1
Exhibit 10.19
CONFORMED COPY
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CREDIT AGREEMENT
dated as of
May 28, 1999
among
GENERAL CABLE CORPORATION
The Borrowing Subsidiaries
Party Hereto
The Lenders Party Hereto
and
CHASE MANHATTAN INTERNATIONAL LIMITED
as London Agent
THE CHASE MANHATTAN BANK
as Administrative Agent
BANK ONE, MICHIGAN
MERRILL LYNCH CAPITAL CORPORATION
PNC BANK, NATIONAL ASSOCIATION
as Co-Documentation Agents
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CHASE SECURITIES INC.
as Arranger
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[6700-830]
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TABLE OF CONTENTS
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ARTICLE I
Definitions
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SECTION 1.01. Defined Terms ............................................................................1
SECTION 1.02. Classification of Loans and Borrowings ..................................................24
SECTION 1.03. Terms Generally .........................................................................25
SECTION 1.04. Accounting Terms; GAAP ..................................................................25
SECTION 1.05. Exchange Rates ..........................................................................25
SECTION 1.06. Redenomination of Certain Foreign Currencies ............................................26
ARTICLE II
The Credits
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SECTION 2.01. Commitments; Designated Foreign Currency Supplements ....................................26
SECTION 2.02. Loans and Borrowings ....................................................................28
SECTION 2.03. Requests for Borrowings .................................................................29
SECTION 2.04. Repayment of Loans; Evidence of Debt ....................................................30
SECTION 2.05. Swingline Loans .........................................................................31
SECTION 2.06. Letters of Credit .......................................................................32
SECTION 2.07. Funding of Borrowings ...................................................................36
SECTION 2.08. Interest Elections ......................................................................37
SECTION 2.09. Termination and Reduction of Commitments ................................................38
SECTION 2.10. Amortization of Term Loans ..............................................................39
SECTION 2.11. Prepayment of Loans .....................................................................42
SECTION 2.12. Fees ....................................................................................44
SECTION 2.13. Interest ................................................................................45
SECTION 2.14. Alternate Rate of Interest ..............................................................46
SECTION 2.15. Increased Costs .........................................................................46
SECTION 2.16. Break Funding Payments ..................................................................47
SECTION 2.17. Taxes ...................................................................................48
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Setoffs ..............................48
SECTION 2.19. Mitigation Obligations; Replacement of Lenders ..........................................50
SECTION 2.20. Borrowing Subsidiaries ..................................................................51
ARTICLE III
Representations and Warranties
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SECTION 3.01. Organization; Powers ....................................................................51
SECTION 3.02. Authorization; Enforceability ...........................................................51
SECTION 3.03. Approvals; No Conflicts .................................................................51
SECTION 3.04. Financial Condition; No Material Adverse Change .........................................52
SECTION 3.05. Properties ..............................................................................52
SECTION 3.06. Litigation and Environmental Matters ....................................................53
SECTION 3.07. Compliance with Laws and Agreements .....................................................53
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SECTION 3.08. Investment and Holding Company Status....................................................53
SECTION 3.09. Taxes....................................................................................53
SECTION 3.10. ERISA....................................................................................53
SECTION 3.11. Disclosure...............................................................................53
SECTION 3.12. Subsidiaries.............................................................................54
SECTION 3.13. Insurance................................................................................54
SECTION 3.14. Federal Reserve Regulations..............................................................54
SECTION 3.15. Year 2000 Compliance.....................................................................54
SECTION 3.16. Security Documents.......................................................................54
ARTICLE IV
Conditions
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SECTION 4.01. Effective Date...........................................................................55
SECTION 4.02. Each Credit Event........................................................................57
SECTION 4.03. Initial Credit Event for each Borrowing Subsidiary.......................................57
ARTICLE V
Affirmative Covenants
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SECTION 5.01. Financial Statements and Other Information...............................................58
SECTION 5.02. Notices of Material Events...............................................................59
SECTION 5.03. Existence; Conduct of Business...........................................................59
SECTION 5.04. Payment of Obligations...................................................................59
SECTION 5.05. Maintenance of Properties; Insurance.....................................................59
SECTION 5.06. Information Regarding Collateral.........................................................59
SECTION 5.07. Casualty and Condemnation................................................................60
SECTION 5.08. Books and Records; Inspection Rights.....................................................60
SECTION 5.09. Compliance with Laws.....................................................................60
SECTION 5.10. Use of Proceeds and Letters of Credit....................................................60
SECTION 5.11. Collateral and Guarantee Requirements....................................................60
SECTION 5.12. Ownership of Subsidiaries................................................................61
SECTION 5.13. Interest Rate Protection.................................................................61
ARTICLE VI
Negative Covenants
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SECTION 6.01. Subsidiary Indebtedness..................................................................61
SECTION 6.02. Liens....................................................................................62
SECTION 6.03. Sale and Lease-Back Transactions.........................................................63
SECTION 6.04. Fundamental Changes......................................................................63
SECTION 6.05. Investments, Loans, Advances, Guarantees and Acquisitions................................64
SECTION 6.06. Hedging Agreements.......................................................................64
SECTION 6.07. Restricted Payments......................................................................65
SECTION 6.08. Transactions with Affiliates.............................................................65
SECTION 6.09. Restrictive Agreements...................................................................65
SECTION 6.10. Leverage Ratio...........................................................................65
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SECTION 6.11. Interest Coverage Ratio..................................................................66
SECTION 6.12. Amendment of Material Documents..........................................................66
ARTICLE VII
Events of Default.......................................................................................66
ARTICLE VIII
The Agents..............................................................................................68
ARTICLE IX
Guarantee...............................................................................................71
ARTICLE X
Miscellaneous
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SECTION 10.01. Notices.................................................................................72
SECTION 10.02. Waivers; Amendments.....................................................................73
SECTION 10.03. Expenses; Indemnity; Damage Waiver......................................................74
SECTION 10.04. Successors and Assigns..................................................................75
SECTION 10.05. Survival................................................................................77
SECTION 10.06. Counterparts; Integration; Effectiveness................................................77
SECTION 10.07. Severability............................................................................77
SECTION 10.08. Right of Setoff.........................................................................78
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process..............................78
SECTION 10.10. WAIVER OF JURY TRIAL....................................................................78
SECTION 10.11. Headings................................................................................79
SECTION 10.12. Confidentiality.........................................................................79
SECTION 10.13. Conversion of Currencies................................................................79
SECTION 10.14. Release of Collateral...................................................................79
SCHEDULES: Page
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Schedule 1.01(b) -- Subsidiary Guarantors and Material Subsidiaries
Schedule 2.01 -- Lenders and Commitments
Schedule 2.06(j) -- Existing Letters of Credit
Schedule 3.03 -- Post-Effective Date Acquisition Transactions
Schedule 3.05 -- Properties
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
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Schedule 6.09 -- Existing Restrictions
EXHIBITS:
Exhibit A-1 -- Form of Borrowing Subsidiary Agreement
Exhibit A-2 -- Form of Borrowing Subsidiary Termination
Exhibit B -- Form of Designated Foreign Currency Supplement
Exhibit C -- Form of Assignment and Acceptance
Exhibit D-1 -- Form of Opinion of Blank Rome Comisky & McCauley LLP,
Counsel for certain Loan Parties
Exhibit D-2 -- Form of Opinion of Lovell White Durrant, U.K. Counsel for
the Agents and the Lenders
Exhibit D-3 -- Form of Opinion of Robert Siverd, General Counsel of the
Company
Exhibit D-4 -- Form of Opinion of Estudio Legal, Spanish counsel for
certain Loan Parties
Exhibit D-5 -- Form of Opinion of Osler, Hoskin & Harcourt, Canadian
counsel for certain Loan Parties
Exhibit D-6 -- Form of Opinion of Counsel for Each Borrowing Subsidiary
Exhibit E -- Form of Subsidiary Guarantee Agreement
Exhibit F -- Form of Pledge Agreement
Exhibit G -- Form of Security Agreement
Exhibit H -- Form of Indemnity, Subrogation and Contribution Agreement
Exhibit I -- Form of Perfection Certificate
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CREDIT AGREEMENT dated as of May 28, 1999,
among
GENERAL CABLE CORPORATION; GK TECHNOLOGIES,
INCORPORATED; GENERAL CABLE HOLDINGS (UK) LIMITED;
GENERAL CABLE ACQUISITIONS (SPAIN), S.A.; GENERAL
CABLE HOLDINGS, INC.; the other BORROWING
SUBSIDIARIES from time to time party hereto; the
LENDERS from time to time party hereto; THE CHASE
MANHATTAN BANK, as Administrative Agent, CHASE
MANHATTAN INTERNATIONAL LIMITED, as London Agent, and
BANK ONE, MICHIGAN, MERRILL LYNCH CAPITAL CORPORATION
and PNC BANK, NATIONAL ASSOCIATION, as
Co-Documentation Agents.
The Company (such term and each other capitalized term used
but not otherwise defined herein having the meaning assigned to it in Article
I), indirectly through one or more Subsidiaries, intends to acquire the Acquired
Assets for an aggregate purchase price of GBP 275,000,000 (or approximately
$450,000,000), subject to adjustments provided for in the Acquisition Documents.
The Company has requested the Lenders to establish the credit facilities
provided for herein under which the Company and, to the extent provided herein,
the Borrowing Subsidiaries may obtain (a) Tranche A-1 Term Loans in Sterling,
Euros and Dollars in an aggregate principal or stated amount of $125,000,000,
(b) Tranche A-2 Term Loans in Dollars in an aggregate principal amount of up to
$150,000,000, (c) Tranche B Term Loans in Dollars in an aggregate principal
amount of up to $525,000,000 and (d) Revolving Loans and Letters of Credit in
Dollars and Foreign Currencies in an aggregate principal or stated amount up to
$250,000,000. Such Loans and Letters of Credit will be used to consummate the
Acquisition Transactions, to repay certain Indebtedness of the Company
(including Indebtedness outstanding under the Existing Credit Agreement), to pay
fees and expenses in connection with the foregoing and for general corporate
purposes of the Borrowers, including the financing of future acquisitions. The
Lenders are willing to establish such credit facilities upon the terms and
subject to the conditions set forth herein. Accordingly, the parties hereto
agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Acquired Assets" means the assets comprising the energy cable
division of BICC plc that the Company and the Subsidiaries are to acquire
pursuant to the Acquisition Documents.
"Acquisition Documents" means (a) the Sale and Purchase
Agreement dated April 6, 1999, among BICC plc, GK Technologies, Incorporated and
the Company, including the exhibits and schedules thereto, the Disclosure Letter
and the Tax Deed of Covenant referred to therein and each agreement (including
each Subsidiary Agreement, as defined therein), certificate, instrument,
assignment or other document executed or delivered or to be executed or
delivered in connection therewith and (b) the Assets Sale and Purchase Agreement
dated April 6, 1999, among BICC Cables Corporation, BICC Cables Canada Inc.,
Pyrotenax USA Inc., GK Technologies, Incorporated, BICC plc and the Company,
including the exhibits and
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schedules thereto, the Disclosure Letter and the Tax Deed of Covenant referred
to therein and each agreement, certificate, instrument, assignment or other
document executed or delivered or to be executed or delivered in connection
therewith.
"Acquisition Transactions" means the execution, delivery and
performance by the Company and its applicable Subsidiaries of the Acquisition
Documents and the completion of the acquisition transactions provided for
therein.
"Adjusted LIBO Rate" means, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agents" means, collectively, the Administrative Agent, the
London Agent and the Collateral Agent.
"Agreement Currency" has the meaning assigned to such term in
Section 10.13(b).
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Base
CD Rate in effect on such day plus 1% and (c) the Federal Funds Effective Rate
in effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due
to a change in the Prime Rate, the Base CD Rate or the Federal Funds Effective
Rate shall be effective from and including the effective date of such change in
the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate,
respectively.
"Applicable Agent" means (a) with respect to a Loan, Borrowing
or Letter of Credit denominated in Dollars, the Administrative Agent, (b) with
respect to a Loan, Borrowing or Letter of Credit denominated in any Foreign
Currency, the London Agent or, in the case of a Loan or Borrowing denominated in
any Designated Foreign Currency, such other Person as may be specified in the
applicable Designated Foreign Currency Supplement.
"Applicable Rate" means, for any day (a) with respect to (i)
any ABR Loan or Eurocurrency Loan that is (A) a Revolving Loan or (B) a Tranche
A Term Loan or (ii) the commitment fees payable hereunder, as the case may be,
the applicable rate per annum set forth under the appropriate caption in Table I
below or (b) with respect to any ABR Loan or Eurocurrency Loan that is a Tranche
B Term Loan, the applicable rate per annum set forth under the appropriate
caption in Table II below, in each case based upon the Leverage Ratio as of the
most recent determination date:
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Table I
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ABR Eurocurrency Commitment Fee
Leverage Ratio: Spread Spread Rate
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Category 1
>4.0 1.75% 2.75% 0.500%
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Category 2
< 4.0 and > 3.5 1.50% 2.50% 0.500%
-
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Category 3
< 3.5 and > 3.0 1.25% 2.25% 0.425%
-
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Category 4
< 3.0 and > 2.5 1.00% 2.00% 0.375%
-
- -----------------------------------------------------------------------
Category 5
< 2.5 0.75% 1.75% 0.350%
-
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Table II
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ABR Eurocurrency
Leverage Ratio: Spread Spread
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Category 1
>4.0 2.25% 3.25%
- --------------------------------------------------------------------------------
Category 2
< 4.0 and > 3.5 2.00% 3.00%
-
- --------------------------------------------------------------------------------
Category 3
< 3.5 and > 2.5 1.75% 2.75%
-
- --------------------------------------------------------------------------------
Category 4
< 2.5 1.50% 2.50%
-
- --------------------------------------------------------------------------------
Except as set forth below, the Leverage Ratio used on any date to determine the
Applicable Rate shall be that in effect at the fiscal quarter end next preceding
the Financial Statement Delivery Date occurring on or most recently prior to
such date; provided that if any Financial Statement Delivery Date shall have
occurred and the financial statements required to have been delivered under
Section 5.01(a) or (b) by such date have not yet been delivered, the Applicable
Rate shall, until such financial statements shall have been delivered, be
determined by reference to Category 1 in the applicable Table. Notwithstanding
the foregoing, until the Financial Statement Delivery Date immediately following
December 31, 1999, the Applicable Rate will for all purposes be determined by
reference to Category 3 in the applicable Table.
"Applicable Tranche A-1 Term Percentage" means, with respect
to any Tranche A-1 Term Lender, the percentage of the total Tranche A-1 Term
Commitments represented by such Lender's Tranche A-1 Term Commitment.
"Applicable Tranche A-2 Term Percentage" means, with respect
to any Tranche A-2 Term Lender, the percentage of the total Tranche A-2 Term
Commitments represented by such Lender's Tranche A-2 Term Commitment.
"Applicable Tranche B Term Percentage" means, with respect to
any Tranche B Term Lender, the percentage of the total Tranche B Term
Commitments represented by such Lender's Tranche B Term Commitment.
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"Applicable Tranche 1 Revolving Percentage" means, with
respect to any Tranche 1 Revolving Lender, the percentage of the total Tranche 1
Revolving Commitments represented by such Lender's Tranche 1 Revolving
Commitment. If the Tranche 1 Revolving Commitments have terminated or expired,
the Applicable Tranche 1 Revolving Percentages shall be determined based upon
the Applicable Tranche 1 Revolving Commitments most recently in effect, after
giving effect to any assignments.
"Applicable Tranche 2 Revolving Percentage" means, with
respect to any Tranche 2 Revolving Lender, the percentage of the total Tranche 2
Revolving Commitments represented by such Lender's Tranche 2 Revolving
Commitment. If the Tranche 2 Revolving Commitments have terminated or expired,
the Applicable Tranche 2 Revolving Percentages shall be determined based upon
the Applicable Tranche 2 Revolving Commitments most recently in effect, after
giving effect to any assignments.
"Assessment Rate" means, for any day, the annual assessment
rate in effect on such day that is payable by a member of the Bank Insurance
Fund classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in Dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.04), and accepted by the Administrative Agent,
in the form of Exhibit C or any other form approved by the Administrative Agent.
"Available Tranche 1 Revolving Commitment" means, with respect
to any Revolving Lender at any time, an amount equal to such Lender's Tranche 1
Revolving Commitment at such time minus such Lender's Tranche 1 Revolving
Exposure at such time.
"Available Tranche 2 Revolving Commitment" means, with respect
to any Revolving Lender at any time, an amount equal to such Lender's Tranche 2
Revolving Commitment at such time minus such Lender's Tranche 2 Revolving
Exposure at such time.
"Base CD Rate" means the sum of (a) the Three-Month Secondary
CD Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means the Company or any Borrowing
Subsidiary.
"Borrowing" means (a) Loans of the same Type and currency,
made, converted or continued on the same date (and, in the case of Designated
Foreign Currency Revolving Loans, pursuant to the same Designated Foreign
Currency Supplement) and, in the case of Eurocurrency Loans, as to which a
single Interest Period is in effect or (b) a Swingline Loan.
"Borrowing Minimum" means (a) in the case of a Borrowing
denominated in Dollars, $5,000,000 (or, in the case of a Revolving Borrowing
denominated in Dollars, $1,000,000) and (b) in the case of a Borrowing
denominated in any Foreign Currency, the smallest amount of such Foreign
Currency that (i) is an integral multiple of 1,000,000 units (or, in the case of
Sterling, 500,000 units) of such currency and (ii) has a Dollar Equivalent in
excess of $5,000,000.
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"Borrowing Multiple" means (a) in the case of a Borrowing
denominated in Dollars, $1,000,000 and (b) in the case of a Borrowing
denominated in any Foreign Currency, 1,000,000 units (or, in the case of
Sterling, 500,000 units) of such currency.
"Borrowing Request" means a request by a Borrower for a
Revolving Borrowing in accordance with Section 2.03.
"Borrowing Subsidiary" means, at any time, GKT, the UK Term
Borrower, the Spanish Term Borrower, the US/Canada Term Borrower and each other
Wholly Owned Subsidiary that has been designated as a Borrowing Subsidiary by
the Company pursuant to Section 2.20 and that has not ceased to be a Borrowing
Subsidiary as provided in such Section or Article VII.
"Borrowing Subsidiary Agreement" means a Borrowing Subsidiary
Agreement substantially in the form of Exhibit A-1.
"Borrowing Subsidiary Termination" means a Borrowing
Subsidiary Termination substantially in the form of Exhibit A-2.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided, that (a) when used in connection with a
Eurocurrency Loan denominated in Dollars, the term "Business Day" shall also
exclude any day on which banks are not open for dealings in deposits in the
applicable currency in the London interbank market, (b) when used in connection
with a Loan or Letter of Credit denominated in any Foreign Currency (other than
Euro), the term "Business Day" shall also exclude any day on which banks are not
open for dealings in deposits in the applicable currency in the principal
financial center of the country of such Foreign Currency, and (c) when used in
connection with a Loan or Letter of Credit denominated in Euro, the term
"Business Day" shall also exclude any day on which the TARGET payment system is
not open for the settlement of payments in Euro.
"Calculation Date" means (a) the last Business Day of each
calendar month and (b) the last Business Day of each week if, in the case of
this clause (b), on such Business Day, the sum of the Lenders' Tranche 1
Revolving Exposures or Tranche 2 Revolving Exposures, determined on the basis of
the Exchange Rates that became effective as of the most recent Reset Date,
exceeds 85% of the aggregate amount of the Tranche 1 Revolving Commitments or
Tranche 2 Revolving Commitments, respectively.
"Capital Expenditures" means, for any period, (a) the
additions to property, plant and equipment and other capital expenditures of the
Company and its consolidated Subsidiaries that are (or would be) set forth in a
consolidated statement of cash flows of the Company for such period prepared in
accordance with GAAP and (b) Capital Lease Obligations incurred by the Company
and its consolidated Subsidiaries during such period.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash Interest Expense" means, for any period, Interest
Expense paid in cash during such period.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities
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Exchange Act of 1934 and the rules of the Securities and Exchange Commission
thereunder as in effect on the date hereof) of shares representing more than 30%
of the aggregate ordinary voting power represented by the issued and outstanding
capital stock of the Company; (b) occupation of a majority of the seats (other
than vacant seats) on the board of directors of the Company by Persons who were
not (i) directors of the Company on the date hereof, (ii) nominated by the board
of directors of the Company or (iii) appointed by directors so nominated; or (c)
the acquisition of direct or indirect Control of the Company by any Person or
group (it being understood that, in the absence of an event described in clause
(a) or (b), the replacement of one or more officers of the Company shall not in
and of itself constitute a Change in Control).
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
the Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of
such Lender or by such Lender's or the Issuing Bank's holding company, if any)
with any request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the date of this
Agreement.
"Chase" means The Chase Manhattan Bank and its successors.
"Class", when used in reference to (a) any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are Tranche
A-1 Term Loans, Tranche A-2 Term Loans, Tranche B Term Loans, Tranche 1
Revolving Loans, Tranche 2 Revolving Loans or Swingline Loans, and (b) any
Commitment, refers to whether such Commitment is a Tranche A-1 Term Commitment,
a Tranche A-2 Commitment, a Tranche B Term Commitment, a Tranche 1 Revolving
Commitment, a Tranche 2 Revolving Commitment or a Designated Foreign Currency
Commitment.
"CMIL" means Chase Manhattan International Limited and its
successors.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral" means any and all "Collateral", as defined in any
applicable Security Document (as the context requires).
"Collateral Agent" means The Chase Manhattan Bank, in its
capacity as collateral agent for the Secured Parties under the Security
Documents.
"Collateral Requirement" means, at any time, that (a) the
Pledge Agreement (or a supplement referred to in Section 24 thereof) (or, as to
any Equity Interests or Rights issued by a Person subject to the laws of a
foreign jurisdiction, one or more other pledge agreements satisfactory in form
and substance to the Collateral Agent) shall have been duly executed by the
Company and each Domestic Subsidiary existing at such time and owning any Equity
Interests, Rights or Indebtedness of the Company or any other Subsidiary or
other Person, shall have been delivered to the Collateral Agent and shall be in
full force and effect, and all such outstanding Equity Interests and Rights
(after giving effect to the Acquisition Transactions) and all such Indebtedness
in an aggregate principal amount equal to or greater than $1,000,000 (which
Indebtedness shall be evidenced by one or more promissory notes) shall have been
duly and validly pledged thereunder (and any such Indebtedness not evidenced by
a promissory note shall have been pledged under the Security Agreement) to the
Collateral Agent for the ratable benefit of the Secured Parties and certificates
or other instruments representing such Equity Interests and Rights or
Indebtedness (to the extent such Indebtedness is evidenced by instruments),
accompanied by stock powers or other instruments of transfer endorsed in blank,
shall be in the actual possession of the Collateral Agent; provided that,
subject to Section 25 of the Pledge Agreement, none of the Company or the
Domestic Subsidiaries shall be required to pledge more
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than 65% of the voting Equity Interests (but shall be required to pledge 100% of
any non-voting Equity Interests) of any Foreign Subsidiary to secure Obligations
of the Company and Loan Parties that are Domestic Subsidiaries, and any other
action (including any notation in a shareholder registry) required by law or
reasonably requested by the Administrative Agent to be taken in order to create
in favor of the Collateral Agent for the benefit of the Secured Parties a valid,
legal and perfected first-priority security interest in and Lien on the
Collateral subject to the Pledge Agreement (or any such other pledge agreement)
shall have been taken and evidence thereof delivered to the Collateral Agent and
(b) the Security Agreement (or a supplement referred to in Section 7.15 thereof)
shall have been duly executed by the Company and each Domestic Subsidiary
existing at such time, shall have been delivered to the Collateral Agent and
shall be in full force and effect, and each document (including each Uniform
Commercial Code financing statement) required by law or reasonably requested by
the Administrative Agent to be filed or, with respect to fixture filings,
recorded in order to create in favor of the Collateral Agent for the benefit of
the Secured Parties a valid, legal and perfected first-priority security
interest in and Lien on the Collateral subject to the Security Agreement
(subject to any Lien expressly permitted by Section 6.02) shall have been
delivered to the Collateral Agent in form suitable for filing.
"Commitment" means a Tranche A-1 Term Commitment, a Tranche
A-2 Term Commitment, a Tranche B Term Commitment, a Tranche 1 Revolving
Commitment, a Tranche 2 Revolving Commitment or a Designated Foreign Currency
Commitment.
"Committed Currency" means Dollars and Committed Foreign
Currencies.
"Committed Foreign Currency" means Sterling and Euros.
"Company" means General Cable Corporation, a Delaware
corporation.
"Confidential Information Memorandum" means the Confidential
Information Memorandum dated April 1999 distributed to the Lenders, together
with the appendices thereto, as amended through the date hereof.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Designated Foreign Currency" means, when used in connection
with Loans or Borrowings, any currency (other than Dollars, Sterling and Euros)
that is (i) available to banks, freely transferable and freely convertible into
Dollars, in each case in the London interbank market, (ii) has been approved by
the Administrative Agent in a notice delivered to the Company and (iii) in
respect of which one or more Designated Foreign Currency Supplements shall have
been executed and delivered by the Company, one or more Fronting Lenders and the
Administrative Agent and shall be in effect.
"Designated Foreign Currency Commitment" means, with respect
to each Designated Foreign Currency Revolving Lender and Designated Foreign
Currency Supplement, the commitment of such Designated Foreign Currency
Revolving Lender to make Designated Foreign Currency Revolving Loans under
Section 2.01(e) and such Designated Foreign Currency Supplement, as such
commitment may be (a) reduced from time to time pursuant to Section 2.09 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Designated Foreign Currency Revolving Lender pursuant to Section 10.04.
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"Designated Foreign Currency Exposure" means, with respect to
any Tranche 2 Revolving Lender at any time, the sum at such time, without
duplication, of (a) such Tranche 2 Revolving Lender's Applicable Tranche 2
Revolving Percentage of the aggregate Dollar Equivalents of the principal
amounts of the outstanding Designated Foreign Currency Revolving Loans
(excluding any Designated Foreign Currency Revolving Loans in respect of which
such Tranche 2 Revolving Lender has made, or is required to have made, payments
to the applicable Fronting Lenders pursuant to Section 2.01(f)), and (b) the
aggregate principal amount at such time of the Designated Foreign Currency
Revolving Loans that have been converted to Dollar obligations and in respect of
which such Tranche 2 Revolving Lender has made, or is required to have made,
payments to the applicable Fronting Lenders, all as provided in Section 2.01(f).
