1
Exhibit 10.12
WERNER HOLDING CO. (DE), INC.
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CREDIT AGREEMENT
dated as of November 24, 1997
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$320,000,000
Credit Facility
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BANKERS TRUST COMPANY,
as Administrative Agent and as Co-Arranger,
MERRILL LYNCH CAPITAL CORPORATION,
as Syndication Agent and as Co-Arranger,
THE CHASE MANHATTAN BANK,
as Documentation Agent,
and
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Co-Agent
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TABLE OF CONTENTS
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SECTION 1
DEFINITIONS ............................... 2
1.1 Defined Terms ................................................... 2
1.2 Other Definitional Provisions.................................... 37
SECTION 2
TERM LOANS ................................ 38
2.1 Term Loans ...................................................... 38
2.2 Repayment of Term Loans.......................................... 38
2.3 Use of Proceeds ................................................. 39
SECTION 3
AMOUNT AND TERMS OF
REVOLVING CREDIT COMMITMENTS ....................... 39
3.1 Revolving Credit Commitments..................................... 39
3.2 Commitment Fee .................................................. 40
3.3 Proceeds of Revolving Credit Loans............................... 40
3.4 Swing Line Commitment............................................ 40
3.5 Issuance of Letters of Credit.................................... 42
3.6 Participating Interests.......................................... 43
3.7 Procedure for Opening Letters of Credit.......................... 43
3.8 Payments in Respect of Letters of Credit......................... 43
3.9 Letter of Credit Fees............................................ 44
3.10 Letter of Credit Reserves....................................... 45
3.11 Further Assurances ............................................. 47
3.12 Obligations Absolute............................................ 47
3.13 Assignments .................................................... 47
3.14 Participations ................................................. 48
SECTION 4
AMOUNT AND TERMS OF
RECEIVABLES FINANCING COMMITMENTS .................... 48
4.1 Receivables Financing Commitments................................ 48
(i)
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4.2 Commitment Fee .............................................. 49
4.3 Proceeds of Receivables Financing Loans...................... 49
SECTION 5
GENERAL PROVISIONS APPLICABLE TO LOANS ................. 49
5.1 Procedure for Borrowing....................................... 49
5.2 Conversion and Continuation Options........................... 50
5.3 Changes of Commitment Amounts................................. 51
5.4 Optional and Mandatory Prepayments; Repayments of Term
Loans....................................................... 52
5.5 Interest Rates and Payment Dates.............................. 61
5.6 Computation of Interest and Fees.............................. 62
5.7 Certain Fees ................................................. 62
5.8 Inability to Determine Interest Rate.......................... 62
5.9 Pro Rata Treatment and Payments............................... 63
5.10 Illegality .................................................. 66
5.11 Requirements of Law ......................................... 67
5.12 Indemnity ................................................... 70
5.13 Repayment of Loans; Evidence of Debt......................... 71
5.14 Replacement of Lenders....................................... 72
SECTION 6
REPRESENTATIONS AND WARRANTIES ..................... 73
6.1 Financial Condition .......................................... 73
6.2 No Change .................................................... 75
6.3 Corporate Existence; Compliance with Law...................... 75
6.4 Corporate Power; Authorization................................ 76
6.5 Enforceable Obligations....................................... 76
6.6 No Legal Bar ................................................. 77
6.7 No Material Litigation........................................ 77
6.8 Investment Company Act........................................ 78
6.9 Federal Regulation ........................................... 78
6.10 No Default .................................................. 78
6.11 Taxes ....................................................... 78
6.12 Subsidiaries; Immaterial Subsidiaries........................ 79
6.13 Ownership of Property; Liens................................. 79
6.14 ERISA ....................................................... 79
6.15 Collateral Documents......................................... 80
6.16 Copyrights, Patents, Permits, Trademarks and Licenses........ 81
6.17 Environmental Matters........................................ 82
(ii)
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6.18 Accuracy and Completeness of Information...................... 83
SECTION 7
CONDITIONS PRECEDENT ........................... 83
7.1 Conditions to Initial Loans and Letters of Credit.............. 83
7.2 Conditions to All Loans and Letters of Credit.................. 90
SECTION 8
AFFIRMATIVE COVENANTS .......................... 91
8.1 Financial Statements .......................................... 91
8.2 Certificates; Other Information................................ 93
8.3 Payment of Obligations......................................... 95
8.4 Conduct of Business and Maintenance of Existence............... 95
8.5 Maintenance of Property; Insurance............................. 96
8.6 Inspection of Property; Books and Records; Discussions......... 96
8.7 Notices ....................................................... 96
8.8 Environmental Laws ............................................ 98
8.9 Additional Collateral.......................................... 99
SECTION 9
NEGATIVE COVENANTS ............................103
9.1 Indebtedness ..................................................103
9.2 Limitation on Liens ...........................................106
9.3 Limitation on Contingent Obligations...........................108
9.4 Prohibition of Fundamental Changes.............................110
9.5 Prohibition on Sale of Assets..................................110
9.6 Limitation on Investments, Acquisitions, Loans and Advances....113
9.7 Capital Expenditures ..........................................116
9.8 Interest Rate Agreements.......................................117
9.9 Debt to EBITDA ................................................117
9.10 Interest Coverage ............................................119
9.11 Minimum Consolidated EBITDA...................................120
9.12 Limitation on Dividends.......................................121
9.13 Transactions with Affiliates..................................122
9.14 Prepayments and Amendments of Subordinated Debt...............123
9.15 Limitation on Changes in Fiscal Year..........................123
9.16 Limitation on Business........................................123
9.17 Designated Senior Indebtedness................................124
9.18 Limitation on Issuance of Capital Stock.......................124
(iii)
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SECTION 10
EVENTS OF DEFAULT ............................125
SECTION 11
THE AGENTS; THE ISSUING LENDER .....................129
11.1 Appointment .................................................129
11.2 Delegation of Duties.........................................129
11.3 Exculpatory Provisions.......................................130
11.4 Reliance by Co-Arrangers.....................................130
11.5 Notice of Default ...........................................131
11.6 Non-Reliance on Agents and Other Lenders.....................131
11.7 Indemnification .............................................132
11.8 Each Agent in its Individual Capacity........................132
11.9 Successor Administrative Agent...............................132
11.10 Issuing Lender as Issuer of Letters of Credit...............133
SECTION 12
MISCELLANEOUS ..............................133
12.1 Amendments and Waivers........................................133
12.2 Notices ......................................................135
12.3 No Waiver; Cumulative Remedies................................136
12.4 Survival of Representations and Warranties....................136
12.5 Payment of Expenses and Taxes.................................137
12.6 Successors and Assigns; Participations and Assignments........139
12.7 Set-off ......................................................144
12.8 Payments Pro Rata. ...........................................144
12.9 Counterparts. ................................................145
12.10 Governing Law; No Third Party Rights.........................145
12.11 Submission to Jurisdiction; Waivers..........................146
12.12 Releases ....................................................146
12.13 Interest ....................................................147
12.14 Special Indemnification......................................147
12.15 Permitted Payments and Transactions..........................148
12.16 Co-Arrangers; Administrative Agent...........................149
12.17 Certain Provisions Regarding Alabama Mortgaged Property......149
SCHEDULES
(iv)
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Schedule I List of Addresses for Notices; Lending Offices;
Commitment Amounts
Schedule II Pricing and Commitment Fee Grid
Schedule III Qualified Account Debtors
Schedule 6.11 Taxes
Schedule 6.12 Subsidiaries
Schedule 6.13 Fee and Leased Properties
Schedule 6.15(b) UCC Filing Offices
Schedule 6.16 Patents, Trademarks and Copyrights
Schedule 9.1(a) Existing Indebtedness
Schedule 9.2(h) Existing Liens
Schedule 9.3(d) Existing Contingent Obligations
EXHIBITS
EXHIBIT A-1 Form of B Term Loan Note
EXHIBIT A-2 Form of C Term Loan Note
EXHIBIT B Form of Revolving Credit Note
EXHIBIT C Form of Receivables Financing Note
EXHIBIT D Form of Swing Line Note
EXHIBIT E Form of Assignment and Acceptance
EXHIBIT F-1 Form of Company Security Agreement
EXHIBIT F-2 Form of Subsidiary Security Agreement
EXHIBIT G-1 Form of Holdings Guarantee
EXHIBIT G-2 Form of Subsidiary Guarantee
EXHIBIT H-1 Form of Company Pledge Agreement
EXHIBIT H-2 Form of Holdings/Subsidiary Pledge Agreement
EXHIBIT I Form of Subsection 5.11(d)(2) Certificate
EXHIBIT J-1 Form of Opinion of Gibson, Dunn & Crutcher LLP
EXHIBIT J-2 Form of Opinion of General Counsel to the Company
EXHIBIT K-1 Form of Holdings Closing Certificate
EXHIBIT K-2 Form of Company Closing Certificate
EXHIBIT K-3 Form of Subsidiaries Closing Certificate
EXHIBIT L Form of Mortgage
EXHIBIT M Form of Borrowing Base Certificate
EXHIBIT N Form of Letter of Credit Request
(v)
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CREDIT AGREEMENT, dated as of November 24, 1997, among WERNER HOLDING
CO. (DE), INC., a Delaware corporation (the "COMPANY"), the several lenders from
time to time parties hereto (the "LENDERS"), BANKERS TRUST COMPANY, as
administrative agent for the Lenders and as co-arranger (in such capacity, the
"ADMINISTRATIVE AGENT"), MERRILL LYNCH CAPITAL CORPORATION, as syndication agent
and as co-arranger (in such capacity, the "SYNDICATION AGENT" and, together with
the Administrative Agent, the "CO- ARRANGERS"), THE CHASE MANHATTAN BANK, as
documentation agent (in such capacity, the "DOCUMENTATION AGENT") and GOLDMAN
SACHS CREDIT PARTNERS, L.P., as co-agent (the "CO-AGENT", and together with the
Administrative Agent, the Syndication Agent and the Documentation Agent, the
"AGENTS").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Investcorp Investment Equity Limited ("IIEL"), an affiliate of
Investcorp, S.A., certain of its affiliated entities and other initial investors
(collectively, the "INVESTORS") and Werner Holding Co. (PA), Inc., a
Pennsylvania corporation ("Holdings") have entered into an Amended and Restated
Recapitalization Agreement, dated as of October 27, 1997, as amended (together
with any schedule (including those contained in the Company Disclosure Letter
thereto) attached thereto, as amended, supplemented or otherwise modified from
time to time, the "RECAPITALIZATION AGREEMENT"), which will effect a
recapitalization (the "Recapitalization") of Holdings;
WHEREAS, upon the consummation of the Recapitalization, the Investors
will own at least 66.7% of the common stock of Holdings and certain existing
shareholders and management (the "EXISTING SHAREHOLDERS") will own the remaining
portion of such common stock;
WHEREAS, Holdings and the Company intend to finance the
Recapitalization (including the refinancing of certain existing indebtedness)
and related premiums, fees and expenses from the following sources: (a)
$182,000,000 in common equity (consisting of a cash investment of at least
$122,700,000 from the Investors, with the balance consisting of retained common
equity equal to (x) in the case of existing management shareholders,
approximately $23,700,000 and (y) in the case of other existing shareholders,
approximately $35,600,000 (with the transactions described in this clause (a)
being hereinafter referred to as the "EQUITY CONTRIBUTION"); (b) $320,000,000
from the senior secured credit facilities provided for herein comprised of a
$90,000,000 B term loan facility, a $55,000,000 C term loan facility, a
$100,000,000 revolving credit facility and a $75,000,000 receivables financing
credit facility; and (c) $135,000,000 in gross cash proceeds from an issuance by
the
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Company of either (i) subordinated unsecured loans or (ii) senior subordinated
notes; and
WHEREAS, the Company has requested the Lenders to make loans and other
extensions of credit available to the Company to enable the Company to finance a
portion of the Recapitalization and for the other purposes set forth herein;
NOW, THEREFORE, the Company, the Administrative Agent, the Syndication
Agent, the Documentation Agent, the Co-Agent, the Issuing Lender and the Lenders
agree as follows:
SECTION 1
DEFINITIONS
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1.1 DEFINED TERMS. As used in this Agreement, the terms defined
in the caption hereto shall have the meanings set forth therein, and the
following terms have the following meanings:
"ACQUIRED CAPITAL EXPENDITURES": as defined in subsection 9.7.
"ACQUIRED PERSON": as defined in subsection 9.7.
"ADDITIONAL MORTGAGE": as defined in subsection 8.9(f).
"ADJUSTED WORKING CAPITAL": at any time shall mean an amount
equal to the Consolidated Current Assets at such time minus
Consolidated Current Liabilities at such time.
"ADJUSTMENT DATE": as defined in the definition of Applicable
Margin.
"ADMINISTRATIVE AGENT": as defined in the preamble hereto.
"AFFECTED EURODOLLAR LOANS": as defined in subsection 5.4(b).
"AFFILIATE": of any Person (a) any Person (other than the
Company or a Wholly-Owned Subsidiary Guarantor) which, directly or
indirectly, is in control of, is controlled by, or is under common
control with such Person, or (b) any Person who is a director or
officer (i) of such Person, (ii) of any Subsidiary of such Person or
(iii) of any Person described in clause (a) above. For purposes of
this definition, control of a Person shall mean the power, direct or
indirect, (x) to vote 25% or more of the securities having ordinary
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voting power for the election of directors of such Person,
whether by ownership of securities, contract, proxy or
otherwise, or (y) to direct or cause the direction of the
management and policies of such Person, whether by ownership of
securities, contract, proxy or otherwise.
"AGENTS": as defined in the preamble hereto.
"AGGREGATE UNUTILIZED COMMITMENT": with respect to any Lender at
any time shall mean the sum of (a) each Lender's Available Revolving
Credit Commitment at such time plus (b) such Lender's Available
Receivables Financing Commitment at such time.
"AGREEMENT": this Credit Agreement, as amended, supplemented or
modified from time to time.
"ALTERNATE BASE RATE": 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 Base CD Rate in
effect on such day plus 1/2 of 1%. For purposes hereof: "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 not being intended
to be the lowest rate of interest charged by the Administrative Agent
in connection with extensions of credit to debtors); and "BASE CD
RATE" shall mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) a fraction, the numerator of which is one
and the denominator of which is one minus the C/D Reserve Percentage
and (b) the C/D Assessment Rate; "THREE-MONTH SECONDARY CD RATE" shall
mean, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such day (or,
if such day shall not be a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day), or, if such
rate shall not be so reported on such day or such next preceding
Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New
York City received at approximately 10:00 A.M., New York City time, on
such day (or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Administrative Agent from three New
York City negotiable certificate of deposit dealers of recognized
standing selected by it. Any change in the Alternate Base Rate due to
a change in the Prime Rate or the Base CD Rate shall be effective as
of the opening of business on the effective day of such change in the
Prime Rate or the Base CD Rate, respectively.
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"ALTERNATE BASE RATE LOANS": Loans at such time as they are made
and/or being maintained at a rate of interest based upon the Alternate
Base Rate.
"APPLICABLE MARGIN": for B Term Loans, C Term Loans, Revolving
Credit Loans, Receivables Financing Loans and Swing Line Loans of the
Types set forth below, the rate per annum set forth under the relevant
column heading opposite such Loans below:
Alternate Base
Rate Eurodollar
Loans Loans
----- -----
B Term Loans 1.50% 2.50%
C Term Loans 1.75% 2.75%
Revolving Credit Loans 1.25% 2.25%
Receivables Financing Loans 0.50% (or, at 1.50% (or, at
any time on any time on
and after and after
May 31, 1998, May 31, 1998,
1.25%) 2.25%)
Swing Line Loans 1.25% Not applicable
; PROVIDED that the Applicable Margin with respect to B Term
Loans, C Term Loans, Revolving Credit Loans, Receivables
Financing Loans and Swing Line Loans will be adjusted on each
Adjustment Date (as defined below) to the applicable rate per
annum set forth in the pricing grid attached hereto as Schedule
II based on the Leverage Ratio as determined from the relevant
financial statements delivered pursuant to subsection 8.1(a) or
(b). Changes in the Applicable Margin resulting from changes in
the Leverage Ratio shall become effective on the date (the
"ADJUSTMENT DATE") on which such financial statements are
delivered to the Lenders (but in any event not later than the
50th day after the end of each of the first three quarterly
periods of each fiscal year or the 95th day after the end of
each fiscal year as the case may be) and shall remain in effect
until the next change to be effected pursuant to this
definition, PROVIDED that (a) the Applicable Margin shall be
initially the rate per annum set forth under the relevant column
heading above; (b) the first Adjustment Date shall not occur
until the later of (x) the date of delivery of financial
statements pursuant to subsection 8.1(b) for the fiscal quarter
ended March 31, 1998 or (y) May 31, 1998; (c) if for any reason
the financial statements required by
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subsection 8.1(a) or (b), as the case may be, are not timely
delivered to the Lenders, the Leverage Ratio shall be (i) 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 Applicable Margin in effect
immediately prior to the date such financial statements were
due, and (ii) if such financial statements, when actually
delivered, would have required an increase in the Applicable
Margin over the Applicable Margin in effect immediately prior to
the date such financial statements were due, the Company shall
promptly following the delivery of such financial statements pay
to the Lenders and the Administrative Agent any additional
amounts of interest or fees which would have been payable on any
previous Interest Payment Date had such higher Applicable Margin
been in effect from the date such financial statements were
required to be delivered; and (d) if any Default or Event of
Default shall have occurred and be continuing on any Adjustment
Date, the Applicable Margins for the various Types and Tranches
of Loans shall in no event be reduced on such Adjustment Date
(from the Applicable Margins as in effect immediately before
such Adjustment Date).
"ASSET SALE": (i) any sale, sale-leaseback, or other
disposition by the Company or any Subsidiary restricted by
subsection 9.5 of any of its property or assets, including the
stock of any Subsidiary, except sales and dispositions permitted
by subsections 9.5(a), (b), (c), (f), (g), (h), (k) and (l),
(ii) any partial or complete liquidation of any Captive
Insurance Subsidiary (including by way of a return of excess
assets therefrom following any transfer of liabilities of the
respective Captive Insurance Subsidiary), including, without
limitation, as contemplated by subsection 9.5(j) and (iii) any
sale, sale-leaseback or other disposition of assets by Holdings.
"ASSIGNEE": as defined in subsection 12.6(c).
"ASSIGNMENT AND ACCEPTANCE": an assignment and acceptance
substantially in the form of Exhibit E.
"AVAILABLE RECEIVABLES FINANCING COMMITMENT": as to
any Lender, at any particular time, an amount equal to (a) the
amount of such Lender's Receivables Financing Commitment at such
time LESS (b) the aggregate unpaid principal amount at such time
of all Receivables Financing Loans made by such Lender pursuant
to subsection 4.1: collectively as to all the Lenders, the
"AVAILABLE RECEIVABLES FINANCING COMMITMENTS".
"AVAILABLE REVOLVING CREDIT COMMITMENT": as to any
Lender, at a particular time, an amount equal to (a) the amount
of such Lender's Revolving Credit Commitment at such time LESS
(b) the sum of (i) the aggregate unpaid
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principal amount at such time of all Revolving Credit Loans made
by such Lender pursuant to subsection 3.1, (ii) such Lender's
Revolving Credit Commitment Percentage of the aggregate unpaid
principal amount at such time of all Swing Line Loans, PROVIDED
that for purposes of calculating the Revolving Credit
Commitments pursuant to subsection 3.2 the amount referred to in
this clause (ii) shall be zero, (iii) such Lender's L/C
Participating Interest in the aggregate amount available to be
drawn at such time under all outstanding Letters of Credit
issued by the Issuing Lender and (iv) such Lender's Revolving
Credit Commitment Percentage of the aggregate outstanding amount
of L/C Obligations; collectively, as to all the Lenders, the
"AVAILABLE REVOLVING CREDIT COMMITMENTS".
"B INSTALLMENT PAYMENT DATE": as defined in
subsection 5.4(e)(i).
"B MATURITY DATE": November 30, 2004.
"B TERM LOAN": as defined in subsection 2.1(a).
"B TERM LOAN COMMITMENT": as to any Lender, its
obligation to make a B Term Loan to the Company pursuant to
subsection 2.1(a) in an aggregate amount not to exceed the
amount set forth under such Lender's name in Schedule I opposite
the caption "B Term Loan Commitment" or in Schedule 1 to the
Assignment and Acceptance pursuant to which a Lender acquires
its B Term Loan Commitment, as the same may be adjusted pursuant
to subsection 12.6(c); collectively, as to all the Lenders, the
"B TERM LOAN COMMITMENTS".
"B TERM LOAN COMMITMENT PERCENTAGE": as to any Lender
at any time, the percentage of the aggregate B Term Loan
Commitments then constituted by such Lender's B Term Loan
Commitment.
"B TERM LOAN LENDER": Each Lender which has any
outstanding B Term Loans or a B Term Loan Commitment.
"B TERM LOAN NOTE": as defined in subsection 5.13(e).
"BANKRUPTCY CODE": Title I of the Bankruptcy Reform
Act of 1978, as amended and codified at Title 11 of the United
States Code.
"BASE AMOUNT": as defined in subsection 9.7.
"BOARD": the Board of Governors of the Federal
Reserve System, together with any successor.
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"BORROWING BASE": shall mean, as at any date on which
the amount thereof is being determined, an amount equal to 80%
of Eligible Receivables on the date with respect to which the
most recent Borrowing Base Certificate was required to be
prepared.
"BORROWING BASE CERTIFICATE": shall have the meaning
provided in subsection 8.1(e).
"BORROWING BASE DEFICIENCY": shall mean, at any time,
the amount, if any, by which the sum of the aggregate principal
amount of Receivables Financing Loans then outstanding exceeds
the Borrowing Base then in effect.
"BORROWING DATE": any Business Day specified in a
notice pursuant to (a) subsection 3.4 or 5.1 as a date on which
the Company requests the Swing Line Lender or the Lenders to
make Loans hereunder or (b) subsection 3.5 as a date on which
the Company requests the Issuing Lender to issue a Letter of
Credit hereunder.
"BRIDGE COMMITMENT LETTER": the Commitment Letter and
term sheet thereto dated as of November 14, 1997 by and between
Investcorp Investment Equity Limited, on its behalf and on
behalf of certain of its affiliates and other investors and
The Chase Manhattan Bank, Chase Securities Inc., DLJ Bridge
Finance, Inc. and Goldman Sachs Credit Partners L.P.
"BRIDGE LOAN AGREEMENT": the Bridge Loan Agreement
that may be entered into pursuant to the Bridge Commitment
Letter among The Chase Manhattan Bank, Chase Securities Inc.,
DLJ Bridge Finance, Inc. and Goldman Sachs Credit Partners L.P.
and the Company, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its
terms and the terms of this Agreement.
"BRIDGE SUBORDINATED DEBT": the subordinated bridge
loans or exchange notes of the Company outstanding from time to
time pursuant to the Bridge Loan Agreement or the Indenture
contemplated thereby.
"BRIDGE SUBORDINATED DEBT DOCUMENTS": the Bridge Loan
Agreement and the notes evidencing the Bridge Subordinated Debt.
"BTCo": Bankers Trust Company, in its individual
capacity.
"BUSINESS DAY": with respect to Eurodollar Loans, a
day other than a Saturday, Sunday or other day on which
commercial banks in New York City or London are authorized or
required to close; for all other purposes under this
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Agreement, a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or
required to close.
"C INSTALLMENT PAYMENT DATE": as defined in
subsection 5.4(e)(ii).
"C MATURITY DATE": November 30, 2005.
"C TERM LOAN": as defined in subsection 2.1(b).
"C TERM LOAN COMMITMENT": as to any Lender, its
obligation to make a C Term Loan to the Company pursuant to
subsection 2.1(b) in an aggregate amount not to exceed the
amount set forth under such Lender's name in Schedule I opposite
the caption "C Term Loan Commitment" or in Schedule 1 to the
Assignment and Acceptance pursuant to which a Lender acquires
its C Term Loan Commitment, as the same may be adjusted pursuant
to subsection 12.6(c); collectively, as to all the Lenders, the
"C TERM LOAN COMMITMENTS".
"C TERM LOAN COMMITMENT PERCENTAGE": as to any Lender
at any time, the percentage of the aggregate C Term Loan
Commitments then constituted by such Lender's C Term Loan
Commitment.
"C TERM LOAN LENDER": each Lender which has any
outstanding C Term Loans or a C Term Loan Commitment.
"C TERM LOAN NOTE": as defined in subsection 5.13(e).
"CAPITAL EXPENDITURES": for any period, all amounts
which would, in accordance with GAAP, be set forth as capital
expenditures (exclusive of any amount attributable to
capitalized interest) on the consolidated statement of cash
flows or other similar statement of the Company and its
Subsidiaries for such period and shall in any event include
expenditures in connection with acquisitions the Company elects
to be included as Capital Expenditures pursuant to subsection
9.6(g)(B) but shall exclude (x) any expenditures made with the
proceeds of condemnation or eminent domain proceedings affecting
real property or with insurance proceeds and (y) any
expenditures made in connection with subsection 9.5(i); PROVIDED
that, any Capital Expenditures financed with the proceeds of any
Indebtedness permitted hereunder (other than Indebtedness
incurred hereunder) shall be deemed to be a Capital Expenditure
only in the period in which, and by the amount which, any
principal of such Indebtedness is repaid.
"CAPITAL STOCK": any and all shares, interests,
participations or other equivalents (however designated) of
capital stock of a corporation, any and all
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equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any
of the foregoing.
"CAPTIVE INSURANCE SUBSIDIARY": MIICA and its
Subsidiaries and any other captive insurance subsidiary of the
Company.
"CASH EQUIVALENTS": (a) securities issued or directly
and fully guaranteed or insured by the United States or any
agency or instrumentality thereof having maturities of not more
than six months from the date of acquisition, (b) certificates
of deposit and eurodollar time deposits with maturities of one
year or less from the date of acquisition, bankers' acceptances
with maturities not exceeding one year and overnight bank
deposits, in each case with any Lender or with any domestic (in
the case of any investments, acquisitions or holdings by the
Company or its Domestic Subsidiaries) commercial bank or trust
company having capital and surplus in excess of $300,000,000,
(c) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses
(a) and (b) entered into with any financial institution meeting
the qualifications specified in clause (b) above, (d) commercial
paper having the highest rating obtainable from S&P or Moody's
and in each case maturing within one year after date of
acquisition; (e) investment funds investing 95% of their assets
in securities of the type described in clauses (a)-(d) above,
(f) readily marketable direct obligations issued by any state of
the United States or any political subdivision thereof having
one of the two highest rating categories obtainable from either
S&P or Moody's and (g) indebtedness with a rating of "A" or
higher from S&P or "A2" or higher from Moody's.
"C/D ASSESSMENT RATE": for any day the net annual
assessment rate (rounded upwards, if necessary, to the next
1/100 of 1%) determined by the Administrative Agent to be
payable on such day to the Federal Deposit Insurance Corporation
or any successor ("FDIC") for FDIC's insuring time deposits made
in Dollars at offices of the Administrative Agent in the United
States.
"C/D RESERVE PERCENTAGE": for any day as applied to
any Base CD Rate, that percentage (expressed as a decimal) which
is in effect on such day, as prescribed by the Board for
determining maximum reserve requirement for a Depositary
Institution (as defined in Regulation D of the Board) in respect
of new non-personal time deposits in Dollars having a maturity
of 30 days or more.
"CHANGE IN LAW": with respect to any Lender, the
adoption of, or change in, any law, rule, regulation, policy,
guideline or directive (whether or
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not having the force of law) or any change in the interpretation
or application thereof by any Governmental Authority having
jurisdiction over such Lender, in each case after the Closing
Date.
"CHANGE OF CONTROL": shall be considered to have
occurred if (i) at any time prior to an IPO by Holdings or the
Company, Investcorp or any of its Affiliates (PROVIDED that for
purposes of this definition only the reference to 25% in the
definition of Affiliate contained in subsection 1.1 shall be
deemed to be 51%) or Subsidiaries, any Person that is a member
of the senior management of the Company or Holdings, or any
entity the majority of the equity ownership interests of which
is owned by such senior management of the Company or Holdings,
shall cease to own, directly or indirectly, in the aggregate, at
least 51% of the issued and outstanding voting stock of
Holdings, free and clear of all Liens, (ii) at any time after an
IPO by Holdings or the Company, any Person (other than
Investcorp, any of its Affiliates or Subsidiaries, any Person
that is a member of the senior management of the Company or
Holdings, any entity the majority of the equity ownership
interests of which is owned by such senior management of the
Company or Holdings, any Person acting in the capacity of an
underwriter or, in the case of the Company, Holdings), whether
singly or in concert with one or more Persons, shall, directly
or indirectly, have acquired, or acquire the power (x) to vote
or direct the voting of 30% or more, on a fully diluted basis,
of the outstanding common stock of Holdings or the Company or
(y) to elect or designate for election a majority of the Board
of Directors of Holdings or the Company by voting power,
contract or otherwise, (iii) at any time (whether before or
after an IPO by Holdings), Holdings for any reason ceases to own
100% of the outstanding Capital Stock of the Company (other than
common (or other voting) stock of the Company sold pursuant to
an IPO of the Company) or (iv) a Liquidity Event (as defined in
Exhibit B to Holdings' Amended and Restated Articles of
Incorporation, as in effect on the Closing Date and as same may
be amended, modified or supplemented from time to time) shall
occur, except if the Liquidity Event occurs solely as a result
of an IPO by the Company or Holdings, in which the equity
securities sold by the Company or Holdings, as the case may be,
represent at least 10% of the equity securities of such issuer
outstanding at the conclusion of such IPO.
"CLOSING DATE": the date (which shall be on or prior
to January 31, 1998) on which the Lenders make their initial
Loans.
"CO-AGENT": as defined in the preamble hereto.
"CO-ARRANGERS": as defined in the preamble hereto.
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17
"CODE": the Internal Revenue Code of 1986, as amended
from time to time.
"COLLATERAL": all assets of the Credit Parties, now
owned or hereafter acquired, upon which a Lien is purported to
be created by any Security Document.
"COMMERCIAL L/C": a commercial documentary Letter of
Credit under which the Issuing Lender agrees to make payments in
Dollars for the account of the Company, on behalf of the Company
or a Subsidiary, in respect of obligations of the Company or
such Subsidiary in connection with the purchase of goods or
services in the ordinary course of business.
"COMMITMENT": as to any Lender at any time, such
Lender's Swing Line Commitment, B Term Loan Commitment, C Term
Loan Commitment, Revolving Credit Commitment and Receivables
Financing Commitment; collectively, as to all the Lenders, the
"COMMITMENTS".
"COMMITMENT PERCENTAGE": as to any Lender at any
time, its B Term Loan Commitment Percentage, C Term Loan
Commitment Percentage, Revolving Credit Commitment Percentage or
its Receivables Financing Commitment Percentage, as the context
may require.
"COMMONLY CONTROLLED ENTITY": an entity, whether or
not incorporated, which is under common control with the Company
within the meaning of Section 4001 of ERISA or is part of a
group which includes the Company and which is treated as a
single employer under Section 414(b) or (c) of the Code.
"COMPANY": as defined in the preamble hereto.
"COMPANY PLEDGE AGREEMENT": the Pledge Agreement,
substantially in the form of Exhibit H-1, to be made by the
Company in favor of the Administrative Agent, for the ratable
benefit of the Lenders, as the same may be amended, modified or
supplemented from time to time.
"COMPANY SECURITY AGREEMENT": the Company Security
Agreement, substantially in the form of Exhibit F-1, to be made
by the Company in favor of the Administrative Agent, for the
ratable benefit of the Lenders, as the same may be amended,
modified or supplemented from time to time.
"CONSOLIDATED CURRENT ASSETS": at a particular date,
all amounts (other than cash and Cash Equivalents) which would,
in conformity with GAAP, be
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18
included under current assets on a consolidated balance sheet of
the Company and its Subsidiaries as at such date, excluding any
current assets of Captive Insurance Subsidiaries.
"CONSOLIDATED CURRENT LIABILITIES": at a particular
date, all amounts which would, in conformity with GAAP, be
included under current liabilities on a consolidated balance
sheet of the Company and its Subsidiaries as at such date,
excluding (x) the current portion of long-term debt and the
entire outstanding principal amount of the Loans and (y) any
current liabilities of Captive Insurance Subsidiaries.
"CONSOLIDATED EBITDA": for any period, the
Consolidated Net Income of the Company and its Subsidiaries for
such period, PLUS (or MINUS, in the case of non-cash gains
described in clause (r) (to the extent such gains are included)
and clause (s) below), without duplication and to the extent
reflected as a charge (or gain) in the statement of such
Consolidated Net Income for such period, the sum of (a) total
income tax expense (including, without duplication, dividends or
distributions for taxes paid pursuant to subsection 9.12(f)),
(b) interest expense (including, for this purpose, Receivables
Facility Interest Expense, whether or not same would constitute
interest expense in accordance with GAAP), amortization or
writeoff of debt discount, debt issuance, warrant and other
equity issuance costs and commissions, discounts, redemption
premium and other fees and charges associated with the Loans,
letters of credit permitted hereunder, Financing Leases, the
Subordinated Debt or the acquisition or repayment of any debt
securities of the Company permitted hereunder, and net costs
associated with Interest Rate Agreements to which the Company is
a party in respect of the Loans (including commitment fees and
other periodic bank charges), (c) costs of surety bonds, (d)
depreciation and amortization expense, (e) amortization of
inventory write-up under APB 16, amortization of intangibles
(including, but not limited to, goodwill and costs of interest-
rate caps and the cost of non-competition agreements) and
organization costs, (f) non-cash amortization of Financing
Leases, (g) franchise taxes, (h) the fees, expenses and other
costs incurred in connection with the Recapitalization,
including payments to management of the Company or Holdings
contemplated by the Recapitalization Agreement, in each case, to
the extent that such fee, expense or cost was disclosed in the
Offering Memorandum, together with all other management fees
paid as contemplated by subsection 12.15 and charges related to
management fees prepaid in connection with the Recapitalization,
(i) all cash dividend payments (and non-cash dividend expenses)
on any series of preferred stock, (j) any expenses incurred in
connection with any merger, any acquisition or joint venture
permitted herein, (k) any other write-downs, write-offs,
minority interests and other non-cash charges or expenses, (l)
insurance reserves LESS cash payments
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in respect of such reserves, (m) any non-cash restructuring
charge or reserve less cash payments in respect of such
reserves, (n) expenses and charges related to any equity
offering, (o) expenses consisting of internal software
development costs that are expensed during the period but could
have been capitalized in accordance with GAAP, (p)
securitization expense, (q) nonrecurring litigation or claim
settlement charges or expenses, (r) any unrealized gains or
losses with respect to Permitted Insurance Company Investments
held in any Captive Insurance Subsidiary shall be excluded, and
(s) losses or charges (or minus any gains) from the sale of
assets outside the ordinary course of business, together with
any related provisions for taxes on such gain or loss or
charges; PROVIDED that (i) the cumulative effect of a change in
accounting principles (effected either through cumulative effect
adjustment or a retroactive application) shall be excluded, (ii)
the net income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition
shall be excluded, (iii) the impact of foreign currency and
hedging translations and transactions shall be excluded, and
(iv) all other extraordinary gains, losses and charges shall be
excluded; PROVIDED FURTHER, that Consolidated EBITDA for any
quarterly period that begins prior to the Closing Date shall be
determined as follows: (w) Consolidated EBITDA for the fiscal
quarter ended March 31, 1997 shall be deemed to be $11,100,000,
(x) Consolidated EBITDA for the fiscal quarter ended June 30,
1997 shall be deemed to be $18,400,000, (y) Consolidated EBITDA
for the fiscal quarter ended September 30, 1997 shall be deemed
to be $15,800,000, and (z) Consolidated EBITDA for the fiscal
quarter ended December 31, 1997 shall be deemed to be the
Consolidated EBITDA for such quarter as determined above (and
without regard to this proviso), adjusted by adding thereto
$2,600,000, representing adjustments for private company
expenses, normalized MIICA investment income and reductions in
management compensation.
"CONSOLIDATED FUNDED INDEBTEDNESS": at a particular
date, the sum of (x) all Indebtedness (other than Indebtedness
described in clauses (b), (c) or (f) of the definition of
"Indebtedness" included in this subsection 1.1), of the Company
and its Subsidiaries determined on a consolidated basis in
accordance with GAAP at such date and (y) without duplication of
amounts already included pursuant to preceding clause (x), the
aggregate amount of all Receivables Facility Attributed
Indebtedness then outstanding.
"CONSOLIDATED NET INCOME": for any period, net income
of the Company and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; PROVIDED that: (i)
the net income (but not loss) of any Person that is not a
Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of
dividends or distributions paid in cash to the Company or a
Wholly-Owned Subsidiary, (ii) net income of
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20
any Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by
that Subsidiary of that net income is prohibited or not
permitted at the date of determination and (iii) Consolidated
Net Income shall be reduced by, without duplication, dividends
or distributions paid by the Company pursuant to subsections
9.12(e) and (f).
"CONTINGENT OBLIGATION": as to any Person, any
obligation of such Person guaranteeing or in effect guaranteeing
any Indebtedness ("PRIMARY OBLIGATIONS") of any other Person
(the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, including, without limitation, any obligation of
such Person, whether or not contingent (a) to purchase any such
primary obligation or any property constituting direct or
indirect security therefor, (b) to advance or supply funds (i)
for the purchase or payment of any such primary obligation or
(ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (c) 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
(d) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; PROVIDED,
that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated
or determinable amount (based on the maximum reasonably
anticipated net liability in respect thereof as determined by
the Company in good faith) of the primary obligation or portion
thereof in respect of which such Contingent Obligation is made
or, if not stated or determinable, the maximum reasonably
anticipated net liability in respect thereof (assuming such
Person is required to perform thereunder) as determined by the
Company in good faith.
"CONTRACTUAL OBLIGATION": as to any Person, any
provision of any security issued by such Person or of any
agreement, instrument or undertaking to which such Person is a
party or by which it or any of the property owned by it is
bound.
"CREDIT DOCUMENTS": the collective reference to this
Agreement, the Notes, the Pledge Agreements, the Security
Agreements, the Mortgages and the Guarantees.
"CREDIT PARTIES": the collective reference to
Holdings, the Company and each Subsidiary which may from time to
time be party to a Credit Document.
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21
"DEFAULT": any of the events specified in Section 10,
whether or not any requirement for the giving of notice, the
lapse of time, or both, 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 other than a
Foreign Subsidiary.
"ELIGIBLE RECEIVABLES": shall mean the total face
amount of the receivables of the Company and the Wholly-Owned
Subsidiary Guarantors which conform to the representations and
warranties with respect to receivables contained in the Security
Agreements (including, without limitation, that the
Administrative Agent shall have and maintain a first priority
perfected security interest in all such receivables), less any
returns, discounts, claims, credits and allowances of any nature
(whether issued, owing, granted or outstanding) and less
reserves taken by the Company or its respective Subsidiary with
respect to the receivables and excluding, without duplication,
(i) bill and hold (deferred shipment) transactions and progress
billings, (ii) contracts or sales to any Affiliate, (iii) all
receivables which have not been paid in full within 120 days
after the invoice date thereof or which have been disputed by
the account debtor, (iv) receivables of account debtors residing
or located outside the United States, (v) receivables of any
account debtor with respect to which any action or event of the
types described in subsection 10(f) has occurred, (vi)
receivables of any account debtor of which 15% or more of the
aggregate outstanding receivables of such account debtor owed to
the Company and Wholly-Owned Subsidiary Guarantors would be
excluded pursuant to clause (iii) hereof, (vii) to the extent
that the receivables of any account debtor exceed 10% (or, in
the case of a Qualified Account Debtor, 25%) of the total
outstanding receivables of all account debtors owed to the
Company and Wholly-Owned Subsidiary Guarantors, all receivables
of such account debtor in excess of such 10% (or 25%), (viii)
receivables with respect to which the Administrative Agent does
not have a valid, first priority and perfected security interest
and (ix) any receivable subject to a Lien (other than (x) Liens
granted to the Collateral Agent as contemplated hereunder and
(y) so long as the Collateral Agent maintains a first priority
perfected security interest in such receivables, junior liens
that are Permitted Liens as described in clauses (a) and (b) of
subsection 9.2).
"ENVIRONMENTAL LAWS": any and all foreign, Federal,
state, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees
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22
or requirements of any Governmental Authority or requirements of
law (including, without limitation, common law) regulating or
imposing liability or standards of conduct concerning
environmental or public health protection matters, including,
without limitation, Hazardous Materials, as now or may at any
time hereafter be in effect.
"ENVIRONMENTAL PERMITS": any and all permits,
licenses, registrations, notifications, exemptions and any other
authorizations required under any Environmental Law.
"EQUITY CONTRIBUTION": as defined in the Recitals
hereto.
"ERISA": the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"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 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": with respect to each day
during each Interest Period pertaining to a Eurodollar Loan, the
rate per annum determined by the Administrative Agent to be the
arithmetic mean (rounded to the nearest 1/100th of 1%) of the
offered rates for deposits in Dollars with a term comparable to
such Interest Period that appears on the Telerate British
Bankers Association Interest Settlement Rates Page (as defined
below) at approximately 11:00 A.M., London time, on the second
full Business Day preceding the first day of such Interest
Period; PROVIDED that if there shall at any time no longer exist
a Telerate British Bankers Association Interest Settlement Rates
Page, "Eurodollar Base Rate" shall mean, with respect to each
day during each Interest Period pertaining to a Eurodollar Loan,
the rate per annum equal to the rate at which BTCo is offered
Dollar deposits at or about 10:00 A.M., New York City time, two
Business Days prior to the beginning of such Interest Period in
the interbank eurodollar market where the euro-dollar and
foreign currency and exchange operations in respect of its
Eurodollar Loans are then being conducted for delivery on the
first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of
its Eurodollar Loan to be outstanding during such Interest
Period. "TELERATE BRITISH BANKERS ASSOC. INTEREST SETTLEMENT
RATES PAGE" shall mean the display
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designated as Page 3750 on the Telerate System Incorporated
Service (or such other page as may replace such page on such
service for the purpose of displaying the rates at which Dollar
deposits are offered by leading banks in the London interbank
deposit market).
"EURODOLLAR LENDING OFFICE": as to any Lender the
office of such Lender which shall be making or maintaining
Eurodollar Loans.
"EURODOLLAR LOANS": Loans at such time as they are
made and/or being maintained at a rate of interest based upon a
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 10, PROVIDED that any requirement for the giving of
notice, the lapse of time, or both, has been satisfied.
"EXCESS CASH FLOW": for each Excess Cash Flow Period
of the Company the excess of (a) the sum of (i) Consolidated
EBITDA for such Excess Cash Flow Period plus (ii) the decrease,
if any, in Adjusted Working Capital from the first day of the
respective Excess Cash Flow Period to the last day of the
respective Excess Cash Flow Period, over (b) the sum, without
duplication, of (i) the aggregate amount actually paid by the
Company and its Subsidiaries in cash during such Excess Cash
Flow Period on account of capital expenditures or acquisitions
(other than capital expenditures made with the proceeds of
eminent domain or condemnation proceedings to the extent such
proceeds are not included in the determination of Consolidated
EBITDA for such Excess Cash Flow Period), (ii) the aggregate
amount of payments of principal in respect of any Indebtedness
during such Excess Cash Flow Period (other than any such
payments of principal (1) pursuant to subsections 5.4(c) and
(g), (2) in respect of any revolving credit or similar facility
to the extent that there is not an equivalent reduction in such
facility or (3) otherwise made with proceeds of asset sales or
refinancing Indebtedness), (iii) the increase, if any, in
Adjusted Working Capital from the first day of such Excess Cash
Flow Period to the last day of such Excess Cash Flow Period,
(iv) cash interest
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expense (including fees paid in connection with letters of
credit and surety bonds and commitment fees and other periodic
bank charges and including Receivables Facility Interest
Expense, whether or not same would constitute interest expense
in accordance with GAAP) of the Company and its consolidated
Subsidiaries (determined on a consolidated basis) for such
period, (v) the amount of taxes actually paid in cash by the
Company and its Subsidiaries for such Excess Cash Flow Period
(including, without limitation, any dividend or distribution
pursuant to subsection 9.12(f)) either during such Excess Cash
Flow Period or within a normal payment period thereof (PROVIDED
that any amount deducted pursuant to this clause (v) which was
not actually paid during the respective Excess Cash Flow Period
shall not again be deducted in determining Excess Cash Flow for
any other Excess Cash Flow Period of the Company), (vi) to the
extent added to Consolidated Net Income of the Company and its
Subsidiaries in calculating Consolidated EBITDA for such Excess
Cash Flow Period, the net cost of Interest Rate Agreements,
franchise taxes and management fees, (vii) without duplication
of amounts already deducted in determining Excess Cash Flow, the
amount of cash actually paid by the Company in connection with
clauses (b), (g), (h), (i), (j), (m), (n), (o), (p), (q) and
clauses (iii) and (iv) of the proviso in the definition of
Consolidated EBITDA during such Excess Cash Flow Period and
(viii) the amount of any cash actually paid in connection with
reserves other than insurance reserves established in accordance
with GAAP or, in the case of insurance reserves, the amount of
such reserves taken for that period minus the amount of cash
paid during such period, in respect of such reserves and (ix)
MIICA investment income for such period; PROVIDED, that to the
extent that Excess Cash Flow for any Excess Cash Flow Period (as
reduced by this proviso for negative Excess Cash Flow from the
prior Excess Cash Flow Period) is less than zero, the amount by
which Excess Cash Flow is less than zero shall reduce Excess
Cash Flow for the immediately succeeding fiscal year.
"EXCESS CASH FLOW PERIOD": means (i) the period
(taken as one accounting period) from the Closing Date and
ending on December 31, 1998 and (ii) each fiscal year of the
Company ended thereafter.
"EXISTING CREDIT AGREEMENTS": each of (i) the Amended
and Restated Senior Revolving Credit and Term Loan Agreement,
dated as of July 31, 1995, as amended, by and between National
City Bank, the lenders set forth therein, Werner Co., and
Olympus Properties, Inc. and (ii) the Amended and Restated Note
Purchase Agreement, dated as of October 1, 1991, as amended, by
and between Prudential Insurance Company of America, PRUCO Life
Insurance Company, Werner Co. (formerly, R.D. Werner Co., Inc.)
and Olympus Properties, Inc.
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"EXISTING SHAREHOLDERS": as defined in the Recitals
hereto.
"FACING FEE": As defined in subsection 3.9(b).
"FEE PROPERTY": as defined in subsection 6.13.
"FINANCING LEASE": (a) any lease of property, real or
personal, the obligations under which are capitalized on a
consolidated balance sheet of the Company and its consolidated
Subsidiaries and (b) any other such lease to the extent that the
then present value of any rental commitment thereunder should,
in accordance with GAAP, be capitalized on a balance sheet of
the lessee.
"FOREIGN SUBSIDIARY": any Subsidiary which is not
organized under the laws of the United States or any state
thereof or the District of Columbia.
"GAAP": generally accepted accounting principles in
the United States in effect from time to time.
"GOVERNMENTAL AUTHORITY": any nation or government,
any state or other political subdivision thereof or any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"GUARANTEES": the collective reference to the
Holdings Guarantee, the Subsidiary Guarantee and any guarantee
which may from time to time be executed and delivered by a
Subsidiary pursuant to subsection 8.9.
"GUARANTOR": Holdings and each Subsidiary Guarantor.
"HAZARDOUS MATERIALS": any hazardous materials,
hazardous wastes, hazardous pesticides or hazardous or toxic
substances, and any other material that may give rise to
liability under any Environmental Law, including, without
limitation, asbestos, petroleum, any other petroleum products
(including gasoline, crude oil or any fraction thereof),
polychlorinated biphenyls and urea-formaldehyde insulation.
"HIGHEST LAWFUL RATE": as defined in subsection
12.13.
"HOLDINGS": as defined in the Recitals hereto.
"HOLDINGS GUARANTEE": the Holdings Guarantee,
substantially in the form of Exhibit G-1, to be made by Holdings
in favor of the Administrative
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Agent for the ratable benefit of the Lenders, as same may be
amended, modified or supplemented from time to time.
"HOLDINGS/SUBSIDIARY PLEDGE AGREEMENT": the
Holdings/Subsidiary Pledge Agreement, substantially in the form
of Exhibit H-2, to be made by Holdings and each Subsidiary
Guarantor in favor of the Administrative Agent for the ratable
benefit of the Lenders, as the same may be amended, modified or
supplemented from time to time.
"IIEL": as defined in the Recitals hereto.
"IMMATERIAL SUBSIDIARY": shall mean any Subsidiary of
the Company that owns (and continues to own) no assets (other
than nominal assets) and does not (and continues not to) engage
in any substantive operations.
"INDEBTEDNESS": of a Person, at a particular date,
(a) all indebtedness of such Person for borrowed money or for
the deferred purchase price of property or services, (b) the
undrawn face amount of all letters of credit issued for the
account of such Person and, without duplication, all drafts and
demands drawn thereunder and unpaid reimbursement obligations
with respect thereto, (c) all liabilities (other than Lease
Obligations and liabilities in connection with reserves
established in accordance with GAAP) secured by any Lien on any
property owned by such Person, even though such Person has not
assumed or become liable for the payment thereof, (d) Financing
Leases, (e) indebtedness incurred in connection with any
Receivables Facility and (f) all indebtedness of such Person
arising under acceptance facilities, but excluding (i) trade and
other accounts payable and accrued expenses payable in the
ordinary course of business which are not overdue for a period
of more than 90 days or, if overdue for more than 90 days, as to
which a dispute exists and adequate reserves in conformity with
GAAP have been established on the books of such Person and (ii)
letters of credit supporting the purchase of goods in the
ordinary course of business and expiring no more than six months
from the date of issuance; PROVIDED that obligations in respect
of Interest Rate Agreements shall not be included in this
definition.
"INDUSTRIAL REVENUE BONDS": the industrial revenue
bonds, due 2015, in the initial aggregate principal amount of
$5,000,000, issued pursuant to the Trust Indenture, dated as of
September 1, 1990, between the County of Carroll, Kentucky and
Dai-Ichi Kangyo Trust Company of New York, as trustee.
"INSOLVENCY": with respect to any Multiemployer Plan,
the condition that such Plan is insolvent within the meaning of
Section 4245 of ERISA.
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27
"INSOLVENT": pertaining to a condition of Insolvency.
"INSTALLMENT PAYMENT DATE": means any B Installment
Payment Date or C Installment Payment Date.
"INTEREST COVERAGE RATIO": on the last day of any
fiscal quarter of the Company, the ratio of (a) Consolidated
EBITDA for the period of four fiscal quarters ending on such
day; to (b) cash interest expense (excluding (i) fees and
expenses payable on account of letters of credit, (ii) to the
extent included in interest expense in accordance with GAAP, net
costs associated with Interest Rate Agreements to which the
Company is party in respect of the Loans and other periodic bank
charges and amortization of debt discount (including discount of
liabilities and reserves established under APB 16) and (iii)
costs of debt issuance and interest expense on customer
deposits) for such period net of cash interest income, in each
case, for or during such period on a consolidated basis for the
Company and its Subsidiaries (for purposes of this definition,
"CASH INTEREST EXPENSE"); PROVIDED that for purposes of
preceding clause (b), (A) the cash interest component (and only
the cash interest component) of Receivables Facility Interest
Expense for such period shall be included as a component of Cash
Interest Expense (and shall be added thereto, to the extent not
already reflected therein), regardless of the treatment of
amounts constituting Receivables Facility Interest Expense under
GAAP; and (B) to the extent Cash Interest Expense is being
determined for any period that begins prior to the Closing Date,
the following rules shall apply: (y) Cash Interest Expense for
all fiscal quarters ended prior to the Closing Date shall be
deemed to be $7,500,000 and (z) Cash Interest Expense for the
fiscal quarter ended December 31, 1997 shall be deemed to be the
sum of (1) Cash Interest Expense for the period from (but
excluding) the Closing Date to and including the last day of
such fiscal quarter as determined above (and without regard to
this proviso) and (2) an amount equal to $4,402,174.
"INTEREST PAYMENT DATE": (a) as to Alternate Base
Rate Loans, the last day of each March, June, September and
December, commencing on the first such day to occur after any
Alternate Base Rate Loans are made or any Eurodollar Loans are
converted to Alternate Base Rate Loans, (b) as to any Eurodollar
Loan in respect of which the Company has selected an Interest
Period of one, two or three months, the last day of such
Interest Period and (c) as to any Eurodollar Loan in respect of
which the Company has selected a longer Interest Period than the
periods described in clause (b), the last day of each three
calendar month interval during such Interest Period and, in
addition, the last day of such Interest Period.
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"INTEREST PERIOD": with respect to any Eurodollar
Loan:
(a) initially, the period commencing on,
as the case may be, the Borrowing Date or conversion
date with respect to such Eurodollar Loan and ending
one, two, three or six months thereafter (or, if and
when available to all the relevant Lenders, nine or
twelve months thereafter) as selected by the Company
in its notice of borrowing as provided in subsection
5.1 or its notice of conversion as provided in
subsection 5.2; and
(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 thereafter (or, if and when
available to all the relevant Lenders, nine or twelve
months thereafter) as selected by the Company 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 to
such Eurodollar Loan;
PROVIDED that the foregoing provisions relating to
Interest Periods are subject to the following:
(A) if any Interest Period would otherwise
end on a day which is not a Business Day, that
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;
(B) any Interest Period that would
otherwise extend beyond (i) in the case of an
Interest Period for a B Term Loan or C Term Loan, the
final B Installment Payment Date or C Installment
Payment Date, respectively, shall end on such B
Installment Payment Date or C Installment Payment
Date, as the case may be, or, if such B Installment
Payment Date or C Installment Payment Date, as the
case may be, shall not be a Business Day, on the next
preceding Business Day; (ii) in the case of any
Interest Period for a Revolving Credit Loan, the
Revolving Credit Termination Date shall end on the
Revolving Credit Termination Date, or if the
Revolving Credit Termination Date shall not be a
Business Day, on the next preceding Business Day; and
(iii) in the case of any Interest Period for a
Receivables Financing Loan, the Receivables Financing
Termination Date shall end on the Receivables
Financing Termination Date, or if the Receivables
Financing Termination Date shall not be a Business
Day, on the next preceding
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Business Day;
(C) if the Company shall fail to give
notice as provided above in clause (b), it shall be
deemed to have selected a conversion of a Eurodollar
Loan into an Alternate Base Rate Loan (which
conversion shall occur automatically and without need
for compliance with the conditions for conversion set
forth in subsection 5.2);
(D) any Interest Period that begins on the
last 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
(E) the Company shall select Interest
Periods so as not to require a prepayment (to the
extent practicable) or a scheduled payment of a
Eurodollar Loan during an Interest Period for such
Eurodollar Loan.
"INTEREST RATE AGREEMENT": any interest rate swap
agreement, interest rate cap agreement, interest rate collar
agreement or other similar agreement or arrangement.
"INVESTCORP": Investcorp S.A., a Luxembourg
corporation.
"INVESTMENT GRADE SECURITIES": (i) securities issued
or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof (other than
Cash Equivalents), (ii) debt securities or debt instruments with
a rating of BBB- or higher by S&P or Baa3 by Moody's or the
equivalent of such rating by such rating organization, or if no
rating of S&P's or Moody's then exists, the equivalent of such
rating by any other nationally recognized securities rating
agency, but excluding any debt securities or instruments
constituting loans or advances among the Company and its
Subsidiaries and (iii) investments in any fund that invests
exclusively in investments of the type described in clauses (i)
and (ii) which fund may also hold immaterial amounts of cash
pending investment and/or distribution.
"INVESTORS": as defined in the Recitals hereto.
"IPO": any sale by the Company or Holdings through a
public offering of its common (or other voting) stock pursuant
to an effective registration statement (other than a
registration statement on Form S-4, S-8 or any successor or
similar form) filed under the Securities Act of 1933, as
amended.
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"ISSUING LENDERS": BTCo and any of its Affiliates, as
issuer of the Letters of Credit; with respect to any Letter of
Credit, the term "Issuing Lender" shall mean the Issuing Lender
with respect to such Letter of Credit.
"L/C OBLIGATIONS": the obligations of the Company to
reimburse the Issuing Lender for any payments made by the
Issuing Lender under any Letter of Credit that have not been
reimbursed by the Company pursuant to subsection 3.8(a).
"L/C PARTICIPATING INTEREST": an undivided
participating interest in the face amount of each issued and
outstanding Letter of Credit.
"LEASE OBLIGATIONS": of the Company and its
Subsidiaries, as of the date of any determination thereof, the
rental commitments of the Company and its Subsidiaries
determined on a consolidated basis, if any, under leases for
real and/or personal property (net of rental commitments from
sub-leases thereof), excluding however, obligations under
Financing Leases.
"LEASED PROPERTIES": as defined in subsection 6.13.
"LENDERS": as defined in the preamble hereto.
"LETTER OF CREDIT REQUEST": as defined in subsection
3.5(a).
"LETTERS OF CREDIT": the collective reference to the
Commercial L/Cs and the Standby L/Cs; individually, a "LETTER OF
CREDIT".
"LEVERAGE RATIO": as defined in subsection 9.9;
PROVIDED that for purposes of calculating the Leverage Ratio on
any date, the cash and Cash Equivalent balances without
encumbrances (other than Liens permitted pursuant to subsection
9.2(f)) of the Company and the Wholly-Owned Subsidiary
Guarantors on such date shall be deducted from the amount of
Consolidated Funded Indebtedness on such date.
"LIEN": any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or
other), or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other
title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing,
and the filing of any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction in respect
of any of the foregoing, except for the filing of financing
statements in connection with Lease Obligations incurred by the
Company or its Subsidiaries
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to the extent that such financing statements relate to the
property subject to such Lease Obligations).
"LOANS": the collective reference to the B Term Loans,
the C Term Loans, the Revolving Credit Loans, the Receivables
Financing Loans and the Swing Line Loans; individually, a "LOAN".
"MIICA" means Manufacturers Indemnity and Insurance
Company of America, a Colorado corporation, or any successor
thereto.
"MOODY'S": Moody's Investors Service, Inc.
"MORTGAGED PROPERTIES": (a) the Real Property
designated as "Mortgaged Property" on Schedule 6.13 and (b) any
fee Real Property covered by a Mortgage delivered pursuant to
subsection 8.9(f).
"MORTGAGES": as defined in subsection 8.9(e).
"MULTIEMPLOYER PLAN": a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"NET PROCEEDS": for any Person, the aggregate cash
proceeds received by such Person or its Subsidiaries in respect
of:
(a)(i) any issuance or borrowing of any debt
securities or loans by such Person or its Subsidiaries
other than debt or loans permitted to be incurred or
borrowed pursuant to (x) in the case of the Company and
its Subsidiaries, subsection 9.1 and (y) in the case of
Holdings, subsection 10(b) of the Holdings Guarantee,
or (ii) any issuance of Capital Stock of such Person
(excluding any such issuance to any Investor or any
Affiliate thereof);
(b) any Asset Sale;
(c) any cash received in respect of
substantially like-kind exchanges of property to the
extent provided in the proviso to subsection 9.5(e);
and
(d) any cash payments received in respect of
promissory notes delivered to Holdings or such
Subsidiary in respect of an Asset Sale;
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in each case net of (without duplication) (A) the amount required
to repay any Indebtedness (other than the Loans) secured by a Lien
on any assets of Holdings or a Subsidiary that are collateral for
any such debt securities or loans that are sold or otherwise
disposed of in connection with such Asset Sale, (B) the reasonable
expenses (including legal fees and brokers' and underwriters'
commissions, lenders fees or credit enhancement fees, in any case,
paid to third parties or, to the extent permitted hereby,
Affiliates) incurred in effecting such issuance or sale and (C)
any taxes reasonably attributable to such sale and reasonably
estimated by Holdings or such Subsidiary to be actually payable.
"NON-FUNDING LENDER": as defined in subsection 5.9(c).
"NOTES": the collective reference to the B Term Loan
Notes, the C Term Loan Notes, the Revolving Credit Notes, the
Receivables Financing Notes and the Swing Line Note; each of the
Notes, a "NOTE".
"OFFERING MEMORANDUM": the offering memorandum dated
November 14, 1997 with respect to the Senior Subordinated Notes.
"PARTICIPANTS": as defined in subsection 12.6(b).
"PARTICIPATING LENDER": any Lender with respect to its
L/C Participating Interest in each Letter of Credit.
"PAYMENT SHARING NOTICE": a written notice from the
Company or any Lender informing the Administrative Agent that an
Event of Default has occurred and is continuing and directing the
Administrative Agent to allocate payments thereafter received from
or on behalf of the Company in accordance with the provisions of
subsection 5.9.
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA or any
successor.
"PERMANENT SUBORDINATED DEBT": (i) unsecured notes or
debentures of the Company, subordinated to the prior payment of
the Loans and the other obligations under the Credit Documents and
related Interest Rate Agreements, that may be issued by the
Company on the Closing Date, PROVIDED that (a) such notes or
debentures have terms which are as favorable to the Lenders as the
terms set forth in the Offering Memorandum, (b) no part of the
principal amount of any such notes or debentures shall have a
scheduled maturity date earlier than November 30, 2006, (c) unless
otherwise agreed to by the Required Lenders, (I) the subordination
provisions of which are as favorable to
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the Lenders as such provisions set forth in the Offering
Memorandum, (II) the terms and conditions thereof (including,
without limitation, subordination, covenant and events of default
provisions thereof but excluding any call protection provisions)
taken as a whole shall be at least as favorable to the Company and
the Lenders as such terms and conditions set forth in the Offering
Memorandum, and (III) the non-default cash interest rate thereon
shall not exceed 15% per annum and the total non-default interest
rate shall not exceed 16% per annum and (d) substantially final
drafts of the documentation governing any such notes or
debentures, showing the terms thereof, shall have been furnished
to the Co-Arrangers at least 5 days prior to the date of issuance
of such notes or debentures and (ii) unsecured notes or debentures
of the Company, subordinated to the prior payment of the Loans and
the other obligations under the Credit Documents and related
Interest Rate Agreements, that may be issued by the Company to
refinance previously issued Bridge Subordinated Debt or Permanent
Subordinated Debt, PROVIDED that (a) unless otherwise agreed to by
the Required Lenders, (I) no part of the principal amount of any
such notes or debentures shall have a scheduled amortization date
earlier then November 30, 2006 and (II) the interest rate and
subordination provisions shall be at least as favorable to the
Company and the Lenders as such provisions of refinanced Permanent
Subordinated Debt and the other terms and conditions thereof
(including, without limitation, the covenant and event of default
provisions thereof but excluding any call protection provisions)
taken as a whole shall be at least as favorable to the Company and
the Lenders as such refinanced Bridge Subordinated Debt or
Permanent Subordinated Debt, as the case may be, and (b) the
conditions contained in clause (i) (d) of this definition shall be
met.
"PERMITTED INSURANCE COMPANY INVESTMENTS" means
investments in (a) Cash Equivalents; (b) Investment Grade
Securities; (c) investments of MIICA existing on the Closing Date;
and (d) other types of debt and equity securities, real estate or
other investments; PROVIDED, HOWEVER, that (i) the aggregate
amount of all Permitted Insurance Company Investments referred to
in clause (d) shall not, at the time any such investment is made,
exceed 40% of all outstanding Permitted Insurance Company
Investments made after the Closing Date, and (ii) each Captive
Insurance Subsidiary shall at all times have an investment policy
approved from time to time by the Board of Directors of Holdings,
the Company or such Captive Insurance Subsidiary pursuant to which
all Permitted Insurance Company Investments shall be required to
be made.
"PERMITTED LIENS": Liens permitted to exist under
subsection 9.2.
"PERSON": an individual, partnership, corporation,
business trust, joint
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stock company, limited liability 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 Company or a
Commonly Controlled Entity is (or, if such plan were terminated at
such time, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"PLEDGE AGREEMENTS": the collective reference to the
Company Pledge Agreement, the Holdings/Subsidiary Pledge Agreement
and any pledge agreement from time to time executed and delivered
by the Company or any Subsidiary providing for the pledge of the
Capital Stock of any Subsidiary pursuant to subsection 8.9.
"PRO FORMA BALANCE SHEET": as defined in subsection
6.1(c).
"QUALIFIED ACCOUNT DEBTOR": the account debtors set
forth on Schedule III hereto and any other qualified account
debtor reasonably acceptable to the Co-Arrangers.
"QUALIFIED CAPITAL STOCK": of any Person shall mean any
capital stock of such Person which is not Disqualified Stock.
"REAL PROPERTY": each Fee Property and Leased Property
listed on Schedule 6.13, as well as any other real property or
leasehold interest owned, acquired or obtained by the Company
and/or its Subsidiaries after the Closing Date.
"RECAPITALIZATION": as defined in the Recitals hereto.
"RECAPITALIZATION AGREEMENT": as defined in the
Recitals hereto.
"RECEIVABLES FACILITY": one or more non-recourse
receivables facilities providing for the sale, encumbrance or
other disposition, at any time or from time to time, of all or a
portion of the accounts receivable of the Company or any of its
Subsidiaries, whether existing on the date of this Agreement or
hereafter arising, PROVIDED that (i) the terms and conditions of
each Receivables Facility shall be satisfactory to the
Co-Arrangers and (ii) in the case of the initial Receivables
Facility, (x) the amount of such initial Receivables Facility
shall in no event be less than the amount necessary to pay all
outstanding principal, accrued and unpaid interest, and penalties
and fees, if any, relating to the Receivables Financing Loans and
(y) on the date that such
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initial Receivables Facility is effected, the Receivables
Financing Commitments shall terminate pursuant to subsection
5.3(b) and all Receivables Financing Loans shall become due and
payable in full pursuant to subsection 5.4(g).
"RECEIVABLES FACILITY ASSETS": accounts receivable and
related ancillary rights, including, without limitation, any
security interests or guarantees securing the payment of such
receivables, of the Company or any of its Subsidiaries, whether
existing on the date hereof or hereafter arising, that are sold,
encumbered or disposed of at any time or from time to time in
connection with a Receivables Facility.
"RECEIVABLES FACILITY ATTRIBUTED INDEBTEDNESS": at any
time, the aggregate amount theretofore paid to the Company and/or
its Subsidiaries in respect of Receivables Facility Assets sold by
them pursuant to one or more Receivables Facilities, in each case
to the extent the respective Receivables Facility Assets have not
yet been repaid by the respective account debtor or repurchased by
the Company and/or its Subsidiaries (excluding any Receivables
SPV) (it being the intent of the parties that the amount of
Receivables Facility Attributed Indebtedness at any time
outstanding approximate as closely as possible the principal
amount of Indebtedness which would be outstanding at such time
under the Receivables Facilities if same were structured as a
secured lending agreement rather than a purchase agreement).
"RECEIVABLES FACILITY INTEREST EXPENSE": for any
period, shall mean all fees, service charges and other costs, as
well as all collections or other amounts retained by the
Receivables Financiers which are in excess of amounts paid to the
Company and its Subsidiaries for the purchase of receivables
pursuant to the Receivables Facilities.
"RECEIVABLES FINANCIERS": any purchaser or other entity
(excluding Holdings and its Subsidiaries) providing financing
pursuant to one or more Receivables Facilities.
"RECEIVABLES FINANCING COMMITMENT": as to any Lender,
its obligations to make Receivables Financing Loans to the Company
pursuant to subsection 4.1, in an aggregate amount not to exceed
the amount set forth under such Lender's name in Schedule I
opposite the caption "Receivables Financing Commitment" or in
Schedule 1 to the Assignment and Acceptance by which such Lender
acquired its Receivables Financing Commitment, as the same may be
reduced from time to time pursuant to subsections 5.3, 5.4(b) or
5.4(c) or adjusted pursuant to subsection 12.6(c); collectively,
as to all the Lenders, the "RECEIVABLES FINANCING COMMITMENTS".
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"RECEIVABLES FINANCING COMMITMENT PERCENTAGE": as to
any Lender at any time, the percentage of the aggregate
Receivables Financing Commitments then constituted by such
Lender's Receivables Financing Commitment.
"RECEIVABLES FINANCING COMMITMENT PERIOD": the period
from and including the Closing Date to but not including the
Receivables Financing Termination Date.
"RECEIVABLES FINANCING LENDER": any Lender with a
Receivables Financing Commitment.
"RECEIVABLES FINANCING LOAN" and "RECEIVABLES FINANCING
LOANS": as defined in subsection 4.1(a).
"RECEIVABLES FINANCING NOTE": As defined in subsection
5.13(e).
"RECEIVABLES FINANCING TERMINATION DATE": The earlier
of (a) November 30, 2003 and (b) such other earlier date as the
Receivables Financings Commitments shall terminate hereunder.
"RECEIVABLES SPV": a special purpose company
established by the Company or any of its Subsidiaries and so
existing solely for purposes of a Receivables Facility.
"RECOVERY EVENT": shall mean the receipt by Holdings or
any of its Subsidiaries of any cash insurance proceeds or
condemnation award payable (i) by reason of theft, loss, physical
destruction or damage or any other similar event with respect to
any property or assets of Holdings or any of its Subsidiaries and
(ii) under any policy of insurance required to be maintained under
subsection 8.5(b).
"REFUNDED SWING LINE LOANS": as defined in subsection
3.4(b).
"REGISTER": as defined in subsection 12.6(d).
"RELATED DOCUMENT": any agreement, certificate,
document or instrument relating to a Letter of Credit.
"REORGANIZATION": with respect to any Multiemployer
Plan, the condition that such Plan is in reorganization as such
term is used in Section 4241 of ERISA.
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"REPORTABLE EVENT": any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the
thirty day notice is waived under subpart B of PBGC Reg.
Section 4042.
"REQUIRED LENDERS": at a particular time, the holders
of at least 51% of the sum of (i) the aggregate unpaid principal
amount of the Term Loans, if any, (ii) the Revolving Credit
Commitments or, if the Revolving Credit Commitments are
terminated, the aggregate unpaid principal amount of the Revolving
Credit Loans, and participations in Swing Line Loans and the
aggregate amount available to be drawn at such time under all
outstanding Letters of Credit and L/C Obligations and (iii) the
Receivables Financing Commitments or, if the Receivables Financing
Commitments are terminated, the aggregate unpaid principal amount
of the Receivables Financing Loans. The Term Loans, the Revolving
Credit Commitments and the Receivables Financing Commitments of
any Non-Funding Lender shall be disregarded in determining
Required Lenders at any time.
"REQUIREMENT OF LAW": as to any Person, the Articles or
Certificate of Incorporation and By-Laws or other organizational
or governing documents of such Person, and any law, treaty, rule
or regulation, order, 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": with respect to any Person, the
president, chief executive officer, the chief operating officer,
the chief financial officer, treasurer, controller or any vice
president of such Person.
"REVOLVING CREDIT COMMITMENT": as to any Lender, its
obligations to make Revolving Credit Loans to the Company pursuant
to subsection 3.1 and to purchase its L/C Participating Interest
in any Letter of Credit, in an aggregate amount not to exceed the
amount set forth under such Lender's name in Schedule I opposite
the caption "Revolving Credit Commitment" or in Schedule 1 to the
Assignment and Acceptance by which such Lender acquired its
Revolving Credit Commitment, as the same may be reduced from time
to time pursuant to subsection 5.3 or 5.4(c) or adjusted pursuant
to subsection 12.6(c); collectively, as to all the Lenders, the
"REVOLVING CREDIT COMMITMENTS".
"REVOLVING CREDIT COMMITMENT PERCENTAGE": as to any
Lender at any time, the percentage of the aggregate Revolving
Credit Commitments then constituted by such Lender's Revolving
Credit Commitment.
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"REVOLVING CREDIT COMMITMENT PERIOD": the period from
and including the Closing Date to but not including the Revolving
Credit Termination Date.
"REVOLVING CREDIT LENDER": any Lender with a Revolving
Credit Commitment.
"REVOLVING CREDIT LOAN" and "REVOLVING CREDIT LOANS":
as defined in subsection 3.1(a).
"REVOLVING CREDIT NOTE": as defined in subsection
5.13(e).
"REVOLVING CREDIT TERMINATION DATE": the earlier of (a)
November 30, 2003 and (b) such other earlier date as the Revolving
Credit Commitments shall terminate hereunder.
"SECURITY AGREEMENTS": the collective reference to the
Company Security Agreement, the Subsidiary Security Agreement and
any security agreement which may from time to time be executed and
delivered by a Subsidiary of the Company pursuant to subsection
8.9.
"SECURITY DOCUMENTS": the collective reference to the
Pledge Agreements, the Security Agreements and the Mortgages.
"SENIOR SUBORDINATED NOTES": the senior subordinated
notes (or any refinancing thereof permitted hereunder) which shall
be: (a) issued under the Indenture, dated as of even date herewith
between the Company and IBJ Schroder Bank & Trust Company, as
Trustee; and (b) shall have material terms and conditions as
described in the Offering Memorandum.
"SINGLE EMPLOYER PLAN": any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"S&P": Standard and Poor's Ratings Services, a division
of McGraw-Hill Companies, Inc.
"STANDARD SECURITIZATION UNDERTAKINGS" means
representations, warranties, covenants and indemnities entered
into by the Company and its Subsidiaries in connection with a
Receivables Facility in each case which are reasonably customary
in an off-balance sheet accounts receivable transaction (and which
do not amount to guarantees of repayment of amounts from time to
time outstanding pursuant to the respective Receivables Facility).
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"STANDBY L/C": an irrevocable letter of credit under
which the Issuing Lender agrees to make payments in Dollars for
the account of the Company, on behalf of the Company or any
Subsidiary in respect of obligations of the Company or such
Subsidiary incurred pursuant to contracts made or performances
undertaken or to be undertaken or like matters relating to
contracts to which the Company or such Subsidiary is or proposes
to become a party in the ordinary course of the Company's or such
Subsidiary's business, including, without limiting the foregoing,
for insurance purposes or in respect of advance payments or as bid
or performance bonds or for any other purpose for which a standby
letter of credit might customarily be issued.
"SUBORDINATED DEBT": collectively, the Bridge
Subordinated Debt and the Permanent Subordinated Debt.
"SUBSECTION 5.11(D)(2) CERTIFICATE": as defined in
subsection 5.11(d).
