lender and the Administrative Agent, the Documentation Agent and the
Syndication Agent harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents, the documentation relating to the
Acquisition and the other transactions contemplated hereby, or the use of the
proceeds of the Loans and other extensions of credit hereunder and any such
other documents, including, without limitation, any of the foregoing relating
to the violation of, noncompliance with or liability under, any Environmental
Law applicable to the operations of the Borrower, any of its Subsidiaries or
any of the Properties (all the foregoing in this clause (d), collectively, the
"indemnified liabilities"), provided that the Borrower shall have no obligation
hereunder to the Administrative Agent, the Documentation Agent or the
Syndication Agent or any Lender with respect to indemnified liabilities arising
from the gross negligence or willful misconduct of any such party or, in the
case of any indemnified liabilities arising out of this Agreement or the other
Credit Documents, from the material breach of any indemnified party of this
Agreement or the other Credit Documents, as the case may be, provided, further,
that the Borrower shall have no obligation hereunder with respect to any
Materials of Environmental Concern that are first generated, used,
manufactured, emitted, treated, released or disposed of on any real property
owned, operated or leased by the Borrower or violations of Environmental Laws,
which in either case, first occurs on or with respect to such real property
after the property has been transferred to the Administrative Agent, the
Syndication Agent or any Lender that succeeds or assigns by foreclosure, sale,
deed in lieu of foreclosure or similar transfer, except to the extent actually
caused by the Borrower or its Subsidiaries or either of their agents. The
agreements in this subsection shall survive repayment of the Loans, and all
other amounts payable hereunder.
14.6. Successors and Assigns; Participations and Assignments. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Administrative Agent and their respective successors and
assigns, except that the Borrower may not assign or transfer any of its rights
or obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities
90
85
("Participants") participating interests in any Loan owing to such Lender, any
Commitment of such Lender or any other interest of such Lender hereunder and
under the other Credit Documents. In the event of any such sale by a Lender of
a participating interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of any such Loan for all purposes under this Agreement
and the other Credit Documents, and the Borrower and the Administrative Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and the other Credit
Documents. No Lender shall be entitled to create in favor of any Participant,
in the participation agreement pursuant to which such Participant's
participating interest shall be created or otherwise, any right to vote on,
consent to or approve any matter relating to this Agreement or any other Credit
Document except for those specified in clause (ii) (D) of the proviso to
subsection 14.1 or, to the extent that such Lender would have the right to vote
on any matter specified therein, clause (i) of such proviso. The Borrower
agrees that if amounts outstanding under this Agreement are due or unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, provided that, in purchasing
such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in subsection 14.7(a)
as fully as if it were a Lender hereunder. The Borrower also agrees that each
Participant shall be entitled to the benefits of subsections 7.13, 7.14 and
7.15 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if it was a Lender; provided that, in the case
of subsection 7.14, such Participant shall have complied with the requirements
of said subsection and provided, further, that no Participant shall be entitled
to receive any greater amount pursuant to any such subsection than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign to (i) any Lender or any affiliate thereof or (ii) with the
consent of the Administrative Agent and the Borrower (which, in each case,
shall not be unreasonably withheld), to any additional bank or financial
institution or fund (any assignee described in clause (i) or (ii), an
"Assignee") all or any part of its rights and obligations under this Agreement
and the other Credit Documents pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit H, executed by such Assignee, such
assigning Lender (and, in the case of an Assignee that is not then a Lender or
an Affiliate thereof, by the Administrative Agent and by the Borrower) and
delivered to the Administrative Agent for its acceptance and recording in the
Register, provided that, in the case of any such assignment to an additional
bank or financial institution, the sum of the aggregate principal amount of the
Loans, the aggregate amount of the L/C Obligations and the aggregate amount of
the Available Revolving Credit Commitment being assigned and, if such
assignment is of less than all of the rights and obligations of the assigning
Lender, the sum of the aggregate principal amount of the Loans, the aggregate
amount of the L/C Obligations and the aggregate amount of the Available
Revolving Credit Commitment remaining with the assigning Lender are each not
less than $5,000,000 (or such lesser amount as may be agreed to by the Borrower
and the Administrative Agent). Upon such execution, delivery, acceptance and
recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder with a Commitment as set forth therein,
and (y) the assigning Lender thereunder shall, to the extent provided in such
Assignment and
91
86
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
assigning Lender shall cease to be a party hereto).