"Designated Foreign Currency Revolving Lender" means a
Revolving Lender with a Designated Foreign Currency Commitment.
"Designated Foreign Currency Revolving Borrowing" means a
Borrowing comprised of Designated Foreign Currency Revolving Loans.
"Designated Foreign Currency Revolving Loans" means Loans
denominated in Designated Foreign Currencies and made pursuant to Section
2.01(e). Each Designated Foreign Currency Revolving Loan shall be a Eurocurrency
Loan or a Local Rate Loan.
"Designated Foreign Currency Supplement" means an agreement in
the form of Exhibit B hereto executed and delivered by the Company, one or more
Fronting Lenders and the Administrative Agent as provided in Section 2.01(g).
"Dollar Equivalent" means, on any date of determination, (a)
with respect to any amount in Dollars, such amount, and (b) with respect to any
amount in any Foreign Currency, the equivalent in Dollars of such amount,
determined by the Administrative Agent pursuant to Section 1.05(b) using the
Exchange Rate with respect to such Foreign Currency at the time in effect under
the provisions of such Section.
"Dollars" or "$" means the lawful money of the United States
of America.
"Domestic Borrowing Subsidiary" means a Borrowing Subsidiary
that is a Domestic Subsidiary.
"Domestic Subsidiary" shall mean a Subsidiary incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"EBITDA" means, for any period, the consolidated net income of
the Company and its consolidated Subsidiaries for such period plus, to the
extent deducted in computing such consolidated net income for such period, the
sum (without duplication) of (a) income tax expense, (b) Interest Expense, (c)
depreciation and amortization expense, (d) non-recurring restructuring charges
and (e) extraordinary losses, minus, to the extent added in computing such
consolidated net income for such period, (a) consolidated interest income and
(b) extraordinary gains. Anything contained in this definition or elsewhere in
this Agreement to the contrary notwithstanding, in calculating EBITDA for the
four fiscal-quarter period ending on September 30, 1999, December 31, 1999 and
March 31, 2000, EBITDA shall be deemed to equal EBITDA for the period commencing
on July 1, 1999 and ending on (x) September 30, 1999, multiplied by 4, (y)
December 31, 1999, multiplied by 2 and (z) March 31, 2000, multiplied by 4/3,
respectively.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
10.02).
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"Effective Date Transactions" shall mean the Acquisition
Transactions (other than the Post-Effective Date Acquisition Transactions), the
Borrowings hereunder on the Effective Date and the creation of the Liens
provided for in the Security Documents.
"EMU Legislation" means the legislative measures of the
European Union for the introduction of, changeover to or operation of the Euro
in one or more member states.
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of any Borrower or any subsidiary
thereof directly or indirectly resulting from or based upon (a) violation of any
applicable Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with a Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by a Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by a Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by a Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by a Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from a Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Euro" or "E" means the single currency of the European Union
as constituted by the Treaty on European Union and as referred to in the EMU
Legislation.
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"Eurocurrency", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing,
are bearing interest at a rate determined by reference to the Adjusted LIBO
Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excess Cash Flow" means, for any period, the sum (without
duplication) of:
(a) the consolidated net income (or loss) of the Company and
its consolidated Subsidiaries for such period, adjusted to exclude any
gains or losses attributable to Prepayment Events; plus
(b) depreciation, amortization and other non-cash charges or
losses deducted in determining such consolidated net income (or loss)
for such period; plus
(c) the sum of (i) the amount, if any, by which Net Working
Capital decreased during such period plus (ii) the amount, if any, by
which the consolidated deferred revenues of the Company and its
consolidated Subsidiaries increased during such period plus (iii) the
aggregate principal amount of Capital Lease Obligations and other
Indebtedness incurred during such period to finance Capital
Expenditures, to the extent that mandatory principal payments in
respect of such Indebtedness would not be excluded from clause (f)
below when made (assuming that such mandatory principal payments are
not financed by the incurrence of other Indebtedness); minus
(d) the sum of (i) any non-cash gains included in determining
such consolidated net income (or loss) for such period plus (ii) the
amount, if any, by which Net Working Capital increased during such
period plus (iii) the amount, if any, by which the consolidated
deferred revenues of the Company and its consolidated Subsidiaries
decreased during such period; minus
(e) Capital Expenditures for such period; minus
(f) the aggregate principal amount of Indebtedness repaid or
prepaid by the Company and its consolidated Subsidiaries during such
period, excluding (i) Indebtedness in respect of Revolving Loans and
Letters of Credit, (ii) Term Loans prepaid pursuant to Section 2.11(c)
or (d), (iii) repayments or prepayments of Indebtedness financed by the
incurrence of other Indebtedness, to the extent that mandatory
principal payments in respect of such other Indebtedness would not be
excluded from this clause (f) when made and (iv) voluntary prepayments
of Indebtedness other than Term Loans.
"Exchange Rate" means on any day, with respect to any Foreign
Currency, the rate at which such Foreign Currency may be exchanged into Dollars
(or, for purposes of Section 2.01(f), Section 2.06(e) or any other provision of
this Agreement requiring or permitting the conversion of Foreign Currency Loans
to Dollar Loans, the rate at which Dollars may be exchanged into such Foreign
Currency), as set forth at approximately 11:00 a.m., London time, on such day on
the Reuters World Currency Page for such Foreign Currency. In the event that
such rate does not appear on any Reuters World Currency Page, the Exchange Rate
shall be determined by reference to such other publicly available service for
displaying exchange rates as may be agreed upon by the Administrative Agent and
the Company, or, in the absence of such agreement, such Exchange Rate shall
instead be the arithmetic average of the spot rates of exchange of the
Administrative Agent in the market where its foreign currency exchange
operations in respect of such Foreign Currency are then being conducted, at or
about 10:00 a.m., local time, on such date for the purchase of Dollars (or such
Foreign Currency, as the case may be) for delivery two Business Days later;
provided that if at the time of any such determination, for any reason, no such
spot rate is being quoted, the Administrative Agent, after consultation
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with the Company, may use any reasonable method it deems appropriate to
determine such rate, and such determination shall be presumed correct absent
manifest error.
"Excluded Taxes" means, with respect to the Administrative
Agent, the London Agent, any Lender, the Issuing Bank or any other recipient of
any payment to be made by or on account of any obligation of any Borrower
hereunder, (a) income or franchise taxes imposed on (or measured by) its net
income by the United States of America, or by the jurisdiction under which such
recipient is organized or in which its principal office is located, or in the
case of a Foreign Lender, in which its applicable lending office is located, (b)
any branch profit taxes imposed by the United States of America or any similar
tax imposed by any other jurisdiction described in clause (a) above and (c) in
the case of a Foreign Lender (other than an assignee pursuant to a request by
the Company under Section 2.19(b)), any withholding tax that is imposed on
amounts payable to such Foreign Lender (i) to the extent such tax is in effect
and would apply as of the date such Foreign Lender becomes a party to this
Agreement or relates to payments received by a new lending office designated by
such Foreign Lender and is in effect and would apply at the time such lending
office is designated (other than any withholding tax imposed on any payment from
a Borrower domiciled outside the United States), or (ii) that is attributable to
such Foreign Lender's failure to comply with Section 2.17(e), except, in the
case of clause (i) above, to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the applicable
Borrower with respect to such withholding tax pursuant to Section 2.17(a).
"Existing Credit Agreement" means the Credit Agreement dated
as of May 14, 1997 among the Company, the subsidiaries party thereto and the
lenders and agent party thereto.
"Existing Letters of Credit" means the letters of credit
issued under the Existing Credit Agreement and described on Schedule 2.06(j).
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Company.
"Financial Statement Delivery Date" means the 90th day
following the end of each fiscal year of the Company, and the 45th day following
the end of each of the first three fiscal quarters in each fiscal year of the
Company.
"Foreign Currency" means any Committed Foreign Currency or
Designated Foreign Currency.
"Foreign Lender" means, with respect to any Loan, any Lender
making such Loan that is organized under the laws of a jurisdiction other than
the Relevant Jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is not a
Domestic Subsidiary.
"Fronting Lender" means, as to any Tranche 2 Revolving Loan
made or to be made pursuant to Section 2.01(e) and any Designated Foreign
Currency Supplement, each Revolving Lender that has executed and delivered such
Designated Foreign Currency Supplement as a Fronting Lender.
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"GAAP" means generally accepted accounting principles in the
United States of America.
"GKT" means GK Technologies, Incorporated, a New Jersey
corporation and a Wholly Owned Subsidiary.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business or
obligations of a Subsidiary entered in the ordinary course of business of such
Subsidiary in respect of performance bonds and surety bonds securing contractual
obligations of such Subsidiary.
"Guarantee Requirement" shall mean, at any time, that (a) the
Subsidiary Guarantee Agreement (or a supplement referred to in Section 19
thereof) shall have been executed by each Subsidiary (other than any Foreign
Subsidiary that does not directly or indirectly own any Equity Interests in any
Borrower) existing from time to time, shall have been delivered to the
Collateral Agent and shall be in full force and effect and (b) the Indemnity,
Subrogation and Contribution Agreement (or a supplement referred to in Section
12 thereof) shall have been executed by the Company and each Subsidiary required
to be party to the Subsidiary Guarantee Agreement, shall have been delivered to
the Collateral Agent and shall be in full force and effect.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course
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of business), (f) all Indebtedness of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on property owned or acquired by such Person, whether or
not the Indebtedness secured thereby has been assumed, (g) all Guarantees by
such Person of Indebtedness of others excluding, to the extent such obligations
constitute Guarantees, obligations of a Subsidiary entered in the ordinary
course of business of such Subsidiary in respect of performance bonds and surety
bonds securing contractual obligations of such Subsidiary, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and letters of
guaranty and (j) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances. The Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement" means the
Indemnity, Subrogation and Contribution Agreement substantially in the form of
Exhibit H, made by the Company and one or more of the Subsidiary Guarantors in
favor of the Administrative Agent for the benefit of the Lenders.
"Interest Coverage Ratio" means, for any period, the ratio of
(a) EBITDA for such period to (b) Cash Interest Expense for such period.
"Interest Election Request" means a request by the relevant
Borrower to convert or continue a Revolving Borrowing or Term Borrowing in
accordance with Section 2.08.
"Interest Expense" means, for any period, the interest expense
of the Company and its consolidated Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, including (i) the amortization of
debt discounts to the extent included in interest expense in accordance with
GAAP, (ii) the amortization of all fees (including fees with respect to interest
rate protection agreements or other interest rate hedging arrangements) payable
in connection with the incurrence of Indebtedness to the extent included in
interest expense in accordance with GAAP and (iii) the portion of any rents
payable under capital leases allocable to interest expense in accordance with
GAAP.
"Interest Payment Date" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurocurrency Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurocurrency Borrowing with an Interest Period of more than three
months' duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months' duration after the first day of such
Interest Period, (c) with respect to any Local Rate Loan, the dates set forth in
the applicable Designated Foreign Currency Supplement, and (d) with respect to
any Swingline Loan, the day that such Loan is required to be repaid.
"Interest Period" means, with respect to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months (or, with the consent of each affected Lender, nine or twelve months)
thereafter, as the relevant Borrower may elect; provided that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurocurrency Borrowing only, such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period pertaining to a
Eurocurrency Borrowing that commences on the last Business Day of a calendar
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month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made,
and thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Issuing Bank" means The Chase Manhattan Bank, in its capacity
as the issuer of Letters of Credit hereunder, and its successors in such
capacity as provided in Section 2.06(i). The Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by Affiliates
of the Issuing Bank, in which case the term "Issuing Bank" shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate.
"Judgment Currency" has the meaning assigned to such term in
Section 10.13(b).
" LC Disbursement" means a Tranche 1 LC Disbursement or a
Tranche 2 LC Disbursement.
"LC Exposure" means a Tranche 1 LC Exposure or a Tranche 2 LC
Exposure.
"Lenders" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that shall have ceased to be a party
hereto pursuant to an Assignment and Acceptance. Except to the extent otherwise
expressly provided herein, the term "Lenders" includes the Fronting Lenders and
the Swingline Lender.
"Letter of Credit" means any Tranche 1 Letter of Credit or any
Tranche 2 Letter of Credit.
"Leverage Ratio" means, at any time, the ratio of (a) Total
Debt at such time to (b) EBITDA for the most recent period of four consecutive
fiscal quarters of the Company ended at or prior to such time.
"LIBO Rate" means, with respect to any Eurocurrency Borrowing
for any Interest Period, the rate per annum determined by the Applicable Agent
at approximately 11:00 a.m., London time, on the Quotation Day for such Interest
Period by reference to the British Bankers' Association Interest Settlement
Rates for deposits in the currency of such Borrowing (as reflected on the
applicable Telerate screen), for a period equal to such Interest Period;
provided that, to the extent that an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition, "LIBO RATE" shall be the
interest rate per annum determined by the Applicable Agent to be the average of
the rates per annum at which deposits in the currency of such Borrowing are
offered for such Interest Period to major banks in the London interbank market
by Chase at approximately 11:00 a.m., London time, on the date two Business Days
prior to the beginning of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement, each Borrowing
Subsidiary Agreement, each Borrowing Subsidiary Termination, each Designated
Foreign Currency Supplement, the Subsidiary Guarantee Agreement, the Indemnity,
Subrogation and Contribution Agreement, the Pledge Agreement (and any other
pledge agreement referred to in the definition
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of "Collateral Requirement"), the Security Agreement and each other Security
Document and each Letter of Credit and promissory note delivered pursuant to
this Agreement.
"Loan Parties" means the Borrowers and the Subsidiary
Guarantors.
"Loans" means the loans made by the Lenders to the Borrowers
pursuant to this Agreement.
"Local Rate" when used in reference to any Designated Foreign
Currency Revolving Loan or Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are bearing interest at a local base rate set forth
in the Designated Foreign Currency Supplement applicable thereto.
"Local Time" means (a) with respect to a Loan, Borrowing or
Letter of Credit denominated in Dollars, New York City time, and (b) with
respect to a Loan, Borrowing or Letter of Credit denominated in any Foreign
Currency, London time or, in the case of a Loan or Borrowing denominated in any
particular Designated Foreign Currency, such other time as may be specified in
the applicable Designated Foreign Currency Supplement.
"London Agent" means Chase Manhattan International Limited.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations or condition, financial or otherwise, of
the Company and the Subsidiaries taken as a whole, (b) the ability of the
Company or any Material Subsidiary to perform any of its obligations under any
Loan Document or (c) the aggregate rights of any Agent or the Lenders against
the Company or any Material Subsidiary under any Loan Document.
"Material Indebtedness" means Indebtedness (other than the
Loans and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of one or more of the Company and the Subsidiaries in an aggregate
principal amount exceeding $10,000,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of the Company or any
Subsidiary in respect of any Hedging Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that the Company or
such Subsidiary would be required to pay if such Hedging Agreement were
terminated at such time.
"Material Subsidiary" means (a) any Borrowing Subsidiary, (b)
any subsidiary that directly or indirectly owns or Controls any Borrowing
Subsidiary or other Material Subsidiary and (c) any other subsidiary (i) the
consolidated net revenues of which for the most recent fiscal year of the
Company for which audited financial statements have been delivered pursuant to
Section 5.01 were greater than 5% of the Company's consolidated net revenues for
such fiscal year or (ii) the consolidated tangible assets of which as of the end
of such fiscal year were greater than 5% of the Company's consolidated tangible
assets as of such date; provided that if at any time the aggregate amount of the
consolidated net revenues or consolidated tangible assets of all Subsidiaries
that are not Material Subsidiaries exceeds 10% of the Company's consolidated net
revenues for any such fiscal year or 10% of the Company's consolidated tangible
assets as of the end of any such fiscal year, the Company (or, in the event the
Company has failed to do so within 10 days, the Administrative Agent) shall
designate sufficient Subsidiaries as "Material Subsidiaries" to eliminate such
excess, and such designated Subsidiaries shall for all purposes of this
Agreement constitute Material Subsidiaries. For purposes of making the
determinations required by this definition, revenues and assets of Foreign
Subsidiaries shall be converted into Dollars at the rates used in preparing the
consolidated balance sheet of the Company included in the applicable financial
statements. The Material Subsidiaries on the date hereof are identified in
Schedule 1.01(b) hereto.
"Moody's" means Moody's Investors Service.
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"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any Prepayment Event,
100% (or, in the case of any Prepayment Event described in clause (c) of the
definition of such term, 50%) of (a) the cash proceeds received in respect of
such event including (i) any cash received in respect of any non-cash proceeds,
but only as and when received, (ii) in the case of a casualty, insurance
proceeds, and (iii) in the case of a condemnation or similar event, condemnation
awards and similar payments, net of (b) the sum of (i) all reasonable fees and
out-of-pocket expenses paid by the Company and the Subsidiaries to third parties
(other than Affiliates) in connection with such event, (ii) in the case of a
sale, transfer or other disposition of an asset (including pursuant to a sale
and leaseback transaction or a casualty or a condemnation or similar
proceeding), the amount of all payments required to be made by the Company and
the Subsidiaries as a result of such event to repay Indebtedness (other than
Loans) secured by such asset or otherwise subject to mandatory prepayment as a
result of such event, and (iii) the amount of all taxes paid (or reasonably
estimated to be payable) by the Company and the Subsidiaries, and the amount of
any reserves established by the Company and the Subsidiaries to fund contingent
liabilities reasonably estimated to be payable, in each case in respect of the
year during which such event occurred and that are directly attributable to such
event (as determined reasonably and in good faith by the chief financial officer
of the Company).
"Net Working Capital" means, at any date, (a) the consolidated
current assets of the Company and its consolidated Subsidiaries as of such date
(excluding cash and Permitted Investments) minus (b) the consolidated current
liabilities of the Company and its consolidated Subsidiaries as of such date
(excluding current liabilities in respect of Indebtedness). Net Working Capital
at any date may be a positive or negative number. Net Working Capital increases
when it becomes more positive or less negative and decreases when it becomes
less positive or more negative.
"Obligations" means (a) the due and punctual payment of (i)
the principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans made to any Borrower, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, (ii) each
payment required to be made by any Borrower under this Agreement in respect of
any Letter of Credit, when and as due, including payments in respect of
reimbursement of disbursements, interest thereon and obligations to provide cash
collateral and (iii) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of the Loan Parties to the
Secured Parties under this Agreement and the other Loan Documents, (b) the due
and punctual performance of all covenants, agreements, obligations and
liabilities of the Loan Parties under or pursuant to this Agreement and the
other Loan Documents, (c) unless otherwise agreed upon in writing by the
applicable Lender party thereto, the due and punctual payment and performance of
all obligations of the Company, monetary or otherwise, under each Hedging
Agreement entered into with any counterparty that was a Lender (or an Affiliate
thereof) at the time such Hedging Agreement was entered into and (d) all
obligations of the Company under Article IX of this Agreement.
"Other Taxes" means any and all present or future recording,
stamp, documentary, excise, transfer, sales, property or similar taxes, charges
or levies arising from any payment made hereunder or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
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"Perfection Certificate" means a certificate in the form of
Exhibit I or any other form approved by the Collateral Agent.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 5.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business; and
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Company or any
Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from
Moody's;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000; and
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
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"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which any Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" means the Pledge Agreement dated the date
hereof among the Company, each Domestic Subsidiary required to be a party
thereto pursuant to the definition of "Collateral Requirement" and the
Collateral Agent, substantially in the form of Exhibit F as such Pledge
Agreement may be amended, supplemented or otherwise modified from time to time.
"Post-Effective Date Acquisition Transactions" means the
Acquisition Transactions listed in Schedule 3.03.
"Prepayment Event" means:
(a) any sale, transfer or other disposition (including
pursuant to a sale and leaseback transaction) of any property or asset
of the Company or any Subsidiary (other than (i) any disposition of
obsolete or worn out assets or Permitted Investments, (ii) sales of
inventory in the ordinary course of business and (iii) any asset sale
or series of related asset sales resulting in Net Proceeds not in
excess of $20,000,000 in the aggregate during any fiscal year); or
(b) any casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar proceeding
of, any property or asset of the Company or any Subsidiary; provided
that if the Company shall notify the Administrative Agent within 60
days of any such casualty or other insured damage that it or the
applicable Subsidiary intends to apply the Net Proceeds therefrom to
pay the costs and expenses associated with the repair, restoration or
replacement of the affected property or asset then, so long as such
repair, restoration or replacement is commenced within 180 days after
receipt of such Net Proceeds and diligently pursued until completion,
such casualty or insured damage shall constitute a Prepayment Event
only to the extent such Net Proceeds exceed the amounts expended for
such repair, restoration or replacement; or
(c) the issuance by the Company or any Subsidiary for cash of
any Equity Interests, or the receipt by the Company or any Subsidiary
of any capital contribution in cash, other than, in the case of any
Subsidiary, any such issuance of Equity Interests to, or receipt of any
such capital contribution from, the Company or a Subsidiary; provided,
that if the Leverage Ratio shall be less than 2.50 to 1.00 for a period
of not less than 90 consecutive days including the last days of two
fiscal quarters of the Company, the events referred to in this clause
(c) shall not at any time thereafter constitute Prepayment Events; or
(d) the incurrence by the Company or any Subsidiary of any
Indebtedness, other than Indebtedness of any Subsidiary permitted under
clauses (a) through (g) of Section 6.01 and Indebtedness of the Company
of the types described in clauses (a) through (f) of Section 6.01.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly announced
as being effective.
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"Quotation Day" means, with respect to any Eurocurrency
Borrowing and any Interest Period, the day on which it is market practice in the
relevant interbank market for prime banks to give quotations for deposits in the
currency of such Borrowing for delivery on the first day of such Interest
Period. If such quotations would normally be given by prime banks on more than
one day, the Quotation Day will be the last of such days.
"Register" has the meaning set forth in Section 10.04.
"Related Fund" means, with respect to any Lender that is a
fund that invests in bank loans, any other fund that invests in bank loans and
is managed by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
trustees, agents and advisors of such Person and such Person's Affiliates.
"Relevant Jurisdiction" means (i) in the case of any Loan to
the Company or any Domestic Borrowing Subsidiary, the United States of America,
and (ii) in the case of any Loan to any other Borrowing Subsidiary, the
jurisdiction imposing (or having the power to impose) withholding tax on
payments by such Borrowing Subsidiary under this Agreement.
"Required Lenders" means, at any time, Lenders having
Revolving Exposures, Term Loans and unused Commitments (other than Designated
Foreign Currency Commitments) representing more than 50% of the sum of the total
Revolving Exposures, outstanding Term Loans and unused Commitments (other than
Designated Foreign Currency Commitments) at such time (and including, at any
time when Revolving Commitments are in effect, Lenders representing a majority
in amount of the Revolving Commitments).
"Reset Date" has the meaning set forth in Section 1.05(a).
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in the Company or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancelation or
termination of any Equity Interests in the Company or any Subsidiary or on
account of any option, warrant or other right to acquire any such Equity
Interests in the Company or any Subsidiary.
"Revolving Availability Period" means the period from and
including the Effective Date to but excluding the earlier of the Revolving
Maturity Date and the date of termination of the Revolving Commitments.
"Revolving Borrowing" means a Borrowing comprised of Tranche 1
Revolving Loans or Tranche 2 Revolving Loans.
"Revolving Commitment" means a Tranche 1 Revolving Commitment
or a Tranche 2 Revolving Commitment.
"Revolving Exposure" means a Tranche 1 Revolving Exposure or a
Tranche 2 Revolving Exposure.
"Revolving Lender" means a Lender with a Revolving Commitment
or, if the Revolving Commitments have terminated or expired, a Lender with a
Revolving Exposure.
"Revolving Loans" means Tranche 1 Revolving Loans, Tranche 2
Revolving Loans and Designated Foreign Currency Revolving Loans.
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"Revolving Maturity Date" means May 27, 2005.
"Rights" shall mean, with respect to any Person, warrants,
options or other rights to acquire Equity Interests in such Person.
"S&P" means Standard & Poor's Ratings Services.
"Secured Parties" has the meaning assigned to such term in the
Security Agreement.
"Security Agreement" means the Security Agreement among the
Company, each Domestic Subsidiary and the Collateral Agent, substantially in the
form of Exhibit G, as such Security Agreement may be amended, supplemented or
otherwise modified from time to time.
"Security Documents" means the Pledge Agreement (and any other
pledge agreement referred to in the definition of "Collateral Requirement"), the
Security Agreement and each other security agreement or other instrument or
document executed and delivered pursuant to Section 5.11 to secure any of the
Obligations.
"Spanish Term Borrower" means General Cable Acquisitions
(Spain), S.A., a Spanish corporation.
"Statutory Reserve Rate" means, with respect to any currency,
a fraction (expressed as a decimal), the numerator of which is the number one
and the denominator of which is the number one minus the aggregate of the
maximum reserve, liquid asset or similar percentages (including any marginal,
special, emergency or supplemental reserves) expressed as a decimal established
by any Governmental Authority of the United States or of the jurisdiction of
such currency or any jurisdiction in which Loans in such currency are made to
which banks in such jurisdiction are subject for any category of deposits or
liabilities customarily used to fund loans in such currency or by reference to
which interest rates applicable to Loans in such currency are determined. Such
reserve, liquid asset or similar percentages shall include those imposed
pursuant to Regulation D of the Board. Eurocurrency Loans shall be deemed to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under Regulation D or any other applicable law, rule or regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Sterling" or "pound" means the lawful money of the United
Kingdom.
"subsidiary" means, with respect to any Person (the "parent")
at any date of determination, any corporation, limited liability company,
partnership, association or other entity the accounts of which would be
consolidated with those of the parent in the parent's consolidated financial
statements if such financial statements were prepared in accordance with GAAP as
of such date of determination, as well as any other corporation, limited
liability company, partnership, association or other entity (a) of which
securities or other ownership interests representing more than 50% of the equity
or more than 50% of the ordinary voting power or, in the case of a partnership,
more than 50% of the general partnership interests are, as of such date, owned,
controlled or held, or (b) that is, at the time any determination is made,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent. For purposes of the
certificate delivered pursuant to Section 4.01(d) and for purposes of Section
4.02(a), references, to "subsidiaries" herein shall be deemed, on the Effective
Date and on the date of any subsequent borrowing to finance the acquisition of
any Person, to include any Person to be acquired on such date as part of the
Acquisition Transactions or otherwise.