"SUBSIDIARY": as to any Person, a corporation,
partnership, limited liability company or other entity of which
shares of stock of each class or other interests having ordinary
voting power (other than stock or other 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, by such Person or
by one or more Subsidiaries of such Person or by such Person and
one or more Subsidiaries of such Person. A Subsidiary shall be
deemed wholly-owned by a Person who owns directly or indirectly
all of the voting shares of stock or other interests of such
Subsidiary having voting power under ordinary circumstances to
vote for directors or other managers of such corporation,
partnership or other entity, except for directors' qualifying
shares. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to
a Subsidiary or Subsidiaries of the Company.
"SUBSIDIARY GUARANTEE": the Subsidiary Guarantee,
substantially in the form of Exhibit G-2, to be made by certain
Domestic Subsidiaries of the Company (other than any Receivables
SPV, any Captive Insurance Subsidiary, any Immaterial Subsidiary,
so long as each remains as such, and any joint venture or other
Person in which (x) there are no investments by the Company or any
of its Subsidiaries as of the Closing Date and (y) all investments
by the Company or its Subsidiaries after the Closing Date are made
pursuant to subsection 9.6(h)) in favor of the Administrative
Agent for the ratable benefit of the Lenders, as the same may be
amended, modified or supplemented from time to time.
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"SUBSIDIARY GUARANTOR": at any time shall mean each
Subsidiary of the Company which is a party to a Guarantee.
"SUBSIDIARY SECURITY AGREEMENT": the Subsidiary
Security Agreement, substantially in the form of Exhibit F-2, to
be made by each Subsidiary Guarantor in favor of the
Administrative Agent for the ratable benefit of the Lenders, as
the same may be amended, modified or supplemented from time to
time.
"SUPERMAJORITY LENDERS": at a particular time, the
holders of at least 66-2/3% of the sum of (i) the aggregate unpaid
principal amount of the Term Loans, if any, (ii) the Revolving
Credit Commitments or, if the Revolving Credit Commitments are
terminated, the aggregate unpaid principal amount of the Revolving
Credit Loans, and participations in Swing Line Loans and the
aggregate amount available to be drawn at such time under all
outstanding Letters of Credit and L/C Obligations and (iii) the
Receivables Financing Commitments or, if the Receivables Financing
Commitments are terminated, the aggregate unpaid principal amount
of the Receivables Financing Loans. The Term Loans, the Revolving
Credit Commitments and the Receivables Financing Commitments of
any Non-Funding Lender shall be disregarded in determining
Supermajority Lenders at any time.
"SWING LINE COMMITMENT": the Swing Line Lender's
obligation to make Swing Line Loans pursuant to subsection 3.4.
"SWING LINE LENDER": BTCo in its capacity as lender of
the Swing Line Loans.
"SWING LINE LOANS": as defined in subsection 3.4(a).
"SWING LINE NOTE": as defined in subsection 5.13(e).
"SYNDICATION AGENT": as defined in the preamble hereto.
"SYNDICATION DATE": shall mean that date upon which the
Administrative Agent determines in its sole discretion (and
notifies the Company) that the primary syndication (and resultant
addition of institutions as Lenders pursuant to subsection 12.6)
has been completed.
"TERM LOAN" and "TERM LOANS": as defined in subsection
2.1(b).
"TOTAL TERM LOAN COMMITMENT": Collectively, as to all
the Lenders,
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the sum of the B Term Loan Commitments and C Term Loan
Commitments.
"TRANCHE": shall mean the respective facility and
commitments utilized in making any Loan hereunder, with there
being five separate Tranches on the Closing Date, I.E., B Term
Loans, C Term Loans, Revolving Credit Loans, Receivables Financing
Loans and Swing Line Loans.
"TRANSACTION": collectively, (i) the Recapitalization,
(ii) the Equity Contribution, (iii) the issuance of the
Subordinated Debt on the Closing Date, (iv) the incurrence of the
Loans on the Closing Date, and (v) the payment of fees and
expenses owing in connection with the foregoing.
"TRANSFEREE": as defined in subsection 12.6(f).
"TYPE": as to any Loan, its nature as an Alternate Base
Rate Loan or Eurodollar Loan.
"UNIFORM CUSTOMS": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, and any amendments thereof.
"UNITED STATES": the United States of America.
"WHOLLY-OWNED DOMESTIC SUBSIDIARY": shall mean each
Domestic Subsidiary which is also a Wholly-Owned Subsidiary.
"WHOLLY-OWNED FOREIGN SUBSIDIARY": shall mean each
Foreign Subsidiary which is also a Wholly-Owned Subsidiary.
"WHOLLY-OWNED SUBSIDIARY": each Subsidiary of the
Company which is wholly-owned by it, as provided in the second
sentence of the definition of Subsidiary contained herein.
"WHOLLY-OWNED SUBSIDIARY GUARANTOR": shall mean each
Subsidiary Guarantor which is also a Wholly-Owned Subsidiary.
1.2 OTHER DEFINITIONAL PROVISIONS. Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Notes, any other Credit Document or any certificate or other
document made or delivered pursuant hereto.
As used herein and in the Notes, any other Credit Document and
any certificate or other document made or delivered pursuant hereto, accounting
terms
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relating to the Company 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. To the extent
there are any changes in GAAP from the date of this Agreement, the financial
covenants set forth herein at the option of the Company will either (i)
continue to be determined in accordance with GAAP in effect on the Closing
Date, as applicable, or (ii) be adjusted or reset to reflect such changes in
GAAP, such adjustments or resets to be mutually agreed to by the Company and
the Co-Arrangers.
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.
The meanings given to terms defined herein shall be equally
applicable to the singular and plural forms of such terms.
SECTION 2
TERM LOANS
----------
2.1 TERM LOANS. (a) Subject to the terms and conditions hereof, each
Lender severally agrees to make a loan in Dollars (individually, a "B TERM
LOAN"; and collectively, the "B TERM LOANS") to the Company on the Closing
Date, which B Term Loans shall be (i) made and initially maintained as a single
borrowing of Alternate Base Rate Loans (subject to the option to convert such B
Term Loans pursuant to subsection 5.2) and (ii) in an aggregate principal
amount equal to such Lender's B Term Loan Commitment.
(b) Subject to the terms and conditions hereof, each Lender
severally agrees to make a loan in Dollars (individually, a "C TERM LOAN"; and
collectively, the "C TERM LOANS" and together with the B Term Loans, the "TERM
LOANS") to the Company on the Closing Date, which C Term Loans shall be (i)
made and initially maintained as a single borrowing of Alternate Base Rate
Loans (subject to the option to convert such C Term Loans pursuant to
subsection 5.2) and (ii) in an aggregate principal amount equal to such
Lender's C Term Loan Commitment.
2.2 REPAYMENT OF TERM LOANS. The Company shall repay the Term Loans
as provided in subsection 5.4(e).
2.3 USE OF PROCEEDS. The proceeds of the Term Loans shall be used
(a) to finance a portion of the cash consideration payable in the
Recapitalization and other payments pursuant to the Recapitalization Agreement
and to pay fees, expenses
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and financing costs in connection therewith, and (b) to refinance certain of
the existing Indebtedness of Holdings and its Subsidiaries.
SECTION 3
AMOUNT AND TERMS OF
REVOLVING CREDIT COMMITMENTS
----------------------------
3.1 REVOLVING CREDIT COMMITMENTS. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to the extent of its Revolving
Credit Commitment to extend credit to the Company from time to time on any
Borrowing Date during the Revolving Credit Commitment Period (i) by purchasing
an L/C Participating Interest in each Letter of Credit issued by the Issuing
Lender and (ii) by making loans in Dollars (individually, such a Loan is a
"REVOLVING CREDIT LOAN", and collectively such Loans are the "REVOLVING CREDIT
LOANS") to the Company from time to time. Notwithstanding the above (i) in no
event shall any Revolving Credit Loans be made, or Letter of Credit be issued,
if the aggregate amount of the Revolving Credit Loans to be made or Letter of
Credit to be issued would, after giving effect to the use of proceeds, if any,
thereof, exceed the aggregate Available Revolving Credit Commitments nor shall
any Letter of Credit be issued if after giving effect thereto the sum of the
undrawn amount of all outstanding Letters of Credit and the amount of all L/C
Obligations would exceed $30,000,000 and (ii) prior to the earlier of (x) the
35th day after the Closing Date and (y) the Syndication Date, the following
restrictions shall apply: (I) no Revolving Credit Loans may be incurred as
Eurodollar Loans prior to the fifth day after the Closing Date and (II) no more
than one Borrowing of Revolving Credit Loans may be incurred as Eurodollar
Loans, which Borrowing of Eurodollar Loans shall be incurred on the fifth day
after the Closing Date and have a one month Interest Period. During the
Revolving Credit Commitment Period, the Company may use the Revolving Credit
Commitments by borrowing, prepaying the Revolving Credit Loans in whole or in
part, and reborrowing, all in accordance with the terms and conditions hereof,
and/or by having the Issuing Lender issue Letters of Credit, having such
Letters of Credit expire undrawn upon or if drawn upon, reimbursing the Issuing
Lender for such drawing, and having the Issuing Lender issue new Letters of
Credit.
(b) Each borrowing of Revolving Credit Loans pursuant to the
Revolving Credit Commitments shall be in an aggregate principal amount of the
lesser of (i) $1,000,000 or a whole multiple of $100,000 in excess thereof in
case of Alternate Base Rate Loans, and $2,000,000 or a whole multiple of
$1,000,000 in excess thereof, in the case of Eurodollar Loans and (ii) the
Available Revolving Credit Commitments, except that any borrowing of Revolving
Credit Loans to be made as Alternate Base Rate Loans and to be used solely to
pay a like amount of Swing Line Loans may be in the aggregate principal amount
of such Swing Line
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Loans.
3.2 COMMITMENT FEE. The Company agrees to pay to the Adminis-
trative Agent for the account of each Lender (other than any Non-Funding
Lender) a commitment fee from and including the Closing Date to and including
the later of the Revolving Credit Termination Date and the Receivables
Financing Termination Date, computed at the applicable rate (on each Adjustment
Date pursuant to the guidelines set forth in the definition of Applicable
Margin) per annum set forth on Schedule II on the average daily amount of the
Aggregate Unutilized Commitment of such Lender during the period for which
payment is made (whether or not the Company shall have satisfied the applicable
conditions to borrow or for the issuance of a Letter of Credit set forth in
Section 7); PROVIDED that from the Closing Date until the first Adjustment Date
the commitment fee shall be 0.50% per annum. Such commitment fee shall be
payable quarterly in arrears on the last day of each March, June, September and
December and on the later of the Revolving Credit Termination Date and the
Receivables Financing Termination Date, commencing on the later of (x) the
first such date to occur on or following the Closing Date (or, if earlier, the
later of the Revolving Credit Termination Date and the Receivables Financing
Termination Date) or (y) March 31, 1998.
3.3 PROCEEDS OF REVOLVING CREDIT LOANS. The Company shall use the
proceeds of Revolving Credit Loans (a) as set forth in subsection 2.3, (b) for
general corporate and working capital purposes of the Company and its
Subsidiaries and (c) to finance acquisitions permitted by subsection 9.6(g).
3.4 SWING LINE COMMITMENT. (a) Subject to the terms and conditions
hereof, the Swing Line Lender agrees, so long as the Administrative Agent has
not received (and forwarded to the Swing Line Lender if different than the
Administrative Agent) notice that a Default or Event of Default has occurred and
is continuing (in each case until such notice has been rescinded or the
Administrative Agent determines in good faith, and notifies the Swing Line
Lender, that all Defaults and/or Events of Default have been cured or waived),
to make swing line loans (individually, a "SWING LINE LOAN"; collectively, the
"SWING LINE LOANS") to the Company from time to time during the Revolving Credit
Commitment Period in an aggregate principal amount at any one time outstanding
not to exceed $10,000,000, PROVIDED that no Swing Line Loan may be made if the
aggregate principal amount of the Swing Line Loans to be made would exceed the
aggregate Available Revolving Credit Commitments at such time. Amounts borrowed
by the Company under this subsection 3.4 may be repaid and, through but
excluding the Revolving Credit Termination Date, reborrowed. All Swing Line
Loans shall be made as Alternate Base Rate Loans and shall not be entitled to be
converted into Eurodollar Loans. The Company shall give the Swing Line Lender
irrevocable notice (which notice must be received by the Swing Line Lender prior
to 1:00 p.m., New York City time) on the requested Borrowing Date
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specifying the amount of each requested Swing Line Loan, which shall be in an
aggregate minimum amount of $250,000 or a whole multiple of $100,000 in excess
thereof. The proceeds of each Swing Line Loan will be made available by the
Swing Line Lender to the Company by crediting the account of the Company at the
office of the Swing Line Lender with such proceeds. The proceeds of Swing Line
Loans may be used solely for the purposes referred to in subsection 3.3.
(b) The Swing Line Lender at any time in its sole and absolute dis-
cretion may, and on the fifteenth day (or if such day is not a Business Day, the
next Business Day) and last Business Day of each month shall, on behalf of the
Company (which hereby irrevocably directs the Swing Line Lender to act on its
behalf) request each Revolving Credit Lender, including the Swing Line Lender,
to make a Revolving Credit Loan in an amount equal to such Lender's Revolving
Credit Commitment Percentage of the amount of the Swing Line Loans (the
"REFUNDED SWING LINE LOANS") outstanding on the date such notice is given.
Unless any of the events described in paragraph (f) of Section 10 shall have
occurred (in which event the procedures of paragraph (c) of this subsection 3.4
shall apply) each such Lender shall make the proceeds of its Revolving Credit
Loan available to the Swing Line Lender for the account of the Swing Line Lender
at the office of the Swing Line Lender specified in subsection 12.2 (or such
other location as the Swing Line Lender may direct) prior to 12:00 noon (New
York City time) in funds immediately available on the Business Day next
succeeding the date such notice is given. The proceeds of such Revolving Credit
Loans shall be immediately applied to repay the Refunded Swing Line Loans.
(c) If prior to the making of a Revolving Credit Loan pursuant to
paragraph (b) of this subsection 3.4 one of the events described in paragraph
(f) of Section 10 shall have occurred, each Revolving Credit Lender will, on the
date such Loan was to have been made, purchase an undivided participating
interest in the Refunded Swing Line Loan in an amount equal to its Revolving
Credit Commitment Percentage of such Refunded Swing Line Loan. Each such Lender
will immediately transfer to the Swing Line Lender in immediately available
funds, the amount of its participation.
(d) Whenever, at any time after the Swing Line Lender has received
from any Revolving Credit Lender such Lender's participating interest in a
Refunded Swing Line Loan, the Swing Line Lender receives any payment on account
thereof, the Swing Line Lender will distribute to such 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 Lender will return to the Swing Line Lender any portion thereof
previously distributed by the Swing Line Lender to it in like funds as such
payment is required to be returned by the Swing Line Lender.
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(e) The obligations of each Revolving Credit Lender pursuant to sub-
sections 3.4(b) and 3.4(c) shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the Swing Line Lender, the Company or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of an Event of Default; (iii) any
adverse change in the condition (financial or otherwise) of the Company; (iv)
any breach of this Agreement by the Company or any other Lender; or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
3.5 ISSUANCE OF LETTERS OF CREDIT. (a) The Company may from time to
time request the Issuing Lender to issue a Standby L/C or a Commercial L/C by
delivering to the Issuing Lender, with a copy to the Administrative Agent, a
written request to issue in the form of Exhibit N (a "LETTER OF CREDIT
REQUEST"), together with the proposed form of such Letter of Credit (which shall
comply with the applicable requirements of this agreement) and such other
certificates, documents and other papers and information which the Issuing
Lender may reasonably request; PROVIDED that if the Issuing Lender informs the
Company that it is for any reason unable to open such Letter of Credit, the
Company may request any Lender to open such Letter of Credit upon the same terms
offered to the Issuing Lender and each reference to the Issuing Lender for
purposes of subsections 3.5 through 3.14, 7.1 and 7.2 shall be deemed to be a
reference to such issuing Lender.
(b) Each Standby L/C and Commercial L/C issued hereunder shall, among
other things, (i) be in such form requested by the Company as shall be
acceptable to the Issuing Lender in its reasonable discretion, (ii) be
denominated in Dollars and issued payable on a sight basis unless otherwise
agreed by the Issuing Lender in its sole discretion and (iii) have an expiry
date occurring not later than 365 days (or such longer duration as may be agreed
upon by the Issuing Lender) after the date of issuance of such Letter of Credit
and may be automatically extended for additional periods equal to the initial
term, but in no case shall any Letter of Credit have an expiry date occurring
later than ten days prior to the Revolving Credit Termination Date. To the
extent possible, each Letter of Credit shall be issued subject to the Uniform
Customs and/or to the extent not inconsistent therewith, the laws of the State
of New York. In the event that the Issuing Lender of any Commercial L/C is other
than the Administrative Agent, such Issuing Lender will send by facsimile
transmission to the Administrative Agent, promptly on the first Business Day of
each week, its daily aggregate Letter of Credit Stated Amount for Commercial
L/Cs for the previous week. The Administrative Agent shall deliver to each
Participating Lender, upon each calendar month end and upon each Letter of
Credit fee payment, a report setting forth for such period the daily aggregate
Stated Amount available to be drawn under the Commercial Letters of Credits
issued by all the Issuing Lenders during such
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period.
3.6 PARTICIPATING INTERESTS. Effective in the case of each Standby
L/C and Commercial L/C (if applicable) as of the date of the opening thereof,
the Issuing Lender agrees to allot and does allot, to itself and each other
Revolving Credit Lender, and each such Lender severally and irrevocably agrees
to take and does take in such Letter of Credit, an L/C Participating Interest in
a percentage equal to such Lender's Revolving Credit Commitment Percentage.
3.7 PROCEDURE FOR OPENING LETTERS OF CREDIT. Upon receipt of a Letter
of Credit Request from the Company, the Issuing Lender will process the request
in accordance with its customary procedures. If the format of the requested
Letter of Credit is reasonably acceptable to the Issuing Lender, the Issuing
Lender shall open such Letter of Credit, PROVIDED that such opening does not
violate the conditions of the applicable subsections of this agreement, by
issuing the original of such Letter of Credit to the beneficiary and furnishing
a copy to the Company. Promptly after the issuance of, or amendment to, any
Standby L/C, the Issuing Lender shall notify the Administrative Agent and each
Lender of such issuance or amendment.
3.8 PAYMENTS IN RESPECT OF LETTERS OF CREDIT. (a) The Company agrees
forthwith upon demand by the Issuing Lender (i) to reimburse the Issuing Lender
for any payment made by the Issuing Lender under any Letter of Credit issued for
the account of the Company and (ii) to pay interest on any unreimbursed portion
of any such payment from the date of such payment until reimbursement in full
thereof at a rate per annum equal to (A) on or prior to the date which is one
Business Day after the day on which the Issuing Lender demands reimbursement
from the Company for such payment, the Alternate Base Rate plus the Applicable
Margin for the Revolving Credit Loans and (B) thereafter, the Alternate Base
Rate plus the Applicable Margin for the Revolving Credit Loans plus 2%.
(b) In the event that the Issuing Lender makes a payment under any
Letter of Credit and is not reimbursed in full therefor forthwith upon demand of
the Issuing Lender, the Issuing Lender will promptly notify the Administrative
Agent which will promptly notify each other Revolving Credit Lender. Forthwith
upon its receipt of any such notice, each such other Lender will transfer to the
Administrative Agent for the account of the Issuing Lender, in immediately
available funds, an amount equal to such other Lender's PRO RATA share (based on
its Revolving Credit Commitment) of the L/C Obligation arising from such
unreimbursed payment.
(c) Whenever, at any time after the Issuing Lender has made a pay-
ment under any Letter of Credit and has received from any other Revolving Credit
Lender such other Lender's PRO RATA share of the L/C Obligation arising
therefrom, the Issuing Lender receives any reimbursement on account of such L/C
Obligation or
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any payment of interest on account thereof, the Issuing Lender will promptly
distribute to such other Lender its PRO RATA share thereof in like funds as
received; PROVIDED that in the event that the receipt by the Issuing Lender of
such reimbursement or such payment of interest (as the case may be) is required
to be returned, such other Lender will return to the Issuing Lender any portion
thereof previously distributed by the Issuing Lender to it in like funds as such
reimbursement or payment is required to be returned by the Issuing Lender.
3.9 LETTER OF CREDIT FEES. (a) In lieu of any letter of credit
commissions and fees provided for in any a Letter of Credit Request relating
to Standby or Commercial L/Cs (other than standard issuance, amendment and
payment fees), the Company agrees to pay the Administrative Agent, for the
account of the Issuing Lender and the Participating Lenders, with respect to
each Standby or Commercial L/C issued for the account of the Company, a Standby
or Commercial L/C fee, as the case may be, equal to the Applicable Margin for
Revolving Credit Loans which are Eurodollar Loans per annum on the daily amount
available to be drawn under each Standby L/C in the case of a Standby L/C and on
the maximum face amount of each Commercial L/C in the case of a Commercial L/C,
in either case, payable, in arrears, on the last day of each March, June,
September and December and on the date upon which the Revolving Loan Commitments
have terminated and such Letter of Credit has been terminated in accordance with
its terms. The Administrative Agent will disburse any Standby or Commercial L/C
fees received pursuant to this subsection 3.9(a) to the respective Lenders
promptly following the receipt of any such fees in the case of a Standby L/C
and, in the case of a Commercial L/C, following the end of the calendar month in
which such Commercial L/C fees were received. Notwithstanding the foregoing, the
Company agrees to pay, at the time of their incurrence, standard issuance,
amendment and payment fees to the Issuing Lender.
(b) In addition, the Company agrees to pay to the respective Issuing
Lender, for its own account, a facing fee in respect of each Standby or
Commercial L/C issued for its account hereunder (the "Facing Fee") for the
period from and including the date of issuance of such Standby or Commercial L/C
to and including the termination thereof, computed at a rate equal to 1/4 of 1%
per annum of the daily amount available to be drawn under such Standby or
Commercial L/C. Accrued Facing Fees with respect to each Letter of Credit shall
be due and payable quarterly in arrears on the last day of each March, June,
September and December and on the date upon which the Revolving Loan Commitments
have terminated and such Letter of Credit has been terminated in accordance with
its terms.
(c) For purposes of any payment of fees required pursuant to this
subsection 3.9, the Administrative Agent agrees to provide to the Company a
statement of any such fees to be so paid; PROVIDED that the failure by the
Administrative Agent to provide the Company with any such invoice shall not
relieve the Company of its
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obligation to pay such fees.
3.10 LETTER OF CREDIT RESERVES. (a) If any Change in Law shall either
(i) impose, modify, deem or make applicable any reserve, special deposit,
assessment or similar requirement against letters of credit issued by the
Issuing Lender or (ii) impose on the Issuing Lender any other condition
regarding this Agreement (with respect to Letters of Credit) or any Letter of
Credit, and the result of any event referred to in clause (i) or (ii) above
shall be to increase the cost of the Issuing Lender of issuing or maintaining
any Letter of Credit (which increase in cost shall be the result of the Issuing
Lender's reasonable allocation of the aggregate of such cost increases resulting
from such events), then, upon demand by the Issuing Lender, the Company shall
immediately pay to the Issuing Lender, from time to time as specified by the
Issuing Lender, additional amounts which shall be sufficient to compensate the
Issuing Lender for such increased cost, together with interest on each such
amount from the date demanded until payment in full thereof at a rate per annum
equal to the rate applicable to Alternate Base Rate Loans pursuant to subsection
5.5(b). The Company shall not be required to make any payments to the Issuing
Lender for any additional amounts pursuant to this subsection 3.10(a) unless the
Issuing Lender has given written notice to the Company of its intent to request
such payments prior to or within 60 days after the date on which the Issuing
Lender became entitled to claim such amounts. A certificate, setting forth in
reasonable detail the calculation of the amounts involved, submitted by the
Issuing Lender to the Company concurrently with any such demand by the Issuing
Lender, shall be conclusive, absent manifest error, as to the amount thereof.
(b) In the event that any Change in Law with respect to the Issuing
Lender shall, in the opinion of the Issuing Lender, require that any obligation
under any Letter of Credit be treated as an asset or otherwise be included for
purposes of calculating the appropriate amount of capital to be maintained by
the Issuing Lender or any corporation controlling the Issuing Lender, and such
Change in Law shall have the effect of reducing the rate of return on the
Issuing Lender's or such corporation's capital, as the case may be, as a
consequence of the Issuing Lender's obligations under such Letter of Credit to a
level below that which the Issuing Lender or such corporation, as the case may
be, could have achieved but for such Change in Law (taking into account the
Issuing Lender's or such corporation's policies, as the case may be, with
respect to capital adequacy) by an amount deemed by the Issuing Lender to be
material, then from time to time following notice by the Issuing Lender to the
Company of such Change in Law, within 15 days after demand by the Issuing
Lender, the Company shall pay to the Issuing Lender such additional amount or
amounts as will compensate the Issuing Lender or such corporation, as the case
may be, for such reduction. The Issuing Lender agrees that, upon the occurrence
of any event giving rise to the operation of paragraph (a) or (b) of this
subsection 3.10 with respect to the Issuing Lender, it will, if requested by the
Company and to the extent permitted by
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law or by the relevant Governmental Authority, endeavor in good faith to avoid
or minimize the increase in costs or reduction in payments resulting from such
event; PROVIDED that such avoidance or minimization can be made in such a manner
that the Issuing Lender, in its sole determination, suffers no economic, legal
or regulatory disadvantage. The Company shall not be required to make any
payments to the Issuing Lender for any additional amounts pursuant to this
subsection 3.10(b) unless the Issuing Lender has given written notice to the
Company of its intent to request such payments prior to or within 60 days after
the date on which the Issuing Lender became entitled to claim such amounts. A
certificate, in reasonable detail, setting forth the calculation of the amounts
involved, submitted by the Issuing Lender to the Company concurrently with any
such demand by the Issuing Lender, shall be conclusive, absent manifest error,
as to the amount thereof.
(c) The Company and each Participating Lender agree that the
provisions of the foregoing paragraphs (a) and (b) shall apply equally to each
Participating Lender in respect of its L/C Participating Interest in such Letter
of Credit, as if the references in such paragraphs and provisions referred to,
where applicable, such Participating Lender or, in the case of paragraph (b),
any corporation controlling such Participating Lender.
3.11 FURTHER ASSURANCES. The Company hereby agrees, from time to
time, to do and perform any and all acts and to execute any and all further
instruments reasonably requested by the Issuing Lender more fully to effect the
purposes of this Agreement and the issuance of Letters of Credit hereunder.
3.12 OBLIGATIONS ABSOLUTE. The payment obligations of the Company
under this Agreement with respect to the Letters of Credit shall be
unconditional and irrevocable and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including, without limitation,
the following circumstances:
(i) the existence of any claim, set-off, defense or other
right which the Company or any of its Subsidiaries may have at any
time against any beneficiary, or any transferee, of any Letter of
Credit (or any Persons for whom any such beneficiary or any such
transferee may be acting), the Issuing Lender, any Agent or any
Lender, or any other Person, whether in connection with this
Agreement, any Credit Document, the transactions contemplated herein,
or any unrelated transaction;
(ii) any statement or any other document presented under
any Letter of Credit proving to be forged, fraudulent or invalid or
any statement therein being untrue or inaccurate in any respect;
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(iii) payment by the Issuing Lender under any Letter of
Credit against presentation of a draft or certificate or other
document which does not comply with the terms of such Letter of
Credit or is insufficient in any respect, except where such payment
constitutes gross negligence or willful misconduct on the part of the
Issuing Lender; or
(iv) any other circumstances or happening whatsoever,
whether or not similar to any of the foregoing, except for any such
circumstances or happening constituting gross negligence or willful
misconduct on the part of the Issuing Lender.
3.13 ASSIGNMENTS. No Participating Lender's participation in any
Letter of Credit or any of its rights or duties hereunder shall be subdivided,
assigned or transferred (other than in connection with a transfer of part or all
of such Participating Lender's Revolving Credit Commitment in accordance with
subsection 12.6(c)) without the prior written consent of the Issuing Lender,
which consent will not be unreasonably withheld. Such consent may be given or
withheld without the consent or agreement of any other Participating Lender.
3.14 PARTICIPATIONS. The obligation of each Revolving Credit Lender
to purchase participating interests pursuant to subsection 3.6 shall be absolute
and unconditional and shall not be affected by any circumstance, including,
without limitation, (i) any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against the Issuing Lender, the Company or any
other Person for any reason whatsoever; (ii) the occurrence or continuance of an
Event of Default; (iii) any adverse change in the condition (financial or
otherwise) of the Company; (iv) any breach of this Agreement by the Company or
any other Lender; or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
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SECTION 4
AMOUNT AND TERMS OF
RECEIVABLES FINANCING COMMITMENTS
---------------------------------
4.1 RECEIVABLES FINANCING COMMITMENTS. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to the extent of its Receivables
Financing Commitment to extend credit to the Company from time to time on any
Borrowing Date during the Receivables Financing Commitment Period by making
loans in Dollars (individually, such a Loan is a "RECEIVABLES FINANCING LOAN",
and collectively, such Loans are the "RECEIVABLES FINANCING LOANS") to the
Company from time to time. Notwithstanding the above, (i) in no event shall any
Receivables Financing Loans be made if the aggregate principal amount of the
Receivables Financing Loans to be made and then outstanding would, after giving
effect to the use of proceeds, if any, thereof, exceed that amount which equals
the lesser of (x) the Borrowing Base then in effect and (y) the aggregate
Available Receivables Financing Commitments and (ii) prior to the earlier of (x)
the 35th day after the Closing Date and (y) the Syndication Date, the following
restrictions shall apply: (I) no Receivables Financing Loans may be incurred as
Eurodollar Loans prior to the fifth day after the Closing Date and (II) no more
than one borrowing of Receivables Financing Loans may be incurred as Eurodollar
Loans, which borrowing of Eurodollar Loans shall be incurred on the fifth day
after the Closing Date and have a one month Interest Period. During the
Receivables Financing Commitment Period, the Company may use the Receivables
Financing Commitments by borrowing, prepaying the Receivables Financing Loans
in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
(b) Each borrowing of Receivables Financing Loans pursuant to the
Receivables Financing Commitments shall be in an aggregate principal amount of
the lesser of (i) $1,000,000 or a whole multiple of $100,000 in excess thereof
in the case of Alternate Base Rate Loans, and $1,000,000 or a whole multiple of
$100,000 in excess thereof, in the case of Eurodollar Loans and (ii) the
Available Receivables Financing Commitments.
4.2 COMMITMENT FEE. The Company agrees to pay to the Administrative
Agent, without duplication, the commitment fee in respect of the Available
Receivables Financing Commitment as set forth in subsection 3.2.
4.3 PROCEEDS OF RECEIVABLES FINANCING LOANS. The Company shall use
the proceeds of Receivables Financing Loans (a) as set forth in subsection 2.3,
(b) for general corporate and working capital purposes of the Company and its
Subsidiaries and (c) to finance acquisitions permitted by subsection 9.6(g).
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SECTION 5
GENERAL PROVISIONS APPLICABLE TO LOANS
--------------------------------------
5.1 PROCEDURE FOR BORROWING. (a) The Company may borrow under the
Commitments on any Business Day, PROVIDED that, with respect to any borrowing,
the Company shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent prior to 12:00 noon (or, with
respect to Swing Line Loans, 1:00 p.m.), New York City time, (i) three Business
Days prior to the requested Borrowing Date if all or any part of the Loans are
to be Eurodollar Loans and (ii) one Business Day prior to the requested
Borrowing Date (or, in the case of Swing Line Loans and, if the Closing Date
occurs on the date this Agreement is executed and delivered, Loans made on the
Closing Date, on the requested Borrowing Date) if the borrowing is to be solely
of Alternate Base Rate Loans) and specifying (A) the amount of the borrowing,
(B) whether such Loans are initially to be Eurodollar Loans or Alternate Base
Rate Loans or a combination thereof, (C) if the borrowing is to be entirely or
partly Eurodollar Loans, the length of the Interest Period for such Eurodollar
Loans and (D) whether the Loan is a B Term Loan, C Term Loan, Revolving Credit
Loan, Receivables Financing Loan or a Swing Line Loan. Upon receipt of such
notice the Administrative Agent shall promptly notify each Lender. Not later
than 12:00 noon, New York City time, on the Borrowing Date specified in such
notice, each Lender with a Commitment of the respective Tranche shall make
available to the Administrative Agent at the office of the Administrative Agent
specified in subsection 12.2 (or at such other location as the Administrative
Agent may direct) an amount in immediately available funds equal to the amount
of the Loan to be made by such Lender (except that proceeds of Swing Line Loans
will be made available to the Company in accordance with subsection 3.4(a)).
Loan proceeds received by the Administrative Agent hereunder shall promptly be
made available to the Company by the Administrative Agent's crediting the
account of the Company, at the office of the Administrative Agent specified in
subsection 12.2, with the aggregate amount actually received by the
Administrative Agent from the Lenders and in like funds as received by the
Administrative Agent.
(b) Any borrowing of Eurodollar Loans hereunder shall be in such
amounts and be made pursuant to such elections so that, after giving effect
thereto, (i) the aggregate principal amount of all Eurodollar Loans having the
same Interest Period shall not be less than $2,000,000 or a whole multiple of
$1,000,000 (or, solely in the case of Receivables Financing Loans, $1,000,000 or
a whole multiple of $100,000) in excess thereof and (ii) no more than twenty
Interest Periods shall be in effect at any one time.
5.2 CONVERSION AND CONTINUATION OPTIONS. (a) Subject to subsection
5.12, the Company may elect from time to time to convert Eurodollar Loans into
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Alternate Base Rate Loans by giving the Administrative Agent irrevocable notice
of such election, to be received by the Administrative Agent prior to 12:00
noon, New York City time, at least three Business Days prior to the proposed
conversion date. The Company may elect from time to time to convert all or a
portion of the Alternate Base Rate Loans (other than Swing Line Loans) then
outstanding to Eurodollar Loans by giving the Administrative Agent irrevocable
notice of such election, to be received by the Administrative Agent prior to
12:00 noon, New York City time, at least three Business Days prior to the
proposed conversion date, specifying the Interest Period selected therefor, and,
if no Default or Event of Default has occurred and is continuing, such
conversion shall be made on the requested conversion date or, if such requested
conversion date is not a Business Day, on the next succeeding Business Day,
PROVIDED that prior to the earlier of (i) the 35th day after the Closing Date
and (ii) the Syndication Date, conversions of Alternate Base Rate Loans into
Eurodollar Loans may only be made if the conversion is effective on the fifth
day after the Closing Date and otherwise in accordance with subsections 3.1(a)
and 4.1(a). Upon receipt of any notice pursuant to this subsection 5.2, the
Administrative Agent shall promptly notify each Lender thereof. All or any part
of the outstanding Loans (other than Swing Line Loans) may be converted as
provided herein, PROVIDED that partial conversions of Alternate Base Loans shall
be in the aggregate principal amount of $1,000,000 or a whole multiple of
$100,000 in excess thereof and the aggregate principal amount of the resulting
Eurodollar Loans of a given Tranche of Loans outstanding in respect of any one
Interest Period shall be at least $2,000,000 or a whole multiple of $1,000,000
(or, solely in the case of Receivables Financing Loans, $1,000,000 or a whole
multiple of $100,000) in excess thereof.
(b) Any Eurodollar Loans may be continued as such upon the expira-
tion of the then current Interest Period with respect thereto by the Company
giving notice to the Administrative Agent, in accordance with the applicable
provisions of the term "Interest Period" set forth in subsection 1.1, of the
length of the next Interest Period to be applicable to such Loans, PROVIDED that
no Eurodollar Loan may be continued as such (i) when any Event of Default has
occurred and is continuing and the Administrative Agent or the Required Lenders
have, by written notice to the Company, determined that such a continuation is
not appropriate, (ii) if, after giving effect thereto, subsection 5.1(b) would
be contravened or (iii) after the date that is one month prior to the Revolving
Credit Termination Date (in the case of continuations of Revolving Credit
Loans), the Receivables Financing Termination Date (in the case of continuations
of Receivables Financing Loans) or the final Installment Payment Date of the
respective Tranche of Term Loans.
5.3 CHANGES OF COMMITMENT AMOUNTS. (a) The Company shall have the
right, upon not less than three Business Days' notice to the Administrative
Agent, to terminate or from time to time to permanently reduce the Revolving
Credit Commitments and/or the Receivables Financing Commitments, subject to the
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following provisions:
(i) to the extent, if any, that the sum of the amount of
the Revolving Credit Loans, Swing Line Loans and L/C Obligations then
outstanding and the amounts available to be drawn under outstanding
Letters of Credit exceeds the amount of the Revolving Credit
Commitments as then reduced, the Company shall be required to make a
prepayment equal to such excess amount, the proceeds of which shall
be applied, FIRST, to payment of the Swing Line Loans then
outstanding, SECOND, to payment of the Revolving Credit Loans then
outstanding, THIRD, to payment of any L/C Obligations then
outstanding, and FOURTH, to cash collateralize any outstanding
Letters of Credit on terms reasonably satisfactory to the
Administrative Agent. Any such termination of the Revolving Credit
Commitments shall be accompanied by prepayment in full of the
Revolving Credit Loans, Swing Line Loans and L/C Obligations then
outstanding and by cash collateralization of any outstanding Letters
of Credit on terms reasonably satisfactory to the Administrative
Agent. Upon termination of the Revolving Credit Commitments, any
Letter of Credit then outstanding that has been fully cash
collateralized on terms reasonably satisfactory to the Administrative
Agent shall no longer be considered a "Letter of Credit" as defined
in subsection 1.1 and any L/C Participating Interests heretofore
granted by the Issuing Lender to the Lenders in such Letter of Credit
shall be deemed terminated (subject to automatic reinstatement in the
event that such cash collateral is returned and the Issuing Lender is
not fully reimbursed for any such L/C Obligations) but the Letter of
Credit fees payable under subsection 3.9 shall continue to accrue to
the Issuing Lender and the Participating Lenders (or, in the event of
any such automatic reinstatement, as provided in subsection 3.9) with
respect to such Letter of Credit until the expiry thereof (PROVIDED
that in lieu of paying, in respect of such fully cash collateralized
letter of credit, a Standby or Commercial L/C fee, as the case may
be, equal to the Applicable Margin for Revolving Credit Loans which
are Eurodollar Loans per annum, the Company shall pay to the
Administrative Agent an amount equal to .25% per annum); and
(ii) to the extent, if any, that the sum of all
Receivables Financing Loans exceed the amount of the Receivables
Financing Commitments as then reduced, the Company shall be required
to make a prepayment of Receivables Financing Loans equal to such
excess amount.
(b) On the first date (if any) after the Closing Date on which the
initial Receivables Facility becomes effective in accordance with its terms, the
Receivables Financing Commitments shall terminate in their entirety and all
outstanding Receivables Financing Loans shall be repaid in full.
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(c) In the case of termination of the Revolving Credit Commitments
and/or Receivables Financing Commitments, as the case may be, interest accrued
and unpaid on the amount of any prepayment relating thereto and any unpaid
commitment fee accrued hereunder shall be paid on the date of such termination.
Any such partial reduction of the Revolving Credit Commitments and/or
Receivables Financing Commitments, as the case may be, shall be in an amount of
$2,000,000 or a whole multiple of $1,000,000 (or, solely in the case of
Receivables Financing Commitments, $1,000,000 or a whole multiple of $100,000)
in excess thereof and shall, in each case, reduce permanently the amount of the
Revolving Credit Commitments and/or Receivables Financing Commitments, as the
case may be, then in effect.
5.4 OPTIONAL AND MANDATORY PREPAYMENTS; REPAYMENTS OF TERM LOANS. (a)
Subject to subsection 5.12, the Company may at any time and from time to time
prepay Loans, in whole or in part, without premium or penalty, by giving
irrevocable notice to the Administrative Agent by 10:00 a.m., New York City
time, on the same Business Day (or, in the case of Swing Line Loans, by
irrevocable notice to the Administrative Agent by 12:00 noon, New York City
time, on the same Business Day) in the case of Alternate Base Rate Loans, and
three Business Days' irrevocable notice to the Administrative Agent in the case
of Eurodollar Loans specifying the date and amount of prepayment and whether the
prepayment is of Term Loans, Revolving Credit Loans or Receivables Financing
Loans. Upon receipt of such notice the Administrative Agent shall promptly
notify each Lender thereof. If such notice is given, the Company shall make such
prepayment, and the payment amount specified in such notice shall be due and
payable, on the date specified therein. Partial prepayments (i) of Term Loans
shall be in an aggregate principal amount equal to the lesser of (A) (I)
$2,000,000, or a whole multiple of $1,000,000 in excess thereof with respect to
Eurodollar Loans or (II) $1,000,000, or a whole multiple of $100,000 in excess
thereof with respect to Alternate Base Rate Loans and (B) the aggregate unpaid
principal amount of the respective Tranche of Term Loans, (ii) of Revolving
Credit Loans shall be in an aggregate principal amount equal to the lesser of
(A) (I) $1,000,000, or a whole multiple of $100,000 in excess thereof with
respect to Eurodollar Loans or (II) $1,000,000 or a whole multiple of $100,000
in excess thereof with respect to Alternate Base Rate Loans and (B) the
aggregate unpaid principal amount of the Revolving Credit Loans, as the case may
be, and (iii) of Receivables Financing Loans shall be in an aggregate principal
amount equal to the lesser of (A) (I) $2,000,000, or a whole multiple of
$1,000,000 in excess thereof with respect to Eurodollar Loans or (II) $1,000,000
or a whole multiple of $100,000 in excess thereof with respect to Alternate Base
Rate Loans and (B) the aggregate unpaid principal amount of the Receivables
Financing Loans, as the case may be. Prepayments of the Term Loans pursuant to
this subsection 5.4(a) shall be applied to the B Term Loans and the C Term Loans
on a PRO RATA basis (based on the then outstanding principal amount of B Term
Loans and C Term Loans) and each prepayment of principal of any Tranche of Term
Loans pursuant to this subsection 5.4(a) shall be applied
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to reduce the then remaining installments of the respective Tranche of Term
Loans ratably according to the amounts of such installments of the respective
Tranche after giving effect to all prior reductions thereto.
(b) If any Borrowing Base Certificate shall disclose the existence of
a Borrowing Base Deficiency that exceeds 10% of the Borrowing Base then in
effect, the Company shall on the date of the delivery thereof in accordance with
subsection 8.1(e), repay the principal of Receivables Financing Loans in an
amount equal to such Borrowing Base Deficiency; PROVIDED, if at any time a
mandatory repayment of Receivables Financing Loans pursuant to this subsection
5.4(b) would result in the Company incurring breakage costs under subsection
5.12 as a result of Eurodollar Loans being prepaid (after all then outstanding
Receivables Financing Loans maintained as Alternate Base Rate Loans have been
repaid in full) other than on the last day of an Interest Period applicable
thereto (the "AFFECTED EURODOLLAR LOANS") and so long as no Default under
subsection 10(f) and no Event of Default is in existence, then the Company may,
upon notice to the Administrative Agent, deposit the amount of cash which would
otherwise be required to be applied to repay Affected Eurodollar Loans as a
result of the respective Borrowing Base Deficiency into a cash collateral
account established with the Administrative Agent (which cash collateral account
shall secure the repayment of the Affected Eurodollar Loans), with such cash to
be permitted to be invested in Cash Equivalents reasonably acceptable to the
Administrative Agent and thereafter applied to make mandatory repayments of then
outstanding Receivables Financing Loans in direct order as Interest Periods
applicable to the Affected Eurodollar Loans expire (although, to the extent a
subsequent Borrowing Base Certificate establishes that a Borrowing Base
Deficiency has been cured in whole or in part, any excess cash so held shall be
released to the Company).
(c) (i) If, subsequent to the Closing Date, Holdings or any of its
Subsidiaries (other than any Capital Stock issued by any joint venture or other
Person in which (x) there are no investments by the Company or any of its
Subsidiaries as of the Closing Date and (y) all investments by the Company or
its Subsidiaries after the Closing Date are made pursuant to Subsection 9.6(h))
shall issue any Capital Stock, 50% of the Net Proceeds thereof (excluding
amounts provided by the Investors or their Affiliates or by management employees
of such issuer) shall promptly, and in any event within two Business Days after
the date of receipt, be applied toward the prepayment of the Term Loans, the
reduction of the Revolving Credit Commitments and/or the reduction of the
Receivables Financing Commitments, as set forth in clause (vi) of this
subsection 5.4(c); PROVIDED that Net Proceeds of such issuance shall be deemed
to be Net Proceeds of such issuance for purposes of this subsection 5.4(c)(i)
only after deducting therefrom any cash proceeds therefrom actually applied to
the redemption of up to 35% of the Permanent Subordinated Debt under the "equity
clawback" provisions and the payment of any premium or penalties or accrued
interest with respect thereto. Notwithstanding the foregoing provisions of this
subsection
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5.4(c)(i), if at any time a mandatory repayment of Loans pursuant to this
subsection 5.4(c)(i) would result in the Company incurring breakage costs under
subsection 5.12 as a result of Affected Eurodollar Loans being prepaid (after
all then outstanding Alternate Base Rate Loans of the respective Tranche have
been repaid in full) other than on the last day of an Interest Period applicable
thereto, then the Company may, upon notice to the Administrative Agent,
initially deposit a portion (up to 100%) of the amount that otherwise would have
been paid in respect of such Affected Eurodollar Loans with the Administrative
Agent (which deposit must be equal in amount to the amount of such Affected
Eurodollar Loans not immediately repaid) to be held as security for the
obligations of the Company hereunder pursuant to a cash collateral arrangement
reasonably satisfactory to the Administrative Agent and the Company which shall
permit investments in Cash Equivalents reasonably satisfactory to the
Administrative Agent, with such cash collateral to be directly applied upon the
earlier of (x) the first occurrence (or occurrences) thereafter of the last day
of an Interest Period applicable to the relevant Affected Eurodollar Loans of
the respective Tranche or Tranches that were initially required to be repaid (or
such earlier date or dates as shall be requested by the Company) and (y) the
date which is 90 days after such initial deposit, to repay an aggregate
principal amount of such Loans equal to the Affected Eurodollar Loans not
initially repaid pursuant to this sentence.
(ii) If, subsequent to the Closing Date, Holdings or any of its
Subsidiaries shall incur or permit the incurrence of any Indebtedness (other
than Indebtedness permitted pursuant to subsection 9.1 (with respect to the
Company or any of its Subsidiaries) or the Holdings Guarantee (with respect to
Holdings)), 100% of the Net Proceeds thereof shall promptly, and in any event
within two Business Days after the date of receipt, be applied toward the
prepayment of the Term Loans, the reduction of the Revolving Credit Commitments
and/or the reduction of the Receivables Financing Commitments, as set forth in
clause (vi) of this subsection 5.4(c); PROVIDED that, notwithstanding anything
to the contrary contained above, 50% of the Net Proceeds of any Indebtedness
incurred pursuant to clause (C) of subsection 9.1(d)(ii) shall be applied as
otherwise required (for this purpose, ignoring the first parenthetical in this
clause (ii) and deeming the reference to "100%" contained above changed to
"50%") by this clause (ii).
(iii) If, subsequent to the Closing Date, Holdings or any of its
Subsidiaries shall receive Net Proceeds from any Asset Sale, such Net Proceeds
shall promptly, and in any event within two Business Days after the date of
receipt, be applied toward the prepayment of the Term Loans, the reduction of
the Revolving Credit Commitments and/or the reduction of the Receivables
Financing Commitments, as set forth in clause (vi) of this subsection 5.4(c);
PROVIDED that such Net Proceeds need not be applied to the prepayment of the
Term Loans, the reduction of the Revolving Credit Commitments and/or the
reduction of the Receivables Financing Commitments until the first date that the
aggregate amount of Net Proceeds received
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by Holdings and its Subsidiaries from one or more Asset Sales (which
have not yet been applied as otherwise required by this subsection 5.4(c)(iii))
exceed $2,000,000.
(iv) If for any Excess Cash Flow Period there shall be Excess Cash
Flow for such Excess Cash Flow Period, 50% of such Excess Cash Flow shall be
applied toward prepayment of the Term Loans, the reduction of the Revolving
Credit Commitments and/or the reduction of the Receivables Financing Commitments
as set forth in clause (vi) of this subsection 5.4(c). Each such prepayment
shall be made not later than 120 days after the end of such Excess Cash Flow
Period.
(v) If, subsequent to the Closing Date, Holdings or any of its
Subsidiaries shall receive any proceeds from any Recovery Event, 100% of such
proceeds (net of reasonable costs including, without limitation, legal costs and
expenses, and taxes incurred in connection with such Recovery Event) shall be
applied, within 10 days of the receipt thereof, toward the prepayment of the
Term Loans, the reduction of the Revolving Credit Commitments and/or the
reduction of the Receivables Financing Commitments as set forth in clause (vi)
of this subsection 5.4(c); PROVIDED that (x) so long as no Default or Event of
Default then exists and the proceeds of such single Recovery Event do not exceed
$10,000,000, such proceeds shall not be required to be so applied on such date
to the extent that the Company uses or commits to use such proceeds to replace
or restore any properties or assets in respect of which such proceeds were paid
or to purchase properties or assets for the Company or any of its Wholly-Owned
Subsidiary Guarantors within eighteen months following the date of such Recovery
Event and (y) so long as no Default or Event of Default then exists and to the
extent that (a) the amount of the proceeds of any single Recovery Event equals
or exceeds $10,000,000, then the entire amount of the proceeds of such Recovery
Event and not just the portion in excess of $10,000,000 shall, at the Company's
election, (I) be deposited with the Administrative Agent pursuant to a cash
collateral arrangement reasonably satisfactory to the Administrative Agent and
the Company whereby such proceeds shall be disbursed to the Company from time to
time as needed to pay actual costs incurred by it in connection with the
replacement or restoration of the respective properties or assets or the
purchase of their substantial equivalent(s) or (II) be applied to repay the
principal amount of Revolving Credit Loans so long as an equal amount of
Revolving Credit Commitment is then blocked, pursuant to arrangements reasonably
satisfactory to the Administrative Agent and the Company, PROVIDED that such
blocked Revolving Credit Commitment shall become available, subject to the terms
and conditions of this Agreement, as needed to pay actual costs incurred by in
connection with the replacement or restoration of the respective properties or
assets or the purchase of their substantial equivalent(s) and PROVIDED FURTHER,
that if all or any portion of such proceeds not required to be applied to the
repayment of Term Loans or reduction of Revolving Credit Commitments pursuant to
this subsection 5.4(c)(v) are either (A) not so used or committed to be so used
within eighteen months after the date of the respective Recovery Event or (B) if
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committed to be used within eighteen months after the date of receipt of such
proceeds and not so used within two and one-half years after the date of the
respective Recovery Event then, in either such case, such remaining portion not
used or committed to be used in the case of preceding clause (A) and not used in
the case of preceding clause (B) shall be applied on the date occurring eighteen
months after the date of the respective Recovery Event in the case of clause (A)
above or the date occurring two and one-half years after the date of the
respective Recovery Event in the case of clause (B) above toward the prepayment
of the Term Loans, the reduction of the Revolving Credit Commitments and/or the
reduction of the Receivables Financing Commitments as set forth in clause (vi)
of this subsection 5.4(c).
(vi) Prepayments made pursuant to subsections 5.4(c)(i), (ii), (iii),
(iv) or (v) shall be applied by the Company, FIRST, to the prepayment of the B
Term Loans and the C Term Loans on a PRO RATA basis (based on the then
outstanding principal amount of B Term Loans and C Term Loans), with each
prepayment of principal of any Tranche of Term Loans pursuant to this subsection
to be applied to reduce the then remaining installments of the respective
Tranche of Term Loans ratably according to the amounts of such installments of
the respective Tranche after giving effect to all prior reductions thereto,
SECOND, to reduce permanently the Revolving Credit Commitments and, THIRD, to
reduce permanently the Receivables Financing Commitments. Any such reduction of
the Revolving Credit Commitments shall be accompanied by prepayment of, FIRST,
the Swing Line Loans, SECOND, the Revolving Credit Loans and, THIRD, the L/C
Obligations to the extent, if any, that the sum of the aggregate outstanding
principal amount of Revolving Credit Loans, the aggregate outstanding principal
amount of all Swing Line Loans, the aggregate amount available to be drawn under
all outstanding Letters of Credit and the aggregate outstanding amount of all
L/C Obligations, in each case of all Lenders, exceeds the amount of the
aggregate Revolving Credit Commitments as so reduced, PROVIDED that if the
aggregate principal amount of Revolving Credit Loans, Swing Line Loans and L/C
Obligations then outstanding is less than the amount of such excess (because
Letters of Credit constitute a portion thereof), the Company shall, to the
extent of the balance of such excess, replace outstanding Letters of Credit
and/or deposit an amount in cash in a cash collateral account established for
the benefit of the Lenders. Any such reduction of the Receivables Financing
Commitments shall be accompanied by prepayment of Receivables Financing Loans to
the extent, if any, that the sum of the aggregate outstanding principal amount
of Receivables Financing Loans of all Lenders exceeds the amount of the
aggregate Receivables Financing Commitments as so reduced.
(d) The Company shall give the Administrative Agent (which shall
promptly notify each Lender) at least one Business Day's notice of each
prepayment or mandatory reduction pursuant to this subsection 5.4(c) setting
forth the date and amount thereof. Except as otherwise may be agreed by the
Company and the Re-
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quired Lenders, and subject to subsection 5.4(c)(vi), any prepayment of Loans
pursuant to this subsection 5.4 shall be applied, FIRST, to any Alternate Base
Rate Loans of the respective Tranche then outstanding and the balance of such
prepayment, if any, to the Eurodollar Loans of the respective Tranche then
outstanding; PROVIDED that prepayments of Eurodollar Loans, if not on the last
day of the Interest Period with respect thereto, shall, at the Company's option,
be prepaid subject to the provisions of subsection 5.12 or the amount of such
prepayment (after application to any Alternate Base Rate Loans) shall be
deposited with the Administrative Agent as cash collateral for the Loans of the
respective Tranche on terms reasonably satisfactory to the Administrative Agent
and thereafter shall be applied in the order of the Interest Periods of the
respective Tranche next ending most closely to the date such prepayment is
required to be made and on the last day of each such Interest Period. After such
application, unless an Event of Default shall have occurred and be continuing,
any remaining interest earned on such cash collateral shall be paid to the
Company.
(e)(i) The B Term Loans shall be repaid in twenty-eight installments
on the dates set forth below (each such day, a "B INSTALLMENT PAYMENT DATE"),
commencing on March 31, 1998 in an aggregate amount equal to the amount
specified for each such B Installment Payment Date.
B Installment Payment Date Installment Amount
- -------------------------- ------------------
March 31, 1998 $225,000
June 30, 1998 $225,000
September 30, 1988 $225,000
December 31, 1998 $225,000
March 31, 1999 $225,000
June 30, 1999 $225,000
September 30, 1999 $225,000
December 31, 1999 $225,000
March 31, 2000 $225,000
June 30, 2000 $225,000
September 30, 2000 $225,000
December 31, 2000 $225,000
March 31, 2001 $225,000
June 30, 2001 $225,000
September 30, 2001 $225,000
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B Installment Payment Date Installment Amount
- -------------------------- ------------------
December 31, 2001 $225,000
March 31, 2002 $225,000
June 30, 2002 $225,000
September 30, 2002 $225,000
December 31, 2002 $225,000
March 31, 2003 $7,500,000
June 30, 2003 $7,500,000
September 30, 2003 $7,500,000
December 31, 2003 $7,500,000
March 31, 2004 $13,875,000
June 30, 2004 $13,875,000
September 30, 2004 $13,875,000
B Maturity Date $13,875,000
(ii) The C Term Loans shall be repaid in thirty-two installments on
the dates set forth below (each such day, a "C INSTALLMENT PAYMENT DATE"),
commencing on March 31, 1998 in an aggregate amount equal to the amount
specified for each such C Installment Payment Date.
B Installment Payment Date Installment Amount
- -------------------------- ------------------
March 31, 1998 $137,500
June 30, 1998 $137,500
September 30, 1988 $137,500
December 31, 1998 $137,500
March 31, 1999 $137,500
June 30, 1999 $137,500
September 30, 1999 $137,500
December 31, 1999 $137,500
March 31, 2000 $137,500
June 30, 2000 $137,500
September 30, 2000 $137,500
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B Installment Payment Date Installment Amount
- -------------------------- ------------------
December 31, 2000 $137,500
March 31, 2001 $137,500
June 30, 2001 $137,500
September 30, 2001 $137,500
December 31, 2001 $137,500
March 31, 2002 $137,500
June 30, 2002 $137,500
September 30, 2002 $137,500
December 31, 2002 $137,500
March 31, 2003 $137,500
June 30, 2003 $137,500
September 30, 2003 $137,500
December 31, 2003 $137,500
March 31, 2004 $137,500
June 30, 2004 $137,500
September 30, 2004 $137,500
December 31, 2004 $137,500
March 31, 2005 $12,787,500
June 30, 2005 $12,787,500
September 30, 2005 $12,787,500
C Maturity Date $12,787,500
(f) Amounts repaid on account of the Term Loans pursuant to this
subsection 5.4 or otherwise may not be reborrowed. Accrued interest on the
amount of any prepayments shall be paid on the Interest Payment Date next
succeeding (or occurring on the same date as) the date of any partial prepayment
and on the date on such prepayment in the case of a prepayment in full of the
Term Loans.
(g) On the first date (if any) after the Closing Date on which the
initial Receivables Facility becomes effective in accordance with its terms, the
then outstanding principal amount of the Receivables Financing Loans, if any,
shall become due and payable in full.
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5.5 INTEREST RATES AND PAYMENT DATES. (a) Eurodollar Loans shall bear
interest for each day during each Interest Period applicable thereto, commencing
on (and including) the first day of such Interest Period to, but excluding, the
last day of such Interest Period, on the unpaid principal amount thereof at a
rate per annum equal to the Eurodollar Rate determined for such Interest Period
plus the Applicable Margin.
(b) Alternate Base Rate Loans shall bear interest for the period from
and including the date such Loans are made to, but excluding, the maturity date
thereof, or to, but excluding, the conversion date if such Loans are earlier
converted into Eurodollar Loans on the unpaid principal amount thereof at a rate
per annum equal to the Alternate Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) the principal amount of any of the
Loans or (ii) any interest payable thereon shall not be paid when due (whether
at the stated maturity, by acceleration or otherwise) such Loan, if a Eurodollar
Loan, shall be converted into an Alternate Base Rate Loan at the end of the
then-current Interest Period for said Eurodollar Loan (which conversion shall
occur automatically and without need for compliance with the conditions for
conversion set forth in subsection 5.2), and any such overdue amount shall,
without limiting the rights of the Lenders under Section 10, bear interest
(which shall be payable on demand) at a rate per annum which is 2% plus the
Alternate Base Rate plus the Applicable Margin for the respective Tranche of
Loans (PROVIDED that if any Loan comes due during an Interest Period, then for
the remainder of such Interest Period such unpaid amounts in respect thereof
shall bear interest at a rate which is 2% in excess of the rate otherwise
applicable to such borrowings) from the date of such non-payment until paid in
full (as well after as before judgment).
(d) Except as otherwise expressly provided for in this subsection
5.5, interest shall be payable in arrears on each Interest Payment Date.
5.6 COMPUTATION OF INTEREST AND FEES. (a) All calculations of
interest and fees hereunder 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 Company and the Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the Alternate Base Rate or the Eurocurrency Reserve Requirements shall
become effective as of the opening of business on the day on which such change
in the Alternate Base Rate is announced or such change in the Eurocurrency
Reserve Requirements becomes effective, as the case may be. The Administrative
Agent shall as soon as practicable notify the Company and the Lenders of the
effective date and the amount of each such change.
(b) Each determination of an interest rate by the Administrative
Agent
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pursuant to any provision of this Agreement shall be conclusive and binding on
the Company and the Lenders in the absence of manifest error. The Administrative
Agent shall, at the request of the Company or any Lender, deliver to the Company
or such Lender a statement showing the quotations used by the Administrative
Agent in determining the Eurodollar Rate.
5.7 CERTAIN FEES. The Company agrees to pay to the Administrative
Agent, for its own account, a non-refundable agent's fee in an amount previously
agreed to with the Administrative Agent, payable in advance on the Closing Date
and on each anniversary thereof.
5.8 INABILITY TO DETERMINE INTEREST RATE. In the event that the
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Company) that (a) by reason of circumstances
affecting the interbank eurodollar market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for any Interest Period with respect
to (i) proposed Loans that the Company has requested be made as Eurodollar
Loans, (ii) any Eurodollar Loans that will result from the requested conversion
of all or part of the Alternate Base Rate Loans into Eurodollar Loans or (iii)
the continuation of any Eurodollar Loan as such for an additional Interest
Period, or (b) dollar deposits in the relevant amount and for the relevant
period with respect to any such Eurodollar Loan are not generally available to
the Lenders in their respective Eurodollar Lending Offices' interbank eurodollar
markets, the Administrative Agent shall forthwith give telecopy notice of such
determination, confirmed in writing, to the Company and the Lenders at least one
day prior to, as the case may be, the requested Borrowing Date, the conversion
date or the last day of such Interest Period. If such notice is given (i) any
requested Eurodollar Loans shall be made as Alternate Base Rate Loans, (ii) any
Alternate Base Rate Loans that were to have been converted to Eurodollar Loans
shall be continued as Alternate Base Rate Loans, and (iii) any outstanding
Eurodollar Loans shall be converted on the last day of the then current Interest
Period applicable thereto into Alternate Base Rate Loans. Until such notice has
been withdrawn by the Administrative Agent, no further Eurodollar Loans shall be
made and no Alternate Base Rate Loans shall be converted to Eurodollar Loans.
5.9 PRO RATA TREATMENT AND PAYMENTS. (a) Except to the extent
otherwise provided herein, each borrowing of Loans by the Company from the
Lenders and any reduction of the Commitments of the Lenders hereunder shall be
made PRO RATA according to the relevant Commitment Percentages of the Lenders
with respect to the Loans borrowed or the Commitments to be reduced.
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(b) Whenever any payment received by the Administrative Agent under
this Agreement or any Note or any other Credit Document is insufficient to pay
in full all amounts then due and payable to the Administrative Agent and the
Lenders under this Agreement:
(i) If the Administrative Agent has not received a Payment
Sharing Notice (or, if the Administrative Agent has received a
Payment Sharing Notice but the Event of Default specified in such
Payment Sharing Notice has been cured or waived in accordance with
the provisions of this Agreement), such payment shall be distributed
by the Administrative Agent and applied by the Administrative Agent
and the Lenders in the following order: FIRST, to the payment of fees
and expenses due and payable to the Administrative Agent under and in
connection with this Agreement and the other Credit Documents;
SECOND, to the payment of all expenses due and payable under
subsection 12.5, ratably among the Lenders in accordance with the
aggregate amount of such payments owed to each such Lender; THIRD, to
the payment of fees due and payable under subsections 3.2 and 3.9,
ratably among the Lenders in accordance with the Commitment
Percentage of each Lender of the Commitment for which such payment is
owed and, in the case of the Issuing Lender, the amount retained by
the Issuing Lender for its own account pursuant to subsection 3.9;
FOURTH, to the payment of interest then due and payable on the Loans
and the L/C Obligations ratably in accordance with the aggregate
amount of interest owed to each such Lender; and FIFTH, to the
payment of the principal amount of the Loans and the L/C Obligations
which is then due and payable ratably (subject to the provisions of
following clause (c), to the extent applicable) among the Lenders in
accordance with the aggregate principal amount owed to each such
Lender; or
(ii) If the Administrative Agent has received a Payment
Sharing Notice which remains in effect, all payments received by the
Administrative Agent under this Agreement or any Note shall be
distributed by the Administrative Agent and applied by the
Administrative Agent and the Lenders in the following order: FIRST,
to the payment of all amounts described in clauses "FIRST" through
"THIRD" of the foregoing clause (i) in the order set forth therein;
SECOND, to the payment of the interest accrued on all Loans and L/C
Obligations, regardless of whether any such amount is then due and
payable, ratably among the Lenders in accordance with the aggregate
accrued interest plus the aggregate principal amount of all Loans and
L/C Obligations then due and payable and owed to such Lender; and
THIRD, to the payment of the principal amount of all Loans and L/C
Obligations, regardless of whether any such amount is then due and
payable, ratably among the Lenders in accordance with the aggregate
principal amount owed to such Lender.
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(c) If any Lender (a "NON-FUNDING LENDER") has (x) failed to make a
Revolving Credit Loan or Receivables Financing Loan required to be made by it
hereunder, and the Administrative Agent has determined that such Lender is not
likely to make such Revolving Credit Loan or Receivables Financing Loan or (y)
given notice to the Company or the Administrative Agent that it will not make,
or that it has disaffirmed or repudiated any obligation to make, any Revolving
Credit Loan or Receivables Financing Loan, in each case by reason of the
provisions of the Financial Institutions Reform, Recovery and Enforcement Act of
1989, as amended, or otherwise, (i) any payment made on account of the principal
of the Revolving Credit Loans or Receivables Financing Loans, as the case may
be, outstanding shall be made as follows:
(A) 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 Company would be able under the terms and conditions hereof
to reborrow the amount of such payment under the Commitments and to
satisfy any applicable conditions precedent set forth in Section 7 to
such reborrowing, such payment shall be made on account of the
outstanding Revolving Credit Loans or Receivables Financing Loans, as
the case may be, held by the Lenders other than the Non-Funding
Lender PRO RATA according to the respective outstanding principal
amounts of the Revolving Credit Loans or Receivables Financing Loans,
as the case may be, of such Lenders; and
(B) otherwise, such payment shall be made on account of
the outstanding Revolving Credit Loans or Receivables Financing
Loans, as the case may be, held by the Lenders PRO RATA according to
the respective outstanding principal amounts of such Revolving Credit
Loans or Receivables Financing Loans, as the case may be; and
(C) any payment made on account of interest on the
Revolving Credit Loans or Receivables Financing Loans, as the case
may be, shall be made PRO RATA according to the respective amounts of
accrued and unpaid interest due and payable on the Revolving Credit
Loans or Receivables Financing Loans, as the case may be, with
respect to which such payment is being made. The Company agrees to
give the Administrative Agent such assistance in making any
determination pursuant to this subsection 5.9(c) as the
Administrative Agent may reasonably request. Any such determination
by the Administrative Agent shall be conclusive and binding on the
Lenders.
(d) All payments (including prepayments) to be made by the Company on
account of principal, interest and fees shall be made without set-off or
counterclaim and shall be made to the Administrative Agent, for the account of
the Lenders at the
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Administrative Agent's office located at 130 Liberty Street, New York, New York
10006 (or at such other office of the Administrative Agent located in New York
City as may be directed from time to time by the Administrative Agent in writing
to the Company), in lawful money of the United States and in immediately
available funds. The Administrative Agent shall promptly distribute such
payments in accordance with the provisions of this subsection 5.9 upon receipt
in like funds as received. If any payment hereunder (other than payments on
Eurodollar Loans) would become due and payable on a day other than a Business
Day, such payment shall become due and payable on the next succeeding Business
Day and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension. If any payment on a
Eurodollar Loan becomes due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day (and with
respect to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension) unless the result of such extension would
be to extend such payment into another calendar month in which event such
payment shall be made on the immediately preceding Business Day.
(e) 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 which would constitute its 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 in
accordance with subsection 5.1 and the Administrative Agent may, in reliance
upon such assumption, make available to the Company 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 5.9(e) shall be conclusive absent manifest error. If such
Lender's Commitment Percentage of such borrowing is not in fact 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 Alternate Base
Rate Loans hereunder (in lieu of any otherwise applicable interest), on demand,
from the Company, without prejudice to any rights which the Company or the
Administrative Agent may have against such Lender hereunder. Nothing contained
in this subsection 5.9 shall relieve any Lender which has failed to make
available its ratable portion of any borrowing hereunder from its obligation to
do so in accordance with the terms hereof.
(f) The failure of any Lender to make the Loan to be made by it on
any Borrowing Date shall not relieve any other Lender of its obligation, if any,
here-
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under 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.
(g) All payments and optional prepayments (other than prepayments as
set forth in subsection 5.11 with respect to increased costs) of Eurodollar
Loans hereunder shall be in such amounts and be made pursuant to such elections
so that, after giving effect thereto, the aggregate principal amount of all
Eurodollar Loans with the same Interest Period shall not be less than $2,000,000
or a whole multiple of $1,000,000 (or, solely in the case of Receivables
Financing Loans, $1,000,000 or a whole multiple of $100,000) in excess thereof.
5.10 ILLEGALITY. Notwithstanding any other provision herein, if any
Change in Law occurring after the date hereof shall make it unlawful for any
Lender to make or maintain Eurodollar Loans as contemplated by this Agreement,
the commitment of such Lender hereunder to make Eurodollar Loans or to convert
all or a portion of Alternate Base Rate Loans into Eurodollar Loans shall
forthwith be suspended until such time, if any, as such illegality shall no
longer exist and such Lender's Loans then outstanding as Eurodollar Loans, if
any, shall be converted automatically to Alternate Base Rate Loans for the
duration of the respective Interest Periods (or, if permitted by applicable law,
at the end of such Interest Periods) and all payments of principal which would
otherwise be applied to such Eurodollar Loans shall be applied instead to such
Lender's Alternate Base Rate Loans. The Company hereby agrees to pay any Lender,
promptly upon its demand, any amounts payable pursuant to subsection 5.12 in
connection with any conversion in accordance with this subsection 5.10 (such
Lender's notice of such costs, as certified in reasonable detail as to such
amounts to the Company through the Administrative Agent, to be conclusive absent
manifest error).
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5.11 REQUIREMENTS OF LAW. (a) Subject to the penultimate sentence of
subsection 12.6(c), in the event that any Change in Law 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 effective after the date
hereof:
(i) does or shall subject any such Lender or its
Eurodollar Lending Office to any tax of any kind whatsoever with
respect to this Agreement, any Note or any Eurodollar Loans made by
it, or change the basis of taxation of payments to such Lender or its
Eurodollar Lending Office of principal, the commitment fee, interest
or any other amount payable hereunder (except for (x) net income and
franchise taxes imposed on the net income of such Lender or its
Eurodollar Lending Office by the jurisdiction under the laws of which
such Lender is organized or any political subdivision or taxing
authority thereof or therein, or by any jurisdiction in which such
Lender's Eurodollar Lending Office is located or any political
subdivision or taxing authority thereof or therein, including changes
in the rate of tax on the overall net income of such Lender or such
Eurodollar Lending Office, and (y) taxes resulting from the
substitution of any such system by another system of taxation,
PROVIDED that the taxes payable by Lenders subject to such other
system of taxation are not generally charged to borrowers from such
Lenders having loans or advances bearing interest at a rate similar
to the Eurodollar Rate);
(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for
the account of, advances or loans by, or other credit extended by, or
any other acquisition of funds by, any office of such Lender which
are not otherwise included in the determination of the Eurodollar
Rate; or
(iii) does or shall impose on such Lender any other
condition; and the result of any of the foregoing is to increase the
cost to such Lender or its Eurodollar Lending Office of making,
converting, renewing or maintaining advances or extensions of credit
or to reduce any amount receivable hereunder, in each case, in
respect of its Loans, then, in any such case, the Company shall
promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such additional cost or
reduced amount receivable which such Lender deems to be material as
determined by such Lender with respect to such Loans, together with
interest on each such amount from the date demanded until payment in
full thereof at a rate per annum equal to the Alternate Base Rate
plus 1%.
(b) In the event that any Change in Law occurring after the date
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hereof shall, in the opinion of any Lender, require that any Commitment of such
Lender be treated as an asset or otherwise be included for purposes of
calculating the appropriate amount of capital to be maintained by such Lender or
any corporation controlling such Lender, and such Change in Law shall have the
effect of reducing the rate of return on such Lender's or such corporation's
capital, as the case may be, as a consequence of such Lender's obligations
hereunder to a level below that which such Lender or such corporation, as the
case may be, could have achieved but for such Change in Law (taking into account
such Lender's or such corporation's policies, as the case may be, with respect
to capital adequacy) by an amount deemed by such Lender to be material, then
from time to time following notice by such Lender to the Company of such Change
in Law as provided in paragraph (c) of this subsection 5.11, within 15 days
after demand by such Lender, the Company shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such corporation
on an after-tax basis, as the case may be, for such reduction.
(c) The Company shall not be required to make any payments to any
Lender for any additional amounts pursuant to this subsection 5.11 unless such
Lender has given written notice to the Company, through the Administrative
Agent, of its intent to request such payments prior to or within 60 days after
the date on which such Lender became entitled to claim such amounts. If any
Lender has notified the Company through the Administrative Agent of any
increased costs pursuant to paragraph (a) of this subsection 5.11, the Company
at any time thereafter may, upon at least three Business Days' notice to the
Administrative Agent (which shall promptly notify the Lenders thereof), and
subject to subsection 5.12, prepay (or convert into Alternate Base Rate Loans)
all (but not a part) of the Eurodollar Loans then outstanding. Each Lender
agrees that, upon the occurrence of any event giving rise to the operation of
paragraph (a) of this subsection 5.11 with respect to such Lender, it will, if
requested by the Company and to the extent permitted by law or by the relevant
Governmental Authority, endeavor in good faith to avoid or minimize the increase
in costs or reduction in payments resulting from such event (including, without
limitation, endeavoring to change its Eurodollar Lending Office); PROVIDED, that
such avoidance or minimization can be made in such a manner that such Lender, in
its sole determination, suffers no economic, legal or regulatory disadvantage.
If any Lender requests compensation from the Company under this subsection 5.11,
the Company may, by notice to such Lender (with a copy to the Administrative
Agent), suspend the obligation of such Lender thereafter to make or continue
Loans of the Type with respect to which such compensation is requested, or to
convert Loans of any other Type into Loans of such Type, until the Requirement
of Law giving rise to such request ceases to be in effect, PROVIDED that such
suspension shall not affect the right of such Lender to receive the compensation
so requested.
(d) Each Lender (and in case of an Assignee on the date it becomes a
Lender) that is not a United States Person (as defined in Section 7701(a)(30) of
the
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Code) for federal income tax purposes either (1) in the case of a Lender that is
a "bank" within the meaning of Section 881(c)(3)(A) of the Code, (i) represents
to the Company (for the benefit of the Company and the Administrative Agent)
that, on the date hereof (in the case of the Lenders originally party hereto) or
on the date it became a Lender (in the case of an Assignee), under applicable
law and treaties no withholding taxes are required to be withheld by the Company
or the Administrative Agent with respect to any payments to be made to such
Lender in respect of the Loans or the L/C Participating Interests, (ii) agrees
to furnish to the Company, with a copy to the Administrative Agent, either U.S.
Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001
(wherein such Lender claims entitlement to complete exemption from U.S. federal
withholding tax on all interest payments hereunder) and (iii) agrees (for the
benefit of the Company and the Administrative Agent), to the extent it may
lawfully do so at such times, to provide the Company, with a copy to the
Administrative Agent, a new Form 4224 or Form 1001 upon the expiration or
obsolescence of any previously delivered form and comparable statements in
accordance with applicable U.S. laws and regulations and amendments duly
executed and completed by such Lender, and to comply from time to time with all
applicable U.S. laws and regulations with regard to such withholding tax
exemption or (2) in the case of a Lender that is not a "bank" within the meaning
of Section 881(c)(3)(A) of the Code, (i) represents to the Company (for the
benefit of the Company and the Administrative Agent) that it is not a bank
within the meaning of Section 881(c)(3)(A) of the Code, (ii) agrees to furnish
to the Company, with a copy to the Administrative Agent, (A) a certificate
substantially in the form of Exhibit I hereto (any such certificate, a
"SUBSECTION 5.11(D)(2) CERTIFICATE") and (B) two accurate and complete original
signed copies of Internal Revenue Service Form W-8, certifying to such Lender's
legal entitlement at the Closing Date (or date of the respective assignment in
the case of an Assignee) to an exemption from U.S. withholding tax under the
provisions of Section 881(c) of the Code with respect to all payments referred
to in such Code section to be made under this Agreement, and (iii) agrees, to
the extent legally entitled to do so, upon reasonable request by the Company, to
provide to the Company (for the benefit of the Company and the Administrative
Agent) such other forms as may be required in order to establish the legal
entitlement of such Lender to an exemption from withholding with respect to
payments under this Agreement. Notwithstanding any provision of this subsection
5.11 or 5.9(d) to the contrary, the Company shall have no obligation to pay any
amount to or for the account of any Lender (or the Eurodollar Lending Office of
any Lender) on account of any taxes pursuant to this subsection 5.11, to the
extent that such amount results from (i) the failure of any Lender to comply
with its obligations pursuant to this subsection 5.11, (ii) any representation
or warranty made or deemed to be made by any Lender pursuant to this subsection
5.11(d) proving to have been incorrect, false or misleading in any material
respect when so made or deemed to be made or (iii) any Change in Law or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other
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Governmental Authority, the effect of which would be to subject to any taxes any
payment made pursuant to this Agreement to any Lender making the representation
and covenants set forth in subsection 5.11(d)(2), which payment would not be
subject to such taxes if such Lender, on the date it became a Lender, were
eligible to make and comply with, and had actually made and complied with, the
representation and covenants set forth in subsection 5.11(d)(1) hereinabove.
(e) A certificate in reasonable detail as to any amounts submitted by
such Lender, through the Administrative Agent, to the Company, shall be
conclusive in the absence of manifest error. The covenants contained in this
subsection 5.11 shall survive the termination of this Agreement and repayment of
the Loans.
5.12 INDEMNITY. The Company agrees to indemnify each Lender and to
hold such Lender harmless from any loss or expense (but without duplication of
any amounts payable as default interest) which such Lender may sustain or incur
as a consequence of (a) default by the Company in payment of the principal
amount of or interest on any Eurodollar Loans of such Lender, including, but not
limited to, any such loss or expense arising from interest or fees payable by
such Lender to lenders of funds obtained by it in order to make or maintain its
Eurodollar Loans hereunder, (b) default by the Company in making a borrowing
after the Company has given a notice in accordance with subsection 5.1 or in
making a conversion of Alternate Base Rate Loans to Eurodollar Loans or in
continuing Eurodollar Loans as such, in either case, after the Company has given
notice in accordance with subsection 5.2, (c) default by the Company in making
any prepayment after the Company has given a notice in accordance with
subsection 5.4 or (d) a payment or prepayment of a Eurodollar Loan or conversion
(including without limitation, as a result of subsection 5.4 and/or a conversion
pursuant to subsection 5.10) of any Eurodollar Loan into an Alternate Base Rate
Loan, in either case on a day which is not the last day of an Interest Period
with respect thereto, including, but not limited to, any such loss or expense
arising from interest or fees payable by such Lender to lenders of funds
obtained by it in order to maintain its Eurodollar Loans hereunder (but
excluding loss of profit). This covenant shall survive termination of this
Agreement and repayment of the Loans.
5.13 REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Company hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Lender (i) the principal amount of the B Term Loan of such Lender, in
twenty-eight consecutive installments, payable on each B Installment Payment
Date (or the then unpaid principal amount of such B Term Loan on the date that
the B Term Loans become due and payable pursuant to Section 10), (ii) the
principal amount of the C Term Loan of each Lender, in thirty-two consecutive
installments, payable on each C Installment Payment Date (or the then unpaid
principal amount of such C Term Loan on the date that the C Term Loans become
due and payable pursuant to Section 10), (iii) the then unpaid principal amount
of each Revolving Credit Loan of such
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Lender on the Revolving Credit Termination Date, (iv) the then unpaid principal
amount of each Receivables Financing Loan of such Lender on the Receivables
Financing Termination Date and (v) the then unpaid principal amount of the Swing
Line Loans of the Swing Line Lender on the Revolving Credit Termination Date.
The Company 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
5.5.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Company 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 12.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each B Term Loan, C Term Loan, Revolving Credit Loan,
Receivables Financing Loan and Swing Line Loan made hereunder, 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 Company to each
Lender hereunder and (iii) both the amount of any sum received by the
Administrative Agent hereunder from the Company and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 5.13(b) shall, to the extent permitted by
applicable law, be PRIMA FACIE evidence of the existence and amounts of the
obligations of the Company therein recorded; PROVIDED 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
Company to repay (with applicable interest) the Loans made to such Company by
such Lender or to repay any other obligations in accordance with the terms of
this Agreement.
(e) The Company agrees that, upon the request to the Administrative
Agent by any Lender, the Company will execute and deliver to such Lender (i) a
promissory note of the Company evidencing the B Term Loans of such Lender,
substantially in the form of Exhibit A-1 with appropriate insertions as to date
and principal amount (a "B TERM LOAN NOTE"), (ii) a promissory note of the
Company evidencing the C Term Loans of such Lender, substantially in the form of
Exhibit A-2 with appropriate insertions as to date and principal amount (a "C
TERM LOAN NOTE"), (iii) a promissory note of the Company evidencing the
Revolving Credit Loans of such Lender, substantially in the form of Exhibit B
with appropriate insertions as to date and principal amount (a "REVOLVING CREDIT
NOTE"), (iv) a promissory note of the Company evidencing the Receivables
Financing Loans of such Lender, substantially in the form of Exhibit C with
appropriate insertions as to date and principal amount (a
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"RECEIVABLES FINANCING NOTE"), and/or (v) in the case of the Swing Line Lender,
a promissory note of the Company evidencing the Swing Line Loans of the Swing
Line Lender, substantially in the form of Exhibit D with appropriate insertions
as to date and principal amount (the "SWING LINE NOTE").
5.14 REPLACEMENT OF LENDERS. In the event any Lender or the Issuing
Lender is a Non-Funding Lender, exercises its rights pursuant to subsection 5.10
or requests payments pursuant to subsections 3.10 or 5.11, the Company may
require, at the Company's expense (including payment of any processing fees
under subsection 12.6(e)) and subject to subsection 5.12, such Lender or the
Issuing Lender to assign, at par plus accrued interest and fees, without
recourse (in accordance with subsection 12.6) all of its interests, rights and
obligations hereunder (including all of its Commitments and the Loans and other
amounts at the time owing to it hereunder and its Notes and its interest in the
Letters of Credit) to a bank, financial institution or other entity specified by
the Company, PROVIDED that (i) such assignment shall not conflict with or
violate any law, rule or regulation or order of any court or other Governmental
Authority, (ii) the Company shall have received the written consent of the
Administrative Agent, which consent shall not unreasonably be withheld, to such
assignment, (iii) the Company shall have paid to the assigning Lender or the
Issuing Lender all monies other than principal, interest and fees accrued and
owing hereunder to it (including pursuant to subsections 3.10, 5.10, 5.11 and
5.12) and (iv) in the case of a required assignment by the Issuing Lender, the
Letters of Credit shall be canceled and returned to the Issuing Lender.
SECTION 6
REPRESENTATIONS AND WARRANTIES
------------------------------
In order to induce the Lenders to enter into this Agreement and to
make the Loans and to induce the Issuing Lender to issue, and the Participating
Lenders to participate in, the Letters of Credit, the Company hereby represents
and warrants to each Lender and the Administrative Agent as of the Closing Date
(after giving effect to the Recapitalization) and as of the making of any
extension of credit hereunder:
6.1 FINANCIAL CONDITION. (a) The consolidated audited balance sheets
of Holdings and its consolidated Subsidiaries as at December 31, 1995 and
December 31, 1996 and the related consolidated statements of operations and of
cash flows for the fiscal years ended on each such dates, audited by Ernst &
Young LLP, copies of which have heretofore been furnished to each Lender,
present fairly in accordance with GAAP the consolidated financial condition of
Holdings and its consolidated Subsidiaries as at such dates, and the
consolidated results of their operations and their consolidated cash flows for
the fiscal year then ended. All such financial statements have been prepared in
accordance with GAAP applied consistently throughout the
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periods involved (except as approved by such accountants and as disclosed
therein). Neither Holdings nor any of its consolidated Subsidiaries had, at the
date of each balance sheet referred to above, any material Contingent
Obligation, contingent liability or liability for taxes, or any long-term lease
or unusual forward or long-term commitment, including, without limitation, any
material interest rate or foreign currency swap or exchange transaction, which
is not reflected in the foregoing statements or in the notes thereto or
expressly permitted to be incurred hereunder.
(b) The unaudited consolidated balance sheet of Holdings and its con-
solidated Subsidiaries as at September 30, 1997 and the related consolidated
statements of operations and of cash flows for the nine-month period then ended,
certified by a Responsible Officer of the Company, copies of which have
heretofore been furnished to each Lender, present fairly in accordance with GAAP
the financial position of Holdings and its consolidated Subsidiaries as at such
date and the consolidated results of their operations and their consolidated
cash flows for the nine-month period then ended (subject to normal year-end
adjustments). Such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP (except as approved by
such Responsible Officer and disclosed therein). Holdings and its consolidated
Subsidiaries did not have at the date of such balance sheet, any material
Contingent 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 exchange transaction, which is
not reflected in such balance sheet or in the notes thereto or in the notes to
Holdings' audited financial statements. During the period from December 31, 1996
to the Closing Date, and except for (i) payments to be made to effect the
Recapitalization and (ii) matters disclosed in the Offering Memorandum or the
Recapitalization Agreement, no dividends or other distributions have been
declared, paid or made upon the Capital Stock of Holdings or any of its
consolidated Subsidiaries nor has any of the Capital Stock of Holdings or any of
its consolidated Subsidiaries been redeemed, retired, purchased or otherwise
acquired for value by Holdings or any of its consolidated Subsidiaries,
respectively.
(c) The unaudited consolidated PRO FORMA balance sheet of Holdings
and its consolidated Subsidiaries, as of September 30, 1997, certified by a
Responsible Officer of Holdings (the "PRO FORMA BALANCE SHEET"), copies of which
have been furnished to each Lender, is the unaudited balance sheet of Holdings
and its consolidated Subsidiaries adjusted to give effect (as if such events had
occurred on the date set forth therein) to (i) the Recapitalization and each of
the transactions contemplated by the Recapitalization Agreement, (ii) the
incurrence of the Loans and the issuance of the Letters of Credit to be incurred
or issued, as the case may be, on the Closing Date and (iii) the incurrence of
the Bridge Subordinated Debt or the Permanent Subordinated Debt and all other
Indebtedness that Holdings and its consolidated Subsidiaries expect to incur,
and the payment of all amounts Holdings and its
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consolidated Subsidiaries expect to pay, in connection with the
Recapitalization. The Pro Forma Balance Sheet, together with the notes thereto,
were prepared based on good faith assumptions in accordance with GAAP and is
based on the best information available to Holdings as of the date of delivery
thereof and reflects on a PRO FORMA basis the financial position of Holdings and
its consolidated Subsidiaries as of September 30, 1997, as adjusted, as
described above, assuming that the events specified in the preceding sentence
had actually occurred as of September 30, 1997.
6.2 NO CHANGE. Other than the factual items disclosed in the Offering
Memorandum or in the Recapitalization Agreement (but only to the extent that
there have been no adverse changes with respect to such disclosed factual items
after the date hereof), since December 31, 1996 (but after giving effect to the
consummation of the Transaction), (a) there has been no material adverse change,
and (as of the Closing Date only) no development or event which has had or could
reasonably be expected to have a material adverse effect, on (i) the business,
assets, condition (financial or otherwise) or results of operations of the
Company and its Subsidiaries taken as a whole, (ii) the ability of the Company
and its Subsidiaries to perform their obligations under the Credit Documents and
with respect to the other financings contemplated hereby or (iii) the rights and
remedies of the Lenders under the Credit Documents and (b) no dividends or other
distributions have been declared, paid or made upon the Capital Stock of the
Company nor has any of the Capital Stock of the Company been redeemed, retired,
repurchased or otherwise acquired for value by the Company or any of its
Subsidiaries, except as permitted by subsection 9.12.
6.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of the Company and
its Subsidiaries (other than Immaterial Subsidiaries) (a) is a corporation duly
organized and validly existing under the laws of the jurisdiction of its
incorporation, (b) has full corporate power and authority and possesses all
governmental franchises, licenses, permits, authorizations and approvals
necessary to enable it to use its corporate name and to own, lease or otherwise
hold its properties and assets and to carry on its business as presently
conducted other than such franchises, licenses, permits, authorizations and
approvals the lack of which, individually or in the aggregate, would not have a
material adverse effect on the business, assets, condition (financial or
otherwise) or results of operations of the Company and its Subsidiaries, taken
as a whole, (c) is duly qualified and in good standing to do business in each
jurisdiction in which the nature of its business or the ownership, leasing or
holding of its properties makes such qualification necessary, except such
jurisdictions where the failure so to qualify would not have a material adverse
effect on the business, assets, condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries, taken as a whole, and (d) except
as disclosed in Schedule 6.11, is in compliance with all applicable statutes,
laws, ordinances, rules, orders, permits and regulations of any governmental
authority or instrumentality, domestic or foreign (including, without
limitation, those related to Hazardous
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Materials and substances), except where noncompliance would not have a material
adverse effect on the business, assets, condition (financial or otherwise) or
results of operations of the Company and its Subsidiaries, taken as a whole.
Neither the Company nor any of its Subsidiaries has received any written
communication from a Governmental Authority that alleges that the Company or any
of its Subsidiaries is not in compliance, in all material respects, with all
material federal, state, local or foreign laws, ordinances, rules and
regulations.
6.4 CORPORATE POWER; AUTHORIZATION. Each of the Company and its
Subsidiaries has the corporate power and authority to make, deliver and perform
each of the Credit Documents to which it is a party, and the Company has the
corporate power and authority and legal right to borrow hereunder and to have
Letters of Credit issued for its account hereunder. Each of the Company and its
Subsidiaries has taken all necessary corporate action to authorize the
execution, delivery and performance of each of the Credit Documents to which it
is or will be a party and the Company has taken all necessary corporate action
to authorize the borrowings hereunder and the issuance of Letters of Credit for
its account hereunder. No consent or authorization of, or filing with, any
Person (including, without limitation, any Governmental Authority) is required
in connection with the execution, delivery or performance by the Company or any
of its Subsidiaries, or for the validity or enforceability against the Company
or any of its Subsidiaries, of any Credit Document except for consents,
authorizations and filings which have been obtained or made and are in full
force and effect and except (i) such consents, authorizations and filings, the
failure to obtain or perform (x) which would not have a material adverse effect
on the business, assets, condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries taken as a whole and (y) which
would not adversely affect the validity or enforceability of any of the Credit
Documents or the rights or remedies of the Administrative Agent or the Lenders
thereunder, and (ii) such filings as are necessary to perfect the Liens of the
Lenders created pursuant to this Agreement and the Security Documents.
6.5 ENFORCEABLE OBLIGATIONS. This Agreement and the Recapitali-
zation Agreement have been, and each of the other Credit Documents and any other
agreement to be entered into by any Credit Party pursuant to the
Recapitalization Agreement will be duly executed and delivered on behalf of such
Credit Party that is party thereto. The Recapitalization Agreement has been duly
executed and delivered on behalf of Holdings. This Agreement and the
Recapitalization Agreement each constitutes, and each of the other Credit
Documents and any other agreement to be entered into by any Credit Party
pursuant to the Recapitalization Agreement will constitute upon execution and
delivery, the legal, valid and binding obligation of such Credit Party, and is
enforceable against such Credit Party in accordance with its terms, except as
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
or similar laws affecting creditors' rights generally and by general
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principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
6.6 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, the Subordinated Debt and of drawings under the Letters of Credit and the
transactions contemplated by the Recapitalization Agreement, the Credit
Documents and the documentation for the Subordinated Debt, (a) will not violate
any Requirement of Law or any Contractual Obligation applicable to or binding
upon Holdings, the Company or any Subsidiary or any of their respective
properties or assets, in any manner which, individually or in the aggregate, (i)
would have a material adverse effect on the ability of Holdings, the Company or
any such Subsidiary to perform its obligations under the Credit Documents, the
Recapitalization Agreement, and any other agreement to be entered into pursuant
to the Recapitalization Agreement or in connection with the Subordinated Debt,
to which it is a party, (ii) would give rise to any liability on the part of the
any Agent or any Lender, or (iii) would have a material adverse effect on the
business, assets, condition (financial or otherwise) or results of operations of
the Company and its Subsidiaries taken as a whole, 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 Contractual Obligations, except for the Liens arising under the Security
Documents. Additionally, there shall not exist any judgment, order, injunction
or other restraint prohibiting or imposing materially adverse conditions upon
the execution, delivery and performance of the Credit Documents, the
Recapitalization Agreement, the documentation relating to the Subordinated Debt
or, in each case, the transactions contemplated thereby.
6.7 NO MATERIAL LITIGATION. No litigation by, investigation known to
the Company by, or proceeding of, any Governmental Authority is pending against
the Company or any of its Subsidiaries with respect to the validity, binding
effect or enforceability of the Recapitalization Agreement, any Credit Document,
the Loans made hereunder, the use of proceeds thereof, of the Subordinated Debt
or of any drawings under a Letter of Credit and the other transactions
contemplated hereby or by the Recapitalization Agreement. Other than factual
items disclosed in the Offering Memorandum or in the Recapitalization Agreement
(but only to the extent there have been no adverse changes with respect to such
disclosed factual items after the date hereof), no lawsuits, claims, proceedings
or investigations are pending or, to the best knowledge of the Company,
threatened as of the Closing Date against or affecting the Company or a
Subsidiary or any of their respective properties, assets, operations or
businesses (including after giving effect to the Recapitalization), in which
there is a probability of an adverse determination, and is reasonably likely, if
adversely decided, to have a material adverse effect on the business, assets,
condition (financial or otherwise) or results of operations of the Company and
its Subsidiaries, taken as a
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whole.
6.8 INVESTMENT COMPANY ACT. Neither the Company nor any Subsidiary is
an "investment company" or a company "controlled" by an "investment company" (as
each of the quoted terms is defined or used in the Investment Company Act of
1940, as amended).
6.9 FEDERAL REGULATION. No part of the proceeds of any of the Loans
or Subordinated Debt or any drawing under a Letter of Credit will be used for
the purpose of "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U. Neither the
making of any Loan nor the use of proceeds thereof nor the issuance of any
Letter of Credit or any drawing thereunder will violate or be inconsistent with
the provisions of Regulation G, T, U or X of the Board. Neither the Company nor
any of its Subsidiaries is engaged or will engage, principally or as one of its
important activities, in the business of extending credit for the purpose of
"purchasing" or "carrying" any "margin stock" within the respective meanings of
each of the quoted terms under said Regulation U.
6.10 NO DEFAULT. The Company and each of its Subsidiaries have
performed all material obligations required to be performed by them under their
respective Contractual Obligations and they are not (with or without the lapse
of time or the giving of notice, or both) in breach or default in any respect
thereunder, except to the extent that such breach or default would not have a
material adverse effect on the business, assets, condition (financial or
otherwise) or results of operations of the Company and its Subsidiaries taken as
a whole. Neither the Company nor any of its Subsidiaries is in default under any
material judgment, order or decree of any Governmental Authority, domestic or
foreign, applicable to it or any of its respective properties, assets,
operations or business, except to the extent that any such defaults would not,
in the aggregate, have a material adverse effect on the business, assets,
condition (financial or otherwise) or results of operations of the Company and
its Subsidiaries, taken as a whole.
6.11 TAXES. Except as set forth on Schedule 6.11, each of the Company
and its Subsidiaries has filed or caused to be filed all material tax returns
which, to the knowledge of the Company, are required to be filed and has paid
all taxes shown to be due and payable on said returns or on any assessments made
against it or any of its property and all other taxes, fees or other charges
imposed on it or any of its property by any Governmental Authority (other than
any the amount of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves (or other sufficient
provisions) in conformity with GAAP have been provided on the books of the
Company or its Subsidiaries (including after giving effect to the
Recapitalization), as the case may be); and no tax Lien has been filed,
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and, to the knowledge of the Company, no written claim is being asserted, with
respect to any such tax, fee or other charges.
6.12 SUBSIDIARIES; IMMATERIAL SUBSIDIARIES. (a) On the Closing Date,
the Subsidiaries of the Company and their respective jurisdictions of
incorporation are as set forth on Schedule 6.12.
(b) On the Closing Date, each of Gold Medal Ladder Company, Florida
Ladder Company, Werner Distribution, Inc., Werner (FID), Co., Inc., BLP
Corporation and Amarlite Architectural Products, Inc. is an Immaterial
Subsidiary, and on the Closing Date such Persons constitute the only Immaterial
Subsidiaries.
6.13 OWNERSHIP OF PROPERTY; LIENS. As of the Closing Date and as of
the making of any extension of credit hereunder (subject to transfers and
dispositions of property permitted under subsection 9.5), each of the Company
and its Subsidiaries has good and valid title to all of its material assets
(other than real property or interests in real property) in each case free and
clear of all mortgages, liens, security interests or encumbrances of any nature
whatsoever except Permitted Liens. With respect to real property or interests in
real property, as of the Closing Date, each of the Company and its Subsidiaries
has (i) good and valid fee title to all of the real property listed on Schedule
6.13 under the heading "Fee Properties" (each, a "FEE PROPERTY"), and (ii) good
and valid title to the leasehold estates in all of the real property leased by
it and listed on Schedule 6.13 under the heading "Leased Properties" (each, a
"LEASED PROPERTY"), in each case, free and clear of all mortgages, liens,
security interests, easements, covenants, rights-of-way and other similar
restrictions of any nature whatsoever, except (A) Permitted Liens and (B) as to
Leased Property, the terms and provisions of the respective lease therefor,
including, without limitation, the matters set forth on Schedule 6.13, and any
matters affecting the fee title and any estate superior to the leasehold estate
related thereto. The Fee Properties and the Leased Properties constitute, as of
the Closing Date, all of the real property owned in fee or leased by the Company
and its Subsidiaries.
6.14 ERISA. 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 Plan that would result
in a material liability to the Company, and each Plan has complied in all
material respects with the applicable provisions of ERISA and the Code. Neither
the Company nor any Commonly Controlled Entity has: been involved in any
transaction that would cause the Company to be subject to material liability
with respect to a Plan to which the Company or any Commonly Controlled Entity
contributed or was obligated to contribute during the six-year period ending on
the date this representation is made or deemed made; or incurred any material
liability under Title IV of ERISA which
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would become or remain a material liability of the Company after the Closing
Date. No termination of a Single Employer Plan has occurred, and no Lien in
favor of the PBGC or a Plan has arisen, during such six-year period that would
result in a material liability to the Company. 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 allocable to such accrued benefits that would result in a
material liability to the Company. Neither the Company nor any Commonly
Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, and neither the Company nor any Commonly Controlled Entity
would become subject to any liability under ERISA if the Company or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made, in either case that would result in a
material liability to the Company. To the knowledge of the Company, no such
Multiemployer Plan is in Reorganization or Insolvent. The present value
(determined using actuarial and other assumptions which are reasonable in
respect of the benefits provided and the employees participating) of the
liability of the Company and each Commonly Controlled Entity for post retirement
benefits to be provided to their current and former employees under Plans which
are welfare benefit plans (as defined in Section 3(1) of ERISA) does not, in the
aggregate, exceed the assets under all such Plans allocable to such benefits by
an amount that would result in a material liability to the Company, except as
disclosed in the Company's audited financial statement provided to the Lenders
prior to the Closing Date. For purposes of this subsection 6.14, a material
liability shall exceed $10,000,000.
6.15 COLLATERAL DOCUMENTS. (a) Upon execution and delivery thereof by
the parties thereto, each of the Pledge Agreements 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 the pledged stock described
therein and, when stock certificates representing or constituting the pledged
stock described in each of the Pledge Agreements are delivered to the
Administrative Agent, such security interest shall constitute a perfected first
lien on, and security interest in, all described therein.
(b) Upon execution and delivery thereof by the parties thereto, each
of the Security Agreements 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 the collateral described therein, and Uniform
Commercial Code financing statements have been filed in each of the
jurisdictions listed on Schedule 6.15(b), or arrangements have been made for
such filing in such jurisdictions, and upon such filing, and upon the taking of
possession by the Administrative Agent of any such collateral the security
interests in which may be perfected only by possession, such security
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interests will, subject to the existence of Permitted Liens, constitute
perfected first priority liens on, and security interests in, all right, title
and interest of the debtor party thereto in the collateral described therein,
except to the extent that a security interest cannot be perfected therein by the
filing of a financing statement or the taking of possession under the Uniform
Commercial Code of the relevant jurisdiction.
(c) Upon execution and delivery thereof by the Company, each Mort-
gage 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 the collateral described therein, and upon recording the Mortgages in the
jurisdictions listed on Schedule 6.13 (or, in the case of a Mortgage delivered
pursuant to subsection 8.9, the jurisdiction in which the property covered by
such Mortgage is located), such security interests will, subject to the
existence of Permitted Liens, constitute first liens on, and perfected security
interests in, all rights, title and interest of the debtor party thereto in the
collateral described therein.
6.16 COPYRIGHTS, PATENTS, PERMITS, TRADEMARKS AND LICENSES. Schedule
6.16 sets forth a true and complete list as of the Closing Date of all material
trademarks (registered or unregistered), trade names, service marks, patents,
pending patent applications and copyrights and applications therefor owned, used
or filed by or licensed to the Company and its Subsidiaries and, with respect to
registered trademarks (if any), contains a list of all jurisdictions in which
such trademarks are registered or applied for and all registration and
application numbers. Except as set forth on Schedule 6.16, the Company or a
Subsidiary owns or has the right to use, trademarks (registered or
unregistered), trade names, service marks, patents, pending patent applications
and copyrights and applications therefor referred to in such Schedule. Except as
set forth on Schedule 6.16, to the best knowledge of the Company, no claims are
pending by any Person with respect to the ownership, validity, enforceability or
the Company's or any Subsidiary's use of any such trademarks (registered or
unregistered), trade names, service marks, patents, pending patent applications
and copyrights, or applications therefor, challenging or questioning the
validity or effectiveness of any of the foregoing, in any jurisdiction, domestic
or foreign, except to the extent such claims could not reasonably be expected to
have a material adverse effect on the Company and its Subsidiaries, taken as a
whole.
6.17 ENVIRONMENTAL MATTERS. Except insofar as any exceptions to the
following, individually or in the aggregate, could not reasonably be expected to
result in a material adverse effect on the business, assets, conditions
(financial or otherwise) or operations of the Company and its Subsidiaries taken
as a whole:
(i) to the best knowledge of the Company, the properties
owned, leased, or otherwise operated by the Company or any of its
Subsidiaries do not contain, and have not previously contained, in,
on or under, including, without
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limitation, the soil and groundwater thereunder, any Hazardous
Materials in amounts or concentrations that constitute or constituted
a violation of, or could reasonably give rise to liability under,
Environmental Laws;
(ii) to the best knowledge of the Company, the properties
owned or leased, or otherwise operated by the Company or any of its
Subsidiaries and all operations and facilities at such properties are
in compliance with all Environmental Laws, and there is no
contamination or violation of any Environmental Law which could
interfere with the continued operation of, or impair the fair
saleable value of, such property;
(iii) neither the Company nor any of its Subsidiaries has
received or is aware of any written complaint, notice of violation,
alleged violation, or notice of investigation or of potential
liability under Environmental Laws with regard to the Company or its
Subsidiaries, nor does the Company or any of its Subsidiaries have
knowledge that any such action is being contemplated, considered or
threatened;
(iv) to the best knowledge of the Company, Hazardous
Materials have not been generated, treated, stored or disposed of at,
on or under any properties presently or formerly owned, leased, or
otherwise operated by the Company or any of its Subsidiaries, nor
have any Hazardous Materials been transported from any such property,
or come to be located at any other property, in violation of or in a
manner that could reasonably give rise to liability under any
Environmental Laws; and
(v) there are no governmental administrative actions or
judicial proceedings pending or, to the best knowledge of the Company
and its Subsidiaries, threatened under any Environmental Law to which
the Company or any of its Subsidiaries is a party, nor are there any
consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial
requirements, other than permits authorizing operations by the
Company or any of its Subsidiaries, outstanding under any
Environmental Law.
6.18 ACCURACY AND COMPLETENESS OF INFORMATION. The factual state-
ments contained in the financial statements referred to in subsection 6.1, the
Credit Documents (including the schedules thereto), the Recapitalization
Agreement and any other certificates or documents furnished or to be furnished
to the Agents or the Lenders from time to time in connection with this
Agreement, taken as a whole, do not and will not, to the best knowledge of the
Company, as of the date when made, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
contained therein not misleading in light of the
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circumstances in which the same were made, all except as otherwise qualified
herein or therein, such knowledge qualification being given only with respect to
factual statements made by Persons other than the Company or any of its
Subsidiaries.
SECTION 7
CONDITIONS PRECEDENT
--------------------
7.1 CONDITIONS TO INITIAL LOANS AND LETTERS OF CREDIT. The obligation
of each Lender to make its Loans, and the obligation of the Issuing Lender to
issue any Letter of Credit, on the Closing Date are subject to the satisfaction,
or waiver by the Required Lenders, immediately prior to or concurrently with the
making of such Loans or the issuance of such Letters of Credit, as the case may
be, of the following conditions:
(a) AGREEMENT; NOTES; RECAPITALIZATION AGREEMENT. The
Administrative Agent shall have received (i) a counterpart of this
Agreement for each Lender duly executed and delivered by a duly
authorized officer of the Company, (ii) for the account of each B
Term Loan Lender requesting the same pursuant to subsection 5.13(e),
a B Term Loan Note, conforming to the requirements hereof and
executed by a duly authorized officer of the Company, (iii) for the
account of each C Term Loan Lender requesting the same pursuant to
subsection 5.13(e), a C Term Loan Note, conforming to the
requirements hereof and executed by a duly authorized officer of the
Company, (iv) for the account of each Revolving Credit Lender
requesting the same pursuant to subsection 5.13(e), a Revolving
Credit Note of the Company conforming to the requirements hereof and
executed by a duly authorized officer of the Company, (v) for the
account of each Receivables Financing Lender requesting the same
pursuant to subsection 5.13(e), a Receivables Financing Note of the
Company conforming to the requirements hereof and executed by a duly
authorized officer of the Company and (vi) for the account of the
Swing Line Lender, a Swing Line Note, conforming to the requirements
hereof and executed by a duly authorized officer of the Company. The
Administrative Agent shall have received a copy of the
Recapitalization Agreement.
(b) RECAPITALIZATION. (i) The Recapitalization shall be
consummated, simultaneously with the incurrence of Loans on the
Closing Date, in accordance with the Recapitalization Agreement and
all applicable laws, with all funds with respect thereto to be
consistent with the description contained in the Offering Memorandum,
and all of the conditions precedent set forth in Article VI of the
Recapitalization Agreement shall have been satisfied or waived by the
Company; PROVIDED that no provision of the Recapitalization
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Agreement shall have been amended, supplemented, waived or otherwise
modified in any material respect without the prior written consent of
the Co-Arrangers, which consent shall not be unreasonably withheld.
(ii) No more than $525,000,000 (less the value
attributable to common stock of Holdings retained by the Existing
Shareholders), exclusive of fees and expenses and except for normal
fluctuations in working capital since September 30, 1997, shall be
expended in connection with the Recapitalization and to refinance
existing Indebtedness.
(c) CAPITALIZATION; CAPITAL STRUCTURE (i) (y) Holdings
shall have been capitalized by the Investors with at least
$122,700,000 in cash from the issuance of its common stock
(representing at least 66.7% of the voting Capital Stock of Holdings
upon the consummation of the Recapitalization) and (z) the value of
the common stock of Holdings held by Existing Shareholders (valued at
a price per share equal to the price at which the Investors purchased
their common stock), when added to the amount referred to in clause
(y) above, shall equal at least $182,000,000 (of which approximately
$23,700,000 shall constitute retained equity of existing management
shareholders and approximately $35,600,000 shall constitute retained
equity of other existing shareholders).
(ii) The Company shall have received net cash proceeds
(and shall have distributed the proceeds to Holdings) from the
Company's issuance of $135,000,000 aggregate principal amount of
either (y) Bridge Subordinated Debt pursuant to a Bridge Loan
Agreement executed and delivered by the parties thereto and subject
to terms and conditions which are consistent with the Bridge
Commitment Letter, which Bridge Loan Agreement shall be in full force
and effect and none of the provisions thereof shall have been
amended, waived, supplemented or otherwise modified without the prior
written consent of the Co-Arrangers (which consent shall not be
unreasonably withheld); or (z) Permanent Subordinated Debt, which
shall be issued on terms as described in the Offering Memorandum.
(iii) Holdings shall use all cash proceeds received from
the financings described in clauses (i) and (ii) above to make
payments owing in connection with the Recapitalization before (or
simultaneously with) the utilization of any proceeds of Loans
pursuant to this Agreement for such purpose. The cash proceeds
received from the financings described in clauses (i) and (ii), when
added to the aggregate principal amount of Loans incurred on the
Closing Date, shall be sufficient to effect the Recapitalization, to
refinance all Indebtedness being refinanced in connection therewith
and to pay all fees and expenses in connection therewith.
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(iv) The terms, conditions and documentation of all equity
securities of Holdings or any of its Subsidiaries to be outstanding
at or after the Closing Date, the certificate of incorporation,
by-laws, other governing documents and the corporate and capital
structure of Holdings and its Subsidiaries (excluding the identity
and amount of equity contribution of any Investor), in each case
after giving effect to the consummation of the Recapitalization,
shall be in form and substance satisfactory to the Co-Arrangers (it
being understood that all such terms, conditions and documentation as
disclosed or otherwise made available to the Co-Arrangers on or prior
to the date of the Offering Memorandum are in form and substance
satisfactory to the Co-Arrangers). All of the existing Indebtedness
of Holdings and its Subsidiaries (except for (x) the Industrial
Revenue Bonds, Financing Leases and similar obligations in an
aggregate amount not in excess of $10,000,000 and (y) letters of
credit collateralizing obligations of all Captive Insurance
Subsidiaries in an aggregate amount not in excess of $12,000,000)
shall have been repaid on terms reasonably satisfactory to the
Co-Arrangers.
(v) The execution and delivery of this Agreement by the
Lenders and the Agents shall be deemed to evidence the satisfaction
of the Lenders and the Agents with such of the matters referenced and
in clauses (i) through (iv) of this paragraph (c) as shall have been
disclosed and made available to the Administrative Agent prior to the
date hereof.
(d) FINANCIAL STATEMENTS. (i) The Lenders shall have
received the unaudited interim consolidated balance sheet of Holdings
and its Subsidiaries for the monthly period ended as of October 31,
1997, to the extent available, in form and substance reasonably
satisfactory to the Co-Arrangers; and (ii) the Lenders shall have
received a satisfactory PRO FORMA balance sheet on a consolidated
basis of the Company and its Subsidiaries as of October 31, 1997
reflecting and giving effect to the Recapitalization and the other
transactions contemplated hereby.
(e) FEES. The Agents and the Lenders shall have received
all fees, expenses and other consideration presented for payment
required to be paid or delivered on or before the Closing Date.
(f) LIEN SEARCHES; LIEN PERFECTION. (i) The Administrative
Agent shall have received the results of a search of Uniform
Commercial Code, tax and judgment filings made with respect to each
of Holdings and its Subsidiaries in each of the jurisdictions
reasonably requested by the Co-Arrangers, together with copies of
financing statements disclosed by such searches and such searches
shall disclose no Liens on any assets encumbered by any
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Security Document, except for Liens permitted hereunder or, if
unpermitted Liens are disclosed, the Administrative Agent shall have
received satisfactory evidence of the release of such Liens and (ii)
the Administrative Agent shall have received 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.
(g) ENVIRONMENTAL. The Lenders shall be reasonably
satisfied, based upon the results of the environmental diligence
conducted by the Co-Arrangers and their advisors in cooperation with
the Company (and the Lenders shall have received all information,
reasonably requested by the Co-Arrangers, in connection with such
environmental diligence), with respect to environmental hazards,
conditions or liabilities to which the Company or any of its
Subsidiaries may be subject (the execution and delivery of this
Agreement by the Lenders and the Co-Arrangers being deemed to
evidence the satisfaction of the Co-Arrangers with such due diligence
as shall have been disclosed and made available to the Co-Arrangers
prior to the date hereof).
(h) PLEDGE AGREEMENTS. The Administrative Agent shall have
received the Company Pledge Agreement and the Holdings/Subsidiary
Pledge Agreement executed and delivered by a duly authorized officer
of the parties thereto, together with stock certificates representing
100% of all issued and outstanding shares of Capital Stock of the
Company and each of the Domestic Subsidiaries of the Company (except
that (x) the Capital Stock of Captive Insurance Subsidiaries shall
not be required to be delivered and (y) to the extent the Capital
Stock of any Foreign Subsidiary of the Company is voting stock, not
more than 65% of the voting stock of any such Foreign Subsidiary
shall be required to be so pledged), and undated stock powers for
each certificate, executed in blank and delivered by a duly
authorized officer of the applicable pledgor and the acknowledgment
and consent of the issuer thereunder in the form annexed thereto.
(i) COMPANY SECURITY AGREEMENT. The Administrative Agent
shall have received the Company Security Agreement, executed and
delivered by a duly authorized officer of the Company.
(j) GUARANTEES. (i) The Administrative Agent shall have
received a Holdings Guarantee, executed and delivered by a duly
authorized officer of Holdings.
(ii) The Administrative Agent shall have received a
Subsidiary Guarantee, executed and delivered by a duly authorized
officer of each of the Domestic Subsidiaries of the Company except
for (i) any Receivables SPV, (ii)
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any Captive Insurance Subsidiary and (iii) any Immaterial Subsidiary.
(k) SUBSIDIARY SECURITY AGREEMENT. The Administrative
Agent shall have received a Subsidiary Security Agreement, executed
and delivered by a duly authorized officer of each Subsidiary
Guarantor.
(l) LEGAL OPINIONS. The Administrative Agent shall have
received, dated the Closing Date and addressed to each Agent and the
Lenders, an opinion of (i) Gibson, Dunn & Crutcher LLP, counsel to
the Credit Parties, in substantially the form of Exhibit J-1, with
such changes thereto as may be approved by the Co-Arrangers and their
counsel, (ii) the general counsel to the Company, in substantially
the form of Exhibit J-2, with such changes thereto as may be approved
by the Administrative Agent and its counsel and (iii) such local
counsel as may have been reasonably requested by the Co-Arrangers,
which opinions shall be in form and substance reasonably satisfactory
to the Co-Arrangers.
(m) CLOSING CERTIFICATE. The Administrative Agent shall
have received a Closing Certificate of each Credit Party dated the
Closing Date, in substantially the form of Exhibits K-1, K-2 and K-3,
respectively, with appropriate insertions and attachments, in form
and substance satisfactory to the Co-Arrangers and their counsel,
executed by the President, any Vice President or Chief Financial
Officer and the Secretary or any Assistant Secretary of Holdings, the
Company and its Subsidiaries, respectively.
(n) SOLVENCY OPINION. The Administrative Agent shall have
received an opinion or opinions of Murray, Devine & Co. in form and
substance reasonably satisfactory to it, setting forth the
conclusions that, after giving effect to the Transaction and the
incurrence of all the financings contemplated herein, each of the
Company, individually, and the Company and its Subsidiaries, taken as
a whole, are not insolvent and will not be rendered insolvent by the
indebtedness incurred in connection therewith, and will not be left
with unreasonably small capital with which to engage in their
businesses and will not have incurred debts beyond their ability to
pay such debts as they mature.
(o) INSURANCE. The Administrative Agent shall have
received (i) a schedule describing all insurance maintained by
Holdings and its Subsidiaries pursuant to subsection 8.5, and (ii)
binders or certificate of insurance for each policy set forth on such
schedule insuring against casualty and other usual and customary
risks.
(p) EXISTING CREDIT AGREEMENTS. (i) On the Closing Date,
the commitments under the Existing Credit Agreements shall have been
terminated, all
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loans thereunder shall have been repaid in full, together with
interest thereon, all letters of credit issued thereunder shall have
been terminated or incorporated hereunder as, or supported hereunder
by, Letters of Credit, and all other amounts owing pursuant to the
Existing Credit Agreements shall have been repaid in full, and the
Administrative Agent shall have received evidence in form, scope and
substance reasonably satisfactory to it that the matters set forth in
this subsection have been satisfied at such time.
(ii) On the Closing Date, the creditors under the Existing
Credit Agreements shall have terminated and released all Liens on the
capital stock of and assets owned by Holdings and its Subsidiaries,
and the Administrative Agent shall have received all such releases as
may have been requested by the Co-Arrangers, which releases shall be
in form and substance reasonably satisfactory to the Co-Arrangers.
(q) OTHER AGREEMENTS. The Administrative Agent shall have
received each additional document or instrument reasonably requested
by the Required Lenders.
(r) LITIGATION. On the Closing Date, there shall be no
actions, suits, injunctions, restraining orders or proceedings
pending or threatened against any Credit Party (x) with respect to
this Agreement or any other Credit Document or the transactions
contemplated hereby or thereby (including the Recapitalization) or
(y) which is reasonably likely to have a material adverse effect on
(I) the transactions contemplated by the Credit Documents or on the
business, property, assets, liabilities or condition (financial or
otherwise) of the Company or of the Company and its Subsidiaries
taken as a whole, in each case after giving effect to the
Recapitalization and the other transactions contemplated hereby, (II)
the rights or remedies of the Lenders hereunder or under any other
Credit Document or (III) on the ability of any Credit Party to
perform its respective obligations to the Lenders hereunder or under
any other Credit Document.
(s) CONSENTS, APPROVALS AND FILINGS. Except for the
financing statements contemplated by the Security Agreements and the
Mortgages and except as disclosed in Section 3.4 of the Company
Disclosure Letter to the Recapitalization Agreement, on the Closing
Date, all necessary governmental and other third party
authorizations, consents, approvals or waivers required in connection
with the execution, delivery and performance by the Credit Parties,
and the validity and enforceability against the Credit Parties, of
the Credit Documents to which any of them is a party, or otherwise in
connection with the transactions contemplated by the Credit Documents
and the Recapitalization Agreement, shall have been obtained or made
and remain in full force
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and effect (except where the failure to do so would not reasonably be
expected to have a material adverse effect on (x) the business,
operations, property, condition (financial or otherwise) of the
Company and its Subsidiaries, taken as a whole, or (y) (I) the
validity or enforceability of this Agreement, any of the Notes or the
other Credit Documents or (II) the rights or remedies of the Agents
or the Lenders hereunder or thereunder), and all applicable waiting
periods shall have expired without any action being taken by any
competent authority which restrains or prevents such transactions or
imposes materially adverse conditions upon the consummation of such
transactions.
(t) CONTRACTUAL RESTRICTIONS. After giving effect to the
Transaction, the financings incurred in connection therewith and the
other transactions contemplated hereby and except as disclosed in
Sections 3.4 and 3.10 of the Company Disclosure Letter to the
Recapitalization Agreement, the Company and its Subsidiaries shall
not be subject to any material contractual or other restrictions
(including any such agreements acquired pursuant to the Transaction)
that would be violated by the Recapitalization or the other
transactions contemplated hereby, including the granting of security
interests and guarantees and the payment of dividends by
Subsidiaries.
(u) ADVERSE CHANGE. Nothing shall have occurred (and the
Agents shall have become aware of no facts or conditions) which is
reasonably likely to have a material adverse effect on (x) the rights
or remedies of the Lenders or the Agents, or on the ability of the
Company or its Subsidiaries to perform their obligations to the
Lenders or (y) the business, property, assets, liabilities or
condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole, in each case after giving effect to
the consummation of the Recapitalization and the transactions
contemplated hereby.
(v) INITIAL BORROWING BASE CERTIFICATE. On the Closing
Date, the Company shall have delivered to the Administrative Agent
the initial Borrowing Base Certificate meeting the requirements of
Section 8.1(e).
7.2 CONDITIONS TO ALL LOANS AND LETTERS OF CREDIT. The obligation of
each Lender to make any Loan (other than any Revolving Credit Loan the proceeds
of which are to be used to repay Refunded Swing Line Loans) and the obligation
of the Issuing Lender to issue any Letter of Credit is subject to the
satisfaction of the following conditions precedent on the relevant Borrowing
Date:
(a) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made in or pursuant to Section 6 or
which are contained in any other Credit Document shall be true and
correct in all material respects on and as of the date of such Loan
or of the issuance of such Letter of Credit as if
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made on and as of such date (unless stated to relate to a specific
earlier date, in which case, such representations and warranties
shall be true and correct in all material respects as of such earlier
date).
(b) NO DEFAULT OR EVENT OF DEFAULT. No Default or Event of
Default shall have occurred and be continuing on such Borrowing Date
or after giving effect to such Loan to be made or such Letter of
Credit to be issued on such Borrowing Date.
Each borrowing by the Company hereunder and the issuance of each Letter of
Credit by the Issuing Lender hereunder shall constitute a representation and
warranty by the Company as of the date of such borrowing or issuance that the
conditions in clauses (a) and (b) and of this subsection 7.2 have been
satisfied.
SECTION 8
AFFIRMATIVE COVENANTS
---------------------
The Company hereby agrees that, so long as the Commitments remain in
effect, any Loan, Note or L/C Obligation remains outstanding and unpaid, any
amount (unless cash in an amount equal to such amount has been deposited to a
cash collateral account established by the Administrative Agent) remains
available to be drawn under any Letter of Credit or any other amount is owing to
any Lender or the Administrative Agent hereunder or under any of the other
Credit Documents, the Company shall, and, in the case of the agreements
contained in subsections 8.3 through 8.6, and 8.8 through 8.9, shall cause each
of its Subsidiaries to:
8.1 FINANCIAL STATEMENTS. Furnish to the Administrative Agent (with
sufficient copies for each Lender which the Administrative Agent shall promptly
furnish to each Lender):
(a) as soon as available, but in any event within 95 days
after the end of each fiscal year of the Company, a copy of the
consolidated balance sheet of the Company and its consolidated
Subsidiaries as at the end of such fiscal year and the related
consolidated statements of stockholders' equity and cash flows and
the consolidated statements of income of the Company and its
Subsidiaries for such fiscal year, setting forth in each case in
comparative form the figures for the previous year and, in the case
of the consolidated balance sheet referred to above, reported on,
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, or qualification
which would affect the computation of financial covenants, by
independent certified public accountants of nationally
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recognized standing;
(b) as soon as available, but in any event not later than
50 days after the end of each of the first three quarterly periods of
each fiscal year of the Company, the unaudited consolidated balance
sheet of the Company and its Subsidiaries as at the end of each such
quarter and the related unaudited consolidated statements of income
and cash flows of the Company and its Subsidiaries for such quarterly
period and the portion of the fiscal year of the Company through such
date, setting forth in each case in comparative form the figures for
the corresponding quarter in, and year to date portion of, the
previous year, and the figures for such periods in the budget
prepared by the Company and furnished to the Administrative Agent,
certified by the chief financial officer, controller or treasurer of
the Company as being fairly stated in all material respects;
(c) as soon as available, but in any event not later than
45 days after the beginning of each fiscal year of the Company to
which such budget relates, a preliminary consolidated operating
budget for the Company and its Subsidiaries taken as a whole; and as
soon as available, any material revision to or any final revision of
any such preliminary annual operating budget or any such consolidated
operating budget;
(d) concurrently with the delivery of financial statements
pursuant to subsection 8.1(a) or (b), a certificate of the chief
financial officer or treasurer of the Company setting forth, in
reasonable detail, (x) the computations of Capital Expenditures as of
the last day of the fiscal period covered by such financial
statements, the Leverage Ratio as of such last day, the Interest
Coverage Ratio as of such last day and Consolidated EBITDA for the
respective period being tested pursuant to Section 9.11 and (y) in
the case of financial statements delivered pursuant to subsection
8.1(a), the computations of Excess Cash Flow for the respective
fiscal year; and
(e) (i) on the Closing Date and (ii) thereafter, as soon
as possible but in any event not later than 30 days after the end of
each fiscal month, a borrowing base certificate substantially in the
form of Exhibit M (each, a "Borrowing Base Certificate"), with
respect to the Eligible Receivables of the Company and the Subsidiary
Guarantors as of (x) in the case of clause (i), October 31, 1997 and
(y) in the case of clause (ii), the last day of the immediately
preceding fiscal month, and in each case, certified by the chief
financial officer of the Company;
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all such financial statements to be complete and correct in all material
respects (subject, in the case of interim statements, to normal year-end audit
adjustments) and to be prepared in reasonable detail and (except in the case of
the statements referred to in paragraphs (c), (d) and (e) of this subsection
8.1) in accordance with GAAP.
8.2 CERTIFICATES; OTHER INFORMATION. Furnish to the Administrative
Agent (with sufficient copies for each Lender which the Administrative Agent
shall promptly deliver to each Lender):
(a) concurrently with the delivery of the consolidated
financial statements referred to in subsection 8.1(a), a letter from
the independent certified public accountants reporting on such
financial statements stating that in making the examination necessary
to express their opinion on such financial statements no knowledge
was obtained of any Default or Event of Default under subsections
5.4(c), 9.1, 9.3, and 9.5 through 9.12, except as specified in such
letter;
(b) within 15 days of the delivery of the financial
statements referred to in subsections 8.1(a) and (b) (except that the
certificate referred to in clause (iii) below shall be delivered
concurrently with such financial statements), a certificate of the
chief financial officer or treasurer of the Company 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 Company has complied with the
requirements of subsection 8.9 with respect thereto), (ii) neither
the Company 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 the Security
Documents with respect thereto, (iii) each of the Company and its
Subsidiaries has observed or performed all of its respective
covenants and other agreements, and satisfied every material
condition, contained in this Agreement, the Notes and the other
Credit Documents to be observed, performed or satisfied by it, and
that such officer has obtained no knowledge of any Default or Event
of Default except as specified in such certificate, (iv) showing in
detail as of the end of the related fiscal period the figures and
calculations supporting such statement in respect of subsection 9.1,
clauses (b) and (e) of subsection 9.3 and subsections 9.6 through
9.12 and any other calculations reasonably requested by the
Administrative Agent with respect to the quantitative aspects of the
other covenants contained herein, (v) if not specified in the
financial statements delivered pursuant to subsection
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8.1, specifying the aggregate amount of interest paid or accrued by
the Company and its Subsidiaries, and the aggregate amount of
depreciation, depletion and amortization charged on the books of the
Company and its Subsidiaries, during such accounting period, and (vi)
identify any owned Real Property of the Company or a Domestic
Subsidiary acquired during such accounting period that, together with
any improvements thereon, has a value of at least $5,000,000;
(c) promptly upon receipt thereof, copies of all final
reports submitted to the Company or to any of its Subsidiaries by
independent certified public accountants in connection with each
annual, interim or special audit of the books of the Company or any
of its Subsidiaries made by such accountants, and, upon the request
of any Lender (through the Administrative Agent), any final comment
letter submitted by such accountants to management in connection with
their annual audit;
(d) promptly upon their becoming available, copies of all
financial statements, reports, notices and proxy statements sent or
made available to the public generally by Holdings, the Company or
any of their Subsidiaries, if any, and all regular and periodic
reports and all final registration statements and final prospectuses,
if any, filed by the Company or any of its Subsidiaries with any
securities exchange or with the Securities and Exchange Commission or
any Governmental Authority succeeding to any of its functions;
(e) concurrently with the delivery of the financial
statements referred to in subsections 8.1(a) and (b), a management
summary describing and analyzing the performance of the Company and
its Subsidiaries during the periods covered by such financial
statements;
(f) within 50 days after the end of each fiscal quarter, a
summary of all Asset Sales during such fiscal quarter including the
amount of all Net Proceeds from such Asset Sales not previously
applied to prepayments of the Loans and reductions of the Commitments
pursuant to the proviso to subsection 5.4(c)(iii);
(g) within 50 days after the end of each fiscal year, (A)
a summary of all Recovery Events during such period for which
proceeds received by Holdings or its Subsidiaries exceeded $250,000,
(B) if the aggregate proceeds received with respect to all Recovery
Events during such period exceeded $1,000,000, a summary of all such
Recovery Events with individual amounts of proceeds in excess of
$50,000, in each case including the amounts of such
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proceeds and the dates on which they were received, or (C) a
statement that no Recovery Events described above have occurred
during such fiscal year;
(h) within 50 days after the end of each fiscal year, a
summary of all acquisitions effected pursuant to subsection
9.6(g)(B), for which the amount of individual expenditures exceeded
$1,000,000, which summary shall include the amount of expenditures in
connection with such acquisitions and the dates on which such
acquisitions were consummated; and
(i) promptly, such additional financial and other
information as any Lender may from time to time reasonably request
(through the Administrative Agent).
8.3 PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations and liabilities of whatever nature, except (a) when 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 Company or any of its Subsidiaries, as the case may
be, (b) for delinquent obligations which do not have a material adverse effect
on the business, assets, condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries taken as a whole and (c) for
trade and other accounts payable in the ordinary course of business which are
not overdue for a period of more than 90 days or, if overdue for more than 90
days, as to which a dispute exists and adequate reserves in conformity with GAAP
have been established on the books of the Company or any of its Subsidiaries, as
the case may be.
8.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. Continue to
engage in businesses of the same general type as now conducted by it (after
giving effect to the Recapitalization), and preserve, renew and keep in full
force and effect its corporate existence and take all reasonable action to
maintain all material rights, material privileges, franchises, copyrights,
patents, trademarks and trade names necessary or desirable in the normal conduct
of its business except for rights, privileges, franchises, copyrights, patents,
trademarks and tradenames the loss of which would not in the aggregate have a
material adverse effect on the business, assets, condition (financial or
otherwise) or results of operations of the Company and its Subsidiaries taken as
a whole, and except as otherwise permitted by subsections 9.4 and 9.5; and
comply with all applicable Requirements of Law except to the extent that the
failure to comply therewith would not, in the aggregate, have a material adverse
effect on the business, assets, condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries taken as a whole.
8.5 MAINTENANCE OF PROPERTY; INSURANCE. (a) Keep all property useful
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and necessary in its business in good working order and condition (ordinary wear
and tear excepted); and
(b) Maintain with financially sound and reputable insurance com-
panies insurance on all its property in at least such amounts and with only such
deductibles as are usually maintained by, and against at least such risks (but
including, in any event, public liability insurance) as are usually insured
against in the same general area by, companies engaged in the same or a similar
business, and furnish to each Lender, (i) annually, a schedule disclosing (in a
manner substantially similar to that used in the schedule provided pursuant to
subsection 7.1(o)) all insurance against products liability risk maintained by
the Company and its Subsidiaries pursuant to this subsection 8.5(b) or otherwise
and (ii) upon written request of any Lender, full information as to the
insurance carried; PROVIDED that the Company may implement programs of self
insurance in the ordinary course of business and in accordance with industry
standards for a company of similar size so long as reserves are maintained in
accordance with GAAP for the liabilities associated therewith.
8.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. Keep
proper books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and activities
which permit financial statements to be prepared in conformity with GAAP and all
Requirements of Law; and permit representatives of any Lender upon reasonable
notice (made through the Administration Agent and no more frequently than
quarterly unless a Default or Event of Default shall have occurred and be
continuing) to visit and inspect any of its properties and examine and make
abstracts from any of its books and records at any reasonable time and as often
as may reasonably be requested upon reasonable notice, and to discuss the
business, operations, assets and financial and other condition of the Company
and its Subsidiaries with officers and employees thereof and with their
independent certified public accountants with prior reasonable notice to, and
coordination with, the chief financial officer or the treasurer of the Company.
8.7 NOTICES. Promptly give notice to the Administrative Agent (to be
distributed by the Administrative Agent to the Lenders):
(a) of the occurrence of any Default or Event of Default;
(b) of any (i) default or event of default under any
instrument or other agreement, guarantee or collateral document of
the Company or any of its Subsidiaries which default or event of
default has not been waived and would have a material adverse effect
on the business, assets, condition (financial or otherwise) or
results of operations of the Company and its Subsidiaries taken as a
whole, or any other default or event of default under any such
instrument, agreement, guarantee or
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other collateral document which, but for the proviso to clause (e) of
Section 10, would have constituted a Default or Event of Default
under this Agreement, or (ii) litigation, investigation or proceeding
which may exist at any time between the Company or any of its
Subsidiaries and any Governmental Authority, or receipt of any notice
of any environmental claim or assessment against the Company or any
of its Subsidiaries by any Governmental Authority, which in any such
case, if adversely determined, would have a material adverse effect
on the business, assets, condition (financial or otherwise) or
results of operations of the Company and its Subsidiaries taken as a
whole;
(c) of any litigation or proceeding against the Company or
any of its Subsidiaries (i) in which more than $5,000,000 of the
amount claimed is not covered by insurance or (ii) in which
injunctive or similar relief is sought which if obtained would have a
material adverse effect on the business, assets, condition (financial
or otherwise) or results of operations of the Company and its
Subsidiaries taken as a whole;
(d) of the following events, as soon as practicable after,
and in any event within 30 days after, the Company knows or has
reason to know thereof: (i) the occurrence of any Reportable Event
with respect to any Plan which Reportable Event could reasonably
result in material liability to the Company and its Subsidiaries
taken as a whole, or (ii) the institution of proceedings or the
taking of any other action by PBGC, the Company or any Commonly
Controlled Entity to terminate, withdraw or partially withdraw from
any Plan and, with respect to a Multiemployer Plan, the
Reorganization or Insolvency of such Plan, in each of the foregoing
cases which could reasonably result in material liability to the
Company and its Subsidiaries taken as a whole, and in addition to
such notice, deliver to the Administrative Agent and each Lender
whichever of the following may be applicable: (A) a certificate of a
Responsible Officer of the Company setting forth details as to such
Reportable Event and the action that the Company or such Commonly
Controlled Entity proposes to take with respect thereto, together
with a copy of any notice of such Reportable Event that may be
required to be filed with PBGC, or (B) any notice delivered by PBGC
evidencing its intent to institute such proceedings or any notice to
PBGC that such Plan is to be terminated, as the case may be;
(e) concurrently with the delivery of the information
delivered pursuant to subsection 8.2(f) and each prepayment required
pursuant to subsection 5.4(c)(iii), of any Asset Sale or
substantially like-kind
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exchange of real property by Holdings or any of its Subsidiaries; and
(f) of a material adverse change known to the Company or
its Subsidiaries in the business, assets, condition (financial or
otherwise) or results of operations of the Company and its
Subsidiaries taken as a whole.
Each notice pursuant to this subsection 8.7 shall be accompanied by a statement
of a Responsible Officer of the Company setting forth details of the occurrence
referred to therein and (in the cases of clauses (a) through (d)) stating what
action the Company proposes to take with respect thereto.
8.8 ENVIRONMENTAL LAWS. (a) (i) Comply with all Environmental Laws
applicable to it, and obtain, comply with and maintain any and all Environmental
Permits necessary for its operations as conducted and as planned; and (ii) take
reasonable efforts to ensure that all of its tenants, subtenants, contractors,
subcontractors, and invitees comply with all Environmental Laws, and obtain,
comply with and maintain any and all Environmental Permits, applicable to any of
them insofar as any failure to so comply, obtain or maintain could result in a
material adverse effect on the Company and its Subsidiaries taken as a whole.
Noncompliance by the Company or any of its Subsidiaries with any applicable
Environmental Law or Environmental Permit shall be deemed not to constitute a
breach of this 8.8(a); PROVIDED that, upon learning of any such noncompliance,
the Company and its Subsidiaries shall promptly undertake reasonable efforts to
achieve compliance or to contest by appropriate proceedings any alleged
noncompliance and, PROVIDED FURTHER, that, in any case, such noncompliance, and
any other noncompliance with Environmental Law and any contesting of allegations
of noncompliance with Environmental Laws, individually or in the aggregate,
could not reasonably be expected to give rise to a material adverse effect on
the Company and its Subsidiaries taken as a whole.
(b) Comply in a timely manner with all orders and lawful directives
regarding Environmental Laws issued to the Company or any of its Subsidiaries by
any Governmental Authority, other than such orders and lawful directives as to
which an appeal or other challenge has been timely and properly taken in good
faith and the pendency of any and all such appeals and other challenges could
not reasonably be expected to give rise to a material adverse effect on the
Company and its Subsidiaries taken as a whole.
(c) Maintain, update as appropriate, and implement in all material
respects an environmental program reasonably designed to (i) ensure that the
Company, its Subsidiaries, any of their respective operations (including,
without limitation, disposal), and any properties owned, leased or operated by
any of them,
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attain and remain in substantial compliance with all applicable Environmental
Laws; (ii) reasonably and prudently manage any liabilities or potential
liabilities that the Company, any of the other Credit Parties, any of their
respective operations (including, without limitation, disposal), and any
properties owned or leased by any of them, may have under all applicable
Environmental Laws; and (iii) ensure that the Company and its Subsidiaries
undertake reasonable efforts to identify, and reasonably evaluate, issues of
compliance with and liability under Environmental Laws prior to acquiring,
directly or indirectly, any ownership or leasehold interest in real property, or
other interest in any real property that could give rise to the Company or any
of its Subsidiaries being subjected to liability under any Environmental Law as
a result of such acquisition.
8.9 ADDITIONAL COLLATERAL. (a) Subject to subsections 8.9(f) and (g),
with respect to any assets acquired after the Closing Date by the Company or any
of the Subsidiary Guarantors that are intended to be subject to the Lien created
by any of the Security Documents but which are not so subject (but, in any
event, excluding (x) any assets described in paragraph (b) or (c) of this
subsection, (y) immaterial assets and (z) Receivables Facility Assets), promptly
(and in any event within 30 days after the acquisition thereof): (i) execute and
deliver to the Administrative Agent such amendments or supplements 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, and (ii) take all actions
necessary or advisable to cause such Lien to be duly perfected to the extent
required by such Security Document 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.
(b) With respect to any Person that is or becomes a Subsidiary (other
than (v) any joint venture or other Person referred to in subsection 9.6(h) in
which (x) there are no investments by the Company or any of its Subsidiaries as
of the Closing Date and (y) all investments by the Company or its Subsidiaries
after the Closing Date are made pursuant to subsection 9.6(h), (w) any
Immaterial Subsidiary (so long as such Subsidiary remains an Immaterial
Subsidiary), (x) subject to the provisions of subsection 8.9(g), any Receivables
SPV, (y) any Captive Insurance Subsidiary and (z) any Foreign 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 relevant Pledge Agreement as the
Administrative Agent reasonably shall deem necessary or advisable to grant to
the Administrative Agent, for the benefit of the Lenders, a Lien on any Capital
Stock owned by such Subsidiary except to the extent not required to be pledged
pursuant to the Holdings/Subsidiary Pledge Agreement, (ii) deliver to the
Administrative Agent the certificates representing such Capital Stock, together
with undated stock powers executed and delivered in blank by a duly authorized
officer of the Company or such
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Subsidiary, as the case may be, and (iii) cause such new Subsidiary (A) to
become a party to the Subsidiary Guarantee and the Subsidiary Security Agreement
or such comparable 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 Subsidiary Security Agreement to
be duly perfected to the extent required by such agreement 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. Notwithstanding the foregoing, any Person that is not a
Subsidiary on the Closing Date shall not be required to sign a Guaranty if (i)
all advances, loans and other investments made therein by the Company and its
Subsidiaries are made after the Closing Date and (ii) all such advances, loans
and investments in such Person are made pursuant to subsection 9.6(h).
(c) With respect to any Person that is or becomes a Foreign
Subsidiary (excluding (x) any Subsidiary that is a joint venture or other Person
referred to in subsection 9.6(h) in which (A) there are no investments by the
Company or any of its Subsidiaries as of the Closing Date and (B) all
investments made by the Company and its other Subsidiaries after the Closing
Date are made pursuant to subsection 9.6(h), or (y) any Immaterial Subsidiary so
long as it remains as such), promptly upon the request of the Administrative
Agent: (i) execute and deliver to the Administrative Agent a new pledge
agreement or such amendments to the relevant Pledge Agreement as the
Administrative Agent reasonably 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 Company or any of its Domestic
Subsidiaries (PROVIDED that in no event shall more than 65% of the total
combined voting equity or its equivalent of any such Foreign Subsidiary be
required to be so pledged, although all non-voting equity and its equivalent
which is owned by the Company or any of its Domestic Subsidiaries shall be
required to be so pledged), (ii) deliver to the Administrative Agent any
certificates representing such Capital Stock, together with undated stock powers
executed and delivered in blank by a duly authorized officer of the Company or
such Subsidiary, as the case may be, and 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 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.
(d) In the event that at any time after the Closing Date, any
Subsidiary which was previously an Immaterial Subsidiary ceases to be an
Immaterial Subsidiary, the Company shall cause such Subsidiary to take all
action, if any, that would be required pursuant to preceding subsections 8.9(b)
and (c) with respect to a Person
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which then became a Subsidiary.
(e) Within 10 days of the Closing Date, the Administrative Agent
shall have received (i) fully executed counterparts of deeds of trust, mortgages
and similar documents in each case in form and substance reasonably satisfactory
to the Administrative Agent and substantially in the form of Exhibit L (each a
"MORTGAGE" and collectively, the "MORTGAGES") covering all the Mortgaged
Properties, and arrangements reasonably satisfactory to the Administrative Agent
shall be in place to provide that counterparts of such Mortgages shall be
promptly recorded upon execution in all places to the extent necessary or
desirable, in the reasonable judgment of the Administrative Agent, effectively
to create a valid and enforceable first priority Lien, subject only to Permitted
Liens, on each Mortgaged Property in favor of the Administrative Agent (or such
other trustee as may be required or desired under local law) for the benefit of
the Lenders, (ii) a lender's title insurance policy, paid for by the Company,
issued by a nationally recognized title insurance company, together with such
endorsements, coinsurance and reinsurance as may be reasonably requested by the
Administrative Agent, in form and substance reasonably acceptable to the
Administrative Agent, insuring each Mortgage as a first lien on the relevant
Mortgaged Property and subject only to Liens expressly agreed to by the
Administrative Agent and (iii) such other documents (including without
limitation, current ALTA/ASCM surveys of any parcel of Real Property made in
accordance with ALTA/ASCM standards, including Table A, Items Nos. 1-4 and 6-13)
as are reasonably required by the Administrative Agent.
(f) Upon the request of the Administrative Agent, the Company will,
and will cause its Wholly-Owned Subsidiary Guarantors to, promptly grant to the
Administrative Agent, within 60 days of such request, security interests and
mortgages (an "ADDITIONAL MORTGAGE") in such owned Real Property of the Company
and its Domestic Subsidiaries as are acquired after the Closing Date by the
Company or such Subsidiary and that, together with any improvements thereon,
individually have a value of at least $5,000,000, as additional security for the
obligations of the Credit Parties under any Credit Document (unless the subject
property is already mortgaged to a third party to the extent permitted by
subsection 9.2) (it being understood that the provisions of this subsection
8.9(f) will apply to the Real Property subject to the Industrial Revenue Bonds
at such time that the Industrial Revenue Bonds are repaid, as if such Real
Property were acquired on the date of such repayment). Such Mortgages shall be
granted pursuant to documentation reasonably satisfactory in form and substance
to the Administrative Agent and shall constitute valid and enforceable perfected
Liens subject only to Permitted Liens and such other Liens reasonably acceptable
to the Administrative Agent. The Additional Mortgages or instruments related
thereto shall be duly recorded or filed in such manner and in such places as are
required by law to establish, perfect, preserve and protect the Liens in favor
of the Administrative Agent required to be granted pursuant to the Additional
Mortgages and
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all taxes, fees and other charges payable in connection therewith shall be paid
in full. If requested by the Administrative Agent or the Required Lenders, the
Company shall provide a lender's title policy with respect to each such
Additional Mortgage conforming to the requirements of subsection 8.9(e).
(g) All capital stock of each Receivables SPV, if any, shall be
required to be pledged pursuant to the relevant Pledge Agreement; PROVIDED that
(A) to the extent prohibited by the relevant Receivables Facility (and so long
as such Receivables Facility is in effect and contains such prohibition), no
security interest will be required in the Capital Stock of the respective
Receivables SPV and (B) to the extent the stock of a Receivables SPV is required
to be pledged to secure amounts owing under the respective Receivables Facility,
the Company shall use commercially reasonable efforts to grant a second priority
perfected security interest in such Capital Stock to secure the obligations
pursuant to the Credit Documents (and shall take all action in connection
therewith as may reasonably be requested by the Administrative Agent).
SECTION 9
NEGATIVE COVENANTS
------------------
The Company hereby agrees that it shall not, and the Company shall
not permit any of its Subsidiaries to, directly or indirectly so long as the
Commitments remain in effect or any Loan, Note or L/C Obligation remains
outstanding and unpaid, any amount (unless cash in an amount equal to such
amount has been deposited to a cash collateral account established by the
Administrative Agent) remains available to be drawn under any Letter of Credit
or any other amount is owing to any Lender or the Administrative Agent hereunder
or under any other Credit Document (it being understood that each of the
permitted exceptions to each of the covenants in this Section 9 is in addition
to, and not overlapping with, any other of such permitted exceptions except to
the extent expressly provided):
9.1 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) the Indebtedness outstanding on the Closing Date and
reflected on Schedule 9.1(a), including the refinancing of any such
Indebtedness on terms and conditions taken as a whole no less
favorable to the Company and its Subsidiaries or the Lenders;
(b) Indebtedness consisting of the Loans and in connection
with the Letters of Credit and this Agreement;
(c) Indebtedness (i) of the Company to any Wholly-Owned
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Subsidiary Guarantor, (ii) of any Wholly-Owned Subsidiary Guarantor
to the Company or any other Wholly-Owned Subsidiary Guarantor; (iii)
of any Foreign Subsidiary to the Company or any other Subsidiary in
an aggregate principal amount at any time outstanding not to exceed
$25,000,000 PLUS the sum of any amounts dividended or distributed to
the Company or any Wholly-Owned Subsidiary Guarantor by any Foreign
Subsidiary, LESS the sum of (A) the amount of any guarantees of
obligations of Foreign Subsidiaries pursuant to subsection 9.3(c)(ii)
and (B) the amount of any investments made in a Foreign Subsidiary
pursuant to subsection 9.6(b)(iii); (iv) of one or more Captive
Insurance Subsidiaries to the Company or any other Subsidiary in an
aggregate principal amount (for all Indebtedness pursuant to this
clause (iv)) at any time outstanding (calculated without regard to
any write-downs or write-offs thereof) not to exceed $10,000,000 PLUS
the sum of any amounts dividended or distributed (except as
contemplated by subsection 9.5(j)) to the Company or any Wholly-Owned
Subsidiary Guarantor after the Closing Date by Captive Insurance
Subsidiaries, LESS the sum of any amounts outstanding in accordance
with subsections 9.3(c)(iii) and 9.6(k); and (v) of any Receivables
SPV to the Company or any other Wholly-Owned Subsidiary Guarantor in
respect of receivables purchased by such Receivables SPV from such
Person and as evidenced by a promissory note or notes in an aggregate
principal amount not to exceed the difference between the face amount
of such purchased receivables and the amount of Receivables Facility
Attributed Indebtedness, LESS any amount outstanding in accordance
with subsection 9.6(b)(iv); PROVIDED THAT, IN THE CASE OF EACH OF
CLAUSES (i) THROUGH (v) ABOVE, IF (A) A DEFAULT OR EVENT OF DEFAULT
IS IN EXISTENCE AND (B) THE ADMINISTRATIVE AGENT OR REQUIRED LENDERS
SO REQUEST, THE INDEBTEDNESS REFERRED TO IN THIS CLAUSE (c) SHALL BE
EVIDENCED BY A PROMISSORY NOTE OR PROMISSORY NOTES WHICH SHALL BE
PLEDGED TO THE ADMINISTRATIVE AGENT ON TERMS AND CONDITIONS
SATISFACTORY TO THE ADMINISTRATIVE AGENT;
(d) Indebtedness of the Company in respect of:
(i)(y) up to $135,000,000 principal amount of
Bridge Subordinated Debt issued on the Closing Date, and
additional principal amount of Bridge Subordinated Debt
issued in lieu of cash interest on the outstanding Bridge
Subordinated Debt and otherwise as contemplated by the
Bridge Loan Agreement upon exchange of Bridge Subordinated
Debt into exchange notes or (z) up to $135,000,000
principal amount of Senior Subordinated
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Notes issued on the Closing Date; and
(ii) Permanent Subordinated Debt in an
aggregate principal amount at any time outstanding not to
exceed (A) the sum of $135,000,000 and 6% of such amount
LESS (B) the aggregate principal amount of Indebtedness
then outstanding pursuant to preceding (i) (after giving
effect to any repayment thereof with the proceeds of the
Permanent Subordinated Debt), the proceeds (net of any
fees and expenses in connection therewith) of which shall
be applied to prepay, redeem, retire or repurchase either
(I) the outstanding principal amount of the Bridge
Subordinated Debt or (II) Permanent Subordinated Debt plus
(C) $20,000,000 incurred at the time of any refinancing of
the Permanent Subordinated Debt;
(e) Indebtedness of the Company and its Subsidiaries for
industrial revenue bonds or other similar governmental and municipal
bonds, for the deferred purchase price of newly acquired property and
to finance equipment of the Company and its Subsidiaries (pursuant to
purchase money mortgages or otherwise and whether owed to the seller
or a third party) used in the ordinary course of business (PROVIDED
such financing is entered into within 180 days of the acquisition of
such property) of the Company and its Subsidiaries in an amount
(based on the remaining balance of the obligations therefor on the
books of the Company and its Subsidiaries) which shall not exceed
$25,000,000 in the aggregate at any one time outstanding and
Indebtedness of the Company and its Subsidiaries in respect of
Financing Leases to the extent subsections 9.7, 9.9 and 9.10 would
not be contravened;
(f) Indebtedness of the Company and its Domestic
Subsidiaries in an aggregate principal amount at any one time
outstanding not in excess of $25,000,000;
(g) Indebtedness of any Receivables SPV pursuant to any
Receivables Facility;
(h) Indebtedness in respect of letters of credit (other
than Letters of Credit issued hereunder) in an aggregate principal
amount equal to $25,000,000 at any one time outstanding;
(i) Indebtedness (i) assumed in connection with
acquisitions
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permitted by subsection 9.6(g) (so long as such Indebtedness was not
incurred in anticipation of the respective acquisition), (ii) of
newly acquired Subsidiaries acquired in such acquisitions (so long as
such Indebtedness was not incurred in anticipation of the respective
acquisition) and (iii) owed to the seller in any acquisition
permitted by subsection 9.6(g) constituting part of the purchase
price thereof, all of which Indebtedness permitted by this subsection
9.1(i) shall not exceed in the aggregate at any one time $25,000,000
outstanding;
(j) Indebtedness in connection with workmen's compensation
obligations and general liability exposure of the Company and its
Subsidiaries;
(k) Additional unsecured subordinated indebtedness of the
Company and its Subsidiaries (which Indebtedness shall be
subordinated to all obligations pursuant to the Credit Documents
pursuant to subordination terms which are at least as favorable to
the Lenders as those contained in the Indebtedness referenced in
preceding paragraph (d)), PROVIDED that (i) such Indebtedness shall
not exceed $10,000,000 in aggregate principal amount at any time
outstanding plus any additional principal amount of such Indebtedness
issued in lieu of cash interest on such outstanding Indebtedness or
any refinancing thereof, (ii) no part of the principal amount of such
Indebtedness shall have a maturity date earlier than the one-year
anniversary of the final C Installment Payment Date and (iii) the
non-default interest rate thereon shall not exceed 12% per annum; and
(l) Indebtedness of Foreign Subsidiaries in an aggregate
principal amount at any time outstanding not in excess of the
equivalent at the date of each incurrence thereof of $25,000,000.