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in subsection
14.2 a copy of each Assignment and Acceptance delivered to it and a register
(the "Register") for the recordation of the names and addresses of the Lenders
and the Commitments of, and principal amounts of the Loans owing to, each
Lender from time to time and the registered owners of Notes evidencing the
Loans. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and the Lenders
shall treat each Person whose name is recorded in the Register as the owner of
a Loan or other obligation hereunder as the owner thereof for all purposes of
this Agreement and the other Credit Documents, notwithstanding any notice to
the contrary. No assignment or transfer of any Loan (or portion thereof) or
any Note and the obligations evidenced thereby shall be effected unless and
until it has been recorded in the Register as provided in this subsection
14.6(d). Any assignment or transfer of all or part of any such Loan and the
Note evidencing the same shall be registered on the Register only upon
surrender for registration of assignment or transfer of the Note evidencing
such Loan, accompanied by a duly executed Assignment and Acceptance, and
thereupon one or more new Notes in the same aggregate principal amount shall be
issued to the designated Assignee and the old Note shall be returned by the
Administrative Agent to the Borrower marked "cancelled". The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an Affiliate thereof, by the Borrower and the Administrative
Agent), together with payment to the Administrative Agent of a registration and
processing fee of $3,500, the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information in such Lender's possession concerning the
Borrower and its Affiliates which has been delivered to such Lender by or on
behalf of the Borrower pursuant to this Agreement or which has been delivered
to such Lender by or on behalf of the Borrower in connection with such Lender's
credit evaluation of the Borrower and its Affiliates prior to becoming a party
to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
14.7. Adjustments; Set-off. (a) If any Lender (a "benefitted
Lender") shall at any time receive any payment of all or part of any of its
Loans or Reimbursement Obligations owing to it under any Commitment, or
interest thereon, pursuant to a guarantee or otherwise, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off
or otherwise), in a greater proportion than any such payment to and collateral
received by any other Lender, if any, in respect of
92
87
such other Lender's Loans or Reimbursement Obligations owing to it under such
Commitment or interest thereon, such benefitted Lender shall purchase for cash
from the other Lender such portion of each such other Lender's similar Loans or
Reimbursement Obligations, or shall provide such other Lender with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary to cause
such benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders which hold such
Commitment; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. Each Borrower agrees that
each Lender so purchasing a portion of another Lender's Loans or Reimbursement
Obligations may exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if such purchasing
Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency,
and any other credits, indebtedness or claims, in any currency, in each case
whether direct or indirect, absolute or contingent, matured or unmatured, at
any time held or owing by such Lender or any branch or agency thereof or any
bank controlling such Lender to or for the credit or the account of the
Borrower. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such
Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
14.8. Counterparts. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of
the copies of this Agreement signed by all the parties shall be lodged with the
Borrower and the Administrative Agent.
14.9. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
14.10. Integration. This Agreement and the other Credit Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Credit Documents.
14.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
93
88
14.12. Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Credit Documents to
which it is a party, or for recognition and enforcement of any judgement
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in subsection 14.2 or at such other
address of which the Administrative Agent shall have been notified
pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or
consequential damages.
14.13. Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Credit Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Credit Documents, and
the relationship between Administrative Agent and Lenders, on one hand,
and the Borrower, on the other hand, in connection herewith or therewith
is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower and the Lenders.