"Subsidiary" means any subsidiary of the Company.
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"Subsidiary Guarantee Agreement" means the Subsidiary
Guarantee Agreement substantially in the form of Exhibit E, made by the
Subsidiary Guarantors in favor of the Administrative Agent for the benefit of
the Lenders.
"Subsidiary Guarantors" means each Person listed on Schedule
1.01(b) and each other party that becomes party to a Subsidiary Guarantee
Agreement as a Subsidiary Guarantor, and the permitted successors and assigns of
each such Person.
"Swingline Base Rate" shall mean, for any day, with respect to
any Swingline Loan that is denominated in a Committed Foreign Currency, a rate
per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
average rate at which overnight deposits in the currency in which such Swingline
Loan is denominated and approximately equal in principal amount to such
Swingline Loan are obtainable by the Swingline Lender on such day at its lending
office for such Swingline Loan in the interbank market (or any other market for
overnight funds in such currency utilized by the Swingline Lender), adjusted to
reflect any direct or indirect costs of obtaining such deposits (including costs
analogous to Statutory Reserves and the Assessment Rate, to the extent
applicable). The Swingline Base Rate applicable to any Swingline Loan that is a
denominated in any Committed Foreign Currency shall be determined for each day
by the Swingline Lender and such determination shall be conclusive absent
manifest error.
"Swingline Exposure" means, at any time, the sum of (a) the
aggregate principal amount of all Swingline Loans denominated in Dollars
outstanding at such time plus (b) the Dollar Equivalent of all Swingline Loans
denominated in Committed Foreign Currencies outstanding at such time. The
Swingline Exposure of any Tranche 1 Revolving Lender at any time shall be such
Lender's Applicable Tranche 1 Revolving Percentage of the aggregate Swingline
Exposure.
"Swingline Lender" means The Chase Manhattan Bank, in its
capacity as lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.05.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Three-Month Secondary CD Rate" means, 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 is not 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 is not 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 is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of deposit
dealers of recognized standing selected by it.
"Term Loans" means Tranche A Term Loans and Tranche B Term
Loans.
"Total Debt" means, at any date, all Indebtedness (including
all Capital Lease Obligations) of the Company and its consolidated Subsidiaries
at such date to the extent such Indebtedness should be reflected on a
consolidated balance sheet of the Company at such date in accordance with GAAP.
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"Tranche A Term Availability Period" means the period from and
including the Effective Date to but excluding the earlier of the termination of
the Tranche A Commitments, and 5:00 p.m., New York City time, on December 15,
1999.
"Tranche A Term Borrowing" means a Tranche A-1 Term Borrowing
or a Tranche A-2 Term Borrowing.
"Tranche A Term Commitment" means a Tranche A-1 Term
Commitment or a Tranche A-2 Term Commitment.
"Tranche A Term Lender" means a Tranche A-1 Term Lender or a
Tranche A-2 Term Lender.
"Tranche A Term Maturity Date" means May 27, 2005.
"Tranche A Term Loan" means a Tranche A-1 Term Loan or a
Tranche A-2 Term Loan.
"Tranche A-1 Term Borrowing" means a Borrowing comprised of
Tranche A-1 Term Loans.
"Tranche A-1 Term Commitment" means, with respect to each
Lender, the commitment, if any, of such Lender to make Tranche A-1 Term Loans in
Dollars, Sterling and Euros hereunder, as such commitment may be (a) reduced
from time to time pursuant to Section 2.09 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
10.04. The initial amounts of the Tranche A-1 Term Loans in Dollars, Sterling
and Euros that each Lender is obligated to make pursuant to its Tranche A-1
Commitment are set forth on Schedule 2.01 or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Tranche A-1 Term
Commitment, as applicable. The total Tranche A-1 Term Commitment on the date
hereof is $125,000,000.
"Tranche A-1 Term Lender" means a Lender with a Tranche A-1
Term Commitment or an outstanding Tranche A-1 Term Loan.
"Tranche A-1 Term Loan" means a Loan made pursuant to
paragraph (a) of Section 2.01.
"Tranche A-2 Term Borrowing" means a Borrowing comprised of
Tranche A-2 Term Loans.
"Tranche A-2 Term Commitment" means, with respect to each
Lender, the commitment, if any, of such Lender to make Tranche A-2 Term Loans in
Dollars hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 10.04. The initial
amounts of the Tranche A-2 Term Loans in Dollars that each Lender is obligated
to make pursuant to its Tranche A-2 Commitment are set forth on Schedule 2.01 or
in the Assignment and Acceptance pursuant to which such Lender shall have
assumed its Tranche A-2 Term Commitment, as applicable. The total Tranche A-2
Term Commitment on the date hereof is $150,000,000.
"Tranche A-2 Term Lender" means a Lender with a Tranche A-2
Term Commitment or an outstanding Tranche A-2 Term Loan.
"Tranche A-2 Term Loan" means a Loan made pursuant to
paragraph (b) of Section 2.01.
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"Tranche B Term Commitment" means, with respect to each
Lender, the commitment, if any, of such Lender to make Tranche B Term Loans
hereunder on the Effective Date, as such commitment may be (a) reduced from time
to time pursuant to Section 2.09 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 10.04. The
initial amount of each Lender's Tranche B Term Commitment is set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Tranche B Term Commitment, as applicable. The total
Tranche B Term Commitment on the date hereof is $525,000,000.
"Tranche B Term Lender" means a Lender with a Tranche B Term
Commitment or an outstanding Tranche B Term Loan.
"Tranche B Term Maturity Date" means May 27, 2007.
"Tranche B Term Borrowing" means a Borrowing comprised of
Tranche B Term Loans.
"Tranche B Term Loan" means a Loan made pursuant to paragraph
(b) of Section 2.01.
"Tranche 1 LC Disbursement" means a payment made by the
Issuing Bank in respect of a Tranche 1 Letter of Credit.
" Tranche 1 LC Exposure" means at any time the sum of (a) the
aggregate undrawn amount of all outstanding Tranche 1 Letters of Credit
denominated in Dollars at such time, (b) the aggregate Dollar Equivalents of the
undrawn amounts of all outstanding Tranche 1 Letters of Credit denominated in
Foreign Currencies at such time, (c) the aggregate amount of all Tranche 1 LC
Disbursements denominated in Dollars that have not yet been reimbursed by or on
behalf of the Company or the applicable Subsidiary at such time and (d) the
aggregate Dollar Equivalents of the amounts of all Tranche 1 LC Disbursements
denominated in Foreign Currencies that have not yet been reimbursed by or on
behalf of the Company or the applicable Subsidiary at such time. The Tranche 1
LC Exposure of any Tranche 1 Revolving Lender at any time shall be such Lender's
Applicable Tranche 1 Revolving Percentage of the aggregate Tranche 1 LC
Exposure.
"Tranche 1 Letter of Credit" means any letter of credit issued
pursuant to this Agreement on behalf of Lenders holding Tranche 1 Revolving
Commitments.
"Tranche 1 Revolving Borrowing" means a Borrowing comprised of
Tranche 1 Revolving Loans.
"Tranche 1 Revolving Commitment" means, with respect to each
Tranche 1 Revolving Lender, the commitment of such Tranche 1 Revolving Lender to
make Tranche 1 Revolving Loans pursuant to Section 2.01(d)(i), to acquire
participations in Tranche 1 Letters of Credit pursuant to Section 2.06 and to
acquire participations in Swingline Loans pursuant to Section 2.05, expressed as
an amount representing the maximum aggregate amount of such Tranche 1 Revolving
Lender's Tranche 1 Revolving Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.09 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 10.04. The initial amount of each Tranche 1 Revolving Lender's Tranche 1
Revolving Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which Tranche 1 Revolving Lender shall have assumed its
Tranche 1 Revolving Commitment, as applicable. The total Tranche 1 Revolving
Commitment on the date hereof is $75,000,000.
"Tranche 1 Revolving Exposure" means, with respect to any
Tranche 1 Revolving Lender at any time, the sum at such time, without
duplication, of (a) such Lender's
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Applicable Tranche 1 Revolving Percentage of the principal amounts of the
outstanding Tranche 1 Revolving Loans denominated in Dollars, plus (b) such
Lender's Applicable Tranche 1 Revolving Percentage of the aggregate Dollar
Equivalents of the principal amounts of the outstanding Tranche 1 Revolving
Loans denominated in Committed Foreign Currencies, plus (c) the aggregate amount
of such Lender's Swingline Exposure, plus (d) the aggregate amount of such
Lender's Tranche 1 LC Exposure.
"Tranche 1 Revolving Lender" mean a Lender with a Tranche 1
Revolving Commitment.
"Tranche 1 Revolving Loan" means a Loan denominated in a
Committed Currency and made pursuant to Section 2.01(d)(i). Each Tranche 1
Revolving Loan shall be a Eurocurrency Loan or an ABR Loan.
"Tranche 2 LC Disbursement" means a payment made by the
Issuing Bank in respect of a Tranche 2 Letter of Credit.
" Tranche 2 LC Exposure" means at any time the sum of (a) the
aggregate undrawn amount of all outstanding Tranche 2 Letters of Credit at such
time and (b) the aggregate amount of all Tranche 2 LC Disbursements that have
not yet been reimbursed by or on behalf of the Company or the applicable
Subsidiary at such time. The Tranche 2 LC Exposure of any Tranche 2 Revolving
Lender at any time shall be such Lender's Applicable Tranche 2 Revolving
Percentage of the aggregate Tranche 2 LC Exposure.
"Tranche 2 Letter of Credit" means any letter of credit issued
pursuant to this Agreement on behalf of Lenders holding Tranche 2 Revolving
Commitments. Each Tranche 2 Letter of Credit shall be denominated in Dollars.
"Tranche 2 Revolving Borrowing" means a Borrowing comprised of
Tranche 2 Revolving Loans.
"Tranche 2 Revolving Commitment" means, with respect to each
Tranche 2 Revolving Lender, the commitment (if any) of such Tranche 2 Revolving
Lender to make Tranche 2 Revolving Loans pursuant to Section 2.01(d)(ii), to
acquire participations in Tranche 2 Letters of Credit and to acquire
participations in Designated Foreign Currency Revolving Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such Tranche
2 Revolving Lender's Tranche 2 Revolving Exposure hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 10.04. The initial amount of each Tranche 2 Revolving
Lender's Tranche 2 Revolving Commitment is set forth in Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Tranche 2 Revolving Lender
shall have assumed its Tranche 2 Revolving Commitment, as applicable. The total
Tranche 2 Revolving Commitment on the date hereof is $175,000,000.
"Tranche 2 Revolving Exposure" means, with respect to any
Tranche 2 Revolving Lender at any time, the sum at such time, without
duplication, of (a) the aggregate principal amount at such time of all
outstanding Tranche 2 Revolving Loans of such Lender, plus (b) such Lender's
Designated Foreign Currency Exposure, plus (c) the aggregate amount of such
Lender's Tranche 2 LC Exposure..
"Tranche 2 Revolving Lender" means a Lender with a Tranche 2
Revolving Commitment.
"Tranche 2 Revolving Loan" means a Loan denominated in Dollars
and made pursuant to Section 2.01(d)(ii). Each Tranche 2 Revolving Loan shall be
a Eurocurrency Loan or an ABR Loan.
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"Transactions" means the execution, delivery and performance
by the Loan Parties of the Loan Documents, the borrowing of Loans, the use of
the proceeds thereof, the issuance of Letters of Credit hereunder, the grant of
the security interests provided for in the Loan Documents and the Acquisition
Transactions.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate, the
Alternate Base Rate or a Local Rate.
"UK Term Borrower" means General Cable Holdings (UK) Limited,
a company incorporated with limited liability in England and Wales.
"US/Canada Term Borrower" means General Cable Holdings, Inc.,
a Delaware corporation.
"Wholly Owned Subsidiary" shall mean a Subsidiary of which
securities (except for directors' qualifying shares or shares issued pursuant to
similar legal requirements) or other ownership interests representing 100% of
the equity and ordinary voting or consensual power are, at the time any
determination is being made, owned, controlled or held, directly or indirectly,
by the Company or one or more Wholly Owned Subsidiaries of the Company.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class
and Type (e.g., a "Eurocurrency Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing") or by Type
(e.g., a "Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency
Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder" and words of similar import shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. (a) Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP as in effect from time to time; provided
that if the Company notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Company
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that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
(b) All pro forma computations required to be made hereunder
giving effect to any acquisition, investment, sale, disposition, merger or
similar event shall reflect on a pro forma basis such event and, to the extent
applicable, the historical earnings and cash flows associated with the assets
acquired or disposed of and any related incurrence or reduction of Indebtedness,
but shall not take into account any projected synergies or similar benefits
expected to be realized as a result of such event.
SECTION 1.05. Exchange Rates. (a) Not later than 1:00 p.m.,
New York City time, on each Calculation Date, the Administrative Agent shall (i)
determine the Exchange Rate as of such Calculation Date with respect to each
Foreign Currency (A) in which any Lender shall have extended a Commitment to
make Loans, (B) in which any Loan or Loans shall be outstanding or (C) in which
any undrawn Letter of Credit shall be denominated and (ii) give notice thereof
to the Revolving Lenders (and, in the case of Sterling and the Euro, the Tranche
A Term Lenders) and the Company. The Exchange Rates so determined shall become
effective on the first Business Day immediately following the relevant
Calculation Date (a "Reset Date"), shall remain effective until the next
succeeding Reset Date, and shall for all purposes of this Agreement (other than
Section 2.01(f), Section 2.06(e), Section 2.10(e), Section 2.14, Section
2.15(g), Section 10.13, the definition of LC Disbursement or any other provision
expressly requiring the use of a current Exchange Rate) be the Exchange Rates
employed in converting any amounts between Dollars and Foreign Currencies.
(b) Not later than 5:00 p.m., New York City time, on each
Reset Date and each date on which Revolving Loans denominated in any Foreign
Currency are made or Letters of Credit denominated in any Foreign Currency are
issued, the Administrative Agent shall (i) determine the aggregate amount of the
Dollar Equivalents of the principal amounts of the Revolving Loans denominated
in any Foreign Currencies and the undrawn amounts of the Letters of Credit
denominated in Foreign Currencies then outstanding (after giving effect to any
Revolving Loans denominated in any Foreign Currencies or Letters of Credit
denominated in Foreign Currencies made, issued, repaid or canceled on such date)
and (ii) notify the Revolving Lenders and the Company of the results of such
determination.
SECTION 1.06. Redenomination of Certain Foreign Currencies.
(a) Each obligation of any party to this Agreement or any Designated Foreign
Currency Supplement to make a payment denominated in the national currency unit
of any member state of the European Union that adopts the Euro as its lawful
currency after the date hereof shall be redenominated into Euro at the time of
such adoption (in accordance with the EMU Legislation). If, in relation to the
currency of any such member state, the basis of accrual of interest expressed in
this Agreement in respect of that currency shall be inconsistent with any
convention or practice in the London Interbank Market for the basis of accrual
of interest in respect of the Euro, such expressed basis shall be replaced by
such convention or practice with effect from the date on which such member state
adopts the Euro as its lawful currency; provided that if any Borrowing in the
currency of such member state is outstanding immediately prior to such date,
such replacement shall take effect, with respect to such Borrowing, at the end
of the then current Interest Period.
(b) Without prejudice and in addition to any method of
conversion or rounding prescribed by any EMU Legislation and (i) without
limiting the liability of any Borrower for any amount due under this Agreement
and (ii) without increasing any Revolving Commitment of any Revolving Lender,
all references in this Agreement to minimum amounts (or an integral multiples
thereof) denominated in the national currency unit of any member state of the
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European Union that adopts the Euro as its lawful currency after the date hereof
shall, immediately upon such adoption, be replaced by references to such
reasonably comparable and convenient amounts (or an integral multiples thereof)
in the Euro as the Administrative Agent may specify.
(c) Each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agent may from time to
time specify to be appropriate to reflect the adoption of the Euro by any member
state of the European Union and any relevant market conventions or practices
relating to the Euro.
ARTICLE II
The Credits
-----------
SECTION 2.01. Commitments; Designated Foreign Currency
Supplements. (a) Subject to the terms and conditions set forth herein, each
Tranche A-1 Term Lender agrees to make (i) on the Effective Date, (A) a Tranche
A-1 Term Loan to the UK Term Borrower in Sterling in a principal amount equal to
such Tranche A-1 Term Lender's Applicable Tranche A-1 Term Percentage of
GBP 57,600,000 and (B) a Tranche A-1 Term Loan to the Spanish Term Borrower in
Euros in a principal amount equal to such Tranche A-1 Term Lender's Applicable
Tranche A-1 Term Percentage of E19,583,000 and (ii) from time to time during the
Tranche A Term Availability Period, additional Tranche A-1 Term Loans to the
Company or GKT in Dollars in an aggregate principal amount not greater than such
Tranche A-1 Term Lender's Applicable Tranche A-1 Term Percentage of $12,250,000.
(b) Subject to the terms and conditions set forth herein,
each Tranche A-2 Term Lender agrees to make (i) on the Effective Date, (A) a
Tranche A-2 Term Loan to GKT in Dollars in a principal amount equal to such
Tranche A-2 Term Lender's Applicable Tranche A-2 Term Percentage of $82,900,000
and (B) a Tranche A-2 Term Loan to the US/Canada Term Borrower in Dollars in a
principal amount equal to such Tranche A-2 Term Lender's Applicable Tranche A-2
Term Percentage of $13,500,000, and (ii) from time to time during the Tranche A
Term Availability Period, additional Tranche A-2 Term Loans to the Company or
GKT in Dollars in an aggregate principal amount not greater than such Tranche
A-2 Term Lender's Applicable Tranche A-2 Term Percentage of $53,600,000.
(c) Subject to the terms and conditions set forth herein, each
Tranche B Term Lender agrees to make on the Effective Date (i) a Tranche B Term
Loan to the Company in Dollars in a principal amount equal to such Tranche B
Term Lender's Applicable Tranche B Term Percentage of $389,500,000 and (ii) a
Tranche B Term Loan to GKT in Dollars in a principal amount equal to such
Tranche B Term Lender's Applicable Tranche B Term Percentage of $135,500,000.
(d) Subject to the terms and conditions set forth herein, (i)
each Tranche 1 Revolving Lender agrees to make Tranche 1 Revolving Loans to any
Borrower from time to time during the Revolving Availability Period in any
Committed Currency in an aggregate principal amount that will not result in such
Lender's Tranche 1 Revolving Exposure exceeding its Tranche 1 Revolving
Commitment and (ii) each Tranche 2 Revolving Lender agrees to make Tranche 2
Revolving Loans to any Borrower from time to time during the Revolving
Availability Period in Dollars in an aggregate principal amount that will not
result in such Lender's Tranche 2 Revolving Exposure exceeding its Tranche 2
Revolving Commitment.
(e) Subject to the terms and conditions set forth herein, each
Fronting Lender that is party to any Designated Foreign Currency Supplement
agrees to make Designated Foreign Currency Revolving Loans in any Designated
Foreign Currency available under such Designated Foreign Currency Supplement to
any Borrower from time to time during the Revolving
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Availability Period in an aggregate principal amount that will not result in (i)
any Tranche 2 Revolving Lender's Tranche 2 Revolving Exposure exceeding its
Tranche 2 Revolving Commitment or (ii) the aggregate principal amount of the
Tranche 2 Revolving Loans (or of the Designated Foreign Currency Revolving
Loans) made by such Fronting Lender pursuant to such Designated Foreign Currency
Supplement exceeding such Fronting Lender's Designated Foreign Currency
Commitment (or any subcommitment of such Lender applicable to such Designated
Foreign Currency) under such Designated Foreign Currency Supplement; provided
that a Fronting Lender shall not be required to, and shall not, make any
Designated Foreign Currency Revolving Loan if the Required Lenders shall have
delivered to such Fronting Lender, not later than two Business Days prior to the
date on which any such Designated Foreign Currency Revolving Loan shall have
been scheduled to be made, a notice stating that an Event of Default has
occurred and is continuing and directing such Fronting Lender not to make
Designated Foreign Currency Revolving Loans.
(f) In the event that any Designated Foreign Currency
Revolving Borrowing shall be outstanding and (i) the principal of or interest on
such Borrowing shall not be paid within three Business Days after the date on
which it is due and one or more Fronting Lenders holding a majority in interest
of the outstanding Designated Foreign Currency Revolving Loans included in such
Designated Foreign Currency Revolving Borrowing shall deliver to the
Administrative Agent and the Company a request that the provisions of this
paragraph take effect with respect to such Borrowing or (ii) the Tranche 2
Revolving Commitments shall be terminated or Loans accelerated pursuant to
Article VII, then (A) the Loans included in such Designated Foreign Currency
Revolving Borrowing and the interest accrued thereon shall without further
action be converted into obligations denominated in Dollars at the applicable
Exchange Rate on the date of such conversion, as determined by the
Administrative Agent and set forth in a notice delivered to the Company and each
Tranche 2 Revolving Lender, (B) each Tranche 2 Revolving Lender shall acquire at
face value a participation in such Loans and the interest accrued thereon equal
to its Applicable Tranche 2 Revolving Percentage of such obligations, and shall
pay the purchase price for such participation by wire transfer of immediately
available funds in Dollars to the Administrative Agent in the manner provided in
Section 2.07 (and the Administrative Agent shall promptly wire the amounts so
received to the applicable Fronting Lenders ratably in accordance with their
respective Designated Foreign Currency Revolving Loans included in such
Designated Foreign Currency Revolving Borrowing) and (C) such converted Loans
shall at all times thereafter, until repaid in accordance with the terms hereof,
bear interest at the rate applicable to overdue ABR Borrowings under Section
2.13(f), and the principal of and interest on such converted Loans will be
payable at the applicable times and places for overdue ABR Borrowings. The
obligations of the Tranche 2 Revolving Lenders to acquire and pay for
participations in Designated Foreign Currency Revolving Loans pursuant to this
paragraph shall be absolute and unconditional under any and all circumstances.
(g) The Company, the Administrative Agent and one or more
Revolving Lenders may from time to time enter into one or more Designated
Foreign Currency Supplements pursuant to which such Revolving Lenders may agree
to serve as Fronting Lenders in respect of one or more Designated Foreign
Currencies. Any such Designated Foreign Currency Supplement shall set forth the
Designated Foreign Currency or Currencies in which Revolving Borrowings may be
made under such Supplement, the Designated Foreign Currency Commitment of each
Fronting Lender party thereto (and, if such Designated Foreign Currency
Supplement provides for Borrowings in more than one Designated Foreign Currency,
any limits on the amounts that may be borrowed in particular Designated
Currencies covered thereby), any special provisions for the times and places at
which Borrowing Requests are to be delivered, proceeds of Borrowings are to be
disbursed or payments in respect of Borrowings are to be made or for the rates
at which interest is to accrue on Borrowings (and in the absence of any such
special provisions, the applicable provisions set forth in this Article II shall
control) and any other special provisions to be applicable to Borrowings under
such Designated Foreign Currency Supplement. Each Designated Foreign Currency
Supplement shall be referred to in all notices hereunder by number, with the
first Designated Foreign Currency Supplement being referred to
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as "Designated Foreign Currency Supplement No. 1" and successive Supplements
being referred to by the succeeding integers in the order in which they are
entered into. Multiple Designated Foreign Currency Supplements providing for
different funding, pricing or other arrangements may be entered into in respect
of a single Designated Foreign Currency.
SECTION 2.02. Loans and Borrowings. (a) Each Tranche A-1 Term
Loan shall be made as part of a Borrowing consisting of Tranche A-1 Term Loans
made by the Tranche A-1 Term Lenders ratably in accordance with their respective
Tranche A-1 Term Commitments. Each Tranche A-2 Term Loan shall be made as part
of a Borrowing consisting of Tranche A-2 Term Loans made by the Tranche A-2 Term
Lenders ratably in accordance with their respective Tranche A-2 Term
Commitments. Each Tranche B Term Loan shall be made as part of a Borrowing
consisting of Tranche B Term Loans made by the Tranche B Term Lenders ratably in
accordance with their respective Tranche B Term Commitments. Each Tranche 1
Revolving Loan shall be made as part of a Borrowing consisting of Tranche 1
Revolving Loans made by the Tranche 1 Revolving Lenders ratably in accordance
with their respective Tranche 1 Revolving Commitments. Each Tranche 2 Revolving
Loan shall be made as part of a Borrowing consisting of Tranche 2 Revolving
Loans made by the Tranche 2 Revolving Lenders ratably in accordance with their
respective Tranche 2 Revolving Commitments. Each Designated Foreign Currency
Revolving Loan shall be made as part of a Borrowing consisting of Designated
Foreign Currency Revolving Loans made pursuant to the same Designated Foreign
Currency Supplement, denominated in the same Designated Foreign Currency and
made by the applicable Fronting Lenders ratably in accordance with their
respective applicable Designated Foreign Currency Commitments. The failure of
any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required hereunder.
(b) Subject to Section 2.14, (i) each Tranche A-1 Term
Borrowing denominated in Dollars shall be comprised entirely of Eurocurrency
Loans or ABR Loans as the Company may request in accordance herewith, (ii) each
Tranche A-1 Term Borrowing denominated in Sterling or Euros shall be comprised
entirely of Eurocurrency Loans, (iii) each Tranche A-2 Term Borrowing shall be
comprised entirely of Eurocurrency Loans or ABR Loans as the Company may request
in accordance herewith, (iv) each Tranche B Term Borrowing shall be comprised
entirely of Eurocurrency Loans or ABR Loans as the Company may request in
accordance herewith, (v) each Tranche 1 Revolving Borrowing shall be comprised
entirely of Eurocurrency Loans or, in the case of a Tranche 1 Revolving
Borrowing denominated in Dollars, ABR Loans as the applicable Borrower may
request in accordance herewith, (vi) each Tranche 2 Revolving Borrowing shall be
comprised entirely of Eurocurrency Loans or ABR Loans as the applicable Borrower
may request in accordance herewith and (vii) each Designated Foreign Currency
Revolving Borrowing shall be comprised entirely of Eurocurrency Loans (or such
other Type of Loan as shall be specified in the Designated Foreign Currency
Supplement applicable thereto). Each Swingline Loan shall be a Eurocurrency Loan
or an ABR Loan as the applicable Borrower may request in accordance herewith.