9.2 LIMITATION ON LIENS. Create, incur, assume or suffer
to exist any Lien upon any of its property, assets, income or
profits, whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments or other governmental
charges not yet delinquent or which are being contested in good faith
and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Company or such
Subsidiary, as the case may be, in accordance with GAAP;
(b) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens arising in the
ordinary
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course of business in respect of obligations which are not yet due or
which are bonded or which are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the Company or such Subsidiary, as the
case may be, in accordance with GAAP;
(c) pledges or deposits in connection with workmen's
compensation, unemployment insurance and other social security
legislation;
(d) deposits to secure the performance of bids, tenders,
trade or government contracts (other than for borrowed money),
leases, licenses, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(e) easements (including, without limitation, reciprocal
easement agreements), rights-of-way, building, zoning and similar
restrictions, utility agreements, covenants, reservations,
restrictions, encroachments, changes, and other similar encumbrances
or title defects incurred, or leases or subleases granted to others,
in the ordinary course of business, which do not in the aggregate
materially detract from the aggregate value of the properties of the
Company and its Subsidiaries, taken as a whole, or in the aggregate
materially interfere with or adversely affect in any material respect
the ordinary conduct of the business of the Company and its
Subsidiaries on the properties subject thereto, taken as a whole;
(f) Liens in favor of the Administrative Agent and the
Lenders pursuant to the Credit Documents, including Liens pursuant to
the Credit Documents in respect of Interest Rate Agreements, and
bankers' liens arising by operation of law;
(g) Liens on property of the Company or any of its
Subsidiaries created solely for the purpose of securing Indebtedness
permitted by subsection 9.1(e) representing or incurred to finance,
refinance or refund the purchase price of property, 9.1(i) (so long
as in the case of clauses (i) and (ii) thereof such Lien was not
incurred in anticipation of the related acquisition) or 9.1(l)
PROVIDED that (x) no such Lien incurred in connection with
Indebtedness pursuant to subsection 9.1(e) and 9.1(i) shall extend to
or cover other property of the Company or such Subsidiary other than
the respective property so acquired, and the principal amount of
Indebtedness secured by any such Lien shall at no time exceed the
original purchase price of such property and (y) no
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such Lien incurred in connection with Indebtedness pursuant to
subsection 9.1(l) shall extend to any property other than the
property of one or more Foreign Subsidiaries;
(h) Liens existing on the Closing Date after giving effect
to the consummation of the Recapitalization and described in
subsection 6.13 or Schedule 9.2(h) (including the extension of any
Liens listed on such Schedule relating to any Indebtedness permitted
under subsection 9.1(a) in connection with any refinancing of such
Indebtedness permitted by such subsection and any Liens securing
Indebtedness to be repaid on the Closing Date to the extent the
Company has made arrangements to terminate such Liens in a manner
satisfactory to the Administrative Agent), PROVIDED that no such Lien
shall extend to or cover other property of the Company or the
respective Subsidiary other than the respective property so
encumbered and the principal amount of Indebtedness secured by any
such Lien shall at no time exceed the original principal amount of
the Indebtedness so secured;
(i) Liens on documents of title and the property covered
thereby securing Indebtedness in respect of the Commercial L/Cs;
(j) (i) mortgages, liens, security interests,
restrictions, encumbrances or any other matter of record that have
been placed by any developer, landlord or other third party on
property over which the Company or any Subsidiary of the Company has
easement rights or on any Leased Property and subordination or
similar agreements relating thereto and (ii) any condemnation or
eminent domain proceedings affecting any real property;
(k) Liens in connection with workmen's compensation
obliga- tions and general liability exposure of the Company and its
Subsidiaries;
(l) Liens on goods (and proceeds thereof) securing
reimbursement obligations in respect of commercial letters of credit
issued in accordance with the terms of this Agreement; and
(m) Liens on any Receivables Facility Assets to the extent
required to secure the repayment of any Indebtedness incurred under
any Receivables Facility permitted by subsection 9.1(g).
9.3 LIMITATION ON CONTINGENT OBLIGATIONS. Create, incur, assume or
suffer to exist any Contingent Obligation except:
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(a) the Guarantees;
(b) other guarantees by the Company incurred in the
ordinary course of business for an aggregate amount not to exceed
$5,000,000 at any one time outstanding;
(c) guarantees by the Company or any Domestic Subsidiary
(i) of obligations of Wholly-Owned Subsidiary Guarantors or the
Company; (ii) of obligations of Foreign Subsidiaries of the Company
in an aggregate principal amount not to exceed $25,000,000 plus the
sum of any amounts dividended or distributed to the Company or any
Wholly-Owned Subsidiary Guarantors by such Foreign Subsidiaries, less
any amounts outstanding in accordance with subsections 9.1(c)(iii)
and 9.6(b)(iii); and (iii) of obligations of one or more Captive
Insurance Subsidiaries in an aggregate amount not to exceed
$10,000,000 plus the sum of all amounts dividended or distributed
(except as contemplated by subsection 9.5(j)) to the Company or any
Wholly-Owned Subsidiary Guarantor after the Closing Date by Captive
Insurance Subsidiaries, less any amounts outstanding in accordance
with subsections 9.1(c)(iv) and 9.6(k); provided that any
unreimbursed payments pursuant to any Contingent Obligations made as
permitted by preceding clause (iii) shall be deemed to constitute
investments made pursuant to (and shall be required to satisfy the
requirements of) subsection 9.6(k);
(d) Contingent Obligations existing on the Closing Date
and described in Schedule 9.3(d) and Contingent Obligations relating
to any refinancing Indebtedness permitted under subsection 9.1(a) (in
each case, so long as the Contingent Obligations relating to any such
refinancing Indebtedness are not more extensive (or provided by
additional obligors) than the Contingent Obligations as same existed
with respect to the Indebtedness being refinanced (or which was
originally so refinanced);
(e) guarantees of obligations to third parties in
connection with relocation of employees of the Company or any of its
Subsidiaries, in an amount which, together with all loans and
advances made pursuant to subsection 9.6(f), shall not exceed
$5,000,000 at any time outstanding;
(f) Contingent Obligations in connection with workmen's
compensation obligations and general liability exposure of the
Company and its Subsidiaries;
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(g) subordinated guarantees in respect of the Subordinated
Debt provided by one or more Subsidiary Guarantors (which guarantees
may remain in effect only so long as the respective such entity
remains a Subsidiary Guarantor), PROVIDED that such subordinated
guarantees are subordinated to the Guarantees on substantially the
same basis as the Subordinated Debt is subordinated to the Loans; and
(h) with respect to any Receivables Facility entered into
after the Closing Date, the Company and its Subsidiaries may provide
Standard Securitization Undertakings.
9.4 PROHIBITION OF FUNDAMENTAL CHANGES. Enter into any merger or
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or engage in any type of business other
than of the same general type now conducted by it, except (a) for the
transactions otherwise permitted pursuant to clause (b) of subsection 9.5, (b)
any Subsidiary of the Company may be merged with and into the Company or a
Wholly-Owned Subsidiary Guarantor (in each case so long as no merger
consideration is paid in connection therewith to a Person other than the Company
or a Wholly-Owned Subsidiary Guarantor), (c) Subsidiaries with a net book value
not greater than $250,000 may be dissolved and (d) any Subsidiary may otherwise
be dissolved; PROVIDED that upon dissolution, the assets of such Subsidiary are
transferred to the Company or a Wholly-Owned Subsidiary Guarantor on the terms
and subject to the conditions set forth in subsection 9.5(b).
9.5 PROHIBITION ON SALE OF ASSETS. Convey, sell, lease (other than a
sublease of real property), assign, transfer or otherwise dispose of (including
through a transaction of merger or consolidation) any of its property, business
or assets (including, without limitation, other payments and receivables but
excluding leasehold interests), whether now owned or hereafter acquired, except:
(a) for sales or other dispositions of inventory in the
ordinary course of business;
(b) except as otherwise permitted by subsection 9.6, that
the Company or any Subsidiary of the Company may sell, lease,
transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to, and any Subsidiary of the
Company may merge with and into, the Company or a Wholly- Owned
Subsidiary Guarantor, and the Company or any Subsidiary of the
Company may sell or otherwise dispose of, or part with control of any
or all of, the Capital Stock of any Subsidiary to a Wholly-Owned
Subsidiary Guarantor or the Company, PROVIDED that, no such
transaction may be effected if it
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would result in the transfer of any assets of, or any Capital Stock
of, the Company or a Subsidiary to, or the merger with and into,
another Subsidiary all of the Capital Stock of which owned by the
Company or any Subsidiary has not been pledged to the Administrative
Agent and which has not guaranteed the obligations of the Company,
for the benefit of the Lenders, under the Notes and this Agreement,
and granted liens or security interests in favor of the
Administrative Agent, for the benefit of the Lenders, on
substantially all of its assets to secure such guarantee, pursuant to
a guarantee, security agreement and other documentation reasonably
satisfactory to the Administrative Agent;
(c) leases of Fee Properties and other real property owned
in fee;
(d) any condemnation or eminent domain proceedings
affecting any real property, PROVIDED that the parties hereto agree
that the net proceeds received in connection with such proceeding
shall be deemed to constitute "Net Proceeds" of a Recovery Event;
(e) substantially like-kind exchanges of real property;
PROVIDED that only any cash received by the Company or any Subsidiary
of the Company in connection with such an exchange (net of all costs
and expenses incurred in connection with such transaction or with the
commencement of operation of real property received in such exchange)
shall be deemed to be Net Proceeds and shall be applied as provided
for in subsection 5.4(c)(iii);
(f) for the sale or other disposition of any property
that, in the reasonable judgment of the Company has become
uneconomic, obsolete or worn out, and which is sold or disposed of in
the ordinary course of business;
(g) for the sale or other disposition of any property the
aggregate amount of the net proceeds received in respect of which
shall not exceed $7,500,000 during the term of this Agreement;
(h) the sale, encumbrance or other disposition at any time
or from time to time of Receivables Facility Assets pursuant to the
respective Receivables Facility;
(i) any sale or disposition of any interest in real
property; PROVIDED that (i) subject to following clause (iii), the
net proceeds of any such sale shall constitute Net Proceeds only to
the extent such net
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proceeds are not reinvested in real property within twelve months
from the date of such sale, (ii) if the real property so sold
constituted Collateral under the Security Documents then any real
property purchased with the net proceeds thereof shall be mortgaged
for the benefit of the Lenders if required by subsection 8.9(f) and
in accordance therewith and (iii) the aggregate outstanding amount of
net proceeds held by the Company at any time for reinvestment in
respect of any real property sold pursuant to this paragraph shall
not exceed $15,000,000;
(j) the sale (for cash at fair market value, as determined
in good faith by the Company) or liquidation (whether partial or
total) of any Captive Insurance Subsidiary, including, without
limitation, by way of a return of excess assets therefrom following
any transfer of liabilities of the respective Captive Insurance
Subsidiary;
(k) any sales, at fair market value for cash, Investment
Grade Securities or other Permitted Insurance Company Investments, of
Permitted Insurance Company Investments by any Captive Insurance
Subsidiary made in the ordinary course of business; and
(l) any sale of life insurance policies to certain
management personnel of Holdings, the Company or its Subsidiaries
pursuant to the Recapitalization Agreement in an approximate amount
not to exceed $2,000,000.
Notwithstanding anything to the contrary contained above, the foregoing
provisions shall in no event permit the sale by the Company or any of its
Subsidiaries of the Capital Stock of any Subsidiary of the Company; PROVIDED
that, to the extent otherwise permitted pursuant to the above provisions of this
subsection 9.5, Capital Stock of one or more Subsidiaries of the Company may be
sold so long as (x) 100% of the Capital Stock of the respective Subsidiary owned
by the Company and its Subsidiaries is so sold and (y) no Default or Event of
Default shall exist at the time of such sale or immediately after giving effect
thereto (it being understood that intercompany Indebtedness previously justified
pursuant to subsection 9.1(c) to or from the respective Subsidiary so sold shall
not be permitted to remain outstanding after giving effect to the respective
sale).
9.6 LIMITATION ON INVESTMENTS, ACQUISITIONS, 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 make any other
investment in (including, without limitation, any acquisition of all or any
substantial portion of the assets, and any acquisition of a business or a
product line, of other companies, other than the acquisition of inventory in the
ordinary course of business), any Person (except to the extent permitted by
Section 9.7), except:
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(a) the Company may make loans or advances to
Subsidiaries, and Subsidiaries may make loans or advances to the
Company and other Subsidiaries, to the extent in each case the
Indebtedness created thereby is permitted by subsection 9.1(c);
(b)(i) any Subsidiary may make investments in the Company
(by way of capital contribution or otherwise), (ii) the Company and
any Subsidiary may make investments in, or create, any Wholly-Owned
Domestic Subsidiary (by way of capital contribution or otherwise) or
make investments permitted by subsection 9.5(b), PROVIDED that, in
any such case, the requirements of subsection 8.9 are satisfied and
(iii) the Company and any Subsidiary may make investments in, or
create, any Wholly-Owned Foreign Subsidiary (by way of capital
contribution or otherwise), PROVIDED that (x) the requirements of
subsection 8.9 are satisfied and (y) the aggregate amount of all
investments in such Foreign Subsidiaries shall not exceed (I)
$25,000,000 (plus the sum of any amount dividended or distributed by
such Foreign Subsidiaries to the Company or any Wholly-Owned
Subsidiary Guarantor), MINUS (II) the amount of any Indebtedness of
any Foreign Subsidiary at any such time outstanding in accordance
with subsection 9.1(c)(iii) or 9.3(c)(ii); and (iv) the Company and
any Subsidiary may contribute receivables to any Receivables SPV in
an aggregate face amount not to exceed the difference between the
face amount of such receivables and the Receivables Facility
Attributed Indebtedness, LESS any amount outstanding in accordance
with subsection 9.1(c)(vi);
(c) the Company and its Subsidiaries may invest in,
acquire and hold Cash Equivalents and Investment Grade Securities;
(d) the Company or any of its Subsidiaries may make
payroll advances in the ordinary course of business;
(e) the Company or any of its Subsidiaries may extend
credit and acquire and hold receivables owing to it, if created or
acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms (PROVIDED that
nothing in this clause (e) shall prevent the Company or any
Subsidiary from offering such concessionary trade terms, or from
receiving such investments, in connection with the bankruptcy or
reorganization of their respective suppliers or customers or the
settlement of disputes with such customers or suppliers arising in
the ordinary course of business, as management deems reasonable in
the circumstances);
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(f) the Company or any of its Subsidiaries may make travel
and entertainment advances and relocation and other loans to officers
and employees of the Company or any such Subsidiary, PROVIDED that
the aggregate principal amount of all such loans and advances
outstanding at any one time, together with the guarantees of such
loans and advances made pursuant to subsection 9.3(e), shall not
exceed $5,000,000 at any one time outstanding;
(g) the Company and its Wholly-Owned Subsidiaries
(excluding any Captive Insurance Subsidiary and Receivables SPV) may
make expenditures to acquire all or a substantial portion of the
Capital Stock or assets of any Person engaged primarily in one or
more businesses in which the Company and its Subsidiaries are engaged
or directly related thereto or in the building products, ladder and
climbing equipment and aluminum extrusion products industries
generally, PROVIDED that, after giving PRO FORMA effect to any such
acquisition and the financing thereof, either (A) (i) the amount of
the expenditures pursuant to this clause (g) does not exceed
$25,000,000 with respect to any single acquisition (or related series
of acquisitions) of Capital Stock or assets, and does not exceed
$50,000,000 in the aggregate for all expenditures made pursuant to
this clause (g), in each case without the prior written consent of
the Required Lenders, (ii) the provisions of subsection 8.9 are
satisfied, (iii) the ratio of Consolidated Funded Indebtedness as of
the day of such acquisition to Consolidated EBITDA for the period of
four fiscal quarters ending as at the last day of the most recently
ended fiscal quarter is less than 5.50 to 1.00; PROVIDED that the
last four fiscal quarters of Consolidated EBITDA (x) (as may be
adjusted for identified post acquisition cost savings reasonably
agreed to by the Company and the Co-Arrangers) of each acquired
company, business or group of assets during the testing period shall
be added for purposes of calculating such ratio and (y) of each
company, business or group of assets sold during the respective four
fiscal quarter period or thereafter and on or prior to the date of
determination pursuant to one or more Asset Sales shall be subtracted
for purposes of calculating such ratio, (iv) the Available Revolving
Credit Commitment at such time (after giving effect to all payments
reasonably anticipated to be made in connection with the respective
acquisition) shall be no less than $15,000,000, (v) no Default or
Event of Default has occurred and is continuing or would result
therefrom and (vi) on or prior to the date of consummation of the
respective acquisition, the Company furnishes to the Administrative
Agent a certificate from its chief financial officer stating that the
foregoing requirements of this clause (A) have been met
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(and providing, in reasonable detail, the calculations required
pursuant to preceding clause (iii)) or (B)(i) the amount of
expenditures in connection with such acquisition does not exceed
$7,500,000 and the Company elects (by prior written notice to the
Administrative Agent) to treat such expenditures as "Capital
Expenditures" for purposes of this Agreement, including, but not
limited to, subsection 9.7, (ii) the provisions of subsection 8.9 are
satisfied, and (iii) no Default or Event of Default has occurred and
is continuing or would result therefrom;
(h) the Company or any of its Subsidiaries may make
investments in, or loans or investments to, joint ventures or other
Persons engaged primarily in one or more businesses in which the
Company and its Subsidiaries are engaged or directly related thereto
or in the building products, ladder and climbing equipment and
aluminum extrusion products industries generally, in an aggregate
principal amount not to exceed $20,000,000 (plus the sum of any
amounts dividended or distributed to the Company or any Wholly-Owned
Subsidiary Guarantor by such joint venture or other Person); PROVIDED
that at the time of and after giving effect thereto no Default or
Event of Default shall have occurred and be continuing or would
result therefrom;
(i) Captive Insurance Subsidiaries may make Permitted
Insurance Company Investments;
(j) the Company and its Subsidiaries may, in the ordinary
course of business, engage in aluminum hedging so long as such
hedging is not for speculative purposes and is reasonably related to
its anticipated manufacturing needs; and
(k) the Company and any Wholly-Owned Subsidiary Guarantor
may make loans and advances to, or other investments in, Captive
Insurance Subsidiaries so long as the aggregate amount of any loans,
advances or other investments at any time outstanding (determined
without regard to any write-downs or write-offs thereof) pursuant to
this clause (k) shall not exceed $10,000,000; PLUS the sum of any
amounts dividended or distributed to the Company or any Wholly-Owned
Subsidiary Guarantor by such Captive Insurance Subsidiaries, LESS any
amounts outstanding in accordance with subsections 9.1(c)(iv) and
9.3(c)(iii).
For the purposes of this subsection 9.6, the payment by the Company
of expenses and operating costs of any Wholly-Owned Subsidiary Guarantor
incurred in the ordinary course of its business shall not be considered to be a
loan, advance or other investment of the Company in such Subsidiary and shall be
permitted under this
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Agreement.
Notwithstanding anything to the contrary contained above in this
subsection 9.6, none of the advances, loans, extensions of credit or capital
contributions, or purchases of stock, bonds, notes, debentures or other
securities, or other investments as otherwise permitted pursuant to clause (a)
through (k) above shall be permitted to be made in Holdings.
9.7 CAPITAL EXPENDITURES. Make or commit to make any Capital
Expenditures, except that the Company and its Subsidiaries may make or commit to
make Capital Expenditures not exceeding the amount set forth below (the "BASE
AMOUNT") for each of the years or other periods set forth below:
Year
or Period Base Amount
--------- -----------
Closing Date to $25,000,000
December 31, 1998
Calendar Year 1999 $25,000,000
Calendar Year 2000 $25,000,000
Calendar Year 2001 $25,000,000
Calendar Year 2002 $25,000,000
Calendar Year 2003 $25,000,000
Calendar Year 2004 $25,000,000
January 1, 2005 to
November 30, 2005 $25,000,000
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PROVIDED that (i) for any period set forth above, the Base Amount set forth
above may be increased by a maximum of 50% of the Base Amount for any such
period by carrying over to any such period any portion of the Base Amount (as
increased) not spent in the immediately preceding period and (ii) for each
period of the Company, the Base Amount set forth above shall be increased in the
event any Person or assets of such Person (an "ACQUIRED PERSON") is acquired as
permitted herein by an amount equal to 110% of the amount of capital
expenditures (determined in accordance with GAAP) of such Acquired Person for
the twelve months prior to the date it was acquired ("ACQUIRED CAPITAL
EXPENDITURES"); PROVIDED that, with respect to the fiscal year in which such
Person becomes an Acquired Person, the Base Amount shall be increased by the
product of (A) the Acquired Capital Expenditures of such Acquired Person times
(B) a fraction, the numerator of which is the number of days remaining in the
fiscal year of the Company in which such Acquired Person was acquired and the
denominator of which is 365; PROVIDED FURTHER, that, notwithstanding anything to
the contrary herein, additional Capital Expenditures may be made with net
proceeds (x) received in property sales or dispositions under subsection 9.5(i)
and (y) of Recovery Events invested as permitted pursuant to subsection
5.4(c)(v); and PROVIDED FURTHER, that notwithstanding anything to the contrary
herein, additional Capital Expenditures may be made in an aggregate amount (for
all Capital Expenditures made after the Closing Date pursuant to this proviso)
not to exceed $50,000,000.
9.8 INTEREST RATE AGREEMENTS. Enter into, create, incur, assume or
suffer to exist any Interest Rate Agreements or obligations in respect thereof
except in the ordinary course of business for non-speculative purposes.
9.9 DEBT TO EBITDA. At the last day of any fiscal quarter set forth
below, permit the ratio (the "LEVERAGE RATIO") of Consolidated Funded
Indebtedness as of such day to Consolidated EBITDA for the period of four fiscal
quarters ending on such day to be greater than the ratio set forth below for
such fiscal quarter; PROVIDED that, (x) with respect to any acquisition made
during the respective four quarter period pursuant to, and as permitted by,
subsection 9.6(g), the last four fiscal quarters of Consolidated EBITDA (as may
be adjusted for post acquisition cost savings reasonably agreed to by the
Company and the Co-Arrangers) of the acquired company shall be added for the
purposes of calculating this ratio and (y) of each company, business or group of
assets sold during the respective four fiscal quarter period pursuant to one or
more Asset Sales shall be subtracted for purposes of calculating this ratio:
Fiscal Year Fiscal Quarter Ratio
----------- -------------- -----
1997 Fourth 6.75 to 1.00
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1998 First 6.75 to 1.00
Second 6.75 to 1.00
Third 6.75 to 1.00
Fourth 6.75 to 1.00
1999 First 6.50 to 1.00
Second 6.50 to 1.00
Third 6.50 to 1.00
Fourth 6.50 to 1.00
2000 First 6.00 to 1.00
Second 6.00 to 1.00
Third 5.75 to 1.00
Fourth 5.75 to 1.00
2001 First 5.75 to 1.00
Second 5.50 to 1.00
Third 5.50 to 1.00
Fourth 5.25 to 1.00
2002 First 5.00 to 1.00
Second 5.00 to 1.00
Third 5.00 to 1.00
Fourth 4.75 to 1.00
2003 First 4.75 to 1.00
Second 4.50 to 1.00
Third 4.50 to 1.00
Fourth 4.25 to 1.00
2004 First 4.25 to 1.00
Second 4.00 to 1.00
Third 4.00 to 1.00
Fourth 3.75 to 1.00
2005 First 3.75 to 1.00
Second 3.50 to 1.00
Third 3.50 to 1.00
Fourth 3.50 to 1.00
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9.10 INTEREST COVERAGE. At the last day of any fiscal quarter set
forth below, permit the Interest Coverage Ratio to be less than the ratio set
forth below for such fiscal quarter:
Fiscal Year Fiscal Quarter Ratio
----------- -------------- -----
1997 Fourth 1.60 to 1.00
1998 First 1.60 to 1.00
Second 1.60 to 1.00
Third 1.60 to 1.00
Fourth 1.60 to 1.00
1999 First 1.60 to 1.00
Second 1.60 to 1.00
Third 1.60 to 1.00
Fourth 1.70 to 1.00
2000 First 1.70 to 1.00
Second 1.70 to 1.00
Third 1.70 to 1.00
Fourth 1.80 to 1.00
2001 First 1.80 to 1.00
Second 1.80 to 1.00
Third 1.80 to 1.00
Fourth 1.90 to 1.00
2002 First 1.90 to 1.00
Second 1.90 to 1.00
Third 1.90 to 1.00
Fourth 2.00 to 1.00
2003 First 2.00 to 1.00
Second 2.00 to 1.00
Third 2.00 to 1.00
Fourth 2.25 to 1.00
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2004 First 2.25 to 1.00
Second 2.25 to 1.00
Third 2.25 to 1.00
Fourth 2.25 to 1.00
2005 First 2.25 to 1.00
Second 2.25 to 1.00
Third 2.25 to 1.00
Fourth 2.25 to 1.00
9.11 MINIMUM CONSOLIDATED EBITDA. At the last day of any fiscal
quarter set forth below, permit Consolidated EBITDA for the period of four
consecutive fiscal quarters (taken as one accounting period) ended on the last
day of the respective fiscal quarter set forth below, to be less than the amount
set forth for such fiscal quarter:
Fiscal Year Fiscal Quarter Amount
----------- -------------- ------
1997 Fourth $48,000,000
1998 First $49,000,000
Second $50,000,000
Third $50,000,000
Fourth $51,000,000
1999 First $53,000,000
Second $56,000,000
Third $58,000,000
Fourth $60,000,000
2000 First $63,000,000
Second $66,000,000
Third $69,000,000
Fourth $72,000,000
2001 First $73,500,000
Second $77,000,000
Third $80,000,000
Fourth $83,000,000
2002 First $84,000,000
Second $87,000,000
Third $89,000,000
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Fourth $90,000,000
2003 First $91,000,000
Second $92,000,000
Third $93,000,000
Fourth $94,000,000
2004 First $95,000,000
Second $96,000,000
Third $97,000,000
Fourth $98,000,000
2005 First $99,000,000
Second $100,000,000
Third $100,000,000
Fourth $100,000,000
9.12 LIMITATION ON DIVIDENDS. Declare any dividends on any shares of
any class of its Capital Stock, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase, redemption,
retirement or other acquisition of any shares of any class of Capital Stock of
Holdings, the Company or any of their respective Subsidiaries, or any warrants
or options to purchase such Capital Stock, whether now or hereafter outstanding,
or make any other distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of the Company or any
of its Subsidiaries; except that:
(a) Subsidiaries may pay dividends to the Company or to
Domestic Subsidiaries which are directly or indirectly wholly-owned
by the Company;
(b) the Company may, or may advance or dividend cash to
Holdings so long as all such amounts are used by Holdings to,
repurchase Capital Stock of Holdings owned by former, present or
future employees of Holdings or its Subsidiaries or their assigns,
estates and heirs, PROVIDED that the aggregate amount expended
pursuant to this clause (b) shall not in the aggregate exceed (i)
$3,000,000 in any fiscal year or (ii) $10,000,000 during the term of
this Agreement, plus any amounts contributed to Holdings as a result
of resales of such repurchased shares of Capital Stock (which amounts
shall be thereafter contributed by Holdings to the Company if the
Company has dividended or advanced amounts to Holdings to enable the
repurchase by Holdings of such Capital Stock);
(c) payments may be made to effect the Recapitalization
pursuant to,
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and in accordance with the terms of, the Recapitalization Agreement;
(d) the Company may pay dividends or distributions to
Holdings so long as promptly used by Holdings to make payments
permitted to be made by it pursuant to preceding paragraph (c);
(e) the Company may pay cash dividends or distributions to
Holdings for the purpose of paying, and so long as all proceeds
thereof are promptly used by Holdings to pay, its operating expenses
incurred in the ordinary course of business and other corporate
overhead costs and expenses (including, without limitation, legal and
accounting expenses and similar expenses), PROVIDED that the
aggregate amount of dividends and distributions paid to Holdings
pursuant to this paragraph (e) shall not exceed $2,000,000 in any
fiscal year of Holdings; and
(f) the Company may pay cash dividends or distributions to
Holdings for the purpose of paying, and so long as all proceeds
thereof are promptly used by Holdings to pay, franchise taxes and
federal, state and local income taxes and interest and penalties with
respect thereto, if any, payable by Holdings; PROVIDED that any
refund shall be promptly returned by Holdings to the Company.
9.13 TRANSACTIONS WITH AFFILIATES. Enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of
property or the rendering of any service, with any Affiliate except for
transactions which are otherwise permitted under this Agreement and which are in
the ordinary course of the Company's or a Subsidiary's business and which are
upon fair and reasonable terms no less favorable to the Company or such
Subsidiary than it would obtain in a hypothetical comparable arm's length
transaction with a Person not an Affiliate, PROVIDED that nothing in this
subsection 9.13 shall prohibit the Company or its Subsidiaries from engaging in
the following transactions: (x) the performance of the Company's or any
Subsidiary's obligations under any employment contract, collective bargaining
agreement, employee benefit plan, related trust agreement or any other similar
arrangement heretofore or hereafter entered into in the ordinary course of
business, (y) the payment of compensation to employees, officers, directors or
consultants in the ordinary course of business, or (z) the maintenance of
benefit programs or arrangements for employees, officers or directors,
including, without limitation, vacation plans, health and life insurance plans,
deferred compensation plans, and retirement or savings plans and similar plans,
in each case, in the ordinary course of business.
9.14 PREPAYMENTS AND AMENDMENTS OF SUBORDINATED DEBT. (a) Optionally
prepay, retire, redeem, purchase, defease or exchange, or make any mandatory
prepayment, retirement, redemption, purchase or defeasance of any
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Subordinated Debt (other than (x) any redemption of the Bridge
Subordinated Debt or the Senior Subordinated Notes with proceeds of
Permanent Subordinated Debt as permitted by subsection 9.1(d), (y)
any refinancing of the Permanent Subordinated Debt contemplated in
the definition thereof or (z) any redemption of Subordinated Debt
with the proceeds of the issuance of Capital Stock to the extent
permitted by subsection 5.4(c)(i)) or pay any interest on
Subordinated Debt in cash if such interest may be paid by the
issuance of additional Subordinated Debt or (b) waive, amend,
supplement, modify, terminate or release the provisions of any
Subordinated Debt, to the extent that any such waiver, amendment,
supplement, modification, termination or release would be materially
adverse to the Lenders.
9.15 LIMITATION ON CHANGES IN FISCAL YEAR. Permit the fiscal year of
Holdings and the Company to end on a day other than December 31 in any calendar
year.
9.16 LIMITATION ON BUSINESS. (a) Permit the Company to enter into any
business, either directly or through any Subsidiary, except for those businesses
in which the Company or any Subsidiary is engaged on the date of this Agreement
(or which are directly related thereto or those related generally to the
building products, ladder, climbing equipment and aluminum extrusion products
industries).
(b) Permit any Captive Insurance Subsidiary to enter into, or engage
in, any business, either directly or through any Subsidiary, except for
insurance businesses in which the Captive Insurance Subsidiaries are engaged on
the date of this Agreement (or which are directly related thereto and relate to
the insurance business so conducted by the Captive Insurance Subsidiaries).
(c) Permit any Receivables SPV to enter into, or engage in, any
business other than obtaining financing pursuant to one or more Receivables
Facilities and, in connection therewith, owning Receivables Facilities Assets
and taking action directly relating thereto.
9.17 DESIGNATED SENIOR INDEBTEDNESS. Designate, or permit the
designation of, any indebtedness as "Designated Senior Indebtedness" (or provide
a similar designation with respect to any Subordinated Debt) for purposes of the
Senior Subordinated Notes Indenture or any other Subordinated Debt unless the
Required Lenders specifically consent thereto in writing.
9.18 LIMITATION ON ISSUANCE OF CAPITAL STOCK. The Company will not,
and will not permit any of its Subsidiaries to, issue any capital stock
(including by way of sales of treasury stock) or any options or warrants to
purchase, or securities convertible into, capital stock, except (i) for
transfers and replacements of then outstanding shares of capital stock, (ii) for
stock splits, stock dividends and additional
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issuances which do not decrease the percentage ownership of the Company (or in
the case of issuances by the Company, of Holdings) or any of its Subsidiaries in
any class of the capital stock of the Company or such Subsidiary, as the case
may be, (iii) in the case of Foreign Subsidiaries of the Company, to qualify
directors to the extent required by applicable law, and (iv) Subsidiaries of the
Company formed after the Closing Date may issue capital stock to the Company or
the respective Subsidiary of the Company which is to own such stock.
Notwithstanding anything to the contrary contained above, this subsection 9.18
shall not apply to (x) any issuance of common stock of the Company to persons
other than Holdings pursuant to an IPO, so long as the Net Proceeds thereof are
received by the Company and applied by it in accordance with the relevant
requirements of subsection 5.4 and (y) issuances of equity by any Person, which
is not a Credit Party and is not, on the Closing Date, a Subsidiary of the
Company, in which all investments made therein by the Company and its
Subsidiaries are made after the Closing Date in accordance with the provisions
of subsection 9.6(h). All capital stock issued in accordance with this
subsection 9.18 (excluding the second sentence hereof) shall, to the extent
required by the relevant Pledge Agreement or subsection 8.9, be delivered to the
Administrative Agent for pledge pursuant to the relevant Pledge Agreement and
the requirements of subsection 8.9.
SECTION 10
EVENTS OF DEFAULT
-----------------
Upon the occurrence and during the continuance of any of the
following events:
(a) The Company shall fail to (i) pay any principal of any
Loan or Note when due in accordance with the terms hereof or thereof
or to reimburse the Issuing Lender in accordance with subsection 3.8
or (ii) pay any interest on any Loan or Note 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
any Credit Party in any 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 Company shall default in the observance or
performance of any agreement contained in subsection 8.7(a) or 8.9 or
Section 9 of this Agreement or the Company shall default in the
observance or performance of any agreement contained in subsections
5(a), (h)
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through (k) and (o) of the Company Security Agreement or subsections
5(a), (b) and (c) of the Company Pledge Agreement or Holdings or any
Subsidiary, as the case may be, shall default in the observance or
performance of any agreement contained in subsections (a),(h) through
(k) and (o) of the Subsidiary Security Agreement, subsection 10 of
the Subsidiary Guarantee, subsection 10 of the Holdings Guarantee,
subsections 5(a), (b) and (c) of the Holdings/Subsidiary Pledge
Agreement or Section 5, 6 or 7 of any Mortgage; or
(d) Any Credit Party shall default in the observance or
performance of any other agreement contained in any Credit Document
and such default shall continue unremedied for a period of 30 days;
or
(e) The Company or any of its Subsidiaries (other than a
Receivables SPV) shall (i) default in any payment of principal of or
interest on or other amounts in respect of any Indebtedness (other
than the Loans, the L/C Obligations and any inter-company debt) or
Interest Rate Agreement or in the payment of any Contingent
Obligation, beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness, Interest Rate
Agreement or Contingent Obligation was created; or (ii) default in
the observance or performance of any other agreement or condition
relating to any such Indebtedness, Interest Rate Agreement or
Contingent 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 Contingent
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, any applicable grace period having expired, or such
Contingent Obligation to become payable, any applicable grace period
having expired; in each case, PROVIDED that the aggregate principal
amount of all such Indebtedness, Interest Rate Agreements and
Contingent Obligations under which a default exists or which would
then become due or payable equals or exceeds $10,000,000; or
(f)(i) Holdings or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it as bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment,
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winding-up, liquidation, dissolution, composition or other relief
with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for it or for
all or any substantial part of its assets, or the Company or any of
its Subsidiaries shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against Holdings or
any of its Subsidiaries 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 Holdings or any of
its Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not
have been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or (iv) Holdings or any of its
Subsidiaries 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) Holdings or any of
its Subsidiaries 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 Company 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 Company or any Commonly Controlled Entity shall, or in
the reasonable opinion of the Required Lenders is likely to, incur
any liability in connection with a withdrawal from, or the Insolvency
or Reorganization of, a Multi-employer Plan or (vi) any other event
or condition shall occur or exist with respect to a Plan, and such
event or condition, together with all other such events or
conditions, relating to a Plan, if any, would be reasonably likely to
subject Holdings or any of its Subsidiaries to any tax, penalty or
other
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liabilities in the aggregate resulting in a material adverse effect
to Holdings and its Subsidiaries taken as a whole; or
(h) One or more judgments or decrees shall be entered
against Holdings or any of its Subsidiaries involving in the
aggregate a liability (not paid or fully covered by insurance) of
$10,000,000 or more and all such judgments or decrees shall not have
been vacated, discharged, stayed or bonded pending appeal within the
time required by the terms of such judgment; or
(i) Any Credit Document shall cease, for any reason, to be
in full force and effect (except as otherwise permitted under such
Credit Document) or any Credit Party or any of its Subsidiaries shall
so assert in writing, or any Security Document shall cease to be
effective to grant a perfected Lien on the collateral described
therein with the priority purported to be created thereby (other than
as a result of any action on the part of the Administrative Agent or
the Lenders), subject to such exceptions as may be permitted therein
or herein, and in the case of any Security Agreement, such condition
shall continue unremedied for 30 days after notice thereof to the
Company by the Administrative Agent or any Lender; or
(j) There shall have occurred a Change of Control; or
(k) The subordination provisions of any document governing
any Subordinated Debt shall cease, for any reason, to be valid or any
Credit Party or any of its Subsidiaries shall so assert in writing;
then, and in any such event, (a) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Company,
automatically (i) the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the Notes shall immediately become due and payable, and (ii) all
obligations of the Company in respect of the Letters of Credit, although
contingent and unmatured, shall become immediately due and payable and the
Issuing Lender's obligations to issue the Letters of Credit shall immediately
terminate and (b) if such event is any other Event of Default, so long as any
such Event of Default shall be continuing, 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 Company, declare the Commitments
and the Issuing Lender's obligations to issue the Letters of Credit to be
terminated forthwith, whereupon the Commitments and such obligations shall
immediately terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent
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may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice of default to the Company, (A) declare all or a portion of the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the Notes to be due and payable forthwith, whereupon
the same shall immediately become due and payable, and (B) declare all or a
portion of the obligations of the Company in respect of the Letters of Credit,
although contingent and unmatured, to be due and payable forthwith, whereupon
the same shall immediately become due and payable and/or demand that the Company
discharge any or all of the obligations supported by the Letters of Credit by
paying or prepaying any amount due or to become due in respect of such
obligations. All payments under this Section 10 on account of undrawn Letters of
Credit shall be made by the Company directly to a cash collateral account
established by the Administrative Agent for such purpose for application to the
Company's reimbursement obligations under subsection 3.8 as drafts are presented
under the Letters of Credit, with the balance, if any, to be applied to the
Company's obligations under this Agreement and the Notes as the Administrative
Agent shall determine with the approval of the Required Lenders. Except as
expressly provided above in this Section 10, presentment, demand, protest and
all other notices of any kind are hereby expressly waived.
SECTION 11
THE AGENTS; THE ISSUING LENDER
------------------------------
11.1 APPOINTMENT. Each Lender hereby irrevocably designates and
appoints BTCo as the Administrative Agent, Merrill Lynch Capital Corporation as
the Syndication Agent, The Chase Manhattan Bank as the Documentation Agent and
Goldman Sachs Credit Partners L.P. as Co-Agent under this Agreement, and
irrevocably authorizes BTCo, as Administrative Agent, and Merrill Lynch Capital
Corporation, as Syndication Agent, as agents for such Lender to take such action
on its behalf under the provisions of the Credit Documents and to exercise such
powers and perform such duties as are expressly delegated to the Administrative
Agent and the Syndication Agent (including as Co-Arranger) by the terms of the
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 and the Syndication 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 the
Credit Documents or otherwise exist against the Administrative Agent or the
Syndication Agent. Each Lender recognizes and agrees that neither the
Documentation Agent nor the Co-Agent shall have any duties or responsibilities
under this Agreement or any other Credit Document, or any fiduciary relationship
with any Lender, and shall have no functions, responsibilities, duties,
obligations or liabilities for acting as Documentation Agent or Co-Agent
hereunder.
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11.2 DELEGATION OF DUTIES. Any Co-Arranger may execute any of its
duties under this Agreement and each of 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. No Co-Arranger shall be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care, except as otherwise provided in subsection
11.3.
11.3 EXCULPATORY PROVISIONS. No Co-Arranger nor any of their
respective 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 the Credit Documents
(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 any Credit Party or any
officer thereof contained in the Credit Documents or in any certificate, report,
statement or other document referred to or provided for in, or received by such
Co-Arranger under or in connection with, the Credit Documents or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of the
Credit Documents or for any failure of any Credit Party to perform its
obligations thereunder. No Co-Arranger shall 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, any Credit Document, or to
inspect the properties, books or records of any Credit Party.
11.4 RELIANCE BY CO-ARRANGERS. Each Co-Arranger shall be entitled to
rely, and shall be fully protected in relying, upon any Note, entries maintained
in the Register, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation, counsel
to the Company), independent accountants and other experts selected by the
Administrative Agent. Each Co-Arranger 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. Each Co-Arranger shall be fully justified in failing or refusing to take
any action under any Credit Document unless it shall first receive such advice
or concurrence of the Required Lenders (or, where a higher percentage of the
Lenders is expressly required hereunder, such 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. Each Co-Arranger shall in all cases be fully
protected in acting, or in refraining from acting, under any Credit Document in
accordance with a request of the Required Lenders (unless a higher percentage of
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Lenders is expressly required), and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Notes.
11.5 NOTICE OF DEFAULT. No Co-Arranger shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Co-Arranger has received written notice from a Lender or
the Company or any other Credit Party 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 promptly 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.
11.6 NON-RELIANCE ON AGENTS AND OTHER LENDERS. Each Lender expressly
acknowledges that no Agent nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by any Agent hereafter taken, including any
review of the affairs of the Credit Parties, shall be deemed to constitute any
representation or warranty by such Agent to any Lender. Each Lender represents
to each Agent that it has, independently and without reliance upon such 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
Holdings and the Company and its Subsidiaries 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 any 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 the 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
Holdings and the Company and its Subsidiaries. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, no Agent shall have any duty or responsibility
to provide any Lender with any credit or other information concerning the
business, operations, property, financial and other condition or
creditworthiness of the Credit Parties which may come into the possession of
such Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
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11.7 INDEMNIFICATION. The Lenders agree to indemnify each
Co-Arranger in its capacity as such (to the extent not reimbursed by the
Credit Parties and without limiting the obligation of the Credit Parties to do
so), ratably according to the respective amounts of their respective
Commitments (or, to the extent such Commitments have been terminated, according
to the respective outstanding principal amounts of the Loans and the L/C
Obligations and the respective obligations, whether as Issuing Lender or a
Participating Lender, under the Letter of Credit), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment of the
Loans) be imposed on, incurred by or asserted against any such Co-Arranger in
any way relating to or arising out of the Credit Documents or any documents
contemplated by or referred to herein or the transactions contemplated hereby
or any action taken or omitted by such Co-Arranger 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
respective Co-Arranger's gross negligence or willful misconduct. The agreements
in this subsection 11.7 shall survive the repayment of the Loans and all other
amounts payable hereunder.
11.8 EACH AGENT IN ITS INDIVIDUAL CAPACITY. Each Agent and its
respective Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with Holdings, the Company and its Subsidiaries
as though such Agent were not an Agent hereunder. With respect to its Loans made
or renewed by it and any Note issued to it, each Agent shall have the same
rights and powers, duties and liabilities under the Credit Documents as any
Lender and may exercise the same as though it were not Agent and the terms
"Lender" and "Lenders" shall include each Agent in its individual capacity.
11.9 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under the Credit
Documents, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders which successor agent shall, so long as no Event
of Default has occurred and is continuing, be approved by the Company, which
shall not unreasonably withhold its approval, whereupon such successor agent
shall succeed to the rights, powers and duties of the Administrative Agent, and
the term "Administrative Agent" shall mean such successor agent effective upon
such appointment and approval, 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 Notes. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Section 11 shall
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inure to its benefit as to any actions taken or omitted to be taken by it while
it was the Administrative Agent under the Credit Documents.
11.10 ISSUING LENDER AS ISSUER OF LETTERS OF CREDIT. Each Lender
which is a holder of a Revolving Credit Commitment (collectively "REVOLVING
CREDIT LENDERS") hereby acknowledges that the provisions of this Section 11
shall apply to the Issuing Lender, in its capacity as issuer of the Letters of
Credit, in the same manner as such provisions are expressly stated to apply to
the Administrative Agent, except that obligations to indemnify the Issuing
Lender shall be ratable among the Revolving Credit Lenders in accordance with
their respective Revolving Credit Commitments (or, if the Revolving Credit
Commitments have been terminated, the outstanding principal amount of their
respective Revolving Credit Loans and L/C Obligations and their respective
participating interests in the outstanding Letters of Credit).
SECTION 12
MISCELLANEOUS
-------------
12.1 AMENDMENTS AND WAIVERS. Except as otherwise expressly set forth
in this Agreement, no Credit Document nor any terms thereof may be amended,
supplemented, waived or modified except in accordance with the provisions of
this subsection 12.1. With the written consent of the Required Lenders, the
Administrative Agent and the respective Credit Parties or their Subsidiaries
may, from time to time, enter into written amendments, supplements or
modifications hereto for the purpose of adding any provisions to any Credit
Document to which they are parties or changing in any manner the rights of the
Lenders or of any such Credit Party or its Subsidiaries thereunder or waiving,
on such terms and conditions as the Administrative Agent may specify in such
instrument, any of the requirements of any such Credit Document or any Default
or Event of Default and its consequences; PROVIDED that:
(a) no such waiver and no such amendment, supplement or
modification shall release collateral not required or permitted by
any Credit Document to be released and which, in the aggregate with
all other collateral released pursuant to this clause (a) (other than
collateral released pursuant to the proviso to this clause (a))
during the calendar year in which such proposed release would be
effected and the immediately preceding calendar year, has fair market
value on the proposed date of release in excess of 20% of the fair
market value of all collateral (including any Guarantee) on such date
without the written consent of the Supermajority Lenders; PROVIDED
that, notwithstanding the foregoing, this clause (a) shall not be
applicable to and no consent
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shall be required for (i) releases of collateral in connection with
any Asset Sales permitted by subsection 9.5, (ii) releases of
collateral in accordance with subsection 12.12 or (iii) upon the
reincorporation of the Company or any Subsidiary in a new
jurisdiction or the creation of a new Subsidiary of the Company, any
release of collateral in connection with the transfer of such
released collateral to such reincorporated entity or new Subsidiary
in compliance with subsection 9.4, PROVIDED that the Administrative
Agent, in its sole discretion, determines that such release and
transfer, together with any grant and perfection of a new Lien
therein in favor of the Administrative Agent, will cause no material
impairment of the value of the collateral taken as a whole, after
giving effect to such release and transfer;
(b) no such waiver and no such amendment, supplement or
modification shall (x) without the prior written consent of each
Lender whose obligations hereunder are being directly modified,
extend the final maturity date of any Note or the scheduled payment
date of any installment of any Loan, or reduce the rate or extend the
time of payment of interest thereon, or change the method of
calculating interest thereon, or reduce or extend the time of payment
of any fee payable to such Lender hereunder, or reduce the principal
amount thereof, or change the amount of any Lender's Commitment or
Commitment Percentage, or (y) without the prior written consent of
each Lender, amend, modify or waive any provision of subsection
5.9(b) or this subsection 12.1 or reduce the percentage specified in
the definition of Required Lenders or reduce the percentage specified
in the definition of Supermajority Lenders or consent to the
assignment or transfer by the Company of any of its rights and
obligations under any Credit Document;
(c) no such waiver and no such amendment, supplement or
modification affecting any Agent or Issuing Lender shall amend,
modify or waive any provision of Section 11 without the written
consent of such Agent and Issuing Lender; and
(d) no such waiver, and no such amendment, supplement or
modification shall amend, modify or waive (x) the prepayment
requirements specified in subsection 5.4(c)(i), (ii), (iii) and (v)
without the written consent of the holders of at least 51% of each of
(i) the aggregate unpaid principal amount of the aggregate of the
Tranches of Term Loans adversely affected thereby, if any, (ii) the
Revolving Credit Commitments or, if the Revolving Credit Commitments
are terminated, the aggregate unpaid principal amount of the
Revolving
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Credit Loans and (iii) the Receivables Financing Commitments or, if
the Receivables Financing Commitments are terminated, the aggregate
unpaid principal amount of the Receivables Financing Loans (the Term
Loans, the Revolving Credit Commitments and the Receivables Financing
Commitments of any Non-Funding Lender to be disregarded in
determining such percentage at any time) and (y) the order of
application of prepayments specified in subsection 5.4(a) or
5.4(c)(vi) without the written consent of the holders of at least 51%
of each of (i) the aggregate unpaid principal amount of each Tranche
of Term Loans adversely affected thereby and (ii) as set forth in
clauses (x)(ii) and (iii) of this subsection 12.1(d); PROVIDED that
the foregoing provisions of this paragraph (d) shall not be
applicable to any modifications to subsection 5.4(a) or 5.4(c)(vi) in
order to provide for PRO RATA payments to any additional Tranche of
Term Loans on substantially the same basis as payments to the
Tranches of Term Loans existing on the Closing Date are made;
any such waiver and any such amendment, supplement or modification described in
this subsection 12.1 shall apply equally to each of the Lenders and shall be
binding upon each Credit Party and its Subsidiaries, the Lenders, the
Administrative Agent and the Issuing Lender and all future holders of the Notes
and the Loans. Any extension of a Letter of Credit by the Issuing Lender shall
be treated hereunder as a new Letter of Credit. In the case of any waiver, the
Credit Parties, the Lenders, the Administrative Agent and Issuing Lender shall
be restored to their former position and rights hereunder and under the
outstanding Notes, and any Default or Event of Default waived shall be deemed to
be cured and not continuing; but no such waiver shall extend to any subsequent
or other Default or Event of Default, or impair any right consequent thereon.
12.2 NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy or telex, if one is listed) and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered by hand,
or three Business Days after being deposited in the mail, postage prepaid, or,
in the case of telecopy notice, when sent, confirmation of receipt received, or,
in the case of telex notice, when sent, answerback received, addressed as
follows in the case of the Company, the Administrative Agent, and as set forth
in Schedule I in the case of any Lender, or to such other address as may be
hereafter notified by the respective parties hereto and any future holders of
the Notes:
The Company: Werner Holding Co. (DE), Inc.
c/o Werner Holding Co. (PA), Inc.
93 Werner Road
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Greenville, Pennsylvania 16125
Attention: Eric J. Werner, Esq.
Telecopy: (412) 588-0618
With a copy to: Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Attention: Janet Vance, Esq.
Telecopy: (212) 351-4035
The Administrative Agent
and Swing Line Lender: Bankers Trust Company
130 Liberty Street
New York, NY 10006
Attention: Mary Kay Coyle
Telecopy: (212) 250-7218
PROVIDED that any notice, request or demand to or upon the Administrative Agent
or the Issuing Lender shall not be effective until received and, PROVIDED
FURTHER, that the failure to provide the copies of notices to the Company
provided for in this subsection 12.2 shall not result in any liability to the
Administrative Agent.
12.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.
12.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement, the Letters of Credit and the Notes.
12.5 PAYMENT OF EXPENSES AND TAXES. The Company agrees (a) to pay or
reimburse the Administrative Agent, the Syndication Agent, the Documentation
Agent and the Co-Agent for all their reasonable out-of-pocket costs and expenses
incurred in connection with the development, negotiation, preparation and
execution of the Credit Documents and any other documents prepared in connection
herewith, and the consummation of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable fees and disbursements of
one counsel to the Administrative Agent, the Syndication Agent, the
Documentation Agent and the Co-
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Agent, (b) to pay or reimburse all of the reasonable expenses, including,
without limitation, reasonable fees and expenses of counsel, incurred by the
Administrative Agent in connection with the administration of the facilities
provided for herein or in connection with any amendments, waivers, work-outs or
restructurings in respect thereof, (c) to pay or reimburse the Administrative
Agent, the Syndication Agent, the Documentation Agent, the Co-Agent, the
Issuing Lender and each Lender for all their costs and expenses incurred in
connection with, and to pay, indemnify, and hold the Administrative Agent, the
Syndication Agent, the Documentation Agent, the Co-Agent, the Issuing Lender
and each Lender 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 arising out of or in
connection with, the enforcement or preservation of any rights under any Credit
Document and any such other documents, including, without limitation,
reasonable fees and disbursements of counsel to the Administrative Agent, the
Co-Agent and each Lender incurred in connection with the foregoing and in
connection with advising the Administrative Agent with respect to its rights
and responsibilities under this Agreement and the documentation relating
thereto, (d) to pay, indemnify, and to hold the Administrative Agent, the
Syndication Agent, the Documentation Agent, the Co-Agent and each Lender
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 (other than withholding taxes), if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
any Credit Document and any such other documents, and (e) to pay, indemnify,
and hold the Administrative Agent, the Syndication Agent, the Documentation
Agent, the Co-Agent, the Issuing Lender and each Lender and their respective
Affiliates, officers, directors and trustees 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 (including, without limitation, reasonable fees and
disbursements of counsel) which may be incurred by or asserted against the
Administrative Agent, the Syndication Agent, the Documentation Agent, the
Co-Agent, the Issuing Lender or the Lenders or such Affiliates, officers,
directors or trustees (x) arising out of or in connection with any
investigation, litigation or proceeding related to this Agreement, the other
Credit Documents, the proceeds of the Loans or the Subordinated Debt and the
transactions contemplated by or in respect of such use of proceeds, or any of
the other transactions contemplated hereby, whether or not the Administrative
Agent, the Syndication Agent, the Documentation Agent, the Co-Agent, the
Issuing Lender or any of the Lenders or such Affiliates, officers, directors or
trustees is a party thereto, including, without limitation, any of the
foregoing relating to the violation of, noncompliance with or liability under,
any Environmental Law applicable to the Company, any of its Subsidiaries or any
of the facilities and properties owned, leased or operated by the Company or
any of its
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Subsidiaries, or (y) without limiting the generality of the foregoing, by reason
of or in connection with the execution and delivery or transfer of, or payment
or failure to make payments under, Letters of Credit (it being agreed that
nothing in this subsection 12.5(d)(y) is intended to limit the Company's
obligations pursuant to subsection 3.8) (all the foregoing, collectively, the
"INDEMNIFIED LIABILITIES"), PROVIDED that the Company shall have no obligation
hereunder with respect to indemnified liabilities of the Administrative Agent,
the Syndication Agent, the Documentation Agent, the Co-Agent, the Issuing Lender
or any Lender or any of their respective Affiliates, officers, directors and
trustees arising from (i) the gross negligence or willful misconduct of the
person seeking indemnification or (ii) legal proceedings commenced against the
Administrative Agent, the Syndication Agent, the Documentation Agent, the
Co-Agent, the Issuing Lender or Lender by any security holder or creditor
thereof arising out of and based upon rights afforded any such security holder
or creditor solely in its capacity as such or (iii) legal proceedings commenced
against any Lender by any Transferee (as defined in subsection 12.6(f)) thereof.
Without limiting the foregoing, and to the extent permitted by applicable law,
Holdings and the Company agree not to assert, and hereby waive (and the Company
shall cause the Subsidiaries not to assert and to waive) all rights for
contribution or any other rights of recovery with respect to all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever, under or related to
Environmental Laws, that any of them might have by statute or otherwise against
the Administrative Agent, the Syndication Agent, the Documentation Agent, the
Co-Agent, the Issuing Lender or any Lender. The agreements in this subsection
12.5 shall survive repayment of the Loans and all other amounts payable
hereunder.
12.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS. (a) This
Agreement shall be binding upon and inure to the benefit of the Company, the
Lenders, the Administrative Agent, the Syndication Agent, the Documentation
Agent, the Co-Agent, all future holders of the Notes and the Loans, and their
respective successors and assigns, except that the Company may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial bank-
ing, investment or lending business and in accordance with applicable law, at
any time sell to one or more banks or other entities ("PARTICIPANTS")
participating interests in any Loan owing to such Lender, any Note held by such
Lender, any Commitment of such Lender or any other interest of such Lender
hereunder. In the event of any such sale by a Lender of participating interests
to a Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Note for all purposes under this Agreement and the Company
and the Administrative Agent shall continue to deal solely and directly
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with such Lender in connection with such Lender's rights and obligations under
this Agreement and the other Credit Documents. The Company agrees that if
amounts outstanding under this Agreement and the Notes are due and unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be deemed to have the
right of setoff in respect of its participating interest in amounts owing under
this Agreement and any Note to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement or any Note; PROVIDED that such right of setoff shall be subject to
the obligation of such Participant to share with the Lenders, and the Lenders
agree to share with such Participant, as provided in subsection 12.7. The
Company also agrees that each Participant shall be entitled to the benefits of
subsections 3.10, 5.11 and 5.12 with respect to its participation in the Letters
of Credit and in the Commitments and the Loans outstanding from time to time as
if it were a Lender; PROVIDED 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. Notwithstanding the foregoing, no Lender shall transfer
or grant any Participation under which the participant shall have rights to
approve any amendment to or waiver of this Agreement or any other Credit
Document except to the extent such amendment or waiver would (i) extend the
final maturity of any Loan, Note or Letter of Credit (unless such Letter of
Credit is not extended beyond the Revolving Credit Termination Date) in which
such Participant is participating, or reduce the rate or extend the time of
payment of interest or Fees thereon (except in connection with a waiver of
applicability of any post-default increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the Participant's
participation over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default or of a mandatory reduction in the
Commitments shall not constitute a change in the terms of such participation,
and that an increase in any Commitment or Loan shall be permitted without the
consent of any participant if the Participant's participation is not increased
as a result thereof) or (ii) consent to the assignment or transfer by the
Company of any of its rights and obligations under this Agreement.
(c) Subject to paragraph (g) of this Subsection 12.6, any Lender may,
in the ordinary course of its commercial banking, lending or investment business
and in accordance with applicable law, (i) at any time and from time to time
assign all or any part of its rights and obligations under this Agreement and
the Notes to any Lender or any Affiliate thereof, PROVIDED that, in the event of
a sale of less than all of such rights and obligations, such assigning Lender
after any such sale to any other Lender or any Affiliate of such Lender shall
retain Commitments and/or Loans aggregating at least $5,000,000 (or such lesser
amount as the Administrative Agent may determine) and (ii) with the consent of
the Company and the Administrative Agent (which in each case shall not be
unreasonably withheld or delayed) at any time
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and from time to time assign to one or more additional banks, mutual funds or
financial institutions or entities (each, an "ASSIGNEE"), all or any part of its
rights and obligations under this Agreement and the Notes, pursuant to an
Assignment and Acceptance, executed by such Assignee, such transferor Lender
(and, in the case of an Assignee that is not then a Lender or an Affiliate
thereof, by the Company and the Administrative Agent), and delivered to the
Administrative Agent for its acceptance and recording in the Register (as
defined below); PROVIDED that (A) each such sale pursuant to clause (ii) of this
subsection 12.6(c) shall be in a principal amount of $5,000,000 or more unless
the Assigning Lender is transferring all of its rights and obligations and (B)
in the event of a sale of less than all of such rights and obligations, such
Lender after any such sale shall retain Commitments and/or Loans aggregating at
least $5,000,000 (or such lesser amount as the Administrative Agent and the
Company may determine). 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 of the interest
transferred, as reflected in such Assignment and Acceptance, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of a transferor Lender's rights
and obligations under this Agreement, such transferor Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of the
indemnification provisions set forth in subsection 12.5). To the extent that an
assignment of all or a portion of a Lender's Commitments and/or outstanding
obligations pursuant to this subsection 12.6(c) would, at the time of such
assignment, result in increased cost under subsections 3.10 or 5.11 from those
being charged by the respective assigning Lender prior to such assignment, then
the Company shall not be obligated to pay such increased costs (although the
Company shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
assignment if same would otherwise be required by this Agreement). Furthermore,
each Lender which is permitted to make Eurodollar Loans at the time of an
assignment pursuant to this subsection 12.6(c) shall not be permitted to make an
assignment to any Assignee which, at the time of the respective assignment,
would not be able to make Eurodollar Loans for the reasons contemplated pursuant
to subsection 5.10.
(d) The Administrative Agent, which for purposes of this subsection
12.6(d) only shall be deemed to be the agent of the Company, shall maintain at
the address of the Administrative Agent referred to in subsection 12.2 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. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Person
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whose name is recorded in the Register as the owner of a Loan or other
obligation hereunder shall be the owner thereof for all purposes of this
Agreement and the other Credit Documents, notwithstanding any notice to the
contrary. Any assignment of any Loan or other obligation hereunder shall be
effective only upon appropriate entries with respect thereto being made in the
Register. The Register shall be available for inspection by the Company or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by 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 Company and the Administrative
Agent), together with payment to the Administrative Agent of a registration and
processing fee of $3,500 (or $0, in the case of an assignment to an Affiliate of
such assigning Lender), 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 Company. On or prior
to such effective date, the Company at its own expense, shall execute and
deliver to the Administrative Agent (in exchange for any or all of the B Term
Loan Notes, C Term Loan Notes, Revolving Credit Notes or Receivables Financing
Notes of the assigning Lender, if any) new B Term Loan Notes, C Term Loan Notes,
Revolving Credit Notes or Receivables Financing Notes, as the case may be, to
the order of such Assignee (if requested) in an amount equal to the B Term
Loans, C Term Loans, Revolving Credit Commitment or Receivables Financing
Commitments, as the case may be, assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Commitment or any Term
Loans hereunder, new B Term Loan Notes, C Term Loan Notes, Revolving Credit
Notes or Receivables Financing Notes, as the case may be, to the order of the
assigning Lender in an amount equal to the Commitment or such Term Loans, as the
case may be, retained by it hereunder (if requested). Such new Notes shall be
dated the Closing Date and shall otherwise be in the form of the Notes replaced
thereby.
(f) The Administrative Agent, the Syndication Agent, the
Documentation Agent, the Co-Agent and the Lenders agree that they will use
reasonable efforts to protect the confidentiality of any confidential
information concerning the Company and its Subsidiaries and Affiliates.
Notwithstanding the foregoing, the Company authorizes each Lender to disclose
to any Participant or Assignee (each, a "TRANSFEREE") and any prospective
Transferee or to any Person who evaluates, approves, structures or
administers the Loans on behalf of a Lender and who is subject to this
confidentiality provision any and all information in such Lender's possession
concerning Holdings, the Company and its Subsidiaries which has been delivered
to such Lender by or on behalf of the Company pursuant to this Agreement or
which has been delivered to such Lender by or on behalf of the Company in con-
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nection with such Lender's credit evaluation of Holdings, the Company and its
Subsidiaries prior to becoming a party to this Agreement; PROVIDED that each
Lender shall cause its respective prospective Transferees and any Person who
evaluates, approves, structures or administers the Loans on such Lender's behalf
to agree to protect the confidentiality of any confidential information
concerning Holdings, the Company and its Subsidiaries and Affiliates.
(g) If, pursuant to this subsection 12.6, any interest in this
Agreement or any Note is transferred to any Transferee which is organized under
the laws of any jurisdiction other than the United States or any State thereof,
the transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer either (1) in the case of a Transferee that is a
"bank" within the meaning of Section 881(c)(3)(A) of the Code, (i) to represent
to the transferor Lender (for the benefit of the transferor Lender, the
Administrative Agent and the Company) that under applicable law and treaties no
taxes will be required to be withheld by the Administrative Agent, the Company
or the transferor Lender with respect to any payments to be made to such
Transferee in respect of the Loans or L/C Participating Interests, (ii) to
furnish to the transferor Lender (and, in the case of any Transferee registered
in the Register, the Administrative Agent and the Company) either U.S. Internal
Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein
such Transferee claims entitlement to complete exemption from U.S. federal
withholding tax on all interest payments hereunder) and (iii) to agree (for the
benefit of the transferor Lender, the Administrative Agent and the Company) to
the extent permitted by then-current law to provide the transferor Lender (and,
in the case of any Transferee registered in the Register, the Administrative
Agent and the Company) a new Form 4224 or Form 1001 upon the expiration or
obsolescence of any previously delivered form and comparable statements in
accordance with applicable U.S. laws and regulations and amendments duly
executed and completed by such Transferee, and to comply from time to time with
all applicable U.S. laws and regulations with regard to such withholding tax
exemption or (2) in the case of any Transferee that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code, (i) to represent to the transferor
Lender (for the benefit of the transferor Lender, the Administrative Agent and
the Company) that it is not a "bank" within the meaning of Section 881(c)(3)(A)
of the Code, (ii) to furnish to the transferor Lender (and, in the case of any
Transferee registered in the Register, to the Company), with a copy to the
Administrative Agent, (A) a subsection 5.11(d)(2) Certificate and (B) two (2)
accurate and complete original signed copies of Internal Revenue Service Form
W-8, certifying to such Transferee's legal entitlement on the date of the
effectiveness of such transfer to an exemption from U.S. withholding tax under
the provisions of Section 881(c) of the Code with respect to all payments to be
made under this Agreement, and (iii) to agree (for the benefit of the transferor
Lender, the Administrative Agent and the Company), to the extent legally
entitled to do so, upon reasonable request by the transferor Lender (or, in the
case of any Transferee registered in the Register, the
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Administrative Agent or the Company), to provide to the transferor Lender, the
Administrative Agent and the Company such other forms as may be required to
establish the legal entitlement of such Transferee to an exemption from
withholding tax with respect to payments under this Agreement.
(h) 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, (x) any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law and (y) in the case of a
Lender that is a fund, with the consent of the Administrative Agent, any pledge
or assignment by such Lender of all or any portion of its Loans and Notes to
its trustee in support of its obligations to its trustee.
12.7 SET-OFF. In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Company, any such notice being expressly waived by the Company to the extent
permitted by applicable law, upon (or concurrently with) the taking of any
action pursuant to the last paragraph of Section 10 or upon the filing of a
petition under any of the provisions of the federal bankruptcy code or
amendments thereto, by or against; the making of an assignment for the benefit
of creditors by; the application for the appointment, or the appointment, of any
receiver of, or of any substantial portion of the property of; the issuance of
any execution against any substantial portion of the property of; the issuance
of a subpoena or order, in supplementary proceedings, against or with respect to
any substantial portion of the property of; or the issuance of a warrant of
attachment against any substantial portion of the property of; the Company to
set off and apply against any indebtedness, whether matured or unmatured, of the
Company to such Lender, any amount owing from such Lender to the Company, at or
at any time after, the happening of any of the above mentioned events, and as
security for such indebtedness, the Company hereby grants to each Lender a
continuing security interest in any and all deposits, accounts or moneys of the
Company, then or thereafter maintained with such Lender, subject in each case to
subsection 12.8 of this Agreement. The aforesaid right of set-off may be
exercised by such Lender against the Company or against any trustee in
bankruptcy, debtor in possession, assignee for the benefit of creditors,
receiver or execution, judgment or attachment creditor of the Company, or
against anyone else claiming through or against the Company or such trustee in
bankruptcy, debtor in possession, assignee for the benefit of creditors,
receiver, or execution, judgment or attachment creditor, notwithstanding the
fact that such right of set-off shall not have been exercised by such Lender
prior to the making, filing or issuance, or service upon such Lender of, or of
notice of, any such petition; assignment for the benefit of creditors;
appointment or application for the appointment of a receiver; or issuance of
execution, subpoena,
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order or warrant. Each Lender agrees promptly to notify the Company, 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.
12.8 PAYMENTS PRO RATA. (a) Except as otherwise provided in this
Agreement, the Administrative Agent agrees that promptly after its receipt of
each payment from or on behalf of the Company in respect of any obligations
hereunder, it shall distribute such payment to the Lenders PRO RATA based upon
their respective shares, if any, of the obligations with respect to which such
payment was received.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, unpaid drawings with respect to Letters of Credit, commitment
fees or Letter of Credit fees, of a sum which with respect to the related sum or
sums received by other Lenders is in a greater proportion than the total of such
obligation then owed and due to such Lender bears to the total of such
obligation then owed and due to all of the Lenders immediately prior to such
receipt, then such Lender receiving such excess payment shall purchase for cash
without recourse or warranty from the other Lenders an interest in the
respective obligations of the respective Credit Party to such Lenders in such
amount as shall result in a proportional participation by all the Lenders in
such amount; PROVIDED that if all or any portion of such excess amount is
thereafter recovered from such Lender, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding subsections 12.8(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Lenders which are not Non-Funding Lenders as opposed to
Non-Funding Lenders.
12.9 COUNTERPARTS. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Administrative Agent. This Agreement
shall become effective with respect to the Company, the Administrative Agent,
the Syndication Agent, the Documentation Agent, the Co-Agent and the Lenders
when the Administrative Agent shall have received copies of this Agreement
executed by the Company, the Administrative Agent, the Documentation Agent and
the Lenders, or, in the case of any Lender, shall have received telephonic
confirmation from such Lender stating that
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such Lender has executed counterparts of this Agreement or the signature pages
hereto and sent the same to the Administrative Agent.
12.10 GOVERNING LAW; NO THIRD PARTY RIGHTS. This Agreement and the
Notes and the rights and obligations of the parties under this Agreement and the
Notes shall be governed by, and construed and interpreted in accordance with,
the law of the State of New York. This Agreement is solely for the benefit of
the parties hereto and their respective successors and assigns, and, except as
set forth in subsection 12.6, no other Persons shall have any right, benefit,
priority or interest under, or because of the existence of, this Agreement.
12.11 SUBMISSION TO JURISDICTION; WAIVERS. (a) Each party to this
Agreement hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement or any of the other
Credit Documents, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States for
the Southern District of New York, and appellate courts from any
thereof;
(ii) 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;
(iii) 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 pre-paid, to such party at its address set forth in
subsection 12.2 or at such other address of which the Administrative
Agent shall have been notified pursuant thereto; and
(iv) 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.
(b) Each party hereto unconditionally waives trial by jury in any
legal action or proceeding referred to in paragraph (a) above and any
counterclaim therein.
12.12 RELEASES. The Administrative Agent and Lenders agree to
cooperate with the Company and its Subsidiaries with respect to any sale or
other dis-
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position permitted by subsection 9.5 and promptly take such action and execute
and deliver such instruments and documents necessary to release the liens and
security interests created by the Security Documents relating to any of the
assets or property affected by any such sale permitted by subsection 9.5.
including, without limitation, any Uniform Commercial Code amendment, release or
termination or partial release or termination statements, PROVIDED that such
liens and security interests in Receivables Facility Assets shall only be
required to be released to the extent required by the relevant Receivables
Facility.
12.13 INTEREST. Each provision in this Agreement and each other
Credit Document is expressly limited so that in no event whatsoever shall the
amount paid, or otherwise agreed to be paid, by the Company for the use,
forbearance or detention of the money to be loaned under this Agreement or any
other Credit Document or otherwise (including any sums paid as required by any
covenant or obligation contained herein or in any other Credit Document which is
for the use, forbearance or detention of such money), exceed that amount of
money which would cause the effective rate of interest to exceed the highest
lawful rate permitted by applicable law (the "HIGHEST LAWFUL RATE"), and all
amounts owed under this Agreement and each other Credit Document shall be held
to be subject to reduction to the effect that such amounts so paid or agreed to
be paid which are for the use, forbearance or detention of money under this
Agreement or such other Credit Document shall in no event exceed that amount of
money which would cause the effective rate of interest to exceed the Highest
Lawful Rate. Notwithstanding any provision in this Agreement or any other Credit
Document to the contrary, if the maturity of the Loans or the obligations in
respect of the other Credit Documents are accelerated for any reason, or in the
event of any prepayment of all or any portion of the Loans or the obligations in
respect of the other Credit Documents by the Company or in any other event,
earned interest on the Loans and such other obligations of the Company may never
exceed the Highest Lawful Rate, and any unearned interest otherwise payable on
the Loans or the obligations in respect of the other Credit Documents that is in
excess of the Highest Lawful Rate shall be cancelled automatically as of the
date of such acceleration or prepayment or other such event and (if theretofore
paid) shall, at the option of the holder of the Loans or such other obligations,
be either refunded to the Company or credited on the principal of the Loans. In
determining whether or not the interest paid or payable, under any specific
contingency, exceeds the Highest Lawful Rate, the Company and the Lenders shall,
to the maximum extent permitted by applicable law, amortize, pro-rate, allocate
and spread, in equal parts during the period of the actual term of this
Agreement, all interest at any time contracted for, charged, received or
reserved in connection with this Agreement.