14.14. WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
14.15. Confidentiality. Each Lender agrees to keep confidential any
information obtained by it pursuant hereto and the other Credit Documents
identified as confidential in writing at the time of delivery in accordance
with such Lender's customary practices and agrees that it will only use such
94
89
information in connection with the transactions contemplated by this Agreement
and not disclose any of such information other than (a) to such Lender's
officers, directors, employees, representatives, attorneys, agents or
affiliates who are advised of the confidential nature of such information, (b)
to the extent such information presently is or hereafter becomes available to
such Lender on a non-confidential basis from any source or such information
that is in the public domain at the time of disclosure, (c) to the extent
disclosure is required by law, regulation, subpoena or judicial order or
process (provided that notice of such requirement or order shall be promptly
furnished to the Borrower unless such notice is legally prohibited) or
requested or required by bank regulators or auditors or any administrative
body, commission, or other Governmental Authority to whose jurisdiction such
Lender may be subject, (d) to assignees or participants or potential assignees
or participants or to professional advisors or direct or indirect contractual
counterparties in swap agreements provided in each case such Person agrees to
be bound by the provisions of this subsection 14.15, (e) to the extent required
in connection with any litigation between any Credit Party and any Lender with
respect to the Loans or this Agreement and the other Credit Documents, (f) to
rating agencies, their employees, representatives, attorneys, agents or
affiliates who are advised of the confidential nature of such information and
(g) with the Borrower's prior written consent.
95
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and Responsible Officers as of
the day and year first above written.
HEDSTROM HOLDINGS, INC.
By: /s/ Andrew S. Rosen
------------------------------------
Title: Vice President
HEDSTROM CORPORATION
By: /s/ Andrew S. Rosen
------------------------------------
Title: Vice President
CREDIT SUISSE FIRST BOSTON, as
Administrative Agent
By: /s/ Ira Lubinsky
------------------------------------
Title: Vice President
By: /s/ Edward E. Barr
------------------------------------
Title: Associate
CREDIT SUISSE FIRST BOSTON, as a Lender
By: /s/ Ira Lubinsky
------------------------------------
Title: Vice President
By: /s/ Edward E. Barr
------------------------------------
Title: Associate
SOCIETE GENERALE, as Documentation Agent
and as a Lender
By: /s/ Jack Stack
------------------------------------
Title: Vice President
96
UBS SECURITIES LLC, as Syndication Agent
By: /s/ Jean Smith
-------------------------------------------
Title: Managing Director
By: /s/ Charles Santos-Buch
-------------------------------------------
Title: Managing Director
UNION BANK OF SWITZERLAND, NEW YORK BRANCH,
as a Lender
By: /s/ Renata Jacobson
-------------------------------------------
Title: Vice President
By: /s/ Ruth Webster
-------------------------------------------
Title: Vice President
BANK POLSKA KASA OPIEKI S.A. -
PEKAO S.A. GROUP
By: /s/ Harvey Winter
-------------------------------------------
Title: Vice President
BHF-BANK AKTIENGESELLSCHAFT
By: /s/ Thomas J. Scifo
-------------------------------------------
Title: Assistant Vice President
By: /s/ Anthony Heyman
-------------------------------------------
Title: Assistant Treasurer
CITICORP USA, INC.
By: /s/ Bruce Hall
-------------------------------------------
Title: Vice President
97
DEEPROCK & COMPANY
By: Eaton Vance Management,
-------------------------------------------
as Investment Advisor
By: /s/ Scott Page
-------------------------------------------
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Kenneth Kramer
-------------------------------------------
Title: Authorized Agent
FIRST SOURCE FINANCIAL, LLP
By: First Source Financial, Inc.,
-------------------------------------------
as Agent/Manager
By: /s/ James W. Wilson
-------------------------------------------
Title: Senior Vice President
MERRILL LYNCH SENIOR FLOATING RATE FUND, INC.
By: /s/ Anne McCarthy
-------------------------------------------
Title: Authorized Signatory
DEBT STRATEGIES FUND, INC.