Each Lender at its option may make any Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that (i) any
exercise of such option shall not affect the obligation of any Borrower to repay
such Loan in accordance with the terms of this Agreement and (ii) unless any
Borrower shall request that an Affiliate of a Lender make a Loan, a Lender may
not recover for any increased costs under Sections 2.15 or 2.17 incurred solely
as a result of an Affiliate of such Lender, rather than such Lender, making a
Loan, if, without economic disadvantage to, and consistent with the policies and
practices of, such Lender, such Loan could have been made in a manner that would
have avoided such increased costs under Section 2.15 or 2.17.
(c) At the commencement of each Interest Period for any
Borrowing (other than (i) a Tranche A-1 Term Loan denominated in a Committed
Foreign Currency and made on the Effective Date or (ii) a Swingline Loan), such
Borrowing shall be in an aggregate amount that is at least equal to the
Borrowing Minimum and an integral multiple of the Borrowing Multiple;
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provided that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the aggregate Available Tranche 1 Revolving Commitments or Available
Tranche 2 Revolving Commitments, as the case may be. Each Swingline Loan
denominated in Dollars shall be in an amount that is an integral multiple of
$100,000. Each Swingline Loan denominated in a Committed Foreign Currency shall
be in an amount that is an integral multiple of 1,000,000 units (or, in the case
of Sterling 500,000 units) of such currency. Borrowings of more than one Type
and Class may be outstanding at the same time; provided that there shall not at
any time be more than a total of (i) six Tranche 1 Eurocurrency Revolving
Borrowings outstanding in a single currency, (ii) six Tranche 2 Eurocurrency
Revolving Borrowings outstanding or (iii) six Designated Foreign Currency
Revolving Borrowings outstanding in a single currency.
(d) Notwithstanding any other provision of this Agreement, no
Borrower shall be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Revolving Maturity Date, Tranche A Maturity Date or Tranche B Maturity Date,
as applicable.
SECTION 2.03. Requests for Borrowings. To request a Borrowing,
the applicable Borrower, or the Company on behalf of the applicable Borrower,
shall notify the Applicable Agent of such request by telephone (a) in the case
of a Eurocurrency Borrowing, not later than 11:00 a.m., Local Time, three
Business Days before the date of the proposed Borrowing, (b) in the case of a
Local Rate Borrowing, not later than the time specified in the applicable
Designated Foreign Currency Supplement and (c) in the case of an ABR Borrowing,
not later than 11:00 a.m., New York City time, one Business Day before the date
of the proposed Borrowing; provided that any such notice of an ABR Revolving
Borrowing to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.06(e) may be given not later than 10:00 a.m., New York City time, on
the date of the proposed Borrowing. Each such telephonic Borrowing Request shall
be irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the Applicable Agent of a written Borrowing Request in a form approved by the
Applicable Agent and signed by the applicable Borrower, or by the Company on
behalf of the applicable Borrower. Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:
(i) the Borrower requesting such Borrowing (or on whose behalf
the Company is requesting such Borrowing);
(ii) whether the requested Borrowing is to be a Tranche A-1
Term Borrowing, a Tranche A-2 Term Borrowing, a Tranche B Term
Borrowing, a Tranche 1 Revolving Borrowing or a Tranche 2 Revolving
Borrowing;
(iii) the currency and aggregate principal amount of the
requested Borrowing;
(iv) if the requested Borrowing is to be a Designated Foreign
Currency Revolving Borrowing, the Designated Foreign Currency
Supplement pursuant to which such Borrowing is to be made;
(v) the date of the requested Borrowing, which shall be a
Business Day;
(vi) whether the requested Borrowing is to be an ABR
Borrowing, a Eurocurrency Borrowing or a Local Rate Borrowing;
(vii) in the case of a Eurocurrency Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period";
(viii) the location and number of the relevant Borrower's
account to which funds are to be disbursed, which shall comply with the
requirements of Section 2.07; and
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(ix) in the case of a Borrowing in a Foreign Currency, the
location from which payments of the principal and interest on such
Borrowing will be made.
If no currency is specified with respect to any requested Eurocurrency Revolving
Borrowing, then the relevant Borrower shall be deemed to have selected Dollars.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be (i) in the case of a Borrowing denominated in Dollars, an ABR
Borrowing, and (ii) in the case of a Borrowing denominated in a Foreign
Currency, a Eurocurrency Borrowing. If no Interest Period is specified with
respect to any requested Eurocurrency Borrowing, then the relevant Borrower
shall be deemed to have selected an Interest Period of one month's duration.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Applicable Agent shall advise each Lender or Fronting Lender that
will make a Loan as part of the requested Borrowing of the details thereof and
of the amount of the Loan to be made by such Lender or Fronting Lender as part
of the requested Borrowing.
SECTION 2.04. Repayment of Borrowings; Evidence of Debt. (a)
Each Borrower hereby unconditionally promises to pay (i) to the Applicable Agent
for the accounts of the applicable Lenders the then unpaid principal amount of
each Term Borrowing of such Borrower as provided in paragraphs (a), (b) and (c)
of Section 2.10, (ii) to the Applicable Agent for the accounts of the applicable
Revolving Lenders or the applicable Fronting Lenders, as the case may be, the
then unpaid principal amount of each Revolving Borrowing of such Borrower on the
Revolving Maturity Date (or, in the case of a Designated Foreign Currency
Revolving Borrowing, such earlier date as may be specified in the applicable
Designated Foreign Currency Supplement) and (iii) to the Swingline Lender the
then unpaid principal amount of each Swingline Loan of such Borrower on the
earlier of the Revolving Maturity Date and the first date after such Swingline
Loan is made that is the 15th day or the last day of a calendar month and that
is at least two Business Days after the day on which such Swingline Loan shall
have been made; provided that on each date on which a Tranche 1 Revolving
Borrowing is made by a Borrower, such Borrower shall repay all Swingline Loans
of such Borrower then outstanding. Each Borrower agrees to repay the principal
amount of each Loan made to such Borrower and the accrued interest thereon in
the currency of such Loan.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class, Type and
currency thereof and the Interest Period applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent or the London Agent hereunder for the accounts of the
Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of any Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it
be evidenced by a promissory note. In such event, each Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by each such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 10.04) be represented by
one or more
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promissory notes in such form payable to the order of the payee named therein
(or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.05. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Company or GKT in any Committed Currency from time to time during the
Revolving Availability Period in an aggregate principal amount at any time
outstanding that will not result in (i) the Swingline Exposure exceeding
$30,000,000 or (ii) the aggregate Tranche 1 Revolving Exposures exceeding the
aggregate Tranche 1 Revolving Commitments; provided that the Swingline Lender
shall not be required to make a Swingline Loan to refinance an outstanding
Swingline Loan. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Company or GKT may borrow, prepay and reborrow
Swingline Loans.
(b) To request a Swingline Loan, the Company or GKT shall
notify (i) in the case of a Swingline Loan denominated in Dollars, the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time and (ii) in the case of Swingline Loan
denominated in a Committed Foreign Currency, the London Agent of such request by
telephone (confirmed by telecopy), not later than 10:00 a.m., London time, in
each case on the day of the proposed Swingline Loan. Each such notice shall be
irrevocable and shall specify the requested date (which shall be a Business
Day), amount and currency of the requested Swingline Loan. The Administrative
Agent will promptly advise the Swingline Lender of any such notice received from
the Company or GKT. The Swingline Lender shall make each Swingline Loan
available to the Company or GKT, as applicable, by means of a credit to the
general deposit account of the Company or GKT, as applicable, with the Swingline
Lender (or, in the case of a Swingline Loan made to finance the reimbursement of
an LC Disbursement as provided in Section 2.06(e), by remittance to the Issuing
Bank) by (i) 3:00 p.m., New York City time, on the requested date of such
Swingline Loan in the case of a Swingline Loan denominated in Dollars and (ii)
1:00 p.m., London time, on the requested date of such Swingline Loan in the case
of a Swingline Loan denominated in a Committed Foreign Currency.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Tranche 1 Revolving Lenders to acquire participations
on such Business Day in all or a portion of the Swingline Loans outstanding.
Such notice shall specify the aggregate amount of Swingline Loans in which the
Tranche 1 Revolving Lenders will participate. Promptly upon receipt of such
notice, the Administrative Agent will give notice thereof to each Tranche 1
Revolving Lender, specifying in such notice such Tranche 1 Revolving Lender's
Applicable Tranche 1 Revolving Percentage of such Swingline Loan or Loans. Each
Tranche 1 Revolving Lender hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above, to pay to the Administrative Agent, for the
account of the Swingline Lender, such Tranche 1 Revolving Lender's Applicable
Tranche 1 Revolving Percentage of such Swingline Loan or Loans. Each Tranche 1
Revolving Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Tranche 1 Revolving Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Tranche 1 Revolving Lender shall comply with its obligation
under this paragraph by wire transfer of immediately available funds, in the
same manner as provided in Section 2.07 with respect to Loans made by such
Tranche 1 Revolving Lender (and Section 2.07 shall apply, mutatis mutandis, to
the payment obligations of the Tranche 1 Revolving Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Tranche 1 Revolving Lenders. The Administrative Agent
shall notify the Company of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the Swingline Lender.
Any amounts received by the Swingline Lender from the Company or GKT (or other
party on behalf of the Company or GKT) in respect of a Swingline Loan after
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receipt by the Swingline Lender of the proceeds of a sale of participations
therein shall be promptly remitted to the Administrative Agent; any such amounts
received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Tranche 1 Revolving Lenders that shall have made
their payments pursuant to this paragraph and to the Swingline Lender, as their
interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Company or GKT of any default
in the payment thereof.
SECTION 2.06. Letters of Credit. (a) General. Subject to the
terms and conditions set forth herein, the Company or any Borrowing Subsidiary
may request the issuance (or the amendment, renewal or extension) of (i) Tranche
1 Letters of Credit denominated in Committed Currencies and (ii) Tranche 2
Letters of Credit denominated in Dollars, in any case in a form reasonably
acceptable to the Administrative Agent and the Issuing Bank, at any time and
from time to time during the Revolving Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Company or any Borrowing Subsidiary to, or entered into by the
Company or any Borrowing Subsidiary with, the Issuing Bank relating to any
Letter of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Company or any
Borrowing Subsidiary shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the Issuing
Bank) to the Issuing Bank and the Administrative Agent, in the case of a Letter
of Credit denominated in Dollars, or the London Agent, in the case of a Letter
of Credit denominated in a Committed Foreign Currency (in either case reasonably
in advance of the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended, renewed or extended, the date of issuance, amendment,
renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this
Section), whether such Letter of Credit shall be a Tranche 1 Letter of Credit or
a Tranche 2 Letter of Credit, the amount and currency of such Letter of Credit,
the name and address of the beneficiary thereof and such other information as
shall be necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the Issuing Bank, the Company or the applicable Borrowing
Subsidiary also shall submit a letter of credit application on the Issuing
Bank's standard form in connection with any request for a Letter of Credit. A
Letter of Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the Company
or the applicable Borrowing Subsidiary shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, renewal or extension (i)
the Tranche 1 LC Exposure shall not exceed $37,500,000, (ii) the Tranche 2 LC
Exposure shall not exceed $37,500,000, (iii) the aggregate Tranche 1 Revolving
Exposures will not exceed the aggregate Tranche 1 Revolving Commitments and (iv)
the aggregate Tranche 2 Revolving Exposures will not exceed the aggregate
Tranche 2 Revolving Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after the
date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Maturity Date.
(d) Participations. By the issuance of (i) a Tranche 1 Letter
of Credit (or an amendment to a Tranche 1 Letter of Credit increasing the amount
thereof) and without any further action on the part of the Issuing Bank or the
Tranche 1 Lenders, the Issuing Bank hereby grants to each Tranche 1 Revolving
Lender, and each Tranche 1 Revolving Lender hereby acquires from the Issuing
Bank, a participation in such Tranche 1 Letter of Credit equal to such Tranche 1
Revolving Lender's Applicable Tranche 1 Revolving Percentage of the aggregate
amount available to be drawn under such Tranche 1 Letter of Credit and (ii) a
Tranche 2 Letter
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of Credit (or an amendment to a Tranche 2 Letter of Credit increasing the amount
thereof) and without any further action on the part of the Issuing Bank or the
Tranche 2 Lenders, the Issuing Bank hereby grants to each Tranche 2 Revolving
Lender, and each Tranche 2 Revolving Lender hereby acquires from the Issuing
Bank, a participation in such Tranche 2 Letter of Credit equal to such Tranche 2
Revolving Lender's Applicable Tranche 2 Revolving Percentage of the aggregate
amount available to be drawn under such Tranche 2 Letter of Credit. In
consideration and in furtherance of the foregoing, each (i) Tranche 1 Revolving
Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the Issuing Bank, such Lender's Applicable Tranche 1
Revolving Percentage of each Tranche 1 LC Disbursement made by the Issuing Bank
and not reimbursed by the Company on the date due as provided in paragraph (e)
of this Section (converted to a Dollar-denominated obligation as contemplated in
such paragraph (e)), or of any reimbursement payment required to be refunded to
the Company for any reason and (ii) Tranche 2 Revolving Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for the account
of the Issuing Bank, such Lender's Applicable Tranche 2 Revolving Percentage of
each Tranche 2 LC Disbursement made by the Issuing Bank and not reimbursed by
the Company on the date due as provided in paragraph (e) of this Section, or of
any reimbursement payment required to be refunded to the Company for any reason.
Each Tranche 1 Revolving Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Tranche 1
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Tranche 1 Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Tranche 1 Revolving Commitments, and that each
such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. Each Tranche 2 Revolving Lender acknowledges and agrees
that its obligation to acquire participations pursuant to this paragraph in
respect of Tranche 2 Letters of Credit is absolute and unconditional and shall
not be affected by any circumstance whatsoever, including any amendment, renewal
or extension of any Tranche 2 Letter of Credit or the occurrence and continuance
of a Default or reduction or termination of the Tranche 2 Revolving Commitments,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any Tranche
1 LC Disbursement in respect of a Tranche 1 Letter of Credit or any Tranche 2 LC
Disbursement in respect of a Tranche 2 Letter of Credit, the Company or the
applicable Borrowing Subsidiary, as the case may be, shall reimburse such
Tranche 1 LC Disbursement or Tranche 2 LC Disbursement, as applicable, by paying
to the Administrative Agent an amount equal to such Tranche 1 LC Disbursement or
Tranche 2 LC Disbursement, in the currency in which such Tranche 1 LC
Disbursement or Tranche 2 LC Disbursement, as applicable, shall have been made,
not later than 12:00 noon, New York City time, on the date that such Tranche 1
LC Disbursement or Tranche 2 LC Disbursement, as applicable, is made, if the
Company shall have received notice of such Tranche 1 LC Disbursement or Tranche
2 LC Disbursement, as applicable, prior to 10:00 a.m., New York City time, on
such date, or, if such notice has not been received by the Company prior to such
time on such date, then not later than 12:00 noon, New York City time, on (A)
the Business Day that the Company receives such notice, if such notice is
received prior to 10:00 a.m., New York City time, on the day of receipt, or (B)
the Business Day immediately following the day that the Company receives such
notice, if such notice is not received prior to such time on the day of receipt.
If the Company or the applicable Borrowing Subsidiary fails to make such payment
when due then, the Administrative Agent shall notify each Tranche 1 Revolving
Lender or Tranche 2 Revolving Lender, as applicable, of the applicable Tranche 1
LC Disbursement or Tranche 2 LC Disbursement, as applicable, the payment then
due from the Company or the applicable Borrowing Subsidiary in respect thereof
and such Lender's Applicable Tranche 1 Revolving Percentage or Applicable
Tranche 2 Revolving Percentage, as applicable, thereof. Promptly following
receipt of such notice, each Tranche 1 Revolving Lender shall pay to the
Administrative Agent its Applicable Tranche 1 Revolving Percentage of the
payment then due from the Company and each Tranche 2 Revolving Lender shall pay
to the Administrative Agent its Applicable Tranche 2 Revolving Percentage of the
payment then due from the Company, in
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either case in the same manner as provided in Section 2.07 with respect to Loans
made by such Tranche 1 Revolving Lender or Tranche 2 Revolving Lender, as
applicable, (and Section 2.07 shall apply, mutatis mutandis, to the payment
obligations of the Tranche 1 Revolving Lenders and the Tranche 2 Revolving
Lenders), and the Administrative Agent shall promptly pay to the applicable
Issuing Bank the amounts so received by it from the Tranche 1 Revolving Lenders
or the Tranche 2 Revolving Lenders, as applicable. Promptly following receipt by
the Administrative Agent of any payment from the Company pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the Issuing
Bank or, to the extent that Tranche 1 Revolving Lenders or Tranche 2 Revolving
Lender, as applicable, have made payments pursuant to this paragraph to
reimburse the Issuing Bank, then to such Tranche 1 Revolving Lenders or Tranche
2 Revolving Lenders, as applicable, and the Issuing Bank as their interests may
appear. Any payment made by a Tranche 1 Revolving Lender or a Tranche 2
Revolving Lender pursuant to this paragraph to reimburse the Issuing Bank for
any Tranche 1 LC Disbursement or Tranche 2 LC Disbursement, as applicable, shall
not constitute a Loan and shall not relieve the Company of its obligation to
reimburse such Tranche 1 LC Disbursement or Tranche 2 LC Disbursement, as
applicable.
(f) Obligations Absolute. The Company's and the Borrowing
Subsidiaries' obligations to reimburse LC Disbursements as provided in paragraph
(e) of this Section shall be absolute, unconditional and irrevocable, and shall
be performed strictly in accordance with the terms of this Agreement under any
and all circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement or any other Loan
Document, or any term or provision herein or therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or
invalid in any respect or any statement therein being untrue or inaccurate in
any respect, (iii) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the terms of
such Letter of Credit, or (iv) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Company's or any Borrowing Subsidiary's
obligations hereunder. None of the Administrative Agent, the Tranche 1 Revolving
Lenders, the Tranche 2 Revolving Lenders or the Issuing Bank, or any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Company or any Borrowing Subsidiary to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Company to the extent permitted by
applicable law) suffered by the Company or such Borrowing Subsidiary that are
caused by the Issuing Bank's failure to exercise care when determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that, in the absence of gross
negligence or wilful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing Bank shall be
deemed to have exercised care in each such determination. In furtherance of the
foregoing and without limiting the generality thereof, the parties agree that,
with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a
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Letter of Credit. The Issuing Bank shall promptly notify the Administrative
Agent and the Company by telephone (confirmed by telecopy) of such demand for
payment and whether the Issuing Bank has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in giving such notice
shall not relieve the Company or any Borrowing Subsidiary of its obligation to
reimburse the Issuing Bank and the Tranche 1 Revolving Lenders or Tranche 2
Revolving Lenders, as applicable, with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Company or the applicable Borrowing Subsidiary
shall reimburse such LC Disbursement in full on the date such LC Disbursement is
made, the unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the date that
the Company reimburses such LC Disbursement, at (i) in the case of any LC
Disbursement denominated in Dollars, the rate per annum then applicable to ABR
Revolving Loans and (ii) in the case of a Tranche 1 LC Disbursement denominated
in any Committed Foreign Currency, a rate per annum determined by the Issuing
Bank (which determination will be conclusive absent manifest error) to represent
its cost of funds plus the Applicable Rate used to determine interest applicable
to Eurocurrency Revolving Loans until such Tranche 1 LC Disbursement shall have
been converted into an obligation denominated in Dollars as provided in
paragraph (e) above, and thereafter the rate per annum then applicable to ABR
Revolving Loans; provided that, at all times after the Company fails to
reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, Section 2.13(f) shall apply. Interest accrued pursuant to this
paragraph shall be for the account of the applicable Issuing Bank, except that
interest accrued on and after the date of payment by any Tranche 1 Revolving
Lender or Tranche 2 Revolving Lender pursuant to paragraph (e) of this Section
to reimburse the applicable Issuing Bank shall be for the account of such
Tranche 1 Revolving Lender or Tranche 2 Revolving Lender, as applicable, to the
extent of such payment.
(i) Cash Collateralization. If the Tranche 1 Revolving
Commitments or the Tranche 2 Revolving Commitments shall be terminated or if any
Event of Default shall occur and be continuing, on the Business Day that the
Company receives notice from the Administrative Agent or the Required Lenders
(or, if the maturity of the Loans has been accelerated, Tranche 1 Revolving
Lenders with Tranche 1 LC Exposure representing greater than 50% of the total
Tranche 1 LC Exposure or Tranche 2 Revolving Lenders with Tranche 2 LC Exposure
representing greater than 50% of the total Tranche 2 LC Exposure) demanding the
deposit of cash collateral pursuant to this paragraph, the Company and the
applicable Borrowing Subsidiaries shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Tranche 1 Revolving Lenders or the Tranche 2 Revolving Lenders,
as applicable, an amount in cash equal to the Tranche 1 LC Exposure or Tranche 2
LC Exposure, as applicable, as of such date plus any accrued and unpaid interest
thereon; provided that the obligation to deposit such cash collateral with
respect to the Tranche 1 LC Exposure and the Tranche 2 LC Exposure shall become
effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to the Company described in clause (h) or (i) of
Article VII. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Company and
the Borrowing Subsidiaries under this Agreement. The Administrative Agent shall
have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Company's risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Company and the Borrowing Subsidiaries for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated (but subject to the consent of
Tranche 1 Revolving Lenders with Tranche 1 LC Exposure representing greater than
50% of the total Tranche 1 LC Exposure or Tranche 2
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Revolving Lenders with Tranche 2 LC Exposure representing greater than 50% of
the total Tranche 2 LC Exposure, as applicable), be applied to satisfy other
obligations of the Company and the Borrowing Subsidiaries under this Agreement.
If the Company and the Borrowing Subsidiaries are required to provide an amount
of cash collateral hereunder as a result of the occurrence of an Event of
Default, such amount (to the extent not applied as aforesaid) shall be returned
to them within three Business Days after all Events of Default have been cured
or waived.
(j) Existing Letters of Credit. Each Existing Letter of
Credit listed on Schedule 2.06(j) shall be deemed a Tranche 2 Letter of Credit
issued under this Agreement.
SECTION 2.07. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds in the applicable currency by 11:00
a.m., Local Time, to the account of the Applicable Agent most recently
designated by it for such purpose for Loans of such Class and currency by notice
to the applicable Lenders; provided that Swingline Loans shall be made as
provided in Section 2.05. The Applicable Agent will make such Loans available to
the relevant Borrower by promptly crediting the amounts so received, in like
funds, to an account of such Borrower maintained by the Applicable Agent (i) in
New York City, in the case of Loans denominated in Dollars, or (ii) in London
(or such other place as may be specified in an applicable Designated Foreign
Currency Supplement) in the case of Foreign Currency Loans; provided that
Revolving Loans made to finance the reimbursement of an LC Disbursement shall be
remitted by the Administrative Agent to the Issuing Bank.
(b) Unless the Applicable Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Applicable Agent such Lender's share of such
Borrowing, the Applicable Agent may assume that such Lender has made such share
available on such date in accordance with paragraph (a) of this Section and may,
in reliance upon such assumption, make available to the relevant Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Applicable Agent, then the
applicable Lender and such Borrower severally agree to pay to the Applicable
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to such
Borrower to but excluding the date of payment to the Applicable Agent, at (i) in
the case of such Lender, (x) the Federal Funds Effective Rate (in the case of a
Borrowing in Dollars) and (y) the rate reasonably determined by the Applicable
Agent to be the cost to it of funding such amount (in the case of a Borrowing in
a Foreign Currency) or (ii) in the case of such Borrower, the interest rate
applicable to the subject Loan. If such Lender pays such amount to the
Applicable Agent, then such amount shall constitute such Lender's Loan included
in such Borrowing and the Applicable Agent shall return to such Borrower any
amount (including interest) paid by such Borrower to the Applicable Agent
pursuant to this paragraph.
SECTION 2.08. Interest Elections. (a) Each Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurocurrency Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. Thereafter, the relevant Borrower may elect
to convert such Borrowing to a different Type or to continue such Borrowing and,
in the case of a Eurocurrency Borrowing, may elect Interest Periods therefor,
all as provided in this Section and on terms consistent with the other
provisions of this Agreement and, in the case of any Designated Foreign Currency
Revolving Borrowing, the applicable Designated Foreign Currency Supplement. A
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This
Section shall not apply to Swingline Borrowings, which may not be converted or
continued.
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(b) To make an election pursuant to this Section, a Borrower,
or the Company on its behalf, shall notify the Applicable Agent of such election
by telephone by the time that a Borrowing Request would be required under
Section 2.03 if such Borrower were requesting a Revolving Borrowing of the Type
resulting from such election to be made on the effective date of such election.
Each such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Applicable Agent of a
written Interest Election Request in a form approved by the Administrative Agent
and signed by the relevant Borrower, or the Company on its behalf.
Notwithstanding any contrary provision herein, this Section shall not be
construed to permit any Borrower to (i) change the currency of any Borrowing,
(ii) elect an Interest Period for Eurocurrency Loans that does not comply with
Section 2.02(d) or (iii) convert any Foreign Currency Borrowing to an ABR
Borrowing or any other Type of Borrowing not permitted under an applicable
Designated Foreign Currency Supplement.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02 and
paragraph (f) of this Section:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing, a Eurocurrency Borrowing or a Local Rate Borrowing; and
(iv) if the resulting Borrowing is to be a Eurocurrency
Borrowing, the Interest Period to be applicable thereto after giving
effect to such election, which shall be a period contemplated by the
definition of the term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Applicable Agent shall advise each applicable Lender holding a Loan
to which such request relates of the details thereof and of such Lender's
portion of each resulting Borrowing.
(e) If the relevant Borrower fails to deliver a timely
Interest Election Request with respect to a Eurocurrency Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such Borrowing is
repaid as provided herein, at the end of such Interest Period such Borrowing
shall be converted to an ABR Borrowing (unless such Borrowing is denominated in
a Foreign Currency, in which case such Borrowing shall become due and payable on
the last day of such Interest Period). Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the Applicable
Agent, at the request of the Required Lenders, so notifies the Company, then, so
long as an Event of Default is continuing (i) no outstanding Borrowing
denominated in Dollars may be converted to or continued as a Eurocurrency
Borrowing and (ii) unless repaid, each Eurocurrency Borrowing denominated in
Dollars shall be converted to an ABR Borrowing at the end of the Interest Period
applicable thereto.