12.14 SPECIAL INDEMNIFICATION. Notwithstanding any provision in this
Agreement to the contrary, (A) each Lender, or Transferee of any Lender pursuant
to subsection 12.6(g) of this Agreement, shall indemnify the Company and the
Adminis-
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trative Agent, and hold each of them harmless against any and all payments,
expenses or taxes which the Company or the Administrative Agent may become
subject to or obligated to pay if and to the extent that, (i) on the Closing
Date or the effective date of transfer, as the case may be, such Lender, or such
Transferee of a Lender pursuant to subsection 12.6(g) of this Agreement, (a)
makes the representation and covenants set forth in subsection 5.11(d)(2) of
this Agreement or, in the case of a Transferee, pursuant to subsection
12.6(g)(2) of this Agreement and the Assignment and Acceptance, and (b) is not
in fact also qualified to make the representation and covenants set forth in
subsection 5.11(d)(1) of this Agreement or, in the case of a Transferee,
pursuant to subsection 12.6(g)(2) of this Agreement and the Assignment and
Acceptance, and (ii) as a result of any Change in Law or compliance by such
Lender, or Transferee, with any request or directive (whether or not having the
force of law) from any central bank or other Governmental Authority the Company
or the Administrative Agent is required to make any additional payments on
account of U.S. withholding taxes and amounts related thereto with respect to
any payments under this Agreement, any Note, or a Eurodollar Loan, made prior to
such Change in Law or request or directive, none of which payments would have
been required if such Lender, or Transferee, was qualified on the Closing Date
or the date of the transfer, as the case may be, to make the representation and
covenants set forth in subsection 5.11(d)(1) of this Agreement or pursuant to
subsection 12.6(g)(1) of this Agreement and the Assignment and Acceptance, as
the case may be, and (B) each Lender, or Transferee, agrees that to the extent
any amount payable by such Lender or Transferee pursuant to this subsection
12.14 remains unpaid on any Interest Payment Date or the date on which any
prepayment is made, the Company shall have the right to set-off against any
payment due to such Lender or Transferee on such date any amounts owing to the
Company pursuant to this subsection 12.14.
12.15 PERMITTED PAYMENTS AND TRANSACTIONS. Notwithstanding any
provision to the contrary contained in this Agreement, the Company and its
Subsidiaries shall be permitted to pay fees and expenses pursuant to or in
respect of, the following agreements, and, in the case of clauses (a) and (d)
below, to engage in the following transactions: (a) (i) the Financing Advisory
Agreement, dated as of October 8, 1997 between Investcorp International Inc. and
the Company, (ii) the Agreement For Management Advisory, Strategic Planning and
Consulting Services, dated as of November 24, 1997 among Investcorp
International Inc. and the Company; (iii) the Stand-By Commitment Letter, dated
as of November 19, 1997, between Invifin, S.A. and the Company and (iv) the
Recapitalization Agreement; (b) agreements with any Person or Persons providing
for the payment of customary fees in connection with serving as a director of
the Company or any Subsidiary of the Company; (c) agreements providing for the
payment of commercially reasonable fees in connection with any permitted
financing, refinancing, sale, transfer, sale and leaseback or other permitted
disposition of any assets of the Company or its Subsidiaries; (d) the borrowing
of any Indebtedness to the extent, and upon the terms and conditions, the same
is
-140-
147
expressly permitted under subsection 9.1; and (e) agreements providing for
commercially reasonable fees in connection with any permitted purchase or
acquisition of stock or assets by the Company or any of its Subsidiaries.
12.16 CO-ARRANGERS; ADMINISTRATIVE AGENT. Notwithstanding any
provisions to the contrary contained in any Credit Document, if any Co-Arranger
ceases to be a Lender, any item set forth any Credit Document that is required
to be satisfactory to such Co-Arranger shall instead be required to be
satisfactory to the Administrative Agent, and any rights powers or duties of the
Co-Arranger shall be rights, powers or duties of the Administrative Agent.
12.17 CERTAIN PROVISIONS REGARDING ALABAMA MORTGAGED PROPERTY.
Notwithstanding anything to the contrary contained elsewhere in this Agreement
or any of the other Credit Documents, it is hereby acknowledged and agreed that
the Mortgage executed and delivered on the Closing Date with respect to the
Mortgaged Property of the Company located in Alabama (the "Alabama Mortgaged
Property") shall secure only the C Term Loans and obligations directly relating
thereto. Furthermore, and notwithstanding anything to the contrary contained in
this Agreement or any other Credit Document, if and to the extent that proceeds
received from any exercise of remedies with respect to the Alabama Mortgaged
Property are applied to the repayment of outstanding C Term Loans and related
interest or other obligations, then on a prospective basis any distributions to
be made to the Lenders (other than with respect to any Interest Rate Agreements
secured pursuant to the various Security Documents) pursuant to the provisions
of any other Security Document shall be adjusted with the intent that the
Lenders other than the holders of C Term Loans receive incremental distributions
at such times, and in such amounts, as the Administrative Agent reasonably
determines shall cause the Lenders to share equally and ratably in the aggregate
distributions made to the Lenders (other than with respect to any Interest Rate
Agreements secured pursuant to the respective Security Documents) pursuant to
the various Security Documents on the same basis as such distributions would
have been made if all of the Security Documents (including the Mortgage with
respect to the Alabama Mortgage Property) had at all times equally and ratably
secured all obligations hereunder.
-141-
148
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the day and year first above written.
WERNER HOLDINGS CO. (DE), INC.
By: /s/
---------------------------
Title
BANKERS TRUST COMPANY, as
Administrative Agent,
Issuing Lender and a Lender
By: /s/
----------------------------
Title:
MERRILL LYNCH CAPITAL
CORPORATION, as
Syndication Agent and as Lender
By: /s/
----------------------------
Title:
THE CHASE MANHATTAN BANK, as
Documentation Agent and as a Lender
By: /s/
----------------------------
Title:
149
GOLDMAN SACHS CREDIT
PARTNERS L.P., as
Co-Agent and as a Lender
By: /s/
-----------------------------
Title:
150
WERNER HOLDING CO (DE), INC.
ARAB BANKING CORPORATION (B.S.C.)
By: /s/
-------------------------------
Title:
151
WERNER HOLDING CO (DE), INC.
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/
-------------------------------
Title:
152
WERNER HOLDING CO (DE), INC.
BANKBOSTON, N.A.
By: /s/
--------------------------------
Title:
153
WERNER HOLDING CO (DE), INC.
KZH HOLDING CORPORATION III
By: /s/
--------------------------------
Title:
154
WERNER HOLDING CO (DE), INC.
CREDIT AGRICOLE INDOSUEZ
By: /s/
--------------------------------
Title:
155
WERNER HOLDING CO (DE), INC.
CITIBANK, N.A.
By: /s/
------------------------------
Title:
156
WERNER HOLDING CO (DE), INC.
PRIME INCOME TRUST
By: /s/
-------------------------------
Title:
157
WERNER HOLDING CO (DE), INC.
SENIOR DEBT PORTFOLIO
By: BOSTON MANAGEMENT &
RESEARCH,
AS INVESTMENT ADVISOR
By: /s/
-------------------------------
Title:
158
WERNER HOLDING CO (DE), INC.
THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/
-------------------------------
Title:
159
WERNER HOLDING CO (DE), INC.
FIRST UNION NATIONAL BANK
By: /s/
--------------------------------
Title:
160
WERNER HOLDING CO (DE), INC.
FLEET NATIONAL BANK
By: /s/
-------------------------------
Title:
161
WERNER HOLDING CO (DE), INC.
ING CAPITAL ADVISORS, INC.
By: /s/
-------------------------------
Title:
162
WERNER HOLDING CO (DE), INC.
[MERRILL LYNCH]
By: /s/
--------------------------------
Title:
163
WERNER HOLDING CO (DE), INC.
GLEACHER NATWEST
By: /s/
-------------------------------
Title:
164
WERNER HOLDING CO (DE), INC.
PILGRIM AMERICA PRIME RATE TRUST
By: /s/
-------------------------------
Title:
165
WERNER HOLDING CO (DE), INC.
PNC BANK, NATIONAL ASSOCIATION
By: /s/
--------------------------------
Title:
166
WERNER HOLDING CO (DE), INC.
PROTECTIVE ASSET MANAGEMENT CO.
By: /s/
-------------------------------------
Title:
167
WERNER HOLDING CO (DE), INC.
TRUST COMPANY OF THE WEST
By: /s/
--------------------------------
Title:
168
WERNER HOLDING CO (DE), INC.
VAN KAMPEN MERRIT COMPANIES, INC.
By: /s/
-------------------------------
Title:
169
WERNER HOLDING CO (DE), INC.
NATIONAL WESTMINSTER PLC
By: /s/
-------------------------------
Title:
170
WERNER HOLDING CO (DE), INC.
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/
--------------------------------
Title:
171
Schedule I to the
Credit Agreement
----------------
LENDERS, ADDRESSES AND COMMITMENTS
Revolving Receivables
B Term Loan C Term Loan Credit Financing
Commitment Commitment Commitment Commitment Total
---------- ---------- ---------- ---------- -----
BANKERS TRUST COMPANY 8,475,000.00 29,425,000.00 7,850,000.00 5,750,000.00 71,500,000.00
130 Liberty Street, 30th Floor
New York, NY 10016
Attn: Mary Kay Coyle
Telecopy: 212-250-7218
MERRILL LYNCH CAPITAL 4,400,000.00 -- 7,850,000.00 5,750,000.00 18,000,000.00
CORPORATION
World Financial Center
North Tower
New York, NY 10281-1307
Attn: Michael Zupon
Telecopy: (212) 449-8320
THE CHASE MANHATTAN 3,300,000.00 -- 7,300,000.00 5,400,000.00 16,000,000.00
BANK
270 Park Avenue
New York, New York 10017
Attn: Neil Boylan
Telecopy: (212) 270-1129
GOLDMAN SACHS CREDIT 3,300,000.00 -- 7,300,000.00 5,400,000.00 16,000,000.00
PARTNERS L.P.
85 Broad Street
New York, New York 10004
Attn: Jennifer Tye
Telecopy: (212) 357-1500
ARAB BANKING CORPORATION -- -- 5,100,000.00 3,900,000.00 9,000,000.00
(B.S.C.)
277 Park Avenue
32nd Floor
New York, New York 10172
Attn: Louise Bilbro
Telecopy: (212) 583-0935
BANK OF TOKYO-MITSUBISHI TRUST 3,200,000.00 -- 7,000,000.00 5,300,000.00 15,500,000.00
COMPANY
1251 Avenue of the Americas
12th Floor
New York, New York 10020
Attn: David McLaughlin
Telecopy: (212) 782-4981
BANKBOSTON N.A. 2,800,000.00 -- 6,100,000.00 4,600,000.00 13,500,000.00
100 Federal Street
172
Revolving Receivables
B Term Loan C Term Loan Credit Financing
Commitment Commitment Commitment Commitment Total
---------- ---------- ---------- ---------- -----
Boston, MA 02109
Attn: Tim Barns
Telecopy: (617) 434-4829
CREDIT AGRICOLE INDOSUEZ 2,800,000.00 -- 6,100,000.00 4,600,000.00 13,500,000.00
55 East Monroe Street
47th Floor
Chicago, Illinois 60603
Attn: Paul Dytrych
Telecopy: (313) 372-3724
CITIBANK, N.A. 3,200,000.00 -- 7,000,000.00 5,300,000.00 15,500,000.00
399 Park Avenue
6th Floor, Zone 7
New York, New York 10043
Attn: Bruce Hall
Telecopy: (212) 559-0292
PRIME INCOME TRUST 4,050,000.00 4,950,000.00 -- -- 9,000,000.00
Two World Trade Center
72nd Floor
New York, New York 10048
Attn: Rafael Scolari
Telecopy: (212) 392-5345
FIRST CHICAGO NBD BANK 3,200,000.00 -- 7,000,000.00 5,300,000.00 15,500,000.00
One First National Plaza
Suite 0324
Chicago, Illinois 60670
Attn: Ken Krammer
Telecopy: (32) 732-7655
FIRST UNION NATIONAL BANK 3,200,000.00 -- 7,000,000.00 5,300,000.00 15,500,000.00
301 South College Street
19th Floor
Charlotte, North Carolina 28288
Attn: David Sharp
Telecopy: (704) 374-3300
FLEET BANK, N.A. 2,800,000.00 -- 6,100,000.00 4,600,000.00 13,500,000.00
1185 Avenue of the Americas
16th Floor
New York, New York 10036
Attn: Ty Anderson
Telecopy: (212) 819-6201
KZH Holding Corporation III 2,025,000.00 2,475,000.00 4,500,000.00
c/o The Chase Manhattan Bank
450 West 33rd Street
15th Floor
New York, New York 10001
Attn: Virginia Conway
Telecopy: (212) 946-7776
KZH Crescent Corp. 2,025,000.00 2,475,000.00 4,500,000.00
c/o The Chase Manhattan Bank
450 West 33rd Street
15th Floor
New York, New York 10001
173
Revolving Receivables
B Term Loan C Term Loan Credit Financing
Commitment Commitment Commitment Commitment Total
---------- ---------- ---------- ---------- -----
Attn: Virginia Conway
Telecopy: (212) 946-7776
NATIONAL WESTMINISTER BANK PLC 2,800,000.00 -- 6,100,000.00 4,600,000.00 13,500,000.00
660 Madison Avenue
17th Floor
New York, New York 10021
Attn: Field Smith
Telecopy: (212) 418-4598
PILGRIM AMERICA PRIME RATE 4,050,000.00 4,950,000.00 -- -- 9,000,000.00
TRUST
Two Renaissance Square
40 North Central Avenue
Suite 1200
Phoenix, Arizona 85004
Attn: Michael Bacevich
Telecopy: (602) 417-8327
PNC BANK, NATIONAL ASSOCIATION 2,800,000.00 -- 6,100,000.00 4,600,000.00 13,500,000.00
345 Park Avenue
29th Floor
New York, New York 10154
Attn: Mark Williams
Telecopy: (212) 409-3737
TRUST COMPANY OF THE WEST 2,025,000.00 2,475,000.00 -- -- 4,500,000.00
(TCW CRESCENT/MACH I PARTNERS)
200 Park Avenue
Suite 2200
New York, New York 10166
Attn: Justin Driscoll/Jonathan Insull
Telecopy: (212) 297-4159
VAN KAMPEN MERRIT COMPANIES, 6,750,000.00 8,250,000.00 -- -- 15,000,000.00
INC.
One Parkview Plaza
Oakbrook Terrace, Illinois 60181
Attn: Jeffrey Maillet
Telecopy: (630) 684-6740
THE MITSUBISHI TRUST AND 2,800,000.00 -- 6,100,000.00 4,600,000.00 13,500,000.00
BANKING CORPORATION
Attn: Paul Arzourian
Telecopy: (212) 644-6825
TOTAL ALLOCATION $90,000,000 $55,000,000 $100,000,000 $75,000,000 $320,000,000
174
Schedule II to the
CREDIT AGREEMENT
PRICING AND COMMITMENT FEE GRID
- -----------------------------------------------------------------------------------------------------------------------------------
B Term Loans C Term Loans Revolving Loans Receivables Commitment
Financing Loans Fee
--------------------------------------------------------------------
Leverage Ratio ABR Eurodollar ABR Eurodollar ABR Eurodollar ABR Eurodollar
Loans Loans Loans Loans Loans Loans Loans Loans
- ----------------------------------------------------------------------------------------------------------------------------------
Greater than or equal 1.50% 2.50% 1.75% 2.75% 1.25% 2.25% 1.25% 2.25% 0.50%
to 5.5 to 1.0
Less than 5.5 to 1.0, 1.50% 2.50% 1.75% 2.75% 1.25% 2.25% 1.25% 2.25% 0.50%
but greater than or
equal to 5.0 to 1.0
Less than 5.0 to 1.0, 1.25% 2.25% 1.50% 2.50% 1.00% 2.00% 1.00% 2.00% 0.375%
but greater than or
equal to 4.5 to 1.0
Less than 4.5 to 1.0, 1.25% 2.25% 1.50% 2.50% 0.75% 1.75% 0.75% 1.75% 0.375%
but greater than or
equal to 4.0 to 1.0
Less than 4.0 to 1.0, 1.00% 2.00% 1.25% 2.25% 0.50% 1.50% 0.50% 1.50% 0.30%
but greater than or
equal to 3.5 to 1.0
Less than 3.5 to 1.0, 1.00% 2.00% 1.25% 2.25% 0.25 1.25% 0.25% 1.25% 0.25%
but greater than or
equal to 3.0 to 1.0
Less than 3.0 to 1.0 1.00% 2.00% 1.25% 2.25% 0.0% 1.00% 0.0 1.00% 0.25%
- ----------------------------------------------------------------------------------------------------------------------------------
175
EXHIBIT N TO
CREDIT AGREEMENT
----------------
FORM OF LETTER OF CREDIT REQUEST
No. (1) Dated (2)
---- ------
Bankers Trust Company, as Administrative Agent under the
Credit Agreement (as amended, modified or supplemented from time to time,
the "CREDIT AGREEMENT"), dated as of November 24, 1997, among Werner
Holding Co. (DE), Inc., the Lenders from time to time party thereto,
Bankers Trust Company, as Administrative Agent and Co-Arranger, Merrill
Lynch Capital Corporation, as Syndication Agent and Co-Arranger, The Chase
Manhattan Bank, as Documentation Agent, and Goldman Sachs Credit Partners
L.P., as Co-Agent
130 Liberty Street
New York, New York 10006
Attention: Mary Kay Coyle
[Name and Address of applicable Issuing Lender
Attention: ______________________]
Dear Sirs:
We hereby request that [name of proposed Issuing Lender], in
its individual capacity, issue a [Standby] [Commercial] L/C for the account of
the undersigned on (3) (the "Date of Issuance") in the aggregate stated amount
of (4). The requested Letter of
- -----------------------------
(1) Letter of Credit Request Number.
(2) Date of Letter of Credit Request.
(3) Date of Issuance which shall be at least five Business Days after the
date of this Letter of Credit Request (or such shorter period as is
acceptable to the respective Issuing Bank).
(4) Aggregate initial stated amount of Letter of Credit.
176
Credit shall be denominated in Dollars.
For purposes of this Letter of Credit Request, unless
otherwise defined herein, all capitalized terms used herein which are defined in
the Credit Agreement shall have the respective meaning provided therein.
The beneficiary of the requested Letter of Credit will be (5),
and such Letter of Credit will be in support of 6 and will have a stated
expiration date of
(7).
We hereby certify that:
(1) the representations and warranties contained in the Credit
Documents will be true and correct in all material respects on the Date
of Issuance, both before and after giving effect to the issuance of the
Letter of Credit requested hereby (it being understood and agreed that
any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct in all material
respects only as of such specified date);
(2) no Default or Event of Default has occurred and is
continuing nor, after giving effect to the issuance of the Letter of
Credit requested hereby, would such a Default or an Event of Default
occur; and
(3) the Letter of Credit requested hereby is permitted to be
issued in accordance with the relevant requirements of Section 3 of the
Credit Agreement.
- ------------------------------------------
(5) Insert name and address of beneficiary.
(6) Insert description of the obligations which are being supported in the
case of a Standby L/C and a description of the commercial transaction
which is being supported in the case of a Commercial L/C.
(7) Insert last date upon which drafts may be presented which may not be
later than the earlier of (x) the date which occurs 365 days (or such
other duration as may be agreed upon by the Issuing Lender) after the
Date of Issuance, or, if any such Letter of Credit is automatically
extended for successive periods of up to 365 days, a date not beyond
the tenth day prior to the Revolving Credit Termination Date or (y) the
tenth day prior to the Revolving Credit Termination Date.
-2-
177
Copies of all relevant documentation with respect to the
supported transaction are attached hereto.
WERNER HOLDING CO. (DE), INC.
By____________________________
Title:
-3-
178
EXHIBIT D
TO THE
CREDIT AGREEMENT
----------------
FORM OF SWING LINE NOTE
$10,000,000 New York, New York
November 24, 1997
FOR VALUE RECEIVED, the undersigned, WERNER HOLDING CO. (DE),
INC., a Delaware corporation (the "COMPANY"), promises to pay to the order of
BANKERS TRUST COMPANY (the "LENDER") on the Revolving Credit Termination Date,
as defined in the Credit Agreement described below, at the office of Bankers
Trust Company, located at 130 Liberty Street, New York, New York 10006, in
lawful money of the United States and in immediately available funds, the
principal amount of the lesser of (a) TEN MILLION DOLLARS ($10,000,000) and (b)
the aggregate unpaid principal amount of all Swing Line Loans made by the Lender
to the Company pursuant to subsection 3.4 of the Credit Agreement defined below.
The Company further agrees to pay interest in like money at such office on the
unpaid principal amount hereof from time to time from the date hereof at the
rates, and on the dates, specified in the Credit Agreement. The Lender is
authorized to record the Borrowing Date and amount of each Swing Line Loan and
the date and amount of each payment or prepayment of principal thereof, 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) and any such recordation
shall constitute PRIMA FACIE evidence of the accuracy of the information so
recorded; PROVIDED that the failure of the Lender to make such recordation (or
any error in such recordation) shall not affect the obligations of the Company
hereunder or under the Credit Agreement.
This Note is the Swing Line Note referred to in the Credit
Agreement, dated as of November 24, 1997, among the Company, the lenders from
time to time party thereto, Bankers Trust Company, as Administrative Agent and
Co-Arranger, Merrill Lynch Capital Corporation, as Syndication Agent and Co-
Arranger, The Chase Manhattan Bank, as Documentation Agent, and Goldman Sachs
Credit Partners L.P. as Co-Agent (as amended, supplemented or otherwise modified
from time to time, the "CREDIT AGREEMENT"), is subject to the provisions
thereof, is entitled to the benefits thereof and is subject to optional and
mandatory prepayment in whole or in part as provided therein. Terms used herein
which are defined in the Credit Agreement shall have such defined meanings
unless otherwise defined herein.
179
This Note is secured and guaranteed as provided in the
Security Documents and the Guarantees. Reference is hereby made to the Security
Documents and the Guarantees for a description of the properties and assets in
which a security interest has been granted, the nature and extent of the
security and guarantees, the terms and conditions upon which the security
interest and each guarantee was granted and the rights of the Lender in respect
thereof. The undersigned hereby agrees to pay all costs and expenses incurred by
the Lender in connection with the enforcement of its rights and remedies under
the Credit Agreement, the Notes, the Security Documents and each other Credit
Document.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Note may become, or may be declared to be, immediately due and payable, all
as provided therein.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
-2-
180
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH
THE TERMS OF THE CREDIT AGREEMENT. TRANSFERS OF THIS NOTE MUST BE RECORDED IN
THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF THE
CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
WERNER HOLDING CO. (DE), INC.
By:
-------------------------------
Title:
-3-
181
Schedule
to Swing
Line Note
---------
SWING LINE
LOANS AND PAYMENTS OF PRINCIPAL
-------------------------------
Amount Amount
of Swing of Unpaid Notation
Line Principal Principal Made
Date Loans Repaid Balance
- ------- -------- --------- --------- ---------
By
- ------- -------- --------- --------- ---------
- ------- -------- --------- --------- ---------
- ------- -------- --------- --------- ---------
- ------- -------- --------- --------- ---------
- ------- -------- --------- --------- ---------
- ------- -------- --------- --------- ---------
- ------- -------- --------- --------- ---------
- ------- -------- --------- --------- ---------
- ------- -------- --------- --------- ---------
- ------- -------- --------- --------- ---------
- ------- -------- --------- --------- ---------
- ------- -------- --------- --------- ---------
- ------- -------- --------- --------- ---------
- ------- -------- --------- --------- ---------
- ------- -------- --------- --------- ---------
- ------- -------- --------- --------- ---------
- ------- -------- --------- --------- ---------
- ------- -------- --------- --------- ---------
- ------- -------- --------- --------- ---------
- ------- -------- --------- --------- ---------
- ------- -------- --------- --------- ---------
-4-
182
EXHIBIT E
TO THE
CREDIT AGREEMENT
----------------
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of
November __, 1997, among Werner Holding Co. (DE), Inc., a Delaware corporation
(the "Company"), the Lenders named therein, Bankers Trust Company, as
Administrative Agent and Co-Arranger, Merrill Lynch Capital Corporation, as
Syndication Agent and Co-Arranger, The Chase Manhattan Bank, as Documentation
Agent, and Goldman Sachs Credit Partners L.P., as Co-Agent (as amended,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT").
Terms defined in the Credit Agreement are used herein with the same meanings.
__________________ (the "ASSIGNOR") and ____________________
(the "ASSIGNEE") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), the interest (the "ASSIGNED INTEREST") in
and to the Assignor's rights and obligations under the Credit Agreement with
respect to those credit facilities contained in the Credit Agreement as are set
forth on Schedule 1 (individually, an "ASSIGNED FACILITY"; collectively, the
"ASSIGNED FACILITIES"), in a principal amount for each Assigned Facility as set
forth on Schedule 1.
2. The Assignor (i) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement, any other
Credit Document or any other instrument or document furnished pursuant thereto,
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement, any other Credit Document or any other
instrument or document furnished pursuant thereto, other than it has not created
any adverse claim upon the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Company, any of the Company's Subsidiaries or any other obligor or
the performance or observance by the Company, any of the Company's Subsidiaries
or any other obligor of any of their respective obligations under the Credit
Agreement or any other Credit Document or any other instrument or document
furnished pursuant
-1-
183
hereto or thereto; (iii) attaches the Note(s), if any, held by it evidencing the
Assigned Facilities and requests that the Administrative Agent exchange such
Note(s) for a new Note or Notes payable to the Assignee (if requested by the
Assignee) and (if the Assignor has retained any interest in the Assigned
Facility) a new Note or Notes payable to the Assignor (if requested by the
Assignor) in the respective amounts which reflect the assignment being made
hereby (and after giving effect to any other assignments which have become
effective on the Effective Date); and (iv) represents and warrants that it is
legally authorized to enter into this Assignment and Acceptance.
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (iii) agrees that it
will, independently and without reliance upon the Assignor, 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 decisions in
taking or not taking action under the Credit Agreement, the other Credit
Documents or any other instrument or document furnished pursuant hereto or
thereto; (iv) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
the Credit Agreement, the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; (v) agrees that it will be bound by the provisions of the
Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligations pursuant to subsections
5.11(d) and 12.6(g) of the Credit Agreement to deliver the forms prescribed by
the Internal Revenue Service of the United States certifying as to the
Assignee's exemption from United States withholding taxes with respect to all
payments to be made to the Assignee under the Credit Agreement, or such other
documents as are necessary to indicate that all such payments are subject to
such tax at a rate reduced by an applicable tax treaty; and (vi) represents and
warrants that the provisions of the last sentence of subsection 12.6(c) of the
Credit Agreement do not prohibit the assignment to the Assignee effected hereby.
4. The effective date of this Assignment and Acceptance shall
be __________, (the "EFFECTIVE DATE"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Administrative Agent for
acceptance by it and recording by the Administrative Agent pursuant to
subsection 12.6(d) of the Credit Agreement, effective as of the Effective Date
(which shall not, unless otherwise agreed to by the Administrative Agent, be
earlier than five Business Days after the date of such acceptance and recording
by the Administrative Agent).
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5. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignee whether such amounts have accrued prior to the
Effective Date or accrue subsequent to the Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments by the
Administrative Agent for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves.
6. From and after the Effective Date, (i) the Assignee shall
be a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the other Credit Documents and shall be bound by the
provisions thereof and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above written by
their respective duly authorized officers on Schedule 1 hereto.
[ASSIGNEE] [ASSIGNOR]
By:____________________ By:___________________
Name: Name:
Title: Title:
ACCEPTED [AND CONSENTED TO]:*
[WERNER HOLDING CO. (DE), INC.] BANKERS TRUST COMPANY,
as Administrative Agent
By:_______________________ By:_______________________
Name: Name:
Title: Title:
- -----------------------------------------
* Consents only required where Assignee is not a Lender or an Affiliate of a
Lender.
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Schedule 1 to Assignment and Acceptance relating to the Credit Agreement, dated
as of November 24, 1997,
among
WERNER HOLDING CO. (DE), INC., a Delaware corporation,
the Lenders named therein,
BANKERS TRUST COMPANY,
as Administrative Agent and Co-Arranger,
MERRILL LYNCH CAPITAL CORPORATION,
as Syndication Agent and as Co-Arranger,
THE CHASE MANHATTAN BANK, as Documentation Agent,
AND GOLDMAN SACHS CREDIT PARTNERS L.P., AS CO-AGENT
---------------------------------------------------
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Commitment Percentages Assigned
(to at least fifteen decimals)
Credit Principal (shown as a percentage of aggregate
Facility Assigned Amount Assigned Principal Amount Of All Lenders)
----------------- --------------- ---------------------------------
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EXHIBIT F-1 TO
CREDIT AGREEMENT
FORM OF
COMPANY SECURITY AGREEMENT
--------------------------
SECURITY AGREEMENT, dated as of November 24, 1997, made by
WERNER HOLDING CO. (DE), INC., a Delaware corporation (the "COMPANY") in favor
of BANKERS TRUST COMPANY, a New York banking corporation, as administrative
agent (in such capacity, the "ADMINISTRATIVE AGENT") for the Agents and for the
several lenders (the "LENDERS") from time to time parties to the Credit
Agreement (as defined below) and for the benefit of the other Secured Creditors
referred to below.
W I T N E S S E T H :
WHEREAS, pursuant to a Credit Agreement, dated as of the date
hereof (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among the Company, the Lenders, Bankers Trust Company, as
Administrative Agent and Co-Arranger, Merrill Lynch Capital Corporation, as
Syndication Agent and Co-Arranger, The Chase Manhattan Bank, as Documentation
Agent, and Goldman Sachs Credit Partners L.P., as Co-Agent (together with the
Administrative Agent, Syndication Agent and Documentation Agent, the "AGENTS"),
the Lenders have severally agreed to make loans to, and the Issuing Lender (as
defined in the Credit Agreement) has agreed to issue, and certain of the other
Lenders have agreed to participate in, letters of credit for the account of, the
Company upon the terms and subject to the conditions set forth therein; and
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective loans to, and the obligation of the Issuing
Lender to issue and the Lenders to participate in letters of credit for the
account of, the Company under the Credit Agreement that the Company shall have
executed and delivered this Security Agreement to the Administrative Agent for
the ratable benefit of the Agents and the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent, the other Agents and the Lenders to enter into the
Credit Agreement and to make their respective loans to, and to issue or
participate in letters of credit for the account of, the Company under the
Credit Agreement, the Company hereby agrees with the Administrative Agent, for
the ratable benefit of the Secured
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Creditors, as follows:
1. DEFINED TERMS. Unless otherwise defined herein or in the
preamble or recitals hereto, terms which are defined in the Credit Agreement and
used herein are so used as so defined; the following terms which are defined in
the Uniform Commercial Code in effect in the State of New York on the date
hereof are used herein as so defined: Chattel Paper, Farm Products, Documents,
Goods and Inventory; and the following terms shall have the following meanings:
"ACCOUNTS" means all accounts receivable (other than any
Receivables Facility Assets), book debts, notes, drafts, instruments,
documents, acceptances and other forms of obligations now owned or
hereafter received or acquired by or belonging or owing to the Company
(including under any trade names, styles or divisions thereof) whether
arising out of personal property owned or leased by it, Goods sold by
it or services rendered by it or from any other transaction, whether or
not the same involves the lease of personal property, sale of Goods or
performance of services by the Company (including, without limitation,
any such obligation which would be characterized as an account, general
intangible or chattel paper under the Code) and all of the Company's
rights in, to and under all purchase orders now owned or hereafter
received or acquired by it for Goods or services, and all of the
Company's rights to any Goods represented by any of the foregoing
(including returned or repossessed Goods and unpaid seller's rights)
and all moneys due or to become due to the Company under all contracts
for the sale of Goods and/or the performance of services by it (whether
or not yet earned by performance), under any lease of real or personal
property (to the extent the grant of such a security interest is
permitted by applicable law and is not prohibited by such lease), or
under any franchise agreement, or in connection with any other
transaction, now in existence or hereafter arising, including without
limitation the right to receive the proceeds of said purchase orders
and contracts and rents under such leases, and all collateral security
and guarantees of any kind given by any Person with respect to any of
the foregoing.
"CODE" means the Uniform Commercial Code as from time to time
in effect in the State of New York.
"COLLATERAL" has the meaning assigned to it in Section 2 of
this Security Agreement.
"CONTRACT" means, with respect to an Account, any agreement
relating to the terms of payment or the terms of performance thereof,
including, without limitation, (a) all rights of the Company to receive
moneys due and to become due to it thereunder or in connection
therewith, (b) all rights of the
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Company to damages arising out of, or for, breach or default in
respect thereof and (c) all rights of the Company to perform and to
exercise all remedies thereunder.
"COPYRIGHT LICENSE" means any written agreement, naming the
Company, as licensor or licensee, granting any right in the United
States to use any Copyright including, without limitation, any referred
to in Schedule I hereto.
"COPYRIGHTS" means all of the following to the extent the
Company now or hereafter has any right, title or interest: (a) all
United States copyrights and all registrations and applications
therefor, including, without limitation, any referred to in Schedule I
hereto, and (b) all renewals of such copyrights.
"CREDIT AGREEMENT OBLIGATIONS" has the meaning assigned that
term in the definition of "Obligations" contained herein.
"EQUIPMENT" means all machinery, equipment and furniture
except Vehicles, now owned or hereafter acquired by the Company or in
which the Company now has or hereafter may acquire any right, title or
interest and any and all additions, substitutions and replacements
thereof, wherever located, together with all attachments, components,
parts, equipment and accessories installed therein or affixed thereto,
including, but not limited to, all equipment as defined in Section
9-109(2) of the Code.
"GENERAL INTANGIBLES" has the meaning given to it in the Code
and includes, whether or not so included in such meaning, any franchise
agreements or rights in favor of or granted by the Company to know-how,
trade secrets, product or service development ideas and designs,
advertising commercials, renderings, strategies and plans, blueprints,
architectural drawings, site location, personnel and franchisee
information, proprietary information, computer and software technology
and programs, contracts with distributors, and any similar items, all
interest rate, foreign currency or similar agreements and general
intangibles attributable to the Capital Stock of each of the
Subsidiaries of the Company.
"INSTRUMENT" has the meaning given to it in the Code, except
that it shall not include the Pledged Notes and the Undelivered Notes
(as each such term is defined in each of the Pledge Agreements).
"LICENSE" means any Copyright License, Patent License or
Trademark License.
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"OBLIGATIONS" means (i) the unpaid principal amount of, and
interest on (including interest accruing on or after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Company, whether or
not a claim for such post-filing or post-petition interest is
allowed), the Loans and all other obligations and liabilities of the
Company to the Agents, the Issuing Lender or the Lenders, whether
direct or indirect, absolute or contingent, due or to become due, or
now existing or hereafter incurred, which may arise under, out of, or
in connection with, the Credit Agreement, any Letter of Credit, the
other Credit Documents and any other document executed and delivered or
given in connection therewith or herewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all reasonable fees and
disbursements of counsel to the Agents, the Issuing Lender or to the
Lenders that are required to be paid by the Company pursuant to the
terms of the Credit Agreement) or otherwise (collectively, "CREDIT
AGREEMENT OBLIGATIONS") and (ii) all obligations of the Company to any
Lender or Lenders or its or their Affiliates (each such Lender or
Affiliate, even if the respective Lender subsequently ceases to be a
lender under the Credit Agreement for any reason, together with such
Lender's or Affiliate's successors and assigns, collectively, the
"Other Creditors" and, together with the Administrative Agent, the
Agents and the Lenders, the "Secured Creditors") under or in respect of
any Interest Rate Agreement (collectively "OTHER OBLIGATIONS").
"OTHER OBLIGATIONS" has the meaning assigned that term in the
definition of "Obligations" contained herein.
"PATENT LICENSE" means any agreement, whether written or oral,
providing for the grant by or to the Company of any right to
manufacture, use, sell or import into any jurisdiction any invention
covered by a Patent, including, without limitation, any thereof
referred to in Schedule II hereto.
"PATENTS" means (a) all letters patent of the United States or
any other country and all reissues and extensions thereof, including,
without limitation, any thereof referred to in Schedule II hereto, and
(b) all applications for letters patent of the United States and all
divisions, continuations and continuations-in-part thereof or any other
country, including, without limitation, any thereof referred to in
Schedule II hereto.
"PROCEEDS" means "proceeds", as such term is defined in
Section 9-306(1) of the Code and, to the extent not included in such
definition, shall include, without limitation, (a) any and all proceeds
of any insurance, indemnity, warranty, guaranty or letter of credit
payable to the Company,
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from time to time with respect to any of the Collateral, (b) all
payments (in any form whatsoever) paid or payable to the Company from
time to time in connection with any taking of all or any part of the
Collateral by any Governmental Authority or any Person acting under
color of Governmental Authority, (c) all judgments in favor of the
Company in respect of the Collateral and (d) all other amounts from
time to time paid or payable or received or receivable under or in
connection with any of the Collateral.
"SECURED CREDITORS" has the meaning assigned that term in the
definition of "Obligations" contained herein.
"SECURITY AGREEMENT" means this Security Agreement, as
amended, supplemented or otherwise modified from time to time.
"TRADEMARK LICENSE" means any agreement, written or oral,
providing for the grant by or to the Company of any right to use any
Trademark, including, without limitation, any thereof referred to in
Schedule III hereto.
"TRADEMARKS" means (a) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade
styles, service marks, logos and other source of business identifiers,
and the goodwill associated therewith, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and all
applications in connection therewith, whether in the United States
Patent and Trademark Office or in any similar office or agency of the
United States, any state thereof or any other country or any political
subdivision thereof, or otherwise, including, without limitation, any
thereof referred to in Schedule III hereto, and (b) all renewals
thereof.
"VEHICLES" means all cars, trucks, trailers and other vehicles
(including forklifts) covered by a certificate of title law of any
state.
2. GRANT OF SECURITY INTEREST. (a) As collateral security for
the prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations, the Company hereby
grants to the Administrative Agent for the ratable benefit of the Secured
Creditors a security interest in all of the following property now owned or at
any time hereafter acquired by the Company or in which the Company now has or at
any time in the future may acquire any right, title or interest, excluding,
however, Vehicles, Receivables Facility Assets and Pledged Notes (as defined in
the Company Pledge Agreement) (collectively, the "COLLATERAL"):
(i) all Accounts;
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(ii) all Chattel Paper;
(iii) all Contracts;
(iv) all Copyrights;
(v) all Copyright Licenses;
(vi) all Documents;
(vii) all Equipment;
(viii) all General Intangibles;
(ix) all Instruments;
(x) all Inventory;
(xi) all Patents;
(xii) all Patent Licenses;
(xiii) all Trademarks;
(xiv) all Trademark Licenses;
(xv) all books and records pertaining to the
Collateral;
(xvi) all other Goods, personal property and
investment securities of the Company, whether
tangible or intangible and whether now or
hereafter owned by the Company, and wherever
located; and
(xvii) to the extent not otherwise included, all
Proceeds and products of any and all of the
foregoing and all collateral security and
guarantees given by any Person with respect to
any of the foregoing.
3. RIGHTS OF SECURED CREDITORS; LIMITATIONS ON SECURED
CREDITORS' OBLIGATIONS.
(a) COMPANY REMAINS LIABLE UNDER ACCOUNTS, LICENSES,
CONTRACTS,
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ETC. Anything herein to the contrary notwithstanding, the Company shall
remain liable under each of the Accounts, Licenses and Contracts to
observe and perform all the material conditions and obligations to be
observed and performed by it thereunder, all in accordance with the
terms of any agreement giving rise to each such Account, License or
Contract. None of the Secured Creditors shall have any obligation or
liability under any Account, License or Contract by reason of or arising
out of this Security Agreement or the receipt by any Secured Creditor of
any payment relating to such Account, License or Contract pursuant
hereto, nor shall any Secured Creditor be obligated in any manner to
perform any of the obligations of the Company under or pursuant to any
Account, License or Contract, to make any payment, to make any inquiry
as to the nature or the sufficiency of any payment received by it or as
to the sufficiency of any performance by any party under any Account,
License or Contract, to present or file any claim, to take any action to
enforce any performance or to collect the payment of any amounts which
may have been assigned to it or to which it may be entitled at any time
or times.
(b) NOTICE TO ACCOUNT DEBTORS AND CONTRACTING PARTIES. At any
time after an Event of Default has occurred and so long as such Event
of Default shall be continuing, upon the request of the Administrative
Agent the Company shall, and the Administrative Agent may (with
concurrent notice to the Company thereof), notify account debtors on
the Accounts and parties to the Contracts and Licenses that the
Accounts, Contracts and Licenses have been assigned to the
Administrative Agent for the ratable benefit of the Secured Creditors
and that payments in respect thereof shall be made directly to the
Administrative Agent. At any time after an Event of Default shall have
occurred and be continuing, the Administrative Agent may in its own
name or in the name of others communicate with account debtors on the
Accounts and parties to the Contracts and Licenses to verify with them
to its satisfaction the existence, amount and terms thereof.
(c) VERIFICATION OF ACCOUNTS AND INVENTORY. The
Administrative Agent shall have the right to make test verifications of
the Accounts and Inventory in any reasonable manner and through any
medium that it considers advisable, and the Company agrees to furnish
all such assistance and information as the Administrative Agent may
reasonably require in connection therewith provided that, so long as no
Event of Default shall have occurred and be continuing, (i) any such
verification shall be conducted in the name of the Company or in such
other manner as shall not disclose the Administrative Agent's identity
or interest in the Collateral and (ii) the Administrative Agent shall
conduct such verification no more frequently than once per year and
shall give the Company reasonable advance notice thereof. The
Administrative Agent may after the occurrence and during the
continuance
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of an Event of Default in its own name or in the name of others
communicate with account debtors in order to verify with them to the
Administrative Agent's satisfaction the existence, amount and terms of
any Accounts and/or Inventory.
4. REPRESENTATIONS AND WARRANTIES. The Company hereby
represents and warrants that:
(a) TITLE; NO OTHER LIENS. Except for the Lien granted to the
Administrative Agent for the ratable benefit of the Secured Creditors
pursuant to this Security Agreement and the other Liens permitted to
exist on the Collateral pursuant to the Credit Agreement, the Company
owns each item of the Collateral free and clear of any and all Liens.
No security agreement, 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 (i) such as may have been filed in favor of
the Administrative Agent, for the ratable benefit of the Secured
Creditors, pursuant to this Security Agreement, or (ii) as may be
permitted pursuant to the Credit Agreement.
(b) PERFECTED FIRST PRIORITY LIENS. The Liens granted pursuant
to this Security Agreement constitute perfected Liens on the Collateral
in favor of the Administrative Agent, for the ratable benefit of the
Secured Creditors, to the extent that (i) such Liens constitute Liens
on General Intangibles, or (ii) such Liens constitute Liens on
Equipment located in a jurisdiction listed on Schedule IV, or (iii)
such Liens can be perfected by filing a financing statement under the
Uniform Commercial Code, as in effect in the relevant jurisdiction, or
(iv) the Company is required to deliver such Collateral to the
Administrative Agent pursuant to Section 5(a) hereof, which are prior
to all other Liens on the Collateral created by the Company and in
existence on the date hereof, except for Liens permitted to exist on
the Collateral pursuant to the Credit Agreement, and which are
enforceable as such against all creditors of and purchasers from the
Company.
(c) ACCOUNTS AND RECORDS. The amount represented by the
Company to the Administrative Agent from time to time as owing by each
account debtor or by all account debtors in respect of the Accounts
will at such time be the correct amount actually owing by such account
debtor or debtors thereunder in all material respects, subject to
adjustments in the ordinary course of business. No amount payable to
the Company under or in connection with any Account, Contract or
License in excess of $250,000 individually or $1,000,000 in the
aggregate is evidenced by any Instrument or Chattel Paper which has not
been delivered to the Administrative Agent except for notes receivable
from officers or key employees pursuant to executive
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stock purchase plans. The place where the Company keeps its records
concerning the Accounts and the other Collateral is 93 Werner Road,
Greenville, PA 16125-9499.
(d) CONSENTS. Each Contract and License is in full force and
effect and, to the best knowledge of the Company, constitutes a valid
and legally enforceable obligation of the other obligor in respect
thereof or parties thereto, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally. No consent or
authorization of, filing with or other act by or in respect of any
Governmental Authority is required in connection with the execution,
delivery, performance, validity or enforceability of any of the
Accounts, Licenses or Contracts by any party thereto other than those
which have been duly obtained, made or performed, are in full force and
effect and do not subject the scope of any such Account, License or
Contract to any material adverse limitation, either specific or general
in nature. Neither the Company nor (to the best of the Company's
knowledge) any other party to any Account, License or Contract is in
default in the performance or observance of any of the material terms
thereof. The Company has fully performed all its material obligations
under each License and Contract to the extent such obligations are
required to be performed on or prior to the date hereof. The right,
title and interest of the Company in, to and under each Account,
License and Contract are not subject to any defense, offset,
counterclaim or claim which would materially adversely affect the value
of such Account, License or Contract as Collateral, nor have any of the
foregoing been asserted or alleged against the Company as to any of the
foregoing.
(e) INVENTORY. The Inventory is kept at the locations listed
on Schedule IV hereto, as amended or supplemented from time to time
pursuant to Section 5(o) hereof.
(f) EQUIPMENT. The Equipment is kept at the locations listed
on Schedule IV hereto, as amended or supplemented from time to time
pursuant to Section 5(o) hereof.
(g) CHIEF EXECUTIVE OFFICE. The Company's chief executive
office and chief place of business is located at 93 Werner Road,
Greenville, PA 16125-9499.
(h) FARM PRODUCTS. None of the Collateral constitutes, or is
the Proceeds of, Farm Products.
(i) PATENTS, TRADEMARKS AND COPYRIGHTS. Schedule II hereto
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includes a complete and current list of all material Patents and Patent
Licenses owned by the Company in its own name as of the date hereof.
Schedule III hereto includes a complete and current list of all
material Trademarks and Trademark Licenses owned by the Company in its
own name as of the date hereof. Schedule I hereto includes a complete
and current list of all material Copyrights in which the Company owns
or purports to own as of the date hereof. To the best of the Company's
knowledge, except as set forth on Schedule II or Schedule III, each
Patent and Trademark is valid, subsisting, unexpired and enforceable
and has not been abandoned. Except as set forth in Schedule II or on
Schedule III, none of such Patents and Trademarks is the subject of any
licensing or franchise agreement. All licenses of the Company's
Trademarks are in force and, to the best knowledge of the Company, not
in default. No holding, decision or judgment has been rendered by any
Governmental Authority with respect to any Patent or Trademark which
would limit, cancel or question the validity of any Patent or
Trademark. Except as set forth on Schedule II or Schedule III, no
action or proceeding is pending or, to the knowledge of the Company,
threatened (i) seeking to limit, cancel or question the validity of any
material Patent or Trademark or the Company's ownership thereof, or
(ii) which, if adversely determined, would have a material adverse
effect on the value of any material Patent or Trademark.
(j) POWER AND AUTHORITY; AUTHORIZATION. The Company has the
corporate power and authority and the right to execute and deliver, to
perform its obligations under, and to grant the Lien on the Collateral
pursuant to, this Security Agreement and has taken all necessary
corporate action to authorize its execution, delivery and performance
of, and grant of the Lien on the Collateral pursuant to, this Security
Agreement.
(k) NO LITIGATION. No litigation, investigation or proceeding
of or before any arbitrator or Governmental Authority is pending or, to
the knowledge of the Company, threatened by or against the Company or
against any of its properties or revenues with respect to this Security
Agreement or any of the transactions contemplated hereby which would
have a material adverse effect upon any material portion of the
Collateral or the granting of the security interests hereby.
5. COVENANTS. The Company covenants and agrees with the
Secured Creditors that, from and after the date of this Security Agreement until
the Obligations are paid in full, the Commitments are terminated and either no
Letters of Credit are outstanding or each outstanding Letter of Credit has been
cash collateralized so that it is fully secured to the satisfaction of the
Administrative Agent:
(a) FURTHER DOCUMENTATION; PLEDGE OF INSTRUMENTS AND CHATTEL
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PAPER. (i) At any time and from time to time, upon the written request
of the Administrative Agent, and at the sole expense of the Company,
the Company will promptly and duly execute and deliver such further
instruments and documents and take such further action as the
Administrative Agent may reasonably request for the purpose of
obtaining or preserving the full benefits of this Security Agreement
and of the rights and powers herein granted, including, without
limitation, the filing of any financing or continuation statements
under the Uniform Commercial Code in effect in any jurisdiction with
respect to the Liens created hereby. The Company also hereby authorizes
the Administrative Agent to file (after written notice to the Company)
any such financing or continuation statement without the signature of
the Company to the extent permitted by applicable law. A carbon,
photographic or other reproduction of this Security Agreement shall be
sufficient as a financing statement for filing in any jurisdiction.
(ii) If any amounts payable under or in connection with any of
the Collateral having a face value in excess of $250,000 individually
or $1,000,000 in the aggregate at any one time outstanding shall be or
become evidenced by any Instruments or Chattel Paper, such Instruments
or Chattel Paper shall be immediately delivered to the Administrative
Agent, duly endorsed in a manner satisfactory to the Administrative
Agent, to be held as Collateral pursuant to this Security Agreement. So
long as no Default or Event of Default has occurred and is continuing,
upon request by the Company, the Administrative Agent shall make
available any pledged Collateral to the Company, or its designee, that
the Company specifies is required for the purpose of ultimate sale,
exchange, presentation, collection, renewal, registration or transfer
thereof, PROVIDED that in each case arrangements reasonably
satisfactory to the Administrative Agent shall be made for the return
of such pledged Collateral within 21 days from the time of delivery by
the Administrative Agent, except for pledged Collateral that has been
fully repaid, satisfied, or transferred as permitted hereunder.
(iii) Notwithstanding anything set forth in this Security
Agreement to the contrary, so long as no Default or Event of Default
has occurred and is continuing, the Company shall not be required to
deliver to the Administrative Agent any Instruments or Chattel Paper to
be held by the Administrative Agent as Collateral pursuant to this
Security Agreement so long as the aggregate amount evidenced by all
such Instruments and Chattel Paper does not exceed $250,000
individually or $1,000,000 in the aggregate at any one time
outstanding.
(b) INDEMNIFICATION. The Company agrees to pay, and to save
the Secured Creditors harmless from, any and all liabilities, costs and
expenses
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(including, without limitation, reasonable legal fees and expenses) (i)
with respect to, or resulting from, any delay in paying, any and all
excise, sales or other taxes which may be payable or determined to be
payable with respect to any of the Collateral, (ii) with respect to, or
resulting from, any delay by the Company in complying with any
Requirement of Law applicable to any of the Collateral or (iii) in
connection with any of the transactions contemplated by this Security
Agreement; PROVIDED that the Company shall not be liable for the
payment of any portion of such liabilities, costs or expenses resulting
from the gross negligence or willful misconduct of any Secured
Creditor. Without limiting the preceding sentence, the Company
will indemnify and save and keep harmless each Secured Creditor from
and against all expense, loss or damage suffered by reason of any
counterclaim of the account debtor or obligor thereunder, arising out
of a breach by the Company of any obligation thereunder or arising out
of any other agreement, indebtedness or liability at any time owing to
or in favor of such account debtor or obligor or its successors from
the Company.
(c) MAINTENANCE OF RECORDS. The Company will keep and maintain
at its own cost and expense satisfactory and complete records of the
Collateral, including, without limitation, a record of all payments
received and all credits granted with respect to the Accounts,
Contracts and Licenses. The Company will mark its internal books and
records pertaining to the Collateral to evidence this Security
Agreement and the security interests granted hereby. For the Secured
Creditors' further security, the Administrative Agent, for the ratable
benefit of the Secured Creditors, shall have a security interest in all
of the Company's books and records pertaining to the Collateral, and
the Company shall make available for review any such books and records
to the Administrative Agent or to its representatives during normal
business hours at the reasonable request of the Administrative Agent.
The Company shall permit representatives of the Administrative Agent,
upon reasonable notice to the Company (but no more frequently than
monthly unless a Default or Event of Default shall have occurred and be
continuing), to visit and inspect any of its properties and examine and
make abstracts from any of its books and records at any reasonable time
and as often as may reasonably be requested upon reasonable notice, and
to discuss the business, assets, condition (financial or otherwise) or
the results of operation of the Company and its Subsidiaries with
appropriate officers and employees thereof and with their independent
certified public accountants.
(d) RIGHT OF INSPECTION. The Administrative Agent and the
representatives of any other Secured Creditor shall upon reasonable
notice (made through the Administration Agent and no more frequently
than quarterly unless a Default or Event of Default shall have occurred
and be continuing)
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have full and free reasonable access to visit and inspect any of its
properties and examine and make abstracts from any of its books and
records at any reasonable time and as often as may reasonably be
requested upon reasonable notice, and to discuss the business, assets,
condition (financial or otherwise) or the results of operation of the
Company and its Subsidiaries with appropriate officers and employees
thereof and with their independent certified public accountants with
prior reasonable notice to, and coordination with, the chief financial
officer or the treasurer of the Company, and the Company agrees to
render to the Administrative Agent at the Company's cost and expense,
and to the other Secured Creditors, such clerical and other assistance
as may be reasonably requested with regard thereto. The Secured
Creditors shall keep such information thereby obtained confidential to
the extent set forth in subsection 12.6(f) of the Credit Agreement.
(e) COMPLIANCE WITH LAWS, ETC. The Company will comply in all
material respects with all Requirements of Law applicable to the
Collateral or any part thereof or to the operation of the Company's
business; PROVIDED that the Company may contest any Requirement of Law
in any reasonable manner which shall not, in the reasonable opinion of
the Administrative Agent, adversely affect the Secured Creditors'
rights or the priority of their Liens on the Collateral.
(f) COMPLIANCE WITH TERMS OF CONTRACTS, ETC. The Company will
perform and comply in all material respects with all its obligations
under the Contracts and all its other Contractual Obligations relating
to the Collateral.
(g) PAYMENT OF OBLIGATIONS. The Company will pay promptly when
due all material taxes, assessments and governmental charges or levies
imposed upon the Collateral or in respect of its income or profits
therefrom, as well as all claims of any kind (including, without
limitation, claims for labor, materials and supplies) against or with
respect to the Collateral, except that no such charge need be paid if
(i) the validity thereof is being contested in good faith by
appropriate proceedings, (ii) such proceedings do not involve any
material danger of the sale, forfeiture or loss of any of the
Collateral or any interest therein and (iii) such charge is adequately
reserved against on the Company's books in accordance with GAAP.
(h) LIMITATION ON LIENS ON COLLATERAL. The Company will not
create, incur or permit to exist, will take all commercially reasonable
actions to defend the Collateral against, and will take such other
commercially reasonable action as is necessary to remove, any Lien or
claim on or to the Collateral, other than the Liens created hereby and
other than as permitted pursuant to the Credit Agreement, and will take
all commercially reasonable
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actions to defend the right, title and interest of the Secured
Creditors in and to any of the Collateral against the claims and
demands of all Persons whomsoever.
(i) LIMITATIONS ON DISPOSITIONS OF COLLATERAL. The Company
will not sell, transfer, lease or otherwise dispose of any of the
Collateral, or attempt, offer or contract to do so except for sales of
assets permitted by the Credit Agreement. Concurrently with any such
permitted disposition, the property acquired by a transferee in such
disposition shall automatically be released from the security interest
created by this Security Agreement (the "SECURITY INTEREST"). It is
acknowledged and agreed that notwithstanding any release of property
from the Security Interest in accordance with the foregoing provisions
of this Section, the Security Interest shall in any event continue in
the Proceeds of Collateral. The Administrative Agent shall promptly
execute and deliver (and, when appropriate, shall cause any separate
agent, co-agent or trustee to execute and deliver) any releases,
instruments or documents reasonably requested by the Company to
accomplish or confirm the release of Collateral provided by this
Section. Any such release of Collateral provided by the Administrative
Agent shall specifically describe that portion of the Collateral to be
released, shall be expressed to be unconditional and shall be without
recourse or warranty (other than a warranty that the Administrative
Agent has not assigned its rights and interests to any other Person).
The Company shall pay all of the Administrative Agent's reasonable
expenses in connection with any release of Collateral.
(j) LIMITATIONS ON MODIFICATIONS, WAIVERS, EXTENSIONS OF
AGREEMENTS GIVING RISE TO ACCOUNTS. The Company will not (i) amend,
modify, terminate or waive any provision of any Contract, agreement or
lease giving rise to an Account or License in any manner which could
reasonably be expected to materially adversely affect the value of such
Contract, Account or License as Collateral, except in a manner
consistent with the ordinary and customary conduct of its business,
(ii) fail to exercise promptly and diligently each and every material
right which it may have under each material Contract, agreement or
lease giving rise to an Account or License (other than any right of
termination), except in a manner consistent with the ordinary and
customary conduct of its business or (iii) fail to deliver to the
Administrative Agent upon its reasonable request a copy of each
material demand, notice or document received by it relating in any way
to any material Contract, agreement or lease giving rise to an Account
or License.
(k) LIMITATIONS ON DISCOUNTS, COMPROMISES, EXTENSIONS OF
ACCOUNTS. Other than in the ordinary course of business as generally
conducted by the Company over a period of time, the Company will not
grant
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any extension of the time of payment of any of the Accounts,
compromise, compound or settle the same for less than the full amount
thereof, release, wholly or partially, any Person liable for the
payment thereof, or allow any credit or discount whatsoever thereon.
(l) MAINTENANCE OF EQUIPMENT. The Company will maintain each
item of Equipment in good operating condition, ordinary wear and tear
and immaterial impairments of value and damage by the elements
excepted, and will provide all maintenance, service and repairs
necessary for such purpose.
(m) FURTHER IDENTIFICATION OF COLLATERAL. The Company will
furnish to the Administrative Agent from time to time statements and
schedules further identifying and describing the Collateral and such
other reports in connection with the Collateral as the Administrative
Agent may reasonably request, all in reasonable detail.
(n) NOTICES. The Company will advise the Administrative Agent
and the Lenders promptly, in reasonable detail, at their respective
addresses set forth in the Credit Agreement, (i) of any Lien (other
than Liens created hereby or permitted under the Credit Agreement) on,
or claim asserted against, any of the Collateral and (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 Liens created hereunder.
(o) CHANGES IN LOCATIONS, NAME, ETC. The Company will not (i)
change the location of its chief executive office/chief place of
business from that specified in Section 4(g) or remove its books and
records from the location specified in Section 4(c), (ii) remove any
material amount of the Inventory or Equipment to, or keep any material
amount of Inventory or Equipment at, a location other than those listed
on Schedule IV hereto, or (iii) change its name (including the adoption
of any new trade name), identity or corporate structure to such an
extent that any financing statement filed by the Administrative Agent
in connection with this Security Agreement would become seriously
misleading, unless it shall have provided at least 15 days prior
written notice to the Administrative Agent of any such event and
provide the Administrative Agent with the new location of its chief
executive office/chief place of business and its books and records, the
location of the Inventory and Equipment and the change in the Company's
name, as the case may be. Any notice given pursuant to this Section
5(o) shall be deemed to amend Section 4(c) and 4(g) hereof or Schedule
IV hereto, as the case may be. In connection with any actions permitted
pursuant to clause (i) of this Section 5(o), the Administrative Agent
shall be entitled to receive any legal opinions it reasonably requests
as to the continued perfection of the security interest granted hereby
in the
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Collateral, which opinions shall be deemed satisfactory to the
Administrative Agent if substantially similar to the perfection
opinions given by Gibson, Dunn & Crutcher LLP on the Closing Date.
(p) COPYRIGHTS. The Company (i) will employ the Copyright for
each material published work with such notice of copyright as may be
required by law to secure copyright protection and (ii) will not do any
act or knowingly omit to do any act whereby any material Copyright may
become invalidated and:
(A) will not do any act, or omit to do any act,
whereby any material Copyright may become injected into the
public domain;
(B) shall notify the Administrative Agent immediately
if it knows, or has reason to know, that any material
Copyright may become injected into the public domain or of any
adverse determination or development (including, without
limitation, the institution of, or any such determination or
development in, any court or tribunal in the United States or
any other country) regarding the Company's ownership of any
such Copyright or its validity;
(C) will take all necessary steps as it shall deem
appropriate under the circumstances, to maintain and pursue
each application (and to obtain the relevant registration) and
to maintain each registration of each material Copyright owned
by the Company including, without limitation, filing of
applications for renewal, where necessary; and
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(D) will promptly notify the Administrative Agent of
any material infringement of any material Copyright of the
Company of which it becomes aware and will take such actions
as it shall reasonably deem appropriate under the
circumstances to protect such Copyright, including, where
appropriate, the bringing of suit for infringement, seeking
injunctive relief and seeking to recover any and all damages
for such infringement.
(q) PATENTS AND TRADEMARKS.
(i) The Company (either itself or through
licensees) will, except with respect to any Trademark that the
Company shall, after the exercise of reasonable business
judgment, reasonably determine is of immaterial economic value
to it or otherwise reasonably determines not to do so, (A) use
reasonable efforts to continue to use each Trademark on each
and every trademark class of goods applicable to its current
line as reflected in its current catalogs, brochures and price
lists in order to maintain such Trademark in full force free
from any claim of abandonment for non-use, (B) maintain as in
the past the quality of products and services offered under
such Trademark, (C) use reasonable efforts to employ such
Trademark with the appropriate notice of registration, (D) not
adopt or use any mark which is confusingly similar or a
colorable imitation of such Trademark unless within 45 days
after such use or adoption the Administrative Agent, for the
ratable benefit of the Secured Creditors, shall obtain a
perfected security interest in such mark pursuant to this
Security Agreement, and (E) not (and not permit any licensee
or sublicensee thereof to) do any act or knowingly omit to do
any act whereby any Trademark may become invalidated.
(ii) The Company will not, except with respect
to any Patent that the Company shall, after the exercise of
reasonable business judgment, determine is of immaterial
economic value to it or otherwise reasonably determine so to
do, do any act, or omit to do any act, whereby any Patent may
become abandoned or dedicated.
(iii) The Company will notify the Administrative
Agent immediately if it knows, or has reason to know, that any
application relating to any Patent, or any application or
registration relating to any Trademark may become abandoned or
dedicated, or of any adverse determination or material
development (including, without limitation, the institution
of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office or
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any court or tribunal in any country) regarding the Company's
ownership of any Patent or Trademark or its right to register
the same or to keep and maintain the same.
(iv) Whenever the Company, either by itself or
through any agent, employee, licensee or designee, shall file
an application for any Patent or for the registration of any
Trademark with the United States Patent and Trademark Office
or any similar office or agency in any other country or any
political subdivision thereof, the Company 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. Upon request of the Administrative Agent, the Company
shall execute and deliver any and all agreements, instruments,
documents, and papers as the Administrative Agent may request
to evidence the Administrative Agent's security interest in
any Patent or Trademark and the goodwill and general
intangibles of the Company relating thereto or represented
thereby, and the Company hereby appoints and constitutes the
Administrative Agent its attorney-in-fact to execute and file
all such writings for the foregoing purposes, all acts of such
attorney being hereby ratified and confirmed; such power being
coupled with an interest and is irrevocable until the
Obligations are paid in full, the Commitments are terminated
and no Letters of Credit are outstanding.
(v) The Company, except with respect to any
Patent or Trademark the Company shall, after the exercise of
reasonable business judgment, determine is of immaterial
economic value to it or it otherwise reasonably determines not
to so do and except with respect to any Trademark that is not
registrable, will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the
United States Patent and Trademark Office, or any similar
office or agency in any other country or any political
subdivision thereof, to maintain and pursue each application
(and to obtain the relevant registration or Patent) and to
maintain each Patent and each registration of Trademarks,
including, without limitation, filing of applications for
renewal, affidavits of use and affidavits of incontestability
when appropriate.
(vi) In the event that any Patent or Trademark
included in the Collateral is infringed, misappropriated or
diluted by a third party, the Company shall promptly notify
the Administrative Agent after it learns thereof and shall,
unless the Company shall, after the exercise of reasonable
business judgment determine that such Patent
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or Trademark is of immaterial economic value to the Company,
which determination the Company shall promptly report to the
Administrative Agent, promptly sue for infringement,
misappropriation or dilution, to seek injunctive relief where
appropriate and to recover any and all damages for such
infringement, misappropriation or dilution, or take such other
actions as the Company shall reasonably deem appropriate under
the circumstances to protect such Patent or Trademark.
6. ADMINISTRATIVE AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT.
(a) POWERS. The Company hereby irrevocably constitutes and
appoints the Administrative Agent and any officer or agent thereof,
with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place
and stead of the Company and in the name of the Company or in its own
name, from time to time after the occurrence, and during the
continuation, of an Event of Default for the purpose of carrying out
the terms of this Security Agreement, to take any and all appropriate
action and to execute any and all documents and instruments which may
be necessary or desirable to accomplish the purposes of this Security
Agreement, and, without limiting the generality of the foregoing, the
Company hereby gives the Administrative Agent the power and right, on
behalf of the Company, without notice to or assent by the Company, to
do the following:
(i) in the name of the Company or its own name,
or otherwise, to take possession of and indorse and collect
any checks, drafts, notes, acceptances or other instruments
for the payment of moneys due under any Account, Instrument,
License or General Intangible or with respect to any other
Collateral and to file any claim or to take any other action
or proceeding in any court of law or equity or otherwise
deemed appropriate by the Administrative Agent for the purpose
of collecting any and all such moneys due under any Account,
Instrument, License or General Intangible or with respect to
any other Collateral whenever payable;
(ii) to pay or discharge taxes and Liens levied or
placed on or threatened against the Collateral, PROVIDED that
if such taxes are being contested in good faith and by
appropriate proceedings, the Administrative Agent will consult
with the Company before making any such payment; and
(iii) (A) to direct any party liable for any
payment under any of the Collateral to make payment of any and
all moneys due
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or to become due thereunder directly to the Administrative
Agent or as the Administrative Agent shall direct; (B) to ask
or demand for, collect, receive payment of and receipt for,
any and all moneys, claims and other amounts due or to become
due at any time in respect of or arising out of any
Collateral; (C) to sign and indorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts,
drafts against debtors, assignments, verifications, notices
and other documents in connection with any of the Collateral;
(D) to commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any thereof and to
enforce any other right in respect of any Collateral; (E) to
defend any suit, action or proceeding brought against the
Company with respect to any Collateral; (F) to settle,
compromise or adjust any suit, action or proceeding described
in clause (E) above and, in connection therewith, to give such
discharges or releases as the Administrative Agent may deem
appropriate; (G) to assign any Patent or Trademark (along with
the goodwill of the business to which any such Trademark
pertains), throughout the world for such term or terms, on
such conditions, and in such manner, as the Administrative
Agent shall in its sole discretion determine; and (H)
generally, to sell, transfer, pledge and make any agreement
with respect to or otherwise deal with any of the Collateral
as fully and completely as though the Administrative Agent
were the absolute owner thereof for all purposes, and to do,
at the Administrative Agent's option and the Company's
expense, at any time, or from time to time, all acts and
things which the Administrative Agent reasonably deems
necessary to protect, preserve or realize upon the Collateral
and the Secured Creditors' Liens thereon and to effect the
intent of this Security Agreement, all as fully and
effectively as the Company might do.
The Company hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevocable.
(b) OTHER POWERS. (i) The Company also authorizes the
Administrative Agent, at any time and from time to time, to execute, in
connection with the sale provided for in Section 8 hereof, any
indorsement, assignments or other instruments of conveyance or transfer
with respect to the Collateral and (ii) pursuant to Section 9-402 of
the Code, the Company authorizes the Administrative Agent to file
financing statements with respect to the Collateral without the
signature of the Company in such form and in such filing offices as the
Administrative Agent reasonably determines appropriate to perfect the
security interests of the Administrative Agent under this
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Agreement. A carbon, photographic or other reproduction of this
Agreement shall be sufficient as a financing statement for filing in
any jurisdiction.
(c) NO DUTY ON AGENTS' OR SECURED CREDITORS' PART. The powers
conferred on the Co-Arrangers and the Lenders hereunder are solely to
protect the Secured Creditors' interests in the Collateral and shall
not impose any duty upon any Secured Creditor to exercise any such
powers. The Secured Creditors shall be accountable only for amounts
that they actually receive as a result of the exercise of such powers,
and neither they nor any of their officers, directors, employees or
agents shall be responsible to the Company for any act or failure to
act hereunder, except for their own gross negligence or willful
misconduct or failure to comply with mandatory provisions of applicable
law.
7. PERFORMANCE BY ADMINISTRATIVE AGENT OF COMPANY'S
OBLIGATIONS. If the Company fails to perform or comply with any of its
agreements contained herein and the Administrative Agent, as provided for by the
terms of this Security Agreement, shall itself perform or comply, or otherwise
cause performance or compliance, with such agreement, the expenses of the
Administrative Agent incurred in connection with such performance or compliance,
together with interest thereon at a rate per annum equal to 2% plus the
Alternate Base Rate, shall be payable by the Company to the Administrative Agent
on demand and shall constitute Obligations secured hereby; PROVIDED that the
Administrative Agent shall in any event first have given the Company written
notice of its intent to do the same and the Company shall not have, within 30
days of such notice (or such shorter period as the Administrative Agent may
reasonably determine is necessary in order to preserve the benefits of this
Security Agreement with respect to any material portion of the Collateral), paid
such claim or obtained to the Administrative Agent's satisfaction the release of
the claim or Lien to which such notice relates.
8. REMEDIES. (a) If an Event of Default shall occur and be
continuing, the Administrative Agent on behalf of the Secured Creditors may
exercise, in addition to all other rights and remedies granted to them in this
Security Agreement and in any other instrument or agreement securing, evidencing
or relating to the Obligations, all rights and remedies of a secured party under
the Code. Without limiting the generality of the foregoing, the Administrative
Agent, without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon the Company or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give
an option or options to purchase, or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do
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any of the foregoing), in one or more parcels at public or private sale or
sales, at any exchange, broker's board or office of any Secured Creditor or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. Any Secured Creditor shall have the right upon
any such public sale or sales, and, to the extent permitted by law, upon any
such private sale or sales, to purchase the whole or any part of the Collateral
so sold, free of any right or equity of redemption in the Company, which right
or equity is hereby waived and released. The Administrative Agent shall apply
the net proceeds of any such collection, recovery, receipt, appropriation,
realization or sale, after deducting all reasonable costs and expenses of every
kind incurred therein or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights of the Secured
Creditors hereunder, including, without limitation, reasonable attorneys' fees
and disbursements of counsel to the Administrative Agent:
(i) first, to any amounts owing to the Administrative Agent or
the Co-Arrangers in their capacities as such;
(ii) second, to the payment of an amount equal to the
outstanding Primary Obligations to the Secured Creditors as provided in
paragraph (e) below, with each Secured Creditor receiving an amount
equal to its outstanding Primary Obligations or, if the proceeds are
insufficient to pay in full all such Primary Obligations, its Pro Rata
Share (as defined below) of the amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) and (ii), to the
payment of an amount equal to the outstanding Secondary Obligations to
the Secured Creditors as provided in paragraph (e) below, with each
Secured Creditor receiving an amount equal to its outstanding Secondary
Obligations or, if the proceeds are insufficient to pay in full all
such Secondary Obligations, its Pro Rata Share of the amount remaining
to be distributed; and
(iv) fourth, to the extent proceeds remain after the
application pursuant to the preceding clauses (i), (ii) and (iii),
after the payment of any other amounts required by any provision of
law, including without limitation, Section 9-504(1)(c) of the Code, and
following the termination of this Agreement pursuant to Section 23
hereof, the Administrative Agent shall account for the surplus, if any,
to the Company.
(b) For purposes of this Agreement, (x) "Pro Rata Share" shall
mean, when calculating a Secured Creditor's portion of any distribution or
amount, that amount (expressed as a percentage) equal to a fraction the
numerator of which is
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the then unpaid amount of such Secured Creditor's Primary Obligations or
Secondary Obligations, as the case may be, and the denominator of which is the
then outstanding amount of all Primary Obligations or Secondary Obligations, as
the case may be, (y) "Primary Obligations" shall mean (i) in the case of the
Credit Agreement Obligations, all principal of, and interest on, all Loans, all
L/C Obligations, and all related fees and (ii) in the case of the Other
Obligations, all amounts due under the Interest Rate Agreements (other than
indemnities, fees (including, without limitation, attorneys' fees) and similar
obligations and liabilities) and (z) "Secondary Obligations" shall mean all
Obligations other than Primary Obligations.
(c) When payments to Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under this
Section 8 only) (i) first, to their Primary Obligations (with the amount to be
applied by any Secured Creditor to its Primary Obligations to be applied (x)
first, to interest and (y) second, to any other Primary Obligations) and (ii)
second, to their Secondary Obligations.
(d) Each of the Secured Creditors agrees and acknowledges that
if the Agents and the Lenders are to receive a distribution on account of
undrawn amounts with respect to Letters of Credit issued under the Credit
Agreement (which shall only occur after all outstanding Loans and unpaid
drawings with respect to such Letters of Credit have been paid in full), such
amounts shall be paid to the Administrative Agent under the Credit Agreement and
held by it, for the equal and ratable benefit of the Agents and the Lenders, as
cash security for the repayment of Obligations owing to the Agents and the
Lenders as such. If any amounts are held as cash security pursuant to the
immediately preceding sentence, then upon the termination of all outstanding
Letters of Credit, and after the application of all such cash security to the
repayment of all Obligations owing to the Agents and the Lenders after giving
effect to the termination of all such Letters of Credit, if there remains any
excess cash, such excess cash shall be distributed in accordance with subsection
8(a) hereof.