By: /s/ Anne McCarthy
-------------------------------------------
Title: Authorized Signatory
NATIONAL WESTMINSTER BANK PLC
By: /s/ Edward J. Weld
-------------------------------------------
Title: Vice President
ORIX USA CORPORATION
By: /s/ Hiroyuki Miyauchi
-------------------------------------------
Title: Executive Vice President
SANWA BUSINESS CREDIT CORPORATION
By: /s/ John P. Thacker
-------------------------------------------
Title: Vice President
98
EXHIBIT A TO THE
CREDIT AGREEMENT
FORM OF TRANCHE A NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT
IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED
BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE
RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE
TERMS OF SUCH CREDIT AGREEMENT.
$__________ New York, New York
June 12, 1997
FOR VALUE RECEIVED, the undersigned, HEDSTROM CORPORATION, a Delaware
corporation (the "Borrower"), hereby unconditionally promises to pay to the
order of _____________________(the "Lender") at the office of CREDIT SUISSE
FIRST BOSTON, located at Eleven Madison Avenue, New York, New York 10010, in
lawful money of the United States and in immediately available funds, the
principal amount of _______________________ DOLLARS ($_________), or, if less,
the unpaid principal amount of the Tranche A Loan made by the Lender pursuant
to subsection 2.1 of the Credit Agreement, as hereinafter defined. The
principal amount shall be paid in the amounts and on the dates specified in
subsection 2.3. The Borrower further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time outstanding
at the rates and on the dates specified in subsection 7.8 of such Credit
Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of the
Tranche A Loan and the date and amount of each payment or prepayment of
principal with respect thereto, each conversion of all or a portion thereof to
another Type, each continuation of all or a portion thereof as the same Type
and, in the case of Eurodollar Loans, the length of each Interest Period with
respect thereto. Each such endorsement shall, in the absence of manifest
error, constitute prima facie evidence of the accuracy of the information
endorsed. The failure to make any such endorsement shall not affect the
obligations of the Borrower in respect of such Tranche A Loan.
This Note (a) is one of the Tranche A Notes referred to in the Credit
Agreement dated as of June 12, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
Lender, the other banks and financial institutions from time to time parties
thereto and Credit Suisse First Boston, as administrative agent, (b) is subject
to the provisions of the Credit Agreement and (c) is subject to optional and
mandatory prepayment in whole or in part as provided in the Credit
99
2
Agreement. This Note is secured and guaranteed as provided in the Credit
Documents. Reference is hereby made to the Credit Documents for a description
of the properties and assets in which a security interest has been granted, the
nature and extent of the security and the guarantees, the terms and conditions
upon which the security interests and each guarantee were granted and the
rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
HEDSTROM CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
100
Schedule A
to Tranche A Note
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
- -----------------------------------------------------------------------------------------------------------------------------------
Amount Amount of ABR Loans
Converted to Amount of Principal of Converted to Unpaid Principal Notation Made
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans By
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
101
Schedule B
to Tranche A Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
- -----------------------------------------------------------------------------------------------------------------------------------
Interest Period Amount of Amount of
Amount Converted and Eurodollar Principal of Eurodollar Loans Unpaid Principal
Amount of to Eurodollar Rate with Respect Eurodollar Loans Converted to ABR Balance of Notation
Date Eurodollar Loans Loans Thereto Repaid Loans Eurodollar Loans Made By
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
102
EXHIBIT B TO THE
CREDIT AGREEMENT
FORM OF TRANCHE B NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT
IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED
BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE
RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE
TERMS OF SUCH CREDIT AGREEMENT.