(f) A Borrowing of any Class denominated in Dollars may not be
converted into or continued as a Eurocurrency Borrowing if after giving effect
thereto (i) the Interest Period
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therefor would commence before and end after a date on which any principal of
the Loans of such Class is scheduled to be repaid and (ii) the sum of the
aggregate principal amount of outstanding Eurocurrency Borrowings of such Class
with Interest Periods ending on or prior to such scheduled repayment date plus
the aggregate principal amount of outstanding ABR Borrowings of such Class would
be less than the aggregate principal amount of Loans of such Class required to
be repaid on such scheduled repayment date.
SECTION 2.09. Termination and Reduction of Commitments. (a)
Unless previously terminated, the (i) Tranche A Term Commitments shall terminate
at 5:00 p.m., New York City time, on December 15, 1999, (ii) the Tranche B Term
Commitments shall terminate at 5:00 p.m., New York City time, on the Effective
Date and (iii) the Revolving Commitments and the Designated Foreign Currency
Commitments shall terminate on the Revolving Maturity Date (or, in the case of
any Designated Foreign Currency Commitment, on any earlier date specified in the
applicable Designated Foreign Currency Supplement); provided that all the
Commitments shall terminate at 5:00 p.m., New York City time, on July 10, 1999,
if the Effective Date shall not have occurred prior to such time.
(b) The Company may at any time terminate, or from time to
time reduce, the Commitments of any Class; provided that (i) each reduction of
the Commitments of any Class shall be in an amount that is an integral multiple
that is a Borrowing Multiple and not less than the Borrowing Minimum, (ii) the
Company shall not terminate or reduce the Tranche 1 Revolving Commitments if,
after giving effect to any concurrent prepayment of the Tranche 1 Revolving
Loans in accordance with Section 2.11, the aggregate Tranche 1 Revolving
Exposures would exceed the aggregate Tranche 1 Revolving Commitments and (iii)
the Company shall not terminate or reduce the Tranche 2 Revolving Commitments
if, after giving effect to any concurrent prepayment of the Tranche 2 Revolving
Loans in accordance with Section 2.11, the aggregate Tranche 2 Revolving
Exposures would exceed the aggregate Tranche 2 Revolving Commitments.
(c) If any prepayment of Term Borrowings is required pursuant
to Section 2.11 but cannot be made because there are no Term Borrowings
outstanding, or because the amount of the required prepayment exceeds the
outstanding amount of Term Borrowings, then, on the date that such prepayment is
required, the Revolving Commitments shall be reduced ratably by an aggregate
amount equal to the amount of the required prepayment, or the excess of such
amount over the outstanding amount of Term Borrowings, as the case may be.
(d) The Company shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section, or any required reduction of the Revolving Commitments under paragraph
(c) of this Section, at least three Business Days prior to the effective date of
such termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the London Agent and the applicable Lenders of the contents
thereof. Each notice delivered by the Company pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Revolving Commitments
delivered by the Company may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be
revoked by the Company (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Any termination or
reduction of the Commitments of any Class shall be permanent. Each reduction of
the Commitments of any Class shall be made ratably among the applicable Lenders
in accordance with their respective Commitments of such Class.
SECTION 2.10. Amortization of Term Loans. (a) The Company
shall repay the Tranche A-1 Term Borrowings on each date set forth below in an
aggregate principal amount sufficient to reduce the sum of the Dollar
Equivalents of the outstanding principal amounts of the
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Tranche A-1 Term Loans to the amount set forth opposite such date (as such
amount shall be reduced from time to time to give effect to paragraph (e)
below):
Date Amount
- ---- ------
September 30, 2000 $123,437,500
December 31, 2000 $121,875,000
March 31, 2001 $120,312,500
June 30, 2001 $118,750,000
September 30, 2001 $115,625,000
December 31, 2001 $112,500,000
March 31, 2002 $109,375,000
June 30, 2002 $106,250,000
September 30, 2002 $100,000,000
December 31, 2002 $93,750,000
March 31, 2003 $87,500,000
June 30, 2003 $81,250,000
September 30, 2003 $73,437,500
December 31, 2003 $65,625,000
March 31, 2004 $57,812,500
June 30, 2004 $50,000,000
September 30, 2004 $37,500,000
December 31, 2004 $25,000,000
March 31, 2005 $12,500,000
June 30, 2005 $0
(b) The Company shall repay the Tranche A-2 Term Borrowings
on each date set forth below in an aggregate principal amount sufficient to
reduce the aggregate outstanding principal amount of the Tranche A-2 Term Loans
to the amount set forth opposite such date (as such amount shall be reduced from
time to time to give effect to paragraph (e) below):
Date Amount
- ---- ------
September 30, 2000 $148,125,000
December 31, 2000 $146,250,000
March 31, 2001 $144,375,000
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Date Amount
- ---- ------
June 30, 2001 $142,500,000
September 30, 2001 $138,750,000
December 31, 2001 $135,000,000
March 31, 2002 $131,250,000
June 30, 2002 $127,500,000
September 30, 2002 $120,000,000
December 31, 2002 $112,500,000
March 31, 2003 $105,000,000
June 30, 2003 $97,500,000
September 30, 2003 $88,125,000
December 31, 2003 $78,750,000
March 31, 2004 $69,375,000
June 30, 2004 $60,000,000
September 30, 2004 $45,000,000
December 31, 2004 $30,000,000
March 31, 2005 $15,000,000
June 30, 2005 $0
(c) The Company shall repay the Tranche B Term Borrowings on
each date set forth below in an aggregate principal amount sufficient to reduce
the aggregate principal amount of the outstanding Tranche B Term Loans to the
amount set forth opposite such date (as such amount shall be reduced from time
to time to give effect to paragraph (e) below):
Date Amount
- ---- ------
September 30, 2000 $523,687,500
December 31, 2000 $522,375,000
March 31, 2001 $521,062,500
June 30, 2001 $519,750,000
September 30, 2001 $518,437,500
December 31, 2001 $517,125,000
March 31, 2002 $515,812,500
June 30, 2002 $514,500,000
September 30, 2002 $513,187,500
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Date Amount
- ---- ------
December 31, 2002 $511,875,000
March 31, 2003 $510,562,500
June 30, 2003 $509,250,000
September 30, 2003 $507,937,500
December 31, 2003 $506,625,000
March 31, 2004 $505,312,500
June 30, 2004 $504,000,000
September 30, 2004 $502,687,500
December 31, 2004 $501,375,000
March 31, 2005 $500,062,500
June 30, 2005 $498,750,000
September 30, 2005 $452,812,500
December 31, 2005 $406,875,000
March 31, 2006 $360,937,500
June 30, 2006 $315,000,000
September 30, 2006 $236,250,000
December 31, 2006 $157,500,000
March 31, 2007 $78,750,000
June 30, 2007 $0
(d) To the extent not previously paid, (i) all Tranche A Term
Loans shall be due and payable on the Tranche A Term Maturity Date and (ii) all
Tranche B Term Loans shall be due and payable on the Tranche B Term Maturity
Date.
(e) Any prepayment of a Term Borrowing of any Class shall be
applied to reduce the subsequent scheduled repayments of the Term Borrowings of
such Class to be made pursuant to this Section ratably; provided that any
prepayment of a Term Borrowing of any Class made pursuant to Section 2.11(a)
shall be applied first to reduce the repayment of the Term Borrowings of such
Class to be made pursuant to this Section on the repayment date next following
the date of such prepayment unless and until such next scheduled repayment has
been eliminated as a result of reductions hereunder, and second to reduce the
remaining scheduled repayments of the Term Borrowings of such Class ratably. The
applicable amortization schedule set forth in paragraph (a), (b) or (c) above
shall be appropriately adjusted to give effect to the application of each
prepayment as specified in this paragraph. To the extent it shall be necessary
to convert amounts denominated in one currency to amounts denominated in another
currency for purposes of determining the amounts of any such reductions of
prepayments or adjustments to amortization schedules, the Exchange Rates used
shall be those in effect on the respective dates of the prepayments giving rise
to such reductions or adjustments.
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(f) Prior to any repayment of any Term Borrowings of either
Class hereunder, the applicable Borrower shall select the Borrowing or
Borrowings of the applicable Class to be repaid and shall notify the
Administrative Agent by telephone (confirmed by telecopy) of such selection not
later than 11:00 a.m., New York City time, three Business Days before the
scheduled date of such repayment. Each repayment of a Borrowing shall be applied
ratably to the Loans included in the repaid Borrowing. Repayments of Term
Borrowings shall be accompanied by accrued interest on the amount repaid.
SECTION 2.11. Prepayment of Loans. (a) Any Borrower shall have
the right at any time and from time to time to prepay any Borrowing of such
Borrower in whole or in part, subject to prior notice in accordance with
paragraph (f) of this Section.
(b) If, (i) on the last day of any Interest Period for any
Eurocurrency Revolving Borrowing or (ii) on any Interest Payment Date for any
ABR Revolving Borrowing or any Borrowing under a Designated Currency Supplement
bearing interest at a Local Rate, (A) the Tranche 1 Revolving Exposure or the
Tranche 2 Revolving Exposure of any Lender exceeds its Tranche 1 Revolving
Commitment or its Tranche 2 Revolving Commitment, as applicable, or (B) the
aggregate amount of the Tranche 1 Revolving Exposures or the Tranche 2 Revolving
Exposures exceeds the aggregate amount of the Lenders' Tranche 1 Revolving
Commitments or Tranche 2 Revolving Commitments, as applicable, the Company shall
(or shall cause another Borrower to), prepay Tranche 1 Revolving Loans or
Tranche 2 Revolving Loans, as applicable, on such day in an amount equal to the
lesser of (i) the amount necessary to eliminate such excess (after giving effect
to any other prepayment of Loans on such day) and (ii) the amount of such
Borrowing. If, on any Reset Date, the aggregate amount of the Tranche 1
Revolving Exposures or the aggregate amount of the Tranche 2 Revolving Exposures
exceeds 105% of the aggregate amount of the Tranche 1 Revolving Lenders' Tranche
1 Revolving Commitments or 105% of the aggregate amount of the Tranche 2
Revolving Lenders' Tranche 2 Revolving Commitments, as applicable, then the
Company shall (or shall cause another Borrower to), prepay one or more (i)
Tranche 1 Revolving Borrowings or Swingline Borrowings or (ii) Tranche 2
Revolving Borrowings, as applicable, in either case not later than the next
Business Day in an aggregate principal amount equal to the excess, if any, of
(x) the aggregate amount of the Tranche 1 Revolving Exposures (as of such Reset
Date and after giving effect to any other prepayment of Tranche 1 Revolving
Loans or Swingline Loans on such day) over the aggregate amount of the Tranche 1
Revolving Lenders' Tranche 1 Revolving Commitments (as of the date of such
prepayment) or (y) the aggregate amount of the Tranche 2 Revolving Exposures (as
of such Reset Date and after giving effect to any other prepayment of Tranche 2
Revolving Loans on such day) over the aggregate amount of the Tranche 2
Revolving Lenders' Tranche 2 Revolving Commitments (as of the date of such
prepayment), as applicable.
(c) In the event and on each occasion that any Net Proceeds
are received by or on behalf of the Company or any Subsidiary in respect of any
Prepayment Event, the Company shall, not later than the next Business Day after
such Net Proceeds are received, prepay Term Borrowings in an aggregate amount
equal to such Net Proceeds; provided that, in the case of any event described in
clause (a) of the definition of the term Prepayment Event, if the Company shall
deliver to the Administrative Agent a certificate of a Financial Officer to the
effect that the Company and the Subsidiaries intend to apply the Net Proceeds
from such event, within 180 days after receipt of such Net Proceeds, to acquire
real property, equipment or other tangible assets to be used in the business of
the Company and the Subsidiaries, and certifying that no Default has occurred
and is continuing, then no prepayment shall be required pursuant to this
paragraph in respect of such event except to the extent of any Net Proceeds
therefrom that have not been so applied by the end of such 180-day period, at
which time a prepayment shall be required in an amount equal to the Net Proceeds
that have not been so applied.
(d) Following the end of each fiscal year of the Company,
commencing with the fiscal year ending December 31, 1999, the Company shall
prepay Term Borrowings in an aggregate amount equal to 50% of Excess Cash Flow
for such fiscal year. Each prepayment
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pursuant to this paragraph shall be made on or before the date on which
financial statements are delivered pursuant to Section 5.01 with respect to the
fiscal year for which Excess Cash Flow is being calculated (and in any event
within 90 days after the end of such fiscal year); provided that if the Leverage
Ratio shall be less than 2.5 to 1.0 for a period of not less than 90 consecutive
days including the last days of two fiscal quarters of the Company, the Company
shall not at any time thereafter be required to prepay Term Borrowings under
this paragraph (d).
(e) Prior to any optional or mandatory prepayment of
Borrowings hereunder, the Company shall select the Borrowing or Borrowings to be
prepaid and shall specify such selection in the notice of such prepayment
pursuant to paragraph (f) of this Section. In the event of any optional or
mandatory prepayment of Term Borrowings made at a time when Term Borrowings of
more than one Class remain outstanding, the Company shall select Term Borrowings
to be prepaid so that the aggregate amount of such prepayment is allocated
between the Tranche A-1 Term Borrowings, Tranche A-2 Term Borrowings and Tranche
B Term Borrowings pro rata based on the aggregate Dollar Equivalents of the
principal amounts of the outstanding Borrowings of each such Class; provided
that any Tranche B Term Lender may elect, by notice to the Administrative Agent
by telephone (confirmed by telecopy) at least one Business Day prior to the
prepayment date, to decline all or any portion of any prepayment of its Tranche
B Term Loans pursuant to this Section (other than an optional prepayment
pursuant to paragraph (a) of this Section, which may not be declined), in which
case the aggregate amount of the prepayment that would have been applied to
prepay Tranche B Term Loans but was so declined shall be applied to prepay
Tranche A-1 Term Borrowings and Tranche A-2 Term Borrowings ratably in
accordance with the aggregate Dollar Equivalents of the outstanding principal
amounts thereof; provided that no Tranche B Lender shall be entitled to make
such election to the extent that at the time thereof the portion of the
prepayments as to which such election is made exceeds the outstanding amount of
Tranche A Term Loans.
(f) The Company shall notify the Applicable Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Borrowing, not later than 11:00 a.m., Local Time,
three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment, (iii) in the case of prepayment
of a Local Rate Borrowing, not later than the time specified in the applicable
Designated Foreign Currency Supplement or (iv) in the case of prepayment of a
Swingline Loan (x) denominated in Dollars, not later than 12:00 noon, New York
City time and (y) denominated in a Committed Foreign Currency, not later than 10
a.m., London time, in any case on the date of prepayment. Each such notice shall
be irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; provided that, if a notice of
optional prepayment is given in connection with a conditional notice of
termination of the Revolving Commitments as contemplated by Section 2.09, then
such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.09. Promptly following receipt of any such
notice (other than a notice relating solely to Swingline Loans), the Applicable
Agent shall advise the applicable Lenders of the contents thereof. Each partial
prepayment of any Borrowing shall be in an amount that would be permitted in the
case of an advance of a Borrowing of the same Type as provided in Section 2.02,
except as necessary to apply fully the required amount of a mandatory
prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by (i)
accrued interest to the extent required by Section 2.13 and (ii) break funding
payments pursuant to Section 2.16.
SECTION 2.12. Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Rate on the daily unused amount of each
Commitment (other than any Designated Foreign Currency Commitment) of such
Lender during the period from and including the date hereof to but excluding the
date on which such Commitment terminates. Accrued commitment fees in
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respect of any Commitment shall be payable in arrears on the last day of March,
June, September and December of each year commencing on the first such date to
occur after the date hereof, and on the date on which such Commitment
terminates. All commitment fees shall be computed on the basis of a year of 360
days and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). For purposes of computing commitment fees
with respect to (x) Tranche 1 Revolving Commitments, a Tranche 1 Revolving
Commitment of a Lender shall be deemed to be used to the extent of the Tranche 1
LC Exposure of such Lender (but not by the Swingline Exposure of such Lender)
and (y) Tranche 2 Revolving Commitments, a Tranche 2 Revolving Commitment of a
Lender shall be deemed to be used to the extent of the Tranche 2 LC Exposure of
such Lender. For purposes of computing commitment fees with respect to Tranche 2
Revolving Commitments, a Tranche 2 Revolving Commitment of a Lender shall be
deemed to be used to the extent of the Designated Foreign Currency Exposure of
such Lender.
(b) The Company agrees to pay (i) to the Administrative Agent
for the account of each (x) Tranche 1 Revolving Lender a participation fee with
respect to its participations in Tranche 1 Letters of Credit, which shall accrue
at the Applicable Rate used to determine the interest rate applicable to
Eurocurrency Revolving Loans on the daily amount of such Tranche 1 Revolving
Lender's Tranche 1 LC Exposure (excluding any portion thereof attributable to
unreimbursed Tranche 1 LC Disbursements) during the period from and including
the date hereof to but excluding the later of the date on which such Tranche 1
Revolving Lender's Tranche 1 Revolving Commitment terminates and the date on
which such Tranche 1 Revolving Lender ceases to have any Tranche 1 LC Exposure
and (y) Tranche 2 Revolving Lender a participation fee with respect to its
participations in Tranche 2 Letters of Credit, which shall accrue at the
Applicable Rate used to determine the interest rate applicable to Eurocurrency
Revolving Loans on the daily amount of such Tranche 2 Revolving Lender's Tranche
2 LC Exposure (excluding any portion thereof attributable to unreimbursed
Tranche 2 LC Disbursements) during the period from and including the date hereof
to but excluding the later of the date on which such Tranche 2 Revolving
Lender's Tranche 2 Revolving Commitment terminates and the date on which such
Tranche 2 Revolving Lender ceases to have any Tranche 2 LC Exposure, and (ii) to
the Issuing Bank a fronting fee, which shall accrue at the rate of .125% per
annum on the (x) average daily amount of the Tranche 1 LC Exposure (excluding
any portion thereof attributable to unreimbursed Tranche 1 LC Disbursements)
during the period from and including the date hereof to but excluding the later
of the date of termination of the Tranche 1 Revolving Commitments and the date
on which there ceases to be any Tranche 1 LC Exposure and (y) average daily
amount of the Tranche 2 LC Exposure (excluding any portion thereof attributable
to unreimbursed Tranche 2 LC Disbursements) during the period from and including
the date hereof to but excluding the later of the date of termination of the
Tranche 2 Revolving Commitments and the date on which there ceases to be any
Tranche 2 LC Exposure, as well as the Issuing Bank's standard fees with respect
to the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Participation fees and fronting fees accrued
under this paragraph through and including the last day of March, June,
September and December of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to occur after the
date hereof; provided that all such fees shall be payable on the date on which
the Tranche 1 Revolving Commitments or the Tranche 2 Revolving Commitments
terminate and any such fees accruing after the date on which the Tranche 1
Revolving Commitments or the Tranche 2 Revolving Commitments terminate shall be
payable on demand. Any other fees payable to the Issuing Bank pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees
and fronting fees payable under this paragraph shall be computed on the basis of
a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) The Company agrees to pay (i) to the Administrative Agent
for the account of each Tranche 2 Revolving Lender a participation fee with
respect to its obligation under Section 2.01(f) to acquire participations in
Designated Foreign Currency Revolving Loans, which shall accrue at the
Applicable Rate used to determine the interest rate applicable to Eurocurrency
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Revolving Loans on the average daily amount of such Tranche 2 Revolving Lender's
Designated Foreign Currency Exposure (excluding any portion thereof attributable
to Designated Foreign Currency Revolving Loans that have been converted to
Dollar obligations and in respect of which such Lender has made, or is required
to have made, payments to the applicable Fronting Lenders, all as provided in
Section 2.01(f)) during the period from and including the date hereof to but
excluding the later of the date on which such Lender's Tranche 2 Revolving
Commitment terminates and the date on which such Lender ceases to have any
Designated Foreign Currency Exposure, and (ii) to each Fronting Lender a
fronting fee, which shall accrue at the rate of .125% per annum on the daily
aggregate amount of the Dollar Equivalents of such Fronting Lender's Designated
Foreign Currency Revolving Loans during the period from and including the date
hereof to but excluding the later of the date of termination of the Revolving
Commitments and the date on which there cease to be any Designated Foreign
Currency Revolving Loans outstanding. Participation fees and fronting fees
accrued under this paragraph through and including the last day of March, June,
September and December of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to occur after the
date hereof; provided that all such fees shall be payable on the date on which
the Revolving Commitments terminate and any such fees accruing after the date on
which the Revolving Commitments terminate shall be payable on demand. All
participation fees and fronting fees payable under this paragraph shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
(d) The Company agrees to pay to the Administrative Agent, for
its own account, fees payable in the amounts and at the times separately agreed
upon between the Company and the Administrative Agent.
(e) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR
Borrowing (including each Swingline Loan denominated in Dollars) shall bear
interest at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurocurrency Term Borrowing and
each Eurocurrency Revolving Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Rate.
(c) The Loans comprising each Eurocurrency Designated Foreign
Currency Revolving Borrowing shall bear interest at the Adjusted LIBO Rate for
the Interest Period in effect for such Borrowing.
(d) The Loans comprising each Local Rate Revolving Borrowing
shall bear interest at the rate or rates set forth in the applicable Designated
Foreign Currency Supplement.
(e) The Loans comprising each Swingline Loan denominated in a
Committed Foreign Currency shall bear interest at the Swingline Base Rate for
the Interest Period in effect for such Borrowing plus the Applicable Rate.
(f) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by any Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of any other amount, 2%
plus the rate applicable to ABR Revolving Loans as provided in paragraph (a)
above.
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(g) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the applicable Revolving Commitments; provided that (i)
interest accrued pursuant to paragraph (e) above shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving
Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurocurrency Revolving Loan prior to the end of
the current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion.
(h) All interest hereunder shall be computed on the basis of a
year of 360 days, except that (i) interest on Borrowings denominated in Sterling
and (ii) interest computed by reference to the Alternate Base Rate at times when
the Alternate Base Rate is based on the Prime Rate shall be computed on the
basis of a year of 365 days (or 366 days in a leap year), and in each case shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate
or Local Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing denominated in
any currency:
(a) the Applicable Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means
do not exist for ascertaining the Adjusted LIBO Rate for such Interest
Period; or
(b) the Applicable Agent is advised by the Required Lenders
that the Adjusted LIBO Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders of making or
maintaining their Loans included in such Borrowing for such Interest
Period;
then the Applicable Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing
denominated in such currency to, or continuation of any Revolving Borrowing
denominated in such currency as, a Eurocurrency Borrowing shall be ineffective,
and any Eurocurrency Borrowing denominated in such currency that is requested to
be continued shall be repaid on the last day of the then current Interest Period
applicable thereto, (ii) any Borrowing Request for a Eurocurrency Revolving
Borrowing denominated in such currency (A) if such currency is the Dollar, shall
be deemed a request for an ABR Borrowing and (B) if such currency is a Foreign
Currency, shall be ineffective.