(e) Except as set forth in subsection 8(c) hereof, all
payments required to be made to the Agents and the Lenders hereunder shall be
made to the Administrative Agent under the Credit Agreement for the account of
the Agents and the Lenders and all payments required to be made to the Other
Creditors hereunder shall be made directly to the respective Other Creditor.
(f) For purposes of applying payments received in accordance
with this Section 8, the Administrative Agent shall be entitled to rely upon the
Other Creditors for a determination (which each Other Creditor agrees (or shall
agree) to provide upon request of the Administrative Agent) of the outstanding
Obligations
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owed to the Other Creditors. Unless it has actual knowledge (including by way of
written notice from any other Agent, any Lender or an Other Creditor) to the
contrary, the Administrative Agent shall be entitled to assume that (x) no
Secondary Obligations are owing to any other Agent, any Lender or Other Creditor
and (y) no Interest Rate Agreement or Other Obligations in respect thereof, are
in existence.
(g) It is understood that the Company shall remain liable to
the extent of any deficiency between the amount of the proceeds of the
Collateral and the aggregate amount of the sums referred to in clause (a) of
this Section 8.
(h) To the extent permitted by applicable law, the Company
waives all claims, damages and demands it may acquire against any Secured
Creditor arising out of the exercise by them of any rights hereunder, except to
the extent arising from the gross negligence or willful misconduct of such
Secured Creditor. If any notice of a proposed sale or other disposition of
Collateral shall be required by law, such notice shall be deemed reasonable and
proper if given at least 10 days before such sale or other disposition. The
Company shall remain liable for any deficiency if the proceeds of any sale or
other disposition of the Collateral are insufficient to pay the Obligations and
the fees and disbursements of any attorneys employed by any Secured Creditor to
collect such deficiency.
9. AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS. The
Company shall remain obligated hereunder, and the Collateral shall remain
subject to the Lien granted hereby notwithstanding that, without any reservation
of rights against the Company, and without notice to or further assent by the
Company, any demand for payment of any of the Obligations made by any Secured
Creditor may be rescinded by the Administrative Agent, any other Agent, the
Issuing Lender or any Lender, and any of the Obligations continued, and the
Obligations, or the liability of the Company or any other Person upon or for any
part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered, or released by the Administrative Agent, the Issuing Lender or any
Lender, and the Credit Agreement, the Notes, the other Credit Documents, any
Interest Rate Agreements and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Administrative Agent, any other Co-Arranger (subject to
subsection 12.16 of the Credit Agreement), the Issuing Lender, any Lender or any
Other Creditor may deem advisable from time to time, and any guarantee, right of
offset or other collateral security at any time held by the Administrative
Agent, the Issuing Lender or any Lender for the payment of the Obligations may
be sold, exchanged, waived, surrendered or released. None of the Secured
Creditors shall have any obligation to protect, secure, perfect or insure this
or any other Lien at any time held by it as security for the Obligations or any
property subject thereto.
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The Company waives any and all notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of reliance by the
Secured Creditors upon this Security Agreement; the Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred
in reliance upon this Security Agreement; and all dealings between the Company
and the Administrative Agent, any other Agent, the Issuing Lender or any Lender,
shall likewise be conclusively presumed to have been had or consummated in
reliance upon this Security Agreement. The Company waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Company with respect to the Obligations.
10. LIMITATION ON DUTIES REGARDING PRESERVATION OF COLLATERAL.
The Administrative Agent's sole duty with respect to the custody, safekeeping
and physical preservation of the Collateral in its possession, under Section
9-207 of the Code or otherwise, shall be to deal with it in the same manner as
the Administrative Agent deals with similar property for its own account. No
Secured Creditor nor any of their respective directors, officers, employees or
agents shall be liable for failure to demand, collect or realize upon all or any
part of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
the Company or otherwise.
11. DELEGATION OF DUTIES. The Administrative Agent may execute
any of its duties under this Security Agreement 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 agents or attorneys-in-fact
selected by it with reasonable care, except as otherwise provided in subsection
11.3 of the Credit Agreement.
12. POWERS COUPLED WITH AN INTEREST. All authorizations and
agencies herein contained with respect to the Collateral are irrevocable and
powers coupled with an interest.
13. SEVERABILITY. Any provision of this Security 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. SECTION HEADINGS. The section headings used in this
Security Agreement are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the interpretation
hereof.
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15. NO WAIVER; CUMULATIVE REMEDIES. No Secured Creditor shall
by any act (except by a written instrument pursuant to Section 16 hereof),
delay, indulgence, omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Default or Event of Default or in
any breach of any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of any Secured Creditor, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by any Secured Creditor of any right or remedy hereunder on
any one occasion shall not be construed as a bar to any right or remedy which
any Secured Creditor would otherwise have on any future occasion. The rights and
remedies herein provided are cumulative, may be exercised singly or concurrently
and are not exclusive of any rights or remedies provided by law.
16. INTEGRATION; WAIVERS AND AMENDMENTS; SUCCESSORS AND
ASSIGNS; GOVERNING LAW. This Security Agreement represents the entire agreement
of the Company with respect to the subject matter hereof, except as otherwise
set forth in the Credit Agreement, and there are no promises or representations
by any Secured Creditor relative to the subject matter hereof not reflected
herein or in the other Credit Documents. In the event of a conflict among the
Credit Documents, the Credit Agreement shall control. None of the terms or
provisions of this Security Agreement may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by the Company and
the Administrative Agent (with the consent of either (x) the Required Lenders
or, to the extent required by subsection 12.1 of the Credit Agreement, the
Supermajority Lenders or all of the Lenders, at all times prior to the time on
which all Credit Agreement Obligations have been paid in full or (y) the holders
of at least a majority of the outstanding Other Obligations at all times after
the time on which all Credit Agreement Obligations have been paid in full);
PROVIDED, that any change, waiver, modification or variance affecting the rights
and benefits of a single Class of Secured Creditors (and not all Secured
Creditors in a like or similar manner) shall also require the written consent of
the Requisite Creditors of such Class of Secured Creditors. For the purpose of
this Agreement, the term "Class" shall mean each class of Secured Creditors,
I.E., whether (x) the Agents and the Lenders as holders of the Credit Agreement
Obligations or (y) the Other Creditors as the holders of the Other Obligations.
For the purpose of this Agreement, the term "Requisite Creditors" of any Class
shall mean each of (x) with respect to the Credit Agreement Obligations, the
Required Lenders and (y) with respect to the Other Obligations, the holders of
at least a majority of all obligations outstanding from time to time under the
Interest Rate Agreements; PROVIDED that, subject to the immediately preceding
proviso, any provision of this Security Agreement may be waived by the
Administrative Agent in a written letter or agreement executed by the
Administrative Agent or by telex or facsimile transmission from the
Administrative Agent. This
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Security Agreement shall be binding upon the successors and assigns of the
Company and shall inure to the benefit of the Secured Creditors and their
respective successors and assigns. Subject to the representation set forth in
subsection 4(j) hereof, the inclusion of copyrights, trademarks, patents or
licenses thereto on Schedules I, II and III to the Company Security Agreement
and the Subsidiary Security Agreement and Schedule 6.16 to the Credit Agreement
shall not constitute a representation by the Company or any of its Subsidiaries
that any particular such copyright, trademark, patent or license thereto is
material. THIS SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
17. NOTICES. All notices, requests and demands to or upon the
Company or any Secured Creditor to be effective shall be in writing or by
telecopy or telex and unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when delivered by hand, or, in the case
of mail, three days after deposit in the postal system, first class postage
prepaid, or, in the case of telecopy notice, when sent, or, in the case of telex
notice, when sent, answerback received, addressed to a party at the address
provided for such party in the Credit Agreement.
18. COUNTERPARTS. This Security Agreement may be executed
by one or more of the parties hereto on any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument.
19. AUTHORITY OF ADMINISTRATIVE AGENT. The Company
acknowledges that the rights and responsibilities of the Administrative Agent
under this Security Agreement with respect to any action taken by the
Administrative Agent or the exercise or non-exercise by the Administrative Agent
of any option, right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Security Agreement shall, as between
the Administrative Agent, the other Agents and the Lenders, be governed by the
Credit Agreement and by such other agreements with respect thereto as may exist
from time to time among them, but, as between the Administrative Agent and the
Company, the Administrative Agent shall be conclusively presumed to be acting as
agent for the Secured Creditors with full and valid authority so to act or
refrain from acting, and the Company shall not be under any obligation, or
entitlement, to make any inquiry respecting such authority.
20. RELEASES. The Secured Creditors agree to cooperate with
the Company and its Subsidiaries with respect to any sale permitted by
subsection 9.5 of the Credit Agreement and promptly take such action and execute
and deliver such instruments and documents necessary to release the Liens and
security interests created hereby relating to any of the assets or property
affected by any sale permitted by subsection 9.5 of the Credit Agreement
including, without limitation, any
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necessary Uniform Commercial Code amendment, termination or partial termination
statement.
21. TERMINATION; RELEASE. (a) This Security Agreement (other
than with respect to any cash collateral securing any outstanding Letter of
Credit) shall terminate when all the Obligations have been paid in full, the
Commitments have been terminated and either no Letters of Credit are outstanding
or each outstanding Letter of Credit has been cash collateralized so that it is
fully secured to the satisfaction of the Administrative Agent. Upon such
termination, the Administrative Agent shall reassign and redeliver (or cause to
be reassigned and redelivered) to the Company, or to such person or persons as
the Company shall designate, or to whomever may be lawfully entitled to receive
such surplus, against receipt, such of the Collateral (if any) (other than with
respect to any cash collateral securing any outstanding Letter of Credit) as
shall not have been sold or otherwise applied by the Administrative Agent
pursuant to the terms hereof and shall still be held by it hereunder, together
with appropriate instruments or reassignment and release. Any such reassignment
and release shall be without recourse upon or warranty by the Administrative
Agent (other than a warranty that the Administrative Agent has not
assigned its rights and interests hereunder to any Person) and at the expense of
the Company.
(b) In the event that any part of the Collateral is sold
(except to Holdings or any of its Subsidiaries) in connection with a sale
permitted by subsection 9.5 of the Credit Agreement or otherwise released at the
direction of the Required Lenders (or all Lenders if required by subsection 12.1
of the Credit Agreement) and the proceeds of such sale or sales or from such
release are applied in accordance with the provisions of subsection 5.4 of the
Credit Agreement, to the extent required to be so applied, such Collateral will
be sold free and clear of the Liens created by this Agreement and the
Administrative Agent, at the request and expense of the Company, will duly
assign, transfer and deliver to the Company (without recourse and without any
representation or warranty) such of the Collateral as is then being (or has
been) so sold or released and has not theretofore been released pursuant to this
Agreement and will promptly execute and deliver to the Company a proper
instrument or instruments (including UCC termination statements on form UCC-3)
acknowledging the release of such Collateral pursuant to this Agreement.
(c) At any time that the Company desires that the
Administrative Agent take any action to acknowledge or give effect to any
release of Collateral pursuant to the foregoing subsection 21(a) or (b), as the
case may be, it shall deliver to the Administrative Agent, if requested by the
Administrative Agent, a certificate signed by an executive officer of the
Company stating that the release of the respective Collateral is permitted
pursuant to such subsection 21(a) or (b), as the case may be.
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IN WITNESS WHEREOF, the Company and the Administrative Agent
have caused this Security Agreement to be duly executed and delivered as of the
date first above written.
WERNER HOLDING CO. (DE), INC.
By:
----------------------------------
Title:
BANKERS TRUST COMPANY, as
Administrative Agent
By:
---------------------------------
Title:
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Schedule I to
SECURITY AGREEMENT
------------------
Copyrights And Copyright Licenses
---------------------------------
[SEE SCHEDULE 6.16 TO THE CREDIT AGREEMENT]
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217
Schedule II to
Security Agreement
------------------
Patents And Patent Licenses
---------------------------
[SEE SCHEDULE 6.16 TO THE CREDIT AGREEMENT]
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Schedule III to
Security Agreement
------------------
Trademarks And Trademark Licenses
---------------------------------
[SEE SCHEDULE 6.16 TO THE CREDIT AGREEMENT]
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Schedule IV to
Security Agreement
------------------
Locations of Inventory and Equipment Locations
----------------------------------------------
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EXHIBIT F-2 TO
Credit Agreement
----------------
FORM OF
SUBSIDIARY SECURITY AGREEMENT
-----------------------------
SECURITY AGREEMENT, dated as of November 24, 1997, made by each of the
corporations that are signatories hereto (the "ASSIGNORS") in favor of BANKERS
TRUST COMPANY, as administrative agent (in such capacity, the "ADMINISTRATIVE
AGENT") for the Agents and for the several lenders (the "Lenders") from time to
time parties to the Credit Agreement (as defined below) and for the benefit of
the other Secured Creditors referred to below.
W I T N E S S E T H :
WHEREAS, pursuant to a Credit Agreement, dated as of the date
hereof (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Werner Holding Co. (DE), Inc. (the "Company"), the
Lenders, Bankers Trust Company, as Administrative Agent and Co-Arranger, Merrill
Lynch Capital Corporation, as Syndication Agent and Co-Arranger, The Chase
Manhattan Bank, as Documentation Agent, and Goldman Sachs Credit Partners L.P.,
as Co-Agent (together with the Administrative Agent, Syndication Agent and
Documentation Agent, the "AGENTS"), the Lenders have severally agreed to make
loans to, and the Issuing Lender (as defined in the Credit Agreement) has agreed
to issue, and certain of the other Lenders have agreed to participate in,
letters of credit for the account of, the Company upon the terms and subject to
the conditions set forth therein; and
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective loans to, and the obligation of the Issuing
Lender to issue and the Lenders to participate in letters of credit for the
account of, the Company under the Credit Agreement that the Assignors shall have
executed and delivered this Security Agreement to the Administrative Agent for
the ratable benefit of the Agents and the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent, the other Agents and the Lenders to enter into the
Credit
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Agreement and to make their respective loans to, and to issue or participate in
letters of credit for the account of, the Company under the Credit Agreement,
each Assignor hereby agrees with the Administrative Agent, for the ratable
benefit of the Secured Creditors, as follows:
1. DEFINED TERMS. Unless otherwise defined herein or in the
preamble or recitals hereto, terms which are defined in the Credit Agreement and
used herein are so used as so defined; the following terms which are defined in
the Uniform Commercial Code in effect in the State of New York on the date
hereof are used herein as so defined: Chattel Paper, Farm Products, Documents,
Goods and Inventory; and the following terms shall have the following meanings:
"ACCOUNTS" means all accounts receivable other than any
Receivables Facility Assets, book debts, notes, drafts, instruments,
documents, acceptances and other forms of obligations now owned or
hereafter received or acquired by or belonging or owing to any Assignor
(including under any trade names, styles or divisions thereof) whether
arising out of personal property owned or leased by it, Goods sold by
it or services rendered by it or from any other transaction, whether or
not the same involves the lease of personal property, sale of Goods or
performance of services by such Assignor (including, without
limitation, any such obligation which would be characterized as an
account, general intangible or chattel paper under the Code) and all of
such Assignor's rights in, to and under all purchase orders now owned
or hereafter received or acquired by it for Goods or services, and all
of such Assignor's rights to any Goods represented by any of the
foregoing (including returned or repossessed Goods and unpaid seller's
rights) and all moneys due or to become due to such Assignor under all
contracts for the sale of Goods and/or the performance of services by
it (whether or not yet earned by performance), under any lease of real
or personal property (to the extent the grant of such a security
interest is permitted by applicable law and is not prohibited by such
lease), or under any franchise agreement, or in connection with any
other transaction, now in existence or hereafter arising, including
without limitation the right to receive the proceeds of said purchase
orders and contracts and rents under such leases, and all collateral
security and guarantees of any kind given by any Person with respect to
any of the foregoing.
"CODE" means the Uniform Commercial Code as from time to time
in effect in the State of New York.
"COLLATERAL" has the meaning assigned to it in Section 2 of
this Security Agreement.
"CONTRACT" means, with respect to an Account, any agreement
relating to the terms of payment or the terms of performance thereof,
including, without
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limitation, (a) all rights of each Assignor to receive moneys due and
to become due to it thereunder or in connection therewith, (b) all
rights of each Assignor to damages arising out of, or for, breach or
default in respect thereof and (c) all rights of each Assignor to
perform and to exercise all remedies thereunder.
"COPYRIGHT LICENSE" means any written agreement, naming any
Assignor, as licensor or licensee, granting any right in the United
States to use any Copyright including, without limitation, any referred
to in Schedule I hereto.
"COPYRIGHTS" means all of the following to the extent any
Assignor now or hereafter has any right, title or interest: (a) all
United States copyrights and all registrations and applications
therefor, including, without limitation, any referred to in Schedule I
hereto, and (b) all renewals of such copyrights.
"CREDIT AGREEMENT OBLIGATIONS" has the meaning assigned that
term in the definition of "Obligations" contained herein.
"EQUIPMENT" means all machinery, equipment and furniture
except Vehicles, now owned or hereafter acquired by each Assignor or in
which each Assignor now has or hereafter may acquire any right, title
or interest and any and all additions, substitutions and replacements
thereof, wherever located, together with all attachments, components,
parts, equipment and accessories installed therein or affixed thereto,
including, but not limited to, all equipment as defined in Section
9-109(2) of the Code.
"GENERAL INTANGIBLES" has the meaning given to it in the Code
and includes, whether or not so included in such meaning, any franchise
agreements or rights in favor of or granted by each Assignor to
know-how, trade secrets, product or service development ideas and
designs, advertising commercials, renderings, strategies and plans,
blueprints, architectural drawings, site location, personnel and
franchisee information, proprietary information, computer and software
technology and programs, contracts with distributors, and any similar
items, all interest rate, foreign currency or similar agreements and
general intangibles attributable to the Capital Stock held by each
Assignor.
"INSTRUMENT" has the meaning given to it in the Code, except
that it shall not include the Pledged Notes and the Undelivered Notes
(as each such term is defined in each of the Pledge Agreements).
"LICENSE" means any Copyright License, Patent License or
Trademark License.
"OBLIGATIONS" means (i) the collective reference to the unpaid
principal of
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and interest on the Notes and all other obligations and liabilities of
each Assignor to the Administrative Agent, the other Agents and the
Lenders (including, without limitation, interest accruing at the then
applicable rate provided in the Credit Agreement after the maturity of
the Loans and interest accruing at the then applicable rate provided in
the Credit Agreement after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding,
relating to such Assignor, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), whether direct
or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in
connection with, the Credit Agreement, the Notes, this Security
Agreement, the other Credit Documents or any other document made,
delivered or given in connection therewith, in each case whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Administrative
Agent, the other Agents or to the Lenders that are required to be paid
by each Assignor pursuant to the terms of the Credit Agreement or this
Agreement or any other Credit Document) (collectively, "CREDIT
AGREEMENT OBLIGATIONS" and (ii) all obligations of the Company to any
Lender or Lenders or its or their Affiliates (each such Lender or
Affiliate, even if the respective Lender subsequently ceases to be a
lender under the Credit Agreement for any reason, together with such
Lender's or Affiliate's successors and assigns, collectively, the
"Other Creditors" and, together with the Administrative Agent, the
Agents and the Lenders, the "Secured Creditors") under or in respect of
any Interest Rate Agreement, and all guarantees by any Assignor
(collectively, "OTHER OBLIGATIONS").
"OTHER OBLIGATIONS" has the meaning assigned that term in the
definition of "Obligations" contained herein.
"PATENT LICENSE" means any agreement, whether written or oral,
providing for the grant by or to each Assignor of any right to
manufacture, use,
sell or import into any jurisdiction any invention covered by a Patent,
including, without limitation, any thereof referred to in Schedule II
hereto.
"PATENTS" means (a) all letters patent of the United States or
any other country and all reissues and extensions thereof, including,
without limitation, any thereof referred to in Schedule II hereto, and
(b) all applications for letters patent of the United States and all
divisions, continuations and continuations-in-part thereof or any
other country, including, without limitation, any thereof referred to
in Schedule II hereto.
"PROCEEDS" means "proceeds", as such term is defined in
Section 9- 306(1) of the Code and, to the extent not included in such
definition, shall include,
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without limitation, (a) any and all proceeds of any insurance,
indemnity, warranty, guaranty or letter of credit payable to each
Assignor, from time to time with respect to any of the Collateral, (b)
all payments (in any form whatsoever) paid or payable to each Assignor
from time to time in connection with any taking of all or any part of
the Collateral by any Governmental Authority or any Person acting under
color of Governmental Authority, (c) all judgments in favor of each
Assignor in respect of the Collateral and (d) all other amounts from
time to time paid or payable or received or receivable under or in
connection with any of the Collateral.
"SECURED CREDITORS" has the meaning assigned that term in the
definition of "Obligations" contained herein.
"SECURED OBLIGATIONS": the collective reference to (a) the
Obligations and (b) all obligations and liabilities of each Assignor
which may arise under or in connection with this Agreement or any other
Credit Document to which such Assignor is a party, whether on account
of reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and disbursements of
counsel to the Administrative Agent, any other Agent or to the Lenders
that are required to be paid by such Assignor pursuant to the terms of
this Security Agreement or any other Credit Document to which such
Assignor is a party).
"SECURITY AGREEMENT" means this Security Agreement, as
amended, supplemented or otherwise modified from time to time.
"TRADEMARK LICENSE" means any agreement, written or oral,
providing for the grant by or to any Assignor of any right to use any
Trademark, including, without limitation, any thereof referred to in
Schedule III hereto.
"TRADEMARKS" means (a) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade
styles, service marks, logos and other source of business identifiers,
and the goodwill associated therewith, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and all
applications in connection therewith, whether in the United States
Patent and Trademark Office or in any similar office or agency of the
United States, any state thereof or any other country or any political
subdivision thereof, or otherwise, including, without limitation, any
thereof referred to in Schedule III hereto, and (b) all renewals
thereof.
"VEHICLES" means all cars, trucks, trailers and other vehicles
(including forklifts) covered by a certificate of title law of any
state.
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2. GRANT OF SECURITY INTEREST. (a) As collateral security for
the prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations, each Assignor hereby
grants to the Administrative Agent for the ratable benefit of the Secured
Creditors a security interest in all of the following property now owned or at
any time hereafter acquired by such Assignor or in which such Assignor now has
or at any time in the future may acquire any right, title or interest,
excluding, however, Vehicles, and Receivables Facility Assets and Pledged Notes
(as defined in the Holdings/Subsidiary Pledge Agreement) (collectively, the
"COLLATERAL"):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Contracts;
(iv) all Copyrights;
(v) all Copyright Licenses;
(vi) all Documents;
(vii) all Equipment;
(viii) all General Intangibles;
(ix) all Instruments;
(x) all Inventory;
(xi) all Patents;
(xii) all Patent Licenses;
(xiii) all Trademarks;
(xiv) all Trademark Licenses;
(xv) all books and records pertaining to the
Collateral;
(xvi) all other Goods and personal property, whether
tangible or intangible and whether now or
hereafter owned by such Assignor, and wherever
located; and
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(xvii) to the extent not otherwise included, all
Proceeds and products of any and all of the
foregoing and all collateral security and
guarantees given by any Person with respect to
any of the foregoing.
3. RIGHTS OF SECURED CREDITORS; LIMITATIONS ON SECURED
CREDITORS OBLIGATIONS.
(a) EACH ASSIGNOR REMAINS LIABLE UNDER ACCOUNTS, LICENSES,
CONTRACTS, ETC. Anything herein to the contrary notwithstanding, each
Assignor shall remain liable under each of the Accounts, Licenses and
Contracts to observe and perform all the material conditions and
obligations to be observed and performed by it thereunder, all in
accordance with the terms of any agreement giving rise to each such
Account, License or Contract. None of the Secured Creditors shall have
any obligation or liability under any Account, License or Contract by
reason of or arising out of this Security Agreement or the receipt by
any Secured Creditor of any payment relating to such Account, License
or Contract pursuant hereto, nor shall any Secured Creditor be
obligated in any manner to perform any of the obligations of any
Assignor under or pursuant to any Account, License or Contract, to make
any payment, to make any inquiry as to the nature or the sufficiency of
any payment received by it or as to the sufficiency of any performance
by any party under any Account, License or Contract, to present or file
any claim, to take any action to enforce any performance or to collect
the payment of any amounts which may have been assigned to it or to
which it may be entitled at any time or times.
(b) NOTICE TO ACCOUNT DEBTORS AND CONTRACTING PARTIES. At any
time after an Event of Default has occurred and so long as such Event
of Default shall be continuing, upon the request of the Administrative
Agent such Assignor shall, and the Administrative Agent may (with
concurrent notice to such Assignor thereof), notify account debtors on
the Accounts and parties to the Contracts and Licenses that the
Accounts, Contracts and Licenses have been assigned to the
Administrative Agent for the ratable benefit of the Secured Creditors
and that payments in respect thereof shall be made directly to the
Administrative Agent. At any time after an Event of Default shall have
occurred and be continuing, the Administrative Agent may in its own
name or in the name of others communicate with account debtors on the
Accounts and parties to the Contracts and Licenses to verify with them
to its satisfaction the existence, amount and terms thereof.
(c) VERIFICATION OF ACCOUNTS AND INVENTORY. The
Administrative Agent shall have the right to make test verifications of
the Accounts and Inventory in any reasonable manner and through any
medium that
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it considers advisable, and each Assignor agrees to furnish all such
assistance and information as the Administrative Agent may reasonably
require in connection therewith provided that, so long as no Event of
Default shall have occurred and be continuing, (i) any such
verification shall be conducted in the name of the Company or of such
Assignor or in such other manner as shall not disclose the
Administrative Agent's identity or interest in the Collateral and (ii)
the Administrative Agent shall conduct such verification with respect
to any Assignor no more frequently than once per year and shall give
the Company reasonable advance notice thereof. The Administrative Agent
may after the occurrence and during the continuance of an Event of
Default in its own name or in the name of others communicate with
account debtors in order to verify with them to the Administrative
Agent's satisfaction the existence, amount and terms of any Accounts
and/or Inventory.
4. REPRESENTATIONS AND WARRANTIES. Each Assignor hereby
represents and warrants that:
(a) POWER AND AUTHORITY. Each Assignor has the corporate power
and authority and the legal right to execute and deliver, to perform
its obligations under, and to grant the security interest in the
Collateral pursuant to, this Agreement and has taken all necessary
corporate actions to authorize its execution, delivery and performance
of, and grant of the security interest in the Collateral pursuant to,
this Security Agreement.
(b) TITLE; NO OTHER LIENS. Except for the Lien granted to the
Administrative Agent for the ratable benefit of the Secured Creditors
pursuant to this Security Agreement and the other Liens permitted to
exist on the Collateral pursuant to the Credit Agreement, each Assignor
owns each item of the Collateral free and clear of any and all Liens.
No security agreement, 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 (i) such as may have been filed in favor of
the Administrative Agent, for the ratable benefit of the Secured
Creditors, pursuant to this Security Agreement, or (ii) as may be
permitted pursuant to the Credit Agreement.
(c) PERFECTED FIRST PRIORITY LIENS. The Liens granted pursuant
to this Security Agreement constitute perfected Liens on the Collateral
in favor of the Administrative Agent, for the ratable benefit of the
Secured Creditors, to the extent that (i) such Liens constitute Liens
on General Intangibles, or (ii) such Liens constitute Liens on
Equipment located in a jurisdiction listed on Schedule IV, (iii) such
Liens can be perfected by filing a financing statement under the
Uniform Commercial Code, as in effect in the relevant jurisdiction, or
(iv) any Assignor is required to deliver such Collateral to the
Administrative Agent
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pursuant to Section 5(a) hereof, which are prior to all other Liens on
the Collateral created by such Assignor and in existence on the date
hereof, except for Liens permitted to exist on the Collateral pursuant
to the Credit Agreement, and which are enforceable as such against all
creditors of and purchasers from such Assignor.
(d) ACCOUNTS AND RECORDS. The amount represented by each
Assignor to the Administrative Agent from time to time as owing by each
account debtor or by all account debtors in respect of the Accounts
will at such time be the correct amount actually owing by such account
debtor or debtors thereunder in all material respects, subject to
adjustments in the ordinary course of business. No amount payable to
such Assignor under or in connection with any Account, Contract or
License in excess of $250,000 individually or $1,000,000 in the
aggregate is evidenced by any Instrument or Chattel Paper which has not
been delivered to the Administrative Agent except for notes receivable
from officers or key employees pursuant to executive stock purchase
plans. The place where each Assignor keeps its records concerning the
Accounts and the other Collateral is located at the address listed on
Schedule V hereto.
(e) CONSENTS. Each Contract and License is in full force and
effect and, to the best knowledge of each Assignor, constitutes a valid
and legally enforceable obligation of the other obligor in respect
thereof or parties thereto, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally. No consent or
authorization of, filing with or other act by or in respect of any
Governmental Authority is required in connection with the execution,
delivery, performance, validity or enforceability of any of the
Accounts, Licenses or Contracts by any party thereto other than those
which have been duly obtained, made or performed, are in full force and
effect and do not subject the scope of any such Account, License or
Contract to any material adverse limitation, either specific or general
in nature. No Assignor (to the best of such Assignor's knowledge) and
no other party to any Account, License or Contract is in default in the
performance or observance of any of the material terms thereof. Each
Assignor has fully performed all its material obligations under each
License and Contract to the extent such obligations are required to be
performed on or prior to the date hereof. The right, title and interest
of such Assignor in, to and under each Account, License and Contract
are not subject to any defense, offset, counterclaim or claim which
would materially adversely affect the value of such Account, License or
Contract as Collateral, nor have any of the foregoing been asserted or
alleged against such Assignor as to any of the foregoing.
(f) INVENTORY. The Inventory is kept at the locations listed
on
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Schedule IV hereto, as amended or supplemented from time to time
pursuant to Section 5(o) hereof.
(g) EQUIPMENT. The Equipment is kept at the locations listed
on Schedule IV hereto, as amended or supplemented from time to time
pursuant to Section 5(o) hereof.
(h) CHIEF EXECUTIVE OFFICE. Each Assignor's chief executive
office and chief place of business is located at the address listed on
Schedule V hereto.
(i) FARM PRODUCTS. None of the Collateral constitutes, or is
the Proceeds of, Farm Products.
(j) PATENTS, TRADEMARKS AND COPYRIGHTS. Schedule II hereto
includes a complete and current list of all material Patents and Patent
Licenses owned by each Assignor in its own name as of the date hereof.
Schedule III hereto includes a complete and current list of all
material Trademarks and Trademark Licenses owned by each Assignor in
its own name as of the date hereof. Schedule I hereto includes a
complete and current list of all material Copyrights in which each
Assignor owns or purports to own as of the date hereof. Except
as set forth on Schedule II or Schedule III, each Patent and Trademark
is valid, subsisting, unexpired and enforceable and has not been
abandoned. Except as set forth on Schedule III, none of such Patents
and Trademarks is the subject of any licensing or franchise agreement.
All licenses of each Assignor's Trademarks are in force and, to the
best knowledge of such Assignor, not in default. No holding, decision
or judgment has been rendered by any Governmental Authority with
respect to any Patent or Trademark which would limit, cancel or
question the validity of any Patent or Trademark. Except as set forth
on Schedule II or Schedule III, no action or proceeding is pending or,
to the knowledge of such Assignor, threatened (i) seeking to limit,
cancel or question the validity of any material Patent or Trademark or
such Assignor's ownership thereof, or (ii) which, if adversely
determined, would have a material adverse effect on the value of any
material Patent or Trademark.
(k) POWER AND AUTHORITY; AUTHORIZATION. Each Assignor has the
corporate power and authority and the right to execute and deliver, to
perform its obligations under, and to grant the Lien on the Collateral
pursuant to, this Security Agreement and has taken all necessary
corporate action to authorize its execution, delivery and performance
of, and grant of the Lien on the Collateral pursuant to, this Security
Agreement.
(l) NO LITIGATION. No litigation, investigation or proceeding
of or before any arbitrator or Governmental Authority is pending or, to
the knowledge
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of any Assignor, threatened by or against such Assignor or against any
of its properties or revenues with respect to this Security Agreement
or any of the transactions contemplated hereby which would have a
material adverse effect upon any material portion of the Collateral or
the granting of the security interests hereby.
5. COVENANTS. Each Assignor covenants and agrees with the
Secured Creditors that, from and after the date of this Security Agreement until
the Obligations are paid in full, the Commitments are terminated and either no
Letters of Credit are outstanding or each outstanding Letter of Credit has been
cash collateralized so that it is fully secured to the satisfaction of the
Administrative Agent:
(a) FURTHER DOCUMENTATION; PLEDGE OF INSTRUMENTS AND CHATTEL
PAPER. (i) At any time and from time to time, upon the written request
of the Administrative Agent, and at the sole expense of such Assignor,
any Assignor will promptly and duly execute and deliver such further
instruments and documents and take such further action as the
Administrative Agent may reasonably request for the purpose of
obtaining or preserving the full benefits of this Security Agreement
and of the rights and powers herein granted, including, without
limitation, the filing of any financing or continuation statements
under the Uniform Commercial Code in effect in any jurisdiction with
respect to the Liens created hereby. Each Assignor also hereby
authorizes the Administrative Agent to file (after written notice to
such Assignor) any such financing or continuation statement without the
signature of such Assignor to the extent permitted by applicable law. A
carbon, photographic or other reproduction of this Security Agreement
shall be sufficient as a financing statement for filing in any
jurisdiction.
(ii) If any amounts payable under or in connection with any of
the Collateral having a face value in excess of $250,000 individually
or $1,000,000 in the aggregate at any one time outstanding shall be or
become evidenced by any Instruments or Chattel Paper, such Instruments
or Chattel Paper shall be immediately delivered to the Administrative
Agent, duly endorsed in a manner satisfactory to the Administrative
Agent, to be held as Collateral pursuant to this Security Agreement. So
long as no Default or Event of Default has occurred and is continuing,
upon request by any Assignor, the Administrative Agent shall make
available any pledged Collateral to such Assignor, or its designee,
that such Assignor specifies is required for the purpose of ultimate
sale, exchange, presentation, collection, renewal, registration or
transfer thereof, PROVIDED that in each case arrangements reasonably
satisfactory to the Administrative Agent shall be made for the return
of such pledged Collateral within 21 days from the time of delivery by
the Administrative Agent, except for pledged Collateral that has been
fully repaid, satisfied, or transferred as permitted hereunder.
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(iii) Notwithstanding anything set forth in this Security
Agreement to the contrary, so long as no Default or Event of Default
has occurred and is continuing, no Assignor shall be required to
deliver to the Administrative Agent any Instruments or Chattel Paper to
be held by the Administrative Agent as Collateral pursuant to this
Security Agreement so long as the aggregate amount evidenced by all
such Instruments and Chattel Paper does not exceed $250,000
individually or $1,000,000 in the aggregate at any one time
outstanding.
(b) INDEMNIFICATION. Each Assignor agrees to pay, and to save
the Secured Creditors harmless from, any and all liabilities, costs and
expenses (including, without limitation, reasonable legal fees and
expenses) (i) with respect to, or resulting from, any delay in paying,
any and all excise, sales or other taxes which may be payable or
determined to be payable with respect to any of the Collateral, (ii)
with respect to, or resulting from, any delay by such Assignor in
complying with any Requirement of Law applicable to any of the
Collateral or (iii) in connection with any of the transactions
contemplated by this Security Agreement; PROVIDED that no Assignor
shall be liable for the payment of any portion of such liabilities,
costs or expenses resulting from the gross negligence or willful
misconduct of the any Secured Creditor. Without limiting the preceding
sentence, each Assignor will indemnify and save and keep harmless the
each Secured Creditor from and against all expense, loss or damage
suffered by reason of any counterclaim of the account debtor or obligor
thereunder, arising out of a breach by such Assignor of any obligation
thereunder or arising out of any other agreement, indebtedness or
liability at any time owing to or in favor of such account debtor or
obligor or its successors from such Assignor.
(c) MAINTENANCE OF RECORDS. Each Assignor will keep and
maintain at its own cost and expense satisfactory and complete records
of the Collateral, including, without limitation, a record of all
payments received and all credits granted with respect to the Accounts,
Contracts and Licenses. Each Assignor will mark its internal books and
records pertaining to the Collateral to evidence this Security
Agreement and the security interests granted hereby. For the Secured
Creditors' further security, the Administrative Agent, for the ratable
benefit of the Secured Creditors shall have a security interest in each
Assignor's books and records pertaining to the Collateral, and each
Assignor shall make available for review any such books and records to
the Administrative Agent or to its representatives during normal
business hours at the reasonable request of the Administrative Agent.
Each Assignor shall permit representatives of the Administrative Agent,
upon reasonable notice to the Company (but no more frequently than
monthly unless a Default or Event of Default shall have occurred and be
continuing), to visit and inspect any of its properties and examine and
make abstracts from any of its books and records at any reasonable time
and as
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often as may reasonably be requested upon reasonable notice, and to
discuss the business, assets, condition (financial or otherwise) or the
results of operation of such Assignor with appropriate officers and
employees thereof and with their independent certified public
accountants.
(d) RIGHT OF INSPECTION. The Administrative Agent and the
representatives of any other Secured Creditor shall upon reasonable
notice (made through the Administration Agent and no more frequently
than quarterly unless a Default or Event of Default shall have occurred
and be continuing) have full and free reasonable access to visit and
inspect any of its properties and examine and make abstracts from any
of its books and records at any reasonable time and as often as may
reasonably be requested upon reasonable notice, and to discuss the
business, assets, condition (financial or otherwise) or the results of
operation of the Company and its Subsidiaries with appropriate officers
and employees thereof and with their independent certified public
accountants with prior reasonable notice to, and coordination with, the
chief financial officer or the treasurer of the Company, and the
Company agrees to render to the Administrative Agent at the Company's
cost and expense, and to the other Secured Creditors, such clerical and
other assistance as may be reasonably requested with regard thereto.
The Secured Creditors shall keep such information thereby obtained
confidential to the extent set forth in subsection 12.6(f) of the
Credit Agreement.
(e) COMPLIANCE WITH LAWS, ETC. Each Assignor will comply in
all material respects with all Requirements of Law applicable to the
Collateral or any part thereof or to the operation of such Assignor's
business; PROVIDED that such Assignor may contest any Requirement of
Law in any reasonable manner which shall not, in the reasonable opinion
of the Administrative Agent, adversely affect the Secured Creditors'
rights or the priority of their Liens on the Collateral.
(f) COMPLIANCE WITH TERMS OF CONTRACTS, ETC. Each Assignor
will perform and comply in all material respects with all its
obligations under the Contracts and all its other Contractual
Obligations relating to the Collateral.
(g) PAYMENT OF OBLIGATIONS. Each Assignor will pay promptly
when due all material taxes, assessments and governmental charges or
levies imposed upon the Collateral or in respect of its income or
profits therefrom, as well as all claims of any kind (including,
without limitation, claims for labor, materials and supplies) against
or with respect to the Collateral, except that no such charge need be
paid if (i) the validity thereof is being contested in good faith by
appropriate proceedings, (ii) such proceedings do not involve any
material danger of the sale, forfeiture or loss of any of the
Collateral or any interest therein and (iii) such charge is adequately
reserved against on such Assignor's books in accordance with GAAP.
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(h) LIMITATION ON LIENS ON COLLATERAL. No Assignor will
create, incur or permit to exist, and each Assignor will take all
commercially reasonable actions to defend the Collateral against, and
will take such other commercially reasonable action as is necessary to
remove, any Lien or claim on or to the Collateral, other than the Liens
created hereby and other than as permitted pursuant to the Credit
Agreement, and will take all commercially reasonable actions to defend
the right, title and interest of the Secured Creditors in and to
any of the Collateral against the claims and demands of all Persons
whomsoever.
(i) LIMITATIONS ON DISPOSITIONS OF COLLATERAL. No Assignor
will sell, transfer, lease or otherwise dispose of any of the
Collateral, or attempt, offer or contract to do so except for sales of
assets permitted by the Credit Agreement. Concurrently with any such
permitted disposition, the property acquired by a transferee in such
disposition shall automatically be released from the security interest
created by this Security Agreement (the "SECURITY INTEREST"). It is
acknowledged and agreed that notwithstanding any release of property
from the Security Interest in accordance with the foregoing provisions
of this Section, the Security Interest shall in any event continue in
the Proceeds of Collateral. The Administrative Agent shall promptly
execute and deliver (and, when appropriate, shall cause any separate
agent, co-agent or trustee to execute and deliver) any releases,
instruments or documents reasonably requested by any Assignor to
accomplish or confirm the release of Collateral provided by this
Section. Any such release of Collateral provided by the Administrative
Agent shall specifically describe that portion of the Collateral to be
released, shall be expressed to be unconditional and shall be without
recourse or warranty (other than a warranty that the Administrative
Agent has not assigned its rights and interests to any other Person).
Such Assignor shall pay all of the Administrative Agent's reasonable
expenses in connection with any release of Collateral.
(j) LIMITATIONS ON MODIFICATIONS, WAIVERS, EXTENSIONS OF
AGREEMENTS GIVING RISE TO ACCOUNTS. No Assignor will (i) amend, modify,
terminate or waive any provision of any Contract, agreement or lease
giving rise to an Account or License in any manner which could
reasonably be expected to materially adversely affect the value of such
Contract, Account or License as Collateral, except in a manner
consistent with the ordinary and customary conduct of its business,
(ii) fail to exercise promptly and diligently each and every material
right which it may have under each material Contract, agreement or
lease giving rise to an Account or License (other than any right of
termination), except in a manner consistent with the ordinary and
customary conduct of its business or (iii) fail to deliver to the
Administrative Agent upon its reasonable request a copy of each
material demand, notice or document received by it relating in any way
to any material Contract, agreement or lease giving rise
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to an Account or License.
(k) LIMITATIONS ON DISCOUNTS, COMPROMISES, EXTENSIONS OF
ACCOUNTS. Other than in the ordinary course of business as generally
conducted by such Assignor over a period of time, no Assignor will
grant any extension of the time of payment of any of the Accounts,
compromise, compound or settle the same for less than the full amount
thereof, release, wholly or partially, any Person liable for the
payment thereof, or allow any credit or discount whatsoever thereon.
(l) MAINTENANCE OF EQUIPMENT. Each Assignor will maintain each
item of Equipment in good operating condition, ordinary wear and tear
and immaterial impairments of value and damage by the elements
excepted, and will provide all maintenance, service and repairs
necessary for such purpose.
(m) FURTHER IDENTIFICATION OF COLLATERAL. Each Assignor will
furnish to the Administrative Agent from time to time statements and
schedules further identifying and describing the Collateral and such
other reports in connection with the Collateral as the Administrative
Agent may reasonably request, all in reasonable detail.
(n) NOTICES. Each Assignor will advise the Administrative
Agent and the Lenders promptly, in reasonable detail, at their
respective addresses set forth in the Credit Agreement, (i) of any Lien
(other than Liens created hereby or permitted under the Credit
Agreement) on, or claim asserted against, any of the Collateral and
(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 Liens created hereunder.
(o) CHANGES IN LOCATIONS, NAME, ETC. No Assignor will (i)
change the location of its chief executive office/chief place of
business from that specified on Schedule V hereto or remove its books
and records from the location specified on Schedule V hereto, (ii)
remove any material amount of the Inventory or Equipment to, or keep
any material amount of Inventory or Equipment at, a location other than
those listed on Schedule IV hereto, or (iii) change its name (including
the adoption of any new trade name), identity or corporate structure to
such an extent that any financing statement filed by the Administrative
Agent in connection with this Security Agreement would become seriously
misleading, unless it shall have provided at least 15 days prior
written notice to the Administrative Agent of any such event and
provide the Administrative Agent with the new location of its chief
executive office/chief place of business and its books and records, the
location of the Inventory and Equipment and the change in any
Assignor's name, as the case may be. Any notice given pursuant to this
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Section 5(o) shall be deemed to amend Schedule IV hereto or Schedule V
hereto, as the case may be. In connection with any actions permitted
pursuant to clause (i) of this Section 5(o), the Administrative
Agent shall be entitled to receive any legal opinions it reasonably
requests as to the continued perfection of the security interest
granted hereby in the Collateral, which opinions shall be deemed
satisfactory to the Administrative Agent if substantially similar to
the perfection opinions given by Gibson, Dunn & Crutcher LLP on the
Closing Date.
(p) COPYRIGHTS. Each Assignor (i) will employ the Copyright
for each material published work with such notice of copyright as may
be required by law to secure copyright protection and (ii) will not do
any act or knowingly omit to do any act whereby any material Copyright
may become invalidated and:
(A) will not do any act, or omit to do any act,
whereby any material Copyright may become injected into the
public domain;
(B) shall notify the Administrative Agent immediately
if it knows, or has reason to know, that any material
Copyright may become injected into the public domain or of any
adverse determination or development (including, without
limitation, the institution of, or any such determination or
development in, any court or tribunal in the United States or
any other country) regarding such Assignor's ownership of any
such Copyright or its validity;
(C) will take all necessary steps as it shall deem
appropriate under the circumstances, to maintain and pursue
each application (and to obtain the relevant registration) and
to maintain each registration of each material Copyright owned
by such Assignor including, without limitation, filing of
applications for renewal, where necessary; and
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(D) will promptly notify the Administrative Agent of
any material infringement of any material Copyright of such
Assignor of which it becomes aware and will take such actions
as it shall reasonably deem appropriate under the
circumstances to protect such Copyright, including, where
appropriate, the bringing of suit for infringement, seeking
injunctive relief and seeking to recover any and all damages
for such infringement.
(q) PATENTS AND TRADEMARKS.
(i) Each Assignor (either itself or through
licensees) will, except with respect to any Trademark that
such Assignor shall, after the exercise of reasonable business
judgment, determine is of immaterial economic value to it or
otherwise reasonably determines not to do so, (A) use
reasonable efforts to continue to use each Trademark on each
and every trademark class of goods applicable to its current
line as reflected in its current catalogs, brochures and price
lists in order to maintain such Trademark in full force free
from any claim of abandonment for non-use, (B) maintain as in
the past the quality of products and services offered under
such Trademark, (C) use reasonable efforts to employ such
Trademark with the appropriate notice of registration, (D) not
adopt or use any mark which is confusingly similar or a
colorable imitation of such Trademark unless within 45 days
after such use or adoption the Administrative Agent, for the
ratable benefit of the Secured Creditors shall obtain a
perfected security interest in such mark pursuant to this
Security Agreement, and (E) not (and not permit any licensee
or sublicensee thereof to) do any act or knowingly omit to do
any act whereby any Trademark may become invalidated.
(ii) No Assignor will, except with respect to
any Patent that such Assignor shall, after the exercise of
reasonable business judgment, determine is of immaterial
economic value to it or otherwise reasonably determine so to
do, do any act, or omit to do any act, whereby any Patent may
become abandoned or dedicated.
(iii) Each Assignor will notify the
Administrative Agent immediately if it knows, or has reason to
know, that any application relating to any Patent, or any
application or registration relating to any Trademark may
become abandoned or dedicated, or of any adverse determination
or material development (including, without limitation, the
institution of, or any such determination or development in,
any proceeding in the United States Patent and Trademark
Office or any court or tribunal in any country) regarding such
Assignor's ownership of any
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Patent or Trademark or its right to register the same or to
keep and maintain the same.
(iv) Whenever any Assignor, either by itself or
through any agent, employee, licensee or designee, shall file
an application for any Patent or for the registration of any
Trademark with the United States Patent and Trademark Office
or any similar office or agency in any other country or any
political subdivision thereof, such Assignor 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. Upon request of the Administrative Agent, such
Assignor shall execute and deliver any and all agreements,
instruments, documents, and papers as the Administrative Agent
may request to evidence the Administrative Agent's security
interest in any Patent or Trademark and the goodwill and
general intangibles of such Assignor relating thereto or
represented thereby, and each Assignor hereby appoints and
constitutes the Administrative Agent its attorney-in-fact to
execute and file all such writings for the foregoing purposes,
all acts of such attorney being hereby ratified and confirmed;
such power being coupled with an interest and is irrevocable
until the Obligations are paid in full, the Commitments are
terminated and no Letters of Credit are outstanding.
(v) Each Assignor, except with respect to any
Patent or Trademark such Assignor shall, after the exercise of
reasonable business judgment, determine is of immaterial
economic value to it or it otherwise reasonably determines not
to so do and except with respect to any Trademark that is not
registrable, will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the
United States Patent and Trademark Office, or any similar
office or agency in any other country or any political
subdivision thereof, to maintain and pursue each application
(and to obtain the relevant registration or Patent) and to
maintain each Patent and each registration of Trademarks,
including, without limitation, filing of applications for
renewal, affidavits of use and affidavits of incontestability
when appropriate.
(vi) In the event that any Patent or Trademark
included in the Collateral is infringed, misappropriated or
diluted by a third party, such Assignor shall promptly notify
the Administrative Agent after it learns thereof and shall,
unless such Assignor shall, after the exercise of reasonable
business judgment, determine that such Patent or Trademark is
of immaterial economic value to such Assignor, which
determination such Assignor shall promptly report to the
Administrative Agent, promptly sue
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for infringement, misappropriation or dilution, to seek
injunctive relief where appropriate and to recover any and all
damages for such infringement, misappropriation or dilution,
or take such other actions as such Assignor shall reasonably
deem appropriate under the circumstances to protect such
Patent or Trademark.
6. ADMINISTRATIVE AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT.
(a) POWERS. Each Assignor hereby irrevocably constitutes and
appoints the Administrative Agent and any officer or agent thereof,
with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place
and stead of such Assignor and in the name of such Assignor or in its
own name, from time to time after the occurrence, and during the
continuation, of an Event of Default for the purpose of carrying out
the terms of this Security Agreement, to take any and all appropriate
action and to execute any and all documents and instruments which may
be necessary or desirable to accomplish the purposes of this Security
Agreement, and, without limiting the generality of the foregoing, each
Assignor hereby gives the Administrative Agent the power and right, on
behalf of such Assignor, without notice to or assent by such Assignor,
to do the following:
(i) in the name of such Assignor or its own name,
or otherwise, to take possession of and indorse and collect
any checks, drafts, notes, acceptances or other instruments
for the payment of moneys due under any Account, Instrument,
License or General Intangible or with respect to any other
Collateral and to file any claim or to take any other action
or proceeding in any court of law or equity or otherwise
deemed appropriate by the Administrative Agent for the purpose
of collecting any and all such moneys due under any Account,
Instrument, License or General Intangible or with respect to
any other Collateral whenever payable;
(ii) to pay or discharge taxes and Liens levied or
placed on or threatened against the Collateral, PROVIDED that
if such taxes are being contested in good faith and by
appropriate proceedings, the Administrative Agent will consult
with such Assignor before making any such payment; and
(iii) (A) to direct any party liable for any
payment under any of the Collateral to make payment of any and
all moneys due or to become due thereunder directly to the
Administrative Agent or as the Administrative Agent shall
direct; (B) to ask or demand for, collect, receive payment of
and receipt for, any and all moneys, claims and other
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amounts due or to become due at any time in respect of or
arising out of any Collateral; (C) to sign and indorse any
invoices, freight or express bills, bills of lading, storage
or warehouse receipts, drafts against debtors, assignments,
verifications, notices and other documents in connection with
any of the Collateral; (D) to commence and prosecute any
suits, actions or proceedings at law or in equity in any court
of competent jurisdiction to collect the Collateral or any
thereof and to enforce any other right in respect of any
Collateral; (E) to defend any suit, action or proceeding
brought against such Assignor with respect to any Collateral;
(F) to settle, compromise or adjust any suit, action or
proceeding described in clause (E) above and, in connection
therewith, to give such discharges or releases as the
Administrative Agent may deem appropriate; (G) to assign any
Patent or Trademark (along with the goodwill of the business
to which any such Trademark pertains), throughout the world
for such term or terms, on such conditions, and in such
manner, as the Administrative Agent shall in its sole
discretion determine; and (H) generally, to sell, transfer,
pledge and make any agreement with respect to or otherwise
deal with any of the Collateral as fully and completely as
though the Administrative Agent were the absolute owner
thereof for all purposes, and to do, at the Administrative
Agent's option and such Assignor's expense, at any time, or
from time to time, all acts and things which the
Administrative Agent reasonably deems necessary to protect,
preserve or realize upon the Collateral and the Secured
Creditors' Liens thereon and to effect the intent of this
Security Agreement, all as fully and effectively as such
Assignor might do.
Each Assignor hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevocable.
(b) OTHER POWERS. (i) Each Assignor also authorizes the
Administrative Agent, at any time and from time to time, to execute, in
connection with the sale provided for in Section 8 hereof, any
indorsement, assignments or other instruments of conveyance or transfer
with respect to the Collateral and (ii) pursuant to Section 9-402 of
the Code, each Assignor authorizes the Administrative Agent to file
financing statements with respect to the Collateral without the
signature of such Assignor in such form and in such filing offices as
the Administrative Agent reasonably determines appropriate to perfect
the security interests of the Administrative Agent under this
Agreement. A carbon, photographic or other reproduction of this
Agreement shall be sufficient as a financing statement for filing in
any jurisdiction.
(c) NO DUTY ON AGENTS' OR SECURED CREDITORS' PART. The
powers
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conferred on the Co-Arrangers and the Lenders hereunder are solely to
protect the Secured Creditors' interests in the Collateral and shall
not impose any duty upon any Secured Creditor to exercise any such
powers. The Secured Creditors shall be accountable only for amounts
that they actually receive as a result of the exercise of such powers,
and neither they nor any of their officers, directors, employees or
agents shall be responsible to any Assignor for any act or failure to
act hereunder, except for their own gross negligence or willful
misconduct or failure to comply with mandatory provisions of applicable
law.
7. PERFORMANCE BY ADMINISTRATIVE AGENT OF ANY ASSIGNOR'S
OBLIGATIONS. If any Assignor fails to perform or comply with any of its
agreements contained herein and the Administrative Agent, as provided for by the
terms of this Security Agreement, shall itself perform or comply, or otherwise
cause performance or compliance, with such agreement, the expenses of the
Administrative Agent incurred in connection with such performance or compliance,
together with interest thereon at a rate per annum equal to 2% plus the
Alternate Base Rate, shall be payable by such Assignor to the Administrative
Agent on demand and shall constitute Obligations secured hereby; PROVIDED that
the Administrative Agent shall in any event first have given such Assignor
written notice of its intent to do the same and such Assignor shall not have,
within 30 days of such notice (or such shorter period as the Administrative
Agent may reasonably determine is necessary in order to preserve the benefits of
this Security Agreement with respect to any material portion of the Collateral),
paid such claim or obtained to the Administrative Agent's satisfaction the
release of the claim or Lien to which such notice relates.
8. REMEDIES. (a) If an Event of Default shall occur and be
continuing, the Administrative Agent on behalf of the other Secured Creditors
may exercise, in addition to all other rights and remedies granted to them in
this Security Agreement and in any other instrument or agreement securing,
evidencing or relating to the Obligations, all rights and remedies of a secured
party under the Code. Without limiting the generality of the foregoing, the
Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon such Assignor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give an option or options to purchase, or otherwise dispose of
and deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the any Secured Creditor or elsewhere upon
such terms and conditions as it may deem advisable and at such prices as it may
deem best, for cash or on credit or for future delivery without assumption of
any credit risk. Any Secured Creditor shall have the right upon any such public
sale or sales, and, to the extent permitted by law, upon any such private
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sale or sales, to purchase the whole or any part of the Collateral so sold, free
of any right or equity of redemption in such Assignor, which right or equity is
hereby waived and released. The Administrative Agent shall apply the net
proceeds of any such collection, recovery, receipt, appropriation, realization
or sale, after deducting all reasonable costs and expenses of every kind
incurred therein or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights of the Secured
Creditors hereunder, including, without limitation, reasonable attorneys' fees
and disbursements of counsel to the Administrative Agent:
(i) first, to any amounts owing to the Administrative Agent or
the Co-Arrangers in their capacities as such;
(ii) second, to the payment of an amount equal to the
outstanding Primary Obligations to the Secured Creditors as provided in
paragraph (e) below, with each Secured Creditor receiving an amount
equal to its outstanding Primary Obligations or, if the proceeds are
insufficient to pay in full all such Primary Obligations, its Pro Rata
Share (as defined below) of the amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) and (ii) to the
payment of an amount equal to the outstanding Secondary Obligations to
the Secured Creditors as provided in paragraph (e) below, with each
Secured Creditor receiving an amount equal to its outstanding Secondary
Obligations or, if the proceeds are insufficient to pay in full all
such Secondary Obligations, its Pro Rata Share of the amount remaining
to be distributed; and
(iv) fourth, to the extent proceeds remain after the
application pursuant to the preceding clauses (i), (ii) and (iii),
after the payment of any other amounts required by any provision of
law, including without limitation, Section 9-504(1)(c) of the Code, and
following the termination of this Agreement pursuant to Section 23
hereof, the Administrative Agent shall account for the surplus, if any,
to the relevant Pledgor.
(b) For purposes of this Agreement, (x) "Pro Rata Share" shall
mean, when calculating a Secured Creditor's portion of any distribution or
amount, that amount (expressed as a percentage) equal to a fraction the
numerator of which is the then unpaid amount of such Secured Creditor's Primary
Obligations or Secondary Obligations, as the case may be, and the denominator of
which is the then outstanding amount of all Primary Obligations or Secondary
Obligations, as the case may be, (y) "Primary Obligations" shall mean (i) in the
case of the Credit Agreement Obligations, all principal of, and interest on, all
Loans, all L/C Obligations, and all related fees, and guarantees thereof, and
(ii) in the case of the Other Obligations, all amounts due under the Interest
Rate
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Agreements (other than indemnities, fees (including, without limitation,
attorneys' fees) and similar obligations and liabilities), and guarantees
thereof, and (z) "Secondary Obligations" shall mean all Obligations other than
Primary Obligations.
(c) When payments to Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under this
Section 8 only) (i) first, to their Primary Obligations (with the amount to be
applied by any Secured Creditor to its Primary Obligations to be applied (x)
first, to interest and (y) second, to any other Primary Obligations) and (ii)
second, to their Secondary Obligations.
(d) Each of the Secured Creditors agrees and acknowledges that
if the Agents and the Lenders are to receive a distribution on account of
undrawn amounts with respect to Letters of Credit issued under the Credit
Agreement (which shall only occur after all outstanding Loans and unpaid
drawings with respect to such Letters of Credit have been paid in full), such
amounts shall be paid to the Administrative Agent under the Credit Agreement and
held by it, for the equal and ratable benefit of the Agents and the Lenders, as
cash security for the repayment of Obligations owing to the Agents and the
Lenders as such. If any amounts are held as cash security pursuant to the
immediately preceding sentence, then upon the termination of all outstanding
Letters of Credit, and after the application of all such cash security to the
repayment of all Obligations owing to the Agents and the Lenders after giving
effect to the termination of all such Letters of Credit, if there remains any
excess cash, such excess cash shall be distributed in accordance with subsection
8(a) hereof.
(e) Except as set forth in subsection 8(c) hereof, all
payments required to be made to the Agents and the Lenders hereunder shall be
made to the Administrative Agent under the Credit Agreement for the account of
the Agents and the Lenders and all payments required to be made to the Other
Creditors hereunder shall be made directly to the respective Other Creditor.
(f) For purposes of applying payments received in accordance
with this Section 8, the Administrative Agent shall be entitled to rely upon the
Other Creditors for a determination (which each Other Creditor agrees (or shall
agree) to provide upon request of the Administrative Agent) of the outstanding
Obligations owed to the Other Creditors. Unless it has actual knowledge
(including by way of written notice from any other Agent, any Lender or an Other
Creditor) to the contrary, the Administrative Agent shall be entitled to assume
that (x) no Secondary Obligations are owing to any other Agent, any Lender or
Other Creditor and (y) no Interest Rate Agreement or Other Obligations in
respect thereof, are in existence.
(g) It is understood that the Assignors shall remain jointly
and severally liable to the extent of any deficiency between the amount of the
proceeds of the
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Collateral and the aggregate amount of the sums referred to in clause (a) of
this Section 8.
(h) To the extent permitted by applicable law, each Assignor
waives all claims, damages and demands it may acquire against any Secured
Creditor arising out of the exercise by them of any rights hereunder, except to
the extent arising from the gross negligence or willful misconduct of such
Secured Creditor. If any notice of a proposed sale or other disposition of
Collateral shall be required by law, such notice shall be deemed reasonable and
proper if given at least 10 days before such sale or other disposition. Such
Assignor shall remain liable for any deficiency if the proceeds of any sale or
other disposition of the Collateral are insufficient to pay the Obligations and
the fees and disbursements of any attorneys employed by any Secured Creditor to
collect such deficiency.
9. AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS. Each
Assignor shall remain obligated hereunder, and the Collateral shall remain
subject to the Lien granted hereby notwithstanding that, without any reservation
of rights against any Assignor, and without notice to or further assent by such
Assignor, any demand for payment of any of the Obligations made by any Secured
Creditor may be rescinded by any Secured Creditor, and any of the Obligations
continued, and the Obligations, or the liability of each Assignor or any other
Person upon or for any part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered, or released by any Secured Creditor, and the
Credit Agreement, the Notes, the other Credit Documents, any Interest Rate
Agreements and any other documents executed and delivered in connection
therewith may be amended, modified, supplemented or terminated, in whole or
part, as the Administrative Agent, the Co-Arrangers (subject to subsection 12.16
of the Credit Agreement), the Issuing Lender, any Lender or any Other Creditor
may deem advisable from time to time, and any guarantee, right of offset or
other collateral security at any time held by the Administrative Agent, the
Issuing Lender or any Lender for the payment of the Obligations may be sold,
exchanged, waived, surrendered or released. None of the Secured Creditors shall
have any obligation to protect, secure, perfect or insure this or any other Lien
at any time held by it as security for the Obligations or any property subject
thereto. Each Assignor waives any and all notice of the creation, renewal,
extension or accrual of any of the Obligations and notice of or proof of
reliance by the Secured Creditors upon this Security Agreement; the Obligations,
and any of them, shall conclusively be deemed to have been created, contracted
or incurred in reliance upon this Security Agreement; and all dealings between
any Assignor and the Administrative Agent, any other Agent, the Issuing Lender
or any Lender, shall likewise be conclusively presumed to have been had or
consummated in reliance upon this Security Agreement. Each Assignor waives
diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon such Assignor with respect to
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the Obligations.
10. LIMITATION ON DUTIES REGARDING PRESERVATION OF COLLATERAL.
The Administrative Agent's sole duty with respect to the custody, safekeeping
and physical preservation of the Collateral in its possession, under Section
9-207 of the Code or otherwise, shall be to deal with it in the same manner as
the Administrative Agent deals with similar property for its own account.
Neither the Administrative Agent, any other Secured Creditor nor any of their
respective directors, officers, employees or agents shall be liable for failure
to demand, collect or realize upon all or any part of the Collateral or for any
delay in doing so or shall be under any obligation to sell or otherwise dispose
of any Collateral upon the request of any Assignor or otherwise.
11. DELEGATION OF DUTIES. The Administrative Agent may execute
any of its duties under this Security Agreement 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 agents or attorneys-in-fact
selected by it with reasonable care, except as otherwise provided in subsection
11.3 of the Credit Agreement.
12. POWERS COUPLED WITH AN INTEREST. All authorizations and
agencies herein contained with respect to the Collateral are irrevocable and
powers coupled with an interest.
13. SEVERABILITY. Any provision of this Security 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. SECTION HEADINGS. The section headings used in this
Security Agreement are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the interpretation
hereof.
15. NO WAIVER; CUMULATIVE REMEDIES. No Secured Creditor shall
by any act (except by a written instrument pursuant to Section 16 hereof),
delay, indulgence, omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Default or Event of Default or in
any breach of any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of any Secured Creditor any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by any Secured Creditor of any right or
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remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which any Secured Creditor would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any rights or remedies
provided by law.
16. INTEGRATION; WAIVERS AND AMENDMENTS; SUCCESSORS AND
ASSIGNS; GOVERNING LAW. This Security Agreement represents the entire agreement
of each Assignor with respect to the subject matter hereof, except as otherwise
set forth in the Credit Agreement, and there are no promises or representations
by any Secured Creditor relative to the subject matter hereof not reflected
herein or in the other Credit Documents. In the event of a conflict among the
Credit Documents, the Credit Agreement shall control. None of the terms or
provisions of this Security Agreement may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by the Company, each
Assignor, and the Administrative Agent (with the consent of either (x) the
Required Lenders or, to the extent required by subsection 12.1 of the Credit
Agreement, the Supermajority Lenders or all of the Lenders, at all times prior
to the time on which all Credit Agreement Obligations have been paid in full or
(y) the holders of at least a majority of the outstanding Other Obligations at
all times after the time on which all Credit Agreement Obligations have been
paid in full); PROVIDED, that any change, waiver, modification or variance
affecting the rights and benefits of a single Class of Secured Creditors (and
not all Secured Creditors in a like or similar manner) shall also require the
written consent of the Requisite Creditors of such Class of Secured Creditors.
For the purpose of this Agreement, the term "Class" shall mean each class of
Secured Creditors, I.E., whether (x) the Agents and the Lenders as holders of
the Credit Agreement Obligations or (y) the Other Creditors as the holders of
the Other Obligations. For the purpose of this Agreement, the term "Requisite
Creditors" of any Class shall mean each of (x) with respect to the Credit
Agreement Obligations, the Required Lenders and (y) with respect to the Other
Obligations, the holders of at least a majority of all obligations outstanding
from time to time under the Interest Rate Agreements; PROVIDED that any
provision of this Security Agreement may be waived by the Administrative Agent
in a written letter or agreement executed by the Administrative Agent or by
telex or facsimile transmission from the Administrative Agent. This Security
Agreement shall be binding upon the successors and assigns of each Assignor and
shall inure to the benefit of the Administrative Agent, the other Agents and the
Lenders and their respective successors and assigns. Subject to the
representation set forth in subsection 4(j) hereof, the inclusion of copyrights,
trademarks, patents or licenses thereto on Schedules I, II and III to the
Company Security Agreement and the Subsidiary Security Agreement and Schedule
6.16 to the Credit Agreement shall not constitute a representation by the
Company or any of its Subsidiaries that any such particular copyright,
trademark, patent or license thereto is material. THIS SECURITY AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
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17. NOTICES. All notices, requests and demands to or upon each
Assignor or any Secured to be effective shall be in writing or by telecopy or
telex and unless otherwise expressly provided herein, shall be deemed to have
been duly given or made when delivered by hand, or, in the case of mail, three
days after deposit in the postal system, first class postage prepaid, or, in the
case of telecopy notice, when sent, or, in the case of telex notice, when sent,
answerback received, addressed to a party at the address provided for such party
(including any addresses for copies) on Schedule I to the Subsidiary Guarantee.
18. COUNTERPARTS. This Security Agreement may be executed by
one or more of the parties hereto on any number of separate counterparts and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument.
19. AUTHORITY OF ADMINISTRATIVE AGENT. Each Assignor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Security Agreement with respect to any action taken by the
Administrative Agent or the exercise or non-exercise by the Administrative Agent
of any option, right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Security Agreement shall, as between
the Administrative Agent, the other Agents and the Lenders, be governed by the
Credit Agreement and by such other agreements with respect thereto as may exist
from time to time among them, but, as between the Administrative Agent and each
Assignor, the Administrative Agent shall be conclusively presumed to be acting
as agent for the Secured Creditors with full and valid authority so to act or
refrain from acting, and such Assignor shall not be under any obligation, or
entitlement, to make any inquiry respecting such authority.
20. RELEASES. The Secured Creditors agree to cooperate with
each Assignor with respect to any sale permitted by subsection 9.5 of the Credit
Agreement and promptly take such action and execute and deliver such instruments
and documents necessary to release the Liens and security interests created
hereby relating to any of the assets or property affected by any sale permitted
by subsection 9.5 of the Credit Agreement including, without limitation, any
necessary Uniform Commercial Code amendment, termination or partial termination
statement.
21. TERMINATION; RELEASE. (a) This Security Agreement (other
than with respect to any cash collateral securing any outstanding Letter of
Credit) shall terminate when all the Obligations have been paid in full, the
Commitments have been terminated and either no Letters of Credit are outstanding
or each outstanding Letter of Credit has been cash collateralized so that it is
fully secured to the satisfaction of the Administrative Agent. Upon such
termination, the Administrative Agent shall reassign and redeliver (or cause to
be reassigned and redelivered) to each Assignor, or to such person or persons as
such Assignor shall designate, or to whomever may be lawfully
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entitled to receive such surplus, against receipt, such of the Collateral (if
any) (other than with respect to any cash collateral securing any outstanding
Letter of Credit) as shall not have been sold or otherwise applied by the
Administrative Agent pursuant to the terms hereof and shall still be held by it
hereunder, together with appropriate instruments or reassignment and release.
Any such reassignment and release shall be without recourse upon or warranty by
the Administrative Agent (other than a warranty that the Administrative Agent
has not assigned its rights and interests hereunder to any Person) and at the
expense of each Assignor.
(b) In the event that any part of the Collateral is sold
(except to Holdings or any of its Subsidiaries) in connection with a sale
permitted by subsection 9.5 of the Credit Agreement or otherwise released at the
direction of the Required Lenders (or all Lenders if required by subsection 12.1
of the Credit Agreement) and the proceeds of such sale or sales or from such
release are applied in accordance with the provisions of subsection 5.4 of the
Credit Agreement, to the extent required to be so applied, such Collateral will
be sold free and clear of the Liens created by this Agreement and the
Administrative Agent, at the request and expense of the relevant Assignor, will
duly assign, transfer and deliver to such Assignor (without recourse and without
any representation or warranty) such of the Collateral as is then being (or has
been) so sold or released and has not theretofore been released pursuant to this
Agreement and will promptly execute and deliver to such Assignor a proper
instrument or instruments (including UCC termination statements on form UCC-3)
acknowledging the release of such Collateral pursuant to this Agreement.
(c) At any time that an Assignor desires that the
Administrative Agent take any action to acknowledge or give effect to any
release of Collateral pursuant to the foregoing subsection 21(a) or (b), as the
case may be, it shall deliver to the Administrative Agent, if requested by the
Administrative Agent, a certificate signed by an executive officer of such
Assignor stating that the release of the respective Collateral is permitted
pursuant to such subsection 21(a) or (b), as the case may be.
22. ADDITIONAL ASSIGNORS. It is understood and agreed that any
Subsidiary of the Company that is required to execute a counterpart of this
Agreement after the date hereof pursuant to the Credit Agreement shall
automatically become an Assignor hereunder by executing a counterpart hereof and
delivering the same to the Administrative Agent.
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IN WITNESS WHEREOF, each Assignor and the Administrative Agent
have caused this Security Agreement to be duly executed and delivered as of the
date first above written.
ARDEE INVESTMENT CO., INC.
KENTUCKY LADDER COMPANY
OLYMPUS PROPERTIES, INC.
PHOENIX MANAGEMENT SERVICES, INC.
R.D. ARIZONA LADDER CORP. (D/B/A.R.D.
WERNER CO., INC.- ARIZONA)
WERNER CO.
WERNER FINANCIAL INC.
WERNER MANAGEMENT CO.
WIP TECHNOLOGIES, INC.
By:_____________________________
Title:
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Schedule I to
Security Agreement
COPYRIGHTS AND COPYRIGHT LICENSES
[SEE SCHEDULE 6.16 TO THE CREDIT AGREEMENT]
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Schedule II to
Security Agreement
Patents And Patent Licenses
---------------------------
[SEE SCHEDULE 6.16 TO THE CREDIT AGREEMENT]
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Schedule III to
Security Agreement
------------------
TRADEMARKS AND TRADEMARK LICENSES
[SEE SCHEDULE 6.16 TO THE CREDIT AGREEMENT]
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Schedule IV to
Security Agreement
------------------
Locations Of Inventory And Equipment Locations
----------------------------------------------
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Schedule V to
Security Agreement
------------------
Addresses Of Assignors
----------------------
[Name of Assignor]
[Address]
Attention:
Telecopy: (412) ___-____
With a copy to:
Werner Holding Co. (DE), Inc.
93 Werner Road
Greenville, PA 16125-9499
Attention: Eric J. Werner, General Counsel
Telecopy: (412) 588-0618
With a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166
Attention: Janet Vance, Esq.
Telecopy: (212) 351-4035
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EXHIBIT G-1 TO
CREDIT AGREEMENT
----------------
FORM OF
HOLDINGS GUARANTEE
------------------
HOLDINGS GUARANTEE, dated as of November 24, 1997, made by
WERNER HOLDING CO. (PA), INC., a Pennsylvania corporation (the "GUARANTOR"), in
favor of BANKERS TRUST COMPANY, as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT") for the Agents and for the banks and other financial
institutions (the "LENDERS") that are parties to the Credit Agreement (as
hereafter defined) and for the benefit of the other Guaranteed Creditors
referred to below.
W I T N E S S E T H :
---------------------
WHEREAS, Werner Holding Co. (DE), Inc. (the "COMPANY"), is a
party to a Credit Agreement, dated as of the date hereof, with the lenders from
time to time party thereto (the "LENDERS"), Bankers Trust Company, as
Administrative Agent and Co-Arranger, Merrill Lynch Capital Corporation, as
Syndication Agent and Co- Arranger, The Chase Manhattan Bank, as Documentation
Agent and Goldman Sachs Credit Partners L.P., as Co-Agent (together with the
Administrative Agent, Syndication Agent and Documentation Agent, the "AGENTS")
(as the same may be amended, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT");
WHEREAS, pursuant to the terms of the Credit Agreement, the
Lenders severally agreed to make certain extensions of credit to the Company;
WHEREAS, the Guarantor owns directly all of the issued and
outstanding Capital Stock of the Company;
WHEREAS, the proceeds of the extensions of credit will be used
in part to enable the Company to make valuable transfers (as determined as
provided herein) to the Guarantor;
WHEREAS, the Guarantor will derive substantial direct and
indirect benefit from the making of the extensions of credit; and
WHEREAS, under the Credit Agreement, the obligation of the
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255
to make the extensions of credit to the Company on and after the date
hereof is conditioned upon, among other things, the execution and delivery by
the Guarantor of this Guarantee;
NOW, THEREFORE, in consideration of the premises and to induce
the Lenders to enter into the Credit Agreement and to make their respective
extensions of credit to the Company under the Credit Agreement, the Guarantor
hereby agrees with and for the benefit of the Administrative Agent and the
Guaranteed Creditors as follows:
1. DEFINED TERMS. As used in this Guarantee, terms defined in
the Credit Agreement or in the preamble or recitals hereto are used herein as
therein defined, and the following term shall have the following meaning:
"Affiliate Loan" shall mean any loan of cash made to the
Guarantor by one or more of its Affiliates (for this purpose, excluding
as an Affiliate any Subsidiary of the Guarantor), provided that each
such Affiliate Loan (i) shall be unsecured and shall not be guaranteed
by any Subsidiary of the Guarantor, (ii) shall provide that interest
may be deferred, paid-in-kind or otherwise added to the principal
amount thereof, in each case so that no payment default will exist as a
result of a non-payment of interest prior to the date which occurs 6
months after the then stated final maturity of the last maturing Loans
pursuant to the Credit Agreement, and (iii) shall have a final maturity
date which occurs at least 6 months after the then stated final
maturity date of the last maturing Loans pursuant to the Credit
Agreement and shall not have any required amortizations or sinking fund
payments prior thereto.