$__________ New York, New York
June 12, 1997
FOR VALUE RECEIVED, the undersigned, HEDSTROM CORPORATION, a Delaware
corporation (the "Borrower"), hereby unconditionally promises to pay to the
order of _____________________(the "Lender") at the office of Credit Suisse
First Boston, located at Eleven Madison Avenue, New York, New York 10010, in
lawful money of the United States and in immediately available funds, the
principal amount of _______________________ DOLLARS ($_________), or, if less,
the unpaid principal amount of the Tranche B Loan made by the Lender pursuant
to subsection 3.1 of the Credit Agreement, as hereinafter defined. The
principal amount shall be paid in the amounts and on the dates specified in
subsection 3.3. The Borrower further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time outstanding
at the rates and on the dates specified in subsection 7.8 of such Credit
Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of the
Tranche B Loan and the date and amount of each payment or prepayment of
principal with respect thereto, each conversion of all or a portion thereof to
another Type, each continuation of all or a portion thereof as the same Type
and, in the case of Eurodollar Loans, the length of each Interest Period with
respect thereto. Each such endorsement shall, in the absence of manifest
error, constitute prima facie evidence of the accuracy of the information
endorsed. The failure to make any such endorsement shall not affect the
obligations of the Borrower in respect of such Tranche B Loan.
This Note (a) is one of the Tranche B Notes referred to in the Credit
Agreement dated as of June 12, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
Lender, the other banks and financial institutions from time to time parties
thereto and Credit Suisse First Boston, as administrative agent, (b) is subject
to the provisions of the Credit Agreement and (c) is subject to optional and
mandatory prepayment in whole or in part as provided in the Credit
103
2
Agreement. This Note is secured and guaranteed as provided in the Credit
Documents. Reference is hereby made to the Credit Documents for a description
of the properties and assets in which a security interest has been granted, the
nature and extent of the security and the guarantees, the terms and conditions
upon which the security interests and each guarantee were granted and the
rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
HEDSTROM CORPORATION
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
104
Schedule A
to Tranche B Note
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Amount of ABR Loans
Converted to Amount of Principal of Converted to Unpaid Principal Notation Made
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans By
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
105
Schedule B
to Tranche B Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
Interest Period Amount of Amount of
Amount Converted and Eurodollar Principal of Eurodollar Loans Unpaid Principal
Amount of to Eurodollar Rate with Respect Eurodollar Loans Converted to ABR Balance of Notation
Date Eurodollar Loans Loans Thereto Repaid Loans Eurodollar Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
106
EXHIBIT C TO THE
CREDIT AGREEMENT
FORM OF REVOLVING CREDIT NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT
IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED
BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE
RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE
TERMS OF SUCH CREDIT AGREEMENT.
_____________ New York, New York
June 12, 1997
FOR VALUE RECEIVED, the undersigned, HEDSTROM CORPORATION, a Delaware
corporation (the "Borrower"), hereby unconditionally promises to pay to the
order of CITICORP USA, INC. (the "Lender") at the office of Credit Suisse First
Boston, located at Eleven Madison Avenue, New York, New York 10010, in lawful
money of the United States and in immediately available funds, on the
Termination Date the principal amount of (a) __________________________
__________________________________________________________________________
_______________, or, if less, (b) the aggregate unpaid principal amount of all
Revolving Credit Loans made by the Lender to the Borrower pursuant to
subsection 4.1 of the Credit Agreement, as hereinafter defined. The Borrower
further agrees to pay interest in like money at such office on the unpaid
principal amount hereof from time to time outstanding at the rates and on the
dates specified in subsection 7.8 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of each
Revolving Credit Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in
the case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsement shall, in the absence of manifest error,
constitute prima facie evidence of the accuracy of the information endorsed.
The failure to make any such endorsement shall not affect the obligations of
the Borrower in respect of such Revolving Credit Loan.