SECTION 2.15. Increased Costs. (a) If any Change in Law
shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing
Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurocurrency Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan (or of maintaining its
obligation to make any such Loan) or
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to increase the cost to such Lender or the Issuing Bank of participating in,
issuing or maintaining any Letter of Credit or to reduce the amount of any sum
received or receivable by such Lender or the Issuing Bank hereunder (whether of
principal, interest or otherwise), then the Company will pay to such Lender or
the Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Bank's capital or on
the capital of such Lender's or the Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by the Issuing
Bank, to a level below that which such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or the Issuing Bank's
policies and the policies of such Lender's or the Issuing Bank's holding company
with respect to capital adequacy), then from time to time the Company will pay
to such Lender or the Issuing Bank, as the case may be, such additional amount
or amounts as will compensate such Lender or the Issuing Bank or such Lender's
or the Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or the Issuing
Bank or its holding company, as the case may be, as specified in paragraph (a)
or (b) of this Section shall be delivered to the Company and shall be conclusive
absent manifest error. The Company shall pay such Lender or the Issuing Bank, as
the case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or the Issuing Bank's right to demand such compensation;
provided that the Company shall not be required to compensate a Lender or the
Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 270 days prior to the date that such Lender or the Issuing
Bank, as the case may be, notifies the Borrower of the Change in Law giving rise
to such increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.16. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurocurrency Loan other than on the last day of
an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurocurrency Loan to a Loan of a different
Type or Interest Period other than on the last day of the Interest Period
applicable thereto, (c) the failure to borrow, convert, continue or prepay any
Loan on the date specified in any notice delivered pursuant hereto (regardless
of whether such notice may be revoked under Section 2.11(f) and is revoked in
accordance therewith), (d) the conversion of and purchase of participations in
any Designated Foreign Currency Revolving Loan pursuant to Section 2.01(f) or
(e) the assignment of any Eurocurrency Loan other than on the last day of the
Interest Period applicable thereto as a result of a request by the Company
pursuant to Section 2.19, then, in any such event, the Company shall compensate
each Lender or Fronting Lender, as the case may be, for the loss, cost and
expense attributable to such event. In the case of a Eurocurrency Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of
interest that would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate that would have been applicable to
such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the
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Interest Period for such Loan), over (ii) the amount of interest that would
accrue on such principal amount for such period at the interest rate such Lender
would bid were it to bid, at the commencement of such period, for deposits in
the applicable currency of a comparable amount and period from other banks in
the eurocurrency market. A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section shall
be delivered to the Company and shall be conclusive absent manifest error. The
Company shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account
of any Borrower hereunder or under any other Loan Document shall be made free
and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if any Borrower shall be required to deduct any Indemnified Taxes
or Other Taxes from such payments, then (i) the sum payable shall be increased
as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, London Agent, Lender or Issuing Bank (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Borrower shall make such deductions and (iii) such Borrower shall pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) In addition, the Loan Parties shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) The relevant Borrower shall indemnify the Administrative
Agent, the London Agent, each Lender and the Issuing Bank, within 10 days after
written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent, the London Agent, such Lender or the
Issuing Bank, as the case may be, on or with respect to any payment by or on
account of any obligation of any Borrower hereunder or under any other Loan
Document (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Company by a Lender or the Issuing
Bank, or by the Administrative Agent or the London Agent, on its own behalf or
on behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest
error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by any Borrower to a Governmental Authority, such Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which a
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Company (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Company as will permit such payments to be
made without withholding or at a reduced rate; provided that such Foreign Lender
has received written notice from the Company advising it of the availability of
such exemption or reduction and containing all applicable documentation.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing
of Setoffs. (a) Each Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) prior to
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12:00 noon, Local Time (or, in the case of any payment in respect of a
Designated Foreign Currency Revolving Loan, such other time as may be specified
in the applicable Designated Foreign Currency Supplement), on the date when due,
in immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Applicable Agent to such account as it shall from time to
time specify at its offices at (i) in the case of any amount denominated in
Dollars, 270 Park Avenue, New York, New York, (ii) in the case of any amount
denominated in Euros, Chase Manhattan Bank AG, Grueneburgweg 2, 60322 Frankfurt
Main, Germany and (iii) in the case of any amount denominated in a Foreign
Currency other than Euros, Chase Manhattan International Limited, 125 London
Wall, London, EC2Y 5AJ, or, in any such case, at such other address as the
Applicable Agent shall from time to time specify in a notice delivered to the
Company; provided that payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and payments pursuant to Sections
2.15, 2.16, 2.17 and 10.03 shall be made directly to the Persons entitled
thereto and payments pursuant to other Loan Documents shall be made to the
Persons specified therein. The Applicable Agent shall distribute any such
payments received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment hereunder shall be
due on a day that is not a Business Day, the date for payment shall be extended
to the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments hereunder of principal or interest in respect of any Loan or LC
Disbursement shall be made in the currency of such Loan or LC Disbursement
(except as provided in Section 2.01(f)); all other payments hereunder and under
each other Loan Document shall be made in Dollars. Any payment required to be
made by an Agent hereunder shall be deemed to have been made by the time
required if such Agent shall, at or before such time, have taken the necessary
steps to make such payment in accordance with the regulations or operating
procedures of the clearing or settlement system used by such Agent to make such
payment. Any amount payable by any Agent to one or more Lenders in the national
currency of a member state of the European Union that has adopted the Euro as
its lawful currency shall be paid in Euro.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender (which term, for purposes of this paragraph,
shall exclude the Fronting Lenders) shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on its Tranche 1 Revolving Loans, Tranche 2 Revolving Loans, Term Loans
or participations in Designated Foreign Currency Revolving Loans, LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Tranche 1 Revolving Loans,
Tranche 2 Revolving Loans, Term Loans and participations in Designated Foreign
Currency Revolving Loans, LC Disbursements and Swingline Loans and accrued
interest thereon than the proportion received by any other Lender, then the
Lender receiving such greater proportion shall purchase (for cash at face value)
participations in the Tranche 1 Revolving Loans, Tranche 2 Revolving Loans, Term
Loans and participations in Designated Foreign Currency Revolving Loans, LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of their respective Tranche 1 Revolving
Loans, Tranche 2 Revolving Loans, Term Loans and participations in Designated
Foreign Currency Revolving Loans, LC Disbursements and Swingline Loans and
accrued interest thereon; provided that (i) if any such participations are
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purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by any Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in Designated Foreign Currency Revolving Loans, LC Disbursements or Swingline
Loans to any assignee or participant, other than to the Company or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply). Each Borrower consents to the foregoing and agrees, to the extent
it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Borrower rights of setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.
(d) Unless the Applicable Agent shall have received notice
from the Company prior to the date on which any payment is due to the Applicable
Agent for the account of all or certain of the Lenders or the Issuing Bank
hereunder that the relevant Borrower will not make such payment, the Applicable
Agent may assume that such Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the
applicable Lenders or the Issuing Bank, as the case may be, the amount due. In
such event, if such Borrower has not in fact made such payment, then each of the
applicable Lenders or the Issuing Bank, as the case may be, severally agrees to
repay to the Applicable Agent forthwith on demand the amount so distributed to
such Lender or Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Applicable Agent, at a rate determined by the Applicable Agent in
accordance with banking industry practices on interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(c) or
10.03(c), then the Administrative Agent or the London Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by it for the account of such Lender to satisfy such
Lender's obligations under such Sections until all such unsatisfied obligations
are fully paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.15, or if any Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Company
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or
if any Loan Party is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Company may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 10.04), all its interests, rights and obligations under the Loan
Documents to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that (i) the
Company shall have received the prior written consent of the Administrative
Agent (and (A) if a Tranche 1 Revolving Commitment is being assigned, the
Issuing Bank and the Swingline Lender and (B) if a Tranche 2 Revolving
Commitment is being assigned, each
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Fronting Lender), which consent shall not unreasonably be withheld, (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in Designated Foreign Currency
Revolving Loans, LC Disbursements and Swingline Loans, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or
the Company (in the case of all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under Section 2.15 or
payments required to be made pursuant to Section 2.17, such assignment will
result in a material reduction in such compensation or payments. A Lender shall
not be required to make any such assignment and delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling
the Company to require such assignment and delegation cease to apply.
SECTION 2.20. Borrowing Subsidiaries. On or after the
Effective Date, the Company may designate any Wholly Owned Subsidiary of the
Company as a Borrowing Subsidiary by delivery to the Administrative Agent of a
Borrowing Subsidiary Agreement executed by such Subsidiary and the Company, and
upon such delivery such Subsidiary shall for all purposes of this Agreement be a
Borrowing Subsidiary and a party to this Agreement until the Company shall have
executed and delivered to the Administrative Agent a Borrowing Subsidiary
Termination with respect to such Subsidiary, whereupon such Subsidiary shall
cease to be a Borrowing Subsidiary and a party to this Agreement.
Notwithstanding the preceding sentence, no Borrowing Subsidiary Termination will
become effective as to any Borrowing Subsidiary at a time when any principal of
or interest on any Loan to such Borrowing Subsidiary shall be outstanding
hereunder, provided that such Borrowing Subsidiary Termination shall be
effective to terminate such Borrowing Subsidiary's right to make further
Borrowings under this Agreement. As soon as practicable upon receipt of a
Borrowing Subsidiary Agreement, the Administrative Agent shall send a copy
thereof to each Lender.
ARTICLE III
Representations and Warranties
------------------------------
The Company represents and warrants as to itself and the
Subsidiaries (and each other Borrower represents and warrants as to itself and
its subsidiaries, as applicable) to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Company and
its Subsidiaries (including each Borrower) is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, has
all requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions
are within each Loan Party's corporate powers and have been duly authorized by
all necessary corporate and, if required, stockholder action. This Agreement has
been duly executed and delivered by each Borrower and constitutes, and each
other Loan Document to which any Loan Party is to be a party, when executed and
delivered by such Loan Party, will constitute, a legal, valid and binding
obligation of each such Borrower or such Loan Party (as the case may be),
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3.03. Approvals; No Conflicts. The Transactions (a) do
not require any consent or approval of, registration or filing with, or any
other action by, any Person or any
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Governmental Authority, except (i) such as have been obtained or made and are in
full force and effect, (ii) filings necessary to perfect Liens created under the
Loan Documents, (iii) certain notice filings required to made after the
completion of the Acquisition Transactions and (iv) consents and filings to be
obtained and made in connection with the Post-Effective Date Acquisition
Transactions; provided, that the foregoing exception shall cease to apply with
respect to any Post-Effective Date Acquisition Transaction on the date such
Post-Effective Date Acquisition Transaction is consummated, (b) will not violate
any applicable law or regulation or the charter, by-laws or other organizational
documents of any Loan Party or any of its subsidiaries or any order or decree of
any Governmental Authority, (c) will not violate or result in a default under
any indenture, agreement or other instrument binding upon any Loan Party or any
of its subsidiaries or its assets, or give rise to a right thereunder to require
any payment to be made by any Loan Party or any of its subsidiaries (other than
any violation or default or any right under agreements to which BICC plc or one
of its subsidiaries shall have been a party prior to the Effective Date, the
existence of which could not reasonably be expected to result in a Material
Adverse Effect), and (d) will not result in the creation or imposition of any
Lien on any asset of any Loan Party or any of its subsidiaries, except Liens
created under the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) The Company has heretofore furnished to the Lenders its combined balance
sheet and statements of income, stockholders' equity and cash flows (i) as of
and for the fiscal year ended December 31, 1998, reported on by Deloitte &
Touche LLP, independent public accountants, and (ii) as of and for the fiscal
quarter and the portion of the fiscal year ended March 31, 1999, certified by
its chief financial officer. Such financial statements present fairly, in all
material respects, the financial position and results of operations and cash
flows of the Company and its consolidated Subsidiaries and related companies as
of such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.
(b) The Company has heretofore furnished to the Lenders (i)
its unaudited pro forma combined balance sheet of the Company as of December 31,
1998, reflecting all pro forma adjustments as if the Effective Date Transactions
and the Post-Effective Date Acquisition Transactions had been consummated on
such date and its unaudited consolidated balance sheet and related statement of
income, stockholders' equity and cash flows of the Company for each fiscal
quarter ending after such date (and, to the extent available, for each month
preceding the Effective Date and ending after the last such fiscal quarter),
(ii) its audited consolidated balance sheet and related statement of income,
stockholders' equity and cash flows for the Company for the three fiscal years
most recently ended, (iii) its audited balance sheet and related statement of
income for the businesses that are part of the Acquired Assets for the fiscal
year ended December 31, 1998, (iv) its unaudited consolidated balance sheet and
related statement of income for the Acquired Businesses for the fiscal year
ended December 31, 1997 and (v) projections (including income statements,
balance sheet and cash flow projections of the Company and its consolidated
Subsidiaries for fiscal years 1999-2007), in the case of each of clauses (i)
through (v), included in the Confidential Information Memorandum. Such pro forma
combined balance sheet and all other financial statements referred to above
shall be consistent in all material respects with the forecasts and other
information previously provided to the Lenders. All such pro forma financial
data have been prepared in good faith by the Company, based on assumptions
believed by the management of the Company to be reasonable at the time made, and
present fairly on a pro forma basis the estimated financial position and
operations of the Company and Subsidiaries as of December 31, 1998, assuming
that the Effective Date Transactions and the Post-Effective Date Acquisition
Transactions had actually occurred on such date. Such projections have been
prepared in good faith by the Company, based on assumptions believed by the
management of the Company to be reasonable at the time made.
(c) Since December 31, 1998, there has been no material
adverse change in the business, assets, operations or condition, financial or
otherwise, of the Company and its Subsidiaries, taken as a whole.
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SECTION 3.05. Properties. (a) Except as disclosed on Schedule
3.05, each of the Borrowers and its subsidiaries has good title to, or valid
leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not result in a Material
Adverse Effect or otherwise interfere with its ability to conduct its business
as currently conducted or to utilize such properties for their intended
purposes.
(b) Each of the Borrowers and its subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Borrowers and their subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There
are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of any Borrower, threatened
against or affecting any Borrower or any of its subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect or (ii) that involve this
Agreement, any other Loan Document or the Transactions.
(b) Neither the Company, any other Borrower nor any of their
respective subsidiaries (i) has failed to comply with any applicable
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any applicable Environmental Law, (ii) has become
liable for any Environmental Liability, (iii) has received notice of any claim
with respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability except for such failures, liabilities, receipts or
knowledge that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the
Borrowers and its subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither
any Borrower nor any of its subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Borrowers and its
subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes required
to have been paid by it, except (a) any Taxes that are being contested in good
faith by appropriate proceedings and for which such Borrower or such subsidiary,
as applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed by more than $15,000,000 the fair market value of the assets of such
Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for
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purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the date of the most recent financial statements reflecting such amounts, exceed
by more than $17,000,000 the fair market value of the assets of all such
underfunded Plans.
SECTION 3.11. Disclosure. The Company has made available to
the Lenders all agreements, instruments and corporate or other restrictions to
which it or any of its Subsidiaries is subject, and all other matters known to
it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. None of the reports, financial statements,
certificates or other written information furnished by or on behalf of the
Company or any Subsidiary to the Administrative Agent or any Lender in
connection with the negotiation of the Loan Documents or delivered hereunder or
thereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, the Company represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
SECTION 3.12. Subsidiaries. Schedule 3.12 sets forth as of the
Effective Date a list of all subsidiaries of each Borrower and each Subsidiary
Guarantor and the percentage ownership interest of each such party therein. As
of the Effective Date, the shares of capital stock of such subsidiaries of the
foregoing parties will be fully paid and non-assessable and such shares and
other ownership interests so indicated by Schedule 3.12 will be owned by each
such party, directly or indirectly, free and clear of all Liens other than as
permitted under Section 6.02. The Subsidiaries executing and delivering the
Subsidiary Guarantee Agreement and the Indemnity, Subrogation and Contribution
Agreement on the date hereof constitute all the Material Subsidiaries as of the
date hereof, other than Foreign Subsidiaries.
SECTION 3.13. Insurance. Schedule 3.13 sets forth a
description of all insurance maintained by or on behalf of the Company and its
Subsidiaries as of the Effective Date. As of the Effective Date, all premiums
which have become due in respect of such insurance have been paid.
SECTION 3.14. Federal Reserve Regulations. (a) Neither the
Company nor any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock (as defined in Regulations U and X of the
Board).
(b) No part of the proceeds of the Loans or the Letters of
Credit has been or will be used, whether directly or indirectly, and whether
immediately, incidentally or ultimately, for any purpose which entails a
violation of the provisions of the Regulations of the Board, including, without
limitation, Regulation U or X thereof. Not more than 25% of the assets subject
to the restrictions of Sections 2.11(c) (to the extent applicable to Prepayment
Events referred to in clause (a) of the definition of such term), 6.02, 6.03 and
6.04 will at any time consist of Margin Stock (as defined in Regulations U and X
of the Board).
SECTION 3.15. Year 2000 Compliance. Any reprogramming required
to permit the proper functioning, in and following the year 2000, of (a) the
computer systems of the Company and its Subsidiaries and (b) equipment of such
Persons containing embedded microchips and the testing of all such systems and
equipment, as so reprogrammed, has been or will be substantially completed as of
the Effective Date. The cost to the Company and its Subsidiaries of such
reprogramming and testing and of the reasonably foreseeable consequences of year
2000 to the Company and its Subsidiaries will not result in a Default or a
Material Adverse Effect. Except for such of the reprogramming referred to in the
preceding sentence as may be necessary, the computer and management information
systems of the Company and its Subsidiaries are and, with ordinary course
upgrading and maintenance, will continue for the term of this Agreement to be,
sufficient to permit each Borrower to conduct its businesses without
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Material Adverse Effect. The parties hereto agree that, to the extent the
statements contained in this Section 3.15 relate to the Acquired Assets, such
statements are made to the best of the Company's knowledge.
SECTION 3.16. Security Documents. (a) The Pledge Agreement is
effective to create in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement) and, when the Collateral is
delivered to the Collateral Agent and duly endorsed, the Pledge Agreement shall
create a fully perfected Lien on, and security interest in, all right, title and
interest of the pledgor thereunder in such Collateral, in each case prior and
superior in right to any other Person, other than with respect to Liens that are
permitted by Section 6.02 and have a priority as a matter of law.
(b) The Security Agreement is effective to create in favor of
the Collateral Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Collateral (as defined in the
Security Agreement) and, when financing statements in appropriate form are filed
in the offices specified on Schedule 6 to the Perfection Certificate, such
security interest shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the grantors thereunder in such
Collateral, to the extent a security interest in such Collateral may be
perfected by the filing of financing statements, in each case prior and superior
in right to any other Person, other than with respect to Liens that are
permitted by Section 6.02 and have a priority as a matter of law.
ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date. The obligations of the Lenders
to make Loans and of the Issuing Bank to issue Letters of Credit hereunder on
the initial date on which Loans are to be made or Letters of Credit issued shall
not become effective until the date on which each of the following conditions
has been satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received favorable
written opinions (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of each of (i) Blank Rome Comisky &
McCauley LLP, counsel for certain Loan Parties, substantially in the
form of Exhibit D-1, (ii) Lovell White Durrant, U.K. counsel for the
Agents and the Lenders, substantially in the form of Exhibit D-2, (iii)
Robert Siverd, General Counsel of the Company, substantially in the
form of Exhibit D-3, (iv) Estudio Legal, Spanish counsel for certain
Loan Parties, substantially in the form of Exhibit D-4, (v) Osler,
Hoskin & Harcourt, Canadian counsel for certain Loan Parties,
substantially in the form of Exhibit D-5, and (vi) certain other
foreign counsel reasonably requested by the Administrative Agent. Each
Loan Party hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of the Loan Parties, the authorization of the Transactions and
any other legal matters relating to the Loan Parties, this Agreement,
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the other Loan Documents or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received (i) a
certificate, dated the Effective Date and signed by the President, a
Vice President or a Financial Officer of the Company, confirming (A)
compliance with the conditions set forth in paragraphs (a) and (b) of
Section 4.02, (B) that all governmental, shareholder and third-party
approvals necessary or advisable in connection with the Transactions
(other than approvals required in connection with the Post-Effective
Date Acquisition Transactions that are expected by the Company to be
available when required) have been obtained and are in full force and
effect and (C) that the Company's Existing Credit Agreement has been
terminated and all related loans and obligations have been paid in full
and no other Indebtedness (other than Indebtedness permitted by Section
6.01) is outstanding, and (ii) a certificate in form and substance
satisfactory to the Administrative Agent, dated the Effective Date and
signed by a Financial Officer of the Company confirming that (A) the
conditions set forth in paragraph (i) below have been satisfied and (B)
immediately prior to and after giving effect to the Effective Date
Transactions, no Default, and no material adverse change in the
business, assets, operations or condition, financial or otherwise, of
the Company and its Subsidiaries, taken as a whole, shall have occurred
and be continuing.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Company
hereunder or under any other Loan Document.
(f) The Guarantee Requirement shall be satisfied.
(g) The Collateral Requirement shall be satisfied; provided
that the parties agree that any notation in a shareholder registry that
cannot reasonably be made on or prior to the Effective Date may be made
within 30 days of the Effective Date, and the Company agrees to deliver
to the Administrative Agent, not later than such 30th day, a
certificate of the chief legal officer of the Company certifying that
all such notations shall have been made;
(h) The Collateral Agent shall have received a completed
Perfection Certificate dated the Effective Date and signed by an
executive officer or Financial Officer of the Company, together with
all attachments contemplated thereby, including the results of a search
of the Uniform Commercial Code filings made with respect to the Loan
Parties in the states in which such Person is organized, the states (or
other jurisdictions) in which the chief executive office of each such
Person is located, any offices of such Persons in which records have
been kept relating to accounts receivable and the other jurisdictions
in which Uniform Commercial Code filings are to be made pursuant to
clause (b) of the definition of "Collateral Requirement", together with
copies of the financing statements (or similar documents) disclosed by
such search, and accompanied by evidence satisfactory to the Collateral
Agent that the Liens indicated by such financing statements (or similar
documents) are permitted by Section 6.02 or have been released;
(i) All consents and approvals required to be obtained from
any Governmental Authority or other Person in connection with the
Acquisition Transactions (other than the Post-Effective Date
Acquisition Transactions) shall have been obtained, and all applicable
waiting periods and appeal periods shall have expired, in each case
without the imposition of any burdensome conditions. The Acquisition
Transactions (other than consents and approvals required in connection
with the Post-Effective Date Acquisition Transactions that are expected
to be available when required) shall have been, or substantially
simultaneously with the initial funding of Loans on the Effective Date
shall
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be, consummated in accordance with (i) the Acquisition Documents and
applicable law, without any amendment to or waiver of any material
terms or conditions of the Acquisition Documents not approved by the
Required Lenders and (ii) the information previously provided in the
Confidential Information Memorandum (including the pro forma financial
information contained therein). The Administrative Agent shall have
received copies of the Acquisition Documents and all certificates,
opinions and other documents delivered thereunder, certified by a
Financial Officer as complete and correct; and
(j) The terms on which the Effective Date Transactions shall
have been completed and the capitalization (including Indebtedness) of
the Company and the Subsidiaries after giving effect to the Effective
Date Transactions shall be consistent in all material respects with the
pro forma financial statements and projections provided to the Lenders
prior to the date hereof.
The Administrative Agent shall notify the Company and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Bank to issue Letters of Credit hereunder shall not become effective unless each
of the foregoing conditions is satisfied (or waived pursuant to Section 10.02)
at or prior to 3:00 p.m., New York City time, on July 10, 1999 (and, in the
event such conditions are not so satisfied or waived, the Commitments shall
terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender
to make a Loan on the occasion of any Borrowing, and of the Issuing Bank to
issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:
(a) The representations and warranties of each Loan Party set
forth in each Loan Document shall be true and correct on and as of the
date of such Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default shall have occurred and be
continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
SECTION 4.03. Initial Credit Event for each Borrowing
Subsidiary. The obligation of each Lender to make Loans to or issue Letters of
Credit for the account of any Borrowing Subsidiary is subject to the
satisfaction of the following conditions:
(a) The Administrative Agent (or its counsel) shall have
received such Borrowing Subsidiary's Borrowing Subsidiary Agreement
duly executed by all parties thereto.
(b) The Administrative Agent shall have received a favorable
written opinion of counsel for such Borrowing Subsidiary, substantially
in the form of Exhibit D-6 and covering such other matters relating to
such Borrowing Subsidiary or its Borrowing Subsidiary Agreement as the
Administrative Agent shall reasonably request.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of such Borrowing Subsidiary, the authorization of the
Transactions insofar as they relate to such Borrowing Subsidiary and
any other legal matters relating to such Borrowing Subsidiary, its
Borrowing Subsidiary
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Agreement or such Transactions, all in form and substance satisfactory
to the Administrative Agent and its counsel.
ARTICLE V
Affirmative Covenants
---------------------
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Company covenants and
agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information.
The Company will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the
Company, its audited consolidated balance sheet and related statements
of operations, stockholders' equity and cash flows as of the end of and
for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by Deloitte &
Touche LLP or other independent public accountants of recognized
national standing (without a "going concern" or like qualification or
exception and without any qualification or exception as to the scope of
such audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and
results of operations of the Company and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year of the Company, its consolidated
balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such fiscal quarter and
the then elapsed portion of the fiscal year, setting forth in each case
in comparative form the figures for the corresponding period or periods
of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Company and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of
footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer of
the Company (i) certifying as to whether a Default has occurred and, if
a Default has occurred, specifying the details thereof and any action
taken or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Sections
6.10 and 6.11 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04 and, if any such
change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements
under clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the
extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Company or any
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Subsidiary with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of
said Commission, or with any national securities exchange, or
distributed by the Company to its shareholders generally, as the case
may be; and
(f) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Company or any Subsidiary, or compliance with the
terms of this Agreement, as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.02. Notices of Material Events. The Company will
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Company or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Company and its Subsidiaries in
an aggregate amount exceeding $5,000,000; and
(d) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Company setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Company
will, and will cause each of its Subsidiaries to, do or cause to be done all
things reasonably necessary to preserve, renew and keep in full force and effect
its legal existence and the rights, licenses, permits, privileges, franchises,
patents, copyrights, trademarks and trade names material to the conduct of its
business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.04.
SECTION 5.04. Payment of Obligations. The Company will, and
will cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Company or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The
Company will, and will cause each of its Subsidiaries to, (a) keep and maintain
all property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, (i) insurance in such amounts and
against such risks as are customarily maintained by companies engaged in the
same or similar businesses operating in the same or similar locations and (ii)
all insurance required to be maintained pursuant to the Security Documents. The
Borrowers will furnish to the Lenders, upon request of the Administrative Agent,
information in reasonable detail as to the insurance so maintained.
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SECTION 5.06. Information Regarding Collateral. (a) The
Company will furnish to the Administrative Agent prompt written notice of any
change (i) in any Loan Party's corporate name or in any trade name used to
identify it in the conduct of its business or in the ownership of its
properties, (ii) in the location of any Loan Party's chief executive office, its
principal place of business, any office in which it maintains books or records
relating to Collateral owned by it or any office or facility at which Collateral
owned by it is located (including the establishment of any such new office or
facility), (iii) in any Loan Party's identity or corporate structure or (iv) in
any Loan Party's Federal Taxpayer Identification Number. The Company agrees not
to effect or permit any change referred to in the preceding sentence unless all
filings have been made under the Uniform Commercial Code or otherwise that are
required in order for the Administrative Agent to continue at all times
following such change to have a valid, legal and perfected security interest in
all the Collateral.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause (a) of
Section 5.01, the Company shall deliver to the Administrative Agent a
certificate of a Financial Officer and the chief legal officer of the Company
(i) setting forth the information required pursuant to Sections 1 and 2 of the
Perfection Certificate or confirming that there has been no change in such
information since the date of the Perfection Certificate delivered on the
Effective Date or the date of the most recent certificate delivered pursuant to
this Section and (ii) certifying that all Uniform Commercial Code financing
statements (including fixture filings) or other appropriate recordings or
registrations in shareholder registries or similar requirements, including all
refilings, rerecordings and reregistrations, containing a description of the
Collateral have been filed of record in each governmental, municipal or other
appropriate office in each jurisdiction identified pursuant to clause (i) above
to the extent necessary to protect and perfect the security interests under any
Security Document for a period of not less than 18 months after the date of such
certificate (except as noted therein with respect to any continuation statements
to be filed within such period).
SECTION 5.07. Casualty and Condemnation. The Company (a) will
furnish to the Administrative Agent and the Lenders prompt written notice of any
casualty or other insured damage to any material portion of any Collateral and
(b) will ensure that the Net Proceeds of any such event are collected and
applied in accordance with the applicable provisions of the Security Documents.
SECTION 5.08. Books and Records; Inspection Rights. The
Company will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. The
Company will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
SECTION 5.09. Compliance with Laws. The Company will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.10. Use of Proceeds and Letters of Credit. The
proceeds of the Loans will be used only for general corporate purposes of the
Borrowers, including (i) to repay existing intercompany indebtedness and
Indebtedness outstanding under the Existing Credit Agreement, (ii) to consummate
the Acquisition Transactions in accordance with the terms of the Acquisition
Documents, (iii) to pay fees and expenses in connection with the foregoing and
(iv) to finance future acquisitions. No part of the proceeds of any Loan will be
used, whether
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directly or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations U and X. Letters of Credit will
be issued (i) to support obligations incurred by the Company and the
Subsidiaries in the ordinary course of their businesses and (ii) to support
Indebtedness permitted pursuant to Section 6.01(f).