"OBLIGATIONS" (i) shall mean the unpaid principal amount of,
and interest on (including interest accruing on or after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Company, whether or
not a claim for such post-filing or post-petition interest is allowed),
the Loans and all other obligations and liabilities of the Company to
the each of the Agents, the Issuing Lender or the Lenders, whether
direct or indirect, absolute or contingent, due or to become due, or
now existing or hereafter incurred, which may arise under, out of, or
in connection with, the Credit Agreement, any Letter of Credit, the
other Credit Documents and any other document executed and delivered or
given in connection therewith or herewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all reasonable fees and
disbursements of counsel to the Agents, the Issuing Lender or the
Lenders that are required to be paid by the Company or the Guarantor
pursuant to the terms of the Credit Agreement) or otherwise, and (ii)
all obligations of the Company to any Lender or Lenders or its or their
Affiliates (each such Lender or Affiliate, even if the respective
Lender subsequently ceases
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to be a lender under the Credit Agreement for any reason, together with
such Lender's or Affiliate's successors and assigns, collectively, the
"Other Creditors" and, together with the Administrative Agent, the
Agents and the Lenders, the "Guaranteed Creditors") under or in respect
of any Interest Rate Agreement.
2. GUARANTEE. (a) The Guarantor hereby unconditionally and
irrevocably, guarantees to the Administrative Agent, for the ratable benefit of
the Guaranteed Creditors and their respective successors, indorsees, transferees
and assigns, the prompt and complete payment and performance by the Company when
due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations, and the Guarantor further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel) which may be paid or incurred by any Agent, the Issuing Lender or any
Lender in enforcing, or obtaining advice of counsel in respect of, any rights
with respect to, or collecting, any or all of the Obligations and/or enforcing
any rights with respect to, or collecting against, the Guarantor under this
Guarantee.
(b) No payment or payments made by any of the Company, the
Guarantor, any other guarantor or any other Person or received or collected by
any Agent or any Lender from the Company, the Guarantor, any other guarantor or
any other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction of or
in payment of the Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of any Guarantor hereunder which shall,
notwithstanding any such payment or payments other than payments made by the
Guarantor in respect of the Obligations or payments received or collected from
the Guarantor in respect of the Obligations, remain liable for the Obligations
until the Obligations are paid in full, the Commitments are terminated and
either no Letters of Credit are outstanding or each outstanding Letter of Credit
has been cash collateralized so that it is fully secured to the satisfaction of
the Administrative Agent.
(c) The Guarantor agrees that whenever, at any time, or from
time to time, it shall make any payment to any Agent or any Guaranteed Creditor
on account of its liability hereunder, it will notify the Administrative Agent
in writing that such payment is made under this Guarantee for such purpose.
3. RIGHT OF SET-OFF. Upon the occurrence of any Event of
Default under any Credit Document, the Guarantor hereby irrevocably authorizes
each Guaranteed Creditor at any time and from time to time without notice to the
Guarantor or any other guarantor, any such notice being expressly waived by the
Guarantor, to set off and appropriate and apply 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
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unmatured, at any time held or owing by such Guaranteed Creditor to or for the
credit or the account of the Guarantor, or any part thereof in such amounts as
such Guaranteed Creditor may elect, against and on account of the obligations
and liabilities of the Guarantor to such Guaranteed Creditor hereunder or under
the Credit Agreement, the Notes, or the other Credit Documents, as such
Guaranteed Creditor may elect, whether or not any Agent or any Guaranteed
Creditor has made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. Each Guaranteed Creditor
agrees to notify the Guarantor promptly of any such set-off and the application
made by such Guaranteed Creditor, PROVIDED that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Guaranteed Creditor under this paragraph are in addition to other rights
and remedies (including, without limitation, other rights of set-off) which such
Guaranteed Creditor may have.
4. NO SUBROGATION. Notwithstanding any payment or payments
made by the Guarantor hereunder or any set-off or application of funds of the
Guarantor by any Guaranteed Creditor, the Guarantor shall not be entitled to be
subrogated to any of the rights of any Agent or any Guaranteed Creditor against
the Company or any collateral security or guarantee or right of offset held by
any Guaranteed Creditor for the payment of the Obligations, nor shall the
Guarantor seek or be entitled to seek any contribution or reimbursement from the
Company in respect of payments made by the Guarantor hereunder, and any such
rights of subrogation and reimbursement of the Guarantor are hereby waived until
all amounts owing to each of the Agents and the Guaranteed Creditors by the
Company on account of the Obligations are paid in full, the Commitments are
terminated and either no Letters of Credit are outstanding or each outstanding
Letter of Credit has been cash collateralized so that it is fully secured to the
satisfaction of the Administrative Agent.
5. AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS; WAIVER OF
RIGHTS. The Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the Guarantor and without notice to or
further assent by the Guarantor, any demand for payment of any of the
Obligations made by any Agent, the Issuing Lender or any Guaranteed Creditor may
be rescinded by such party and any of the Obligations continued, and the
Obligations, or the liability of any other party upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
any Agent, the Issuing Lender or any Guaranteed Creditor and the Credit
Agreement, the Notes, the other Credit Documents, any Letter of Credit, any
Interest Rate Agreement and any other collateral security document or other
guarantee or document in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Administrative Agent,
the Co-Arrangers (subject to subsection 12.16 of the Credit Agreement), the
Issuing Lender, any Lender or any Other Creditor may deem advisable
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from time to time, and any collateral security, guarantee or right of offset at
any time held by any Agent or any Guaranteed Creditor for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released. None of the
Agents nor any Guaranteed Creditor shall have any obligation to protect, secure,
perfect or insure any Lien at any time held by it as security for the
Obligations or for this Guarantee or any property subject thereto. When making
any demand hereunder against the Guarantor, any Agent or any Guaranteed Creditor
may, but shall be under no obligation to, make a similar demand on any other
guarantor, and any failure by any Agent or any Guaranteed Creditor to make any
such demand or to collect any payments from any such other guarantor or any
release of any such other guarantor shall not relieve the Guarantor in respect
of which a demand or collection is not made, and shall not impair or affect the
rights and remedies, express or implied, or as a matter of law, of any Agent or
any Guaranteed Creditor against the Guarantor. For the purposes hereof "demand"
shall include the commencement and continuance of any legal proceedings.
6. GUARANTEE ABSOLUTE AND UNCONDITIONAL. The Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by each of the Agents, the
Issuing Lender or any Guaranteed Creditor upon this Guarantee or acceptance of
this Guarantee; the Obligations, and any of them, shall conclusively be deemed
to have been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon this Guarantee; and all dealings between the Company or
the Guarantor and any Agent, the Issuing Lender or any Guaranteed Creditor shall
likewise be conclusively presumed to have been had or consummated in reliance
upon this Guarantee. The Guarantor waives diligence, presentment, protest,
demand for payment and notice of default or nonpayment to or upon the Company or
the Guarantor with respect to the Obligations. The Guarantor understands and
agrees that this Guarantee shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity,
regularity or enforceability of the Credit Agreement, the Notes, any other
Credit Document, the Letters of Credit, any Interest Rate Agreements, any of the
Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by any Agent,
the Issuing Lender or any Guaranteed Creditor, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at any
time be available to or be asserted by the Company, the Guarantor or any other
Person against any Agent, the Issuing Lender or any Guaranteed Creditor, or (c)
any other circumstance whatsoever (with or without notice to or knowledge of the
Company or the Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of any of the Company for the
Obligations, or of the Guarantor under this Guarantee, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder against the
Guarantor, any Agent and/or any Guaranteed Creditor may, but shall be under no
obligation to, pursue such rights and remedies as it may have against the
Company or any other Person or against any collateral security or guarantee for
the Obligations or any right of offset with
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respect thereto, and any failure by any Agent or any Guaranteed Creditor to
pursue such other rights or remedies or to collect any payments from the Company
or any such other Person or to realize upon any such collateral security or
guarantee or to exercise any such right of offset, or any release of the Company
or any such other Person or any such collateral security, guarantee or right of
offset, shall not relieve the Guarantor of any liability hereunder, and shall
not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of any Agent or any Guaranteed Creditor against
the Guarantor. This Guarantee shall remain in full force and effect and be
binding in accordance with and to the extent of its terms upon the Guarantor and
the successors and assigns thereof, and shall inure to the benefit of the Agents
and the Guaranteed Creditors, and their respective successors, indorsees,
transferees and assigns, until all the Obligations and the obligations of the
Guarantor under this Guarantee shall have been satisfied by payment in full,
either no Letters of Credit are outstanding or each outstanding Letter of Credit
has been cash collateralized so that it is fully secured to the satisfaction of
the Administrative Agent and the Commitments shall be terminated,
notwithstanding that from time to time during the term of the Credit Agreement
the Company may be free from any Obligations.
7. REINSTATEMENT. This Guarantee shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of the Obligations is rescinded or must otherwise be restored or
returned by any Agent or any Guaranteed Creditor upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Company or of the
Guarantor, or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for, the Company or the
Guarantor or any substantial part of its property, or otherwise, all as though
such payments had not been made.
8. PAYMENTS. The Guarantor hereby guarantees that payments
hereunder will be paid in Dollars to the Administrative Agent without set-off or
counterclaim on the same basis as payments are made by the Company under
subsection 5.9(b) of the Credit Agreement, at the office of the Administrative
Agent located at 130 Liberty Street, New York, New York 10006, U.S.A. or at such
other office as the Administrative Agent may notify to the Guarantor in
accordance with Section 15.
9. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby
represents and warrants that:
(a) it is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority and possesses
all governmental franchises, licenses, permits, authorizations and
approvals necessary to enable it to use its corporate name and to own,
lease or otherwise hold its properties and assets and to carry on its
business as presently conducted other than such franchises,
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licenses, permits, authorizations and approvals the lack of which,
individually or in the aggregate, would not have a material adverse
effect on the business, assets, condition (financial or otherwise) or
results of operations of the Company and its Subsidiaries, taken as a
whole;
(b) it 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 or proposed conduct of its
business requires such qualification and is in compliance with all
Requirements of Law except to the extent that the failure to comply
therewith could not reasonably be expected to have a material adverse
effect on its business, assets, condition (financial or otherwise) or
results of operations or on its ability to perform its obligations
under this Guarantee or the other Credit Documents to which it is a
party;
(c) it has the corporate power and authority and the legal
right to execute and deliver, and to perform its obligations under,
this Guarantee and the other Credit Documents to which the Guarantor is
a party and to grant the Liens granted by it pursuant to the other
Credit Documents to which the Guarantor is a party, and has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Guarantee and the other Credit Documents to which
the Guarantor is a party and to grant the Liens granted by it pursuant
to the other Credit Documents to which it is a party;
(d) it (x) owns 100% of the issued and outstanding shares of
all classes of Capital Stock of the Company, except, if this
representation is being made at any time after the Closing Date, for
shares of common stock of the Company issued to Persons other than the
Guarantor pursuant to any IPO occurring after the Closing Date, as
permitted by subsection 9.18 of the Credit Agreement, and (y) has no
other Subsidiaries (other than Subsidiaries of the Company);
(e) no consent, license, permit, approval or authorization of,
or filing with, or notice or report to, or registration, filing or
declaration with, or other act by or in respect of, any arbitrator or
Governmental Authority and no consent of any other Person (including,
without limitation, any stockholder or creditor of the Guarantor), is
required in connection with the execution, delivery, performance,
validity or enforceability by or against the Guarantor of this
Guarantee and the other Credit Documents to which the Guarantor is a
party;
(f) this Guarantee and the other Credit Documents to which the
Guarantor is a party have been duly executed and delivered on behalf of
the Guarantor and each of this Guarantee and the other Credit Documents
to which the Guarantor is a party constitutes a legal, valid and
binding obligation of the
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Guarantor enforceable against the Guarantor in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity;
(g) the execution, delivery and performance of this Guarantee
and the other Credit Documents to which the Guarantor is a party do not
and will not violate any Requirement of Law or any material Contractual
Obligation of the Guarantor and will not result in the creation or
imposition of any Lien on any of the properties or revenues of the
Guarantor pursuant to any Requirement of Law or Contractual Obligation
other than the Liens created by the Holdings/Subsidiary Pledge
Agreement;
(h) no litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the
knowledge of the Guarantor, threatened by or against the Guarantor or
against any of its properties or revenues (i) with respect to this
Guarantee or the other Credit Documents to which the Guarantor is a
party or any of the transactions contemplated hereby or thereby or (ii)
which could have a material adverse effect on the business, assets,
condition (financial or otherwise) or results of operations of the
Guarantor and the Guarantor's Subsidiaries taken as a whole
or on the ability of any Guarantor to perform its obligations under
this Guarantee or the other Credit Documents to which it is a party;
and
(i) the Guarantor has filed or caused to be filed all material
tax returns required to be filed by it, and has paid all taxes due on
said returns or on any assessments made against it (other than those
the amount or validity of which is currently being contested in good
faith by appropriate proceedings for which adequate reserves have been
provided on its books).
(j) the Guarantor agrees that the foregoing representations
and warranties shall be deemed to have been made by the Guarantor on
each Borrowing Date occurring on or after the date hereof under the
Credit Agreement on and as of such Borrowing Date as though made
hereunder on and as of such Borrowing Date.
10. COVENANTS. The Guarantor hereby covenants and agrees with
the Agents and the Lenders that, from and after the date of this Guarantee until
the Obligations are paid in full and the Commitments are terminated and no
Letter of Credit is outstanding:
(a) the Guarantor shall engage in no business or activities,
other than holding the Capital Stock of the Company, and activities
incidental thereto;
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(b) the Guarantor shall not create, incur, assume or suffer to
exist any Indebtedness, other than Affiliate Loans incurred by the
Guarantor in an aggregate principal amount not to exceed the amount of
cash actually loaned to the Guarantor from the respective Affiliate or
Affiliates extending such loans; and
(c) Holdings shall at all times own 100% of the outstanding
capital stock of the Company, except for any shares of common stock of
the Company issued to Persons other than Holdings pursuant to an IPO,
in each case as permitted by subsection 9.18 of the Credit Agreement.
11. SEVERABILITY. Any provision of this Guarantee 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.
12. PARAGRAPH HEADINGS. The paragraph headings used in this
Guarantee are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
13. NO WAIVER; CUMULATIVE REMEDIES. None of the Agents, the
Issuing Lender nor any Guaranteed Creditor shall by any act (except by a written
instrument pursuant to paragraph 14 hereof), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any default or event of default under any Credit Document or in
any breach of any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of any Agent or any Guaranteed
Creditor, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by any Agent or any Guaranteed
Creditor of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which such Agent or such Guaranteed
Creditor would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any rights or remedies provided by law.
14. INTEGRATION; WAIVERS AND AMENDMENTS; SUCCESSORS AND
ASSIGNS; GOVERNING LAW. This Guarantee represents the entire agreement of the
Guarantor with respect to the subject matter hereof, except as otherwise set
forth in the Credit Agreement, and there are no promises or representations by
any Agent or any Guaranteed Creditor relative to the subject matter hereof not
reflected herein or in the
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other Credit Documents. In the event of a conflict among the Credit Documents
and the Credit Agreement, the Credit Agreement shall control. None of the terms
or provisions of this Guarantee may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by the Guarantor and
the Administrative Agent (in each case with the consents required by subsection
12.1 of the Credit Agreement), PROVIDED that any provision of this Guarantee may
be waived by the Agents and the Guaranteed Creditors in a letter or agreement
executed by the Administrative Agent or by telex or facsimile transmission from
the Administrative Agent (in each case with the consents required by subsection
12.1 of the Credit Agreement). This Guarantee shall be binding upon the
successors and assigns of the Guarantor and shall inure to the benefit of the
Agents and the Guaranteed Creditors and their respective successors and assigns.
THIS GUARANTEE SHALL BE GOVERNED BY, AND BE CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. NOTICES. All notices, requests and demands to or upon the
Guarantor or any Agent or any Guaranteed Creditor to be effective shall be in
writing or by telecopy or telex and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when delivered by hand, or, in
the case of mail, three days after deposit in the postal system, first class
postage pre-paid, or, in the case of telecopy notice, confirmation of receipt
received, or, in the case of telex notice, when sent, answerback received,
addressed to a party at the address provided for such party in the Credit
Agreement or Schedule I hereto, as the case may be, or to such other address as
may be hereafter notified to the parties hereto.
16. COUNTERPARTS. This Guarantee may be executed by one or
more of the parties hereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
17. AUTHORITY OF ADMINISTRATIVE AGENT. The Guarantor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Guarantee with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Guarantee shall, as between the Administrative
Agent, the other Agents and the Guaranteed Creditors, be governed by the Credit
Agreement and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Administrative Agent and the
Guarantor, the Administrative Agent shall be conclusively presumed to be acting
as agent for the Guaranteed Creditors with full and valid authority so to act or
refrain from acting, and the Guarantor shall not be under any obligation, or
entitlement, to make any inquiry respecting such authority.
18. SUBMISSION TO JURISDICTION; WAIVERS. (a) The Guarantor
hereby
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irrevocably and unconditionally:
1. submits for itself and its property in any legal
action or proceeding relating to this Guarantee or any other Credit
Document, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof;
2. 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;
3. agrees that service of process in any such action or
proceeding may be affected by mailing a copy thereof by registered or
certified mail, postage prepaid, to the Guarantor at its address set
forth on Schedule I hereto or at such other address of which the
Administrative Agent shall have been notified pursuant to paragraph 15;
and
4. 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 other jurisdiction.
(b) The Guarantor and the Administrative Agent, on behalf of
itself and the Guaranteed Creditors, hereby unconditionally waive trial by jury
in any legal action or proceeding referred to in paragraph (a) above.
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IN WITNESS WHEREOF, the undersigned has caused this Guarantee
to be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
WERNER HOLDING CO. (PA), INC.
By:_________________________________
Title:
Accepted and agreed to:
BANKERS TRUST COMPANY, as
Administrative Agent
By:_______________________________
Name:
Title:
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SCHEDULE I to
Holdings Guarantee
------------------
ADDRESS OF GUARANTOR
--------------------
Werner Holding Co. (PA), Inc.
93 Werner Road
Greenville, PA 16125
Attention: Eric J. Werner, Esq.
Telecopy: (412) 588-0618
with a copy to:
Werner Holding Co. (DE), Inc.
93 Werner Road
Greenville, PA 16125
Attention: Eric J. Werner, Esq.
Telecopy: (412) 588-0618
with a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166
Attention: Janet Vance, Esq.
Telecopy: (212) 351-4035
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EXHIBIT G-2 TO
CREDIT AGREEMENT
----------------
FORM OF
SUBSIDIARY GUARANTEE
--------------------
SUBSIDIARY GUARANTEE, dated as of November 24, 1997, made by
each of the corporations that are signatories hereto (the "GUARANTORS"), in
favor of BANKERS TRUST COMPANY, as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT") for the Agents and for the banks and other financial
institutions (the "LENDERS") that are parties to the Credit Agreement (as
hereafter defined) and for the benefit of the other Guaranteed Creditors
referred to below.
W I T N E S S E T H :
---------------------
WHEREAS, Werner Holding Co. (DE), Inc. (the "COMPANY"), is
party to a Credit Agreement, dated as of the date hereof, with the lenders from
time to time party thereto (the "LENDERS"), Bankers Trust Company, as
Administrative Agent and Co-Arranger, Merrill Lynch Capital Corporation, as
Syndication Agent and Co-Arranger, The Chase Manhattan Bank, as Documentation
Agent and Goldman Sachs Credit Partners L.P., as Co-Agent (together with the
Administrative Agent, Syndication Agent and Documentation Agent, the "AGENTS")
(as the same may be amended, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT");
WHEREAS, pursuant to the terms of the Credit Agreement, the
Lenders severally agreed to make certain extensions of credit to the Company;
WHEREAS, the Company owns directly or indirectly all of the
issued and outstanding Capital Stock of each Guarantor;
WHEREAS, the proceeds of the extensions of credit will be used
in part to enable the Company to make valuable transfers (as determined as
provided herein) to each Guarantor in connection with the operation of its
respective business;
WHEREAS, the Company and the Guarantors are engaged in related
businesses, and each Guarantor will derive substantial direct and indirect
benefit from the making of the extensions of credit; and
268
WHEREAS, under the Credit Agreement, the obligation of the
Lenders to make the extensions of credit to the Company on and after the date
hereof is conditioned upon, among other things, the execution and delivery by
the Guarantors of this Guarantee;
NOW, THEREFORE, in consideration of the premises and to induce
the Lenders to enter into the Credit Agreement and to make their respective
extensions of credit to the Company under the Credit Agreement, the Guarantors
hereby agree with and for the benefit of the Administrative Agent and the
Guaranteed Creditors as follows:
1. DEFINED TERMS. As used in this Guarantee, terms defined in
the Credit Agreement or in the preamble or recitals hereto are used herein as
therein defined, and the following term shall have the following meaning:
"OBLIGATIONS" (i) shall mean the unpaid principal amount of,
and interest on (including interest accruing on or after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Company, whether or
not a claim for such post-filing or post-petition interest is allowed),
the Loans and all other obligations and liabilities of the Company to
the each of the Agents, the Issuing Lender or the Lenders, whether
direct or indirect, absolute or contingent, due or to become due, or
now existing or hereafter incurred, which may arise under, out of, or
in connection with, the Credit Agreement, any Letter of Credit, the
other Credit Documents and any other document executed and delivered or
given in connection therewith or herewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all reasonable fees and
disbursements of counsel to the Agents, the Issuing Lender or the
Lenders that are required to be paid by the Company or the Guarantors
pursuant to the terms of the Credit Agreement) or otherwise, and (ii)
all obligations of the Company to any Lender or Lenders or its or their
Affiliates (each such Lender or Affiliate, even if the respective
Lender subsequently ceases to be a lender under the Credit Agreement
for any reason, together with such Lender's or Affiliate's successors
and assigns, collectively, the "Other Creditors" and, together with the
Administrative Agent, the Agents and the Lenders, the "Guaranteed
Creditors") under or in respect of any Interest Rate Agreement.
2. GUARANTEE. (a) Each Guarantor hereby, jointly and
severally, unconditionally and irrevocably, guarantees to the Administrative
Agent, for the ratable benefit of the Guaranteed Creditors and their respective
successors, indorsees, transferees and assigns, the prompt and complete payment
and performance by the Company when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations, and each of the Guarantors
further agrees to pay any and all expenses (including, without limitation, all
reasonable fees and disbursements of counsel)
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which may be paid or incurred by any Agent, the Issuing Lender or any Guaranteed
Creditor in enforcing, or obtaining advice of counsel in respect of, any rights
with respect to, or collecting, any or all of the Obligations and/or enforcing
any rights with respect to, or collecting against, the Guarantors under this
Guarantee.
(b) Anything herein or in any other Credit Document to the
contrary notwithstanding, the maximum liability of each Guarantor hereunder and
under the other Credit Documents shall in no event exceed the amount which can
be guaranteed by such Guarantor under applicable federal and state laws relating
to the insolvency of debtors.
(c) Each Guarantor agrees that the Obligations may at any time
and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing this Guarantee or affecting the rights of any Agent
or any Guaranteed Creditor hereunder.
(d) No payment or payments made by any of the Company, the
Guarantors, any other guarantor or any other Person or received or collected by
any Agent or any Guaranteed Creditor from the Company, the Guarantors, any other
guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of any Guarantor hereunder which
shall, notwithstanding any such payment or payments other than payments made by
such Guarantor in respect of the Obligations or payments received or collected
from such Guarantor in respect of the Obligations, remain liable for the
Obligations up to the maximum liability of such Guarantor hereunder until the
Obligations are paid in full, the Commitments are terminated and either no
Letters of Credit are outstanding or each outstanding Letter of Credit has been
cash collateralized so that it is fully secured to the satisfaction of the
Administrative Agent.
(e) Each Guarantor agrees that whenever, at any time, or from
time to time, it shall make any payment to any Agent or any Guaranteed Creditor
on account of its liability hereunder, it will notify the Administrative Agent
in writing that such payment is made under this Guarantee for such purpose.
3. RIGHT OF SET-OFF. Upon the occurrence of any Event of
Default under any Credit Document, each Guarantor hereby irrevocably authorizes
each Guaranteed Creditor at any time and from time to time without notice to
such Guarantor or any other guarantor, any such notice being expressly waived by
each Guarantor, to set off and appropriate and apply 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 Guaranteed Creditor to or for the credit or
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the account of the Guarantor, or any part thereof in such amounts as such
Guaranteed Creditor may elect, against and on account of the obligations and
liabilities of such Guarantor to such Guaranteed Creditor hereunder or under the
Credit Agreement, the Notes, or the other Credit Documents, as such Guaranteed
Creditor may elect, whether or not any Agent or any Guaranteed Creditor has made
any demand for payment and although such obligations, liabilities and claims may
be contingent or unmatured. Each Guaranteed Creditor agrees to notify such
Guarantor promptly of any such set-off and the application made by such
Guaranteed Creditor, PROVIDED that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each
Guaranteed Creditor under this paragraph are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which such
Guaranteed Creditor may have.
4. NO SUBROGATION. Notwithstanding any payment or payments
made by any of the Guarantors hereunder or any set-off or application of funds
of any of the Guarantors by any Guaranteed Creditor, no Guarantor shall be
entitled to be subrogated to any of the rights of any Agent or any Guaranteed
Creditor against the Company or any other Guarantor or any collateral security
or guarantee or right of offset held by any Guaranteed Creditor for the payment
of the Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from the Company or any other Guarantor in respect
of payments made by such Guarantor hereunder, and any such rights of subrogation
and reimbursement of the Guarantors are hereby waived until all amounts owing to
each of the Agents and the Guaranteed Creditors by the Company on account of the
Obligations are paid in full, the Commitments are terminated and either no
Letters of Credit are outstanding or each outstanding Letter of Credit has been
cash collateralized so that it is fully secured to the satisfaction of the
Administrative Agent.
5. AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS; WAIVER OF
RIGHTS. Each Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against any Guarantor and without notice to or
further assent by any Guarantor, any demand for payment of any of the
Obligations made by any Agent, the Issuing Lender or any Guaranteed Creditor may
be rescinded by such party and any of the Obligations continued, and the
Obligations, or the liability of any other party upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
any Agent, the Issuing Lender or any Guaranteed Creditor and the Credit
Agreement, the Notes, the other Credit Documents, any Letter of Credit, any
Interest Rate Agreement and any other collateral security document or other
guarantee or document in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Administrative Agent,
the Co-Arrangers (subject to subsection 12.16 of the Credit Agreement), the
Issuing Lender, any Lender or any Other Creditor may deem advisable
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from time to time, and any collateral security, guarantee or right of offset at
any time held by any Agent or any Guaranteed Creditor for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released. None of the
Agents nor any Guaranteed Creditor shall have any obligation to protect, secure,
perfect or insure any Lien at any time held by it as security for the
Obligations or for this Guarantee or any property subject thereto. When making
any demand hereunder against any particular Guarantor, any Agent or any
Guaranteed Creditor may, but shall be under no obligation to, make a similar
demand on any other Guarantor or guarantor, and any failure by any Agent or any
Lender to make any such demand or to collect any payments from any such other
Guarantor or guarantor or any release of any such other Guarantor or guarantor
shall not relieve such Guarantor in respect of which a demand or collection is
not made or any of the Guarantors not so released of their several obligations
or liabilities hereunder, and shall not impair or affect the rights and
remedies, express or implied, or as a matter of law, of any Agent or any
Guaranteed Creditor against any of the Guarantors. For the purposes hereof
"demand" shall include the commencement and continuance of any legal
proceedings.
6. GUARANTEE ABSOLUTE AND UNCONDITIONAL. Each Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by each of the Agents, the
Issuing Lender or any Guaranteed Creditor upon this Guarantee or acceptance of
this Guarantee; the Obligations, and any of them, shall conclusively be deemed
to have been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon this Guarantee; and all dealings between the Company or
any of the Guarantors and any Agent, the Issuing Lender or any Guaranteed
Creditor shall likewise be conclusively presumed to have been had or consummated
in reliance upon this Guarantee. Each Guarantor waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon the
Company or any of the Guarantors with respect to the Obligations. Each Guarantor
understands and agrees that this Guarantee shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (a) the
validity, regularity or enforceability of the Credit Agreement, the Notes, any
other Credit Document, the Letters of Credit, any Interest Rate Agreements, any
of the Obligations or any other collateral security therefor or guarantee or
right of offset with respect thereto at any time or from time to time held by
any Agent, the Issuing Lender or any Guaranteed Creditor, (b) any defense,
set-off or counterclaim (other than a defense of payment or performance) which
may at any time be available to or be asserted by the Company, any of the
Guarantors or any other Person against any Agent, the Issuing Lender or any
Guaranteed Creditor, or (c) any other circumstance whatsoever (with or without
notice to or knowledge of the Company or such Guarantor) which constitutes, or
might be construed to constitute, an equitable or legal discharge of any of the
Company for the Obligations, or of any Guarantor under this Guarantee, in
bankruptcy or in any other instance. When pursuing its rights and remedies
hereunder against any Guarantor, any Agent and/or any Guaranteed Creditor may,
but shall be
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under no obligation to, pursue such rights and remedies as it may have against
the Company or any other Person or against any collateral security or guarantee
for the Obligations or any right of offset with respect thereto, and any failure
by any Agent or any Guaranteed Creditor to pursue such other rights or remedies
or to collect any payments from the Company or any such other Person or to
realize upon any such collateral security or guarantee or to exercise any such
right of offset, or any release of the Company or any such other Person or any
such collateral security, guarantee or right of offset, shall not relieve such
Guarantor of any liability hereunder, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of any
Agent or any Guaranteed Creditor against such Guarantor. This Guarantee shall
remain in full force and effect and be binding in accordance with and to the
extent of its terms upon each Guarantor and the successors and assigns thereof,
and shall inure to the benefit of the Agents and the Guaranteed Creditors, and
their respective successors, indorsees, transferees and assigns, until all the
Obligations and the obligations of each Guarantor under this Guarantee shall
have been satisfied by payment in full, either no Letters of Credit are
outstanding or each outstanding Letter of Credit has been cash collateralized so
that it is fully secured to the satisfaction of the Administrative Agent and the
Commitments shall be terminated, notwithstanding that from time to time during
the term of the Credit Agreement the Company may be free from any Obligations.
7. REINSTATEMENT. This Guarantee shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of the Obligations is rescinded or must otherwise be restored or
returned by any Agent or any Guaranteed Creditor upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Company or of any
Guarantor, or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for, the Company or any
Guarantor or any substantial part of its property, or otherwise, all as though
such payments had not been made.
8. PAYMENTS. Each Guarantor hereby guarantees that payments
hereunder will be paid in Dollars to the Administrative Agent without set-off or
counterclaim on the same basis as payments are made by the Company under
subsection 5.9(b) of the Credit Agreement, at the office of the Administrative
Agent located at 130 Liberty Street, New York, New York 10006, U.S.A. or at such
other office as the Administrative Agent may notify to the Guarantor in
accordance with Section 15.
9. REPRESENTATIONS AND WARRANTIES. Each Guarantor hereby
represents and warrants that:
(a) it is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority and possesses
all governmental franchises,
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licenses, permits, authorizations and approvals necessary to enable it
to use its corporate name and to own, lease or otherwise hold its
properties and assets and to carry on its business as presently
conducted other than such franchises, licenses, permits, authorizations
and approvals the lack of which, individually or in the aggregate,
would not have a material adverse effect on the business, assets,
condition (financial or otherwise) or results of operations of the
Company and its Subsidiaries, taken as a whole;
(b) it 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 or proposed conduct of its
business requires such qualification and is in compliance with all
Requirements of Law except to the extent that the failure to comply
therewith could not reasonably be expected to have a material adverse
effect on its business, assets, condition (financial or otherwise) or
results of operations or on its ability to perform its obligations
under this Guarantee or the other Credit Documents to which it is a
party;
(c) it has the corporate power and authority and the legal
right to execute and deliver, and to perform its obligations under,
this Guarantee and the other Credit Documents to which the Guarantor is
a party and to grant the Liens granted by it pursuant to the other
Credit Documents to which such Guarantor is a party, and has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Guarantee and the other Credit Documents to which
such Guarantor is a party and to grant the Liens granted by it pursuant
to the other Credit Documents to which it is a party;
(d) it is a Subsidiary of the Company;
(e) no consent, license, permit, approval or authorization of,
or filing with, or notice or report to, or registration, filing or
declaration with, or other act by or in respect of, any arbitrator or
Governmental Authority and no consent of any other Person (including,
without limitation, any stockholder or creditor of any Guarantor), is
required in connection with the execution, delivery, performance,
validity or enforceability by or against any Guarantor of this
Guarantee and the other Credit Documents to which each Guarantor is a
party;
(f) this Guarantee and the other Credit Documents to which
each Guarantor is a party have been duly executed and delivered on
behalf of such Guarantor and each of this Guarantee and the other
Credit Documents to which each Guarantor is a party constitutes a
legal, valid and binding obligation of such Guarantor enforceable
against such Guarantor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
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creditors' rights generally and by general principles of equity;
(g) the execution, delivery and performance of this Guarantee
and the other Credit Documents to which each Guarantor is a party do
not and will not violate any Requirement of Law or any material
Contractual Obligation of such Guarantor and will not result in the
creation or imposition of any Lien on any of the properties or revenues
of such Guarantor pursuant to any Requirement of Law or Contractual
Obligation other than the Liens created by the Holdings/Subsidiary
Pledge Agreement and Subsidiary Security Agreement;
(h) no litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the
knowledge of such Guarantor, threatened by or against such Guarantor or
against any of its properties or revenues of any Guarantor (i) with
respect to this Guarantee or the other Credit Documents to which such
Guarantor is a party or any of the transactions contemplated hereby or
thereby or (ii) which could have a material adverse effect on the
business, assets, condition (financial or otherwise) or results of
operations of any Guarantor and any such Guarantor's Subsidiaries taken
as a whole or on the ability of any Guarantor to perform its
obligations under this Guarantee or the other Credit Documents to which
it is a party; and
(i) each Guarantor has filed or caused to be filed all
material tax returns required to be filed by it, and has paid all taxes
due on said returns or on any assessments made against it (other than
those the amount or validity of which is currently being contested in
good faith by appropriate proceedings for which adequate reserves have
been provided on its books).
(j) Each Guarantor agrees that the foregoing representations
and warranties shall be deemed to have been made by each Guarantor on
each Borrowing Date occurring on or after the date hereof under the
Credit Agreement on and as of such Borrowing Date as though made
hereunder on and as of such Borrowing Date.
10. COVENANTS. Each Guarantor hereby covenants and agrees with
the Agents and the Lenders that, from and after the date of this Guarantee until
the Obligations are paid in full and the Commitments are terminated and no
Letter of Credit is outstanding, each Guarantor will comply with provisions of
Sections 8 and 9 of the Credit Agreement to the extent such provisions apply to
such Guarantors.
11. SEVERABILITY. Any provision of this Guarantee 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
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not invalidate or render unenforceable such provision in any other jurisdiction.
12. PARAGRAPH HEADINGS. The paragraph headings used in this
Guarantee are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
13. NO WAIVER; CUMULATIVE REMEDIES. None of the agents, the
Issuing Lender nor any Guaranteed Creditor shall by any act (except by a written
instrument pursuant to paragraph 14 hereof), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any default or event of default under any Credit Document or in
any breach of any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of any Agent or any Guaranteed
Creditor, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by any Agent or any Guaranteed
Creditor of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which such Agent or such Guaranteed
Creditor would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any rights or remedies provided by law.
14. INTEGRATION; WAIVERS AND AMENDMENTS; SUCCESSORS AND
ASSIGNS; GOVERNING LAW. This Guarantee represents the entire agreement of each
Guarantor with respect to the subject matter hereof, except as otherwise set
forth in the Credit Agreement, and there are no promises or representations by
any Agent or any Guaranteed Creditor relative to the subject matter hereof not
reflected herein or in the other Credit Documents. In the event of a conflict
among the Credit Documents and the Credit Agreement, the Credit Agreement shall
control. None of the terms or provisions of this Guarantee may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by each Guarantor and the Administrative Agent (in each case with the
consents required by subsection 12.1 of the Credit Agreement), PROVIDED that (x)
any provision of this Guarantee may be waived by the Agents and the Guaranteed
Creditors in a letter or agreement executed by the Administrative Agent or by
telex or facsimile transmission from the Administrative Agent (in each case with
the consents required by subsection 12.1 of the Credit Agreement) and (y) any
Subsidiary of the Company that is required to become a Guarantor may execute a
counterpart of this Guarantee after the date hereof in accordance with the
requirements of the Credit Agreement and upon such execution (and without any
consent or action by any other Guarantor), such Subsidiary shall automatically
become a Guarantor hereunder by executing a counterpart hereof and delivering
same to the Administrative Agent.. This Guarantee shall be binding upon the
successors and assigns of each Guarantor and shall inure to the benefit of the
Agents and the Guaranteed Creditors and their respective
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successors and assigns. THIS GUARANTEE SHALL BE GOVERNED BY, AND BE CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. NOTICES. All notices, requests and demands to or upon each
Guarantor or any Agent or any Guaranteed Creditor to be effective shall be in
writing or by telecopy or telex and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when delivered by hand, or, in
the case of mail, three days after deposit in the postal system, first class
postage pre-paid, or, in the case of telecopy notice, confirmation of receipt
received, or, in the case of telex notice, when sent, answerback received,
addressed to a party at the address provided for such party in the Credit
Agreement or Schedule I hereto, as the case may be, or to such other address as
may be hereafter notified to the parties hereto.
16. COUNTERPARTS. This Guarantee may be executed by one or
more of the parties hereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
17. AUTHORITY OF ADMINISTRATIVE AGENT. Each Guarantor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Guarantee with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Guarantee shall, as between the Administrative
Agent, the other Agents and the Guaranteed Creditors, be governed by the Credit
Agreement and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Administrative Agent and each
Guarantor, the Administrative Agent shall be conclusively presumed to be acting
as agent for the Guaranteed Creditors with full and valid authority so to act or
refrain from acting, and no Guarantor shall be under any obligation, or
entitlement, to make any inquiry respecting such authority.
18. SUBMISSION TO JURISDICTION; WAIVERS. (a) Each Guarantor
hereby irrevocably and unconditionally:
1. submits for itself and its property in any legal
action or proceeding relating to this Guarantee or any other Credit
Document, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof;
2. consents that any such action or proceeding may be
brought in such courts, and waives any objection that it may now or
hereafter
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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;
3. agrees that service of process in any such action or
proceeding may be affected by mailing a copy thereof by registered or
certified mail, postage prepaid, to such Guarantor at its address set
forth on Schedule I hereto or at such other address of which the
Administrative Agent shall have been notified pursuant to paragraph 15;
and
4. 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 other jurisdiction.
(b) Each Guarantor and the Administrative Agent, on behalf of
itself and the Guaranteed Creditors, hereby unconditionally waive trial by jury
in any legal action or proceeding referred to in paragraph (a) above.
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IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee to be duly executed and delivered by its duly authorized officer as of
the day and year first above written.
ARDEE INVESTMENT CO., INC
KENTUCKY LADDER COMPANY
OLYMPUS PROPERTIES, INC.
PHOENIX MANAGEMENT SERVICES, INC.
R.D. ARIZONA LADDER CORP. (D/B/A/ R.D.
WERNER CO., INC.- ARIZONA)
WERNER CO.
WERNER FINANCIAL INC.
WERNER MANAGEMENT CO.
WIP TECHNOLOGIES, INC.
By:_________________________________
Title:
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SCHEDULE I to
Subsidiary Guarantee
--------------------
Addresses Of Guarantors
-----------------------
[Name of Guarantor]
[Address]
Attention:
Telecopy:
with a copy to:
Werner Holding Co. (DE), Inc.
93 Werner Road
Greenville, PA 16125
Attention: Eric J. Werner, Esq.
Telecopy: (412) 588-0618
with a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166
Attention: Janet Vance, Esq.
Telecopy: (212) 351-4035
280
EXHIBIT C
TO THE
CREDIT AGREEMENT
----------------
FORM OF RECEIVABLES FINANCING NOTE
$__________ New York, New York
November 24, 1997
FOR VALUE RECEIVED, the undersigned, WERNER HOLDING CO. (DE),
INC., a Delaware corporation (the "COMPANY"), hereby promises to pay to the
order of ________________ (the "LENDER") on the Receivables Financing
Termination Date, as defined in the Credit Agreement referred to below, at the
office of Bankers Trust Company, located at 130 Liberty Street, New York, New
York 10006, in lawful money of the United States and in immediately available
funds, the principal amount of the lesser of (a) _______________ DOLLARS
($__________) and (b) the aggregate unpaid principal amount of all Receivables
Financing Loans made by the Lender to the Company pursuant to subsection 4.1 of
the Credit Agreement defined below. The Company further agrees to pay interest
in like money at such office on the unpaid principal amount thereof from time to
time from the date hereof at the rates, and on the dates, specified in such
Credit Agreement. The holder of this Note is authorized to record the Borrowing
Date, Type and amount of each Receivables Financing Loan made by the Lender
pursuant to subsection 4.1 of the Credit Agreement, the date and amount of each
payment or prepayment of principal hereof, and the date of each interest rate
conversion or continuation pursuant to subsection 5.2 of the Credit Agreement
and the principal amount subject thereto, 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) and any such recordation shall constitute PRIMA FACIE
evidence of the accuracy of the information so recorded; PROVIDED that the
failure of the Lender to make any such recordation (or any error in such
recordation) shall not affect the obligations of the Company hereunder or under
the Credit Agreement.
This Note is one of the Receivables Financing Notes referred
to in the Credit Agreement, dated as of November 24, 1997, among the Company,
the lenders from time to time party thereto, Bankers Trust Company, as
Administrative Agent and Co-Arranger, Merrill Lynch Capital Corporation, as
Syndication Agent and Co-Arranger, The Chase Manhattan Bank, as Documentation
Agent, and Goldman Sachs
281
Credit Partners L.P., as Co-Agent (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), is subject to the
provisions thereof, is entitled to the benefits thereof and is subject to
optional and mandatory prepayment in whole or in part as provided therein. Terms
used herein which are defined in the Credit Agreement shall have such defined
meanings unless otherwise defined herein.
This Note is secured and guaranteed as provided in the
Security Documents and the Guarantees. Reference is hereby made to the Security
Documents and the Guarantees for a description of the properties and assets in
which a security interest has been granted, the nature and extent of the
security and guarantees, the terms and conditions upon which the security
interest and each guarantee was granted and the rights of the holder of this
Note in respect thereof. The undersigned hereby agrees to pay all costs and
expenses incurred by the Lender in connection with the enforcement of its rights
and remedies under the Credit Agreement, this Note, the Security Documents and
each other Credit Document.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Note shall become, or may be declared to be, immediately due and payable,
all as provided therein.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH
THE TERMS OF THE CREDIT AGREEMENT. TRANSFERS OF THIS NOTE MUST BE RECORDED IN
THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF THE
CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
WERNER HOLDING CO. (DE), INC.
By:
-----------------------------------
Title:
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Schedule A to
Receivables Financing Note
ALTERNATE BASE RATE LOANS
AND REPAYMENTS OF ALTERNATE BASE RATE LOANS
Unpaid Principal
Amount of Amount Converted Amount Converted Balance of
Alternate Base to Alternate Base Amount of to Eurodollar Alternate Base Notation Made
Date Rate Loans Rate Loans Principal Repaid Loans Rate Loans By
- ------------ ---------------- --------------------- ----------------- ----------------- ------------------ --------------
- ------------ ---------------- --------------------- ----------------- ----------------- ------------------ --------------
- ------------ ---------------- --------------------- ----------------- ----------------- ------------------ --------------
- ------------ ---------------- --------------------- ----------------- ----------------- ------------------ --------------
- ------------ ---------------- --------------------- ----------------- ----------------- ------------------ --------------
- ------------ ---------------- --------------------- ----------------- ----------------- ------------------ --------------
- ------------ ---------------- --------------------- ----------------- ----------------- ------------------ --------------
- ------------ ---------------- --------------------- ----------------- ----------------- ------------------ --------------
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- ------------ ---------------- --------------------- ----------------- ----------------- ------------------ --------------
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Schedule B to
Receivables Financing Note
--------------------------
EURODOLLAR LOANS
AND REPAYMENTS OF EURODOLLAR LOANS
----------------------------------
Amount Interest Period Amount
Amount of Converted to and Eurodollar Amount of Converted to Unpaid Principal
Eurodollar Eurodollar Rate with Principal Alternate Base Balance of Notation
Date Loans Loans Respect Thereto Repaid Rate Loans Eurodollar Loans Made By
- -------------- ------------ ------------ ------------------ ----------- -------------- --------------------- ---------
- -------------- ------------ ------------ ------------------ ----------- -------------- --------------------- ---------
- -------------- ------------ ------------ ------------------ ----------- -------------- --------------------- ---------
- -------------- ------------ ------------ ------------------ ----------- -------------- --------------------- ---------
- -------------- ------------ ------------ ------------------ ----------- -------------- --------------------- ---------
- -------------- ------------ ------------ ------------------ ----------- -------------- --------------------- ---------
- -------------- ------------ ------------ ------------------ ----------- -------------- --------------------- ---------
- -------------- ------------ ------------ ------------------ ----------- -------------- --------------------- ---------
- -------------- ------------ ------------ ------------------ ----------- -------------- --------------------- ---------
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- -------------- ------------ ------------ ------------------ ----------- -------------- --------------------- ---------
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EXHIBIT M TO
CREDIT AGREEMENT
----------------
FORM OF BORROWING BASE CERTIFICATE AS OF [DATE]
To: The Lenders party to the Credit Agreement, dated
as of November 24, 1997, among Werner Holding
Co. (DE), Inc., the Lenders from time to time
party thereto, Bankers Trust Company, as
Administrative Agent and Co-Arranger, Merrill
Lynch Capital Corporation, as Syndication Agent
and Co-Arranger, The Chase Manhattan Bank, as
Documentation Agent, and Goldman Sachs Credit
Partners L.P., as Co-Agent (such Credit
Agreement, as in effect on the date of this
Certificate, being herein called the "CREDIT
AGREEMENT"). Unless otherwise defined herein,
capitalized terms used in this Certificate shall have
the meanings set forth in the Credit Agreement.
1. ACCOUNTS RECEIVABLE AMOUNT
Total face amount of the receivables of the Company and the
Wholly-Owned Subsidiary Guarantors which conform to the
representations and warranties with respect to receivables
contained in the Security Agreements (including, without
limitation, that the Administrative Agent shall have and maintain a
first priority perfected security interest in all such receivables)
$_________
Less:
Returns, discounts, claims, credits and allowances
of any nature (whether issued, owing, granted or
outstanding)
($_________)
Reserves taken by the Company or its respective
Subsidiary with respect to the receivables
($________)
285
Bill and hold (deferred shipment) transactions and
progress billings ($________)
Contracts or sales to any Affiliate ($________)
All receivables which have not been paid in full within 120 days after
the invoice date thereof or which have been disputed by the account
debtor ($________)
Receivables of any account debtor of which 15% or more of the aggregate
outstanding receivables of such account debtor owed to the Company
and Wholly-Owned Subsidiary Guarantors would be excluded pursuant
to the preceding item ($________)
Receivables of account debtors residing or located
outside the United States ($________)
Receivables of any account debtor with respect to which any action or
event of the types described in subsection 10(f) of the Credit
Agreement has occurred ($________)
To the extent that the receivables of any account debtor exceed 10%
(or, in the case of a Qualified Account Debtor, 25%) of the total
outstanding receivables of all account debtors owed to the Company
and Wholly-Owned Subsidiary Guarantors, all receivables of such
account debtor in excess of such 10% (or 25%) ($________)
Receivables with respect to which the Administrative Agent does not
have a valid, first priority and perfected security interest ($________)
Receivables subject to a Lien (other than (x) Liens granted to the
Administrative Agent as contemplated under the Credit Agreement and
(y) so long as the Administrative Agent maintains a first priority
perfected security interest in such receivables, junior liens that
are Permitted Liens as described in clauses (a) and (b) of
subsection 9.2 of the Credit Agreement) ($________)
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2. Eligible Receivables
(Net Amount of No. ) ($________)
3. Borrowing Base (80% of Eligible Receivables) $________
4. Outstanding Principal Amount of Receivables
Financing Loans $________
5. Borrowing Base Surplus (Deficiency)
(No. 3 minus No. 4) $________
The undersigned hereby certifies on behalf of the Company and not
in his or her individual capacity that all of the information provided above is
true and correct as of the date first above written.
IN WITNESS WHEREOF, each of the undersigned has hereunto set his or her
hand this ____ day of ___________, ____.
WERNER HOLDING CO. (DE), INC.
By_______________________________
Name:
Title:
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EXHIBIT B
TO THE
CREDIT AGREEMENT
----------------
FORM OF REVOLVING CREDIT NOTE
$__________ New York, New York
November 24, 1997
FOR VALUE RECEIVED, the undersigned, WERNER HOLDING CO. (DE),
INC., a Delaware corporation (the "COMPANY"), hereby promises to pay to the
order of ________________ (the "LENDER") on the Revolving Credit Termination
Date, as defined in the Credit Agreement referred to below, at the office of
Bankers Trust Company, located at 130 Liberty St., New York, New York 10006, in
lawful money of the United States and in immediately available funds, the
principal amount of the lesser of (a) _______________ DOLLARS ($__________) and
(b) the aggregate unpaid principal amount of all Revolving Credit Loans made by
the Lender to the Company pursuant to subsection 3.1 of the Credit Agreement
defined below. The Company further agrees to pay interest in like money at such
office on the unpaid principal amount hereof from time to time from the date
hereof at the rates, and on the dates, specified in such Credit Agreement. The
holder of this Note is authorized to record the Borrowing Date, Type and amount
of each Revolving Credit Loan made by the Lender pursuant to subsection 3.1 of
the Credit Agreement, the date and amount of each payment or prepayment of
principal thereof, and the date of each interest rate conversion or continuation
pursuant to subsection 5.2 of the Credit Agreement and the principal amount
subject thereto, 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) and
any such recordation shall constitute PRIMA FACIE evidence of the accuracy of
the information so recorded; PROVIDED that the failure of the Lender to make any
such recordation (or any error in such recordation) shall not affect the
obligations of the Company hereunder or under the Credit Agreement.
This Note is one of the Revolving Credit Notes referred to in
the Credit Agreement, dated as of November 24, 1997, among the Company, the
lenders from time to time party thereto, Bankers Trust Company, as
Administrative Agent and Co-Arranger, Merrill Lynch Capital Corporation, as
Syndication Agent and Co-Arranger, The Chase Manhattan Bank, as Documentation
Agent, and Goldman Sachs Credit Partners L.P., as Co-Agent (as amended,
supplemented or otherwise modified from
288
time to time, the "CREDIT AGREEMENT", is subject to the provisions thereof, is
entitled to the benefits thereof and is subject to optional and mandatory
prepayment in whole or in part as provided therein. Terms used herein which are
defined in the Credit Agreement shall have such defined meanings unless
otherwise defined herein.
This Note is secured and guaranteed as provided in the
Security Documents and the Guarantees. Reference is hereby made to the Security
Documents and the Guarantees for a description of the properties and assets in
which a security interest has been granted, the nature and extent of the
security and guarantees, the terms and conditions upon which the security
interest and each guarantee was granted and the rights of the holder of this
Note in respect thereof. The undersigned hereby agrees to pay all costs and
expenses incurred by the Lender in connection with the enforcement of its rights
and remedies under the Credit Agreement, this Note, the Security Documents and
each other Credit Document.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Note shall become, or may be declared to be, immediately due and payable,
all as provided therein.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH
THE TERMS OF THE CREDIT AGREEMENT. TRANSFERS OF THIS NOTE MUST BE RECORDED IN
THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF THE
CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
WERNER HOLDING CO. (DE), INC.
By:
--------------------------------
Title:
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Schedule A to
Revolving Credit Note
---------------------
ALTERNATE BASE RATE LOANS
AND REPAYMENTS OF ALTERNATE BASE RATE LOANS
-------------------------------------------
Unpaid Principal
Amount of Amount Converted Amount Converted Balance of
Alternate Base to Alternate Base Amount of to Eurodollar Alternate Base Notation Made
Date Rate Loans Rate Loans Principal Repaid Loans Rate Loans By
- --------- ----------------- ------------------- ---------------- ------------------- ---------------- --------------
- --------- ----------------- ------------------- ---------------- ------------------- ---------------- --------------
- --------- ----------------- ------------------- ---------------- ------------------- ---------------- --------------
- --------- ----------------- ------------------- ---------------- ------------------- ---------------- --------------
- --------- ----------------- ------------------- ---------------- ------------------- ---------------- --------------
- --------- ----------------- ------------------- ---------------- ------------------- ---------------- --------------
- --------- ----------------- ------------------- ---------------- ------------------- ---------------- --------------
- --------- ----------------- ------------------- ---------------- ------------------- ---------------- --------------
- --------- ----------------- ------------------- ---------------- ------------------- ---------------- --------------
- --------- ----------------- ------------------- ---------------- ------------------- ---------------- --------------
- --------- ----------------- ------------------- ---------------- ------------------- ---------------- --------------
- --------- ----------------- ------------------- ---------------- ------------------- ---------------- --------------
- --------- ----------------- ------------------- ---------------- ------------------- ---------------- --------------
- --------- ----------------- ------------------- ---------------- ------------------- ---------------- --------------
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Schedule B to
Revolving Credit Note
---------------------
EURODOLLAR LOANS
AND REPAYMENTS OF EURODOLLAR LOANS
----------------------------------
Interest Period Amount
Amount of Amount and Eurodollar Amount of Converted to Unpaid Principal
Eurodollar Converted to Rate with Principal Alternate Base Balance of Notation
Date Loans Eurodollar Loans Respect Thereto Repaid Rate Loans Eurodollar Loans Made By
- ---------- ------------- ----------------- ---------------- ------------ ---------------- ---------------- -------
- ---------- ------------- ----------------- ---------------- ------------ ---------------- ---------------- -------
- ---------- ------------- ----------------- ---------------- ------------ ---------------- ---------------- -------
- ---------- ------------- ----------------- ---------------- ------------ ---------------- ---------------- -------
- ---------- ------------- ----------------- ---------------- ------------ ---------------- ---------------- -------
- ---------- ------------- ----------------- ---------------- ------------ ---------------- ---------------- -------
- ---------- ------------- ----------------- ---------------- ------------ ---------------- ---------------- -------
- ---------- ------------- ----------------- ---------------- ------------ ---------------- ---------------- -------
- ---------- ------------- ----------------- ---------------- ------------ ---------------- ---------------- -------
- ---------- ------------- ----------------- ---------------- ------------ ---------------- ---------------- -------
- ---------- ------------- ----------------- ---------------- ------------ ---------------- ---------------- -------
- ---------- ------------- ----------------- ---------------- ------------ ---------------- ---------------- -------
- ---------- ------------- ----------------- ---------------- ------------ ---------------- ---------------- -------
- ---------- ------------- ----------------- ---------------- ------------ ---------------- ---------------- -------
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EXHIBIT I TO
CREDIT AGREEMENT
----------------
FORM OF
SUBSECTION 5.11(d)(2) CERTIFICATE
Reference is hereby made to the Credit Agreement, dated as of
November 24, 1997 among Werner Holding Co. (DE), Inc., the lenders party
thereto, Bankers Trust Company, as Administrative Agent and Co-Arranger, Merrill
Lynch Capital Corporation, as Syndication Agent and Co-Arranger, The Chase
Manhattan Bank, as Documentation Agent, and Goldman Sachs Credit Partners L.P.,
as Co-Agent (the "CREDIT AGREEMENT"). Pursuant to the provisions of subsection
5.11(d)(2) of the Credit Agreement, the undersigned hereby certifies that it is
not a "bank" as such term is used in Section 881(c)(3)(A) of the Internal
Revenue Code of 1986, as amended.
[NAME OF LENDER]
By: __________________________
Title:
Date:
292
EXHIBIT A-2
TO THE
CREDIT AGREEMENT
----------------
FORM OF C TERM LOAN NOTE
$__________ New York, New York
November 24, 1997
FOR VALUE RECEIVED, the undersigned, WERNER HOLDING CO. (DE),
INC., a Delaware corporation (the "Company"), promises to pay to the order of
_______________ (the "LENDER") on the C Maturity Date, as defined in the Credit
Agreement referred to below, at the office of Bankers Trust Company, located at
130 Liberty Street, New York, New York 10006, in lawful money of the United
States and in immediately available funds, the principal amount of the lesser of
(a) ____________________ DOLLARS ($__________) and (b) the aggregate unpaid
principal amount of all C Term Loans made by the Lender to the Company pursuant
to subsection 2.1(b) of the Credit Agreement defined below. The Company further
agrees to pay interest in like money at said office from the date hereof on the
unpaid principal amount hereof from time to time outstanding at the rates, and
on the dates, specified in the Credit Agreement. The holder of this Note is
authorized to record the Borrowing Date, Type and amount of the C Term Loan made
by the Lender pursuant to subsection 2.1(b) of the Credit Agreement, the date
and amount of each payment or prepayment of principal thereof, and the date of
each interest rate conversion or continuation pursuant to subsection 5.2 of the
Credit Agreement and the principal amount subject thereto, 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) and any such recordation shall
constitute PRIMA FACIE evidence of the information so recorded, PROVIDED that
the failure of the Lender to make such recordation (or any error in such
recordation) shall not affect the obligations of the Company hereunder or under
the Credit Agreement.
This Note is one of the C Term Loan Notes referred to in the
Credit Agreement, dated as of November 24, 1997 among the Company, the lenders
from time to time party thereto (including the Lender), Bankers Trust Company,
as Administrative Agent and Co-Arranger, Merrill Lynch Capital Corporation, as
Syndication Agent and Co-Arranger, The Chase Manhattan Bank, as Documentation
Agent, and Goldman Sachs Credit Partners L.P., as Co-Agent (as the same may be
from time to time amended, supplemented or otherwise modified from time to time,
293
the "CREDIT AGREEMENT"), is subject to the provisions thereof, is entitled to
the benefits thereof and is subject to optional and mandatory prepayment in
whole or in part as provided therein. Terms used herein which are defined in the
Credit Agreement shall have such defined meanings unless otherwise defined
herein.
This Note is secured and guaranteed as provided in the
Security Documents and the Guarantees. Reference is hereby made to the Security
Documents and the Guarantees for a description of the properties and assets in
which a security interest has been granted, the nature and extent of the
security and guarantees, the terms and conditions upon which the security
interest and each guarantee was granted and the rights of the holder of this
Note in respect thereof. The undersigned agrees to pay all costs and expenses
incurred by the Lender in connection with the enforcement of its rights and
remedies under the Credit Agreement, this Note, the Security Documents and each
other Credit Document.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Note shall become, or may be declared to be, immediately due and payable,
all as provided therein.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH
THE TERMS OF THE CREDIT AGREEMENT. TRANSFERS OF THIS NOTE MUST BE RECORDED IN
THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF THE
CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
WERNER HOLDING CO. (DE), INC.,
By:_____________________________
Title:
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294
Schedule A to
C TERM LOAN NOTE
ALTERNATE BASE RATE LOANS
AND REPAYMENTS OF ALTERNATE BASE RATE LOANS
Amount of Amount Converted to Amount Unpaid Principal
Alternate Base Alternate Base Rate Amount of Converted to Balance of Alternate Notation
Date Rate Loans Loans Principal Repaid Eurodollar Loans Base Rate Loans Made by
- ------ ----------------- --------------------- ----------------- ----------------- ----------------------- -------
- ------ ----------------- --------------------- ----------------- ----------------- ----------------------- -------
- ------ ----------------- --------------------- ----------------- ----------------- ----------------------- -------
- ------ ----------------- --------------------- ----------------- ----------------- ----------------------- -------
- ------ ----------------- --------------------- ----------------- ----------------- ----------------------- -------
- ------ ----------------- --------------------- ----------------- ----------------- ----------------------- -------
- ------ ----------------- --------------------- ----------------- ----------------- ----------------------- -------
- ------ ----------------- --------------------- ----------------- ----------------- ----------------------- -------
- ------ ----------------- --------------------- ----------------- ----------------- ----------------------- -------
- ------ ----------------- --------------------- ----------------- ----------------- ----------------------- -------
- ------ ----------------- --------------------- ----------------- ----------------- ----------------------- -------
- ------ ----------------- --------------------- ----------------- ----------------- ----------------------- -------
- ------ ----------------- --------------------- ----------------- ----------------- ----------------------- -------
- ------ ----------------- --------------------- ----------------- ----------------- ----------------------- -------
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Schedule B to
C Term Loan Note
----------------
EURODOLLAR LOANS
AND REPAYMENTS OF EURODOLLAR LOANS
----------------------------------
Amount Unpaid
Interest Period Converted to Principal
Amount of Amount and Eurodollar Amount of Alternate Balance of
Eurodollar Converted to Rate with Respect Principal Base Rate Eurodollar Notation
Date Loans Eurodollar Loans Thereto Repaid Loans Loans Made By
- ------ --------------- ------------------ ----------------- ----------- -------------- ----------- ---------
- ------ --------------- ------------------ ----------------- ----------- -------------- ----------- ---------
- ------ --------------- ------------------ ----------------- ----------- -------------- ----------- ---------
- ------ --------------- ------------------ ----------------- ----------- -------------- ----------- ---------
- ------ --------------- ------------------ ----------------- ----------- -------------- ----------- ---------
- ------ --------------- ------------------ ----------------- ----------- -------------- ----------- ---------
- ------ --------------- ------------------ ----------------- ----------- -------------- ----------- ---------
- ------ --------------- ------------------ ----------------- ----------- -------------- ----------- ---------
- ------ --------------- ------------------ ----------------- ----------- -------------- ----------- ---------
- ------ --------------- ------------------ ----------------- ----------- -------------- ----------- ---------
- ------ --------------- ------------------ ----------------- ----------- -------------- ----------- ---------
- ------ --------------- ------------------ ----------------- ----------- -------------- ----------- ---------
- ------ --------------- ------------------ ----------------- ----------- -------------- ----------- ---------
- ------ --------------- ------------------ ----------------- ----------- -------------- ----------- ---------
- ------ --------------- ------------------ ----------------- ----------- -------------- ----------- ---------
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EXHIBIT H-2 TO
CREDIT AGREEMENT
----------------
FORM OF
HOLDINGS/SUBSIDIARY PLEDGE AGREEMENT
Agreement (this "Agreement"), dated as of November 24, 1997,
made by the corporations that are signatories hereto (the "PLEDGORS"), in favor
of BANKERS TRUST COMPANY, as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT"), for the Agents and for the several lenders (the
"LENDERS") from time to time parties to the Credit Agreement (as defined below)
and for the benefit of the Secured Creditors referred to below.
W I T N E S S E T H :
---------------------
WHEREAS, pursuant to the Credit Agreement, dated as of the
date hereof (as amended, supplemented or otherwise modified from time to time,
the "CREDIT AGREEMENT"), among Werner Holding Co. (DE), Inc. (the "COMPANY"),
the Lenders, Bankers Trust Company, as Administrative Agent and Co-Arranger,
Merrill Lynch Capital Corporation, as Syndication Agent and Co-Arranger, The
Chase Manhattan Bank, as Documentation Agent, and Goldman Sachs Credit Partners
L.P., as Co-Agent (together with the Administrative Agent, Syndication Agent and
Documentation Agent, the "AGENTS"), the Lenders have severally agreed to make
loans to, and the Issuing Lender (as defined in the Credit Agreement) has agreed
to issue, and certain of the Lenders have agreed to participate in, certain
letters of credit for the account of, the Company upon the terms and subject to
the conditions set forth therein;
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective loans to, and the obligation of the Issuing
Lender to issue, and the Lenders to participate in, letters of credit for the
account of, the Company under the Credit Agreement that the Pledgors guarantee
payment and performance of the Company's obligations under the Credit Agreement,
the Notes and the other Loan Documents; and
WHEREAS, in satisfaction of such condition, each Pledgor has
entered
297
into (x) the case of Holdings, a guarantee of even date herewith (as
amended, supplemented or otherwise modified from time to time, the "HOLDINGS
GUARANTEE") and (y) in the case of each other Pledgor, a Guarantee of even date
herewith (as amended, supplemented or otherwise modified from time to time, the
"SUBSIDIARY GUARANTEE" and, together with the Holdings Guarantee, the
"GUARANTEES") for the benefit of the Agent and the Lenders;
WHEREAS, it is a further condition precedent to the obligation
of the Lenders to make their respective loans to, and the obligation of the
Issuing Lender to issue, and the Lenders to participate in, letters of credit
for the account of, the Company under the Credit Agreement that the Pledgors
shall have executed and delivered this Agreement to the Administrative Agent for
the ratable benefit of the Secured Creditors to secure payment and performance
of such Pledgors' obligations under the Guarantees;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent, the other Agents, the Issuing Lender and the Lenders
to enter into the Credit Agreement and to induce the Lenders to make their
respective loans and the Issuing Lender to issue, and the Lenders to participate
in, the letters of credit under the Credit Agreement, each Pledgor hereby agrees
with the Administrative Agent, for the ratable benefit of the Secured Creditors,
as follows:
1. DEFINED TERMS. Unless otherwise defined herein, terms that
are defined in the Credit Agreement and used herein are so used as so defined,
and the following terms shall have the following meanings:
"AGREEMENT" means this Pledge Agreement, as the same may be
amended, modified or otherwise supplemented from time to time.
"CODE" means the Uniform Commercial Code from time to time in
effect in the State of New York.
"COLLATERAL" means (w) the Pledged Stock, (x) the Pledged
Notes, (y) the Undelivered Notes and (z) all Proceeds thereof.
"CREDIT AGREEMENT OBLIGATIONS" has the meaning assigned that
term in the definition of "Obligations" contained herein.
"ISSUERS" means the collective reference to the companies
identified on SCHEDULE I attached hereto as the issuers of the Pledged
Stock on the Closing Date and any other issuer of Pledged Stock
acquired thereafter; individually, each an "ISSUER."
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"OBLIGATIONS" means (i) the collective reference to the unpaid
principal of and interest on the Notes and all other obligations and
liabilities of each Assignor to the Administrative Agent, the other
Agents and the Lenders (including, without limitation, interest
accruing at the then applicable rate provided in the Credit Agreement
after the maturity of the Loans and interest accruing at the then
applicable rate provided in the Credit Agreement after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to such Pledgor, whether or
not a claim for post-filing or post-petition interest is allowed in
such proceeding), whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may
arise under, out of, or in connection with, the Credit Agreement, the
Notes, this Security Agreement, the other Credit Documents or any other
document made, delivered or given in connection therewith, in each case
whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Administrative
Agent, the other Agents or to the Lenders that are required to be paid
by each Pledgor pursuant to the terms of the Credit Agreement or this
Agreement or any other Credit Document) (collectively, "CREDIT
AGREEMENT OBLIGATIONS" and (ii) all obligations of the Company to any
Lender or Lenders or its or their Affiliates (each such Lender or
Affiliate, even if the respective Lender subsequently ceases to be a
lender under the Credit Agreement for any reason, together with such
Lender's or Affiliate's successors and assigns, collectively, the
"Other Creditors" and, together with the Administrative Agent, the
Agents and the Lenders, the "Secured Creditors") under or in respect of
any Interest Rate Agreement, and all guarantee thereof by any Pledgor
(collectively, "OTHER OBLIGATIONS").
"OBLIGORS" means the collective reference to the Persons
identified on SCHEDULE II attached hereto as the obligors in respect of
the Pledged Notes and the respective Obligor or Obligors with respect
to any other promissory notes created or acquired after the date
hereof; individually, each an "OBLIGOR."
"OTHER OBLIGATIONS" has the meaning assigned that term in the
definition of "Obligations" contained herein.
"PLEDGED NOTES" means all promissory notes from time to time
issued to, or held by, any Pledgor other than the Undelivered Notes.
"PLEDGED STOCK" means (x) with respect to corporations
incorporated under the laws of the United States or any State or
territory thereof (each a "Domestic Corporation"), all of the shares of
capital stock, at any time owned by any Pledgor, in such Domestic
Corporations, together with all stock
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299
certificates, options or rights of any nature whatsoever that may be
issued or granted by any such Domestic Corporation to such Pledgor
while this Agreement is in effect (including, in respect of Holdings,
in any event 100% of the Capital Stock of the Company, other than
common stock issued to Persons other than Holdings pursuant to one or
more IPOs); and (y) in the case of corporations not Domestic
Corporations (each a "FOREIGN CORPORATION"), all of the shares of
capital stock, at any time owned by any Pledgor, in such Foreign
Corporations, together with all stock certificates, options or rights
of any nature whatsoever that may be issued or granted by any such
Foreign Corporation to such Pledgor while this Agreement is in effect,
provided that no Pledgor shall be required to pledge hereunder, and
nothing herein shall be deemed to constitute a pledge hereunder of,
more than 65% of the total combined voting power of all classes of
capital stock of any such Foreign Corporation entitled to vote
(although 100% of all classes of non-voting stock of each Foreign
Corporation shall be required to be pledged). Notwithstanding anything
to the contrary contained above or elsewhere in this Agreement, Pledged
Stock shall not include shares of capital stock of (i) Immaterial
Subsidiaries in the process of dissolution on the Closing Date (so long
as same continue to constitute Immaterial Subsidiaries in the process
of dissolution), (ii) Captive Insurance Subsidiaries, (iii) any joint
venture or other Person referred to in subsection 9.6(h) of the Credit
Agreement, in which (x) there are no investments by the Company or any
of its other Subsidiaries on the Closing Date and (y) all investments
made by the Company and its other Subsidiaries made after the Closing
Date are made pursuant to subsection 9.6(h) of the Credit Agreement and
(iv) in the circumstances, and to the extent, provided in subsection
23(c) hereof and subsection 8.9(g) of the Credit Agreement, any
Receivables SPV the pledge of the capital stock of which pursuant to
this Agreement is not permitted pursuant to the terms of the respective
Receivables Facility.
"PROCEEDS" means all "proceeds", as such term is defined in
Section 9-306(1) of the Code on the date hereof, of the Pledged Stock
and the Pledged Notes, and, in any event, shall include, without
limitation, (x) all dividends or other income from the Pledged Stock,
collections thereon or distributions with respect thereto and (y) all
payments in respect of the Pledged Notes.
"SECURED CREDITORS" has the meaning assigned that term in the
definition of "Obligations" contained herein.
"UNDELIVERED NOTES" means promissory issued (x) in respect of
Indebtedness permitted under subsection 9.1(c) of the Credit Agreement,
(y) in respect of loans or advances permitted under subsection 9.6(h)
of the Credit Agreement or (z) in the principal amount of less than
$250,000 individually or
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300
$1,000,000 in the aggregate; provided that Undelivered Notes shall
cease to constitute Undelivered Notes, and shall thereafter constitute
Pledged Notes, at such time, if any, as same are delivered as required
by clause (ii) of subsection 7(a) of this Agreement.
2. PLEDGE; GRANT OF SECURITY INTEREST; UNCERTIFICATED
SECURITIES. (a) Each Pledgor hereby delivers to the Administrative Agent, for
the ratable benefit of the Secured Creditors, all certificates or instruments
representing or evidencing the Pledged Stock and the Pledged Notes on the date
hereof, and hereby transfers and grants to the Administrative Agent, for the
ratable benefit of the Secured Creditors, a first priority security interest in
all of such Pledgor's right, title and interest in the Collateral, as collateral
security for the prompt and complete payment and performance when due (whether
at the stated maturity, by acceleration or otherwise) of the Obligations.
(b) Notwithstanding anything to the contrary contained in
subsection 2(a) hereof, if any Pledged Stock or Pledged Notes (whether now owned
or hereafter acquired) are uncertificated securities, the relevant Pledgor shall
promptly notify the Administrative Agent thereof, and shall promptly take all
actions required to perfect the security interest of the Administrative Agent
under applicable law (including, in any event, under Section 9-115 of the Code,
if applicable). Each Pledgor further agrees to take such actions as the
Administrative Agent deems reasonably necessary or desirable to effect the
foregoing and to permit the Administrative Agent to exercise any of its rights
and remedies hereunder.
3. STOCK POWERS. Concurrently with the delivery to the
Administrative Agent of (x) each certificate representing one or more shares of
Pledged Stock, each Pledgor shall deliver an undated stock power covering such
certificate, duly executed in blank by such Pledgor and (y) each instrument
evidencing the Pledged Notes, the respective Pledgor shall duly endorse the
respective Pledged Note in blank.
4. REPRESENTATIONS AND WARRANTIES. Each Pledgor represents and
warrants with respect to the Pledged Stock and Pledged Notes pledged by it
hereby that:
(a) each Issuer, as of the Closing Date, and the percentage
ownership thereof, is listed on Schedule I hereto;
(b) all the shares of Pledged Stock have been duly and validly
issued and are fully paid and nonassessable;
(c) the Pledged Notes held by such Pledgor, as of the Closing
Date,
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301
consist of the promissory notes described in Schedule II where such Pledgor is
listed as the payee;
(d) each Pledgor is the record and sole beneficial owner of
its respective Pledged Stock and the Pledged Notes pledged by it hereby, free of
any and all Liens or options in favor of, or claims of, any other Person, except
the Lien created by this Agreement;
(e) upon delivery to the Administrative Agent of the stock
certificates evidencing the Pledged Stock and the instruments evidencing the
Pledged Notes, the Lien granted pursuant to this Agreement will constitute a
valid, perfected (except with respect to the Undelivered Notes) first priority
Lien on the Collateral (except, with respect to Proceeds, only to the extent
permitted by Section 9-306 of the Code), enforceable as such against all
creditors of such Pledgor and any Persons purporting to purchase any of the
Collateral from such Pledgor.