This Note (a) is one of the Revolving Credit Notes referred to in the
Credit Agreement dated as of June 12, 1997 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the Lender, the other banks and financial institutions from time to
time parties thereto and Credit Suisse First Boston, as
107
2
administrative agent, (b) is subject to the provisions of the Credit Agreement
and (c) is subject to optional and mandatory prepayment in whole or in part as
provided in the Credit Agreement. This Note is secured and guaranteed as
provided in the Credit Documents. Reference is hereby made to the Credit
Documents for a description of the properties and assets in which a security
interest has been granted, the nature and extent of the security and the
guarantees, the terms and conditions upon which the security interests and each
guarantee were granted and the rights of the holder of this Note in respect
thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
HEDSTROM CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
108
Schedule A
to Revolving Credit Note
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
- --------------------------------------------------------------------------------------------------------------------------------
Amount Amount of ABR Loans
Converted to Amount of Principal of Converted to Unpaid Principal Notation Made
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans By
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
109
Schedule B
to Revolving Credit Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
- --------------------------------------------------------------------------------------------------------------------------------
Interest Period Amount of Amount of
Amount Converted and Eurodollar Principal of Eurodollar Loans Unpaid Principal
Amount of to Eurodollar Rate with Respect Eurodollar Loans Converted to ABR Balance of Notation
Date Eurodollar Loans Loans Thereto Repaid Loans Eurodollar Loans Made By
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
110
EXHIBIT D TO THE
CREDIT AGREEMENT
FORM OF SWING LINE NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT
IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED
BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE
RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE
TERMS OF SUCH CREDIT AGREEMENT.
New York, New York
$____________ June 12, 1997
FOR VALUE RECEIVED, the undersigned, HEDSTROM CORPORATION, a
Delaware corporation (the "Borrower"), hereby unconditionally promises to pay
to the order of CREDIT SUISSE FIRST BOSTON (the "Swing Line Lender") at its
office located at Eleven Madison Avenue, New York, New York 10010, in lawful
money of the United States and in immediately available funds, on the
Termination Date, as defined in the Credit Agreement referred to below, the
principal amount of (a) _______________________ DOLLARS ($____________), or if
less, (b) the aggregate unpaid principal amount of all Swing Line Loans made by
the Swing Line Lender to the Borrower pursuant to subsection 6.1 of the Credit
Agreement, as hereinafter defined. The Borrower further agrees to pay interest
in like money at such office on the unpaid principal amount hereof from time to
time outstanding at the rates and on the dates specified in subsection 7.8 of
the Credit Agreement.
The holder of this Swing Line Note is authorized to endorse on
the schedule annexed hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof the date and amount of
each Swing Line Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of the principal thereof and each
continuation thereof. Each such endorsement shall, in the absence of manifest
error, constitute prima facie evidence of the accuracy of the information
endorsed. The failure to make any such endorsement shall not affect the
obligations of the Borrower in respect of such Swing Line Loan.
This Swing Line Note (a) is the Swing Line Note referred to in
the Credit Agreement, dated as of June 12, 1997 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the Swing Line Lender, the other banks and financial institutions
from time to time parties thereto and Credit Suisse First Boston, as
administrative agent, (b) is subject to the provisions of the Credit Agreement
and (c) is subject to optional and mandatory prepayment in whole or in part as
provided in the Credit Agreement. This Swing Line Note is secured and
guaranteed as provided in the Credit Documents. Reference is hereby made to
the Credit Documents for a description of
111
2
the properties and assets in which a security interest has been granted, the
nature and extent of the security and the guarantees, the terms and conditions
upon which the security interests and each guarantee were granted and the
rights of the holder of this Swing Line Note in respect thereof.
Upon the occurrence of any one or more of the Events of
Default, all amounts then remaining unpaid on this Swing Line Note shall
become, or may be declared to be, immediately due and payable, all as provided
in the Credit Agreement.
All parties now and hereafter liable with respect to this
Swing Line Note, whether maker, principal, surety, guarantor, endorser or
otherwise, hereby waive presentment, demand, protest and all other notices of
any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
THIS SWING LINE NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
HEDSTROM CORPORATION
By:
------------------------------------
Name:
Title:
112
Schedule A
to Swing Line Note
LOANS AND REPAYMENTS OF SWING LINE LOANS
- ----------------------------------------------------------------------------------------------------------------
Unpaid
Amount of Swing Amount of Swing Principal Balance Notation
Date Line Loans Made Line Loans Repaid of Swing Line Loans Made By
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------