SECTION 5.11. Collateral and Guarantee Requirements. The
Company will, and will cause each applicable Subsidiary to, execute any and all
further documents, financing statements, agreements and instruments, and take
all further actions (including filing Uniform Commercial Code and other
financing statements) that may be required under applicable law, or that the
Required Lenders, the Administrative Agent or the Collateral Agent may
reasonably request, in order to cause the Guarantee Requirement and the
Collateral Requirement to be satisfied at all times.
SECTION 5.12. Ownership of Subsidiaries. (a) The Company will,
and will cause each of its Subsidiaries to, ensure that all Domestic
Subsidiaries are owned directly or indirectly at all times only by the Company
or one or more other Domestic Subsidiaries and that all of the Equity Interests
of such latter Domestic Subsidiaries are pledged to secure the Obligations.
(b) The Company will, and will cause each of its Subsidiaries
to, ensure that any Foreign Subsidiary acquired in connection with the
Acquisition Transactions is owned directly or indirectly at all times by the
Company or a Domestic Subsidiary and that all of the Equity Interests of such
Domestic Subsidiary are pledged to secure the Obligations.
SECTION 5.13. Interest Rate Protection. As promptly as
practicable, and in any event within 90 days after the Effective Date, the
Company will enter into, and thereafter for a period of not less than three
years will maintain in effect, one or more interest rate protection agreements
on such terms and with such parties as shall be reasonably satisfactory to the
Administrative Agent, the effect of which shall be to fix or limit the interest
cost to the Borrowers with respect to at least 50% of the outstanding Term
Loans.
ARTICLE VI
Negative Covenants
------------------
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, the Company covenants and agrees with
the Lenders that:
SECTION 6.01. Subsidiary Indebtedness. The Company will not
permit any Subsidiary to create, incur, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness created hereunder and under the other Loan
Documents;
(b) Indebtedness existing on the date hereof and set forth in
Schedule 6.01 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof or shorten the term thereof;
(c) Indebtedness of any Subsidiary to the Company or any other
Subsidiary; provided, (i) in the case of any such Indebtedness in an
amount greater than $1,000,000 owed to the Company or any Domestic
Subsidiary, that such Indebtedness is evidenced by a promissory note
that has been pledged as security for the Obligations under the Pledge
Agreement, and (ii) in the case of any such Indebtedness in an amount
greater than $1,000,000 owed by a Domestic Subsidiary to any Foreign
Subsidiary, that such
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Indebtedness is subordinated to the Obligations on terms satisfactory
to the Administrative Agent;
(d) Indebtedness of any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets
of such Subsidiary, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition
thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof; provided that (i) such Indebtedness is incurred prior to or
within 90 days after such acquisition or the completion of such
construction or improvement and (ii) the aggregate principal amount of
Indebtedness permitted by this clause (d) shall not exceed $25,000,000
at any time outstanding;
(e) Indebtedness of any Person that becomes a Subsidiary after
the date hereof; provided that (i) such Indebtedness exists at the time
such Person becomes a Subsidiary and is not created in contemplation of
or in connection with such Person becoming a Subsidiary and (ii) the
aggregate principal amount of Indebtedness permitted by this clause (e)
shall not exceed $30,000,000 at any time outstanding;
(f) Indebtedness of BICC Holdings New Zealand Ltd. in an
aggregate principal amount not exceeding $20,000,000 at any time
outstanding;
(g) other secured Indebtedness in an aggregate principal
amount for all the Subsidiaries not exceeding $15,000,000 at any time
outstanding;
(h) other unsecured Indebtedness (other than Indebtedness
permitted by paragraph (f) above) in an aggregate principal amount for
all the Subsidiaries that, together with the aggregate principal amount
of all Indebtedness permitted by clause (g) of this Section and the
aggregate sale price of all arrangements permitted by Section 6.03,
does not exceed $45,000,000 at any time outstanding; and
(i) Indebtedness of BICC General Cables (USA), LLC in an
aggregate amount not exceeding $9,000,000 in connection with the
Industrial Development Revenue Bonds, Series 1991, among the Industrial
Development Board of the City of Jackson, Tennessee, BICC Cables
Corporation, First America National Bank and Chemical Securities Inc.
SECTION 6.02. Liens. The Company will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(a) Permitted Encumbrances;
(b) Liens created under the Loan Documents;
(c) any Lien on any property or asset of the Company or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02;
provided that (i) such Lien shall not apply to any other property or
asset of the Company or any Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof;
(d) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a
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Subsidiary; provided that (i) such Lien shall not have been created in
contemplation of or in connection with such acquisition or such Person
becoming a Subsidiary, as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Company or any Subsidiary
and (iii) such Lien shall secure only those obligations which it
secures on the date of such acquisition or the date such Person becomes
a Subsidiary, as the case may be, and extensions, renewals and
replacements thereof that do not increase the outstanding principal
amount thereof;
(e) Liens on fixed or capital assets acquired, constructed or
improved by the Company or any Subsidiary; provided that (i) such
security interests secure Indebtedness permitted by clause (d) of
Section 6.01, (ii) such security interests and the Indebtedness secured
thereby are incurred prior to or within 90 days after such acquisition
or the completion of such construction or improvement, (iii) the
Indebtedness secured thereby does not exceed 90% of the cost of
acquiring, constructing or improving such fixed or capital assets and
(iv) such security interests shall not apply to any other property or
assets of the Company or any Subsidiary;
(f) Liens on property or assets of any Subsidiary securing
Indebtedness of such Subsidiary owing to the Company or any other
Subsidiary; provided that such Indebtedness is permitted by Section
6.01(c);
(g) Liens arising by way of retention of title of goods by the
supplier of goods where such goods are supplied subject to retention of
title and are acquired in the ordinary course of business of the
Company or any Subsidiary; and
(h) other Liens securing obligations in an aggregate principal
amount at any time outstanding not exceeding $15,000,000.
Notwithstanding the foregoing or any other provision in this Agreement or any
other Loan Document to the contrary, the Company will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Lien on any
Equity Interest or intercompany Indebtedness other than Liens created under the
Loan Documents to secure the Obligations or Liens permitted by Section 6.02(f).
SECTION 6.03. Sale and Lease-Back Transactions. The Company
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, enter into any arrangement with any Person (other than a Wholly
Owned Subsidiary) whereby it shall sell or transfer any property used or useful
in its business, whether now owned or hereafter acquired, and thereafter rent or
lease such property or other property which it intends to use for substantially
the same purpose or purposes as the property being sold or transferred, except
for any such arrangement or arrangements with an aggregate sale price in any
fiscal year not exceeding $5,000,000; provided that the sum of (a) the aggregate
sale price of the assets sold in all such arrangements and (b) the aggregate
outstanding principal amount of all Indebtedness permitted by clauses (g) and
(h) of Section 6.01 shall at no time exceed $45,000,000.
SECTION 6.04. Fundamental Changes. (a) The Company will not,
and will not permit any Material Subsidiary to, merge into or consolidate with
any other Person, or permit any other Person to merge into or consolidate with
it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired), or liquidate or dissolve, except that, if at the
time thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing and the Collateral Requirement and the Guarantee
Requirement shall be satisfied, (i) any Person may merge into the Company in a
transaction in which the Company is the surviving corporation, (ii) any Person
(other than the Company) may merge into any Material Subsidiary in a transaction
in which the surviving entity is a Subsidiary, (iii) any Material Subsidiary may
sell, transfer, lease or otherwise dispose of its assets to the Company or to
another Material
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Subsidiary and (iv) any Material Subsidiary may liquidate or dissolve if the
Company determines in good faith that such liquidation or dissolution is in the
best interests of the Company and is not materially disadvantageous to the
Lenders; provided that any such merger involving a Person that is not a Wholly
Owned Material Subsidiary immediately prior to such merger shall not be
permitted unless also permitted by Section 6.05; provided further that any
merger described in clause (i) or (ii) with any Person that is not a Subsidiary
shall be permitted only if (x) such Person is engaged in substantially the same
business as the Company or any Subsidiary or another business reasonably related
or incidental thereto and (y) the Company would be in compliance on a pro forma
basis with the covenants set forth in Sections 6.10 and 6.11 as of the last day
of the fiscal quarter immediately preceding the date of such merger, as if such
merger had occurred on the first day of the four fiscal quarter period ending on
such date.
(b) Except for the issuance of Equity Interests in connection
with transactions permitted by Section 6.05, the Company will not permit any
Subsidiary to issue any Equity Interests or Rights other than to the Company or
another Subsidiary (and the Equity Interests or Rights so issued shall be
pledged to the Collateral Agent to secure the Obligations to at least the same
extent as the Equity Interests of such Subsidiary or Rights outstanding prior to
such issuance).
(c) The Company will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Company and its Subsidiaries on the date
of this Agreement or by companies included in the Acquired Assets and businesses
reasonably related thereto.
SECTION 6.05. Investments, Loans, Advances, Guarantees and
Acquisitions. The Company will not, and will not permit any of its Subsidiaries
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a Wholly Owned Subsidiary prior to such merger) any Equity
Interests, evidences of indebtedness or other securities (including any options,
warrants or other rights to acquire any of the foregoing) of, make or permit to
exist any loans or advances to, Guarantee any obligations of, or make or permit
to exist any investment or any other interest in, any other Person, or purchase
or otherwise acquire (in one transaction or a series of transactions) any assets
of any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments by the Company in the capital stock of its
Subsidiaries;
(c) loans or advances made by the Company to any Subsidiary or
by any Subsidiary to the Company or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section
6.01;
(e) Guarantees by the Company of obligations of any Person
(other than a Subsidiary) in an aggregate amount for all such
Guarantees not exceeding $5,000,000 at any time outstanding;
(f) Guarantees by the Company of obligations of any Subsidiary
entered into in the ordinary course of business;
(g) any acquisition of the Equity Interests or substantially
all of the assets of any Person that is not a Subsidiary by the Company
or any of its Subsidiaries; provided that (i) at the time thereof and
after giving effect thereto no Default shall have occurred and be
continuing, (ii) the Company would be in compliance with Sections 6.10
and 6.11 for the most recent calculation period and as of the last day
thereof as if such acquisition had been consummated at the beginning of
such calculation period, (iii) any acquired
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business shall be of the type conducted by the Company and its
Subsidiaries on the date of execution of this Agreement or by companies
included in the Acquired Assets and businesses reasonably related
thereto and (iv) such acquisition will result in such Person becoming a
Subsidiary;
(h) investments by General Cable Industries, Inc. in an
aggregate amount not exceeding $10,000,000 in a joint venture known as
General Photonics LLC;
(i) the acquisition of the Acquired Assets;
(j) a Guarantee by the Company of the Indebtedness of the
Industrial Development Board of the City of Jackson under the bonds
referred to in Section 6.01(i) above (or of a certain guaranty by BICC
plc covering such Indebtedness); and
(k) other investments by the Company or its Subsidiaries in
any Person (other than a Subsidiary) in an aggregate amount for all
Persons not exceeding $25,000,000.
SECTION 6.06. Hedging Agreements. The Company will not, and
will not permit any of its Subsidiaries to, enter into any Hedging Agreement,
other than Hedging Agreements entered into in the ordinary course of business to
hedge or mitigate risks to which the Company or any Subsidiary is exposed in the
conduct of its business or the management of its liabilities, and not for
speculative purposes, and any Hedging Agreement entered into pursuant to Section
5.13.
SECTION 6.07. Restricted Payments. The Company will not, and
will not permit any of its Subsidiaries to, declare or make, or agree to pay or
make, directly or indirectly, any Restricted Payment, except that, so long as no
Default shall have occurred and be continuing or would result therefrom (a) the
Company may (i) declare and pay dividends with respect to its capital stock
payable solely in additional shares of its common stock or in cash and (ii)
repurchase or redeem shares of its capital stock in an aggregate amount at any
time for all such cash dividends, repurchases and redemptions after the date
hereof not greater than $50,000,000 plus 25% of the Company's consolidated net
income from December 31, 1998, through the end of the most recently ended fiscal
quarter of the Company at such time (the sum of such amounts being called the
"Dividend Basket"); provided that if the Leverage Ratio shall be less than 2.50
to 1.00 for a period of not less than 90 consecutive days including the last
days of two fiscal quarters of the Company, then 50%, rather than 25%, of the
Company's consolidated net income for all subsequent periods shall be added to
the Dividend Basket, (b) Subsidiaries may declare and pay dividends ratably with
respect to their capital stock and (c) the Company may make Restricted Payments
pursuant to and in accordance with stock option plans or other benefit plans for
management or employees of the Company and its Subsidiaries.
SECTION 6.08. Transactions with Affiliates. The Company will
not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) in the ordinary course of business at prices and
on terms and conditions not less favorable to the Company or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties,
(b) transactions between or among the Company and its Subsidiaries not involving
any other Affiliate and (c) any Restricted Payment permitted by Section 6.07.
SECTION 6.09. Restrictive Agreements. The Company will not,
and will not permit any of its Subsidiaries to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of the
Company or any Subsidiary to create, incur or permit to exist any Lien upon any
of its property or assets, or (b) the ability of any Subsidiary to pay dividends
or other distributions with respect to any shares of its capital stock or to
make or repay loans or advances to the
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Company or any other Subsidiary or to Guarantee Indebtedness of the Company or
any other Subsidiary; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by this Agreement or any other
Loan Document, (ii) the foregoing shall not apply to restrictions and conditions
existing on the date hereof identified on Schedule 6.09 (but shall apply to any
extension or renewal of, or any amendment or modification expanding the scope
of, any such restriction or condition), (iii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (iv) clause (a) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness and (v) clause
(a) of the foregoing shall not apply to customary provisions in leases and other
contracts restricting the assignment thereof.
SECTION 6.10. Leverage Ratio. The Company will not permit
the Leverage Ratio at any time during any of the periods set forth below to
exceed the ratio set forth opposite such period:
Period Ratio
------ -----
9/30/99 through 6/30/00 4.25:1.00
7/1/00 through 6/30/01 3.75:1.00
7/1/01 through 6/30/02 3.25:1:00
7/1/02 through 6/30/03 2.75:1.00
7/1/03 and thereafter 2.50:1.00
SECTION 6.11. Interest Coverage Ratio. The Company will not
permit the Interest Coverage Ratio for any period of four fiscal quarters ending
during any of the periods set forth below to be less than this ratio set forth
opposite such period:
Period Ratio
------ -----
9/30/99 through 6/30/00 2.75:1.00
7/1/00 through 6/30/01 3.25:1.00
7/1/01 through 6/30/02 3.75:1.00
7/1/02 through 6/30/03 4.25:1.00
7/1/03 and thereafter 4.50:1.00
SECTION 6.12. Amendment of Material Documents. The Company
will not, and will not permit any Subsidiary to, amend, modify or waive any of
its rights under (a) its certificate of incorporation, by-laws or other
organizational documents or (b) any Acquisition Document, in each case, except
for amendments, modifications or waivers that could not reasonably be expected
to result in a Material Adverse Effect. Notwithstanding the foregoing, the
Company will not, and will not permit any Subsidiary to, amend or modify its
certificate of incorporation, by-laws or other organizational document in order
to provide that any partnership interest or limited liability company interest
in any such entity is a "security" governed by Article 8 of the New York Uniform
Commercial Code (or of any comparable article of the Uniform Commercial Code of
any other state) as in effect on the Effective Date.
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ARTICLE VII
Events of Default
-----------------
If any of the following events ("Events of Default") shall
occur:
(a) any Borrower shall fail to pay any principal of any Loan
or any reimbursement obligation in respect of any LC Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement or any other Loan
Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of the Company or any Subsidiary in or in connection with any
Loan Document or any amendment or modification hereof or thereof or
waiver hereunder or thereunder, or in any report, certificate,
financial statement or other document furnished pursuant to or in
connection with any Loan Document or any amendment or modification
hereof or thereof or waiver hereunder or thereunder, shall prove to
have been incorrect when made or deemed made;
(d) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to
any Borrower's existence) or 5.10 or in Article VI;
(e) the Company or any Subsidiary shall fail to observe or
perform any covenant, condition or agreement contained in any Loan
Document (other than those specified in clause (a), (b) or (d) of this
Article), and such failure shall continue unremedied for a period of 30
days after notice thereof from the Administrative Agent to the Company
(which notice will be given at the request of any Lender);
(f) the Company or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become
due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (any applicable grace or cure period having expired)
the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to
become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity; provided that this
clause (g) shall not apply to secured Indebtedness that becomes due as
a result of the voluntary sale or transfer of the property or assets
securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of any Borrower or any
Material Subsidiary or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for any Borrower or any Material
Subsidiary thereof or for a substantial part of its assets, and, in any
such case, such proceeding or
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petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;
(i) any Borrower or any Material Subsidiary thereof shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for any Borrower or any subsidiary
thereof or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of
the foregoing;
(j) the Company or any Material Subsidiary thereof shall
become unable, admit in writing or fail generally to pay its debts as
they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $10,000,000 shall be rendered against the
Company, any Material Subsidiary or any combination thereof and the
same shall remain undischarged for a period of 45 consecutive days
during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to attach or levy upon
any assets of the Company or any Material Subsidiary to enforce any
such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in liability
of the Company and the Subsidiaries in an aggregate amount exceeding
(i) $5,000,000 in any year or (ii) $10,000,000 for all periods;
(m) the Company or any Subsidiary Guarantor shall fail to
observe or perform any covenant, condition or agreement contained in
Article IX or in the Subsidiary Guarantee Agreement, as the case may
be, or the guarantee of the Company hereunder or of any Subsidiary
Guarantor under the Subsidiary Guarantee Agreement shall not be (or
shall be claimed by the Company or any Subsidiary Guarantor not to be)
valid or in full force and effect;
(n) a Change in Control shall occur; or
(o) any Lien purported to be created under any Security
Document shall cease to be, or shall be asserted by the Company or any
Subsidiary not to be, a valid and perfected Lien on any Collateral,
with the priority required by the applicable Security Document, except
(i) as a result of the sale or other disposition of the applicable
Collateral in a transaction permitted under the Loan Documents or (ii)
as a result of the Administrative Agent's failure to maintain
possession of any stock certificates, promissory notes or other
instruments delivered to it under the Pledge Agreement; provided that
no such cessation shall give rise to an Event of Default unless such
cessation (x) affects Collateral that is or should be subject to a Lien
in favor of the Collateral Agent having an aggregate value in excess of
$5,000,000 or (y) is not corrected upon request by the Collateral Agent
upon reasonable notice;
then, and in every such event (other than an event with respect to any Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Company, take either or
both of the following actions, at the same or different
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times: (i) terminate the Commitments, and thereupon the Commitments shall
terminate immediately, and (ii) declare the Loans then outstanding to be due and
payable in whole or in part (in which case any principal not so declared to be
due and payable may thereafter be declared to be due and payable), and thereupon
the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Borrowers
accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Borrower; and in case of any event with respect to any
Borrower described in clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrowers accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Borrower.
ARTICLE VIII
The Agents
----------
In order to expedite the transactions contemplated by this
Agreement, Chase is hereby appointed to act as Administrative Agent and
Collateral Agent, and CMIL is hereby appointed to act as London Agent, on behalf
of the Lenders and the Issuing Bank. Each of the Lenders, each assignee of any
such Lender and the Issuing Bank hereby irrevocably authorizes the Agents to
take such actions on behalf of such Lender or assignee or the Issuing Bank and
to exercise such powers as are delegated to the Agents by the terms of the Loan
Documents, together with such actions and powers as are reasonably incidental
thereto. The Administrative Agent and, to the extent expressly provided herein,
the London Agent are hereby expressly authorized by the Lenders and the Issuing
Bank, without hereby limiting any implied authority, (a) to receive on behalf of
the Lenders and the Issuing Bank all payments of principal of and interest on
the Loans, all payments in respect of L/C Disbursements and all other amounts
due to the Lenders hereunder, and promptly to distribute to each Lender or the
Issuing Bank its proper share of each payment so received; (b) to give notice on
behalf of each of the Lenders to the Company of any Event of Default specified
in this Agreement of which the Administrative Agent has actual knowledge
acquired in connection with its agency hereunder; and (c) to distribute to each
Lender copies of all notices, financial statements and other materials delivered
by the Company or any other Loan Party pursuant to this Agreement or the other
Loan Documents as received by the Administrative Agent. Without limiting the
generality of the foregoing, if all applicable mandatory prepayments under
Section 2.11(c) shall have been made, the Administrative Agent and the
Collateral Agent are hereby expressly authorized to release any Subsidiary
Guarantor from its obligations hereunder and under the other Loan Documents and
release the security interest in any Collateral, in the event that all the
capital stock of such Guarantor, or such Collateral, shall be sold, transferred
or otherwise disposed of to a Person that is not an Affiliate of the Company in
a transaction permitted by Section 6.04 hereof, and to execute any and all
documents (including releases) with respect to the Collateral and the rights of
the Secured Parties with respect thereto, in each case as contemplated by and in
accordance with the provisions of this Agreement and the other Loan Documents.
With respect to the Loans made by it hereunder, each Agent in
its individual capacity and not as Agent shall have the same rights and powers
as any other Lender and may exercise the same as though it were not an Agent,
and the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Company or any Subsidiary or
other Affiliate thereof as if it were not an Agent.
The Agents shall not have any duties or obligations except
those expressly set forth in the Loan Documents. Without limiting the generality
of the foregoing, (a) no Agent shall be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) no Agent shall have any duty to take any discretionary action or
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exercise any discretionary powers, except discretionary rights and powers
expressly contemplated by the Loan Documents that the Agent is required to
exercise upon receipt of notice in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 10.02), and (c) except as expressly set
forth in the Loan Documents, no Agent shall have any duty to disclose, and no
Agent shall be liable for the failure to disclose, any information relating to
the Company or any of its Subsidiaries that is communicated to or obtained by
the institution serving as Agent or any of its Affiliates in any capacity. No
Agent shall be liable for any action taken or not taken by it with the consent
or at the request of the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary under the circumstances as provided in Section
10.02) or in the absence of its own gross negligence or wilful misconduct. No
Agent shall be deemed to have knowledge of any Default unless and until written
notice thereof is given to such Agent by a Borrower or a Lender, and no Agent
shall be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii)
the performance or observance of any of the covenants, agreements or other terms
or conditions set forth herein or therein, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not incur
any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. Each Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for any
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
Each Agent may perform any and all its duties and exercise its
rights and powers by or through any one or more sub-agents appointed by such
Agent. Each Agent and any such sub-agent may perform any and all its duties and
exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of each Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as Agent.
Subject to the appointment and acceptance of a successor Agent
as provided in this paragraph, any Agent may resign at any time by notifying the
Lenders, the Issuing Bank and the Company. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Company, to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders and the Issuing Bank, appoint a successor Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After the
Agent's resignation hereunder, the provisions of this Article and Section 10.03
shall continue in effect for the benefit of such retiring Agent, its sub-agents
and their respective Related Parties in respect of any actions taken or omitted
to be taken by any of them while it was acting as Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in
the amount of its pro rata share (based on the amount of its Loans and available
Commitments, other than
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Designated Foreign Currency Commitments, hereunder) of any expenses incurred for
the benefit of the Lenders by the Agents, including counsel fees and
compensation of agents and employees paid for services rendered on behalf of the
Lenders, that shall not have been reimbursed by the Company and (b) to indemnify
and hold harmless each Agent and any of its Related Parties, on demand, in the
amount of such pro rata share, from and against any and all liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by or asserted against it in its capacity as Agent or any of them
in any way relating to or arising out of this Agreement or any other Loan
Document or action taken or omitted by it or any of them under this Agreement or
any other Loan Document, to the extent the same shall not have been reimbursed
by the Company or any other Loan Party; provided that no Lender shall be liable
to an Agent or any such other indemnified Person for any portion of such
liabilities, taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements that are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or wilful misconduct of such Agent or any of its directors,
officers, employees or agents. Each Revolving Credit Lender agrees to reimburse
each of the Issuing Bank and its directors, officers, employees and agents, in
each case, to the same extent and subject to the same limitations as provided
above for the Agents.
Each Lender acknowledges that it has, independently and
without reliance upon the Agents or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or related agreement
or any document furnished hereunder or thereunder.
ARTICLE IX
Guarantee
---------
In order to induce the Lenders to extend credit hereunder, the
Company hereby irrevocably and unconditionally guarantees, as a primary obligor
and not merely as a surety, the Obligations. The Company further agrees that the
due and punctual payment of the Obligations may be extended or renewed, in whole
or in part, without notice to or further assent from it, and that it will remain
bound upon its Guarantee hereunder notwithstanding any such extension or renewal
of any Obligation. Each and every default in payment of the principal of and
premium, if any, or interest on any Obligation shall give rise to a separate
cause of action hereunder, and separate suits may be brought hereunder as each
cause of action arises.
The Company waives presentment to, demand of payment from and
protest to any Borrowing Subsidiary of any of the Obligations, and also waives
notice of acceptance of its obligations and notice of protest for nonpayment.
The obligations of the Company hereunder shall not be affected by (a) the
failure of any Secured Party to assert any claim or demand or to enforce any
right or remedy against any Loan Party under the provisions of this Agreement,
any other Loan Document or otherwise; (b) any extension or renewal of any of the
Obligations; (c) any rescission, waiver, amendment or modification of, or
release from, any of the terms or provisions of this Agreement, any Borrowing
Subsidiary Agreement or any other Loan Document or agreement; (d) the release of
(or the failure to perfect a security interest in) any security held by any
Secured Party for the performance of the Obligations or any of them; (e) the
failure or delay of any Secured Party to exercise any right or remedy against
any other guarantor of the Obligations; (f) the failure of any Secured Party to
assert any claim or demand or to enforce any remedy under any Loan Document, any
guarantee or any other agreement or
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instrument; (g) any default, failure or delay, wilful or otherwise, in the
performance of the Obligations; or (h) any other act, omission or delay to do
any other act which may or might in any manner or to any extent vary the risk of
the Company or otherwise operate as a discharge of the Company as a matter of
law or equity or which would impair or eliminate any right of the Company to
subrogation.