Each Pledgor agrees that the foregoing representations and warranties shall be
deemed to have been made by such Pledgor on each Borrowing Date occurring on or
after the date hereof under the Credit Agreement, on and as of such Borrowing
Date as though made hereunder on and as of such date.
5. COVENANTS. Each Pledgor covenants and agrees with the
Administrative Agent, for the benefit of the Secured Creditors, that, from and
after the date of this Agreement until the Obligations are paid in full and the
Commitments are terminated and either no Letters of Credit are outstanding or
each outstanding Letter of Credit has been cash collateralized so that it is
fully secured to the satisfaction of the Administrative Agent:
(a) If any Pledgor shall become entitled to receive or shall
receive (x) any stock certificate (including, without limitation, any
certificate representing a stock dividend or a distribution in connection with
any reclassification, increase or reduction of capital or any certificate issued
in connection with any reorganization), option or rights in respect of capital
stock of any Person, whether in addition to, in substitution of, as a conversion
of, or in exchange for any shares of the Pledged Stock, or otherwise in respect
thereof, or (y) any additional promissory notes or instruments therefor or any
additional instruments in respect of, or constituting, Pledged Notes, such
Pledgor shall accept the same as the agent of the Secured Creditors, hold the
same in trust for the Secured Creditors and deliver the same forthwith to the
Administrative Agent in the exact form received, duly indorsed by such Pledgor
to the Administrative Agent, if required, and, in the case of stock
certificates, together with an undated stock power covering such certificate
duly executed in blank by such Pledgor and with, if the Administrative Agent so
requests, signature guaranteed, to be held by the Administrative Agent, subject
to the terms
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302
hereof, as additional collateral security for the Obligations.
Notwithstanding the foregoing, no Pledgor shall be required at any time to, and
nothing herein shall be deemed to constitute, a pledge hereunder of (i) more
than 65% of the total combined voting power of all classes of Capital Stock of
any Foreign Corporations entitled to vote (although 100% of all classes of
non-voting stock of any Foreign Corporation, to the extent owned by one or more
Pledgors, shall be required to be pledged hereunder) or (ii) any capital stock
which does not constitute Pledged Stock in accordance with the last sentence of
the definition of "Pledged Stock" contained herein.
(b) Without the prior written consent of the Administrative
Agent, no Pledgor will (i) except as permitted by subsection 9.5 of the Credit
Agreement, sell, assign, transfer, exchange, or otherwise dispose of, or grant
any option with respect to, the Collateral, or (ii) create, incur or permit to
exist any Lien or option in favor of, or any claim of any Person with respect
to, any of the Collateral, or any interest therein, except for the Lien provided
for by this Agreement. Each Pledgor will defend the right, title and interest of
the Secured Creditors in and to the Collateral against the claims and demands of
all Persons whomsoever.
(c) At any time and from time to time, upon the written
request of the Administrative Agent, and at the sole expense of the relevant
Pledgor, such Pledgor will promptly and duly execute and deliver such further
instruments and documents and take such further actions as the Administrative
Agent may reasonably request for the purposes of obtaining or preserving the
full benefits of this Agreement and of the rights and powers herein granted. If
any amount payable under or in connection with any of the Collateral shall be or
become evidenced by any promissory note, other instrument or chattel paper,
except to the extent meeting the requirements set forth in the definition of
Undelivered Notes, such note, instrument or chattel paper shall be immediately
delivered to the Administrative Agent, duly endorsed in a manner satisfactory to
the Administrative Agent, to be held as Collateral pursuant to this Agreement.
(d) Each Pledgor agrees to pay, and to save the Secured
Creditors harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other taxes which
may be payable or determined to be payable with respect to any of the Collateral
or in connection with any of the transactions contemplated by this Agreement.
(e) From time to time upon the written request of the
Administrative Agent or the Required Lenders, the Pledgors shall provide updated
Schedules I and II hereunder. Furthermore, at any time when additional Pledged
Stock or Pledged Notes are delivered for pledge hereunder, the Pledgors shall
provide an updated Schedule I or II, as the case may be, to the Administrative
Agent.
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6. CASH DIVIDENDS; VOTING RIGHTS. Unless an Event of Default
shall have occurred and be continuing, each Pledgor shall be permitted to
receive all cash dividends paid by each Issuer to the extent permitted in the
Credit Agreement in respect of the Pledged Stock, to receive all payments in
respect of the Pledged Notes and to exercise all voting and corporate rights
with respect to the Pledged Stock, PROVIDED, HOWEVER, that each Pledgor agrees
that it shall not vote in any way which would be inconsistent with or result in
any violation of any provision of the Credit Agreement, the Notes, the Security
Documents, any of the other Credit Documents or any Interest Rate Agreement. The
Administrative Agent shall, at the relevant Pledgor's sole cost and expense,
execute and deliver (or cause to be executed and delivered) to such Pledgor all
proxies and other instruments as such Pledgor may reasonably request for the
purpose of enabling such Pledgor to exercise the voting and other rights that it
is entitled to exercise pursuant to this Section 6.
7. RIGHTS OF THE SECURED CREDITORS. (a) If an Event of Default
shall occur and be continuing, (i) the Administrative Agent shall have the right
to receive any and all cash dividends paid in respect of the Pledged Stock and
all payments in respect of the Pledged Notes and, in each case, to make
application thereof to the Obligations in such order as the Administrative Agent
may determine, (ii) the Administrative Agent or the Required Lenders may (and
shall have the right to) direct the Pledgors to (x) cause all Indebtedness then
outstanding pursuant to subsection 9.1(c) of the Credit Agreement to be
evidenced by promissory notes and, to the extent same are payable to the Company
or any other Credit Party which is a party to any other Pledge Agreement, cause
the delivery of same for pledge to the Administrative Agent under the respective
Pledge Agreement and (y) deliver all Undelivered Notes to the Administrative
Agent for pledge pursuant to this Agreement, in which case the Pledgors shall
promptly take, or cause to be taken, the actions described in preceding clauses
(x) and (y) and deliver all Undelivered Notes for pledge pursuant hereto, at
which time such Undelivered Notes shall constitute Pledged Notes and shall no
longer constitute Undelivered Notes and (iii) all shares of the Pledged Stock
may be registered in the name of the Administrative Agent or its nominee, and,
subject to the terms of this Agreement, the Administrative Agent or its nominee
may thereafter exercise (A) all voting, corporate and other rights pertaining to
such shares of the Pledged Stock at any meeting of shareholders of such Issuer
or otherwise and (B) any and all rights of conversion, exchange, subscription
and any other rights, privileges or options pertaining to such shares of the
Pledged Stock as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the Pledged
Stock upon the merger, consolidation, reorganization, recapitalization or other
fundamental change in the corporate structure of the Issuer, or upon the
exercise by any Pledgor or the Administrative Agent of any right, privilege or
option pertaining to such shares of the Pledged Stock, and in connection
therewith, the right to deposit and deliver any and all of the Pledged Stock
with any committee, depositary, transfer agent, registrar or other designated
agency upon such
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terms and conditions as it may determine), all without liability except to
account for property actually received by it and except for its gross negligence
or willful misconduct or failure to comply with the provisions of Section 12,
but the Administrative Agent shall have no duty to any Pledgor to exercise any
such right, privilege or option and shall not be responsible for any failure to
do so or delay in so doing.
(b) The rights of the Secured Creditors hereunder shall not be
conditioned or contingent upon the pursuit by any Secured Creditor of any right
or remedy against any other Person which may be or become liable in respect of
all or any part of the Obligations or against any collateral security therefor,
guarantee therefor or right of offset with respect thereto. None of the Secured
Creditors shall be liable for any failure to demand, collect or realize upon all
or any part of the Collateral or for any delay in doing so, nor shall the
Administrative Agent be under any obligation to sell or otherwise dispose of any
Collateral upon the request of any Pledgor or any other Person or to take any
other action whatsoever with regard to the Collateral or any part thereof. The
Administrative Agent agrees to release promptly to the relevant Pledgor any
dividends, cash, securities, instruments and other property paid, payable or
otherwise distributed in respect of the Collateral which it may receive under
subsection 7(a) (other than Pledged Notes pursuant to clause (ii) thereof) if,
prior to the occurrence of an acceleration of any of the Obligations, all
Defaults and Events of Default have been waived or are no longer continuing.
(c) The Administrative Agent may execute any of its duties
under this Agreement 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 agents or attorneys-in-fact selected by it with reasonable
care, except as otherwise provided in subsection 11.3 of the Credit Agreement or
Section 12 hereof.
8. REMEDIES. (a) In the event that any portion of the
Obligations has been declared or becomes due and payable in accordance with the
terms of the Credit Agreement, the Administrative Agent, on behalf of the
Secured Creditors, may exercise, in addition to all other rights and remedies
granted in this Agreement and in any other instrument or agreement securing,
evidencing or relating to the Obligations, all rights and remedies of a secured
party under the Code. Without limiting the generality of the foregoing, the
Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon any Pledgor any Issuer or any
other Person (all and each of which demands, defenses, advertisements and
notices are hereby waived), may in such circumstances forthwith collect,
receive, appropriate and realize upon the Collateral, or any part thereof,
and/or may forthwith sell, assign, give option or options to purchase or
otherwise dispose of and deliver the
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Collateral or any part thereof (or contract to do any of the foregoing), in one
or more parcels at public or private sale or sales, in the over-the-counter
market, at any exchange, broker's board or office of any Secured Creditor or
elsewhere upon such terms and conditions as it may deem commercially reasonable
and at such prices as it may deem best, for cash or on credit or for future
delivery without assumption of any credit risk. Any Secured Creditor shall have
the right upon any such public sale or sales, and, to the extent permitted by
law, upon any such private sale or sales, to purchase the whole or any part of
the Collateral so sold, free of any right or equity of redemption in the
relevant Pledgor which right or equity is hereby waived and released. The
Administrative Agent promptly shall apply any Proceeds from time to time held by
it and the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs and
expenses of every kind incurred in respect thereof or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Secured Creditors hereunder, including, without
limitation, reasonable attorneys' fees and disbursements of counsel to the
Administrative Agent:
(i) first, to any amounts owing to the Administrative
Agent or the Co-Arrangers in their capacities as such;
(ii) second, to the payment of an amount equal to the
outstanding Primary Obligations to the Secured Creditors as provided in
paragraph (e) below, with each Secured Creditor receiving an amount
equal to its outstanding Primary Obligations or, if the proceeds are
insufficient to pay in full all such Primary Obligations, its Pro Rata
Share (as defined below) of the amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) and (ii) to the
payment of an amount equal to the outstanding Secondary Obligations to
the Secured Creditors as provided in paragraph (e) below, with each
Secured Creditor receiving an amount equal to its outstanding Secondary
Obligations or, if the proceeds are insufficient to pay in full all
such Secondary Obligations, its Pro Rata Share of the amount remaining
to be distributed; and
(iv) fourth, to the extent proceeds remain after the
application pursuant to the preceding clauses (i), (ii) and (iii),
after the payment of any other amounts required by any provision of
law, including without limitation, Section 9-504(1)(c) of the Code, and
following the termination of this Agreement pursuant to Section 23
hereof, the Administrative Agent shall account for the surplus, if any,
to the relevant Pledgor.
(b) For purposes of this Agreement, (x) "Pro Rata Share" shall
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mean, when calculating a Secured Creditor's portion of any distribution or
amount, that amount (expressed as a percentage) equal to a fraction the
numerator of which is the then unpaid amount of such Secured Creditor's Primary
Obligations or Secondary Obligations, as the case may be, and the denominator of
which is the then outstanding amount of all Primary Obligations or Secondary
Obligations, as the case may be, (y) "Primary Obligations" shall mean (i) in the
case of the Credit Agreement Obligations, all principal of, and interest on, all
Loans, all L/C Obligations, and all related fees and (ii) in the case of the
Other Obligations, all amounts due under the Interest Rate Agreements (other
than indemnities, fees (including, without limitation, attorneys' fees) and
similar obligations and liabilities) and (z) "Secondary Obligations" shall mean
all Obligations other than Primary Obligations.
(c) When payments to Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under this
Section 8 only) (i) first, to their Primary Obligations (with the amount to be
applied by any Secured Creditor to its Primary Obligations to be applied (x)
first, to interest and (y) second, to any other Primary Obligations) and (ii)
second, to their Secondary Obligations.
(d) Each of the Secured Creditors agrees and acknowledges that
if the Agents and the Lenders are to receive a distribution on account of
undrawn amounts with respect to Letters of Credit issued under the Credit
Agreement (which shall only occur after all outstanding Loans and unpaid
drawings with respect to such Letters of Credit have been paid in full), such
amounts shall be paid to the Administrative Agent under the Credit Agreement and
held by it, for the equal and ratable benefit of the Agents and the Lenders, as
cash security for the repayment of Obligations owing to the Agents and the
Lenders as such. If any amounts are held as cash security pursuant to the
immediately preceding sentence, then upon the termination of all outstanding
Letters of Credit, and after the application of all such cash security to the
repayment of all Obligations owing to the Agents and the Lenders after giving
effect to the termination of all such Letters of Credit, if there remains any
excess cash, such excess cash shall be distributed in accordance with subsection
8(a) hereof.
(e) Except as set forth in subsection 8(c) hereof, all
payments required to be made to the Agents and the Lenders hereunder shall be
made to the Administrative Agent under the Credit Agreement for the account of
the Agents and the Lenders and all payments required to be made to the Other
Creditors hereunder shall be made directly to the respective Other Creditor.
(f) For purposes of applying payments received in accordance
with this Section 8, the Administrative Agent shall be entitled to rely upon the
Other
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Creditors for a determination (which each Other Creditor agrees (or shall
agree) to provide upon request of the Administrative Agent) of the outstanding
Obligations owed to the Other Creditors. Unless it has actual knowledge
(including by way of written notice from any other Agent, any Lender or an Other
Creditor) to the contrary, the Administrative Agent shall be entitled to assume
that (x) no Secondary Obligations are owing to any other Agent, any Lender or
Other Creditor and (y) no Interest Rate Agreement or Other Obligations in
respect thereof, are in existence.
(g) It is understood that the Pledgors shall remain jointly
and severally liable to the extent of any deficiency between the amount of the
proceeds of the Collateral and the aggregate amount of the sums referred to in
clause (a) of this Section 8.
(h) To the extent permitted by applicable law, each Pledgor
waives all claims, damages and demands it may acquire against any Secured
Creditor arising out of the lawful exercise by them of any rights hereunder. If
any notice of a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and proper if given at
least 10 days before such sale or other disposition. Each Pledgor further waives
and agrees not to assert any rights or privileges which it may acquire under
Section 9-112 of the Code. Each Pledgor shall remain liable for any deficiency
if the proceeds of any sale or other disposition of the Collateral are
insufficient to pay the Obligations and the fees and disbursements of any
attorneys employed by the Administrative Agent, any other Agent, or any Lender
to collect such deficiency.
9. REGISTRATION RIGHTS; PRIVATE SALES. (a) If the
Administrative Agent shall determine to exercise its right to sell any or all of
the Pledged Stock pursuant to Section 8, and if in the opinion of the
Administrative Agent it is necessary or advisable to have the Pledged Stock, or
that portion thereof to be sold, registered under the provisions of the
Securities Act of 1933, as amended (the "SECURITIES ACT"), the relevant Pledgor
will cause such Issuer to (i) execute and deliver, and cause the directors and
officers of such Issuer to execute and deliver, all such instruments and
documents, and do or cause to be done all such other acts as may be, in the
opinion of the Administrative Agent, necessary or advisable to register the
Pledged Stock, or that portion thereof to be sold, under the provisions of the
Securities Act, (ii) use its best efforts to cause the registration statement
relating thereto to become effective and to remain effective for a period of 90
days from the date of the first public offering of the Pledged Stock, or that
portion thereof to be sold, and (iii) make all amendments thereto and/or to the
related prospectus that, in the opinion of the Administrative Agent, are
necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto. Each Pledgor agrees to cause each Issuer to
comply
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with the provisions of the securities or "Blue Sky" laws of any and all
jurisdictions that the Administrative Agent shall reasonably designate and to
make available to its security holders, as soon as practicable, an earnings
statement (which need not be audited) that will satisfy the provisions of
Section 11(a) of the Securities Act.
(b) Each Pledgor recognizes that the Administrative Agent may
be unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers that will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. Each
Pledgor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale conducted
in a manner that the Administrative Agent in good faith believes to be
commercially reasonable under the circumstances shall be deemed to have been
made in a commercially reasonable manner. The Administrative Agent shall be
under no obligation to delay the sale of any of the Pledged Stock for the period
of time necessary to permit such Issuer to register such securities for public
sale under the Securities Act, or under applicable state securities laws, even
if such Issuer would agree to do so.
(c) Each Pledgor further agrees to use its best efforts to do
or cause to be done all such other acts as may be necessary to make such sale or
sales of all or any portion of the Pledged Stock, pursuant to this Section 9
valid and binding and in compliance with any and all other applicable
Requirements of Law. Each Pledgor further agrees that a breach of any of the
covenants contained in this Section 9 will cause irreparable injury to the
Secured Creditors, that the Secured Creditors have no adequate remedy at law in
respect of such breach and, as a consequence, that each and every covenant
contained in this Section 9 shall be specifically enforceable against such
Pledgor, and such Pledgor hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants.
10. NO SUBROGATION. Notwithstanding any payment or payments
made by any Pledgor hereunder, or any setoff or application of funds of any
Pledgor by any Lender, or the receipt of any amounts by any Secured Creditor
with respect to any of the Collateral, no Pledgor shall be entitled to be
subrogated to any of the rights of any Secured Creditor against any Subsidiary
of such Pledgor or against any collateral security held by any Secured Creditor
for the payment of the Obligations, nor shall any Pledgor seek any reimbursement
from any Subsidiary of such Pledgor in respect of payments made by such Pledgor
in connection with the Collateral, or amounts realized by any Secured Creditor
in connection with the Collateral, and any such rights of subrogation and
reimbursement of such Pledgor are hereby waived until
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all amounts owing to the Secured Creditors by the Company on account of the
Obligations are paid in full, the Commitments are terminated and either no
Letters of Credit are outstanding or each outstanding Letter of Credit has been
cash collateralized so that it is fully secured to the satisfaction of the
Administrative Agent.
11. AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS. Each
Pledgor shall remain obligated hereunder, and the Collateral shall remain
subject to the Lien granted hereby, notwithstanding that, without any
reservation of rights against such Pledgor and without notice to or further
assent by such Pledgor, any demand for payment of any of the Obligations made by
any Secured Creditor may be rescinded by such Secured Creditor, and any of the
Obligations continued, and the Obligations, or the liability of each Issuer or
any other Person upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered, or released by the Administrative Agent, any
other Co-Arranger (subject to subsection 12.16 of the Credit Agreement), the
Issuing Lender, any Lender or any Other Creditor and the Credit Agreement, the
Notes, the Security Documents, and the other Credit Documents, any Interest Rate
Agreement entered into with any Lender or Lenders and any other documents
executed and delivered in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Lenders (or the Required
Lenders, as the case may be) may deem advisable from time to time, and any
guarantee, right of offset or other collateral security at any time held by any
Secured Creditor for the payment of the Obligations may be sold, exchanged,
waived, surrendered or released. None of the Secured Creditors shall have any
obligation to protect, secure, perfect or insure any other Lien at any time held
by it as security for the Obligations or any property subject thereto. Each
Pledgor waives any and all notice of the creation, renewal, extension or accrual
of any of the Obligations and notice of or proof of reliance by any Secured
Creditor upon this Agreement; the Obligations, and any of them shall
conclusively be deemed to have been created, contracted or incurred in reliance
upon this Agreement; and all dealings between each Issuer and such Pledgor, on
the one hand, and the Secured Creditors, on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon this
Agreement. Each Pledgor waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon each Issuer or such
Pledgor with respect to the Obligations.
12. LIMITATION ON DUTIES REGARDING COLLATERAL. The
Administrative Agent's sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9-207
of the Code or otherwise, shall be to deal with it in the same manner as the
Administrative Agent deals with similar securities and property for its own
account. None of the Secured Creditors nor any of
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their respective directors, officers, employees or agents shall be liable for
failure to demand, collect or realize upon any of the Collateral or for any
delay in doing so or shall be under any obligation to sell or otherwise dispose
of any Collateral upon the request of the Company or otherwise.
13. POWERS COUPLED WITH AN INTEREST. All authorizations and
agencies herein contained with respect to the Collateral are irrevocable and
powers coupled with an interest.
14. 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.
15. SECTION HEADINGS. The section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
16. NO WAIVER; CUMULATIVE REMEDIES. None of the Secured
Creditors shall by any act (except by a written instrument pursuant to Section
17 hereof) be deemed to have waived any right or remedy hereunder or to have
acquiesced in any default of any obligation under any Credit Document or in any
breach of any of the terms and conditions hereof or thereof. No failure to
exercise, nor any delay in exercising, on the part of any Secured Creditor, any
right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by any Secured Creditor of any right or remedy hereunder
on any one occasion shall not be construed as a bar to any right or remedy which
such Secured Creditor would otherwise have on any future occasion. The rights
and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any other rights or remedies provided by
law.
17. INTEGRATION; WAIVERS AND AMENDMENTS; SUCCESSORS AND
ASSIGNS; GOVERNING LAW. This Agreement represents the entire agreement of the
Pledgors with respect to the subject matter hereof, except as otherwise set
forth in the Credit Agreement, and there are no promises or representations by
any Secured Creditor relative to the subject matter hereof not reflected herein
or in the other Credit Documents. In the event of a conflict among the Credit
Documents and the Credit Agreement, the Credit Agreement shall control. None of
the terms or provisions of this Agreement may be amended, supplemented or
otherwise modified except by a
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written instrument executed by each Pledgor and the Administrative Agent (with
the consent of either (x) the Required Lenders or, to the extent required by
subsection 12.1 of the Credit Agreement, the Supermajority Lenders or all of the
Lenders, at all times prior to the time on which all Credit Document Obligations
have been paid in full or (y) the holders of at least a majority of the
outstanding Other Obligations at all times after the time on which all Credit
Document Obligations have been paid in full); PROVIDED, that any change, waiver,
modification or variance affecting the rights and benefits of a single Class of
Secured Creditors (and not all Secured Creditors in a like or similar manner)
shall also require the written consent of the Requisite Creditors of such Class
of Secured Creditors, I.E., whether (x) the Agents and the Lenders as holders of
the Credit Agreement Obligations or (y) the Other Creditors as the holders of
the Other Obligations. For the purpose of this Agreement, the term "Requisite
Creditors" of any Class shall mean each of (x) with respect to the Credit
Agreement Obligations, the Required Lenders and (y) with respect to the Other
Obligations, the holders of at least a majority of all obligations outstanding
from time to time under the Interest Rate Agreements; provided that, subject to
the immediately preceding proviso, any provision of this Agreement may be waived
by the Administrative Agent in a letter or agreement executed by the
Administrative Agent or by telex or facsimile transmission from the
Administrative Agent. This Agreement shall be binding upon the successors and
assigns of the Pledgors and shall inure to the benefit of the Secured Creditors
and their respective successors and assigns. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
18. NOTICES. Notices by the Administrative Agent to any
Pledgor or any Issuer may be given by mail, by telex or by facsimile
transmission, addressed or transmitted to the relevant Pledgor or such Issuer at
its address or transmission number set forth (x) in the case of Holdings, in
subsection 12.2 of the Credit Agreement, (y) in the case of each other Pledgor
on Schedule I to the Subsidiary Guarantee and (z) in the case of each Issuer,
and on Schedule III hereto, which notice shall be effective (a) in the case of
mail, three days after deposit in the postal system, first class postage
pre-paid, and (b) in the case of telex or facsimile notices, when sent. Any
Pledgor and any Issuer may change their respective addresses and transmission
numbers by written notice to the Administrative Agent.
19. COUNTERPARTS. This Agreement may be executed by one or
more of the parties hereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
20. IRREVOCABLE AUTHORIZATION AND INSTRUCTION TO ISSUERS. Each
Pledgor hereby authorizes and instructs each Issuer to comply with any
instruction received by it from the Administrative Agent in writing that (a)
states that an Event of Default has occurred and is continuing and (b) is
otherwise in accordance with the
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terms of this Agreement, without any other or further instructions from such
Pledgor and each Pledgor agrees that each Issuer shall be fully protected in so
complying.
21. AUTHORITY OF ADMINISTRATIVE AGENT. Each Pledgor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Agreement with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
voting right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as among the Secured
Creditors, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Administrative Agent and any Pledgor, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Secured Creditors with full
and valid authority so to act or refrain from acting, and neither any Pledgor
nor any Issuer shall be under any obligation, or entitlement, to make any
inquiry respecting such authority.
22. ADMINISTRATIVE AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT.
(a) Each Pledgor hereby irrevocably constitutes and appoints the Administrative
Agent and any officer or agent of the Administrative Agent, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Pledgor and in the name of
such Pledgor or in the Administrative Agent's own name, from time to time in the
Administrative Agent's discretion, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, including, without limitation, any financing
statements, endorsements, assignments or other instruments of transfer.
(b) Each Pledgor hereby ratifies all that said attorneys shall lawfully
do or cause to be done pursuant to the power of attorney granted in subsection
22(a). All powers, authorizations and agencies contained in this Agreement are
coupled with an interest and are irrevocable until this Agreement is terminated
and the security interests created hereby are released.
23. TERMINATION; RELEASE. (a) This Agreement shall terminate
when all the Obligations have been fully paid and performed and the Commitments
terminated or as otherwise explicitly permitted under the Credit Agreement and
either no Letters of Credit are outstanding or each outstanding Letter of Credit
has been cash collateralized so that it is fully secured to the satisfaction of
the Administrative Agent. Upon such termination, the Administrative Agent shall
on its behalf and on behalf of the other Agents and the Lenders reassign and
redeliver (or cause to be reassigned and redelivered) to the relevant Pledgor,
or to such person or persons as such Pledgor shall designate or to whomever may
be lawfully entitled to receive such surplus,
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against receipt, such of the Collateral (if any) as shall not have been sold or
otherwise applied by the Administrative Agent pursuant to the terms hereof and
shall still be held by it hereunder, together with appropriate instruments of
reassignment and release. Any such reassignment shall be without recourse upon
or warranty by the Administrative Agent (other than a warranty that the
Administrative Agent has not assigned its rights and interests hereunder to any
other Person) and at the sole cost and expense of such Pledgor.
(b) In the event that any part of the Collateral is sold
(except to Holdings or any of its Subsidiaries) in connection with a sale
permitted by subsection 9.5 of the Credit Agreement or otherwise released
pursuant to the Credit Agreement or at the direction of the Required Lenders (or
all Lenders if required by subsection 12.1 of the Credit Agreement) and the
proceeds of such sale or sales or from such release are applied in accordance
with the provisions of subsection 5.4 of the Credit Agreement, to the extent
required to be so applied, the Administrative Agent, at the request and expense
of the relevant Pledgor, will duly assign, transfer and deliver to such Pledgor
(without recourse and without any representation or warranty) such of the
Collateral (and releases therefor) as is then being (or has been) so sold or
released and has not theretofore been released pursuant to this Agreement.
(c) In the event that any Pledgor establishes a Receivables
Facility that prohibits the pledge hereby of the Capital Stock of any
Receivables SPV, as described in subsection 8.9(g) of the Credit Agreement, (and
so long as such Receivables Facility is in effect and contains such
prohibition), the Administrative Agent, at the request and expense of the
relevant Pledgor, will release the Capital Stock of such Receivables SPV and
will duly assign, transfer and deliver to such Pledgor (without recourse and
without any representation or warranty) such Pledged Stock (and releases
therefor); PROVIDED that Holdings and the Company shall use commercially
reasonable efforts to grant a second priority perfected security interest in
such Capital Stock to secure the obligations pursuant to the Credit Documents
(and shall take all action in connection therewith as may reasonably be
requested by the Administrative Agent).
(d) At any time that a Pledgor desires that the Administrative
Agent assign, transfer and deliver Collateral (and releases therefor) as
provided in subsection 23(a), (b) or (c) hereof, it shall deliver to the
Administrative Agent a certificate signed by an executive officer of such
Pledgor stating that the release of the respective Collateral is permitted
pursuant to such subsection 23(a) or (b).
24. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of Holdings that is required to execute a counterpart of this
Agreement after the date hereof pursuant to the Credit Agreement shall
automatically become a Pledgor hereunder by executing a counterpart hereof and
delivering the same to the Administrative Agent.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be duly executed and delivered as of the date first above written.
WERNER HOLDING CO. (PA), INC.
By:
--------------------------------
Name:
Title:
ARDEE INVESTMENT CO., INC
KENTUCKY LADDER COMPANY
OLYMPUS PROPERTIES, INC.
PHOENIX MANAGEMENT SERVICES, INC.
R.D. ARIZONA LADDER CORP. (D/B/A R.D.
WERNER CO., INC.- ARIZONA)
WERNER CO.
WERNER FINANCIAL INC.
WERNER MANAGEMENT CO.
WIP TECHNOLOGIES, INC.
By:_________________________________
Title:
BANKERS TRUST COMPANY, as
Administrative Agent
By:
-------------------------------------
Name:
Title:
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ACKNOWLEDGEMENT AND CONSENT
Each Issuer referred to in the foregoing Pledge Agreement
hereby acknowledge receipt of a copy thereof and agrees to be bound thereby and
to comply with the terms thereof insofar as such terms are applicable to it.
Each Issuer agrees to notify the Administrative Agent promptly in writing of the
occurrence of any of the events described in subsection 5(a) of the Pledge
Agreement. Each Issuer further agrees that the terms of subsection 9(c) of the
Pledge Agreement shall apply to it, MUTATIS MUTANDIS, with respect to all
actions that may be required of it under or pursuant to or arising out of
Section 9 of the Pledge Agreement.
[SUBSIDIARIES OF THE COMPANY]
By:
--------------------------------
Name:
Title:
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SCHEDULE I
----------
Holdings/Subsidiary Pledge Agreement
DESCRIPTION OF PLEDGED STOCK
==============================================================================
Percentage of
No. of Outstanding Shares
ISSUER CLASS OF STOCK STOCK CERTIFICATE NO. SHARES OF CAPITAL STOCK
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==============================================================================
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ANNEX II
to
Holdings/subsidiary Pledge Agreement
------------------------------------
DESCRIPTION OF PLEDGED NOTES
----------------------------
============================================================================
OBLIGOR PRINCIPAL AMOUNT (IF ANY) MATURITY DATE (IF ANY)
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============================================================================
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SCHEDULE III
Holdings/Subsidiary Pledge Agreement
ADDRESSES OF PLEDGORS
Werner Holding Co. (PA), Inc.
93 Werner Road
Greenville, PA 16125-9499
Attention:
Telecopy: (412) ___-____
With a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Attention: Janet Vance, Esq.
Telecopy: (212) 351-4035
[Name of Pledgor]
[Address]
Attention:
Telecopy: (412) ___-____
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EXHIBIT A-1
TO THE
CREDIT AGREEMENT
----------------
FORM OF B TERM LOAN NOTE
$__________ New York, New York
November 24, 1997
FOR VALUE RECEIVED, the undersigned, WERNER HOLDING CO. (DE),
INC., a Delaware corporation (the "Company"), promises to pay to the order of
_______________ (the "LENDER") on the B Maturity Date, as defined in the Credit
Agreement referred to below, at the office of Bankers Trust Company, located at
130 Liberty Street, New York, New York 10006, in lawful money of the United
States and in immediately available funds, the principal amount of the lesser of
(a) ____________________ DOLLARS ($__________) and (b) the aggregate unpaid
principal amount of all B Term Loans made by the Lender to the Company pursuant
to subsection 2.1(a) of the Credit Agreement defined below. The Company further
agrees to pay interest in like money at said office from the date hereof on the
unpaid principal amount hereof from time to time outstanding at the rates, and
on the dates, specified in the Credit Agreement. The holder of this Note is
authorized to record the Borrowing Date, Type and amount of the B Term Loan made
by the Lender pursuant to subsection 2.1(a) of the Credit Agreement, the date
and amount of each payment or prepayment of principal thereof, and the date of
each interest rate conversion or continuation pursuant to subsection 5.2 of the
Credit Agreement and the principal amount subject thereto, 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) and any such recordation shall
constitute PRIMA FACIE evidence of the information so recorded, PROVIDED that
the failure of the Lender to make such recordation (or any error in such
recordation) shall not affect the obligations of the Company hereunder or under
the Credit Agreement.
This Note is one of the B Term Loan Notes referred to in the
Credit Agreement, dated as of November 24, 1997 among the Company, the lenders
from time to time party thereto (including the Lender), Bankers Trust Company,
as Administrative Agent and Co-Arranger, Merrill Lynch Capital Corporation, as
Syndication Agent and Co-Arranger, The Chase Manhattan Bank, as Documentation
Agent, and Goldman Sachs Credit Partners L.P., as Co-Agent (as the same may be
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from time to time amended, supplemented or otherwise modified from time to time,
the "CREDIT AGREEMENT"), is subject to the provisions thereof, is entitled to
the benefits thereof and is subject to optional and mandatory prepayment in
whole or in part as provided therein. Terms used herein which are defined in the
Credit Agreement shall have such defined meanings unless otherwise defined
herein.
This Note is secured and guaranteed as provided in the
Security Documents and the Guarantees. Reference is hereby made to the Security
Documents and the Guarantees for a description of the properties and assets in
which a security interest has been granted, the nature and extent of the
security and guarantees, the terms and conditions upon which the security
interest and each guarantee was granted and the rights of the holder of this
Note in respect thereof. The undersigned agrees to pay all costs and expenses
incurred by the Lender in connection with the enforcement of its rights and
remedies under the Credit Agreement, this Note, the Security Documents and each
other Credit Document.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Note shall become, or may be declared to be, immediately due and payable,
all as provided therein.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
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THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS OF
THE CREDIT AGREEMENT. TRANSFERS OF THIS NOTE MUST BE RECORDED IN THE REGISTER
MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF THE CREDIT
AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
WERNER HOLDING CO. (DE), INC.,
By:_____________________________
Title:
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Schedule A to
B Term Loan Note
ALTERNATE BASE RATE LOANS
AND REPAYMENTS OF ALTERNATE BASE RATE LOANS
-------------------------------------------
Amount of Amount Converted to Amount Unpaid Principal
Alternate Base Alternate Base Rate Amount of Converted to Balance of Alternate Notation
Date Rate Loans Loans Principal Repaid Eurodollar loans Base Rate Loans made by
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Schedule B to
B Term Loan Note
----------------
EURODOLLAR LOANS
AND REPAYMENTS OF EURODOLLAR LOANS
----------------------------------
Amount Unpaid
Interest Period Converted to Principal
Amount of Amount and Eurodollar Amount of Alternate Balance of
Eurodollar Converted to Rate with Respect Principal Base Rate Eurodollar Notation
Date Loans Eurodollar Loans Thereto Repaid Loans Loans made by
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EXHIBIT H-1 TO
CREDIT AGREEMENT
----------------
FORM OF
COMPANY PLEDGE AGREEMENT
------------------------
Agreement (this "Agreement"), dated as of November 24, 1997,
made by WERNER HOLDING CO. (DE), INC., a Delaware corporation (the "COMPANY"),
in favor of BANKERS TRUST COMPANY, as administrative agent (in such capacity,
the "ADMINISTRATIVE AGENT"), for the Agents and for the several lenders (the
"LENDERS") from time to time parties to the Credit Agreement (as defined below)
and for the benefit of the Secured Creditors referred to below.
W I T N E S S E T H :
---------------------
WHEREAS, pursuant to the Credit Agreement, dated as of the
date hereof (as amended, supplemented or otherwise modified from time to time,
the "CREDIT AGREEMENT"), among the Company, the Lenders, Bankers Trust Company,
as Administrative Agent and Co-Arranger, Merrill Lynch Capital Corporation, as
Syndication Agent and Co-Arranger, The Chase Manhattan Bank, as Documentation
Agent, and Goldman Sachs Credit Partners L.P., as Co-Agent (together with the
Administrative Agent, Syndication Agent and Documentation Agent, the "AGENTS"),
the Lenders have severally agreed to make loans to, and the Issuing Lender (as
defined in the Credit Agreement) has agreed to issue, and certain of the Lenders
have agreed to participate in, certain letters of credit for the account of, the
Company upon the terms and subject to the conditions set forth therein;
WHEREAS, the Company is the legal and beneficial owner of the
(x) shares of Pledged Stock (as hereinafter defined) and (y) the Pledged Notes
(as hereinafter defined) made by the Obligors (as hereinafter defined); and
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective loans to, and the obligation of the Issuing
Lender to issue, and the Lenders to participate in, letters of credit for the
account of, the Company under the Credit Agreement that the Company shall have
executed and delivered this Agreement to the Administrative Agent for the
ratable benefit of the Secured Creditors;
325
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent, the other Agents, the Issuing Lender and the Lenders
to enter into the Credit Agreement and to induce the Lenders to make their
respective loans and the Issuing Lender to issue, and the Lenders to participate
in, the letters of credit under the Credit Agreement, the Company hereby agrees
with the Administrative Agent, for the ratable benefit of the Secured Creditors,
as follows:
1. DEFINED TERMS. Unless otherwise defined herein, terms that
are defined in the Credit Agreement and used herein are so used as so defined,
and the following terms shall have the following meanings:
"AGREEMENT" means this Pledge Agreement, as the same may be
amended, modified or otherwise supplemented from time to time.
"CODE" means the Uniform Commercial Code from time to time in
effect in the State of New York.
"COLLATERAL" means (w) the Pledged Stock, (x) the Pledged
Notes, (y) the Undelivered Notes and (z) all Proceeds thereof.
"CREDIT AGREEMENT OBLIGATIONS" has the meaning assigned that
term in the definition of "Obligations" contained herein.
"ISSUERS" means the collective reference to the companies
identified on SCHEDULE I attached hereto as the issuers of the Pledged
Stock on the Closing Date, and any other issuer of Pledged Stock as
from time to time in existence; individually, each an "ISSUER."
"OBLIGATIONS": means (i) the unpaid principal amount of, and
interest on (including interest accruing on or after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Company, whether or
not a claim for such post-filing or post-petition interest is
allowed), the Loans and all other obligations and liabilities of the
Company to the Agents, the Issuing Lender or the Lenders, whether
direct or indirect, absolute or contingent, due or to become due, or
now existing or hereafter incurred, which may arise under, out of, or
in connection with, the Credit Agreement, any Letter of Credit, the
other Credit Documents and any other document executed and delivered or
given in connection therewith or herewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all reasonable fees and
disbursements of counsel to the Agents, the Issuing Lender or to the
Lenders that are required to be paid by
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326
the Company pursuant to the terms of the Credit Agreement) or otherwise
(collectively, "CREDIT AGREEMENT OBLIGATIONS"), and (ii) all
obligations of the Company to any Lender or Lenders or its or their
Affiliates (each such Lender or Affiliate, even if the respective
Lender subsequently ceases to be a lender under the Credit Agreement
for any reason, together with such Lender's or Affiliate's successors
and assigns, collectively, the "Other Creditors" and, together with the
Administrative Agent, the Agents and the Lenders, the "Secured
Creditors") under or in respect of any Interest Rate Agreement
(collectively, "OTHER OBLIGATIONS").
"OBLIGORS" means the collective reference to the Persons
identified on SCHEDULE II attached hereto as the obligors in respect of
the Pledged Notes and the respective obligor or obligors with respect
to any other promissory notes created or acquired after the date
hereof; individually, each an "OBLIGOR."
"OTHER OBLIGATIONS" has the meaning assigned that term in the
definition of "Obligations" contained herein.
"PLEDGED NOTES" means all promissory notes from time to time
issued to, or held by, the Company other than Undelivered Notes.
"PLEDGED STOCK" means (x) with respect to corporations
incorporated under the laws of the United States or any State or
territory thereof (each a "Domestic Corporation"), all of the shares of
capital stock, at any time owned by the Company, in such Domestic
Corporations, together with all stock certificates, options or rights
of any nature whatsoever that may be issued or granted by any such
Domestic Corporations to the Company while this Agreement is in effect;
and (y) in the case of corporations not Domestic Corporations (each a
"FOREIGN CORPORATION"), all of the shares of capital stock, at any time
owned by the Company, in such Foreign Corporations, together with all
stock certificates, options or rights of any nature whatsoever that may
be issued or granted by any such Person to the Company while this
Agreement is in effect, provided that the Company shall not be required
to pledge hereunder, and nothing herein shall be deemed to constitute a
pledge hereunder of, more than 65% of the total combined voting power
of all classes of capital stock of any such Foreign Corporation
entitled to vote (although 100% of all classes of non-voting stock of
each Foreign Corporation shall be required to be pledged).
Notwithstanding anything to the contrary contained above or elsewhere
in this Agreement, Pledged Stock shall not include shares of capital
stock of (i) Immaterial Subsidiaries in the process of dissolution on
the Closing Date (so long as same continue to constitute Immaterial
Subsidiaries in the process of dissolution), (ii) Captive Insurance
Subsidiaries, (iii) any joint venture or other Person referred to in
subsection 9.6(h) of the Credit
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327
Agreement, in which (x) there are no investments by the Company or any
of its other Subsidiaries on the Closing Date and (y) all investments
made by the Company and its other Subsidiaries made after the Closing
Date are made pursuant to subsection 9.6(h) of the Credit Agreement and
(iv) in the circumstances, and to the extent, provided in subsection
23(c) hereof and subsection 8.9(g) of the Credit Agreement, any
Receivables SPV where the pledge of the capital stock of which pursuant
to this Agreement is not permitted pursuant to the terms of the
respective Receivables Facility.
"PROCEEDS" means all "proceeds", as such term is defined in
Section 9-306(1) of the Code on the date hereof, of the Pledged Stock
and the Pledge Notes, and, in any event, shall include, without
limitation, (x) all dividends or other income from the Pledged Stock,
collections thereon or distributions with respect thereto and (y) all
payments in respect of the Pledged Notes.
"SECURED CREDITORS" has the meaning assigned that term in the
definition of "Obligations" contained herein.
"UNDELIVERED NOTES" means promissory notes issued (x) in
respect of Indebtedness permitted under subsection 9.1(c) of the Credit
Agreement, (y) in respect of loans or advances permitted under
subsection 9.6(h) of the Credit Agreement or (z) in the principal
amount of less than $250,000 individually or $1,000,000 in the
aggregate; provided that Undelivered Notes shall cease to constitute
Undelivered Notes, and shall thereafter constitute Pledged Notes, at
such time, if any, as same are delivered as required by clause (ii) of
subsection 7(a) of this Agreement.
2. PLEDGE; GRANT OF SECURITY INTEREST; UNCERTIFICATED
SECURITIES. (a) The Company hereby delivers to the Administrative Agent, for the
ratable benefit of the Secured Creditors, all certificates or instruments
representing or evidencing the Pledged Stock and the Pledged Notes on the date
hereof, and hereby transfers and grants to the Administrative Agent, for the
ratable benefit of the Secured Creditors, a first priority security interest in
all of the Company's right, title and interest in the Collateral, as collateral
security for the prompt and complete payment and performance when due (whether
at the stated maturity, by acceleration or otherwise) of the Obligations.
(b) Notwithstanding anything to the contrary contained in subsection
2(a) hereof, if any Pledged Stock or Pledged Notes (whether now owned or
hereafter acquired) are uncertificated securities, the Company shall promptly
notify the Administrative Agent thereof, and shall promptly take all actions
required to perfect the security interest of the Administrative Agent under
applicable law (including, in any event, under Section 9-115 of the Code, if
applicable). The Company further
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328
agrees to take such actions as the Administrative Agent deems reasonably
necessary or desirable to effect the foregoing and to permit the Administrative
Agent to exercise any of its rights and remedies hereunder.
3. STOCK POWERS. Concurrently with the delivery to the
Administrative Agent of (x) each certificate representing one or more shares of
Pledged Stock, the Company shall deliver an undated stock power covering such
certificate, duly executed in blank by the Company and (y) each instrument
evidencing the Pledged Notes, the Company shall duly endorse the respective
Pledged Note in blank.
4. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants that:
(a) each Issuer, as of the Closing Date, and the percentage
ownership thereof, is listed on Schedule I hereto;
(b) all the shares of Pledged Stock have been duly and validly
issued and are fully paid and nonassessable;
(c) the Pledged Notes held by the Company, as of the Closing
Date, consist of the promissory notes described in Schedule II;
(d) the Company is the record and sole beneficial owner of the
Pledged Stock and the Pledged Notes, free of any and all Liens or options in
favor of, or claims of, any other Person, except the Lien created by this
Agreement;
(e) upon delivery to the Administrative Agent of the stock
certificates evidencing the Pledged Stock and the instruments evidencing the
Pledged Notes, the Lien granted pursuant to this Agreement will constitute a
valid, perfected (except with respect to Undelivered Notes) first priority Lien
on the Collateral (except, with respect to Proceeds, only to the extent
permitted by Section 9-306 of the Code), enforceable as such against all
creditors of the Company and any Persons purporting to purchase any of the
Collateral from the Company.
The Company agrees that the foregoing representations and warranties shall be
deemed to have been made by the Company on each Borrowing Date occurring on or
after the date hereof under the Credit Agreement, on and as of such Borrowing
Date as though made hereunder on and as of such date.
5. COVENANTS. The Company covenants and agrees with the
Administrative Agent for the benefit of the Secured Creditors that, from and
after the date of this Agreement until the Obligations are paid in full and the
Commitments are
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329
terminated and either no Letters of Credit are outstanding or each outstanding
Letter of Credit has been cash collateralized so that it is fully secured to the
satisfaction of the Administrative Agent:
(a) If the Company shall become entitled to receive or shall
receive (x) any stock certificate (including, without limitation, any
certificate representing a stock dividend or a distribution in connection with
any reclassification, increase or reduction of capital or any certificate issued
in connection with any reorganization), option or rights in respect of capital
stock of any Person, whether in addition to, in substitution of, as a conversion
of, or in exchange for any shares of the Pledged Stock, or otherwise in respect
thereof, or (y) any additional promissory notes or instruments therefor or any
additional instruments in respect of, or constituting, Pledged Notes, the
Company shall accept the same as the agent of the Administrative Agent, the
other Agents and the Secured Creditors, hold the same in trust for the
Administrative Agent, the other Agents and the Secured Creditors and deliver the
same forthwith to the Administrative Agent in the exact form received, duly
indorsed by the Company to the Administrative Agent, if required, and, in the
case of stock certificates, together with an undated stock power covering such
certificate duly executed in blank by the Company and with, if the
Administrative Agent so requests, signature guaranteed, to be held by the
Administrative Agent, subject to the terms hereof, as additional collateral
security for the Obligations. Notwithstanding the foregoing, the Company shall
not be required at any time to, and nothing herein shall be deemed to
constitute, a pledge hereunder of, (i) more than 65% of the total combined
voting power of all classes of Capital Stock of any Foreign Corporations
entitled to vote (although 100% of all classes of non-voting stock of any
Foreign Corporation, to the extent owned by the Company, shall be required to be
pledged hereunder) or (ii) any capital stock which does not constitute Pledged
Stock in accordance with the last sentence of the definition of "Pledged Stock"
contained herein.
(b) Without the prior written consent of the Administrative
Agent, the Company will not (i) except as permitted by subsection 9.5 of the
Credit Agreement, sell, assign, transfer, exchange, or otherwise dispose of, or
grant any option with respect to, the Collateral, or (ii) create, incur or
permit to exist any Lien or option in favor of, or any claim of any Person with
respect to, any of the Collateral, or any interest therein, except for the Lien
provided for by this Agreement. The Company will defend the right, title and
interest of the Secured Creditors in and to the Collateral against the claims
and demands of all Persons whomsoever.
(c) At any time and from time to time, upon the written
request of the Administrative Agent, and at the sole expense of the Company, the
Company will promptly and duly execute and deliver such further instruments and
documents and
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330
take such further actions as the Administrative Agent may reasonably request for
the purposes of obtaining or preserving the full benefits of this Agreement and
of the rights and powers herein granted. If any amount payable under or in
connection with any of the Collateral shall be or become evidenced by any
promissory note, other instrument or chattel paper, except to the extent meeting
the requirements set forth in the definition of Undelivered Notes, such note,
instrument or chattel paper shall be immediately delivered to the Administrative
Agent, duly endorsed in a manner satisfactory to the Administrative Agent, to be
held as Collateral pursuant to this Agreement.
(d) The Company agrees to pay, and to save the Secured
Creditors harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other taxes which
may be payable or determined to be payable with respect to any of the Collateral
or in connection with any of the transactions contemplated by this Agreement.
(e) From time to time upon the written request of the
Administrative Agent or the Required Lenders, the Company shall provide updated
Schedules I and II hereunder. Furthermore, at any time when additional Pledged
Stock or Pledged Notes are delivered for pledge hereunder, the Company shall
provide an updated Schedule I or II, as the case may be, to the Administrative
Agent.
6. CASH DIVIDENDS; VOTING RIGHTS. Unless an Event of Default
shall have occurred and be continuing, the Company shall be permitted to receive
all cash dividends paid by each Issuer to the extent permitted in the Credit
Agreement in respect of the Pledged Stock, to receive all payments in respect of
the Pledged Notes and to exercise all voting and corporate rights with respect
to the Pledged Stock, PROVIDED, HOWEVER, that the Company agrees that it shall
not vote in any way which would be inconsistent with or result in any violation
of any provision of the Credit Agreement, the Notes, the Security Documents, any
of the other Credit Documents or any Interest Rate Agreement. The Administrative
Agent shall, at the Company's sole cost and expense, execute and deliver (or
cause to be executed and delivered) to the Company all proxies and other
instruments as the Company may reasonably request for the purpose of enabling
the Company to exercise the voting and other rights that it is entitled to
exercise pursuant to this Section 6.
7. RIGHTS OF THE SECURED CREDITORS. (a) If an Event of Default
shall occur and be continuing, (i) the Administrative Agent shall have the right
to receive any and all cash dividends paid in respect of the Pledged Stock and
all payments in respect of the Pledged Notes and, in each case, to make
application thereof to the Obligations in such order as the Administrative Agent
may determine, (ii) the Administrative Agent or the Required Lenders may (and
shall have the right to) direct the Company to (x) cause all Indebtedness then
outstanding pursuant to
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331
subsection 9.1(c) of the Credit Agreement to be evidenced by promissory notes
and, to the extent same are payable to the Company or any other Credit Party
which is a party to any other Pledge Agreement, cause the delivery of same for
pledge to the Administrative Agent under the respective Pledge Agreement and (y)
deliver all Undelivered Notes to the Administrative Agent for pledge pursuant to
this Agreement, in which case the Company shall promptly take, or cause to be
taken, the actions described in preceding clauses (x) and (y) and deliver all
Undelivered Notes for pledge pursuant hereto, at which time such Undelivered
Notes shall constitute Pledged Notes and shall no longer constitute Undelivered
Notes and (iii) all shares of the Pledged Stock may be registered in the name of
the Administrative Agent or its nominee, and, subject to the terms of this
Agreement, the Administrative Agent or its nominee may thereafter exercise (A)
all voting, corporate and other rights pertaining to such shares of the Pledged
Stock at any meeting of shareholders of such Issuer or otherwise and (B) any and
all rights of conversion, exchange, subscription and any other rights,
privileges or options pertaining to such shares of the Pledged Stock as if it
were the absolute owner thereof (including, without limitation, the right to
exchange at its discretion any and all of the Pledged Stock upon the merger,
consolidation, reorganization, recapitalization or other fundamental change in
the corporate structure of the Issuer, or upon the exercise by the Company or
the Administrative Agent of any right, privilege or option pertaining to such
shares of the Pledged Stock, and in connection therewith, the right to deposit
and deliver any and all of the Pledged Stock with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as it may determine), all without liability except to account for
property actually received by it and except for its gross negligence or willful
misconduct or failure to comply with the provisions of Section 12, but the
Administrative Agent shall have no duty to the Company to exercise any such
right, privilege or option and shall not be responsible for any failure to do so
or delay in so doing.
(b) The rights of the Secured Creditors hereunder shall not be
conditioned or contingent upon the pursuit by any Secured Creditor of any right
or remedy against any other Person which may be or become liable in respect of
all or any part of the Obligations or against any collateral security therefor,
guarantee therefor or right of offset with respect thereto. None of the Secured
Creditors shall be liable for any failure to demand, collect or realize upon all
or any part of the Collateral or for any delay in doing so, nor shall the
Administrative Agent be under any obligation to sell or otherwise dispose of any
Collateral upon the request of the Company or any other Person or to take any
other action whatsoever with regard to the Collateral or any part thereof. The
Administrative Agent agrees to release promptly to the Company any dividends,
cash, securities, instruments and other property paid, payable or otherwise
distributed in respect of the Collateral which it may receive under subsection
7(a) (other than Pledged Notes pursuant to clause (ii) thereof) if, prior to the
occurrence of an acceleration of any of the Obligations, all
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Defaults and Events of Default have been waived or are no longer continuing.
(c) The Administrative Agent may execute any of its duties
under this Agreement 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 agents or attorneys-in-fact selected by it with reasonable
care, except as otherwise provided in subsection 11.3 of the Credit Agreement or
subsection 12 hereof.
8. REMEDIES. (a) In the event that any portion of the
Obligations has been declared or becomes due and payable in accordance with the
terms of the Credit Agreement, the Administrative Agent, on behalf of the
Secured Creditors, may exercise, in addition to all other rights and remedies
granted in this Agreement and in any other instrument or agreement securing,
evidencing or relating to the Obligations, all rights and remedies of a secured
party under the Code. Without limiting the generality of the foregoing, the
Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon the Company, any Issuer or any
other Person (all and each of which demands, defenses, advertisements and
notices are hereby waived), may in such circumstances forthwith collect,
receive, appropriate and realize upon the Collateral, or any part thereof,
and/or may forthwith sell, assign, give option or options to purchase or
otherwise dispose of and deliver the Collateral or any part thereof (or contract
to do any of the foregoing), in one or more parcels at public or private sale or
sales, in the over-the-counter market, at any exchange, broker's board or office
of any Secured Creditor or elsewhere upon such terms and conditions as it may
deem commercially reasonable and at such prices as it may deem best, for cash or
on credit or for future delivery without assumption of any credit risk. Any
Secured Creditor shall have the right upon any such public sale or sales, and,
to the extent permitted by law, upon any such private sale or sales, to purchase
the whole or any part of the Collateral so sold, free of any right or equity of
redemption in the Company, which right or equity is hereby waived and released.
The Administrative Agent promptly shall apply any Proceeds from time to time
held by it and the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs and
expenses of every kind incurred in respect thereof or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral or
the rights of the Secured Creditors hereunder, including, without limitation,
reasonable attorneys' fees and disbursements of counsel to the Administrative
Agent:
(i) first, to any amounts owing to the Administrative
Agent or the Co-Arrangers in their capacities as such;
(ii) second, to the payment of an amount equal to the
outstanding
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Primary Obligations to the Secured Creditors as provided in paragraph
(e) below, with each Secured Creditor receiving an amount equal to its
outstanding Primary Obligations or, if the proceeds are insufficient to
pay in full all such Primary Obligations, its Pro Rata Share (as
defined below) of the amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) and (ii), to the
payment of an amount equal to the outstanding Secondary Obligations to
the Secured Creditors as provided in paragraph (e) below, with each
Secured Creditor receiving an amount equal to its outstanding Secondary
Obligations or, if the proceeds are insufficient to pay in full all
such Secondary Obligations, its Pro Rata Share of the amount remaining
to be distributed; and
(iv) fourth, to the extent proceeds remain after the
application pursuant to the preceding clauses (i), (ii) and (iii),
after the payment of any other amounts required by any provision of
law, including without limitation, Section 9-504(1)(c) of the Code, and
following the termination of this Agreement pursuant to Section 23
hereof, the Administrative Agent shall account for the surplus, if any,
to the Company.
(b) For purposes of this Agreement, (x) "Pro Rata Share" shall
mean, when calculating a Secured Creditor's portion of any distribution or
amount, that amount (expressed as a percentage) equal to a fraction, the
numerator of which is the then unpaid amount of such Secured Creditor's Primary
Obligations or Secondary Obligations, as the case may be, and the denominator of
which is the then outstanding amount of all Primary Obligations or Secondary
Obligations, as the case may be; (y) "Primary Obligations" shall mean (i) in the
case of the Credit Agreement Obligations, all principal of, and interest on, all
Loans, all L/C Obligations, and all related fees and (ii) in the case of the
Other Obligations, all amounts due under the Interest Rate Agreements (other
than indemnities, fees (including, without limitation, attorneys' fees) and
similar obligations and liabilities); and (z) "Secondary Obligations" shall mean
all Obligations other than Primary Obligations.
(c) When payments to Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under this
Section 8 only) (i) first, to their Primary Obligations (with the amount to be
applied by any Secured Creditor to its Primary Obligations to be applied (x)
first, to interest and (y) second, to any other Primary Obligations) and (ii)
second, to their Secondary Obligations.
(d) Each of the Secured Creditors agrees and acknowledges that
if
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the Agents and the Lenders are to receive a distribution on account of
undrawn amounts with respect to Letters of Credit issued under the Credit
Agreement (which shall only occur after all outstanding Loans and unpaid
drawings with respect to such Letters of Credit have been paid in full), such
amounts shall be paid to the Administrative Agent under the Credit Agreement and
held by it, for the equal and ratable benefit of the Agents and the Lenders, as
cash security for the repayment of Obligations owing to the Agents and the
Lenders as such. If any amounts are held as cash security pursuant to the
immediately preceding sentence, then upon the termination of all outstanding
Letters of Credit, and after the application of all such cash security to the
repayment of all Obligations owing to the Agents and the Lenders after giving
effect to the termination of all such Letters of Credit, if there remains any
excess cash, such excess cash shall be distributed in accordance with subsection
8(a) hereof.
(e) Except as set forth in subsection 8(c) hereof, all
payments required to be made to the Agents and the Lenders hereunder shall be
made to the Administrative Agent under the Credit Agreement for the account of
the Agents and the Lenders and all payments required to be made to the Other
Creditors hereunder shall be made directly to the respective Other Creditor.
(f) For purposes of applying payments received in accordance
with this Section 8, the Administrative Agent shall be entitled to rely upon the
Other Creditors for a determination (which each Other Creditor agrees (or shall
agree) to provide upon request of the Administrative Agent) of the outstanding
Obligations owed to the Other Creditors. Unless it has actual knowledge
(including by way of written notice from any other Agent, any Lender or an Other
Creditor) to the contrary, the Administrative Agent shall be entitled to assume
that (x) no Secondary Obligations are owing to any other Agent, any Lender or
Other Creditor and (y) no Interest Rate Agreement or Other Obligations in
respect thereof, are in existence.
(g) It is understood that the Company shall remain liable to
the extent of any deficiency between the amount of the proceeds of the
Collateral and the aggregate amount of the sums referred to in clause (a) of
this Section 8.
(h) To the extent permitted by applicable law, the Company
waives all claims, damages and demands it may acquire against any Secured
Creditor arising out of the lawful exercise by them of any rights hereunder. If
any notice of a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and proper if given at
least 10 days before such sale or other disposition. The Company further waives
and agrees not to assert any rights or privileges which it may acquire under
Section 9-112 of the Code. The Company shall remain liable for any deficiency if
the proceeds of any sale or other disposition of the Collateral are insufficient
to pay the Obligations and the fees and disbursements of any
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attorneys employed by the Administrative Agent, any other Agent, or any Lender
to collect such deficiency.
9. REGISTRATION RIGHTS; PRIVATE SALES. (a) If the
Administrative Agent shall determine to exercise its right to sell any or all of
the Pledged Stock pursuant to Section 8, and if in the opinion of the
Administrative Agent it is necessary or advisable to have the Pledged Stock, or
that portion thereof to be sold, registered under the provisions of the
Securities Act of 1933, as amended (the "SECURITIES ACT"), the Company will
cause such Issuer to (i) execute and deliver, and cause the directors and
officers of such Issuer to execute and deliver, all such instruments and
documents, and do or cause to be done all such other acts as may be, in the
opinion of the Administrative Agent, necessary or advisable to register the
Pledged Stock, or that portion thereof to be sold, under the provisions of the
Securities Act, (ii) use its best efforts to cause the registration statement
relating thereto to become effective and to remain effective for a period of 90
days from the date of the first public offering of the Pledged Stock, or that
portion thereof to be sold, and (iii) make all amendments thereto and/or to the
related prospectus that, in the opinion of the Administrative Agent, are
necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto. The Company agrees to cause each Issuer to comply
with the provisions of the securities or "Blue Sky" laws of any and all
jurisdictions that the Administrative Agent shall reasonably designate and to
make available to its security holders, as soon as practicable, an earnings
statement (which need not be audited) that will satisfy the provisions of
Section 11(a) of the Securities Act.
(b) The Company recognizes that the Administrative Agent may
be unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers that will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. The
Company acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale conducted
in a manner that the Administrative Agent in good faith believes to be
commercially reasonable under the circumstances shall be deemed to have been
made in a commercially reasonable manner. The Administrative Agent shall be
under no obligation to delay the sale of any of the Pledged Stock for the period
of time necessary to permit such Issuer to register such securities for public
sale under the Securities Act, or under applicable state securities laws, even
if such Issuer would agree to do so.
(c) The Company further agrees to use its best efforts to do
or
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cause to be done all such other acts as may be necessary to make such sale or
sales of all or any portion of the Pledged Stock, pursuant to this Section 9
valid and binding and in compliance with any and all other applicable
Requirements of Law. The Company further agrees that a breach of any of the
covenants contained in this Section 9 will cause irreparable injury to the
Secured Creditors, that the Secured Creditors have no adequate remedy at law in
respect of such breach and, as a consequence, that each and every covenant
contained in this Section 9 shall be specifically enforceable against the
Company, and the Company hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants.
10. NO SUBROGATION. Notwithstanding any payment or payments
made by the Company hereunder, or any setoff or application of funds of the
Company by any Lender, or the receipt of any amounts by any Secured Creditor
with respect to any of the Collateral, the Company shall not be entitled to be
subrogated to any of the rights of any Secured Creditor against any Subsidiary
of the Company or against any collateral security held by any Secured Creditor
for the payment of the Obligations, nor shall the Company seek any reimbursement
from any Subsidiary of the Company in respect of payments made by the Company in
connection with the Collateral, or amounts realized by any Secured Creditor in
connection with the Collateral, and any such rights of subrogation and
reimbursement of the Company are hereby waived until all amounts owing to the
Secured Creditors by the Company on account of the Obligations are paid in full,
the Commitments are terminated and either no Letters of Credit are outstanding
or each outstanding Letter of Credit has been cash collateralized so that it is
fully secured to the satisfaction of the Administrative Agent.
11. AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS. The
Company shall remain obligated hereunder, and the Collateral shall remain
subject to the Lien granted hereby, notwithstanding that, without any
reservation of rights against the Company, and without notice to or further
assent by the Company, any demand for payment of any of the Obligations made by
any Secured Creditor may be rescinded by such Secured Creditor, and any of the
Obligations continued, and the Obligations, or the liability of each Issuer or
any other Person upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered, or released by the Administrative Agent, any
other Co-Arranger (subject to subsection 12.16 of the Credit Agreement), the
Issuing Lender, any Lender or any Other Creditor, and the Credit Agreement, the
Notes, the Security Documents, and the other Credit Documents, any Interest Rate
Agreement entered into with any Lender or Lenders and any other documents
executed and delivered in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Lenders (or the Required
Lenders, as the case may be) may deem advisable from time to time, and
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any guarantee, right of offset or other collateral security at any time held by
any Secured Creditor for the payment of the Obligations may be sold, exchanged,
waived, surrendered or released. None of the Secured Creditors shall have any
obligation to protect, secure, perfect or insure any other Lien at any time held
by it as security for the Obligations or any property subject thereto. The
Company waives any and all notice of the creation, renewal, extension or accrual
of any of the Obligations and notice of or proof of reliance by any Secured
Creditor upon this Agreement; the Obligations, and any of them shall
conclusively be deemed to have been created, contracted or incurred in reliance
upon this Agreement; and all dealings between each Issuer and the Company, on
the one hand, and the Secured Creditors on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon this
Agreement. The Company waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon each Issuer or the
Company with respect to the Obligations.
12. LIMITATION ON DUTIES REGARDING COLLATERAL. The
Administrative Agent's sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9-207
of the Code or otherwise, shall be to deal with it in the same manner as the
Administrative Agent deals with similar securities and property for its own
account. None of the Secured Creditors nor any of their respective directors,
officers, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of the Company or otherwise.
13. POWERS COUPLED WITH AN INTEREST. All authorizations and
agencies herein contained with respect to the Collateral are irrevocable and
powers coupled with an interest.
14. 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.
15. SECTION HEADINGS. The section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
16. NO WAIVER; CUMULATIVE REMEDIES. None of the Secured
Creditors shall by any act (except by a written instrument pursuant to Section
17 hereof) be deemed to have waived any right or remedy hereunder or to have
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acquiesced in any default of any obligation under any Credit Document or in any
breach of any of the terms and conditions hereof or thereof. No failure to
exercise, nor any delay in exercising, on the part of any Secured Creditor, any
right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by any Secured Creditor of any right or remedy hereunder
on any one occasion shall not be construed as a bar to any right or remedy which
such Secured Creditor would otherwise have on any future occasion. The rights
and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any other rights or remedies provided by
law.
17. INTEGRATION; WAIVERS AND AMENDMENTS; SUCCESSORS AND
ASSIGNS; GOVERNING LAW. This Agreement represents the entire agreement of the
Company with respect to the subject matter hereof except as otherwise set forth
in the Credit Agreement and there are no promises or representations by any
Secured Creditor relative to the subject matter hereof not reflected herein or
in the other Credit Documents. In the event of a conflict among the Credit
Documents, the Credit Agreement shall control. None of the terms or provisions
of this Agreement may be amended, supplemented or otherwise modified except by a
written instrument executed by the Company and the Administrative Agent (with
the consent of either (x) the Required Lenders or, to the extent required by
subsection 12.1 of the Credit Agreement, the Supermajority Lenders or all of the
Lenders, at all times prior to the time on which all Credit Agreement
Obligations have been paid in full or (y) the holders of at least a majority of
the outstanding Other Obligations at all times after the time on which all
Credit Agreement Obligations have been paid in full); PROVIDED, that any change,
waiver, modification or variance affecting the rights and benefits of a single
Class of Secured Creditors (and not all Secured Creditors in a like or similar
manner) shall also require the written consent of the Requisite Creditors of
such Class of Secured Creditors, I.E., whether (x) the Agents and the Lenders as
holders of the Credit Agreement Obligations or (y) the Other Creditors as the
holders of the Other Obligations. For the purpose of this Agreement, the term
"Requisite Creditors" of any Class shall mean each of (x) with respect to the
Credit Agreement Obligations, the Required Lenders and (y) with respect to the
Other Obligations, the holders of at least a majority of all obligations
outstanding from time to time under the Interest Rate Agreements; provided that,
subject to the immediately preceding provision, any provision of this Agreement
may be waived by the Administrative Agent in a letter or agreement executed by
the Administrative Agent or by telex or facsimile transmission from the
Administrative Agent. This Agreement shall be binding upon the successors and
assigns of the Company and shall inure to the benefit of the Secured Creditors
and their respective successors and assigns. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
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18. NOTICES. Notices by the Administrative Agent to the
Company or any Issuer may be given by mail, by telex or by facsimile
transmission, addressed or transmitted to the Company or such Issuer at its
address or transmission number set forth in subsection 12.2 of the Credit
Agreement in the case of the Company and on Schedule III hereto in the case of
each Issuer and shall be effective (a) in the case of mail, three days after
deposit in the postal system, first class postage pre-paid, and (b) in the case
of telex or facsimile notices, when sent. The Company and any Issuer may change
their respective addresses and transmission numbers by written notice to the
Administrative Agent.
19. COUNTERPARTS. This Agreement may be executed by one or
more of the parties hereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
20. IRREVOCABLE AUTHORIZATION AND INSTRUCTION TO COMPANY. The
Company hereby authorizes and instructs each Issuer to comply with any
instruction received by it from the Administrative Agent in writing that (a)
states that an Event of Default has occurred and is continuing and (b) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from the Company, and the Company agrees that each Issuer
shall be fully protected in so complying.
21. AUTHORITY OF ADMINISTRATIVE AGENT. The Company
acknowledges that the rights and responsibilities of the Administrative Agent
under this Agreement with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
voting right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as among the Secured
Creditors, Agents and the Lenders, be governed by the Credit Agreement and by
such other agreements with respect thereto as may exist from time to time among
them, but, as between the Administrative Agent and the Company, the
Administrative Agent shall be conclusively presumed to be acting as agent for
the Secured Creditors with full and valid authority so to act or refrain from
acting, and neither the Company nor any Issuer shall be under any obligation, or
entitlement, to make any inquiry respecting such authority.
22. ADMINISTRATIVE AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT.
(a) The Company hereby irrevocably constitutes and appoints the Administrative
Agent and any officer or agent of the Administrative Agent, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Company and in the name of the
Company or in the Administrative Agent's own name, from time to time in the
Administrative Agent's discretion, for the purpose of carrying out the terms of
this Agreement, to take any
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and all appropriate action and to execute any and all documents and instruments
which may be necessary or desirable to accomplish the purposes of this
Agreement, including, without limitation, any financing statements,
endorsements, assignments or other instruments of transfer.
(b) The Company hereby ratifies all that said attorneys shall lawfully
do or cause to be done pursuant to the power of attorney granted in subsection
22(a). All powers, authorizations and agencies contained in this Agreement are
coupled with an interest and are irrevocable until this Agreement is terminated
and the security interests created hereby are released.
23. TERMINATION; RELEASE. (a) This Agreement shall terminate
when all the Obligations have been fully paid and performed and the Commitments
terminated or as otherwise explicitly permitted under the Credit Agreement and
either no Letters of Credit are outstanding or each outstanding Letter of Credit
has been cash collateralized so that it is fully secured to the satisfaction of
the Administrative Agent. Upon such termination, the Administrative Agent shall
on its behalf and on behalf of the other Agents and the Lenders reassign and
redeliver (or cause to be reassigned and redelivered) to the Company, or to such
person or persons as the Company shall designate or to whomever may be lawfully
entitled to receive such surplus, against receipt, such of the Collateral (if
any) as shall not have been sold or otherwise applied by the Administrative
Agent pursuant to the terms hereof and shall still be held by it hereunder,
together with appropriate instruments of reassignment and release. Any such
reassignment shall be without recourse upon or warranty by the Administrative
Agent (other than a warranty that the Administrative Agent has not assigned its
rights and interests hereunder to any other Person) and at the sole cost and
expense of the Company.
(b) In the event that any part of the Collateral is sold
(except to Holdings or any of its Subsidiaries) in connection with a sale
permitted by subsection 9.5 of the Credit Agreement or otherwise released
pursuant to the Credit Agreement or at the direction of the Required Lenders (or
all Lenders if required by subsection 12.1 of the Credit Agreement) and the
proceeds of such sale or sales or from such release are applied in accordance
with the provisions of subsection 5.4 of the Credit Agreement, to the extent
required to be so applied, the Administrative Agent, at the request and expense
of the Company, will duly assign, transfer and deliver to the Company (without
recourse and without any representation or warranty) such of the Collateral (and
releases therefor) as is then being (or has been) so sold or released and has
not theretofore been released pursuant to this Agreement.
(c) In the event that the Company establishes a Receivables
Facility, as described in subsection 8.9(g) of the Credit Agreement, that
prohibits the pledge hereby of the Capital Stock of the respective Receivables
SPV (and so long as
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such Receivables Facility is in effect and contains such prohibition), the
Administrative Agent, at the request and expense of the Company, will release
the Capital Stock of such Receivables SPV and will duly assign, transfer and
deliver to the Company (without recourse, and without any representation or
warranty) such Pledged Stock (and releases therefor); PROVIDED that the Company
shall use commercially reasonable efforts to grant to the Administrative Agent
for the ratable benefit of the Secured Creditors a second priority perfected
security interest in such Capital Stock to secure the obligations pursuant to
the Credit Documents (and shall take all action in connection therewith as may
reasonably be requested by the Administrative Agent).
(d) At any time that the Company desires that the
Administrative Agent assign, transfer and deliver Collateral (and releases
therefor) as provided in subsection 23(a), (b) or (c) hereof, it shall deliver
to the Administrative Agent a certificate signed by an executive officer of the
Company stating that the release of the respective Collateral is permitted
pursuant to such subsection 23(a), (b) or (c).
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IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be duly executed and delivered as of the date first above written.
WERNER HOLDING CO. (DE), INC.
By:
------------------------------------
Name:
Title:
BANKERS TRUST COMPANY, as
Administrative Agent
By:
--------------------------------------
Name:
Title:
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ACKNOWLEDGEMENT AND CONSENT
Each Issuer referred to in the foregoing Pledge Agreement
hereby acknowledge receipt of a copy thereof and agrees to be bound thereby and
to comply with the terms thereof insofar as such terms are applicable to it.
Each Issuer agrees to notify the Administrative Agent promptly in writing of the
occurrence of any of the events described in subsection 5(a) of the Pledge
Agreement. Each Issuer further agrees that the terms of subsection 9(c) of the
Pledge Agreement shall apply to it, MUTATIS MUTANDIS, with respect to all
actions that may be required of it under or pursuant to or arising out of
Section 9 of the Pledge Agreement.
[SUBSIDIARIES OF THE COMPANY]
By:
-----------------------------------
Name:
Title:
-1-
0000H7V1.W51
344
SCHEDULE I
----------
Company Pledge Agreement
DESCRIPTION OF PLEDGED STOCK
----------------------------
============================================================================
Percentage of
No. of Outstanding Shares
ISSUER CLASS OF STOCK STOCK CERTIFICATE NO. SHARES OF CAPITAL STOCK
- ------ -------------- --------------------- ------ ----------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
============================================================================
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SCHEDULE II
to
Company Pledge Agreement
------------------------
DESCRIPTION OF PLEDGED NOTES
----------------------------
=============================================================================
OBLIGOR PRINCIPAL AMOUNT (IF ANY) MATURITY DATE (IF ANY)
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
=============================================================================
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SCHEDULE III
------------
Company Pledge Agreement
ADDRESS OF COMPANY
------------------
Werner Holding Co. (DE), Inc.
93 Werner Road
Greenville, PA 16125-9499
Attention:
Telecopy: (412)
With a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Attention: Janet Vance, Esq.
Telecopy: (212) 351-4035
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