The Company further agrees that its agreement hereunder
constitutes a promise of payment when due (whether or not any bankruptcy or
similar proceeding shall have stayed the accrual or collection of any of the
Obligations or operated as a discharge thereof) and not merely of collection,
and waives any right to require that any resort be had by any Secured Party to
any balance of any deposit account or credit on the books of any Secured Party
in favor of any Borrower or any other Person.
The obligations of the Company hereunder shall not be subject
to any reduction, limitation, impairment or termination for any reason, and
shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever, by reason of the invalidity, illegality or
unenforceability of the Obligations, any impossibility in the performance of the
Obligations or otherwise.
The Company further agrees that its obligations hereunder
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by any Secured Party upon the bankruptcy or reorganization
of any Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Secured Party may have at law or in equity against the
Company by virtue hereof, upon the failure of any Borrowing Subsidiary to pay
any Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, the Company hereby
promises to and will, upon receipt of written demand by any Agent, forthwith
pay, or cause to be paid, to the Administrative Agent for distribution to the
Secured Parties in cash an amount equal to the sum of (i) the unpaid principal
amount of such Obligations then due, (ii) accrued and unpaid interest and fees
on such Obligations and (iii) all other monetary Obligations then due. The
Company further agrees that if payment in respect of any Obligation shall be due
in a currency other than Dollars and/or at a place of payment other than New
York and if, by reason of any Change in Law, disruption of currency or foreign
exchange markets, war or civil disturbance or similar event, payment of such
Obligation in such currency or at such place of payment shall be impossible or,
in the judgment of any Secured Party, not consistent with the protection of its
rights or interests, then, at the election of such Secured Party, the Company
shall make payment of such Obligation in Dollars (based upon the applicable
Exchange Rate in effect on the date of payment) and/or in New York, and shall
indemnify such Secured Party against any losses or expenses that it shall
sustain as a result of such alternative payment.
Upon payment in full by the Company of any Obligation, each
Lender shall, in a reasonable manner, assign the amount of such Obligation owed
to it and so paid to the Company, such assignment to be pro tanto to the extent
to which the Obligation in question was discharged by the Company, or make such
disposition thereof as the Company shall direct (all without recourse to any
Secured Party and without any representation or warranty by any Secured Party).
Upon payment by the Company of any sums as provided above, all
rights of Company against any Borrowing Subsidiary arising as a result thereof
by way of right of subrogation or otherwise shall in all respects be
subordinated and junior in right of payment to the prior indefeasible payment in
full of all the Obligations owed by such Borrowing Subsidiary to the Secured
Parties.
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Nothing shall discharge or satisfy the liability of the
Company hereunder except the full performance and payment of the Obligations.
Each reference herein to any Secured Party shall be deemed to
include their or its successors and assigns, in whose favor the provisions of
this Guarantee shall also inure.
ARTICLE X
Miscellaneous
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SECTION 10.01. Notices. Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to any Borrower, to it in care of the Company at 4
Tesseneer Drive, Highland Heights, KY 41076-9753, Attention of the
Chief Financial Officer (Telecopy No. (606) 572-8011);
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase Manhattan Plaza, 8th
Floor, New York, New York 10081, Attention of Janet Belden (Telecopy
No. (212) 552-5658, with a copy to The Chase Manhattan Bank, 10 South
LaSalle Street, Chicago, IL 60603, Attention of Jon Hinard (Telecopy
No. (312) 807-4077);
(c) if to the London Agent, to it at Chase Manhattan
International Limited, Trinity Tower, 9 Thomas More Street, London,
England E19YT Attention of Loans Agency Division (Telecopy No.
011-44-171-777-2360); with a copy to the Administrative Agent as
provided in paragraph (b) above;
(d) if to the Issuing Bank, to it at The Chase Manhattan Bank,
Attention of Janet Belden (Telecopy No. (212) 552-5658);
(e) if to the Swingline Lender, to it at The Chase Manhattan
Bank, Attention of Janet Belden (Telecopy No. (212) 552-5658); and
(f) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or delay by
the Administrative Agent, the Issuing Bank or any Lender in exercising any right
or power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing
Bank and the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of any Loan Document or consent to any departure by
any Loan Party therefrom shall in any event be effective unless the same shall
be permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for
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which given. Without limiting the generality of the foregoing, the making of a
Loan or issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or the
Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any Borrowing Subsidiary
Agreement nor any other Loan Document (other than any Designated Foreign
Currency Supplement) nor any provision hereof or thereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Company and the Required Lenders or by the Company and the
Administrative Agent with the consent of the Required Lenders (and, in the case
of a Borrowing Subsidiary Agreement, the applicable Borrowing Subsidiary) or, in
the case of any other Loan Document, pursuant to an agreement or agreements in
writing entered into by the applicable Agent and the Loan Party or Loan Parties
that are parties thereto, in each case with the consent of the Required Lenders;
provided that no such agreement shall (i) increase any Commitment of any Lender
without the written consent of such Lender, (ii) reduce the principal amount of
any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the date of any scheduled payment of the principal
amount of any Loan or LC Disbursement, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) change Section 2.18(b) or (c) in a
manner that would alter the pro rata sharing of payments required thereby
without the written consent of each Lender (it being understood that the
addition of new tranches of loans or commitments that may be extended under this
Agreement shall not be deemed to alter such pro rata sharing of payments), (v)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision of any Loan Document specifying the number or
percentage of Lenders (or Lenders of any Class) required to waive, amend or
modify any rights thereunder or make any determination or grant any consent
thereunder, without the written consent of each Lender (or each Lender of such
Class, as the case may be) (except, in each case, to provide for new tranches of
loans or commitments that may be extended under this Agreement), (vi) release
the Company from, or limit or condition its obligations under, Article IX, or
release all or substantially all of the Subsidiary Guarantors from, or limit or
condition their obligations under, the Subsidiary Guarantee Agreement, in each
case without the written consent of each Lender, (vii) release all or
substantially all the Collateral from the Liens of the Security Documents
without the written consent of each Lender, (viii) change any provisions of any
Loan Document in a manner that by its terms adversely affects the rights in
respect of payments due to Lenders holding Loans of any Class differently than
those of Lenders holding Loans of any other Class without the written consent of
Lenders holding a majority in interest of the outstanding Loans and unused
Commitments of each adversely affected Class or (ix) change the rights of the
Tranche B Lenders to decline mandatory prepayments as provided in Section 2.11
without the written consent of Tranche B Lenders holding a majority of the
outstanding Tranche B Loans; provided further that (A) no such agreement shall
amend, modify or otherwise affect the rights or duties of any Agent, the Issuing
Bank or the Swingline Lender hereunder or under any other Loan Document without
the prior written consent of such Agent, the Issuing Bank or the Swingline
Lender, as the case may be, and (B) any waiver, amendment or modification of
this Agreement that by its terms affects the rights or duties under this
Agreement of the Revolving Lenders (but not the Tranche A Lenders and Tranche B
Lenders), the Tranche A-1 Lenders (but not the Revolving Lenders, Tranche A-2
Lenders and Tranche B Lenders), the Tranche A-2 Lenders (but not the Revolving
Lenders, Tranche A-1 Lenders and Tranche B Lenders) or the Tranche B Lenders
(but not the Revolving Lenders and Tranche A Lenders) may be effected by an
agreement or agreements in writing entered into by the Company and requisite
percentage in interest of the affected Class of Lenders. No Designated Foreign
Currency Supplement may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by each of the parties thereto.
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(c) Notwithstanding the foregoing, any Security Document may,
and upon the request of the Company shall, be amended, modified or terminated,
without the necessity of any further approval by the Lenders, in order to effect
the release of the Liens granted under the Security Documents with respect to
any Collateral (i) that is being sold or otherwise disposed of to a Person other
than the Company or a Subsidiary in a transaction permitted by this Agreement or
(ii) that is being released as contemplated by Section 10.14. The Lenders hereby
expressly authorize the Collateral Agent to, and the Collateral Agent hereby
agrees to, execute all such instruments and documents the Company may reasonably
request to effectuate the foregoing, provided that any such execution and
delivery shall be at the Company's expense and shall be without recourse to
representation or warranty by the Collateral Agent.
SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The
Company shall pay (i) all reasonable out-of-pocket expenses incurred by the
Agents and their Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Agents, in connection with the syndication of
the credit facilities provided for herein, the preparation and administration of
this Agreement or the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket expenses incurred by any
Agent, the Issuing Bank or any Lender, including the fees, charges and
disbursements of any counsel (including the allocated costs of internal counsel,
if any) for any Agent, the Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with any Loan Document,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.
(b) The Company shall indemnify each Agent, the Issuing Bank
and each Lender, and each Related Party of any of the foregoing Persons (each
such Person being called an "Indemnitee") against, and hold each Indemnitee
harmless from, any and all losses, claims, taxes, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
(including the allocated costs of internal counsel, if any) for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of this Agreement, any
other Loan Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto or thereto of their respective
obligations hereunder or thereunder or the consummation of the Transactions or
any other transactions contemplated hereby or thereby, (ii) any Loan or Letter
of Credit or the use of the proceeds therefrom (including any refusal by the
Issuing Bank to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by the
Company or any of its Subsidiaries, or any Environmental Liability related in
any way to the Company or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Company fails to pay any amount
required to be paid by it to any Agent, the Issuing Bank or the Swingline Lender
under paragraph (a) or (b) of this Section, each Lender severally agrees to pay
to such Agent, the Issuing Bank or the Swingline Lender, as the case may be,
such Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related
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expense, as the case may be, was incurred by or asserted against such Agent, the
Issuing Bank or the Swingline Lender in its capacity as such. For purposes
hereof, a Lender's "pro rata share" shall be determined based upon its share of
the sum (without duplication) of the total Revolving Exposures, outstanding Term
Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, no Borrower
shall assert, and each Borrower hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement, any other Loan Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or
Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 10.04. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto (including any Borrowing Subsidiaries) and their respective successors
and assigns permitted hereby (including any Affiliate of the Issuing Bank that
issues any Letter of Credit), except that no Borrower may assign or otherwise
transfer any of its rights or obligations hereunder or under any Borrowing
Subsidiary Agreement without the prior written consent of each Lender (and any
attempted assignment or transfer by any Borrower without such consent shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Bank that issues any Letter of Credit) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans or other amounts at the time owing to
it); provided that (i) except in the case of an assignment to a Lender, an
Affiliate of a Lender or a Related Fund of any Lender, each of the Company and
the Administrative Agent (and (A) in the case of an assignment of all or a
portion of a Tranche 1 Revolving Commitment or any Lender's obligations in
respect of its LC Exposure or Swingline Exposure, the Issuing Bank and the
Swingline Lender and (B) in the case of an assignment of all or a portion of a
Tranche 2 Revolving Commitment or any Lender's obligations in respect of its
Designated Foreign Currency Exposure, each Fronting Lender) must give their
prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) except in the case of an assignment to a Lender, an
Affiliate of a Lender or a Related Fund of any Lender or an assignment of the
entire remaining amount of the assigning Lender's Commitments and outstanding
Loans, the amount of the Commitments and outstanding Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $2,500,000 unless each of the
Company and the Administrative Agent otherwise consent, (iii) the parties to
each assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500 (it being understood that contemporaneous assignments to five or less
Related Funds of a Lender shall be subject to one $3,500 processing and
recordation fee), and (iv) the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire; and
provided further that any consent of the Company otherwise required under this
paragraph shall not be required if an Event of Default has occurred and is
continuing. Subject to acceptance and recording thereof pursuant to paragraph
(d) of this Section, from and after the effective date specified in each
Assignment and Acceptance the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the
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extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 10.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of each Borrower, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrowers, the Administrative Agent,
the Issuing Bank and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Company, the Issuing Bank and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of any Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrowers, the
Administrative Agent, the Issuing Bank and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.02(b) that affects such
Participant. Subject to paragraph (f) of this Section, each Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and
2.17 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 10.08 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.18(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Company's prior written consent. A Participant that would be a Foreign Lender if
it were a Lender shall not be entitled to the benefits of Section 2.17 unless
the
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Company is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrowers, to comply with Section
2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank or, in the case of a Lender that is an
investment fund, to the trustee under the indenture to which such fund is a
party, and this Section shall not apply to any such pledge or assignment of a
security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 10.05. Survival. All covenants, agreements,
representations and warranties made by the Loan Parties herein or in any other
Loan Document or in the certificates or other instruments delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the other parties hereto or thereto
and shall survive the execution and delivery of this Agreement and any other
Loan Document and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent, the Issuing Bank or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement or any other Loan Document is outstanding and unpaid or any Letter of
Credit is outstanding and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.15, 2.16, 2.17, 10.03 and 10.13 and
Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any other Loan Document or
any provision hereof or thereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at
any time owing by such Lender or Affiliate to or for the credit or the account
of any Borrower
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against any of and all the obligations of such Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to
Service of Process. (a) This Agreement shall be construed in accordance with
and governed by the law of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to any Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
the Administrative Agent, the Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement against any Borrower
or its properties in the courts of any jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) of this Section. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement (including any Borrowing
Subsidiaries) irrevocably consents to service of process in the manner provided
for notices in Section 10.01. Nothing in this Agreement or any other Loan
Document will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each of the Administrative
Agent, the Issuing Bank and the Lenders agrees to maintain the confidentiality
of the Information (as
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defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors, to Related Funds' directors and officers and
to any direct or indirect contractual counterparty in swap agreements (it being
understood that each Person to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Company
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis
from a source other than the Company. For the purposes of this Section,
"Information" means all information received from the Company relating to the
Company or its business, other than any such information that is available to
the Administrative Agent, the Issuing Bank or any Lender on a nonconfidential
basis prior to disclosure by the Company; provided that, in the case of
information received from the Company after the date hereof, such information is
clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 10.13. Conversion of Currencies. (a) If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum
owing hereunder in one currency into another currency, each party hereto
(including any Borrowing Subsidiary) agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures in the relevant jurisdiction the first
currency could be purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is given.
(b) The obligations of each Borrower in respect of any sum due
to any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to be
due hereunder (the "Agreement Currency"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 10.13 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
SECTION 10.14. Release of Collateral. (a) Notwithstanding any
other provision of this Agreement or any Security Document, all Collateral held
under any Security Document shall be released from the Liens created thereunder,
in each case without representation, warranty or recourse of any nature, on a
Business Day specified by the Company (the "Release Date"), and the provisions
of Section 5.11 of this Agreement insofar as they relate
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to the Collateral Requirement shall cease to be of any force or effect, upon
satisfaction of the following conditions precedent:
(i) the Company shall have given written notice to the
Collateral Agent at least 10 Business Days prior to the Release Date,
specifying the proposed Release Date;
(ii) as of the date of such notice and as of the Release date,
the senior, unsecured, non-credit enhanced long term indebtedness for
borrowed money of the Company shall be rated "BBB-" or better by S&P
and "Baa3" or better by Moody's, and shall have been so rated by each
of S&P and Moody's for a period of not less than 90 consecutive days;
(iii) no Default or Event of Default under any of the Loan
Documents shall have occurred and be continuing as of the Release Date;
and
(iv) on the Release Date, the Collateral Agent shall have
received a certificate, dated the Release Date and executed on behalf
of the Company and each other Loan Party by the President, a Vice
President or a Financial Officer of the Company, confirming the
satisfaction of the conditions set forth in clauses (ii) and (iii)
above.
(b) Subject to the satisfaction of the conditions set forth in
paragraph (a) above, on or after the Release Date, the Lenders hereby expressly
authorize the Collateral Agent to, and the Collateral Agent hereby agrees to,
deliver the Pledged Stock and Pledged Notes (each as defined in the Pledge
Agreement) to the Company and to execute and deliver to the Company all such
instruments and documents as the Company may reasonably request to effectuate,
evidence or confirm the releases of Collateral provided for in this Section
10.14. Any execution and delivery of documents pursuant to this Section 10.14
shall be without recourse to or warranty by the Collateral Agent.
(c) Without limiting the provisions of Section 10.03, the
Company shall reimburse the Collateral Agent, the Administrative Agent and the
Lenders upon demand for all costs and expenses,
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including attorneys fees and disbursements, incurred by any of them in
connection with any action contemplated by this Section 10.14.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
GENERAL CABLE CORPORATION,
by /s/ Christopher F. Virgulak
---------------------------
Name: Christopher F. Virgulak
Title: Executive Vice
President
GK TECHNOLOGIES, INCORPORATED,
by /s/ Christopher F. Virgulak
---------------------------
Name: Christopher F. Virgulak
Title: Executive Vice
President
GENERAL CABLE HOLDINGS, INC.,
by /s/ Christopher F. Virgulak
---------------------------
Name: Christopher F. Virgulak
Title: Executive Vice
President
GENERAL CABLE HOLDINGS (UK)
LIMITED,
by /s/ Christopher F. Virgulak
---------------------------
Name: Christopher F. Virgulak
Title: Director
GENERAL CABLE ACQUISITIONS
(SPAIN), S.A.,
by /s/ Robert J. Siverd
--------------------
Name: Robert J. Siverd
Title: Sole Administrator
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THE CHASE MANHATTAN BANK,
individually, as Administrative
Agent and as Collateral Agent,
by /s/ Thomas H. Kozlark
---------------------
Name: Thomas H. Kozlark
Title: Vice President
CHASE MANHATTAN INTERNATIONAL
LIMITED, as London Agent,
by /s/ Stephen Hurford
-------------------
Name: Stephen Hurford
Title: Vice President
BANK ONE, MICHIGAN,
individually and as
Co-Documentation Agent,
by /s/ Patrick F. Dunphy
---------------------
Name: Patrick F. Dunphy
Title: Vice President
MERRILL LYNCH CAPITAL
CORPORATION, individually and as
Co-Documentation Agent,
by /s/ Carol J.E. Feeley
---------------------
Name: Carol J.E. Feeley
Title: Director/Vice President
PNC BANK, NATIONAL ASSOCIATION,
individually and as
Co-Documentation Agent,
by /s/ Troy A. Brown
-----------------
Name: Troy A. Brown
Title: Assistant Vice
President
BANKBOSTON, N.A.,
by /s/ Harvey H. Thayer, Jr.
-------------------------
Name: Harvey H. Thayer, Jr.
Title: Managing Director
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BANKBOSTON, N.A.,
as Trust Administrator for Long
Lane Master Trust IV,
by /s/ Renee A. Ross
-----------------
Name: Renee A. Ross
Title: Managing Director/
Credit Derivatives
BANK LEUMI USA,
by /s/ Timothy Fossa
-----------------
Name: Timothy Fossa
Title: Vice President
THE BANK OF NOVA SCOTIA,
by /s/ F.C.H. Ashby
----------------
Name: F.C.H. Ashby
Title: Senior Manager Loan
Operations
THE BANK OF TOKYO-MITSUBISHI,
LTD., CHICAGO BRANCH,
by /s/ Hisashi Miyashiro
---------------------
Name: Hisashi Miyashiro
Title: Deputy General Manager
BANK UNITED,
by /s/ Phil Green
--------------
Name: Phil Green
Title: Director Commercial
Syndications
CANADIAN IMPERIAL BANK OF
COMMERCE,
by /s/ Frank Fiorito
-----------------
Name: Frank Fiorito
Title: Authorized Signatory
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COMERICA BANK,
by /s/ Lee J. Santioni
-------------------
Name: Lee J. Santioni
Title: First Vice President
CYPRESSTREE INVESTMENT FUND, LLC,
By: CypressTree Investment
Management Company, Inc.,
its Managing Member,
by /s/ Peter K. Merrill
--------------------
Name: Peter K. Merrill
Title: Managing Director
CYPRESSTREE INSTITUTIONAL FUND,
LLC,
By: CypressTree Investment
Management Company, Inc.,
its Managing Member,
by /s/ Peter K. Merrill
--------------------
Name: Peter K. Merrill
Title: Managing Director
DEBT STRATEGIES FUND II, INC.,
by /s/ Joseph Moroney
------------------
Name: Joseph Moroney
Title: Authorized Signatory
FIRST UNION NATIONAL BANK,
by /s/ Jorge A. Gonzalez
---------------------
Name: Jorge A. Gonzalez
Title: Senior Vice President
FRANKLIN FLOATING RATE TRUST,
by /s/ Chauncey Lufkin
-------------------
Name: Chauncey Lufkin
Title: Vice President
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FREMONT FINANCIAL CORPORATION,
by /s/ Maria Chachere
------------------
Name: Maria Chachere
Title: Vice President
THE FUJI BANK, LIMITED,
by /s/ Peter L. Chinnici
---------------------
Name: Peter L. Chinnici
Title: Senior Vice President
& Group Head
GALAXY CLO 1999-1, LTD.,
By: SAI Investment Adviser, Inc.
its Collateral Manager,
by /s/ Lynn A. Hopton
------------------
Name: Lynn A. Hopton
Title: Authorized Signatory
JACKSON NATIONAL LIFE INSURANCE
COMPANY,
By: PPM America, Inc., as
attorney in fact, on behalf
of Jackson National Life
Insurance Company,
by /s/ Michael King
----------------
Name: Michael King
Title: Vice President
KEYBANK NATIONAL ASSOCIATION,
by /s/ Brendan A. Lawlor
---------------------
Name: Brendan A. Lawlor
Title: Assistant Vice
President
KZH APPALOOSA LLC,
by /s/ Martin Alderoty
-------------------
Name: Martin Alderoty
Title: Authorized Agent
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KZH CRESCENT-2 LLC,
by /s/ Virginia Conway
-------------------
Name: Virginia Conway
Title: Authorized Agent
KZH CRESCENT-3 LLC,
by /s/ Virginia Conway
-------------------
Name: Virginia Conway
Title: Authorized Agent
KZH CRESCENT LLC,
by /s/ Virginia Conway
-------------------
Name: Virginia Conway
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC,
by /s/ Virginia Conway
-------------------
Name: Virginia Conway
Title: Authorized Agent
KZH ING-1 LLC,
by /s/ Ann Turlip
--------------
Name: Ann Turlip
Title: Authorized Agent
KZH ING-2 LLC,
by /s/ Ann Turlip
--------------
Name: Ann Turlip
Title: Authorized Agent
KZH ING-3 LLC,
by /s/ Virginia Conway
-------------------
Name: Virginia Conway
Title: Authorized Agent
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KZH III LLC,
by /s/ Martin Alderoty
-------------------
Name: Martin Alderoty
Title: Authorized Agent
KZH IV LLC,
by /s/ Martin Alderoty
-------------------
Name: Martin Alderoty
Title: Authorized Agent
KZH LANGDALE LLC,
by /s/ Martin Alderoty
-------------------
Name: Martin Alderoty
Title: Authorized Agent
KZH SHOSHONE LLC,
by /s/ Virginia Conway
-------------------
Name: Virginia Conway
Title: Authorized Agent
KZH WATERSIDE LLC,
by /s/ Virginia Conway
-------------------
Name: Virginia Conway
Title: Authorized Agent
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.,
by /s/ Joseph Moroney
------------------
Name: Joseph Moroney
Title: Authorized Signatory
METROPOLITAN LIFE INSURANCE
COMPANY,
by /s/ James R. Dingler
--------------------
Name: James R. Dingler
Title: Director
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MICHIGAN NATIONAL BANK,
by /s/ John M. Bebb
----------------
Name: John M. Bebb
Title: Relationship Manager
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK,
by /s/ Michael L. Ambler,
----------------------
Name: Michael L. Ambler, ASC
Title: Associate
MORGAN STANLEY DEAN WITTER PRIME
INCOME TRUST,
by /s/ Sheila A. Finnerty
----------------------
Name: Sheila A. Finnerty
Title: Vice President
NATIONAL CITY BANK,
by /s/ Beth A. Newton
------------------
Name: Beth A. Newton
Title: Vice President
NATIONSBANK, N.A.,
by /s/ Edward A. Hamilton
----------------------
Name: Edward A. Hamilton
Title: Managing Director
NORTH AMERICAN SENIOR FLOATING
RATE FUND,
By: CypressTree Investment
Management Company, Inc. as
Portfolio Manager
by /s/ Peter K. Merrill
--------------------
Name: Peter K. Merrill
Title: Managing Director
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OCTAGON LOAN TRUST,
By: Octagon Credit Investors, as
Manager,
by /s/ Joyce C. DeLucca
--------------------
Name: Joyce C. DeLucca
Title: Managing Director
OLYMPIC FUNDING TRUST, SERIES
1999-1,
by /s/ Kelly C. Walker
-------------------
Name: Kelly C. Walker
Title: Authorized Agent
PILGRIM PRIME RATE TRUST,
By: Pilgrim Investments, Inc. as
its investment manager,
by /s/ Charles E. LeMieux
----------------------
Name: Charles E. LeMieux, CFA
Title: Assistant Vice
President
SEQUILS I, LTD,
By: TCW Advisors, Inc. as its
Collateral Manager,
by /s/ Mark L. Gold
----------------
Name: Mark L. Gold
Title: Managing Director
by /s/ Justin L. Driscoll
----------------------
Name: Justin L. Driscoll
Title: Senior Vice President
SOUTHERN PACIFIC BANK,
by /s/ Cheryl A. Wasilewski
------------------------
Name: Cheryl A. Wasilewski
Title: Senior Vice President
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STEIN ROE FLOATING RATE LIMITED
LIABILITY COMPANY,
by /s/ Brian W. Good
-----------------
Name: Brian W. Good
Title: Vice President,
Stein Roe & Farnham
Incorporated, as Advisor to
the Stein Roe Floating Rate
Limited Liability Company
TORONTO DOMINION (NEW YORK),
INC.,
by /s/ Jorge A. Garcia
-------------------
Name: Jorge A. Garcia
Title: Vice President
TRAVELERS CORPORATE LOAN FUND
INC.,
By: Travelers Asset Management
International Corporation,
by /s/ John W. Petchler
--------------------
Name: John W. Petchler
Title: Second Vice President
THE TRAVELERS INSURANCE COMPANY,
by /s/ John W. Petchler
--------------------
Name: John W. Petchler
Title: Second Vice President
TRITON CBO III, LIMITED,
By: INVESCO Senior Secured
Management, Inc., as
Investment Advisor
by /s/ Kathleen A. Lenarcic
------------------------
Name: Kathleen A. Lenarcic
Title: Authorized Signatory
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93
USTRUST,
by /s/ D. G. Eastman
-----------------
Name: D.G. Eastman
Title: Vice President